S.J.D. Dissertational Proposal

Duty to Obey the law and Civil Disobedience in a

Transitional SocietyHung-Ju Chen*

Abstract

The duty to obey the law is one of most interesting questions in legal philosophy. Explanations of why there is a duty to obey a law can be based on three different models: the absolute, the moderate and the anarchic model. Each model gives different explanations of why there is a duty to obey the law and illustrates the circumstance when people might have no duty to obey the law. This proposal focuses on the moderate model, which can be called the Rawlsian model. This model admits that citizens in a nearly just society, whose basic structure is governed by the principle of justice, have the duty to obey the law, in general. However, there are rare exceptions when citizens have no duty to obey an unjust law. This model treats civil disobedience as the last resort to correct injustice in a legal system. But this model also contains some vagueness when applying to a transitional society. This proposal illustrates vagueness in three steps: distinguishing three models, using a hypothetical case to explain possible interpretations on the duty to obey the law, and categorizing four kinds of civil disobedience to elucidate the problems of the Rawlsian model as applies to a transitional society. The problems identified in this proposal can be called the problem of indeterminacy of the duty to obey the law and the problem of justification in civil disobedience. Clarifying these two problems would contribute to better understanding legitimate limitations on public authority and help to better define the constitutional meaning of citizens’ actions.

Keywords: duty to obey the law, civil disobedience, liberal constitutionalism, Thomas Hobbes, John Rawls, transitional justice

* Candidate for LL.M. degree, University of Illinois College of Law, Urbana-Champaign, IL, U.S.A. (2011). Master of Laws, National Taiwan University College of Law, Taipei, Taiwan (2007). Bachelor of Law, Shin Hsin University College of Law, Taipei, Taiwan (2003).

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CONTENTS

I. A Question in Civil Disobedience: The Duty to Obey the Law................................................3

II. Three Different Models on the Duty to Obey the Law and a Thoughtful Experiment...........4

1. Three Models: The Absolute, Moderate, and Anarchic Models........................4

2. A Thoughtful Experiment about the Application of the Rawlsian Model..........6

III. Four Categories of Civil Disobedience and Problems in a Transitional Society....................7

1. Four Categories: Non Violent Act, Violent but Non Lethal Act, Act of Damaging

Properties, and Strike...........................................................................................7

2. Problems in a Transitional Society....................................................................9

IV. The Core Thesis, Questions, and Hypotheses....................................................................10

V. Methodology......................................................................................................................12

VI. Conclusions....................................................................................................................... 13

Bibliography........................................................................................................................... 14

1. The Primary Sources.......................................................................................14

2. The Secondary Sources...................................................................................15

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I. A Question in Civil Disobedience: The Duty to Obey the

Law

A classic dispute in Jurisprudence is the relationship between law and morals. This is a crucial distinction between positivists and non-positivists. In a criticism on Radbruch’s turn from a positivist to a non-positivist, H.L.A. Hart mentioned an important aspect.1 He distinguished between the identification of the law and the moral obligation to obey law and argued that Radbruch’s turn showed an overvaluation on the fact that once a rule is declared as a rule of law there, is conclusive of the final moral question of “Ought this rule of law to be obeyed?”2 Hart’s comment differentiated two questions: the question of identification of law and the question of the duty to obey the law.3 However it is a question of why there is the duty to obey the law and of when this duty can be eliminated. Discussions on this question also involves with the conception of civil disobedience, of the conscientious refusal, and of the various forms of protests.

John Rawls, in A Theory of Justice, defines the concept of civil disobedience as the public and political action contrary to law consciously. A nearly just society, whose basic structure is governed by the principle of justice, is the society where his concept of civil disobedience applies. However, it is not very clear whether Rawls’ theory can apply to other kinds of societies.4 Besides of that, there are also other interpretations on the duty to obey the law which are the Hobbesian interpretation and the anarchic interpretation. Do the two interpretations insufficiently explain the duty to obey the law? It is also unclear whether Rawls’ theory of civil disobedience is a suitable description for those new democratic countries or not when there are radical political transformations within those countries.

