On the Relationship of the Scope of a Special Obligation to Fair Play and the Scope of Justified Civil Disobedience

    In determining an answer to the question of whether we have an obligation to obey the

law, Rawls defends the affirmative answer by appealing to a concept he refers to as the special

obligation of fair play. He thinks this principle grounds two key moral claims:  

“sometimes we have an obligation to obey what we think, and think correctly, is an

unjust law; and second, that sometimes we have an obligation to obey a law even in a

situation where more good (thought of as a sum of social advantages) would seem to

result from not doing so” (232). 

    In this paper I will briefly explain how Rawls believes the special obligation of fair play

grounds these obligations. Then, I will briefly discuss Simmons’ criticisms of the obligation as

put forward by Rawls. After doing this, I will briefly sketch out Rawls’ theory as to when civil

disobedience is justified. At this point, I will be able to present my argument that Simmons’

criticisms of the special obligation of fair play amount to strong evidence against the limitations

in justified civil disobedience Rawls believes to exist. I will then briefly reflect on how this

argument has some meaningful parallels to Peter Singer’s argument against Rawls’ theory of

civil disobedience and further strengthens his case. 

    For Rawls, four empirical facts are necessary for an obligation to fair play to be

legitimate: First, that there is a mutually beneficial and just scheme of social cooperation.

Second, that the advantages said scheme yields can only be obtained if everyone, or nearly 

everyone, cooperates. Third, that cooperation requires a certain sacrifice from each person, or at

least some restriction on his or her liberty And lastly, that the benefits of this cooperation are to a

certain point free: if someone knows that everyone else will follow the rules, they will still

receive benefits even if they don’t. Given these, an obligation to fair play arises as failure to

comply with the rules entails taking unfair advantage of a benefit provided by a just system, even

if one believes the rule providing the benefits to be unjust. Rawls meets concerns with this later

clause by arguing that one must consider that no one is an ultimate authority on what is just and

that one must recognize the process embedded in the just constitution is superior to anarchy even

with instances of injustice.

    Simmons puts forward a criticism of the obligation of fair play as described. There are

two key distinctions he believes that, once recognized, more or less spell disaster for the

principle. First, however, he argues that the most charitable reading of Rawls states that “only

beneficiaries who are also participants (in some significant sense) are bound under the principle

of fair play” (242). Simmons notes that this takes care of certain prior criticisms of the view, but

takes a closer look at what exactly it means to be a participant in some significant sense. He

believes being a member of a group putting forward a scheme that gives its members benefits is

insufficient for determining ‘insider’ status. Merely being a member of a neighborhood that

provides benefits is not enough to be considered an ‘insider.’ Simmons argues that to be a real

participant in a “cooperative scheme” one must have either “pledged his support or tacitly agreed

to be governed by the scheme’s rules” or “played some active role in the scheme after its

institution” (243). 

    Although according to Simmons Rawls’ view is that while neither of these are necessary

and simply accepting benefits is enough, Simmons notes that the most charitable reading still

involves seeing him as believing there to be a significant difference between merely receiving

these benefits and actually accepting them. He also believes, however, that he does not provide a

robust explanation of what this difference entails. He believes there are two cases where

acceptance of a benefit occurs. One must either “have tried to get (and succeeded in getting) the

benefit” or “have taken the benefit willingly and knowingly” (243). With this information there

is one more distinction Simmons put forward to develop his argument: the distinction between

readily available and open benefits. Readily available benefits “can be easily avoided without

inconvenience” whereas open benefits are benefits that “while they can be avoided, they cannot

be avoided without considerable inconvenience” (244).

     The issue for the special obligation of fair play, Simmons claims, lies in the combination

of facts that 1) most public benefits are usually open benefits and 2) differentiating mere

reception of benefits from acceptance of benefits is much more difficult in cases of open benefits

than readily available ones. Simmons provides a brief defense of the second fact. He argues it is

not clear how someone would ‘try’ to get a benefit generally received by everyone whether they

want it or not. If the plausible claim that one is not likely is right, most cases of accepting open

benefits will involve the second way to accept, namely by taking the benefits willingly and

knowingly. The issue here is both that it is difficult to ascertain the mental states of individuals

and that it is likely not uncommon for people to receive open benefits unwillingly and receive

them only because they’ve determined the inconvenience it requires to reject them is not worth it

(245). Given these considerations, Simmons believes Rawls’ attempt to supplement and/or 

replace the principle of consent with the special obligation of fair play fails. A close analysis of

its generalized nature and the framework it’s meant to apply within shows the obligation can’t be

uniformly applied to a citizenry in the way Rawls desires.

