Civil Disobedience as a Participatory Role
On December 19, 2008, University of Utah student, Tim DeChristopher halted a Bureau of Land Management land auction by placing $1.7 million of fraudulent bids on over 22,000 acres of land in southern Utah (Godfrey, 16). DeChristopher’s actions are indicative of civil disobedience (Godfrey, 18). For this paper I will first begin by providing evidence of DeChristopher’s principles behind his actions. Secondly, I will explore the issue of rights in two rights theories: Immanuel Kant’s deontological theory from the “Groundwork of the Metaphysics of Morals” and John Rawl’s social contract theory in “A Theory of Justice.” Next, I will outline Garrett Hardin’s arguments regarding the commons in “The Tragedy of the Commons.” Then I will offer Iris Marion Young’s argument in favor of participatory justice in “Justice and Hazardous Waste.” Next, I will summarize Henry David Thoreau’s argument in “Civil Disobedience” and Martin Luther King, Jr.’s argument in “Letter from Birmingham Jail,” both regarding civil disobedience. Then, I will offer counter arguments against civil disobedience as noted by Peter Suber in the essay “Civil Disobedience.” Next, I will compare the evidence of DeChristopher’s principles to Kant’s, Rawl’s, Hardin’s, Young’s, Thoreau’s, and King’s arguments. I will argue DeChristopher’s actions can be linked to the principle people have a right to be autonomous which leads them to seek a participatory role in the decision making processes which affect their lives and which also leads them, ultimately out of frustration, to turn to acts of civil disobedience in order to fill that participatory role if the system does not adequately allow them a participatory role. Finally, I will modify the arguments against civil disobedience as noted by Suber to argue against my argument then counter those arguments.
Evidence of DeChristopher’s Principles
DeChristopher’s statements provide the best evidence of the principles behind his actions. In a Utah Now interview with Doug Fabrizio, DeChristopher noted a question on the final exam he took the morning before the auction which asked if the only people at an auction bidding on land were the bidders, does the winning bid adequately represent the value of the land (DeChristopher). DeChristopher explained, no, it doesn’t because of the money the taxpayers would lose from not being able to receive recreational enjoyment from the land, the additional money it would cost for added healthcare costs resulting from the pollution, and the additional money it would cost due to the effects of global warming (DeChristopher).
In the Utah Now interview, DeChristopher stated he had done everything he was supposed to do, via the legal channels, to try to make a change (DeChristopher). He stated he petitioned, he protested, he met with his congressperson, and he wrote letters, but, he stated, the system is not set up for people like him to succeed (DeChristopher). DeChristopher also noted in the Utah Now interview due to his experience, something he noticed about American society is there has been a “lack of direct participation” and his experience is encouraging more people to participate (DeChristopher).
In a Democracy Now interview with Amy Goodman, DeChristopher argued the Bush Administration rushed through the auction without doing an adequate environmental impact study or getting public feedback, in order to try to rush the auction through before the Obama Administration came to office because Bush knew the auction would be deemed illegal under any other administration (DeChristopher). In his sentencing hearing, DeChristopher asserted the BLM was in “constant violation” of “Secretarial Order 3226, which was a law that went into effect in 2001 and required the BLM to weigh the impacts on climate change for all its major decisions, particularly resource development” (DeChristopher). In his sentencing hearing, DeChristopher stated a Congressional report found it “common” people were paid by the oil and gas industry to “volunteer for the industry that was suppose to be regulating it” by processing permits and addressing protests (DeChristopher). DeChristopher states “legal avenues in this case were constructed precisely to protect the corporations who control the government” (DeChristopher).
DeChristopher described the “choice” he was “faced” with, between “disrupting the auction, or being complicit” regarding “this destruction of our land, destruction of our democracy, and the destruction of our climate” and “climate change presents such a serious threat to our future, that it creates a moral imperative that is higher than just following the law as it exists” (Godfrey, 18). For DeChristopher, the consequences of the BLM auction were so destructive that it was more moral to commit civil disobedience and disrupt the auction than to obey the law. At his sentencing, DeChristopher stated “Where there is a conflict between the law and the higher moral code that we all share, my loyalty is to that higher moral code” (DeChristopher). DeChristopher asserted, at his sentencing, he has “great respect for the rule of law” but, “The rule of law is dependent upon a government that is willing to abide by the law. Disrespect for the rule of law begins when the government believes itself and its corporate sponsors to be above the law” (DeChristopher). Additionally, at his sentencing, DeChristopher stated “I am here today because I have chosen to protect the people locked out of the system over the profits of the corporations running the system” (DeChristopher). At his sentencing hearing, DeChristopher stated his intention was to “expose” the oil industry and to “shine a light on a corrupt process” (DeChristopher).
