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

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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., 271. 6 moral right to civil disobedience; in illiberal states, that moral right exists. Let us examine his argument and conclusion in some detail.

The argument is straightforward: In illiberal states, where the state is violating citizens’ rights to political participation, individuals may exercise their moral rights as if they were recognized by law. Therefore, citizens of an illiberal state have a moral right to civil disobedience as a substitute for their absent right to political participation.10 However, Raz points out, exercising one’s right to civil disobedience in illiberal states involves breaking the law—if, for instance, the people in an illiberal state are unable to freely express their thoughts about government policies. Those who publicly convey critiques or dissenting opinions about the government may be jailed. If individuals in that state were entitled by law to speak freely, they would not be punished. The illiberality of depriving individuals of freedom of speech, in this case, has the potential effect of narrowing down the moral right to political action of members of illiberal states.11

In liberal states, however, no such right to disobedience exists. When an authority publicly accepts and recognizes by law one’s right to political activity, according to

10 Ibid., 273. 11 Ibid., 273. 7

Raz, such activity can never legitimately entail breaking the law.12 Members of liberal societies, where the liberal principle is adequately recognized, are entitled to engage in political actions by the right to political participation which, unlike civil disobedience, is limited in several aspects: It is necessary to respect the same right in others; it is only one among a catalogue of rights and does not have an absolute value; and it can validate and support certain actions but not others.'3

Setting limits on citizens’ political actions and right to political participation is, thus, a central feature of Raz’s argument. In the liberal state, where citizens’ right to political participation is limited and recognized, a moral right to civil disobedience does not exist, and civil disobedience is never justified. Raz is claiming that civil disobedience is better conceived of as an action in terms of rightness or wrongness than as an action that one is entitled by a moral right to perform. In a liberal state, therefore, it is sometimes right to engage in civil disobedience to protest against unjust laws or policies, but it is wrong to argue for a moral right that supports this activity.

For Raz, the power of civil disobedience as a means of political action in a liberal state derives from its exceptional character. This exceptionality is justified beyond

12 Ibid., 274. 13 Ibid., 271. 8 the toleration that is set by the general right to political participation, but does not mean that a citizen in a liberal state can claim a right to civil disobedience. In Raz’s view, it is in the absence of such a right that the exceptional character of civil disobedience becomes clear: first, agents who engage in civil disobedience should be certain that their action is genuinely justifiable, as they are not entitled to it; and second, those engaged in the defense of civil disobedience are disadvantaged due to its divisive nature. The exceptional character of civil disobedience “lies precisely in the reverse of this claim, in the fact that it is (in liberal states) one type of political action to which one has no right.”'4

As Raz emphasizes, an accepted authority in liberal states can grant protection of its members’ permissible political actions. Raz’s view presupposes that in liberal states permissible actions fall within the boundaries of legally declared political rights. Citizens can pursue political goals of all kinds that lie within the formal limits of law.

Let us summarize Raz’s argument: There is no moral right to civil disobedience in liberal states because there are properly legal forms of political participation in such states. Establishing a moral right to civil disobedience grants legitimacy to the civil disobedience of our political opponents. The legitimacy of civil disobedience does

14 Ibid., 275. 9 not depend simply on the rightness of the cause one is supporting, but also on the forms that such political action may take. Finally, the legitimacy of civil disobedience is not enough to claim that it establishes the existence of a right to civil disobedience.

II.

Given this line of reasoning, the question is why, in a liberal regime, political rights cannot provide the foundation for a right to civil disobedience. Raz’s answer is this:

“Every claim that one’s right to political participation entitles one to take a certain action in support of one’s political aims (be they what they may), even though it is against the law, is ipso facto a criticism of the law for outlawing this action. For if one has a right to perform it its performance should not be civil disobedience but a lawful political act. Since by hypothesis no such criticism can be directed against the liberal state there can be no right to civil disobedience in it.”15

Given this argument, Raz may appear far too convinced of the existence of fair and adequate access to participation mechanisms in liberal states. Insofar as citizens’ right to political participation is framed under legal rules that all must accept, it is reasonable to argue that citizens in liberal states will not resort to civil disobedience to support their political goals. For Raz there are proper legal ways in which citizens can participate and be heard in the policy - making process and persuade others to

15 Ibid., 273. 10

accept their political arguments. Therefore, no right to civil disobedience can exist in liberal states.

