2

Obligations

THE CIVIL RIGHTS and antiwar movements of the 1960s made sit-ins, mass protests, and civil disobedience campaigns daily news.¹ The dissent that came to the universities, particularly after the escalation of the war in Vietnam, politicized a generation of philosophers.² By the mid-1960s, they had formed a circle around Rawls. In the period of postwar calm, Rawls had tried to abstract from politics, to find fundamental concepts to capture institutional realities. Now a growing number of moral, legal, and political philosophers looked for a philosophy of “public affairs” that could be relevant to the politics of the draft, the campus, and the war.³ They asked whether the framework that provided an objective basis for ethics to judge the justice of institutions could also be used to guide the political action and moral decisions of individuals. Could a theory designed to preserve stability, born in the shadow of one war, be used to legitimize dissent and constrain the next?

On one level, Rawls continued to envisage the contribution of philosophy to politics as guiding long-term institutional reform. But he also joined a growing number of other philosophers who sought a theoretical framework to guide action in the short term. At the height of the antiwar movement, a group began to meet monthly in New York and Cambridge, Massachusetts, to work through what philosophy might say about the ethical problems that the civil rights movement and Vietnam War raised. They called themselves the Society for Ethical and Legal Philosophy (SELF). Early participants included, among others, Rawls, Michael Walzer, Robert Nozick, Thomas Nagel, T. M. Scanlon, Owen Fiss, Ronald Dworkin, Marshall Cohen, Frank Michelman, Judith Jarvis Thomson, Gerald Dworkin, and Charles Fried.⁴

SELF’s members developed the intellectual and ideological frameworks that structured political philosophy during the era of its remaking. In early meetings, they read drafts of Rawls’s work on justice and Walzer’s essays on obligation. They responded to political events by formulating philosophical solutions to problems of war, action, and moral responsibility. They asked what the defense of individual liberties and rights justified, and what actions individuals could take against the state or in its name. In their answers, an account of agency emerged that matched Rawls’s vision of institutions. These philosophers also played powerful roles in establishing institutional spaces for this newly politicized philosophy. By May 1969, the Society for Philosophy and Public Affairs, a division of the American Philosophical Association, had been formed. Two years later, Cohen, Nagel, and Scanlon founded the journal Philosophy and Public Affairs (PPA), which became the discipline’s gatekeeper. By the end of the decade, their debates had forged the conceptual priorities of a new approach to political philosophy. They had also created the conditions for the reception and dissemination of Rawls’s theory and the subsequent construction of liberal egalitarianism.

As philosophers, they were drawn to the most puzzling problems. Like Rawls, they were skeptical of intuitionism and looked to solve such problems by appeal to evaluative frameworks and principles. But which political dilemmas counted as puzzling? In the early 1960s, Rawls wrote that the injustices of Jim Crow were not a topic for philosophical discussion. The morality of Jim Crow was clear-cut in its brutal injustice. Desegregation generated no philosophical problems, only “implementation” ones, about how best to secure justice.⁵ The circle around Rawls was more concerned with what Isaiah Berlin declared the “most fundamental of all political questions”—the problem of political obligation, and its mirror, disobedience.⁶ Ethical philosophers concerned with finding a moral basis for the rules of society now looked for a moral basis for breaking them. At the start of the decade, legal philosophers and political theorists developed rival theories of obligation using the tools of linguistic analysis. As the New Left and the antiwar movement grew in strength, a number of theorists, notably Walzer, explored a range of approaches to the problem of obligation, engaging with debates about citizenship, dissent, and the draft. Some of these approaches were permissive of dissent and leaned toward radical critiques of the state. Yet the social upheavals of the latter years of the decade made liberals more concerned with preserving and stabilizing the legislative victories of the early civil rights movement and the Great Society programs of 1964–1965. By the decade’s end, Rawls, Dworkin, and others had settled on a philosophical solution to the problem of civil disobedience that carved a distinctive path through the rapidly changing political landscape in which radicalized protest movements and increasing black militancy faced state repression justified by appeals to law and order.⁷

Civil disobedience was the “public affair” that became a template for philosophical treatments of political action and the obligations of citizens. In debates about its definition and justification, these philosophers reconfigured the liberal attitude toward the state, as well as the relationship of philosophy to law. After the Second World War, the legitimacy of the state had been at a high.⁸ Despite the rise of civil rights protests and other forms of dissent over the subsequent decade, the repressive apparatus of the Cold War national security state had forged and maintained the loyalty of citizens.⁹ Few liberals questioned political obligations to the state, and most defended a species of constitutional democracy that prioritized stability and consensus even as they questioned state overreach.¹⁰ But as the “myth of full citizenship” was challenged by the black freedom movement and its legislative successes, liberal ambivalence about the state changed in character.¹¹ The state emerged as the guarantor of a more inclusive citizenship. In this era of the Warren Court and the Great Society, social and racial liberals saw the American state as full of renewed promise and defended it against localist proponents of states’ rights and segregation.¹² They viewed an activist judiciary responsible for civil rights landmarks as the architect of a “rights revolution” and a defender of a court-based constitutionalism.¹³ The uses of constitutional law as a conservative force to protect business were forgotten as the history of the New Deal was rewritten as a victory of social and constitutional liberalism.¹⁴ In this context, liberal philosophers still tended to defend stability. Many repurposed the anti-interventionist metaphor of society as a game in defense of a constitutional stability in which the state was guarantor of liberty and equality, and citizenship entailed playing by the rules. Yet they looked for new ways to hold the state to account for its other failings. For the state that secured civil rights remained the warfare state.¹⁵ Rawls’s theory of justice had been one philosophical strategy for judging that state’s moral limits. Civil disobedience was another, and philosophers of justice soon became theorists of disobedience too.

The debates about disobedience were also one vehicle through which philosophers moved to the terrain of constitutional law. In the 1950s, “process” theorists of law who rejected legal realism, sociological jurisprudence, and judicial activism had reframed the Supreme Court as a “forum of principle” in which neutral principles and fair processes guided decision-making and law was separated from politics.¹⁶ The generation of lawyers raised with the Warren Court were more optimistic about the Court and wanted to endow its principles with normative force in order to restrict future judicial decision-making and maintain the role of the judiciary as an instrument of liberal change.¹⁷ Such ideas provided a structure of judicial decision-making that paralleled the philosophical appeal to a system of principles. This primed lawyers to see an opportunity in Rawls, whose own concern with limiting state power set the terms for the broader philosophical engagement with constitutional law.¹⁸ The philosophical and legal search for principles became intertwined.

This had various consequences for political philosophy. In the years that followed, the concerns of the Supreme Court increasingly determined what counted as a political problem worthy of philosophical focus. More subtly, ideas that were amenable to constitutional theory took priority over other forms of political thought. By the end of the 1960s, liberal theorists of obligation and political action appealed less to ideas of citizenship and society than to moral and constitutional principles. Liberal philosophers conceived the relation of state to society in individualist terms and appealed not to constitutive rules but to a quasi-constitutional morality or set of rights beyond them. As Rawls published his theory in article form throughout the 1960s, philosophers began to use it to address these problems. Their debates in turn shaped Rawls’s thought as he completed A Theory of Justice. In light of the growing civil libertarianism of American liberalism, he reconceived his ideas about stability and order in constitutional democracies and the relationship of moral persons and the rules of the game. Individual persons had long been the currency of his theory. Now individuals became central in their capacity as agents.

Yet though Rawls introduced ideas about political action into his theory, he circumscribed its definition and role, in part because of his commitment to the postwar vision of consensus. Rawls disconnected ideas of agency from those of redistribution. This not only was true of his account of civil disobedience but also signaled the emergence of a broader philosophical division of labor. Liberal philosophers developed a particular interpretation of the protests against the postwar liberal order that rendered dissent compatible with stability. This interpretation, particularly of the civil rights movement, had lasting effects on liberal philosophical understandings of social change.¹⁹ Meanwhile, many philosophers came to accept the principled vision at the heart of Rawls’s theory, even as they took for granted the broader apparatus of moral psychology and decision procedures born of the search for objective ethical foundations. Rawls’s principles of liberty and equality began to stand alone. Generalized and elevated, they applied to actions as much as institutions. But what would count as a legitimate form of action was constrained from the start. The faith among philosophers that their theories might improve the world grew. At the same time, they limited political philosophy’s horizon of political possibility.

