In this article I want to draw near the non-ideal part of Rawls’ theory of justice, namely the theory of injustice. First I investigate how does it arise and then I inquire into the resistance to injustice, including two means of resistance that Rawls describes - civil disobedience and conscientious refusal.
If the world were perfect, then we wouldn’t have needed to deal with injustice at all. But it s not and any applicable theory of justice must be aware of it. Injustice is a consequence of the imperfection and so a theory must take care of it. Injustice could be defined as a depart from justice, i.e. from the two principles of justice (Rawls §11 and §14):
1. each person is to have an equal right to the most extensive basic liberty compatible with a similar liberty for others
2. Social and economic inequalities are to be arranged so that they are both (a) to the greatest benefit of the least advantaged and (b) attached to offices and positions open to all under conditions of fair equality of opportunity
There are two kinds, or two origins, of injustice. First, a conception of justice is just, but the instantaneous arrangement departs from it. In other words, those who have power are aware of the arrangement being unjust, but for some reason – e.g. economical benefit – they accept it. Second, a conception of justice accepted by the majority (or by those who have power) is unjust (from the standpoint of justice as fairness). Here we must notice one important thing. For most part Rawls deals with an ideal theory. He, and parties in the original position, assum that the theory would be applied in a well-ordered society. In such a society everybody is aware of the principles of justice and comply with them (and know that the others do the same). Injustice is a part of non-ideal theory (also called partial compliance theory) and the presumption of well-ordered society doesn’t hold there any more. It is a non-ideal theory and hence it doesn’t need to deal with an ideal society.
Rawls confines himself to a special case of society, so called nearly just society. The society is well-ordered for the most part, but some serious violations of justice do occur there, for some reasons. Among others, ‘nearly just’ implies that the society is a democratic one. Before we start to inquiry into injustice and resistance to it , we must learn how injustice can arise in spite of the best efforts in a decision making process, and about the principles of justice for individuals.
Rawls describes (Rawls, 54) an ideal decision making process and argues that even such ideal process can’t ensure a just outcome. He puts the ideal process contrary to an ideal market, which always yields the most efficient arrangement.
The ideal process is similar to the original position. There are impartial equal rational parties equipped with the sense of justice, willing to reach a just agreement. The veil of ignorance ensures the impartiality and the two principles of justice and a just constitution guide the parties towards justice.
There are significant differences between an ideal market and an ideal decision making process. The participants of an ideal market need to know nothing about the aim of the market and they need not to care about other parties. Their only duty is to promote their interests as much as possible. By the interaction of the parties, without their intentional effort towards it, the most efficient arrangement is settled. In an ideal process, it is the other way round. The parties in such process have to be aware of the goal, which is the justest decision, and have to do their best to reach it. They have to be willing to know and to consider carefully and impartially others’ opinions and reasons (which is just opposite to the effort to promote their own interests -opinions - as much as possible). The medium of interaction here are not money - as it is on a market - but a discussion. The exchange of opinions with others in a discussion checks the partiality of the parties and widens their perspectives. The knowledge and reasoning powers of the parties are limited, but in a discussion they join together.
It may happen that even a long and fruitful discussion doesn’t yield an unanimous agreement. But we need only one outcome (you can hardly have two different versions of the same law). Since all parties are equal we can’t decide according to who advocates what opinion, i.e. we cannot decide according to the ‘quality’ of parties. But we can decide according to the ‘quantity’ of parties. In other words, we apply the old principle of democracy (or ”majority rule” as Rawls call it), which reads ”the majority wins”. The opinion which has the highest number of supporters, wins. The principle is based on the presumption that it’s less likely for a majority to be mistaken. Rawls justifies this presumption by referring to the sense of justice of the parties. He assumes that people have a sense of justice1, which tells us what is just and what is not. Of course the sense may be mistaken because of our selfish interests, religion, experiences etc. But he is an optimist and he assumes that in average it is more likely to be right than to be wrong. Hence the more people we ask the higher is the probability to get a correct answer2.
The ideal process as described above is probably the best way to get a just outcome. Nevertheless it is imperfect and we can be never sure that the outcome is really just. Hence it can happen that in spite of our effort the outcome is unjust.
Principles for Individuals
For the most part the theory of justice as fairness deals with the basic structure of a society. But now, when we are inquiring into injustice, it´s the time to say something about the principles for individuals as well. The reason is that although an injustice occurs in the basic structure, it affects individuals (or groups of individuals) and these individuals are to resist to it. Hence it is necessary to know what principles guide their behaviour. The principles are accepted in the original position, after the principles of justice for the basic structure have been accepted. The ground for acceptance of the principles is to stabilize and support the basic structure and fruitful just cooperation among people.
There are two groups of rules: obligations and natural duties. The difference between them is that obligations arise from a voluntary act of an individual, while natural duties hold for all people without respect to what they did.
