Civil Disobedience - in Political Theory and Social Practice
(John Rawls and Mohandas Gandhi)
By Ruben G. Apressyan
In the winter of 1981 I was kindly invited by the Institute of Gandhian Studies to take part in the International Conference on the import of Gandhi's heritage to the 21st century. By that time I had studied nonviolence and in this respect Gandhi's experiences for about ten years, but my participation at that conference which was started in Delhi and then continued in Wardha, gave me an opportunity to re-discover Gandhi in the very context of Indian realities and to understand his broad impact on the 20th century political and social-ethical thought. Gandhi's experiences in Satyagraha gave impulses, not always direct, to conversions in the theories of power, political struggle, social reforms and social organization, social justice and moral fairness. The conception of civil disobedience is one among many which have been developed under the influence of Gandhi's thought and Gandhi's political practice in the second part of the 20th century. In regard to the conception of civil disobedience the significance of Gandhi's contribution was in demonstration of the potential of this method of non-cooperation in opposition and resistance to a repressive colonial regime.
The idea of civil disobedience was introduced to the modern Western political theory by David Thoreau almost 150 years ago. Since that time civil disobedience has been considered as a mechanism of working democracy, one of the ways of expression of citizens' disagreement with the authorities and a minorities disagreement with a majority, a mode of citizens' inclusion into the functioning of democracy. Relatively in our
times this concept was profoundly developed by another American - John Rawls in his fundamental book 'Theory of Justice'(1971). According to Rawls, civil disobedience is "a public, nonviolent, conscientious yet political act contrary to law usually done with the aim of bringing about a change in the law or policies of the government". Civil disobedience is a temporal, public and demonstrative suspension of commonly accepted social rules and regulation under the assumption of some prior agreements in the society and in the context of everyday and usual obedience. It is evident that this notion of civil disobedience is correlated with another basic concept which depicts democratic political order and civil society, the concept of social contract.
The theories of social contract are as old as social theories in general. The elements of such theories can be found in the ancient European philosophy since Sophists. According to Plato a contract was the basis of relations between the Ruler and the strata within the framework of political order. In the early Modern political thought the conception of social contract was to broaden the theory of state in general. For Hobbes: as well as H. Grotius, B. Spinoza, J. Locke, S. Puffendorf, J-J Rousseau and I. Kant, social contract was not just an agreement within the framework of the existing order but the basis of legitimacy of civil community in general. The idea of social contract as the prerequisite of the state and society was criticized by Shaftesbury and D. Hume. Kant argued that the concept of social contract was not about the origin of the state, but about the law and principle of the state as they should be. So, Nitzshe was not the first who manifested that the social contract theory had become out of date. Who can rule, he argued, who dominates "by nature", who is violent in actions and gestures, does not care about contracts.
Since the 19th century "social contract" - has been considered as a kind of philosophical metaphor. However, this metaphor is adequate to the character of democratic organization: it signifies the transition from status relations to "contract" ones: people come to agreements and fulfill them irrespective to their formal and ritualized statuses, their belongings to this or that social strata. "Social contract" is a metaphor because historically and actually citizens have not signed any agreements to set a society. "Social contract" is a conceptual scheme of social organization: the members of society delegate a part of their rights (and freedom) to the state (state institutions) getting in return guarantees of security and social order. This conformation of fixed in a constitution, which tells about citizens' rights and duties (i.e. limitations of the rights), one hand, and the obligations the state and state institutions, on the other. The concept of social contract reflects the real practice of different social, economic, political, educational and other enterprises (projects), which are mediated by agreements and juridically registered contracts between social agents which by the fact of the agreement, and registration of contract manifest their will to cooperate. A government is as efficient as a civil society that has become a sphere of social partnership, as citizens identify themselves with instances of authority and are ready according to their competence to share social responsibility.
In the 18th - 19th centuries the concept of social contract was dislocated to the periphery of social-political thought. However, in the last third of the 20th century it was resurrected owing to John Rawls' conception expressed in his fundamental work, 'Theory of Justice'. His theory of justice basically belonged to the contractorial tradition: the concept of justice is based on voluntary and universal consent of the members community: only those principles of human coexistence are just which have been unanimously recognized. According to the contractorial approach the principles of justice are the principles of cooperation between equal agents. To refuse somebody in justice means to ignore him/her as an equal one to us or manifest our explicit or latent alacrity to exploit natural or social circumstances for our own interest. In respect to social contract Rawls speaks about "natural duty of civility" which means not to invoke the faults of social arrangements as a too ready excuse for not complying with them not to exploit inevitable loopholes in the rules to advance our interests." This duty is the basis of mutual trust. A society is hardly imagined to be fully just. Any democratic society is believed to be more or less just and according the duty of civility one should comply with unfair laws if they don't exceed certain bounds of injustice. In other words, so far we cannot avoid laws which would be just for everybody, the burden of injustice should be equally distributed between different groups.
