In your opinion, what conditions need to be met for civil disobedience to be justified?
In my examination of the conditions which justify civil disobedience, I will first examine Rawls' conditions for civil disobedience and then consider arguments that I will show fail to defend the position that civil disobedience can never be justified in a democratic society. I will examine the relationship between civil disobedience and Natural Law and argue that morality is fundamental to the justification of civil disobedience. I will extend the justification of moral reasoning to include harm to innocents and future harm, as not only a justification for civil disobedience but a right and a duty. I will go further than Rawls and argue that civil disobedience should not be restricted to conditions based only on existing laws and claim that the absence of law can also result in clear and significant moral injustice. I will conclude by offering the reader a concise framework of the necessary conditions which in my opinion need to be met for civil disobedience to be justified.
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Civil Disobedience
Civil disobedience in a democratic society forms part of a wider procedure of opposition to state-imposed laws. There are procedures an objector can take in personal opposition, including that conscientious refusal, a personal objection to follow a rule which is in direct odds with one's own deep moral convictions. Their aim is not to convince others to join them in refusal, it is a private form of dissent. If a moral conviction compels the individual that societal change is necessary, then further legal channels to challenge the state are available within a democratic society. These take the form of lobbying, petitioning, and demonstrating using peaceful protest to communicate a message publicly to gain support. It is only once these channels have been exhausted that Rawls (XXXX) claims civil disobedience can be justified as a last resort measure. Rawls defines civil disobedience as a public, non-violent, conscientious yet political act contrary to law usually done with the aim of bringing about a change in the law or policies of government'. (XXXX)
Rawls claims that civil disobedience must be nonviolent with an emphasis on its civility. I agree that it should be a nonviolent procedure where intentionally violent forms of dissent causing harm to others, should be further defined under the parameters of radical protest or revolutionary action, a move beyond civil disobedience. Civil disobedience should never challenge laws that are fundamental to the foundation of society. Violence and harm to others threaten the social contract and therefore cannot uphold respect for justice and the state in the main. Civil disobedience as a procedure is a communicative challenge to an injustice that threatens liberty, equity, and fairness in order to make a progressive change, not to challenge society, justice, and the state itself.
Rawls claims civil disobedience can only be justified in a 'near just state', (1971), one that is democratic, whereas dissent and opposition to illiberal regimes can be justified. Rawls is concerned with contraventions of the first principle of justice, the 'liberty principle', (1971), which is no surprise as he is a 'theory of justice', his aim is not to create a moral theory. He necessitates a procedural recourse for the immoral violation of minority groups under majority rule. I uphold there must be a clear and significant injustice that contravenes the liberty and fair opportunity principles and action contrary to law must only be a last resort. Rawls states that justified dissenters respect the legal justice system in practice and are willing to accept the legal consequences. This acceptance is shared by Thoreau (1849), whose conscience would not allow him to pay taxes to a government he considered engaged in an unjust war with Mexico, and accepted his imprisonment. Thoreau appealed to others to join his cause claiming, 'In an unjust society the only place for a just man is prison'. Thoreau believed it was a moral duty of all men to follow one's conscience, 'Must the citizen ever for a moment, or in the least degree, resign his conscience to the legislator?'. Raz (XXXX) claims that in a democratic society, it can never be justified to break the law, as the majority party has been fairly elected, therefore, its legislation is already just. He argues that civil disobedience is reserved for illiberal regimes, focussing his justification on the denial of participation rights, whereas, in a liberal society, there are adequate channels, therefore, no participation rights to claim. Raz fails to recognise that it is harder for minority groups to have their voices heard under majority rule and history shows that unjust practice can be written in law, as in the case of slavery and apartheid.
Dissent grounded in deep belief is generally tolerated for private conscientious refusal under freedom of religion and expression rights, however, I argue that deep moral beliefs also justify communicative action. We have a long history of demonizing dissenters and recognizing their achievements in retrospect, such as Martin Luther King, Mandella, Gandhi, and more recently Edward Snowdon. Society rarely identifies injustices at the time, only later being able to reflect on historic injustice. Through my examination, I conclude that the right to engage in civil disobedience in liberal societies is not only justified but necessary in order to protect minority groups from unjust legislation. I uphold Rawls' conditions for civil disobedience to be grounded by clear injustice and last resort action, however in challenging only existing law, Rawls is too restrictive. In order to allow for future protection over potential injustices not currently protected in law, consideration must be given to moral reasoning and a moral right to engage in civil disobedience based on conscience.
Natural Law
I will now consider that the justification for civil disobedience should be based on what is right and wrong and this may not align with what is legal or illegal in human law.
