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Rawls and the Limits of Civil Disobedience

Article · January 2002

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 Rawls and the Limits of Nonviolent Civil Disobedience
RoIand Bleiker

One ofthe most influential sources of discussions about draw breath and have my faculties, I shall never stop
civil disobedience remains the practising philosophy and exhorting
American philosopher John Rawls. you and elucidating the truth for
In a major attempt to update liberal Rawls (1971) everyone that I meet' (Plato, 1969,
thought, he shifted attention from p. 61). The court sentenced
traditional utilitarian concerns to a defines civil Socrates to death. Against the
neo-Kantian resurrection of disobedience as 'a urging of Crito, Socrates refused
contract theory. Rawls' A Theory to escape and explicitly submitted
ofJustice, which appeared in public, nonviolent, himself to the judgement reached
1971, is widely considered to be conscientious yet by the duly established authority.
the most significant philosophical Socrates hence provided the
contribution to the reworking of political act precedent for a tradition of dissent
liberalism (Rosenblum, 1989, p. I; contrary to law that aims at resisting a specific
Sandel, 1984, p. 8). In the context authority, law, or policy considered
of this rethinking, Rawls also usually done with unjust, while at the same time
articulated a theory of civil the aim of bringing recognising the rulemaking
disobedience. Here too, Rawls' prerogative ofthe existing political
contribution is deemed path about a change in system as legitimate and generally
breaking. Hugo Adam Bedau the law or policies binding (van den Haag, 1972, pp.
(I 991) considers A Theory of 7-8).
Justice, 'the most influential of the government' Rawls clearly operates within
contemporary philosophical a Socratic tradition that accepts the
discussion on civil disobedience' existing system as the framework
(p. 4), a text which has, through its hegemonic position, within which civil disobedience takes place. The target
framed much ofthe subsequent discussion on the subject. is a change in particular laws or policies, rather than an
What exactly does Rawls mean by civil uprooting of the system as such:
disobedience? How far does his advocacy of dissent [A theory ofcivil disobedience] attempts to formulate
go? And what is his commitment to nonviolence? the grounds upon which legitimate democratic
Rawls (1971) defines civil disobedience as 'a authority may be dissented from in ways that while
public, nonviolent, conscientious yet political act contrary admittedly contrary to law nevertheless express a
to law usually done with the aim of bringing about a fidelity to law and appeal to the fundamental political
change in the law or policies of the government' (p. principles ofa democratic regime (Rawls, 1971 pp.
364). The most illuminating antecedent to Rawls' 385-386).
approach can perhaps be found in ancient Greek
philosophy. Directly relevant, although not explicitly Rawls' model ofcivil disobedience is applicable
acknowledged by Rawls, is the trial of Socrates as only in very specific circumstances, namely in a 'nearly
reconstructed by Plato. Socrates was accused of just society, one that is well-ordered for the most part
corrupting youth and using his abilities to pervert their but in which some serious violations of justice
loyalties to the rulers. Faced with the charge that he nevertheless do occur' (Rawls, 1971, p. 363). He speaks
'makes the weaker argument defeat the stronger, and of dissent only in the context of a democratic state in
teaches others to follow his example,' Socrates pleaded which citizens accept the overall legitimacy of the
innocent and refused to cease his practice even if the constitution. But Rawls is also more ambitious and tries
court were to decide against him (Plato, 1969, pp. 46- to transcend the parameters of a specific societal
47). Adhering to his moral duty to resist what he context. In his reformulation of liberalism and social
perceived as unjust practices, he proclaimed that 'I owe contract theory, he starts off from a hypothetical situation
a greater obedience to God than to you; and so long as I where the members of a society agree, prior to entering

