On a moral right to civil disobedience

Ethics

Volumn 117, Issue 2, 2007, Pages 202-233

  Lefkowitz, David ^a  

^a NONE

Author keywords

[No Author keywords available]

Indexed keywords

EID: 33947668819     PISSN: 00141704     EISSN: None     Source Type: Journal    
DOI: 10.1086/510694     Document Type: Article

References (77)

1. Throughout this article I understand a legitimate state to be one with a justified claim to political authority, historically thought to correlate to a duty to obey the law, and not merely a justified claim to enforce the law. See A. John Simmons, Moral Principles and Political Obligation (Princeton, NJ: Princeton University Press, 1979),
2. and Justification and Legitimacy (Cambridge: Cambridge University Press, 2001).
3. This contrasts with Allen Buchanan's definition of legitimacy in "Political Legitimacy and Democracy," Ethics 112 (2002): 689-719.
4. Citizens of such a state may also appeal for status as conscientious objectors, but I set this possibility aside here.
5. I discuss in detail the exact nature of this "permission" in Sec. V of this article.
6. This definition is not meant to be historically accurate, in the sense that it correctly applies to all (or almost all) of those who have either identified themselves as civil disobedients or had that label applied to them. For example, using the definitions set out in the text, Thoreau counts as a conscientious objector, while Gandhi qualifies as a revolutionary (albeit a nonviolent one). Perhaps, then, civil disobedience as defined here should be understood as but one form of principled disobedience to law (or political authority), a category of actions to be contrasted with common crimes or disobedience for mere personal gain. Note, too, that on this definition an agent will count as engaging in civil disobedience even if he does not believe that he has much chance of bringing about a change in the law or policy he protests.
7. This analysis of civil disobedience follows closely the account provided in Joseph Raz, The Authority of Law (Oxford: Clarendon, 1979), 263. It differs only in excluding from the domain of civil disobedience attempts to merely dissociate oneself from some law or public policy. I believe that acts of this latter type are better analyzed as instances of conscientious objection. For an excellent summary of the many vexing problems that arise for any attempt to provide a morally neutral analysis of civil disobedience,
8. see Paul Harris's introductory essay in Civil Disobedience, ed. Paul Harris (Lanham, MD: University Press of America, 1989), 1-56.
9. See Joseph Raz, Practical Reason and Norms, 2nd ed. (Princeton, NJ: Princeton University Press, 1990),
10. and The Morality of Freedom (Oxford: Oxford University Press, 1986) for elaboration of this conception of practical reason.
11. Raz, Practical Reason and Norms, 40;
12. see also Leslie Green, The Authority of the State (Oxford: Clarendon, 1988), 39.
13. T. M. Scanlon, What We Owe to Each Other (Cambridge, MA: Belknap Press of Harvard University Press, 1998). As I argue elsewhere, Scanlon appears to employ two distinct notions of 'reasonableness'. The first, which I label moral reasonableness, refers to a particular kind of motivation on the part of an agent, which I describe in the text as the second of a suitably motivated agent's two fundamental commitments. The second, which I label cognitive reasonableness, describes those judgments made in circumstances characterized by the burdens of judgment.
14. See David Lefkowitz, "A Contractualist Defense of Democratic Authority," Ratio Juris 18 (2005): 346-64.
15. John Rawls, Political Liberalism (New York: Columbia University Press, 1996), 52.
16. By "natural" duties I mean only those duties that agents have simply in virtue of the fact that they are moral agents - i.e., creatures capable of acting for moral reasons. Natural duties, in this sense, are to be contrasted with acquired obligations: obligations an agent has only as a result of the exercise of her will. To avoid any potential confusion, I will talk of basic rights, rather than natural ones, as correlative to these duties. Of course, it does not follow necessarily from X having a duty to treat Y in a particular way that Y has a (claim) right against X that he be treated in this way. Rather, the right may be held by a third party; thus Z may have a (claim) right against X that he treat Y in a particular way. Though I cannot argue for it here, I deny that there are any natural (i.e., nonacquired) duties of this type (as there might be if God had a claim right to people treating one another in certain ways).
