Getting the duty to resist right: Remarks on Candice Delmas’s book a duty to resist: When disobedience should be uncivil

In her book A Duty to Resist, ¹ Candice Delmas addresses the difficult question of whether uncivil disobedience may be justified under certain conditions. She argues that uncivil disobedience to unjust laws may not only be permissible under some circumstances. In fact, we may have a duty to resist them. I find the two central claims of the book convincing and important to make. I agree that in cases of gravely unjust laws (laws that violate fundamental rights and freedoms): (1) we are not only permitted to disobey them, but may have a duty to do so and (2) not only civil but also uncivil disobedience may be justified in such cases. Obviously, these claims, particularly the second one, raise a host of very difficult and important questions that require further discussion (i.e., questions that anyone minimally sympathetic to this approach, would need to address): what are the limits of permissible violence? and who has the legitimate authority to determine what counts as grave injustice and what does not, given citizens’ substantive disagreements? ²

However, I would like to focus on a more specific question concerning the argumentative structure of the book which I find problematic. The argument of the book is based on the idea that the same principles that justify a duty to obey the law also justify a duty to disobey the law. My worry with this argumentative strategy is that it amounts to an attempt to derive the duty to disobey gravely unjust laws (or to resist them) from less stringent duties than the ones that can plausibly ground it. This may seem like a minor point but, as I will try to show, it has important consequences for our understanding of what is owed to victims, in virtue of what, and by whom.

So, to anticipate, in my view what the argument of the book shows is something slightly different. It shows that principles that justify the duty to obey the law such as the principle of fairness, Samaritan duty, and associative obligations, do not undermine (and are therefore compatible with) the duty to disobey the law in cases of grave injustices. However, this is different from arguing that those principles, and the duties that they characteristically give rise to, make any distinctive contribution or offer the proper basis to justify or ground the duty to disobey the law or to resist. In my view, they do not provide the reasons why one ought to disobey or resist. They simply cannot undermine or cancel the duty to disobey in cases of grave injustices.

If this impression is right, the focus on laws that violate fundamental rights is what does all the normative work for justifying the duty to disobey/resist such laws and the appeal to principles of fairness, Samaritan duties, and associative obligations is not only superfluous but also misleading. Let me explain this in detail.

As mentioned before, the central argument of the book is that from the generally accepted claim that there is no duty to obey gravely unjust laws (i.e., laws that violate fundamental rights and freedoms) it does not follow that disobeying the law in such cases is permissible. What follows is that one actually has a duty to disobey or resist gravely unjust laws—a duty that in turn involves a variety of positive obligations (of solidarity, of working towards radical reform, etc.). This is one of the two central arguments of the book and, in fact, I am sympathetic to this argument. The argument could be made explicit as follows:

(1) We have a negative (perfect) duty not to harm others (i.e., to respect their fundamental rights and freedoms).

(2) If we comply with and support a legal system that harms others (i.e., that violates their fundamental rights) we violate our duty not to harm others (i.e., to respect their fundamental rights).

(3) Therefore, the negative (perfect) duty to respect the fundamental rights of others generates a positive (imperfect) obligation to resist that legal system (which may require working towards legal and structural reforms).

However, to the extent that the imperfect obligation to disobey or resist a legal system that violates fundamental rights is grounded on the universal (perfect) duty not to harm (i.e. to respect everyone’s rights), considerations of fairness, Samaritan duties, or associative obligations are irrelevant to its justification. ³ They are irrelevant in the specific sense that they cannot cancel or undermine that duty. These considerations can be relevant for determining the specific actions or omissions that are involved in properly discharging the duty in particular circumstances and for different people, but they are not relevant for justifying the existence of the duty in the first place, which is what the book aims to do, if I understand it correctly.

But let me show why this issue matters by focusing on Delmas’s discussion of the Samaritan duty, namely, a duty that “requires us to aid persons in peril or dire need when we can do so at no unreasonable cost to ourselves.” Delmas discusses Wellman’s appeal to Samaritan duties to justify the duty to obey the law and claims that his argument can also be used to justify the duty to break unjust laws. ⁴ Here is her argument in detail:

Wellman recognizes that there can be reasons for disobeying the law and resisting injustice in otherwise-legitimate states. These reasons, in his view, stem from the injustice of particular laws. For instance, though the state imposes a Samaritan duty to obey the law, he argues that Martin Luther King “was morally at liberty to break the particular laws he disobeyed simply because they were unjust. But I go further. Many reasons for resisting injustice are Samaritan in nature, grounded in the duty to rescue people from peril. Indeed, the Samaritan duty may obligate one to protest injustice or break unjust laws, under certain conditions, when unjust laws, institutions, and practices endanger people, by prohibiting Samaritan rescues or facilitating the incidence of violence on members of a social group. (Delmas 2018, 140; my italics)

The last claim seems problematic to me. Wellman seems right in affirming that the reason for disobeying unjust laws is simply that they are unjust. There can be no further reasons, especially no Samaritan ones. The duty to resist unjust laws derives from the duty not to harm others and therefore Samaritan considerations cannot affect that duty. We have a duty to respect people’s rights because they are their rights, not because we have a duty to help them. I am not “helping” you when I respect your rights. Since refusing to violate people’s rights is not a matter of help, Samaritan considerations cannot be relevant for perpetrators or (willing or unwilling) collaborators with the legal system in question. If one is in a position to disobey unjust laws at all, one would be a contributor to rights violations by obeying such laws, and Samaritan reasons would be the wrong reasons for justifying both disobedience and obedience. Indeed, to claim that the duty to break unjust laws is a Samaritan duty, as Delmas claims, would be like claiming that the duty of restitution is a duty of charity.

