POLITICAL PHILOSOPHY

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Tema 9. Obedience and civil disobedience

1.- Justification of the State and authority

“It’s strange that a sensible citizen doesn’t ever ask himself if the State is
necessary and why we have laws and we have to obey them.” (Fernández
García, 1987, 36). This is a key question in Political Philosophy because it links
to issue of the justification of the State and the justification of obedience. This
links the legitimacy of the institutions and the reasons for action.
According ton Fernández Garía, the State is the most important means of
social organization of human coexistence. It is perhaps the most rational,
effective and just form of authority. Its necessity and justification is so clear that
the only alternative to the destruction and disappearance of the State isn’t the
liberation of human beings, but hobbesian struggle from everyone to everyone”
(Fernández García, 1987, 36)
Why do we have law and why should we obey them? If the State is
necessary to maintain the coexistence, if the advantages and benefits are bigger
that the disadvantages and perjudices, if to achieve these things, are considered
good things, we need the Law, then the laws are necessary (Fernández García,
1987, 39).
The main purpose of the State is to protect of fundamental rights. In this
sense, “the only valid and just reason of the State is the recognition and
protection of fundamental rights of the individuals. No reason is above the
reasons (interest, needs, rights) of the citizens” (Fernández García, 1987, 40)
The most legitimate system is a Social and democratic Rule of law. This is
the definition of the model of State in the art. 1.1 of the Spanish Constitution
1978. The legitimation is a contractualist legitimacy. This means that comes
from the Social Contract Theory and the adhesion of the citizens to the
decisions of the governors is conditioned to the acomplishment of the purposes
of the State, the objective of the social agreement. If the governors go against the
fundamental rights of the citizens it’s justified to disobey. These are situations
for the right of resistance and civil disobedience.
It’s relevant to distinguish between power and influence. Power is the
direct or indirect possibility of determining the other’s conduct. It is linked with
the characteristic of duress. Power is exercised by Law with coactive rules that
foresee the sanctions for certain kind of conduct. Law sometimes prescribes
compulsory conducts behind legal rules and if someone doesn’t behave
according these rules, he/she is punished. The typical sanctions in Law are
imprisonment and fines, but there are other kind of sanctions (i.e. someone is

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punished by losing the driving licence or by performing community services,
etc.)
On the other hand, influence is the possibility of advising the other’s
conduct showing the obstacles or with an affective or social ascent. According
to liberalism, the State power can only intervene when someone is harming
others, but when someone is harming himself/herself, the State can only
influence. The State power is exercised by legal prohibitions, permissions and
obligations, but State influence could be exercised by different means as
advertisements campaigns, public benefits to certain actions, taxes, awards,..
The famous definition of Max Weber affirms that the “State has the
monopoly of legitimate violence in a certain territory”. This definition links the
notions of sovereign power and legitimate authority and gives to the State the
monopoly of violence. The justification of the State is related with the
justification of obedience of the citizens. Values are linked with actions and,
then, justice and injustice of the State are linked with the efficacy of the Law.
Under this perspective, we have to distinguish between authority de iure
and authority de facto. Authority de iure is when a norm or set of norms entitle it
to create norms directed to the citizens and for making respect them. While
authority de facto is effective general respect to these norms, exercise of
authority in front of the citizens.
From the Natural Law/positivism controversy, we can conclude that an
essential trait of Law is pretending legitimate authority. This means that every
Law aims to be just, but not all Laws are just. According legal positivism, the
relationship between validity and justice is contingency. It could be just valid
law while it could be an unjust valid law. On the other hand, Natural Law
Theory considers that just law only exists while unjust law is conceptually
impossible. This is because, according this iusnaturalism, Law is necessary just
because justice is a previous condition of validity. Under this Natural Law
perspective, Law is a part of Justice.
To identify Law in diverse societies the legal positivist approach is best
ground. In the issues of obedience and civil disobedience, legal positivism
offers a best perspective. Legal positivism affirms that every Law wants to be
just, but not all Law is just. This disconnects the issue of obedience from the
issue of the identification of law and considers the issue of obedience and open
question. Natural Law Theory affirms that Law is a part of justice and just Law
must be always obeyed.
There is a Max Weber classification that distinguishes between
legitimacy in origin and legitimacy in exercise. The first concept derives from
where the power comes. Nowadays the answer to is contractualism, the Social
Contract Theory based on the works of Hobbes, Locke and Rousseau. The
legitimacy in exercise derives from how the power is exercised. Nowadays the