In the early 1960s, the sit-ins against segregation in the South and later the New Left campus protests made the legitimacy of civil disobedience a national controversy. The meaning of civil rights, obligations, the law, and the courts were in dispute.²⁰ Philosophers were relatively slow to turn to the problem of the obligations of democratic citizens. When they did, they drew from a particular set of debates in law, philosophy, and political science that took place in the previous decade. These debates were facilitated by funding from the Rockefeller Foundation and flourished in new organizations like the American Society for Political and Legal Philosophy, which counted Carl Friedrich, Lon Fuller, Richard Brandt, and Rawls among its early presidents.²¹ Analytical ethical theory had then taken a normative turn, as ethical philosophers looked to questions of rights and distributive justice and used philosophical tools in new political circumstances.²² Rawls had taken the cue for his idea of practices, which underpinned his vision of the basic structure, from debates about rules, promise-keeping, excuses, and how to justify breaking promises “if everyone did it.”²³ Now these became an entry point for discussion of obligation and the question of whether disobedience to law could be justified.²⁴ The most common philosophical answer was that it rarely was. With the civil rights protests gaining national attention, most philosophical accounts of obligation still did not legitimate much dissent.

The most influential conception of legal obligation of this moment was not introduced by an American jurist but by the Oxford professor of jurisprudence H.L.A. Hart. Hart had spent a year at Harvard’s philosophy department and law school in 1955. When he gave the Oliver Wendell Holmes lecture that year, he defended the separation of law and morals, provoking a furious reply from Lon Fuller. The ensuing debate entrenched battle lines between natural law theories, which collapsed the distinction between law and morality, and positivism, which kept them apart.²⁵ Hart was dubbed the inheritor of Hans Kelsen’s pure theory of law. He was also trying to carve out a jurisprudence that challenged the legal realist focus on a judiciary with wide discretionary powers, the resolution of disputes, and the economic functions of law. He tried to remove law from the domain of administration and give morality its due, even as he maintained its separateness from law.²⁶ In a series of articles and in The Concept of Law (1961), Hart drew from linguistic philosophy to develop a social liberalism of rules, practices, and fairness. Where natural lawyers reduced illegality to immorality, Hart explored how legal arrangements entailed various rights and obligations.²⁷

Hart distinguished between special rights, created through promises and contracts, and general rights, which flow from the obligations of reciprocity that exist between citizens.²⁸ Neither the threat of coercion nor habits of obedience were enough to create a legal obligation; that obligation depended on the rules and practices of a given group.²⁹ The obligation to obey the rules of society, Hart suggested, arose from individuals’ voluntary acceptance of the benefits of that society. Those who accept the benefits have a duty to do their part, as a matter of “fair play.” After Hart introduced this account of obligation in 1958, many recognized that it complemented the vision of society as a game or practice. As one philosopher reflected, it provided a view of consent through “participation,” an alternative to consent given through “contract.”³⁰ Obligation here was based on the fairness of the rules and was owed to fellow players in the game. If the rules are fair, and if all play the game and obey the law, each has a duty not to take advantage of the compliance of others by free-riding.³¹

This was a view that prioritized stability, though its liberal proponents like Hart insisted that it need not imply a conservative acceptance of consensus. Navigating the demands of stability and consensus and the claims of individuals against the majority and the state was a liberal preoccupation. For Hart this manifested in his debate with Patrick Devlin about whether the law should enforce an existing moral consensus. Provoked by the 1958 Wolfendon Report on the criminalization of homosexuality in Britain, Hart defended a realm of “private morality” into which the law should not intrude.³² In the United States, the right to privacy was fast becoming a civil libertarian rallying cry.³³ But the challenge to majoritarian stability came from other quarters. The practice view limited the possibilities for justifying individual disobedience of law.³⁴ It was difficult to discriminate between particular unjust laws: if society was a game, breaking the rules meant you stopped playing the game. Hart’s conceptual tools may have been novel and his orientation liberal, but the priority of stability that those tools supported was of a piece with the contemporary delimiting of the space of justifiable disobedience. The choice seemed to be between general resistance and complete obedience. When the question was posed this way, the answer tended toward obedience. The metaphor of the game was invoked in defense of stability.³⁵

The political case for civil disobedience, however, was becoming harder for liberals to ignore. The campaigns of anti-nuclear protesters and the movement for decolonization led some to contemplate the legitimacy of protest, but it was the civil rights sit-ins that sparked the search for a system for evaluating the morality of obedience.³⁶ At a panel titled “Political Obligation and Civil Disobedience” at the 1961 meeting of the American Philosophical Association, the philosopher Hugo Bedau insisted that the appeal to individual conscience could not justify disobedience.³⁷ Franz Neumann had recently argued that there could be no science of conscience, no “universally valid statement” dictating when acts of conscience were justified.³⁸ But Bedau saw such a philosophical treatment of obligation as necessary. Conscience alone was too permissive a justification.

Rawls rose to the challenge. At a “Law and Philosophy” symposium in New York in 1963 organized by Sidney Hook and attended by ethical theorists, lawyers, and theologians, including William Frankena, Kai Nielsen, John Courtney Murray, Herbert Wechsler, and Wolfgang Friedmann, Rawls showed how his own, and Hart’s, account of fair play could be the basis of a theory of obligation.³⁹ He framed the moral obligation to obey the law as a special case of the general duty of fair play.⁴⁰ Unlike our duties not to commit certain kinds of criminal offenses—duties that arise independently of our participation in social institutions, like the duty not to harm other persons—legal obligations arose from our acts. In a fair practice, those who accepted the benefits of the practice have to do their part when their turn comes. Obligations were interpersonal, owed to participants in the scheme. They had their origin in Rawls’s account of morality and the recognition of persons, and in what persons owed to one another.⁴¹ Such duties applied to all persons, and to all participants who received benefits, in many different kinds of practices and associations. They took the form of legal obligation in the context of the basic structure of society, where they arose also because of participation.

Here Rawls adapted Hart to his own constitutive notion of practices, in defense of constitutional stability. The fair rules were not merely formal but encompassed the ethos they constituted: they were the institutions of society in its broadest sense, in spirit as much as letter. Crucially, for the duty of fair play to apply, it was assumed that the social system, embodied in its constitution, was just. Given the justice of institutions, Rawls thought that if policies and laws were supported by the majority and were roughly in accordance with the constitution underlying those institutions, then citizens were obliged to obey them. That was true even if individual laws were unjust. Participants did not have to believe the laws were right. Their conscience might tell them otherwise. But the stability of the system depended on their accepting them.⁴² Majority decisions had to be abided by, not because they were majority decisions but because the underlying system was just and participants benefited from it. Rawls stressed his opposition to utilitarianism. Even if more good would come from disobedience, adherence to a just constitution trumped concerns with utility: we could not excuse “ourselves from a duty of fair play by an appeal to utility.”⁴³ Once part of a fair practice and receiving the benefits of our cooperation in it, we had to play by its rules.

In his preparatory notes for this essay, Rawls—still trying to draw out the implication of his conception of rules and practices—was more concerned with income taxes, voting, penal law, and religious toleration than civil disobedience.⁴⁴ The duty of fair play, he had written earlier, was “analogous” to Locke’s “tacit consent.”⁴⁵ As such, there were cases when citizens, finding themselves part of a minority who were being deliberately disadvantaged, would no longer be obligated by the duty of fair play. In such cases, that minority might be in a situation where civil disobedience was the appropriate course of action. This had obvious resonances: it showed how Rawls’s framework could accommodate the civil rights protests. Some philosophers, like the legal philosopher Richard Wasserstrom, who was later a member of the Civil Rights Division of the Department of Justice, had done so explicitly by framing the immorality of segregation as an injustice sufficient to justify disobeying the law, and the racial discrimination in the South as a “denial of human rights.”⁴⁶ Rawls’s argument had a different emphasis. Blacks were not receiving the benefits of participating in a practice as whites did, and so, like other minority groups disadvantaged by laws (religious groups were another example), they were released from duties of fair play and the obligation to obey unjust laws. This was Rawls’s attempt to preserve his view of society as a cooperative practice, a system of reciprocity with a core of consensus embedded within it, while also recognizing the injustices faced by African Americans.⁴⁷

The civil rights movement did not feature centrally in Rawls’s account of obligation here. Though he elsewhere described racial injustices as severe enough to render philosophy useless, he did not mention them directly within the discussion of obligation.⁴⁸ Later commentators would point out that Rawls’s description of a society that still encompassed Jim Crow as a potential, if not actual, system of reciprocity betrayed a faith that American institutions in principle approximated justice, and that it was possible to separate American values from its system of racial injustice.⁴⁹ The problem for Rawls was not the underlying system or its morality, but the unjust distribution of benefits and burdens. Rawls did not say so, but one implication of this view was to conceive of the United States as a just system of practices, with an anomalous and exceptional injustice in the distribution of its benefits. His argument suggested this injustice was not in itself sufficient to threaten fundamental constitutional stability. The problem was not white supremacy but an unjust system of “racial separation.”⁵⁰ Like many other liberals, Rawls probably assumed that this was in the process of being rectified. This presumed trajectory of incremental reform, inclusion, and integration was of a piece with his broader belief that society could tend toward justice if the right social rules facilitated the natural tendencies of moral persons. But Rawls did not explore what actions were legitimate to hasten this reform. This was remarked on by contemporaries: to the other symposium attendees, his account posited a remarkably high threshold for legitimate protest.⁵¹ Displeased at their response, Rawls went back to the drawing board.

