When engaging in political philosophy one should begin by being clear about one’s definition of politics. Broadly speaking, I see it as that part of human behavior which is aimed at making people follow a path determined by others. For that reason, ever since Aristotle, people have asked: “In who’s interest does the ruler rule?”
They have tried to analyze the comparative qualities of different systems of rule, in terms of their own interest vis-a-vis other sections of the community. Their judgment, being subjective, is determined by their assessment of what constitutes a fair share of scarce values and whether they believe that they are getting it.
These can include a voice in the organization of their society, as well as economic considerations. In other words, any form of activity specified by the system of rules, like for instance our restrictions on movement during the COVID-19 pandemic. This has resulted in civil disobedience by large sections of the population and involves both legal and moral matters. Legal, because it involves the authority of the government to impose such rules and moral because they should be seen and believed to benefit all the people.
If we want to define the relevant considerations that would confer on us the moral right to engage in civil disobedience or give to the ruling authority the moral justification to punish such acts, then we first need to examine what kind of obligation we as members of the state have to the government and what the governments obligations are to us; also, what our rights are and how the ruling authority acquired its right, if indeed it has one.
It can be argued, as the 17th century philosopher John Locke did, that in a political society the people transfer certain natural rights to a representative to be in authority. By such action we have entered into contractual obligation to abide by such laws as may be made by that authority, provided that they are for our benefit. It means that everyone who resides within the jurisdiction of a particular government has given at least their tacit consent and that is therefore a de jure authority. It follows that if what one considers to be “the public good” is not being pursued by the government, such consent can be withdrawn and the authority of that government need no longer be recognized, i.e. the contract is canceled.
On the other hand, one may disagree with the “contract theory” as the 18th century Enlightenment philosopher David Hume did. He held that those who give obedience to their ruler do so, because they see it done by others and therefore feel obliged rather as one is to parents. Hume wrote: “It is necessary in order to preserve stability in government that [each generation] should conform... and nearly follow the path which their fathers... had marked out for them.... The mind is carried by habit.” It then becomes a matter of familiarity with the practice. Any thought (loosely speaking, between the ruler’s right to expect and our obligation to give obedience) is only an idea which we form from such impressions i.e. what everybody else does. Hume’s model of authority unlike Locke’s, is de facto in which the government does not have the right to expect the obedience which it gets. Yet there seems to be an implied moral obligation on the people to uphold the law for the sake of the common interest and that the common interest is safeguarded by the stability in government.
In Locke’s account, the government rules of right, but the people also have the right to get the benefits they expect. His concept of authority would therefore not allow for coercive power, because that would simply be an indication that the system has broken down and the contract would then be void. On that view, if our government uses the people’s original consent for activities not expected by them, i.e. to build luxurious government accommodation instead of public housing, then the moral obligation to obedience is removed.
The government might defend such action as being in the national interest. In such a case, any moral justification for civil disobedience or its punishment would hinge on the interpretation of and the right to determine the “national interest.”
If we consider that we have delegated our legal right to the government, then we also have the moral right to expect its actions to conform to our wishes. We would therefor be justified to demonstrate this right. If on the other hand, which is more generally thought, that the government acts as our representative to do what it considers to be in our interest, than we are morally obliged to let it determine what that interest is. Civil disobedience would then be morally wrong. Politicians always claim it is their task to lead rather than to follow, and such a view is consistent with my definition above.
This raises the important issue of conflict between the moral obligation to comply with the law and our concept of morality. It is arguable that a legal obligation to obey the law is not itself a moral one, If a law prescribes that a class of person shall be deprived of their freedom for no other reason than race or religion, then our concept of morality makes such a law devoid of that moral content which would otherwise make obedience to it obligatory.
Equally, in a de facto authority on Hume’s model there can be no legal obligation – and by accepting the utilitarian principle of “common interest” as the moral reason to obey the government, we also have the moral justification to disobedience if that interest is not served.
On the other hand, the utilitarian interest in the form of the “greatest happiness principle” can be well served at the expense of others.
Let me give you an example from recent history.
When Hitler expelled the Jews from their places of employment, he did it to advance the opportunities (so he claimed) of the indigenous German population. If we accept the argument that the “end” was moral, the “means” related to our culture were certainly not. The question that arises is whether those who administered the law were acting morally towards its end, or whether they should have refused to carry out the means.
