Whos Afraid of Civil Disobedience?

by Faruq Nelson

This abbreviated version of Dr Nelson Faruq’s paper relates primarily to Malaysia but applies to Singapore just as well. Dr Nelson lectured in philosophy at the International Islamic University Malaysia from 1989 to 1992. He currently teaches philosophy at Parkland College and the University of Illinois at Urbana-Champaign while completing a doctoral dissertation on human rights at the latter institution.

In the past two years, Malaysia has witnessed remarkable political upheaval. Ordinary Malaysians have been traumatized by misconduct, widely unsuspected for years, that has suddenly irrupted into public view in the wake of events surrounding the dismissal and prosecution of the former deputy prime minister. Confidence in such democratic institutions as the rule of law, the independence of the judiciary, and the administration of justice has been severely shaken. The response has been unprecedented public expressions of dissent, even in some instances to the extent of engaging in illegal demonstrations. Still, many Malaysians fear that violation of the law, no matter how well intentioned, is incompatible with democracy and especially dangerous for a society such as their own.

I intend to show that, in fact, commitment to democracy can sometimes require acts of civil disobedienceactions that, technically at least, are contrary to law. Many people consider any breaking of the law for reasons of conscience to be an act of civil disobedience. Following a suggestion offered by the political philosopher John Rawls, however, I will advocate a narrower conception of civil disobedience than usual, distinguishing it from such forms of conscientious noncompliance with law as militant action, conscientious objection, and civil resistance in order to highlight the distinctive role that civil disobedience can play in a democratic society. I argue that civil disobedience, in the sense articulated here, can strengthen democracy and is appropriate for a society like Malaysia.

Civil disobedience is a mode of political address presupposing and affirming commitment to shared values like freedom, equality, justice, and fidelity to law. It provides a mechanism for democratic society to deal with serious social wrongs without ripping itself apart in the process. The practice of civil disobedience is comparable in importance to institutions like regular elections and an independent judiciary for the functioning of a democracy. But civil disobedience serves not only to reinforce democracies that are already functional. It can also serve the needs of a place like Malaysia, where democracy is frail. Alternate forms of conscientious noncompliance treat others as obstacles and rivals rather than as partners in a common endeavor. Because of their antagonistic character, these forms of conscientious noncompliance tend to undermine democracy, especially in a pluralistic society like Malaysia. For this reason, Malaysian authorities ought to tolerate if not welcome civil disobedienceto say nothing of legal protest. Otherwise they risk driving increasing numbers of individuals into socially destructive forms of expressing dissent.

Obedience to unjust laws

When faced with the question of whether to obey what one is convinced is an unjust law, some will answer that one ought to obey because it is never proper to break the law. Others will answer that one ought to disobey because it is never proper to comply with an unjust law. Both of these positions are inadequate.

The view that one should always do what justice requires, even if it involves breaking the law, is problematic because one of the things that justice requires is respect for democratic institutions. If a law is democratically enacted, the mere fact that the law is unjust is not enough to permit us to disobey it. In a reasonably just society people should normally obey the law, even a law that may be quite unjust.

If everyone could simply exempt himself from any law he was convinced was unjust, then someone would always be able to claim exemption and no one could ever be confident that anyone would comply with any law at all. There is ample opportunity to find fault with democratically enacted laws. This is especially so in a pluralistic society, where there are likely to be several competing conceptions of justice. But even when everyone is in full agreement about what justice requires, there can still be reasonable disagreement about how to craft laws that meet those requirements. Even under ideal circumstances, it is still possible for someone to have good reason to believe that the majority has decided improperly, although the majority may have acted conscientiously. If everyone were entitled to violate the law whenever it suited him to do so, then no one could trust that most people would comply with most laws. Consequently, public institutions would be seriously impaired and the benefits of life in a democratic society would be lost.

I expect that few readers are surprised by the conclusion that, in a democracy, one cannot go around breaking the law simply because one deems that law unjust. Unfortunately, a significant portion of readers will probably go much farther and insist that the law should never be broken, no matter what. Many of them may incline to the view that in a democratic society one must never defy the will of the majorityeven when the majority enacts terrible laws. In such cases, they will say, all that those in the minority are permitted is to employ whatever means are legally available to try to persuade the majority to change its view. And should the law happen to make no provision for dissenters then the minority ought simply to keep their objections to themselves and hope for a reversal of fortunes at the next election.

As far as those who take this position are concerned, all illegal activity is of a pieceit is never proper to break the law, no matter what the reason. But this position is clearly inadequate, for it fails to appreciate that breaking the law can sometimes be morally required. We can easily see that this is so if we consider as an example two instances of the same illegal activity: breaking into someone elses house. Even the most ardent law-and-order enthusiast will agree that there is an important difference between, on the one hand, breaking into anothers house to save the life of an occupant in need of assistance and, on the other hand, breaking into anothers house to murder the person who lives there. Though in both cases we have an act of housebreaking, in the first case it is morally defensible while in the second it plainly is not. Even if one is mistaken in ones belief about whether the house has someone inside, the moral difference between the two acts remains, and that difference is connected to motivation. Clearly, then, not all illegal acts are of the same quality. We should distinguish conscientious noncompliance with law, which is morally motivated, from ordinary lawlessness.