Two Rights Theories: Kant and Rawls
All of DeChristopher’s comments imply people have certain rights, which in the case of the BLM auction, were being violated. Kant’s deontological, or duty based, rights theory asserts people have rights which cannot be violated (Drexler). Kant states “The will is conceived as a power of determining oneself to action in accordance with the idea of certain laws. And such a power can be found only in rational beings” (95). Kant is asserting people have reason and will, and can use their reason and will to decide what the right thing to do is, then act on that decision (Drexler). Kant asserts “Rational nature exists as an end in itself” (96). Therefore, the moral “practical imperative” is: “Act in such a way that you always treat humanity whether in your own person or in the person of any other, never simply as a means, but always at the same time as an end” (96). For Kant, people have “intrinsic value,” meaning they have value in themselves simply for possessing reason and will (Drexler). People, according to Kant, should not be treated as having merely “instrumental value,” or treated as if their value only depends on what they can do for others (Drexler). For Kant, his practical imperative asserts people should be treated with respect, as an end in themselves with intrinsic value, and never with disrespect as merely a means with instrumental value to an end.
Autonomy, or self-rule, is using one’s reason to decide a will, then act on that decision without anyone else telling one what they should do (Drexler). For Kant, autonomy is necessary for people because it is the only way people (endowed with reason and will) can be people (using their reason and will) (Drexler). People use their reason and will to decide and act on what it is their duty to do by utilizing Kant’s “categorical imperative” (Drexler). The categorical imperative states: “Act only on that maxim through which you can at the same time will that it should become a universal law” (89). Kant’s categorical imperative basically asserts, before deciding on committing an action, consider what would happen if everyone would commit the action. If everyone committed the action would it lead to the purpose or concept of the action becoming a contradiction or non existent? For example, Kant gives the concept of borrowing money with a promise to repay, but also with the intention to never repay (90). If everyone were to borrow money with a promise to repay, but never intended to repay, then the whole concept of a promise would fail to exist and it would make it impossible to ever obtain money again by promising to repay (Kant, 90). Kant argues one ought to follow the Principle of Consistency, and the only way immoral acts achieve the desired end is if the act is not universalized (Drexler). Kant argues, immoral acts can only work under the “essence of immorality” in which one makes an exception for one’s self, hold’s one’s self to special standards or treats one’s self as special (Drexler).
Kant argues people have a right to autonomy because they have reason and will. Rawls’ theory, on the other hand, is a social contract theory stemming from Thomas Hobbes’ assertion people in society agree upon the rules of the society and give up some of their freedoms so they can be protected from others in the society (Drexler). Social contract theories assert “The best, most just social, political, and economic arrangements are those that are agreed upon by the members of the society” (Drexler). Rawls argues laws should be designed from behind a “Veil of Ignorance,” which would serve to make the implemented laws objective and impartial (Drexler). The Veil of Ignorance, for Rawls, is putting oneself in a frame of mind in which one is completely ignorant of their position in society, like how much money they have or how healthy they are or what age they are or what ethnicity/race they are (Drexler). For Rawls, by not knowing what one’s position is in the society, this lawmaker will be able to make laws which are more equitable for everyone (Drexler).
Rawls’ Veil of Ignorance contains “two principles of justice” which are the Basic Rights Principle and the Difference Principle (42; Drexler). The Basic Rights Principle is: “Each person has the same indefeasible claim to a fully adequate scheme of equal basic liberties, which scheme is compatible with the same scheme of liberties for all” (Rawls, 42). The Difference Principle is: “Social and economic inequalities are to satisfy two conditions: first, they are to be attached to offices and positions open to all under conditions of fair equality of opportunity; and second, they are to be to the greatest benefit of the least-advantaged members of society” (Rawls, 42-43). Rawls’ Basic Rights Principle asserts everyone, being equal, is entitled to the same rights and liberties as everyone else. Rawls’ Difference Principle asserts if someone is given unequal rights and liberties, then these unequal rights and liberties must be attached to offices or positions which are able to be obtained by everyone and these unequal rights and liberties must be to the greatest benefit to the least advantaged people in society (Drexler).