It would be incorrect to conclude that democratic theory is challenged to justify citizen's compliance to the laws and rules which some of them consider unjust. As Rawls expresses this, citizens' submit their conduct to democratic authority ' only to the extend necessary to share equitability in the inevitable imperfections of a constitutional system" This means that there are limits beyond which compliance to the authorities formed on the basis of majority rule may lead to injustice. The question is how to reconcile one's adherence to "social contract" (constitutional order) and the sense of justice, or, to put it in Gandhi's words, how to reconcile loyalty and satyagraha. One may propose that these two concepts- of civil disobedience and social concept- contradict each other. However this is not so.
Civil Disobedience is one of the forms of opposition available to the public established on the basis of majority rule. One among few others, like legitimate public demonstrations, purposeful corruption of law for the sake of court precedents, violent, specifically military resistance, etc. Civil Disobedience is a form of democratic opposition. Civil disobedience is certainly on the bases of that social model, which is usually called- after Henrih Bergson and Karl Popper- " the open society". According to this model social institutions are considered as the products of social creativity and this rational change is discussed in terms of fitness for consumption of human goals and intentions.
For Rawls it is evident that civil disobedience is senseless in a close society with autocratic type against a ruler legitimated through divine law as God's agent. It subjects' only right is the right of petition. They cannot pretend to be equal to the ruler as God's elect. They appeal, they may even allow themselves to think that the ruler is not always right but they have neither rights, nor abilities to correct their ruler.
The situation is quite different in democratic society as a system of cooperation between equals. Injustices in such society means violation of somebody's rights. The above duty of civility includes the duty to defend the rights guaranteed by constitution. Civil disobedience gives an opportunity to resist injustice in adherence to the law. Rawls considers the concept of civil disobedience gives an opportunity to resist injustice in adherence to the law. Rawls considers the concept of civil disobedience as complementary to the theory of constitutional democracy. It proposes the principles following which can disagree with the legitimate authorities by the means contradictory but loyal to the law. In a democratic society the civil decision to disobey leads to the conflict of duties ; the right to defend one's liberties and to resist injustice comes to contradictions to a duty to comply with the laws accepted by legislative majority. It is actual even under such a formally democratic rule which in fact is embodied in an unjust and corrupt system of power.
As an instrument of social change civil disobedience supposes a system of political cooperation in a society based more or less on consensus regarding general principles of justice. Through the actions of civil disobedience people appeal not only to the rulers, but also to the legislative majority as well to a community's sense of justice. The problem is that different conceptions of justice may be presented in a particular community. In a situation of the lack of consensus civil disobedience may be insufficient as means of social change.
Civil disobedience may be direct and indirect. Under direct actions citizens disobey a protests law; under indirect actions citizens disobey other laws. Thus, is it unreasonable and dangerous in protest? For example, against certain traffic rules to break these traffic rules?
The actions of civil disobedience are political, public and nonviolent by their nature. As political ones they are addressed to the ruling majority; they are motivated and justified by political principles, specifically, the principle of justice which regulates the constitution and social institutions. As public ones these actions are addressed to the public, they are performed in public, openly and fairly. As nonviolent ones these actions confirm respect to the given political system in general and recognition of others' sense of justice.
From a pragmatic point of view, civil disobedience as a means of political protest, no matter fine the idea of civil disobedience is, can be reasonable and justified under one circumstance and inappropriate in another. So far as civil disobedience is addressed, according to Rawls, to the sense of justice of a community, it is justified when it is directed against the cases of serious violation of basic rights evident to all. For instance divestment of minority of certain civil and economic rights. On the contrary, the actions of civil disobedience will be insufficient if they are directed against such state decisions or new laws which violate the basic rights of the public.
Civil disobedience is justified in situations when other means of political struggles have failed. So far civil disobedience is considered as the last resort, one should be absolutely sure that it is really necessary. However, even under such circumstances civil disobedience won't be successful if the ruling majority has definitely chosen unjust and hostile tactics against a minority.
Civil disobedience is justified if it doesn't lead to serious social disorder and doesn't explode the efficacy of just constitution and the respect to the rule of law.
Though it is evident that John Rawls was elaborating his conception in that particular historical period and political context when the human rights movement in the USA, largely inspired by Martin Luther King, was a part Of every day news reports and the huge satyagraha campaigns in India initiated and inspired by Gandhi, had been recent history, I have no factual information regarding the possible influence of Gandhi's thought and practice to Rawls' political theory. But nevertheless, the comparison of Gandhi's approach to civil disobedience with the one of Rawls would be very important, especially for understanding of the perspectives of civil disobedience in a non-democratic society.
As we saw, according to Rawls, civil disobedience is a significant social instrument of resistance to some partial laws and state decisions which contradicts to the general spirit of constitution and for the sake of constitution. But does this mean, that in a non-democratic society there is no room for civil disobedience-- so far there is no democratically accepted and, hence, legitimate constitution? And what will be the justification of civil disobedience for those who would make a decision to resist injustice in such society? An answer to this question can be found in Gandhi's heritage, specifically in his particular experiment with ahimsa in Champaran district in the presidency of Tirhut (Bihar) in 1917.
