A recent news article has prompted me to examine the problem of warranting civil disobedience over the force of law.
The issue is becoming familiar. According to the local newspaper, a twenty-nine year old man was arrested on multiple counts for threatening a municipal water company employee who wished to read his meter. The suspect was “wearing full body armor with a knife strapped to his chest, a Kevlar helmet with a face mask and armed with pepper spray.” After a brief standoff he was physically subdued by a law officer and arrested. Questioning revealed he was a member of Sovereign Citizens movement and had had multiple previous scrapes with the law. Followers of the movement think, “they can decide which laws to obey and which to ignore” according to the Southern Poverty Law Center. He also told arresting officers he hoped to “go to Pakistan in two years so he could fight and maybe die for something ‘that was good and true.’” But he had been found psychologically unfit for military service by the U.S. government.
I begin with this rather absurd case because most persons would find it easy to make sense of. We think this homeowner too extreme, that his cause goes too far, is too outlandish a defense of liberty. But that implies a clarity I think lacking about admirable civil disobedience versus civic responsibility. In any conflict between rights and law, where are the boundaries and where is the sweet spot that balances the interests of some against the interests of others? Is that even a valid phrasing of the issue? More to the point, are interests synonymous with rights? It is troubling to suppose that the ideal is always in the middle– that some fulcrum exists that finds the balance point– for in a totalitarian state that point might be far too close to the interests of the state while in a libertarian dream world, it might celebrate all the chaos of a gold rush boomtown. The notion that we can’t pick and choose which laws to obey rings true, yet we erect monuments to our Founding Fathers, whose picking and choosing spawned a new pattern demanding citizen sanction. Ditto for Gandhi, Walesa, Mandela, and King. So we certainly cannot say what parents always say to their children: a good citizen always obeys the law.
I have examined some alternatives warranted by other justifications for legal power, rejecting divine command and legal positivism on the grounds that these warrants provide no means of ensuring minority rights or respecting civil disobedience(see “Preliminary Thoughts on Civil Disobedience: Natural Rights Issues“). That cannot be said of social contract theory. As the U.S. Constitution exemplifies, defined rights can be specified in written or tradition-bound compacts, though they would of necessity be civil rights rather than human rights and thus open to a charge of cultural relativism that would do little to arbitrate disagreements between polities that define rights differently or to quell dissent within them as in the opening example. We see that kind of conflict frequently on today’s international scene and in the cowboy libertarianism that defends circumstantial freedom as the greatest good. But these conflicts in themselves are hardly sufficient to condemn a social contract that builds in protections for minorities and allows adequate mechanisms for redress. But we might ask of the framers of such a constitution the same question raised by the two examples cited earlier: what properly limits state power? It is good to have a Bill of Rights, but why these and not others and why ten and not a hundred ? It is all very fine to sanctify free speech as a guaranteed civil right, but why should it be, other than that our revered founders decided to add it to our compact of government (but only after a bruising debate and with serious dissent as revealed in The Federalist Papers)? The kernel of social contract is that government is a purely conventional invention resulting from a voluntary association of like-minded individuals in pursuit of common interests, so it seems reasonable that had their interests been different, their contract might have taken an entirely different form. Viewed in this light, there is nothing sacred about the rights enshrined in the U.S. charter, and so long as we embrace the fiction of the social contract as justification for government, we’ll have to look elsewhere for some foundation for our rights and some reason to violate positive law when we think they have been abrogated (see ”Where Do Rights Originate?“).
It is, of course, quite possible to take seriously the notion that we are not at all bound to law except by our own consent as the example cited at the beginning of this essay argues. This, after all, underlies the myth of the original social contract– and recall that Locke also argued that each of us renegotiates that contract as soon as we decide to accept the law’s dictates– so what was good for our ancestors should be good enough for us. But that notion quickly produces the dyspeptic realization that any government is an impingement on our freedom. This certainly seems the position of the originator of the term “civil disobedience.” Thoreau’s famous line about that government being best that governs least vivifies the libertarian position that any path out of the state of nature involves reluctant sacrifice of freedom in exchange for security. I think the widespread acceptance of this view explains a big chunk of today’s resentment of government. That seems an inevitable outcome of taking social contract seriously as does the brute libertarianism that follows. But a careful reading of Civil Disobedience raises doubts about whether civil libertarians should make Thoreau their patron saint. And if we reject the warrant Thoreau used to derive his view of government, what befalls the argument for civil disobedience that flows from it?
