The Limits of Political Obligation and the Problem of Resistance

After reading this article you will learn about the limits of political obligation and the problem of resistance.

The very fact that this problem is presented to us is itself a proof that we cannot enjoy the peace of acquiescence in a final will. It is, in effect, a double problem. The first of the problems is whether there is a sphere of life and conduct in which there is no political obligation. The second is whether political obliga­tion, in the sphere in which it exists (whatever that sphere may be) is absolute, or conditional.

Mill, in his Essay on Liberty, assumed the existence of two different spheres of conduct. One sphere or part of the conduct of anyone, he argued, is that which concerns others; and for that he is ‘amenable to society’.

The other part is that which merely concerns himself; and here ‘his independence is, of right, absolute … and the individual is sovereign’. The assump­tion made by Mill is open to a double criticism. In the first place, as his critics have urged, he separates the inseparable.

The con­duct of any man is a single whole: there can be nothing in it that concerns himself only, and does not concern other men: whatever he is, and whatever he does, affects others and there­fore concerns them. In the second place, it would also appear that Mill fails to separate the separable.

He lumps together, as the phrase ‘amenable to society’ suggests, both the social and the political: he vindicates the liberty of the individual, in one breath, both against the Mrs. Grundy of social convention and the St. Stephen’s of political enactment. We cannot separate two different compartments of individual conduct; but we can separate the sphere of Society from that of the State.

Because we cannot separate our individual conduct into two different compartments, and because we are bound to regard the whole of our conduct as concerning others no less than ourselves, we have to admit that the whole of our conduct is controllable— so far as the criterion of its concerning others is the criterion of judgement.

But because we can separate the sphere of Society from that of the State; because we are able, and even bound, to regard the one as the sphere of voluntary action, proceeding by the method of free co-operation, and the other as the sphere of uni­form and regulated action, based, in the last resort, on the method of compulsory enforcement; we are free to contend that there are some things which are best left to the first of these methods, and others which are best left, and indeed must be left, to the second.

How are we to decide which things belong to the sphere of Society, and which to that of the State?

In general terms, the answer is that since the State acts by the method of compulsory enforcement, the things that belong to it are the things which had better be done under compulsion than not be done at all; and since Society acts by the method of free co­operation, the things that belong to it are the things which, in their nature, must be done freely if they are to be done well and to have any value.

If we seek to translate these general terms into detail, we may say that the things (if they may be called things) which are best left to the sphere of Society are the ex­pression of thought and opinion, in matters of the mind; the exercise of the moral virtues, such as, for example, the virtue of temperance; the practice of religion, not only in private pro­fession, but also in public worship and the public propagation of belief; the development of culture, in the sense of a general way of life or type of civilization, and (along with that, and as part of it) the making and changing of social customs, habits, and fashions.

But it cannot be said that any of these things be­long to Society so wholly and so absolutely that no factor or element in them can ever belong to the State. On the contrary, there may well be factors or elements in each (for instance, even in the expression of thought) which had better belong to the State, and be brought under State-regulation, because they involve the method of compulsory enforcement.

There is no fixed category of things which must always and in all cases be left to Society; there is only a fixed principle about the sort of things which it is better generally to leave to Society—exceptis excipiendis.

This notion of ‘exceptions’ may appear to be dangerous, and particularly dangerous when it is applied to the expression of thought. We all assume it as an axiom that the expression of thought, opinion, and belief is a matter for free social action, limited only by the decencies of courtesy and consideration for others. So it is, in the main: but it cannot always be left there.

There are elements or factors in the expression of thought which enter the area of the State and are amenable to State- regulation. If an author’s expression and publication of his thought and opinion is adjudged by the common conviction of the members of the political community to be a nuisance—that is to say an injury to the health of their minds, as being unclean and obscene, in the same way as an open sewer is an injury to the health of the body—it will be the duty of the State, in the course of declaring and enforcing common conviction, to deal with the nuisance by its own method of compulsory enforce­ment, and to vindicate the community’s claim that it should not be made to suffer injury against the writer’s claim that he should be free to express his thought.

The issue, if we probe the matter, is not in the last resort an issue between the writer and the State. It is an issue between two parts or sections of the community; between two trends of opinion; between the claim of one part or section to a right of expressing its opinion, and the claim of the other to a right of keeping its own opinion uninjured and undamaged.

There is a danger of shock or colli­sion between the two opposite sides; and the State has to act, as it were, in the office of a buffer for the purpose of absorbing the shock. It must diminish the collision by adjusting the con­flicting claims; but in doing so it will act as an arbiter, and not as a party in the case.

The issue, however, is far from simple. How can we be sure of the fact that there is a common conviction? And even if we are sure of the fact, a further question arises. Why should the writer be required to obey a conviction which in his view, and possibly also in the view of his profession generally, is mistaken; and why should the claim of others, however numerous, to be free from suffering the supposed nuisance of the expression of his thought overbear his claim to express his thought for what he believes to be the benefit of the public?

