Since 2010 mass protests, in multiple forms from revolutionary militancy to non-violent civil disobedience, have become a recurring fact of political life across a broad spectrum of states. Protest in the name of liberal reform or outright change of government now ranges across states in various stages of democracy. We can observe protest and demonstrations in mature democracies, such as the Black Lives Matter movement in the United States, as well as radical protests in the name of a collective desire for democratic reform, such as the Arab Spring or the overthrow of the pro-Russian Ukrainian government.1 Not perhaps since the 1960s have public protests, demonstrations, acts of civil disobedience and violent upheavals become as frequent. The frequency and diversity of mass dissent requires a fresh reconsideration of the legal and political foundations upon which it rests. What are the principles on which dissent is tolerated in a democracy? How do we distinguish civil disobedience as a positive act that furthers democratic reform from protest movements that fail or remain ineffective? Moreover, do we have a sufficiently clear definition of civil disobedience that could be applied appropriately to acts of dissent? What are the political and legal lessons of acts of civil disobedience from the 1960s, which spurred an outpouring of legal and philosophical scholarship that remains foundational to this day?2
This article proposes answers to these questions in three stages. First, it is necessary to isolate the legal and political definitions of civil disobedience from its close relations: militancy, revolution, or any form of violent, public disorder in the name of one group's cause. Civil disobedience is by definition an illegal activity, a deliberate violation of existing law, with the possibility of punishment, but it walks a fine line that tests public acceptance by casting doubt on the legitimacy of the law and order that is being deliberately broken. We need a working definition of this fine line in the first instance.
The crucial separation of civil disobedience, properly defined, from the general category of mass protest or mass dissent, is set out by law professor Bernard E Harcourt in ‘Political Disobedience’, his contribution to a recent trio of essays entitled Occupy: Three Inquiries in Disobedience:3
‘Civil disobedience’ accepts the legitimacy of the political structure and of our political institutions, but resists the moral authority of the resulting laws … It respects the legal norm at the moment of resistance, and places itself under the sanction of that norm. If it resists the legal sanction that it brings upon itself, in truth it is no longer engaged in civil disobedience … Civil disobedience aims not to displace the lawmaking institutions or the structure of legal governance, but rather to change the existing laws by demonstrating their injustice … ‘Political disobedience’, by contrast, resists the very way in which we are governed. It resists the structure of partisan politics, the demand for policy reforms, the call for party identification.
In an effort to isolate and define civil disobedience proper from dissent in general, I rely primarily upon the work of Supreme Court Justice Abe Fortas, who has written in defence of civil disobedience as a form of protected speech while preserving the possibility of punishment for breaking existing law. Next I turn to a relatively neglected portion of John Rawls's A Theory of Justice, which contains an extensive analysis of the role of civil disobedience as a positive, stabilising feature of a constitutional democracy. Rawls's analysis deserves renewed attention as an original contribution to the definition of civil disobedience, strengthening its role but at the same time narrowly specifying what counts, substantively, as civil disobedience. His effort to provide a substantive rather than a procedural definition merits greater consideration. His emphasis on the substantive content of civil disobedience, in terms that belong to core features of a just society, relies on a less fully articulated, secondary argument that defines civil disobedience as ‘public speech’. In an effort to further Rawls's argument, I refer to the work of Alon Harel on freedom of speech. Harel offers an interpretation of free speech that focuses on the process by which speech acts uphold and strengthen the values that supposedly legitimate free speech in the first place. He shifts interpretations of the right of free speech away from abstract principles into its actual functional realisation in the public sphere. This accords with Rawls's approach, which makes reference to the connection between speech and civil disobedience, not in terms of a protected right, but as an actual mechanism for moving public opinion towards a more just set of laws. Finally, I provide two exemplary cases of civil disobedience, based on the Rawls-Harel model: Martin Luther King's account of the Montgomery Boycott, and Norman Mailer's account of the largest public anti-war protest in US history, the 1967 March on the Pentagon.
