Over at Law & Society Blog, Brian has a nice post entitled Democracy and Civil Disobedience responding to The Ethics of Activism by Richard Chappell at Philosophy, et cetera. From Chappell's post, which starts with a description of action by animal rights activists:
Such hubris is what repels me from radical politics more generally. These dogmatists feel so assured of the infallibility of their moral opinions that they're willing to coercively impose them on others. This implies a startling disrespect for one's fellow citizens. If you're really in the moral right, then you ought to be able to persuade your fellow citizens of this, and hence get the needed reforms implemented through legitimate democratic processes. Hence, if you can't succeed democratically, perhaps it's just as well...
Alternatively, if you're not in a properly functioning liberal democracy, then your overriding goal should be to establish the necessary institutions. Any first order political objectives are of secondary importance, and should wait until they can pass the liberal-democratic test. (It'd plainly be disastrous were every self-righteous moralist to go about trying to coerce everyone else into following their dictates.)
Do these principles imply the impermissibility of civil disobedience? Perhaps. If our democratic institutions are properly responsive to reasons, then illegal forms of protest should be quite unnecessary. Though I guess some might worry that the antecedent condition is unrealistically utopian. (That would pose obvious problems for the principles in my previous paragraph.) Perhaps we could argue that civil disobedience is itself an accepted part of our democratic process, so long as the protestors take care to cause no harm, and submit to the subsequent legal punishment?
Here's a taste of Berkey's reply:
But it seems also to be the case that even in societies that can reasonably be considered democratic, it is false that, “If you’re really in the moral right, then you ought to be able to persuade your fellow citizens of this.” Just as radical activists tend to have an inflated degree of confidence in their views, so the general public tends to have an inflated degree of confidence in prevailing views on the very same moral issues that motivate radical activism (and others besides). Indeed, radical activists are often motivated to engage in civil disobedience out of (often legitimate) frustration with attempts to convince others of the importance of their cause. Animal rights activists, for example, are often portrayed by the media as out of control vigilantes (the above link shows that this characterization isn’t always wrong), even though most surely aren’t, and this is one reason that most Americans tend to be not just uninterested, but hostile to animal rights claims, despite the fact that the arguments in favor of greater moral consideration for animals are quite strong. The strength of the arguments for a cause, at least in some cases, does not mean that there is much chance that the public can be convinced that the cause is just.
Two fine posts. If I might be permitted to add a small comment: One interesting way of approaching this issue is from an aretaic (or virtue-centered) perspective. What does the virtue of justice require?
One influential conception of the virtue of justice is based begins with the premise that the just and the lawful are separate and distinct. Of course, the view is not that all laws or unjust or that no just norms are law. Rather, the idea is that there is no necessary connection between legality and justice. If this were so, then the most plausible conception of the virtue of justice might be articulated as follows:
The Virtue of Justice as Fairness: A judge, J, has the virtue of justice as fairness, V(j-f), if and only if P is disposed to act in accord with the best conception of fairness, F, in situations, S, where fairness provides salient reasons for action.
One might think that a judge who possessed V(j-f) would act solely on the basis of fairness with reference to the law, but this is not the case. If this were true, it would provide the basis for a devastating objection to the fairness conception—because it would require each judge to substitute her private judgments about what fairness requires for the duly enacted constitutions, statutes, and rules. Although I shall not provide the argument here, it seems plain that this would be a recipe for chaos. But a defender of the fairness conception need not admit that a judge who acted on the basis of fairness would disregard the law entirely. Why not? Because the existence of legal norms will frequently give rise to considerations of fairness that will transform the moral landscape, creating salient reasons of fairness that motivate a judge who has V(j-f) to act in accord with the law.
An example may help to clarify and illustrate this point. Suppose there is a dispute between Ben and Alice over Greenacre—a vacant and unimproved parcel of land. The law gives Ben title to Greenacre, which he has purchased, but Alice has begun to use Greenacre by planting a garden. In the absence of the institution of property law, it might be the case that Ben would have no claim on Greenacre—how would he acquire such a claim without some use or improvement of the land—but that given the existence of property law, Ben would have a claim of fairness, because he has paid for Greenacre and has reasonably relied on the legal institution of property. If this is so, then the law has created a claim of fairness that otherwise would not exist and a judge with V(j-f) would decide in favor of Ben—assuming, of course, that there were no other circumstances that created an overriding reason of fairness to decide in favor of Alice.
Nonetheless, the fairness conception faces a formidable objection because of the role that private judgment plays for judges with V(j-f). To articulate this objection, we need to highlight the distinction between two questions about fairness—which I shall call “first order” and “second order” questions of fairness. A first order question of fairness is simply the question, “Which action is fair given the circumstances?” A second order question of fairness concerns whose judgment about first order questions will be taken as authoritative. Thus, the question, “Given the fact of disagreement about the correct answer to a first-order question of fairness, whose judgment should be taken as authoritative?,” is a second order question of fairness. One possible answer to a second-order question of fairness is that one ought to rely on one’s own private judgment about what action is fair. A quite different answer is that one should rely on some source of public judgment. For example, one might rely on duly-enacted and public laws.
