In my previous blog entry on Laws, Legal Systems, and Government Power, I tried to explain the difference between laws that I take to be authoritative and those that want to call not just authoritative, but also legitimate. The idea was, roughly, that a societal norm within some polity which has the formal features of a law is authoritative if and only if it emerges from procedures which are correct at every turn. I then claimed that while only authoritative laws can be legitimate, legitimacy additionally requires that the government prescribing the procedure for making laws is democratic. What that means is a longer story (see my book). but I don't mean to suggest that only perfectly democratic systems have legitimate laws--after all, there may not ever have been a perfectly democratic system in the history of our planet. I'm not now (and likely never will be) prepared to provide precise minimum requirements for a governmental system to be considered "democratic enough" to produce legitimate laws. But I will repeat what principles I consider to be basic to democracy. There must universal suffrage including those in their mid-teens; every person must be treated equally, with no discrimination allowed on the basis of race, gender, orientation, etc.; the majority should rule, counting each vote equally--but significant minorities should be given a voice in government with the volume of that "voice" mirroring the size of the minority; elections must be "fair" and consequently not buyable; both the referendum and recall should be available to the electorate; and the elected governments must make good faith, transparent efforts to get the electorate what they want based on appropriately aggregated vote tallies.
It seems impossible to deny, however, that governments satisfying those minimal conditions could enact horrific laws that would, therefore, be legitimate according to my theory. Even if the principle of equal treatment prevents any law from calling for discrimination against any particular ethnicity or gender, it could still be the case that a legitimate statute is randomly inhuman or results in brutality to everyone, indiscriminately. Must judges apply such laws? Must citizens obey them? In blog entry linked to above, I promised to do what I could to answer these questions. Here is my attempt.
The two distinguished gentlemen pictured above were German jurists in the Weimar Republic who were particularly interested in whether what the Nazis were soon to put into could reasonably be called laws, and they wrote about what obligations (if any) on judges and regular citizens followed from the passage of such commands. Now, of course, one can reasonably complain both that Hitler was not governing pursuant to majority rule and that very many of his putative laws certainly did involve unfair discrimination (quite essentially, in fact). So it unproblematic to to deny legitimacy to every edict emanating from the so-called "Third Reich."
But let's make this harder by considering some putative law that derives from a regime that is democratically elected and which doesn't discriminate against Jews (or Catholics or Blacks or Gypsies or Gays). This edict could surely remain brutish. Suppose, e.g., that the polity simply won't allow any citizen to emigrate. In fact, imagine that a law is (appropriately) enacted according to which, if anybody is caught trying even to briefly vacation elsewhere, that person may be disemboweled! (If we like, we can even hypothesize that after its passage, this anti-emigration law was subjected to a fairly conducted referendum and was kept in place by a majority of the populace.)
It might seem then, that, according to a strictly positivist legal theory--even one which contains my democracy criterion--(i) every judge should condemn to a horrible death anyone found guilty of violating this duly enacted provision, (ii) those with the prescribed duty (and scalpels) should carry out its hideous requirements, and (iii) if this polity utilizes juries (or trials at all!), everyone impaneled for such a case should declare guilty any individual he or she believes had the temerity to step over the border.
Does this hypothetical "law" show that legal positivism is a terrible mistake whether or not one adds democracy requirements to the criteria for legal legitimacy? Can civil disobedience really never just be the right thing to do? Both Radbruch and Neumann meditated on this matter--a particularly crucial one after the fall of Weimar. For Radbruch, the moral was beyond any doubt. Positivism is acceptable only until a law is so horrific that it exceeds any reasonable bounds of decency. He wrote that, "One thing...must be indelibly impressed on the consciousness of the people as well as of jurists: There can be laws that are so unjust and so socially harmful that validity, indeed legal character itself, must be denied them."* Radbruch believed that there might be obligations to carry out and obey even some unjust laws, but that there must be a limit. That line is where "the conflict between statute and justice reaches such an intolerable degree that the statute, as 'flawed law,' must yield to justice."** And he concluded that "Where there is not even an attempt at justice, where equality, the core of justice, is deliberately betrayed in the issuance of positive law...it lacks completely the very nature of law. For law...cannot be otherwise defined than as a system and an institution whose very meaning is to serve justice."
To the extent that this criterion, eloquent as it is put here, is conceived to essentially rely on the concept of equality of persons, it cannot not help us much, because we have already locked that criterion in when we insisted that only authentically democratic jurisdictions can enact legitimate laws. For there can be no democracy without equal treatment. We will, then, have to rely on Radbruch's more quantitative approach: it can't be legitimate if it's extremely bad.