An answer may be made to these questions which is cogent enough so far as it goes. Within the political community a claim of the members, en­dorsed by a common conviction formally expressed in law and thereby registered as a fact, has the validity of a right, and a writer is thereby politically obliged to respect that right in his expression of his thought. But there is an answer to this answer.

The writer whose works are challenged on this ground may plead that there is something higher than political obligation: that his final obedience is due to the demand of that something higher, the cause of beauty or the cause of truth; and that political obligation accordingly ceases when it is contrary to that demand.

This plea, in effect, is a plea that political obliga­tion is conditional, and not absolute; due under certain con­ditions, when it does not clash with a higher demand, but not due under all.

We are thus confronted with the second of the problems raised at the beginning of this inquiry. Is political obligation, within its sphere, an absolute obligation, which is due under all conditions, or are there occasions and conjunctures in which a member of the community, or a group of members, are justified in refusing obedience, or in offering resistance?

Various grounds have been taken, in the course of the history of political thought, by those who have sought to find an answer. First (and this is the oldest ground) there is the ground of natural law. Here the contention advanced is that all positive enactments and admin­istrative acts contrary to natural law are null and void.

They may therefore be disobeyed; they may even be resisted, if an attempt is made to apply them by force. The paradox of this contention, if the term ‘natural law’ be interpreted strictly, is that it results in the proposition that law may be legally dis­obeyed. But the real gist of the contention is something less, or more, than that.

It is that law may be disobeyed justly, and that it is possible, in the name of justice, to disobey a law which does not express, as all law should, the idea of justice. This was the ground adopted in the American Declaration of Indepen­dence of 1776, with its appeal to the laws of nature and of nature’s God; and with some modifications it is a ground which,may still be defended.

There is less to be said for a second ground, which is that adopted by the Utilitarian’s at the end of the eighteenth century. On this ground the issue between the acceptance and the rejection of political obligation was reduced to a calculus of material utility.

Accord­ing to Bentham it was ‘allowable to, if not incumbent on, every man … to enter into measures of resistance . . . when … the probable mischiefs of resistance (speaking with respect to the com­munity in general) appear less to him than the probable mischiefs of obedience’.

By virtue of this calculus, as Paley frankly admitted, ‘the justice of every particular case of resistance is reduced to a computation’, with danger and grievance on one side and the probability and expense of redress on the other. There is little satisfaction to the mind in a computation of this order, which weighs the consequences but omits the cause.

More may be said in favour of the ground which is taken by the French jurist Duguit, when he argues for the limited and conditional nature of all political obligations. His contention is that all laws or other acts of the persons styled ‘governors’ may be resisted passively, defensively, and even aggressively, if they conflict with the Rule of Right (regle de droit) deduced from the basic fact of economic solidarity.

The ground thus taken enthrones Right above law, and makes the obligation of obedience to law con­ditional on the conformity of law to Right; but the Right thus enthroned by Duguit is only a derivative or expression of economic fact and process, or rather of a part of such fact and process.

Is there anything to add to these answers, or any way of draw­ing them together in a comprehensive view which does justice to the elements of truth they contain? We may begin by drawing a distinction.

(1) Within the State, and so far as con­cerns the State and its operation, there is an absolute and un­conditional obligation, incumbent upon its members as such, to obey a law duly passed by the legislature in conformity with the constitution, or an act of government duly done under a law so passed. Even here, however, and even within the limits of the State, obligation to a law is conditional upon its being in conformity with the constitution; and it may thus be contended that, in a strict sense, the only unconditional obligation is the obligation due to the constitution. The proviso is just; but it need not prevent us from laying it down that just as a law is unconditionally and absolutely valid when once it is duly passed in conformity with the constitution, so obligation to a law so passed is unconditional and absolute, within the State and in terms of the State.

(2) If we transcend the terms of the State, and take into view the play of Society and the activity of social thought in creating and developing the idea of a just order of relations, we have to amplify, or rather to qualify, our view of the nature of political obligation.

Upon the assumption, pre­viously made, that the socially created and socially developed idea of justice is the supreme sovereign, we are bound to admit that obligation, even to a law duly passed in conformity with the constitution, is after all in some sense conditional upon its squaring with the idea of justice.

The distinction which has just been drawn would appear, prima facie, to involve a contradic­tion. We seem to be saying in a breath that political obligation is unconditional and that it is, ‘in some sense’, conditional. What exactly is meant by the latter of these sayings? It is not meant for a moment that political obligation ceases, for a man or a group of men, when once they conceive that a law, or a set of laws, fails to square with the idea of justice entertained in their minds.

The view suggested is entirely different. Political obligation, as such, remains: indeed we may even say that, as such, and within the State, it remains an unconditional obligation. But a new and super-political obligation enters as soon as we take into our view the socially created and socially developed idea of justice: an obligation which we may call ‘social’, in the sense that it springs from Society and from the product of social thought.

