A Gravity Model of Civic Deviance: Justice, Natural Duties, and Reparative Responsibilities.

Date01 December 2020
AuthorLim, Woojin

"[O]ne has a moral responsibility to disobey unjust laws."

--Martin Luther King Jr., Letter from a Birmingham Jail

What conditions justify a citizen's deviance from their civic obligations in a constitutional democracy? More importantly, whom does the scope of justified civic deviance encompass? A common way of justifying uncivil actions is to accept that citizens are only under a prima facie duty to obey particular laws (i.e. when incivility poses seriously untoward consequences or involves an act that is mala in se) and that they have no such obligation to obey all laws. (2) When some laws surpass a given threshold of injustice, citizens may be justified in disobeying those laws. (3) Of this justification, some have argued that all individuals who are subject to unjust institutions should be allowed to challenge injustice by shirking their civic norms of reciprocity. Others propose that only those who face situations that fall beyond the scope of tolerable injustice should be allowed to shirk their civic obligations. So, where should the threshold for justified civic deviance be drawn among members bound to a scheme of reciprocity and social cooperation? Is there a way to account for the level of injustices suffered individually along some sort of tolerability gradient while also extending the scope of justified civic deviance to all those within the broader scope of unjust institutions?

This paper will explain why an approach that selectively permits civic deviance (henceforth 'CD')--proposed in Tommie Shelby's "Justice, Deviance, and the Dark Ghetto" --must be reconsidered. (4) It will then offer an alternative structure for consideration. While recognizing that the main aim of Shelby's paper is only to stake out the conceptual grounds for these claims and to illustrate that these are conceptual categories worth mining, this response centers on the failure of Shelby's argument to offer details on setting thresholds as to when deviant behavior is justified or at least excused. This paper engages further in that mining process and offers an original contribution to the debate by closely re-examining Shelby's threshold account. It introduces what will be called a "gravity model" of CD and the principle of reparative responsibilities to permit varying degrees of CD for particular oppressed groups, while sustaining permission for all to exercise CD--provided an unjust social structure, and a positive difference of natural duties wherein CD-enabling natural duties outweigh CD-restricting natural duties. CD-justified will come to mean not CD-forbidden or CD-permissible, and in select cases, CD-obligatory. The model is metaphorical in nature and is not meant to be a scientific derivation of normative theory.

This paper is organized as follows: Part I draws upon Shelby's article, "Justice, Deviance, and the Dark Ghetto," and reviews some of the basic building blocks of CD. (5) It shall outline Shelby's Rawlsian justification for CD, reconstruct his application of CD to the "Black ghetto underclass" of the United States, and elaborate on the inadequacies of Shelby's view. When only a particular subset of the population is permitted to deviate from their civic obligations, there arises an imbalance of burden-sharing. This paper claims that it is unfair for those who do not suffer from intolerable injustice--and those who suffer from greater levels of intolerable injustice--to continue upholding reciprocity wherewith unjust institutions, especially if continuing to do so clashes with their natural duties.

Part II lays out the elements of what could be a more adequate approach. It begins by building upon Shelby's conception of the natural duty of justice. In this light, one can come to understand CD as that which extends to those within the limits of tolerable injustice, and the differences in the level of intolerable injustice will be accounted for through the gravity model of CD along with the principle of reparative responsibilities (RR). Provided an unjust social structure, all affected individuals are justified in shirking civic obligations although they remain bound to natural duties and reparative responsibilities. To conclude, this paper elaborates on the guiding conditions of permissible and obligatory CD, drawing from the works of contemporary analytical political philosophers, including John Rawls, Robert Nozick, and Candice Delmas.

