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Published online by Cambridge University Press: 01 January 2020
Since its appearance in 1971, John Rawls’ A Theory of justice has attracted much critical attention. Most of this attention has inevitably centred on the two principles of justice for institutions and on their derivation from the original position. This paper will examine a part of the system which has not yet received such close scrutiny — Rawls’ theory of political obligation in general and civil disobedience in particular. My main aim is to understand this theory, since there are crucial respects in which it is undeveloped. But I shall also along the way comment on its possibilities; these comments will for the most part take the form of comparisons with its utilitarian rival.
In what follows I shall not confine myself to the material in Rawls’ book, but rather use the appearance of the book as an opportunity to review the development of the theory of political obligation since “Justice as Fairness”. When one surveys the period bounded by that initial paper and by the book, certain patterns form.
An earlier and much shorter version of this paper was read in Toronto in 1973. l would like to thank my commentator on that occasion, Harold White, for his helpful remarks. I have also profited from discussions with Michael Neumann and David Gauthier.
1 The only study of this topic of which I am aware is Feinberg, Joel's “Duty and Obligation in the Non-ideal World”, journal of Philosophy, Vol. LXX, No.9 (May 10, 1973).Google Scholar This piece, while illuminating in many respects, does not touch at all on some of the issues which I raise in the sequel and furthermore (I shall be contending) misinterprets Rawls on some key points.
2 I shall be using the following four items as the basis of my discussion: “Justice as Fairness”, Philosophical Review, Vol. LXVII, No.2 (April 1958), reprinted (and slightly revised) in Bedau, Hugo A., ed., justice and Equality (Englewood Cliffs: Prentice-Hall, 1971);Google Scholar “legal Obligation and the Duty of Fair Play”, in Hook, Sidney, ed., Law and Philosophy (New York: New York University Press, 1964);Google Scholar “The justification of Civil Disobedience”, in Bedau, Hugo A., ed., Civil Disobedience: Theory and Practice (New York: Pegasus, 1969)Google Scholar;A Theory of justice (Cambridge: Harvard University Press, 1971). Henceforth these works will be abbreviated as JF, LO, JCD, and TJ respectively. References to JF are to the reprinted edition.
3 The ideal of a minimal definition (and its content) is adapted from Hall, Robert T., The Morality of Civil Disobedience (New York: Harper & Row, 1971), pp. 13-28.Google Scholar See also Cohen, Carl, Civil Disobedience: Conscience, Tactics,and the Law (New York: Columbia University Press, 1971)Google Scholar, chs. 1 and 2. Cohen, however, includes publicity as a defining property (pp. 16-22).
4 For a useful discussion of varieties of civil disobedience, see Cohen, op. cit., ch. 3.
5 For a fuller discussion of the dangers of narrower definitions see Hall, op. cit., pp. 15-17. See also Zinn, Howard's critique of Fortas in Disobedience and Democracy: Nine Fallacies on Law and Order (New York: Vintage, 1968).Google Scholar
6 JCO, 240; TJ, 351, 363, 382.
7 TJ, 389. Rawls has argued that citizens in a constitutional democracy are normally required to obey an unjust law (JCO, 243ff; see also LO, 5-12).
8 TJ, 364; cf. JCO, 246.
9 TJ, 368.
10 TJ, 368. Rawls himself notes the anomalous treatment of Thoreau.
11 TJ, 367; cf. JCD, 249.
12 Rawls nowhere sets out his classification of the various forms of (what I have called) resistance, nor is it clear how he wishes to order them in terms of their 'seriousness', i.e., the strength of justification needed. Immediately prior to the passage quoted he locates civil disobedience “between legal protest and the raising of test cases on the one side, and conscientious refusal and the various forms of resistance on the other”. Among the latter he distinguishes (without further elaboration) among “militant action”, “obstruction”, and “forcible resistance” (cf. TJ, 363, 366). This passage appears to imply that civil disobedience is more easily justified than conscientious refusal. Yet later one of the conditions for the justification of civil disobedience (that legal means have been tried) is explicitly relaxed for conscientious refusal (TJ. 371). These obscurities will not be dispelled until Rawls offers us a general theory of resistance.
13 For a fuller argument against defining civil disobedience as nonviolent, see Cohen, op. cit., pp. 22-36. Cohen himself once favoured such a definition.