Rawls asserts one way to establish “a list of basic rights and liberties” is to “consider what liberties provide the political and social conditions essential for the adequate development and full exercise of the two moral powers of free and equal persons” (45). First, Rawls states, “the equal political liberties and freedom of thought enable citizens to develop and to exercise these powers in judging the justice of the basic structure of society and its social policies” (45). Secondly, Rawls states, “liberty of conscience and freedom of association enable citizens to develop and exercise their moral powers in forming and revising and in rationally pursuing (individually or, more often, in association with others) their conceptions of the good” (45). Rawls is asserting people have two moral powers. First, the power to judge if social systems are just and second, the power to work to bring about the good in the society. A list of basic rights originates from and enables these two moral powers. Additionally, Rawls asserts there are “primary goods” which “are various social conditions and all-purpose means that are generally necessary to enable citizens adequately to develop and fully exercise their two moral powers, and to pursue their determinate conceptions of the good” (57). Rawls notes one of the five of his primary goods is the “freedom of thought and liberty of conscience” (58). Rawls is asserting primary goods are circumstances which allow individuals to judge if a social system is just and work toward the good of the society. One of these primary goods is, specifically, the combined freedom to think for oneself and the liberty to decide for oneself what is right and wrong.
The Commons: Hardin
For Rawls, primary goods are distributed under his theory based on the two principles of justice (ie Basic Rights Principle and the Difference Principle). The distribution of primary goods, then lends itself to the concept of the commons. How are primary goods (ie circumstances which allow individuals to judge if a social system is just and work toward the good of the society) to be distributed in regards to the commons? The commons is the concept something exists which belongs to “the whole community of humans for their use in common” (Drexler). An underlying principle of the commons is all are permitted to use the commons, up until and unless it causes harm to another (Drexler). Hardin argues the mind set of the individual regarding the use of the commons is focused on their own personal interests. Hardin utilizes a pasture analogy to explain “each herdsman seeks to maximize his gain,” because logically the individual benefits much more by maximizing his gain even though society suffers as a whole (1244). Hardin states each herdsman is concerned with only the “utility” to himself (1244). Hardin asserts “This utility has one negative and one positive component” and by adding another animal to graze on the pasture which the herdsman alone will profit from, the herdsman benefits by a “positive utility of nearly +1” (1244).
However, Hardin asserts, the overgrazing resulting from adding more animals to the pasture is a negative consequence “shared by all the herdsman” so “the negative utility for any particular decision making herdsman is only a fraction of -1” (1244). The situation leads to each herdsman being “locked into a system that compels him to increase his herd without limit-in a world that is limited” (1244). Hardin states “Ruin is the destination toward which all men rush, each pursuing his own best interest in a society that believes in the freedom of the commons” (1244). Hardin states an underlying “principle of morality” is “the morality of an act is a function of the state of the system at the time it is performed” and the state of the system now is one in which the global society is over populated with humans (1245). Hardin is asserting people use the commons based off the benefits to them solely. For Hardin, the system perpetuates self interested use of the commons because use of this sort is seen as the most logical and rational thing to do, because everyone else is doing it. By everyone using the commons to maximize the benefit to themselves, society as a whole is destroying and depleting the commons. For Hardin, what may have been moral use of the commons when there was a limited number of humans, is now an immoral use of the commons because there is an over population of humans.
Participatory Justice: Young
So, Hardin seems to be arguing there should not be free use of the commons because there is an overpopulation of people. If there are to be restrictions on the use of the commons, then who should decide on how the commons should be used? Does Rawls’ distributive theory utilizing the two principles of justice behind a Veil of Ignorance adequately resolve how primary goods should be distributed regarding the restrictions on the use of the commons? Young argues, no, Rawls’ theory is inadequate (Drexler). Young’s own theory is reminiscent of Kant’s theory of autonomy (Drexler).
Young argues, distributive theories of justice “conceptualize all questions of justice in terms of the allocation of goods among individuals” and “The distributive orientation precludes considering questions of the justice of decision making structures” (176). Young states it could be argued the distributive theories could be able to be used for distributing “decision making power,” but in order to do so “the theory must conceive power and authority as themselves goods which can be distributed in greater or lesser amounts to various agents” (176). Young argues “Distributively oriented theorizing presupposes a structure of institutional relations…It does not bring the justice of given institutional structures themselves into question” and “The moral value of particular relations of power, institutional positions and organization, however, comprise just those concerns at issue when we raise questions about just decision making procedures” (176-77). Therefore, Young argues, “distributive oriented reasoning cannot treat such questions directly and explicitly, because it must presuppose agents and institutionalized positions among which goods are distributed” (177).
