Sometime ago I posted a piece on Rawls' 1969 article concerning the justification of civil disobedience. Since I have, more recently, been going through Chapter VI of A Theory of Justice where Rawls returns to the topic of civil disobedience and distinguishes it from conscientious refusal, I will, in discussing in this posting the account of the justification of civil disobedience Rawls provides in this chapter, reflect also on how it relates to the earlier justification given in his 1969 article.
Rawls opens the account of the "justification" of civil disobedience in Theory by limiting it to cases of domestic institutions and thus to responses to injustice taken to be internal to a given society though he conjoins this with a parallel account of conscientious refusal with regard to questions of war, which latter is worth returning to in the light of Rawls' interestingly different discussion in The Law of Peoples.
Rawls begins by laying out what he terms "reasonable conditions" for engaging in civil disobedience and this opens with a description of the type of wrong against which it would appear right to respond in such a fashion. The wrong in question should be, indicates Rawls, a "substantial and clear injustice" and preferably be of a kind that obstructs the path to removing other kinds of injustice. The substantial nature of the injustice thus protested against is clearly meant to limit the opportunity to appeal to this kind of protest given that it is a protest which is, as Rawls indicated earlier in this chapter, at the "limit" of adherence to the rule of law. The "presumption" is in favour of restricting civil disobedience to infringements of the first principle of justice and to blatant violations of the second part of the second principle, namely the principle of fair equality of opportunity.
Examples are provided of the kinds of violations that would fall under these headings including denial of the right to vote or hold office for minorities or the denial of other basic rights to them such as the right to own property or to freely change habitation. These injustices have the characteristic in common of being publicly expressed and thus visible in nature. However the question of the appropriate response to denial of the difference principle is more difficult for Rawls since, as he puts it, there could be "a wide range of conflicting yet rational opinion" as to whether it was being satisfied. Given this it follows that protest against tax laws taken to be unjust would not, at least "normally", be eligible for response by reference to acts of civil disobedience. In indicating the restriction in relation to "normality" Rawls appears here to leave open complaint that the case in question is not, for some given stated reason, "normal" and it is notable that this restriction would have ensured that protests against a "poll tax" for example, would not correctly be met with by acts of civil disobedience.
The question of "normality" is however addressed in Rawls' second criteria of justifiable civil disobedience which defines it by reference to "normal appeals" to the political majority. Rawls here evidently means appeals that conform to the usual political processes have been made but the majority have not responded to these appeals. However, even here it is still required for Rawls that it be demonstrated in some way that civil disobedience is "necessary" by which he appears to mean that further resort to the usual political processes has become evidently shown to be useless in some way. This second criteria is, like the first one, a presumption but in the case of this second criteria Rawls also points out that cases may be so extreme that there is no duty incumbent on the aggrieved party to use only legal means of opposition. A case cited would be if the religion of a minority were outright banned.
The third and last condition Rawls gives is described by him in unusually turgid terms but can be described rather more briefly than he does by reference to "fairness" in exercise of the right to civil disobedience. Essentially what is here described is that it is possible distinct minorities have separate reasons to protest by means of the use of civil disobedience but that if all do so the protests of each will thereby receive less attention and hence the point of the protests of each will be diminished. This requires, therefore, some kind of understanding to be reached between the different minorities in regard to the fair ways in which such protests can be coordinated and planned. Having listed these conditions Rawls turns next to the pragmatic matter of the question of the prudence of turning to the use of civil disobedience as a factor that has to be considered by the aggrieved parties though this is hardly part of the theory of justice in his sense.
