On Justifying Civil Disobedience
This is a slightly edited version of a final term paper I wrote for my Social and Politcal Philsophy course. Please feel free to read as much or as little as you like, and hopefully like and comment below. This is also my first time publishing a paper of mine on Medium so any basic suggestions as far as making work more readable would be much appreciated as well.
Thank you in advance.
In the following paper, I will argue that civil disobedience is justified in a liberal democracy when the laws of a society do not accurately reflect the morals of the society. One main point to recognize is that legality is not synonymous with morality. There are plenty of historical examples where morally egregious acts were completely legal. This gap allows for a space where morally contestable laws can be brought into question and possibly result in instances where, I will argue, civil disobedience is completely justified. A key feature of civil disobedience is the conscientious objection to immoral laws with the purpose of eradicating the unjust law. The power of civil disobedience is particularly magnified by media attention, especially when caught in the right moment or if the message is targeted and well-articulated by those participating in the acts of civil disobedience. When groups of people come together with a well-organized message and set of demands, civil disobedience becomes a powerful tool to counteract oppressive, immoral laws in society so as to render them obsolete.
First, I will present a definition of civil disobedience which is borrowed from preeminent philosopher John Rawls. As quoted in the Stanford Encyclopedia of Philosophy, Rawls defines civil disobedience as follows: “civil disobedience is a public, non-violent and conscientious breach of law undertaken with the aim of bringing about a change in laws or government policies,” (Brownlee). Here Rawls presents several qualifiers in defining what civil disobedience is, and I accept his definition for the purposes of this paper with one contestable exception. I think that civil disobedience does not necessarily need to be nonviolent, however I suppose that might be more adeptly termed “uncivil” disobedience, or perhaps simply revolution or something else along those lines. I think there is a case to be made for justifiable violent civil disobedience. However, for the intents and purposes of this paper, I will utilize Rawls’ conception of civil disobedience as the foundational definition upon which I develop further discussion and analysis.
Civil disobedience should be justifiably used whenever there are systems of oppression that sustainably prevent groups of people from living freely insofar as the freedom being sought after is not simply another form of domination. In other words, there is no good argument to be made in favor of justifying civil disobedience if the aim or result is simply a regime change or policy change that fails to eradicate the oppressive elements of the aforementioned regime or policy. To put it simply, simply swapping forms of oppression does not solve the problem, but instead this simply changes the form of oppression. That would be like suggesting the replacement of Hitler with Mussolini or the replacement of the Tsar with the Bolsheviks. The aim of civil disobedience is to destroy the policy and, or the organizations responsible for instituting the oppression. A major difficulty arises when a society is not a liberal democracy. In order for civil disobedience to have a possibility of affecting change, the given society must permit sufficient freedom to allow for dissenting opinions to exist without inordinate risk of being silenced by the state. In an authoritarian regime where freedom of speech is essentially illegal, there is no tangible way of relying upon a legal framework that simply fails to exist. This would include Nazi Germany where an attempt by concerned citizens to act upon their moral intuitions to demand change from Hitler and the Nazi’s during their heyday. Such a proposition is absurd because the civil disobedients would be silenced by force one way or another; likely shot or forced into a concentration camp. In this case there is such severe oppression that demonstrates zero tolerance of dissenting opinions, never mind efficacious acts of civil disobedience.
On the other hand, acts of civil disobedience do have a reasonable chance of succeeding when they occur in a liberal democracy which aims to maximize personal liberty with minimal restrictions. The key point here is that acts of civil disobedience require enough freedom to occur because the risk-to-benefit is much more favorable. Unlike the social organization of an authoritarian regime like Hitler’s Nazi Germany, a liberal democracy is supposed to instruct the morality of the citizenry into the legal framework of the society such that acts of civil disobedience are legally permissible. This is the key difference that allows for the possibility for acts of civil disobedience to not only exist, but also to occur with a reasonable expectation of succeeding. I want to show that the moral obligation to change an immoral law outweighs the obligation of the citizenry to abide by the law in general. For example, during the 1960’s in the United States there was first sufficient personal freedom first, which consequently allowed for the Civil Rights Movement to occur. In other words, America was liberal enough to permit dissenting opinion which consequently lead to leaders like Dr. Martin Luther King, Jr. to organize a mass movement. After being arrested for his involvement in civil rights movement, Dr. King famously stated in his Letter from a Birmingham Jail, “injustice anywhere is a threat to justice everywhere,” (King). This statement cuts right to the core of what civil disobedience is all about. The essence of civil disobedience is unity and action striving towards a better tomorrow in the face of a history and present experience of oppression. In fact, one could substitute “oppression” for “injustice” so as to change the quotation to “oppression anywhere is a threat to justice everywhere.”