In the context of severe injustices, Samaritan reasons are relevant for bystanders, that is, for those who are neither perpetrating nor (willingly or unwillingly) collaborating to uphold the unjust laws in question. But they do not apply to members of the legal system in question (i.e., those who can either obey or disobey them) and this is why they cannot be relevant to justify a duty to disobey unjust laws in particular. Certainly, those who are outside the law’s jurisdiction—and who are otherwise not contributing to the injustices in question—may nonetheless have a duty to protect the rights of others from violations by third parties. ⁵ And this duty typically includes Samaritan duties of rescue or help of various kinds. Indeed, Samaritan considerations are paradigmatically relevant for justifying bystanders’ duties to protect, and many different actions can fall under this duty. However, disobeying unjust laws is not one of them. Of course, one may have a Samaritan duty to break laws that are otherwise not unjust in order to properly discharge the duty to rescue. But, as Delmas herself notes, she is not interested in defending “incidental Samaritan disobedience.” (Delmas 2018, 141) She is interested in cases “where the peril that calls for Samaritan rescue is causally connected to the law being broken.” (ibid.) Her examples are cases in which discharging the duty of rescue is prohibited by law.

However, the fact that acts of Samaritan rescue are prohibited by law does not make the duty to break unjust laws a Samaritan duty. It is the stricter duty not to contribute to human rights violations that justifies breaking the law, even if what it takes to break the law in particular cases are acts of rescuing or helping victims, among other things. Moreover, fulfilling such strict duties of justice requires more than discharging the duty to rescue victims. What it takes, above all, is action towards reforming the unjust laws, policies, and institutions. Delmas seems to endorse this idea. However, she counterintuitively ascribes the latter actions to the duty to rescue. She contends that one “can best, perhaps only, fulfill the duty to rescue by promoting reform: rescuing people from persistent Samaritan perils involves eliminating or righting the injustice at the root of the peril—that is, reforming unjust laws, policies, or institutions.” (Delmas 2018, 143)

But this is a strange claim. The duty to reform unjust laws is not derived from the duty to rescue. Reforming unjust laws, policies, and institutions is required by our duty to respect everyone’s rights and that duty requires much more than rescuing people from persistent Samaritan perils. What the duty to respect entails is not that people be “rescued” from so-called “Samaritan perils” but that they are granted secure access to the objects of their rights. Indeed, to call severe violations of fundamental rights “persistent Samaritan perils” is, in my view, particularly misguided and misleading. For it makes their removal seem to be a matter of “helping” and “rescuing” victims, when in fact it is a matter of respecting what is owed to them as a matter of right. Delmas mentions for instance that “girls and women are under persistent Samaritan perils in many parts of the world” (Delmas 2018, 145) and some of the examples she gives is that they are subject to “male violence, sexual trafficking, rape, and enslavement” (ibid.). Obviously, these are very grave human rights violations. If they are sufficiently entrenched in or enabled by a legal system so as to trigger their members’ duty to disobey the law, it would seem extraordinarily misleading to call them “Samaritan perils” when they are violations of fundamental human rights. ⁶

As Delmas herself notes, in cases of gravely unjust laws the duty to rescue is the only relevant duty owed to a victim “so long as the victim rescued by the Samaritan is not a member of the persistently imperiled group.” (Delmas 2018, 153). By contrast, structural reform of the law is what is demanded of those who are members of the group. I totally agree. But here Delmas seems to get the relationship exactly backwards. I agree that members of the legal community not only have a duty to rescue but also a duty to fight for reform of the law which may require breaking the law. The reason for the difference is trivial: only those under the law’s jurisdiction can break the law. However, the duty to break the law and work toward its reform is not grounded on a Samaritan duty of rescue. It is grounded on the duty to respect everyone’s human rights. It is owed to the victims as a matter of respecting their rights and not as a matter of helping or rescuing them, as it would be for bystanders who are outside the laws’ jurisdiction. Citizens who are under the jurisdiction of gravely unjust laws have a stricter duty of justice to break the law and not just the duty to rescue victims that all non-members also have, precisely because (and only to the extent that) by obeying the law they are contributing to perpetuate the injustices in question. The duty to disobey and resist the law is owed to victims as a matter of respecting their rights, not as a matter of Samaritan help.