Rawls remained committed to the reciprocity view of society. But it was under attack. In the first half of the 1960s, the revolt against corporate liberalism and managerial conformity inspired a degree of convergence between social liberals, the labor left, and the New Left, as many challenged the liberal consensus vision and defended the new age of protests against it.⁵² The Marxist New Left invoked Gramsci to argue that the appearance of consensus was a function of ruling-class hegemony within civil society.⁵³ Some appealed to “the autonomy of individual conscience” or the “conscience of men” in communities as weapons in the battle for authenticity against mass industrial society, consumerism, bureaucratic rationalization, and the “soft totalitarianism” of the American state.⁵⁴ On the centennial of his death, Thoreau’s vision of conscience as the final court of appeal was regularly invoked.⁵⁵

During the Berkeley Free Speech Movement (FSM) of 1964–1965, the critique of liberalism from the point of view of a defense of participatory democracy was given theoretical support by the political theorists later known as the Berkeley School—Sheldon Wolin, Norman Jacobson, Michael Rogin, John Schaar, and Hanna Fenichel Pitkin. They defended the space of the “political” against the encroachment of technocratic bureaucracy and its ideological embodiment in “behavioralist,” “value-free” political science.⁵⁶ At a conference on “law enforcement and racial cultural tensions” in 1964, Jacobson described civil disobedience as justified by the “quality of participation within the civil polity.” Where the opportunities for “self-government” fall short, where citizens cannot assemble in a “political space” within which their speech can be heard, they must seek it. Civil disobedience was a way for citizens to “educate” each other about their obligations.⁵⁷ Jacobson and others rejected both consensus theory and the liberal view of obligation and consent found in the Cold War revival of Lockean contract theories. In the wake of the Free Speech Movement, their resistance to the naturalization of these ideas as liberal common sense became part of a broader effort to reorient political education in the universities, and the politics of political science.⁵⁸

In “Obligation and Consent” (1965–1966), Pitkin used the tools of linguistic philosophy to show that these contract and consent theories failed to make sense of political practice. She argued that, in fact, few people give the actual consent necessary to ground obedience to law. Faced with this, consent theorists inadvertently severed obligation from consent: they acknowledged that only some citizens give their consent in a modern state, but nonetheless saw them as owing obedience anyway on grounds that they benefited from the “tutelage” of government.⁵⁹ Consent theory collapsed into a theory of “hypothetical consent,” where the legitimacy of government derived not from actual consent but from being the kind of government that people would consent to.⁶⁰ This fell short as an account of obligation. It envisioned individuals as isolated units and saw promises and obligations as self-assumed. Invoking earlier philosophical debates, Pitkin argued that particular promises presupposed the social practice of promising. Individuals had to be understood as already social, as acting within institutions and rules. If someone wants to be the exception to the rule of keeping a promise and asks why he is obliged to promise, he is told that this is how promises work; this is what it means to keep a promise. He can refuse to keep a promise, but that would mean he is refusing an obligation. This also held in situations of political obligation.⁶¹ The person who wants to be the exception to the rule can disobey, but “in the absence of excuses or justifications you violate an obligation when you do so.” If an authority is genuine, if a government is legitimate, then we are obliged to obey because that is what it means for genuine authority to exist.

Pitkin thought philosophy could go no further than this. The attempt to find principles that were the source of the obligation to obey was “a symptom of philosophical disorder.” There could be no principle that guides in every case: adapting Wittgenstein, Pitkin wrote, “there are a hundred reasons; there is no reason. There is no absolute, deductive answer to the question ‘why does any promise ever oblige?’ beyond calling attention to the meaning of the words.”⁶² Yet she insisted this did not entail a defense of the status quo. Here she used Rawls’s account of practices to reverse the conservative tendencies of the practice view. She read him as suggesting that obligations could be challenged at the level of excusing ourselves from obligations in a particular case (by reference to conflicting obligations, for instance) and at the level of the institution itself (the practice of promising). Pitkin added another level: “Sometimes we may refuse to obey neither because our particular case is exceptional, nor because we question such obligation categorically, but because the one who is claiming authority over us does not in fact have [it].” Yet there was no easy way to decide whether resisting authority was right. We all have to act, and “no theory or God or Party can get us off the hook.”⁶³ This was not merely a matter of conscience: “We may resist a government that has become tyrannical not as a special, personal exception, and not because we are against government, but because this government no longer deserves obedience.”⁶⁴ Pitkin’s analysis suggested a view of obligation where general authority might be questioned more easily than particular laws. The normative implications of the practice view were reversed. In a choice of obedience or revolution, the latter might well be justifiable. But philosophy could not tell you when.

At the midpoint of the decade, defenders of dissent looked ready to give up on philosophy and embrace an all-or-nothing view of obligation that saw the waning authority of the capitalist state as sufficient justification for lawbreaking protest. This was anathema to liberals. Rawls’s search for evaluative moral frameworks was directed against such skepticism about philosophy. Yet Rawls had not yet brought the apparatus of his theory of justice to bear in full on political events. This would change rapidly. After the passage of the Civil Rights Act of 1964 and Voting Rights Act of 1965, and as the effects of the Vietnam War were felt in the universities, liberals looked to the conceptual challenges and opportunities raised by war.

The escalation of war brought new controversy around the draft.⁶⁵ In December 1966, Rawls led a faculty motion at Harvard to condemn as unjust the “2-S” deferments that allowed students to avoid military service. A month earlier, Rawls and Walzer had called on the faculty to reject the “inequitable” deferments. Their motion was denied and tabled on grounds it was “an ‘abstract’ matter.”⁶⁶ Rawls persisted. The following month he secured a debate on a resolution that the university make known to any “public or private” agencies the faculty’s opposition to both student and teacher deferments. That resolution was signed by many of Harvard’s most prominent philosophers and political theorists, including Stanley Cavell, Roderick Firth, Carl Friedrich, Stanley Hoffmann, Harvey Mansfield, Hilary Putnam, Judith Shklar, and Morton White, and the economists supporting it included Samuel Bowles, Stephen Marglin, and Lester Thurow.⁶⁷ The resolution bore Rawls’s fingerprints.

“Conscription,” Rawls declared on behalf of the group, was a “drastic interference with the basic liberties of a free society,” only justifiable by demands of national security. Where it was necessary, its burdens had to be distributed fairly. Under the deferments system, the “hardships and risks” of war were disproportionately shouldered by “the poor, the less intelligent and the less well educated.”⁶⁸ Instead of the “inequities” of the deferments system that privileged the affluent, Rawls advocated the equal subjection to universal conscription. This provided an alternative to deferments and to a lottery system, which would cause African American men a “double injustice”—in the draft and in the “background sociological conditions.”⁶⁹ Rawls objected to the recommendation that the military be used to resolve the “problem” of black unemployment found in the infamous 1965 Moynihan Report. (Given Rawls’s view of the family as a site of potentially unmediated morality, his optimism about integration, and his attempt to go beyond the cultural and pathological focus of the ascendant “culture of poverty” discourse, he may well have objected to the report, which described the “tangle of pathologies” of the black family as a threat to racial and economic equality, on other grounds too.)⁷⁰ He insisted that the benefits and burdens of participating in a practice should not track the privileges bred by social contingency and natural fortune, which “disproportionately” affected the “poor and racially discriminated against.”⁷¹ They should be divided up in a fair and just way.

The protest against deferments was an objection to the inequity and unfairness of the draft’s implementation. Rawls defended his racial liberalism and tried to show how his principles of justice could judge the distribution of burdens and benefits shaped by particular policies, as much as the institutional framework of the basic structure. But as conscientious objection and draft refusal spread from the Catholic left to students and their liberal professors, those concerned with student protests looked beyond distributive concerns to the legitimacy of civil disobedience, this time in the context of conscription. Conscription had once been a crucial part of a Progressive vision of citizenship, but in the interwar years it had become a civil libertarian rallying cry for anti-statists.⁷² Now, antidraft sentiment united liberals, left and right. In 1966, with national deferments policy under review, the National Conference on the Draft brought together those on the socialist and anti-nuclear left with Barry Goldwater supporters, including the economist Milton Friedman, to generate proposals for a volunteer army.⁷³ When the National Student Association declared its opposition to the draft, the battle became national.