It seems what Young is asserting is distributive theories require a distributor. In order for distributive theories to assign out decision making power and authority, the distributive theory must treat the power and authority as goods, which requires a distributor for those goods. In the case of Rawls’ primary goods, there must exist a distributor to distribute out the primary goods. But, who is the distributor? The distributive theories assume there exists a “neutral” or “objective” distributor to assign out the decision making power and authority, but Young’s concern is over if it is moral and just for this assumed “neutral” or “objective” distributor of the decision making power and authority to act as distributor (Young, 177; Rawls, 59). For Rawls, the two principles of justice from behind the Veil of Ignorance would the be objective tools to use to distribute primary goods (59). But who is the distributor wielding those tools? Young notes in our society the state as been granted the role of distributor because it has been assumed the state is unbiased (178). However, Young argues it has been shown that the state does have its own interests, therefore, it can’t be unbiased (178-79). Young states “If we recognize that all social decision making involves particular interests, and that no position within society can transcend all particular interests, then the issue of who should decide policy issues becomes a paramount issue of justice” (180). For Young, it is impossible for any distributor to not consider their own personal interests.
A better alternative to the distributive theories, argues Young, is one of participatory justice which recognizes the “principle of self-determination” and “Such a principle states that social decisions ought to be made by those most affected by the outcome of the decision, whether in terms of the actions they will have to take or in terms of the effects of the actions on them” (180). Young further states “self-determination as a principle of justice derives from the value of autonomy. Respect for the moral personhood and rationality of individuals is lacking unless they may determine the conditions of their lives and actions” (180). Just like Kant, Young argues autonomy, the ability to self-rule, or, the ability to decide for oneself what is right, then act on that decision, is an inherent right. Furthermore, Young argues, distributive theories (such as Rawls’) are flawed because they require a distributor (a distributor who cannot possibly not consider their own self interests) to assign out decision making power and authority, which affects individuals’ autonomy.
Civil Disobedience: Thoreau and King
Young argues autonomy leads to a concept of participatory justice, where people directly should be able to participate in the decision making processes surrounding the actions which are going to affect them. The problem is, what if people are not allowed a participatory role? Thoreau argues “The government itself, which is only the mode which the people have chosen to execute their will, is equally liable to be abused and perverted before the people can act through it” (821). For Thoreau, the government is subject to what the people will, but the government is susceptible to corruptions which leads to the implementation of laws which ago against the will of the people. Thoreau argues “It is not desirable to cultivate a respect for the law, so much as for the right. The only obligation which I have a right to assume, is to do at any time what I think is right” (822). Thoreau’s assertion is one has the right to decide for themselves, and then act on, what is moral. Thoreau argues, “Even voting for the right is doing nothing for it. It is only expressing to men feebly your desire that it should prevail” and “Cast your whole vote, not a strip of paper merely, but your whole influence” (823). For Thoreau, merely voting for what you think is moral is a form of complacency and if one has determined a law is unjust, then one ought not just vote against it, but instead one ought to act against it. Thoreau argues, what is moral and just, may at times be what is against the law. People are more obligated to do what is moral and just, over what is the law. Therefore, there are times when it is moral and just for people to not follow laws that are immoral or unjust. Also, Thoreau does not see it has anyone’s duty to correct the corruptions of the government, but he does see it as everyone’s duty to decide what is right and fully act on their decision (822; 824).
Martin Luther King, Jr.’s arguments serve to expand on Thoreau’s arguments. King argues there are four steps in non violent movements; “collection of the facts to determine whether injustices exist; negotiation; self-purification; and direct action” (826). If negotiation fails, according to King, there is “no alternative except to prepare for direct action” (826). King’s assertion is when it has been determined an injustice exists within the law, if negotiation fails to change the law, then one must act outside of the law. Furthermore, King argues, “there are two types of laws: just and unjust…One has not only a legal but a moral responsibility to obey just laws. Conversely, one has a moral responsibility to disobey unjust laws. I would agree with St. Augustine that ‘an unjust law is no law at all’” (827). For King, it is moral to follow just laws and moral to not follow unjust laws because unjust laws are simply not laws.
