Civil Disobedience: The Concept and the Criteria for Admissibility

Abstract

The article examines the phenomenon of civil disobedience from the standpoint of justice. The views of foreign political theorists on civil disobedience are analyzed. It is concluded that foreign authors usually identify such criteria for the admissibility of civil disobedience as extreme necessity, probability of success, proportionality, correct motive, semi-communicative nature, publicity and non-violence of civil disobedience, and the readiness to be punished for it. Further, these views are criticized. The point of view is expressed that only extreme necessity and proportionality are convincing criteria for the moral justification of civil disobedience. In turn, the correct motive and semi-communicative character are justified as signs of civil disobedience, not as criteria for its admissibility. At the same time, non-violence, publicity and readiness to accept punishment are considered only as manifestations of the semi-communicative nature of civil disobedience. Further, the views of domestic jurists are analyzed. It is shown, in particular, that the widespread opinion among them, according to which violation of the law is permissible only in cases of obvious and extreme injustice of this law, is superficial, and does not take into account, for example, the case when a minor violation of the law is the only mean contributing to the correction of minor injustices, but does not undermine the rule of law as such. In addition, it refutes the positivist thesis that violation of the law cannot be admissible. Civil disobedience is justified by the understanding of the social system as “striving for justice”. It is argued that for a social system to promote justice, it must be both firm and flexible. It is concluded that the social norm is always a compromise between abstractness and concreteness: the relative abstractness of the law is an effective way to sacrifice concreteness as such (fair or unfair) in order to ensure at least partial justice. It is indicated that it is necessary to find the optimal balance of abstractness and concreteness, on the other hand, it is also necessary to determine the consequences of non-compliance with the law that does not correspond to the optimum.