For many, the question was a legal one. The “conscientious objector” (CO) had long been a protected category, but it only applied to those who rejected war in all its forms on religious grounds. In United States v. Seeger (1965), the clause that required belief in a “Supreme Being” had been deleted, thus expanding the definition to include views derived from a “sincere and meaningful belief” that occupied the same place as God. That still excluded most who objected to the Vietnam War—both those who appealed to religious doctrines that were not pacifist but who distinguished between different types of war (Catholics who appealed to just war theory), and those who claimed their secular consciences should be recognized as equal to their religious peers.⁷⁴ The definition of CO continued to be contested throughout the war, both in the courts and by the National Advisory Commission on Selective Service. The latter debated the expansion of the CO definition to apply to the “selective conscientious objector” (SCO)—objectors who did not oppose all wars, but only specific wars. That extension was rejected in the commission’s report, In Pursuit of Equity: Who Serves When Not All Serve? (1967), but the American Civil Liberties Union (ACLU) continued the campaign to expand the category.⁷⁵ The redefinition of “conscience” in secular terms became a call to arms, even for many who were not explicitly antiwar.⁷⁶

In this context, a civil libertarian approach to civil disobedience blossomed. It focused on conscience and attempted to accommodate civil rights protesters and conscientious objectors in a single framework. In 1961, Bedau had written that “anyone commits an act of civil disobedience if and only if he acts illegally, publicly, nonviolently, and conscientiously with the intent to frustrate (one of) the laws, policies or decisions of his government.”⁷⁷ His definition was taken up by lawyers and ethical philosophers who rallied to help the ACLU draft public statements. In 1965 at Michigan, Carl Cohen and Arnold Kaufman, the New Left philosopher and intellectual founder of the “teach-in,” penned an ACLU working paper on civil disobedience that emphasized conscientiousness and publicity.⁷⁸ Bedau insisted that a civilly disobedient act should only be taken where “legal devices” for “redress of grievances” do not exist or have been exhausted.⁷⁹ Rawls, revising his earlier account, presented the same definition at the American Political Science Association meeting of 1966. Martin Luther King Jr.’s 1963 “Letter from Birmingham Jail” began to be widely invoked as making a similar claim.⁸⁰

This condition of last resort was widely accepted among liberals, but the question of the aim of disobedience was more vexed. Did civil disobedience have to shore up the constitutional order, and was it a way of testing the constitutionality of a law by breaking it? To answer these questions, many drew from a tradition that canonized Socrates, Thoreau, Gandhi, and King, according to which civil disobedience was an expression of fidelity to law.⁸¹ This was an interpretive feat: it involved squeezing these figures into ill-fitting liberal categories and reducing civil disobedience to a highly individuated act of belief.⁸² Legitimate challenges to legal order were tightly restricted either to questions of valid law and unconstitutionality or to what the appeal to conscience or higher law could justify within those bounds.

Amid these debates over law and conscience, Michael Walzer introduced an approach to obligation that sought to straddle the legal and philosophical debates and the New Left critique of the state. By the later 1960s, Walzer was involved with the SELF group that formed around Rawls. It was there, he recalled, that he got his “philosophical education.”⁸³ The rest of that education had been distinctive. As an undergraduate at Brandeis, Walzer met Irving Howe and Lewis Coser, the founders of the magazine Dissent, and quickly became a contributor and later editor. He arrived at Harvard as a graduate student in 1957, having spent a year at Cambridge alongside the early New Left circle around Universities and Left Review. Political theory at Harvard was then closely tied to comparative politics and combined the history of ideas and institutions with a practical focus: many of Harvard’s theorists worked as government advisers, constitution drafters, or Democratic Party activists.⁸⁴ Walzer followed in this tradition. Like Shklar, briefly his teacher and for many years his colleague, he developed psycho-social explanations of political action that shared much with the “Harvard School” style use of history and psychology to make normative arguments, which itself reflected the broader postwar emphasis on psychological argument and behavior.⁸⁵

Walzer’s writings were also inflected with ideas drawn from his teachers, who included Samuel Beer, Louis Hartz, and Barrington Moore Jr., and from the democratic socialist tradition. He wrote regularly about social movements, like the Freedom Rides into the segregated South in 1961, and he was involved in the Cambridge New Left Club and local antiwar politics.⁸⁶ As the decade wore on, he positioned himself as a voice from the old left speaking to the new and was critical of the latter’s supposed individualism, lack of discipline, and failure to build a mass movement.⁸⁷ But though Walzer’s political views were explicit, they were also hard to pin down. His work was initially characterized by a pluralism, by an attention to psychic experience that crossed non-Marxian ideas of alienation with liberal categories of anxiety, and by a confidence in participatory politics. After 1967, Zionism shaped his ideas about group life in stark ways. Walzer remained a strong advocate of group commitment and sometimes romanticized the intellectual and political discipline it required.

Walzer’s account of obligation, which he developed in a series of essays for Dissent and in classes at Harvard between 1966 and 1970, was a hinge in the debates on the subject. He did not look to ideas of fair play, conscience, or contract to explain obligation, but to consent. The modern state, he wrote, was the “triumphant solution to the problem of governing a society of strangers.” Within its “impersonal administration, its equality before the law, its due process,” citizens were “nameless aliens” for whom self-government was more fiction than reality. The most plausible way of explaining obedience was through tacit consent, but that generated problems: did mere residence in a territory generate obligations to obey? Walzer thought liberals got around these complications by assuming that the absence of express dissent could stand in for express consent. By seeing commitment and consent wherever there was silence and wherever there was not revolution, the significance of citizen actions that fell between these poles was denied.⁸⁸ It forced a choice between complete obedience and revolution or, if those failed, emigration. For Walzer, recent attempts to save consent theory, however, had failed.⁸⁹ They equated citizens who have not given consent with children yet to gain maturity. New contract theories like Rawls’s, and the theories of hypothetical consent Pitkin identified, avoided this difficulty by tying obligation to the receipt of state benefits. But they only explained “negative duties,” not active obligations. To prioritize democracy, Walzer reversed the causality. The justice of a government does not mean that we have consented. It is our consent that makes the government just.⁹⁰

Consent theory was Walzer’s way of allocating agency, his alternative to what C. Wright Mills called the “outdated ‘labor metaphysic’” of working-class politics.⁹¹ It prioritized a version of the common man, the democratic citizen—citizens with their personal histories, made up by “trains of consents,” going about their “everyday” lives. Consents, here, were “commitments to other people,” or “to principles or parties or political institutions that arouse expectations in other people.”⁹² Obligations were owed to fellow citizens and to the small groups that made up social life. Thus, for the pluralist citizen, “citizenship is one of his obligations,” Walzer wrote, “but only one.” The receipt of benefits from a distant state could not create an obligation to fight, and die, for that state. At a conference on political obligation in 1967, he argued that since modern citizens who do not give full consent to the state were alienated, akin to “resident aliens,” they were not obliged to serve.⁹³

Even as liberal theorists looked to the constitution, state, and courts to protect civil rights, the renewed association of the state with its war-making capacities invigorated democratic critiques of state power. Walzer was no exception. Pluralism was one language for these critiques, and Walzer’s pluralism had distinctive consequences for his account of obligation.⁹⁴ Rawls’s pluralism had focused on family, church, and firm. With the decline of union strength and the status of industrial pluralism under legal pressure in the courts, Walzer’s primary associations remained the sect, the union, and the social movement.⁹⁵ In Rawls’s rendering of interpersonal, pluralist life, there was a smooth transition between associative duties and the obligation to obey the law. The community was folded into the system of practices, and the state into civil society. For Walzer, there was no smooth transition between the small moral community and the state, but a clash; what Rawls blurred together, Walzer prized apart. Interpersonal obligations did not translate into obligations to play by the rules. Even if the state existed to protect citizens (as Walzer thought the welfare state did), their obligations to it were less strong than the ties to their fellow citizens, friends, and comrades. They were bound to the state only by the benefits they passively receive. Not only were these bonds far weaker than the bonds of active commitment that tie citizens to each other, but the latter did not flow into the former. Walzer’s citizens did not fully admit the “political sovereignty or moral supremacy of the larger society of which they are members.”⁹⁶

A number of radical implications followed from this, particularly about conscription and the modern state. Walzer rejected the view of conscription as a necessary burden of citizenship. In a society where consent was express, universal conscription would be democratic. But if citizens were alienated, “conscription, except in cases of social emergency, is nothing more than impressment.”⁹⁷ The idea of a moral obligation to fight as a citizen no longer held. Older democratic ideals might work in a small democratic and militarized state. But they could not work in the United States: the obligation to serve could not be glossed by an appeal to community. Looking back in 1971, Hugo Bedau took this argument further. He suggested that the idea of the obligation to serve was itself a product of the mass military and the imposition of draft laws. Is it not more likely, he asked, “that the presence of the draft in our midst explains the talk about our obligation to serve, rather than being explained by that alleged obligation? Is it not that the permanent military establishment in this nation encourages moralistic belief in our obligation to military service, rather than that our sense of obligation causes us to create our permanent military establishment?”⁹⁸