What is more interesting is looking at the phenomena of civil disobedience directly. The phenomena of civil disobedience vary from different types, degrees, and intensities. For example, a law, which is violated by people, can be either unjust or just. Is a reason to justify a violation of an unjust law as the same as a reason to justify a violation of a just law? Actions contrary to laws vary too. People might use a peaceful but unlawful action to violate

1 About the argument from Radbruch after Second World War, see Gustav Radbruch, Statutory Lawlessness and Supra-Statutory Law, Vol. 26 No. 1 Oxford Journal of Legal Studies, 1, 1-11 (2006).2 See H.L.A. Hart, Positivism and the Separation of Law and Morals, in Essays in Jurisprudence and Philosophy, 49, 75 (1983).3 This proposal also distinguishes several similar terms. “The duty to obey the law” is a specific term of indicating an issue in legal philosophy. This proposal also uses “a duty to obey a law” to refer the circumstance of a subject binding by his moral obligation to obey a law, laws, or some specific law. This proposal also uses “duty” and “obligation” interchangeably. However, it is an important consideration that the concept of duty is different from the concept of obligation. Duty might be justified in a more institutional and structural ground. See John Rawls, A Theory of Justice 293 (The Belknap Press of Harvard University Press, Rev.ed. 1999).4 See Kimberley Brownlee, Civil Disobedience, in Stanford Encyclopedia of Philosophy (http://plato.stanford.edu/entries/civil-disobedience/ the last visiting date: 02/25/2011)

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a law. They might also use a non peaceful and unlawful action to protest. People might use a roughly peaceful but in a threatening way to against some laws. There is a question of what grounds of justification in various types of civil disobedience are. This question is dependent on that what kind of theories of the duty to obey the law is appropriate and what limitations on these theories are.

If observing phenomena of civil disobedience in different political structures, the question of the duty to obey the law is more complex. A duty to obey a law in liberal democratic countries might be very strong so that people still have a strong moral reason to obey an unjust law. However this duty in non liberal democratic countries might be weaker due to a non liberal constitutional framework. Between non liberal and liberal democratic countries there might be a transitional country which undergoes the transformation from a dictatorship to a democratic regime. This duty might be indeterminate in such a transitional country.

Investigations on the duty to obey the law are the key to these complex questions. It is necessary to discuss explanations of models on the duty to obey the law and the various implications in these models. Clarifying this concept in legal philosophy would not only contribute to better understanding of legitimate limitations in the public authority but also to better define the constitutional meaning in citizens’ actions.

II. Three Different Models on the Duty to Obey the Law

and a Thoughtful Experiment

1. Three Models: The Absolute, Moderate, and Anarchic Models

Explanations of the duty to obey the law can be based on three different models. The three models explain reasons and justification for this duty. These are the absolute, the moderate, and the anarchic models. Each model has different conceptions about the duty to obey the law.5

The absolute model is representative by a Hobbesian interpretation.6 In a Hobbesian model, each citizen makes a contract with the sovereignty and transfers their right to exchange with the protection provided by this sovereignty. Because citizens transfer most of their natural rights to exchange for the protection from personal harm, citizens have an

5 The three models are condensed from some theorists or theories. It is difficult to specify the exact thought in these theories. But this proposal would try to indicate the reference when some argument can be belonged to a specific theorist or theory.6 See Sharon A. Lloyd and Susanne Sreedhar, Hobbes’s Moral and Political Philosophy, in Stanford Encyclopedia of Philosophy (http://plato.stanford.edu/entries/hobbes-moral/ the last visiting date: 02/25/2011).

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ModelsExplanation

absolute duty to obey a law without regarding to its moral merit. How this duty can be eliminated? This duty is eliminated if this sovereign cannot offer his effective protection to citizens. Lacking the effective protection is the only justification to eliminate the duty to obey the law in a Hobbesian model.

