Justice and Democracy
Justice and Democracy
Abstract and Keywords
Chapter 3 uses the natural duty of justice—which requires supporting just institutions—to defend a duty to resist injustice in basically legitimate states. It develops a typology of injustice ranging from democratically sanctioned violations of basic rights to official abuses, in order to better understand the implications of the duty of justice as it applies to the unjust conditions that can prevail within otherwise-legitimate, democratic societies. The chapter defends a series of political obligations corresponding to the contexts of injustice identified: obligations to engage in education efforts, protest (including by means of civil disobedience), covert disobedience, vigilante self-defense, and whistleblowing. The chapter concludes by sketching potential political obligations with respect to illegitimate states.
In 2016 and 2017, two huge troves of documents threw light on the shady world of offshore finance. The first, known as the Panama Papers, exposed the Panama-based law firm Mossack Fonseca’s creation of secret offshore havens to facilitate tax evasion for “politicians, fraudsters and drug traffickers as well as billionaires, celebrities and sports stars.”1 The second, known as the Paradise Papers—its name evokes both the French term for offshore haven, paradis fiscal, and the beautiful islands where offshore finance firms tend to be located—leaked from Bermuda-based Appleby, the world’s most prestigious offshore law firm. The Paradise Papers confirmed how widespread and easy tax evasion is for the super wealthy.
These leaked documents show that billionaires, corporations, universities, oligarchs, criminals, artists, top officials, and at least one head of state conceal their assets behind offshore shell companies, evade taxes and scrutiny, and invest in industries that the public finds objectionable. For instance, Britain’s Queen Elizabeth’s private estate invests millions of pounds offshore, including in Brighthouse, a financial lender accused of irresponsible practices. Northeastern University, which ranks fourth in the GreenMetric Ranking of World Universities for its sustainable campus (and first in the United States), invests part of its endowment in fossil fuels. And some of the (p.73) politicians who set the laws governing offshore funds were identified as major clients of offshore firms.
Appleby argues that it does nothing illegal in providing banking and tax services to its clients. But offshore financial secrecy is nonetheless a threat to justice and democracy. Systematic tax evasion by the rich flouts the spirit of the law, undermines democratic equality, and demoralizes ordinary citizens. The editorial writers at Le Monde understood this, characterizing the underworld revealed by the Paradise Papers as “democratic hell.”2
The Panama and Paradise Papers were leaked illegally and anonymously. Could the whistleblowers have been fulfilling their duty of justice? I believe so. The natural duty of justice is a common basis for the moral duty to obey the law. In this chapter I argue that it also grounds political obligations to resist injustice, including through principled, uncivil, and covert disobedience such as leaking.
To say that the duty of justice is natural is to say that it is grounded in our nature as moral beings and binds us all equally, regardless of our relations or voluntary undertakings. According to Rawls, the duty of justice has two components: “First, we are to comply with and to do our share in just institutions when they exist and apply to us; and second we are to assist in the establishment of just arrangements when they do not exist, at least when this can be done with little cost to ourselves.”3 The first part of the duty of justice implies a moral duty to obey the law of one’s just or nearly just state. Where institutions are unjust, the second part of the duty of justice implies a duty to help repair or replace them.
Since Rawls, inspired by Kant, made the case for this duty in A Theory of Justice, it has been the most widely embraced source of political obligation. Jeremy Waldron, Thomas Christiano, Anna Stilz, William Smith, and Daniel Viehoff, among others, have defended their own accounts.4 Although these theorists’ accounts of political obligation differ, the structures of their arguments are similar. Each (p.74) contends that the natural duty of justice requires submitting to the state and each places a limit on the duty to obey the law at the border of legitimate (liberal, democratic) states. That is, the duty of justice both grounds and limits the duty to obey the law. It addresses individuals as free and equal citizens and therefore cannot obligate them to maintain legal and sociopolitical conditions that deny people that free and equal status.
Contexts of Injustice
If the duty to obey is dissolved by serious injustice, we need to know what constitutes that sort of injustice. Existing theories give us a number of boundary conditions to work with. Rawls stressed that the moral duty to obey extends to unjust laws, unless they are grave and entrenched. Stilz argues that citizens are morally bound to obey laws they consider unjust, “as long as these laws do not violate core aspects of external freedom,” which she conceives of as the sphere of basic rights that constitutes persons’ independence or self-determination.5 According to Smith, the duty binds citizens so long as an unjust law “can be defended in terms that are reasonable”—that is, so long as the law is not blatantly unjustifiable.6 Beyond these limits, however one might draw them, injustice defeats the duty to obey. Within these limits, the duty to obey obtains.
How do we know which side of the limit we are on? There will of course be disagreements over whether particular laws are unjust, and to what degree they are. But we can try to achieve greater clarity on the content of injustice. Doing so enables us to specify the target of resistance, which is in turn essential to assessing particular acts of principled disobedience. A typology of injustice is thus an important tool in our examination of political obligations within broadly legitimate societies.
(p.75) Smith provides one in Civil Disobedience and Deliberative Democracy. He distinguishes three kinds of injustice that can be appropriate objects of civil disobedience in legitimate democratic states. Deliberative disrespect occurs “where a democratic majority tolerates or enacts blatant injustices,” publicly denying some of citizens free and equal status. Deliberative disagreement designates unjust outcomes neither “blatant” nor “obvious.” Deliberative inertia arises when certain issues or discourses are blocked from the public sphere.7 According to Smith, Rawls considers only deliberative disrespect, thus overlooking the possibility of justifiable civil disobedience whose object is not obvious and egregious injustice. Civil disobedience undertaken against the first two kinds of injustice guards and enhances justice, while disobedience against the third kind of injustice can promote democracy.
However, the inevitability of disagreements about the severity of injustice makes Smith’s distinction between deliberative disrespect and disagreement less helpful than it might otherwise be. I shall propose merging these two categories under the simple label disrespect, and carving out another category, wrongs to nonmembers, to designate states’ commission of injustice against noncitizens at home or abroad. Smith’s typology is also incomplete because it emphasizes the democratic assembly and neglects other institutions of government. We must keep in mind another context of injustice, official misconduct, cognizant of state officials’ conduct, which I will describe. Finally, I will identify a fifth context of injustice, public ignorance, to mark cognitive deficits in the public sphere distinct from those of deliberative inertia.
Deliberative disrespect, according to Smith, consists of democratic majorities’ enactment or toleration of laws that publicly and blatantly (p.76) deny some citizens free and equal status. This category is meant to capture both isolated iniquitous laws and systematic injustice that impedes citizens’ participation in public life. Smith’s examples of deliberative disrespect are denial of the right to vote or stand for office and failures to secure the law’s equal protection. These injustices—such as slavery, racial segregation, and women’s disenfranchisement—are unjustifiable and thus cancel the duty to comply.8
Smith’s second context of injustice—deliberative disagreement—designates outcomes of democratic debate that are unjust, even seriously unjust, but not clearly and obviously so. Therefore, they do not override the duty to comply.9 Gender inequalities, institutionalized homophobia, and inadequate protections for workers and immigrants exemplify deliberative disagreement. These injustices are permissible and appropriate targets of civil disobedience, but they are unlikely to strike everyone as blatant and they can be defended in reasonable terms. Deliberative disrespect, in contrast, produces clear-cut cases of oppression in the form of indefensible laws.
But history suggests the inadequacy of this criterion. Even as slavery, women’s disenfranchisement, and racial segregation were being scrapped, they had plenty of articulate, reasonable proponents. The Supreme Court defended racial segregation in publicly reasonable terms in Plessy v. Ferguson. Jim Crow laws stood for decades precisely because they were facially race-neutral and therefore arguably not unconstitutional under the Fourteenth Amendment. Today we see these injustices as blatant and egregious, but they may well have exemplified deliberative disagreement in their time. Of course, the test of time is not a useful standard, since we want to assess the gravity of current injustices.
For this reason, we should fold the category of deliberative disagreement into that of disrespect, and understand disrespect as public denial of citizens’ free and equal status. We should also drop the “deliberative,” which wrongly suggests that these injustices result from (p.77) a process of free deliberation among equals committed to advance the common good. Respecting citizens’ free and equal status means treating them as full moral agents, with equal standing in the social institutions and political processes, and endowed with dignity (more on this in chapter 6, which develops a dignitarian account of associative political obligations to resist injustice).