. Social Alternatives Vol. 21.No. 2, Autumn 2002 ". 37

this society, on the fundamental principles ofjustice that presented from the outset as a political conception of
govern their subsequent interactions. A crucial aspect justice' (1993, p. xvii).
ofthis hypothetical original position is that no one knows The practice of nonviolent civil disobedience is
'his' particular place in society. Behind this so called intrinsically linked to this often unpronounced political
'veil of ignorance', free, equal and rational 'men' agenda. But the liberal framework within which all these
establish the fundamental principles that are to become dynamics take place is itselfa site ofpolitical contestation.
the framework within which societal interactions are Cracks are being spotted in various pillars ofthe liberal
regulated (Rawls, 1971, pp. 3-53). How hypothetical is edifice. Susan Mendus (1989) discovers them in the
this Rawlsian idea of justice as limitations imposed on the
fairness? What are the limits of important liberal concept of
dissent within this arrangement
While giving the
toleration; Isaiah Berlin (1969, pp.
among free 'men'? appearance of 118-172) in the often antagonistic
The injustice of a law does radical dissent, relationship between passive and
not in itselfprovide enough reason nonviolent civil active liberty; and Noberto Bobbio
to engage in justified nonviolent (1990/1988) in the problematic
resistance. Rawls reminds the
disobedience is a interaction between liberalism and
overenthusiastic activist that reformist practice democracy. More radical critiques
'when the basic structure of that often are, of course, equally abundant.
society is reasonably just, as strengthens the We know of Nietzsche's remark
estimated by what the current that liberal institutions cease to be
state of things allows, we are to existing societal liberal as soon as they are
recognise unjust laws as binding order established, and as a result 'there
provided that they do not exceed is nothing more wicked and,
certain limits of injustice' (1971, harmful to freedom than liberal
p. 353). Nonviolent civil disobedience only becomes an institutions' (1889/1969, p. 133). Herbert Marcuse talked
option when violations ofjustice exceed these limits. It of the 'comfortable, smooth, reasonable, democratic
then is an act through which a minority appeals to a unfreedom [that] prevails in advanced industrial
majority, to reconsider a particular issue within the limited civilisation' (1964/1969, p. I). And Foucault (1975) went
context of an existing constitution, and a commonly to great lengths to demonstrate that on a subtle and silent
shared perception of rights and duties. level, liberal societies are more repressive than
Unpronounced questions abound in this approach authoritarian ones. It is not my task here to weigh these
to civil disobedience. When do violations of justice often polemical accusations against the liberal ideas and
exceed the limits that legitimise acts ofnonviolent civil practices that have given rise to them. Suspending a
disobedience? Who is to judge? And what precisely are value judgement on the actual content ofliberal thought,
the hypothetical and commonly shared assumptions that I merely want to point out that liberalism is a contested
provide the framework.within which claims expressed discourse and in constant need oflegitimisation.
through civil disobedience are settled? Rawls' concept Much of the burgeoning literature that emerged
ofjustice as fairness is not quite as hypothetical as the parallel to, and in the wake of, Rawls' influential
'veil ofignorance' first suggests. He reveals his political contribution to civil disobedience is part of a self-
agenda at various points. Civil disobedience, Rawls defensive creation ofliberallegitimacy. Nonviolent civil
argues, becomes necessary when 'the conditions offree disobedience can undoubtedly resist some forms of
cooperation are being violated' and its application domination. It may be powerful enough to destabilise or
expresses the fidelity to 'the fundamental political even bring down a government. But in the end civil
principles ofa democratic regime' (1971, pp. 382-383, disobedience is bound to entrench the larger liberal status
385-386). quo. This implied task is clearly recognisable in the
Rawls' hypothetically derived and commonly relevant literature. Michael Walzer (1970), for example,
shared assumptions are liberal assumptions. His facts describes civil disobedience as 'a nonrevolutionary
are liberal facts. Not even the 'veil of ignorance' can encounter with the state' which does not challenge the
cover the underlying political agenda of the original legitimacy of the existing order (p. 24). For Hannah
position. Two decades after the appearance of A Theory Arendt 'the civil disobedient accepts, while the
0.1 Justice, Rawls himself acknowledges its hidden revolutionary rejects, the frame ofestablished authority
political dimension. In recent writings on political and the general legitimacy ofthe system oflaws' (1972,
liberalism, he readily admits that the ambiguity of his p.77).
earlier text 'is now removed and justice as fairness is While giving the appearance of radical dissent,

