I must not overstate the point. Someone who claims that citizens have a right against the government need not go so far as to say that the state is never justified in overriding that right. He might say, for example, that although citizens have a right to free speech, the government may override that right when necessary to protect the rights of others, or to prevent a catastrophe, or even to obtain a clear and major public benefit (though if he acknowledged this last as a possible justification he would be treating the right in question as not among the most important or fundamental). What he cannot do is to say that the government is justified in overriding a right on the minimal grounds that would be sufficient if no such right existed. He cannot say that the government is entitled to act on no more than a judgment that its act is likely to produce, over-all, a benefit to the community. That admission would make his claim of a right pointless, and would show him to be using some sense of “right” other than the strong sense necessary to give his claim the political importance it is normally taken to have.
But then the answers to our two questions about disobedience seem plain, if unorthodox. In our society a man does sometimes have the right, in the strong sense, to disobey a law. He has that right whenever that law wrongly invades his rights against the government. If he has a moral right to free speech, that is, then he has a moral right to break any law that the government, by virtue of his right, had no right to adopt. The right to disobey the law is not a separate right, having something to do with conscience, additional to other rights against the government. It is simply a feature of these rights against the government, and it cannot be denied in principle without denying that any such rights exist.
These answers seem obvious once we take rights against the government to be rights in the strong sense I described. If I have a right to speak my mind on political issues, then the government does wrong to make it illegal for me to do so, even if it thinks this is in the general interest. If, nevertheless, the government does make my act illegal, then it does a further wrong to enforce that law against me. My right against the government means that it is wrong for the government to stop me from speaking; the government cannot make it right to stop me just by taking the first step.
This does not, of course, tell us exactly what rights men do have against the government. It does not tell us whether the right of free speech includes the right of demonstration. But it does mean that passing a law cannot affect such rights as men do have, and that is of crucial importance, because it dictates the attitude that an individual is entitled to take toward his personal decision when civil disobedience is in question.
Both conservatives and liberals suppose that in a society which is generally decent everyone has a duty to obey the law, whatever it is. That is the source of the “general duty” clause in the orthodox position, and though liberals believe that this duty can sometimes be “overridden,” even they suppose, as the orthodox position maintains, that the duty of obedience remains in some submerged form, so that a man does well to accept punishment in recognition of that duty. But this general duty is almost incoherent in a society that recognizes rights. If a man believes he has a right to demonstrate, then he must believe that it would be wrong for the government to stop him, with or without benefit of a law. If he is entitled to believe that, then it is silly to speak of a duty to obey the law as such, or of a duty to accept the punishment that the state has no right to give.
Conservatives will object to the short work I have made of their point. They will argue that even if the government was wrong to adopt some law, like a law limiting speech, there are independent reasons why the government is justified in enforcing the law once adopted. When the law forbids demonstration, then, so they argue, some principle more important then the individual’s right to speak is brought into play, namely the principle of respect for law. If a law, even a bad law, is left unenforced, then respect for law is weakened, and society as a whole suffers. So an individual loses his moral right to speak when speech is made criminal, and the government must, for the common good and for the general benefit, enforce the law against him.
But this argument, though popular, is plausible only if we forget what it means to say that an individual has a right against the state. It is far from plain that civil disobedience lowers respect for law, but even if we suppose that it does, this fact is irrelevant. The prospect of utilitarian gains cannot justify preventing a man from doing what he has a right to do, and the supposed gains in respect for law are simply utilitarian gains. There would be no point in the boast that we respect individual rights unless that involved some sacrifice, and the sacrifice in question must be that we give up whatever marginal benefits our country would receive from overriding these rights when they prove inconvenient. So the general benefit cannot be a good ground for abridging rights, even when the benefit in question is a heightened respect for law.
But perhaps I do wrong to assume that the argument about respect for law is only an appeal to general utility. I said that a state may be justified in overriding or limiting rights on other grounds, and we must ask, before rejecting the conservative position, whether any of these apply. The most important—and least well understood—of these other grounds invokes the notion of competing rights that would be jeopardized if the right in question were not limited. Citizens have personal rights to the state’s protection as well as personal rights to be free from the state’s interference, and it may be necessary for the government to choose between these two sorts of rights. The law of defamation, for example, limits the personal right of any man to say what he thinks, because it requires him to have good grounds for what he says. But this law is justified, even for those who think that it does invade a personal right, by the fact that it protects the right of others not to have their reputations ruined by a careless statement.
The individual rights that our society acknowledges often conflict in this way, and when they do it is the job of government to discriminate. If the government makes the right choice, and protects the more important at the cost of the less, then it has not weakened or cheapened the notion of a right; on the contrary it would have done so had it failed to protect the more important of the two. So we must acknowledge that the government has a reason for limiting rights if it plausibly believes that a competing right is more important.
May the conservative seize on this fact? He might argue that I did wrong to characterize his argument as one that appeals to the general benefit, because it appeals instead to competing rights, namely the moral right of the majority to have its laws enforced, or the right of society to maintain the degree of order and security it wishes. These are the rights, he would say, that must be weighed against the individual’s right to do what the wrongful law prohibits.
But this new argument is confused, because it depends on yet another ambiguity in the language of rights. It is true that we speak of the “right” of society to do what it wants, but this cannot be a “competing right” of the sort that might justify the invasion of a right against the government. The existence of rights against the government would be jeopardized if the government were able to defeat such a right by appealing to the right of a democratic majority to work its will. A right against the government must be a right to do something even when the majority thinks it would be wrong to do it, and even when the majority would be worse off for having it done. If we now say that society has a right to do whatever is in the general benefit, or the right to preserve whatever sort of environment the majority wishes to live in, and we mean that these are the sort of rights that provide justification for overruling any rights against the government that may conflict, then we have annihilated the latter rights.
In order to save them, we must recognize as competing rights only the rights of other members of the society as individuals. We must distinguish the “rights” of the majority as such, which cannot count as a justification for overruling individual rights, and the personal rights of members of a majority, which might well count. The test we must use is this. Someone has a competing right to protection, which must be weighed against an individual right to act, if that person would be entitled to demand that protection from his government on his own title, as an individual, without regard to whether a majority of his fellow citizens joined in the demand.
It cannot be true, on this test, that anyone has a right to have all the laws of the nation enforced. He has a right to have enforced only those criminal laws that he would have a right to have enacted if they were not already law. The laws against personal assault may well fall into that class. If the physically vulnerable members of the community—those who need police protection against personal violence—were only a small minority, it would still seem plausible to say that they were entitled to that protection. But the laws that provide a certain level of quiet in public places, or that authorize and finance a foreign war, cannot be thought to rest on individual rights. The timid lady on the streets of Chicago is not entitled to just the degree of quiet that now obtains, nor is she entitled to have boys drafted to fight in wars she approves. There are laws—perhaps desirable laws—that provide these advantages for her, but the justification for these laws, if they can be justified at all, is the common desire of a large majority, not her personal right. If, therefore, these laws do abridge someone else’s moral right to protest, or his right to personal security, she cannot urge a competing right to justify the abridgment. She has no personal right to have such laws passed, and she has no competing right to have them enforced either.