The account given in Theory can be usefully contrasted with that provided in the earlier 1969 article as in the previous piece Rawls referred to 4 conditions under which civil disobedience could be justified and these are not entirely coterminous with the criteria listed above. In 1969 the first criteria given was that there was no "normal" means of addressing the grievance in question which we have found repeated in Theory where it is defined clearly which it was not in 1969. The second criteria in the earlier article was that fundamentals should be involved in order to appeal to civil disobedience which is repeated in the reference to "substantial wrongs" in Theory. Just as would be repeated in Theory it was also here made clear that violations of the difference principle would not be sufficient to qualify. However a generality requirement was invoked in 1969 that Rawls does not discuss in Theory to the effect that recognition of cases in which one felt oneself entitled to civil disobedience has to meet the same standards one would apply to others in similar cases and it is unclear why this was dropped in Theory. Also, in 1969, Rawls does not invoke prudential considerations but rather ones of efficacy as ones that should weigh for the aggrieved parties. Whilst efficacy does not really relate to the theory of justice any more than prudence it is more linked to a theory of institutions than prudence alone is.
Rawls' subsequent discussion in Theory concerns the justification of conscientious refusal, a topic not considered in 1969 and which relates not to domestic institutions but to foreign policy. In considering this topic Rawls extends the theory of justice beyond the closed society model that is dominant in Theory to the law of nations. This extension is related to the question of serving in wars as this relates to political objections to the wars in question. In making this extension Rawls explicitly extends the veil of ignorance so that it encompasses citizens of different states in order to nullify the contingencies and biases of history. The principles of justice that are assumed to be chosen in these circumstances provide for equality of rights which guarantees a principle of self-determination, self-defense and the sanctity of treaties. The point of these principles is to define the nature of just causes for war and the means that could be used during war. In stating these Rawls is concerned to constrain the activity of war so that a just peace can emerge from it.
Given these points the consideration of conscientious refusal relates to the principles of justice that are taken to have been shown to be reasonable for states to observe. Soldiers are thereby released from following orders that contradict the basis of just war-making. The question of the basis of refusal to serve in war is also addressed by reference to the general theory of just rules that govern states. So wars that are not ones of self-defence are clearly wars that it is legitimate to refuse to serve in and similarly wars that were prosecuted in unjust ways could be objected to in the same way. In sufficiently grievous cases there would be a duty and not only a right to conscientious refusal. The inclusion of rules of discrimination based on the principles of justice is thus recommended by the theory of justice as part of domestic right for states that are well ordered and they should replace exemptions that refer only to pacifist convictions or religious grounds. This would ensure that the recognised right of conscientious refusal would be seen to have a political character and not merely to be based on individual moral or religious claims.
Showing posts with label conscientious refusal. Show all posts
Showing posts with label conscientious refusal. Show all posts
Tuesday, 6 March 2012
Wednesday, 22 February 2012
Rawls and the Definition of Civil Disobedience
Rawls' account of the "definition" of civil disobedience follows after the discussion of the sense in which there is a "duty" to follow unjust laws, which latter was described in the previous posting. The topic of civil disobedience takes up the rest of Chapter VI and was also addressed in an article of 1969 that I posted on here.
The account that takes up the rest of Chapter VI of Theory is included in order, as Rawls puts it, to "illustrate the content of the principles of natural duty and obligation". Hence the question of civil disobedience is viewed by Rawls as an exemplary question with regard to such principles. The theory is, as it was in the earlier 1969 article, narrowly defined as it describes actions that are related to a nearly just society which has an established democratic authority. It is not intended to be applicable to cases where resistance to patently unjust social and legal orders is at issue. However, whilst this element of the theory of civil disobedience is of a piece with the earlier 1969 article, Rawls is careful in the account in Theory to distinguish three parts of the theory of civil disobedience. The three parts encompass the definition of civil disobedience, its justification and the role it plays within a constitutional system. The earlier piece, by contrast, was intended primarily to give a justification of civil disobedience although the basic definition that Rawls gives in Theory is not different from the one he gave in the 1969 article. What is distinct, however, is the way that he now defines civil disobedience in such a way that it is made distinct both from conscientious refusal and militancy.