One matter of confusion which needs to be sorted out involves the problem of what exactly civil disobedience includes and excludes. Are there instances where civil disobedience includes violent acts? Or does violence necessarily disqualify the agent from being considered part of civil disobedience? I think that making a blanket statement disqualifying violent acts from the possibility of being a part of civil disobedience is unfair and short-sighted. I think there are certain situations in which civil disobedients may resort to physical force as a last resort rather than giving up on changing immoral laws, policies and practices. There are several historical examples that fall into this category, especially instances where violence takes the form of self-defense, including Nat Turner’s Slave Rebellion of the early 1800’s and the Black Panther Party of the 1960’s.
Another interesting caveat is the question of where the threat of violence is situated in regard to civil disobedience. On the one hand there is peaceful, nonviolent protest and on the other hand there is purposeful, directed physical force. I think this is more of a spectrum than a black and white binary because I think self-defense arguably falls somewhere in between pure peace and pure violence. Further, I think if a situation involving physical force still meets all of the other qualifications of being considered an act of civil disobedience, then as long as the physical force is purposeful, conscientious, directed, etc., then it ought to qualify as an act of civil disobedience.
I think that “taking the moral high ground” and dismissing the possibility of violent civil disobedience is a mistaken elitist position, one that probably comes from the comfort of a cozy office up in the ivory tower. Of course, it is easy to snub one’s nose at the very idea of violence as being completely uncivil in all instances and thus do away with it totally. This is a mistake, and I will argue that there is a place for violence in certain situations where more civil means have not been effective, especially in self-defense. In a very basic sense, there comes a certain point where playing nice will result in one’s own destruction. Take for example a schoolyard bully who beats up some other kid. If the victim fails to defend himself physically, he will be physically harmed until the aggressor decides to stop. Of course, afterwards the kid who was victimized could inform teachers, his parents and so forth and so on, but this is all after the fact that the damage was done. Further, imagine the bully continues over time regardless of what pacifist punishment the school imposes upon the bully. As a point of clarification, I am not suggesting a teacher beat up the bully or physically punish him in anyway, that would be absurd. However, unless a teacher physically forces the bully off of the kid being victimized, then the problem is left in the hands of that kid. He will need to defend himself because the other means of stopping the bully have not been effective. He will need to be physically and civilly disobedient; he will need to be violent.
Another basic consideration for justifying civil disobedience is the time factor. Although it may be possible to change or remove an unjust law, legislation can be very slow. Especially if an unjust law is causing considerable harm in the present moment, it may not be reasonable to wait for change to come from within the current legal system. This is to say that there are situations where people may not be able to afford to wait. “The pressing nature of the perceived wrong is what drives a normally dutiful citizenry into civil disobedience…By definition, the civil disobedient is responding in desperation. A state in which the entire citizenry is driven by despair to acts of civil disobedience surely deserves to be overthrown,” (Wall 5). This is a powerful indictment concerning the type of dynamic in which acts of civil disobedience take place, but whether or not one agrees with the conclusion of overthrowing a government, the overall point is well-made nonetheless.
There is also a tension that exists between acts of civil disobedience and maintaining a basic level of political stability. There is no shortage of concerns raised by philosophers and other thinkers regarding how civil disobedience poses a threat to stability and may even provoke all out anarchy. In my estimation, the slippery slope argument concluding acts of disobedience “opens the floodgates” towards all out revolution and anarchy is extremist and hyperbolic. The concern is valid enough but I think there is ample evidence of thinkers who exaggerate the slippery slope initiated by civil disobedience and culminating in all out lawlessness.