The warfare state had transformed the nature of obligation. These Tocquevillian and Weberian worries about the expansion of the state and bureaucratic power now joined a New Left discourse about the crisis of authority afflicting both state and constitutional legitimacy. Alongside the antiwar and civil rights movements’ embrace of radical anticolonial critiques of neocolonialism and militarism, worries about the decline of authority and the corruption of society would be used to justify forms of resistance that went far further than draft refusal.⁹⁹ The “political environment” of the “technocratic age,” wrote the political theorist Wilson Carey McWilliams, had much in common with a “tyrannical situation” of old, though the present tyranny lay not “in the corrupt will of a tyrant” but in “the environment of life.”¹⁰⁰ In this situation, civil disobedience had to be twinned with what Kaufman called “confrontation” and other “disorderly surrogates” as part of a political strategy of “radical pressure.”¹⁰¹

These arguments pointed toward a broad account of justifiable dissent that criticized the delimiting tendencies of civil libertarian discourse. Walzer criticized the appeal to individual conscience on pluralist grounds. Conscience was never individual and always shared—“a form of moral knowledge that we share not with God, but with other men.” The debates about civil disobedience, Walzer argued, needed to move beyond “monologue to fraternal discussion.” Disobedience was best understood in terms of society’s different spheres, as the “acting out of a partial claim against the state.”¹⁰² Debates about extending the CO category were too legalistic. Legal protection was demanded for those who opposed war, or conscription, because “they believe war itself or this particular war to be immoral.” What mattered was not only whether the war was just but whether the citizen had actively chosen it and given actual consent. When a “democratic state goes to war,” Walzer wrote, it should be those “who have taken no part in the decision to go to war” who warrant “special consideration.” The right to refuse the draft in all wars should be less well protected than the right to refuse service in particular wars—which should apply to both citizens refusing the draft and to soldiers, not only to consistent religious pacifists.¹⁰³

Walzer departed from the liberal view that saw the agents in accounts of dissent and obligation as the conscientious individual and the state. His pluralism pointed to disobedience within corporations too, in particular to the sit-down strike.¹⁰⁴ Just as the understanding of civil liberties and the “expressive freedoms” did not in these years include the right to strike, the conceptual linking of civil disobedience with workers’ movements was also rare.¹⁰⁵ But some looked to the tactics of those movements. The philosopher Virginia Held called for alternatives to civil disobedience, which she saw as a highly individual form of action that, even when collective, did not derive its force from its collective nature. Held followed New Left critiques of corporate liberalism in analogizing the state and corporation. The unaccountability of corporate management was like the unaccountable officialdom of the expanded modern state. As such, the withdrawal of labor was the appropriate form of action in both spheres—a “citizen strike” could work like a strike.¹⁰⁶ Such ideas were increasingly common in the wake of the global 1968 protests. As many on the New Left abandoned the traditional vision of the working class, they theorized political resistance beyond the factory strike: in autonomist and anticolonial theories of the social factory and social wage, Black Power ideas of the underclass or “lumpen proletariat,” radical feminist accounts of women as a sex class, and defenses of global strikes based on withdrawing domestic labor and boycotting smiles.¹⁰⁷ Of these, the idea of the citizen strike was one vision that liberal philosophers might support.

Walzer took a different route. Instead of expanding the terrain of the strike, he used the strike to carve out a social realm where the state’s prerogative to define and punish civil disobedience was limited. Where a corporation was nondemocratic, “revolution” in that corporation—a strike—may be justified and could fall under the banner of “civility,” “so long as the revolution is not aimed at the state itself.”¹⁰⁸ “If democratic states choose to shelter corporate autocrats,” Walzer wrote in 1969, “then they must learn to shelter corporate rebels.” The state was required to get out of the way: Walzer invoked the voluntarist pluralist tradition of industrial democracy, in which the affairs of unions and businesses were not the concern of government.¹⁰⁹ Interference in the form of police repression was not justifiable, as Walzer implied it was in cases when the state itself is the target. Since corporate authority tends to have no democratic legitimacy, police may not be entitled to act against “men who violate the laws of the state solely in order to challenge the authority of the corporation.” The violation of property laws is not an act of revolution against the state, even if it is an act against the corporation. Such resistance is at once revolution in the corporation and civil disobedience in the state.

Despite his premise that an undemocratic state cannot command obedience, a tacit acceptance of the welfare state ran through Walzer’s writing. The state placed a “limit on group action.” Though pluralist commitments justified taking some obligations more seriously than others, bonds of membership within small groups could not justify total disobedience to a liberal state.¹¹⁰ So long as that state allowed citizens to honor their commitments and recognized their positive obligations, it remained legitimate.¹¹¹ The state was the guarantor of civil rights: in his account of African Americans as an oppressed minority with “no obligation at all within the political system,” Walzer blamed “popular” rather than state oppression.¹¹² Alienation and the “dangers of administrative tyranny” were not sufficient to justify resistance. He conceded that “residence” in a democratic state generated the duty to obey the law.¹¹³ Fair play arguments required citizens to accept unjust laws, on grounds that if the system of cooperation continued to provide benefits, there remained a duty to obey. Just as Rawls’s nonbenefiting minority was released from their obligations, so Walzer’s obligations varied in intensity and were mitigated by nonparticipation. The difference turned on what counted as participation: was playing the game enough to constitute participation in democratic decision-making? If the answer was no, Walzer’s “ethics of the oppressed” and his account of obligation pointed in a radical direction.¹¹⁴

Walzer backed away from these implications. After the disorders in Newark, Detroit, and elsewhere in the summer of 1967 and the assassinations of Martin Luther King Jr. and Robert Kennedy the following year, the sense that the nation was being swept by riots precipitated a backlash against the attempt to accommodate a spectrum of dissent. In the face of growing civil rights and antiwar militancy, debate about dissent took a conservative turn. Civil disobedience was condemned as the “destroyer of democracy.”¹¹⁵ Following the campus protests at Columbia, Harvard, and elsewhere in 1968–1969, Walzer insisted that his justification of revolution in undemocratic corporations did not apply to students aiming at democracy in his own corporation, the university, because universities were insufficiently authoritarian.¹¹⁶ His pluralism was shot through with implicit conditions like these—about what constituted not only the right kind of sect or union but the right kind of corporation to revolt against. Though he stuck to his pluralism in theory, he backed away from some of its practical consequences—particularly when he criticized the New Left (for a lack of tactics) and the radical and black nationalist groups of the later civil rights movement (for the wrong ones).¹¹⁷ The moment when political theorists tried to justify a broad range of dissent did not last long.¹¹⁸ As the democratic, pluralist, and New Left visions of dissent came under attack from the right, liberal philosophers introduced their own account of civil disobedience.

In 1969, a different liberal view of civil disobedience was consolidated. Walzer and Rawls had been circulating their accounts for some time, at conferences and SELF meetings. Meanwhile, the SELF legal philosophers, including Dworkin, Fiss, Marshall Cohen, and Michelman, began to look to justice theory to replace natural law as a ground of rights, liberties, and principles. Building from legal process theory, they argued that moral principles could guide decision-making (whether judicial or otherwise) and provide an objective basis for the rules of constitutional law—a set of principles outside (but to be interpreted by) the courts in a morality that existed within the constitution but had sources beyond it in interpersonal, communal relations. They began to put Rawls’s theory to work to answer the persistent problem of the relationship of law and morality, legality and justice.¹¹⁹ In so doing, they translated political problems into legal ones and crystallized legal perspectives within philosophy.