Obligations arise when a person voluntarily takes advantage of an institution (I mean the broad sense of institution, as understand in sociology, e.g. institution of promises, institutions of marriage etc.). Rawls talks about two principles (Rawls, §18): principle of fidelity and principle of fairness. The principle of fairness is the important one (because the principle of fidelity is but a special case of it, concerning promises). It tells that ”a person is required to do his part as defined by the rules of an institution when two conditions are met: first, the institution is just (or fair), that is, it satisfies the two principles of justice; and second, one has voluntarily accepted the benefits of the arrangement or taken advantage of the opportunities it offers…”. In other words, person shall be fair and if he (voluntarily) benefits from a cooperation, he should share the ‘costs’ of the cooperation. This principle give raise to all obligations. Now we shall turn to natural duties, because they are more important from the standpoint of resistance to injustice.
Natural duties apply to all people without regard to their voluntary acts and there is even no necessary connection with institutions (Rawls, 19). They hold among all people as equal moral agents. Rawls mentions several duties, positive and negative3. Some duties, recognized by many religions, belong to this group. For example the duty of mutual aid (people shall help each other unless the cost is to high), duty not to injure, not to be cruel. The duty of mutual respect (people shall respect each other, the believes, opinions etc. of others), which reminds the Kantian duty to treat human beings as endings in themselves, is there too. But the fundamental duty, from the point of view of justice, is the duty of justice, namely the duty to ”support and to comply with just institutions that exist and apply to us.”(Rawls, 19, p.115) It also requires us to further just arrangements not yet established, if the cost isn’t too high. It is important to notice one thing here. The duty of justice implies that just institutions are to be obeyed without the necessity to voluntarily accept them first. Everybody has to comply with just institutions. This requirement is natural. The parties in the original position, who design the principles of justice, want to have an effective and stable arrangement. And for the sake of stability, it is very important that everybody obeys the (just) institutions and knows that all the others do obey them. For example, if there were a law that forbids to have a gun and people knew that some violate it, they would tend to equip themselves with a gun for their self-protection as well.
Resistance to Injustice
If there is an injustice, when we are justified to resist to it and how to do it? It’s tempting to say that we can resist to injustice as soon as it appears. It is true but it is false too. Some means we can use to resist to it from the very beginning, but some means should be avoided. Rawls argues (Rawls, 53), that an injustice doesn’t immediately release a person of the duty to obey a (unjust) law. In other words, the duty to comply with laws enacted under a just constitution holds also for unjust laws. At a first glance it sounds strange. But there is a good reason not for accepting any depart from justice, however small, as a ground not to obey an unjust law.
If the basic structure of society is reasonably just, people, due to the duty of justice, have to comply with it, i.e. with the just institutions. Since we have only an imperfect procedure at disposal, the just institution may enact an unjust law. But the duty to comply with the institutions applies to the laws they enact as well, as long as the extent of injustice is acceptable. A respect to the institutions requires us to respect their laws as well. Indeed, an attack against a law (e.g. not complying with it) is an attack against the institutions. Adherence to laws is essential for the stability of the institutions. It doesn’t mean that people cannot resist to injustice. But the means used for the resistance must be adequate to the extent of injustice. Other means then non-compliance are to be preferred.
Injustice causes a conflict of duties, namely of the duty to obey just institutions4, as discussed above, and the duty not to comply with injustice plus the right to defend one’s liberties. Which duty should be followed depends on the extent of injustice (here I consider illegal5 means of resistance to injustice). Rawls use the notion of ”acceptable (extent of) injustice”. He explains that for an injustice to be acceptable ”in the long-run the burden of injustice should be more or less evenly distributed over different groups in society, and the hardship of unjust policies should not weight too heavily in any particular case” (Rawls, 53, p.355). It’s important to see the idea behind the words. Citizens have to stand injustice that is inevitable result of imperfection of any real system. If the injustice is intentional, or something like that, it is a different case.
There are many means of resistance, both legal and illegal, that can be employed to resist to unjust laws and policies. Rawls inquires into two of them, civil disobedience and conscientious refusal. Both of them are illegal, for they require a law to be violated. But illegal is different from immoral and sometimes it’s just contrary. Of course there are other means of resistance. But the legal ones do not require an extra attention and the other illegal ones, although they are interesting and shall be a part of a (non-ideal) theory of justice, are not so common and Rawls, because he concentrated on the ideal theory (strict-compliance theory), left them aside.
It is important to keep on mind that it is a fundamental duty to preserve just institutions. It could be hardly justified, if they are destroyed in someone’s struggle for a juster law, because the consequences of the destruction would be much worse then negative effects of the unjust law.