    Now let’s turn to Rawls’ justification of civil disobedience. It relies on his well-known

social contract doctrine, which all depends on where people would agree given “an original

position of equal liberty” (260-261).v There are two key principles of justice it is built on.

“first, each person is to have an equal right to the most extensive liberty compatible with

a like liberty for all; second, “social and economic inequalities (as defined by the

institutional structure or fostered by it) are to be arranged so that they are both to

everyone’s advantage and attached to positions and offices open to all” (260).

    Rawls believes that even when these principles are effectively represented in a system’s

process, it cannot “[guarantee] that only just and effective legislation is enacted.” In other words,

just constitutions can still produce unjust laws. Why, then, do we have an obligation to obey

these unjust laws? Rawls argues we must follow democratic authority “to the extent necessary to

share the burden of working a constitutional regime” (260). There are many factors Rawls

believes one considers when determining whether civil disobedience is justified given this, but I

have a few I will focus on for the purposes of this paper.

    The first two are that Rawls believes civil disobedience should generally be limited to

substantial and clear violations of justice, largely those “which, if rectified, will establish a basis

for doing away with remaining injustices” (262). The third is that Rawls believes we can assume

that the political conviction leading one to consider civil disobedience “involves the conception

of justice (say that expressed by the contract doctrine) which underlies the constitution itself”

(261). In other words, reference to the common conception of justice given a social contract is

necessary for justifying civil disobedience on the grounds of injustice. Lastly recall what Rawls

believes to be the two key principles of justice within an ideal social system: equality of liberty

(which includes equality of opportunity) and “the social and economic policies aimed at

promoting the advantage of everyone” (262). Rawls believes that what policies the second

principle entails are not immediately clear, unlike the first one. For this reason he only believes

civil disobedience is justified as a response to “deliberate denial” of the first principle (263)

    In order to argue that Simmons’ criticisms work against Rawls’ theory of civil

disobedience, I must defend the claim that the special obligation of fair play plays a meaningful

role in the theory. Rawls explicitly states that part of the justification for an obligation to obey

unjust laws comes not only from a just Constitution but an acceptance of its benefits, and an

obligation from accepting benefits is precisely what Rawls understands the obligation of fair play

to be (260). Moreover, recall the first two limitations on when civil disobedience is justified;

these limitations come from the view that one must balance obligations to a just Constitution and

to justice itself; Rawls similarly believes an obligation to justice is what can override the

principle of fair play. 

    Given this context, we can start to see how Simmons’ arguments may throw a wrench in

how we should understand the social contract we have actually committed to. A common

conception of justice is, if not unlikely to exist at all, very difficult to identify. This

inaccessibility makes it difficult to claim that disruptions of equality of liberty according to a

“social contract” are any clearer than disruptions of the second principle. Perhaps Rawls would

want to say there is “implicit” agreement in regards to a social contract, but this sort of response

falls into Simmons' concerns with the difference between acceptance and mere reception. When

we consider the fact that most public benefits, even those essential to just Constitutions, are

“open,” we start to have valid questions regarding the extent to which those receiving the

benefits are knowingly and willingly taking them, especially with a particular eye to the ‘justice’

of it all. In short, obligations to a just constitution cannot be easily understood through the lens of

a common morality and thus not only struggle to provide clear limits on when justified

disobedience is morally acceptable, but it seems such obligations are not immediately obvious as

obligations at all under Rawls’ theory.

    Singer has his own criticism of Rawls’ theory that I believe has some important parallels

with the argument I’ve put forward. He believes an appeal to common morality for limiting civil

disobedience is “either idealistic and thus impractical” or it unjustifiably excluded civil

disobedience meant to do violence to the shared conception of justice (269). To argue that

appeals to the community must be limited to things that you believe already reflect the

community view doesn’t make much sense in Singer’s eyes.

