Rawls: civil disobedience and conscientious refusal
Rawls’s discussion of civil disobedience has been highly influential among writers
on civil disobedience; his account is unusual in locating the defence of civil
disobedience in a wider political theory. For Rawls the issues raised by civil
disobedience go to the heart of the moral basis of democracy.The context
We discussed Rawls’s work in Chapter 4 on Justice: as the title of his most important
work – A Theory of Justice(1972) – implies, Rawls sets out a conception of a just
society. Most of A Theory of Justiceis concerned with what Rawls calls ideal theory;
that is, he assumes for the purposes of his argument that people comply strictly
with the principles to which they have agreed. He departs from this assumption in
one relatively short section of the book – the discussion of civil disobedience. It is
only in a society where there is partial, rather than strict, compliance with the
principles of justice that civil disobedience has a role. This is because civil
disobedience is an appeal to the majority – to its ‘sense of justice’. The majority is
being asked to respect principles that it implicitly accepts. In a (fully) just society
there would be no need for civil disobedience and in an unjust society there is no
sense of justice to which you can appeal.The obligation to obey the law
Rawls begins his discussion with an apparently paradoxical claim: we have a duty
to obey unjust laws, but we are also morally entitled, and possibly have a duty, to
disobey unjust laws. To understand this we need to consider the structure of Rawls’s
theory. The principles of justice are chosen from a position in which people are
morally equal – the original position; but the chosen principles are fairly general in
nature – they do not take the form of constitutional rights, or concrete laws, and
lawsare the object of civil disobedience.
There are several stages between the agreement to principles of justice and the
creation of laws, and what happens between these stages is crucial to our
understanding of Rawls’s argument for civil disobedience. Rawls sets out a four-
stage sequence for the production of law: (a) the first stage is the original position,
in which people are denied knowledge of their identities and their society, and from
which are generated the two principles of justice, which, roughly speaking, consist
of a set of equal liberties and a social minimum (see Chapter 4); (b) a constitutional
convention at which people know their societies but not their individual identities,
and from which must be chosen a constitution for the particular society in question;
(c) a legislative stage at which specific laws are created, but constrained by the
constitution (Rawls argues that legislators do not know their identities – a more
realistic model would be one in which they do, but feel the force of the principles
of justice as embodied in the constitution); (d) the fourth – judicial – stage entails
the application of rules, or laws, to particular cases by judges and administrators,430 Part 4 Contemporary ideas