The fairness conception implicitly requires judge’s to exercise private judgment about first-order questions of fairness. In exercising that judgment, the judge may conclude that expectations generated by reasonable reliance on the law provide reasons of fairness—as in the case of Ben, Alice, and Greenacre—but this is a conclusion of private judgment. One judge might conclude that Ben’s reliance on property law was reasonable, and hence that fairness required a decision for Ben. A different judge might conclude that no one could reasonably rely on property law in cases in which they were allowing valuable land to lie fallow when others could make productive use of the land—and therefore decide for Alice. Yet a third judge might conclude that because of pervasive economic inequalities, the whole institution of property is unjust and award the land to a third-party, Carla, who was in greater need than either Ben or Alice. Because each judge makes a private judgment about the all-things-considered fairness of following the law in each case, these judgments can (and we expect will) differ with the moral, religious, and ideological views of the particular judge.
The objection to the fairness conception of the virtue of justice is that disagreements in private judgments about fairness would undermine the very great values that we associate with the rule of law. Because the fairness conception requires each judge to exercise her own private judgment about what fairness requires—all things considered—and because such judgments will frequently differ, the outcome of disputes adjudicated by judges with V(j-f) will be systematically unpredictable. If this were the case, then the law would be unable to perform the function of coordinating behavior, creating stable expectations, and constraining arbitrary or self-interested actions by officials.
How bad this would be is a matter of dispute. A Hobbesian answer to this question is very bad indeed—in the absence of coordinating authority, life would be “solitary, poore, nasty, brutish, and short.” A Lockean answer is that reliance on private judgment leads to “inconveniences,” but even a optimistic realist would surely concede that the inconvenience of a society that cannot secure the rule of law would be serious.
If the fairness conception of the virtue of justice is unsatisfactory, is there an alternative? In the Nicomachean Ethics, Aristotle suggests an alternative understanding of justice as lawfulness, but to understand Aristotle’s view, we need to take a look at the Greek word nomos which is usually translated as “law.” For the ancient Greeks, nomos had a broader meaning that does “law” in contemporary English. Richard Kraut, the distinguished Aristotle scholar, explained the difference as follows: [W]hen [Aristotle] says that a just person, speaking in the broadest sense is nominos, he is attributing to such a person a certain relationship to the laws, norms, and customs generally accepted by some existing community. Justice has to do not merely with the written enactments of a community’s lawmakers, but with the wider set of norms that govern the members of that community. Similarly, the unjust person’s character is expressed not only in his violations of the written code of laws, but more broadly in his transgression of the rules accepted by the society in which he lives.
There is another important way in which Aristotle’s use of the term nomos differs from our word ‘law’: he makes a distinction between nomoi and what the Greeks of his time called psēphismata—conventionally translated as ‘decrees’. A decree is a legal enactment addressed solely to present circumstances, and sets no precedent that applies to similar cases in the future. By contrast a nomos is meant to have general scope: it applies not only to cases at hand but to a general category of cases that can be expected to occur in the future.
We can restate this last point by using our distinction between types of judgments (first and second order, private and public). If judges rely on their own private, first-order judgments of fairness as the basis for the resolution of disputes, then it follows inexorably that their judgments will be decrees (psēphismata) and not decisions on the basis of a second order, public judgment—in other words, not on the basis of a nomos.
In other words, a judge who decides on the basis of her own private judgments about which outcome is fair—all things considered—is making decisions that are tyrannical in Aristotle’s sense. “How can this be?,” you may ask. “Aren’t decisions that are motivated by fairness the very opposite of tyranny?” But framing the question in this way obscures rather than illuminates the point. Of course, if there were universal agreement (or even a strong consensus) of first-order private judgments about fairness, then decision on the basis of such judgments would be nomoi and not psēphismata. But our private, first-order judgments about the all-things-considered requirements of fairness do not agree. So in any given case, a decision that the judge believes is required by fairness will be seen by others quite differently. At best, the decision will be viewed as a good faith error of private judgment about fairness. More likely, those who disagree will describe the decision as a product of ideology, personal preference, or bias. At worst, the decision will be perceived as the product of arbitrary will or self interest. In no event, will a decision based on a controversial first order private judgment of fairness be viewed as outcome of a nomos—a publicly available legal norm.
We are now in a better position to appreciate why rule by decree (psēphismata) is typical of tyranny. Decision on the basis of private, first-order judgments about fairness is the rule of individuals and not of law. From Aristotle’s point of view, a regime that rules by decree does not provide the stability and certainty that is required for human communities to flourish. Kraut continues: We can now see why Aristotle thinks that justice in its broadest sense can be defined as lawfulness, and why he has such high regard for a lawful person. His definition embodies the assumption that every community requires the high degree of order that that comes from having a stable body of customs and norms, and a coherent legal code that is not altered frivolously and unpredictably.
Justice in its broadest sense is the intellectual and emotional skill one needs in order to do one’s part in brining it about that one’s community possesses this stable system of rules and laws. And with that point in place, we can now formulate the lawfulness conception of the virtue of justice:
The Virtue of Justice as Lawfulness: A judge, J, has the virtue of justice as lawfulness, V(j-l), if and only if P is disposed to act in accord with the nomoi (positive laws and stable customs and norms), N, in situations, S, where the nomoi provide salient reasons for action.
On the lawfulness conception, the virtue of justice does not require action in conformity with one’s private, first-order judgments of fairness. Justice as lawfulness is based on a second order judgment that judges (or more generally, citizens) should rely on public judgments. The content of the public judgments are the nomoi—the positive laws and shared norms of a given community. Someone with the virtue of justice is disposed to act on the basis of the nomoi.
Given the lawfulness conception of the virtue of justice, the virtuous human will rarely engage in civil disobediance in a well-ordered society--a society in which the nomoi function normally (to enable human flourishing), in which the nomoi support the positive law, and in which the positive law is in harmony with deeply held and widely shared social norms.
