Dworkin On Civil Disobedience
PHL 271 12/1/98

Dworkin begins his discussion of civil disobedience by making a distinction between those that disobey a law out of greed, or for profit and those who disobey because they believe the law is unjust. The question that arises is whether or not this distinction leads to a difference in the way the government should deal with the two cases.

One perspective is that the law is the law, and that violators must be prosecuted regardless of their motivations for doing so. While proponents of this view recognise that disobedience may be morally justified, they do not believe that it may be legally justified. Dworkin disagrees, arguing that there are many reasons to think otherwise.

Dworkin says this position assumes the person knows that they are breaking a valid law. It is recognised that in America (and Canada) it is possible for a law not be valid because it is not constitutional. If no valid law is violated, there is no crime, and therefore must be no punishment. However, the validity of the law is not always evident.

Laws which many object to on moral grounds are doubtful on the basis of constituional arguments as well, because the constitution recognises the importance of political morality to validity. Dworkin illustrates his point with reference to draft resisters in the Vietnam war. Arguments on the basis of moral objections regarding the use of immoral weapons and tactics, or inequality in the draft process, lead to constitutional challenges. International treaties made many of the acts of war that protestors accused the government of illegal. The validity of the Tonkin Bay Resolution as a legal declaration of war was questioned. Critics also suggested that the draft was unconstitutional because it placed an unfair burden on some citizens, was discriminatory, and made distinctions between groups arbitrarily.

The government countered with the argument that the courts did not hold jurisdiction over the draft, and therefore questions regarding it were best left to other sections of the government. The Supreme Court rejected many of the arguments put forth by draft dissenters, and refused to consider others. Dworkin suggests that a competent lawyer would be justified in thinking that the dissenters had a stronger case, and that there would be no way to prove him wrong. This leads Dworkin to question how one should deal with the question of whether or not the law allows them to act in a certain way.

Dworkin offers the following options: He should obey the authorities and use the political system to change the law. If the law is doubtful he can use his own judgment until the court has reached a decision, qualified by the fact that one can wait until the highest court has ruled on it (The Supreme Court in this case.) He may use his judgment, taking into account the contrary ruling by the court, which may or may not change the outcome of his judgment.

Dworkin dismisses the first position as unreasonable. We do not expect people to assume the worst. This would prevent the person from testing the reactions of the community, and thereby determining what others deem to be acceptable within the law. Our practice also requires that a decison be criticised by those within the legal community. The last position is therefore valid, because it is reasonable to expect that the court could change their decision, as in the case of West Virginia's flag law.

The reversal of the Supreme Court's previous ruling in that case acknowledged that violating the law between the two rulings was not a crime. Dworkin suggests this is because that obeying the law despite their conscience would cause unnecessary injury to an individual. They should not be required to violate their conscience just because others believe him to be wrong.

Dworkin later says that "a man is within his social rights in refusing to accept that decision as conclusive."1 He suggests that government has a responsibilty to those who act out of conscience to try and protect him. This does not imply that he should not be prosecuted, however, because if he is never prosecuted then the court is not given the opportunity to act on his dissent, or the arguments generated by it. Dworkin states that the nature of the legal system is one of experimentation, and the confrontation of different positions. Citizens are invited to test legal arguments for themselves, with the proviso that if the courts disagree with them they may be punished. He believes that the nature of these arguments is that rule of law is supported by policies that advance the principles the law is supposed to respect.

These principles can be supported by the idea that people have a moral right to be free from the harm prohibited by the law. Laws that protect against personal injury or property damage. Others draw support from the perceived usefulness of the policies they promote.

Dworkins arguments that suggest civil dispbedience, people violating the law for moral grounds are compelling, as well as seemingly sound. What is not as clear, is what he means by morality. On some points he seems to contradict himself.

In his discussion of civil disobedience he frequently refers to a "moral position" without objectively defining what that is. He says that "the constitution makes our conventional political morality relevant to the question of validity... that morality raises constitutional questions"2 but fails to say why. He says that the moral objections provide base for the constitutional arguments against the draft, but the acts themselves provide that, not moral qulams about them.

His references to people using their own judgment and their conscience would suggest that morality is different for each individual. He does not believe that individuals are required to violate their conscience because others think they are wrong.3 This contrasts with his statements that many base their moral positions on false grounds of "prejudices, personal aversions and rationalizations"4 that he rejects as a basis for morality.