The moderate model is representative by a Rawlsian interpretation. In a Rawlsian interpretation, a citizen has a duty to obey a law in a nearly just society, whose basic structure is regulated by the principle of justice. Citizens have a general duty to obey laws because laws are passed by a fair procedure. Even if a law is contradicted with the principle of justice, citizens have a primary duty to obey an unjust law unless this injustice is serious and unable to be corrected by a fair procedure. Then citizens might be allowed to use civil disobedience. Although citizens might have no duty to obey an unjust law and an act of civil disobedience might be allowed, citizens still need to use a non violent method because of their fidelity to law. This moderate model treats the duty to obey the law as a primary duty in a liberal democratic regime but allows few exceptions. This model admits that a law’s moral merit is essential to determine whether there is such a duty but also emphasizes that social coordination is a fundamental purpose in societies.

The third model can be representative by an anarchic interpretation. This model disentangles the duty to obey the law from a political authority and citizens can decide whether or not to obey laws by their self considerations. If obedience is helpful for a personal goal, then a citizen has a “duty” to obey. If obedience is helpless, then there is no “duty” to obey. Because of lacking the recognition of a public authority, distinguishing between just and unjust laws in this anarchic interpretation is unnecessary. Of course, a conception about law in this model is also special because law is nothing more than an instrument to achieve a personal goal.

Different explanations in three models can be compared in the following table.

Absolute Model Moderate Model Anarchic Model

Intensities of the Duty

to Obey the LawStrong Moderate Weak

Reasons to Obey LawsEffective protection from

personal harm

The basic structure

governed by the principle

of justice

Self considerations

The Reason to Disobey

the Law

Lack of effective

protection

The moral merit of the

law

Disobedience can

achieve personal goal.

Conceptions between

Citizens and the Obedience Social Coordination Instrumental relation

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Authority

Status of Civil

Disobedience

Disturbance of the legal

order

A corrective method to

injusticeUnknown

Ways of Performing

Civil DisobedienceRevolutionary method

Non violent method with

the attitude of the fidelity

to law

Uncertain. It is

dependent on which

method is helpful for

personal goal.

The moderate model seems to fit with the common sense because it admits a general duty of obedience and also allows some exceptions for citizens not to obey an unjust law. Citizens might also have a moral obligation to against an unjust law. However, this model is the most unclear model as well.7 In order to illustrate the vagueness in a Rawlsian model, this proposal will use hypothetical cases to explain the vagueness.

2. A Thoughtful Experiment about the Application of the

Rawlsian Model

Since a Rawlsian model is an acceptable for the explanation of the duty to obey the law, it will be helpful to imagine a thoughtful experiment to see whether there is any problem in this model. It is possible to distinguish three types of societies; an extremely unjust society, a nearly just society, and a transitional society.

An extremely unjust society is a society whose basic structure is not governed by the principle of justice at all. This society has a legal system but a production of this legal system seriously violates citizens’ basic liberties and freedoms.8 This society might have the stabilization but the principle of justice has no effectiveness on the basic structure. And a nearly just society is a society whose basic structure is governed by the principle of justice. In this society the principle of justice effectively works but sometimes it is likely to produce unjust laws even if a procedure is just. A transitional society might undergo some radical

7 Strictly speaking, the concept of civil disobedience is meaningful only in the moderate model. In the absolute model, when there is no relation between obedience and protection, subjects have no obligation to compliance and therefore there is no “disobedience.” In the anarchic model, people decide whether to obey a law by their own decision, there is no moral obligation either. An anarchist might be bound by his personal reason but this might be his simply psychological binding not an obligation.8 For example, this society may deny some citizens’ basic liberties, like free speech and right to the basic education. Amount of citizens who are rejected to have basic liberties might be large but they have no significant influence on the politics.

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SocietiesExplanations

transitional processes, like the form of the government, the priority of basic values, and the legitimate foundation of the government etc. This transitional society is governed by the principle of justice. However, due to disputes over the priority of values or the legitimate foundation of the government, the principle of justice cannot regulate the basic structure in such a society effectively.

