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Civil Disobedience in Democratic Regimes

  • Gary Wihl (a1)

Abstract

This article provides a fresh interpretation of John Rawls's discussion of civil disobedience in A Theory of Justice (Harvard University Press 1971). It focuses on an original feature in Rawls's analysis: civil disobedience as a form of speech deployed by a well-defined minority in an effort to correct an injustice perpetrated by a majority. For Rawls, civil disobedience as a speech function departs from the principle of protected free speech. Only certain expressions of civil disobedience are capable of producing genuine legal reform. Rawls gains new importance as part of a larger effort to understand and evaluate the outbreak of recent movements of mass dissent and protest from the Arab Spring to Ukraine to Hong Kong to the United States. A reconsideration of Rawls may be used to assess the likely success of these various expressions of dissent and protest.

Rawls's discussion of civil disobedience circumvents arguments in the legal literature that attempt to justify certain types of illegal activity with reference to moral conscience or natural law. Nevertheless, the focus on civil disobedience as speech encounters forms of coercive, resistant public opinion in the public sphere. Detailed, exemplary narratives by Martin Luther King and Norman Mailer on acts of civil disobedience illuminate forms of coercion that must be considered in extending and re-evaluating Rawls's original contributions.

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References

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1 The recent flood of events that could be classified generally as mass movements of dissent began with the so-called Arab Spring. This term is commonly used to refer to the series of protests and demonstrations in the Middle East and North Africa that began with the Tunisian Revolution in December 2010. Inspired in part by the Arab Spring, the Occupy Wall Street movement began in September 2011 in New York City to fight economic and social inequality, identifying the financial sector in particular as a root of evil. Beginning in May 2010 and renewed in 2011, protests broke out in Greece over the austerity measures that were put in place in compliance with the bailout conditions of the European Union and the International Monetary Fund. Similar anti-austerity protests broke out in Spain in May 2011 and were still ongoing to some extent at the time of writing this article in 2017. Beginning in November 2013, a series of protests calling for closer ties with the European Union, in opposition to Russian influence, led to the 2014 Ukrainian Revolution, which resulted in the ouster of pro-Russian President Yanukovych and his party, and to the establishment of a pro-European government in Ukraine. In Hong Kong, from September through December 2014, students led a series of protests against the increased involvement of the Chinese Communist Party in internal Hong Kong politics.

2 For examples of this scholarship see Cox, Archibald, ‘Direct Action, Civil Disobedience, and the Constitution’ (1966) 78 Proceedings of the Massachusetts Historical Society 105; Ronald Dworkin, ‘On Not Prosecuting Civil Disobedience’, The New York Review of Books, 6 June 1968, http://www.nybooks.com/articles/1968/06/06/on-not-prosecuting-civil-disobedience; Habermas, Jürgen, ‘Right and Violence: A German Trauma’ (1985) 1 Cultural Critique 125. Cox focuses his discussion of civil disobedience on the effectiveness of increasingly common ‘sit-ins, boycotts, protests, marches, and demonstrations’ (116–17), initially questioning the presumed right to interfere with normal business and government activities that cannot be considered ‘unjust’, such as a law against interrupting air traffic or laws applying to routine commercial operations. For Cox, there must be a much closer approximation between the specific act of civil disobedience and a specific form of injustice. He upholds that test as the working definition of proper civil disobedience. Dworkin takes a rather narrower approach based in jurisprudence, looking to guide the courts and government prosecutors in the decision whether to prosecute or to uphold the conviction of an individual for an act of civil disobedience. He focuses his discussion on the issue of the clarity of specific laws that are deliberately violated, arguing that where a law is possibly ‘invalid’ the burden should not be on the disobedient individual who faces punishment but rather on the government's need to define and clarify the justness of laws that generate moral objections. Finally, Habermas could be seen to stand for the rather more ‘political’ end of the spectrum of opinion. Writing about the Peace Movement in West Germany in the 1980s, modelled to some extent on anti-war protests in the United States in the 1960s, Habermas argues that civil disobedience is a necessary and valuable part of the political culture of a mature democracy, a constant check on the propensity of the government to veer off course in the direction of authoritarianism in the name of protecting civil order.

3 Harcourt, Bernard E, ‘Political Disobedience’ in Mitchell, WJT, Harcourt, Bernard E, Taussig, Michael (eds), Occupy: Three Inquiries in Disobedience (University of Chicago Press 2013) 45, 4547.

4 For a detailed analysis of the issue of punishment, and its appropriateness to civil disobedience, see Gewirth, Alan, ‘Civil Disobedience, Law, and Morality: An Examination of Justice Fortas’ Doctrine’ (1970) 54 The Monist 536. Gewirth treats Fortas as the exemplary expression of the conflict between a moral stance that is above the law and the necessity of upholding the law by means of punishing violations. Gewirth writes: ‘If Fortas holds that it is indeed the case that some laws are morally wrong, and hence that he himself should have disobeyed them, then how can he also hold that the state is correct in punishing persons for disobeying those laws?’ (540). Gewirth correctly identifies this problem as part of Fortas's efforts to uphold the role of the courts in deciding matters of civil disobedience. I follow Gewirth in the next section by treating Fortas as an exemplary expression of a strict, legal approach to civil disobedience, but then go on to look for a better solution with reference to the writings of John Rawls.