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answer to this is the guarantee of fundamental rights. Both current answers
reaffirm the notion that the Social Contract Theory is a conditioned agreement
that establishes no unlimited obedience. The adhesion to the contract is
conditioned to the accomplishment of the purposes of the agreement. If there is
no accomplishment, there are reasons for disobedience.
Some thinkers maintain that there is a moral obligation of obeying the just
Law and just legal rules. This has two consequences: a) We have to know what
is just Law; b) There is no moral obligation to obey unjust Law.
Some of the current considerations of what is a just Law are the following:

• 1.- The State is based on a Social Contract

• 2.- The State is based in consent
• 3.- The State represents the general will
• 4.- The State guarantees justice
• 5.- The State searches general interest or common good

2.- Kinds of obligations

Obedience to the law raises the problem of knowing the reasons that
determine both obedience and disobedience of legal norms. It is not a question
of knowing why criminals perform acts contrary to norms that protect legal
property such as the property or physical integrity of the people, that is to say,
it is not a question of analysing acts of disobedience to the norms that do not
have a clear political purpose. In this topic point we will analyse the reasons
that a citizen may have to disobey for political reasons the legal norms. In
addition, we will analyse the foundations of both the abovementioned
disobedience and the reasons we can have to obey a heteronomous normative
system such as the law.
Once we have seen that the duty to obey the law is not the same as
having an obligation to obey the law, we will briefly explain the reason for this
distinction: we will reserve the expression "duty to obey the law" when we refer
to the theories that found that obedience of the Law in the goodness of the act
of obedience to a system of norms that satisfies certain conditions of justice
without taking into account that there is consent. On the other hand, we will
reserve the expression "obligation to obey the law" for when we refer to theories
that ground obedience to law in the performance of voluntary and conscious
acts of individuals (i.e., consent). This duty belongs to the individual
conscience, while the obligation belongs to the world of force because it has as
content an action that is wanted by a person other than who has to perform.
John Rawls points out that the difference between duty is that duty derives
from a value (justice) or from a kind of objective morality, duty does not

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partake of will; The obligation, for its part, derives from duties or our consent
(also speaks of the principle of impartiality). Thomas Hobbes indicates that
there are duties before the birth of the State and obligations thereafter. Or what
is the same: there are duties at the moral level, and obligations at the legal level.
Obligations exist on both the legal and moral levels, duties exist only in
the moral. There may be moral obligation and legal obligation; The duties exist
independently of acts performed by the subject, exist by the goodness of its
content. For example: the duty to love the neighbour exists because the content
is considered intrinsically good; The moral obligation to love our neighbour
will exist within each of us if we believe that it is good to love our neighbour
and we want that if we love all the neighbours they also love us; The legal
obligation to love your neighbour will only exist when there is a legal rule that
requires such action. A moral duty can be considered obedience to legal norms
(goodness lies in the fact of obedience, obedience is considered good); A legal
obligation would derive from the existence of legal rules; A moral (political)
obligation would be to consider that these legal norms satisfy a series of criteria
that we consider basic so that that normative system that is heteronom stops
being it and obtains my obedience.
On the other hand, we have to differentiate the three types of obligation
that we will find when we analyse in more detail the problems of obedience
and disobedience to the law. For this we are going to follow Fernández García.
In the first place, we have the legal obligation: this type of obligation is the one
that presents the least problems because it is derived from the existence of a
current legal norm; There is a legal obligation to abide by the laws since the
mere existence of these impose on its recipients that obligation. The moral
obligation is born in the moral conscience, autonomous and voluntary of each
individual, and is due to unselfish considerations of a person, subjected to the
test of universality. Finally, political obligation would refer to a special type of
moral obligation. The political obligation refers to the moral reasons we have to
obey the law, the laws. We need to keep these three types of obligation
differentiated - just as we try to differentiate between validity, effectiveness and
justice - because we avoid falling into reductionist positions that eliminate part
of the doctrinal discussion. Being more precise it is necessary to emphasize that
the obedience to the Right at any moment resides in the obligation of legal
character because we would enter into a vicious circle when we ask for the basis
of the obligation of that norm that forces to the compliance and obedience of the
legal norms. Obedience to the law is always resolved in moral seat. It is a
tautology to say that we are legally bound to obey the law because the law
imposes the legal obligation. The reasons for accepting the legal obligation have
to be sought outside the legal obligation system. D.D. Raphael argues that
obedience to the law appears as a necessity from the moment in which there
exists a state with sovereign authority, and this is because the people who are

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authorized to exercise state authority have, on the one hand, a right to issue
orders, And, on the other hand, a right to such orders to be obeyed. The
obligation to obey such rules arises from the exercise of such rights.
Do we always fulfill our obligation? Are we always obliged to obey legal
rules? Are there cases in which disobedience is justified? Is it inapplicable to
certain cases in such a way that the obligation falls? What conditions does a rule
or mandate have to meet in order for obedience to be voluntary and for the
State to "save" the sanction provided for in cases of non-compliance? British
professor David Lyons has indicated that a legal system does not automatically
deserve the respect of citizens but must win it.