38 Social Alternatives Vol. 21 No. 2, Autumn 2002

nonviolent civil disobedience is a reformist practice that the Cold War, what precisely is it and how does it deal
often strengthens the existing societal order. In being with popular dissent?
tolerated only as long as the liberal constitutional With the slightest scratch beneath the surface,
framework is not disputed, civil disobedience refuses to one discovers that Fukuyama's new liberalism is less a
question the values of its own political foundations. In political and economic doctrine that optimises the sphere
this sense, civil disobedience has lost most ofthe meaning ofindividual freedom, than a governmental practice that
that Thoreau's famous essay originally bestowed upon actively promotes and defends a very specific 'form of
it. This narrowing down of dissent life' to the detriment of other social
also demonstrates that in a liberal- practices. Or so claim an increasing
democratic context, granting and number of scholars that conduct
withdrawing popular consent only The image of research, convincingly one should
works in a very restricted way. The human agency add, in the wake ofFoucault's work
allocation ofconsent is usually given on governmentality (1978/1991, pp.
periodically to the legislative entailed in liberal 1-52,87-104; see also Dean, 1991,
element ofthe state, leaving largely civil disobedience pp. 11-15; Hindess, 1993, pp. 300-
untouched its vast remaining 313). Liberalism, for them, is a
components, such as the incarnates the method ofdiscursive domination and
bureaucracy, the police, the army, modern obsession active governmental intervention,
and the more subtle discursive designed to defend existing political
mechanisms that provide what with control, the practices (constructed around such
Gramsci called 'hegemonic desire for order, key values as individual autonomy
leadership'. Likewise, the and free market competition),
withdrawal of consent via civil for certainty against possible threats from
disobedience is limited to a mere subversive alternatives (stemming,
challenging of individual laws or for example, from perceptions of
policies that may not be compatible with the generally rights that are active, collective or linked to radical
recognised leitmotift of the existing legal system. economic redistribution).
Overwhelmingly, the rest ofthe State apparatus remains The concept ofnonviolent civil disobedience is highly
unchallenged by this liberal version of withdrawing useful to uphold this modern practice of control, for its
consent. appearance of dissent provides the liberal system with
The image of human agency entailed in liberal greater legitimacy. While it may challenge some laws,
civil disobedience incarnates the modern obsession with policies Or even bring down a government, liberal civil
control, the desire for order, for certainty, and for disobedience does not by definition threaten to erode
essences that provide a stable background against which the foundations of the liberal order. But the illusion of
moral norms can be established and idiosyncrasies of radical dissent it evokes gives the impression that a real
life can be assessed. The vacuum that occurred with challenge to the system was subsequently overcome by
the death of God is now filled by an unbounded trust in the superiority of the status quo.
the liberal edifice and the universalising narrative upon Dissent is tolerated in direct relation to a liberal
which it is based. Hence, all claims to social change society's capacity to absorb it. If a subversive idea poses
have to be evaluated in relation to this new Archimedean a threat to the existing order, it is classified as 'Other'
point. The modern quest for certainty and stable and treated as irrelevant, dangerous or in need of
foundations is still alive and has, ifanything, intensified extermination. This is the case, for example, when
in the post-Cold War period. Francis Fukuyama's (1989) Fukuyama elevates liberalism to the one and only source
influential voice professes that now, with the demise not oflegitimacy and argues that 'it matters very little what
only of fascism but also of communism, liberal strange thoughts occur to people in Albania or Burkina
democracy is Once and for all the superior and universally Faso, for we are interested in what one could in some
recognised ideology. History came to an end, he hails, sense call the common ideological heritage ofmankind'
for there are no more fundamental contradictions that (1989, p. 9). There is only limited scope for dissent within
cannot be solved within the liberal framework (p. 3-18). such a presupposed universal frame ofreference. Rawls'
One could easily take issue with Fukuyama's teleology theory of civil disobedience was within this scope. It
or with his distorted use of Hegel. Yet, one must was quickly elevated to a liberal piece ofwisdom, for its
acknowledge that his polemical remarks express a controllable notion of dissent was compatible with
widespread and powerful attitude within the Western generally accepted ideas of freedom and justice. But
world. Ifliberalism has indeed emerged victorious from hostility arises as soon as practices of dissent transgress