While the leap to political disobedience may seem immediately attractive to dissenters who lack faith ‘in the system’, political disobedience is highly vulnerable to suppression and the state's proclamation of law and order. Within a shared moral perspective, disobedience illuminates an injustice within existing law where the disobeyers and the upholders of the law are meant to find common ground in reform. This delicate point is easily lost in the tension that surrounds the space of civility, where civil disobedience fluctuates between peaceable assembly and perceived social disorder. Discussions of civil disobedience tend to focus on interpretations of the specific laws that are being deliberately broken and the question of whether to apply punishment and rather less on the actual process of public redress.4
2. Civil Disobedience as a Matter of Law
In the American context, legal writing about civil disobedience draws upon forms of protection for free speech, freedom of assembly and the right to petition the government for redress of grievances, all explicitly named in Amendment I of the Bill of Rights5 – but all these rights exist within the less clearly articulated, overall framework of orderly, non-violent means for correcting injustices. Much of the literature rests on the crucial distinction between illegal action that is non-disruptive to the social order and the legal mechanisms for accommodating protest in an orderly fashion. Philosophically, the writings of Martin Luther King and religious legal philosophers like Stephen Carter6 attempt to ground dissent and disobedience in terms of reflective moral conscience that appeals to a higher level of morality in the public sphere, one that may not yet be enacted in the law but ultimately will find its way to a rather more just legal order. The key features of this form of civil disobedience are non-violent resistance and a willingness to accept the possibility of punishment for actions that break the law. An entire doctrine of non-violent civil disobedience is indebted to Martin Luther King, whose writings justify the terminological standard of peaceable assembly.7
At the opposite end of the spectrum – writing from an historical perspective – scholars like Lewis Perry see civil disobedience as part of a uniquely American political tradition (following an argument he credits originally to Hannah Arendt)8 built into the very nature of the democratic process, where dissent, measurable improvements to social justice and collective expression go hand in hand with militancy and social disruption. Perry reviews key episodes in American history that include Reconstruction, the Suffrage movement, unionisation of the labour movement, on up to conscientious objection to recent, post-colonialist wars by the American military. A tendency towards militancy recurs in each of these episodes as the articulation of constitutional rights develops in the American courts.9 Even so, militancy and even overt anarchism (at the turn of the twentieth century) stay within the bounds of the existing political order; militancy does not lead to the overthrow of any standing government. This militancy is an expression of the frustration of dissenters in their efforts to be heard. Ultimately, however, reforms are achieved with only episodic outbreaks of violence or disruptions to the peace. So, despite episodes of social disorder and militancy on the part of workers and students, the trajectory is progressive. Ultimately, Perry concludes, greater order prevails following a period of disruption.
Supreme Court Justice Abe Fortas made an effort to reconcile the polarities of freedom of expression and public order in an important little book (rarely cited in the legal literature) entitled Concerning Dissent and Civil Disobedience. Fortas sees the right to dissent as one of the greatest virtues of the democratic state, its principled effort to make room for criticism and improvement. However, the right to express dissent is protected in a very narrow way: as speech (in an indeterminate sense of that term) and as peaceable assembly, both of which may cross the line into illegal actions. Dissent is not protected, and is much less endorsed, when it takes the form of violent opposition to the government as militancy or destruction of property. As long as dissent is limited to speech, in turn an appeal to reason and deliberation, it is accepted. Once dissent inflicts outright harm, or even potential harm, it loses its protected status and gives the state a countervailing right to declare the dissent to be harmful to the public good, contrary to the maintenance of peace, even punishable by incarceration. The distinction between dissent and disorder begins to draw the shape of the larger pattern that tries to unite a collectively held sense of injustice with a public sense of order and stability. Orderly dissent is a functioning method for the improvement of democracy, and democracy itself is a perpetual work in progress. As Fortas concludes:10
[T]he survival of our society as a free, open, democratic community will be determined not so much by the specific points achieved by the Negroes and the youth-generation as by the procedures – the rules of conduct, the methods, the practices – which survive the confrontations.