Recall that we assume democratic and nearly just system. The citizens have a sense of justice and there exists a shared conception of justice. In the case of civil disobedience we suppose that the conception is just, but the arrangements depart from it. It is similar to a common situation, where politics do something else than they should do (e.g. they try to sell weapons to Iraq to help the national economics, although it is a non-trusted state). Usually there is a strong pressure towards preserving the injustice, which can block the normal legal ways of resistance. If the injustice can’t be accepted any more and the legal means of resistance have been used without any effect, it’s the time for the civil disobedience. Rawls defines it as follows (Rawls, 55): ”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.” It is not necessary that the same law or policy, that is protested against, is violated. It may be too dangerous or even impossible (e.g. the decision not to pay a government’s debt). The goal of such act is to bring a problem to public’s attention and to address its sense of justice. A law is violated to stress the importance of the problem (e.g. traffic statutes are ignored and demonstrationists block a pass). The act is done by people who respect a constitution, as expression of the principles of justice as fairness, and are faithful to laws and principles behind them. Actually they respect them more than the politicians who enacted the unjust law or policy. And they are prepared to accept the punishment for their violation of a law. Their willingness to use this form of protest and accept its negative consequences shall convict the public that they do it in a good faith and not to promote their interests.
Rawls remarks that an act of civil disobedience is a political act not merely because it is carried out publicly, but primarily because it is justified by and aims to defend publicly acknowledged principles.
If an act of civil disobedience shall be justified, then three conditions must be satisfied (Rawls, 57). First, it is justifiable only in the case of clear and substantial injustice. A violation is usually pretty clear in the case of the first principle of justice or the second part of the second principle (equally open to all), but it may be questionable in the case of the difference principle, for the difference principle applies to a very complex system. Usually, those who argue that justice has been violated, are sure that they are right. But the power of one’s belief in his rightness isn’t a measure of rightness. If this condition was omitted, people would have tended to take advantage of civil disobedience too often. It is similar to a strike. In some countries, for example in France, people strike relatively often, to enforce their demands, while in other countries a strike is the last resort, after all other means have been exhausted. Second, as I have already mentioned, civil disobedience comes after legal means have been tried without any significant effect. It doesn’t mean that the legal means have to be exhausted, because it is not so easy. For example, you can write letters to your representative in the Parliament or demonstrate forever. Civil disobedience is indeed the last resort. Third, a civil disobedience that would be justifiable under normal circumstances needn’t to be justifiable under some special circumstances. Rawls gives an example for it. If there are lot of acts of civil disobedience and each of them alone is justifiable, but together, carried out in the same time, they endanger the whole just arrangement, then they cannot be justified, because the task to preserve just institutions has the highest importance. Here, the system is similar to a bank in a crisis. Normally, if any of its clients withdraws his savings, it is all right. But if all of them try to do it in the same time, the bank becomes bankrupt, which has disastrous impacts on all the clients. Alike, too many acts of civil disobedience could cause a collapse of the whole, nearly just, system. And something much worse could come afterwards (e.g. a dictatorship).
Civil disobedience has an important role as a stabilizer of society, because it helps to correct departs from the state of justice.
is very different from the civil disobedience, as regards both motives and a form. An act of civil disobedience is public and aims to address a public to bring about a change. Conscientious refusal has no such aim. It is, essentially, a refusal of a law because it conflicts with one’s conscience. Rawls (Rawls, 56) defines it: “non-compliance with a more less direct legal injunction or administrative order” (for conscientious reasons, should be added). In other words, if a law (injunction), which applies to a person, conflicts with his conscience so much that a recourse for violating the law is for the person more acceptable than a violation of his moral principles, then conscientious refusal occurs. It doesn’t mean that the person wants to undergo the recourse at all. He only choses it as the smaller evil. He would prefer if it stays covert and he shrinks from a punishment.
In the case of civil disobedience we assumed the common conception of justice to be indeed just. This is not necessary here, for we don’t try to address the public’s sense of justice. Also the motives for civil disobedience were pure political ones. Motives for conscientious refusal may be various, for instance political and religious. For example in the south of USA before 1866, if somebody helped to a slave who escaped, he violated a law. This conscientious refusal was a political one, for it is justified (and motivated) by the principles of justice as fairness. As well we can imagine a person who refuses to go to an army, which is his legal duty, because his religion forbids him to use a violance.
If a law6 and conscience conflict, who is right? I believe that the parties in the original position wouldn’t agree a conscience to be always overridden by a law, because the hardship caused to the person whose conscience has been overridden may by much higher than the hardship caused to a state by refusal of the law. On the other hand, Rawls argues that a law may not be always overridden by conscience. He gives an example of an intolerant group, who would suppress basic liberties of others, if they follow only their conscience. A law must limit them. So I conclude that there is no easy answer for that question. If we are to judge a conscientious refusal, we have to let the principles of justice to guide us and consider everything carefully. And, of course, we must keep on mind, that somebody may justify his refusal by conscience, but in the reality he has more ‘practical’ reasons for the refusal.
John Rawls, A Theory of Justice, Oxford University Press 1989
1 Indeed it’s one of the basic presumptions of his theory.
2 The mathematical theory of probability proves it. In reality it isn’t so easy because the parties in a discussion are influenced by process of the discourse.
3 A positive duty requires something to be done (e.g. to help others), while a negative duty requires something not to be done (e.g. not to kill others).
4 We still assume a nearly just society, i.e. the basic structure is just.
5 an act is illegal if it violates a law
6 I say law but I mean any legal injunction (this includes, for example, commands given over by one’s commander, for a soldier has a legal duty to obey commands)