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A Moral Right to Dissent? the Case of Civil Disobedience

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A Moral Right to Dissent? the Case of Civil Disobedience A MORAL RIGHT TO DISSENT? THE CASE OF CIVIL DISOBEDIENCE A thesis submitted to the faculty of San Francisco State University In partial fulfillment of The Requirements for The Degree ?W\L -02T5 Master of Arts in Philosophy By Juan Sebastian Ospina San Francisco, California May 2016 CERTIFICATION OF APPROVAL I certify that I have read A Moral Right to Dissent? The case of civil disobedience by Juan Sebastian Ospina, and that in my opinion this work meets the criteria for approving a thesis submitted in partial fulfillment of the requirement for the degree Master of Arts in Philosophy at San Francisco State University. Kevin Toh, Ph.D. Associate Professor, Philosophy Department Shelley Wilcox, Ph.D. Professor, Assistant Chair, Philosophy Department A MORAL RIGHT TO DISSENT? THE CASE OF CIVIL DISOBEDIENCE Juan Sebastian Ospina San Francisco, California May 2016 Joseph Raz has argued that in liberal states there is no moral right to disobedience. Raz claims that all states ought to be what he calls “liberal states,” which do not require a moral right to civil disobedience. Broadly, my focus in this paper is on describing how civil disobedience can be understood as a moral right to be included in the framework of political rights recognized in liberal states. I try to demonstrate that Raz’s argument proceeds from a limited understanding of political rights and political actions, and suggest that his conclusion is invalid or extremely exaggerated. I advance a tentative argument about the importance of this moral right to the political process of deliberative democracies, and of its inclusion in limited form among political participation rights. I certify that the Abstract is a correct representation of the content of this thesis. *!— cz.. iktu. Chair, Thesis Committee Date TABLE OF CONTENTS Page I........................................................................................... 3 I I.......................................................................................... 9 II I........................................................................................ 23 References ....................................................................... 25 1 In both theoretical and practical conversations about rights, disagreements arise around issues ranging from the particular rights that a positive legal system can create and protect, to what rights can be claimed in the context of the morality inherent in the principles of a liberal constitutional democracy. Two things are crucial to note within this broad debate. First, and most centrally, political rights to participation can be and often are controversial within a concrete political regime. Second, aspects of these political rights that are based in the moral aspects of our personal or community life are hotly contested. Thus, the assertion that “all citizens have a right to vote” because a law or statute creates that political right is certainly easier to substantiate than that “all citizens have a moral right to civil disobedience.” Even though democratic debates tend to focus more on political than on moral rights, the two are explicitly related in public discussions of the issues that concern citizens and officials. Moral rights often arise in ordinary assessments of the breach of law for moral or political reasons or of an official’s conduct in public life. The interaction between political rights and the moral right to civil disobedience raises contested questions: assuming that civil disobedience can be justified in a democracy, can an act of political dissent be predicated on the existence of a moral 2 right to disobey the law for political or moral reasons? How does a political right to participation entail a moral right to civil disobedience in a democratic state? Joseph Raz has argued that in liberal states there is no moral right to disobedience.1 Raz claims that all states ought to be what he calls “liberal states,” which do not require a moral right to civil disobedience. In “illiberal states,” citizens have such a right. Raz emphasizes that if this right exists under certain circumstances in liberal states, it can only be explained as a legal inadequacy: the state has failed to set the correct limits on lawful political participation.2 The purpose of this paper is to counterbalance Raz’s position, raise objections to his view of the nature of civil disobedience, and explore alternative accounts of the existence of this moral right. Broadly, my focus in this paper is on describing how civil disobedience can be understood as a moral right to be included in the framework of political rights recognized in liberal states. In this paper I examine in detail Raz’s argument against the existence of a moral right to civil disobedience in liberal states. I then demonstrate that this argument Joseph Raz, “A Right to Dissent? I. Civil Disobedience” in The Authority o f Law: Essays on Law and Morality (Oxford: Oxford University Press, 2009), 276. 2 Ibid., 276. 3 proceeds from a limited understanding of political rights and political actions, and suggest that his conclusion is invalid or extremely exaggerated. I advance a tentative argument about the importance of this moral right to the political process of deliberative democracies, and of its inclusion in limited form among political participation rights. In conclusion, I argue that in order to conceive of such a right, we must consider how to accommodate claims that are rooted in philosophical evidence of the political value of personal convictions to challenge and oppose unfair and unjust laws, even when the state as a whole can be perceived as reasonable, democratic, and just. I. The question that Raz raises in his essay “A Right to Dissent? I. Civil Disobedience” is not whether civil disobedience or other forms of lawbreaking are justified, but whether there is a moral right to such disobedience.3 In the discussion that follows, I will examine and outline Raz’s thesis that no moral right to civil disobedience exists.4 Raz defines civil disobedience as a “politically motivated breach of law designed either to contribute directly to a change of a law or of a public policy or to express one’s protest against, and dissociation from, a law or a public policy.”5 3 Ibid., 264. 4 Ibid., 276. 5 Ibid., 263. 4 Raz’s view, then, is that civil disobedience is an exceptional political act by which the agent primarily attempts to change an unfair public policy or law. He argues that civil disobedience can aim to be either effective or expressive (or both). Effective disobedience is justified as a tactic that directly contemplates a change in law or policy; expressive disobedience includes breaches of law, which can be ineffective but are justified as a conscientious means of expressing the agent’s opposition to a law or public policy. Raz accepts that agents who engage in such acts of civil disobedience should not be punished. Raz’s definition of civil disobedience is wider than other standard, liberal accounts of civil disobedience.6 Raz defines civil disobedience as a motivated political act that breaches the law in order to protest against or change directly a law or a public policy.7 With this broad definition, however, Raz does not provide the specific conditions or motives that would justify engagement in civil disobedience.8 For Raz such a line of reasoning would imply an endorsement of the existence of a general moral right to civil disobedience, which he does not accept. 6 For instance, John Rawls defines civil disobedience as a “public, non violent and conscientious act contrary to law usually done with the intent to bring about a change in the policies or laws of the government.” John Rawls, “The Justification of Civil Disobedience,” in Samuel Freeman (Editor), Collected Papers. John Rawls (Cambridge: Harvard University Press:i999), 181. 7 Raz, “A Right to Dissent?”, 263. 8 His analysis of disobedience deals with three kinds of law-breaking cases: (i) revolutionary disobedience, (ii) civil disobedience, and (iii) conscientious objection. Ibid., 264. 5 Raz believes that, to a certain extent, the attempts of many theorists to list conditions that justify civil disobedience have resulted from confusion between the justification conditions of civil disobedience and the existence o f a moral right to civil disobedience. What is relevant in Raz’s account is the importance of drawing that distinction: it is one thing to assert that civil disobedience in some circumstances is the “right” action, and another, quite different thing to claim that one has a moral right to civil disobedience. In short, according to Raz, there are two basic claims being made in the discussion about civil disobedience: (Ci) civil disobedience is a permissible political act, and (C2) there is a moral right to civil disobedience. Assuming a distinction between the two claims, Raz accepts the correctness of claim (Ci) but rejects claim (C2). Raz draws another important distinction regarding the kind of political regimes in which a moral right to civil disobedience exists. All states, according to Raz, can be divided into two categories: states where the “liberal principle” is legally recognized and states where it is not. The liberal principle establishes that every person has a right to political participation.9 States that accept the liberal principle are called “liberal states”; by contrast, states in which there is no recognition of the liberal principle are called “illiberal states.” Raz concludes that in liberal states there is no 9 Ibid.,
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