Is Lawbreaking Justified?
In this post, I will argue that, under certain conditions, it may be the case that civically, morally, or politically motivated lawbreakers should not be concerned to ensure their actions are compatible with or express respect for the laws of legitimate and just institutions. The argument breaks down as follows:
P1 — If legitimate and just institutions are just in establishing laws and fair with the distribution of goods, then civically, morally, or politically motivated lawbreakers should be concerned to ensure their actions are compatible with respect for the laws of such institutions.
P2 — However, just institutions are not always just in establishing laws and fair with the distribution of goods.
C — Therefore, when just institutions are not just in establishing laws and fair with the distribution of goods, then civically, morally, or politically motivated lawbreakers should not be concerned to ensure their actions are compatible with respect for the law.
I will begin by first defining some key terms related to my argument, then I will establish under what conditions society is just and fair in its distribution of goods, situations in which it is not, and when disregard for respect of the laws of legitimate and just institutions is justified. I will then follow this with some objections that may arise from my argument. Finally, I will raise a question as to whether civil disobedience even needs justification.
To understand my argument, we must first determine what I consider to be a legitimate and just institution and what it is to be just in establishing laws and fair in distributing goods. First, I define institutions as the publicly accepted laws that organize a society. These institutions are considered just provided these laws function to allow all members of society to operate under the pretenses of justice as fairness per John Rawls. In this case, everyone has the right to everything that everyone else has a right to. If these rights are not divisible equally among members of a society, then the distribution of these rights must be arranged in such a manner that achieves two outcomes. First, they must benefit the least well off, and second, they are attached to offices and positions open to all under fair opportunity (Rawls). If it is the case that institutions allow for the establishment of laws and the distribution of goods in such a manner as to satisfy the conditions of the principles of justice as fairness as I have established, then it is ipso facto a just institution.
Just institutions are considered legitimate if it is the case that their laws and obligations are accepted and obeyed by the members of a society who live and receive benefit by way of said institutions. Future obligations to obey these institutions arise from two points. The first is from the duty of justice. Provided an institution is just and legitimate, it is our duty to comply with said institutions (Rawls). Second is the concept of gratitude by way of filial obligations as per Socrates via Plato. In this argument, institutions provide for citizens, who in turn receive benefits from which they profit. Thus, citizens, out of gratitude for the institution’s benevolence, become obligated to obey the laws as dictated by the institutions. Therefore, I believe that if X equals obeying the laws and consenting to the punishment established by them, and Y equals acknowledging the institution’s general authority by accepting the hospitalities, customs, and protections provided from them, then, Socrates would argue, by remaining a resident of a state you have agreed to do Y. X, as stated above, is a part of Y. It follows then that you agree to X.
However, there may be instances that civically, morally, or politically motivated lawbreakers should not be concerned to ensure their actions are compatible with respect for the laws of a legitimate and just institution. First, if an institution is not just in its establishment of laws, then as per the duty of justice, it is no longer considered just and by that very fact loses its legitimacy. In this case, politically motivated dissenters, whose actions may violate such laws, are justified. For example, Jim Crow laws were state and local laws established in Southern states in America in the 1870s. These laws enforced segregation between American citizens based on race. They barred, among other things, African Americans from voting, which is itself a constitutional right given to African American men in 1870. If it were the case that African American men were to force their way into voting facilities to cast their vote, they would be considered in violation of the law. However, because the law does not see to it that everyone has the right to everything that everyone else has a right to, i.e., voting, then the laws are unjust, and the dissenters are justified in that they are acting in such manner as to make an appeal to the unjust institutions and create just ones. Thus, they do not need to be concerned with ensuring their actions are compatible with the laws.
Second, when an institution is not fair in its distribution of resources, it violates the first and second principles of justice as fairness. Here, the institutions have created a situation where they are viewed as illegitimate and unjust. This unfair distribution of resources would be met with ingratitude from the citizenry, thus eradicating the duty to obey that arises from filial obligations. It follows that politically motivated lawbreakers need not be concerned to ensure their actions are compatible with respect for the law. The law, in this situation, is illegitimate, unjust, and obligations for obedience are unfounded. Imagine, if you will, that there are two communities within a just and legitimate society separated by a small road but otherwise equal in all other characteristics. Now suppose that community one is entitled to stipends allowing additional food and electrical power by the government that community two is not, and sharing of these benefits is forbidden by law. These benefits have caused community one to grow into a more prosperous and healthy community, while community two has suffered low economic growth and poor health. If members of community one were to break the law by sharing electrical power or food with their neighboring community, they would be justified in their breaking of the law as they are acting in a manner that abides by the principle of fairness while working within their duty of justice. Justification for lawbreaking would also be found if the two communities united and stood against the governing institutions. This follows from Rawl’s belief that when groups come together, united, under a broader community cause, political obligations to create just institutions can arise provided that the ends of the group are legitimate and its arrangements fair (Rawls). Therefore, they do not need to be concerned with ensuring their actions are compatible with the laws.