Procedure is the bone structure of a democratic society; and the quality of procedural standards which meet general acceptance … determines the durability of the society and the survival possibilities of freedom within society.
Fortas's work on civil disobedience is set historically within the framework of two movements that define the modern American political landscape: (i) racial discrimination, and (ii) war – specifically the civil rights movements and the distinctly non-violent civil disobedience associated with Martin Luther King, and the Vietnam War and the civil disobedience associated with burning draft cards and rejecting the draft. Fortas seeks the greatest possible degree of clarity about the positive features of dissent up to the point where the overall stability and justness of the law must be upheld and asserted over and against dissenters. He writes that Martin Luther King holds a Gandhi-like status in American political rhetoric: the pacifist, religiously inspired figure, who becomes a lightning rod for social justice, and who can take credit for rallying sufficient popular support for the legislation that resulted in the landmark Civil Rights Act, banning educational, employment and housing discrimination on the basis of race or colour. By publicly disobeying segregationist laws and staging pacifist actions, Martin Luther King focused public attention on injustices that were grossly inconsistent with constitutional principles of liberty and equality. Fortas continues:11
In [an article published in 1961], Dr. King set forth the guiding principles of his approach to effective protest by civil disobedience. He said that many Negroes would disobey ‘unjust laws’. These he defined as laws which a minority is compelled to observe but which are not binding on the majority. He said that this must be done openly and peacefully, and that those who do it must accept the penalty imposed by law for their conduct. This is civil disobedience in a great tradition.
Martin Luther King's ‘Letter from a Birmingham Jail’ serves as Fortas's foundational text in many discussions of civil disobedience. It expresses the motivation to violate laws that promote segregation by appealing to a broader understanding of social justice; it proposes peaceful demonstration to ignite public attention; it accepts the consequence of punishment for acts that are illegal but necessary. Because specific laws are being violated, those that need to be tested for their constitutionality, King's actions provide the exemplary case of civil disobedience. The ultimate test of civil disobedience is the legal process of reconciling illegal actions with greater forms of protection and rights in a Constitution that is the bedrock of the democratic system. As Fortas says, had civil disobedience failed the test of constitutional protection for equality, it would have passed out of public view and failed further in its efforts to reform: Martin Luther King inspired ‘peaceful, non-violent disobedience of laws which are themselves unjust and which the protester challenges as invalid and unconstitutional’.12
Fortas offers a narrow interpretation of civil disobedience, because at the end of day the elements of civil disobedience must be reconciled within the existing legal framework of constitutional interpretation. His goal is to strengthen principles of justice in the name of the Constitution, and civil disobedience, as a peculiar form of the right to dissent, is simply one path for testing issues before the courts.13 This is a helpful starting point, because any discussion of civil disobedience cannot ignore the intervention of the legal system; but it is only a starting point, as it leaves the broader issue of public deliberation and public inclusion to the side. Are judges, only one facet of the government, the final arbiters of just dissent in the society at large? Their role would place too many restrictions on dissenting speech as one key feature of democratic discourse more generally. It is one thing to assert that the ‘Letter from a Birmingham Jail’ holds all the elements of proper civil disobedience. It is another thing to read it narrowly in terms of its potential to be reconciled with Constitutional interpretation.
Hannah Arendt's writings on civil disobedience14 focus intensely on this point, arguing strenuously that the very ‘political’ (a term that is rich in significance in Arendt's writing) conflicts that give rise to civil disobedience are beyond the capacity of the courts’ efforts to find justice. A strong and determined moral conscience is something the law can recognise and attempt to protect, typically in the name of privacy or freedom of belief, but unless it is linked to some mechanism of public expression, it is very difficult to see it as a means of furthering social justice. The narrowing down of civil disobedience, as a matter of legal interpretation of specific laws, limits its capacity to address injustice within the public sphere. Constitutional cases before the Supreme Court may deepen and ‘enumerate’ rights, but they would not add up to the Civil Rights Act without the intervention of other branches of the government, which, by their very nature and in contrast to the Court, reflect and depend upon broader sentiments in the public at large. Because dissent is a deep feature of democracies, in particular constitutional democracies, the question of its legitimacy goes deeper than the necessarily narrow definitions afforded by a court of law. Dissenters risk illegal activity and may be brought to trial. Not all will be as successful as Martin Luther King.
