Algoritmo localmente adaptativo para la mejora de se ˜nales de voz
5.1. Algoritmo Propuesto
The most participatory element in Dworkin’s thought comes in his discussion of civil disobedience, first in an essay on the civil rights and anti-war activism of the 1960s and 70s, and later in a commentary on the anti-nuclear protests at Greenham Common.53 Dworkin provides one of the more radical interpretations of the practice of civil disobedience within the liberal philosophical tradition. Dworkin’s aim in addressing the topic of civil disobedience is to counter the argument of conservatives that it is unfair for some to disobey the law and some not. The rule of law is more
‘intelligent and complex’ than the ‘draconian view’ that crime must be punished, and that he who misjudges the law must take the consequences’.54 A citizen’s allegiance is to the law, not to any particular institutions interpretation of what the law is. This entails that an authoritative ruling by the Supreme on the validity of the law in dispute, while nonetheless a factor to be considered in any reasonable decision on disobedience, is not treated as conclusive, given the Court itself is not infallible in Dworkin’s eyes and has historically changed its mind on rights issues.
If in a citizen’s own considered and reasonable view the law is wrong, the ‘issue is one touching fundamental personal or political rights, and it is arguable that the Supreme Court has made a mistake, a man is within his social rights in refusing to accept that decision as conclusive’.55 For Dworkin, civil disobedience is a further means by which citizens contribute to shaping and testing the law so that it best tracks justice. It functions, principally, as a kind of social barometer that provides evidence of the practical effects of certain policies and the changes in society’s morality over time. In this way, Dworkin’s historical perspective on the development of social morality allows him to appreciate the effects of numerous acts of individual transgression in such a way that Rawls’s theory, focused on more exceptional public acts of disobedience cannot. This is of special importance when we consider rights over sexual autonomy,
53 Dworkin, Civil disobedience', Taking Rights Seriously; 'Civil disobedience and nuclear protest', A Matter of Principle.
54 Dworkin, Taking Rights Seriously, 222.
55 Dworkin, A Matter of Principle. 215.
such as rights to homosexual partnerships, abortion and contraception. Dworkin notes that without violation of anti-contraception laws by some organisations, for example, the community’s indifference to those laws would never have become established.56 Disobedience therefore has crucial epistemic benefits: it generates new norms and practical understandings with which to evaluate dominant arrangements. These in turn feed into wider civil society and inform processes of social change enhancing the overall quality of political and social change. Disobedience is also an indicator of the strength of feeling on an issue:
If we did not have the pressure of dissent, we would not have a dramatic statement of the degree to which a court decision against the dissenter is felt to be wrong, a demonstration that is surely pertinent to the question of whether it was right. We would increase the chance of being governed by rules that offend the principles we claim to serve.57
A law that a large number of people are tempted to disobey is doubtful on moral grounds and hence on constitutional grounds, for Dworkin, given that the
community’s morality is relevant to the question of a law’s validity. In this way, civil disobedience feeds in relevant moral and practical information into the Supreme Court’s decisions. Thus, the ‘record a citizen makes in following his own judgement’
in violating a law and the ‘arguments he makes supporting that judgment when he has the opportunity, are helpful in creating the best judicial decision possible’.58
In keeping with his moralized conception of constitutional rights, and his historically-sensitive method of interpretation, Dworkin’s theory allows a creative role for civil disobedience in the formulation of new rights through novel readings of the abstract clauses of the constitution. Nonetheless, the potential for moral innovation is limited by the fact rights must be translatable into constitutional terms. This has the
regrettable consequence of rendering illegitimate those forms of civil disobedience that refer to the moral ideal of rights without a legal textual basis or appeal beyond
domestic legal and constitutional practices to the rights in international human rights law. In addition to this in-built conservatism, the need to adhere to particular
56 Dworkin, Taking Rights Seriously, 212.
57 Dworkin, Taking Rights Seriously, 214.
58 Dworkin, Taking Rights Seriously, 213.
constitutional formulations and past precedent may distort the moral issues at stake.