If they sincerely believed that the Jews prevented the Aryan Germans from enjoying what is rightfully theirs, then some intervention would have been morally justified. Not because of a moral obligation to obey the law, for as we have seen, a de facto authority does not have the right to expect obedience, but because of a moral duty to support the fair distribution of scares values. That means that moral obligation can exist quite independently of laws.
Let us now suppose that Hitler’s officials were convinced of the injustice of this law, because they knew that the presence in Germany of Jews did no harm to the Germans. They would then be right to disobey for two reasons. First, because the law is in their eyes now deprived of its moral force, and, second, the obligation to administer justice exists independently of the law. Such a situation would then also remove the utilitarian justification for such a law because the consequences are not utilitarian.
John Stuart Mill, the 19th century philosopher wrote in his work, On Liberty, “The only purpose for which power can be rightfully exercised over any member of a civilized community against his will is to prevent harm to others.”
But there are other factors which the official would have to consider when making a decision on their moral duty to civil disobedience. This takes us from the common interest into the realm if self-interest. He has the moral obligation and utilitarian interest to the well-being of those who depend on him as well as his own safety. By being publicly disobedient for the good of one group, he endangers another.
So, if we agree that such considerations make it morally right to engage in civil disobedience, we may find it difficult on moral grounds of self- interest, to condemn as immoral those who don’t. Of course one must also consider the discretion and method with which one applies the law.
There were also instances where Jews were saved by morally motivated Germans who provided hiding places at the risk of punishment. They engaged in what can be described as a discretionary form of covert civil disobedience. By acting in this way, they exercised their moral right to civil disobedience, while doing justice to their other moral obligations, even if diminished by the possibility of punishment.
Justification for such punishment rests on much the same considerations as discussed above. The moral obligation to keep the law is contingent on its content. If it is deprived of its moral force, then any punishment for disobeying it would be morally indefensible. Hume wrote that if we are borne into a society where the right to leave the territory is curtailed, then there is no freedom of choice and we therefore cannot be deemed to have given our consent. As we are then under no moral obligation to obedience there can be no moral right to punish disobedience.
I also consider Mill’s view that the consequences of an action determine if it was justified. If we apply this principle to punishment, then sanctions for leaving one’s country illegally are morally right. If more people will do it, the country’s economy will collapse and the common good will be ill served. I am thinking of the Berlin Wall. But it is also possible that the reason for the desire to leave the country is the general dissatisfaction with and disapproval of the government there.
That would make punishment for escape no longer morally defensible because here again the moral content of the law is no longer present – i.e. for all to remain. But utilitarian morality on punishment seems inconsistent. On one hand, Mill said there is no justice in inflicting purposeless suffering, thereby rejecting a re-distributive approach i.e. as a requital for a “wrong” done, “we pay the penalty because we owe it and for no other reason.” (P.H. Bradley in Ethics Studies) On the other hand, it condones punishment as a means to an end, which could result in inflicting hurt to an innocent victim to set an example to others. Although this is consistent with Mill’s view on the purpose for which power may be exercised, it could be interpreted as giving license to totalitarianism to intimidate opposition. The arson of the Reichstag in 1933, now known to have been contrived by the Nazis, has at the time been “proved” against Van Der Lubbe, a “communist activist” who was promptly executed. He was in fact a feeble-minded Dutchman. Such “punishment” is not morally defensible.
There is another kind of civil disobedience for which we must consider the moral justification of punishment – that which arises from acts of conscience by minorities. They are mostly directed against policies or activities that cannot be directly affected by their action, and are therefore designed to focus attention on their cause. This aim can only be achieved by infringing laws connected with the issue i.e. blocking roads by the ultra-Orthodox to demonstrate against closure of their study centers at times of COVID-19 restrictions.
Such disobedience exposes itself to the charge of pressing one’s own moral convictions and in the process depriving others of their moral right i.e. unhindered progress or the safety of their property.
Here the utilitarian would find himself in some difficulty. While he might find justification for punishment on grounds of preventing harm to others, he would also have to give consideration to the other side, because the argument of those protesters is the very same.
They claim to be rightfully exercising power for their common good, to prevent harm to others i.e. restrict Torah study, and to ensure the “greatest happiness to the largest number of people.”
If we accept that, then punishment for such acts is not morally defensible.
The writer is host of ‘Walter’s World’ on Israel National Radio (Arutz 7) and ‘The Walter Bingham File’ on Israel Newstalk Radio