Citizenship and obligation: Civil disobedience and civil dissent

Cambridge Law Journal

Volumn 55, Issue 1, 1996, Pages 89-121

  Allan, T R S ^a  

^a PEMBROKE COLLEGE   (United Kingdom)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 85012469198     PISSN: 00081973     EISSN: 14692139     Source Type: Journal    
DOI: 10.1017/S0008197300097750     Document Type: Article

References (120)

1. West Virginia Stale Boardof Education v. Barnette 319 U.S. 624, 641.
2. See Harry Kalven, Jr. The Negro and the First Amendment (Chicago 1965), p. 16: “A free society is one in which you cannot defame the government.”
3. Cf. John Plamenatz, Man and Society (London 1963) I, ch. 6, esp. pp. 220–241;
4. Geoffrey Marshall, Constitutional Theory (Oxford 1971) pp. 208–211. Plamenatz, rejecting Locke's conception, defends a notion of “indirect” consent, based on a democratic form of government.
5. Cf. Joseph Raz, The Morality of Freedom (Oxford 1986) ch. 4 and
6. Ethics in the Public Domain (Oxford 1994) ch. 15.
7. For the distinction between the “coverage” and “protection” of a right (such as a right to free speech), see Frederick Schauer, Free Speech: A Philosophical Enquiry (Cambridge 1982) pp. 8992.
8. Free Speech: A Philosophical Enquiry. pp. 68–71
9. discussing Thomas Scanlon, “A Theory of Freedom of Expression“ Philosophy and Public Affairs 1 (1972), 204.
10. David A.J. Richards, Toleration and the Constitution (Oxford 1986) esp Parts II & III.
11. See also Richards, “Free Speech as Toleration“ in W.J. Waluchow (ed.), Free Expression: Essays in Law & Philosophy (Oxford 1994).
12. “Justification and Judicial Responsibility“ (1984) 72 Calif. L.R. 178, esp 193–199;
13. see also Lyons, Moral Aspects of Legal Theory (Cambridge 1993) pp. 96–101.
14. Cf. Neil MacCormick, “The Concept of Law and The Concept of Law'“ (1994) 14 Oxford J. Legal Stud. 1.
15. See also H.L.A. Hart, “Legal Positivism and the Separation of Law and Morals“ (1958–1959) 71 Harv. L.R. 598
16. reprinted in Hart, Essays in Jurisprudence and Philosophy (Oxford 1983).
17. 319 U.S. 624 (1943).
18. U.S. 642.
19. U.S. 653–655.
20. Cf. Minersvilk School District Board of Education v. Gobitis 310 U.S. 586, 594–595 (Frankfurter J.).
21. Cf. Ronald Dworkin, Taking Rights Seriously (London 1977) ch. 8.
22. “Legal Obligation and the Moral Nature of Law“ (1980)
23. Juridical Review 61.
24. See also Duff, Trials and Punishments (Cambridge 1986) ch. 3.
25. Lon F. Fuller, The Morality of Law, revised ed. (New Haven, Conn. 1969).
26. See Duff, “Legal Obligation“, above
27. cf. John Finnis, Natural Law and Natural Rights (Oxford 1980) pp. 270–276.
28. R.A. Duff, “Legal Obligation“, above, p. 80.
29. See Joseph Raz, “The Rule of Law and its Virtue“ (1977) 93 L.Q.R. 195. For a wider conception of the rule of law, encompassing legal tradition and the necessary culture of legality
30. see Raz, Ethics in the Public Domain, above, ch. 16.
31. “Legal Obligation“, above, p. 82.
32. Cf. John Finnis, Natural Law and Natural Rights, above. Finnis takes the attitude of the conscientious, law-abiding citizen as exemplifying the focal or central case of law: “a viewpoint in which the establishment and maintenance of legal. order is regarded as a moral ideal if not a compelling demand of justice”: Legal Obligation, p. 14.
33. The rule of law, as here interpreted, therefore discourages the adoption of rules which some citizens can obey only at the cost of violating conscience. For his part, the citizen must make appropriate allowance, consistently with conscience, for the importance of accommodation with others in the interest of the common good. Cf. Rawls, Political Liberalism (New York 1993) esp. Lectures 2 and 4.
34. Neil MacCormick, “The Concept of Law“, above, p. 17.
35. The Concept of Law, 2nd ed. (Oxford 1994) esp. ch. 2 and pp. 51–61, 82–91.
36. Cf. Roger Cotterrell, The Politics of Jurisprudence (London 1989) eh. 4.
37. Cf. Joseph Raz, The Morality of Freedom, above, ch. 4.
38. See also Raz, Ethics in the Public Domain, above, ch. 14.
39. Ethics in the Public Domain, above, p. 335.
40. The Concept of Law, above, p. 201.
41. The Concept of Law. pp. 116–117.
42. An objection which Hart subsequently appeared to concede: see his review of Fuller's Morality of Law in (1965) 78 Harv. L.R. 1281 at p. 1294, reprinted in Essays in Jurisprudence and Philosophy, note 10 above, pp. 361–362.
