Civil Disobedience

1. Consent and Resistance
1. Four notions of what obliges us to obey political authority:
1. Knowledge (Plato),
2. Consent (Locke),
3. utility(Hume),
4. principle of fair-play.
2. Different issue than "why people obey"
1. That issue is primarily socio-psychological
2. Current issue is a moral one
2. What are the limits of obligation?
1. Distinguish two cases:
1. Government does not rule in interest of the majority; violates the terms of the social contract. Locke's focus
2. Government's policies enjoy majority support but are morally abhorrent to an individual or minority. This is the focus of Henry David Thoreau and Martin Luther King, Jr.
3. Locke
1. Advanced arguments for the origins and limits of political rule:
1. Preservation of
1. Property
2. Life
3. Liberty
2. The conclusion: those who exceed the limits of government can and must be overthrown
2. Central is the distinction between the Dissolution of Society and the Dissolution of Government.
1. The former is a good deal more comprehensive in its consequences than the latter
1. Society's origins is in the agreement to act as one body which terminates the state of nature.
2. The "usual, and almost only way whereby this Union is dissolved, is the inroad of foreign force making a conquest upon them"; no notion of "social revolution"
2. Dissolution of government may come about in one of two ways:
1. "From without" - when society is dissolved, government collapses with it and men return to the state of nature.
2. "From within" - possibility of dissolving government, while remaining united into society, does not involve a full-blown return to the state of nature.
3. Two ways governments are dissolved from within: from an alteration in "the legislative" or from a "violation of trust".
1. Dissolved from within first of all "when the Legislative is altered"
1. Legislative is divided into three persons:
1. King,
2. House of lords,
3. House of commons
2. The legislative = whatever is charged with the task of making laws, whatever governs"
3. Alteration" of the legislative means a shift in the relationship of the three parts
4. When devices for electing representatives is altered by arbitrary power of prince or the prince acts in ways harmful to natural rights of the people, the government may be dissolved
5. Since "Society" retains its "Native and original right ... to preserve itself", it can establish a new government
2. Second way in which governments are dissolved: "when the legislative, or the prince, either of them act contrary to their trust"
1. Examples:
1. Destruction of private property
2. Reducing People to slavery under arbitrary power
3. Putting them into a war with another people
4. Executive employing the force, treasure and offices of society to corrupt representatives or pressure electors
2. "Trust" is significant here: trust vs. contract
1. Contracts bind both sides, require certain acts from each
2. "social contract":
1. Sovereign obligated to rule well,
2. People obligated to obey.
3. Difficult process to decide when contract has been broken
1. But trusteeship not a contractual relation:
1. Those who hold trust do things for those who trust they hold.
2. Those who givr others something in trust have no obligations towards the trustee and can remove them at any point when his performance does not satisfy them
4. Entry into civil society does involve a binding compact between members of society; but the establishment of government is always described by Locke as a "trust"
4. Locke v. Thoreau & King
1. Locke's model:
1. "Society" oppressed by a ruling minority rises up and regains its right to rule itself.
2. But what if "society" at large engages in actions that are morally repugnant or unjust to minorities (or, in most extreme case, to single individual).
3. Specifically:
1. What if majority requires tax levy to finance a war from an individual who views the war as morally unjustified (Thoreau's problem)
2. what if majority passes laws that place minority in situation of political and economic inequality (King's problem).
5. Classic exposition in Henry David Thoreau essay "Civil Disobedience".
1. Much of the theoretical work of the essay is done by Thoreau's distinction between "expediency" and "justice"
1. Government 's chief utility is negative: "government is an expedient by which men would fain succeed in letting one another alone; and ... when it is most expedient, the governed are most let alone by it".
1. Non-participation: not a man's duty to devote himself to eradication of even a great wrong.
2. One should have a right not to have one's life ruled by demands of political authority.
3. Retains a right of non-participation: citizens do not have a responsibility to support governments that violate dictates of conscience.
