The argument that one is obliged to obey the law because it is backed by the threat of force does not allow for civil disobedience even in the most egregious cases where civil unrest brews. That view is legal positivism. Contemporary writers have attacked that view considerably. Not too many legal scholars would consider themselves legal positivists. But many consider themselves utilitarians. Some, who think they are attacking utilitarianism, actually come out in favor for a utilitarian view. Utilitarianism is embedded in our society so much that even when we think we are not advocating it, we are in some sense.
In the essay The Justification of Civil Disobedience, John Rawls assumes in his argument that the system in which citizens are civilly disobeying is a “nearly just” system. This already begs the question, but let’s consider the rest. He then asks us to imagine a place in which the same degree of injustice is experienced by everyone in society, and whether disobedience would entirely undermine the government. Rawls says obedience should (and would) not happen, for the sake of governmental integrity.
What is this business about governmental integrity? This is a utilitarian point of view, though Rawls is not known as a utilitarian at all, and the basically stated that the needs of the government outweigh the rights of the citizens.
But how did it come to that? Rawls’ argument does not meet the “fairness condition”, one of Rawls’ own creations. Or rather, it does not exhaust the fairness condition. It compromises the “justice for all” principle as well since justice cannot be fairly distributed to all. This is indeed a utilitarian element in Rawls, I have come to see. The principle that there should be equality under the law is mistaken here for justice for all, and ends up permitting conditions of injustice for all.
The careful mixture of equality and rights in Rawls’ work produces a cacophonous blend of inequality and injustice through systemic rights violations and at great costs to autonomy. All for the sake of governmental integrity. In a nearly just system, whatever that means to our present sensibilities, we cannot rebel or revolt or make spectacular demands because government is already nearly just. This is much more like a utilitarianism of rights view, where rights are intended to be maximized, but not accepted as all-encompassing trump cards. One cannot say “Look, this is my right!” because there is a nearly just governmental office in the way.
Utilitarianism sneaks into our conceptions of the law all the time. Some are overtly utilitarian like I’ve said, but others think their views are more individualized–while in secret they are calculating and maximizing inside their heads from a social welfare point of view. The legal philosophers I agree with argue that rights are trump cards, and there is nothing that any government can do to take away one’s trump card. This provides the only legitimate basis for disobeying one’s government, while utilitarianism easily lends itself to government control and subordination. It understands civil disobedience in a way that would not give rise to various forms of tyranny. The tyranny of utilitarianism or the utilitarianism of tyranny.
That I found this element in John Rawls, one of the most revered American legal scholars, is evidence that if there were ever an acceptable model for tyranny in our present age, utilitarianism is certainly it.