Political procedure producing all and only just laws cannot be promised, as in political affairs, perfect procedural justice cannot be achieved, says John Rawls. John Rawls,
There are two basic positions. Some claim that one's duty to obey the law is total. In other words, there are no conditions or circumstances in which civil disobedience is acceptable. Others claim that one's duty to obey the law is not absolute. So, there can be certain circumstances in which civil disobedience is justifiable. No matter what side you are on, one thing is for sure: Skilfully organized movements of civil disobedience can be very effective in securing society's desirable changes in the law.
One most commonly referred argument is that there have been lawbreakers as long as there have been laws, but if all law-breaking is defined as civil disobedience, then the term has no value. Then what does exactly make a breach of law an act of civil disobedience? How can it be defined and when is it justified? The following article will explore these questions. I shall focus on the justification to clear up several paradoxes that surround civil disobedience in theory and practice. All I am arguing is that a justifiable civil disobedience is a unique political category that makes social choice possible; that has an assessment value in law-making and is beneficial for the constitutional democracy. That is why, it needs approval rather than a mere tolerance or forbearance.
Civil disobedience is intentionally unlawful, conscientiously and publicly performed act of protest against a specific law. According to Joseph Raz, civil disobedience is a ‘politically motivated breach of law designed either to contribute directly to a change of a law or of a public policy or to express one's protest against and dissociation from a law or a public policy.’ Joseph Raz, John Rawls (n1) 364.
John Rawls (n1) 364.
As it is seen from the definition stated above, there are some commonly accepted elements of a well-suited definition of civil disobedience that can’t be compromised, such as conscientious standpoint, aim to communicate with the lawmakers and ultimate goal for the change in the law. Other often debated features – publicity, non-violence, readiness for punishment – will also be considered here because of their central importance for some occasional justification of acts of civil disobedience.
First thing to mention when starting with the features of civil disobedience is that a civil disobedient person accepts the government as legitimate as she aims to Jon Mandle, ‘
Jon Mandle, ‘
In addition, she who breaks the law publicly becomes something more than a David Henry Thoreau, Sergio Fiedler,
David Henry Thoreau,
Just like Rawls, for many prominent figures of civil disobedience history such as Mahatma Gandhi and Martin Luther King Jr,
However, as Raz correctly mentions, civil disobedience is something that ‘should ideally be Joseph Raz (n 2). ibid.
Joseph Raz (n 2).
In his article on ‘Features of Paradigm Cases of Civil Disobedience’ Kimberley Brownlee states that the level of violence depends on the society if the use of violence can support, or undermine, the communicative aspect of civil disobedience. Kimberley Brownlee, John Rawls, (n 1) 320. ibid. ibid. Hannah Arendt,
John Rawls, (n 1) 320.
These two examples are too marginal. In addition, between Nazi Germany and an ideally just society, there is a lot of middle ground. Gandhi and King whose movements happened in a social context, which were clearly not ‘nearly just societies’, proved that civil disobedience could be a feasible strategy in a society that is not, in the Rawlsian sense, ‘nearly just’. Piero Moraro,
Adam Hugo Bedau,
Adam Hugo Bedau,
However, as Howard Zinn puts it: ‘One should not accept punishment because there is no duty to obey unjust laws, thus there is no duty to accept punishment as well.’ Zinn suggests this because his conception of history is not focused on particular heroes but the oppressed people have always been engaged into civil disobedience, but they have not been always recognized as civil disobedient. Howard Zinn, Howard Zinn (n 17). ibid.
Zinn suggests this because his conception of history is not focused on particular heroes but the oppressed people have always been engaged into civil disobedience, but they have not been always recognized as civil disobedient. Howard Zinn,
Howard Zinn (n 17).
Another, although very ‘practical reason’, to use Ronald Dworkin's phrase, that will deconstruct the requirement of acceptance of punishment is that our society suffers a loss if the justice system punishes a group of its most thoughtful members who are loyal to justice. Ronald Dworkin, ibid. Andras, Sajó (ed),
Andras, Sajó (ed),
Disobedience of a person who held values and commitments towards the government that passes the laws and policies is not an easy decision to make. As talked about in the beginning of the article, this is the decision made by a person who wants to illustrate that
The theory of civil disobedience claims the acknowledgment that obligations beyond the law might compel lawbreaking. Just as street signs guide all cars and pedestrians on the highway to drive or walk in a particular direction, the law has a corresponding responsibility to walk the society towards a path of equity. But law in itself does not mark the end of the road. It only points the way to justice. Laws, as King lays out, are not the ends in themselves but rather means of achieving justice and there are several features distinguishing any act of protest from that of civil disobedience, the first of which is the existence of injustice. Martin Luther King,
Martin Luther King,
Rawls's highlights an act of civil disobedience as John Rawls (n1) 363. ibid. Ronald Dworkin (n 20) 206. ibid.