17. I understand collective action to include both cooperation and coordination.
18. By "reasonable disagreement" I mean cognitively reasonable disagreement - disagreement that is intelligible in light of the burdens of judgment.
19. Recall that for the contractualist, to treat others in ways that they cannot reject, insofar as they are suitably motivated in the sense defined above, constitutes respect for their status as autonomous agents.
20. Note that the position sketched here does not reconcile democratic authority with individual autonomy by claiming either that casting a vote in a democratic decision procedure qualifies as consent or quasi consent to comply with the outcome of the procedure or that, since an agent has voted in the decision procedure, she is in some sense ruling herself. Rather, democratic authority is alleged to be compatible with a specifically contractualist account of autonomy - it is the fact that one could not reasonably reject the authority of a democratic decision procedure in circumstances characterized by the moral necessity of collective action and reasonable disagreement over the form collective action ought to take that renders democratic authority consistent with respect for persons as autonomous agents.
21. Liberal states manifest a commitment to basic rights in the kind of reasons (usually) appealed to by legal officials in carrying out the duties of their offices, as well as in the very design of the legal order itself, as, e.g., in the construction of various checks and balances on the authority of different officeholders. Such a commitment is consistent with occasional rights violations that occur as a result of mistakes or unintended but nonnegligent consequences, but not with the intentional violation of or negligent disregard for basic rights.
22. Thus if a democratic majority enacts sufficiently unjust laws - namely, laws that conflict with a principled commitment to respect for basic rights - civil disobedience raises no general moral problem, because the state lacks legitimacy. (Recall the discussion of this point in Sec. I). Yet laws may be unjust or unwise without conflicting with this principled commitment (and not only because laws are often underinclusive, overinclusive, or both), and it is in these cases, I argue, that citizens of a liberal-democratic state have a duty to obey the law (or to engage in public disobedience). For anyone committed to a defense of democratic authority on noninstrumental grounds, in order for the duty to respect democratic authority to have any independent weight, it must be the case that there are some instances in which that duty defeats other moral duties.
23. While the fact that a state is both liberal and democratic suffices to justify its claim to legitimacy, it may be that states can justify their authority over particular individuals on other grounds, such as those individuals' voluntary acquisition of a duty to obey the state or the fact that agents are more likely to act as reason requires by obeying the law than by trying to determine this for themselves. However, the former justification for a duty to obey the law likely holds for very few subjects of modern states, while the latter justification does not entail a duty to obey the law in general, but only in specific cases. I believe that the account of political obligation sketched in the text (or one similar to it) is the theory most likely to demonstrate that all citizens of existing liberal-democratic states have a general duty to obey the law, and so it is on the reconciliation of a moral right to civil disobedience with this account of a duty to obey the law that I focus here. (I set aside any complications for the exercise of a moral right to public disobedience that may arise from an agent having a duty to obey the law on grounds in addition to the fact that the state of which he is a citizen is a liberal-democratic one.)
24. It might be objected that in some cases no efficient mechanism exists, or could be created, for determining how a surplus of contributors (or contributions) ought to be distributed. That is, any attempt to do so would "use up" all of the surplus or result in a worse state of affairs than that in which some of those with a duty to contribute unilaterally determine that their contribution is unnecessary. I contend that this line of argument assigns insufficient noninstrumental value to the respect for others' autonomy realized by democratic decision making. Even if it is the case that the promotion of well-being would be greater if a particular individual (or small number of individuals) disobeyed a given law enacted by a liberal-democratic state, the duty or permission to pursue this end is defeated by the duty to recognize other agents' claim to equal authority to determine the form that collective action should take (including the possibility that certain agents should have no duty to contribute at all). However, there may be a duty to advocate for democratically enacted changes to the law aimed at reducing surplus contributions or improving the match between law and morality (above the baseline match that is necessary for the state's legitimacy).