Gandhi was invited in Champaran by one of the ryots to help them to change the existing order of relations between ryots and landowners. That was a system of tinkatia (hundred years old) according to which the lessees had to mark from every twenty plots of rented land for indigo· It was an extremely unjust system and ryots were losing a lot because of it. The challenge was to abolish the tinkatia system in Bihar. To understand the ryots' complaints Gandhi had to talk to thousands of them. He decided to start his study of the problem with figuring out the planters opinion. However the planters association Secretary regarded him as an outlier and, roughly refused to give him any information. Gandhi also visited the presidency commissioner, but the latter tried to threaten him and suggested to leave Tirhut straight away. Soon he was asked to report to the District Magistrate for refusal to leave Champaran as per the Administration's order. In the statement read for the District Magistrate Gandhi explained his decision not to comply the Administration order by his civilian duty to help the ryots and announced his readiness to "submit without protest to the penalty of disobedience.' 'Gandhi concluded his statement with the following elucidation:
"I have disregarded the order served upon me, not for want to respect lawful authority, but in obedience of the higher law of our being- the voice of conscience".
Strange as it may sound, but a judge and a state attorney disagreed and the hearing was postponed. Gandhi got some time to communicate with the Vice-King and with his friends about the case and soon the judge published the Governor's injunction to abate the case. The local authorities became ready to collaborate with Gandhi. Some time later owing to Gandhi's and his companions' efforts the system of Tinkatia was abolished. Characterizing the Magistrate' s decision Gandhi noted, that India got the first demonstrative lesson of civil disobedience.
Although in the Champaran case civil disobedience appeared to be a modest and just ancillary part of more general project of demolition of unjust order, we can make some substantial conclusions from this regarding the nature of civil disobedience. The common Gandhian disobedience with Rawls' description of civil disobedience, are 1) disobedient action is transparent, open to public, particularly to those, whom they oppose; 2) disobedient action is an embodiment of nonviolent resistance; 3) civil disobedience is justified by intention to prevent evident violation of people' s legitimate interests.
At the same time in the Champaran case one can distinguish some peculiar features of civil disobedience which Rawls didn't pay attention to. First, in this case we have quite different foundation of civil disobedience. In his decision Gandhi related not to the Constitution or existing general order, but to "the higher law of our being-- the voice of conscience" -- a kind of natural sense of justice. Though his decision not to obey the Magistrate precept was definitely political, it was not so by motivation and explanation.
Second, Gandhi intervened into the situation completely selflessly. Although he protested against treating him as an outlier, he, as a matter of fact was not an outlier in terms of stock-holding; he had come to Champaran as an an external observer and embarked into the conflict as a third party mediator. Owing to this his position looked stronger and more convincing.
The third observation regards a broader, political context of civil disobedience rather than civil disobedience itself. As Rawls accentuated, civil disobedience was a mechanism of democratic order. Of course, the challenging potential of civil disobedience as a means of nonviolent protest is strong just under the democratic order. Probably, Civil disobedience is senseless in the totalitarian society.
However, Gandhi's experience proved that civil disobedience can work in non-democratic society, like it was in Bihar in 1917, if this society has certain, even a minimal level of openness and civil liberties and if disobedience is performed by a popular and authoritative public leader.
Fourth, civil disobedience should be considered as one among many other means of protests. Struggle against injustice will never win if it is not directed to truth and justice and is not motivated by the will towards truth and justice. In other words, the struggle against injustice will inevitably fail, if it is oppugned in a way of "not to see, not to hear, not to speak." It is worth reminding that in Champaran Gandhi started his investigation with an attempt to talk to the planters and to figure out their position. And in many other conflicts Gandhi's concern was to satisfy both parties of a conflict and to secure their mutual contribution to the achievement of truth. The efficacy of civil disobedience depends upon whether it became a moment of satyagraha.
The truth of the latter statement was proved again two years after Champaran during the mass campaign of satyagraha against Rowlatt Bill. It is well known that satyagraha started with hartal and the sale of Gandhi's prohibited pamphlets, Hind Swaraj and Sarvodaya, turned out with mass disorders and senseless and brutal riots. Gandhi's attempts to put a stop to the riots failed. The government's reaction was brutal too: one of the event of that reaction was bloody massacre in Amritsar. What Gandhi called "a mistake as great as Himalayas", consisted in a decision to start the campaign of civil disobedience with people who were not ready for such a campaign spiritually, nor politically. Only a person, who is habitual to everyday and principle obedience to the laws, is capable of judging which law is good and just and which is bad and unjust. So, civil disobedience should be inspired not just by, a sense of protest against injustice, but mainly by respect to justice.
Gandhi pointed to this in his statement in April of 1919:
"Satyagraha is like a banyan tree with innumerable branches. Civil disobedience is one such branch, satya (truth) and ahimsa (nonviolence) together make the parent trunk from which all innumerable branches shoot out.'
Gandhi's message is extremely significant for those nations who are at the beginning of their way to true and honest democracy. But Gandhi's message is important for everyone so far as the way of satyagraha is a way of individual choice and personal decisions.
[Source: International Workshop on Non-violent Struggles in the Twentieth Century and their lessons for the Twenty-first , October 5-12, 1999, New Delhi]