The ‘Right’ of Civil Disobedience
Civil disobedience refers to a politically motivated breach of law designed either to contribute directly to a change of a law or of a public policy, or to express one’s protest against, and dissociation from, a law or public policy. Examples include the American Civil Rights Movement, and the fight against South African apartheid. There has been much academic discussion regarding the ‘right’ of civil disobedience and its justifications. Part II examines whether a ‘right’ of civil disobedience towards manifestly unjust laws exists. A moral right exists for the legal positivist, while the idea of “civil disobedience” is irrelevant to the natural law theorist. Part III compares the approaches towards civil disobedience of an unjust law, and concludes that the natural law theory position is preferable.
II. Is there a justifiable ‘right’ of civil disobedience? No legal system is perfect, and unjust laws that do not reach an intolerable degree remain valid law and ought to be obeyed. According to Finnis, “the whole system cannot be thrown into disharmony, by leaving the citizen to judge whether each individual law is unjust”. Fuller similarly cautioned that “justice itself is impossible without order, and that we must not lose order itself in the attempt to make it good”. Hence, the scope of our discussion will be limited to cases of manifestly unjust laws. A. The legal positivist approach
Legal positivism states that there is no necessary connection between law and morality. According to Hart, law is a system of rules that is valid by the rule of recognition, hence the slogan “law is law”.
1) Moral right of civil disobedience
Fuller describes the moral dilemma between the “moral duty to obey [law]” and the “moral duty to do what we think us right”. When “confronted by a statute [which is] thoroughly evil, we have to choose between those two duties”. Without delving into a discussion on the “moral duty to obey law”, it is generally accepted that citizens have moral right to disobey unjust laws. Martin Luther King Jr. concluded that the ‘moral pull’ of one’s conscience negates the obligation to be bound to an unjust valid law. Similarly, the fathers of legal positivism, Austin and Bentham, acknowledged that “if laws reached a certain degree of iniquity then there would be a plain moral obligation to resist them and withhold obedience”. Most writers recognize the societal value of civil disobedience in helping to correct departures from justice, and are instead concerned with setting formal limits on permissible forms of it. Rawls, for example, says that civil disobedience is justified when three conditions are met. This moral right does not excuse the disobedient from punishment. It seems inconsistent, however, to acknowledge that one has a ‘right’ to civil disobedience, yet punish him for exercising this right. This confusion results from the word ‘right’ being used in the loose sense. Dworkin and Raz clarify the true nature of a right and what it entails. There is a “clear difference in saying that someone has a right to do something… and saying that it is the ‘right’ thing for him to do”. Saying that someone has a right to do something implies that it would be wrong to interfere with his doing it, or “special grounds are needed for justifying any interference”. A moral right to civil disobedience is not strictly a right, thus the disobedient is bound to be punished.
2) Legal right?
Raz says that the right of civil disobedience is justified only in illiberal societies, as equivalent to the “right to political participation”. Dworkin speaks of a right of civil disobedience whenever the law wrongly invades one’s rights against the government. This is “not a separate right… [but] simply a feature of these rights against the government and it cannot be denied in principle without denying that any such rights exist”. Other writers attempt to...
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