Is there a right to break the law?

 Tim Sommers asserts, in 3Quarks, that 'you have a right to break the law'. Such is not the case. You may have an immunity to break a particular law or, alternatively, you may do so with impunity because you will not be punished in any way.  

To confuse a right with an immunity is a license to write paranoid nonsense. 

John Rawls, in A Theory of Justice, defines civil disobedience as a politically (or socially) motivated, public, non-violent and conscientious breach of law (or order) undertaken with the aim of bringing about a change in laws or policies against a general background of fidelity to law by actors willing to accept the consequences of their actions.

Not necessarily. One may simply defy the law because one wishes to be a 'martyr' to some noble cause or the other.  

He argued that civil disobedience is justifiable even in a reasonably just society.

Anything is justifiable in any manner whatsoever. I shit on Rawls's head to protest the Vietnam War. I think this is justifiable because Rawls should invent a time machine & go kill Kennedy.  

Some have objected to Rawls’ focus on an idealized account of what civil disobedience would be like in a society presumably more just than ours.

Society may give an immunity to nutters of various types from making a nuisance of themselves on certain occasions. The thinking is- this is a 'safety valve'.  

They worry that this distorts, rather than clarifies, the role of civil disobedience in actual, existing societies.

Essentially such actions are an immunity claim. Society permits the smaller nuisance so as to avert some greater mischief. One may think of civil disobedience as a 'costly signal' or a measure of 'preference intensity'. However, it may also have a mimetic value. People may think the protestors are cool or, at the very least, more inclined to sexual experimentation. The Greenham Common encampment began as a protest against Tom Cruise's missile (or so I fondly believe). It became the go-to place for bi-curious housewives from the Shires & thus continued to exist long after Tom Cruise withdrew his penis from England's Green, Pleasant & increasingly Lesbian land.  

Others have argued that Rawls’ account has too little to do with the paradigm cases of civil disobedience. For example, Gandhi and King did not operate against the backdrop of legitimate, reasonably just societies – unless you consider Colonial India or the Jim Crow South reasonably just.

Sadly, Indians did consider British India reasonably just. At any rate, they would have nothing to do with the parallel 'Swadesi' legal system proposed by Gandhi. What was cool about Gandhian agitations was that you got to go to jail for a bit. This raised your position in the community & entitled you to a reward from Congress Ministries or Municipal Corporations.  

Philosophers have

shit for brains 

also objected to various features of the view wondering whether justifiable political actions must be public or whether the actors must always accept the consequences or even whether political action must be non-violent.

It can be very violent- though wholly imaginary.  

I believe that Rawls had good reasons for offering an account idealized in these ways.

His reason was that he taught useless shite. Still, a good purpose was served. Kids exposed to his shite, grew up to vote Republican.  

Rawls’ theory of civil disobedience is not a general theory of justifiable political action.

It is nothing at all. Does Civil Disobedience give you an immunity under tort law- e.g. can a business adversely affected by a 'sit-in' sue for damages? NYT v Sullivan was a landmark decision protecting the press. It is said, Clarence Thomas wants to overturn it. 

His focus on civil disobedience is motivated simply by the need to take one thing at a time and an awareness of the special place in our thinking about justice and our public life that civil disobedience holds.

The Ku Klux Klan had an even more special place. If people refuse to obey a particular law, it may become unenforceable. Equally, laws may be passed even though nobody wants or expects them to be enforced. The thing is purely cosmetic. 

Ideally, civil disobedience as conscientious political action for social or political change models the change it seeks

e.g. dumping tea in the Boston harbour to signal the determination to be subject to no taxation save on the basis of responsible representation.  

by being public, non-violent, and appealing to the sense of justice of others.

Or by showing that enforcing the law will be too costly. You can arrest one guy smoking dope in the street. You can't arrest ten thousand. To understand obedience or disobedience you need to look at the pay-off matrix and threat points & hold out problems & so forth. The thing is strategic- i.e. game theoretic. You can always get some stupid Professor to say 'As Kantians we cany justify shitting on Rawls's head by appealing to the apodicity of the transcendental fart'. 

Appealing especially to those who disagree with a particular act or campaign. And it is done with a willingness to accept consequences in a way that reinforces the rule of law even in its breach.

Does forming an orderly queue to be hit on the head & carted off to jail 'reinforce the law'? No. It is a fucking nuisance- like reporting yourself to the police every time you shit on Rawls's head. 

It is part of the change it seeks.

Smoke dope in public along with a big bunch of guys and you may indeed change what is seen as lawful behaviour. But this is also true of a Mafia boss who walks into a police station and kills the Chief Inspector. If nobody stops him walking out of the station, everybody understands that he, and he alone, is the Law in the precinct. If you want revenge for your daughter's rape, it is the Godfather you go to see.  

In fact, again, I think that in a liberal democracy there is a right to civil disobedience, rather than it being sometimes justifiable.

No. Law enforcement has a limited immunity to take coercive actions against people. This is a justiciable matter.  Speaking generally, you have a right to do what you like save where somebody has a superior right or immunity. 

One problem with focusing on justifiability is that

anything can be justified by anything. That's why lawyers get paid big bucks to focus on justiciable issues. Philosophy professors are paid a meagre wage to teach shite to shitheads.  

it can get mired in the issue of whether or not there is a generalized obligation to obey the law.

