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CIVIL DISOBEDIENCE OR BLIND COMPLIANCE WITH IMMORAL LAWS?

by Walter Bingham

For a long time now I have argued in my radio programmes, that the only way to effect a change of policy by this government is by going out into the streets and staying out until our political rulers realise, that the people no longer trust, respect or support them. In recent years we have seen several such actions in other countries with various systems of government that were successful. Experience in 'democratic' Israel has shown that any attempts to act in this way have been heavily punished by the courts

I want to examine here what kind of consideration if any, would make it morally right to engage in civil disobedience. When engaging in political philosophy one has to be clear about one's definition of politics. Broadly speaking I see it as that part of human behaviour which is aimed at making people follow a path determined by others. For that reason, ever since Aristotle, men have asked 'In whose interest does the ruler rule?' They have analysed the comparative qualities of different systems of rule in terms of their own interest viz a viz other sections of the community. Their judgement, being subjective, is determined by their assessment of what constitutes a fair share of scarce values and whether they believe that they are getting it. These include a voice in the organisation of their society as well as economic considerations and involve both legal and moral matters. Legal, because it concerns the authority of the government to impose rules, and moral because they should be seen and believed to benefit all the people.

If we want to define the relevant considerations that would confer on us the moral right to engage in civil disobedience, or give to the ruling authority the moral justification to punish such acts, a subject I shall discuss in a future essay, then we first need to examine what kind of obligation we as members of a state have to the government and what the government's obligations are to us. Also, what our rights are and how the ruling authority has acquired its right, if indeed it has one.

It can be argued as the English philosopher John Locke did, that in a political society the people transfer certain natural rights to a representative to be 'in authority'. By such action we have entered into a contractual obligation to abide by such laws as may be made by that authority, provided that they are for our benefit. It means that everyone who resides within the jurisdiction of our government has given at least their tacit consent and this is therefore a de jure authority. It follows that if, what one considers to be 'the public good' is not being pursued by the government, this consent can be withdrawn and the authority of that government need no longer be recognised; i.e. the contract is cancelled.

On the other hand one may disagree with the contract theory and follow view of the Scottish Philosopher David Hume. He held that those who give obedience to their ruler do so because they see it done by others and therefore feel obliged rather as one is to parents. It then becomes a matter of familiarity with the practice. Hume said that "the mind is carried by habit". That model of authority is de facto in which the government does not have the right to expect the obedience which it gets; but there seems to be an implied moral obligation to uphold the law, for the sake of the common interest which is safeguarded by stability in government.

These are two different views concerning moral obligation of obedience to government. One which is direct and based on consent, the other an indirect obligation founded on the moral duty to further the common interest. According to Locke's account the government rules of right, but the people also have the right to get the benefits which they expect. His concept of authority would therefore not allow for coercive power, because that would simply be an indication that the system has broken down and the contract would then be void. If a government uses its people's original consent for activities not expected by them, i.e. to hand territory to an enemy or to build fortifications instead of housing, then the moral obligation to obedience is removed. If the government defends such action as being in the national interest, then any moral justification for civil disobedience would hinge on the interpretation of, and the right to determine the 'national interest'. If we have delegated our legal right to the government, then we also have a moral right to expect its actions to conform to our wishes. We would therefore be justified to demonstrate this right. If on the other hand if the government is thought to act as our representative, to do what it considers to be in our interest, then we are morally obliged to let it determine what our interest is. (Politicians always claim that it is their task to lead rather than to follow.) Civil disobedience would then be morally wrong.

This raises the important issue of a conflict between the moral obligation to comply with the law and our own concept of morality. It is arguable that a legal obligation to comply with the law is not of itself a moral one. If a law prescribes that a class of person shall be deprived of his home for no other reason that that he is a Jew living in a particular localitry of the country, as happened in Gush Katif and the Shomron, then our concept of morality makes such a law devoid of that moral content, which would otherwise make obedience to it obligatory. Equally, in a de facto authority on Hume's model, there can be no legal obligation, and by accepting the utilitarian principle of 'common interest' as the reason to obey the government, we also have a moral justification to disobedience if that interest is not served. When Sharon expelled the Jews from Gush Katif he did it, so he claimed, to advance the national interest, peace with our neighbours. If we accept the argument that the intended 'end' was moral, the means were certainly not. The question that arises is whether those who administered the law were acting morally towards its promised 'end', or whether they should have refused to carry out the means. If they sincerely believed that to remove 10,000 Jews from their homes would bring permanent peace with our neighbours, then, in the philosophical sense it could be argued that their actions served the common interest. But suppose that the IDF and Police were convinced of the injustice of this law, they would then have been right to disobey for two reasons. Firstly, because the law was in their eyes now deprived of its moral force, and secondly because the obligation to administer justice exists independently of the law. Such a situation would then also remove the utilitarian justification for such a law, because the consequences are not utilitarian.

