Civil olydnad - En rättsfilosofisk diskussion om legitimitet

Sammanfattning: This essay examines how civil disobedience can be justified based on an argument of a higher moral law in a representative democracy. The method used to answer this question derives from a discourse analysis method together with a critical perspective on the law. The main part of the essay uses a philosophical theoretical framework of natural law consisting of John Locke’s contract theory and Henry David Thoreau’s argument for civil disobedience. The Swedish legal philosophical discussions on civil disobedience from the 1990’s and onward is discussed in relation to the theoretical framework. To justify the act of breaking a law, a distinction between legality (law) and legitimacy (moral) needs to be invoked. In a representative democracy civil disobedience can be viewed as a complementary method to when traditional methods of participation are not available or preferable. A justifiable civilly disobedient act has to live up to both democracy-based and moral reasons such as conscientiousness or achievement of good consequences. In addition, there are high requirements on the civil disobedient to have made a well-balanced assessment of the reasons for and against committing the act of civil disobedience. In the analysis, I highlight in what way the justification arguments build on a democracy concept. From this, I show how it is possible, in the current discourse, to justify civil disobedience using a minority protection argument. Civil disobedience based on solidarity with a person in a weaker position can contribute to a democratic exchange by forcing the advocates for the dominant or majority opinion to defend their position. In this way those who break the law with morally justified civil disobedience can practice responsible citizenship through a controlled outlet for minority protection.