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What are the conditions, if any, that would justify the use of violence to oppose an unjust legal system?
Introduction
Political resistance continues to manifest in different forms and to varying degrees throughout the modern age. Despite its critics, civil disobedience has generally come to be considered a permissible mode of resistance. The philosophical debate that I seek to engage centers on the distinctly more controversial question of whether the use of violence for political purposes, objectively considered an extremity of disobedience, is ever morally justifiable within an unjust legal system.
Violence is prima facie a wrong and a source of evil. Employing violence as part of a political maneuver is demonstrably more prone to cause consequences for protestors as well as the broader society when compared to other modes of resistance, hence its wide condemnation amongst scholars and activists. Those who oppose the use of violence have offered much credible support for its absence in the course of disobedience. However, I challenge the attitude which supports the complete proscription of violence as neglecting the legitimate potential of a moral justification arising for it under extreme circumstances, albeit infrequently. To frame my response, this paper shall be divided into three sections.
It is necessary that first I examine what gives rise to law’s authority as our attitude towards the permissibility of disobedience will be dependent on the school of thought to which we attribute ourselves. By comparing the merits of Social Contract Theory, as it is referenced by Socrates in Plato’s Crito, with that of Raz’s Normal Justification Thesis, I shall be arguing that the latter thesis offers us the most satisfactory basis for obedience.
Secondly, I shall be defending the position that civil disobedience is justifiable, drawing on the works of Henry David Thoreau, Martin Luther King, Rawls, and Greenwalt. I shall also be considering arguments surrounding the influence that the rule of law and democracy may have over this philosophy. Ultimately, their purported ability to render non-violent resistance unjustifiable will be rejected. This will provide the foundation for a critical analysis of the more heavily contended and central issue of violent protest.
The final section shall concentrate on my primary contention for this paper, that violence to oppose an unjust legal system can be justified when consistent with four principle conditions; (a) There is reasonable belief that violent resistance will be effective and non-violent resistance will be ineffective at changing the law, (b) There is reasonable belief that violence will result in a lesser evil, (c) The violent resistance is strictly directed at the ‘forces’ and (d) There is a willingness to accept punishment unless the subject is reacting to violent oppression. Failure to adhere to these conditions would create a context in which any moral justification said to arise for violence is negated.
I) The authority of law
An individual’s willingness to resist the law will depend on their philosophy of what gives the law authority. In the foundational work of Plato’s Crito, Socrates subscribes to the Social Contract Theory. The theory is premised on civil society and government emerging from a state of nature through a social contract in which people relinquish their natural rights to property and liberty over to the state, which becomes responsible for protecting and enforcing these rights. The exchange requires society to strictly obey the authority of the state where it is successful in protecting society’s natural rights, thus forming the basis for a legitimate government. Here, Socrates believed that wronging the state, although its laws may be unjust, is itself an injustice that should be mitigated by compliance. Furthermore, Socrates argued that a state could not function unless people respected the law, as the refusal of citizens to obey laws that they find unjust could result in societal chaos. Whilst this claim holds an element of validity, it lacks the flexibility to account for conditions which, if satisfied, may justify disobedience and the use of violence thereafter, as shall be argued throughout this essay.
In Plato’s earlier work Minos, we are presented with the argument that laws are binding as a collective; one has no right to accept some whilst rejecting others. It provides us with an insight into how Socrates may react to substantively unjust laws from a different angle to that taken in Crito. Socrates would demonstrate a healthy skepticism towards evil resolutions, at least considering them a different kind of law to good resolutions. Crito and Minos offer, to some extent, a contrast in Socrates’ attitude towards the obligation to obey the law. Crito suggests that the obligation to obey is absolute. Law should not be resisted where the state upholds its end of the social contract. On the other hand, we can interpret from Minos that there may be a threshold for law’s substantive unjustness which, if exceeded, rescinds the obligation to obey. Despite their differences, it can confidently be deduced that Plato generally submits a strong obligation to obey the law.
On the other hand, Raz in ‘The Authority of Law’ proposed his Normal Justification Thesis which offers both a clearer and sounder way of navigating our obligation to obey the law. This thesis expresses the notion that law claims authority and presents itself as a directive on how to act. Ultimately, its purpose is to facilitate the welfare of both society and all individuals within it. Insofar as the law is successful in its purpose, we must obey. Raz’s theory resembles much of Finnis’ Natural Law Theory in ‘Natural Law and Natural Rights’. For Finnis, the purpose of the law is to solve coordination problems for society and so legal authority acts as an agent which employs its expertise and logic to create law as a directive that engages our practical reasoning. The obligation upon the law’s subjects to obey therefore depends on the capacity of the law to further the ‘common good’.
