MCLS6202
Enquiry and Issues in Society and Culture
Lecture 9-10
Rule of Law and Socio-Political Participation:
Enquiry into Issues of Hong Kong Today
(II)
The Concept of Civil Disobedience
A. Civil Disobedience and its Relationship with the Rule of Law and Democratic
Participation
1. Conceptions of civil disobedience:
a. John Rawls’s conception: “I shall begin by defining civil disobedience as a
public, nonviolent, conscientious yet political act contrary to law done with the
aim of bringing about change in the lawn or policies of the government. By
acting in this way one addresses the sense of justice of the majority of the
community and declares that, in one’s considered opinion the principles of
social cooperation among free and equal men are not being respect. …It
allows for what some have called indirect as well as direct civil disobedience.”
(Ralws, 1971, P. 365-366)
b. Jurgen Habermas’s conception: In an interview made in 1986, Habermas said,
“There are three things to be said about that (referring to civil disobedience).
First: civil disobedience cannot be ground in an arbitrary private
Weltanschauung. But only in principles, which are anchored in the constitution
itself. Second: civil disobedience is distinguished from revolutionary praxis, or
from a revolt, precisely by the fact that it explicitly renounces violence. The
exclusively symbolic breaking of rules ― which furthermore is only a last
resort, when all other possibilities have been exhausted ― is only particularly
urgent appeal to the capacity and willingness for insight of the majority. Third:
a position, such as that defended by Hobbes, Carl Schmitt, or …. In which the
upholding of the law is made only the highest, but the exclusive ground of
legitimation of a legal system, seems to me to be extremely problematic, After
all, one would very much like to know under what conditions, and for what
purpose, the legal peace should be upheld.” (Habermas, 1986, P. 225)
c. Ronald Dworkin’s conception: “Civil disobedience…is very different from
ordinary criminal activity motivated by selfishness or anger or cruelty or
madness. It is also different…from the civil war that break out within a territory
when one group challenges the legitimacy of the government or the
dimensions of the political community. Civil disobedience involves those who
do not challenge authority in so fundamental a way. They do not think of
themselves…as seeking any basic rupture or constitutional reorganization.
They accept the fundamental legitimacy of both government and community;
they act to acquit rather than to challenge their duty as citizens.: (Dworkin,
1985, P105)
d. Jean Cohen and Andrew Arato’s conception: “Civil disobedience involves
illegal acts, usually on the part of collective actors, that are public, principle,
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and symbolic in character, involve primarily nonviolent means of protest, and
appeal to the capacity for reason and the sense of justice of the populace.
The aim of civil disobedience is to persuade public opinion in civil and political
society…that a particular law or policy is illegitimate and a change is
warranted. Collective actors involved in civil disobedience invoke the utopian
principles of constitutional democracies appealing to the ideas of fundamental
rights or democratic legitimacy.” (Cohen & Arato, 1992; quoted in Habermas,
1996, P. 383)
2. Justificatory grounds for Civil Disobedience
a. The institutional assumption of civil disobedience: As the preceding definitions
suggest, advocates and organizers of civil disobedience start off their
campaign under the working assumption that they are living “within a more or
less just democratic state and that they “recognize and accept the legitimacy
of the constitution” (Rawls, 1971, P. 362) And their focal point of defiance is
only on particular law or policy, which they find so unacceptable or even
wrong that they have to defy it directly or indirectly. As a result, the organizers
and participants of a civil disobedience campaign owe the law-abiding
majority of the community a burden of proof of their act of disobedience.
b. Ronald Dworkin, a prominent scholar of jurisprudence in the US, has induced
three basic justificatory grounds for civil disobedience.
