Normative Jurisprudence, Aquinas, and the Common Good

Peter Quint

Jacob A. France Professor of Constitutional Law at the University of Maryland Carey School of Law.

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1 Response

  1. The discussion of civil disobedience seems a little strained. Civil disobedience has never been THE or primary method for most social movements committed to nonviolent social action going back to the second half of last century and into our own time. Of course it can cause social disorder and disruption (indeed, Gandhi thought methods of nonviolence often bring out latent or hidden conflict and violence into the open where they can be better addressed), and that is why those who resort to it behave in ways to reassure the public and authorities they’re not hell-bent on anarchism or social chaos (hence the ‘civil’ adjective): informing public authorities of planned actions, scrupulous adherence to nonviolence (at least by the leadership, one can’t always control the behavior of those involved in mass civil disobedience), accepting legal punishment for any laws broken (whether in the direct or indirect forms of civil disobedience), and so on. On this account, the worry of a “dangerous destabilizing influence on law and society” is the political equivalent of a straw man or red herring, being symptomatic of those psychologically, politically, and economically unable to let go of their identification with the status quo (hence their anxiety or worry is worth ignoring). Gandhi’s nonviolent social theory and praxis included civil disobedience as only one of its means, and thus was not, for him at least, the most important (that honor was reserved for the ‘constructive programme’). In any democratic polity, going back to the time of Socrates’ Athens, there will be unjust laws passed by democratic majorities. The question is which of those unjust laws are so egregious as to violate the dictates of conscience and thus perhaps justify civil disobedience. There are any number of other methods and strategies for coping with unjust laws in general that fail to meet that stringent criterion. It’s a failure of imagination to see civil disobedience as a primary or preferred method for realization of the common good, a failure that eluded many if not most of its well-known exemplars. Civil disobedience is chosen when all other legal means have been frustrated or exhausted. And of course constitutional law can be one part of any such endeavor.