Some cases of disrespect are more serious and more obvious than others, although obviousness does not necessarily track seriousness. Recent examples of disrespect in the more encompassing sense I propose include the U.S. Defense of Marriage Act (1996), which denied same-sex couples the right to marry (struck down by the Supreme Court in Obergefell v. Hodges10); anti-trans bathroom policies such as North Carolina’s HB2, which conditions bathroom access to sex assigned at birth; the French Riviera’s “burkini bans” prohibiting the full-body swimwear some Muslim women wear at the beach11; solitary confinement of prisoners (including juveniles); and exploitation of prison labor. Grave economic injustices, including low or nonexistent minimum wages, efforts to debilitate labor unions, and laws facilitating the concentration of wealth and power can also fall in the category of disrespect, if citizens can claim that their free and equal status is threatened or violated by economic injustice.
Wrongs to Nonmembers
We also need to carve out another category involving grave injustice but not public denial of citizens’ free and equal status. We need such a category because states may commit or tolerate egregious injustices against noncitizens. Policies that disregard the basic interests of authorized or unauthorized migrants, impose lengthy detention without charges, deport people for minor crimes, and break up nuclear families are contemptuous of the integrity of persons and (p.78) appear seriously wrong.12 Developed countries’ recent refusals to take in more than very small numbers of asylum seekers displaced by conflict in the Middle East may provide another example.13 I call the democratic enactment or toleration of violations of the basic rights and dignity of noncitizens, at home or abroad, wrongs to nonmembers. Such indignities may also be inflicted on nonhuman animals such as whales and dolphins held captive in water parks. Democratic states that license these practices may be found to be wronging nonmembers.
One might argue that what matters for political legitimacy and the moral duty to obey the law is how the state treats its own citizens, not how it treats migrants and animals in its midst or other people abroad. But this is debatable. Thoreau’s case for the moral duty not to comply with U.S. law rested on the state’s brutal domination of noncitizens—Native Americans and slaves. Justice did not demand full U.S. citizenship for indigenous people in Thoreau’s time; instead it prohibited colonizing, displacing, and massacring them. In short, the gravity of wrongs to nonmembers and the extent to which they undermine political legitimacy is not necessarily tied to democratic exclusion. It relates to the harms inflicted on certain groups.
Deliberative inertia, a concept I borrow from Smith, designates breakdowns of public deliberation that occur when certain agendas and discussions are blocked from or fail to surface in the public sphere.14 Such inertia inspired early environmental, animal rights, and alter-globalization activism, as well as the Occupy movement, which protested the lack of public attention to economic inequality while calling for democratic deliberation about the issue. According to Smith, deliberative inertia does not defeat the duty to comply with the law, but it is an appropriate target of civil disobedience.
(p.79) Among other things, digital rights provide a significant current example of deliberative inertia. Increasingly, disobedient activism has targeted copyright laws, digital surveillance, and privacy violations enabled by companies and governments that structure the internet with little democratic input (and flawed input at that, since issues that do come up for democratic deliberation are poorly tackled due to representatives’ basic lack of understanding of the issues15). Lawrence Lessig has shown how the United States shaped the digital world into a surveillance- and commerce-friendly space by exporting, through technology product sales, an “architecture that facilitates control.”16 Bernard Harcourt has recently argued that the internet is governed by a “tentacular oligarchy” that ties private and public institutions in state-like “knots of power” and engages in increasingly sophisticated surveillance of people’s on- and offline behavior.17
Freedom of speech does not extend to the online world since speech is constrained by the decision-making of corporate intermediaries, including internet service providers; web hosting providers; and social network operators such as Facebook, Amazon, PayPal, and Apple. Ethan Zuckerman dubs this phenomenon the “threat of intermediary censorship”: the ability to speak online is always mediated by commercial entities, whose terms of service generally give a great deal of discretion to the content host and few protections to the end user.18 In Consent of the Networked, Rebecca MacKinnon makes a persuasive case for the democratic deficiencies of laws governing cyberspace, all the while expressing faith in the internet’s potential to invigorate democracy, and come itself under democratic control.19
To Smith’s typology, I believe we should add another form of injustice: official misconduct. This occurs when state authorities routinely (p.80) violate the duties associated with their office. Official misconduct was one of the central pillars of Jim Crow, as local authorities—including police, prosecutors, and courts—failed to apply the law for the protection and benefit of African Americans. Police brutality was essential to the systematic production of terror. Bombing, assault, and murder were more or less officially sanctioned and often encouraged. Many state officials, judges and police, as members of the Ku Klux Klan, engaged in lynching. That and other forms of violence against Blacks were outlawed under Jim Crow, but they were rarely prosecuted. Blacks were prevented from serving on juries, and when Whites were prosecuted for crimes against Blacks, they could be confident that White jurors would vote to acquit them. These illegal practices were routine and occurred in the open. Officials who did not conform were intimidated, harassed, or worse. Efforts were made, sometimes successfully, to turn such illegal practices into law.20 David Lyons dubs this “the legal entrenchment of illegality.”21 I simply call these wrongful executive and judicial practices “official misconduct.”
One might object that official misconduct is but a facet of disrespect, since the latter, on Smith’s account, includes the toleration, not just the enactment, of blatant injustice and encompasses the failure to secure protections of the rule of law. But the illegal or extralegal nature of official misconduct goes beyond majority enactment or toleration of blatant injustices. Its inclusion in a separate category thus underscores the different loci and mechanisms of injustice in contexts such as Jim Crow. Of course, carving out this category does not prevent us considering ways in which these distinct mechanisms of injustice can work in tandem.
Official misconduct similar to that of the Jim Crow era continues in the United States. Police brutality is common and might plausibly be deemed officially tolerated, as police departments tend to protect their own, and courts are reluctant to (p.81) prosecute police officers. The Bureau of Justice Statistics estimates that between June 2015 and May 2016 police killed approximately 1,200 people.22 Mapping Police Violence found 1,167 known police killings in 2014 (including 1,067 arrest-related deaths and 100 unintentional, off-duty and/or inmate deaths) and 1,123 police killings in 2013.23 In 2015, which has since been deemed the year of reckoning for police, more than a dozen officers were charged with murder or manslaughter in fatal on-duty shootings, up from an average of five a year in the previous decade. Since 2005, however, only thirteen officers have been convicted of murder or manslaughter. No officers were convicted in 2014 or 2015: in the overwhelming majority of cases, police killings are ultimately determined to involve the lawful use of deadly force.
This low rate of convictions is not surprising given that the law requires adopting the subjective perspective of the officer on the scene to determine whether their use of lethal force was justified.24 The legal standard invites (White) people to put themselves in the officer’s shoes and imagine their “reasonable” fear when faced with criminal- and dangerous-looking (Black or Brown) people. A one-sided exercise of empathetic imagination that is firmly rooted in oppressive stereotypes is thus deployed to justify homicides. The problem is structural and compounded: official misconduct works in tandem with disrespect—from stop-and-frisk policies, which disproportionately target Black and Brown people, to the set of laws that govern police accountability—and is (ideologically) justified and sustained by racist cultural stereotypes that inform police officers, their superiors and peers, and the judges and juries asked to evaluate their actions.
We see another example of official misconduct when states violate international law in the conduct of war. The routine, illegal use of torture, and efforts to legalize it during the “war on terror,” especially under President George W. Bush, are cases in point.25
(p.82) Lastly, corruption presents an archetype of official misconduct. In Joseph Nye’s influential conception, corruption is “behavior that deviates from the formal duties of a public role (elective or appointive) because of private-regarding (personal, close family, private clique) wealth or status gains.”26 For our purposes, though, it is important that corruption be widespread. While individual acts of corruption, such as former Illinois governor Rob Blagojevich’s solicitation of bribes in exchange for political appointments, are wrong, contexts of official misconduct arise only when that sort of behavior is publicly perceived as common and more or less tolerated.27
Different contexts of official misconduct involve different wrongs: official illegality sometimes conspires to deny citizens free and equal status, as in the case of Jim Crow; endemic corruption assaults the integrity of the legal system, thereby harming everyone’s fundamental interest in being governed by just institutions; states’ human rights violations abroad implicate citizens of the perpetrator state in these wrongs. Official misconduct stains political legitimacy and weakens, perhaps even dissolves, the duty to obey the law.