It is certainly true that his resistance to government constitutes an embrace of the state of nature, one literally demonstrated by his years at Walden Pond. But I argue that the state of nature Thoreau embraces is as far from that envisioned by the framers of the theory as can be conceived. So though Thoreau stands with those who resist government, his argument is less against government per se than against government justified by the social contract whose rationale required a much more hostile natural condition. Libertarians think he desires anarchy, a return to that condition, a rejection of the compromise that created government. He does not. He could not because the state of nature he envisions calls for no compromise and no surrender of individual agency whatsoever. What is more, he clearly thinks societies can live amicably without the contract and cannot live amicably with it. Writing in his homebuilt cabin in the Massachusetts winter of 1847, Thoreau was not merely objecting to government overreach; he was objecting to government by majority, by consensus, by contract, and by convention. He argues, “Any man more right than his neighbors constitutes a majority of one already.” Recall that in his original framing of the state of nature, Hobbes had dismissed the notion of “right” as a subjective delusion (see “Why Invent a Social Contract?) . Everyone acts to secure what he thinks right, said Hobbes, and it is this pursuit that he inevitably comes into conflict with his neighbor, such war of all against all producing the need for the leviathan of government power. Thoreau is clearly not imagining that kind of natural condition, nor does he envision that kind of barbaric outcome. His conception of the state of nature more resembles the lost Eden of Rousseau than the hellish dystopia that Hobbes had envisioned, yet he differs from Rousseau in rejecting a general will that conforms individual will to common consent. His opposition is the defining quality of his understanding of persons’ relationship with the state. He is adamant in denying majoritarian rule: “[The state] can have no pure right over my person and property than what I concede to it.” He can only adopt this position because he imagines the demands of social order to be far more dangerous than disagreements among individuals that might compel social order. Why should he have come to a conclusion so different from the social contract theorists and his own country’s founders?
The answer can be found in the sixty-one years separating him from them. Specifically, two moral revolutions changed the theoretical field, the first advanced by Immanuel Kant and the second by the Romantic revolution he inspired.
It was Kant who argued for moral autonomy as the antithesis and antidote to the tyranny of authority that had dominated political theory during the millennia of divine command. In Critique of Practical Reason, he advanced the argument that each of us constitutes a moral universe whose laws we must actively engage and accept and for which we may be held responsible. Even should we attempt to abdicate that responsibility and surrender our agency by granting trust to authority, he reminds us that it is our own reason that judges the authority worthy of our respect (see “Authority, Trust, and Knowledge”). For Kant, it is this preferential freedom that marks us as moral agents worthy of radical respect (see “Our Freedom Fetish“). We see the echo of Kant’s argument in Thoreau’s.
But we see something else as well: Thoreau’s confidence in his own moral rectitude was more absolute than Kant with all his admiration for practical reasoning could have imagined. Throughout Thoreau’s writings, and especially in Walden and Civil Disobedience, we see a disdain for convention coupled with an almost strutting confidence in his own moral superiority to those mass of men living in quiet desperation. The former fuels Thoreau’s contempt for social contract theory, which at its center regards political arrangements as conveniences invented to procure the desires of the majority without regard to moral judgment. Thoreau even goes so far as explicitly to condemn William Paley’s The Principles of Moral and Political Philosophy (1785) precisely because it, like social contract theory, bases government on grounds of practical convenience rather than justice (though Paley also skewers social contract theory for its other falsities, among them the myth of the state of nature). But echoing through Thoreau’s writing is the deeper appeal to justice, to right, and to divine providence combined with an absolute confidence that he and not that mass of men might decide which laws satisfy justice and which offend it. What grounds such a judgment?
It grows from the same confidence that sees anarchy as avoidable and wisdom as universally available if not universally embraced. Thoreau could reject the contractarian argument that conflict among citizens is inevitable for the same reason he could reject Kant’s careful constructions about the limits of reason: Thoreau embraced the Romantic pantheism that was flooding Western culture in the first half of the nineteenth century (see “The Victorian Rift”). Therefore, he could assert with confidence, “What I think is right is right; the heart’s emphasis is always right.” The receptive heart in tune with nature could hardly avoid knowing the good and adhering to it as well. With such ready access to indubitability, who could blame him for his disgust with those who would put self-interest above justice? To determine it, one must ignore compacts and laws, crowds and opinions, in favor of a higher and more intuitive knowledge that the god-in-nature provides, so long as she could clear away the delusionary and conflicting propaganda advanced by the majority. This is Thoreau’s answer to the thorny question of when one is entitled to practice civil disobedience. Its level of trust echoes the power of pre-Reformation authority without the bothersome need to forfeit moral agency but promising the same infallibility (see “Premodern Authority”). It anticipates the unlimited preferential freedom of the postmodern virtual circle without requiring a subjectivist ethic (see “What Is the Virtual Circle?”). It is indubitable belief, an epistemological absurdity (see “Knowledge, Trust, and Belief”). As a temptation to moral clarity, it is a snare and a delusion, but as a foundation for law, it is a disaster (see “Belief in the Public Square”).
Seen in the cynical light of a postmodern age, Thoreau’s emphasis on individual moral autonomy seems so attractive as to make him a prophet to that age (as were Kierkegaard in religion and Nietzsche in epistemology for much the same reason). But his Romantic warrant seems quaint and pitiable, which explains why it is less celebrated today. Facing it prompts a Tooth Fairy kind of moment. If we can’t trust god-in-nature to reveal to our intuitions when laws are unjust and we also can’t trust a social contract rooted in a fiction, founded on convention, and moored to no fixed conception of rights, and if positivist and divine command theories make no provision whatsoever for retention of rights, what can we trust to litigate the defensibility of any act of civil disobedience?
