The interminable saga surrounding the teacher Enoch Burke and what a High Court judge calls his “egregious disobedience” of a court order not to attend the school that has dismissed him brings into focus a philosophical question that has puzzled thinkers for centuries. What are the appropriate limits of civil disobedience?
Burke has framed his case as one of “religious freedom” and claims he is being punished for his Christian beliefs. But what happens when individual conscience clashes with the law? And do actions based on religious conviction merit greater moral weight?
You can go back to Ancient Greece to find the first investigations of the matter. In the play Antigone, which Sophocles wrote in Athens in the fifth century BC, the newly crowned King Creon issued a diktat that his nephew Polynices, who was killed in battle, shall lie unburied as mark of disgrace. Polynices’ sister Antigone regards this as a breach of a higher law – the law of the gods which commands family to give their kin a proper burial. She defies her uncle, despite knowing it will lead to her death.
Political philosophers from Plato to Thomas Hobbes also explored the limits of loyalty to the state, but it wasn’t until the mid-19th century that a concrete theory of civil disobedience emerged. That came with Henry David Thoreau, the American essayist, who was jailed for refusing to pay his state poll tax as a protest against the institution of slavery in the United States and its war against Mexico.
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Thoreau, who is widely credited with coining the term civil disobedience, was asked by a confused taxman how to handle his refusal to pay. Thoreau advised: “Resign”.
Certain characteristics of civil disobedience were identified by Thoreau and later philosophers. These comprised, first, deliberate lawbreaking, which could be done directly by breaching an unjust law or indirectly by, for example, staging an unauthorised demonstration or breaching the peace; second, acting on principled or conscientious grounds; and, third, civility – acting in a way to persuade others, rather than trampling on their rights.
The liberal philosopher John Rawls is the most commonly cited theorist on the matter today. He emphasised a couple of additional characteristics of civil disobedience. One was that it should be public. There is no honour in breaking a law secretively – the whole point of civil disobedience, he argued, is to bring about a change in laws or government policies.
Rawls’s other condition is that civil disobedience is undertaken as a last resort. This was informed by his concern to manage competing belief systems in a pluralistic state. A baseline of “fidelity to law” was required from all citizens, Rawls argued.
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So where does that leave Enoch Burke, or any other individual who has clashed with the State over their beliefs?
Prof Kimberley Brownlee, a pre-eminent philosopher on the subject and the author of several reference works on civil disobedience, says Rawls “raised the bar” for the justified use of the practice. Some believe his conditions are too strict, and it is far from clear when a person can claim to have reached a situation of last resort.
To Rawls, people engaging in legitimate civil disobedience “operate at the boundary of fidelity to law, but have a general respect for their regime and are willing to accept the consequences of their disobedience” – in short “they are not revolutionaries”, Brownlee says.
“In my own view, ‘fidelity to law’ is not a necessary condition for civil disobedience. Gandhi is often pointed to as the paradigm case of a civil disobedient – rightly, even though he lacked fidelity to British rule in India.”
Religious conviction has the potential to change the moral calculation, as there are some forms of civil disobedience that are faith-specific. One cited in literature is the campaign by members of the Sikh community to wear turbans instead of crash helmets when riding motorcycles. A blanket law requiring all citizens to act in a particular way can be unjust for some but not for others.
Does that mean religious motivation, or an underlying religious faith, gives greater licence for acts of civil disobedience?
“Briefly, in my view, no,” replies Brownlee. “A person who is moved by religious conviction to civilly disobey the law does not have a greater licence to do so than does someone whose convictions are equally sincere, serious, and persistent, but non-religious. In my view, civil disobedience is a highly constrained, conscientious, and communicative breach of law undertaken with the aim of expressing one’s opposition to a law or policy. In my account, conscientiousness is crucial and it requires four things, none of which requires religious belief.”
Her four conditions are:
- consistency between our declared beliefs and our conduct (ie “walking the walk, not just talking the talk”);
- universal judgment of ourselves and others (ie the conduct we oppose would be wrong in our eyes not just for us to do but for anyone similarly placed to do);
- nonevasion (ie we don’t seek to evade the consequences of our conviction);
- dialogic effort (ie we seek to offer reasons for the beliefs we hold; we engage with others at the level of dialogue – not coercion – to try to effect changes in the law).
“As I say, none of these elements turns on religious belief. Nonreligious beliefs can be equally deep, serious and sincere, and their holders can satisfy these four conditions for conscientiousness equally well,” she says.
Brownlee’s four conditions may lower the bar for conscientious protesters, but it is still not a free pass. A sentiment that lawbreaking should be a relatively exceptional response to an injustice is shared by all mainstream theorists.
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The last word goes to the author of On the Duty of Civil Disobedience, first published in 1849: “If the injustice is part of the necessary friction of the machine of government, let it go, let it go; perchance it will wear smooth – certainly the machine will wear out,” said Thoreau, “but if it is of such a nature that it requires you to be the agent of injustice to another, then, I say, break the law. Let your life be a counter friction to stop the machine. What I have to do is to see, at any rate, that I do not lend myself to the wrong which I condemn.”