43. Neil MacCormick has observed that, “What must be essential to the ‘internal aspect’ of the rule of recognition is some conscious commitment to pursuing the political values which are perceived as underpinning it, and to sustaining in concrete form the political principles deemed inherent in the constituted order of the society in question”: Legal Reasoning and Legal Theory (Oxford 1978) pp. 139–140.
44. See also Legal Reasoning and Legal Theory. pp. 62–65; and
45. cf. Rolf Sartorius, “Hart's Concept of Law“, in Robert S. Summers (ed), More Essays in Legal Philosophy (Oxford 1971) p. 131.
46. For the hermeneutic, as distinguished from the internal, point of view, see Neil MacCormick, Legal Reasoning and Legal Theory, above, Appendix, and H.L.A. Hart (London 1981) ch. 3
47. cf. Joseph Raz, The Authority of Law (Oxford 1979) pp. 153–159;
48. H.L.A. Hart, Essays in Jurisprudence and Philosophy, note 10 above, pp. 14–15, and
49. The Concept of Law, note 23 above, pp. 239–244 (Postscript).
50. The interpretative legal theory of Ronald Dworkin entails similar conclusions, as I have tried to show elsewhere: see Ronald Dworkin, Law's Empire (London 1986)
51. T.R.S. Allan, “Justice and Fairness in Law's Empire“ [1993] C.L.J. 64.
52. Church of the Lukumi Babalu Aye v. City of Hialeah 124 L.Ed.2d 472, 519 (1993).
53. See also Wisconsin v. Yoder 406 U.S. 205 (1972)
54. Employment Division, Dept. of Human Resources of Oregon v. Smith 494 U.S. 872 (1990).
55. U.S. v. Seeger 380 U.S. 163 (1965)
56. Welsh v. U.S. 398 U.S. 333, 342–343 (1970).
57. Appropriate respect for conscience also favours the exemption of non-pacifists who object to participation in a particular war on account of its perceived injustice. Douglas J. who described “conscience and belief as the “bedrock of free speech as well as religion”, thought that restricting exemption to pacifist objectors constituted “an invidious discrimination in favour of religious persons and against others with like scruples”: Gillette v. U.S. 401 U.S. 437, 465–469 (1971) (Douglas J. dissenting). Gillette resisted conscription on the ground of his opposition to the Vietnam conflict as an unjust war. For further discussion
58. see Walzer, Obligations: Essays on Disobedience, War, and Citizenship (Cambridge, Mass. 1970) pp. 132–138.
59. The British experience in the 2nd World War is briefly discussed by Peter Singer, Democracy and Disobedience (Oxford 1974) pp. 101–102.
60. See Finnis, Natural Law and Natural Rights, note 16 above, p. 361
61. Raz, The Morality of Freedom, note 4 above, p. 102.
62. For the complexities involved where several groups have legitimate grounds for disobedience, and there is the consequent risk of serious disorder, see John Rawls, A Theory of Justice (Oxford 1972) pp. 373–375.
63. Natural Law and Natural Rights, note 16 above, p. 319.
64. Natural Law and Natural Rights.
65. Natural Law and Natural Rights. p. 360.
66. Natural Law and Natural Rights. pp. 314–320, 354–357.
67. Natural Law and Natural Rights. p. 357.
68. For analysis of the reasons for obedience to law based on the conception of democracy as a fair compromise between competing claims to power, see Peter Singer, Democracy and Disobedience, note 36 above.
69. For conflicting requirements of justice and fairness, see Dworkin, Law's Empire, note 32 above
70. Allan, Law, Liberty, and Justice (Oxford 1993) chs. 4 & 5.
71. Cf. Scanlon, “A Theory of Freedom of Expression“, note 6 above, p. 214. Scanlon argues that autonomous citizens could not concede to the state the right to have its decrees obeyed without deliberation.
72. Obligations, note 36 above, p. 132. (See also pp. 138–142.) Walzer also observes that we can regard the state as being composed of consenting citizens only in so far as the legitimacy of “secondary associations with limited claims to primacy” is recognised: A Theory of Freedom of Expression. pp. 18–19. The implications of pluralism for the role of freedom of expression are explored by Raz, Ethics in the Public Domain, note 4 above, ch. 6.
73. Cf. X v. Morgan-Grampian [1991] 1 A.C. 1
74. Allan, Law, Liberty, and Justice, above, ch. 5.
75. E.g. H.L.A. Hart, The Concept of Law, note 23 above, p. 210.
76. In describing his conduct as disobedience to law the dissentient may, of course, simply use language which reflects the viewpoint of others—a viewpoint which he does not actually share: cf. Finnis, Natural Law and Natural Rights, note 16 above, pp. 234–237.