25. For a more detailed defense, see Lefkowitz, "Contractualist Defense." For justifications of a democratic state's claim to political authority that have important affinities to the one outlined in the text,
26. see Thomas Christiano, "The Authority of Democracy," Journal of Political Philosophy 11 (2003): 245-70;
27. Jeremy Waldron, Law and Disagreement (Oxford: Clarendon, 1999);
28. Scott Shapiro, "Authority," in The Oxford Handbook of Jurisprudence and Philosophy of Law, ed. Jules Coleman and Scott Shapiro (New York: Oxford University Press, 2002), 382-439;
29. and Christopher Heath Wellman's contribution in Christopher Heath Wellman and A. John Simmons, Is There a Duty to Obey the Law? (New York: Cambridge University Press, 2005), 3-89.
30. Raz, Authority of Law, 271-74.
31. Raz does not explicitly state the basis of the moral obligation to confine one's political participation to legal means when those means constitute adequate recognition of the moral right to political participation. But drawing on the theory of political obligation he develops elsewhere, we can construct the following argument. Subjects of a state have a duty to obey its laws when by doing so they are more likely to act as the balance of reasons dictates than if they try to determine this for themselves. One type of case in which this normal justification for obedience to practical authority applies is when acting on the balance of reasons requires coordination. Presumably there are a number of incompatible but at least adequate ways in which agents might coordinate with one another in order to successfully exercise their rights to political participation for the purposes of reaching collective decisions. When any one of these incompatible but adequate ways is realized in law, the normal justification for practical authority entails that all those subject to the law ought to confine their political participation to legal means.
32. Raz, Authority of Law, 273.
33. Note that Raz's focus here is on a specific injustice the law allegedly perpetrates, namely, its prohibiting a certain type of action for the purposes of political participation. Raz presumably recognizes that in cases of indirect civil disobedience, an agent can violate one law for the purposes of advocating a change to some other law that she is not (presently) violating without implying that the law she violates is unjust.
34. I will assume here that whatever design for collective action is settled upon, its implementation is a morally better outcome than would occur were no collective action to take place. Of course, this may not always be the case.
35. Frequently the majority view will be expressed by legal means (e.g., through a vote), and it seems safe to assume that so long as an agent's view is reflected in law or policy, that agent will not be concerned with whether others recognize the intensity with which she holds those views. However, depending on the design of the decision-making institutions in a given political society, the majority view may not be expressed by legal means (or realized in the law), in which case the justification for employing public disobedience described in the text will apply to the majority rather than to the minority.
36. The argument here is not the familiar utilitarian one that strength as well as number of preferences must be taken into account when we aim to maximize the good, understood as preference satisfaction. Rather, it rests on a claim regarding the nature of collective deliberation and decision making, namely, that in conditions of uncertainty and reasonable disagreement, people are sometimes willing to defer to others with whom they disagree when those others have much stronger convictions regarding the point at issue. For discussion of both points presented in this paragraph, see Harris, Civil Disobedience;
37. Peter Singer, Democracy and Disobedience (New York: Oxford University Press, 1973), 72ff. The novelty of the arguments presented herein does not consist primarily in the substantive account of public disobedience I offer (though it differs in detail from both Harris's and Singer's accounts) but, rather, in the explicit defense of it as a moral right, in the characterization of that right, and in its reconciliation with a defense of a liberal-democratic state's political legitimacy.
38. Note that this is not the claim that all illegal acts must be acts of public communication in order to be morally justifiable.
39. Indeed, given the definition of civil disobedience set out in Sec. I, it may be that any act that does not meet this requirement fails to count as civil disobedience, regardless of its moral permissibility. Whether this is so depends on whether advocacy of a change to the state's laws or policies necessarily entails publicity.
40. Cases of disobedience intended to frustrate the operation of a law or the implementation of a policy are more difficult to evaluate. Temporary acts of this type may in some cases be noncoercive, though this is unlikely to be true of more persistent interference in the operation of a law or policy. For a brief discussion of this issue, see Singer, Democracy and Disobedience, 82.
41. Raz, Authority of Law, 274. Raz's remarks here refer to a right to toleration, but, given his earlier rejection of the claim that the moral right to political participation gives rise to a moral right to civil disobedience, presumably the same conclusions apply in the case of the latter right.
