The Double Standard of Law & Social Regress (Part II)

One of the insane arguments made against the protesters mentioned in part one of this piece was that civil disobedience threatens liberal democracy. Based on the idea that it undermines the precedent of the rule of law. Dictatorships and fuedal monarchies have the rule of law, too. What is special about the rule of law in a liberal democracy is equality before the law and it taking precedent over things like class and status. In the last piece, I spelled out that there was no equality before the law because the carbon capitalists who are ruining the environment usally don’t spend a day in jail while the environmental activists doing civil disobedience can get their lives ruined with a small criminal record. The powerful having impunity while the dissidents getting the metaphorical book thrown at them is the type of rule of law dictatorships have.

Civil disobedience is legitimate in a liberal democracy because of the social contract. I don’t like Rawls but he does include positive liberties alongside negative liberties in his ideal liberalism. According to the contemporary, Rawlsian, social contract. The contract is valid if the state and/or public sphere provides protection for the positive and negative liberties and respects civil liberties as sacrosanct. Positive and negative liberties are being unmet but also the double standard of law where the powerful have impunity while the dissidents are prosecuted to the point of it hindering their free political expression effectively negates civil liberties. Even under Rawls’ version of the social contract, the most stereotypically liberaly liberal of liberalism, the social contract has been violated and whatever laws and rules relate to that violation are therefore legitimately disobeyed in a liberal democracy.

Their version of a liberal democracy does not include a social contract. A more nuanced version of their argument is that direct action by activists, in contravention of laws passed by a democratically elected government, overrules the consent of the governed. If liberal democracy were purely about democracy then that argument would be valid but liberal democracy is about rights. In fact, democracy is justified as the best means at achieving those rights and not as an end in itself. Contemporary liberalism includes negative liberties (freedom from harm to, property, persons, privacy, etc…), positive liberties (rights to housing, health care, decently paid employment, a relatively clean environment to live in, etc…), and civil liberties (free speech, freedom of religion, right to due process, etc…). If the rules made by the majority-elected representstives contradict those negative, positive, and civil liberties then they are illegitimate. Laws that relate to them are invalid, may be disobeyed, and should not be enforced.

As much as I dislike Rawls, I am not totally against him. My principal criticisms of his theories are they kill the richness of culture, spiritual life, and interconnected community of society, they don’t afford any dignity, specialness, or importance to the human person, they abandon universal love and human fraternity as political and social aims, and they ignore anything above the first rung of Maslow’s hierarchy of needs such as the need for interpersonal acceptance, respect, belonging, and a familial community to support everyone’s emotional and psychological needs. I am most certainly not against liberal democracy and am terrified shitless at its collapsing. I believe in keeping much of the Rawlsian system. The argument that civil disobedience contradicts liberal democracy doesn’t comport with the “liberal” part of the term “liberal democracy” and is a clinically anxious slippery-slope fallacy and followed to its logical conclusion that dissent which disregards the authority of the state if that state’s legislature is democratically elected is the way to illiberal democracy which is a short step from outright authoritarianism. That’s Poland and Hungary.

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