Civil disobedience as a communicative ethical attitude

Tarcisio Amorim Carvalho

Introduction
Mahatma Gandhi and Martin Luther King Jr. became popular in their countries
for taking part in important national movements of civil disobedience, one aiming to resist
British rule in India, and the other related to the racial struggles in the United States.
However, many questions can still be raised about the limits of civil disobedience and its
justification in contemporary democracies. As legal norms are understood as the emanation of
the sovereign will of people, can any breach in the law be justified according to individual or
collective moral reasons?
In A Theory of Justice (1999), John Rawls states that only protests and acts of
dissidence that appeal to common principles of justice are justifiable as legitimate practices
of civil disobedience. In contrast with Thoreau, Rawls considers that religious and ethical
objections are not justifiable in acts of civil disobedience, since they are not based on political
principles, but on reasons that apply only individually or for a particular group of people. On
the other hand, Kimberley Brownlee (2012) favours a conception of civil disobedience that
accounts for the link between conscience and communicative rationality. In this paper, I will
make the claim that every act of resistance, even those based on religious worldviews, can be
considered civil disobedience as long as the communicative requirement is met and the
dissident can provide reasons for his attitude. I will develop this conception of civil
disobedience by analysing the specific requirements for an act of dissidence to be classified
as civil disobedience: 1) there must be an infringement to right claims that are considered
fundamental for ones lifestyle and self-realisation; 2) the right claim must have a general
appeal, either because one believes it to be universally valid in itself, or because the sort of
practices or opinions at stake raises questions whose importance can be universally
recognised; 3) there should be a willingness from the dissidents to communicate and give an
account of their reasons to their fellow citizens.
There must be an infringement to right claims that are considered fundamental for
ones lifestyle or self-realisation
In Britain the Race Relations Act 1976 determines that any rule whose content
imposes a burden upon minority groups due to cultural requirements, or for undermining
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fundamental practices associated with ones individual sense of belonging, falls into the
category of indirect discrimination. The aim of this legislation, passed in the context of
diversification of British society after the massive migratory waves that followed the closure
of borders in the 1960s, was to provide ethnic, national and race groups affirmative rights,
consistent with a collective conception of self-realisation.
During the 2000s, there was a widespread perception that a new legislation was
needed with a view to extend the provisions of the Race Relations Act for religious groups.
After the Rushdie Affair in 1989, and especially the attacks of 9/11, Muslims organisation
such as the British Muslim Council and the Islamic Human Rights Commission pushed the
case for a new law that would prevent indirect discrimination against religion. In 2006 the
Equality Act set out provisions for the protection of religious practices when they are
associated with fundamental self-perceptions and understood as essential to the pursuit of
ones own conception of good life. Paradoxically, the legislation also condemned gender
discrimination, which eventually led many religious agencies of adoption to be shut down in
Britain, given their refusal to accept applications from gay couples.
The case Mandla v Dowell-Lee (1983), in which a Sikh student won the right to
use his turban in class, defying the uniform policy of his school, illustrates how the idea of
collective rights, founded on the ethical perceptions of lifeworld communities, can constitute
a serious claim of political justice. In the United Kingdom, there is a significant concern for
the protection of religious practices, such as the use of Halal meat, and the displaying of
symbols and garments, such as the Sikh five Ks and the Muslim hijab. While John Rawls
would classify both practices as located on the level of comprehensive worldviews, denying
their generality in terms of public reason it can be argued that the adepts of these faiths
actually believe that their lifestyles bear a normative understanding of the good life. In the
latter case, particularly, given the universal character of the Muslim faith, codes of behaviour
and religious precepts are regarded as essential to its conception of justice. As Nicholas
Wolterstorff (in Habermas, 2006: 8) observes, in contrast with the Rawlsian distinction
between public reason and moral conscience, Islamic faiths and other religious communities
tend to base their political judgements on metaphysical claims, challenging liberal views that
draw a line between the public and the private sphere.