Both Locke's and Hume's approach would have to condemn Sharon's actions. Even leaving aside the morality of the means, they were certainly not justified on the evidence of the 'end'.

If we live in a society where the right to settle in the area of one's choice is curtailed, then there is no freedom of choice and we therefore cannot be deemed to have given our consent, and we are then under no moral obligation to obedience It is on this principle that I argue for the permanent return to the destroyed areas of Gush Katif and the Shomron.

Justification for punishment rests on much the same considerations. The moral obligation to keep the law is contingent on its content. If it is deprived of its moral force, as is the case of many of the new decisions of our government, then any punishment for disobeying it is morally indefensible. The influential 19th Century philosopher and political economist John Stuart Mill wrote that the consequences of an action determine its justification. If we apply this principle to punishment, then a return to Gush Katif is morally justified, the destroyed homes must be re-instated, criminal and other charges must be wiped from the record and compensation has to be paid, since it's evacuation did not result in 'the common good'. Our present government on the other hand condones punishment as a means to an end, which can inflict hurt on innocent victims to set an example to others. This can be interpreted as giving licence to totalitarianism to intimidate opposition.

The now distinguished lawyer Amnon Rubinstein wrote in The University of Toronto Law Journal, (Vol. 15, No. 2 (1964), pp. 317-335):

'Maliciously' is the important word here. Present day court records seem to indicate that the concept of morality in punishment changed since 1964 and malice is no longer a bar to act immorally in the exercise of judicial powers?

There is another more sinister aspect to the exercise of power and its enforcement. Aided and abetted by a weak government in Israel, the governing factions are today's industrialists and business tycoons. This means that with their control over economic life, serving their own interests, they are the real power behind the state. Hegemony is not located in those groups which visibly exercise political or ideological leadership in society, but rather in the effects of the dominant form of political and ideological practice, the particular social relations they produce, which is manifested in Israel by today's widespread corruption. Such practice runs counter to the utilitarian principle of 'the greatest good for the largest number' upheld by the government as the foundation of its laws. The best example is Israel's judicial system which does not tolerate even the most basic form of civil disobedience by aggrieved citizens, but ignores the powerful. Punishment seems administered on the basis of political and economic considerations, rather than for the common good. Unreasonableness, neglect and malice appear to be the pillars on which judgements are pronounced or often delayed for excessive periods. The cases of 14 year old Chaya Belagorotzki who protested on the sidewalk of a street and was held in prison for many months and teenager Shimshon Cytryn who was in solitary confinement and now house arrest and who after 19 months is still awaiting a verdict - are just two examples

The State has become an active force in cultural reproduction. Acts of conscience by minorities are not tolerated but that raises the question the moral justification for its punishment. Their disobedience is mostly directed at policies or activities which cannot be directly affected by their actions. They are therefore designed to focus attention on their cause. This can only be achieved by infringing laws that are unconnected with the issue. Recent unauthorised demonstrations of disobedience exposed themselves to the charge of pressing one's own moral convictions and in the process deprive others of their moral right i.e. unhindered passage on a public highway. Here the utilitarian would find himself in some difficulty. While he might see justification for punishment on the grounds of preventing harm to others, a major moral consideration, he would also have to be cognizant of - and give credence to the views of the protesters.

Their argument is the very same. Firstly, the defence of their moral right to live unhindered in their homes and secondly, they claim to be rightfully exercising power for the common good, to prevent harm to others, the rockets on Sderot and Ashkelon, the consequences of further expulsions which would bring danger to more areas, in short, the utilitarian principle to ensure the greatest happiness to the largest number of our citizens something to which the government only pays lip service.

Walter Bingham is a veteran journalist and broadcaster from London who now lives in Jerusalem. His weekly radio show 'Walter's World' can be heard on www.israelnationalradio.com