Is Punishment for Civil Disobedience Always Justified?

Commitment to the law depends on its content.

Walter Bingham,

OpEds Walter Bingham.jpg
Walter Bingham.jpg
Arutz 7
In a recent essay, I discussed the question of moral justification for Civil Disobedience. Today, I want to briefly examine the moral arguments employed to administer punishment for such acts. If the law is deprived of its moral force, as I have shown to be the case in many of the new decisions of our government, then any punishment for disobeying it is morally not defensible.

The moral obligation to keep the law is contingent on its content. Citizens cannot be
Citizens cannot be expected to obey or condone laws that are politically motivated.
expected to obey or condone laws that are politically motivated and are not based on moral consideration for the common good; e.g., to absolve ministers and other high officials of their accountability for their actions.

Punishment rests on much the same considerations. The influential 19th-century philosopher and political economist John Stuart Mill wrote that the consequences of an action determine its justification. If we apply this principle to punishment, then any means to return to the forcibly evacuated areas is morally justified, since the expulsion of their inhabitants did not result in "the common good." Punishment for disobeying evacuation orders can now be seen as not having had any moral content. On the other hand, if a government condones punishment as a means to an end, by inflicting hurt on innocent victims as an example to others, then it can be interpreted as giving licence to totalitarianism to intimidate opposition.

The now-distinguished lawyer Amnon Rubinstein wrote in The University of Toronto Law Journal (Vol. 15, No. 2 (1964), pp. 317-335): "Where any person or body of persons is invested with judicial powers, the law must contemplate the possibility of a faulty exercise of such powers. The person empowered by law may either err in the interpretation of the relevant provisions or exceed his authority or exercise his power unreasonably, negligently or even maliciously...."

"Maliciously" is the important word here. Present-day court records seem to indicate that the concept of morality in punishment apparently changed since 1964 and malice is no longer a bar to act immorally in the exercise of judicial powers.

There is another, more sinister, aspect to the exercise of power and its enforcement. Aided and abetted by a weak government in Israel, the governing factions are today's industrialists and business tycoons. This means that with their control over economic life, serving their own interests, they are the real power behind the state. Hegemony is not located in those groups that visibly exercise political or ideological leadership in society, but rather in the effects of the dominant form of political and ideological practice, the particular social relations they produce. This is manifested in Israel by today's widespread corruption. Such practice runs counter to the utilitarian principle of "the greatest good for the largest number" upheld by the government as the foundation of its laws.

The best example of this shift is Israel's judicial system, which does not tolerate even the most basic form of civil disobedience by aggrieved citizens, but ignores violations by the powerful. Punishment seems administered on the basis of political and economic
The state has become an active force in cultural reproduction.
considerations, rather than for the common good. Unreasonableness, neglect and malice appear to be the pillars on which judgements are pronounced or often delayed for excessive periods. The cases of 14-year-old Chaya Belagorodski, who protested on the sidewalk of a street and was held in prison for many months, and teenager Shimshon Cytryn, who was in solitary confinement and is now under house arrest (after 19 months, he is is still awaiting a verdict), are just two examples.

The state has become an active force in cultural reproduction. Acts of conscience by minorities are not tolerated, so I'd like to examine the moral justification for their punishment. Their disobedience is mostly directed at policies or activities that cannot be directly affected by their actions. These actions are, therefore, designed to focus attention on the protesters' cause. This can only be achieved by infringing laws that are unconnected with the cause itself. Recent unauthorised demonstrations of disobedience exposed participants to the charge of pressing their own moral convictions while, in the process, depriving others of their moral rights (e.g., unhindered passage on a public highway). Here, the utilitarian would find himself in some difficulty. While he might see justification for punishment on the grounds of preventing harm to others, a major moral consideration, he would also have to be cognizant of, and give credence to, the views of the protesters.

Yet, the argument of anti-Disengagement protesters who carry out civil disobedience is the very same claim - the defense of a moral right. Firstly, they are defending their moral right to live unhindered in their homes. Secondly, they claim to be rightfully exercising power for the common good, to prevent harm to others - the rockets on S'derot and Ashkelon, the consequences of further expulsions, which would bring danger to more areas, etc. In short, the protesters are acting on the utilitarian principle to ensure the greatest happiness to the largest number of our citizens - something to which the government only pays lip service.

On those grounds, punishment for civil disobedience is not morally justified.