Rawls on Civil Disobedience: Support Your Local Principled Outlaw, Especially If They Are Your Local Principal

Revising my dissertation, Social Justice and Standardized Testing, for Routledge. Adding this section in to spice it up.

 Educators in many places feel they are in an impossible position, so there are very real questions about the best ways to deal with and resist a standardized testing industrial complex that has grown and continues to invade educational institutions at all levels. As I discuss in the the following sections, walkouts have been staged, including students, parents, and teachers. These are vey important and have had some impact. There are questions as to whether or not such grass roots efforts will become large or disruptive enough to change the course of corporate and government backed large-scale testing intensive “reforms.” There are also questions about the legality and ethical standing of organizing direct action protests and civil disobedience in schools.

Civil disobedience and the new uprising against standardized testing

Aside from those who are simply cheating, other teachers and administrators are disobeying the dictates of federal polices. Their actions are often argued to be illegal and they take them under great risk to their reputations and livelihoods. Students, parents, and teachers are building a wide variety of organizations focused on opting-out of and otherwise subverting high-stakes testing. They all claim to be responding to a shared sense of injustice. But considering the reactions from departments of education and many mainstream (corporate backed) reform groups, it appears the question still needs to be answered: are these activist involved in resisting unjust practices, or in perpetrating them?

Rawls wrote his major work, A Theory of Justice, during the American Civil Rights movement, where the principles of civil disobedience were put to use in the interest of social justice with profound results. It is not surprising then that Rawls wrote directly about the nature of civil disobedience, its function in a democratic system of government, and its role in fostering and sustaining a just society. Picking up the lineage of reflection on civil disobedience beginning with Thoreau’s famous essay, “Civil Disobedience,” and moving through Martin Luther King’s “Letter from Birmingham Jail,” Rawls (1971 p. 308- 343) precisely defines and justifies civil disobedience in terms of his broader moral philosophy. Because much of what I do in the rest of this book is use Rawls’s theory to expose the injustices that can be perpetrated by standardized testing infrastructures, it is worth exploring what Rawls thought of organizing an active front of resistance to such injustices, specifically organizing resistance to institutionalized or structural injustices that result from democratically instituted laws and policies. When is acting illegally the best way of maintaining fidelity to a broader commitment to social justice?

It is again worth quoting Rawls (1971 pp. 320-21) at length:

[I define] civil disobedience as a public, nonviolent, conscientious yet political act contrary to law usually done with the aim of brining about a change in the law or polices of government…. Civil disobedience is a political act not only in the sense that it is addressed to those that hold political power, but also because it is an act guided and justified by political principles, that is, by the principles of justice which regulate the constitution and social institutions generally. In justifying civil disobedience one does not appeal to principles of personal morality or to religious doctrines, though these may coincide with and support with ones claims; and it goes without saying that civil disobedience cannot be grounded solely on group or self-interest. Instead one invokes the common shared conception of justice that underlies the political order.

It is important to understand that for a social contract theorist like Rawls, who is committed to majority-rule democracy and constitution based governance, one is typically ethically obligated to obey the laws of one’s society, even when one strongly disagrees with them. This obligation holds because legal frameworks are to have been instituted according to processes specified in the constitution. That is, reflective citizens are broadly committed to the democratic processes of their government, not the specific laws enacted through their being followed. Democratic processes and constitutional legal frameworks are examples of what Rawls calls “imperfect procedural justice”—which is to say, they are processes that can be consented to by all parties and followed in good faith, and yet they can still produce a less then ideal outcome.

In one sense, the outcomes of democratic processes are always less than ideal. Democracy appears less than ideal whenever you are on the minority side of a particular issue that goes to ballot. But we do not dissolve the government whenever a contentious new representative is elected, even when nearly half of voters were against them. This is because of a higher allegiance to the constitution and its institutions and processes, which are understood as imperfect and capable of progressive change over time. Breaking laws, even when one disagrees with them, can be understood as a violation of one’s ethical obligations to society and to maintaining ongoing social cooperation and reasonableness.

