Candice Delmas: A Duty To Resist: When Disobedience should be Uncivil
| Author | James Greenwood‐Reeves |
| DOI | http://doi.org/10.1111/jols.12158 |
| Published date | 01 June 2019 |
| Date | 01 June 2019 |
A DUTY TO RESIST: WHEN DISOBEDIENCE SHOULD BE UNCIVIL by
CANDICE DELMAS
(New York: Oxford University Press, 2018, 295 pp., £19.99)
Civil disobedience has been a stale topic for legal theorists in recent
decades. John Rawls's classical formulation, with its requirements for
publicity, non-violence, and the acceptance of legal punishment on behalf of
the dissenter, is old rope in countless academic tugs-of-war between
traditionalist and more expansionist approaches, without much distance
being made on any side.
1
Nowadays, a more interesting approach has been
to examine disobedience writ large. In the context of anti-fracking activism
in the United Kingdom, the gilets jaunes protests in France, and Occupy
movements internationally, the politics of disobedience are as relevant now
as they were during Rawls's time, in the era of the United States civil rights
movement and anti-Vietnam war protests. The theoretical groundwork for
framing these modern protests, however, needs to catch up with their
transnational and antagonistic potential. Candice Delmas's theory for
justifying `principled resistance', which may include secrecy, evasiveness,
and even violence, is therefore a welcome contribution that reinvigorates the
topic, drags it into the twenty-first century, and indeed threatens to turn it on
its head entirely.
Fundamentally, Delmas asks why we obey the law in the first place. She
identifies several grounds of political obligation that generate moral duties
of obedience to law and authority. She samples four recurring arguments for
the `duty to obey,' which feature throughout Western political theory:
namely, these are duties to justice, duties to fairness, the `Samaritan duty' to
those in need, and the duty to preserve dignity within our political
association (p. 5).
Each ground for obligation, she argues, can generate duties to obey the
law: but, should those moral grounds be threatened by an unfair or unjust
law, they conversely generate duties of disobedience and resistance to that
law. The ground of fairness, for example, leads us to obey laws of a fairly,
democratically-elected legislature; the same principle, however, might
require passive disobedience should a law prove unfair in its treatment of
minorities. The moral duty to obey is therefore defeasible. The United States
civil rights movement has historically been considered the epitome of this
reasoning, with relation to peaceful civil disobedience.
But further, Delmas argues, the fundamental requirement of fairness
creates duties to actively disobey and resist such laws, even to pursue `uncivil
disobedience', and to break ancillary laws to do so. Where for example ICE
agents seek unjustly to gather undocumented migrants and subject them to
appalling conditions, citizens are duty-bound to assess what action they must
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1 J. Rawls, A Theory of Justice (1999, rev. edn.) 320.
ß2018 The Author. Journal of Law and Society ß2018 Cardiff University Law School
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