The final type of injustice concerns governments’ concealing from the public certain facts about their programs and policies and trying to cover up officials’ misconduct. Calling this injustice public ignorance emphasizes the democratic wrong involved in such secrecy: the public ought to know what the government does in its name. What it keeps hidden may be clearly wrong and/or illegal, or there may be disagreement about its wrongfulness and/or illegality. Examples of government programs objectionably concealed from the public, whether they were illegal or not, include the Federal Bureau of Investigation’s elaborate program of spying on dissident groups, known as COINTELPRO; the Central Intelligence Agency’s use of (p.83) “Black sites” to torture detainees in the war on terror; and the NSA’s dragnet surveillance programs. Official misconduct was covered up at Abu Ghraib and in postwar Bosnia, where American personnel were revealed as perpetrators in an international human trafficking ring.
Public ignorance differs from deliberative inertia with respect to the cause of the cognitive deficit in the public sphere. While inertial breakdowns are typically the result of many factors affecting the deliberative environment, public ignorance is a result of intentional government secrecy and/or cover-up: it is induced and cultivated by state officials. Although assessing contexts of public ignorance is tricky given the government’s real and weighty interest in secrecy, as we’ll see shortly, genuine cases of public ignorance seriously weaken the putative moral duty to obey the law by undermining democratic authority.28 In other words, citizens have less trust in and respect for the state when they feel—and have to reason to believe—they are being deliberately kept in the dark while the state perpetrates injustice. Intuitively, we might say that the graver the informational deficit, the more serious the injustice of public ignorance, and the less trustworthy and legitimate the state.
The revelations from the Panama and Paradise Papers straddle deliberative inertia and public ignorance: thanks to offshore finance, the rich and powerful, including government officials and heads of state, are able to withdraw their wealth from national and fiscal scrutiny, while concealing the conflicts of interest that the public should know about. These conflicts of interest arise at multiple levels and hinder democratic governance. At a basic level, offshore finance benefits the rich and powerful; the rich are able to buy influence and power, in the United States and elsewhere; and those in power tend to be rich (44 percent of US Congresspersons have a net worth of more than $1 million). There is therefore little legislative interest in regulating that sector; indeed President Donald Trump’s administration has determined to further deregulate banking. From this (p.84) perspective, we might describe the situation exposed by the leaked financial documents from Mossack Fonseca and Appleby as deliberative inertia sustained by public ignorance. In addition, officeholders shroud in secrecy the particular conflicts of interest they have, and which the public should know about. For instance, the Paradise Papers revealed that Wilbur Ross, the commerce secretary under Trump, has extensive business ties with the Putin family, which he should have severed before taking office, in compliance with government ethics standards.29 Conflicts of interest of the sort are a form of corruption that one may categorize under public ignorance.
To recap, disrespect consists of the public denial of citizens’ free and equal status; wrongs to nonmembers involve democratically sanctioned violations of the basic rights and dignity of noncitizens at home and abroad; deliberative inertia occurs when issues and discourses are blocked from the deliberative agenda; official misconduct consists in routine illegal practices by officials acting on their authority; and public ignorance occurs when the state prevents the people from learning about conduct, programs, and policies they should know and deliberate about. These types of injustice can and often do arise in legitimate, democratic states. The typology is broad-stroked and by no means exhaustive. It could have included historical injustice for instance. But it is sufficient to help us examine several implications of the duty of justice in unjust contexts within broadly legitimate societies.
(Dis)obedience and Democratic Authority
Before examining these implications, I need to address a particular objection against my project, one that denies the very possibility of political obligations to disobey based on the natural duty of justice. (p.85) When we talk about political obligations, we are talking about the duties of individuals. But the natural duty of justice, as envisioned by most theorists, applies to public institutions, not personal conduct. If this is right, then the duty of justice makes no demands on citizens themselves.
This objection rests on an understanding of the duty of justice tailored for theories such as Rawls’s, which focuses on the importance of society’s basic structure: institutions with significant impact on citizens’ life prospects. But while this stance may be warranted for the purpose of ideal-theorizing about justice, it does not follow that institutions alone are what matters for justice. To argue as much would be to set arbitrary restrictions on the pursuit of justice, excluding in particular non-institutional courses of citizen action. As Liam Murphy notes:
The overwhelming practical importance of institutions in achieving the aims of justice in the typical case should not blind us to the fact that what matters to us, ultimately, is not whether our institutions are just, in the sense that they achieve our aims, but rather simply the extent to which those aims are achieved, however that might be done.30
While institutions are crucial, perhaps indispensable, vehicles of justice, social movements and conscientious individuals can act, too.
But well understood, the objection from institutional mediation is not that the duty of justice makes no demands on citizens: it does, and what it requires is their obedience to the law. Proponents of the duty of justice argue that justice cannot be achieved if individuals decide privately what its achievement requires, that they must set aside their own judgment of the matter and follow the state’s determination, taking its directives as providing what philosophers call “content-independent” and “preemptive” reasons. The law provides (p.86) content-independent reasons for action insofar as it is its source or pedigree (how it came about, the fact that it is issued by the authority) and not what it directs that gives a reason for action. That it provides a preemptive reason for action means that it purports to exclude from deliberation other reasons for action.
The argument is not simply that people’s compliance with a single set of authoritative rules is needed for justice and stability. People deeply care how these rules are achieved. On many accounts, what gives people a reason to take the law as binding in these ways—that is, as providing content-independent and preemptive reasons for action—is the fact that it is the outcome of a democratic procedure that gives everyone an equal say in the decision. Political equality gives democratic procedures their authority. This is why the duty of justice requires the establishment of just democratic institutions, and grounds citizens’ moral duty to obey democratically made law, even when they find it unjust.
However, modern liberal democracies fail to generate a comprehensive moral duty to obey the law insofar as they are affected by the kinds of injustice and democratic deficits outlined above. Few decision-making procedures in democratic states may be deemed to produce morally authoritative outcomes. Viehoff’s account of democratic authority is especially well suited to understanding why.31 On his view, it is the egalitarian character of democratic procedures and institutions—the fact that they are not shaped by unequal power advantages—that gives us a reason to treat their outcomes as authoritative. Democratic equality requires not only that parties have equal rights and that they accept that their respective interests are equally significant—as is standard in accounts of democratic authority—but also that parties have, and be committed to having, equal control over the relationship, and that they exclude the influence of unequal power advantages (Viehoff calls this the requirement of nonsubjection).32 But many democratic states’ institutions (p.87) and procedures are insufficiently egalitarian, and shaped by unequal power, thereby giving citizens reason to scrutinize the content of these procedures’ outcomes (rather than accepting blindly their supposed content-independence), and to include consideration of other reasons for action besides the one provided by the law (thereby challenging their preemptiveness).
Still, this does not mean that anything goes so long as institutions lack political authority. We often have reason to follow imperfect institutions’ directives rather than acting on our own judgment in order to come closer to the ideal of democratic equality. For Viehoff this is so in part because actual or threatened disobedience menaces democratic equality by signifying willingness to defy it. Yet, as he recognizes, principled disobedience may sometimes better advance justice, too.33
Indeed, as we will see later on, principled disobedience can not only advance justice but can also promote democratic equality itself. Viehoff conceives of democratic equality in light of an ideal he calls “relational equality,” and which requires us to “set aside and not act on unequal power advantages in shaping our interactions and the norms and expectations governing them.”34 Precisely: principled disobedience can shed light on and alert the public to the power differentials that threaten relational equality. This aim has been central to the Occupy and BLM movements, for instance. Principled disobedience of this sort is then justified on the basis of the duty of justice itself and as an expression of respect for democratic authority.
For acts of principled disobedience to be justified on the basis of the duty of justice, it is not enough that they seek to promote the realization of democratic values; they must further be constrained in ways consonant with democratic equality. Agents must show concern for the interests of the parties potentially affected by the disobedient acts and not seek to dominate or intimidate them. In particular, (p.88) attempts to retaliate against those on the winning end of power differentials cannot be explained away by the duty of justice, and nonviolence should be favored. But the targeted and selective use of coercion is compatible with the imperative of nonsubjection: for instance, organized workers can justifiably deploy some force in their effort to balance out the unequal power advantage, in the context of labor strikes. And as we shall see, uncivil types of principled disobedience such as vigilantism and government whistleblowing, though they appear to threaten relational equality, may be wholly justified under certain unjust conditions.