There are reasons to be skeptical about this argument. In my view, Raz’s conception of civil disobedience is flawed insofar as it is limited by a rigid understanding, exclusively bound by legal presumptions, of the relation between political rights and permissible political actions. Raz is implying without further argument that every lawless act of political action criticizes the liberal principle. Let us imagine a liberal state in which citizens hold legal rights to political participation. We may suppose as well that this bundle of rights allows actions x, y and z. The scope of these political rights is independent of the political aims that each citizen is willing to seek. Now, if the disobedient engages in opposition to a law or policy not through x, y, and z actions but through a, b, and c actions, which are unlawful and not subsumed in the bundle of political rights, Raz’s view suggests that the disobedient is not just involved in a impermissible action but ipso facto is also adopting an attitude that constitutes a direct criticism of the law, whose purpose is to recognize the political participation of citizens.

Do unlawful acts of civil disobedience in which citizens engage to protest a law or policy constitute criticism of the formal right to political participation? Not necessarily. Despite the unlawfulness of some actions in which citizens typically 11 engage to support their political aims (such as protests, street marches, and boycotts), the disobedient is not necessarily criticizing the law for outlawing that political action. More precisely, he or she is challenging the injustice of the law.

Engagement in unlawful actions to oppose a law or policy may be totally contingent on or independent of the law that recognizes the political right to participate.

A distinction must be made: in some circumstances, some disobedients may oppose through actions all laws and attack the right to participation for not outlawing their unlawful actions. But these are, in the traditional classification that Raz uses, acts of revolutionary disobedience that are politically motivated to breach the law in order to change constitutional arrangements or the government. There are other acts of civil disobedience, however, that are more limited in that agents claim to be motivated to breach the law only to request changes to or protest a particular law or policy, but not to reject the very existence of law. Engaging in civil disobedience in order to achieve various political aims does not mean an ultimate nonconformity with the law that makes political participation possible in a liberal state.

David Lefkowitz makes a related argument that also casts doubt on Raz’s conclusion. Lefkowitz’s conception of civil disobedience includes the concerns discussed above about political and moral agents who aim to modify existing laws while also recognizing the right to political participation bestowed by the legitimate state and supporting the prevailing bundle of rights and political system. 12

Contrary to Raz’s argument that the performance of an action covered by a political right should conform to the form in which it is sanctioned by law, Lefkowitz argues for a disjunctive relation: A citizen of a liberal state is either morally bound by its laws or permitted to engage in suitable, constrained forms of civil disobedience.16

Lefkowitz argues that a legal order constitutes a collective-action scheme through which individuals are able to coordinate or cooperate to fulfill their rights. In such a scheme, disagreements may tend to emerge over the form of the collective action these individuals will undertake when there are two competing morals or political demands about a law or policy.17 In a liberal state, one expects that a democratic decision-making process will settle these disagreements. Yet, Lefkowitz argues, citizens of minority groups often (and justifiably) complain after these decisions are made that with more time for deliberation or more resources to expound on their arguments, their own position and vision about the law or policy might have won majority support.18

Lefkowitz therefore argues that the right to political participation should be understood to include a more specific moral right: to contest the decision reached

16 David Lefkowitz, “On a Moral Right to Civil Disobedience,” Ethics, Vol. 117, No. 2 (January 2007), 202-233, 215. 17 Ibid., 213. 18 T U : A 13

through such a procedure by a variety of means, including suitable constrained civil disobedience.19 This is because the best understanding of the relation of rights to political participation and civil disobedience “is one that reduces as much as possible the degree to which it is a matter of luck whether one attracts majority supports for one’s reasonable view regarding what justice requires, consistent with the ability of the state to achieve those ends that provide a moral justification for its existence and authority.”20

Lefkowitz’s argument implies that in liberal societies, where citizens are usually motivated to participate, even by engaging in civil disobedience, they are not protesting their rights to participation by defending their causes. It is possible to extrapolate from the components of political rights a moral right to civil disobedience that will attract majority support for a minority group’s interest in forming critical opposition in order to make changes to a law or policy, thus yielding greater justice or fairness.