With the failure of arguments from conscience, many philosophers already critical of intuitionism came to think that “an idea of ‘justice’” might “be adopted to address political problems.”¹²⁰ This happened first in the debate over civil disobedience. Rawls, Dworkin, and Cohen published essays in quick succession. Rawls’s appeared in an anthology edited by Bedau that helped establish the canon of civil disobedience, the boundaries of legitimate protest, and the interpretation of the civil rights movement that philosophers would uphold. Philosophers who cited King used this volume to do so.¹²¹ The problem of conscription and the choice between obedience and revolution receded. Faced with new radical movements and an increasingly punitive conservative reaction, legal and political philosophers instead debated the proper definition and punishment of civil disobedience, and whether there was a right to civil disobedience that could, as Hannah Arendt suggested, be legally protected.¹²²

The defense of civil disobedience had long involved strategically defining it against other forms of protest. Some had defined civil disobedience narrowly, excluding (and thus encouraging broad support for) the civil rights movement—on grounds that protests against laws later held unconstitutional did not count as civil disobedience.¹²³ For the ACLU, adopting this exclusion meant that civil rights campaigners in the South, but not other civil disobedients, were entitled to their assistance. In the mid-1960s, civil rights protesters had often defined civil disobedience in such a way as to maximize support, using the language of stability and consensus as part of a strategy for building a multiracial coalition of campaigners for African American civil rights, liberals, and labor unions. In a 1966 pamphlet, the veteran campaigner Bayard Rustin had insisted, in a passage Rawls underlined in his notes, that civil disobedience could be a duty of citizenship—a way of “revealing inconsistencies in a society” and correcting them, of balancing the separate powers where they get out of kilter, and of “improving the state and creating a new and different consensus.”¹²⁴ For others, “responsible law-breaking” was a “beneficial,” if rarely used, mechanism.¹²⁵ It was a way of testing unjust laws, and it could be domesticated, stabilized, and incorporated into a democratic framework.¹²⁶ Increasingly, however, liberal and conservative commentators defined civil disobedience so as to narrow the scope of legitimate dissent. They selectively deployed King’s writings to frame civil disobedience as expressing the “highest respect for the law,” and valorized certain texts for their attitude to punishment—particularly the idea that civil disobedience involved “sacrifice” and the willingness to “suffer” punishment.¹²⁷ Rawls’s fair play argument and account of justice was also adapted to underline the importance of punishment and “the willingness to pay the penalty.”¹²⁸

The debate over civil disobedience went in a conservative direction. With Nixon’s law-and-order campaign, which extended and made explicit the punitive anticrime agenda of the Kennedy and Johnson administrations, the philosophical emphasis on punishment and stability took on a different valence.¹²⁹ The metaphor of the game made stability paramount and was soon invoked both to argue for a straightforward justification of an obligation to play by the rules and to support the claim that justifiable disobedience should be punished. In turn, the rejection of “paying the penalty” arguments became a signature of the left. Kai Nielsen, who with Sidney Morgenbesser headed the active New York branch of the Society for Philosophy and Public Affairs that wrote letters to editors on topics such as Vietnam and the trial of New York Black Panthers, rejected the idea that built into the definition of civil disobedience was a willingness to suffer punishment. It was legitimate to follow civil disobedience with “legal evasion” as part of a longer-term strategy for political change.¹³⁰ Howard Zinn similarly rejected the use of the game analogy: the idea that protesters should be “good sports” and submit to arrest, accepting jail as an accession to “the rules of the game,” demeaned the “moral seriousness” of the protest.¹³¹ Angela Davis and a number of other Black Power thinkers went further, arguing that the oppression of African Americans meant the American state lacked the authority to punish.¹³²

By the end of the decade, both civil libertarians and conservatives were delimiting the justifiable scope of civil disobedience. This repressive view, associated with the new neoconservatives like Sidney Hook and the jurists Abe Fortas and Erwin Griswold, saw in civil disobedience a threat to stability and framed the acceptance of the constitutional system as fundamental to citizenship.¹³³ They constrained legitimate civil disobedience by the distinction between justifiable direct forms of disobedience (where civil disobedients broke the law they oppose) and illegitimate indirect disobedience (when they broke a law in order to protest another law or policy). Fortas sought to restrict civil disobedience simply to the moral right to test the validity of a law believed to be unconstitutional. It was justified if statutes were challenged as unconstitutional, but not if they were challenged, by an appeal to morality, as “evil”—a definition that included the initial civil rights protest but excluded much else. At the same time, the ACLU changed its definition of civil disobedience to narrow its remit, wavering in its commitment to provide assistance to civil disobedients and adding new guidelines for the acceptance of punishment.¹³⁴ It distinguished between the “legitimate” protests of the middle civil rights protests and the early antiwar movement, and the disorders that followed. The significant institutional power of the ACLU helped spread this view.¹³⁵ A 1965 draft of an ACLU local branch statement by Kaufman and Cohen had outlined an account of civil disobedience that included a declaration of a right to resistance.¹³⁶ By the end of the decade, the ACLU defined civil disobedience as either the violation of unjust but constitutional law or the violation of a “valid law” to call attention to “some evil” elsewhere.¹³⁷ In 1968, the organization changed its policy. It would provide assistance for those who challenged laws the ACLU “regards as invalid,” meaning that lawyers could decide case by case.¹³⁸ It also explicitly isolated civil disobedience from other protests. “Open rebellion and riots are not examples of civil disobedience,” an ACLU press release insisted. This was unsurprising, but a specific reason was given: “They are not peaceful attempts to persuade the public to change unjust laws nor are they efforts to stimulate court tests of the constitutionality of certain laws.”¹³⁹ Civil disobedience was a form of court- and constitution-focused rule-breaking designed to “build a wall around the disobedient to tell him from the insurgent.” Amid the war in Vietnam and the characterizations by Black Power theorists of the situation of African Americans as one of “internal colonialism”, the use of the language of insurgency was not accidental.¹⁴⁰

For moral and political philosophers writing in this context, the justification of civil disobedience had to be more finely delineated than the theories of obligation proposed earlier in the decade. The fair play view provided a justification for disobedience when the state’s failure to deliver benefits was plain, but it had left open the scope of legitimate dissent. As protests multiplied and diversified, it had little precision for differentiating the actions that lay between obedience and revolution. To accommodate the antiwar as well as the early civil rights protests and rescue both from the association with later militancy, philosophers departed from the fair play model of rule-breaking to experiment with a fuller set of principles and carve out a middle ground.

In 1969, Dworkin took aim at the punitive legal commentary in “On Not Prosecuting Civil Disobedience,” published in the antiwar and pro–New Left New York Review of Books. That year Dworkin replaced Hart as the Chair of Jurisprudence at Oxford. He was on course to become the most influential legal philosopher of his generation and the foremost defender of the judiciary. He sought to overturn legal realism and positivism by putting moral principles, rights, and an idea of democratic community into law and by showing that legal rights and obligations required an understanding not just of social institutions and practices but of moral facts and principles. In his “The Model of Rules” (1967), he argued that the application of a rule depended on “principles or policies lying beyond the rule,” and he distinguished between rules (like those of a game) and principles (beyond the rules, which had priority).¹⁴¹ Two years later, he targeted the legal realist claim that a moral right to dissent did not have a corresponding legal right (so punishment of civil disobedience was to be expected). Dworkin responded to that claim by opposing the prosecution of civil disobedience, on grounds that it ignored a crucial point of legal interpretation—about who gets to interpret law where a law is invalid because it is unconstitutional and where its validity may be doubtful.

Dworkin argued that when the Constitution was not what the Supreme Court claimed, the judgment of citizens, the response of the community, mattered more than the discretion of judges or prosecutors. Citizens should challenge what they perceived to be misinterpretations of law, on moral grounds by appeal to principles. Their “allegiance” was to the law, “not to any particular person’s view of what the law is” or any particular interpretation by a particular court or prosecutor. Dworkin defended a kind of constitutional community where individuals could act on their own discretion, in accordance with moral principles, to defend their own rights against the bad decisions of the Court in the judgment of law. “If the issue is one touching fundamental personal or political rights, and it is arguable that the Supreme Court has made a mistake, a man is within his social rights in refusing to accept that decision as conclusive.”¹⁴² The constitution and courts could be in violation of principles of political morality. To persuade the courts that legislation is unconstitutional, civil disobedients should appeal not to an idea of legitimate government or to the rules of the game, but to morality—not a free-floating natural law, but one that issued from the practices of a community. If a significant number of people disobeyed a law on moral grounds and suggested that law was “uncertain,” that law would be considered constitutionally doubtful, if not invalid. That disobedience would then be rooted in “agreement” among the community.

Constitutionality here derived from the morality of the community, but that did not mean that any majority argument that amounted to a “strong” one was constitutional. What mattered was the connection between law and fundamental moral rights. “The language of rights now dominates political debate,” Dworkin wrote the following year. Citizens had “rights against the government” that the government had to take seriously. Rights had their most “natural use when a political society is divided, and appeals to cooperation or a common goal are pointless.” He was clear that divisions in America were deep and “bitter.” But it was up to the “ground rules”—the “laws and legal institutions” within which issues of social, economic, and foreign policy were contested—to express deep moral consensus and to state the “the majority’s view of the common good.” The role of rights within that was to represent “the majority’s promise to the minorities that their dignity and equality will be respected.”¹⁴³ Thus, rights against the state needed to be recognized. When laws rested on a moral right to be free from injuries, there were strong reasons to prosecute those who broke laws. Segregation laws rested on the assault on the moral rights of African Americans not to be segregated; segregationists reluctant to desegregate thus had no grounds for disobedience, even if it issued from the community’s morality, because the law they disobeyed invaded the rights of others.¹⁴⁴ Not all laws rested on such rights. The draft was one example. Draft refusers did not invade the rights of others, so though they may not be entirely released from the obligation to obey the law, they may nonetheless not have an obligation to accept punishment. Their act of dissent was a way of expressing their judgment, as citizens, that a law is doubtful.

