Conscience and Conviction: The Case for Civil Disobedience (Oxford Legal Philosophy)

This book shows that civil disobedience is more defensible than private conscientious objection. Part I distinguishes conviction from conscience, shedding light on the former as something non-evasive and communicative, and on the latter as something much richer, namely, genuine moral responsiveness. Each of these concepts informs a distinct argument for civil disobedience. The conviction argument shows that, as a constrained, communicative practice, civil disobedience has a better claim than private objection does to the protections that liberal societies give to conscientious dissent. This view reverses the standard liberal picture which sees private ‘conscientious’ objection as a modest act of personal belief and civil disobedience as a strategic, undemocratic act whose costs are only sometimes worth bearing. The conscience argument is narrower and shows that genuinely morally responsive civil disobedience honours the best of our moral responsibilities and is protected by a duty-based moral right of conscience. Part II translates the conviction argument and conscience argument into two legal defences. The first is a demands-of-conviction defence. The second is a necessity defence. Both of these defences apply more readily to civil disobedience than to private disobedience. Part II also examines lawful punishment, showing that, even when punishment is justifiable, civil disobedients have a moral right not to be punished. Copyright Series Editors’ Preface Acknowledgments Contents Introduction 1. Conviction and Conscience 2. The Conviction Argument 3. The Conscience Argument PART I Morality 1 Conviction 1. Communicative Disobedience 1.1 Civil disobedience 1.2 Civil disobedience and assistive disobedience 2. Non-communicative Disobedience 3. The Communicative Principle of Conscientiousness 3.1 Consistency 3.2 Universality 3.3 Non-evasion 3.4 Communication and dialogue 3.5 Implications 4. Ambiguities Conclusion 2 Conscience 1. Common Conceptions of Conscience 1.1 Objective monistic conceptions 1.2 Subjectivist conceptions 2. Conscience and Moral Pluralism 2.1 Demands of conscience 2.2 Scope for error 2.3 A clear conscience 3. An Ideal of Conscience 3.1 Comprehensiveness and aspirationality 3.2 Constitutive cultivation 3.3 Present unrealizability 3.4 Value 4. Conscience and Virtue Conclusion 3 Responsibilities 1. Formal Expectations and Moral Responsibilities 1.1 Competing views of discretion and expectation 1.2 Moral roles 1.3 Offices and positions 1.4 The gap thesis 1.5 The moral roles thesis 1.6 Implications for society 1.7 Implications for individuals 2. The Forms and Purposes of Non-conformity 3. Objections and Replies 3.1 Competence and epistemic limitations 3.2 Democratic processes 3.3 Burdens of judgement 3.4 Voluntarism 3.5 Valuable institutions 3.6 Value pluralism Conclusion 4 Right 1. Moral Rights versus Legal Rights 2. A Moral Right of Conscience 3. A Moral Right to Inner Control and Free Thought 3.1 The nature of the right 3.2 The attention argument 3.3. The valuable relationship argument 3.4 The mental limitations argument 3.5 The value of free thought 4. A Moral Right of Conscientious Action 4.1 Free expression 4.2 Civil disobedience 4.3 Objections against the moral right to civil disobedience 4.4 Personal disobedience Conclusion PART II Law 5 Demands-of-Conviction Defence 1. Justifications and Excuses 1.1 Complicated cases 1.2 Degrees of justification and excuse 2. The Demands-of-Conviction Defence 2.1 Grounds for the defence 2.2 The nature and scope of the defence 3. The Strategic Action Problem 4. The Democracy Problem Conclusion 6 Necessity Defence 1. The Nature of Necessity 1.1 Competing principles of necessity 1.2 A pluralistic approach to necessity 2. The Competition of Values Problem 2.1 Modesty of law 2.2 Liberal democracies 3. The Proportionality Problem 3.1 The scope of the defence for civil disobedience 3.2 Legal rights 4. Avoidance of Punishment and Slippery Slopes 4.1 Avoidance of punishment? 4.2 A slippery slope? Conclusion 7 Dialogue 1. The Scripting Problem 2. Conditions for Moral Dialogue 3. The Generic-Script Problem 4. The Status Change Problem 5. A Pluralistic Theory of Punishment Conclusion 8 Punishment 1. The Right to Civil Disobedience 1.1 Liberty-rights 1.2 Penalization 2. Symbolic Punishment 3. Some Ways Forward Conclusion Bibliography Index Oxford Legal Philosophy publishes the best new work in philosophically-oriented legal theory. It commissions and solicits monographs in all branches of the subject, including works on philosophical issues in all areas of public and private law, and in the national, transnational, and international realms; studies of the nature of law, legal institutions, and legal reasoning; treatments of problems in political morality as they bear on law; and explorations in the nature and development of legal philosophy itself. The series represents diverse traditions of thought but always with an emphasis on rigor and originality. It sets the standard in contemporary jurisprudence. This book shows that civil disobedience is generally more defensible than private conscientious objection. Part I explores the morality of conviction and conscience. Each of these concepts informs a distinct argument for civil disobedience. The conviction argument begins with the communicative principle of conscientiousness (CPC). According to the CPC, having a conscientious moral conviction means not just acting consistently with our beliefs and judging ourselves and others by a common moral standard. It also means not seeking to evade the consequences of our beliefs and being willing to communicate them to others. The conviction argument shows that, as a constrained, communicative practice, civil disobedience has a better claim than private objection does to the protections that liberal societies give to conscientious dissent. This view reverses the standard liberal picture which sees private 'conscientious' objection as a modest act of personal belief and civil disobedience as a strategic, undemocratic act whose costs are only sometimes worth bearing. The conscience argument is narrower and shows that genuinely morally responsive civil disobedience honors the best of our moral responsibilities and is protected by a duty-based moral right of conscience. Part II translates the conviction argument and conscience argument into two legal defenses. The first is a demands-of-conviction defense. The second is a