The civil disobedient does not simply speak out, march, or otherwise lawfully raise objections. First, must the civil disobedient violate the same law she is protesting? Close the weight of authority recognizes indirect civil disobedience as well. Close People may violate a law they do not oppose such as a traffic or trespass law in order to challenge another law or policy such as military policy. A second complication arises in legal orders with multiple sources of law.
VI, cl. Black, Jr. Close Does this mean that our paradigm cases of civil disobedience actually involved no disobedience? While breach of law is a necessary aspect of civil disobedience, so too is a constraining commitment to state authority. Civil disobedience is more preservative than revolutionary. Close At the heart of most every conception of civil disobedience, then, is the paradox of law-breaking that is, at the same time, law-respecting.
As an initial matter, civil disobedience must be conscientious—it must be serious, sincere, and based on conviction. Close An unscrupulous or impulsive act does not merit the label. Close to require her to break the law. She must also communicate that sentiment to an audience. As Kimberley Brownlee observes, the civil disobedient typically has both backward-looking and forward-looking communicative aims. Because an open breach of law may itself be powerfully expressive, the communicative element of civil disobedience will often be satisfied by the very act of law-breaking.
Canonical examples have transpired in plain view and with advance notice to authorities, and some theorists have ascribed definitional significance to these attributes. Close Yet contemporaneous openness and advance notice may not be strictly necessary. In some cases—for instance, the release of animals from research laboratories or the vandalizing of nuclear power plants—such publicity would furnish legal enforcers the opportunity to thwart the endeavor.
In these cases, subsequent acknowledgement and explanation of the act may fulfill the requirement of communicativeness, along with many of the social values this requirement is thought to serve. In breaking the law, furthermore, the civil disobedient must aim to advance a reform agenda of some sort.
But cf. We discuss these variants infra notes , — and accompanying text. Close It is, in substantial part, this reformist intent that distinguishes civil disobedience from conscientious objection as each has been traditionally understood. But see Walzer, Obligation, supra note 20, at 12 classifying conscientious objection as form of civil disobedience ; Jeremy K.
Close The conscientious objector wishes to opt out. The civil disobedient, in contrast, is more interested in changing the law to which she objects than in exempting herself from participation. First, numerous theorists contend, the means of resistance must be nonviolent.
Close Others respond that even if nonviolence is generally to be preferred, it is a category error to view any particular mode of conduct as a necessary aspect of civil disobedience. Murphy ed. Theorists have advanced additional criteria for distinguishing justified from unjustified civil disobedience. Second, classic accounts of civil disobedience envision the breach of law being paired with submission to punishment.
Others stress the insufficiency of willingness to accept punishment as a basis for legitimation. Close Martin Luther King, Jr. See Michael J. If it resists the legal sanction that it brings upon itself, in truth it is no longer engaged in civil disobedience.
They were not civil disobedients. Close , they deliberately stayed within the limits of the law. Like the speed-limit protest, some of these examples involve hyperbolic compliance with authoritative commands. Employees with grievances occasionally use a tactic that has nearly the opposite character of walking out on the job. NLRB, F. They break no laws, cause as much disruption as a strike, yet everyone still gets paid!
Simon, The Practice of Justice 90—91 Rather than violate company policies or industry regulations to make a point about their value to the airline, they complied in a rigid and highly disruptive manner. If you ran your car like American Airlines has been running for the last two weeks[,] if your car was leaking oil on the drive, write it up. Windshield wipers streaking, write it up. Shocks squeaking, write it up. Car pulls slightly to the left, write it up.
Is a pilot authorized to do this[? Now if the same problem occurs guys are putting it in the log book and taking the delay. Although never fully implemented, the Cloward—Piven proposal remains a canonical text for the welfare rights movement. Close If millions of eligible poor people could be mobilized to claim their statutory due, Cloward and Piven thought, the welfare system would collapse, its moral and material inadequacies laid bare.
Still other examples involve the actions of government officials, including their creation of new laws. Close Although the challenge to abortion rights is clear, proponents of this legislation feign obsequiousness to federal authority, insisting that they are merely hewing to the health and safety standards established by the U.
