One who breaks an unjust law must do so openly, lovingly, and with a willingness to accept the penalty. I submit that an individual who breaks a law that conscience tells him is unjust and who willingly accepts the penalty of imprisonment in order to arouse the conscience of the community over its injustice, is in reality expressing the highest respect for law.
First, civil disobedience is public in the sense that the protestors do not hide their identity, and instead accept full responsibility – including any criminal punishment that may be forthcoming – for their lawbreaking. Second, it is intended as a form of communication with one’s fellow citizens, in contrast to vigilantism that seeks to coercively impose one’s desired objectives. Civil disobedience is thus primarily symbolic rather than instrumental. As Rawls explains, “it may be understood as addressing the sense of justice of the majority in order to urge reconsideration of the measures protested and to warn that, in the sincere opinion of the dissenters, the conditions of social cooperation are not being honored.” This means that civil disobedience should be directed at public actors (including the citizenry in general) – the harassment of private actors is more akin to coercive direct action.
These conditions help to protect against the two risks identified in the previous section. The symbolic and non-coercive nature of civil disobedience is consistent with civic respect for one’s fellow citizens and the rule of law generally. The protestors – unlike vigilantes – are not trying to “take the law into their own hands”. Instead, they martyr themselves against the criminal justice system, without causing undue harm to others, in hopes of appealing to the conscience of their fellow citizens. Democratic sovereignty is retained, as political power remains with the majority. The latter are not coerced, but simply invited – with purely moral force – to consider the concerns of the protestors.
By accepting full punishment under the existing laws, the protestors then reinforce their commitment to the rule of law. As Wofford writes, paraphrasing Gandhi, “we so respect the law that when we think it is so unjust that in conscience we cannot obey, then [we say] we belong in jail until that law is changed.” The threat of punishment also serves as a disincentive against unconscientious violations of the law. Together with the humble and fundamentally co-operative goals of civil disobedience as identified above, this helps to protect such protest against abuse, ensuring that little harm is done even by those with deeply mistaken moral convictions.
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I agree with everything you wrote here. Civil disobedience should be seen as part of the democratic process. It is necessary in many cases as an anti-dote to the often undemocratic nature of our governmental system. People resort to civil disobedience when a government or corporation ignores the will of the majority. Much of the environmental CV is of this nature. As well, of course, civil disobedience is used where the protestors are in a minority situation, and their actions can inspire support or are used to communicate their ideas to a greater number of people. Both the early women's sufrage and early anti-war movement CV were examples of this. I do think that provisions ought to be made in law for people who practices CV. There is no way in the world someone who trespasses to stop a war is the same as someone who trespasses to steal, and the difference ought to be expressed in law, also defining CV as part of democracy.
ReplyDelete"Civil disobedience should be seen as part of the democratic process."
ReplyDeleteSHOULD is the operative word I guess. Given the outrage world wide when the US and allies went into Iraq, not many countries listened to a VERY vocal significant percentage of their population. For example, in the UK the protests were larger than anything seen before, and yet still the government ignored them.
And they're still in power.
How did that happen?
Andy
Larry - I don't think "the will of the majority" has any intrinsic normative force. Civil disobedience may be most needed to protect minority rights from being trampled by careless majorities, for instance. In any case, I think the purpose of CD is to draw attention to the fact that important reasons are being overlooked, and not merely to express one's (otherwise arbitrary) "will".
ReplyDeleteAlso, I think it's important that CD is legally punished, for the two reasons explained in my post: (1) the deterrent is needed to prevent frivilous or unconscientious lawbreaking; and (2) it reaffirms the protesters' commitment to the rule of law in general. (Though Prof. Matthew Hall has a working paper that argues convincingly for a new verdict of "Guilty But Civilly Disobedient", which gives symbolic recognition of the moral difference you note, whilst still punishing the illegal action as is necessary.)
Alex - that's not civil disobedience, that's just plain vigilantism. It may well be justified in the slave case nonetheless, as I argued in comments to my previous post. But it's clearly a very different kind of action to the public communication I'm discussing in this post.
To expand on that last point, the key section of my post begins "it is intended as a form of communication with one’s fellow citizens, in contrast to vigilantism that seeks to coercively impose one’s desired objectives. Civil disobedience is thus primarily symbolic rather than instrumental..."
ReplyDeleteThe point of civil disobedience (as defined here) in response to slavery is not to directly free slaves. (That would be taking the law into your own hands, and hence an act of civic disrespect -- which may be justified in some circumstances, but is by my definition not civil disobedience.) Rather, the point is to communicate to the majority that you believe slavery is unjust, and hence to invite - not force! - them to revise the law.
The protest might involve breaking laws against trespass, etc. Or one might break the particular unjust law in question, but do so for primarily communicative reasons (which would plainly be undermined by doing it in secret).
ReplyDeleteI concur that civil disobedience is primarily an act of communication with the general public (which explains why it must be public).
ReplyDeleteHowever, it would be more precise to say that it is meant to change certain moral attitudes, rather than appeal to those attitudes. Its purpose is to strengthen certain moral sentiments where they exist, and to create certain moral sentiments where they do not exist.
In fact, merely 'appealing' to existing sentiments will do no good, because those existing sentiments were the ones that allowed the injustice to start with. If the people responsible thought the act wrong, they would not have created the law.
Note: Helping slaves to escape before the Civil War, and hiding Jews in Nazi Germany, were not acts of 'civil disobedience'. They were criminal acts. Civil disobedience ultimately shows respect for the rule of law. However, when a law is sufficiently unjust (as slavery and the holocaust were), then the law may be such that it deserves no respect.
You analysis appears to have a significant gap.
ReplyDeleteIn this country, sodomy is illegal in several states. (The Supreme Court recently held that the enforcement of those laws was unconstitutional, but the laws still existed.)
For years, millions of people have been engaging in this criminal activity.
It would seem that respect for the rule of law does not, in fact, require that people obey this particular law. Indeed, those who violated this law for so many years have committed no violation.
Nor does such a violation count as civil disobedience. It is not an attempt to communicate a wrong to others. Indeed, these actions were often done in private with no intention of others finding out.
Where do these cases fit in your analysis?
Hmm, it seems to me that ignoring such laws does constitute disrespect for the rule of law. (If people felt free to violate any laws they thought unjust, then we are left with "the rule of conscience" instead.) Of course, they're ridiculous laws, and (I presume) would soon be overturned in any functioning democracy of half-reasonable citizens. Surely even in the U.S., a reasoned discussion about the issue would inevitably lead to this result. So citizens in those states arguably *should* be agitating to change the law, but obeying it in the meantime. (This latter requirement would no doubt lend extra urgency to the movement to get such intrusive and unjust laws repealed as soon as possible!)
ReplyDelete