King provides many explanations of just versus unjust laws. One of which, King asserts, is “An unjust law is a code that a numerical or power majority group compels a minority group to obey but does not make binding on itself…A just law is a code that a majority compels a minority to follow and that it is willing to follow itself” (828). For King, unjust laws are laws enacted by the more powerful which the more powerful forces the less powerful to follow but the more powerful does not follow itself. Another explanation offer by King is “A law is unjust if it is inflicted on a minority that, as a result of being denied the right to vote, had no part in enacting or devising the law” (828). For King, people have a right to vote, to have a role, in the processes resulting in the laws which they are going to have to follow.
Counter Arguments to and Responses for Civil Disobedience: Suber
Thoreau and King both argued in favor of civil disobedience. Suber offers many arguments against civil disobedience and then counters those arguments. One of the objections to civil disobedience Suber offers is: “Civil disobedience cannot be justified in a democracy. Unjust laws made by a democratic legislature can be changed by a democratic legislature. The existence of lawful channels of change makes civil disobedience unnecessary” (Suber). The objection asserts the available democratic procedures are adequate to change unjust laws. Suber offers a counterargument from King who asserted if the procedures for change of an unjust law are democratic in theory but are exclusionary in practice, then the procedures cannot be used to change unjust laws (Suber).
Another objection Suber offers is: “What if everybody did it? Civil disobedience fails Kant’s universalizability test” (Suber). The objection asserts if the action of civil disobedience were to be universalized, then the concept of having laws would fail to exist. The objection is asserting the universalization of civil disobedience is similar to Kant’s explanation of the promise to repay a debt but never intending to repay in that a law couldn’t do what a law is intended to do if civil disobedience is universalized. Suber notes there are “descriptive and normative versions” which are both slippery slope arguments leading to anarchy (Suber). In the descriptive version, or version where the usefulness of the consequences of the actions are focused on, Suber notes the objection asserts acts of civil disobedience will be imitated until eventually there is anarchy (Suber). In the normative version, or version where what people ought to do is focused on, Suber notes the objection asserts if civil disobedience is “justified for one group whose moral beliefs” go against a law, then it would be “justified for any group similarly situation” leading to anarchy (Suber).
In response to the descriptive version, Suber notes a response from Thoreau which asserts one has a duty to not “lend one’s weight to an unjust cause” because the consequences are more harmful to follow unjust laws (Suber). Suber notes Rawls’ response to the descriptive version would be acts of civil disobedience can balance out the legal system and push society “closer to its shared vision of justice” since the vast majority of people don’t commit acts of civil disobedience (Suber).
Another of Suber’s responses states “The normative version of the slippery slope argument has little force if the criteria used by activists permit some but not all disobedience” (Suber). Suber explains, “In Kant’s language again, universalizability fails if the maxim of the action is ‘disobey a law whenever you disapprove of it,’ but it can succeed if instead the maxim is, ‘disobey when obedience would cause more harm than disobedience,’ or “disobey when a law is unjust in the following specific ways.…’” (Suber). So, under the viewpoint in Suber’s response, disobeying the unjust law by committing acts of civil disobedience would be moral if it would be more immoral to not commit the acts and disobeying unjust laws by committing acts of civil disobedience should have parameters.
To give examples, regarding the first of the two maxims, Suber notes, for Thoreau, “this inertia and docility in the general population are far larger problems than incipient anarchy” (Suber). For Thoreau, it would be more of a problem for people to be uninvolved and to not have a role in the decisions made for them on their behalf, then it would be if anarchy were to form. Regarding the second of the two maxims, Suber notes King placed parameters around civil disobedience by defining just and unjust laws and making the distinction following just laws is moral and disobeying unjust laws is moral (Suber).
Many connections can be made between DeChristopher’s comments and the rights theories of Kant and Rawls. Kant argued people have reason and will which allows them to decide for themselves what the right thing to do is and then act on that decision. DeChristopher mentions facing the decision of whether to disrupt the auction or to obey the law, then acting on disrupting the auction because he decided it was the right thing to do. Kant also argued using one’s reason and will makes one autonomous, and being autonomous makes people “people.” Kant argued reason and will gives people intrinsic value and people should be treated, whether by others or by themselves, as having intrinsic value. For Kant, to treat someone with intrinsic value would be to allow them to use their reason and will, thus, would be to allow them to be autonomous. In DeChristopher’s case, allowing him to be autonomous, to use his reason and will to act towards a higher moral code, would be treating him with intrinsic value, even if by using his reason and will to act toward a higher moral code required an act of civil disobedience. Additionally, DeChristopher himself would not be treating himself with intrinsic value if he did not allow himself to use his own reason and will to act towards a higher moral code. For Kant, using one’s reason and will to be autonomous is moral, and this is what DeChristopher did by his act of civil disobedience. In this sense, Kant’s rights theory justifies acts of civil disobedience as being moral, because civil disobedience allows for autonomy.
