Wednesday, September 4, 2013

Novice LD Sep/Oct 2013 - Civil Disobedience - Affirmative



Click here for part one of this series - Civil Disobedience - Definitions.


Resolved: Civil disobedience in a democracy is morally justified.


Affirmative Position

The debate for this resolution is very nicely setup by Henry David Thoreau:
"Unjust laws exist: shall we be content to obey them, or shall we endeavor to amend them, and obey them until we have succeeded, or shall we transgress them at once?"

The affirmative side of this debate takes a position that on some level, unjust laws do exist in democratic societies and the conscientious citizen may rightly choose to disobey the law.  However, such defiance of the law while morally justifiable and perhaps even obligatory, must conform to a somewhat narrow standard of application which does not lead the majority to whole-heartily reject the ideology the protester is affirming.  Further, in many cases, it should be demonstrated those being harmed have exhausted the legal recourse available to them and disobedience is the next logical progression to righting a perceived wrong.

Suber, 1999:
"Martin Luther King, Jr., who also performed civil disobedience in a democracy, asks us to look more closely at the legal channels of change. If they are open in theory, but closed or unfairly obstructed in practice, then the system is not democratic in the way needed to make civil disobedience unnecessary. Other activists have pointed out that if judicial review is one of the features of American democracy which is supposed to make civil disobedience unnecessary, then it ironically subverts this goal; for to obtain standing to bring an unjust statute to court for review, often a plaintiff must be arrested for violating it."

Carl Cohen explains the justification for disobedience must be found outside of the legal system and "these nonlegal considerations over-ride his obligation to obey the law".

Cohen 1969:
"They [civil disobedient] will grant that the laws, having been properly authored and enacted by the people's representatives, have a legitimate claim on the obedience of all citizens, and that the claim applies to them, the disobedients, no less than to everyone else.  This obligation to obey, however, is but one component of the moral forces acting them, they will argue. They are under other obligations also, strong moral obligations that outweigh those imposed by the legal system, and that constrain them to disobey certain laws under certain circumstances. While not claiming to be above the law, or exempt from it, they do claim the right in disobeying it in very special and perhaps even agonizing situations."


Cost/Benefit

I think it is intuitive that before civil disobedience can be justified there must exist some method to evaluate the law in question and measure its benefits or harms.  After all, one may reasonably expect laws to either yield some positive benefits, for example a tax law which applies the funds to maintaining highways or a law forbidding parking within 10 feet of a fire hydrant.  Sometimes, laws may benefit certain members of a society while not adversely harming other members or perhaps the law does infringe the freedom of certain members of society but the benefits gained by the law far outweigh the harms of restricting a class of individuals' freedom.  An example would be laws which forbid smoking in public spaces.  There have and continue to exist, laws which are clearly harmful to a class of individuals in a society which do not provide offsetting benefits to the majority. A prominent example was the Montgomery Alabama law which permitted bus drivers to move passengers to make room for other passengers which was the legal basis for the custom of drivers to force blacks to give their seats to white riders when the "white" section of the bus filled.

The cost/benefit analysis or perhaps better to say, harms/benefits analysis provides a basis for establishing a way for the judge to see that laws in democratic societies are far from ideal.  This carries forward in a generalized way as a basis for establishing the justification for disobedience and in the following section it will be shown how this concept supports the moral framework which justifies civil disobedience.

The Moral Framework

The affirmative must provide a moral standard, that is, some over-arching principles of right behavior which serves to justify civil disobedience.  However, the Affirmative must establish a proper definition for civil disobedience as a course of action which is a reaction to an unjust law for the purpose of effecting a change which is beneficial to all the members of the society. Even if the majority do not fully recognize the benefits they must at least see that some segment of society is being harmed by the unjust law and disobedience is not particularly harmful or disruptive to peace and well-being of the majority.  Thus it is fairly easy to discern a utilitarian standard of morality which claims it is right to take actions which will maximize happiness for the majority.  Civil disobedience is a selective form of disobedience under this point of view.  After all other considerations and reasonable attempts are made to alter the improper law, is civil disobedience justified.  It is not to be seen as an indiscriminate act of social anarchy or general disdain for the rule of law since all "just" laws are willfully obeyed.

Coleman 1985:
"Citizens are under a duty, then, to assess potential disobedient activity carefully in terms of its relative as well as its absolute importance. Bickel's words are informative: "Anybody who wishes responsive government, a society in which law formation is a continual round, should never, simply for the sake of convenience, cross the street against a no-walk sign. Freedom to disobey when it matters can exist only if at all other times perfect obedience is yielded."

The formulations of the categorical imperative provide an alternative moral framework which supports civil disobedience.  From the Formula of Universal Law, Kant says, "Act only on that maxim through which you can at the same time will that it should become a universal law".  This conveys the idea the one's act should be taken only if one can accept the same action from everyone else.  In other words, one may deem an action as moral if one can allow everyone else to do it as if it were a universal law.  Under his second formation, Kant claims the outcome of an action is not as important as the motivation which preceded the action and the motivation must be moral.  We can ascertain the motivation as moral when we do not use people as a mere means to an end.  This is like saying, the act is immoral if I am using another to achieve something good for myself without considering the humanity of the other person.

Applying these formulations of the categorical imperative as a moral standard, we can justify the act of civil disobedience as long as we apply it the specific benefits to be achieved and those benefits can be viewed as outweighing the harms of disobedience.

Suber 1999:
"In Kant's language again, universalizability fails if the maxim of the action is "disobey a law whenever you disapprove of it," but it can succeed if instead the maxim is, "disobey when obedience would cause more harm than disobedience," or "disobey when a law is unjust in the following specific ways...." And it must be said, virtually all activists who practice civil disobedience follow criteria which endorse some, but not all, disobedience. King, for example, did not advocate indiscriminate disobedience; he advocated disobedience of unjust laws and obedience to the just. He articulated what he regarded as public, objective criteria which help us identify the unjust laws which may or must be disobeyed, and the just laws which must obeyed. Any attempt to articulate the distinction between the two sorts of law is in effect an attempt to show that the slide down the slope can be halted, or that the maxim to disobey can be universalized."

For part 3 of this series - the Negative position - click here

Bibliography

Cohen, Carl; "The Justification of Civil Disobedience"; Civil Disobedience; 1969
http://carl-cohen.org/books/CivilDisobedience/chapter5.pdf

Coleman, Gerald S; "Civil Disobedience: A Moral Critique"; Theological Studies, 46; 1985
http://www.ts.mu.edu/readers/content/pdf/46/46.1/46.1.2.pdf

Johnson, Robert; "Kant's Moral Philosophy"; The Stanford Encyclopedia of Philosophy; 2012
http://plato.stanford.edu/entries/kant-moral/

Suber, Peter; "Civil Disobedience"; Philosophy Dept, Earlham College; 1999
http://legacy.earlham.edu/~peters/writing/civ-dis.htm

Thoreau, Henry David; "Resistance to Civil Government", Yoge Books, 1849, see: http://machetegroup.files.wordpress.com/2011/10/resistance.pdf

1 comment:

  1. Thank you! This is very helpful for my case, I appreciate it!

    ReplyDelete

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