Raz is totally suspicious of the view that political participation rights implicitly sanction political acts carried out for moral or political considerations that are unlawful. This is because agents in liberal states that tend to resort to unlawful acts

19 Ibid. 20 Ibid. 14

may attempt, Raz says, to routinize these impermissible actions and make them a regular form of political acts.21 From Raz’s standpoint, to argue for a moral right to civil disobedience in liberal states one must explain why political rights to participation in a liberal state include such a right.

If only political actions that conformed to the parameters of law were permissible, it would never be possible to challenge the view of a majority about the justice or fairness of a law or policy. One reason for this is that the law cannot cover all political actions. Legal means and political participation rights set a necessary framework for certain forms of democratic political actions, but this structure cannot capture the autonomy or political convictions of agents. A liberal democracy will expect that all citizens behave by the principles set out in the constitution and the political culture—many of which are dominated by a strictly legal perspective on legislative procedures of decision making. But occasionally, there are certain circumstances in which inequality exists between the participatory power of majority and minority groups; in these instances, it might be permissible to engage in actions that are not contained in the scope of the law and express opposition or criticism through unlawful means.

21 Ibid., 275. 15

If civil disobedience is a politically motivated breach of law to express opposition or to change a particular law or policy, it requires the recognition of a component of illegality which generates, by definition, the sort of political and moral action in liberal states discussed above. Indeed, to acknowledge adequate protection of diverse and plural forms of political action in liberal states, some space must be made for endorsing at least the toleration of that portion of illegality. Given how significantly political rights can be understood, and how the moral right to civil disobedience will reduce the imbalance in power inherent in participatory mechanisms used to organize collective actions, it can be argued that a moral right to civil disobedience as an unlawful political act exists in the context of rights to political participation in a liberal state.

One preliminary objection to this view might be that even if political participation mechanisms in a liberal state suffer from some deficits, the proper way to balance them is always to vindicate permissible actions within the scope of political rights and not push citizens to unlawful political acts.

So why opt for civil disobedience that might have undesirable results, rather than legal actions? That and the question of whether a legal action or an act of civil disobedience arises as a way to solve particular deficits in the law- or policy-making process seem to be difficult to answer. There must be evidence that in some 16

circumstances it is both desirable and possible for legal means to balance the powers of the majority and the minority. It may be possible in liberal states, but more often may result in some unbalance that disadvantages the minority group. In this case, legal means seem to be at odds with the possibility to appeal for unlawful means; engaging in civil disobedience justifies possible appeals to moral or political convictions. This is how groups of citizens tend to put civil disobedience into practice.

Raz’s account is too narrow to account for moral protection in a liberal state in cases such as where an agent who judges the balance between majority and minority uneven, and therefore, instigates civil disobedience. On the contrary, the defense of a moral right to civil disobedience discussed above, as connected to Lefkowitz’s framework involving the collective-action scheme, can explain the decision to undertake disobedience without proceeding outside the justification for the existence and authority of political rights.

Civil disobedience is a moral right, a claim of contestation that exists as a complement to the political rights that exist in liberal states, which under possible imbalances in the participatory power of decision making between the majority and the minority can be used as a morally and politically justified participatory act.

Therefore, the right to civil disobedience derives from the right to political 17

participation. This latter right plays an important role in liberal democratic citizenship: it establishes the right to take part in public affairs, the freedom to express political will, the right to vote and elect representatives and, in general, the terms of equality and equal opportunity for everyone who has access to the government decision-making process.22 Some conception of this moral right holds that the right to civil disobedience is a component of this bundle of political rights in a liberal constitutional state “that would be affirmed by a reasonable conception of justice.”23 It follows from this argument that in a hypothetical procedure to choose the principles of justice, agents will prefer a set of political participation rights that include a moral right to civil disobedience over others which do not have this particular right to disobey.24

There is another argument to consider in answering the question of why political rights to participation in a liberal state entail a moral right to civil disobedience. I argue that Raz’s account sacrifices for legal considerations the political enhancement that civil disobedience may contribute to collective decisions, affecting the moral and political conviction inherent in the nature of civil disobedience. By refusing to recognize the claim that there is a moral right to civil

22 See Art. 25 of the International Covenant on Civil and Political Rights. 23 William Smith, “Civil Disobedience as a Moral Right,” in Civil Disobedience and Deliberative Democracy (New York: Routledge, 2013), 85. 24 Ibid., 93. 18

disobedience in liberal states, Raz declines to consider how civil disobedience can be a vehicle through which citizens in liberal states express political engagement in decision making, and how it cannot be bracketed by the force of law shaping political rights. In my view, by limiting civil disobedience to exclusively illiberal states, Raz is constraining the right to participation itself by imposing a constricted relation between adequate legal political actions and moral rights.

