Benjamin Studebaker

When civil disobedience comes up, we often think of Gandhi, King, Mandela, men who are heroes to many and who fought great injustices. However, it must be recognised that civil disobedience is a tool and not an end in itself–it can be used for bad as well as good. So how does one determine when it is ethically permissible to use civil disobedience? It is a question the answers to which I frequently find unsatisfactory, so today I will attempt to unpack it myself.

Firstly, let us clarify, for our purposes here, what we take civil disobedience to be. Civil disobedience is deliberately disobeying a law, edict, or other government directive so as to undermine the law’s legitimacy and see it changed. This interpretation naturally leads us to the concept of legitimacy and of what makes a law legitimate.

There are two predominant views of what makes a law legitimate:

1. Process Legitimacy–a law is legitimate if it was made by what we take to be a fair process.
2. Outcome Legitimacy–a law is legitimate if it produces good consequences and leads to a good outcome.

Let us discuss each in turn.

Process Legitimacy:

Process legitimacy is the more popular of the two views. Most process views take the democratic process to be the fair procedure against which others are judged, and claim that, if a law is enacted democratically, it is legitimate. However, it is possible for a law to be enacted democratically that is, on the face of it, extremely unjust. Say, for instance, that a democratic government chose to pass a law restoring segregation to the southern United States. This should, I hope, strike us as a profoundly unjust law. However, the law was enacted democratically, and so it nonetheless appears legitimate under a process view. So how would a process legitimacy view reconcile say, support for Martin Luther King’s civil disobedience against democratically enacted segregation when it seems to be holding the segregationist law to be legitimate? I see two possible moves:

1. A redefinition of what it means to have a democratic procedure to exclude segregationist laws.
2. The claim that some laws are so profoundly unjust that their injustice transcends their legitimate origins.

I accuse both of these arguments of being arbitrary.

The first move seems to be arguing that the definition of democracy can be expanded beyond a process by which political decisions are made and extended to an outcome. So, for instance, one might say that even though the decision was taken by what appears to be a free and fair vote, if the vote produces a law that violates the free and equal treatment of people, it is an undemocratic law. The trouble with this is that the argument could be made just as easily for any other kind of outcome that one prefers. One could just as easily argue that even though a decision was taken by what appears to be a free and fair vote, it violates property rights, and use civil disobedience to oppose income taxes on the same grounds, or claim that it violated the free love principle, and use civil disobedience to oppose laws against bestiality, there’s just no limit to what kinds of outcomes one could lump in as part of the democratic process under this thinking.

The second move does not seem to make any indication of where the line is drawn between a law that is profoundly unjust such that civil disobedience is acceptable and one that is everyday, run of the mill unjust. Like the first move, it’s appealing to the outcomes of the law (namely that it produces injustice). In the case of both moves, the process legitimacy view eventually abandons its first principle and admits that, if the outcome is unacceptable, civil disobedience is permitted. Both moves try to reconcile that view with a process view of legitimacy, and both views, I would argue, fail to do it. In the end, they both come around to an outcome view, whether they admit it or not. Under a true process view of legitimacy without any of this argumentative weaselling,  civil disobedience is unacceptable so long as the government producing the laws remains legitimate. Given that surely Martin Luther King’s civil disobedience was just despite the fact that the laws against which he demonstrated were democratic, I think the process view of legitimacy is worthy of dismissal. Let’s move to outcomes.

Outcome Legitimacy:

Under outcome legitimacy, a law is legitimate if it produces good consequences. The trouble for this view is the reverse of the problem for process views–while process views seem to declare a government of the right procedural type to be more or less infallible, an outcome view seems to permit civil disobedience whenever one personally feels a law to be unjust. Taken that way, outcome legitimacy would allow any law to be disobeyed by anyone provided that that person genuinely thought the law unjust. However, I would propose a revision of outcome legitimacy to correct for this problem.

Consider what one is saying when one uses civil disobedience. It is not merely to say that the law in question is unjust, but that the government that enacted the law enacted an unjust law. It is not merely the legitimacy of the law that is called into question, but the legitimacy of the state itself. In the process of undermining the legitimacy of the law, the state’s legitimacy is also undermined (which is why states react so very badly to civil disobedience). Consider that, of our big three, Gandhi, King, and Mandela, two of the three not only changed the law, they changed the state–the British were forced to grant India and Pakistan independence; the apartheid government in South Africa collapsed.

With this in mind, I propose an added responsibility be attached to the use of civil disobedience. It is not enough that the law in question be, in the view of the protester, illegitimate and unjust; the law must be sufficiently illegitimate and unjust that, if necessary, the protester would be willing to replace the government in order to see it changed. After all, it is not a simple thing to replace one’s government–one needs a credible alternative and one needs to recognise the potential for many people to be harmed in the process and nonetheless come to the conclusion that that harm would be justified by the achievement of the more just alternative. This puts up a large disincentive to the use of civil disobedience in trivial cases. The state must, on balance, be doing a bad job (either in absolute terms or comparatively to whatever one’s alternative would provide) for civil disobedience to be permissible. It is not enough that there is a mere law or two of trivial importance that one disagrees with.

I think that this view of when civil disobedience is acceptable and when it is not clarifies an issue on which there seems to be very little coherent, logically consistent theory. It also serves to illustrate why the process view of legitimacy is not very good in comparison with the outcome view. What do you think?