John Rawls (n1) 363.
Ronald Dworkin (n 20) 206.
All in all, the motivation behind the civil disobedience is to prioritize the fulfilment of the duty of justice over the constant preparedness to obey every law just because government adopts it. Subsequently, civil disobedience helps as a probe to illustrate how a conception of justice held by disobedient and state differ. Therefore, a well-ordered society should encourage people to make strong public appeals to the shared sense of justice, when they sincerely believe that it is perpetrating as significant injustice.
Civil disobedience motivated by a righteous common sense of justice can occasionally be justified based on the ground of the consequences of such a decision. No matter how much stability a passive, reverent citizenry may generate, the stability produced by decisional effectiveness Harry Eckstein,
I partly disagree with the consequential justification based on mode of action which is built on the argument that when civil disobedience exposes society to harm, and thus, encourages disrespect for the law, it gets far from being justifiable. The thing is, this type of consequence focused arguments prioritize non-violent movements and indiscriminately excludes successful examples of violent forms of civil disobedience from being justifiable. The consequence grounded justification of civil disobedience that I argue in this article is linked to the ideals of democracy and constitutionalism.
Perhaps that is what Jürgen Habermas saw when he said civil disobedience plays a key role in promoting public participation in the context of the intrinsic imperfections of liberal democracy. Jürgen Habermas,
According to Daniel Markovits, civil disobedience is a democratic disobedience as it has a wider function of addressing the democratic deficit in law that inevitably threatens every democracy. Daniel Markovits, John Rawls (n1) 364.
John Rawls (n1) 364.
Consequently, civil disobedience is also justified from a legal production point of view. The processes of governmental mechanisms to produce law may end up with limited reflection of social choice in the act that comes out from the law-making apparatus. Hence, upon Thoreau's premises, civil disobedience is the necessary tool to stop government from imposing upon its people, and, essentially, the people imposing upon themselves. David Henry Thoreau,
David Henry Thoreau,
Civil disobedience is one of the best legal procedures to protect rights. It is closely related to the right to political activity, which is, by hypothesis, adequately protected by law. There is the sense of right to protest embodied in the act of civil disobedience as well. However, certain features of the forms of enjoying one's right of protest technically exclude civil disobedience from becoming one of those means. First and foremost, protests at large do not involve violating the laws of the state, but are rather acts of free enjoyment of legally entitled rights, such as freedom to assembly and association. Thus, in general, the protests are often not civil disobedience, but in fact ‘obedience’. Harrop A Freeman,
Harrop A Freeman,
Civil disobedience broadly benefits society by liberating views divergent from the status quo—in much the same manner as free speech itself. Moreover, as Arendt puts it, civil disobedience permits people to experience freedom in a manner that was simply not possible in the private life. Arendt H, Joseph Raz (n 2).
Joseph Raz (n 2).
Of course, today's criminalized attitude towards civil disobedience accepts it as a violation of laws. Currently, the legal minimum shown towards civil disobedience is tolerance based on necessity. However, as mentioned above, disobedient has a righteous reason for disobeying the unjust law, and therefore, a right to do the right thing even though she cannot be constitutionally entitled to this right. Even though no legal right to civil disobedience exists, the legal system could recognize civil disobedience indirectly.
Disobedience movements has played a crucial role in shaping our modern values, including freedom, equality, and justice. Therefore, civil disobedience is always newsworthy. It is a unique, justifiable and sometimes even necessary, political category. The article found out that the justification of this unique category is usually exceptional, meaning that it is based on occasion. Searching for the justification of civil disobedience, this article concludes that depending on different cases of civil disobedience, it is sometimes justified based on the motivation behind it and depending on the mode of action, or consequences it brings.
No matter how paradoxical it sounds, this deliberate breach of law makes social choice possible, has an exclusive impact on law-making and is beneficial for the ideal of constitutional democracy. Of course, this is not to say that civil disobedience is always good. Moreover, civil disobedience can and sometimes is linked to counterproductive populism and this is another reason which makes it important to agree upon the formula over a justifiable civil disobedience. If civil disobedience is here to stay, and the recent development all around the globe shows that it is, we need to build a justified attitude towards it. The question of its compatibility with the laws should better be of prime agenda for the sake of both government and civil disobedient to survive of change without revolution or civil war.
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