This is most obvious in Dworkin’s attempt to defend the legitimacy of anti-Vietnam war protests by interpreting actions aimed at the draft and use by the US of immoral weapons and tactics in constitutional terms. Although the Vietnam protesters did make constitutional arguments in support of Congress having war powers, it is surely a mischaracterization of their motivations to construe them exclusively in
constitutional terms.
There are further issues with the limited range and forms of disobedience Dworkin’s theory permits. In his essay on anti-nuclear protests, Dworkin distinguishes between
‘integrity-based’, ‘justice-based’ and ‘policy-based’ civil disobedience. The first form of civil disobedience involves defensive violation of any law that runs contrary to personal integrity and conscience, as with Jehovah's witnesses who refuse to salute the flag. Justice-based civil disobedience involves seeking out and imposing unjust laws and policies where a majority is pursuing its own interests and goals at the expense of the rights of a minority, as with the black civil rights movement in the US. Finally, policy-based obedience is when people break the law not because it is unjust or immoral but because they think it ‘unwise, stupid, and dangerous for the majority as well as the minority’. Dworkin classes protests against American nuclear missiles in Europe as an example of policy-based civil disobedience.59
Different conditions obtain for the justification of each type of civil disobedience.
There is a presumption that disobedience is an option of last resort after official avenues of redress have been tried and failed. Integrity-based disobedience is typically a matter of urgency, involving an immediate moral loss, and so there is no need to work through the political process before disobeying the immoral law. By contrast, justice-based disobedience requires that people must exhaust the normal political process to have the programme they dislike reversed by constitutional means.
Dworkin draws a further distinction between ‘persuasive’ civil disobedience, which aims to change the mind of the majority, and ‘non-persuasive’ civil disobedience, which functions by coercion by imposing some cost on the programme the majority
59 Dworkin, A Matter of Principle,107-115.
favours in the hope it will find the cost unacceptably high.60 Dworkin admits the legitimacy of non-persuasive forms of civil disobedience in pursuit of rights, but he imposes extremely stringent conditions on its use with the effect of limiting it to very rare cases.
Non-persuasive disobedience is justified, says Dworkin, when the targeted program is deeply unjust; the political process offers no realistic hope of reversal; persuasive civil disobedience is ineffective and there are non-violent, non-persuasive techniques available that hold out reasonable chance of success without the risk of being counter-productive. These demanding conditions reflect the fact that, for Dworkin, non-persuasive civil disobedience is by its nature elitist: instead of attempting to persuade a majority, it attempts to compel them towards justice. Nonetheless, he notes, while only justified in exceptional circumstances, the case of justice-based disobedience can at least appeal to the example of judicial review and the ‘constitutional power of judges to hold acts of the majority's representatives void when they outrage principles of justice embedded in constitution’.61 The use of non-persuasive methods however is not permissible for policy-based civil disobedience, as practiced by the peace protesters at Greenham Common who attempted to disrupt work at the weapons facility through non-violent means. Questions of policy concern the common interest, rather than minority rights, and therefore cannot appeal to the same anti-majoritarian principle.
There are difficulties inherent in Dworkin’s classifications of both the form and the justification of civil disobedience that will lead us to mischaracterize actual instances of civil disobedience. I have already mentioned the difficulty Dworkin has in interpreting the anti-Vietnam protests as grounded in principles of constitutional justice – it seems more plausibly a dispute over the national interest and hence of policy. The issue of nuclear weapons meanwhile might be viewed from the perspective of the right to life and hence of ‘justice’ or indeed as a question of ‘integrity’ since, as Robert Goodin points out, personal moral integrity may require us not simply to refrain from certain