How does the Rawlsian model apply to three societies in the question of the duty to obey the law and what is the possible result in the application? In an extremely unjust society the Rawlsian model could argue for that there is no duty to obey the law because a productive process is not governed by the just procedure and the basic structure in this society is not governed by the principle of justice at all. Judging whether a law is just or unjust is meaningless and therefore a citizen does not have a duty to obey laws in an extremely unjust society. It is very interesting that when applying the Rawlsian model to this kind of society, the result could be the same as in an anarchic model. Both of them cancel the duty to obey the law.

In a nearly just society this Rawlsian model could argue that every citizen has a duty to obey a law no matter this law is just or unjust because the basic structure in this society is effectively governed by the principle of justice. Therefore there is a primary duty to obey a law without considering its moral merit. There are exceptions of this duty when extremely injustice happens. However, because the basic structure is governed effectively by the principle of justice, justification of cancelling this duty is restrictive.

In a transitional society the duty to obey the law in the Rawlsian model might be indeterminate. Although the basic structure in this society is governed by the principle of justice, the effectiveness of the principle is doubtful. Therefore this society could have an extremely unjust law produced by a just procedure and also could have a roughly just law produced by an extremely unjust procedure.9 The duty to obey the law in this society might be indeterminate. It is fair to say that the indeterminacy of this duty is a distinct character when Rawlsian model applies to a transitional society. The application of the Rawlsian model to three societies can be showed in the following table.

Extremely Unjust

SocietyNearly Just Society Transitional Society

CausesThe ineffectiveness of

the principle of justice

The effectiveness of the

principle of justice

Doubtful effectiveness of

the principle of justice

Duty to Obey the Law

in Citizens

No duty to obey the law

no matter its moral merit

Primary duty to obey the

law and the cancellation

Indeterminacy of the

duty to obey the law

9 It is imaginable that in such a society, there is a super majority controlling the legislation therefore there is no any rational discourse in the legislative process. This procedure may lack the public deliberations and the transparency but is able to produce just laws.

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of this duty is rare.

DistinctnessAlmost similar to the

anarchic model

Distinct from the

anarchic model and the

Hobbesian model.

Unknown

III. Four Categories of Civil Disobedience and Problems in

a Transitional Society

1. Four Categories: Non Violent Act, Violent but Non Lethal Act,

Act of Damaging Properties, and Strike

Different results of applying the Rawlsian model in societies are explained in the last section. A question in a transitional society can be called as the problem of indeterminacy. However the Rawlsian model has more challenges if categories of civil disobedience are considered. Assume the problem of indeterminacy can be resolved by a procedure to decide whether a citizen has a duty to obey an unjust law. If there is no duty, then a question of civil disobedience will arise. How does a citizen respond to an unjust law? And what is legitimate limitation in his response? These questions connect the concept of civil disobedience.

A preliminary definition of civil disobedience is necessary. First of all, a definition of civil disobedience excludes violent and lethal acts with the certainty or the high probability to cause personal injure. This kind of act could be used in a revolution or military rebellion but not in the case of civil disobedience. It could be justifiable in an extremely unjust society but is impossible to be justified in a transitional society. Second, after excluding violent and lethal acts from acts of civil disobedience, four primary categories of civil disobedience in a transitional society can be distinguished: the non violent act, the violent but non lethal act, the act of damaging properties, and the act of a strike.

The first category of the civil disobedience is the non violent act. This kind of act might cause some inconvenience for others but an act against an unjust law is non violent and without interfering in basic liberties that other people have. Examples of non violent acts are lawful or unlawful protests, acts of occupying a square or a building, or acts of blocking a street etc. The most distinct character in this category is a non violent and non interfering act. The second category is the violent but non lethal act. Violence in this category can be intentional or unintentional and it also could be physical or non physical. But violence is

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necessary to be non lethal. For example, when people are against expelling actions from policemen, they might choose to lie down or to throw rocks towards policemen but cannot use measures which cause serious injure on policemen.

