John Locke rejected the view that man has no alternative but to obey any state under which he happened to find himself, and all of liberal theory has followed him in this rejection. Locke accused Hobbes of equivocating “state of nature” with “state of war”, and pointed out that the former rarely collapsed into the latter. In their natural state men can at least fight as equals, but no man would stand a chance against the greater force of the state. One premise of the liberal view has been that when the preservation of the state creates worse evils than the war of all against all, the costs of that state are too high. A citizen has no reason to preserve such a state, for there is no greater good which makes it possible to preserve.
Yet liberal theory contends that its systems are the best form of governance, according to John Rawls, and though they are not perfectly just, they are reasonably just. Men who threaten the preservation of these regimes to some degree compel a “war of all against all”, though the state may have allowed many evils to which men may contend does not conform to its moral principles. A state which does not respect citizens who have rights-claims instead gives priority to the preservation of the state itself, and tacitly accepts the Hobbesian point of view about the state of nature. Contrary to liberal theory which says the state is to preserve rights which are to be found in the state of nature, it says the state prevents the war of all against all.
If our state is reasonably just but not perfectly just, we can be sure that the laws of the state do not encompass all those to whom it commands obedience. The whole structure of liberal theory, with its constitutional prescriptions and inalienable rights must therefore depend on the affirmation of a subsequent premise, if it is not to be naïve. Liberal theory must rest on a premise to the effect that the logic of arbitration is not all-encompassing. That is, the logic of state may not meet the consent of all those who are encompassed by it. This premise seems so obvious that the majority of the followers of Locke bothered to make it explicit (Nozick 1974).
John Rawls claims in The Justification for Civil Disobedience (1969) that “even under a just constitution unjust laws may be passed and unjust policies enforced.” This raises the question of civil disobedience and when it is justified. To engage in acts which disobey the logic of state arbitration implies that citizens have rights-claims that arbitration does not necessarily give them, and though Rawls implies there is a sense in which a prima facie case for obedience justifies arbitrary rule by the sovereign, in liberal theory there must be a more fundamental prima facie case to the effect that rights-claims not respected by the sovereign are unjustified.
It is my contention that liberal theory, through its rejection of Hobbes’ argument about the logic of arbitration, opens the possibility of a much wider range of disobedience than liberal theorists have generally recognized. For the writings of many theorists, including John Rawls, liberal theory has demanded too much rather than too little obedience. Most of his justification is indeed spent on justifying various limitations for civil disobedience. Focusing alone on “reasonably just” systems in which equal opportunity is the only object of disobedience, Rawls and the like force the citizen to be almost totally obedient because he or she could never justify revolutionary disobedience in a reasonably just society. In an already “reasonably just” system, institutions must be “significantly unjust” on top of that to even warrant reform according to Rawls. The case for radical disobedience is, in many ways, an attempt to dispute this very aspect of liberal theory and to point out the possibility of a broader range of revolutionary and non-revolutionary disobedience.
The envisioned civil disobedience within a reasonably just society, as Rawls is makes clear, is a system produced by the Original Position (2001). One fundamental objection to his paper is that the context in which he chooses to discuss civil disobedience precludes any interesting discussions about revolutionary and non-revolutionary disobedience in other societies. While the section concerning the justification itself uses the Original Position to conceive of a society where revolutionary and most non-revolutionary forms of disobedience are unjustified, in earlier sections it is clear that Rawls intends to extend this analysis to all constitutional democracies. Whether he contemplates the extension of his justification for civil disobedience to less-reasonably just systems is implied in that. But we should not conclude that the justification extends any further than Rawls’ own system, since, given the conditions under which the reasonably just society originate, we cannot consider all less-than-perfect systems: we can only considering the reasonably just ones.
Many of the scenarios commanding disobedience that we imagine in (our own) less-than-perfect systems are thus unimaginable in Rawls’ society. We therefore should not take his Justification too seriously if we are to apply it to all constitutional democracies, for they are not all reasonably just. Nonetheless it was meant to be used as a justification for civil disobedience in other societies. The non-contextualized version of this text which appears in Schaur and Armstrong’s The Philosophy of Law (1986) lacks any discussion of the thought experiment which precedes it, implying that even well-known publicists in the area of philosophy take Rawls’ justification further than it is allowed. The justification of civil disobedience does not apparently need a preceding discussion of any Original Position or rights granted by a society. It is presumed that we can start from the fact that we live in a reasonably just society.
Yet in the original experiment, we have finally chosen, behind a veil of ignorance, what the moral principles of civil society ought to be when we ourselves are not any member of that society in particular. Speaking from anyone’s point of view, then, civil disobedience is therefore an act “justified by the moral principles which define our conception of civil society and the public good.” This definition, of course, already assumes its own moral principles are just cannot be challenged, and that the only grounds for disobedience are the disconnection between civil life and the moral principles. “Formal consent” to the government is therefore an issue Rawls is unlikely to take up in any discussion of civil disobedience.
In the reasonably just society, which certainly still has problems of its own, the extent to which a disobedient believes that the regime, while imperfect, is better than war of all against all, he has some reason not to endanger its existence. This reason will not, it is true, lead him to reject disobedience in the face of great injustice, but Rawls contends that it will in almost all cases lead him to reject disobedience in the face of many evils, given that it is system is reasonably just. The better the system is, the stronger the obligation to obey and the greater, therefore, I contend, we should expect the improvement brought about by disobedience be if it is to justify the risks it also implies.
In a constitutional and contractual civil society like the one Rawls envisions, the convictions of a disobedient member can only be traced back to the principles that underlie the constitution itself. The source of one’s disobedience is based on rights-claims already established, or derivable, from the basic moral principles. Legitimate civil disobedience, Rawls contends, is merely a “stabilizing device in a constitutional regime” and therefore acts of civil disobedience which threaten the stability of the regime are not justified, even at the cost of the moral principles he hitherto used as his basic justification.