With these goals and constraints in mind, let us turn to the inquiry into our duty of justice-based political obligations in the face of injustice and democratic deficits.
So then, bound by the natural duty of justice, how can and, in some cases, how should citizens resist injustices of the type I’ve just laid out? Through the following methods: education; protest, including civil disobedience; covert disobedience; vigilantism; and government whistleblowing.
Citizens can promote justice by working to improve the community’s understanding of its demands. This is especially the case in contexts of deliberative inertia, which can produce an uninformed or misinformed public. Consider anthropogenic climate change and rising economic inequality. In neither case is the injustice obvious. For citizens to be able to sense injustice, they must have a basic understanding of complex scientific and social-scientific issues, especially (p.89) to rule out alternative explanations (e.g., that climate change is not happening or that it is not man-made). To achieve that basic understanding, the public must know certain factual information. Al Gore’s 2006 documentary An Inconvenient Truth and Leonardo DiCaprio’s 2016 Before the Flood, for instance, are important popular sources with respect to climate change. But facts alone are not dispositive. The social-scientific and economic facts summoned to explain the injustice of economic inequality are neither value-neutral nor undisputed among experts, and even well-informed citizens disagree sharply about whether inequality is unjust. Furthermore, people often only hear what they want to hear: we tend to surround ourselves with like-minded people who share our worldviews. This tendency is amplified online, as our social media feeds and news sources confirm our convictions and biases, and as search engines like Google are designed to direct us to material that is most likely to reinforce our preexisting beliefs.35
Internet governance is another context of injustice in which education is both valuable and challenging. The complexity of the issues involved—combined with the relative digital illiteracy of most members of the community, including their political representatives—significantly impairs both democratic deliberation on internet governance and the struggle for digital rights. The Electronic Frontier Foundation—a nonprofit organization devoted to defending free speech online, fighting illegal surveillance, and advocating for users and innovators—spearheads this struggle. The Wiki Media Foundation, which operates Wikipedia, is also out front. It has blacked out Wikipedia in protest against the Stop Online Piracy Act (SOPA) and PROTECT IP Act (PIPA) and posted messages explaining how these laws threaten to restrict computer and information access.36 Such educational initiatives are crucial to improving the community’s conception of the demands of justice in the digital world.
(p.90) Although educational efforts are often entirely lawful, the duty of justice does not rule out unlawful activities that relate to educating and informing citizens. Thus hacktivists—whom Celikates has dubbed “the avant-garde of the digital publics”—can acceptably resort to principled disobedience in this domain, including digital trespass and DDoS actions, to protest and educate the public about digital rights.37 And they have done so. Aaron Swartz condemned the paywall surrounding publicly funded scholarship by downloading millions of academic articles from JSTOR. Anonymous launched a DDoS attack against the Motion Picture Association of America and other organizations that advocate and depend on stringent copyright laws. One can appeal to the duty of justice to justify Swartz’s and Anonymous’s actions, even if these actions constituted acts of uncivil disobedience.38
In some contexts of injustice, what is lacking and what education needs to remedy is not so much, or not only, information but also empathetic imagination. The wrongs involved in anti-immigration policies are arguably such a case. One may plausibly contend that false beliefs about how immigration undermines local and national community—and negative stereotypes about immigrants and refugees as parasites, criminals, and terrorists—prevent citizens from imagining themselves in immigrants’ shoes. This epistemic condition facilitates the wrongs to nonmembers. A number of people have “come out” as undocumented immigrants to raise awareness about their plight and invite empathy. For instance, Jose Antonio Vargas, a Pulitzer-winning journalist, told his story in the New York Times and described his predicament in poignant terms: “Even though I think of myself as an American and consider America my country, my country doesn’t think of me as one of its own.”39
A final example of justice-based political obligation to educate concerns the “burkini ban” in the French Riviera, which I have described as a case of disrespect. Though the Council of State (p.91) eventually struck down municipal prohibitions as unconstitutional, a majority of French people support them and hope that the bans will be reenacted. Public support for the bans suggests that resistance to them ought to focus on illuminating their assault on justice. This requires both information and empathetic imagination. Muslim women offer powerful voices of protest, as they explain why they choose to wear modest clothing and speak to the injustice of laws denying them the right to do so.40 This particular case also reveals the importance of educating the public about the values associated with the rule of law and necessary features of legality, including the necessity of laws’ generality and applicability, which the burkini ban blatantly violated (insofar as rash guards and bodysuits were effectively exempt from the law’s enforcement, for instance).
Because the duty of justice binds people in their capacity as free and equal moral agents, it cannot demand complying with laws, policies, practices, and institutions that flout this status in oneself or others. Compliance would amount to endorsing disrespect and violations of democratic equality, which is forbidden by the duty of justice. Beyond noncompliance, one might speak up against injustice and seek legal and structural reforms. Protest and civil disobedience are often critical ways to register opposition to unjust laws, express respect for one’s and others’ dignity, denounce the unequal power advantages that distort the production of law, and call for reform. The duty of justice thus provides grounds for the duty to protest and sometimes civilly disobey, on the basis of these acts’ communicative nature and potential to bring about reform (I present in the next chapter some social-scientific evidence supporting the effectiveness of protest and civil disobedience campaigns to usher in reform).
(p.92) King’s branch of the civil rights movement embodies a commitment to the duty of justice, which vindicates both its institutional demands and its affirmation of Blacks’ dignity in the face of egregious violations of democratic equality. But let us look to anti-trans bathroom bills for a current and more controversial example. Regardless of the true motivation behind them—proponents cite the safety of women and children—these bills disrespect trans and gender-nonconforming people and leave them more vulnerable to trans- and homophobic violence. The duty of justice demands that citizens respond through protest, and, indeed, a significant movement now denounces such laws as discriminatory and hateful and calls for their abolition. While cisgender people are likely to unreflectively comply with bathroom laws, they may be bound to disobey them if a large campaign urged them to do so. In any case, speaking up, signing petitions, partaking in hashtag activism, and demonstrating offer citizens the means to discharge the duty of justice in this case.
Empirical factors matter to determine how the duty to resist and protest injustice should be discharged. Boycotts can be tricky in this way. Some powerful corporations such as Google are boycotting North Carolina, refusing to set up shop or host events there in response to the passage of HB2. In addition to their direct economic effects, these boycotts attract media attention, raising awareness about transphobia and serving to condemn anti-trans laws. But consumer boycotts, which encourage people to cancel trips to North Carolina or refrain from spending money there, may be less successful. This boycott has had adverse effects on small businesses, including LGBTQ-owned and LGBTQ-friendly shops.41 These adverse effects seem remote from the goal of denouncing HB2. In this respect, the consumer boycott does a poor job of realizing the demands of justice, though it may contribute in important ways to improving the community’s conception of justice. Such impacts must be weighed against each other in deciding the best course of action.
The goal of protest is legal and structural reform to correct democratic deficits and bring about justice. But what is one to do before unjust arrangements are rectified, while they continue to wrong people? Think of slavery. Countless people of African descent were enslaved, brutalized, worked to death, and murdered even as activists devoted their lives to abolition. The duty of justice did not merely require opposition and protest. One also had a moral duty to rescue enslaved people, when one could, even if that meant disobeying egregious laws, such as the Fugitive Slave Law. Many abolitionists understood this and fulfilled their duty by assisting Blacks fleeing to the North and to Canada via the Underground Railroad. Note the difference between the enterprises of rescue and protest: the purpose of the Underground Railroad was to ensure the freedom of individuals, not to abolish slavery. Rescue fulfilled a non-institutional demand of the duty of justice. And it did so covertly, not communicatively, thereby violating civil disobedience’s norm of publicity.