i. “Conscience or integrity-based” civil disobedience: He points to the
Fugitive Slave Act of 1850 in the US. He indicates, “Someone who believes
it would be deeply wrong to deny help to an escaped slave who knocks at
his door, and even worse to turn him over to the authority, think the Fugitive
Slave Act requires him to behave in an immoral way. His personal integrity,
his conscience, forbids him to obey.” (Dworkin, 1985, P. 107)
ii. “Justice-based” civil disobedience: Dworkin points to the civil rights
movement and the anti-Vietnam-war movement in the US during the 1960s
in the US. He suggests that those participating in these civil disobedient
movements aim “to oppose and reverse a program they believe unjust, a
program of oppression by the majority of a minority. Those in the civil rights
movement who broke the law and many civilians who broke it protesting
the war in Vietnam thought the majority was pursuing its own interests and
goals unjustly because in disregard of the rights of others, the rights of the
domestic minority in the case of civil rights movement and of another nation
in the case of the war. This is “just-based” civil disobedience. (Dworkin,
1985, P. 107)
iii. “Policy-based” civil disobedience: Dworkin points to the movement of
occupying US military bases in West Germany during the Euro-missile
deployment debate in the 1980s. He suggests that “people sometimes
break the law not because they believe the program they oppose is
immoral or unjust…but because they believe it very unwise, stupid, and
dangerous for the majority as well as the minority. The recent protest
against the deployment of American missiles in Europe, so far as they
violate local law, were for the most part occasions of this third kind of civil
disobedience , which I shall call ‘policy-based’. If we tried to reconstruct the
beliefs and attitudes of …the people who occupied the military bases in
Germany, we would find that…they thought that majority had made a
tragically wrong choice from the common standpoint. …They aim, not to
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force the majority to keep faith with principle of justice, but simply to come
to its sense.” (Dworkin, 1985, P. 107)
3. The function of civil disobedience in democratic and rule-of-law state: Taking
together John Rawls’, Jurgen Habermas’ and Ronald Dworkin’s formulations, they
consensually point to the positive contribution of civil obedience to the formation
of the political culture of the democratic and rule-of-law state (Rechtsstaat in
Germen)
a. John Rawls underlines, “Indeed, civil disobedience ( and conscientious
refusal as well) 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 (not necessary written), 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, 1971, P. 383)
b. Jurgen Habermas characterized the civil disobedience (in the form of
occupying the US military bases in Germany) against the Euro-missile
deployment in Germany in early 1980 in the following ways:
“The present movement gives us the first chance, even in Germany, to grasp
civil disobedience as an element of a ripe political culture.” (Habermas,
1983; quoted in Specter, 2010, P. 156; my emphasis)
“The practice gives the German public, for the first time, the chance to liberate
itself from a paralyzing trauma and to look without fear on the previous taboo
question of the formation of a radical democratic consciousness. The danger
is that this chance ― which other countries with a longer democratic
tradition …have integrated productively ― will be passed up.” (Habermas,
1985; quoted in Specter, 2010, P. 156; original emphasis)
c. Jurgen Habermas has also put civil disobedience against the context of
Rechtsstaat (the rule-of-law state) and suggests that
“The paradox of the Rechsstaat is that it must embody positive law, but also
stand for principles which transcend it, and by which positive law may be
judged. The Rechsstaat, wanting to remain identical with itself, stands before a
paradoxical task. It must protect …against injustice that may emerge in legal
forms, although this mistrust cannot take an institutionally secured form. With
this idea of a non-institutionalizable mistrust of itself, the Rechsstaat projects
itself over the entirety of its positive law.” (Habermas, 1983; quoted in Specter,
2010, P. 156) Immediately following the quotation, Mathew Specter underlines
that “Habermas claim that the paradox can be resolved by citizens of ‘matured’
political culture because they alone show the ‘sense of judgment’ necessary
to decide how to act in relation to unjust laws, or majority decision, with which
they agree. Civil disobedience was thereby figured as a necessary
component of a successful Rechsstaat.” (Specter, 2010, P. 167; my
emphasis)
d. Ronald Dworkin in retrospective reflection on the civil disobedient movements