The special treatment DeChristopher noted the oil and gas industries receive and the exceptions BLM is making by not following Secretarial Order 3226, would be examples of, what Kant would call, the essence of immorality and not following the Principle of Consistency. Correlating DeChristopher’s comments, the purpose of the order is to assess the impacts on climate change for resource development so as to reduce the impacts of resource development on the climate. The end for the oil and gas industries is resource development. The only way the oil and gas industry can development more resources (in certain areas and by using certain methods), would be by the BLM not following the order or promising to follow the order but intending not to. If not following the order were universalized, then the order could not do what it is intended to do, which is namely, reduce the negative effects on the climate by resource development.
Rawls argues the first principle of justice, the Basic Rights Principle, is everyone is equal and entitled to the same rights. For Rawls, if someone is given more rights than another, according to the second principle of justice, the Difference Principle, it must be because of an office or position which can be held by everyone and it must benefit the least advantaged in society. In the case of DeChristopher, his comments indicate the government and the oil and gas industries were being given more rights than the people and these special rights were not obtainable by everyone nor were these special rights to the benefit of the least advantaged in society. Rawls also argues the distribution of primary goods, based on the two principles of justice, should originate from and enable people’s moral power to judge if a social system is just and to work to bring about the good in the society. DeChristopher noted his intentions were to expose the corruption behind the BLM. If corruption exists which requires exposing, then the people are unaware of how the system works. If people are unaware of how the system works, then they are not being distributed the circumstances which would allow them to judge if the social system is just. In DeChristopher’s case, if the people are not able to obtain knowledge of the environmental consequences of an action, because a study was not conducted as DeChristopher noted, then people are not being distributed the circumstances in which they could work toward the good of the society. If the people are not able to provide comments which will be considered seriously, as implicated by DeChristopher’s statements about the rush through of the auction and the volunteers at the BLM paid by the oil and gas industries, then people are not being distributed the circumstances in which they could work toward the good of the society. DeChristopher’s act of civil disobedience can be justified by Rawls assertion people have the equal basic right to use their freedom of thought and liberty of conscience to judge whether a system is just and act toward the good of the system.
DeChristopher’s comments about the value of the land, about our land, our climate and the threat to our future, demonstrate the principle of the commons. In DeChristopher’s case, the oil and gas industries are the herdsmen Hardin speaks of, benefiting from maximizing the utility of the commons to themselves. Hardin’s tragedy of the commons, for DeChristopher, is the oil and gas industry profiting off of destroying the commons for the whole human race. In DeChristopher’s case, as he noted about Secretarial Order 3226, in alignment with Hardin’s argument, there should be restrictions on the use of the commons put on the oil and gas industries.
DeChristopher’s comments can also be connected to Young’s arguments. Young argues the distributive theories, such as Rawls’, are inadequate to provide justice because distributive theories require a distributor and it is impossible for the distributor to not consider their own self interests. In the case of DeChristopher, the government is the distributor. The distributor has, per DeChristopher’s comments as noted previously in comparison with Rawls’ arguments, distributed special rights to the oil and gas industries. Per DeChristopher’s comments, the people are not being distributed the circumstances which allow individuals to judge if a social system is just and work toward the good of the society. The reason why people are not being distributed equal rights and circumstances to exert their moral powers, according to DeChristopher’s comments about the relationship between the government and the oil and gas industries, is because the government is considering its own self interests in the distribution process. To resolve the problem of the impossibility of the Veil of Ignorance, Young argues for participatory justice where the people participate in the decision making processes regarding actions which affect their lives. If the system is not set up for people like DeChristopher to succeed but is set up for the corporations to succeed, as DeChristopher stated, then the system is not set up for the majority of the population to participate in the decision making processes which affect them. If the people are excluded from the system, as DeChristopher stated, then the system is not accommodating for participatory justice. If, as DeChristopher states, there has been a lack of participation of the people in social issues and due to his experience more people are now seeking to participate, then people are seeking a participatory role in the decision making processes which affect them. DeChristopher notes how he tried writing letters, he tried speaking with his congressperson, he tried petitioning the government, he tried utilizing the legal means for participation in the decision making processes which affect his life, but nothing worked.