Finnis believes there is a presumptive moral obligation to obey the law which may be offset where ‘lawmakers exploit their opportunity’ by making laws that contravene any of the four principal types of injustice which he identifies. This includes laws made for some ‘improper purpose’, laws that ‘go beyond [lawmakers] jurisdiction’, the legal authority that is exercised ‘contrary to requirements of matter and form’, and a stipulation that is ‘substantively unjust’. On the other hand, Raz makes the most convincing assertion that there is an occasional presumptive obligation to obey which can arise incrementally in different ways, such as by promoting justice or preventing harm.
The attraction of Raz’s thesis is that our obligation to obey works in a bottom-up structure that encourages us to follow our conscience and rationalize laws before obeying. Overall, Raz and Finnis can be understood to commonly reject Social Contract Theories, finding law’s authority based on an approach that appreciates law as an exercise of practical reasoning from authority, communicated to individuals of the state which then stimulates their practical reasoning to collectively advance the common good. We should rely on the rational faculties of individuals in tandem with legal structures as opposed to subscribing purely to a higher authority, based on a social contract, which has faltered in the past and may continue to do so in the future. Based on Raz’s credible theory, there is latitude for disobedience in an unjust legal system. Thoreau, Martin Luther King, Rawls, and Greenwalt offer a variety of arguments for why civil disobedience is justified and should be exercised.
II) Civil disobedience
Although conscientious objection is indeed a form of resistance, it is best understood as a private action for personal exemption against individual laws which may be immoral or impious as opposed to a strategy for political change. As such, the focus of this section shall primarily concern civil disobedience in the exploration of non-violent methods of disobedience. For this essay, civil disobedience shall be defined as non-violent resistance against the commands of an authority in power.
The term ‘Civil Disobedience’ derives from Henry David Thoreau’s first essay published in 1849. The historical importance of Thoreau’s essay is illuminated when contrasted with the work of legal theorists through the 16th-18th centuries such as Hobbes and Kant who, having devoted writing to the Social Contract Theory discussed above, ultimately hold the view that there is an absolute or near absolute obligation to obey law respectively. Thoreau contributed to the recent diversion from this legal theory, highlighting the importance of civil disobedience in response to unjust laws.
In his work, Thoreau propounds the idea that the ‘Individual conscience should not be subservient to the government, but should be independent and even prioritized’. Essentially, Thoreau recognizes the principal purpose of government, endorsing the motto ‘That government is best which governs not at all’ as ‘Government is at best but an expedient’ for society, thus demonstrating compatibility with Raz’s Normal Justification Thesis. Thoreau also provides compelling reasons for not engaging in or supporting injustice by responding to it with action. To an extent, Thoreau considers passive subscription a way of facilitating injustice. He argues that activities such as paying taxes that contribute towards an unjust cause are an ‘implicit way of creating injustice by otherwise well-meaning people’. Rather, ‘Men should revolt against the ‘machine’ of oppression’.
King’s ‘Letter from a Birmingham Jail’ expresses a similar notion but from a different perspective. He writes ‘Any law that degrades human personality is unjust’, and goes beyond mere justification by asserting ‘one has a moral responsibility to disobey unjust laws’. Agreeing with St. Augustine, he believed they should not be considered laws at all. As an egalitarian, King rightly pronounced that the denial of the right to march was ordered discriminatorily and based on race, meaning it contravened principles of equality. As such, King wrote ‘I submit that an individual who breaks a law that conscience tells him is unjust: is, in reality, expressing the highest respect for the law’. For King, civil disobedience is not considered mere lawlessness but instead regarded as a key method for addressing the incorrectness of unjust laws.
Thoreau concurs with King that a moral obligation arises to not practically support unjust law, but to engage in an active form of resistance; ‘A wise man will not leave the right to the mercy of chance, nor wish it to prevail through the power of the majority’. Thoreau expresses dissatisfaction with the belief that democratic processes are sufficient to rectify injustice. A valid reason offered for this is that often, the injustice of the law is a result of the ‘Proper processes themselves being unjust or inadequate in fixing the justice’, as was the case in South Africa at the time of Apartheid. However, we can comprehend an unjust legal system that exists within a democratic structure. One may argue that law is rendered just on the basis that it derives from a democratic state that possesses adequate channels for legal change. In opposition to this, Rawls explains the unhindered importance of civil disobedience in a constitutional democracy.
Essentially for Rawls, the objective of civil disobedience is to appeal to the community’s sense of justice. He writes that it is employed as a means to serve the majority ‘fair notice’ that in the ‘sincere and considered opinion’ of the disobedient, ‘the conditions of free cooperation are being violated.’ Whilst Rawls understands that a democratic society is good and promotes equality, he recognizes that the pace at which structures of democratic governance effectuate change may be relatively slow and so civil disobedience can be a necessary measure for accelerating needed change. Although Rawls’s broader theory for the justification of civil disobedience possesses many flaws, a few of which shall be addressed in the next paragraph, the extracted argument here is a sensible one and echoes the important message delivered by King, ‘Justice too long delayed is justice denied’.