of the US in the 1960s and 70s, he suggests that “we can say something now
we could not have said three decades ago: that Americans accept that civil
disobedience has a legitimate if informal place in the political culture of their
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community. Few Americans now either deplore or regret the civil rights and
antiwar movements of the 1960s. People in the center as well as on the left of
politics give the most famous occasions of civil disobedience a good press, at
least in retrospect. They concede that these acts did engage the collective
moral sense of the community. Civil disobedience is no longer a frightening
idea in the United States.” (Dworkin, 1985, P. 105)
4. To summarize, we may map out the connection between the rule of law,
democratic political participation and civil disobedience in the following way
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(III)
The Concept of Patriotism
A. Is Patriotism a Virtue or a Vice? A Value and Moral Enquiry
1. Meaning of patriotism:
a. Alasdair MacIntyre’s definition: In his oft-cited article entitled “Is Patriotism a
Virtue?” MacIntyre defines patriotism as “a kind of loyalty to a particular nation
which only those possessing that particular nationality can exhibit. Only
Frenchmen can be patriotic about France.” (MacIntyre, 2002, P. 44)
Furthermore, MacIntyre characterizes that patriotism as a kind of attitude
supportive towards one’s own nation and evaluative of its merits and
achievements are extremely particularistic in nature. That is, “patriots does not
value in the same way precisely similar merits and achievements when they are
the merits and achievements of some nation other than his or hers. For he or
she ── at least in the role of patriot ── values them not just as merits and
achievements, but as the merits and achievements this particular nation.”
(MacIntyre, 2002, P. 44)
b. Leo Tolstoy’s definition of “extreme patriotism”: Tolstoy states that “The
sentiment (of patriotioism), in its simplest definition, is merely the preference of
one’s own country or nation above the country or nation of any one else.”
(Tolsky, 1969, quoted in Nathanson, 1993, P. 4) He goes on to emphasized that
patriotism may consist the following features.
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“1. A belief in the superiorty of one’s country
2. A desire for dominance over other contries
3. An exclusive concern for one one’s own country
4. No constrints on the pursuit of one’s country’s goals
5. Automatic support of one’s country’s military policies.” (quoted in Nathanson,
1993, P. 29)
It must be underlined that Tolstoy did not himself identify with such a extreme
version patriotism. In fact, he formulates it for criticism and he goes on to state
that “this sentiment is …very stupid and immoral.”
c. Stephen Nathanson’s definition of “moderate patriotism”: He stipulates that
patriotism need not have the features that Tolstoy attributes and thus that it
need not be open to his criticisms. Moderate patriotism involves the following
features:
1. Special affection for one’s country
2. A desire that one’s country prosper and flourish
3. Special but not exclusive concern for one’s own country
4. Support for morally constrained pursuit of national goals
5. Conditional support of one’s country’s policies.” (Nathanson, 1993, P. 34)
2. Criticism of patriotism from the deontological and liberal perspectives in value and
morality enquiry
a. According to the deontological perspective in morality enquiry, all evaluation
and moral judgments are supposed to be judged according to some impersonal
and impartial criteria or rules. However, for patriotism it “requires me to exhibit
peculiar devotion to my nation and you to yours. It requires me to regard such
contingent social facts as where I was born and what government ruled over
that place at that time, who my parents were, who my great-great- grandfathers
were, and so on, as deciding for me the question of what virtuous action is.”
(MacIntyre, 2002, P. 45) Accordingly, the deontological “moral standpoint and
the patriotic standpoint are systematically incompatible.” (MacIntyre, 2002, P.
45)
b. Furthermore, according to the liberal perspective in moral enquiry, the criteria
and rules, which moral judgments should follow, should not only be impartial
and impersonal but should also
i. be “neutral between rival and competing interests;”
ii. be “neutral between rival and competing sets of beliefs about what the best
way for human beings to live is;”
iii. take individual human being as the basic unit in moral evaluations and
“each individual is to count for one and nobody for more than one;” and
iv. apply to all moral agents universally “independent of all particularity.”
