Moral judgment, historical reality, and civil disobedience

Philosophy and Public Affairs

Volumn 27, Issue 1, 1998, Pages 31-49

  Lyons, David ^a  

^a NONE

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[No Author keywords available]

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EID: 33749831618     PISSN: 00483915     EISSN: 10884963     Source Type: Journal    
DOI: 10.1111/j.1088-4963.1998.tb00058.x     Document Type: Review

References (71)

1. See, e.g., H. A. Bedau, ed., Civil Disobedience: Theory and Practice (New York: Pegasus, 1969), p. 215;
2. Carl Cohen, Civil Disobedience: Conscience, Tactics, and the Law (New York: Columbia University Press, 1971), pp. 2, 6;
3. Marshall Cohen, "Liberty and Disobedience," Philosophy & Public Affairs 1, no. 3 (spring 1972): 288-96;
4. Paul Harris, ed., Civil Disobedience (Lanham, Md.: University Press of America, 1989), pp. 2-4, 13-17, 34;
5. Jeffrie G. Murphy, ed., Civil Disobedience and Violence (Belmont, Calif.: Wadsworth, 1971), pp. 5-8;
6. John Rawls, "Legal Obligation and the Duty of Fair Play," in Sidney Hook, ed., Law and Philosophy (New York: New York University Press, 1964), p. 3;
7. Peter Singer, Democracy and Disobedience (Oxford: Clarendon Press, 1973), pp. 136-47.
8. Two qualifications: In a review, Bedau questions Carl Cohen's assuming political obligation without argument; see Journal of Philosophy 69 (1972): 188.
9. But he does not reject it there or in Civil Disobedience in Focus (New York: Routledge, 1991). More significantly, Rawls provides grounds for rejecting political obligation in the US and similar societies;
10. see A Theory of Justice (Cambridge, Mass.: Harvard University Press, 1971), pp. 226, 355 (I discuss the latter below).
11. For a survey of the literature, see M.B.E. Smith, "The Duty to Obey the Law," in D. Patterson, ed., Companion to the Philosophy of Law and Legal Theory (Oxford: Blackwell, 1996), pp. 464-74.
12. See, e.g., Carl Cohen, Civil Disobedience, p. 44 ("reasonably just," p. 6);
13. Marshall Cohen, "Liberty and Disobedience," pp. 287-93;
14. Murphy, Civil Disobedience and Violence, p. 1;
15. A. D. Woozley, "Civil Disobedience and Punishment," Ethics 86 (1976): 325.
16. Nonviolence may be assumed; to simplify matters, I assume it here. For another view, see John Morreall, "The Justifiability of Violent Civil Disobedience," Canadian Journal of Philosophy & (1976): 35-47.
17. For a survey of the definitions, see Harris, ed., Civil Disobedience, pp. 1-15.
18. Some writers regard Gandhi as too radical to be a civil disobedient; see, e.g., Murphy, Civil Disobedience and Violence, p. 2. Some regard Thoreau's tax refusal as insufficiently public to qualify as civil disobedience; more on this below. King's case is of special interest because his resistance occurred so recently in the US. Most who raise the point assume that King accepted the prevailing system;
19. see, e.g., Carl Cohen, Civil Disobedience, pp. 108f (King a loyal disobedient);
20. Marshall Cohen, "Liberty and Disobedience," p. 296 (both Gandhi and King);
21. Alan Gewirth, "Civil Disobedience, Law, and Morality: An Examination of Justice Fortas' Doctrine," The Monist 54 (1970): 541 (King);
22. A. D. Woozley, "Civil Disobedience and Punishment," Ethics 86 (1976): 325 (Gandhi and King).
23. I sometimes refer to "resisters" and "resistance" so as not to prejudge what should count as civil disobedience.
24. Assuming civil disobedience is nonviolent. Moral objections to violent resistance are irrelevant to the present point.
25. See John Rawls, "Legal Obligation and the Duty of Fair Play." In A Theory of Justice, Rawls rejects the fairness argument and offers the duty of justice as a foundation for political obligation; see pp. 113f, 335-37.
26. Nor does it permit one to command an unjustly large share of benefits or an unjustly small share of burdens.
27. See, respectively, A Theory of Justice, p. 351:
28. Carl Cohen, Civil Disobedience, p. 6;
29. Herbert J. Storing, "The Case Against Civil Disobedience," reprinted in Civil Disobedience: Theory and Practice and Civil Disobedience in focus.
30. Rawls defines "a state of near justice" as "one in which the basic structure of society is nearly just, making due allowance for what it is reasonable to expect in the circumstances" (A Theory of Justice, p. 351). I understand the qualification to require us to consider official conduct. That is important because official conduct may be systematically unlawful in very significant ways for a long time, e.g., under Jim Crow (discussed in Section II).
31. Rawls, A Theory of Justice, p. 355.
32. For the idea of a provisional fixed point, see Rawls, A Theory of Justice, pp. 18-20, 46-48.
33. For the setting of Thoreau's resistance activities, see, e.g., Peter Kolchin, American Slavery: 1619-1877 (New York: Hill and Wang, 1993).