5 US Constitution, Amendment I: ‘Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble and to petition the government for a redress of grievances’.

6 Carter, Stephen L, The Dissent of the Governed (Harvard University Press 1998); King, Martin Luther, Stride Toward Freedom: The Montgomery Story (Harper Collins 1958).

7 See the chapter entitled ‘Pilgrimage to Nonviolence’ in King, ibid, in which Martin Luther King sets out the intellectual, philosophical foundation of the doctrine of non-violent disobedience. As a student at the Crozer Theological Seminary in 1948 and 1949, he was introduced to the canon of liberal philosophers out of which he began to form his beliefs in social justice. It was not until he read the works of Gandhi, however, that the doctrine of non-violent resistance as a form of political action took shape in his mind, and with which he became identified both in his writings and in the collective action that defined the Montgomery Boycott. He writes: ‘Gandhi was probably the first person in history to lift the love ethic of Jesus above mere interaction between individuals to a powerful and effective social force on a large scale … It was in this Gandhian emphasis on love and nonviolence that I discovered the method for social reform that I had been seeking for so many months. The intellectual and moral satisfaction that I failed to gain from the utilitarianism of Bentham and Mill, the revolutionary methods of Marx and Lenin, the social-contracts theory of Hobbes, the “back to nature” optimism of Rousseau, and the superman philosophy of Nietzsche, I found in the nonviolent resistance philosophy of Gandhi’ (84–85).

8 Perry, Lewis, Civil Disobedience: An American Tradition (Yale University Press 2013) 23. Perry quotes Arendt: ‘Although the phenomenon of civil disobedience is today a world-wide phenomenon’, Hannah Arendt wrote in 1970, ‘it still is primarily American in origin and substance … Some may object to describing this tradition as “primarily American” … But there is still validity in suggestions of its distinctiveness, as this book will demonstrate’.

9 Examples of militant, borderline civil disobedience include the Night of Terror episode of 1918, a violent confrontation between suffragists and the police force in the Occoquan Workhouse (ibid 153–55) and the ‘desperation’ of the Wobblie unionisation efforts whose illegal strikes met with violent attack by vigilantes (ibid 170–71).

10 Fortas, Abe, Concerning Dissent and Civil Disobedience (New American Library 1968) 6061.

11 ibid 34.

12 ibid.

13 ibid 30–34.

14 Arendt, Hannah, ‘Civil Disobedience’ in Arendt, Hannah, Crises of the Republic (Harcourt Brace & Company 1969) 49.

15 Rawls, John, A Theory of Justice (Harvard University Press 1971) 293343.

16 ibid 319–23.

17 Lovett, Frank, Rawls's Theory of Justice (Continuum 2011) 128–29.

18 Even recent scholarship on Rawls fails to identify the speech function as the most original feature of Rawls's discussion of civil disobedience. Scheuerman sees Rawls as continuing to define the ‘canonical, liberal’ approach to civil disobedience, which upholds the principle of civil disobedience as a means towards legal reform. Scheuerman's larger effort is to argue in favour of the reformist position as against newer, radical critiques of reformism as an insufficient means of agitation for greater justice. However, he ultimately finds that Rawls is too conservative in the limits that he places on illegal disobedience, comparing him, interestingly, with Martin Luther King, who is similarly committed to legal reform but with a willingness to push disruptive action further as a matter of moral conscience: Scheuerman, William E, ‘Recent Theories of Civil Disobedience: An Anti-Legal Turn?’ (2015) 23 The Journal of Political Philosophy 427, 447. Scheuerman argues that Rawls follows King in formulating the classic reformist opinion, but by discounting the original emphasis that Rawls places on speech, Scheuerman devalues Rawls's efforts to take King's work to a systemic level of democratic politics. In this article I suggest that the works of King and Rawls go hand in hand in their joint recognition that the public redress that is core to civil disobedience fluctuates between clarity and ‘messiness’, and that remains the problem in need of greater theorisation.

19 Rawls (n 15) 350–55.

20 ibid 351.

21 ibid 383.

22 ibid 364.

23 ibid 372–74.

24 ibid 372. In a separate essay on civil disobedience, published before A Theory of Justice, Rawls emphasises the need for clarity in the matter that is the subject of dissent, going so far as to suggest that overlapping issues bundled together as a mass movement is likely to fail: Rawls, John, ‘The Justification of Civil Disobedience’ (1969) in Freeman, Samuel (ed), John Rawls: Collected Papers (Harvard University Press 1999) 176.