The third category of civil disobedience is the act of damaging properties. This kind of act is a violent act but is not directly against personal rights or liberties. For example, people might throw rocks towards windows or break some public infrastructure. An act of damaging properties might also cause personal harm or create the high probability of causing personal harm. But its direct purpose is to damage properties or, more exactly speaking is, to cause some degree of terror.10

The fourth category of civil disobedience is a strike. A strike in this proposal means that people are refusing economic productions or social activities. Characters of a strike are its collectiveness and its goal. The collectiveness means a strike cannot work if some minimum amount of refusing actions does not exist. The goal in a strike can generally be distinguished into two parts: the political and non political goals. A strike, which might aim to force an employer to improve working conditions or to accept some specific contractual clause, can be called a non political strike. The scope in this strike could be limited in some specific area of economic productions. A strike, which aims to force a government to change important policies or laws, can be called a political strike. The scope of this political strike can be in general so that almost important economic and social productions are involved. Both of the two strikes are non violent but seriously harmful to a society and individuals by interrupting the chain of economic or social activities.

The four categories of civil disobedience can be explained in the following table.

Category

DistinctnessNon Violent Act

Violent but Non

Lethal Act

Damaging the

PropertyStrike

Nature of the Act Non violencePhysical or non

physical violence

Damaging but with

potentiality of

injuring others’

personal rights

Refusing to perform

the economic or

social production

Damage to others’

rights

Causing the

inconvenience

Mainly personal

rights

Mainly other’s

property right

Maybe the

inconvenience or

property right but

huge social loss

10 There is a real case in Taiwan which can be classified to this type. The case is the “Rice Bomber” case. A man placed several “bombs” to against Taiwan government’s policy to import of rice without the fully consideration on particular farmers’ situation in Taiwan during 2002 to 2003. This conduct shook Taiwan society. After the “bomber” actively confessed this crime, most intellectuals in Taiwan made a petition to ask the judicial power to treat this conduct as a kind of civil disobedience. The defendant was sentenced five years and ten months. In 2007 the defendant was released on parole.

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Violence or Non

ViolenceNon violence Violence Violence

Non violence but

serious injure on

others’ rights

2. Problems in a Transitional Society

In a transitional society how does the Rawlsian model treat these four categories? The category of the non violence is justifiable in a nearly just society therefore this category can be justified in a transitional society too. However other three categories are questionable in a transitional society where the Rawlsian model applies. First of all, violent but non lethal acts and acts of damaging properties are characterized by violence. This characteristic excludes these acts from the definition of civil disobedience in the Rawlsian model. Second, the category of a strike can be violent or non violent but, due to its nature of collectiveness and refusing economic productions, this category decreases the possibility of social coordination seriously. If social coordination is one of the essential purposes in the Rawlsian model, justifying a strike is also doubtful.

As this proposal mentions, a transitional society is a society whose basic structure is not governed by the principle of justice very well. Therefore the duty to obey the law is indeterminate. This causes a problem of the indeterminacy of the duty to obey the law. A more serious problem happens when focusing on the justification of four categories of civil disobedience. In addition to non violent acts, other three methods could be used very frequently in a transitional society but there is no satisfactory explanation by the Rawlsian model. Therefore this causes a problem of justification on civil disobedience in a transitional society. An investigation on these two problems is essential in a transitional society because citizens in this society might doubt whether there is a duty to obey a law and wonder about the question of civil disobedience. If problems of the indeterminacy and justification are serious, this society will be harmed due to the difficulty of social coordination.

IV. The Core Thesis, Questions, and Hypotheses

This proposal argues that the Rawlsian model fails in two aspects in a transitional society. The first aspect is that this model ignores some rigidity causing institutional injustice by unreflective legal paradigms. The institutional injustice happens when a law is just but a result of applying this law is unjust. In this circumstance there is a question of whether there is a duty to obey a law or not. For example, a time-limited law is invalid after its valid duration. But this law could still be applied in judicial decisions as a legal paradigm after its

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valid duration.11 It is a question of whether to obey a judicial judgment, which is based on this “invalid” law. The second aspect is that this model underestimates the role of civil disobedience in a transitional society. The Rawlsian model limits civil disobedience in the category of non violent acts and treats civil disobedience as the last resort to correct injustice. This limitation ignores some distinct circumstances in a transitional society. Because diversities of basic values and a poorly-functioned judicial power in a transitional society are imaginable, the category of non violent act in civil disobedience may malfunction in such a society. This proposal has a core thesis based on observations on the application of the Rawlsian model to a transitional society. The thesis is that the rigidity in a transitional society is a defect which makes this society unable to correct injustice by the interpretation of the Rawlsian model. In order to decrease the impact of this rigidity in a transitional society, the Rawlsian model needs to expand the types of injustice and the concept of civil disobedience.

