Justice and the problem of obedience to an unjust law – a comparative analysis of Rawl ́s and Dworkin ́s theories

Abstract

The possibility of tolerating civil disobedience, according to many authors is part of the very concept of the Democratic State of Law. However, the grounds and limits of the referred disobedience are controversial matters, manly as to the possibility to disrespect a law supported by the conscientious objection. The main discussion, therefore, is related to the acceptance or not of the conscientious objection as a valid foundation for civil disobedience. Moral and legal issues may come into conflict and the limits of the disobedience will depend on both philosophical and legal grounds and justification. In view of the vast and complex range of authors working on the theme, we decided in this essay for a critical analysis of the theories of John Rawls and Ronald Dworkin, which diverge exactly at the point described above. The former, based on his theory of justice as fairness, promotes a procedural understanding of civil disobedience, based on publicly accepted political principles, excluding moral issues. The latter, for its part, understands that in every rule there is a moral content, liable, therefore, for disobedience based on the conscientious objection. Once established of the aforementioned dichotomy between moral and political principles, we will seek to demonstrate if Rawls’s theory does not end up being excessively restricted or if Dworkin’s understanding ends up into excessively tolerant state behaviors. The research justifies itself by the decisive influence that both authors have played with regard to the foundation of civil disobedience, mainly in the debate regarding the liberal doctrines of justice.