A Theory of Justice

Obligations are acquired under the principle of fairness by voluntarily participating in a just institution. Obligations are distinct from duties in this regard; duties are assumed without the requirement of choice or participation, while obligations require voluntary participation in a scheme to be bound: “The term ‘obligation’ will be reserved, then, for moral requirements that derive from the principle of fairness, while other requirements are called ‘natural duties’” (303).

The principle of fidelity applies the principle of fairness to the practice of promising. Promising is the act of publicly, intentionally, and deliberately incurring an obligation to further one’s own ends. When a person promises, the words “I promise to do X” dictate that “in the appropriate circumstances, one is to do X, unless certain excusing conditions obtain” (303): “[T]he principles of justice apply to the practice of promising in the same way that they apply to other institutions” (304).

Because the principle of fairness is used to secure agreements consistent with freedom of choice and because it establishes the practice of promising, it is rational for the parties to agree to in the original position.

A just society recognizes unjust laws as binding if they do not exceed certain limits of justice. Claims of political duty and obligation are balanced by priorities. Unjust laws introduce civil disobedience and conscientious refusal to the conception of justice. Duties and obligations may be overridden if the principles of right justify noncompliance in a situation. Injustice can arise when arrangements depart from publicly accepted standards of justice, or when a society’s conception of justice is unreasonable or clearly unjust. The parties to the constitutional convention accept some risks of majority rule to obtain an effective legislative procedure, and in doing so, they “agree to put up with unjust laws only on certain conditions” and with the dictate that “the burden of injustice should be more or less evenly distributed over different groups in society.” When unjust laws exceed the limits of justice, the agreement fails to hold (312).

Majority rule has a subordinate place as a procedural device that must satisfy the conditions of political liberty and guarantee the fair value of such freedoms. Citizens may submit their conduct to a democratic authority but do not submit their judgment to it. A law or policy is just if most persons taking part in its ideal practice would favor it. To this end, the principle of political settlement dictates that if the law voted is:

within the range of those that could reasonably be favored by rational legislators conscientiously trying to follow the principles of justice, then the decision of the majority is practically authoritative, though not definitive (318).

Constitutional design ensures that the self-interest of social classes does not push political settlement outside the permitted limits.

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” (320). It is a political act justified by the principles of justice that regulate the constitution and social institutions, and that forces the majority to consider the claims of the minority. Because it is nonviolent, civil disobedience is a warning, rather than a threat, and “[i]t expresses disobedience to law within the limits of fidelity to law, although it is at the outer edge thereof” (322). The theory of civil disobedience illustrates the principles of natural duty and obligation.

The problem of civil disobedience arises from a conflict of duties in a just democratic state, among citizens who recognize and accept the legitimacy of the constitution but recognize an injustice that must be addressed outside the bounds of normal democratic practices.

Civil disobedience has three parts. First, civil disobedience is a form of dissent distinct from other forms of opposition, ranging from legal demonstrations to organized resistance. Second, the theory justifies such actions under the conditions of a just democratic regime. Third, the theory explains the role of such actions within the constitutional system as an appropriate method of protest in a free society.

Conscientious refusal is a deliberate noncompliance with established laws or policies. It contrasts with civil disobedience in several ways. First, the purpose of conscientious refusal is not to persuade the majority, as it is in civil disobedience. Rather, conscientious refusal is undertaken with no expectation of changing laws or policies. Further, “[c]ivil disobedience is an appeal to a commonly shared conception of justice, whereas conscientious refusal may have other grounds” (324). In practice, the same action may share elements of both civil disobedience and conscientious refusal.

Civil disobedience should be limited to instances of substantial and clear injustice, and when “normal appeals to the political majority have already been made in good faith” and have failed (327). This should generally be limited to serious infringements of the principle of equal liberty and blatant violations of the principle of fair equality of opportunity.

Conscientious refusal can be justified on the ground that the aims of the action refused are inherently unjust, or that the conduct with which the actions are undertaken makes them unjust. The example of conscientious refusal to comply with wartime conscription is illustrative of the two concepts. A pacifist would conscientiously refuse to partake in any acts of war due to the sincerely held belief that war is inherently unjust. However, a non-pacifist may concede the possibility of a just war but conscientiously refuse to participate in a particular war because they believe it is being undertaken unjustly, due to the means, ends, or both.

The aim of civil disobedience is to appeal to the sense of justice of the majority that in the sincere and considered opinion of the civilly disobedient, the conditions of free cooperation are being violated.

The strength of civil disobedience depends on the strength of the system of social cooperation among equal persons in the society. When engaged with due restraint and sound judgment, civil disobedience helps maintain, strengthen, and stabilize just institutions by inhibiting and correcting departures from justice. Viewed in this manner, the parties to the original position would adopt conditions defining justified civil disobedience to allow a device for maintaining the stability of a just constitution within the limits of fidelity to law. The same would apply to conscientious refusal.