B also offers a variety of additional examples. Drawing on standard accounts of civil disobedience, we define uncivil obedience to consist of the following elements:. Uncivil obedience, as we conceive of it, is thus both a foil for and partial mirror of civil disobedience.
Comparable disagreements are to be expected for uncivil obedience. It does not require that the act be morally attractive or guided by fundamental principles of justice.
Nor does it require that the effort be devoid of self-interest—a condition even classic examples of civil disobedience could not meet. The bar to clear here is low. Close If driven by little more than a desire for private benefit, work-to-rule protests of the sort noted above would not satisfy the conscientiousness criterion.
As long as the latter set of motivations exerts substantial influence, we think it appropriate to characterize such actions as conscientious. Uncivil obedience is a tactic for challenging the prevailing order. But it must be a tactic that is rooted in genuine belief about right and wrong and, as we discuss below, that is deployed to achieve lasting reform.
Communicativeness requires that the act convey disapproval of a law or policy. This message may be conveyed performatively, through the act itself, or it may be conveyed verbally, through commentary about the act. If a handful of protesters drove fifty-five miles per hour on the freeway one morning and never announced why, their behavior might elicit some honking but it would not register as a critique of the speed limit—and so would not satisfy the communicativeness criterion.
If the motorists affixed explanatory stickers to their rear windows, the message would become more apparent still. One civil disobedient may be able to prick the conscience of the community by lying down in the middle of a busy street.
One would-be uncivil obedient achieves nothing by driving at the speed limit. Supra note 21 and accompanying text. Communicativeness, however, does not necessarily require candor. If it is well understood that a certain act represents a conscientious effort to disrupt a law or policy, then the act may count as uncivil obedience even if the actor herself denies any disruptive ambition.
What matters is the social meaning of her words and deeds, not the semantic content of her rationalizations. Reformist intent requires that the actor not only convey disapproval of some law or policy but also aspire to reshape it in an enduring manner, one that transcends her individual circumstances. More broadly, many controversial uses of law will fail to satisfy one or more of the elements above.
Close In some instances, as in the speed-limit protest and the Cloward—Piven welfare proposal, the uncivil obedient may aspire to change the law or policy with which she is conspicuously complying. Following the civil disobedience literature, we will call this direct uncivil obedience. In other instances, as in the work-to-rule and medication-abortion examples, she may utilize one law or policy to challenge another law or policy, just as a civil disobedient might utilize trespass laws in her case, by violating them to protest nuclear power.
We will call this indirect uncivil obedience and will return to the direct—indirect distinction below. The reform that the uncivil obedient seeks may be more or less explicit. The National Motorists Association members who protested the fifty-five-miles-per-hour speed limit wanted Congress to repeal the relevant statute a permanent conditional spending restriction enacted in Mobil Oil Corp. Congress did in fact repeal the national speed limit two years later, in , following a decline in the price of crude oil.
Most basically, uncivil obedience can enhance the salience of a regulation or highlight its objectionable nature. In many cases, uncivil obedience aims to raise the social as well as the private cost of maintaining the condemned law or policy. Legality is the major point of divergence from civil disobedience. This criterion requires that authoritative directives be followed rather than flouted, obeyed rather than disobeyed. Close These laws and regulations may be public in nature, as in the case of a statute or a constitution, or they may be more private, as in the case of a contract or a code of conduct.
Supra note As we elaborate in Part III, the mere fact of scrupulous conformity with one targeted norm for example, a speed limit does not necessarily ensure conformity with other relevant norms for example, an emergency vehicle right of way.
Legality, as we are using it, requires that there be no evident law-breaking of any sort. It cannot always be ruled out that an official enforcer or adjudicator will ultimately deem an act of uncivil obedience to be proscribed—for example, on the view that it excessively frustrates the spirit or purpose of a statute—just as it cannot always be ruled out that a judge will ultimately deem an act of civil disobedience to be permitted.