An alternative definition of the moral right to civil disobedience can be derived from the right to political participation in a liberal democracy. I will focus on the two types of rights I have discussed above: those that are conferred and shaped solely by the legal system, and those that are non-legal moral rights.

Raymond Frey defines a moral right as a “right which is not the product of community legislation or social practice, which persists even in the face of contrary legislation or practice, and which prescribes the boundary beyond which neither individuals nor the community may go in pursuit of their overall ends.”25 According to Joel Feinberg, the category of moral right can overlap with legal rights, so a given moral right x can also be recognized and enforced by law Y. However, the existence of the moral right x does not depend on the legal recognition given by law Y. For

25 R.G. Frey, Interests and Rights: The Case Against Animals, cited in Joel Feinberg, “In Defense of Moral Rights,” Oxford Journal of Legal Studies, Vol. 12, No. 2 (Summer 1992), 151. 19 example, the political right of women to vote, banned for many years throughout the world but long considered a moral right, is now a recognized legal right.26 The stronger sense of moral rights argues that one’s moral right comes from a universal morality, which exists independently of social practices and goes deeper than social norms or legislation; for example, despite social context or legislation, all humans have a right to life. It is manifestly impermissible to kill someone in order to have fun, for instance.

Since in liberal states no such moral protection can be made with regards to civil disobedience without reducing interest in lawful political acts, Raz is denying the democratic uprightness that civil disobedience can bring to a society and to deliberation. By considering civil disobedience as a moral right, it might be possible to create conditions in which this entitlement can encourage autonomous citizens to engage, even if it is through an unlawful dissent action, and to express their interest in democratic states.

However, as this argument asserts that a moral right to civil disobedience might imply a broader toleration of lawbreaking for political and moral reasons, a fair criticism would be that such a stance of moral rights exhorts citizens to wrongdoing

26 Feinberg, “In Defense of Moral Rights,” 150-1. 20

and resistance to authority—that society would not benefit from any increased

political virtue on the part of citizens or good to the society. Instead, society would

be only subversive and prone to a disruption of order and an undemocratic

deliberation. Therefore, if there is a moral right to civil disobedience one might risk

leading the liberal state to perish through political dogmatisms or moral blindness.

The liberal state should restrict citizens to fair and legal democratic political actions.

*> The distrust about a moral right to civil disobedience is based on the idea that it might normalize or routinize unlawful political actions. It relies on a simple understanding of disobedience as a disruptive and selfish action to express dissent or oppose a law or policy. The claims defended above about the moral right to civil disobedience are most appropriate to restrain the legitimacy of civil disobedience in the context of collective actions seeking to change law or policies in the direction of greater justice or a fairer balance of power in the political deliberation.

In that respect, the concept of civil disobedience I have defended refuses to be

labeled as a revolutionary disobedience. It is assumed that when the prevailing social and political conditions do not meet the necessary balance of justice and equality in the participatory decision-making process, justifications of the moral right that outweigh compliance with lawful political actions will be available. At the 21 same time, civil disobedience, as I understand it in this paper, is a political act justified by moral principles and the public good. As Rawls has pointed out, civil disobedience is built on “political convictions,” not group self-interest, and those convictions, within a constitutional democracy, are framed by the collective good.

As Rawls points out in A Theory o f Justice, civil disobedience arises among those citizens “who recognized and accepted the legitimacy of the constitution.”27

Through serious, conscientious, public, and political acts, dissenters seek to urge “in a viable democratic regime” reconsiderations of the unjust conditions that may persist regarding some fundamental rights and liberties of minority groups within the political community.28

Thus, it is plausible to think that a liberal society and a democratic system must be prepared to override radical positions and actions (nonviolent actions) in adhering to the liberal orientation of obedience to the law. In fact, I think that one of the advantages of giving disobedience the status of a moral right is that the act-type of disobedience is closely linked with democratic ideals: that autonomous citizens strive to achieve a better conception of the sense of justice expressed in the

27 Rawls, A Theory of Justice (Cambridge: Harvard University Press, 1999), 319. 28 Rawls, "The Justification of Civil Disobedience,” 183. 22 constitution by means of political participation guided through their political and moral convictions.