Marshall Cohen, the SELF philosopher and later founder of Philosophy and Public Affairs, agreed with Dworkin that there was no “fair play” obligation to accept punishment. Legal realists claimed that “the disobedient’s actions are justified by his willingness to pay the penalty that the law prescribes.” Against the condemnation of “indirect” disobedience, Cohen saw the war—government policies as much as unjust laws—as a legitimate focus for civil disobedience. “It must not be supposed,” Cohen wrote, “that whenever the government violates the principles of political morality it does so by enacting a positively wicked law that the dissenters can protest ‘directly.’” He saw the willingness to pay the penalty as fundamental to civil disobedience, regardless of the courts’ decision to prosecute or not. Cohen argued that the willingness to face suffering was for the protester a “useful way of reinforcing the effects of his protest and appeal.” It “helps to establish the disobedient’s seriousness and his fidelity to law in the eyes of the majority.” Like Dworkin, Cohen saw the majority and their morality as what mattered. Yet it was a particular hypothetical version of their morality—a kind of principled, collective conscience. Civil disobedience was “an appeal to the public to alter certain laws or policies that the minority takes to be incompatible with the fundamental principles of morality, principles that it believes the majority accepts.” It was not a merely conscientious personal act. Here Cohen adapted the definition of civil disobedience to fit Rawls’s theory, with its account of moral principles that flowed from the consensus at the core of a society’s moral community, to judge the rules of the game.¹⁴⁵

In 1969, Rawls published the account of civil disobedience he had been working on for years. He followed Bedau in his definition of civil disobedience as an illegal, nonviolent, conscientious, and public act. He also described it in terms of the democratic community: civil disobedience was “a political action which addresses the sense of justice of the majority.” It urged “reconsideration of the measures protested” and warned that “the conditions of social cooperation are not being honored.” The injustice of laws alone was not enough to justify disobedience, nor was the validity of law enough to require absolute compliance. For civil disobedience to be legitimate, it had to be “justified by moral principles which define a conception of civil society and the public good”—by the conception of justice that underpinned society. Accepting a democratic constitution meant accepting a degree of majority rule, being compelled to follow some unjust laws, and carrying a certain “burden of suffering from defects of one another’s sense of justice.” But only within limits: if the injustice was too great, and if the suffering weighed “too heavily” and was too unevenly distributed, disobedience could be justified.¹⁴⁶

From the point of view of dissent, this view was limiting. This was not an appeal to a morality that existed outside of society, but to that which issued from it. The appeal to conscience, again, was not enough. If conscience was sovereign, the cooperative scheme of society would be “unstable.” “We must pay a price,” Rawls wrote, “in order to establish that we believe our actions have a moral basis in the convictions of the community.”¹⁴⁷ Rawls underlined his commitment to public morals and his aversion to discretionary judgment. Justifiable civil disobedience was an “appeal to the moral basis of public life,” to “the common principles of justice which men can require one another to follow and not to the aspirations of love which they cannot.” It remained “disobedience to law within the limits of fidelity to law,” an exceptional form of action justifiable only in the event of a “serious breakdown,” where there was not only a “grave injustice” but “a refusal more or less deliberate to correct it.” Civil disobedience had to be seen as restorative of the thing that really mattered—the stability of the basic structure. It was a “stabilizing device in a constitutional regime, tending to make it more firmly just.”¹⁴⁸

Rawls had shifted his account of obligation from a fair play one and created an independent duty to stability that was part of the “natural duties.”¹⁴⁹ He maintained the distinction between fair play obligations acquired voluntarily and duties. But he also argued for a “natural duty not to oppose the establishment of just and efficient institutions . . . and to uphold and comply with them.” As Rawls moved from an argument for obligation based on the principle of fairness to the natural duty of justice, the duty to uphold institutions was not tied to membership or consent but applied to all moral persons. Instead of participation in a practice, the characteristics of persons did the conceptual work. What mattered was individual citizens—their capacity to be moral, their values, and their sense of justice—and the stability of the institutions they inhabited.

By characterizing civil disobedience as resting on the appeal to the moral basis of society, Rawls made these characteristics crucial. The appeal was not to the plural associative groups that made up social life, but to the sense of justice of the majority—of individual moral persons with their moral psychologies, taken collectively. The “final court of appeal” was “the electorate as a whole.”¹⁵⁰ This “body” was not an agent but one that was imaginatively represented in appeals to, and by acceptance of, the constitution. This collective sense of justice decided whether punishment was forthcoming or whether laws could be changed. Crucially, it was embodied in constitutional principles. Thus, the actions of those in the sit-in movement, Rawls wrote, were not “revolutionary” acts but an appeal “in our federal system to the higher legal bodies which the system provides.”

Their aim was to have the higher agencies correct the local ordinances thought to be at variance with the [Constitution] or other higher laws—at any rate as these would be interpreted by the Supreme Court. They were not upheld by the Court, but they did eventually gain their end in Congress by Title II of the Civil Rights Act of 1964 which does provide for equal service in places of public accommodation. Thus, because our Constitution is just, much CD [civil disobedience] can be interpreted, not as appeal to the S of J [sense of justice] of the majority as an extra-legal conception, but as an appeal to the Constitution itself—or to the ideals which it expresses [and] which it is believed would dictate repeal and reform of existing lower (or local) statutes. CD can be viewed as appealling [sic] to law against itself.¹⁵¹

Civil disobedience was a public violation of a law in a manner that affirmed respect for the law. The manner was key: civil disobedience had to be “non-violent” because violence would make the disobedient act a threat, not an appeal.¹⁵² Given the basis of Rawls’s morality in the recognition of persons, violence was more destructive in relations between persons than things, but Rawls’s constraint that disobedience be nonthreatening meant he claimed that violence to private property was not permissible either. Any coercion interfered with the appeal. Rawls pushed this to an extreme: coercive disobedience, he wrote, constituted an act of “quasi-force or terrorism.”¹⁵³

Persuasive speech was the standard of legitimacy and a civic commitment to stability a priority. Rawls’s concern for speech—from his early discussion of games and procedures to the conception of public reason of his late work—was bound to a particular “romantic” understanding of the civil rights movement.¹⁵⁴ For Rawls, the aim of the black freedom struggle was the reconfirmation and extension of the American creed. Its method was a nonviolent appeal to what Gunnar Myrdal called the “American conscience,” exemplified in the Freedom Rides, sit-ins, and campaigns that culminated in the Civil Rights and Voting Acts.¹⁵⁵ Rawls’s racial liberalism was a deep commitment that put segregation beyond the frame of philosophical discussion. But for desegregation to be solely an “implementation” problem suggested the optimistic view that Brown v. Board of Education had indicated a confirmation of democratically held American values.¹⁵⁶ This was a view belied by the white backlash against integration of the late 1960s and 1970s.¹⁵⁷ Moreover, the civil rights movement fit Rawls’s description of justifiable dissent only insofar as it was an appeal to white America to overturn unjust laws in the name of the fairness and justice of the Constitution—a movement for incremental inclusion in a basic structure that was nearly just in its constitutional essentials. It was part of Rawls’s story of liberalism, framed as a movement to make a nearly just America more so. It did not threaten the stability of the US Constitution or the basic structure of society, nor did it question the integrity of its principles. Participants in the civil rights movement merely demanded a chance to be included in a game that was nearly fair. This vision ignored many facets of the movement: the challenges it posed to American society and its self-understanding; the longevity of its struggle and its ties with black radicalism and black nationalism; and the self-conceptions of activists as linked to anticolonial movements, responsive to international pressures, and aiming at more than redress for denial of access to institutions on the basis of ascriptive characteristics.¹⁵⁸ To sustain this interpretation, King’s own explorations of political strategies that went beyond persuasion were ignored. His argument in “Letter from Birmingham Jail” that “pressure” akin to threats was justifiable was misrepresented.¹⁵⁹ Other radical black thinkers were neglected, as was King’s relationship to them.¹⁶⁰

By joining the legal debates on civil disobedience to his principles of justice, Rawls expanded on them in certain respects: when disobedience was justified, it was because those principles had been breached in the “practices (if not the letter) of social arrangements.” Yet he also imposed a significant restriction on the application of his principles. Rawls placed conditions on justifying civil disobedience: it was justifiable “when one is subject to injustice more or less deliberate over an extended period of time in the face of normal political protests; when the injustice is a clear violation of the liberties of equal citizenship; and provided that the general disposition to protest similarly in similar cases would have acceptable consequences.”¹⁶¹ There was another major constraint. It was only in protest against “violations of the equal liberties that define the common status of citizenship”—the liberties of oppressed minorities or religious groups—that disobedience could be justified. It could not be easily justified in defense of the equality principle. Disobeying because of unjust taxation policy was not an option. Nor was protest in defense of economic or workplace freedoms, or in the name of broader social and economic injustices, like poverty, inequality, oppression, or other forms of structural disadvantage.