Close The critical thing is that, at the time the act is taken, it must not be apparent to the uncivil obedient or to informed observers that her behavior is proscribed. Mere evasion does not qualify. The uncivil obedient must believe that her behavior truly conforms to relevant legal norms, not just that she is unlikely to be caught or punished. An important implication of the legality criterion is that the uncivil obedient need not evince any willingness to submit to punishment by the authorities, for no formal sanction is anticipated.
Any number of informal sanctions may follow an episode of uncivil obedience. C considering informal regulation of uncivil obedience. Close Employees who engage in work to rule may be ridiculed, harassed, or worse. But because the uncivil obedient must genuinely and reasonably believe that her actions violate no laws, she will not expect to be penalized through an official fine, forfeiture, prison sentence, or the like.
Whereas the nonviolence usually attending civil disobedience mitigates the breach of law, the nonviolence associated with uncivil obedience reflects the fact that no breach has occurred. Finally, legal provocation requires that the act, although believed to be lawful, strike others as jarring or subversive—and strike others as jarring or subversive at least in part because of its very attentiveness to law.
In one sense, the National Motorists Association members behaved in an utterly unexceptional manner when they drove fifty-five on the freeway. They simply followed the rules as written. We will have more to say in Part II. B about provocation. They act legally but not legalistically. Most socially provocative behaviors that are lawful—from speaking in a loud voice to making outrageous claims to dressing like a chicken—are not provocative in the way they relate to law.
Close Uncivil obedience, in contrast, seeks to highlight, and exploit, the peculiar character of its compliance. Just as the civil disobedient flaunts her law-breaking, the uncivil obedient flaunts her law-following.
Uncivil Definition, id. Just as civil disobedience is notably more civil than ordinary law-breaking, uncivil obedience is notably less civil than ordinary law-following.
Civil disobedience is civil in that it displays uncommon regard for law and decorum, considering that it partakes of illegality. The oxymoronic labels capture these internal tensions. Meyer, supra note 1. Again, our aim is not so much to provide an exhaustive guide to uncivil obedience as it is to provide a useful guide—and, in so doing, to put the subject on the intellectual map. Legal Provocation.
This element does much the same work for uncivil obedience as breach of law does for civil disobedience. It is law-breaking above all else that distinguishes civil disobedience from more conventional forms of protest; legal provocation is what sets uncivil obedience apart. Yet while law-breaking is generally taken to be a straightforward proposition in the civil disobedience literature, 61 61 See, e. Close legal provocation admits of degrees and assumes quite different guises that are worth pulling apart.
How does adherence to law ever manage to provoke? The superficial paradox dissolves as soon as one considers the informal social norms that shape expectations as to how any directive will be followed and applied. These norms can be breached even when the directive itself is not. In either case, the uncivil obedient must defy practices or expectations that are widely followed or held among the community of persons bound by the law of the area.
We mean for this formulation to be a bit loose. Just how widely followed or held a practice or expectation must be, and just how to mark the boundaries of a relevant area or community, are not in our view matters that can be specified ex ante with precision.
Close or between the letter of the law and its perceived purpose or spirit, and in the attention that is called to this gap. Just as some types of law-breaking jaywalking with no cars around, driving fifty-seven miles per hour on the freeway may not register as unusual or uncooperative on account of this gap, some types of law-following can trigger the opposite reaction. Americans by and large assume that motorists do not wish to drive fifty-five on the freeway and that employees do not wish to work robotically to orders.
Legal provocation tends to take one of several basic forms. The simplest cases involve a legal command addressed to members of the public. In some relatively rare instances, the very fact of compliance with the command may be provocative.
The speed-limit protest is an example. The National Motorists Association members drove just as fast as the law allows. In other cases, the degree of compliance with an official directive can provoke. Work to rule exploits this possibility. Managers assume that employees will be responsive to orders and will respect the terms of their contracts—but not exactly and exclusively, not woodenly.
Unusual methods of compliance, as well as workarounds that avoid the obligation to comply, can similarly provoke. Graetz, The Decline and Fall? Close Spending the money they saved on a lavish trip, the Boyters used their annual vacation-divorces to ridicule and raise awareness of the marriage penalty.