This super-political or social obligation may conflict with, and be pitted against, the political obligation which exists in the area of the State. A dilemma then arises. What is to be done in this dilemma? What is the weight of political obligation, and what is the weight of the super- political, when the two are opposed to one another? How is the State to act to the ‘protestant’ who pleads against it the cause of justice, and how is the ‘protestant’ pleading that cause to act to the State?

Because political obligation, as such, remains, and because it remains, as such, absolute and unconditional, we may lay it down that in any case of disobedience or resistance to law, based on the idea of social justice and social obligation, it is the clear duty of the judge, in his capacity of judge, and of all the organs of government, in their capacity of organs, to enforce the established law (it is not their business to recognize, far less to enforce, any idea of justice other than that expressed in such law); and it is equally the clear duty of the disobeying or resist­ing citizen to obey, as a citizen, the established law, by accepting the legal consequences involved in his disobedience or resistance.

But because social obligation is also a fact, and because, to the ‘protestant’ penetrated by a conviction of its sovereign nature, it is the highest fact, it is also his duty to accept its demands and to offer his testimony to its sovereignty.

Here, however, a problem arises, which must always vex the mind of every serious and reflective ‘protestant’. If the higher obligation is social, how can a mere individual, relying on his own idea of justice, or even a group, relying on an idea enter­tained only by its members, defy the general run of opinion? Must not any challenge to established law be based upon, and be backed by, some measure of general social support? This difficulty disappears if we reflect on the nature of social thought and the process of its formation.

The process is one of the initial production, the subsequent discussion, and the eventual com­position, of a number of different ideas. Each individual, and each group, has something to throw into the pool of discussion in order to stir the waters. Sometimes the contribution must be made in pain if it is to achieve that stirring.

A group which feels its idea to be a vital element in any just order of relations will then feel bound to stake itself upon that idea: it will disobey, or even resist, any law to the contrary: it will seek, by the visible testimony of its disobedience and its acceptance of the legal consequences, to impress the value of its idea on others, to get it incorporated in social thought, to make it part of common conviction, and ultimately to secure its adoption as part of the law of the State.

Many causes have followed this way in the course of the centuries: the cause of the abolition of slavery, for instance, in the United States, and the cause of the enfranchise­ment of women in the United Kingdom. It is not, in itself, a way of revolution, though it may sometimes seem to approach the verge.

It is at once a rejection and an acceptance of political obligation: a rejection, so far as it denies that obligation on a particular issue: an acceptance, so far as it affirms it in general and on the whole, and so far as it attests its affirmation by facing and accepting the legal consequences of the partial denial.

In­deed we may almost say that resistance of this order is still in the area of debate, arid is a method of persuasion rather than a recourse to force. The resister puts his plea into the arena of debate, and stakes himself upon it: and if he invites the applica­tion of force to his own person, he does not seek to apply it to the persons of others.

But the resister who thus courts martyrdom (which in the original Greek from which it is derived meant the simple giving of witness, but with us has come to mean the giving of witness in and by the suffering of pain) can never escape the dilemma in which he is necessarily involved.

In following to the utter­most some idea which is part of himself he is also breaking, at some point, the scheme of political obligation which is also part of himself. Nor is that all. There is more in question than the breach of political obligation at a particular point.

The resister who defies a law is also disturbing (and incidentally encouraging others—less scrupulous than himself and more intent on private ends—to disturb) the general scheme of law and order, and the general validity of obligation.

He has therefore to ask himself whether the contribution which he may make to social thought about justice, by staking himself on the particu­lar idea he wishes to add, is worth the possible cost of distur­bance of the whole scheme of existing law and order, itself based upon and itself expressing the idea of justice.

This is to make a calculation, and as such it is something like—and yet also very unlike—the calculation of which Bentham and Paley wrote. It is like, in so far as in either case mischief has to be measured against mischief: it is very unlike, in so far as the mischiefs to be measured differ greatly in the two cases—the mischiefs weighed in the one case being mischiefs to the cause of utility, and those weighed in the other being mischiefs to the cause of justice.

There is no simple rule for the weighing of the mischiefs of obedience against the mischiefs of resistance. There is only the general rule that weighing is needed in every case in which a conflict arises between political obligation and the obligation which is super-political. The weighing itself will differ according to time and place; and the decision will depend on the degree of stability of law and order existing in a given country at a given period.

The common love of use and wont, the strength of con­vention, the habit of tradition, are sometimes a sufficient guarantee of the stability of law and order; and where and when that guarantee is present, the electric disturbance of a new idea, pressed to the point of resistance, may serve to correct men’s tendency to settle down on the lees of custom.

On the other hand, it may well be said that the age in which we live is already sufficiently electric; and it may also be said that new ideas which are ready to appeal to force always introduce an incongruous and explosive element into the peaceful process of social thought and persuasion. This is only a ‘dusty answer’. But it is also the only answer which the mind can ever get, however hot for certainties it may be.

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