Thoreau argued people have the right to decide what is moral and act on that decision. Both Thoreau and King argued people are obligated to do what is moral over what is the law and civil disobedience is moral when injustices in the law requires the law not be obeyed. DeChristopher’s statements regarding having loyalty to a higher moral code where there is a conflict between the higher moral code and law echoes Thoreau’s and King’s arguments. DeChristopher’s comments about the rule of law being dependent upon the government abiding by the law are very similar to King’s assertion an unjust law is one the powerful majority forces on the minority but does not follow itself. DeChristopher’s comments about the system not being conducive for people like him to enact change and his comments about the legal system being designed for the benefit of corporations, both of which together imply the system is not designed for participation from most people, can be correlated with King’s assertion an unjust law is one in which the people have no right to vote on. DeChristopher’s comments about the corruptions of the government which prevent people from enacting change, also echoes Thoreau’s assertions about the perversions of the government preventing people acting through it.
Civil Disobedience as a Participatory Role
DeChristopher’s comments imply people have the right to decide what is moral and act on that decision, even if it is an act of civil disobedience. People having the right to decide and act, or reason and will, toward what is moral is autonomy. DeChristopher’s comments can be linked with the idea of autonomy as posited by Kant. People have the equal basic right to use their, as stated by Rawls, freedom of thought and liberty of conscience to judge if a social system is just and work toward the good of the society. In this way, DeChristopher’s comments are linked with Rawls’ regarding equal basic rights, primary goods, and moral powers. The good of society, according to Hardin, would be to put restrictions on the use of the commons. DeChristopher’s comments supporting Secretarial Order 3226 can be correlated with Hardin on restrictions to the use of the commons. However, the problem, as noted by Young, with Rawls’ theory is the distributor is concerned with their own self interests. DeChristopher’s comments are linked with Young’s regarding the self interested relationship between the government and the oil and gas industries. For Young, justice is people being able to have a participatory role in the decision making processes which affect their lives. The system as it exists now does not allow the majority of people participatory roles in the decision making processes which affect their lives. Many of DeChristopher’s comments focus the lack of participatory roles for people in the current system. Throughout DeChristopher’s comments, one finds frustration with what he sees occurring; frustration with following the legal means to try to make his case but being excluded from the system, frustration with disastrous environmental destruction to the commons, frustration with corporations getting special rights and privileges and frustration with not having a participatory role in the decision making processes which affect his life.
If people are not allowed a participatory role in the decision making processes which affect them, then they are losing their autonomy. The only way for people to maintain their autonomy when the system has excluded them from the decision making processes which affect them, would be to go outside the system, thus to acts of civil disobedience. It seems, along the same lines as argued by Young, it is not possible for people to maintain their autonomy within a distributive system as posited by Rawls. If one relies on a distributor to assign them decision making power and authority, and relies on the distributor to assign to them a certain amount of decision making power and authority, then automatically one is losing at the very least some of their autonomy. The loss of autonomy to a distributor automatically restricts what Rawls termed as moral powers. The loss of autonomy to a distributor automatically restricts people’s circumstances to judge if a social system is just and work toward the good of the society, because people can’t judge with any authority if the distribution system itself, the foundations of society, is just nor can they work toward the good of society through the distribution system. It is the justness and equitability of the distribution system which is called into question in the case of DeChristopher. It is the non-existence of participatory roles for people in distribution systems which causes the frustration leading to acts of civil disobedience. Civil disobedience demonstrates the principle people have a right to be autonomous and need to have a participatory role in the decision making processes which affect them. The current distributive system of the BLM and other government agencies does not adequately accommodate participatory roles. If people have a right to be autonomous and need to have a participatory role in the decision making processes which affects them, but the system excludes them, then civil disobedience becomes necessary to fill a need for a participatory role.
Modified Counter Arguments and Responses
One could argue against my argument along the lines of the objections Suber noted. For example, one could argue civil disobedience is unnecessary because there are many participatory roles people could fill. People could write letters, talk to their congressperson, vote, petition, protest, and probably numerous other activities, to participate in the decision making processes which affect them. However, the response would be, these roles are inadequate. DeChristopher’s comments about how he had tried several other means, but his concerns were not taken seriously via any of these means, demonstrates the inadequateness of the current available participatory roles. Currently the system is very much a Rawlsian distributive system where the government is the distributor. As previously argued, it is impossible for a distributive system to adequately accommodate participatory roles, especially when the problem is the distributor itself.