2.1. Doctrinal controversy on the obedience to Law

Now, after posing the problem of the difference between the obligation
and the duty to obey the Law, we will study some of the theories that raise a
doctrinal response to the existence or non-existence of the obligation to obey the
law. A very simple answer would be to maintain that the Right to be a
normative system that has as one of its main characteristics the fact of imposing
itself to the will of the citizens, is always obligatory. Although we do not like
the mandate that we are trying to impose we have to obey the law because it is
not possible to subtract the application of the law in our particular case, and we
will be sanctioned if we breach the mandate. In this way, we have two options:
we obey the legal norm and carry out the mandate imposed on us because we
consider that it is wiser to obey than to disobey, even though morally it still
seems repulsive to us. Secondly, it can be argued that as it seems to us that the
warrant is morally repulsive, we are going to disobey the legal norm. In this
second situation we may find some doctrinal discussion about the basis of such
disobedience. In general, we can differentiate between material responses (there
is no obligation to obey the law - Felipe González Vicén - or there is a prima
facie obligation to obey the law - Eusebio Fernández García) and formal
responses based on consent or security Legal basis.

The theory of Professor Felipe González Vicén is as follows: Law is an

instrument of domination created by men that is used to impose a series of
behaviorus; These behaviours are imposed through a series of mandates, and
have the pretension that other men adapt their way of acting to the material
content of the mandate. González Vicen indicates that theories that have tried to
answer the problem of the foundation of obedience have never been able to
substantiate obedience, have only succeeded in explaining it. And this is
because the author considers that the right is obeyed for a number of reasons
but that none can be of ethical character. For González Vicén there is no

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obligation in an ethical sense to obey the Law because neither by its formal
structure nor by its material contents the law can ethically substantiate the
requirement of compliance. Ethical compulsion is found not in social orders but
in individual and autonomous consciousness. So when a collision occurs,
Gonzalez Vicen indicates that the law has to be disobeyed because there is an
ethical basis for disobedience. The criticisms that can be made to the previous
position are varied since the right is not only an instrument of domination;
There would be assumptions in which there is an ethical basis for obedience
when the mandates of law coincide with the mandates of conscience; The
mandates of consciousness should have a control (universality, rationality).
On the contrary, Professor Eusebio Fernández's theory indicates that
there is a prima facie obligation to obey the Right. To understand this position,
we need to know what a prima facie obligation is and what is fair law. The
concept of prima facie obligation was first used by David Ross in 1930 and with
this concept alluding to the existence of a series of obligations that in case of
existence of conflict or incompatibility yield to a higher hierarchy. Ross
differentiated between absolute obligations (those that do not yield) and
obligations prima facie (those that without disappearing yield in their
application before another). We could correct Ross and indicate that all
obligations are prima facie and that the preponderance of one or the other in
case of conflict depends on the particular circumstances of each case. Regarding
the second question, a law is fair when it has legitimacy of origin and
legitimacy of exercise, that is, it has been drawn up contractually and respects
fundamental human rights. If we combine the two ideas, it would be affirmed
that there is an obligation to obey the law in cases where it has been created in a
contractual manner and in which fundamental human rights are respected; But
that such obligation is prima facie in such a way that it may yield to another
obligation at certain times. The individual is not absolutely bound to obedience
to the law but may feel the need to disobey the norm when he is in conflict with
other equally valid moral principles.
The theory of consent is a theory of a formal nature because it is based on
establishing the obligation to obey the right in the performance by the subject of
an action (to consent). There have been different proposals throughout history.
The first is the express consent of each and every citizen: it is sought not only
that consent is expressed in an external way, but also has to be carried out by
each and every citizen of the State in respect of all and Each one of the actions
of the rest of men. Locke noted the difficulty involved in the thesis of express
consent and established the theory of tacit consent, whereby an individual
obliges himself to obey a right when he enjoys the benefits conferred on him by
the State. Tacit consent is granted through inactivity or silence; There must be a
clear will to consent tacitly; The point upon which he consents must be perfectly
established; Dissent must be admitted; And the consequences for the dissident