Henceforth, Rawls (1999: 324) contention that conscientious refusal differs from
civil disobedience for not appealing to the sense of justice of the majority is problematic. Let
us consider, for example, the case of the cake bakers Daniel and Amy McArthur, who refused
to proceed with the order of a costumer, Gareth Lee, who wanted the cake to have a message
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of support for gay marriage. Rawls would probably condemn such act under the charge of
being motivated by private reasons, except maybe if the company the bakers presented
arguments based solely on political (liberal) grounds (Ralws, 1999: 324). As he clarifies,
political liberalism must not endorse the temptation to say that law must always respect the
dictates of conscience and if a religion is denied its full expression, it is presumably
because it is in violation of the equal liberties of others (Rawls, 1999: 325). Rawls
overestimate the capacity of individuals to find common reasons on which they can base their
principles of justice, while requiring religious citizens to renounce their metaphysical
worldviews in order to adopt a secular perspective that favours individual choice over the
common pursuit of a shared conception of good life. In fact, as Michael Sandel (1989)
argues, in the dispute concerning gay marriage, what is at stake is not only the possibility of
choice as even if the law allows it, heteronormative discrimination could still hit gay
couples in the wider societal sphere. Rather, the issue involves two conceptions of good life:
one that conceives the ends of marriage as linked with the reproduction of the human species,
and the other that associates the value of marriage solely with a mutual commitment of love.
In either case, there is no political principle that could settle the question without reference to
particular worldviews. In the case of the cake bakers, the impasse between the two parts is
reinforced by the fact that both the McArthurs and the Lee understand that they cannot
change their attitudes and opinions just to avoid a personal conflict, or for the former, to
comply with the law, since by doing so they would be giving up the very reasons that shape
their conceptions of justice and provide their lives with purpose and meaning.
The right claim must have a general appeal, either because one believes it to be
universally valid in itself, or because the sort of practices or opinions at stake raises
questions whose importance can be universally recognised.
In distinguishing religious justifications from civil disobedience or conscientious
refusal from public reason, John Rawls overlooks the contents of religious reasons and
dismiss their appeal beforehand. However, many religious moral claims that are based on a
comprehensive metaphysical view set out normative principles that are believed to be
universally applicable. The mentioned case of the religious opposition to gay marriage, which
is supported by a substantive ethical conception of the good, and consequently of the ends of
marriage for human beings, is an illustration. Another example is the issue of abortion. In
fact, when explaining his idea of an overlapping consensus, Rawls resort to the concept of
reasonableness, stating that some comprehensive doctrines are not reasonable if they cannot
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coexist with other substantive claims in a plural public environment. Rational comprehensive
doctrines can only be considered reasonable if they do not require commitment or conversion
from opposing views. Rawls then starts by alluding to the example of a rationalist thinker that
affirms that his beliefs can be fully established by reason and deny any other truth claim.
Rawls says that this approach cannot be acceptable as it does not recognise that fact of
reasonable pluralism. Similarly, he contents, the religious attitude of the citizen who wish to
push the case against abortion and prevent women to make their own choice cannot be
tolerated in a well ordered liberal society. Rawls develops this argument in a footnote as
follows:
As an illustration, consider the troubled question of abortion. Suppose first that the society in question
is well-ordered and that we are dealing with the normal case of mature adult women.... Suppose
further that we consider the question in terms of these three important political values: the due respect
for human life, the ordered reproduction of political society over time, including the family in some
form, and finally the equality of women as equal citizens.... Now I believe any reasonable balance of
these three values will give a woman a duly qualified right to end her pregnancy during the first
trimester. The reason for this is that at this early stage of pregnancy the political value of the equality
of women is overriding and this right is required to give it substance and force.... Any comprehensive
doctrine that leads to a balance of political values excluding that duly qualified right in the first
trimester is to that extent unreasonable (Rawls, 1999: 243-244).