The sanctuary movement offers a contemporary example of principled disobedience designed to satisfy the demands of justice outside institutions, again covertly. This large political and religious campaign, active in the United States in the 1980s and 1990s, violated federal immigration law by providing safe haven for Central American refugees fleeing civil conflict. Sanctuary members secured shelter, material goods, and legal advice for refugees refused asylum under restrictive immigration policies.42 Similar sanctuary movements have emerged in Europe in response to the global refugee crisis. For instance, French inhabitants of Breil-sur-Roya, near the Italian border, assist undocumented migrants by helping them cross the border into France, and providing them with food and shelter. Threats to unauthorized migrants, as well as escaped slaves, also require us to fulfill our Samaritan duty to aid people in dire need, (p.94) as we’ll see in chapter 5. French courts draw a line between Samaritan assistance and justice-based activism, excusing the former but firmly outlawing the latter: Eric Herrou was swiftly released in August 2016, soon after his arrest, when a judge ruled that he had acted on humanitarian grounds by helping a group of Eritreans into France. But when he was arrested again in mid-October for opening a shelter in a disused holiday camp to house fifty migrants, prosecutors insisted that his actions should be treated as a form of activism, and not as a humanitarian endeavor.
At the very least, the duty of justice prohibits complying with laws that make us agents of wrongdoing. Arizona, Alabama, and other U.S. states increasingly conscript citizens to enforce immigration laws by imposing legal duties on them to monitor, report, and refrain from employing, transporting, or aiding unauthorized immigrants, including children.43 If these laws are unjust and violate migrants’ rights, as some have argued, then citizens who comply with them contribute to violating the rights of migrants. And since the duty of justice prohibits contributing to rights violations, it prohibits citizens from obeying immigration laws, demanding disobedience instead.44
Disobeying immigration laws is a principled act, but not a civil one. It must be covert in order to succeed. Public disobedience would not serve to protect unauthorized migrants from the harms of arrest, detention, and deportation. Although the principled disobedients can also be outspoken critics of unjust immigration laws, they disobey covertly and their primary aim is not to condemn the law (such communicative aim would require publicity). Instead they defy the law because they wish to attend to vulnerable people’s needs and express respect for the dignity and freedom of those whose equal moral standing is denied. This what the duty of justice requires; it is a duty that calls, when necessary, for uncivil disobedience to frustrate disrespect and wrongs to nonmembers of the state.
When faced with official misconduct, as in contexts of disrespect and wrongs to nonmembers, protest and civil disobedience may be effective tools of reform. And some forms of uncivil (including covert) disobedience may be appropriate in the meanwhile, to frustrate ongoing wrongs. Vigilantism numbers among the types of uncivil disobedience that can be justified by the duty of justice in some contexts of official misconduct. It consists of the use of force or threat of force by nonstate agents for the purpose of controlling (preventing and/or punishing) conduct perceived as criminal or immoral. Vigilantes usurp law-enforcement functions. They wrongfully hold on to the natural right to punish, which John Locke insisted one must surrender upon entering civil society and transfer to the sovereign. In doing so, they wrongfully transgress the state’s monopoly on violence, which makes this form of action a particularly subversive one.
Most vigilantism cannot be justified. The Ku Klux Klan’s vigilante activities were egregiously immoral. They involved unjustifiable means—murder, torture, and terrorism—in the service of unjustifiable ends—the maintenance of White power. The vigilante killings perpetrated in San Francisco, California, in the 1970s, by a group of Black Muslims who called themselves the “Death Angels” cannot be justified either. They murdered at least fifteen people, perhaps closer to one hundred, simply because they were White.45 But those vigilante groups, such as the Deacons for Defense and Justice, that arose to defend African Americans against White supremacist violence under Jim Crow—illegally and with force—could be justified in the context of grave official misconduct, as the state deployed its force against some of its people and failed to protect them from lethal violence inflicted by other subjects.46 The Deacons exercised their fundamental right of self-defense and protective defense of others. The group, which grew to several hundred members in the 1960s (p.96) and had twenty-one chapters in the South, protected members of the Congress of Racial Equality, Blacks registering to vote, and White and Black civil rights workers. They also provided security for King at speaking events all over the United States.
Malcolm X also defended Black vigilantism as a form of justified self-defensive force in the context of authorities’ failure to protect Blacks:
[I]n areas where the government has proven itself either unwilling or unable to defend the lives and the property of Negroes, it’s time for Negroes to defend themselves . . . If the White man doesn’t want the Black man buying rifles and shotguns, then let the government do its job.47
Thus a certain kind of vigilantism—the organized use of self-defensive force such as that practiced by the Deacons for Defense and Justice and the Black Panthers under racial segregation, and the Lavender Panthers in San Francisco—may be justified in contexts of entrenched institutional inefficacy that leaves some people vulnerable to grave harm, so long as it involves the justified use of force in defense of self or others. That is, the harm inflicted by the vigilante must be a proportional (necessary and fitting) response to an immediate threat. Wounding or killing a Klansman about to lynch someone is justified rather than, say, fleeing and calling the police; parading with weapons to publicly demonstrate one’s willingness and capacity to respond to violence with violence can be justified too; but the use of deadly force cannot be used preemptively or indiscriminately or in response to future probable threats. Nor can it be used as a form of payback after an attack.
Vigilantism is often associated with retaliation and vengeance: Batman not only protects innocents from criminals but punishes the latter, under the guise of both retribution and (p.97) deterrence. The Ku Klux Klan presented its lynchings of Blacks as punishment for alleged (invented) crimes. Quentin Tarantino’s Revenge Trilogy, which includes Inglorious Basterds (2009), Django Unchained (2012), and The Hateful Eight (2015), represent retaliatory vigilante missions against sadistic wrongdoers from the ranks of Nazi officials, slaveholders, and Confederate army generals, respectively. The duty of justice cannot support vigilantes’ use of deadly violence as punishment or vengeance. But consider the case of digital vigilantism. In Operation: Payback, Anonymous launched a series of retaliatory DDoS attacks against various entities they saw as inimical to digital rights, to alert the public to some of the unjust constraints on the free flow of information online.
As a protest seeking to raise awareness, the campaign could be justified by the duty of justice. However, hacktivist participants intended to inflict serious economic damage to pro-copyright and anti-piracy organizations as retaliation to previous cyberattacks against torrent sites. The British Recorded Music Industry (BPI), the International Federation of the Phonographic Industry (IFPI), and the Ministry of Sound estimated the financial impact of the attacks to total £33,000.48 Whether the duty of justice can justify Operation: Payback depends on the legitimacy of the campaign’s goal—it can be justified as a protest but not as a punishment—and on the justification of its means. In particular, one ought to take a close look at the costs inflicted: Did the companies overestimate the financial impact of the attacks? Did they unfairly include indirect costs such as those related to security systems’ updates? Were the costs reasonable—small enough to be easily absorbed but large enough to garner publicity? Justifying Operation: Payback would require a positive answer to all three questions—the case can be made, in short, though making it requires a thorough investigation, which I won’t undertake here.
However, the duty of justice cannot be used to support Operation Ferguson, in which Anonymous threatened and then hacked into (p.98) the Saint Louis Police Department to release (what they incorrectly thought was) the identity of the officer who had shot Michael Brown in August 2014. They exposed the wrong officer and his family to death threats and mob violence—an expected but unacceptable result of Anonymous’s doxxing (stealing and release of private confidential information), which would have been wrong even if it had targeted the right person. The duty of justice cannot justify exposing someone’s family to such severe threat of harm.
In cases of public ignorance, when the government hides from the public some official misconduct or a particular program or policy about which the public should know, the duty of justice generates special obligations on the part of witnesses or participants. Public ignorance is a serious impediment to democratic deliberation. Those who have access to the wrongfully concealed information ought to alert the public about it. Agents who are in a position to diagnose public ignorance and its attending injustice are usually, though not necessarily, participants in the concealed programs or activities, in their professional or official capacities.
Reporting wrongdoing and corruption within one’s organization is already employees’ duty according to many professional codes of ethics—especially that of civil servants. But I want to argue something stronger, namely, that where the information in question is in the public interest, and when officials repress agents’ attempts to blow the whistle through designated channels, agents may incur a moral duty to blow the whistle illegally, through unauthorized disclosures to the public. And this duty derives from the duty of justice.