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must be clear. Once these characteristics have been respected, tacit consent has
the same effects as express consent because the difference is the way of
producing, not the efficacy of the same. The third proposal is the consent of the
majority, which is born out of the practical impossibility of all individuals
consenting expressly or tacitly, and of the low probability that decisions are
taken unanimously, leads theorists of consent to Seek new formulations.
The theory of security (Jean Bodino and Thomas Hobbes) is an attempt to
move from the material contents of the Right to the formal contents of the Law.
The longing to live in peace, to seek order and stability makes the individual
conscience discriminate. The basis of legal obedience lies, then, in the ability of
law to ensure order and certainty in human relations.

3.- Civil disobedience and objection of conscience

Civil disobedience is a political strategy for changing a law or a

government program. It is not revolutionary, not secret and not a violent action.
Those who are civil disobedients have political objectives that are publicly
exposed and are aware of some of their actions could be judicially persecuted
because they are illegal.
Some thinkers are in favour of civil disobedience as a way of
improvement of democracy. To achieve a just society, some people disobey the
rules and give the attention to some issues that call into question the legitimacy
of the system. These actions are a kind of boycotts against social institutions
that want the improve the quality of democracy.
The typical examples of civil disobedience are the campaign of Gandhi
for the independence in India and Martin Luther King’s actions for the civil
rights movement.
We have to distinguish between civil disobedience, the right of resistance
and objection of conscience. These are institutions of different answers to the
obedience to Law from different approaches.
The right of resistance is regulated in art 20.4 of the German
Constitution. This forms part of Germany as a militant democracy. This means
that, in Germany, the Constitution plays an active role to the State for
defending the Constitution form its enemies. In this respect, in that country, the
Communist party and Nazi party were prohibited because they are enemies of
democracy based on historical reasons. The right of resistance is capacity for the
citizens to disobey any authority if it behaves against the German Constitution.
It’s the chance to defend the Constitution by individual actions against
unconstitutional orders.
Objection of conscience is a situation in which an individual has a
contradiction between a legal obligation and a moral duty. In other terms, a

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person finds a valid law, morally inacceptable for him/her. In these situations,
usually are based in conscience reasons and it could be maintained in secret
his/her reasons.
Objectors of conscience claim not to be punished by Law. They request
legal recognition of objection of conscience as a right. This means that in those
situations there is a legal exemption for conscience reasons. In some societies,
there is a constitutional right to objection of conscience. In Spain, only the right
of objection of conscience to military service is recognised in the Constitution.
Now there is a professional Army and there is no military service. The objectors
of conscience were obligated to do a social service. If someone didn’t want to do
the military service and neither the social service, he was a civil disobedient –
“insumiso”-.
Another case of objection of conscience is the doctors in the case of
abortion that was recognised by the Constitutional Court and now by Law. The
situation in Spain is a bit ambiguous because it is only when the Constitutional
Court declares it as such an action could be legally considered an objection of
conscience and not be punished. Until that moment, all cases of disobedience to
Law should be legally punished.
Back to the traits of civil disobedience, we have to say that is and
institution done in in a public and open way, accepts the imposed punishment
and wishes to substitute a part of legislation.
It is a political strategy that accepts the legitimacy of system, but uses
sometimes illegal acts to change part of the legislation. It comes from a deep
moral conviction and uses voluntary and conscient acts.
They are illegal acts, but no violent. It is part of the pacific resolution of
controversies. They don’t include murder criminal damage. The intention is the
frustation of a law o government program or lead public attention to situations
considered inacceptable.
The motives that are essentially characteristic of civil disobedience are:
a) Discussed laws are against Constitution
b) There is no efficacy of Constitution provisions
C) Constitution is breached
c) Some laws are breached by public authorities
d) State of necessity

In the civil disobedience organization must be present. It should be used

as the last resource, after other political and legal tools. Civil disobedience
could be a way of changing the rules with the participation of the citizens.
The quality of democracy could be improved because in civil disobedience
some aspects of the legitimacy of the system are in discussion. But these
political actions imply legal sanctions. This is the price for activism.

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Bibliografía

Fernández Garcia, Eusebio (1987), La obediencia la Derecho, Civitas, Madrid.

Malem Seña. Jorge F. (1990), Concepto y justificación de la desobediencia civil, Ariel,

Barcelona.