How is one to know if their moral position is right? What makes an act moral? Dworkin says that what makes an act moral "it involves no breach of an undertaking or duty, for example, harms no one including the actor, is not proscribed by any organised religion, and is not illegal."5 By this definition, the drinking of alcoholic beverages, consumption of pork, adultery/premarital sex, smoking, and even shopping and working on Saturday or Sunday, are all immoral activities, but we do not usually consider them such. Typically, our society regards these as only being prohibited to those individuals whose religious affiliations preclude them.

Fundamentally Dworkin's theory is that to take a moral position is to give reasons for your beliefs. This seems to be a better perspective, and he gives reasons for the actions of draft dissenters.6 This doesn't solve the dilemma of what a moral position is however, because this is essentially the same as a legal argument, the gathering of reasons to form an argument. The nature of the reasons is somewhat different but there is a great overlap between the two.

When incorporated into Dworkin's greater views of law as a whole, morality is part of the law working itself pure. Dworkin views law as an interpretive process, a model which distinguishes between the written law and past decisions, and the "full law". The latter incorporating politcal morality to provide a better interpretation.7 This still does not lead us to what that political morality is.

Dworkin rejects Devlin's view that legislators must decide moral issues according to the concensus of the community at large because this concensus includes custom and prejudice as well as reason. Rather he seems to suggest that a legislator must consider this concensus, rejecting that which is based on prejudice and rationalisation both from the concnsus, and from his own beliefs. The common ground between the two is almost a way of morality working itself pure. This clarifies the idea of a moral position, but it remains subjective because it relies on the position of the public, which is not necessarily constant. This also seems to conflict with the idea that a person can violate a law for reasons of conscience, despite the opinions of those surrounding him. Dworkin does not seem to answer this dilemma.

Dworkin himself suggests that a law is only useful if it can be practically applied, and the same could be expected for his theory of law. How does Dworkin's view account for modern acts of civil disobedience. Protests and confrontations in Canada, especially British Columbia (BC), over logging is a famous example, with protests at Temagami and Clayoquot Sound gaining worldwide attention.

Essentially the conflict arises from the fact that logging companies were granted the right to operate in BC's forests, and environmental groups wished to prevent this. Acts of civil disobedience included blocking roads and access to logging sites in Clayoquot Sound. The ongoing tension has many supporters on both sides, who typically argue the issue of jobs and the economy, against that of the environment.

To examine this, an important distinction needs to be made that Dworkin fails to address. In the case of the flag, or draft legislation, the law that protesters were breaking, was the law that they were protesting. This is often not the case in incidences of so called "civil disobedience", and is not exactly the case here. The law that environmentalists opposed was the legislation that permitted the logging companies access to the forests. The law that they were breaking, was an injunction ordering the removal of the blockades by the BC Supreme Court. More than 800 people were charged with contempt of court and sentenced to an average of 21 days in jail.8

In order to violate the law in question, to prevent the logging companies from harvesting the forests the activists violated another essentially unrelated law. (This shows up in the issue of abortion as well. It is difficult to violate a law that grants a freedom, because abstaining from the act is still in accordance with the law.) Dworkin fails to address this possibility in his writings. He does indicate strong arguments against violent civil disobedience on the grounds that it violates laws regarding damage to property and persons. Does this disapproval hold here as well?

It does not appear to in this case. The contempt of court charges, and any other possible charges including trespassing, are effectively a means to enforce the logging companies ability to conduct their business. In affect they are the way that the protestors are dissenting against the logging legislation. The protestors have a constitutional right to peaceful assembly granted by Section 2c of the Charter. This is subject to "reasonable limits prescribed by law" prescribed in Section 1, which in this case precluded them from assembling in such a way that it prevented loggers from reaching their destinations.

This example differs from Dworkin again in that it deals with Canadian and not American law. Do the loggers have a constitutional right to log? No they do not. The legislation, while it may or may not be constitutional, it does not carry with it explicit rights or freedoms for the logging companies. Section 1 of the Charter could conceivably provide a means for the protestors to change the law ff they can demonstrate that the environmental and economic impacts of irresponsible logging will lead to drasticly negative consequences.