Social Alternatives Vol. 21-No. 2, Autumn 2002 39

 existing levels of tolerance and start to challenge the Author
foundations of the established political and social order. Roland Bleiker, a member of the SocialAlternatives advisory
These levels ofhostility are the boundaries ofnonviolent board, is Co-Director ofthe University ofQueensland's Rotary
civil disobedience. Centre for International Studies in Peace and Conflict
Resolution. His recent publications include a monograph
entitled PopularDissent, Human AgencyandGlobalPolilics
References
(Cambridge University Press, 2000); a special edited issue of
Arendt, H. (1972). Crises ofthe republic. New York:
Alternatives entitled 'Poetic World Politics' (VO!. 25, No. 3,
Harcourt Brace Jovanovich. 2000); and a guest·edited issue of SOCIalAllemaliverentitled
Bedau, H. A., ed., (1991). Civil disobedience injOcus. 'Painting Politics' (VO!. 20, No. 4, 2001). He can be reached at
London: Routledge. [email protected]
Berlin, I. (1969). Four essays on liberty. Oxford:
Oxford University Press.
Bobbio, N. (1990/1988). liberalism and democracy.
(tr. M. Ryle & K. Soper). London: Verso.
Dean, M. (1991). The Constitution o/poverty: Towards
a genealogy of liberal governance. London:
Routledge. Press Picture Outside Mazar-E-Sharif:
Foucault, M. (1975). Survei/ler et punir: Naissance RamadpD 2001
de la prison. Paris: Gallimard.
Foucault, M. (1978/1991). Govemmentality, in Burchell, Reminds me 0/ a brother
G. et al. (Ed.). The Foucault effict: Studies in highschool age. kit/ed out jOr cadets
governmentality. London: Harvester Wheatsheaf. un(lOrm too large. smiling jOr mother s box
Fukuyama, F. (1989, Summer). The End ofHistory? The brownie.
National Interest..
van den Haag, E. (1972). Political violence and civil This lad overloaded with war gear, smiles
disobedience. New York: Harper Torchbooks. easy, eyes crinkled against morning light
Hindess, B. (1993). Liberalism, socialism and or the cold of winter's first coming.
Democracy. Economy and Society. V22.2, August.
Marcuse, H. (1964/1969). One·dimensional man: Did he hope the flowers stuffing his gun
Studies in the ideology of advanced industrial barrel
society. Boston: Beacon Press. might speak for peace in a holy time, more
Mendus, S. (1989). Toleration and the limits of eloquent than the commands of grey men
liberalism. London: Macmillan.
Nietzsche, F. (1889/1969). Gotzen·diimmerung. Berlin: in grey suits demanding, from safety of
Waiter de Gruyter. podiums in far·away cities, an eye for an eye
Plato (1969). The lqst days of Socrates (tr. H. limb for a limb (how many eyes, how many limbs)
Tredennick). London: Penguin Books.
Rawls, J. (1971). A theory ofjustice. Cambridge, MA: Or was it that being young, still happy with life,
Harvard University Press. he plucked wildroses, herbs, for simple pleasure
Rawls, J. (1993). Polilica! liberalism. New York: from beside a road, clamorous with death
Columbia University Press.
Rosenblum, N. L., ed. (1989). liberalism andthe moral the long road to mazar·e·Sharif.
lift· Cambridge, MA: Harvard University Press.
Sandel, M., ed. (1984). liberalism andits critics. New NICOLAKNOX
York: New York University Press.
Walzer, M. (1970). Obligations: Essays on
disobedience, war, and citizenship. Cambridge,
MA: Harvard University Press.

40 Social Alternatives Vol. 21 No. 2, Autumn 2002

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