In order to justify this thesis, several questions need to be addressed. The first question is the question of conceptions of injustice . The Rawlsian model in a transitional society might exclude some cases from considering them as injustice. Injustice can come from the law itself but also from some unreflective legal paradigms. Injustice from unreflective legal paradigm can be called institutional injustice and the Rawlsian model lacks for sufficiently explanations on the institutional injustice.

The second question is the question of conception of civil disobedience. The Rawlsian model delimits civil disobedience as a non violent act. But the concept of non violence is unclear. The concept of violence is also unclear. In a transitional society it is possible to imagine that there is a deep gap between public deliberation and the response from the public authority. To use a non violent act usually has no effect on some unjust cases. Can the Rawlsian model allow some extent of violence in the conception of civil disobedience? Or even in a transitional society is the violent civil disobedience also unallowable?

The third question is the question of justification in civil disobedience. To justify that a duty to obey an unjust law does not exist is not sufficient to justify civil disobedience. The justification of an unjust law is a precondition of justifying civil disobedience. But this is not sufficient. To justify civil disobedience in a transitional society sufficiently is dependent on different justification on categories of civil disobedience. And different categories may have different degree of justification.

11 There is an important issue in Taiwan about this kind of injustice. The law (The Special ACT of Punishing Robbers; 懲治盜匪條例) was enacted in 1944 because there was a status of war between China and Japan. The valid duration of SAPR was one year but KMT Government extended its valid duration when SAPR was already invalid. Exactly speaking, KMT Government extended an invalid law. Ironically SAPR was still applied until 2002. SAPR restricted judges’ discretion on sentencing in some crimes. The death penalty was the only option for judges. Until 2002 the Legislative Yuan passed a new law to abolish this “invalid” law. The amount of execution by SAPR during 1944 to 2002 is still unknown. There is no official statistical data.

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In order to explain the problem of the indeterminacy and justification in the Rawlsian and the three questions, this proposal plans to address several hypotheses to test in the future. The first hypothesis is the hypothesis of the rigidity, which argues that a legal paradigm will be produced unreflectively in a transitional society to maintain the stabilization of the Constitution but the result of this rigidity might cause serious injustice, which cannot be repaired by a ordinary legal procedure itself.

The second hypothesis is the hypothesis of the malfunction of liberal constitutionalism in a transitional society. This malfunction happens when a society undergoes a radical transformation of its political legitimacy. The malfunction can be judged in two criteria: an ability to transform social conflicts into a legal procedure and the possibility of social coordination. The function of the judicial power in liberal constitutionalism is to transform social conflicts into a rational legal argument and to decide rights and duties in concrete cases. Once this function fails, the malfunction of liberal constitutionalism might happen.

The third hypothesis is the hypothesis of the flexibility in civil disobedience, which means the conception of civil disobedience should include other three categories of civil disobedience. A flexible conception is necessary for a transitional society. However a flexible conception might also have the counter effect because the flexibility decreases the stability in a legal system and the possibility of social coordination in the Rawlsian model. However this counter effect might be controlled in the process of justification on civil disobedience.

V. Methodology

The methodology in the future research includes three kinds of methods. They are the citation analysis, the case study, and the empirical research. Each method has its distinct contribution to the core thesis and each hypothesis.

