From IVR encyclopedie
Last modified: 2007-09-10
Entry status: Advanced DRAFT
By Chaim Gans
In the last few decades, philosophers and political theorists have been mainly preoccupied with two categories of value-based disobedience: conscientious objection and civil disobedience. Unlike ordinary cases of law breaking which are either intentional and self-interested or neglectful of the law, conscientious objection and civil disobedience are intentional and value-based. Conscientious objection is based on a moral prohibition to obey the law to which the objector objects. Observing this moral prohibition is considered by the objector to be a matter of principle and integrity. Civil disobedience, on the other hand, is motivated by a desire to achieve political goals such as bringing about a change in the law or in public policy or protesting against them.
Conscientious objection and civil disobedience are not the sole categories of value-based disobedience. They must be distinguished from anarchist and revolutionary acts of disobedience. Unlike conscientious objection and civil disobedience, which are directed at a particular law or policy without necessarily objecting to the whole political system within which they are carried out or to the very institutions of state and law, revolutionary and anarchist disobedience express precisely these kinds of objections. Revolutionary disobedience expresses a value-based objection to a particular political system in its entirety. Anarchist disobedience expresses a value-based rejection of the very institutions of state and law.
The question of whether anarchist disobedience could be justified depends on answers to general questions such as whether the state and the law are the appropriate means for realizing the central human values of justice, fraternity, peace and social order, or whether obeying the law and the state is compatible with moral autonomy. The justice of revolutionary disobedience depends on the question of what the ideal social and political regime might be, on questions concerning the nature of revolution as a means of changing regimes that do not fit this ideal, and the conditions that justify using this vehicle to change regimes. These questions are not within the scope of this discussion. The purpose of this entry is to examine value-based disobedience that is directed at particular laws and policies rather than at the very institution of law or a particular political system. As mentioned above, civil disobedience and conscientious objections are sub-classes of disobedience. They require further conceptual clarification, and a normative discussion of two major issues: the issue of their justification from the viewpoint of those who are considering actually disobeying a particular law or policy, and of the question of what attitude the state and the law should hold towards them. These two normative issues must be separated because, as we shall see below in detail, political morality can be invoked in order to justify acts of conscientious objection and civil disobedience while at the same time also justifying the political and legal intolerance of such acts. Political morality can also do the opposite. It can consider some acts of conscientious objection and civil disobedience to be unjustified and at the same time justify tolerating them and, in the case of conscientious objection, even explicitly grant people an exemption from obeying. I shall therefore divide my discussion of these kinds of disobedience into three parts. Conceptual issues will be discussed in section 1 below. Section 2 will be devoted to a discussion of the issue of the justification of value-based disobedience of particular laws or policies from the viewpoint of those considering it. Finally, the appropriate legal and political treatment of conscientious objection and civil disobedience will be addressed in section 3.
I. Civil disobedience and conscientious objection – conceptual clarifications
A famous definition of civil disobedience is John Rawls’s. According to him, 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. By acting in this way one addresses the sense of justice of the majority of the community....” [A Theory of Justice (Harvard, 1971), 364]. The reason for beginning this discussion with this definition is both because it is well known and because it is a bit misleading as a general definition of the phenomenon under consideration here. The type of civil disobedience with which Rawls is concerned in this definition is intended to fulfill a particular role within institutions that on the whole implement the particular conception of justice advocated in his Theory of Justice. It is meant to serve as a means for correcting deviations from this conception by political systems that on the whole realize it. His motivation for including certain components in the definition he proposes derives from this special institutional task. An example of one such component is the requirement that civil disobedience address the sense of justice shared by the majority of the population. It must be remembered that the common usage of the term “civil disobedience” does not necessarily meet this requirement. Within Rawls’s definition of civil disobedience, the term “civil” is meant to emphasize the disinterested and non-sectarian viewpoint of the agent. However, in common usage, the term “civil disobedience” is sometimes used to distinguish this form of disobedience from armed and violent disobedience. The main defining feature of civil disobedience (both in Rawls’s use of the term and in common usage) is that it is an unarmed and non-violent form of disobedience undertaken in order to bring about a change of particular laws or policies.
The law which the party practicing civil disobedience wishes to change can, but need not necessarily be, the same law which is being disobeyed. A distinction must therefore be made between direct and indirect civil disobedience. An example of direct civil disobedience is the breach of conscription laws for the purpose of changing a particular government’s policies pertaining to war. An example of indirect disobedience is blocking roads in order to protest against a war policy. The traffic laws that are thereby disobeyed are not the laws to which protesters are objecting. Another distinction within the category of civil disobedience that of great normative importance is between persuasive and coercive civil disobedience. In persuasive disobedience, disobedience is used as a means for persuading the authorities themselves to lawfully change the law or the policy towards which the objection is directed. Coercive disobedience is used as a means for forcing the change upon the government and thwarting its policies, whether or not the government ultimately authorizes this change.
In conscientious objection, the agent is compelled to break the law because the law would require him/her to violate a strict moral prohibition that is part of the agent’s moral identity. Conscientious objectors as such do not intend to achieve political goals by their disobedience. What motivates them is the very prohibition to perform the acts required by the law. Conscientious objection is widely dealt with by philosophers and legal scholars in relation to military service. However, it is not limited to this area. Well-known examples of conscientious objection in other areas are those that provoke multicultural dilemmas. One such example is the refusal of many Sikhs living in Western countries to wear safety helmets while riding motorcycles because wearing a helmet would mean taking off the turbans they are required to wear for religious reasons. Legal arrangements and many court rulings concerning conscientious objection to serving in the armed forces invoke a distinction between universal objection, i.e., the objection to participating in wars as such (usually for pacifist reasons), and selective objection, i.e., the objection to participating in particular wars or particular military operations because they specifically are deemed to be unjust.