14 TJ, 365 (cf. /CD, 246).
15 Ibid.
16 TJ, 366-7; /CD. 247-8.
17 TJ. 369.
18 I am not entirely confident that I have interpreted Rawls correctly on this issue. I have assumed that he means that in a constitutional democracy the majority will share Some conception of justice which will “underlie the political order” (for the notion of a conception of justice see TJ, 5, 10), but that the shared conception need not be that defined by the principles of justice so long as it is “reasonable”. I base this interpretation on the discussion at TJ. 352. A counterexample must therefore be quite clearly (preferably paradigmatically) a case of civil disobedience. but one in which the protesters do not share the majority's conception of justice. Thus the case which I cited. But Rawls may have in mind an even stronger condition. The nearly just society is such in virtue of its measuring up reasonably well against the principles of justice. Rawls may mean that in such a society (which is the only one he discusses)the majority's shared conception of justice is that defined by the two principles (this is clearly presupposed at JCD. 247). In that case the counterexample fails since the majority (presumably) possesses the wrong shared conception. But if this is what is meant then civil disobedience could be undertaken by definition only on the basis of Rawls’ principles of justice. And that would be an even narrower definition than the one with which I have credited Rawls in the text.
19 TJ, 11. Rawls considers these three figures as “definitive of the contract tradition” (TJ, 11n.). For the moment I shall treat Locke as the definitive source; I shall have something to say below about the relationship between his theory and that of Rousseau and Kant (and Rawls).
20 Locke, John, The Second Treatise of Government. edited by J. W., Gough. Third Edition (Oxford: Basil Blackwell, 1966).Google Scholar paragraph 95. All quotations in the text are from this edition. References are given hereafter in the form ST. 95. where the numeral refers to the numbered paragraph of the Second Treatise.
21 ST, 124. For the insecurities of the state of nature see 16-21. 124-127. For the broad sense of property see 123. 173.
22 ST, 116. For the more historical passages, see 14-15. 99ff.
23 ST, 95-97.
24 ST, 97. Cf. 95, 96, 98.
25 ST, 212. There are surprisingly few passages in the SecondTreatise which explicitly state that the government is established by the majority. Given what Locke says about the necessity of a society being “concluded by the majority“ (ST, 96), and his distinction between society (established by unanimous consent and capable of enduring changes of government) and government (ST, 211), it could be constituted in no other manner.
26 ST, 197-198, 212ff.
27 ST. 6. Cf. 12, 57.
28 ST. 131. Cf. 23.
29 ST. 134. Ct. 135ff.
30 ST, 199-210, 221ff.
31 ST, 14.
32 ST, 211ff.
33 Locke seems to recognize the right of individuals to resist laws (applied to them) which exceed the authority of the government (i.e., violate the natural law) at ST, 203-208.
34 The theory could be equivalently expressed in the following way: there are no limits to the terms to which the individual may agree, but whether he is obligated to keep his agreement will be determined by the natural law. The natural law in Locke's theory must either constrain the terms of the contract or the circumstances in which it is binding; which it does seems a matter of indifference. There is an excellent discussion of Locke in Pitkin, Hannah, “Obligation and Consent”, American Political Science Review, Vol. LIX, No.4 (December 1965)Google Scholar and Vol. LX, No. 1 (March 1966). She argues persuasively that Locke's theory turns in the final analysis not on consent but on the natural law: the government is to be obeyed so long as it does not violate natural law. The present discussion tends to the same conclusion.
35 For a useful survey of the tradition see Gough, J. W., The Social Contract: A Critical Study of its Development, Second Edition (Oxford: Clarendon Press, 1957).Google Scholar
36 I have added the qualification because in the medieval tradition the role of the individual was generally subordinated to the role of the corporation or the people as a whole. See Gough, op. cit., chs. 3 and 4.
37 ST, 119. Cf. 120-122.
38 St, 130. I know of no other passage in which the requirement of consent is similarly dropped.
39 For a chronological list of these discussions, see above, note 2.
40 TJ, 111.
41 TJ, 111-115. Cf. LO, 4; JCD, 241.
42 For convenience I shall continue to use ‘political obligation’ in a neutral, noncommittal sense. When Rawls’ stricter sense of obligation is in question it will be specially indicated.
43 TJ, 111-112. CF. JF, 89, 93; LO, 9-10; JCD, 241, 243; TJ, 342-343.
44 LO, 9. Cf. LO, 10, 17; JCD, 241, 243.
45 Rawls is quite aware that this is a departure from the tradition. See JF, 89-90.
46 Rawls offers no systematic treatment of revolution. It is, however, clear from his scattered remarks that he regards it as sometimes justified in opposition to an unjust state (see, e.g., JCD. 248).