(MacIntyre, 2002, P. 47)
Accordingly, it is obvious that patriotic standpoint of morality, which base its
judgment on the particularistic interest and form of life and belief of one own
nation, will not be incompatible with that of the liberal but will simply be treated a
vice.
3. In search of morally justifiable or virtuous ground for patriotism
a. MacIntyre indicates first of all that “For patriotism and all other such particular
loyalty can be restricted in their scope so that their exercise is always within the
confine imposed by morality. Patriotism need be regards as nothing more than a
perfectly proper devotion to one’s own nation which must never be allowed to
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violate the constraints set by the impersonal moral standpoint.” (MacIntyre,
2002, P. 46)
b. As a communitarian, MacIntyre is quick to stress that there “is never morality as
such, but always the highly specific morality of some highly specific social order.”
(P. 48) And “it is an essential characteristic of the morality which each of us
acquires that is learned from, in and through the way of life of some particular
community.” (P. 48) MacIntyre further specifies that the distinct rules of morality
derived from the way of life of a particular community are therefore (P. 48)
i. specific “practices” and responses to the natural and social situations in
which a community found and formed itself;
ii. specific “narratives” through which a community and its way of life evolve
and develop through its own history
iii. specific “tradition” and social arrangements and orders which have been
institutionalized in the way of life of a community
c. Built on this communitarian version of moral rules, MacIntyre further rejoins the
liberal’s version of free-footing (impartial and neutral) moral agents by
specifying that
i. the moral goods pursued by moral agents are always embedded in “the
enjoyment of one particular kind of social life, lived out through a particular
set of social relationships.” (P. 49) Therefore, “rules of certain kind are
justified by being productive of and constituted of goods of a certain
kind …only if …these particular sets of rule incarnated in the practices
of …these particular communities are productive or constitutive of ….these
particular goods enjoyed at certain particular times and places by certain
specifiable individuals.” (P. 49)
ii. a moral duty and agency performed by a moral agent “is characteristically
and generally a hard task for human being.” MacIntyre underlines that “I
can only be a moral agent because we are moral agents, that I need those
around me to reinforce my moral strengths and assist in remedying my
moral weakness. It is general only within a community that individuals
become capable of morality.” (P. 49)
d. Taken together, MacIntyre asserts that patriotism can be accepted as a virtue
on conditions that
i. “If first of all it is the case that I can only apprehend the rules of morality in
the version in which they are incarnated in some specific community;
ii. “if secondly it is the case that the justification of morality must be in terms of
particular goods enjoyed within the life of particular communities;
iii. “if thirdly it is the case that I am characteristically brought into being and
maintained as a moral agent only through the particular kinds of moral
sustenance afforded by my community, then it is clear that deprived of this
community, I am unlikely to flourish as a moral agent.” (P. 50)
4. Dialectics between liberalism and communitarianism in the controversy over
patriotism
a. Confronted with the two rival and incompatible moralities, namely morality of
liberalism and that of patriotism, MacIntyre suggests that “one way to begin is to
be learned from Aristotle, …we shall do well to proceed dialectically.” (P. 50)
b. One the one hand, from the viewpoint of the morality of liberalism, patriotism is
“a permanent source of moral danger.” (P. 54) It is because the morality of
patriotism will always argue for exemption from general of morality principles in
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the interest or even common goods for one’s own nation. MacIntyre agrees that
such accusation from the liberals “cannot in fact be successfully rebutted” by
the patriots. (P. 54) Therefore, MacIntyre suggests that morality of patriotism
must be extremely careful in examining their arguments and justification for
exemption from moral principles for the sake of national goods. MacIntyre
specifically underlines that “whatever is exempted from the patriot’s criticism the
status quo of power and government and the policy pursued by those
exercising power and government never need be so exempted. What then is
exempted? The answer is: the nation conceived as a project, a project
somehow or other brought to birth in the past and carried on so that a morally
distinctive community was brought into being which embodied a claim to
political autonomy in its various organized and institutionalized expressions.”