The general definition, that is unchanged from the 1969 article, is that civil disobedience is "a public, nonviolent, conscientious yet political act contrary to law usually done with the aim of bringing about a change in the law or policies of the government". This definition encompasses a number of elements but it is useful, in light of Rawls' purpose of distinguishing the phenomena of civil disobedience from conscientious refusal to see that his definition of civil disobedience describes the latter as a conscientious act. What, as we will see, distinguishes it as a conscientious act, from conscientious refusal, is its political character. The second point worth immediate attention is the reference to the kind of political act that civil disobedience is. It is the kind that seeks to bring about a change in "law or policies", not one that is aimed at destabilising the government as such and certainly not one that challenges the system of justice as a whole. This is how the description of civil disobedience is distinguished from action of a revolutionary (or as Rawls also terms it) "militant" kind.
Having made this initial pass at how civil disobedience will be given a specific status that is intermediate between conscientious refusal and "militancy" Rawls provides two glosses on the definition he has just given of civil disobedience. The first gloss concerns the way that such disobedience involves breaking the law. It is not a requirement that, for the act to be understood as civilly disobedient, that the law that is broken in performing the act, be the same as the law protested against. There are clear reasons for this since the law protested against could be one the breakage of which involved severe penalties or not to be capable of being engaged with by an ordinary citizen. So the civilly disobedient act can be one that is not directly aimed at the law protested but which instead indirectly aims at it by means of expressive law-breaking.
The second gloss, however, is that the civilly disobedient act, to be seen as one, should decidedly be one that does break the law and does not merely present a test case for a constitutional or legal decision. The latter case would be one where, should the law broken be subsequently upheld, the law-breaker would then come to accept the legitimacy of the law which they had broken. In a case of civil disobedience subsequent legal opinion is not to the point concerning the status of the law-breaking. The civilly disobedient actor does not renounce their act simply because subsequent legal opinion tells them the original law is sound in terms of the legal system's rules. So whilst the act need not be directly aimed at the law protested it has to be an act whose status as justified is not disclaimed by the one performing it regardless of normally decisive legal statements.
These two glosses refer to two ways in which civil disobedience is related to the law. The next topic Rawls discusses concerns the relationship of civil disobedience to politics. There are two different ways that Rawls takes civil disobedience to be related to politics. On the one hand, civilly disobedient acts are addressed to the majority that is assumed to at least tacitly support the status quo and this address indicates it is part of the public sphere. On the other hand, civilly disobedient acts are guided and regulated by political principles, not principles of personal morality or religious doctrines. So acts of civil disobedience invoke "the commonly shared conception of justice that underlies the political order" or, to put this point another way, appeal to the principles of justice in order to point up ways in which the laws protested against are taken to be in sharp divergence from them.
At this point Rawls moves on to the point that the civilly disobedient act is a public act. This is another way in which the act is political. It is not a secretive act, intended to evade surveillance, it rather takes place in the light of day and is intended to be known to all. This is, indeed, essential to its character of appealing to the sense of justice of the majority. Attached to this public quality of civil disobedience for Rawls is the fact that the act in question is one that is non-violent. This non-violent quality is part of the civic nature of the civilly disobedient act as violence will impair its ability to act as a mode of address to the majority. It is also non-violent, on Rawls' conception, due to the claim that it is an act that expresses disobedience "within the limits of fidelity to law" although it is right at the edge of such fidelity. Part of what is involved in such fidelity is another reason for the publicity of the act. Given its publicity, the act will incur sanction from legal authority as an evident corollary and this is accepted by the one undertaking the act. This willingness to undergo the penalty, despite the assurance the one undertaking the act has that their action was a just one in reaction to unjust circumstances, is indicative of a claim on the moral consideration of the community.
The references to the non-violent and public quality of civilly disobedient acts allows Rawls to contrast such acts with those of the "militant" or revolutionary as the latter acts under no obligation to either publicity or acceptance of legal consequences. The reason why such action, in contrast to that of civil disobedience, has no necessary relationship to publicity, is that it is part of a settled conviction that the general system of justice, and not merely some element of its application, is deeply wrong. Whilst such action would have to be addressed within a Rawlsian conception of non-ideal theory in relation to basic structures that were not taken to be just, it has no place within the theory of justice but rather defines an action, in relation to a nearly just society, that is itself unjust.