25 Rawls (n 15) 372–73.

26 Pogge, Thomas, John Rawls: His Life and Theory of Justice (Kosch, Michelle tr, Oxford University Press 2007) 19: ‘Politically, the late 1960s were dominated by the Vietnam War. From the very beginning, Rawls believed this war to be unjust and repeatedly defended his assessment in public. Together with his colleague Roderick Firth, he took part in a Washington antiwar conference in May 1967’.

27 Recent scholarship on civil disobedience and generally on social activism fails to include any substantial discussion of Rawls. See, eg, Perry (n 8) and Stout, Jeffrey, Blessed Are the Organized: Grassroots Democracy in America (Princeton University Press 2010). A good summary discussion of Rawls on civil disobedience may also be found in Schaefer, David Lewis, Illiberal Justice: John Rawls vs. the American Political Tradition (University of Missouri Press 2007). Ben-Noon, Chemi, Civil Disobedience: The Israeli Experience (Paragon House 2015) paraphrases Rawls as part of a general survey of the literature but does not offer a detailed examination of his theory. Graham, Paul, Rawls: A Beginner's Guide (Oneworld 2007) 111 emphasises the public, speech function in civil disobedience and the importance of Martin Luther King: ‘The leading idea behind Rawls's theory of civil disobedience is that in breaking the law the civilly disobedient are addressing, or appealing to, the sense of justice of the majority’. For a comparison of Dworkin (n 2) and Rawls on civil disobedience, see Markovits, Daniel, ‘Democratic Disobedience’ (2005) 114 Yale Law Journal 1897 (however, the focus here is on legal problems rather than the speech function). For an analysis of Rawls's work on civil disobedience in the context of liberal philosophy, see Grundmann, Reiner and Mantziaris, Christos, ‘Fundamentalist Intolerance or Civil Disobedience? Strange Loops in Liberal Theory’ (1991) 19 Political Theory 572. Sabl, Andrew, ‘Looking Forward to Justice: Rawlsian Civil Disobedience and its Non-Rawlsian Lessons’ (2001) 9(3) The Journal of Political Philosophy 307 offers a careful analysis of weaknesses and flaws in Rawls's definitions of ‘nearly just’ and ‘appeal to the majority’, though the essay is primarily sympathetic and a defence of Rawls's theory. As with the other references, however, Sabl's essay does not focus on what I consider to be the most distinctive feature of Rawls's theory: the speech function and its degrees of clarity in the public sphere.

28 Harel, Alon, ‘Freedom of Speech’ in Marmor, Andrei (ed), The Routledge Companion to Philosophy of Law (Routledge 2012) 599.

29 ibid 609.

30 ibid.

31 King (n 6).

32 Mailer, Norman, Armies of the Night (New American Library 1968).

33 King (n 6). The Montgomery Bus Boycott began on 5 December 1955 in response to the 1 December arrest of Rosa Parks and continued for over a year until 20 December 1956, resulting in the Supreme Court order to desegregate the Montgomery bus system.

34 The 21 October 1967 March on the Pentagon was a protest organised by the National Mobilization Committee to End the War in Vietnam. Following earlier anti-war marches in New York and San Francisco, organisers gathered supporters at the Lincoln Memorial and marched to the Pentagon, confronting military police and US marshals.

35 Jack Richardson, ‘The Aesthetics of Norman Mailer’, The New York Review of Books, 8 May 1969; A Alvarez, ‘Reflections in a Bloodshot Eye’, The New Statesman, 20 September 1968; Alfred Kazin, ‘The Trouble He's Seen’, The New York Times, 5 May 1968; Norman Mailer, ‘The Prisoner of Sex’, Harper's Magazine, 1 March 1971, 41; Alan Trachtenberg, ‘Mailer on the Steps of the Pentagon’, The Nation, 27 May 1968, 701; Diana Trilling, ‘On the Steps of Low Library: Liberalism and the Revolution of the Young’, Commentary, 1 November 1968, 29.

36 ‘Protest: The Banners of Dissent’, Time, 27 October 1967, 23.

37 ibid 24.

38 ibid 25.

39 Young, Iris Marion, ‘Activist Challenges to Deliberative Democracy’ in Fishkin, James S and Laslett, Peter (eds), Debating Deliberative Democracy (Blackwell 2003) 102.

40 Mailer (n 32) 104.

41 ibid 105.

42 ibid 86–88; Time (n 36).

43 Mailer (n 32) 225–41.

44 ibid 240.

For bibliographical and editorial assistance, I am pleased to acknowledge the work of my research assistants at Washington University, Susannah Williams, Heidi Lim and Michael Sanders. I thank Chemi Ben-Noon of the Academic Center for Science and Law for reading and commenting upon an earlier version of this article. The editorial staff and external readers for the Israel Law Review suggested major improvements and clarifications of my argument. Finally, I thank the Faculty of Law at Bar-Ilan University for providing me with the opportunity to present a portion of this essay in a faculty seminar, kindly arranged and hosted by Hanoch Sheinman.

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Civil Disobedience in Democratic Regimes

  • Gary Wihl (a1)

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