However, such patriotic claim for the overall project of the nation can pose
moral danger “to the best interest of mankind” as the case of the project of the
Nazi Germany. (P. 52) Hence, the exemption is by no means absolute and must
be critically examined dialectically and continuously.
c. On the other hand, MacIntyre underlines once again that “liberal morality of
impartiality and impersonality turns out also to be a morally dangerous
phenomenon in an interesting corresponding way. For suppose the bonds od
patriotism to be dissolved: would liberal morality liberality be able to provide
anything adequately substantial in its place?” (P. 54)
“A central contention of the morality of patriotism is that I will obliterate and lose
a central dimension of the moral life if I do not understand the enacted narrative
of my own individual life as embedded in the history of my country. For if do not
so understand it I will not understand what I owe to other or what others owe to
me.” (P. 55) As a result, each individuals will probably come together simply for
the pursue of naked self-interest and competition for maximization of one’s own
profit like the institution of the capitalist market or simply for pleasure seeking
and instant gratification to mass media and mass consumption markets. In the
end, the morality of liberalism will be relegated into morality of emotionism as
MacIntyre criticizes at the beginning of After Virtue. (2007)
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Addition References
戴耀廷 (2010) 。香港的憲政之路。香港 : 中華書局(香港)有限公司。
Bendix, Reinhard (1977) Nation-Building and Citizenship. Berkeley: University of
California Press.
Cohen,, Jean and Andrew Arato (1992) Civil Society and Political Theory. Cambridge:
Cambridge University Press.
Dworkin, Donald (1985) “Political Judges and the Rule of Law.” Pp. 9-32. In R. Dworkin.
A Matter of Principle. Cambridge: Harvard University Press.
Dworkin, Ronal (1985) “ Civil disobedience and nuclear Protest.” Pp. 104-116. In R.
Dworkin. A Matter of Principle. Cambridge: Harvard University Press.
Faure, David (2003) Colonialism and Hong Kong. Hong Kong: Centre of Asia Stuides,
HKU.
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Giddens, Anthony (1982) “Class Division, Class Conflict and Citizenship Rights.” In A.
Giddens. Profiles and Critiques in Social Theory. London: Macmillan.
Habermas, Jurgen (1986) Autonomy and Solidarity: Interviews with Jurgen Habermas,
Revised Edition. Edited by P. Dews. London: Verso.
Habermas, Jurgen (1996) Between Facts and Norms: Contributions to a Discourse
Theory of Law and Democracy. Cambridge, Mass.: MIT Press.
MacIntyre, Alasdair (2002) “Is Patriotism a Virture.” PP. 43-58. In I. Primoratz (Ed.)
Patriotism. New York: Humanity Books.
Macpherson, C.B. (1997) The life and Times of Liberal Democracy. Oxfard: Oxford
University Press.
Mann, Michael ((1987) “Ruling Class Strategies and Citizenship.” Sociology, 21 (3), Pp.
339-354.
Marshall, T.H. (1992) “Citizenship and Social Class.” Pp. 3-51. T.H. Marshall and T.B.
Botoomore. Citizenship and Social Class. Lonon: Pluto Press.
Nathanson, Stephen (1993) Patriotism, Morality, and Peace. Lanham: Rowan &
Littlefield. Rawles, John (1971) A Theory of Justice. Oxford: Oxford University Press.
Specter, Andrew G. (2010) Habermas: An Intellectual Biography. Cambridge: Cambridge
University Press.
Tamanaha, Brain Z. (2004) On the Rule of Law: History, Politics, Theory. Cambridge:
Cambridge University Press.
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