2. Moral concern of justice must take precedence over concern with expediency: "a people, as well as an individual, must do justice, come what it may"
3. He counsels direct action to do the right thing independent from all considerations of majority rule.
1. Direct action from principle is viewed as an agency for moral change: it "changes things and relations", divides churches and families, indeed divides the individual himself: "separating the diabolical in him from the divine"
2. Should not wait until one has a majority of one to do the right thing. "Any man more right than his neighbors constitutes a majority of one already"
6. Martin Luther King, "Letter from the Birmingham City Jail"
1. Arguments for nonviolent civil disobedience.
1. Basic question: how can King advocate obedience to some laws (e.g., Supreme Court decisions integrating schools) while calling upon individuals to violate others.
1. Celebrated answer: "One who breaks an unjust law that conscience tells him is unjust, and who willingly accepts the penalty of imprisonment in order to arouse the conscience of the community over its injustice, is in reality expressing the highest respect for law."
2. Three points to develop here:
1. Distinction between just and unjust laws
2. Particular character of nonviolent direct action
1. Relationship of law, religion, and morality
2. First point: law to be broken must be a law which one believes to be an "unjust law" - but what are the marks of an unjust law?
1. Unjust laws are laws that are out of harmony with "moral law or the law of God."
2. Unjust laws "degrade human personality" by transforming "I-thou" relations into "I-it" relations (terms come from Martin Buber's Ich und Du), give false sense of superiority to one group.
3. Unjust law is "a code that a majority inflicts on a minority that is not binding on itself". "This is difference made legal". Just law is "sameness made legal."
4. Unjust if Minority has had no part in enacting or creating the unjust law because they were denied right to participate.
3. Second point: note the particular character of non-violent direct action - willing "to accept the penalty of imprisonment in order to arouse the conscience of the community over its injustice."
1. Willingness to accept imprisonment distinguishes civil disobedience from other forms of law-breaking:
2. Do not attempt to evade punishment.
3. In that sense, abide by the law that one questions by willingly accepting punishment.
4. But accept imprisonment as a means to another end: changing the unjust law.
5. Strategic purpose of nonviolent direct action is to provoke a crisis which will force negotiations - seeks to "dramatize the issue" so that the injustice of laws can no longer be ignored
2. Law, Morality, Religion:
1. This argument draws heavily on a conception of politics equated the rule of God with the rule of morality and the rule of law: the injunction to break all laws that are not God's laws may seem problematic to some (and maybe they aren't wrong to feel uneasy about it?)
2. Suggests that we need to think a bit more about the relationship of law, morality, and religion, and also about freedom and justice:
7. Thomas Paine
1. A view of limited government : the primary duty of the central body was to protect the rights of citizens.
2. A government that violated this responsibility, as it was perceived the Crown had done in the eighteenth century, lost its legitimacy as a governing body.
3. These political ideas effected subsequent political rights in several ways.
1. Created an explicit philosophy for and justification of the expansion of political freedom as fundamental and inviolable to human existence. This extended basic rights to all social subjects, rather than to a privileged few and provided the justification for opposition when infringements occurred.
2. These rights were inalienable, and there was no justification for for their violation. This philosophy continues to have a dramatic impact on twentieth century civil rights law, as some groups, for example prisoners, challenge the rationale by which they have been systematically excluded from Constitutional protections.
3. Seventeenth century legal philosophy altered the conception of the relationship of the state to the subject.
1. While the subject had the obligation to fulfill certain social or political responsibilities, the state, too, had an obligation to protect the citizen.
2. No longer was the extension of rights left to the good will of the sovereign; rights existed independent of the power of any agent to restrict them
3. The role of the state became that of protector of rights and mediator in those conflicts which infringed upon them.
4. These ideas shaped legislation by explicitely delineating the rights and obligations of the state and its subjects. As a consequence, governmental structure was modified to introduce or expand such principles as limitation of state authority, government, habeas corpus and fair trials.
8. Booker T. Washington.
1. A single definite program,
1. Industrial education,
2. Conciliation of the South,
2. Submission and silence as to civil and political rights