'Civil disobedience involves not just a communicative breach, but a conscientious communicative breach of the law motivated by steadfast, sincere and serious (though possibly erroneous) moral convictions' (Brownlee, XXXX)
It is these moral convictions that natural law theory explains are rules that govern human behavior, derived from the inherent nature and natural reasoning of human beings. Socrates, (XXXX), viewed the law as a product of correct reasoning, while Aristotle, (XXXX), claimed there were universal and immutable standards, discoverable only through reason, therefore any man-made laws should conform to those standards. Similarly, Plato claimed that 'ultimate justice is discoverable through reason'. Through the middle ages, natural law became entwined with religion and faith. St Thomas of Aquinas, (XXXX), argued that man could find out natural law by applying reason and claimed ' unjust law deserves no obedience'. He considered man-made law unjust where it furthered the interests of the lawgiver only and imposed burdens unequally on the governed. The Renaissance period moved away from relying on scriptures for reason and philosophers such as Rousseau, Hobbes, and Locke, looked toward the purpose of human life to extract natural law principles, which formed the foundation of social contract theory and natural rights. The modern period saw the emergence of positivists who believed that the role of the jurists is to study and analyze Law as it is, not as it ought to be. Natural law played an important role in establishing moral concepts such as the principle that agreements are to be honored. It inspired the formation of democratic constitutions and the incorporation of fundamental rights. Principles of equity were developed on natural law including a reduction of the harshness of common law at the time. Natural law played a key role in the development of natural justice, which gave the principle of entitlement to a fair hearing. It is this natural law and inherent moral reasoning of humans that enabled democracy and justice in modern society. The right to act in accordance with sincere conscientious moral convictions is protected under Article 9 of the European Convention of Human Rights (XXXX), protecting the right to freedom of thought, belief, and religion. This right allows citizens to put thoughts and beliefs into action and justifies conscientious refusal. Civil disobedience as a public communicated action can be argued to be for a greater good than to serve self, however, Article 9 cannot be used as a form of defense where an action is unlawful. Brownlee, (XXXX), argues that acting on conscience and fulfilling human nature, by communicating their belief of injustice publicly to seek change, is more virtuous than private conscientious refusal. Brownlee argues that if you have a morally justified claim, then you have a moral right, and although this cannot translate into a legal right it can ground legal excuse in the case of civil disobedience, which she terms the 'demands of conviction excuse'.
Moral Duty
If we have a moral right to act it begs the question as to whether citizens ever have a moral duty to engage in civil disobedience. This may appear inconsistent with a duty to uphold the law, therefore, it is necessary to identify the point at which the duty to act outweighs the duty to uphold the law. Brownlee, (XXXX), argues we need to look at fundamental basic needs to justify moral urgency and while many of these are recognized in the universal declaration of human rights, many are not, such as the right to breathable air. Threats to basic needs provide a way to identify when a situation of moral urgency arises. When we think of situations of moral urgency, it seems logical that any reason to believe that an individual or group is being harmed or is likely to be harmed would be a morally urgent situation. While harm to persons in the past or present can be readily accepted, the idea that future generations could be harmed is somewhat controversial when trying to identify the claimer of a right who is not yet in existence. Appiah, (XXXX), defines how we can identify which societal practices future generations will condemn and outlaw in the future. Appiah claims the evidence against a practice will already be well known, those who defend a harmful initiative will not be able to give moral counterarguments, instead, they practice strategic ignorance grounding their arguments in economics, tradition, and lifestyle. Applying this to the current climate crisis where evidence already exists, we can reason that we are in a morally urgent situation, which on the balance of probability will harm not just innocents, such as future generations, but critically harming other species in the process, a justification for civil disobedience would be to communicate the absence of protective laws in this case. Singer's, (XXXX), drowning child thought experiment argues that 'we have a duty to come to the aid of innocents'. The moral duty to act to prevent future harm to others is not adequately countered by the fact that there are no future persons yet in existence to claim a moral right. I argue that if we take existing evidence and the reason that future generations will conceivably exist, and the evidence demonstrates on the balance of probability that those future generations, whoever they turn out to be, are innocents that will be harmed, then this grounds a moral duty to act. I do not accept that we must not risk stability in society in order to fulfil such an urgent moral duty, where harm is clear. Moral duty should ground a legal excuse for the law-breaking nature of civil disobedience where moral urgency necessitates.
Conditions
Through moral reasoning set out in this essay, I wish to go further in defining which conditions should be met for civil disobedience to be justified in order to allow for the moral duty that is necessitated by a situation of moral urgency.
The primary justification for engaging in civil disobedience requires there to be a clear and significant moral injustice in human law or an absence of protective law, which can be evidenced to directly or indirectly cause harm to others.
Additionally, the following must apply:
- Engaging in an act of civil disobedience can only be justified as a last resort, where legal procedures can be demonstrated to have been exhausted.
- The act of civil disobedience can only be justified where the act of dissent is absent of intent to harm others.
- The act of civil disobedience can only be justified where harm to others can be evidenced to have occurred either in the past, present, or upon the balance of probability of future harm to others.
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