Under New Management! Although some might prefer to limit the concept of uncivil obedience to protests against government laws or policies, on our account at least some private codes of conduct may be targeted as well. Supra notes 51—52 and accompanying text. Less ingenious examples of subversive compliance appear in the news with some regularity.
Close Whereas work to rule provokes by fixating on the precise terms of an instruction, this tactic takes advantage of the fact that official directives invariably fail to address various details and contingencies.
See infra Part III. A explicating this point. But there is nothing odd about envisioning a gap between what is technically permitted by such laws and what prevailing customs or understandings would allow. When dissenters target this gap, they too may provoke through their attentiveness to, and perverse respect for, legal language. The Cloward—Piven plan, which aimed to take down the welfare system by achieving full participation of eligible individuals, provides an example.
We will soon turn to a prominent set of contemporary examples, involving use of the quorum call, hold, and other procedural privileges by minority-party senators. See infra notes 96— and accompanying text. Times Mar. Legal Analysis discussing collective-action problems faced by defendants.
Close and variants of her proposal have been put into practice. Close In Los Angeles, for example, public defenders at one point reportedly refused to enter guilty pleas for individuals charged with prostitution until sentencing policies for the offense were amended. Government Actors.
Government officials and entities can engage in it too. One virtue of the concept of uncivil obedience, in our view, is that it helps illuminate methodological continuities across public and private dissent. We will consider the special case of subnational legislation shortly. Just as full compliance is not common or desirable in many areas of law, neither is full enforcement. Edwards, supra note 56, at 80 n. Close Without a specific legislative instruction to do so, there is little reason to expect that an executive will implement any given authority or prosecute any given prohibition to a T, at the inevitable cost of depleting resources available for other responsibilities.
Full enforcement, consequently, may be seen as upending rather than perfecting the existing sociolegal order. For example, when Theodore Roosevelt became head of the New York Police Commission in the s, he began to strictly enforce laws that required saloons to close on Sundays. Roosevelt Answers, N. As a journalist observed at the time:. He was appointed to enforce the laws as they appeared on the statute books.
He enforced them. That was originality; it rarely had been done before. I shall enforce it. Grant, First Inaugural Address Mar. Philip Shabecoff, Mrs. Gorsuch as a Crusading Tiger? Critics Wonder Why, N.
Times Dec. But I always said I will fulfill my oath of office. Executive non enforcement of the law, in contrast, will not as a general matter qualify as legal provocation. Close Some believe that nonenforcement can be justified when the law at issue is clearly unconstitutional or in other circumstances. Close But if a policy of nonenforcement provokes, it is not because it flaunts its formal legality but rather because it flirts so brazenly with illegality. Jury nullification is similar in this regard, at least in the many jurisdictions where its lawfulness is denied by judges and other authorities.
Close —could count as uncivil obedience. While nonenforcement usually will not provoke in the necessary manner, practices that are similar in effect, but different in their legal posture, may do so. As a presidential candidate, Mitt Romney pledged that he would dismantle the Affordable Care Act, lawfully, in a similar manner, although critics pointed out that only certain provisions of the Act were subject to waiver.
In contemporary American practice, judges in particular are expected to attend carefully to the letter of the law. Victoria F. Close Even when they construe a directive in a literalistic manner, it will therefore rarely come across as an ironic or inflammatory intervention; it is more likely to be seen as ordinary judicial fare.
Judges are also believed by many to be authoritative interpreters of legal texts, so that their rulings are seen as elaborating the underlying law rather than changing or challenging it in some reformist fashion. Despite the many critiques of, and general skepticism toward, arguments for the moral duty to obey the law, most prominently following A.
They contend that civil disobedience in particular is presumptively wrong because of its anti-democratic nature. The agent who violates the outcomes of democratic decision-making processes because she disapproves of them puts herself above the law and threatens the legal and democratic order.
