By Titus Tan
The traditional debate around civil disobedience is whether the moral obligation to obey the law exists. John Rawls argues that it does because in just societies, it is their members’ duty to further their just institutions (argument specified below) (319-327). Lyons objects Rawls’ argument, because among historical exemplars of civil disobedience, social groups, to which disobedients belong, face such deeply entrenched injustice that the moral obligation to obey the law can be in no way assumed (argument specified below) (337-344). However, I do not intend to join this traditional debate. Instead, I argue that they both have looked into the wrong direction: they assume that civil disobedience is resulted from social injustice, while it is in fact caused by the damage to social interests. From my argument, it will eventually be clear that this debate is irrelevant from the topic of civil disobedience.
Rawls starts with his Two Principles of justice:
Principle One: 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. Principle Two: Social and economic inequalities are to be arranged so that they are both to the greatest benefit of the least advantaged […], and attached to offices and positions open to all under conditions of fair equality of opportunity. (319)
Societies that are in principle organised according to the Two Principles are termed “just societies” (Rawls 321). In these societies, their members have a moral obligation to obey the law, because it is only fair when societal members assume the burden of obeying the law in exchange for enjoying the benefits guaranteed by the Two Principle through legislation (Rawls 319-320).
Still, some unjust laws (laws that violate the Two Principles) inevitably exist in societies that are by and large organised according to the Two Principles. These societies are termed “societies of near justice” (Rawls 321). However, since the basic structure of the societies is just, attempts to bring changes to unjust laws, that is civil disobedience, are bound by a series of strict conditions: civil disobedience must be, or reasonably believed to be, the last resort of resistance, after using out all other legal means (Rawls 324-325), done in public because they have to address those in power, nonviolent because otherwise it is unjust for Principle One is violated, and finally whose participants willingly accept their legal consequences because like in “just societies”, they are bound by a moral obligation to obey the law (Rawls 322). In short, civil disobedience is justified insofar as it is exclusively motivated by and aimed at storing justice back to the societies (Rawls 322).
In light of historical exemplars of civil disobedience, Lyons finds that the social injustice towards the social groups, to which disobedients belong, is so deeply-entrenched that the moral obligation to obey the law can be in no way assumed (337-344). Although disobedients, like other members of the society, share some benefits provided by social institutions, the burdens they assume are significantly greater than their peers (such is the case for black people under Jim Crow (Lyons 340)) (Lyons 339), which clearly violates the Two Principles. This in turn makes the society outrightly unjust, rather than being “nearly just”, as contemplated by Rawls (321) (Indeed, Lyons points out that Rawls misses a crucial component in his theory of justice: in no place does he clarify how to differentiate “societies of near justice” (Rawls 321) and outright unjust societies (339)). Provided that the society is unjust, the moral obligation to obey the law does not apply. Moreover, Lyons extends his argument to all societies: since few, if any, societies is free of deeply-entrenched injustice towards certain social groups, the moral obligation to obey the law cannot be assumed in any given society (343).
Historical exemplars of civil disobedience such as the case of Martin Luther King Jr. match somewhat perfectly Rawls’ conditions above, which seems to suggest that disobedients in these cases sincerely believe that they have a moral obligation to obey the law (Lyons 340). However, Lyons reveals that these cases match Rawl’s condition not because they follow Rawls’ reasonings, but out of pragmatic and tactical concerns (341). For example, civil disobedience under King’s leadership was nonviolent, not because King believes that he has a moral obligation to obey the law to be nonviolent, but because the use of violence would have led the declines in the number of his financial supporters and potentially a total crackdown of his movement, considering that his fellow disobedients and financial supporters are seriously outnumbered by the American police and their opposers (same is true for other conditions in the last paragraph) (Lyons 342).
I shall clear out the mystery of whether King sincerely believes that he has a moral obligation to obey the law. In his “Letter From Birmingham Jail”, he clearly stated, “we [(referring to his fellow disobedients)] realise that we were the victims of a broken promise” (311). To understand what this “promise” refers to, Lyons finds that King praised the central values of the Declaration of Independence and American Constitution, but condemned the American government’s actual practice of them (343). From this claim, I reasonably think that this “promise” refers to the promises written in these two documents. Since King praises this “promise”, I also reasonably induce that he believes that the promises written in these two documents are just. However, King also deems such promise “broken”, that is to say, American government has not fulfilled the promises written in the two documents that ought to yield:
…[I]n the long run, the burden of injustice should be more or less evenly distributed over different groups of people in society, and the hardship of unjust policies should not weigh too heavily in any particular case. (Rawls 321)
Therefore, King believes that American society is simply unjust, rather than being “near just”, as contemplated by Rawls (321). It follows that King’s case is not an example of Rawls’ theory of civil disobedience.
