Many moral controversies and arguments surround the subject of civil disobedience. Civil disobedience is a deliberate violation of a law by protestors who consider such law as unsuitable (Thoreau, 2008). As such, civil disobedience may be regarded as a form of protest. Some of the laws that may spark such protests include segregation laws and trespass laws. Advocates of civil disobedience are usually non-violent and readily accept legal disciplinary action for their behavior. Activists may resort to civil disobedience in a bid to expose the injustice hidden in a specific law, to respond to public outcry, to force reluctant leaders to enter into a negotiation and to challenge the legitimacy of a certain law besides other reasons. This essay discusses the moral arguments and legal theory surrounding civil disobedience.
To start with, civil disobedience not only sheds light to an existing problem in the law but also speeds up the process of finding solutions. Some argue that civil disobedience is unnecessary in a democratic state since the democratic legislature that makes an unjust law can use legislative procedures to change such laws (Cohen & Arato, 1997). However, if the legislature makes an unjust law, it means that the constitution is part of the problem since it allows procedures that produce unfair laws. In addition, without civil disobedience, it would take long before the legislature acknowledges its fault in producing an unjust law. Most probably, the legislature would assume that the unjust law is not such a big deal if the public is willing to abide by it. Further, legal procedures for assessing and changing an unjust law passed through legislative means are time consuming. More importantly, democracies recognize the sovereignty of individuals and that individuals give power to the government. This means that individuals have the right to challenge government practices that appear inconsistent with the requirements of a democracy.
Perhaps if judicial review were effective, there would be no need for civil disobedience. However, the American judicial review system makes it a requirement that someone be charged with civil disobedience before an unjust law can be admitted in court for review (Gray, 1999). This means that civil disobedience is necessary to initiate democratic means of changing a law. This renders invalid the argument that civil disobedience should be used only when all democratic means are exhausted. Such an argument would also be impractical since democratic channels are too many to exhaust. Even if such channels were exhaustible, a long period would elapse before exhausting them hence delaying justice, or simply put, denying justice. Perpetual delay of justice or the existence of an opportunity to do so can encourage injustice. Therefore, civil disobedience would be a just course if these considerations were taken into account.
Second, obedience to state laws can be understood as fulfillment of one’s duty towards others or the state under the social contract model (Erckel, 2009). The duty to obey laws thus emerges from one’s tacit consent to do so in return for staying in and enjoying the benefits provided by the states. This means that if the state makes unjust laws, it adversely affects the ability of the individual to enjoy the benefits of being in the state hence violating the terms of the contract. The individual is thus justified to disobey such laws or even engage in revolutionary activities in response to injustices committed by the state. Some may argue that civil disobedience would be a breach of contract between the individual and the state since the individual continues to enjoy the benefits of being in the state while at the same time refuses to obey state laws. However, the individual does not consent to unjust laws. Indeed, unjust laws violate the golden rule hence do not qualify to be laws but perversion. This implies that the individual can question the legitimacy of unjust laws and civil disobedience comes in handy in doing so.
Finally, civil disobedience may prevent the state from committing evils against the society worse than making unjust laws. Critics may argue that civil disobedience may result in anarchy and lawlessness. However, they fail to recognize that what may be described as anarchy can actually be a public reaction to unjust laws. In addition, anarchy is a lesser evil compared to despotism (Stringham, 2007), and if civil disobedience may lead to anarchy but prevent despotism, then so be it. Further, there is a tendency to believe that disobedience causes more harm than obedience especially considering that conformity is necessary for social cohesion. Such a belief renders it difficult for many people to see how obedience to unjust laws may result in much more harm than disobedience.
Existence of legal mechanisms for addressing issues of unjust laws does not guarantee that such issues would be addressed. Indeed, it would be unreasonable to think that the state would be quick to clean up its own mess yet it failed to recognize the mess in the first place, civil disobedience is necessary. In addition, civil disobedience may be saved for use as the last resort but this would delay justice and thus create a bigger problem. Further, while an individual has a duty to obey state laws in return for enjoying the benefits of living in that state, such a contract does not cover unjust laws since they are illegitimate. Finally, civil disobedience may help to prevent the greater evil of despotism hence is a public good in such cases.
Cohen, J. L., & Arato, A. (1997). Civil society and political theory. Cambridge, MA: MIT Press.
Erckel, S. (2009). Classical social contract theory. Munich: GRIN Verlag.
Gray, C. B. (1999). Philosophy of Law: An Encyclopedia. New York: Garland Pub. Co.
Stringham, E. P. (2007). Anarchy and the law: The political economy of choice. New Brunswick, NJ: Transaction Publ.
Thoreau, H. D. (2008). On the duty of civil disobedience. Charleston, SC: Forgotten Books.