If these consequences were sufficiently dire (Pollution, global warming, deteriorating health due to air quality, and their impacts on daily life for example.) as to impinge on people's "right to life, liberty and security of person" a compelling argument against logging could be made. This argument might not lead to the prohibition of logging, but if sufficiently demonstrated could lead to restrictions on it. This would be in fitting with Mill's statemtent that society should never pass a law to protect someone from themselves, but can do so to protect other people. A counterargument under the same principle might argue that it is within a persons rights to be able to earn a living in a legal manner. Neither argument can be disproved, rather they serve to support the opposing viewpoints.

Dworkin made other points that are significant to this case as well. Dworkin rejected the idea that a person should obey the laws of the authorities while using the political system to change the laws because it is not a reasonable expectation. It seems to fail here for reasons beyond that as well. Due to the nature of logging, and the efficiency of the political process, the issue could be solved in preactice before it is in law. If the trees are all gone, the legality of the logging company's continued operation is no longer significant. Protest sometimes lead companies to increase the rate of cutting to take advantage of this. Additionally, the political process can be largely controlled by the logging interests themselves. Often they will join with industrial and municipal governments to vote against environmentalists as in the current Lands For Life process. "Lands for Life is the prefect example of why environmentalists have to resort to civil disobedience" said one environmentalist representative.9

Dworkin also suggests a person could legitimately believe that a court decision was not the final ruling on an issue. The protestors could say this, and their actions eventually led to a change in policy by MacMillan Bloedel, (the logging company in question) abandoning the paractice of clear cutting, as well as revisions to to the decision process of how loggin in Clayoquot Sound would be dealt with.10

Other examples that morely clearly violate the law that they believe to be unconstitutional are available. For example, the infamous Dr. Kevorkian assisting someone to commit suicide, breaks the law he is protesting. (One state even passed a law to keep him from continuing this practice.) He believes that people have a right to end their own lives, and that if they are unable to do this for themselves, it is legitimate for someone to assist them. (It is noteworthy that this is different from saying that it is acceptable to kill someone "for their own good" such as the Latimer case in Canada.) This position implies that the person to die has willingly and consciously chosen to end their life, but is for some reason unable to fulfill this wish. Mill's principle again applies, in that he believes you should not prohibit things to protect people from themselves. Dworkin's definiton of an immoral act also seems to support this, because no one is harmed but the individual choosing to die. (A point which is very controversial, and many would disagree with.)

Dworkin would likely have a lot to say on that issue as well. In both cases he provides us with a way to examine morality and civil disobedience, but does not provide an all encompassing rule with which to judge the legitimacy of it. Perhaps this is best, because it seems to be in the nature of civil disobedience, and Dworkin's arguments, to differentiate between situations, and moral positions.

Footnotes

1Ronald Dworkin, "Civil Disobedience" in Law and Morality: Readings In legal Philosophy eds. David Dyzenhaus and Arthur Ripstein. (Toronto: University Of Toronto Press, 1996) 444.

2Dworkin, "Civil Disobedience", 437.

3Dworkin, "Civil Disobedience", 443.

4Ronald Dworkin "Liberty and Moralism" in Law and Morality: Readings In legal Philosophy eds. David Dyzenhaus and Arthur Ripstein. (Toronto: University Of Toronto Press, 1996) 307.

5Dworkin, "Liberty and Moralism", 305.

6Dworkin, "Civil Disobedience", 437.

7Ronald Dworkin, "Morality and Law" in Law and Morality: Readings In legal Philosophy eds. David Dyzenhaus and Arthur Ripstein. (Toronto: University Of Toronto Press, 1996) 89.

8Stewart Bell, "Loggers mourn as activists celebrate," Ottawa Citizen 10 August 1998, A6.

9 Brian McAndrew, "Lands For Life or logs for jobs," The Toronto Star 28 June 1998, F4.

10Stewart Bell, "Loggers mourn as activists celebrate," Ottawa Citizen 10 August 1998, A6.

Bibliography

Bell, Stewart. "Loggers mourn as activists celebrate." Ottawa Citizen 10 August 1998, A6.

Dyzenhaus, David. and Ripstein, Arthur. Law and Morality: Readings In legal Philosophy Toronto: University Of Toronto Press, 1996.

McAndrew, Brian. "Lands For Life or logs for jobs" The Toronto Star 28 June 1998, F4.

Ripstein, Arthur. Lectures. University of Toronto. Mississauga. 1998.

(Bibliography and Footnotes have been compressed onto one page in the interests of saving paper. It was felt that the moral arguments regarding paper waste outweighed those of conformity to customary procedure.) ;-)

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