However, King also underscores that “[o]ne has a moral [obligation] to obey just laws [and] to disobey unjust laws” (312). This sets King aside from Lyons’ total negation of the moral obligation to obey all laws. However, it is logically unsound (it challenges the law of non-contradiction) to conclude that King does not believe that he has a moral obligation to obey the law (not Rawlsian), and at the same time he also does not believe that he has not a moral obligation to obey the law (not Lyonsian). My solution to this logical fallacy is that King’s reference to law in this context does not mean the American law, and indeed not any existing law, but his version of philosophical natural law. Below is a direct written testimony from King in support of my solution:
A just law is a man-made code that squares with the moral law or the law of God. An unjust law is a code that is out of harmony with the moral law. To put in the terms of St. Thomas Aquinas: An unjust law that is not rooted in eternal law and natural law. (312)
In this light, his division between just and unjust laws is such: Just laws are laws that are consistent with his version of philosophical natural law, and vice versa. It follows that when particular American laws only happens to be consistent to his version of philosophical natural law, he believes that he has a moral obligation to obey them, and vice versa. Besides, this also explains why King believes one has a moral obligation to disobey unjust laws (312): all natural law theorists more or less expect that natural law can be gradually revealed in existing laws. Thus seen, King is not a suitable example to support either Rawls’ or Lyons’ theory of civil disobedience, since they discuss about different kinds of laws, one is existing laws, the other is a kind of philosophical natural law.
Some principles of King’s version of natural law are revealed when he wrote the distinctions between just and unjust laws, since just laws are consistent with his version of natural law: his version of natural law “uplifts human personality” (rather than humiliating human personality), is binding to all (rather than being binding to social groups and not others), and is open for anyone to take part in its enacting or devising (rather than being enacted and devised exclusively by the ruling), and finally whose application must be as just (in the sense of obeying some of the foregoing principles just now) as is written in the books (312-313).
Although, similar to Rawls, King appeals to justice to determine whether he has a moral obligation to obey the law, King’s conception of “justice” is drastically different from Rawls’: King’s conception of justice is closely bound to the real-life situation of the social group of black American community. For example, King’s requirement of just laws to be binding to all is a direct response to laws like Jim Crow that clearly violates this requirement (same is true for all the other principles in the last paragraph) (312). It can be seen from this example that King’s “justice” is anything that supports the interests of black American community (their “natural laws”). Therefore, the damage to the interests of a certain social group, in lieu of Rawlsian justice, is what actually gives rise to civil disobedience. If civil disobedience has no necessary connection with the conception of justice, the moral obligation to obey the law that is derived from the conception of justice is also irrelevant from the topic of civil disobedience.
Rawls’ theory assumes that the reason for civil disobedience is a sense (or duty) of justice among the disobedients (Rawls 322), thus creating a misleading impression that disobedients are a group of justice vigilantes, who constantly carry the burden of justice, and restlessly use it as a touchstone of measuring their actions. Instead, my theory suggests that civil disobedience is a natural reaction when some laws damage ordinary people. Lyons, albeit rejecting Rawls’ presumption of the moral obligation to obey his version of philosophical natural law, does not challenge Rawls’ conception of this fundamental motive of civil disobedients. Meanwhile, Lyons commits a naturalist fallacy: just because the historical exemplars of civil disobedience show that the moral obligation of obeying the law does not exist (fact), it does not automatically yield that it ought not to exist (value). These are the reasons why Rawls’ and Lyons’ theories fail and my theory stands.
The traditional debate around civil disobedience is whether the moral obligation to obey the law exists. This debate is misled by Rawls presumption that in “just or nearly just societies” (Rawls 321), civil disobedience exclusively serves the purpose of restoring justice back to societies (322). Lyons discovers that Rawlsian “just or nearly just societies” (321) simply does not exist (343). Correspondingly, the moral obligation to obey the law does not exist. However, his opposition still acquiesce that agreeing with Rawls, the sense of justice is the reason that leads to civil disobedience. In light of King’s case of civil disobedience, I illustrate that the damage to the interests of social groups (their “natural laws”), rather than Rawlsian justice, elicits civil disobedience. If justice has little to do with civil disobedience, its derivative, the moral obligation to obey the law, will be irrelevant from the topic of civil disobedience.
Work Cited
King, Martin Luther Jr.. “Letter from Birmingham Jail” (Inside “Chapter Twelve: The Duty to Oppose Injustice”, “Part Three: Civil Disobedience and the Obligation to Obey Law”). Classic Readings and Cases in the Philosophy of Law, Edited by Susan Dimock, Published by Routledge, 2016, pp. 310-317, https://www.taylorfrancis.com/books/e/9781315509655.
Lyons, David.. “Moral Judgment, Historical Reality and Civil Disobedience” (Inside “Chapter Fifteen: Civil Disobedience and the Presumption of an Obligation to Obey the Law”, “Part 3: Civil Disobedience and the Obligation to Obey Law”). Classic Readings and Cases in the Philosophy of Law, Edited by Susan Dimock, Published by Routledge, 2016, pp. 337-344, https://www.taylorfrancis.com/books/e/9781315509655.
Rawls, John.. “Civil Disobedience and Conscientious Refusal” (Inside “Chapter Thirteen: Civil Disobedience and Conscientious Refusal”, “Part 3: Civil Disobedience and the Obligation to Obey Law”). Classic Readings and Cases in the Philosophy of Law, Edited by Susan Dimock, Published by Routledge, 2016, pp. 319-327, https://www.taylorfrancis.com/books/e/9781315509655.