This way of thinking about our ethical obligation to obey laws—even unjust laws—is based on several assumptions that Rawls is careful to specify. Firstly, this way of thinking about the law only applies in a “nearly just society that is well-ordered for the most part” (Rawls 1971 p. 319). That is, we are only ethically obligated to obey laws instituted by legitimately established democratic authority. No one has an obligation to obey the laws of a government that is fundamentally illegitimate and unjust, such as the laws imposed on citizens in Nazi occupied territories during WWII. The obligation to obey laws only holds when the basic structures of a society provide for a certain level of “background justice”— namely, when the constitution and the processes it specifies guarantee all citizens their basic liberties and rights. The details of what these basic rights are and definitions of “background justice” and a “well-ordered society” will be offered in Chapter 1. For now it is important to grasp that Rawls is setting out from the assumption that many actually existing societies meet these specifications, and that therefore breaking the law is usually not an action that furthers social justice.

However, even in a “nearly just society that is well-ordered for the most part,” its constitution and political procedures will be unavoidably imperfect, so “some serious violations of justice will occur” (Ibid). Civil disobedience is a question of when the expected imperfections of democracy become so unacceptable that laws must be broken in order that the legal system itself can be made more just. To be clear, to say that democratic processes are unavoidably imperfect is not to say that there is widespread incompetence or that simple mistakes are being made (although that is certainly part of the picture), rather it is to say that historical circumstances are unique and there are a lot of personalities, politics, money power, and emotions tied up in any given law’s enactment. It is precisely when, for example, money power wields an undue influence over political agendas that what would otherwise be a reasonable process creates unreasonable results. Rawls focuses in on exactly this point about money power in his discussion of the need to guarantee the equal value of political liberties—for democracy to function in a “nearly just” manner money power must not be readily convertible into political power. Campaign finance reform is perhaps the mots obvious example of this, which Rawls discusses (see Freeman, 2007). I offer this aside because many of the educational activists in the US who are claiming that the laws and policies associated with standardized testing are unjust are claiming that otherwise reasonable democratic processes were distorted through money power in exactly this manner. Extremely wealthy individuals are wielding a disproportionate amount of power in the shaping of public education.

Be this as it were, even the best possible democracy will be an imperfect system and will produce unjust laws on occasion, that much is basically unavoidable. But what is the threshold that must be crossed to justify breaking our ethical commitments to follow these admittedly fallible laws, even when we disagree with them?

Rawls argues that the question of when to subvert normal legal political channels and engage in civil disobedience has to do with the goals of civil disobedience as a public communicative act that appeals to the sense of justice of the community. With this in mind Rawls (1971 p. 326) suggest that civil disobedience should focus on “instances of substantial and clear injustice, and preferably those which obstruct the path to removing other injustices.” Civil disobedience should be used to draw attention to violations of the basic principles of justice, which concern equality of liberty and fair equality of opportunity. Chapter 1 explores the nature of these most basic principles of justice and the rights that are owed to all citizens. Here I simply note that these principles of justice are prior to (or more fundamental than) any given law or constitution; they represent the shared conception of justice that all members of a society are understood to orient around. This is the notion of justice that justifies there being laws in the first place. Civil disobedience will only work as a political strategy when it is brought to bear on issues where the injustice is so fundamental and clear that the community as a whole can be brought into sympathy with those who are breaking the law—the whole community is made aware of the priority of justice over law.

This idea can be clarified by considering again the original position—the perspective taking practice of taking the view from everywhere. The civilly disobedient are arguing, in effect, that any reasonable person put in their position would be justified in doing the same. They are not basing their actions on personal preference or the values espoused by their sub-cultural group; they are appealing to ostensibly universal human rights, which they believe any reasonable person ought to demand for themselves and those they love. Acts in which a few put themselves at great risk in order to appeal to the conscience of the many make a demand on the witnessing majority that they take the perspectives of those who are in the minority. This is one of the reasons that it is so important for acts of civil disobedience to be non-violent. “It expresses disobedience to law within the limits of fidelity to law…. The law is broken, but fidelity to law is expressed by the public and nonviolent nature of the act, by the willingness to accept the legal consequences of one’s conduct. This fidelity to law helps to establish to the majority that the act is indeed politically conscientious and sincere, and that it is intended to address the public’s sense of justice” (Rawls, 1971 p.322).