& a generalized obligation to be obliged & an obligation to that obligation & so forth. This is simplly childish.  

Surprisingly, most philosophers are “Philosophical Anarchists.”

i.e. not just useless but anarchically so- i.e. they add a turd to the faculty punch bowl as a fuck you to the Dean. 

They say that you have no obligation to obey the law over and above your moral or pragmatic reasons for doing so. I assume, nonetheless, that at least sometimes, especially in a reasonably just society, it is wrong to break the law.

Whether or not a law has been broken is a justiciable matter.  Everybody is innocent till proven guilty. 

Another way justifiability can lead us astray is that, behind every act of civil disobedience there is a claim of injustice or wrong.

Which is why justifiability doesn't matter. Only justiciability does. Hire a lawyer, not a philosopher.  

A focus on justifiability leads to

wasted time.  

a focus on these claims.

which are a waste of time.  

However, I don’t want to know if political action is ever justified by injustice, of course it is. I want to know if, even in a reasonably just society, there is at least this form of political action, civil disobedience, that is justified even when the claim that the actor has been wronged is mistaken.

It is justified by the fact that you are as stupid as shit & simply didn't know any better.  

As Joseph Raz puts the point, the question of whether or not civil disobedience is a right is whether actors are “entitled civilly to disobey even though [or when] one should not do so”.

It isn't a legal right. It may be a claim to a right- e.g. the right to decapitate boring people. 

Like free speech

which is a justiciable matter 

– indeed, it is free speech – the test case is always what to do with what it is that you disagree.

Nope. It has to do with constitutional law & case law & complicated stuff of that sort.  

Of course, you don’t want to suppress your own side in an argument.

My side tends to be a fart. Sometimes it turns into a shart. Suppress it by all means. Also, fuck arguments. Be silent & carry a big stick.  

But what about the other side? Even John Stuart Mill

a guy who worked for the East India Company- they're the bad guys in Pirates of the Caribbean.  

in his seminal On Liberty

like Kant, he thought Liberty might be cool for WASPS but not darkies  

failed to extend free speech to youth, barbarians, and Catholics (under the sway of a foreign sovereign).

Does Civil Disobedience fall foul of the 'harm principle'? If any specific person or enterprise is targeted, there is harm. Should it be covered by tort law? The problem was, if enough people were involved, the cost of enforcement would be too great. In Ireland, in 1880, the boycott of Captain Boycott cost the Exchequer 10,000 pounds. They brought in 50 labourers, under heavy military protection,  to harvest 500 pounds worth of crops. Boycott had to leave the country. 

Admittedly, there is something paradoxical about suggesting that there even could be a legal right to break the law.

That is why the thing is called an immunity, not a right. We don't say ' some White men have a legal right to commit statutory rape in America'. We say 'in certain states, for certain men, there is a right to marry a 15 year old girl if certain conditions are met. This then creates an immunity to have sex with her.' 

Since the law has been broken and, by hypothesis, civil disobedients are willing to accept the consequences of such an act and since we are assuming it is wrong to break the law – what can it even mean to say there is such a right?

Anyone can say they have the right to fly up Uranus. A claim is not a right even if it s a rights claim.  

I assume that civil disobedients face and accept legal consequences for their actions, but that we would recognize such a right by treating them differently than ordinary law breakers.

A court is welcome to look at mitigating circumstances.  

This might mean leniency in treatment, sentencing, or even, in some cases, simply not subjecting them to the full legal consequences their actions.

Which also happens if it is too costly to enforce the law.  

I leave aside the practical side of this question.

Which is the only side that matters.  

As for the conceptual side, again, rights, by definition, can be used wrongly. That may put the point too strongly. But there is nothing logically wrong with the claim that a reasonably just society includes a right (potentially enshrined in law in some way) to disobey the laws of that society.

That's an immunity. A mentally retarded person may have such an immunity.  

A reasonably just society, arguably, would have a special place for civil disobedience.

Also, it would have a special place for taking a shit. 

Civil disobedience proceeds out of a desire to communicate an injustice, to appeal to the better angels of our nature, even at some risk to yourself and without rejecting the whole of the social order tout court.

I suppose one could say it expresses 'preference intensity'. But, it is a nuisance. Society may decide it is cheaper to compromise with the nuisance creators. 

It invokes a lawful social order, even where it does not yet exist, an order based on a shared commitment to justice while recommending fidelity to law even in the breach of it.

It may do. It may not. The problem is, two can play at that game. One bunch of nutters create a nuisance & then another bunch creates an equal and opposite nuisance.  

Civil disobedience also enacts the liberal political order by demonstrating that it is strong enough to tolerate, within limits, even dissent that breaks with the liberal order and/or the law on some particular point.

So does murder.  

Just as Rawls argues that a liberal political state must tolerate a certain level of intolerance

& murder 

by its illiberal members, so too must tolerate its own excesses.

not to mention its really stinky farts.  

It is consistent with the proper understanding of liberalism that there is, paradoxically, a (limited) right to break the law even in the best – but, most importantly, in the worst of times. “Civil disobedience is not our problem,” Howard Zinn argued, “Our problem is civil obedience.”

The real problem is that a 'political order' costs money. If the State goes off a fiscal cliff, it won't have very much in the way of law & order. Plenty of Gandhians who queued up to get hit on the head & carted off to jail, had to run the fuck away from rampaging mobs once the Brits threw in the towel.  

_