One could argue the participatory role for people is to vote for those who will then assign decision making power and authority to others. By people voting for representatives, the people are assigning decision making power and authority to the representatives. If the people are assigning decision making power and authority to representatives, whom then assign the power and authority to others, then the distributor is really the people. However, in response, the distributors the people have distributed power and authority to are not distributing information back to the people, so the people can’t, as Rawls stated, judge if the system is just and work toward the good of society. If the ones’ to whom the people have distributed their power and authority make decisions without the people’s consent or without giving the people enough information, then the people are unable to judge if the system is just and work towards the good of society. The distributor is not seeking participation from the people on the issues, and writing letters, petitioning, protesting is not adequate enough to mitigate the self interest of the distributor. So, the people could vote them out right? Sure, but the problem will persist because, as Young asserted, it is impossible for one to not consider their self interest.
Another objection, modified from the objection Suber noted, could be if everyone committed acts of civil disobedience in order to have some sort of participatory role, then it would lead to anarchy. In other words, civil disobedience as a participatory role cannot be universalized without resulting in anarchy. The hypothetical slippery slope argument seems to go like this: If acts of civil disobedience as participatory roles were universalized, then the established laws would be disobeyed by everyone. If the established laws were disobeyed by everyone, then established laws would carry no authoritative or deterrent force. If the established laws carry no authoritative or deterrent force, then everyone would do whatever they wanted to do. If everyone is doing whatever they want to do, then the result is anarchy. Therefore, if acts of civil disobedience as participatory roles were universalized, then the result would be anarchy.
It seems it may be necessary to evaluate some terms here. In the previous slippery slope argument, one is treating anarchy as everyone doing whatever they want and everyone doing whatever they want is chaos. The argument is assuming, and implying, everyone doing whatever they want is destructive. The argument is assuming the vast majority of people in society rely on laws to give them instruction on morality. The argument fails because it assumes people cannot autonomously be moral. The argument fails to recognize acts of civil disobedience have been done because one has autonomously decided their duty lies with a higher moral code. Even if the individual committing the act of civil disobedience has a skewed, perhaps even unethical, moral code, they are still autonomously deciding what is moral regardless of the established laws. The slippery slope, acts of civil disobedience as a participatory role leads to anarchy argument, fails because people don’t rely on the established laws for their moral codes. If people who commit acts of civil disobedience don’t rely on the established laws for their moral codes, then people can be moral without relying on the established laws. Therefore, if acts of civil disobedience as participatory roles were universalized, even if all the established laws were overturned, people could still act morally (ie toward the good of the society). Civil disobedience itself demonstrates people don’t base their morality (at least entirely) on established law. Established law is not required for morality. Therefore, civil disobedience need not lead to anarchy (ie destruction). If people don’t rely on law to establish their morality, then it could be argued civil disobedience is ineffective. Can civil disobedience change what one deems as moral? It can change laws if what is deemed moral is in conflict with the laws. However, what if there is a fundamental difference in what is deemed moral and the prominent view on the morality of the issue is in line with the laws? Despite these questions, if the purpose of civil disobedience is to have a participatory role and the system accommodates a participatory role for people after recognizing and accepting this, then civil disobedience has been effective.
Kant offers a rights theory based on the concept of autonomy, while Rawls offers a rights theory based on a distributive system. Hardin argues restrictions should be placed on the use of the commons. Young argues for participatory justice based on Kant’s theory of autonomy instead of Rawls distributive system. Young’s arguments can be applied to the decision making processes regarding the restrictions on the commons Hardin argues for. Thoreau and King argue acts of civil disobedience are necessary when the higher moral code is in conflict with the law. DeChristopher’s comments regarding his civil disobedience can be linked with Kant’s, Rawls’, Hardin’s, Young’s, Thoreau’s and King’s arguments. The result demonstrates a link to the principle people have a right to be autonomous and demonstrates acts of civil disobedience arise because the current distributive system does not adequately provide an arena for people to participate in the decision making processes which affect their lives. Therefore, acts of civil disobedience are necessary, because they provide people with a participatory role, even when the system has excluded them, in the decision making processes which affect their lives. Ultimately, the system is faced with a choice: Either allow people an adequate arena for participation in the decision making processes which affect their lives, or, keep prosecuting acts of civil disobedience. Perhaps the system should ask itself which option is more just.
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