42. Joel Feinberg, Doing and Deserving (Princeton, NJ: Princeton University Press, 1970), 96.
43. Though Feinberg's distinction is clearly informed by the use of the terms 'punishment' and 'penalty' in U.S. law, his overriding concern is to capture what he views as an important analytic distinction, not to reflect the use of these terms in any actual legal system. (He does point out, however, that in light of the U.S. Constitution's prohibition on cruel and unusual punishment [but not penalty], whether the treatment of a person is viewed as punishment or penalty can have important legal and moral consequences.) Note, too, that while the term 'penalty' is often associated with violations of regulatory law, while 'punishment' is often associated with violations of criminal law, the connection is not analytic. For example, U.S. law sometimes uses the term 'penalty' to describe certain types of "hard treatment" for violations of criminal law (typically where the hard treatment involves a monetary fine or forfeiture of property). In any case, I use the terms 'punishment' and 'penalty' to mark the morally important analytic distinction described in the text, regardless of how those terms are employed in any particular legal system.
44. Compare this to Rawls, who limits the right to civil disobedience to instances of "substantial and clear injustice," which gives rise to a "presumption in favor of restricting civil disobedience to . . . the principle of equal liberty, and . . . the principle of fair equality of opportunity" (John Rawls, A Theory of Justice [Cambridge, MA: Belknap Press of Harvard University Press, 1971], 372).
45. A further, intriguing, justification for fines assessed against publicly disobedient protesters is that they serve as an ex post facto licensing fee for staging a particular kind of protest, with the just-mentioned instrumental considerations justifying higher fees for such "licenses" than for permits for legal protests; see Feinberg, Doing and Deserving, 95-96, It is reasonable to expect that even in a legitimate state the process for distributing permits for public gatherings, parades, etc., will not be completely unbiased. In recognition of this fact, ideal moral agents selecting the political institutions via which nonideal agents ought to govern themselves might not constrain a right to political participation to legal means.
46. The reader may question the aptness of the comparison between quarantine for disease and confinement for public disobedience, perhaps on the grounds that in the latter case, the state responds to something for which the agent bears responsibility, while this is often not true in the former case. But I see no reason to think that any time the state imposes a loss on an agent in response to conduct for which he is responsible the state must necessarily express disapproval of that conduct. More important, so far as I am aware there is no reason to think that any conduct or object must carry a particular symbolic message. Whether incarceration and the expression of disapproval are so tightly associated in contemporary liberal-democratic states that as a matter of fact confinement will be understood as punishment, not penalty, is a matter I briefly address below.
47. We should not assume, however, that agents considering engaging in public disobedience will always view temporary incarceration as a greater loss than that involved in the payment of a fine, particularly if the former treatment is viewed as carrying a greater strategic payoff than does the latter treatment.
48. The fact that being arrested while conducting an act of public disobedience often serves to garner the disobedient agent and her views more attention from the media than she would otherwise enjoy may provide a further instrumental justification for the state's enjoying a liberty to temporarily incarcerate publicly disobedient actors. From the standpoint of agents designing norms for regulating debate over how to design morally necessary collective-action schemes, short periods of imprisonment as a response to public disobe
49. dience may well be attractive to anyone who can conceive protesting particular policies, even when those have been reached by a morally justifiable decision procedure. The argument here is not merely strategic; rather, it involves a moral evaluation of rival political institutions in terms of the partly instrumental role they play in facilitating agents' moral treatment of one another.
50. As Rawls puts it, civil disobedience "expresses disobedience to law within the limits of fidelity to law, although it is as the outer edge thereof" (Theory of Justice, 366). The point might be put more clearly by saying that public disobedience is disobedience to a law within the limits of respect for the rule of law.
51. The willing acceptance of fines and/or imprisonment is only a particularly salient opportunity to acknowledge the state's authority (or better, the collective authority of the citizenry as exercised via the mechanisms of the state). It is not, however, the only way to make such an acknowledgment; one could, for instance, make such an acknowledgment explicitly in an anonymous note. There is, therefore, no duty to accept the state's attempt to fine or imprison one for an act of public disobedience (though neither is one at liberty to actively resist the state's attempt to do so, since one has no claim against the state that it not interfere in one's exercise of the right to public disobedience). This point is crucial if public disobedience is to be consistent with anonymity, a possibility I noted in the previous section.