None of this detracts from the contention that in a reasonably just society people should normally obey the law and should ordinarily confine themselves to legal means of opposition to laws with which they disagree. But as our housebreaking examples illustrate, sometimes even a just law must be broken. How much more then is this likely to be the case with an unjust law.

There is a moral obligation to uphold democratic institutions, and that obligation includes an obligation to respect the law. But while justice demands obedience to democratically enacted laws, justice at the same time sets limits on that obedience. The fact that a law has been validly legislated is not enough, by itself, to require that the law be obeyed. The law must also be within the range of reasonable disagreement about what justice requires.

Thus, when a law seriously undermines the very democracy it is supposed to serve, those who recognize this should not feel bound to obey. Indeed, if the damage caused by the law is severe enough, they may even find themselves bound to disobey.

A minimal amount of injustice may be an unavoidable feature of political institutions. But what is not unavoidable is that certain people consistently bear more than their share of the burdens while others consistently avoid the burdens at the expense of the rest. Then we are no longer talking about something that it is reasonable to accept. There we have crossed the limits of tolerable wrong into wrong that must be resisted and remedied. So our argument seems now to have come full circle. When an injustice or other social wrong is great enough one may have to break the law. But it is often difficult to determine when a particular wrong has reached such magnitude that it should no longer be tolerated, and reasonable people are likely to differ over the matter.

One cannot violate the law simply because it falls short of what justice requires, but one also cannot insist on obeying the law no matter how unjust it becomes. Sometimes one must comply with laws that are unjust, and sometimes one must resist substantial wrongs even when doing so means breaking the law. Of course, we should try to minimize the chances of this happening, and a robust democracy does exactly that. A society is better placed to avoid crossing the limits of tolerable wrong when members of that society are able to communicate intelligently with one another about matters of public concern. Hence the importance of such fundamental rights as freedom of expression and of association, not to mention the importance of education, adequate healthcare and nutrition, and the other prerequisites for exercising those rights effectively.

Civil disobedience in a democracy

Civil disobedience, as conceived here, is a special mode of political address and an exercise in public moral education. The civil disobedient invites his fellow citizens to examine the implications of their shared moral and political commitments. His act of disobedience is civil because it is part of the civic life of a democratic society. To maximize the effectiveness of his political address and guard against its being mistaken for ordinary lawlessness, the civil disobedient seeks to conform his actions to the following paradigm.

Paradigm of civil disobedience

In a paradigm case of civil disobedience, there is (a) deliberate contravention of law performed in (b) a public, nonviolent manner and with (c) a willingness to accept the legal consequences as a means of focusing public attention on (d) a serious violation of (e) shared principles regulating matters of public concern that has not been remediable by (f) reasonable efforts through normal channels of redress. There can be justified acts of civil disobedience that differ in various ways from this paradigm, as well as justified acts of conscientious noncompliance that are not acts of civil disobedience, but the farther an act departs from the paradigm of civil disobedience the more difficult it generally becomes to show that the wrong opposed by illegal means is more serious than the wrong of disobeying the law. Moreover, even a paradigm case of civil disobedience will fail to be justified if it is undertaken without reasonable expectation of success.

Deliberate contravention of law
In a paradigm case of civil disobedience there is deliberate breaking of the law. But it is done in order to uphold a deeper respect for what the law stands for.

But those who engage in civil disobedience to protest what they judge to be an unjust law are not prepared to discontinue their protest just because the courts uphold that law. The courts may be correct that the unjust law is valid, but the civil disobedients point is that the law is seriously at odds with societys fundamental principles and therefore ought to be changed.

When the law that is broken is itself the wrong targeted by the act of civil disobedience, this linkage is the closest and the prospect that the act is justified will generally be the greatest. However, there are times when the wrong being protested is great enough that it justifies the illegal act even though there is nothing particularly wrong with the law that is being broken. For example, when Martin Luther King Jr led his famous march on Selma, Alabama, to protest the racial segregation practices of the American South, the march was conducted illegally. King did not dispute the need for laws that regulate the time and manner in which public property can be used in the exercise of constitutionally protected rights to speech and assembly. But when the legally required permit to parade on a public street was denied, King broke what he acknowledged to be a legitimate law to focus attention on the monstrous injustice that was hiding behind that law. He willingly went to jail as a way of alerting his fellow Americans to an evil that most wanted to quietly ignore in the hope that it would someday disappear on its own.

Public, nonviolent action
Since civil disobedience is essentially a form of political address, it must like public speech take place in the public forum. The aim of civil disobedience is to make an appeal to fellow citizens, but no such appeal can be made if the illegal conduct remains hidden from public view. The public, persuasive character of civil disobedience requires not only that it be performed openly but also that it be performed in as nonviolent, nonthreatening a manner as possible. The publicity and nonviolence of the act attest that it is indeed one of political conscience, grounded in public principles and not aimed at securing some private gain at the expense of fellow citizens.

