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Subject Area: Political Theory

Civil Disobedience & Legal Obligation - Leonard P. Liggio, Literature of Liberty, Autumn 1980, vol. 3, No. 3 [1980]

Edition used:

Literature of Liberty: A Review of Contemporary Liberal Thought was published first by the Cato Institute (1978-1979) and later by the Institute for Humane Studies (1980-1982) under the editorial direction of Leonard P. Liggio.

Part of: Literature of Liberty: A Review of Contemporary Liberal Thought, 20 vols. 19781-982

About Liberty Fund:

Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.


Civil Disobedience & Legal Obligation

Joel Feinberg

“Civil Disobedience in the Modern World.” Humanities in Society 2(Winter 1979):37–60.

The author discusses the question: does one have the right to commit civil disobedience? By civil disobedience Feinberg means disobedience to political authority, done from the motive of devotion to a higher cause, which violates the laws of the state, and which leaves one open to criminal sanctions. Civil disobedience differs from ordinary crimes which are committed from the usual notions of greed, desire to harm others, etc.; and it also differs from revolutionary acts against the state, since the disobedient by and large respects the political structure. Civil disobedience also differs from a situation where one desperately breaks the law in order to avoid a greater evil (e.g., borrowing a stranger's car without permission in order to get a heart attack victim to the hospital); since courts generally accept pleas of necessity to exonerate such crimes, the lawbreaker is not being a civil disobedient. Finally, Feinberg distinguishes civil disobedience from persons who deliberately break a law for the purpose of a “test case,” since that person sees himself as performing a legal act and hopes that the courts will declare the law he has broken to be an invalid law.

Most philosophers today no longer believe one has an obligation to obey any law just because it is a law; those that do believe there is such an obligation believe it holds only in a reasonably just and fair society and that it is a prima facie obligation (PFO). Feinberg interprets the notion of a PFO as a relevant supporting reason which may not be a conclusive reason since there may be reasons on the opposite side of the issue. When one has a PFO to do A, not doing A is wrong unless there is a reason not to do A which is at least as strong. If there is PFO not to engage in civil disobedience, then it is presumably derived from more basic PFOs such as that of gratitude (to return favors), fidelity (to keep promises), fair play (not to exploit, cheat, or take advantage of others), and that of justice (to maintain, uphold, and help establish just institutions). Feinberg rejects all of these attempts.

The argument from the PFO of gratitude is that by accepting the state's benefits one incurs debts of gratitude. If this argument is supposed to show the ground for the genuine feeling of gratitude, then, it must show that the state's benefits are gifts and that they were given from benevolent motives; even if this is shown, there can be no duty to feel grateful; and even if there was such a duty, it would not imply a duty to reciprocate. Finally, even if there was a duty to reciprocate, it would not take the form of obedience to the laws, for no gift entails a right to direct the receiver's behavior.

The argument for the PFO of fidelity sees the state's benefits as more like loans than gifts; since we have consented to take the loans (i.e., consented to obey state authority), there is a PFO to obey the state's laws. Since no one really grants such consent, the argument quickly shifts to the claim that one has tacitly consented, i.e., that one's consent can be inferred by one's continued residence in the county or by acceptance of the state's benefits. But one cannot consent unintentionally or unknowingly. And even if we design a political procedure whereby continued residence would be taken by the citizens to be equivalent to consent (the way silence at a meeting, when the chairman says “Anyone who objects has a minute to speak now,” is taken to mean consent), the opportunity to emigrate does not provide one with a genuine choice that the argument from consent requires.

The argument from the PFO of fair play is that citizens obey the law on the belief that others will do so, and therefore that the burdens of complying with the law will be spread fairly throughout and will be congruent with the benefits achieved by social cooperation. On this view the law breaker takes advantage of his fellow citizens, and thus the PFO is owed to them and not to the state. While this view may be plausible for certain forms of civil disobedience, not all forms of civil disobedience can be construed as taking advantage of anyone. Furthermore, insofar as the benefits deriving from obeying the laws fall unequally on different groups, then the argument from fair play can have little point for those who receive few benefits.

The argument from the duty to uphold just institutions has again some point with regard to certain types of laws, but again not all law breaking or civil disobedience can be construed as damaging just institutions. Insofar as civil disobedience or law breaking helps to provide a safety valve for societal pressures, it can be thought of as strengthening just institutions.

We may conclude that there is no PFO to obey the laws of a reasonably fair and just society, and thus that at least some forms of civil disobedience are justified. While in such a society most of the laws protect things that are worth protecting (e.g., avoiding harm to others), and thus should be obeyed, this is not because they are laws but because they legally protect certain important values. In such a society, there may be a statistical presumption that the law breaker is committing a wrong, only because of the laws' connection with these values.