A Contextual Approach to Disobedience
Edmund Burke once noted that the rebelliousness of colonial America was largely a consequence of the size and prominence of the legal profession, under whose influence the people "snuff the approach of tyranny in every tainted breeze." Today, however, most members of the legal profession take a much dimmer view of civil disobedience, although some do acknowledge its justification in special circumstances. Few who write on the subject recognize that in making judgments about the morality of disobedient acts the lawyer's perspective is limited.
Disputes over whether an illegal action is morally justified in a particular instance can be conceptually reduced to four basic areas of disagreement. 1. Is the disobedient act committed pursuant to a goal which is considered desirable and sufficiently important? One might condemn an illegal act to promote racial segregation on the ground that no efforts toward that end are morally defensible. Massive dislocation to improve food in the college cafeteria might be rejected because the goal, though desirable, is not very important. 2. What are the probable effects of disobedience? This is theoretically a factual inquiry, although the relevant "facts" may be unascertainable and highly complex. It encompasses both an inquiry into the likelihood that the actor's goal will be achieved and an examination of other possible effects of the act. 3. Are the probable effects desirable? If particular consequences are predictable, one may think them good or bad. This evaluation will be particularly difficult if one value, such as equality, is promoted at the expense of another, for example security. And if among many consequences some are considered desirable and others undesirable, their respective importance must be weighed. 4. Is obedience to la* a moral claim on individuals that overrides moral claims in favor of disobedience? The thesis of this discussion, in large part, is that the answer to the last question depends on answers given to questions 2 and 3. Others, however, may believe it to be an independent inquiry. Indeed one possible position is that this is the only necessary inquiry; if one is always morally obligated to obey the law, goals and probable effects are irrelevant. Few, I think, would take this position upon serious reflection.
Questions involving values are ones to which human reason can provide no final answers, and the "factual" inquiries involved in determining possible effects of disobedience are too complex for social science to give confident responses. Despite these difficulties, the second question is one with which the social scientist is best equipped to deal. The other three are most closely within the domain of the social and moral philosopher. Certainly no discipline has a monopoly on relevant truth or understanding in these areas. Although these inquiries are not central to his professional training, a lawyer is used to weighing values and making judgments about complex social facts. But that is hardly enough to justify the sublime confidence with which some members of the bar pontificate on the subject. Lawyers would do well to recognize that when they do discuss this topic, they are stepping beyond the narrow area of their particular professional competence. They should also be aware of the possibility that vocational commitment to the law is double-edged. At the same time it enriches comprehension of conflict management and the worth of orderly process, it may lead to a partial view of the relative importance of observance of legal norms as opposed to other social values.
In this essay, I first suggest an unoriginal criterion for determining when disobedience of law is morally justified, one that is based upon the probable consequences of the disobedient act. This leads me to reject the conclusion advanced by some commentators that certain conditions, such as nonviolence and a willingness to be punished, are always essential if illegal behavior is to be justified. I then try to demonstrate why such factors are relevant, and often determinative, for justification. The application of the criteria advanced to specific disobedient acts does not produce simple answers to questions of moral justification. But simplicity of application, whatever may be its importance for legal norms, is not, in my view, a necessary hallmark of a principle of moral judgment.
Law | Law and Philosophy
A Contextual Approach to Disobedience,
Colum. L. Rev.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/78