Denouncing and reporting corruption and other abuses is indeed critical to the promotion of just democratic institutions, as public denunciation can serve several of the purposes we have (p.99) focused on: improving the community’s conception of justice and understanding of democratic equality, communicating protest, and frustrating wrongs through exposure that may lead to cessation. The duty of justice can thus support special obligations to blow the whistle against public ignorance, even if doing so involves breaking the law by disclosing state secrets. Snowden’s leaks educated the public about digital rights infringed upon by government surveillance, and the Panama and Paradise Papers exposed systematic tax evasion by the wealthy and politicians’ conflicts of interest. Government whistleblowing can remedy significant cognitive deficits in the public sphere, thereby enabling a deliberative environment. It can also frustrate injustice by halting or diminishing the wrongdoing in question as soon as it is exposed. These functions make it a particularly powerful way of addressing democratic deficits (in the form of public ignorance) and enhancing justice and the rule of law (when the state uses secrecy in order to conceal its own wrongdoing). Government whistleblowers can thus appeal to the duty of justice to justify their actions.
Of course only justified, suitably constrained government whistleblowing is mandatory: agents ought to seek to expose serious government wrongdoing or programs and policies that ought to be known and deliberated about; they ought first to undertake lawful, internal attempts to alert the public; and they ought to take serious precautions in the disclosure so as to minimize the harms that could potentially ensue, including by carefully choosing the leaks’ recipients and editing the information disclosed.49 Examples of whistleblowers whose unauthorized disclosures successfully combated public ignorance, were suitably constrained, and plausibly fulfilled the duty of justice include Ellsberg, whose leaks of the Pentagon Papers to the New York Times, as I mentioned earlier, revealed that the United States committed war crimes in Vietnam and lied at home; the Citizens Commission to Investigate the FBI, who exposed the illegal (p.100) program of spying on dissident groups known as COINTELPRO; and Snowden’s NSA leaks. While the Iraq and Afghanistan War Logs leaked by Chelsea Manning exposed war crimes—a clear subject of public ignorance—WikiLeaks’s decision to publish the classified documents without editing them arguably sapped the justification of Manning’s whistleblowing.
Ellsberg and Snowden are often praised as civil disobedients. The framing of government whistleblowing as civil disobedience rightly points to agents’ principled motivations and communicative intent: whistleblowers, like civil disobedients, address themselves to the public. However, it is a mistake to conceive of government whistleblowing as a form of civil disobedience. Whistleblowers obtain classified documents covertly and without authorization. They often disclose the information they have gained access to anonymously, though some whistleblowers like Snowden make a point of publicizing their findings. Many whistleblowers seek to evade punishment. Government whistleblowers transgress the boundaries of state secrets for the purpose of challenging the state’s use of secrecy. Unauthorized disclosures do not only challenge executive decisions to keep certain information out of the public realm, but they also unilaterally reverse these decisions. Civil disobedients do no such thing: their lawbreaking challenges but does not undo unjust laws.
I have argued that the duty of justice does not simply ground a duty to comply with the outcomes of just democratic institutions but that it also supports a duty to resist injustice, by civil and potentially uncivil means, when the law violates justice or undermines democratic equality.
(p.101) Two sets of objections arise from what I’ve argued, which I will examine in the pages ahead. First, one may wonder if political obligations based on the duty of justice are too demanding, difficult to satisfy, and generally undesirable. Do we really want ordinary people to undertake such obligations, when they might be mistaken about what justice requires? Likewise, one may object that only lawful protest and, at the limit, civil disobedience can be morally required in a basically legitimate society. Uncivil types of principled disobedience like the ones I defended above should be excluded.
Demanding, Difficult, and Undesirable
It is difficult to satisfy political obligations based on the duty of justice because these obligations are, I admit, demanding in nature. Indeed it is daunting to consider the extent of the deeds we might be required to do, especially if the duty of justice does not stop at the merely legal. How is it realistic to ask so much of ordinary citizens? Making matters worse, it can be confusing to tell exactly what the duty of justice requires us to do. Rawls qualified the duty of justice, arguing that it need be fulfilled only at “little cost to ourselves.” But action requires time and energy and, in some cases, significant sacrifice. And while the duty to obey the law is straightforward—laws themselves more or less clearly specify the content of our duty—political obligations to resist injustice can be taxing. To fulfill such obligations, one must assess the moral merits of laws, evaluate their effects on people’s standing and on the integrity of the legal system, and choose among methods of resistance.
There are hazards at each stage. We may err in assessing the merits of laws, their effects, the injustice of these effects, and the available and appropriate responses. We also may fail to perceive injustices. Our mistakes may reflect mistaken convictions about justice. But even when we understand the injustice of situations (p.102) properly, our solutions may be misguided. In short, agents must be wise and virtuous in order to satisfy political obligations in the face of injustice, whereas the moral duty to obey the law supposedly can be met by anyone. Given that people could easily miscalculate and end up causing more harm than good, perhaps they shouldn’t make judgments about the existence of, and solutions to, injustice on their own.
These objections, which also apply to political obligations based on other normative principles defended in this book, seem to strike a serious blow to the project. Chapter 7 tackles these issues. For now, let me briefly address each in turn.
First, are political obligations in the face of injustice too demanding? It is true that we possess limited time and cognitive and financial resources and may have many other valuable projects to pursue. But this just means we cannot be expected to devote ourselves entirely to struggles for justice and democracy. It does not mean we can shrug off all political obligations as excessively demanding and therefore do nothing. The duty to obey the law makes burdensome demands on citizens—to pay taxes, sit on juries, and, if conscripted, serve in the military. There is no reason political obligations in the face of injustice cannot be equally demanding. And just as one can reasonably be blamed for refusing the burdens of obedience to law (when it is morally required), one can be blamed for refusing the burdens of addressing injustice.
Second, can and should these political obligations—and the duty of justice from which they derive—guide action? Yes, assuming certain conditions prevail. Agents must be able to perceive injustice before they can assess the situation properly and take action. This presupposes good information, some intellectual capacity, and moral dispositions. In chapter 7 I propose that we supplement the account of political obligations in the face of injustice with two additional responsibilities: one, to form one’s beliefs responsibly and (p.103) exercise the civic virtue of vigilance; two, to engage with others in dialogue and foster the civic virtue of open-mindedness. But this does not mean that nothing is to be done until all the conditions for the possibility of satisfying one’s political obligations are in place. In particular, those agents who are able to help improve others’ conception of justice and aptitude for assessing injustices have a weighty responsibility to educate and inform others.
I also want to stress that I do not defend the view that all citizens should try to work out for themselves what the duty of justice—or any other important normative principle—demands in the face of injustice. My argument is that it is wrong to presume that the duty of justice solely requires compliance with the law in states like ours. Instead it demands resisting injustice so as to respect people’s rights and make institutions more democratic. Satisfying the demands of the duty of justice unquestionably is complicated and difficult, but that does not mean we don’t have to try to do so.
Against Uncivil Disobedience
One might see no problem with the resort to lawful protest and civil disobedience in the effort to advance justice and democratic equality, but point to the potentially destabilizing effects of uncivil disobedience. Covert disobedience can habituate citizens to illegality, thereby undermining the rule of law. Vigilantism usurps one of the state’s most crucial prerogatives: its monopoly on the threat or use of violence in order to protect people. Government whistleblowing can put national security at risk. Each of these actions may manifest disrespect for democratic institutions and is likely to scare and antagonize the majority, erode the civic bonds, and compromise future social cooperation. We therefore must think carefully about whether the duty to support just institutions can be realized through uncivil disobedience.
(p.104) But as I argued in the previous chapter, uncivil disobedience does not necessarily undermine or express contempt for democratic authority. As a form of self-defensive action in contexts of widespread state-sanctioned violence, justified vigilantism affirms the full and equal status of those under attack and thereby promotes democratic equality. What of the concern that covert disobedience habituates people to illegal behavior, potentially spilling over to totally unjustifiable, unprincipled criminality, thereby disserving the duty of justice? This is an empirical matter, and there is no evidence to support such fears. Consider drug and alcohol prohibition, a constant arena for covert disobedience. Between 1919 and 1933, Americans routinely and covertly disobeyed statutes banning alcohol use without suddenly turning to criminality. Today, many people in the United States and elsewhere quietly disobey legal prohibitions against marijuana use with no further effect on disobedience. Drug prohibitions do breed serious wrongdoing, but only because they encourage black markets and organized crime—not because of some disobedience contagion.