60 Dworkin, A Matter of Principle, 109-111.
61 Dworkin, A Matter of Principle, 111.
acts but to deliberately pursue moral action. It is likely that many involved in the anti-nuclear protests saw it as a matter of personal moral conscience.62
Dworkin regards civil disobedience on economic grounds as unjustified, as he sees it as an instance of policy where a majority has its preferences challenged on the basis they are wrong. He leaves open the possibility that it might be permissible as a matter of justice - presumably where a minority is being discriminated against in the provision of basic economic goods – but has little more to say on the topic. It is not clear how his theory would deal with paradigm cases of civil disobedience, such as strikes and tax boycotts. The fundamental problem with Dworkin’s approach, underlying some of these difficulties in classification and justification, is that he regards justice as the over-riding principle that legitimates civil disobedience to the exclusion of democratic concerns. Throughout Dworkin’s work he maintains a dichotomous conceptualisation of politics between a realm of ‘justice’ and ‘morality’ on one side and ‘policy’ and
‘interests’ on the other. As we have seen, democratic politics is cast disreputably as a forum for the pursuit of personal interests, with the ever-present likelihood of
intolerant and corrupting preferences. Civil disobedience is legitimate insofar as it conforms to the institutional function of judicial review as a principled check on the threat of democratic politics conceived in these vulgar utilitarian terms. Under this view, the essential problem for a theory of civil disobedience mirrors the difficulty with judicial review: it challenges a majority’s decision-making. Dworkin maintains the uneasy combination of an idealised view of how democratic institutions function with a distinctly non-ideal view of the motivations of democratic actors. He assumes that the law or policy being challenged by disobedients is endorsed by a majority of voters.
Yet this would not necessarily be the case even in the most well-functioning political system, given the sheer number of decisions to be made, the variety and complexity of the issues involved and the asymmetries of information among voters and political officials. Disobedience under these circumstances can force an issue into political discussion that has not been considered or else provoke the public to rethink a
previous decision in light of new circumstances. In less ideal cases, the political process itself may systematically exclude opinions and interests that threaten dominant classes and place barriers on the participation of less favoured groups. Dworkin’s insistence
62 Goodin, “Civil Disobedience and Nuclear Protest.”
that justice-based civil disobedience should have first exhausted the official political process ignores the fact that the process itself may be illegitimate. This was the case for Dworkin’s preferred example of the civil rights movement given the fact blacks were excluded from democratic institutions in the South.
Dworkin’s disapproval of non-persuasive disobedience except in extreme
circumstances poses a further difficulty with the classic liberal model that I return to in my discussion of Rawls. The principal difficulty social movements face is not simply that the majority views them as morally mistaken. Typically, movements will face significant obstacles to having their issues considered at all due to the dominance of public discourse by vested interests and the prevalence of entrenched modes of thought and behaviour that marginalise their issues from discussion. A crucial function of disobedience is to force neglected issues on to the political agenda by interrupting the ordinary flow of political life and unsettling dominant frames of understanding. As Sidney Tarrow notes, disruption forces marginal issues on to the agenda by getting in the way of the everyday routines and behaviour of, unsettling their practices and thus waking citizens up to the protesters’ existence and their demands.63
The co-ordinated violation of laws, especially when conducted over a sustained period of time, often has as its aim the deliberative provocation of authorities as part of a ruptural strategy of political change that lays bare the brute reality of political domination in contradiction to the regime’s claims to legitimacy. In the words of Martin Luther King, it is part of a political strategy that forces a ‘crisis’ in the system to press the moral urgency of the situation and compel a fundamental rethink of issues at stake. While King’s ‘I have a dream speech’ is known for its stirring vision of a harmonious society of racial equality, he also warned ‘there will be neither rest nor tranquillity in America until the Negro is granted his citizenship rights’.64 Even the most tame and orderly protest march imposes a cost on the state in terms of resources for policing and the closure of roads. The mobilisation of large numbers of
discontented individuals on the streets meanwhile always carries with it the tacit
63 Tarrow, Power in Movement, 96.
64 Discussed in Adam Fairclough, To Redeem the Soul of America: The Southern Christian Leadership Conference and Martin Luther King, Jr (University of Georgia Press, 2001), 226.
underlying threat of social disorder. It is neither plausible nor morally desirable to conceive of civil disobedience as primarily persuasive by nature.