Part of the problem civil disobedience attempts to address is that isolated, individual efforts do not amount to much in terms of catalyzing change. “The single actions, legal or illegal, of single persons routinely have no effects at all on the goal of society’s becoming more just or on society’s ability to administer justice,” (Simmons 60). And civil disobedience is essentially a matter of justice wherein a law is at odds with the morals of a group of people. The question is at what point does a citizen’s obligation to his or her own morals trump their obligation to the law? “General obedience to law and general support for government seem essential to political stability, and stability is an end of central importance to all of us,” (Simmons 40). Of course, there is a balance between individual’s rights and state’s rights, as well as how much power the government has over the people. When there is a societal issue with enough of a negative impact on groups of people, then there is probably room for some degree of justified civil disobedience, especially when the law or policy causing the negative impact is carried out over a prolonged period of time and there have been previous attempts to address the issue legally through the government. In some cases, the harm being carried out by the state is so damaging that civil disobedience may be justified even without prior attempts to fix the law from within the system of governance. One prime example would be defending the Jews from the Nazis where millions of people were being harmed, if not killed. In such a situation, there is no time to consult the government to try to outlaw the extermination of the Jews. Civil disobedience would need to occur immediately.
Before concluding, I want to elaborate some more on the relationship between morality and legality. Clearly civil disobedience comes at a complicated intersection between laws and morals. In some cases, and ideally in all cases, the legality of a society reflects the morals of its people. However, civil disobedience occurs when there is a discord between the two. When a law is at odds with the morals of a group of people in a given society, then this is a prime breeding ground for potential acts of civil disobedience. I want to introduce an excerpt from the Trichardt journal article in order to briefly analyze what American philosopher and criminologist Richard Quinney writes:
He feels that, as with all civil rights, civil disobedience is regulated by the ruling class, because the idea of civil disobedience presupposes the concept of legality. ‘Only a legal ideology could raise the issue of civil disobedience; civil disobedience is a part of the ideology that law is necessary — that social order is to be maintained by a legal system.’ Thus, he maintains that the legal ideology holds that disobedience to law may be a moral right, but that it cannot be legally justified. ‘We are clearly warned that a system of law is to be honoured no matter how unjust it may be, in its entirety or in part. We are asked to obey the law without any question of justice.’ He concludes that the ideological position is clear, namely to preserve the existing order at the expense of a just human existence, because the legal system has no place for the practice of civil disobedience, other than to provide a liberal ideology and to assure that the offender is punished (Trichardt 375).
There is a lot to unpack here, but I want to focus on the power dynamic at play between the ruling class and the general populous. I think once a ruling class sustains a law or set of laws that harm groups of people over time then, eventually there will be some sort of civil disobedience if changes are not brought about through softer means. If people cannot vote their way or persuade their governmental representatives to change oppressive laws, then acts of civil disobedience are the logical next step in reform. I think Quinney is mistaken in believing that a citizenry ought to honor the law regardless of the morality of said law “no matter how unjust it may be.” On the contrary, I believe that legality and morality are two distinct entities, and I think that civil disobedience cuts to the core of this juxtaposition. I think that, ideally, the aim of a good society is to construct, maintain, and adapt a legal system that reflects the morality of the citizenry. Additionally, I want to argue that civil disobedience serves as a check and balance to the power of the government at large so that if and when there are abuses of power, concerned citizens are morally obligated to participate in acts of civil disobedience.
After reviewing the definition of civil disobedience provide by Rawls I was able to discuss what justifies acts of civil disobedience. I think a key motivation of just civil disobedient acts is when they are in response to oppression. When groups of people are faced with legal domination there is a moral obligation to right the wrongs of the state. In order to realize this, one must be mindful of the fact that legality is not the same thing as morality. If there is a space between legality and morality wherein groups of people are oppressed, then there is a strong imperative to act in response so as to eradicate the unjust law or laws. There are plenty of historical examples of immoral laws harming groups of people, sometime to the point of murder such as in the Nazi example. In times of severe oppression, people are justified to respond with acts of civil disobedience, especially if other legal means have been exhausted.
Works Cited
Brownlee, Kimberley, “Civil Disobedience”, The Stanford Encyclopedia of Philosophy (Fall 2017 Edition), Edward N. Zalta (ed.), URL = <https://plato.stanford.edu/archives/fall2017/entries/civil-disobedience/>.
King, Martin L. Letter from the Birmingham Jail. San Francisco: Harper San Francisco, 1994. Print.
Simmons, A. John. Political Philosophy. Oxford University Press, 2008.
Trichardt, AP, and HC Trichardt. “Civil Disobedience and Jurisprudence.” The Comparative and International Law Journal of Southern Africa, vol. 19, no. 3, 1986, pp. 357–409. JSTOR, JSTOR, www.jstor.org/stable/23247741.
Wall, Illan Rua. “The Defence of Conscience: A Limited Right to Resist.” Hibernian Law Journal 5 (2004–2005): 275–292.
