of the right to defend one’s liberties and the duty to oppose injustice? This involves
the nature and limits of majority rule. For this reason the problem of civil
disobedience is a crucial test for any theory of the moral basis of democracy.
(Rawls, 1972: 363)
The leading idea behind Rawls’s theory of civil disobedience is that in breaking
the law the civilly disobedient are addressing, or appealing to, the sense of justice
of the majority. All the other points that Rawls makes, including the important
distinction he makes between civil disobedience and conscientious refusal, lead back
to this idea.
Rawls sets out a number of conditions on civil disobedience:
1.Injustice must be clear What is unjust is determined by the principles of justice.
Of the two, breaches of the first principle – equal liberty – are likely to be much
clearer than denial of the second – guarantee of a social minimum (the difference
principle). For example, to deny a class of adults the right to vote on grounds
of their ethnic or religious identity, or their gender, would be clear infraction of
the first principle. It is not only a clear injustice, but its remedy – granting the
equal right to vote – is easy to grasp. On the other hand, significant economic
inequality is much less obviouslyunjust, and the solution to the claimed injustice
is not apparent.
2.It involves breaking the law, rather than simply testing it Some laws are broken
in order to force a judicial judgment, but this does not constitute civil
disobedience. As we will see this might rule out classifying significant aspects of
the struggle against segregation in the Southern states as civil disobedience.
3.It need not involve breaking the law, which is the object of civil disobedience
Laws are broken in the process of engaging in civil disobedience, but they need
not be the direct object of the civilly disobedient action. For example, in order
to protest against an unjust war, you might sit down in the middle of the road,
thus violating traffic laws, but it is not the traffic laws that are the target of the
action (you will probably accept that it makes sense to have laws which prohibit
people sitting down in the road!).
4.It must be a public act Civil disobedience is a communicative act – the majority
is being given ‘fair notice’ that a law is unjust. The communicative act consists
not simply in the transmission of information – that could be achieved through
covert action – but in getting the majority to understand that the civilly
disobedient are making an appeal. Indeed, there is a distinction between
communicating something to the majority, and appealingto it.
5.It must be non-violent and not constitute a threat The reasoning behind this is
similar to that behind (4) – the civilly disobedient want the majority to change
the law for the right reason, namely because it is unjust and not because they
fear the consequences of maintaining the law. Rawls could be criticised for
naivety: one group may be genuinely non-violent and non-threatening, but their
actions could be unintentionally threatening insofar as they make the majority
aware of the existence of other, less peaceful, groups. The shadow of Malcolm
X and the Nation of Islam was always behind that of Martin Luther King.
Furthermore, it is not obvious that non-violentobstruction undermines the appeal
to a sense of justice, and most campaigns have involved the deliberate
inconveniencingof the majority.432 Part 4 Contemporary ideas