Rawls gives us a slightly different view. He is committed to the principle of fairness argument for prima facie obedience on the ground that Smith leaves aside—the general obligation to support just institution. "Free association under a just constitution gives rise to obligations provided the ends of the group are legitimate and arrangements fair." That is, Rawls thinks that we ought to have fidelity to law in the sense that we will try to support the institution. The question is whether and when that general duty dictates that we have a reason to obey a law for which we have no other moral reason.
However, Rawls is much stricter when it comes to officials than he is for private citizens. Since they are he ones administering the laws and punishments, they must follow the law strictly. Their obligation is greater partly because they have better situation and chance to advance their interests by using the law. This reminds us that the purpose of law is to restrain official behavior, not private citizens. Private citizens are constrained by the general duty of justice not to undermine just institutions and to avoid freeloading. That is, it would not be acceptable to break he law simply for selfish reasons.
What should we do when the officials obviously abuse otherwise just institutions? Rawls approaches the question of civil disobedience by considering a range of different kinds of "law-breaking" activities.
A blatant criminal act which breaks the law for unfair personal advantage at substantial harm to others
He ignores laws that we have no OTHER prima facie obligation to obey—we may assume that he does this for selfish reasons. An example is running a red light when here is no car or pedestrian coming.
Raising test cases. These are designed to get the law tested in the courts to see if it is constitutional. Frequently the only way to do this is to break the law deliberately since there must be real issues at stake for the court to consider the law.
Militant opposition to regime: This is joining a liberation army with the intent of overthrowing the government.
Civil disobedience to specific laws.
Conscientious objection and refusal to obey specific laws on moral grounds.
Rawls pays the most attention to the last two. He offers no general theory about when to engage in revolution except by his account on the limits on civil disobedience. His conclusion is a subtle one: it is neither quite that we have an obligation to engage in civil disobedience nor that we have permission. It is rather that it is the kind of thing that, from the original position, we might wish that a substantial number of our fellow citizens had a tendency to do. That is because it consists in disobeying laws in a way that plays an important role in maintaining just institutions. It is a positive act of fidelity to law. It is disobedience to the law within the limits of fidelity to law.
Rawls defines Civil disobedience as a form of democratic debate‑‑a non‑violent political act addressed to public guided and justified by political principles. The action is justified by the inner morality of law, by the principles that justify the rule of law (the two principles of justice and the natural rights they presuppose). The action appeals to the public conception of justice—the one reflected in the institution of the rule of law.
Rawls argues that any act of civil disobedience should be strictly justified. That requires:
The laws to which we object must be substantial and clear violations of justice. They would include things like serious and blatant discrimination or depriving people (particularly a minority) of fundamental rights.
Normal constitutional routes must have been tried and failed. We must try to eliminate the injustice by lawful means before engaging in civil disobedience (or at least have a very good argument that any legal attempt to change the law would be fruitless).
Level of disobedience in the society must not have reached a threshold (a level where it threatens the very goal of a rule of law. He suggests that this might mean that a coalition of minorities might be necessary to "take turns" engaging in civil disobedience so it does not get out of hand.
The action must be controlled. It is not right to provoke those in power to unjust violence. Any violence in the action would itself undermine just institutions. If the unjust authority is so vicious that no way of engaging in civil disobedience could be peaceful, then we must consider other activities—such as militant opposition to the regime. Civil disobedience is justifiable only in a society that is largely just.
The exercise should be rationally framed to advance the ends addressed. There should be no moral "witnessing" (showing off your moral "purity" just to demonstrate your concern.).
Rawls clarifies the nature and justification of civil disobedience by contrasting it with another morally motivated way of breaking laws: conscientious refusal. This is a simple refusal to obey immoral laws. It is non‑compliance because of opposition to the law based on personally held moral views. So it is not necessarily addressing the public or appealing to a shared conception of justice.
Conscientious objection is not a form of address. It is not necessarily seeking to convince the majority or the authorities to change the law. It is a simple choice to run the risk of punishment rather than do something one finds immoral.
In the case of conscientious objection, the violator disobeys specifically the law that she finds morally objectionable. For example, one may refuse to fight in a war. The person who engages in civil disobedience, by contrast, may choose to violate a different law in order to draw the public attention to the unjust law or policy. For example, he may participate in a public act of burning his draft card. He does not object to the draft law, but to the war. Burning the draft card in public may be a way of drawing public attention to the evil. The conscientious objector doesn't care if he gets any attention or not. He just refuses to go to war.
The wrong in the law may have nothing to do with justice. The conscientious objector may base it on religious views (say an opposition to attending school). There is no intrinsic limit on how much violence the objector may find justified in resisting the law she opposes. For example, the anti-abortion protesters find abortion so wrong, they will manhandle pregnant women and kill doctors to prevent them from conducting them.
Whether the actions of a conscientious objector are justified or not cannot be settled by any general theory of justice. The only relevant question is if their personal religious or moral views are correct and the wrong they are asked to do is great enough to justify resistance to a just institution. They do not appeal to the public concept of justice but to the private view of what is wrong.
Rawls does not, accordingly, offer any general justification for conscientious objection to law. His argument is only for Civil Disobedience which he argues helps maintain and preserve just institutions—the natural duty that justifies our obedience to law by the principle of fairness. It is a way of resisting injustice within limits of the inner morality of the law. It inhibits injustice in a just way.
A general disposition to civil disobedience introduces stability into a well-ordered society. The presence of a substantial number of people in a society with such a disposition offers a kind of protection to the least advantaged. They can expect a kind of natural resistance to gross injustices that ultimately protects them. Civil disobedience strikes a balance between the strength of a natural duty to comply with a just constitution and principles and the need to deal with injustice that may arise within a just system. Instilling a sense of its appropriateness would be something those in the original position would want us to do. We may do this by education, public example, and etc.
It is important to attend to the difference between this and conscientious objection and other forms of law breaking even when they are justified. It is not a case of deciding to obey only the laws that one want to or that pleases us. It requires us to build a careful justification based on political principles that underlie and guide the interpretation of constitution as they apply to the present situation.
The justification of civil disobedience signals a deep principle for Rawls. While there may be a final performative authority for matters of the law (the highest appeals court) and for determination of policy (the legislature), it is crucial to the idea of justice that there is no final authority on what is justice. We all have a veto and all must be given equal respect with regard to what justice is and requires. The inner morality of law does not recognize any authority about what the inner morality is.
You and I can criticize, disagree and each should act on her view of justice. This sounds to conservatives like a recipe for confusion. However, Rawls justifies it as a condition of theoretical advance, of moral evolution and progress in a society. Having a final authority about matters of ultimate justice and morality tends to lead to moral stagnation and cynicism. We must treat each other as full equals in understanding, accepting and applying reasonable moral principles, particularly the principles of justice. We do not need an established superior.
Democratic assumption is also a duty. Each of us is responsible for interpreting principles of justice in guiding our own conduct. We do have to consider when to obey the law. Rawls does not make the opposite decision lightly, but he makes it very clear that there are situations in which we each should give it serious consideration. Even the highest court may be wrong and is subject to criticism.
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