Recent scholarship on civil disobedience has taken what may be dubbed an anarchist turn , as theorists tend to no longer approach civil disobedience as presumptively wrong and in tension with political obligation.
Others defend a disjunctive moral duty to obey the law or disobey it civilly Lefkowitz ; and still others argue that the grounds commonly used to support political obligation — the natural duty of justice, the principle of fairness, the Samaritan duty, and associative obligations — yield duties to resist injustice, through civil and uncivil disobedience, under non-ideal circumstances, and that such duties should be considered among our political obligations Delmas a.
Likewise, on a virtue-ethical account, political obligation can be understood as an obligation to respect rather than to obey the law, which can sometimes give rise to a duty to engage in civil disobedience Moraro , ch. Given the assumption that people have a moral duty to obey the law and the concern that civil disobedience has the potential to destabilize society, Rawls famously raised the bar for the justified use of the practice, requiring acts of civil disobedience 1 to target serious and long-standing injustice and at the same time appeal to widely accepted principles of justice, 2 to be undertaken as a last resort, and 3 to be done in coordination with other minority groups with similar grievances Rawls , —9.
These conditions for the justification of civil disobedience, which are critically examined in this part, are closely tied not only to the ostensible need to diffuse its destabilizing potential and discourage proliferation of the practice, but also to the efficacy and role of civil disobedience in society which is explored further in 3. Longstanding Injustice : Why did Rawls restrict the target of civil disobedience to entrenched, longstanding injustices — in particular, violations of the principle of equal basic liberties?
Racial segregation fell in this category, according to Rawls, but not economic inequality. Rawls thinks that appeals to publicly shared principles of constitutional morality per the publicity-as-appeal requirement are more likely to persuade the majority and succeed to bring about reform. Critics reject this justificatory condition because it arbitrarily excludes both progressive but not widely shared conceptions of justice such as cosmopolitanism and appeals to other principles of morality besides justice say, regarding the ethical treatment of animals; Singer , 86— Scholars also include in the class of justifiable targets private agents such as trade unions, banks, health insurance companies, labs, farm factories, and private universities Walzer , ch.
Cooke Finally, observation of past and present social movements, including the Abolitionist movement, MeToo, and Black Lives Matter, suggests that, rather than appealing to the public principles of political morality, civil disobedients may in fact seek to transform common sense morality. Last Resort : What grounds the widely accepted requirement that civil disobedience be undertaken as a last resort?
How do we know agents have met it? One position is that, in a liberal democracy, citizens should use proper legal channels of political participation to express their grievances Raz ; though Raz grants that individual acts of disobedience can be justified in liberal regimes. But, since causes defended by a minority are often those most opposed by persons in power, legal channels may be less than wholly effective Rawls , Moreover, it is unclear when a person could claim to have reached a situation of last resort; she could continue to use the same tired legal methods without end.
To ward off such challenges, Rawls suggests that, if past actions, including by others, have shown the majority to be immovable or apathetic, then further attempts may reasonably be thought fruitless and the dissenter may be confident her civil disobedience is a last resort , Minority Group Coordination : The coordination requirement is designed to regulate the overall level of dissent Rawls , While there is some merit to this condition, arguably civil disobedience that does not meet it can still be justifiable.
In some cases, there will be no time or opportunity to coordinate with other minorities. In other cases, other minority groups may be unable or unwilling to coordinate. A reason for Rawls to defend this coordination requirement is that often coordination serves a more important concern, namely, the achievement of good consequences. It is often argued that civil disobedience can only be justified if there is a high probability that it will produce positive change, since only such change can justify exposing society to the risks of harm usually associated with civil disobedience — namely, its destabilizing and divisive potential and the risk that it could encourage lawbreaking or escalate into uncivil disobedience.
In response to these challenges, one might question the empirical claims that civil disobedience is divisive and that it has the consequence of leading others to use disobedience to achieve changes in policy.
One might also question whether it necessarily would be a bad thing if civil disobedience had these consequences. Concerning likelihood of success, civil disobedience can seem most justifiable when the situation appears hopeless and when the government refuses to listen to conventional forms of communication.