Noting his evasion of punishment, Snowden’s critics suspect that he was disloyal to the United States and reject the claim that he was motivated by respect for the rule of law and democratic authority.50 But this condemnation does not withstand scrutiny. Against journalists’ advice to remain anonymous and thereby evade the possibility of punishment, he chose publicity. Since coming forward, he has been a relentless and eloquent advocate for electronic freedom and privacy, demonstrating his sincere commitment to the public interest. He has worked to strengthen democratic ideals by emphasizing their role in online governance. Not every whistleblower is as conscientious as Snowden, but his example shows that whistleblowing need not be disrespectful of democratic institutions, antagonize the public, or disrupt civic concord. All in all, we cannot discount the role of principled disobedience in realizing the duty of justice.
I focused in this chapter on how the duty of justice affects political obligations in nonideal legitimate, democratic states, which present a harder case for principled disobedience. We should also reflect on obligations with respect to illegitimate states. The central political obligation of citizens in such states is to resist illegitimate authority—be it autocratic or colonial—and establish in its place a government based on self-determination. Fulfilling this obligation typically requires mass struggle and coordination internally. But outside forces, including citizens of legitimate states, can help. Are they obligated to do so?
According to Rawls, the duty of justice binds us to help establish just institutions where they don’t exist. Allen Buchanan has defended a “robust natural duty of justice,” which specifies that obligations extend universally.51 On this version of the duty, people living under just institutions must help those subject to unjust institutions, wherever these are. I want to suggest three main sites of action.
The first, and by far the most important, is supranational: international organizations such as the United Nations have a crucial role in helping war-torn and developing countries end conflicts and establish well-functioning institutions. Methods of assistance may include humanitarian intervention, financial aid, consulting, election-monitoring, and criminal prosecutions under international law.
Second, individual states can do their part in international humanitarian efforts. For better or worse, the United States is leading the international effort to fight transnational corruption by applying its anti-bribery law—the Foreign Corrupt Practices Act of 1977—internationally.52 Insofar as corruption undermines the integrity of legal systems and thus constitutes an indirect assault on people’s dignity and vital interests, one may plausibly argue that the United States is upholding its duty to support just institutions everywhere.53
(p.106) Third, individuals themselves may also be bound by the duty of justice to help establish just institutions in other countries. One central transnational political obligation is to express solidarity with and, to the extent possible, contribute to, other people’s pro-democracy movements. Examples of solidarity include demonstrations against global labor injustice and consumer boycotts of low-road producers in foreign countries. Financial and technical support can also help activists’ and rebels’ freedom struggles in illegitimate states. For instance, the hacktivist group Telecomix develops and provides Digital Care Packages, including anti-censorship, anti-surveillance, and internet-backup software, to pro-democracy groups the world over. Telecomix recently “mapped” Syria (i.e., scanned the state’s networks and servers for surveillance equipment) and established encrypted connections to help local activists make their online activity harder to monitor.
Why should people obey the law? Champions of the duty of justice answer that citizens’ compliance with the law is necessary for the state to uphold its peace-keeping and rights-preserving mission and that the duty of justice morally binds citizens to obey the outcomes of democratic decision-making procedures. But as we saw, the duty of justice can also support political obligations to resist injustice, institutionally and non-institutionally, at home and abroad. Even in legitimate democratic states, the duty of justice cannot bind people to comply with the law when doing so would contribute to denial of fellow citizens’ free and equal status or support corrupt institutions. Instead, the duty of justice demands resisting injustice, bettering institutions, and frustrating wrongs, and it supports principled disobedience in the process. Given our less-than-ideal polities, obeying the law is neither the sole, nor necessarily the most important, of our political obligations.
Because the natural duty of justice is such a well-established source of justification for the standard understanding of political obligation, (p.107) it serves as exhibit A in the case for revisiting that standard. But we can draw on other “evidence.” In the next chapter, I turn to fairness. Like the duty of justice, the duty of fair play is frequently adduced as a ground for a political obligation to obey the law. But it, too, can ground an obligation to resist when systemic injustice arises.
(1.) The International Consortium of Investigative Journalists (ICCJ), The Panama Papers (April 3, 2016), https://panamapapers.icij.org/20160403-panama-papers-global-overview.html.
(2.) Le Monde, “ ‘Paradise Papers’: paradis fiscal, enfer démocratique” (November 10, 2017), http://www.lemonde.fr/evasion-fiscale/article/2017/11/10/paradise-papers-l-egalite-devant-l-impot-pilier-essentiel-du-contrat-democratique_5213081_4862750.html#u74WBQjMkzh91mJT.99.
(4.) Jeremy Waldron, “Special Ties and Natural Duties,” Philosophy and Public Affairs 22 (1993): 3–30; Smith, Civil Disobedience and Deliberative Democracy, chap. 1; Thomas Christiano, The Constitution of Equality:Democratic Authority and Its Limits (Oxford: Oxford University Press, 2008); Anna Stilz, Liberal Loyalty: Freedom, Obligation, and the State (Princeton, NJ: Princeton University Press, 2009); Anna Stilz, “Why Does the State Matter Morally? Political Obligation and Particularity,” in Varieties of Sovereignty and Citizenship, eds. (p.265) S. R. Ben-Porath and R. M. Smith (Philadelphia: University of Pennsylvania Press, 2013), 244–264; Daniel Viehoff, “Democratic Equality and Political Authority,” Philosophy and Public Affairs 42, 4 (2014): 337–375.
(5.) Stilz, “Why Does the State Matter Morally?,” 257.
(10.) Obergefell v. Hodges, 135 S. Ct. 2071 (2015).
(11.) The Council of State, France’s highest administrative court soon struck down these municipal bans as unconstitutional, though they remained in effect through the summer. See Conseil d’Etat statuant au contentieux, ordonnance du 26 août 2016, Ligue des droits de l’homme et autres—association de défense des droits de l’homme collectif contre l’islamophobie en France, Nos 402742, 402777.
(12.) One could make an indirect case against immigration policies by showing that it violates the rights of citizens, for instance, when parents, children, and spouses are broken up by deportation orders. But the point is that immigration policies involve serious wrongs even where they do not concern citizens.
(13.) See Serena Parekh, Refugees and the Ethics of Forced Displacement (New York: Routledge, 2016).
(14.) Smith, Civil Disobedience and Deliberative Democracy, 68–70. This target of civil disobedience was previously conceptualized in Markovits, “Democratic Disobedience.”
(15.) See Sheheryar T. Sardar and Benish A. Shah, “Social Media, Censorship, and Control: Beyond SOPA, PIPA, and the Arab Spring,” University of Pennsylvania Journal of Law and Social Change 15, 4 (2012): 577–585. Available at http://scholarship.law.upenn.edu/jlasc/vol15/iss4/10.
(16.) Lawrence Lessig, Code and Other Laws of Cyberspace (New York: Basic Books, 1999).
(17.) Bernard Harcourt, Exposed: Desire and Disobedience in the Digital Age (Cambridge, MA: Harvard University Press, 2015).
(18.) Ethan Zuckerman, “Intermediary Censorship,” in Access Controlled: The Shaping of Power, Rights, and Rule in Cyberspace, eds. R. J. Deibert, J. G. Palfrey, R. Rohozinski, and J. Zittrain (Cambridge, MA: MIT Press, 2009), 71–85.
(19.) Rebecca MacKinnon, Consent of the Networked: The Worldwide Struggle for Internet Freedom (New York: Basic Books, 2009).
(20.) U.S. v. Cruikshank (92 U.S. 542, 1875) is a case in point. The Cruikshank Court overturned the convictions of two White defendants in the 1873 Colfax massacre (around 105 Blacks were killed), and put an end to the Ku Klux Klan prosecutions. Legal scholars have argued that this decision judicially constrained the Fourteenth Amendment’s equal protection principle in a manner that has not been undone. See Charles Lane, The Day Freedom (p.266) Died: The Colfax Massacre, the Supreme Court, and the Betrayal of Reconstruction (New York: Henry Holt, 2008); William J. Stuntz, The Collapse of American Criminal Justice (Cambridge, MA: Belknap Press of Harvard University Press, 2011).
(21.) David Lyons, “The Legal Entrenchment of Illegality,” in The Legacy of H. L. A. Hart: Legal, Political, and Moral Philosophy, eds. Matthew H. Kramer, Claire Grant, Ben Colburn, and Antony Hatzistavrou (Oxford: Oxford University Press, 2008), 29–43.