52. The reader may think it odd that a public disobedient could receive the same "hard treatment" as that received by a common criminal and wonder what exactly distinguishes a liability to penalty from a liability to punishment. To the person incarcerated for a week's time, the reader may suppose, it will make no difference whether or not that treatment expresses resentment and disapproval toward the agent for having engaged in an act of a particular type. While this may be true for some agents, it does not strike me as necessarily true for all agents. Some agents will care a great deal that their fellow citizens not view them as mere lawbreakers, implicitly (or explicitly) denying either their moral equality as subjects of democratically enacted law or their moral equality as creators of the law. To these agents it will be of great importance that the state recognize them as contributors to the process of lawmaking - demonstrating respect for the rule of (liberaldemocratic) law even while violating a particular legal norm - rather than as mere common criminals. These public disobedients will be concerned with more than simply the amount of the fine they pay or the length of their incarceration; they will also be concerned with the message expressed by the state in its treatment of them. In other words, it will matter a great deal to these agents whether the state punishes them for their conduct or simply penalizes them, even if the length of their incarceration is the same regardless of which of these two responses the state adopts.
53. Thus retribution does not provide a justification for the state's imposing "hard treatment" on a public disobedient, as there is no wrong to be made right. Rather, as indicated above, the justification for a fine or limitation on liberty rests primarily on considerations of deterrence, i.e., on an instrumental calculation of the effect that penalizing, or not penalizing, a public disobedient will have on the stability and effectiveness of the legal order. For an argument that U.S. courts ought to rely solely on such instrumental considerations when sentencing civil disobedients challenging the constitutionality of a particular law, see Ronald Dworkin, Taking Rights Seriously (Cambridge, MA: Harvard University Press, 1977), 215-16.
54. Though I focus in this article on the moral right to public disobedience, the following arguments apply equally to the right to vote - a legal action by which an agent may increase the injustice or immorality of the state's laws and/or policies.
55. Whether this assumption seems plausible may depend on the reader's views regarding the role that an agent's beliefs play in justifying her act. If an agent's beliefs regarding the moral correctness of her act have no effect on whether her act is in fact morally correct, then the assumption in the text is plausible. Her act will not be justified, though it may be excused, say, if she acts from sincere and what I label subjectively reasonable beliefs. However, if an agent's belief regarding the moral correctness of her act does affect whether the act is in fact morally correct (justified), then this assumption may not seem plausible.
56. As the last phrase of this sentence indicates, I am inclined to treat the domain of duties correlative to claims as exhaustive of the domain of duties. Note, however, that the agent with a claim need not be the agent that makes or expresses the claim; thus animals and unconscious human beings can still enjoy claims against others that give rise to duties on those others. Note as well that this restriction on the domain of duties is compatible with the possibility of noninstrumental values that provide reasons for action, albeit not duties.
57. William A. Galston, "On the Alleged Right to Do Wrong: A Response to Waldron," Ethics 93 (1983): 320-24;
58. Robert P. George, Making Men Moral (Oxford: Clarendon, 1995), chap. 4. Though some of his initial remarks on the topic are somewhat ambiguous, Jeremy Waldron also appears to endorse this view;
59. see Waldron, "A Right to Do Wrong," Ethics 92 (1981): 21-39,
60. and "Galston on Rights," Ethics 93 (1983): 325-27.
61. When speaking colloquially, we sometimes describe vicious behavior as wrong or immoral. Given such an understanding of these terms we can identify cases where a person acts selfishly, meanly, etc., as ones where an agent acts wrongly, though she has a right to do so. For example, we might describe as wrong the unwillingness of a sister with more chocolate than she can eat to share her surplus with her younger brother, though given her property right to the chocolate, not sharing is something she has a right to do. In this article, however, I limit the terms 'wrong' and 'immoral' to violations of moral duty.
62. Galston, "On the Alleged Right to Do Wrong," 323;
63. see also George, Making Men Moral, 117.