Civil disobedience is fundamentally communicative. It functions to bring the voices of the voiceless into public consideration. Because of this, Rawls (1971 pp. 336) understands it as an essential part of any just democracy society:

Civil disobedience is one of the stabilizing devices of a constitutional system, although by definition an illegal one. Along with such things as free and regular elections and an independent judiciary empowered to interpret the constitution, civil disobedience used with due restraint and sound judgment helps to maintain and strengthen just institutions. By resisting injustice within the limits of fidelity to law, it serves to inhibit departures from justice and to correct them when they occur. A general disposition to engage in justified civil disobedience introduces stability into a well-ordered society, or one that is nearly just.

Rawls is arguing that a commitment to support justified civil disobedience should be included with others commitments like those of constitutional governance, democracy, and social cooperation, which follow from his broader theory. Yet, as the end of the quote above makes clear, there are important conditions that must be in place in the broader society for civil disobedience to be effective, and which make any specific act of civil disobedience full of risk for those undertaking it. This is because society is often lacking a shared sense of what is just and unjust regarding any particular issue. “A common sense of justice is a great collective asset which requires the cooperation of many to maintain…in a fragmented society as well as one moved by group egoisms, the conditions for civil disobedience do not exist” (Rawls 1971 p.340). If society has no conscience to appeal to—no shared sense of what constitutes justice—then the civilly disobedient will fail in their communicative actions and their invitation to perspective taking will not be take up by the majority. In such cases those acting illegally will face repressive violence and punishment without sparking the accompanying public outrage and calls for reform that are the intended outcome of the action.

Sometimes this is because the action is unjustified and does not appeal to an issue of true injustice. Other times the failure of an act of civil disobedience is due to a more general misunderstanding of the injustices that are the intended focus of the action. Because of this, in contemporary conditions the role of the media in aiding or undermining civil disobedience cannot be overestimated. If the legitimate claims of a minority can be rendered illegitimate in the eyes of the majority, then whatever punishments they receive when breaking the law are perceived as justified. In the 1960s, television coverage of the Civil Rights Movement showed fire hoses and police dogs being used on peaceful non-violent protesters, and the result was a wide spread sense among the public that the protesters were in the right. In this case the injustice was so clear that the messages from (nearly) all major national media outlets (eventually) amplified this shared sense that the protesters had justice on their side. On the other hand, for example, in the 1990s, environmental activists protesting the destruction of rainforests who engaged in civil disobedience received relatively little public support even when their non-violent civil disobedience tactics were met with extremely violent repressive measures. To take but one case, on September 25, 1997, in Humboldt California, activists who had intentionally immobilized themselves and put themselves in the way of logging machinery and at the mercy of police were treated in a manner that would fit most typical definitions of torture. Hours were spent applying tear gas directly to the eyeballs of teenaged female activists who, screaming and vomiting from pain, were pleading with onlookers and the media stop the police. Videos of this incident made it on the nightly news nation wide, and there were some upset editorials and op-eds, but there was never a widespread public outcry or condemnation of the police or logging company involved (see: Graeber (2009) for this and other well documented cases where civil disobedience failed, with disturbing consequences). In this case the national media systematically painted the activists as fringe, radical (possible “eco-terrorists”), and incoherent in their values and demands; this despite the activists’ explicit avowals of non-violence and numerous articulate manifestos stating their beliefs, which were often sent directly to the media.

It is well known that Gandhi spent a great deal of time cultivating relationships with (British) journalists, and this is why. Civil disobedience requires a society that both understands and cares about the injustices that are the focus of the action. Otherwise the civilly disobedient are simply perceived as criminals, or worse, as terrorists. There is always the possibility that even a legitimate act of civil disobedience can fail to achieve its communicative and perspective-taking intension due to its being ignored, covered-up, or simply misreported and misunderstood. It is, therefore, incredibly important to be strategic when undertaking such an approach to addressing injustice. The media must be won over; the participants disciplined and well trained; the injustice must be clear as day.

Injustices in the public educational system are, and have been, particularly well suited to being addressed through civil disobedience. This may be because teachers and students are hard to portray as anything but innocent and non-violent. Although the recent denigration of teachers by politicians and the media indicate that teachers not immune from being villainized if it serves a broader reform agenda (Ravicth, 2013). Nevertheless, school are still institutions that largely contain society’s hopes because they always contain society’s most vulnerable and precious members, children. The recent movement against standardized testing has so far been able to capitalize on the public conscience around schooling and some forms of civil disobedience are having an impact.