    Just as Singer’s argument demands a further defense of the practicality and moral validity

of appeals to a common sense of morality, Simmons’ argument demands a further defense of the

moral validity of the principle of special obligation given the flaws presented with its generality.

Keeping both of their views in mind, a successful conception of a social contract embedded with

certain agreed on moral principles is difficult to come across. Moreover, disagreement with

whatever the majority view may be seems to be valid justification for civil disobedience, even

when may not be immediately clear to said majority that injustice is occurring. The general

obligation of the citizen to the just Constitution for accepting its benefits, i.e. the special

obligation of fair play, seems to hold less weight when considering that many of the said benefits

are provided in an ‘open’ rather than ‘readily available’ manner, making the claim that everyone

knowingly and willingly accepts these benefits need further empirical defense to hold through.

Assuming these criticisms are correct, it is less defensible that appeals to a shared sense of

morality and political obligation justify certain hesitations in justifying civil disobedience.

    A potential counterargument I would like to briefly address comes from chapter 7 of

Conflicts of Law and Morality by Kent Greenawalt. In contemplating Rawls’ theory of civil

disobedience, he provides a specific scenario to consider. In this scenario, a neighborhood is

undergoing gentrification. Prices are raising so fast that poor residents have a legal obligation to

leave, but the residents consider “trespassory occupations of buildings doomed to destruction”

in order to persuade officials that the policies permitting this are unjust, that their strongly held

feelings of injustice “should not be overridden,” and that “attempts to override those feelings will

cause inconvenience and embarrassment to the officials” (232). What I want to focus on most is

this last objective. As Greenawalt points out, it “is not an appeal to justice at all” and falls under

Rawls’ concern that there are ways civil disobedience can “[involve] subversion of ordinary

processes of decision making” (233). In other words, there is a concern that the disobedience has

become more about forcing change than attempts to persuade towards it. Although Greenawalt

argues that “those who are willing to suffer to correct an injustice may sometimes convert that

willingness into an aim to achieve a concession that the majority would not accord out of its own

sense of justice,” I think there is a real danger that expanding past Rawls’ limitations on civil

disobedience may make this approach to civil disobedience not only much more widespread but

cause it hold priority in people’s minds. If civil disobedience beyond the “basic design” of a

social contract is always justified, many more acts of civil disobedience will prioritize force over

persuasion, as this is what is likely to work. This objection works both as a practical and

theoretical objection. Practically, a largely hostile environment of civil disobedience is less likely

to foster meaningful change in policy as the disobedience is likely to be perceived as violent

rather than nonviolent, which is likely to cause attempts to change to be viewed more criminal by

the majority than anything else. Theoretically, an increased emphasis on force over persuasion

seems to contradict the entire point of civil disobedience in the first place, which is to shift the

majority opinion towards justice.

    This seems to me to amount to a very powerful objection. How one might go about

responding to it is not immediately clear. Perhaps one avenue is to argue that the counterpoint

presented rests on a false equivalency of force and hostility. One may claim that while attempts

to force change do introduce a dynamic of pressure, this pressure can still be presented in a way

that clearly expresses a genuine shared interest in justice that can still lead to effective dialogue.

In other words, one might make the case that force and persuasion can effectively work together

in a way that can still be perceived and understood as nonviolent. Another perhaps more

controversial route would be to deny the claim that attempting to use force goes against the spirit

or primary role of civil disobedience. One might claim that force just is another way of validly

expressing real concerns with current injustice.

    In this paper I have provided an argument against Rawls’ limitations concerning when

civil disobedience is justified. I have done this by arguing that the special obligation of fair play

is a key feature of Rawls’ social contract and by appealing to Simmons’ criticisms of its moral

validity by reference to the distinctions between accepting and merely receiving and those

between readily available and open benefits. I then proposed that this argument plausibly works

in tandem with Singer’s argument to provide an even stronger case. I considered a

counterargument to removing the limitations proposed by Rawls and considered a few possible

lines of response. All in all, I hope to have provided meaningful insight on the question of

justified civil disobedience.