Can There be a Right to Civil Disobedience?

Civil disobedience, as theory and practice, has seen intense debates regarding its relevance in socio-political spaces and legal jurisprudence. The history of civil disobedience can be traced back to Prometheus’ disobedience of Zeus in order to give fire to mankind and Antigone’s showing dissent of Creon’s edict denying a proper burial to her brother Polynices. The theoretical foundations of civil disobedience are interlined with a religious undertone that gradually developed into a secular form of action against repressive and unjust governments and laws. It is introduced by Henry David Thoreau in his nonpareil essay, ‘Civil Disobedience’. Thoreau’s refusal to pay government tax was intended to be a symbolic representation of his rejection of the federal government’s aggressive stance in the war against Mexico, support for slavery in the South and the gross violation of human rights of the native Indian community

Civil Disobedience: Perspectives and Thoughts

Civil disobedience evoked a deep sense of inquiry and interest after the 1950s. Thoreau’s concern about the majority holding the minority to ransom even in a constitutional democracy paved the way for intensive debates, discourse, and discussions on civil disobedience. Thoreau once famously said, ‘That government is best which governs the least’. Thoreau’s construction was that with a government which is representative, of the people’s will can be abused and perverted for the sake of power and authority, then the requirement of the people to challenge, contest and change unjust laws or policies of an abusive government becomes not just a right but a moral duty.

The controversial Fortas-Griswold theory was based on the premise that the only persons who could commit civil disobedience justifiably would be those who are victims of injustices. Therefore it is assumed that a person or citizen remote to an injustice committed has no responsibility or right to take to civil disobedience or even resist. Martin Luther King Jr attacked this very narrow notion of the responsibility of a citizen and conscientious resistance towards the government or its laws.  ‘Injustice anywhere is a threat to justice everywhere and therefore whatever affects one directly affects all indirectly’. Luther further enumerates through his vivid description that taking to civil disobedience is like creating constructive tension in society that will help men free themselves from the depths of prejudice and racism to the majestic heights of understanding and brotherhood.

M.K. Gandhi, a lawyer, initiated his struggle against the segregation and discrimination affecting Indians in South Africa. He used non-cooperation and ‘Satyagraha’ as powerful techniques to pressure the South African government as a reminder of their unjust systems. Gandhi said ‘There is a higher court than the courts of justice, and that is the court of conscience. It supersedes all other courts.’ Gandhi’s civil disobedience did not stop short at British colonialism but rather attacked all laws that fell short of one’s conscience. In the famous 1922 trial, Gandhi who was accused of preaching sedition accepted the charges leveled against him by accepting the verdict fully aware that he was in contravention of a law that was in force. He, however, argued that he was forced to contravene because the said law had done irreparable damage to the spirit and dignity of his fellow countrymen. It was beyond the measure of his conscience to accept such a law and continue to be a subject of a foreign power. Ultimately, through continued boycotts and struggles, India was freed in 1947. Therefore, Gandhi’s civil disobedience was not against an unpopular and repressive government but it was against a system which conflicted with one’s conscience and reason.

ambedkar_blog1
Dr. B. R. Ambedkar visiting a coal-miner’s colony, December 1943

In Defense of the Right to Civil Disobedience  

The most frequently made argument against civil disobedience is, ‘It will be disastrous if everyone disobeyed the law’. This argument has serious shortcomings and is illogical. The civil disobedient is not urging disobedience of all laws but rather disobeys a law which is believed to be immoral. Dr. B.R. Ambedkar and thousands of Dalits while entering temples, wells and other public spaces which otherwise ostracized the untouchable community, did so with the strongest of the intent of disobeying something as inhumanely unjust as the caste system, yet he never urged the disobedient to break other laws of the land.

Throughout the course of history movements and acts of civil disobedience have helped to ferment a more vigorous human rights culture and social change. Change as we know is bound to be attacked by a static, non-malleable, rigid and a narrow society which will eventually label the masses as radical and extreme. To quote Martin Luther King, Jr, ‘was not Jesus an extremist of love – love your enemies, bless them that curse you, pray for them that despitefully use you’. Was not the Jewish prophet Amos an extremist for justice: ‘let justice roll down like waters and righteousness like a mighty stream’? Was not John Bunyan an extremist: ‘I will stay in jail to the end of my days before I make a butchery of my conscience’? Was not Thomas Jefferson an extremist: ‘We hold these truths to be self-evident, that all men are created equal’?

The right to civil disobedience can be argued as a powerful constitutional device that secures the people a stable and just legal system. According to John Rawls, “When citizens engage in reasoned and thoughtful resistance through civil disobedience, it can serve as checks on the constitutional system to prevent injustices”. To deny this right is in a way projecting the utopian construction of a ‘Perfect’ state and ‘Perfect’ justice. No governments or states can be deemed perfect even if they are the most progressive of democracies. The evolution of a socially just and conscious state can only be achieved through the active participation of its people in going beyond the general obligation to abide by the law. Citizens who engage in civil disobedience are demonstrating the greatest virtue of all by highlighting to the government or state that repressive law or policy needs to be reassessed or discarded if necessary.

By Nirmal Das

nirmaljdas@gmail.com

 

References:

Bedau, H. A., Civil Disobedience in Focus, Routledge, 1991.

Plato, The Last Days of Socrates, Penguin Books, 1959.

Thoreau, H. D., Civil Disobedience, 1848.

King, M. L., Jr, Why We Can’t Wait, Harper and Row: New York, 1963.

Storing, H. J., the Case against Civil Disobedience, Rand McNally, 1969.

Rawls, John, A Theory of Justice, Harvard University Press, 1971.

Morreal, John, The Justifiability of Violent Civil Disobedience, Canadian Journal of Philosophy, 1976.

Haksar, Vinit, Civil Disobedience, Threats and Offers: Gandhi and Rawls, Oxford University Press, 1986.

 


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