However, Rawls is rather more concerned with describing the definitional difference between civil disobedience and conscientious refusal than with demarcating civil disobedience from militancy. This second part of his task requires him to provide an extended description of conscientious refusal that mirrors his account of civil disobedience (and such an extended account of militancy is not provided for reasons indicated). Conscientious refusal is defined by Rawls as "noncompliance with a more or less direct legal injunction or order". Notably, the inclusion here of reference to a specific legal injunction or order shows that conscientious refusal is distinct from civil disobedience in the sense that it cannot be indirect. It is the specific law protested against that is here broken. An example would be that of a pacifist who refused to heed the call-up. Given that the call-up specifically requires the pacifist to be engaged in the conflict to which they object they can only pursue their conviction in direct violation of it. There is a slight complication since it may be possible to evade the order without being detected and so to act covertly which would be, states Rawls, an act of conscientious evasion but notably this brings out that conscientious acts, considered merely as such, lack the necessary reference to publicity that we disclosed as essential to civil disobedience. Given this difference, there is an immediate sense in which conscientious refusal is not political in the way that civil disobedience is.
Thus far we have seen that conscientious refusal has to be direct and is not necessarily public. However, a further contrast between it and civil disobedience is that conscientious refusal is not an address aimed at the sense of justice of the majority. In not being so it is removed from the public sphere in another way and further indicated as a non-political form of action. The one who undertakes acts of conscientious refusal is like the militant in the sense that they lack confidence in the settled principles of justice of the society they belong to. The principles appealed to in conscientious refusal also need not be political. Religious or moral principles that exceed the limits of the political are frequently appealed to directly in acts of conscientious refusal.
The cases of conscientious refusal pose certain problems for the theory of justice and some of these problems have arisen explicitly in recent cases. So, for example, religious persons who refuse to undertake actions they declare in violation of their conscience and yet are public employees may lose their employment as they are ceasing to act in ways that have civil validity. In such cases, however, the religious convictions are prompting action that violate the requirement of respect for equal liberties (the first principle of justice) and so cannot be taken to have political rationale. It is precisely due to such a claim that there is action involved here which has no basis for appeal to the general sense of justice.
This does not mean that there is nothing politically instructive involved in actions of conscientious refusal as the case of the pacifist illustrates well. Pacifists are generally treated with a margin of respect and given alternative occupations once their adherence to their position is validated. The reason for this treatment, not one accorded in general to those who appeal to principles of conscientious refusal, is due to the degree of affinity that exists between pacifist principles and political ones. There is an inherent reference within pacifist statements to general criteria that are related to, if also distinct from, political ones and the arguments of pacifists contribute to vigilance with regard to justifications for conflict and in this way serve a civil end.
The discussion in this posting has concerned only the general definition of civil disobedience and the contrast between it and the cases of conscientious refusal and revolutionary principles. However nothing in this discussion has as yet given a clear argument justifying civil disobedience or indicating the nature of the kinds of conscientious refusal that might be politically justified other than to specify some kind of connection to the principles of justice. This question of justification will be the subject of the next posting on Rawls.
The account that takes up the rest of Chapter VI of Theory is included in order, as Rawls puts it, to "illustrate the content of the principles of natural duty and obligation". Hence the question of civil disobedience is viewed by Rawls as an exemplary question with regard to such principles. The theory is, as it was in the earlier 1969 article, narrowly defined as it describes actions that are related to a nearly just society which has an established democratic authority. It is not intended to be applicable to cases where resistance to patently unjust social and legal orders is at issue. However, whilst this element of the theory of civil disobedience is of a piece with the earlier 1969 article, Rawls is careful in the account in Theory to distinguish three parts of the theory of civil disobedience. The three parts encompass the definition of civil disobedience, its justification and the role it plays within a constitutional system. The earlier piece, by contrast, was intended primarily to give a justification of civil disobedience although the basic definition that Rawls gives in Theory is not different from the one he gave in the 1969 article. What is distinct, however, is the way that he now defines civil disobedience in such a way that it is made distinct both from conscientious refusal and militancy.