64. Galston, "On the Alleged Right to Do Wrong," 323.
65. Similarly, George argues that a justification of the sort described in the text gives rise only to a "weak right - a mere shadow of a governmental duty which grounds the right," but not "a strong right, that is, a reason for the duty." See George, Making Men Moral, 122.
66. Galston identifies two other bases for a right to do wrong by reflecting on the justifications given in the seventeenth century for a right to religious toleration, understood as a right to do wrong. One basis is that coercive interference for the purpose of seeing to it that the person interfered with adopts the one true path to God is self-defeating. As Locke noted, religious faith must be sincere, but sincerity cannot be coerced. It is not clear that the mere fact that such treatment would be self-defeating entails that an agent has a right not to be so treated. But in any case, I do not see how an argument of this type might be applied to the right to political participation or to the derivative right to public disobedience. A second basis Galston identifies for a right to toleration is the fact that compelling standards of lightness do not exist, or at least have not been identified, for a given domain of conduct. His brief discussion of this point is somewhat ambiguous and underdeveloped, but it may be compatible with the argument for a liberty right to do wrong set out below.
67. The nebulous term 'authorship' may carry less of a commitment to a demanding notion of autonomy and so what counts as an autonomous choice, and therefore I shall use both terms. Obviously a great deal of work has to be done to specify what autonomous choice, or authorship, consists in and to justify the assertion that its exercise is noninstrumentally valuable. I cannot do so here, but I trust that the reader will be familiar at least in outline with various attempts to address these issues.
68. On this conception of the value of autonomy (or perhaps better, an autonomous life), see Raz, Morality of Freedom.
69. To be sure, there are also good instrumental justifications for not pursuing this policy. But as I noted earlier, such arguments do not provide an account of agents' moral rights to political participation, but only at best a rule-based duty on the state (and perhaps nonstate actors) not to pursue such a policy.
70. Rawls, Political Liberalism, 54ff.
71. See also Thomas Nagel, "Moral Conflict and Political Legitimacy," Philosophy & Public Affairs 16 (1987): 317-18.
72. Such a conclusion may not follow if the excuse is only partial, since this is usually thought to entail only a reduction in the amount of punishment (or the application of a lesser form of punishment), not the inappropriateness of punishment altogether. Since I contend that we ought not to treat the burdens of judgment as giving rise to an excuse, I will not examine this complication any further.
73. Rawls, Political Liberalism, 58.
74. My claim here is not about the beliefs people might form in a totalitarian state with a well-run propaganda machine; such an example raises the issue of subjectively reasonable beliefs. Rather, I mean to refer to the environment in which we reason when human causes of mistaken beliefs, such as propaganda, are absent. Reasonable disagreement will arise even in this environment, or so I suggest.
75. Raz claims that "those who act wrongly because of a reasonable mistake should be excused" (Joseph Raz, "Liberalism, Skepticism, and Democracy," Iowa Law Review 74 [1989]: 761-86, 768), a view contrary to the one I defend in the text. Yet he also writes that one should not "desist from acting on beliefs with which others reasonably disagree. That seems to indicate that reasonable disagreement provides a limited basis for toleration. One should not criminalize actions undertaken because of a reasonable belief that they are right." In contrast to the first claim, this one appears to be consistent with the argument of this article. To further confuse the issue, Raz then suggests that "the very fact that an act is prohibited by law may affect the reasonableness of a belief that it is an innocent act," though he offers no explanation for why this should be so.
76. It is difficult to capture the distinction I aim to defend here using the traditional deontological concepts. If an agent enjoys a moral liberty to φ, how can she act wrongly when she does so? The key idea is that the standard of right conduct people should seek to follow is not the standard that establishes what they are morally entitled to claim from others. People ought to seek to act as morality truly requires, but all they are morally entitled to demand of others is that they act on reasonable moral beliefs. Thus to claim that an agent enjoys a moral liberty to φ is not to say that she acts rightly when she does so but, rather, to say that she acts reasonably (i.e., on the basis of beliefs regarding what morality requires that are reasonable in light of the burdens of judgment).
77. This claim does not imply a commitment to the view that all moral truths can eventually be identified beyond reasonable disagreement.