In other words, those unlawful political actions reflect how citizens see the law and the state, and help them shape and enhance their moral and political convictions about justice and politics. The simplest cases of disobedience can be recognized as parts of a moral learning process for the agent and democratic society in general.29

Acknowledging civil disobedience as a moral right will promote a conscientiousness about political values, political action, and political conviction, and society will benefit from citizens who are willing to secure and protect their sense of justice. By ignoring the importance of disobedience and the significance of this moral right, the state will deprive society of the opportunity to learn from the points of view of dissenters. In many circumstances, these views clearly embody the prototype of the politically and morally loyal citizen who pursues justice, even through a more combative approach to political participation in democracy.

29 Erich Fromm, On Disobedience: Why Freedom Means Saying “No” to Power (New York: Harper Perennial, 2010). 23

III.

I have argued that, according to Raz, civil disobedience is justified or even obligatory in certain circumstances but the existence of a moral right to disobedience varies from one kind of political regime to another. A conceptual difference appears in the midst of civil disobedience theory: moral and political justifications for civil disobedience as a legitimate act on the one hand and the concept of a moral right implicitly attached to civil disobedience on the other.

This twofold conceptual distinction leads to the question of how the political right to participation might entail the moral right to civil disobedience and how Raz’s conclusion denying this moral right in liberal states is invalid. I argue that such a moral right can, indeed, exist in liberal states and that it may plausibly derive from the bundle of political participation rights. However, attempts to establish the content and scope of the right to civil disobedience in a democratic society remain contested. I have roughly sketched several preliminary ideas on this topic.

If the purpose of civil disobedience is to alter injustice in a law or policy through political actions that can be unlawful, then the discussion about the nature of a moral right to civil disobedience, its contents and scope, must continue in order to create awareness of the usefulness that political convictions can play in pointing out 24

injustice in laws and policies.30 Furthermore, such a moral right should include a

broader understanding of political convictions, political plurality, and the validity

not only of lawful political actions but also of other practices and attitudes of

political contestation towards policies and laws. Sometimes a rigid understanding

of legal rules and political actions prevents us from seeing that recognizing the

moral right to civil disobedience would contribute to advancing and addressing the sense of justice of minorities in a deliberate democratic society.

30 Kimberley Brownlee argues that, by examining what she calls the “paradigmatic cases of disobediences,” it is possible to show how conscientiousness plays a significant role in this context of non-legal interference. As Brownlee has suggested, the conscientiousness of civil disobedience is not a virtue but an attitude marked with two attributes of sincerity and seriousness. That means that the values and beliefs behind a dissenter’s political or moral commitments are sufficiently weighty in her or his defense to breach the law or to warrant its revision. Moreover, to abstain from engaging in disobedience against a law or a policy that she or he believes is unjust would be morally inconsistent or constitute a lack of respect for her or his values. In light of these attributes, when institutions, authorities, or courts penalize disobedience, they end up giving weight to these convictions and values. See Kimberley Brownlee, “Features of a Paradigm Case of Civil Disobedience,” Res Publica, 10 (2004), 334-57; see especially pp. 341-2. 25 References

Brownlee, Kimberley, “Features of a Paradigm Case of Civil Disobedience,” Res

Publica, 10 (2004), 334-57

Feinberg, Joel, “In Defense of Moral Rights,” Oxford Journal of Legal Studies, Vol.

12, No. 2 (Summer 1992)

Fromm, Erich, On Disobedience: Why Freedom Means Saying “No” to Power (New

York: Harper Perennial, 2010)

Lefkowitz, David, “On a Moral Right to Civil Disobedience,” Ethics, Vol. 117, No. 2

(January 2007), 202-233

Rawls, John, A Theory o f Justice (Cambridge: Harvard University Press, 1999)

______, Samuel Freeman (Editor), Collected Papers. John Rawls (Cambridge:

Harvard University Press:i999)

Smith, William, Civil Disobedience and Deliberative Democracy (New York:

Routledge, 2013)

Raz, Joseph The Authority o f Law: Essays on Law and Morality (Oxford: Oxford

University Press, 2009)