The general definition, that is unchanged from the 1969 article, is that civil disobedience is "a public, nonviolent, conscientious yet political act contrary to law usually done with the aim of bringing about a change in the law or policies of the government". This definition encompasses a number of elements but it is useful, in light of Rawls' purpose of distinguishing the phenomena of civil disobedience from conscientious refusal to see that his definition of civil disobedience describes the latter as a conscientious act. What, as we will see, distinguishes it as a conscientious act, from conscientious refusal, is its political character. The second point worth immediate attention is the reference to the kind of political act that civil disobedience is. It is the kind that seeks to bring about a change in "law or policies", not one that is aimed at destabilising the government as such and certainly not one that challenges the system of justice as a whole. This is how the description of civil disobedience is distinguished from action of a revolutionary (or as Rawls also terms it) "militant" kind.
Having made this initial pass at how civil disobedience will be given a specific status that is intermediate between conscientious refusal and "militancy" Rawls provides two glosses on the definition he has just given of civil disobedience. The first gloss concerns the way that such disobedience involves breaking the law. It is not a requirement that, for the act to be understood as civilly disobedient, that the law that is broken in performing the act, be the same as the law protested against. There are clear reasons for this since the law protested against could be one the breakage of which involved severe penalties or not to be capable of being engaged with by an ordinary citizen. So the civilly disobedient act can be one that is not directly aimed at the law protested but which instead indirectly aims at it by means of expressive law-breaking.
The second gloss, however, is that the civilly disobedient act, to be seen as one, should decidedly be one that does break the law and does not merely present a test case for a constitutional or legal decision. The latter case would be one where, should the law broken be subsequently upheld, the law-breaker would then come to accept the legitimacy of the law which they had broken. In a case of civil disobedience subsequent legal opinion is not to the point concerning the status of the law-breaking. The civilly disobedient actor does not renounce their act simply because subsequent legal opinion tells them the original law is sound in terms of the legal system's rules. So whilst the act need not be directly aimed at the law protested it has to be an act whose status as justified is not disclaimed by the one performing it regardless of normally decisive legal statements.
These two glosses refer to two ways in which civil disobedience is related to the law. The next topic Rawls discusses concerns the relationship of civil disobedience to politics. There are two different ways that Rawls takes civil disobedience to be related to politics. On the one hand, civilly disobedient acts are addressed to the majority that is assumed to at least tacitly support the status quo and this address indicates it is part of the public sphere. On the other hand, civilly disobedient acts are guided and regulated by political principles, not principles of personal morality or religious doctrines. So acts of civil disobedience invoke "the commonly shared conception of justice that underlies the political order" or, to put this point another way, appeal to the principles of justice in order to point up ways in which the laws protested against are taken to be in sharp divergence from them.
At this point Rawls moves on to the point that the civilly disobedient act is a public act. This is another way in which the act is political. It is not a secretive act, intended to evade surveillance, it rather takes place in the light of day and is intended to be known to all. This is, indeed, essential to its character of appealing to the sense of justice of the majority. Attached to this public quality of civil disobedience for Rawls is the fact that the act in question is one that is non-violent. This non-violent quality is part of the civic nature of the civilly disobedient act as violence will impair its ability to act as a mode of address to the majority. It is also non-violent, on Rawls' conception, due to the claim that it is an act that expresses disobedience "within the limits of fidelity to law" although it is right at the edge of such fidelity. Part of what is involved in such fidelity is another reason for the publicity of the act. Given its publicity, the act will incur sanction from legal authority as an evident corollary and this is accepted by the one undertaking the act. This willingness to undergo the penalty, despite the assurance the one undertaking the act has that their action was a just one in reaction to unjust circumstances, is indicative of a claim on the moral consideration of the community.