34. See, e.g., Leonard P. Curry, The Free Black in Urban America, 1800-1850: The Shadow of the Dream (Chicago: University of Chicago Press, 1981);
35. Leon F. Litwack, North of Slavery: The Negro in the Free States, 1790-1850 (Chicago: University of Chicago Press, 1961).
36. At least, not in a system of slavery like that in the U.S. That is presumably a "provisional fixed point" if anything is.
37. For the setting of Gandhi's resistance activities, see Robert A. Huttenback, Gandhi in South Africa: British Imperialism and the Indian Question, 1860-1914 (Ithaca, N.Y.: Cornell University Press, 1971):
38. Judith M. Brown, Gandhi's Rise to Power: Indian Politics 1915-1922 (Cambridge: Cambridge University Press, 1972);
39. Judith M. Brown, Gandhi and Civil Disobedience: The Mahatma in Indian Politics 1928-1934 (Cambridge: Cambridge University Press, 1977);
40. Frances G. Hutchins, India's Revolution: Gandhi and the Quit India Movement (Cambridge, Mass.: Harvard University Press, 1973).
41. Bhikhu Parekh, Gandhi's Political Philosophy: A Critical Examination (London: Macmillan, 1991), pp. 127-28.
42. For the setting of King's resistance activities, see, e.g., C. Van Woodward, The Strange Career of Jim Crow (3rd rev. edn.; New York: Oxford University Press, 1974).
43. See, e.g., President's Committee on Civil Rights, To Secure These Rights (Washington, D.C.: U.S. Government Printing Office, 1947);
44. United States Commission on Civil Rights, 1961 Commission on Civil Rights Report (Washington, D.C.: U.S. Government Printing Office, 1961);
45. United States Commission on Civil Rights, Law Enforcement: A Report on Equal Protection in the South (Washington, D.C.: U.S. Government Printing Office, 1965);
46. Mary Frances Berry, Black Resistance/White Law: A History of Constitutional Racism in America (New York: Penguin, 1994).
47. The argument from democracy for political obligation is addressed by King; see Section III.
48. I return to this point in Section IV.
49. See note 6.
50. Thoreau was not similarly committed to nonviolence.
51. See, e.g., Walter Harding, The Days of Henry Thoreau: A Biography (New York: Dover, 1982).
52. Thoreau's lecture is reprinted in Henry D. Thoreau, Reform Papers, ed. W. Glick (Princeton: Princeton University Press, 1973), pp. 63-90, under its original title, "Resistance to Civil Government." Page references to that edition follow "RP" in the text.
53. For more on Thoreau's essay, see my "Political Responsibility and Resistance to Civil Government," Philosophic Exchange (1995-96): 5-25.
54. A Theory of Justice, p. 368.
55. In addition to the sources already cited, see also by Gandhi, Satyagraha in South Africa, in The Selected Works of Mahatma Gandhi, vol. 3 (Ahmedabad: Navajivan Publishing House, 1968);
56. Hind Swaraj or Indian Home Rule, revised new edition (Ahmedabad: Navajivan Publishing House, 1946);
57. and Quit India, revised and enlarged edition (Bombay: Padma Publications, 1942).
58. Parekh, Gandhi's Political Philosophy, pp. 125-29.
59. Quotations in this section are from Testament of Hope: The Essential Writings and Speeches of Martin Luther King, Jr., ed. J. M. Washington (San Francisco: HarperCollins, 1991), and are indicated by "TH" and the page reference.
60. Information is also derived from Taylor Branch, Parting the Waters: America in the King Years, 1954-1963 (New York: Simon and Schuster, 1988).
61. See TH, e.g., pp. 17, 55, 83, 102, 361, 449, 525f.
62. While in custody, King wrote "Letter from Birmingham City Jail."
63. Gandhi's and King's lawful resistance was quite important and has not always been distinguished from their unlawful resistance. Noncooperation with the colonial government, the principal means of the all-India independence campaign of the 1920s, did not violate colonial law. Refraining from bus usage in Montgomery was not itself unlawful.
64. See, e.g., Ward Churchill and Jim Vander Wall, Agents of Repression: The FBI's Secret War Against the Black Panther Party and the American Indian Movement (Boston: South End Press, 1988);
65. Ward Churchill and Jim Vander Wall, The Cointelpro Papers: Documents From the FBI's Secret War Against Domestic Dissent (Boston: South End Press, 1990);
66. Frank J. Donner, The Age of Surveillance: The Aims and Methods of America's Political Intelligence System (New York: Knopf/Random House, 1980);
67. Frank J. Donner, Protectors of Privilege: Red Squads and Police Repression in Urban America (Berkeley: University of California Press, 1990).
68. See note 1 for explicit endorsements (not merely tactical assumptions) of political obligation.
69. As Thoreau made clear, they were his intended audience.
70. I say concerted action because political responsibility only occasionally calls for isolated acts by individuals outside the context of a movement for reform.
71. Racism can take other forms, e.g., neglecting to learn about such phenomena when one is vaguely aware of their existence.