47 LO, 9. Cf. JCD, 245.
48 Nozick, Robert, Anarchy, State, and Utopia (New York: Basic Books, 1974), p. 95.Google ScholarNozick's criticism of the principle of fairness occupies pp. 90-95. I have argued elsewhere against the principle that it is unnecessarily strict in prohibiting all forms of free ridership; see “Cooperation, Fairness and Utility”, journal of Value Inquiry, Vol. V, No.2 (Spring, 1971).
49 Ibid.
50 If Nozick is right, however, it can also lead to the minimal state.
51 See TJ, 13, 113-114, 116, 335-337, 344, 376-377.
52 See LO. 3. 6-7. 13-15, 18.
53 See LO. 15.
54 TJ, 115.
55 Ibid.
56 TJ, 371-376. Cf. JCD, 248-252. The corresponding conditions in the earlier position may be found in LO, 14-15.
57 TJ, 371.
58 TJ. 371, 375-76.
59 TJ, 376.
60 I owe this case to Michael Neumann.
61 TJ, 374.
62 TJ, 363.
63 TJ’ 108-109.
64 TJ, 341. Cf. TJ. 340.
65 Ibid.
66 TJ. 340
67 TJ. 351.
68 TJ. 352.
69 TJ, 296.
70 Feinberg accepts this interpretation of the later theory. See op. cit., 270-271.
71 TJ, 115.
72 TJ, 334.
73 TJ, 335.
74 For other passages in which one or another of these injunctions appears, see JCD, 241, 243, 245; TJ, 110, 218, 289, 293, 313, 354, 380, 383, 474.
75 TJ, 197-198.
76 TJ, 221, 296.
77 TJ, 350ff.
78 TJ, 383 Cf. TJ, 384.
79 This view may be what Rawls means at TJ, 354: “In a state of near justice, then, we normally have a duty to comply with unjust laws in virtue of our duty of support a just constitution.” This passage is, however, an excellent example of his ambiguity. It can be read to mean either (a) our duty of justice always requires compliance and normally is not overridden (first interpretation), or (b) our duty of justice normally requires compliance, though not always (second interpretation).
80 TJ, 371, 382ff.
81 Rawls says of the principles of justice that “the conception defined by these principles is not that of maximizing anything, except in the vacuous sense of best meeting the requirements of justice, all things considered” (TJ, 211). In that context he is contrasting the principle of equal liberty with the principle of utility; behind his remarks lies the important distinction between aggregative and distributive principles. Similarly, the sense in which the natural duty of justice requires individuals to ‘maximize justice’ may be trivial, since it enjoins them to aim at the state of affairs “best meeting the requirements of justice, all things considered”. However, the notion of maximization itself requires no more than that alternatives be ranked by some formula in such a way that it makes sense to say that higher ranked alternatives have more of some x (or are more x) than lower ranked alternatives. It is in this sense (not clearly trivial) that both the natural duty of justice and the principle of utility are maximizing principles.
82 TJ, 246. Cf. TJ, 303, 352.
83 Feinberg defends the view that Rawls’ theory is properly described as a “rule contractarianism” (op. cit. 268ff.). I think this characterization unfortunate for two reasons. First, whether and in what sense Rawls’ theory is contractarian is an issue not directly relevant here; it is a matter of the derivation of his principle, not of its content (the issue is discussed in the next section). Second, Feinberg's view rests upon his adoption of what I have called in the text the first interpretation of Rawls’ principle. Even within this interpretation it seems to me that he has confused the act-rule distinction with the conflict between natural duties which that interpretation entails. At any rate, the second interpretation (if it is acceptable) clearly shows that Rawls has developed an analogue to an act utilitarian principle.
84 TJ, 17-22, 120. I ignore here the extent to which the original position is so constructed as to yield only Rawls’ principles. Cf. TJ, 166.
85 For a useful discussion of the ‘bargaining problem’ and some solutions to it see Sen, Amartya K., Collective Choice and Social Welfare (San Francisco: HoldenDay, 1970),Google Scholar Ch. 8.
86 Rawls of course recognizes this; see TJ, 139, 530.
87 TJ. 587.
88 JF, 81, 83. Emphasis in original.
89 See TJ, 12, 167.
90 TJ. 180.
91 See TJ, 251-257, 264.
92 TJ, 256. Emphasis added.
93 I interpret much of Part Ill of Rawls’ book as being devoted to these enterprises.
94 TJ, 142ff.
95 For an outline of the contract theories of Rousseau and Kant, see Gough, op. cit., Ch. 11. Hannah Pitkin (op. cit., 996) has argued that in Locke's theory as well the notion of what one has in fact consented to is in the final analysis subordinated to the notion of what one may (consistent with the law of nature) consent to. I believe this interpretation to be correct, and it narrows the gap between Locke and his idealist successors.
96 TJ, 252.