The references to the non-violent and public quality of civilly disobedient acts allows Rawls to contrast such acts with those of the "militant" or revolutionary as the latter acts under no obligation to either publicity or acceptance of legal consequences. The reason why such action, in contrast to that of civil disobedience, has no necessary relationship to publicity, is that it is part of a settled conviction that the general system of justice, and not merely some element of its application, is deeply wrong. Whilst such action would have to be addressed within a Rawlsian conception of non-ideal theory in relation to basic structures that were not taken to be just, it has no place within the theory of justice but rather defines an action, in relation to a nearly just society, that is itself unjust.
However, Rawls is rather more concerned with describing the definitional difference between civil disobedience and conscientious refusal than with demarcating civil disobedience from militancy. This second part of his task requires him to provide an extended description of conscientious refusal that mirrors his account of civil disobedience (and such an extended account of militancy is not provided for reasons indicated). Conscientious refusal is defined by Rawls as "noncompliance with a more or less direct legal injunction or order". Notably, the inclusion here of reference to a specific legal injunction or order shows that conscientious refusal is distinct from civil disobedience in the sense that it cannot be indirect. It is the specific law protested against that is here broken. An example would be that of a pacifist who refused to heed the call-up. Given that the call-up specifically requires the pacifist to be engaged in the conflict to which they object they can only pursue their conviction in direct violation of it. There is a slight complication since it may be possible to evade the order without being detected and so to act covertly which would be, states Rawls, an act of conscientious evasion but notably this brings out that conscientious acts, considered merely as such, lack the necessary reference to publicity that we disclosed as essential to civil disobedience. Given this difference, there is an immediate sense in which conscientious refusal is not political in the way that civil disobedience is.
Thus far we have seen that conscientious refusal has to be direct and is not necessarily public. However, a further contrast between it and civil disobedience is that conscientious refusal is not an address aimed at the sense of justice of the majority. In not being so it is removed from the public sphere in another way and further indicated as a non-political form of action. The one who undertakes acts of conscientious refusal is like the militant in the sense that they lack confidence in the settled principles of justice of the society they belong to. The principles appealed to in conscientious refusal also need not be political. Religious or moral principles that exceed the limits of the political are frequently appealed to directly in acts of conscientious refusal.
The cases of conscientious refusal pose certain problems for the theory of justice and some of these problems have arisen explicitly in recent cases. So, for example, religious persons who refuse to undertake actions they declare in violation of their conscience and yet are public employees may lose their employment as they are ceasing to act in ways that have civil validity. In such cases, however, the religious convictions are prompting action that violate the requirement of respect for equal liberties (the first principle of justice) and so cannot be taken to have political rationale. It is precisely due to such a claim that there is action involved here which has no basis for appeal to the general sense of justice.
This does not mean that there is nothing politically instructive involved in actions of conscientious refusal as the case of the pacifist illustrates well. Pacifists are generally treated with a margin of respect and given alternative occupations once their adherence to their position is validated. The reason for this treatment, not one accorded in general to those who appeal to principles of conscientious refusal, is due to the degree of affinity that exists between pacifist principles and political ones. There is an inherent reference within pacifist statements to general criteria that are related to, if also distinct from, political ones and the arguments of pacifists contribute to vigilance with regard to justifications for conflict and in this way serve a civil end.
The discussion in this posting has concerned only the general definition of civil disobedience and the contrast between it and the cases of conscientious refusal and revolutionary principles. However nothing in this discussion has as yet given a clear argument justifying civil disobedience or indicating the nature of the kinds of conscientious refusal that might be politically justified other than to specify some kind of connection to the principles of justice. This question of justification will be the subject of the next posting on Rawls.
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