One does not need to enter in the depth of the debate about abortion to recognise
the flaws of Ralwss position. It suffices to say that if some advocates of the rights of the
unborn present some scientific and philosophical arguments to support the claim that the life
begins at the conception (say, because the genetic identity is the principle of individuation),
then there is a strong case for the rejection of the abortion based on a universal claim of the
right to life. Even though the principle of equality demands that the woman is given proper
assistance and is not left alone to deal with a pregnancy that she is not the only responsible
for, simply invoking the right to privacy to support a pro-choice attitude can be considered as
non-reasonable by anti-abortion groups. Indeed, it may even be argued that this position goes
against the most basic principles of political liberalism, in its deontological form, given the
trade-off between life and other political rights. A reasonable pluralism here can in fact be
unreasonable even according to some conceptions of liberalism, as it would entail the
acceptance of a consequentialist approach to the right to life. Consider, for example, the case

of the suppression of the Aviation Security Act in Germany by its Constitutional Court. In its
decision, the judges held that that legislation, which basically stated that the government had
the right to shoot down a plane in case it is kidnaped for terrorist purposes, was
unconstitutional for infringing persons basic rights. As their have argued:
A weighing up of lives against lives according to the standard of how many people are possibly
affected on the one side and how many on the other side is impermissible. The state may not kill
people because they are fewer in number than the ones whom the state hopes to save by their being
killed (Federal Constitutional Court, 1 BvR 357/05).

The idea is that there is no possible trade-off between the right to life and other
rights, even the right to life of other innocent people. According to this perception, any
consequentialist attitude that attempts to find the best outcome in situations of conflict
violates the basic principle of human dignity that political liberalism, especially in its Kantian
form, so values. If we follow this logic in the quarrel about the abortion, we will have to
concede that a reasonable pluralism, in the Rawlsian sense, between pro-life and pro-choice
supporters may not be viable. In consequence, for a pro-life person that considers the right of
the unborn a fundamental political principle, civil disobedience perpetrated for the cause of
the unborn is a legitimate option.
The problem with the Rawlsian categorisation of civil disobedience, however, is
not only that it is not able to make the link between the anti-abortion position and other right
claims with the political principles that he considers to be fundamental in a liberal
democracy, the problem is that such a judgement about the scope of a certain rights must not
be set a priori. Rather, it is up to individuals or groups to make moral and right claims and to
give an account of their reasons to the rest of society. If one is convinced that gay marriage
also infringes fundamental human rights for not fulfilling the ends of the conjugal union and,
therefore, for not giving proper protection to the family, especially the children, then she can
deem civil disobedience against homosexual rights legitimate. Likewise, if one considers that
gay couples are put in a situation of inequality for not having access to marriage, once they
do not share the belief that its ends are linked with reproduction, they also have to right to
strive. Similarly, a Muslim woman that wants to have the right to use the Hijab can
understand that the veil is essential to her life, and even to the life of others, since it is
required as a sign of reverence and modesty for all women. If she believes that political
principles derive from metaphysical conceptions and that the devotion of human beings are
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required for the achievement of justice, then she may have a public duty of conscience to
engage in civil disobedience.
Another situation would be the one of citizens that claim the right to pursue their
own ethical conceptions by having some of their practices publicly recognised. In the above
case of the Sikh student that wanted to use the turban, it is noteworthy that even the Court
stressed that the Sikhs are community oriented and that belonging is defined according to ties
of kinship. In this sense, the precepts of the Sikh religion are not believed to be universally
applicable. However, given that the right claims at stake (the use of the five Ks) is
considered essential to the lifestyle of a group, there is a universal appeal associated with the
principle of autonomy that can be reasonably accessible to any person. Since it is possible to
recognise that identities are a constitutive part of the personhood, and that communitarian
bonds provide normative principles of action and behaviour, then the accommodation of
ethnic and religious practices when they are believed to be mandatory holds a universal
appeal. Nevertheless, for these cases the Ralwsian principle of reasonable pluralism may be
appropriated in deliberative terms. As the author of the claim knows that he will not convince
others of the universal obligatoriness of the practice, since it is community based, he will
have to accept that there might be other right claims considered fundamental to other citizens
that clash with his own. Here it can be said that an actual impasse is established, as the
universality of the practices in their substance are not at stake. For these situations, it is only
through a willingness to negotiate ones own perspectives and claims that a consensus can be
achieved.
There should be a willingness from the dissidents to communicate and give an account
of their reasons to their fellow citizens.
This last requirement of legitimate civil disobedience stems from the link
between legal and moral norms. As Kimberley Brownlee (2012: 23): points out the law is
only the most blunt manifestation of the social rules and moral norms that govern a
reasonably good society, and even though it is not the final arbiter on the content and force
of those rules and norms it derives from the moral contents that citizens bring out in
deliberative process of democratic evaluation. Principles of justice cannot be set out a priori,
as in some Kantian versions of political liberalism. Rather, they emerge from communicative
engagements oriented to the achievement of moral consensus between participants, who
evaluate validity claims associated with their conceptions of the good.

