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\title{Philosophy and Public Affairs, Paper \#5}
\author{Greg Hudson}
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Thesis: Rawls's definition of civil disobedience requires a
willingness to accept the legal consequences of breaking the law
because to Rawls, civil disobedience is acting within the established
legal order and not outside of it.
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In this paper, I will examine the reasons why Rawls's theory of civil
disobedience requires that those who engage in it be willing to accept
the legal consequences of their conduct.  I will explain why this is a
puzzling requirement, and why it is nevertheless necessary within the
context of Rawls's theory.

The requirement is puzzling because those who practice civil
disobedience usually feel that the laws which they break are unjust
(although not necessarily, since civil disobedience can mean breaking
laws other than the ones alleged to be unjust\footnote{John Rawls,
{\em A Theory of Justice}.  Harvard University Press.  Cambridge, MA.
1971.  pp. 364--365}), or are being used for unjust purposes.  But if
the laws are unjust, why should someone be punished for breaking them?
After all, the people who engage in civil disobedience may feel that
in a just society, they would not be punished for the actions they
perform.  Why should someone be willing to accept a punishment which
that person feels is unjust?

The immediate reason why Rawls has this requirement is that civil
disobedience ``expresses disobedience to law within the limits of
fidelity to law, although it is at the outer edge
thereof.''\footnote{Rawls, p. 366} That is, although the practitioners
of civil disobedience may feel that the laws they break are unjust,
they show that they still have faith in the law in general by being
willing to accept the penalty of breaking specific laws.

Why is it necessary that practitioners of civil disobedience remain
faithful to the law in general?  The reason is that Rawls's definition
of civil disobedience is limited to a particular case of lawbreaking:
that which is done to reform society, and not to condemn it or to
avoid its requirements.

Rawls states that ``Civil disobedience has been defined so that it
falls between legal protest and the raising of test cases on the one
side, and conscientious refusal and the various forms of resistance on
the other.''\footnote{Rawls, p. 367} It is the latter set of
distinctions which is important.  Conscientious refusal is not civil
disobedience because it is for personal reasons: the refuser is not
seeking not so much to reform society or to appeal to its sense of
justice, but simply to remain true to the refuser's own convictions by
refusing society's commands\footnote{Rawls, p. 369}.  Militant
resistance is not civil disobedience because those who practice it
wish to condemn society, or perhaps to radically transform it, but not
to reform it while retaining the current legal
structure\footnote{Rawls, p.  367}.

Those who break the law and are not willing to accept the punishment
are not remaining faithful to the law.  Either they feel the law
requires them to violate their own moral code, in which case they are
conscientious refusers, or they feel that the current legal order is
unjust, in which case they are (at least potentially) militants.  If
someone feels that the legal order is nearly just, then that person
must remain faithful to the law, and therefore be willing to accept
the punishment for breaking it.

Why does Rawls make this distinction?  Why does he not include
conscientous refusal or militant resistance in his definition of
conscientious refusal?  The answer is that Rawls wishes to provide a
constitutional theory of civil disobedience\footnote{Rawls, p. 363}.
That is, Rawls wishes to show that civil disobedience has a place in a
nearly just society---specifically, as a safeguard against
injustices\footnote{Rawls, p. 384}.  Conscientious refusal is
difficult to fit into this mold, since it is not necessarily a
reformative gesture, and militant opposition is clearly not
permissible as an integral part of a just society.  So Rawls must
require that those who engage in civil disobedience remain faithful to
the law, and not include conscientious refusal or militant resistance
in his definition of civil disobedience.

We have seen that it is because Rawls's theory of civil disobedience
is a constitutional theory that he requires those who engage in civil
disobedience be willing to accept the penalty of breaking the law.
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