Additionally, even when general success seems unlikely, civil disobedience might be defended for any reprieve from harm that it brings to victims of a bad law or policy. Tree-hugging, for example, can delay or curtail a clear-cut logging scheme and thereby prolong the protection of an ecosystem. The justification of civil disobedience further articulates the conditions for its effective role in society.
Far from undermining the rule of law or destabilizing society, civil disobedience could strengthen the social and legal order. Both ideas deem the practice of civil disobedience to be a valuable component of the public political culture of a near-just constitutional democratic society. Deliberative democrats Markovits ; Smith , ch. Agents engaged in civil disobedience can enhance democratic legitimacy in a number of ways, including by putting a heretofore-neglected issue on the political agenda and raising awareness about its stakes; contributing to and informing democratic deliberation; highlighting the outsize influence of powerful players and the exclusionary effects of certain processes of public deliberation, and working to make the latter more inclusive.
Civil disobedience does not only aim to invigorate democratic sovereignty, but also can constitute a form of democratic empowerment in itself — an exercise of political agency that is especially meaningful for marginalized groups. Through civil disobedience, individuals discover and realize their power. They work together and forge bonds of solidarity. They engage in democratic politics. Many activists further enact within their movement the norms and values that guide their struggles, for instance through radical inclusion, direct democratic decision-making, aspiration to consensus, and leaderless organizational structures.
Some theorists insist on the need to align the means of protest with its aims, by deploying only persuasive, non-violent forms of protest that reflect democratic ideals Habermas , —4; M. Cooke , while others contend that civil disobedience can be confrontational and coercive without betraying its democratic aims Smith ; Fung , A third approach to the value of civil disobedience, besides the liberal and democratic lenses, comes from the political realist perspective.
Other realists criticize both liberal and deliberative democratic perspectives for their deductive, top-down approach to moral analysis, their quest for rational consensus, and their assumption that people can be persuaded by rational arguments alone Sabl , ; Mantena For her part, Mantena debunks the common understanding of Gandhi and King as committed in principle and absolutely to non-violence, showing that their endorsement of non-violence reflected concerns of political efficacy.
Recent social scientific research has corroborated the effectiveness of non-violence in campaigns of civil resistance, which seek to topple dictatorships or colonial powers Chenoweth and Stephan ; Schock How should the state respond to civil disobedience? The question of appropriate legal response applies, first, to the actions of law-enforcers when deciding whether and how to intervene in a civilly disobedient action. It applies, second, to the actions of prosecutors when deciding whether to file charges and proceed to trial.
Finally, it applies to the actions of judges and juries when deciding whether to convict and for judges how much to punish. How much punishment is appropriate for civil disobedients? Is punishment appropriate at all? If there is a right to civil disobedience, then, as we saw, it protects people from punishment. Unlike civil wrongs, which are privately brought, criminal wrongs are public wrongs: the polity, not the victim there may not be any , prosecutes the alleged wrongdoer.
If civilly disobedient breaches of law are public wrongs, comparable to or worse than ordinary offenses, then civil disobedients should be punished similarly or more severely than those who commit ordinary offenses.
Kent Greenawalt lays out reasons to hold that civil disobedients deserve the same punishment as others who breach the same laws. First, the demands of proportionality would seem to recommend a uniform application of legal prohibitions.
Since trespass is prohibited, persons who breach trespass laws in protest of either those laws or other laws would seem to be equally liable to persons who breach trespass laws for private purposes.
Second, any principle that officials may use to excuse justified illegal acts will result in some failures to punish unjustified acts, for which the purposes of punishment would be more fully served. Even when officials make correct judgments about which acts to excuse, citizens may draw mistaken inferences, and restraints of deterrence and norm acceptance may be weakened for unjustified acts that resemble justified ones Greenawalt , What follows is that all such violations, justified and unjustified, should be treated the same.
There also are reasons to believe that civil disobedients should be dealt with more severely than are others who have offended. First, as mentioned above, disobedients seem to have put themselves above the law in preferring their own moral judgment about a certain issue to that of the democratic decision-making process and the rule of law.
