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John Rawls on Civil Disobedience
When Is It Okay to Break The Law?
These are my notes from John Rawls’ essays In A Theory of Justice (1971) on civil disobedience. They are relevant today because it seems like (classical) liberals in Canada have not as of yet provided a philosophical justification for the truckers in Ottawa.
Framing: Rawls will examine civil disobedience done in a state that is more or less a just democratic state with a constitution seen as legitimate. How can citizens square their disobedience to laws enacted by an elected government? His theory’s goal is to clear our vision and make our considered judgments more coherent.
Rawls argues that a theory of civil disobedience answers 3 questions:
What is civil disobedience and how does it differ from other forms of opposition
What needs to be true for it to be justified?
What is the role and appropriateness of civil disobedience in a constitutional and free society?
Civil disobedience is a “public, nonviolent, conscientious yet political act contrary to law usually done with the aim of bringing about a change in the law or policies of the government.” There’s no need to break the law in question to protest it, and even if the courts rule in favour of the law’s legitimacy, the protestors are prepared to continue. It’s done with appeals to the basic principles that underlie a society, as opposed to religion or pure self-interest. This is so that the protestors force the majority to consider whether it wants to be seen as oppressive. It’s a public act, in a public forum, similar to public speech. It cannot be violent because violence sullies the persuasiveness of the disobedience and ends all conversations. Non-violence also lets everyone, including you, know that you truly respect the law and are a conscientious objector. The civil disobedient is different from the militant in that the militant will not accept legal consequences because the system is so flawed that it is undeserved, but the civil disobedient will.
Which wrongs should be responded to with civil disobedience? Rawls puts forward three conditions which should ideally be met, although the outer limits to these conditions are very blurry, by his own admission.
The first condition is that his principle of equal liberty has been seriously violated, and/or that the equal opportunity principle has been blatantly violated. He defines the principle of equal liberty in another part of his book as "Each person is to have an equal right to the most extensive total system of equal basic liberties compatible with a similar system of liberty for all." Likewise, the equal opportunity principle is defined as “Social and economic inequalities are to be arranged so that they are attached to offices and positions open to all under conditions of fair equality of opportunity.”
To me, this sounds like a sophisticated and mathematical way of saying “the right to swing your fist ends where my nose starts.” But he includes the following rights and liberties in his principle of equal liberty:
"political liberty (the right to vote and hold public office) and freedom of speech and assembly; liberty of conscience and freedom of thought; freedom of the person, which includes freedom from psychological oppression and physical assault and dismemberment (integrity of the person); the right to hold personal property and freedom from arbitrary arrest and seizure as defined by the concept of the rule of law."
The second condition is that civil disobedience should be a last resort. Good faith attempts to change the laws, such as through protests, lawsuits and political opposition, should have been of no help.
The third condition is a bit complicated and thus hard to summarize, but it basically boils down to this: if there are multiple minorities who meet both conditions, and if they all civilly disobeyed at the same time, then their combined disobedience may tear apart respect for law and the constitution, which would no longer make the disobedience effective. Ideally, minorities would coordinate their disobedience or hold a lottery to decide who gets to go first, impossible as that might sound.
3. The Place of Civil Disobedience in a Nearly Just Society
“By engaging in civil disobedience one intends, then, to address the sense of justice of the majority and to serve fair notice that in one’s sincere and considered opinion the conditions of free cooperation are being violated. We are appealing to others to reconsider, to put themselves in our position, and to recognize that they cannot expect us to acquiesce indefinitely in the terms they impose upon us.”
Civil disobedience only has a place in a democratic society made up of equals. It helps to correct injustices when they occur, just as elections and an independent judiciary do.
We have constitutions so that the foundational principles of a society (which we’ll call a charter) are clear and publicly accessible to everyone. Without reference to these principles, individual anarchy comes in. Citizens ought to look at the principles underlying the interpretation of his society’s charter to learn how they should be applied in the situation he faces. If he does so faithfully, then his civil disobedience can be considered conscientious.
This means that each individual in a democratic society has a responsibility to take responsibility for his interpretation of his charter, and to conduct his actions in accordance with that charter. The final say of what the foundational principles of a polity are comes not from the Supreme Court or from the Legislature or from the Executive, but from the people themselves, who can and will re-introduce anarchy and divisive strife. If this seems to be inevitable, then the onus to justify the coercive or abusive laws falls to the abuser, not to those who protest.