Willing submission to legal consequences
The civil disobedients sincere conviction that the target of his action is an intolerable violation of societys shared principles is not by itself a sufficient defense for his noncompliance with the law. He must also pay some price to convince others that, upon reflection, his act of protest will be found to be well grounded in those principles. That price is the civil disobedients voluntary submission to the legal consequences of his action.

By accepting punishment for his action, and often risking other serious consequences as well, the civil disobedient answers the objection that his illegal protest does more harm than good because it encourages others to disregard the law and behave in an uncivil manner. The civil disobedient thereby demonstrates that he is not an outlaw and instead affirms membership in the democratic community. His actions express a strong commitment to the fundamentals of the democratic political order as well as respect for fellow citizens and trust that they share a similarly strong commitment. The risk of suffering serious legal consequences also eliminates any unfair advantage that the civil disobedient might derive from breaking the law and shows that his claim about the magnitude of the wrong he protests is not mere rationalization of self-interest. Those whose interests are jeopardized by the act of civil disobedience are less likely to feel frustrated, resentful, and insecure when they realize that the one who appears to threaten them is willing to pay an even greater price to stand up for his convictions.

Willing submission to legal consequences does not preclude the civil disobedients mounting a defense against charges brought against him in court. Declining to do so would usually deprive him of an important platform from which to alert fellow citizens to the serious wrong he seeks to protest, thereby defeating the purpose of his actions. However, the civil disobedient acknowledges the appropriateness of punishment for his action if upon reflection it is determined not to be well grounded in societys shared principles. This does not mean that the civil disobedient should ever be dealt with as an ordinary criminal. Even when fellow citizens conclude that the civil disobedient is mistaken about what their shared principles require, they should still appreciate his efforts to alert them to what he perceived as a serious violation of those principles. On the other hand, even when they agree about the magnitude of the wrong that he is protesting, some token punishment may still be required to safeguard general respect for the law.

Substantial and persistent wrong
The civil disobedient expects his fellow citizens to agree that his conduct, though illegal, has nevertheless been justified by the pressing need to bring to their attention a serious wrong. He attempts to persuade fellow citizens that they have mistakenly tolerated a wrong to which free and equal persons should not reasonably be expected to submit for long. But an otherwise justified act of civil disobedience might still prove unjustified if engaging in it would lead to serious damage to the democratic political order. There is only so much civil disobedience that the public can be expected to handle before losing all respect for the law. If a group engages in civil disobedience too frequently, or if too many different groups disobey within a short time, there is a danger that their message will become distorted and their appeal to shared principles misconstrued. To guard against this, civil disobedience should usually be reserved for use against substantial and persistent wrongs, preferably those that block efforts to remedy other wrongs by normal means.

Shared principles
Civil disobedience is a political act not simply because it is addressed to those who hold political power. More importantly, it is justified not by appeal to personal morality or private interest but by appeal to the mutually accepted principles by which citizens of a democratic society organize their political affairs. Operating within the bounds of fidelity to law, civil disobedience presupposes respect for the rule of law and the other principles that regulate democratic society as a system of cooperation among free and equal persons.

Civil disobedience involves an appeal against specific perceived wrongs to societys more fundamental commitment to democratic principles. The presumption is that, although substantial wrongs may indeed occur, there is agreement that society ought to live up to certain publicly recognized principles that regulate the ways free and equal persons are to live together. There need not be complete consensus on these principles, so long as there is sufficient overlap among competing understandings as to lead members of society to similar political judgments. Members of a democratic society are entitled to expect that each will always make good faith efforts to apply their shared principles consistently. The civil disobedient is therefore confident that once fellow citizens appreciate the magnitude of the violation of their principles, they will agree that it requires urgent remedy.

Reasonable efforts at normal protest
Civil disobedience is an extraordinary political action. As such, there is a presumption against civil disobedience until good faith efforts at legal means of protest are no longer likely to succeed. However, legal means do not have to be exhausted before civil disobedience can be justified. People may reasonably disagree over the adequacy of efforts to get normal political redress and how long and at what cost they must continue before such efforts can be declared unsuccessful and disobedience warranted. Also, there may be circumstances in which civil disobedience is less harmful than certain kinds of lawful action, such as strikes or boycotts. In such cases, it would be improper to insist on these legal means of protest rather than resort to civil disobedience. In any event, it is always possible after engaging in civil disobedience to resume normal political opposition. Moreover, even in a democratic society there can be wrongs that are so egregious that it is unreasonable to insist on legal means of political opposition before one may resort to illegal means. But in such circumstances, we must seriously consider whether the democratic structure of society has broken down to such an extent that civil disobedience is no longer appropriate and more radical action is required instead.

Part II of this paper will be posted next week. It discusses how civil disobedience is relevant to Malaysia (Singapore) and how it can be applied. Watch this space.

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