Greenwalt in ‘Justifying Nonviolent Disobedience’ takes a more forceful stance and endorses civil disobedience beyond the scope that Rawls outlines. His criticism of Rawls explores three issues. Firstly his restriction on the permissibility of civil disobedience to only clear injustices of a substantial magnitude against basic rights, secondly the exclusion of circumstances in which civil disobedience is utilized to cause an inconvenience that becomes intolerable to the majority, and finally Rawls’ exclusion of appeals directed at a minority. Significantly, Greenwalt believes that by applying the pressure of inconvenience, civil disobedience may ‘achieve a concession that the majority would not accord out of its sense of justice.’ Greenwalt raises a significant point here. It is entirely possible that unless there is a level of disturbance to social operations, those who engage in civil disobedience may be neglected. The recent protests of Extinction Rebellion are a prime example of this, having received greater media coverage and support amongst people following public demonstrations such as road blockades.
Civil disobedience could appear to conflict with the rule of law. This influences Rawls’ limitations as he asserts that disobedience that threatens the rule of law should not be embarked upon. However, it is a misconception of the principle to believe that the rule of law would simply collapse unless every stipulation is obeyed. The predominant function of the rule of law is to limit the authority of government and to hold it accountable. Indeed, we should appreciate that through civil disobedience, people of the state are fulfilling this function by acting as a further check and balance for lawmakers. Accordingly, civil disobedience should be regarded as bolstering the rule of law.
In summary, civil disobedience is a powerful political instrument possessing an array of justifications for its use in the effort to effectuate positive change in an unjust legal system. Engaging in civil disobedience requires nobility and ardent rejection of the laws imposed on society, reflecting the conscientiousness of the disobedient which is honorable in itself. It facilitates progress that cannot be guaranteed through democratic processes and works as a useful tool to highlight injustice to both the subjects and authority within a state. Indeed, when an unjust law affects our conscience, a moral obligation arises to disobey in pursuit of furthering the common good for society and promoting equality. I shall now distinguish violence from civil disobedience and argue that it may be justified in extreme circumstances.
III) Violence
Semantically, the term ‘violence’ carries negative emotive force. It holds connotations of aggression and immorality, creating somewhat of a prima facie paradox when considering violence under the theme of moral justification. However, violence is more dimensional than this and can be a useful tool for counteracting and suppressing greater evils in a particularly unjust legal system. For this paper, violence shall be normatively defined as ‘Behaviour involving physical force intended to hurt, damage, threaten or kill someone or something’.
Gandhi was a thoroughly committed pacifist and repudiated arguments for violence. Indeed, we can appreciate the success of his movements as they lead to the self-determination of India and the retreat of British colonial authority. Gandhi embraced ‘Satyagraha’, a philosophy that aimed to communicate with the oppressor through voluntary suffering with the objective of ‘[Melting] the heart of his opponent’ and ‘[Opening] the eyes of his understanding’. The religious undertone to Gandhi’s political struggle could be conceived as something more akin to a pilgrimage than resistance. Essentially, he held the belief that through active and proactive resistance, those who were at the peril of an unjust regime could tempt oppressors through a rational argument that would evoke sympathy or at least a reasoning process that would lead to justice prevailing. It is evident that when confronted with force as aggressive as the Nazi regime, Gandhi would continue to pursue the pacifistic approach as he believed that there is something beyond the tangible that guarantees justice. This notion can be seen to have influenced King in his statement ‘The arc of the moral universe is long, but it bends towards justice.’ Whilst I embrace Gandhi for mitigating the use of violence, his doctrine cannot be universalized. The argument that any tyrannical authority can be compelled to engage in a dialogue that leads to the reversal of an unjust legal system cannot be applied in every instance. Further, it presupposes powerful governments enforcing unjust laws possess a moral compass that can be reconfigured, or indeed a high degree of rationality; the paradigm example being Hitler and his party.
Nelson Mandela’s campaign acknowledged the limits of nonviolent resistance. Despite agreeing with Gandhi’s tactics and aspiring to avoid violence, he deemed it apparent that nonviolent methods of disobedience would be futile. Mandela stated that he did not commit sabotage due to a ‘love for violence’. Instead, he ‘planned it as a result of calm and sober assessment of the political situation’ which exploited his people for many years. Apartheid enforced censorship of political opposition, leaving Mandela in a position where he either accepted a permanent state of inferiority or [defied] the Government’. Defiance did not begin with violent recourse but later amounted to it after further legislation and the South African government’s exertion of force. This sequence of events alludes to the commonly accepted principle of self-defense, which provides strong ground for the justification of violence as it does in criminal law. Although Mandela diverged from the nonviolent ideals of Gandhi and King, he too was motivated by the aim of reconciliation which he pursued in his life and time in prison. It is possible that Mandela’s resistance would fall outside of my formula, particularly condition (b), with controversies surrounding the severity and extent of violence used in retaliation. Striving for reconciliation in the course of violent disobedience is therefore a positive quality that would contribute towards fulfilling the conditions for a moral justification to arise. I shall now deal with each condition individually and provide reasoning for why collectively, they justify violent disobedience.
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