Introduction
Governments in many countries and at many times have made laws that are morally repugnant. Many governments, for example, have wanted their citizens to obey laws that were racist, discriminating against some citizens simply on the basis of their supposed “racial” origins.
Sometimes—regrettably, not often enough—citizens of these countries have been so outraged by these racist laws that they have sought to have them changed. And when legal means of changing the law have been exhausted, some have chosen to resist their governments by civil disobedience. That is, they have set out to resist these evil laws by deliberate acts of lawbreaking. In civil disobedience lawbreaking is usually undertaken in order to draw attention to the evil law, to express a citizen's repugnance to it, and to create political pressure to get it repealed. Sometimes civil disobedience involves breaking the hated law itself: laws segregating public transport were broken by their opponents, both as an expression of their rejection of racial segregation, and in an attempt to force states and municipalities to change their laws.But there are some evil laws we cannot oppose by breaking those very laws. If, for example, you thought that a law requiring capital punishment for thefts above a certain value (which was common in Europe until quite recently) was evil, there was no obvious way you could break that law. You might have tried to stop the government from executing convicts, but this probably would have been too difficult and too dangerous. Even where you can break the evil law itself, doing so may not be enough to force the government to change. So civil disobedience often involves breaking laws—for example, laws against blocking highways—that most citizens generally respect and regard as justified.
As we saw in the last chapter, philosophers have sought to justify the existence of the state by arguments that appeal to moral ideas: the ideas, for example, of keeping your word (in Hobbes) or of equality (in Rawls) or of rights (in Nozick).
We did not come to a simple conclusion about when the state is justified. But—unless you are an anarchist—you will accept, in the end, that sometimes a government meets the general conditions that entitle it to a monopoly of the justified use of force. So if a government is justified in using force to coerce citizens into meeting their political obligations, then those citizens have a duty to obey the laws it promulgates... at least until they have a good countervailing reason not to do so.It follows, then, that anyone who undertakes civil disobedience in a society whose government meets the conditions of justification for the exercise of coercive power ought to think carefully about whether his or her actions are justified. For in such a state every citizen gains benefits from the state's existence, and, as Rawls argued, fairness requires that the burdens of a system be shared as well as the benefits.
Now, in many real cases, it is doubtful that the state meets even minimal conditions of justification. Indeed, a state with many racially discriminatory laws is likely to lose its justification on any view that says, with Rawls and Nozick, that a state must give equal recognition to every citizen's basic political rights. So one answer to the question “When is civil disobedience justified?” is to say that civil disobedience is justified where a government has ceased to be justified, because it fails to meet the minimum conditions for legitimacy. Many people felt that the Nazi government in Germany did not meet those minimum conditions necessary to make its laws morally binding on its citizens. Civil disobedience is justified in such a state because the government lacks overall legitimacy: it has no moral call on the citizen's obedience.
We may still, of course, have moral reasons for doing what the regulations enforced in such a state require: the fact that your government lacks legitimacy is no reason to feel free to commit murder.
We may also feel that it is prudent to obey a wicked government, because it carries out its threats.
If, however, the government lacks legitimacy, we have no moral duty to obey a law simply because it is the law.But this is a rather extreme case. Not everybody who believes some particular law is wicked thinks that the whole state that made the law is so morally bankrupt as to have lost all justification. Those Americans who marched in the great civil rights marches of the sixties largely maintained their faith in the rightness of the American Constitution and the legitimacy of the American state. They believed that racially discriminatory laws were not only wrong but inconsistent with what was best in the American political system: many of them thought—rightly, as it turned out—that the government and the courts would eventually act to overturn segregationist laws, provided there was enough continuing political pressure.
The civil rights marchers would have disagreed, no doubt, about what it was that made civil disobedience in defiance of racist laws right. But some of them argued that some rules are so bad that they cannot be regarded as laws at all. The Reverend Dr. Martin Luther King Jr. wrote in his famous “Letter from a Birmingham Jail”:
One has not only a legal but a moral responsibility to obey just laws.
Conversely, one has a moral responsibility to disobey unjust laws. I would agree with St. Augustine that “an unjust law is no law at all.”
A law, on such a view, is a regulation that is legitimately promulgated by a legitimate state. Civil disobedience can be justified, these people claimed, not only when the state lacks overall legitimacy— because it fails to meet certain minimum moral standards—but also where particular rules, proposed as laws, are illegitimate—because they fail to meet certain minimum moral standards. In these cases, they said, it can be proper to practice civil disobedience in order to get the state to acknowledge that these particular rules do not count as laws.
The view that a rule has to meet certain moral conditions before it can be regarded as a law at all is the central tenet of what have been called “natural law” theories.
They are called “natural law” theories because they are associated with the view that valid laws in human societies are justified by their being based on something more fundamental than social customs or human agreements. For natural law theorists valid laws are natural in the sense that they are not man-made. Natural law theorists have usually held, as did St. Thomas Aquinas, the most influential European theologian and philosopher of the Middle Ages, that the contents of natural law, the moral boundaries within which legitimate laws must fall, can be discovered by reason. Laws, Aquinas said, must be ordinances of reason; that is, they must be rules that we can see, by using those capacities for reasoning that all normal human beings have by nature, to be right. Indeed, Aquinas defined a law as “nothing other than an ordinance of reason for the common good, made by whatever authority has the community in its care.” For Aquinas the contents of natural law were the “laws of nature” that I discussed in connection with Hobbes.Now, many people who supported the civil rights marches and were even in favor of civil disobedience in order to induce the Congress and the president to enforce the civil rights of Afro- Americans would have rejected a natural law theory. They would have said that some segregationist laws were perfectly valid as laws and that the fact that they were unjust, because they were racist, was an argument for getting them changed, not a reason for denying that they were laws in the first place.
In arguing thus, these supporters of the civil rights movement were following in the steps of the philosophy of legal positivism. For a positivist, the task of analytic jurisprudence, which is the systematic study of laws and legal institutions, is to discover what the laws of a country are, independently of whether or not they meet moral standards. Generally, the positivists have argued that the laws of a state are those regulations issued by the government and enforced by its monopoly on coercion.
The nineteenth-century English legal philosopher John Austin, who was one of the leading figures in the development of legal positivism, defined laws simply as the “commands of the sovereign.” Since Austin defined a command as an order accompanied by a threat, any rule that was promulgated by the legitimate govern- ment—the sovereign power in a state—and was enforced by the use of the state's monopoly on coercion was a law, however good or bad it was.
As Austin said in a famous passage from his book The Province of Jurisprudence Determined:The existence of law is one thing; its merit or demerit another. Whether it be or be not is one enquiry; whether it be conformable to an assumed standard, is a different enquiry. A law, which actually exists, is a law, though we happen to dislike it.
It might seem that this dispute is simply a matter of definition, and a definition of a word is to be decided by asking how competent speakers of the language use it. But, as we shall see, there may be reasons for preferring one definition—reasons more complex than the fact that it reflects the way the word is ordinarily used.
7.1