The implication was that protests around economic justice were destabilizing and illegitimate. In this disaggregation of civil rights from economic justice, Rawls’s theory tracked the fate of postwar liberalism.¹⁶² But this meant that his theory excluded many forms of dissent—for instance, the union tactics and forms of strike action that had been deemed illegal at various points in American history thanks to the restrictive legal environment forged by the courts.¹⁶³ Because of this exclusion, the analogies proposed by Held or Walzer were not relevant. The range of ideas about political action was narrowed. Legal and political philosophers implicitly tied civil disobedience to the “expressive freedoms.” Civil liberties did not include economic ones but were linked to constitutional principles above the political fray. Here Rawls’s ideas reflected the recent changes in the cause of civil liberties: the ACLU had given up a commitment to economic justice.¹⁶⁴ Lawbreaking in the name of redistribution was not justifiable. Nor could civil liberties be “subject to calculus of social interests”—to “political bargaining,” between workers and business or other interest groups. They were taken out of politics. Such a restriction served to limit the legitimacy of protests both in the name of a better future and also to protect fragile and hard-won redistributive achievements at a moment when many recognized the precariousness of even the Great Society legislation.¹⁶⁵ It also reaffirmed Rawls’s romantic vision of civil rights and its implication that institutional acts of enfranchisement and changes to the basic structure in line with the first principle were sufficient, successful, and identifiable.¹⁶⁶

This reflected a broader transformation in Rawls’s thought. In the decade since Rawls first formulated his account of justice, his view of state power had become more constitutionalist and had taken on a civil libertarian hue. In the early 1960s, he explained the fundamental importance to justice as fairness of the equal liberties. Soon the first liberty principle took hard priority over the second.¹⁶⁷ The liberties were “fixed points” that “serve to limit political transactions and which determine the scope of calculations of social advantage. It is this fundamental place of equal liberties which makes their systematic violation over any extended period of time a proper object of civil disobedience.” The justification of civil disobedience rested on the priority of justice over efficiency, “and the equal liberties which it guarantees.”¹⁶⁸

Over the course of the 1960s, the individualizing, constitutionalist tendency within liberal philosophy was entrenched. Political philosophers came to prioritize individual civil liberties over pluralist or communitarian visions of the free play of morality of the kind the young Rawls had found appealing. The dynamic of Rawls’s theory that became more pronounced was that between the stability of the game and the liberties of its individual players. Once Rawls set to one side the fair play view of obligation, his aspiration was to secure stability while giving space to the morality that issued from the relations of individual moral persons. Through this appeal to individual morality—the morality of natural duties outside of institutions and the sense of justice within their bounds—Rawls at once emphasized the importance of individual action and the capacity to justify changing the status quo.

The great institutionalist philosopher was thus also concerned with agency and interpersonal appeals and relations. Moreover, his account of moral persons—guided from the bottom up by their sense of justice, who appealed to principles of justice to judge the rules—now provided a mechanism by which incremental change could be part of his system. Yet the non-institutional natural duties of individuals were precisely those to uphold institutions and protect stability. The part of his theory that potentially allowed for change was also the part that pushed against it. Just as Rawls incorporated an element of change in his theory, he constrained the opportunity for that change to be legitimate. At the same time that he made new claims for the individual, he shored up the stability of the system as a whole.

That Rawls placed more constraints on the justification of civil disobedience than he had in his earlier account of obligation was in part a result of his having brought to bear the apparatus of his theory on a particular political question. The theory, now established and well developed, took on a logic of its own: it imposed constraints on what Rawls was willing to argue, justify, and legitimize.¹⁶⁹ But the constraints themselves injected a strong element of status quo bias into his social vision. If the only way to question a law was in light of principles the community already potentially accepts, a young Peter Singer retorted, then nothing that fell outside this boundary could count as a legitimate reason to disobey.¹⁷⁰ There was little room in this vision for the reconceptualization of that community or of the persons inhabiting it—at least not of the kind that the New Left demanded and the Black Power and women’s liberation movements had embarked upon as Rawls wrote.¹⁷¹ Ultimately, Rawls responded to the years of political disorder by entrenching his vision of society as containing within it the possibility of consensus.

As the consensus view of the American creed was challenged, Rawls therefore made clear his intention to rescue it in a moderated form. In a 1968 talk, Rawls had for the first time provided a version of the idea of “overlapping consensus” that motivated his later work. Consensus was “a lucky thing,” Rawls wrote, “an accident of circumstances and a contingent, working agreement.” A minimal consensus on political procedures would be sufficient for a “somewhat precarious” stability. For a society to be “viable and stable (not necessarily though unchanging, the equilibrium may be a mooring one), there must exist a certain consensus on political principles.” This moral consensus that “supports the basic political procedure (the constitution)” was distinct from the interest-based views of political scientists. It need not demand a full consensus “on fundamental principles of religion or morals.” It was sufficient that individuals accept and acknowledge the basic rules of the constitution, even if they do so for different reasons.¹⁷²

Yet for a society to be both stable and just, Rawls saw as necessary an agreement on principles of justice, not as the product of “good fortune of different arguments leading to similar conclusions” but as “an agreement to regulate men’s spiritual and other interests by these principles.”¹⁷³ This idea underpinned Rawls’s later notion of “stability for the right reasons” and his “political liberalism.”¹⁷⁴ Here he argued that to make consensus practically effective, individuals needed to formulate arguments for the principles in their own terms. Without this, justice as fairness would be “interesting as a piece of ethical mathematics (a primitive game theoretic curiosity) but it will not single out a point of view with any significance for political theory.”¹⁷⁵ However, when it came to whether civil disobedience should count as “a reasonable and prudent form of political dissent,” the social consensus need not be “strict” but merely “overlapping”: it should satisfy the condition of reciprocity and be brought about by different actors reaching agreement for different (moral, religious, or political) reasons.¹⁷⁶ That minimal reciprocity, Rawls implied, was satisfied in the United States. He elsewhere made clear that of the different forms of social injustice—where social arrangements depart from just standards, or where those arrangements conform to an unjust conception of justice or “to the view of the dominant class”—it was only the former case where civil disobedience would be effective.¹⁷⁷ If American society had included a species of the second or third kind of injustice, far more than civil disobedience would have been justifiable. For Rawls, still fundamentally a liberal optimist, the United States was not characterized by class domination or unjust core values.

It was thus during these debates about the ethics of individual action that a particular vision of American society, and of morality and its relationship to political action, became central for the generation of liberal philosophers who now looked to politics. Legal and political philosophers theorized both the morality of institutions and the morality of individuals acting under them. They appealed to the moral basis of society, to moral principles, and to moral persons within those societies. The philosophers’ moral toolkit was applied to new areas of social life. Later, when others took on Rawls’s theory of justice, they also adopted this view of civil disobedience as a limiting form of social change. The liberty of individuals to act unlawfully against the state was seen as fundamental, but also as part of the reform and stabilization of a society moving, slowly, toward justice. The appeal to something beyond the rules of society justified breaking them. But many philosophers constrained the conditions under which that justification was possible in far more precise ways than earlier theorists had, which delegitimized much of the dissent they saw before them.

Within liberal philosophy, civil disobedience was reduced to a quasi-legal, stabilizing function. Unjust laws and policy could only be contested through appeals to the moral basis of society—to the morality that was already there. Moral principles were given a role not just in the judgment of institutions but in direct justifications for action. While this brought moral philosophy into politics, it also placed imaginative limits on the kinds of political action that could be brought into philosophy. The action-guiding obligations of citizens were understood not in terms of conflict between plural collective groups or classes, but in terms of individuals and against state institutions. The moral community was not something that could act, but something to which political appeals could be made—a civil society of public opinion, not an agent in itself. Liberal philosophers therefore studied political action only when it was exceptional and in contravention of law, and conceived these exceptional instances as singular, static, individual, and a test of particular laws in the name of legal order. Other accounts of dissent were set aside—whether those that explored lawful political action and participation by citizens, organizers, or politicians, or those that understood actions collectively, across time, in relation to social power and authority beyond law. Rawls made philosophical a set of firm, legal boundaries. They were policed cautiously.