Part I: Reflections on "Justice, Deviance, and the Dark Ghetto"

In "Justice, Deviance, and the Dark Ghetto," Shelby advances Rawls's apparatus of justice as fairness. Shelby builds his argument from the premise that within a liberal framework, justice, at least in part, is rooted in the political value of "reciprocity between persons who regard each other as equals," bound together under a cooperative scheme for mutual advantage. (6)

The social, political, and economic institutions of the basic structure of society fix an individual's initial position within society, favoring some individuals in the distribution of benefits and burdens--of liberties, duties, opportunities, and material advantages. Given that the basic structure bears an immense and wide-ranging influence over an individual's lifetime prospects over which individuals had no choice over, Shelby claims that social arrangements should be formed by institutions--for instance, governments, schools, firms, markets, and families--as to provide each individual with a "fair chance to flourish." (7) In this grander scheme of reciprocity, each participant of the social structure has a legitimate claim to a fair chance not to have their lifetime prospects diminished by the social scheme in ways that cannot be justified on impartial grounds.

It is in virtue of this groundwork of reciprocity, known as the principle of fair play, that "civic obligations" have normative force. As a beneficiary of the primary goods afforded by the cooperative enterprise, each citizen (8) is expected to shoulder an obligation to do their share as the arrangement requires, such that benefits and costs are divided in an equitable way. Citizens then have a duty to bear a share of the costs that are involved in the production of collective public goods. For example, they should pay taxes, obey the law, and so forth. This obligation is owed to those with whom one is cooperating in order to maintain a fair basic structure. Each citizen of a democratic polity is ipso facto bound to civic obligations as required by the basic institutions. When a citizen evades or refuses to fulfill her civic obligations, they attempt to gain from or exploit the cooperative labor of others ("free-riding") without doing their fair share. (9) The lawbreaker acquires an unfair advantage over their fellow citizens, and this, in turn, warrants punishment to remove this advantage and re-establish a fair distribution of benefits and burdens among all members of the society.

Shelby further claims that an individual's fair chance to thrive is a necessary condition for reciprocity. Each citizen is bound to civic obligations only "when these institutions are just. Citizens therefore are modus tollens not obligated to submit to unjust institutions, or at least not to institutions that "exceed the limits of tolerable injustice." Institutions that bring about injustice that is so serious as to be intolerable allows special civic permissions for disadvantaged individuals, that is, deviance from civic obligations (CD). (10) Since those who suffer from intolerable injustice have been deprived of their fair share of benefits from the social scheme, they are not bound by the civic norms of reciprocity they have as citizens.

As to determine who falls beyond and beneath the radius of intolerable injustice, Shelby proposes the constitutional essentials standard, based on a loose criterion of adequacy. These include the basic rights of a liberal democratic regime, such as freedom of speech, conscience, assembly and association, political rights and other supplementary rights. (11) For all citizens to be provided adequate exercise of these rights, Shelby adds, these rights should be impartially and effectively enforced, not merely codified in law, such that all citizens can have confidence that their rights will be respected by those with institutional power.

Consider a society wherein constitutional essentials remain unsecured for certain peoples, that is, the social structure deprives certain peoples of their fair share of benefits. Shelby contends that in such a society, those affected by intolerable injustice should not be expected to fulfill the civic obligations demanded by unjust institutions. This is not to say, however, that those affected by intolerable injustice should be released from moral duties altogether. Here, Shelby provides a clear distinction between civic obligations required by all proper citizens, versus natural duties, which unconditionally bind to all moral persons regardless of their associational or institutional ties. Thus, while an individual beyond the limits of tolerable injustice may deviate from civic obligations, at no point in time can any person permissibly abandon natural duties. (12)

One striking natural duty that Shelby highlights is the natural duty of justice. Drawing from the Rawlsian project, the two sub-principles of this natural duty are as follows: For each individual to 1) uphold and comply with just and efficient institutions when they do exist, and 2) support the establishment of just and efficient institutions when they do not yet exist. (13) The "positive" natural duty of justice provides reason for CD, while its "negative" restatement provides reasons for individuals not to deviate from their civic obligations.

Implementing these concepts into practice, Shelby pictures the plight of the Black underclass in the United States. (14) Shelby describes a widely assumed narrative about the urban poor, wherein residents live in the dark...

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