This is a clear barrier to civil disobedience, since we are threatened on one hand with war of all against all—which has little basis in post-Locke liberal theory—and living with uncontested injustice on the other. Concerning what little “legitimate civil disobedience” we are left with at this point, however, there are still many other avenues, short of revolution and revolution itself, that Rawls forbids.
The first barrier Rawls places in front of disobedience is that of addressing the majority. Acts which do not address the “sense of justice” in the majority are not considered “civil” acts, and are merely disobedient. However, we can imagine scenarios where equal opportunities do not obtain, and disobeying the majority to protect the rights of the minority may require secrecy. When the Underground Railroad was constructed to help slave minorities, no one would have thought to make this act of disobedience known to the majority, otherwise it would have undermined its effectiveness. Rawls would have us believe this sort of scenario is not obtainable in the reasonably just system, but this should not stop us from considering the ways in which he is wrong about other constitutional democracies, and even his own.
The second barrier Rawls gives us is violent disobedience. Violence is simply unnecessary in the reasonably just society, but we should not conclude it is unnecessary in less reasonably just societies. Violence can take the form of state property destruction, for example, when burning military draft cards. One can imagine instances where a citizen living under a less reasonably just society might try to sabotage a particular government program, a nuclear weapons development program that threatens to destroy neighboring cities, for example, without challenging the government in other areas. Such an act is not easy to evaluate, for although it is both highly coercive and violent, it challenges only a very limited aspect of state power. Rawls argues that disobedience must not endanger the rights of others, which although perfectly reasonable since they are not the object of disobedience and have equal rights-claims as anyone else, does not answer the more fundamental question of whether violence towards a state counts as the “other” as well.
The third and more problematic barrier for the reasonably just society is that of equal opportunity. While in a just democratic regime opportunities (visible and non-visible) should be equally available to all citizens, inequalities must be to everyone’s advantage. This is Rawls’ Difference Principle, in which inequalities must be to the advantage of those least well-off. Rawls believes this to be one of the moral principles chosen while behind the veil of ignorance. Thus if citizens are equally subject to some kind of structural injustice, Rawls would require that citizens be able to equally participate in disobedience. Yet the “widespread disposition to disobey” would be followed by “widespread disorder”. In that event “there might be serious injury to the just constitution,” Rawls says.
Here we have a scenario where Rawls suggests “special restraint” in order to preserve the integrity of a state whose object it is to preserve the very rights citizens are demanding. Rawls would require that citizens be able to equally participate in disobedience, but since the degree of injustice is equally distributed and thus magnified, however reasonable it may seen to disobey, disobedience would be thwarted by a magnificent spectacle of disorder. The notion of “justice for all” is supplanted by “equality for all” and that has lead Rawls to offer the precarious solution of a “lottery” or a “rationing system” that will allow only a select few to disobey on behalf of others.
This has suggested to me that Rawls admits that the public good may trump the moral principles the society is based upon. The public good, and thus the purpose of the state, in other words, is order—and this is a very Hobbesian point of view. It also strikes me that Rawls accepts a more utilitarian view here than is often recognized. In the event that widespread disorder should be caused by demands for justice, Rawls accepts a utilitarianism of rights view, whereby rights and justice are things to be maximized, but may not be fully maximized if it should cause widespread disorder (Nozick 1974).
Whereas these rights are not respected as “inalienable”, it may be objected that at least some rights are inalienable for Rawls, which is certainly the case. The less-visible rights violations and injustices in Rawls’ society, however, seem the most susceptible to the crude utilitarian calculus. I believe Rawls is wrong, and much of liberal theory is wrong with him, in saying that the public order takes precedent over rights guaranteed by the constitutions of democratic regimes, and it is this contention of Rawls that causes a fundamental tension within the reasonably just society, and which makes radical disobedience necessary, even in the reasonably just society.
A search for the reasons that it has seemed necessary to confine disobedience so thinly—to “clear” cases to use Rawls’ wording—takes us back to the origins of liberal theory. Reasons first given by Hobbes and then adopted by Locke inform much of our contemporary thinking out disobedience. Many modern arguments against disobedience appear to be only somewhat altered restatements of the original Hobbesian ones. Hobbes pointed out that we have reason to obey even am unjust law because we have an interest in the preservation of a system of arbitration through which quarrels among citizens can be settled calmly. Rawls calls this a “normal political action”. Such a system is achievable, Hobbes reasoned, only if each member of society is willing to reject the use of violence in disputes with others and to present them to binding arbitrators of the sovereign. When Rawls states that “there is no danger of anarchy as long as there is a sufficient working agreement in men’s conceptions of political justice and what it requires” I believe he is relying on the Hobbesian argument.
A citizen might prefer to have the state obey his own principles, and Rawls never denies that it is desirable to have it so. He insists, like Hobbes, that guarantees for citizens against the state, though desirable, could never be enforced without collapsing the state. In a game-theoretic approach, Hobbes says that citizens will only reject the use of violence and submit their quarrels to the sovereign if they were absolutely sure that the other citizens would do the same, and Rawls seems to be in agreement.
I would like to add here that even in the best state we can devise, the possibility of justifiable disobedience cannot be categorically disqualified. As long as we have not devised a procedure which guarantees that only laws and institutions which everyone can consent to, the possibility of a justifiable disobedience will exist. Majority decision is not, however, the only basis for democracy, nor is it necessarily the strongest. The strong claim that democracy does make is that it weakens the possibility of justifiable disobedience by providing alternative means of change. And although this makes democracy stronger than other regimes, it is not, of course, wholly participatory, nor is it the only system that provides those alternatives.