Critically Evaluate Dworkin's and Habermas's Approach to Civil Disobedience.

Critically evaluate Dworkin's and Habermas's approach to civil disobedience.

The following essay will attempt to evaluate the approach taken by Dworkin and Habermas on their views of civil disobedience. The two main pieces of literature referred to will be Dworkin's paper on 'Civil Disobedience and Nuclear Protest'# and Habermas's paper on 'Civil Disobedience: Litmus Test for the Democratic Constitutional State.'# An outline of both Dworkin's and Habermas's approach will be given , further discussion will then focus on a reflective evaluation of these approaches. Firstly though, it is worth commenting on civil disobedience in a more general context. Most would agree that civil disobedience is a 'vital and protected form of political communication in modern constitutional democracies'# and further the 'civil disobedience has a legitimate if informal place in the political culture of the community.'# Civil disobedience can basically be broken down into two methods, either intentionally violating the law and thus incurring arrest (persuasive), or using the power of the masses to make prosecution too costly to pursue (non persuasive).

Dworkin takes a categorical approach to civil disobedience, by breaking it down into a number of different types then applying certain conditions to each type to assess wether the disobedience should be allowed or not. He states that there are three different types of disobedience based on the motivations behind the action. These are integrity based, justice based and policy based civil disobedience. Briefly, integrity based disobedience is motivated when the law requires people to do something that goes against their personal integrity and is usually a matter of urgency. Dworkin gives an example of this as the Northern American citizen who covertly harbours and shelters slaves from the Southern citizens in violation of the Fugitive Slave Act.# The second type of disobedience, justice based, is motivated by a peoples desire to oppose unjust policy in the hopes of reversing the policy, for example the civilian protest about the war in Iraq recently. Thirdly, policy based disobedience is somewhat different to the first two in that it is usually activated by minority groups who think a policy is dangerously unwise. As Dworkin puts it 'they think they know what is in the majority's own interests.'

Given these three types of disobedience (that is integrity, justice and policy based) and two different methods (persuasive and non persuasive), Dworkin addresses two main questions regarding the justification of the action, namely what is the right thing for people to do who believe a political decision is wrong? And secondly , how should the government react? Dworkin makes the point that civil disobedience will be easier to justify if it doesn't challenge majority rule, and that there should be a rights clause in any action that states that the majority should not advance its own interests at the expense of other peoples rights (this thus gets around any argument for terrorism or violence).#

In the case of integrity based disobedience, the case seems fairly clear cut in that people who are protesting for these reasons do the right thing based on their beliefs and so, in Dworkin's mind also they do the right thing. Because matters such as this are typically very urgent in their nature there is no need to stipulate that all legal options to reverse the decision be exhausted. Dworkin states that both persuasive based and non-persuasive forms of disobedience are justified in these cases.#

Of more complexity are the justice and policy based arguments for civil disobedience. Addressing the former, the conditions on when civil disobedience are justified become more rigid in that Dworkin believes for civil disobedience to be justified in this case people should first exhaust the normal political process before they partake in the disobedience.# Further to this, Dworkin also insists that citizens partaking in justice based actions should consider the consequences of their action. It is under this form of disobedience that the distinction between persuasive and non persuasive action becomes important. Persuasive strategies aim to persuade a policy to be changed by forcing the majority to listen to its argument whereas non persuasive means aim to increase the cost of pursuing the policy. In the case of justice based disobedience, Dworkin states that persuasive options should be exhausted before non persuasive options are used. Persuasive options only work in this instance though if the conditions are favourable for their success.#

Finally, that of policy based civil disobedience. Dworkin states quite clearly that non persuasive strategies should never be used in policy based civil disobedience. This is because it goes directly against the majority rule principle and 'attacks its foundations' by making the majority pay very heavily for its policy. Persuasive forms of policy based civil disobedience may be justified in some circumstances, but as with justice based action, all other political options should be exhausted first and the conditions must be favourable for the actions success.

Turning now to Habermas, his views are slightly more liberal than that of Dworkin as we will see in the following outline. Habermas looks upon civil disobedience as an essential element of a developed political nation.# Habermas approves of John Rawls' definition of civil disobedience:

"a public, non-violent, conscientiously determined, but illegal act which is usually meant to cause a change in the laws or the policy of the government."#

Rawls give certain conditions that must be fulfilled for civil disobedience to be justified. Namely, there must have been a grave injustice occur to warrant the protest, all legal options for reversing the decision must be exhausted and the protest should not seek to endanger the constitutional order. Habermas appears to agree with the opinion of Rawls i.e. civil disobedience is a feature, if not a requirement of any constitutional state and is required to make sure that the laws move with the times. He makes these claims on the basis that for any democratic constitutional state to call itself legitimate, the laws must