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Arguing for the moral and legal defensibility of conscientious disobedience, and particularly civil disobedience, this book first examines the morality of conscience and conscientiousness and then the legality of conscientious breach of law. Part I focuses on the morality of conscience and conscientiousness. These are two comparatively neglected concepts in contemporary moral and legal theory, though they are central to practical debates about the ethics of war, healthcare, and political participation, among others. The bookdisambiguates the descriptive notion of conscientiousness as sincere conviction from the evaluative notion of conscience as genuine moral responsiveness. This gives rise to a communicative principle of conscientiousness (CPC), according to which sincere moral conviction requires not only that we actconsistently with our beliefs and make universal moral judgements, but also that we not seek to evade the consequences of doing so and be willing to communicate our convictions to others. The CPC informs the ensuing discussion of persons' rights and duties within a liberal democracy. In contrast with standard liberal theorizing, the book shows that people who engage in the communicative practice of suitably constrained civil disobedience have a better claim to a moral right toconscientious action than do people who engage in non-communicative, private, or evasive 'conscientious' objection. Part II argues that civil disobedience is generally more defensible than personal disobedience. The book explores two putative legal defences - a demands-of-conviction defence and a necessity defence - and argues that each applies more readily to civil disobedience than to personal disobedience. Thebook responds to concerns about strategic-action, democracy, competition of values, and proportionality, all of which disregard the communicative nature of sincere conviction and underestimate the capacity of democratic law to recognise the legitimacy and importance of values other than literalcompliance with the law. The book concludes by highlighting a parallel between the communicative aims of civil disobedience and the communicative aims of lawful punishment. Only the former may claim to have dialogue ambitions, which raises difficulties for the justifiability of punishing civil disobedience.Oxford Legal Philosophy publishes the best new work in philosophically-oriented legal theory. It commissions and solicits monographs in all branches of the subject, including works on philosophical issues in all areas of public and private law, and in the national, transnational, and internationalrealms; studies of the nature of law, legal institutions, and legal reasoning; treatments of problems in political morality as they bear on law; and explorations in the nature and development of legal philosophy itself. The series represents diverse traditions of thought but always with an emphasison rigour and originality. It sets the standard in contemporary jurisprudence.
Kimberley Brownlee is a Senior Lecturer in moral, political, and legal philosophy at the University of Manchester. She has held an HLA Hart Visiting Research Fellowship at the Oxford University Centre for Ethics, Law, and Philosophy; a Fulbright Visiting Research Chair at Vanderbilt University; and a Visiting Research Fellowship at the University of St Andrews Centre for Ethics, Philosophy, and Public Affairs. She has written on the philosophy of punishment, legal obligation, conscientious dissent, civil disobedience, ideals, practical reason, and human rights. She is the Honorary Secretary of Society for Applied Philosophy and a member of the Review Board for the International Encyclopedia of Ethics.
Table of Contents
Part I: The Morality of Conscience Introduction: Dissent and Disobedience 1. The Nature of Conscience and Conscientiousness 2. Moral Demands of Conscience 3. Moral Rights of Conscience and of Conscientiousness Part II: The Legality of Conscience 4. The Legal Duty to Break the Law 5. A Demands of Conviction Defence 6. A Necessity Defence 7. Punishment