The method of the citation analysis is trying to build a theoretical foundation to conceptualize terms and to delimit the scope for the future research. Crucial topics, like theories about the duty to obey the law, different types of civil disobedience, the conception of liberal constitutionalism, and criticisms on this conception, will be discussed. The future research will have a core citation list about crucial topics. Here is a primary list of theorists or writings about the crucial topic:

Theories of the duty to obey the law: Thomas Hobbes, John Austin, Hans Kelsen, Gustav Radbruch, Carl Schmitt, H.L.A. Hart, Ronald Dworkin, and Joseph Raz.

The liberal constitutionalism: John Rawls’ theory, including A Theory of Justice and Political Liberalism.

The criticism on liberal constitutionalism: This research expects to study Carl

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Schmitt’s criticisms on the liberal constitutionalism.

The method of the case study is used to study some specific cases of civil disobedience in the old and new democratic countries. This study is sensitive to the political, legal, and social contexts because the issue of civil disobedience is by nature connected with these contexts. By using the case study, it is helpful to find out the main difference of civil disobedience between a new and an old democratic country. There are two research points in this method. The first research point is to describe various practices of civil disobedience in different political and social contexts and to find out how this kind of social conflict is able or unable to be reconciled by a legal system. The second research point is to study the legal reasoning of cases on civil disobedience and to find out how the cases of civil disobedience are be treated in a legal system. In a nutshell, the following three points are expected in the method of the case study:

Analyzing cases about civil disobedience in its own legal context.

Studying on the political and social context of these cases and building a primary comparable framework.

Using the conceptual toolkit to describe the meaning of civil disobedience in the modern constitutionalism.

The third method in this proposal is the empirical method. This proposal plans to conduct a survey to investigate the different subjects’ conceptions about law and their attitudes about an unjust law. This method can help find out the subjects’ different reasons to obey or to against the law. Besides of designing a survey instrument, the qualitative research might be also used in this empirical method. In summary there are two parts in the empirical method of law:

Investigation on reasons and attitude about civil disobedience by conducting a survey.

Systematically interviewing people who had the actual experience of performing civil disobedience and analyzing data in a systematical way.

The Expected Research Timetable

Expected

Years

Topics

First Year Second Year Third Year

Conceptual Toolkit

Cases Study

Survey Designing

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and Conducting

Hypothesis

Examining

First Drafted

Dissertation

Second Drafted

Dissertation

(Restructure)

Finishing

Dissertation

VI. Conclusions

This proposal focuses on the duty to obey the law and civil disobedience. It distinguishes three different models on explanations of this duty and takes the Rawlsian model as a primary object in this research. There is a question about the applicability for the Rawlsian model in different societies. In order to illustrate the applicability of the Rawlsian model, this proposal designs a thoughtful experiment by distinguishing three different types of societies; an extremely unjust, a nearly just, and a transitional society. This proposal points out that there is a problem of the indeterminacy when the Rawlsian model applies to a transitional society. This indeterminacy may decrease the stabilization and social coordination in a transitional society. Furthermore this proposal distinguishes four categories of civil disobedience and indicates a problem of justification by applying the Rawlsian model in four categories. The Rawlsian model defines civil disobedience as a non violent act and excludes the categories of violent but non lethal acts, of damaging properties, and of a strike. However, in fact, these three categories may constitute an important reformative power in a transitional society.

The research on the duty to obey the law and civil disobedience in this proposal contributes to the theoretical and practical interests. First of all, it contributes to a better understanding of the meaning of the Rawlsian model in a transitional society. This understanding is the foundation for a transitional society towards to a nearly just society. Secondly, legitimate limitations of a public authority benefits from a deliberation of the duty to obey the law. A public authority needs some legitimacy as its foundation to exercise coercive powers. The duty to obey the law draws a line between individual actions and the public morality. If moral justification of this line becomes clearer, the public meaning of citizens in liberal constitutionalism becomes clearer too. Thirdly, the discussion of civil disobedience also has a feedback to a nearly just society because this discussion investigates

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practical conditions of civil disobedience in a transitional society, which might be a pre-phase of a nearly just society. This proposal believes that the future research on this topic will not only contribute to a better understanding of theoretical issue but also to a better understanding of some social realities which is a necessary foundation to advance a realistically utopian.12

Bibliography

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