Conclusion
In this chapter, I have drawn out the participatory strands of Dworkin’s theory according to which all citizens have a role to play in the realisation of rights, whether indirectly through principled public debate of judicial decisions or directly through civil disobedience. I began by noting how the idea of trumps meets the standard of fidelity insofar as it provides an attractive explanation of how certain minority rights are justified. Moreover, his theory is more politically oriented than is often suggested in its sensitivity to realist considerations with respect to the balance of power between social groups. I further noted the virtues of Dworkin’s anti-positivist conception of the practice of rights as one in which citizens contribute to an open-ended project of justice through the ongoing defence and assertion of moral claims against law and majority opinion that embody new conceptions of what equal respect requires. I nonetheless noted a number of difficulties inherent in defining rights as trumps in explaining key parts of the practice: the misleading implication rights are absolute; the difficulty accounting for social rights; the collective dimension of rights and rights held against authoritarian elites. Political rights are better thought of, in line with the fidelity standard, as claims against others that are presumptively decisive against competing reasons for action with the character of the justification left open. I made a number of democratic criticisms of Dworkin’s account of the judicial role and noted the conservative bias of a constitutional politics of rights: Dworkin’s theory fails to show equal respect to citizens as authors and respondents of claims. Insofar as civic participation is valued within Dworkin’s theory, it is principally for its instrumental benefits in enhancing the overall epistemic quality of decision-making on rights, which typically occurs when a minority brings to the attention of the majority the fact they have not been treated respectfully. Thus, civic involvement in rights politics
contributes to the likelihood of achieving justice and is not in itself a requirement of justice. The contribution of civic activism towards a rich and pluralistic discourse on justice is important, as we shall see, but of equal or greater importance is its role in securing political inclusion and hence the recognition respect owed to democratic citizens. I concluded by noting that Dworkin’s theory presents an unrealistic account of disobedience at odds with its fundamental nature as a political practice. An
important role for social movements is to challenge and overcome the democratic deficits of political institutions. In the next chapter, I examine the claims made on behalf of political constitutionalism, which sees a more active role for civic
participation in rights politics.
Chapter 5: Rights as electoral proposals: The parliamentary model
It just happened that the driver made a demand and I just didn't feel like obeying his demand. I was quite tired after spending a full day working
- Rosa Parks
The legal constitutionalist model of judicial rights review has been adopted by a large and growing number of liberal democracies in recent years. In response to this trend, a dissenting note is struck by political constitutionalists who argue that judicial veto powers over legislation is undemocratic: since citizens disagree profoundly about rights, they ought to actively participate in how rights are decided through the election of representatives to sovereign parliaments. Jeremy Waldron and Richard Bellamy provide the most powerful and influential theories of this kind, which they link to a distinctive conception of the nature of rights and the normative relations they entail. They argue that rights do not demarcate a domain of morality outside and against politics that functions to limit and constrain it, but instead exist within the
‘circumstances of politics’ as claims made by equal citizens upon one another
regarding the distribution of benefits and burdens within society. Waldron has linked his influential criticisms of judicial review to a procedural theory of the rule of law that locates the authority of law in the unique capacity of parliamentary decision-making to legitimately represent and debate the principled political differences and interests that divide citizens.1 Bellamy’s work, meanwhile, brings into focus electoral
participation in an account of the constitutional character of democratic citizenship, which presents citizenship not as a legal status, tied to a package of
judicially-protected rights, but as the active creation and definition of rights by citizens through participation in political institutions modelled in accordance with republican
principles of non-domination.2
1 Waldron, Law and Disagreement.
2 Bellamy, Political Constitutionalism.
Political constitutionalists make a persuasive case for active participation by citizens in accordance with the demands of political equality, noting its potential to open up official ideologies of rights to democratic challenge. My aim in this chapter is to critique political constitutionalism from a perspective that takes seriously the
politically contested nature of rights and the requirement that citizens’ views on their
politically contested nature of rights and the requirement that citizens’ views on their