77. A Theory of Justice, note 37 above, pp. 363–391.
78. It should be noted that civil disobedience need not be limited to an appeal to a common conception of justice, but may invoke principles of justice which the majority ought to recognise: see Peter Singer, Democracy and Disobedience, note 36 above, pp. 86–90.
79. Although Rawls's account of the rule of law is largely formal or procedural, it obtains its significance from the theory of justice. To his description of a legal system as “a coercive order of public rules addressed to rational persons for the purpose of regulating their conduct and providing the framework for social co-operation”, Rawls adds: “When these rules are just they establish a basis for legitimate expectations“ (op.cil. note 37 above, p. 235).
80. When these rules are just they establish a basis for legitimate expectations. p. 366.
81. When these rules are just they establish a basis for legitimate expectations. p. 363.
82. When these rules are just they establish a basis for legitimate expectations. p. 351, emphasis added. In so far as Rawls treats gravely unjust requirements as valid laws, despite their violation of the principles of justice for which his theory provides, his account seems confused.
83. When these rules are just they establish a basis for legitimate expectations. p. 365.
84. When these rules are just they establish a basis for legitimate expectations. p. 390.
85. Cf. Dworkin, Taking Rights Seriously, note 14 above, pp. 210–217.
86. A Theory of Justice, note 37 above, pp. 387–388.
87. See also Rawls, Political Liberalism (New York 1993) Lecture 4.
88. Cf. Scanlon, “A Theory of Freedom of Expression“, note 6 above.
89. For discussion of such theories, see Hart, The Concept of Law, above, chs. 2 & 3.
90. [1985] 2 All E.R. 151, 155–159.
91. [1985] A.C. 1054, 1080.
92. Cf. Sheldon L. Leader, “Free Speech and the Advocacy of Illegal Action in Law and Political Theory“ (1982) 82 Col.L. Rev. 412.
93. 249 U.S. 47 (1919).
94. U.S. 52.
95. Cf. Rawls, Political Liberalism, note 61 above, pp. 348–356.
96. See also Debs v. U.S. 249 U.S. 211 (1919), upholding the conviction of a socialist candidate for the presidency, under the Espionage Act 1917, for a public speech denouncing the war with Germany, on the ground that the natural and intended effect of the speech was to obstruct recruiting.
97. 274 U.S. 357, 376 (1927).
98. Cf Gitlow v. New York 268 U.S. 652, 673 (1925) (Holmes J. dissenting).
99. 274 U.S. 375–376.
100. Frohwerk v. U.S. 249 U.S. 204, 208 (1919).
101. R. v. Arrowsmith [1975] 1 Q.B. 678, 684.
102. Political Liberalism, note 61 above, pp. 345–346.
103. Political Liberalism. p. 346
104. Harry Kalven, Jr, A Worthy Tradition: Freedom of Speech in America (New York 1987).
105. See Brandenburg v. Ohio 395 U.S. 444, 447 (1969).
106. Cf. Sheldon Leader, “Free Speech“, note 69 above, pp. 431–432.
107. Frohwerk v. U.S. (above) 249 U.S. 204, 206.
108. It follows that the distinction drawn in the American cases, between the “abstract teaching. of the moral propriety or even moral necessity for a resort to force and violence”, on one hand, and the preparation of “a group for violent action and steeling it to such action”, on the other, may be defended as a coherent constraint on freedom of speech: see Nolo v. U.S. 367 U.S. 290, 297–298 (1961).
109. Cf. Whitney v. California 274 U.S. 357, 376 (1927) (Brandeis J.).
110. Advocacy which is “directed to inciting or producing imminent lawless action”, and likely to incite or produce it, where the action entails coercion and violence, can legitimately be proscribed: Brandenburg v. Ohio 395 U.S. 444, 447 (1969).
111. A Theory of Justice, note 37 above, p. 366.
112. A Theory of Justice. p. 387.
113. Cf. Dworkin, Taking Rights Seriously, note 14 above, chs. 7 & 8.
114. Cf. Whitney v. California 274 U.S. 357, 377–378 (Brandeis J.).
115. A Theory of Justice, above, p. 366.
116. Cf. Joseph Raz, The Authoriiv of Law, note 31 above, pp. 271275.
117. Cf. Texas v. Johnson 491 U.S. 397 (1989).
118. Stromberg v. California 283 U.S. 359 (1931).
119. U.S. v. O'Brien 391 U.S. 3 67 (1968); note Harlan J.'s qualified concurrence at 388–389.
120. Cf. David Richards, Toleration and the Constitution, note 7 above, ch. 4.