As I have argued, the practice of civil disobedience is related to the perception of

an infringement of fundamental rights that a person believes she is entitled to for the pursuit
of her substantive values and for the safeguarding of her life and dignity. The communicative
requirement follows from the fact that if some fundamental right has a universal appeal, then
its content and substance should be rationally accessed by other citizens in the state. It is the
dissidents duly to make his claim accessible to his peers.
These communicative acts are not something alien to the democratic procedure,
since as Habermas (1996: 302-308) points out, discursive deliberative procedures begins in
the weak public, that is, the sphere of opining-formation, where new problem-situations
can be perceived, and discourses aiming to achieve self-understanding are widely conducted.
In this sense, Brownlee is correct in noting that civil disobedience can sometimes arise in a
violent form, as when the harm caused by a law or policy is such that only a counteract of
violence may re-establish the civil liberties that have been suspended. Moreover, when state
institutions fail to give voice to oppressed citizens, violence can be the only way to open up
channels of communication. This view has been discussed by Herbert Marcuses in the article
Repressive Tolerance (1965), where the author advocates the legitimacy of violence in
societies where political and economic structures of power favour the perpetuation of a state
apparatus in which the rules of the democratic debate are set a priori by dominant elites. In
those societies, even the exercise of political rights (voting, letter-writing to the press and
representatives, as well as non-violent protests), serves to reinforce the control of the
government by endorsing its political methods and maintaining an appearance of democracy.
We should never forget that everything Adolf Hitler did in Germany was legal said
Martin Luther King Jr. (2). In the concentration camp, there is little to be achieved without
violence.
In sum, Brownlees perspective is much more consistent that the Rawlsian
conception of civil disobedience, even with regard to the publicity of the act. Since
announcing the intention of breaking the law gives the authorities the opportunity to abort the
civil act, hindering the possibilities of communication, convert civil disobedience can be
carried out as long as it followed by an acknowledgement of the act and the reasons for
taking it. In this sense, thwarting or sabotaging some practices, as anti-abortion groups do to
block abort clinics, or anti-war activists, in military properties, can be considered a form a
civil disobedience (Brownlee: 20-22). In fact, even assistive disobedience, which is the
breach of law perpetrated with aid purposes, can be considered civil disobedience if along
with the help offered the author of the act has a conscious attitude towards the substance of
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his deed, believe it is normative, and is willing to provide reasons when requested. With this
in mind, civil disobedience can still be broadly understood according to Brownlees lines as
having a backward-looking (the communicate disavowal) and forwarding looking (the
persuasive endeavour).
Conclusion
In this paper, I have addressed the problem of the conception of civil
disobedience as well the requirements for its justification. I have drawn on Kimberley
Brownlee to assess John Rawlss views on civil disobedience, pointing out that the latter fails
to recognise the open-ended character of the democratic process from which the range and
scope of political principles are derived, which leads him to advance a modest and biased
conception of civil disobedience. Against this perspective, I contended that civil disobedience
involve any right claim that is considered fundamental according to a certain conception of
good life, provided that the claim has a universal appeal and it is supported on the basis of
good reasons. In this categorisation, civil disobedience can be understood as part of a
communitarian process of communicative rationality, which takes place in the wide public
sphere, but is distinguished from other objects of democratic deliberation for dealing with
issues that are essential to the preservation of a persons or groups lifestyle and dignity.
References

Brownlee, K. (2012). Conscience and Conviction (Oxford: Oxford University Press).

Federal Constitutional Court, 1 BvR 357/05
Habermas, J. (1996). Between Fact and Norms: Contributions to a Discourse Theory of Law
and Democracy (2nd ed). Cambridge: The MIT Press.
Habermas, J. (2006). Religion in the public sphere. European Journal of Philosophy, 14, 1,
2006, p. 125.
King, Martin Luther, Letter from Birmingham Jail
https://www.africa.upenn.edu/Articles_Gen/Letter_Birmingham.html
Rawls, J. (1999). A Theory of Justice (revised edition) (Cambridge, MA: Belknap Press).
Sandel, Michael J. (1989). Moral Argument and Liberal Toleration: Abortion and
Homosexuality, 77 California Law Review. 521