and the following of rules by citizens. The possibility of injustice arises at this fourth
stage (and, in the more realistic model at the third – legislative – stage) and therefore
also scope for civil disobedience.
With this sequence of stages now in place we can return to the paradox of
conflicting obligations. First, how can we have an obligation to obey unjust laws?
At the first stage – the original position – we know that principles of justice must
be embodied in a constitution, and constitutions provide the framework for law-
making. We also know that people are in conflict with one another, and so laws
will never be passed unanimously – there will always be winners and losers. What
is required is a decision-making rule that is acceptable to all. It is highly unlikely
that anything other than majoritarianism would be chosen in the constitutional
convention. The danger is that the majority will sometimes pass unjust laws – laws
which, for example, deny equal rights to minority groups. Therefore, we have a
conflict:
- The principle of majority rule is effectively endorsed from stage one, which is a
standpoint of moral equality, and therefore of justice. - Majority rule will sometimes generate unjust laws.
If an individual felt entitled and, perhaps, obliged to break every law they deemed
unjust, then majoritarian democracy would collapse, and in the process so would
the possibility of a just society. The question, or challenge – ‘what if everyone did
that?’ – can always reasonably be asked of someone engaged in civil disobedience.
Rawls argues that the original position argument only works if we assume that
we have a moral duty to create and uphold just institutions – this is a ‘natural duty’
in the sense that it precedes the choice of particular principles of justice. This means
we ‘enter’ the original position not knowing what principles we will choose, but
committed to respecting whatever principles are chosen. We do not choose principles
but then refuse to live by them.
The natural duty to create and uphold just institutions amounts to respecting the
real difficulties of operationalising principles, and so not disobeying every law you
think is unjust. On the other hand upholding justice also means resisting injustice.
What civil disobedience then involves is making a judgement not between just and
unjust laws but between different types of unjust laws. One suggestion Rawls makes
for determining the point at which civil disobedience is justified is the degree to
which a particular group bears the burden of injustice. If a group finds itself
habitually, rather than occasionally, the victim of injustice then there are grounds
for civil disobedience. The black community in the Southern states of the United
States up until the civil rights legislation of the 1960s is an obvious example.
The nature and role of civil disobedience
Given the fact that in a just society decisions will be made by majority vote – subject
to many checks and balances – the possibility of civil disobedience arises for Rawls
only in a democratic society:
At what point does the duty to comply with laws enacted by a legislative majority
(or with executive acts supported by such a majority) cease to be binding in viewChapter 19 Civil disobedience 431