The moral justification of civil disobedience

Abstract

The considerable increase in the literature on civil disobedience during the 1950s and 1960s led to the development of an orthodoxy with respect to the definition of civil disobedience and to a concentration on questions of its justifiability. It was held that these were two separate questions, that there is a logical separation between what counts as civil disobedience and whether civil disobedience can be morally justified, either in general or in particular cases. One of the major aims of this thesis is to show that position to be untenable. There are moral principles that are objective in the sense that they must be included in any moral theory. These core principles are concerned with the minimum conditions of social life itself; they cover the areas of truth, life, and duty. Particular moral theories, however, may interpret and build upon these principles in various ways. Hence any moral person must recognise that some facts are moral values, although the moral judgements are presumptive rather than conclusive. To morally justify an action is to meet charges against it from within the moral point of view. There are, however, important differences between three levels of justificatory discourse (agent, action, and practice) and between undermining and overriding responses to charges. Moreover, that an action is morally right is neither a necessary nor a sufficient condition of its being morally justified. Any moral person must acknowledge a non-conclusive moral obligation to obey the law where the institution of law helps secure the social conditions within which persons may be moral. The moral point of view itself also limits that obligation through the constraints of process and of content. The obligation to obey is undermined if the process through which laws are enacted does not satisfy the requirements of reasoned discourse as part of the moral point of view. Political obligation may be overridden according to the constraint of content if the law requires a moral person to act contrary to the important and reasoned provisions of his own moral theory. The orthodox analysis of civil disobedience cannot maintain a strict separation between criteria of recognition and criteria of justification. The ways civil disobedience is defined affect both the onus of justification and the ways civil disobedience so defined may be morally justified, since it allows certain charges to be made against it and rules out others. There are important differences between civil disobedience directed towards securing changes in laws, policies, decisions, etc., and an agent's disobeying in order to preserve his own moral integrity. In either case, disobedience may be direct or indirect. A number of charges against civil disobedience are considered; none is decisive against the practice of civil disobedience. The conditions for their success against particular acts of disobedience are also examined. Civil disobedience may be morally justified within a democracy. The claim to a 'right' to disobey serves only to underline a claim to agent-justification.