Second, the communicative aspect of civil disobedience could be said to aggravate disobedient offenses since their communication usually is attended by much greater publicity than most covert violations are.
This forces legal authorities to concern themselves with the possibility that law-abiding citizens will feel distressed, insecure, and perhaps imposed on, if no action is taken. So, notes Greenawalt, while authorities may quietly let minor breaches pass, failure to respond to violations performed, in some respect, in the presence of authority, may undercut claims that the rules and the persons who administered them deserve respect , —2.
Third, and related, civil disobedients often invite, and might inspire, other citizens to do what they do. Such risk of proliferation of civil disobedience and, further, of its escalation into lawlessness and violence, may support the imposition of more severe punishment for agents engaged in civil disobedience.
However, both the models of civil disobedience presented above, which stress its role and value in liberal democracies, and the arguments for the right to civil disobedience examined below, strongly push for the opposite view that civil disobedients, if punished at all, should be dealt with more leniently than others who have offended.
The government can exercise its responsibility of leniency by not prosecuting civil disobedience at all, depending on the balance of reasons, including individual rights, state interests, social costs, and constitutional benefits. In general, prosecutors should not charge disobedients with the most serious offenses applicable and judges should give them light sentences. Leniency follows from the recognition of the special constitutional status of civil disobedience.
In this view, officials at all levels have the discretion to not sanction civil disobedients, and they should use it. Prosecutors have and should use their discretion not to press charges against civil disobedients in some cases, or to charge them with the least serious offense possible.
Dworkin urges judges to engage in an open dialogue with civil disobedients at least those who articulate legal arguments in defense of their actions and dismiss their charges after hearing them, or to use their discretion in sentencing, for instance by accepting guilty pleas or guilty verdicts but imposing trivial punishments.
To the contrary, judges might well systematically decide against civil disobedients, upholding the special interests of the ruling class of which they are part. For Rawls, there is only a moral right to engage in justified civil disobedience. Dworkin outlines what such a right of conduct might look like, analogizing civil disobedients with Supreme Court justices, who test the constitutional validity of unjust law through direct disobedience of that law. For the latter, Dworkin argues that utilitarian reasons for punishing should be weighed against the fact that the accused acted out of principled convictions, and that the balance should generally favor leniency.
Joseph Raz puts forward a different account of the right to civil disobedience, insisting that this right extends to cases in which people ought not to exercise the right: it is part of the nature and purpose of rights of conduct that they give persons a protected sphere in which to act rightly or wrongly. To say that there is a right to civil disobedience is to allow the legitimacy of resorting to this form of political action for causes one opposes Raz , By contrast, in a liberal state, the right to political activity is, by hypothesis, adequately protected by law and, hence, the right to political participation cannot ground a right to civil disobedience.
A different view of rights holds that when a person appeals to political participation rights to defend her disobedience, she does not necessarily criticize the law for outlawing her action. Lefkowitz maintains that members of minorities can appreciate that democratic discussions often must be cut short so that decisions may be taken, and those who engage in civil disobedience may view current policy as the best compromise between the need to act and the need to accommodate continued debate.
Nonetheless, they also can point out that, with greater resources or further time for debate, their view might have held sway. Given this possibility, the right to political participation must include a right to continue to contest the result after the votes are counted or the decisions taken. And this right should include suitably constrained civil disobedience because the best conception of political participation rights is one that reduces as much as possible the impact that luck has on the popularity of a view Lefkowitz ; see also Smith , ch.
An alternative response to Raz questions whether the right to civil disobedience must be derived from rights to political participation. Brownlee , ch. Whether such a right would fall under participation rights depends on the expansiveness of the latter rights. When the right to participate is understood to accommodate only legal protest, then the right conscientiously to object, which commonsensically includes civil disobedience, must be viewed as distinct from political participation rights.
A further challenge to a regime-focused account is that real societies do not align with a dichotomy between liberal and illiberal regimes; rather they fall along a spectrum of liberality and illiberality, being both more or less liberal relative to each other and being more or less liberal in some domains than in others.