In a valuable paper on Radbruch written about a decade ago,*** Brian Bix warns that we should not confuse support or criticism of legal positivism with any particular position regarding what putative laws ought to be obeyed. He writes, "Legal positivism is a theory about the nature of law, even if it is too often confused with entirely different kinds of claims (e.g., about when and whether laws should be obeyed, or about how statutes and constitutional provisions should be interpreted). Bix argues that it is crucial to distinguish any general theory concerning connections between law and morality from questions about how judges should decide any particular case and that Radbruch's admonitions must be restricted to the latter questions. According to Bix, one way of seeing this is to consider that legal positivism must be a theory about the nature of law in every conceivable jurisdiction while what judges should or should not do is necessarily a function of the particular system that jurist happens to inhabit. Furthermore, as some jurisdictions clearly contemplate the use by judges of extra-legal norms in making their decisions, a determination that some proposition is not a law in those places would not entail what Radbruch wants--a norm absolutely requiring that any judge ignore the proposition in question because of the gross injustices it would call forth if enforced.
For our purposes here--involving the appropriateness of civil disobedience among judges, jurors and citizens in particular circumstances--we can focus only on this second interpretation of "Radbruch's Formula," and leave more general questions regarding alleged necessary connections/divergences between law and morality to others. Let us, therefore, continue to call procedurally correct laws ensuing from democracies "legitimate," and just focus only on when we may nevertheless ignore them. Radbruch says, roughly, that we may do so when and only when they are particularly terrible. But that seems to offer very little help. When is a command so immoral that it is really, really terrible?
Neumann also addressed this issue. In a 1952 paper on appropriate disobedience,**** he provides what he takes to be four essential characteristics of the content of any legitimate edict. Like Radbruch, he starts with the legal equality of all rational persons, and he adds that nothing requiring slavery can be legitimate, since slavery requires inequality. Second, he says laws granting or limiting liberty must be general and not apply only to certain specified individuals. Third, retroactive or ex post facto legislation affecting life or liberty are claimed to be improper and so need not be obeyed. Finally, he tells us that the agencies enacting, interpreting, and enforcing laws must all be sufficiently separate.
Neumann claims here, without much argument, that his principles two, three, and four are derivable from the first, equality-endorsing axiom. That seems to me an extremely interesting and important claim if true, because any such derivation would seem to prevent a number of versions of illiberality in authentically democratic regimes. But I confess that I cannot myself see how retroactive law-making or parliamentary forms of government--distasteful as they may be to many observers--are inconsistent with providing everyone with equal treatment and protection. Democracy alone does not seem to me to prevent certain types of official cruelty (or require judicial independence) in instances where the people in that polity are themselves illiberal and cruel. In any case, if all the varieties of illiberality singled out by Neumann are made impossible by authentic democracy, I have not managed to see how or why.
Returning to his main argument, Neumann clearly believed that his four principles are all that we can appropriately agree upon as content-bases for legal legitimacy; but he also worried that they will not seem sufficient to everyone. He writes that his four reeds "may sound very thin and unsatisfactory." But he thinks that this will be so "only if we forget that man may morally resist any command of his government if his conscience impels him to do so." Why? Because, Neumann insists, "There cannot be made a universally valid statement telling us when man’s conscience may legitimately absolve him from obedience to the laws of the state. Every man has individually to wrestle with this problem. If he decides to resist, he cannot invoke a 'right,' but he will evoke our sympathy. Beyond the four statements on the unconditional right of resistance, each man must make his decision." (Interestingly, he appeals to Hegel's early-19th Century Philosophy of Right for this individualistic stance.)
A "you'll-have-to-figure-this-out-yourself" stance certainly appeals to me in this area, for, as I have written elsewhere, while I believe that moral claims are like factual propositions in either being true or false, and even think that they may be warranted to some extent for a particular individual (perhaps by her emotional responses to various states of affairs), no human being seems to me ever to be in a position to know the truth of any ethical judgment. For it is my view that any such knowledge would require a reasonable and at least partially justified general theory of morality, and I don't think any of those exist.***** Moral claims therefore seem to me akin to astrological predictions, for those are also true or false, and may in some cases be inductively warranted. But, being (let's say) "unhinged," they can also never be known to be the case. As my book shows, I am much more comfortable about our epistemic relations with propositions involving prudential value than with those involving morality.
To conclude, whether or not civil disobedience is appropriate in a particular situation is, without doubt, a strictly moral matter, and as I am a skeptic with respect to moral knowledge, I believe Neumann was right. We will each have to let our own conscience be our guide.
* "Five Minutes of Legal Philosophy" (1945)
** "Statutory Lawlessness and Super-Statutory Law" (1946)
*** "Radbruch's Formula and Conceptual Analysis" (2011)
**** "On the Limits of Justifiable Disobedience" (1952)
***** Most of those that have been offered have been species of hedonism, and no form of moral consequentialism seems to me to have fared very well after being subjected to centuries of criticism. I will admit, however, that I have just been informed of a new paper suggesting an entirely different sort of theory: Andre, DeBove, et al., "Moral Cognition as a Nash Product Maximizer" (2022). Perhaps something along those contractualist/game theory lines will do better than any version of consequentialism has to date, though I have my doubts.