Civil Disobedience: Philosophers and Political Thinkers (Essay Sample)

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Number of pages:12Academic level:PhD LevelReferencing style:APAClient country:Australia (UK English)Assignment extract:
Essay question: "Do we have a right to disobey an unjust law?"Please answer with reference to the following articles:Raz, Joseph. "A Right to Dissent? I. Civil Disobedience". In The Authority of Law. Oxford: Clarendon Press, 1979, pp. 262 - 289Waldron, Jeremy. "A Right to Do Wrong" in Liberal Rights: Collected Papers 1981-1991. Cambridge; Cambridge University Press, 1993, pp. 63-87Dworkin, Ronald. "The Constitution." In Law"s Empire. Oxford: Hart Publishing. 1998. pp. 355-399.Additional references:Brooks, Thom. "A Problem of Principle: Dworkin"s Constructive Interpretivism" in Social Science Research Network. Available online at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=869537, (2006).Stavropoulos, Nicos. "Interpretivist Theories of Law" in Stanford Encyclopedia of Philosoophy. Available online at http://plato.stanford.edu/entries/law-interpretivist/, (2003).Tushnet, Mark. "Following the Rules Laid down: A Critique of Interpretivism and Neutral Principles" in Harvard Law Review (Vol. 96, No. 4, Feb. 1983). pp 781-827
Civil Disobedience: “Do we have a right to disobey an unjust law?” Please answer with reference to the following articles: Raz, Joseph. "A Right to Dissent? I. Civil Disobedience". In The Authority of Law. Oxford: Clarendon Press, 1979, pp. 262 - 289 Waldron, Jeremy. "A Right to Do Wrong" in Liberal Rights: Collected Papers 1981-1991. Cambridge; Cambridge University Press, 1993, pp. 63-87 Dworkin, Ronald. "The Constitution." In Law’s Empire. Oxford: Hart Publishing. 1998. pp. 355-399.
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Introduction
Disobedience of unjust laws is not a recent occurrence and indeed, it has been in existence for several years largely in the form of civil disobedience. Throughout history, several people have revolted against systems they thought were unjust such as Nelson Mandela, Mahatma Gandhi, Martin Luther King, Henry David Thoreau and Simon Bolivar among others. The noted political thinker Saint Augustine even argued that an unjust law should not even be considered to be law in the first place. Henry David Thoreau gave further impetus to this viewpoint in his book “Civil Disobedience” which was a reaction to the passage of the Fugitive Slave Act and the American involvement in the Mexican War which he believed were both immoral and wrong. He argued that if the law makes one to be an agent of injustice to another then it is right to break the law. Dr. Martin Luther King Jr was inspired by Thoreau to a great extent and expanded on his ideas in his book “Letter from Birmingham City Jail.” They both used civil disobedience to improve the law and oblige society to live according to higher moral standards (Stolyarov II, 2005).
On the other hand though, it is evident that society needs laws so as to function, without which chaos and lawlessness would take preeminence. Thomas Hobbes was a seventeenth century British philosopher whose most famous work was “Leviathan.” The main gist of this work was that man’s nature is one of strife and conflict and unless governed by rules chaos would ensue (Stolyarov II, 2005). Therefore, laws are clearly crucial for social order to prevail. However, does that necessarily mean that all laws are to be obeyed unquestioningly? This question is a highly contentious one and the following discussion shall thus attempt to answer it by analyzing the works of various authors such as Joseph Raz, Ronald Dworkin, Naomi Choi, David Lyons, Jeremy Waldron and Mark Tushnet among others to shed light on this controversial subject.
A Comparative Analysis of the Various Works In Support of and Against Disobedience of Unjust Laws
There are different positions held in relation to whether it is morally right to disobey an unjust law. According to Choi (2007, p. 367), there are various theoretical standpoints on the issue. On the one hand, there are the positivists all of whom believe that there is no link between morality and law. On the other side of the coin are the natural law theorists who believe that the legality and weight of a legal norm depends on their morality (p. 367). These two sides of the divide have put forward various arguments in support of these positions as evidenced in the following discussion.