(22.) Bureau of Justice Statistics, Arrest-Related Deaths Program Redesign Study, 2015–16: Preliminary Findings (December 15, 2016), NCJ 250112: https://www.bjs.gov/index.cfm?ty=pbdetail&iid=5864.
(24.) Graham v. Connor, 490 U.S. 386 (1989).
(25.) See, e.g., John Yoo, “Memorandum for Department of Defense Re: Application of Treaties and Laws to al Qaeda and Taliban Detainees” (January 9, 2002). Draft available at http://nsarchive.gwu.edu/NSAEBB/NSAEBB127/02.01.09.pdf.
(26.) Joseph Nye, “Corruption and Political Development: A Cost-Benefit Analysis,” American Political Science Review 61, 2 (1967): 417–427.
(28.) Indeed I do not mean to champion transparency in all domains of government and at all costs. For a nuanced, empirically informed discussion of the issues of secrecy, transparency, and democratic accountability, see Rahul Sagar, Secrets and Leaks: The Dilemma of State Secrecy (Princeton, NJ: Princeton University Press, 2013); and Michael P. Colaresi, Democracy Declassified: The Secrecy Dilemma in National Security (Oxford: Oxford University Press, 2014).
(29.) Jon Swaine and Luke Harding, “Trump Commerce Secretary’s Business Links with Putin Family Laid Out in Leaked Files,” The Guardian (November 5, 2017), https://www.theguardian.com/news/2017/nov/05/trump-commerce-%20secretary-wilbur-ross-business-links-putin-family-paradise-papers (accessed November 24, 2017).
(30.) Liam Murphy, “The Case of Required Rescue: Beneficence, Law and Liberty,” Georgetown Law Review (2001): 647.
(31.) Viehoff, “Democratic Equality and Political Authority.” The article first shows why common duty of justice-based arguments for the duty to obey democratically made law fail.
(33.) He proposes the following test: “To determine whether disobedience is justifiable, we must, in the first instance, ask not how disobeying in any particular instance will advance justice, but rather whether a general moral rule of (p.267) disobeying under certain circumstances will advance justice sufficiently to make up for the threat this poses to relational equality.” Ibid., 374.
(35.) See, e.g., Eli Pariser, The Filter Bubble: What the Internet Is Hiding from You (New York: Penguin, 2011); and Jessica Clark and Tracy Van Slyke, Beyond the Echo Chamber: Reshaping Politics through Networked Progressive Media (New York: The New Press, 2010).
(36.) Wikipedia contributors, “Protests against SOPA and PIPA,” Wikipedia, The Free Encyclopedia,https://en.wikipedia.org/w/index.php?title=Protests_against_SOPA_and_PIPA&oldid=760306719 (accessed February 12, 2017).
(37.) Robin Celikates, “Digital Publics, Digital Contestations,” in Transformations of Democracy, eds. R. Celikates, R. Kreide, and T. Wesche (Lanham, MD: Rowman and Littlefield, 2015), chap. 8.
(38.) As a caveat, note that Swartz’s lawyers, MIT itself, and prominent intellectuals like Lawrence Lessig, have argued that Swartz did not in fact violate any law. See, e.g., Lawrence Lessig, “Aaron’s Laws—Law and Justice in a Digital Age,” public talk (2013), available at http://www.youtube.com/watch?v=9HAw1i4gOU4.
(39.) Jose Antonio Vargas, “My Life as an Undocumented Immigrant,” New York Times online (June 22, 2011), http://www.nytimes.com/2011/06/26/magazine/my-life-as-an-undocumented-immigrant.html?ref=magazine. A version of this article appeared in print in the Sunday Times Magazine on June 26, 2011.
(40.) See, e.g., Carmen Fishwick, “Why We Wear the Burkini: Five Women on Dressing Modestly at the Beach,” The Guardian (August 31, 2016); Margaux Mazellier, “Interdiction du burkini: paroles de musulmanes” RFI (August 19, 2016, last modified August 24, 2016); Asma Fares, “Touche pas à mon burkini!” (August 5, 2016), available at https://www.youtube.com/watch?v=lpjSZJDY8Pw (accessed February 13, 2017).
(41.) See economic effects on small businesses, including LGBTQ shops, in Asheville, North Carolina: https://www.washingtonpost.com/lifestyle/style/how-north-carolinas-idyllic-hipster-haven-is-being-hurt-by-the-bathroom-bill-boycott/2016/06/28/28fc707a-33d4-11e6-8758-d58e76e11b12_story.html.
(42.) On the movement, see Susan Bibler Coutin, The Culture of Protest: Religious Activism and the U.S. Sanctuary Movement (Boulder, CO: Westview Press, 1993).
(43.) See especially Arizona SB 1070 (2010) and Alabama’s HB 56 (AL Act 2011-535). The Department of Justice and a coalition of groups including the American Civil Liberties Union filed successful legal challenges to the most pernicious provisions of these laws, such as the criminalization of assisting, caring for, or renting to undocumented people. However, the laws have remained on the books, with key provisions still in effect. For instance, the “Papers, Please” provision makes it a crime to fail to carry registration papers (p.268) and compels officers to question the immigration status of, and arrest without a warrant, those they suspect are in the country illegally. HB 56 even includes a provision empowering citizens to sue individual officers shirking their enforcement duties.
(44.) Javier Hidalgo, who has recently propounded an argument of this form, though without appealing to the duty of justice, greatly influenced my thinking here. Javier S. Hidalgo, “The Duty to Disobey Immigration Law,” Moral Philosophy & Politics 3, 2 (2016): 165–186.
(45.) See Prentice Earl Sanders and Ben Cohen, The Zebra Murders: A Season of Killing, Racial Madness and Civil Rights (New York: Arcade Publishing, 2011).
(46.) On the movement, see Lance Hill, The Deacons for Defense: Armed Resistance and the Civil Rights Movement (Chapel Hill: University of North Carolina Press, 2006).
(47.) Malcolm X, “The Ballot or the Bullet,” speech delivered on April 3, 1964, at Cory Methodist Church in Cleveland, Ohio. Part of Malcolm X’s point here is also to defend Blacks’ access to guns under the Second Amendment of the U.S. Constitution.
(48.) One participant boasted on an internet relay chat, “We have probably done some million pound of dmg (damage) to mc (MasterCard).” PayPal alleged that the attack cost the company £3.5 million. The Ministry of Sound estimated the cost of the attack on the four sites they operate that were targeted as being £9,000, while the IFPI’s costs were more than £20,000 and the BPI’s more than £4,000. MasterCard and Visa did not disclose the financial impact. Lauren Turner, “Anonymous Hackers Jailed for DDoS Attacks on Visa, MasterCard, and Paypal,” The Independent (January 24, 2013), http://www.independent.co.uk/news/uk/crime/anonymous-hackers-jailed-for-ddos-attacks-on-visa-mastercard-and-paypal-8465791.html.
(49.) I articulate an account of the presumptive wrongfulness of government whistleblowing and the conditions under which it can be justified in: Candice Delmas, “The Ethics of Government Whistleblowing,” Social Theory and Practice 41, 1 (2015): 77–105.
(50.) Hillary Clinton, among many other politicians and pundits, suggested Snowden was disloyal. See https://www.theatlantic.com/politics/archive/2014/04/hillary-clinton-edward-snowdens-leaks-helped-terrorists/455586/. American investigative journalist Edward Jay Epstein lays out the case that Snowden was a spy for Russia in his How America Lost Its Secrets: Edward Snowden, the Man and the Theft (New York: Alfred A. Knopf, 2017).
(51.) In fact, Buchanan even shows that promoting the cause of justice does not require giving priority to domestic law. Allen Buchanan, Justice, Legitimacy, and Self-Determination: Moral Foundations for International Law (Oxford: Oxford University Press, 2004), 85–98.
(52.) See, e.g., Kevin Davis and Stephen Choi, “Foreign Affairs and Enforcement of the Foreign Corrupt Practices Act,” Journal of Empirical Legal Studies 11, 3 (2014) 409–445
(53.) Jeremy Waldron, in conversation with Kevin Davis, New York University Colloquium in Social, Legal, and Political Philosophy, October 8, 2016.