Only functional natural law theory provides a solid grounding for answering such a question because it is the only justification for law that begins with individual rights based on needs and sees civil participation as one such need (see “Natural Law Theory and the Legality of Human Rights”). It is the political wing of a private ethical structure whose morality is guided by the development of the habitual disposition to satisfy needs, virtue ethics (see “A Virtue Ethics Primer.”). Like the modernist tradition itself, virtue ethics focuses upon individuals’ moral agency, their duties to self and to those they love. Beyond the limits of self, family, and friends, the moral agent enters into reciprocal relationships with strangers as individuals and as political entity. The correct gauge of that reciprocity must be not love but justice, what is due (see “The Moral Bullseye“). And that is what our Sovereign Citizen, Thoreau, and every citizen in every state has to negotiate with other citizens and with strangers-writ-large in a democracy. The justice they are entitled to, what they are due, can only be negotiated on the basis of universal human needs.
The determination of needs and the rights that entitle us to their satisfaction are relatively simple to determine by interrogating what we choose to call a need. Is the achievement of this desire clearly necessary for our flourishing? Is it necessary for everyone’s? If we answer affirmatively, we then ask further: is this desire instrumental to some other and more fundamental desire or is its satisfaction pursued at least in part for its own sake ? Does this more basic desire meet the criteria of all human needs: universal and transcultural (both temporally and geographically)? Does the satisfaction of this desire make impossible the satisfaction of some other need? One of the central tenets of virtue ethics is that the requirements for a fully human life are mutually supportive rather than in conflict, accumulating to the summum bonum, the totality of goods necessary for living a complete human life. Needs are thus incommensurable. They can be neither ranked nor ordered, though the order of their satisfaction in real time may be. While they cannot all be satisfied simultaneously and indeed for much of human history may not have been capable of satisfaction at all — consider sanitary or medical needs throughout most of history — their fulfillment remains an unmet need in each generation until finally sated.
The self-questioning that accompanies our attempt to recognize and fulfill needs anchors the intellectual virtue component of the moral system. It is no small thing to negotiate our desires since persons as choice-making machines exist in a perpetual pursuit of the good, regardless of how they might define it (see “Our Freedom Fetish“). Plato was certainly correct when he said we always choose what we consider good at the moment of choosing; otherwise, we would choose an alternative. Virtue ethics makes a point of identifying the truly good so that our desires might reflect our actual needs rather than degenerate into a mad scramble of conflicting wants or manufactured materialist desires. Functional natural law widens that recognition to the political sphere and must legalize inalienable human rights whose violation requires citizens to disobey positive law.
By now it should be obvious that functional natural law theory champions human needs as human rights: we are entitled to try to meet our needs. They are our due and their satisfaction our moral duty. And since justice may be defined as “to each her due,” we are entitled to a political system that facilitates rather than impedes their satisfaction (see “Natural and Political Rights”). This explains why a social contract view of political organization could not be more wrong. Government is neither conventional nor built from expedience. It is not an invention at all, but has always formed a buttress to human happiness. It is a crucial component of the quest for persons’ satisfaction of their needs, operating impartially to arbitrate conflicts among citizens’ desires and actively meeting those that citizens can satisfy only through collective action. That ideal can be summarized thus: government’s sole function is to deliver justice to each citizen. A perfectly moral government would manage its retributive, contributive, and distributive roles so assiduously that any failure to meet any citizen’s needs, meaning any failure to secure rights, would be the result of that citizen’s own moral failings. Anything less would be unjust. Anything different would justify civil disobedience by individuals or minorities. In practice such behavior proves infrequent because “fighting City Hall” requires more energy than either minor or occasional infractions of justice warrants, and civil disobedience only occurs after what the founders called “trains of usurpations” (see “Foundations of the Law: an Appetizer”).
There is more to it, of course. It goes without saying that no government satisfies such a lofty function all that well, whether from its own incompetencies or from the failure of citizens either to understand or accede to its purpose. It faces thorny issues of distributive justice for citizens unable to satisfy their own needs, leading to impossible attempts to calculate fairness, often in defiance of justice (see “Economic Justice“). It must balance the just demands of liberty and equality (see “The Riddle of Equality“). And even when it is able to handle such delicacies, it finds itself trying to identify and balance citizens’ real needs in such a way that they both get what they need and are satisfied with the process. Even if government acted in accord with a true theory of its proper function, it would so frequently fail in its duty to justice that we might expect more civil disobedience from a clear articulation of its role in citizens’ lives rather than less, but as it now operates out of a specious conception of its duty, we will continue to require a clear-eyed understanding of what allows civil disobedience to challenge its authority and our sanction of it.
The example that began this essay typifies aspects of the task. The Sovereign Citizen who viewed his liberty as outweighing justice and who displayed a Thoreauean confidence in his belief exemplifies an unjust act of civil disobedience. His rights were untrammeled by the governmental agents he opposed and even had they been, he could not have justified threatening the life of another person to defend such a slender transgression. He had a civic duty to exhaust available legal remedies before breaking the law in any case. Applying the needs-based justification of functional natural rights theory not only alerts us to when civil disobedience is a moral duty but also when — and why — it is unwarranted.