Before ascertaining whether or not it is morally right to disobey an unjust law, however, the same must be determined with regards to the right or lack thereof of committing a morally wrong act. According to Waldron (1991, p. 65) there really is no contradiction in arguing that someone has the legal right to do a morally wrong act. For instance, someone using his lottery money on flimsy things without donating to charity; a person joining a racist organization; people giving deliberately misinforming information on a parties policies to a simple minded voter; an athlete taking part in an event organized by racist representatives; and so on. All these examples are considered to be morally wrong yet the fact that people perform them on a regular basis shows that our opinions on morality differ drastically. All in all, in each case, while the actions were morally wrong, the individual still had the moral right to do as they pleased.
The argument that one has the right to perform a morally wrong act is thus very clear-cut. More contentious, however, is the idea that one has the right to do something morally wrong. Historically, several moral philosophers have discarded this idea, an example being William Godwin who in 1798 argued that the proposition of the right to do wrong is absurd. Even in recent times, philosophers have taken on conceptions which make the moral acceptability of an action part of what is asserted when it is claimed that the action is the subject of a moral right (Waldron, 1991, p. 66).
As an example, Waldron expounds that John Mackie argued that a moral right is the combination of two elements- a moral freedom and a claim- right. Since a wrong act is something we are not morally permitted to do, it follows according to Mackie’s reasoning that one does not have the moral right to do something that is morally wrong. Therefore, according to this reasoning, the performance of an act that is morally wrong is unacceptable and not right. However, this assertion is too simplistic, particularly since the author failed to elaborate about what exactly a moral act is and who determines what is moral. Indeed, a major bone of contention in this debate has been with regards to the definition of what is and what isn’t moral and who determines this morality. If there is no clear definition or if the existing definitions are erroneous, is it justified to expect people to comply with blurred conceptions of morality? And if a law is morally wrong, is it fair to force people to abide by them merely because they are set in law?
Philosophers, both past and present, have not been in agreement on this matter. In recent times, authors such as Joseph Raz and Ronald Dworkin have argued very passionately that there is no contradiction in the idea that a morally wrong act is the execution of ones moral right. Ronald Dworkin in his interpretivist work, Dworkin proposes a moral reading of the Constitution while acknowledging that such a position has been for the most part dismissed by a vast majority of political scientists, legal experts and constitutional theory as a whole.
To justify his position, Dworkin (1998) argues that this moral principle is, for one, backed by the First Amendment which makes it wrong for the government to censor what an individual says. Dworkin correctly observes that before condemning a person who has chosen to go against the law the circumstances surrounding what the person spoke those words must first be understood so as to understand what exactly they meant to say. Therefore, in line with this view, cases of treason or libel can be defended on the basis of the freedom of speech. If one chooses to speak against a law they consider to be unjust, they should not be imprisoned or penalized for it even if what they said is against the law. This is due to the allowance of freedom of speech.
Dworkin further argues that the original framers of the constitution offered equal protection for all therefore laws such as segregation laws could be challenged on the basis of this equal protection clause. Critics however disagree, arguing that the equal protection of the laws was a very general principle especially in the mid-nineteenth-century. It is very probable that the Framers viewed equal protection as not being widely inclusive and as such, Dworkin’s supposition is somewhat naïve and devoid of fact. The main problem with Dworkin’s argument isn’t with regards to the substance but with the lack of factual evidence to support his claims. He merely makes presuppositions about what he thought the framers intended to do without actually presenting factual evidence of the same. Therefore, while it is true that if one would have revolted against segregation laws on the basis of the equal protection clause it would have been a morally right action, his argument is logically wrong on the basis that the framers of the constitution did not intend to safeguard black people from segregation with the equal protection clause.
Nevertheless, just because Dworkin bases much of his argument on presumptions about what he thought the framers intended particularly with regards to racial segregation, his argument that the equal protection clause legislates against it is valid. As such, civil disobedience or the disobedience of unjust within the context of the United States has merit even within the law as espoused in such clauses as the equa...