necessity defense. Both of these defenses apply more readily to civil disobedience than to private disobedience. Part II also examines lawful punishment, showing that, even when punishment is justifiable, civil disobedients have a moral right not to be punished. The book shows that civil disobedience is generally more defensible than private conscientious objection. Part I explores the morality of conviction and conscience. Each of these concepts informs a distinct argument for civil disobedience. The conviction argument begins with the communicative principle of conscientiousness (CPC). According to the CPC, having a conscientious moral conviction means not just acting consistently with our beliefs and judging ourselves and others by a common moral standard. It also means not seeking to evade the consequences of our beliefs and being willing to communicate them to others. The conviction argument shows that, as a constrained, communicative practice, civil disobedience has a better claim than private objection does to the protections that liberal societies give to conscientious dissent. This view reverses the standard liberal picture which sees private'conscientious'objection as a modest act of personal belief and civil disobedience as a strategic, undemocratic act whose costs are only sometimes worth bearing. The conscience argument is narrower and shows that genuinely morally responsive civil disobedience honours the best of our moral responsibilities and is protected by a duty-based moral right of conscience. Part II translates the conviction argument and conscience argument into two legal defences. The first is a demands-of-conviction defence. The second is a necessity defence. Both of these defences apply more readily to civil disobedience than to private disobedience. Part II also examines lawful punishment, showing that, even when punishment is justifiable, civil disobedients have a moral right not to be punished. Oxford Legal Philosophy publishes the best new work in philosophically-oriented legal theory. It commissions and solicits monographs in all branches of the subject, including works on philosophical issues in all areas of public and private law, and in the national, transnational, and international realms; studies of the nature of law, legal institutions, and legal reasoning; treatments of problems in political morality as they bear on law; and explorations in the nature and development of legal philosophy itself. The series represents diverse traditions of thought but always with an emphasis on rigour and originality. It sets the standard in contemporary jurisprudence. The book shows that civil disobedience is generally more defensible than private conscientious objection. Part I explores the morality of conviction and conscience. Each of these concepts informs a distinct argument for civil disobedience. The conviction argument begins with the communicative principle of conscientiousness (CPC). According to the CPC, having a conscientious moral conviction means not just acting consistently with our beliefs and judging ourselves and others by a common moral standard. It also means not seeking to evade the consequences of our beliefs and being willing to communicate them to others. The conviction argument shows that, as a constrained, communicative practice, civil disobedience has a better claim than private objection does to the protections that liberal societies give to conscientious dissent. This view reverses the standard liberal picture which sees private 'conscientious' objection as a modest act of personal belief and civil disobedience as a strategic, undemocratic act whose costs are only sometimes worth bearing. The conscience argument is narrower and shows that genuinely morally responsive civil disobedience honours the best of our moral responsibilities and is protected by a duty-based moral right of conscience. Part II translates the conviction argument and conscience argument into two legal defences. The first is a demands-of-conviction defence. The second is a necessity defence. Both of these defences apply more readily to civil disobedience than to private disobedience. Part II also examines lawful punishment, showing that, even when punishment is justifiable, civil disobedients have a moral right not to be punished. Oxford Legal Philosophy publishes the best new work in philosophically-oriented legal theory "This book shows that civil disobedience is generally more defensible than private conscientious objection. Part I explores the morality of conviction and conscience. Each of these concepts informs a distinct argument for civil disobedience. The conviction argument begins with the communicative principle of conscientiousness (CPC). According to the CPC, having a conscientious moral conviction means not just acting consistently with our beliefs and judging ourselves and others by a common moral standard. It also means not seeking to evade the consequences of our beliefs and being willing to communicate them to others. The conviction argument shows that, as a constrained, communicative practice, civil disobedience has a better claim than private objection does to the protections that liberal societies give to conscientious dissent. This view reverses the standard liberal picture which sees private 'conscientious' objection as a modest act of personal belief and civil disobedience as a strategic, undemocratic act whose costs are only sometimes worth bearing. Part II translates the conviction argument and conscience argument into two legal defenses. The first is a demands-of-conviction defense. The second is a necessity defense. Both of these defenses apply more readily to civil disobedience than to private disobedience. Part II also examines lawful punishment, showing that, even when punishment is justifiable, civil disobedients have a moral right not to be punished."--Book description, Amazon.com When Is It Justified To Disobey The Law? How Should The Law Respond To Instances Of Conscientious Disobedience? This Book Presents The First Full-length Philosophical Examination Of The Morality And Legality Of Civil Disobedience, And The Legitimate Responses To Civil Dissent Open To The State. The Nature Of Conscience And Conscientiousness -- Moral Demands Of Conscience -- Moral Rights Of Conscience And Of Conscientiousness -- The Legal Duty To Break The Law -- A Demands Of Conviction Defence -- A Necessity Defence -- Punishment. Kimberley Brownlee. Includes Bibliographical References (p. [255]-262) And Index.