II. Justifying value-based disobedience
As mentioned above, the normative issues concerning value-based disobedience are of two different types. I shall here discuss the issue of their justification from the viewpoint of those who are planning to disobey. In the next section, I shall discuss the question of how the state ought to treat value-based disobedience. The answer to the question of whether a particular act of value-based disobedience is justified surely depends first and foremost on the question of what the desirable values are. This entry is not the appropriate framework for an in-depth discussion of this issue. Nevertheless, one reason for addressing this issue here is that the justifications commonly given in Western philosophical and popular tradition for the obligation to obey the law presuppose some substantive values. Those who acknowledge the obligation to obey the law for reasons based on these values would consider the fact that a particular law contradict these values a reason for disobeying this law. One of the justifications often given for the obligation to obey is that disobedience could lead to anarchy. This justification presupposes the validity of the value of law and order. Another prominent justification for the obligation to obey is that disobedience means behaving unfairly towards one’s fellow citizens who have obeyed the law. The latter justification presupposes the validity of the value of fairness. The value of fairness as well as values such as autonomy and equality are presupposed by certain interpretations of democratic arguments for the obligation to obey. Those who acknowledge the obligation to obey the law on the basis of arguments presupposing the validity of these values might therefore consider disobeying laws violating these particular values.
Despite their ultimate dependence on the larger issue of what the desirable values might be, another reason for addressing the justifications of value-based disobedience in this entry derives from the fact it is possible to make some enlightening generalizations about such disobedience without resorting to substantive value judgments. It is possible to specify some abstract, even formal, components of the justification of disobedience that are common to all political moralities, whatever their substance might be. Such formal features derive from the fact that, from the standpoint of any political morality and regardless of any specific content, the law is merely designed to enforce the values of this morality, and to settle specific matters on which this morality is indeterminate. By definition, political moralities deal with the very matters that legal systems address, namely, the appropriate ways of organizing society, the particular society’s collective behavior and the behavior of the individuals within it. The fact that value-based disobedience is a moral rather than a legal issue presupposes the logical and normative precedence of such moralities to the law and thus directly entails the following question: Why should such moralities acknowledge the duty to obey the law? Political moralities require the institution of the law in order to enforce their values and principles and to determine conduct in areas on which they are indeterminate. Disobedience endangers the effectiveness of this institution in fulfilling these two roles. Therefore, even if the particular laws of a particular polity that on the whole serves the desirable values violate such values or certain a-moral values (such as economic, or strategic efficiency, or some aesthetic values), the fact that breaking even these laws might badly affect the system as a whole constitutes a prima facie reason for obeying them. This reason has to be balanced against the reason for breaking them because they damage values that are deemed desirable. Thus, the question of whether to obey or to disobey the law is a question of balancing between these two considerations. Of course, if it is realistically possible to bring about a change in laws or policies that violate the values considered desirable in a lawful manner, so that these values are not really damaged, then disobedience is inappropriate. Some thinkers believe that people should be allowed to disobey the law only when it violates very fundamental values in an eminently lethal way. However, this position may not be defensible. Perhaps if we allow people to break a law merely because they believe that disobeying it will serve the values they consider desirable better than obeying it, we thereby put the very institution of the law in greater danger than if we allow them to disobey a law only when they believe that it violates very fundamental values in an eminently lethal way. However, this stand risks providing a moral umbrella for legislators and policy makers since it assures them that people will cooperate with immoral laws provided that they that are not blatantly immoral. They might then be tempted to use the law for such purposes. The twentieth century abounds with examples of the danger of acknowledging a very severe criterion for value-based disobedience. It therefore seems that value-based disobedience must simply be decided by balancing between the dangers created by disobedience and the dangers that could ensue if laws violating desirable values are obeyed.
Some additional distinctions are called for at this point. Firstly, it must be noted that laws violating moral values are more serious candidates for value-based disobedience than laws violating amoral values (such as economic, strategic or aesthetic values). Violations of the latter kind are by definition not violations of moral values (at least if the damage to the amoral values is not extreme). If the laws violating a-moral values belong to a legal system that on the whole serves the desirable values, then the political morality according to which these values are desirable will not allow the destabilization of that legal system. However, this same political morality will require disobedience to laws that violate important moral values. If the state enacts laws that violate what that political morality conceives of as moral, then the state exceeds the limits of its moral authority and is acting outside its moral mandate. In such cases, the only reason for obeying it is that the damage of disobedience will exceed that of obedience. (This claim of course needs some qualification if the political morality in question is deontological and the particular law to be disobeyed violates a deontological precept.)
Further normatively important distinctions that need to be noted in the present context pertain to the conceptual distinctions made earlier between conscientious objection, persuasive civil disobedience and coercive civil disobedience. Which of these types of disobedience requires more caution on the part of those considering whether or not to disobey a particular law? At first glance, it seems that those who disobey the law for political reasons (i.e., perform acts of civil disobedience) constitute a bigger threat to the political system than those who disobey merely because they are morally prohibited from performing a particular act. However, this first impression is not entirely accurate. The distinction between coercive and persuasive civil disobedience is of utmost importance here. If one wishes to disobey the law only in order to persuade the authorities to change it but not to force them to do so, this necessarily implies that there must be a stage at which one will decide to obey the law, even if one then fails in persuading the authorities. (Otherwise, one’s disobedience cannot possibly be said to merely be for the sake of persuasion.) On the other hand, those who disobey just because they are morally prohibited from obeying a particular law (i.e., conscientious objectors) are not implying any readine