Philosophers have typically focused on the question of how courts should treat civil disobedients, while neglecting to apply that question to law enforcement. Yet the police have much discretion in how to deal with civil disobedients. In particular, they have no obligation to arrest protesters when they commit minor violations of the law such as traffic obstruction: accommodation of and communication with protesters is something they can but all too rarely decide to do.
Instead, many governments practice militarized repression of protests. Local police departments in the U. Also, the British government sought to strengthen public order laws and secure new police powers to crack down on Extinction Rebellion XR , the global environmental movement whose street protests, die-ins, and roadblocks for climate justice have brought cities to a standstill.
Accommodation requires communication channels between police and activists and involves strategies such as pre-negotiated arrests. While the U. Neither approach respects anything like a right to civil disobedience. A constitutional government committed to recognizing the right to civil disobedience would also have to reform part of its criminal laws and make available certain defenses. Brownlee proposes two. Second, states should accept necessity as a justificatory defense for civil disobedience undertaken as a reasonable and parsimonious response to violations of and threats to non-contingent basic needs Brownlee , ch.
As these defenses suggest, constitutionally recognizing civil disobedience does not mean making civil disobedience legal. Disobedients would still be arrested and prosecuted, but they would get to explain and defend their actions in court. They would be heard. Even so, civil disobedience remains an enduring, vibrant part of political activism and, increasingly, benefits from transnational alliances. Theorists have long assumed that civil disobedience only begs justification in liberal, democratic societies — the best real-world candidates for legitimate states.
However, civil disobedience also raises questions in undemocratic and illegitimate contexts, regarding its overall role, strategic value, and tactical efficacy. Yet they still beg significant questions concerning the proper contours of extra-institutional dissident politics and the justification of uncivil and forceful tactics in repressive contexts, including violence against police and the destruction of pro-China shops and Chinese banks.
Finally, whereas theorists have tended to think of civil disobedience as generally undertaken to achieve worthy public goals, liberal democratic states have recently witnessed much disobedience in pursuit of anti-democratic and illiberal goals, including conscientious refusal to abide by antidiscrimination statutes and violations of, and protests against, laws requiring the provision of reproductive services and the public health measures enacted to slow the spread of the coronavirus.
We may need a different lens than liberal and democratic theorists have offered to evaluate the full range of conservative social movements, counter-movements, and reactionary movements which resort to civil and other forms of disobedience. Thanks to Kelsey Vicar for research assistance. Features of Civil Disobedience 1. Many disputes in the private realm — for example, which parent gets custody of the children upon divorce — are also subject to decision according to law.
A recognition that civil disobedience can play a healthy role in Canadian society does not undermine the rule of law. Quite the reverse, actually. For the citizens of a country to respect law, their legal and governmental systems must, on the whole, seem legitimate to them.
When a law is so offensive to the conscience of a significant number of people that they are willing to engage in or support the breaking of that law, then society as a whole is put on notice that change may well be needed. Our legal and governmental systems are not perfect, and they never will be.
But where imperfections are serious, it is right — not wrong — to take a stand against them. A conscientious citizen should not abide by a law or policy that is profoundly unjust. Civil disobedience can strengthen the rule of law by leading to the correction of unjust or seriously wrong laws before disrespect for the system as a whole has a chance to take hold. How has it be used historically?
Reading Time: 6 minutes What is civil disobedience? Public opinion and civil disobedience Non-violence, as Lexier notes, is usually cited as a defining characteristic of civil disobedience. The law on civil disobedience From one point of view, the law on civil disobedience is quite straight-forward. Civil disobedience and environmental issues The history of civil disobedience shows it has been used to advance some of the most pressing public policy issues of the day — for example, the right of women to vote, desegregation of the American South and the need to end Apartheid in South Africa.
Civil disobedience and the rule of law Part of what makes Canada a better place to live than many other countries is that Canadians have a relatively strong commitment to the rule of law. Notes 1. Funded by.
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