Rawls’s theory of justice primarily concerns the morality of institutions and secondarily the morality of conduct under them. A central theme of the latter is that “We are not to gain from the cooperative efforts of others without doing our fair share” (TJ 96.) This idea, its implications and Rawls’s terminology evolve as his theory of justice develops. In 1964 Rawls presented what he then called “the duty of fair play” as the ground of a widely applicable “moral obligation to obey the law” (CP 117–128), whereas in 1971 “the principle of fairness” is said to ground an obligation of obedience to law that applies to only a limited subset of citizens (TJ 308–312). These changes are related to Rawls’s distinguishing “obligations,” based on fairness and incurred by voluntary actions, from “natural duties,” which obtain independently of anyone’s voluntary acts (TJ 96).
In “Legal Obligation and the Duty of Fair Play,” Rawls says that fair play calls for compliance with the rules of an institution when (1) the institution is a “mutually beneicial and just scheme of social cooperation”; (2) compliance with its rules involves some sacriice (if only some restriction on one’s liberty); (3) the relevant beneits are created by general compliance with its rules; (4) free-riding is possible because it is possible for some to enjoy the benefits without complying; and (5) one has “accepted” such beneits (CP 122f.). In A Theory of Justice, Rawls says that the principle of fairness calls for compliance with institutional rules under similar conditions, except that Rawls modiies the last condition so that (5) one is under an obligation to do what the rules require if one has not merely accepted (perhaps only passively received) such beneits but welcomes them and intends to continue accepting them or has actually sought them (TJ 301f.).
In a theory of justice Rawls distinguishes “natural duties” from obligations: natural duties are incumbent upon each of us unconditionally, whereas obligations are voluntarily incurred. He also distinguishes natural duties from duties that are attached to institutional offices or other social positions. Natural duties are moral requirements. As the institutions and social positions to which institutional and social duties attach may be morally defensible or indefensible, they do not necessarily possess any moral force (TJ 98f.).
Rawls acknowledges a diverse set of natural duties, including “the duty of helping another when he is in need or jeopardy . . . ; the duty not to harm or injure another; . . . the duty not to cause unnecessary suffering” and the duty of mutual respect (TJ 98, 297).Within the context of a theory of justice, however, the most important natural duty requires us “to comply with and do our share in just institutions when they exist and apply to us” and “to assist in the establishment of just arrangements when they do not exist” (TJ 293f.).
Rawls holds that the parties in the “original position” would endorse this natural duty of justice as “the easiest and most direct way” “to secure the stability of just institutions” (TJ 295). By contrast, the principle of fairness, which in effect supplements the duty of justice for those who “gain political office” and “take advantage of the opportunities offered by the constitutional system,” provides less support for just institutions (TJ 302f.).This represents a departure from his earlier position, which was that mere receipt of benefits from mutually beneficial and just social arrangements grounds amoral obligation of obedience to law (CP 117–128).
Rawls defines conscientious refusal as “noncompliance with a more or less direct legal injunction or administrative order” (TJ 323). This contrasts with civil disobedience, which he deines as “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” (TJ 320). Conscientious refusal thus differs – or, strictly speaking, may differ – from civil disobedience in several ways (TJ 324–325).
Unlike civil disobedience, conscientious refusal is not defined as a public act, though the government may know of it. But unlawful omissions may be publicized and their rationales explained, asThoreau did of his tax resistance (Thoreau 1973 , 63–90, 313). Some conscientious refusers may avoid publicity, as Thoreau wisely did in aiding escaped slaves (Harding 1982, 314–317). Rawls calls the latter cases “conscientious evasion” (TJ 324).
A second difference is that the motivating principles of conscientious refusal need not be political; theymight, for example, be religious. But they can be political, as Thoreau’s indeed were. A third difference is that the motivating principles may not be shared with other members of the community – though they might be. A fourth difference is that a principled omission need not be part of an effort to achieve reform. The point of aiding escaped slaves, for example, is to ensure their freedom, not the abolition of chattel slavery. Thoreau’s tax resistance indicates, however, that conscientious refusal can be part of a line of conduct that seeks reform, e.g. by encouraging others to do the same.
Civil disobedience receives Rawls’s most careful and extended consideration in A Theory of Justice. It is there deined as “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” (TJ 320). It “is engaged in openly with fair notice” (TJ 321) and involves a “willingness to accept the legal consequences of one’s conduct” (TJ 322).
This is as narrow a conception of civil disobedience as one might find, and Rawls acknowledges that it excludes some acts that have usually been regarded as civil disobedience. An example is Thoreau’s tax refusal, protesting his state’s complicity in unconscionable federal policies. Rawls classiies Thoreau’s act and many other kinds of principled disobedience as “conscientious refusal,” which he treats separately (TJ 323–326, 331–335).
Rawls’s theory of civil disobedience relates directly to the principal project of TJ, which is to identify “the principles of justice that would regulate a well-ordered society” (TJ 8). The basic institutions of such a society satisfy the principles of justice, its members knowingly share that conception of justice, and they are morally committed to maintain institutions that respect its principles. That is the setting for what Rawls terms “ideal theory” (TJ 397). One of Rawls’s central concerns is the stability of a well-ordered society.
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