The following essay will attempt to evaluate the approach taken by Dworkin and Habermas on their views of civil disobedience. The two main pieces of literature referred to will be Dworkin’s paper on Civil Disobedience and Nuclear Protest’# and Habermas’s paper on Civil Disobedience: Litmus Test for the Democratic Constitutional State. ‘# An outline of both Dworkin’s and Habermas’s approach will be given , further discussion will then focus on a reflective evaluation of these approaches.
Firstly though, it is worth commenting on civil disobedience in a more general context. Most would agree that civil disobedience is a vital and protected form of political communication in modern constitutional democracies’# and further the ‘civil disobedience has a legitimate if informal place in the political culture of the community. ‘# Civil disobedience can basically be broken down into two methods, either intentionally violating the law and thus incurring arrest (persuasive), or using the power of the masses to make prosecution too costly to pursue (non persuasive).
Dworkin takes a categorical approach to civil disobedience, by breaking it down into a number of different types then applying certain conditions to each type to assess wether the disobedience should be allowed or not. He states that there are three different types of disobedience based on the motivations behind the action. These are integrity based, justice based and policy based civil disobedience. Briefly, integrity based disobedience is motivated when the law requires people to do something that goes against their personal integrity and is usually a matter of urgency.
Dworkin gives an example of this as the Northern American citizen who covertly harbours and shelters slaves from the Southern citizens in violation of the Fugitive Slave Act. # The second type of disobedience, justice based, is motivated by a peoples desire to oppose unjust policy in the hopes of reversing the policy, for example the civilian protest about the war in Iraq recently. Thirdly, policy based disobedience is somewhat different to the first two in that it is usually activated by minority groups who think a policy is dangerously unwise.
As Dworkin puts it they think they know what is in the majority’s own interests. ‘ Given these three types of disobedience (that is integrity, justice and policy based) and two different methods (persuasive and non persuasive), Dworkin addresses two main questions regarding the justification of the action, namely what is the right thing for people to do who believe a political decision is wrong? And secondly , how should the government react?
Dworkin makes the point that civil disobedience will be easier to justify if it doesn’t challenge majority rule, and that there should be a rights clause in any action that states that the majority should not advance its own interests at the expense of other peoples rights (this thus gets around any argument for terrorism or violence). # In the case of integrity based disobedience, the case seems fairly clear cut in that people who are protesting for these reasons do the right thing based on their beliefs and so, in Dworkin’s mind also they do the right thing.
Because matters such as this are typically very urgent in their nature there is no need to stipulate that all legal options to reverse the decision be exhausted. Dworkin states that both persuasive based and non-persuasive forms of disobedience are justified in these cases. # Of more complexity are the justice and policy based arguments for civil disobedience. Addressing the former, the conditions on when civil disobedience are justified become more rigid in that Dworkin believes for civil disobedience to be justified in this case people should first exhaust the normal political process before they partake in the disobedience.
Further to this, Dworkin also insists that citizens partaking in justice based actions should consider the consequences of their action. It is under this form of disobedience that the distinction between persuasive and non persuasive action becomes important. Persuasive strategies aim to persuade a policy to be changed by forcing the majority to listen to its argument whereas non persuasive means aim to increase the cost of pursuing the policy.
In the case of justice based disobedience, Dworkin states that persuasive options should be exhausted before non persuasive options are used. Persuasive options only work in this instance though if the conditions are favourable for their success. # Finally, that of policy based civil disobedience. Dworkin states quite clearly that non persuasive strategies should never be used in policy based civil disobedience. This is because it goes directly against the majority rule principle and attacks its foundations’ by making the majority pay very heavily for its policy.
Persuasive forms of policy based civil disobedience may be justified in some circumstances, but as with justice based action, all other political options should be exhausted first and the conditions must be favourable for the actions success. Turning now to Habermas, his views are slightly more liberal than that of Dworkin as we will see in the following outline. Habermas looks upon civil disobedience as an essential element of a developed political nation. Habermas approves of John Rawls’ definition of civil disobedience: a public, non-violent, conscientiously determined, but illegal act which is usually meant to cause a change in the laws or the policy of the government. “# Rawls give certain conditions that must be fulfilled for civil disobedience to be justified. Namely, there must have been a grave injustice occur to warrant the protest, all legal options for reversing the decision must be exhausted and the protest should not seek to endanger the constitutional order.
Habermas appears to agree with the opinion of Rawls i. e. vil disobedience is a feature, if not a requirement of any constitutional state and is required to make sure that the laws move with the times. He makes these claims on the basis that for any democratic constitutional state to call itself legitimate, the laws must be followed by citizens of their own free will, not out of fear of punishment. # Citizens are therefore more likely to follow laws of their own free will if they are laws that they actually agree with. He qualifies this though with the point that civil disobedience can only occur under conditions of a constitutional state that remains wholly intact.
Habermas’s main point of difference in his evaluation of civil disobedience to Dworkin is that Habermas believes that while it is true that laws can be judged by how just they are, they should also have their legitimacy tested against how democratic they are. # Habermas gives the example of the issue at hand (the deploying of missiles in Europe) when he states that civil disobedience can be justified here because by no means was the decision by governments to do this based on an overwhelming majority of the people. In fact, Habermas refers to a threadbare’ majority.
Habermas argues that the stance of majority rule should function as a justification for outlawing certain forms of civil disobedience only when the following conditions are met. These conditions are that there should be no minorities by birth, the majority cannot make irreversible decisions and further that majority rule decisions should be taken with a grain of salt so to speak if those decision are made by a slim majority. That is , majority rule decisions may not always be the best decisions because of the conditions in which the decision was made (eg. mited resources and time). #
It is against this context that Habermas concludes the justification for civil disobedience opposing the deployment of the Pershing II missiles. In conclusion then, given these two views, when should a government draw the line about when it is right to prosecute civil disobedience? It is obvious that some marker needs to be put down to deter people from partaking in civil disobedience at any opportunity. I find it hard to think of a circumstance when the use of non persuasive means of civil disobedience are justified, just as Dworkin does.
Most would probably say that civil disobedience of this sort does nothing more than to irritate the general public (eg. student marches causing traffic jams) but to outlaw this is to outlaw the general right that we feel we have as a democratic state to protest decisions that we feel are wrong. Dworkin recognises this but says that all other legal avenues of reversing such decision should be exhausted before resorting to this type of action. On the other hand, Habermas takes the view that use of any means which is against the majority rule is sometimes justified, but how can this be the case if you are challenging the majority rule?
In a sense Habermas makes a correct assumption when he gives his reasoning that sometimes the majority is not necessarily a clear majority and also that majority decisions are quite often made under the pressures of time and lack of resources. Both Dworkin and Habermas have the same general views on civil disobedience (they both believe it is an essential form of political communication in a democratic state) but when they begin to examine the issues more closely, the differences in justification begin to become apparent between the two writers as outlined above.