The strongest objection to my argument is that all just institutions are imperfect institutions from which all citizens’ satisfaction is impossible to attain, and as a result, all objections and disobedience to laws would be justified, creating a state of anarchy. First, we must establish the two procedures that emerge from imperfect institutions’ decision-making processes and why they are imperfect. One is pure procedures or procedures that lead to outcomes that are always fair but based on chance. An example of such a procedure is a coin flip. The second is perfect procedures, which always lead to an ideal outcome. For example, you have a cake that must be divided equally between two people. To ensure a perfect outcome, you have one person cut the cake in half, and the other person chooses who gets which piece. When applied to much larger groups, e.g., societies, the needs of the majority in this distribution are placed over the needs of communities and individuals. As a result, laws may arise that some communities or individuals may not agree with or favor particular groups. Because just institutions operate under the pretenses of imperfect procedures, there will be instances of democratically decided unjust laws. Therefore, there will always be reasons for groups and individuals to object to and become dissatisfied with society’s institutions. This may lead to a perpetual cycle of dissatisfaction followed by dissent, which would significantly undermine the institutions’ legitimacy and raises the question of why we have them in the first place. In this case, erosion of institutions could lead to a non-democratic system to take control or, in a more extreme example, create a state of anarchy. However, this objection fails because individuals in a society, and society itself, would be better served to live and operate under just and legitimate institutions with some unjust laws that favor the majority than it would be to live in a state of anarchy. There are no institutions to appeal to in a state of anarchy, and regard for just laws and fair distribution of goods falls on no governing body. As such, the result would be an absence of just laws and a nonexistent distribution of goods. Whereas the principles of justice as fairness demand that a just society works in such a way as to provide the fairest distribution of goods and establish just laws for its citizenry. It follows that if laws in a fair and just society are shown to be unjust or allow an unfair distribution of goods, individuals and communities would be afforded institutions that permit these concerns to be addressed. Therefore, it is beneficial to live in a legitimate and just society with unjust laws where an individual could appeal to its institutions to resolve issues relating to perceived unfairness rather than to reside in a state of anarchy.
Other objections to my argument may arise from my belief that in the event of unjust laws and unfair distribution of goods, citizens may not need to be concerned with ensuring their actions are compatible with the laws. Lewis Van Dusen argues that civil disobedience demeans democracy’s processes of social change and eventually destroys democracy itself while using coercive methods to achieve its ends. Van Dusen fails to consider that when a democratic society establishes laws that are not just and democratic measures fail to correct this deficiency, then civil disobedience acts in such a manner as to fix society and make it a better functioning democracy. Citizens may not need to be concerned with ensuring their actions are compatible with the laws as the laws are unjust, and their efforts aim to create just laws, which fall under an individual’s duty of justice.
Finally, one may argue as to whether civil disobedience requires justification, even in lawbreaking. I propose that it does not require justification in such instances. If it is the case that laws allow the violation of the principles of justice as fairness, and governing bodies fail to address these concerns, it follows that the state and its institutions are, in fact, the perpetrators of injustice. Therefore, the actions of dissenters are ipso facto working towards the pursuit of justice for society.
Dusen Jr, Lewis H. Van. “Civil Disobedience: Destroyer of Democracy.” American Bar Association Journal (1969): 123–126.
King Jr., Martin Luthor. “Letter from a Birmingham Jail [King, Jr.].” Https://Www.Africa.Upenn.Edu/Articles_Gen/Letter_Birmingham.Html, 16 Apr. 1964, www.africa.upenn.edu/Articles_Gen/Letter_Birmingham.html.
Plato. “The Internet Classics Archive | Crito by Plato.” Http://Classics.Mit.Edu/Plato/Crito.Html, classics.mit.edu/Plato/crito.html. Accessed 13 Jan. 2021.
Rawls, John. “Duty and Obligation.” A Theory of Justice, 2nd ed., Belknap Press: An Imprint of Harvard University Press, 1999, pp. 293–243.