3. Rawls's Definition of Civil Disobedience
John Rawls's clearest and fullest exposition of the issue of civil disobedience is found in Chapter 6, entitled ‘Duty and Obligation’, of A Theory of Justice.15 Unlike most legal philosophers on civil disobedience, Rawls does not approach its justification as a marginal, though important, feature of a mature democracy, as if it were a protected right, bound up with freedom of expression. For Rawls, civil disobedience is a central feature of the democratic process within a constitutionally ordered state, but with a set of key limitations and purposes. Rawls considers civil disobedience, properly so defined, as a recurring corrective measure to the realities of a ‘nearly just’ state, one in which there is an ideal of justice, held up by a broad moral consensus of citizens, but which inevitably falls short of perfect realisation in the conflicted nature of majority versus minority interests.16 Frank Lovett, in his critical study of A Theory of Justice, sums up Rawls's interest in civil disobedience:17
Recall that when Rawls began writing A Theory of Justice, the civil rights movement was achieving some of its greatest victories, and when he finished the book, protests against the Vietnam War were gripping the nation. The issue of civil disobedience was thus very much a live concern for Americans in general, and also for Rawls personally … To what extent are we obligated as a matter of justice to conform to the demands imposed on us by the institutions and policies of our society? To what extent does justice demand that we disobey institutions and policies when they are manifestly unjust? These are important questions and, at the time Rawls was writing, unavoidable ones. It thus makes sense to attempt addressing them right after completing a discussion of how the principles of social justice and the institutions and policies of a just society relate to one another.
In introducing the topic of civil disobedience, Lovett makes clear that it holds a necessary place in the entire structure that links justice with specific policies and institutions that remain a source of political conflict, even within a well-ordered state.
In order to assess the originality and relevance of Rawls's formulation of civil disobedience we first need a better understanding of the ‘nearly just’ conditions that trigger civil disobedience and the limitations that Rawls places upon its capacity to further justice. I then would like to clarify and examine Rawls's effort to return civil disobedience to the category of a form of speech – perhaps the most original feature of his discussion but one that has been overlooked in the critical literature on Rawls.18
That essential feature is what Rawls terms the ‘nearly just’ status of all constitutional democracies.19 While not as clear as a constitutional right, like freedom of speech, ‘nearly just’ holds an equally important place in an analysis of any constitutional democracy, making, by implication, civil disobedience a fundamental part of the entire democratic process. ‘Nearly just’ is a term of art in Rawls's A Theory of Justice, which begins to take us much more deeply into the area of moral conflict, where the legitimacy of dissent is fully tested.20
We must ascertain how the ideal conception of justice applies, if it applies at all, to cases where rather than having to make adjustments to natural limitations, we are confronted with an injustice. The discussion of these problems belongs to the partial compliance part of non-ideal theory. It includes, among other things, the theory of punishment and compensatory justice, just war and conscientious objection, civil disobedience and militant resistance … Now I shall not attempt to discuss these matters in full generality. In fact, I shall take up but one fragment of partial compliance theory: namely, the problem of civil disobedience and conscientious refusal. And even here I shall assume that the context is one of a state of near justice, that is, one in which the basic structure of society is nearly just, making due allowance for what it is reasonable to expect in the circumstances.
Like Fortas, Rawls wants to find a place for civil disobedience within a ‘legitimately established democratic regime’. Civil disobedience differs sharply from revolution and militancy – as it does according to Fortas – because it derives from a shared sense of justice that permeates the political framework.21
Indeed, civil disobedience (and conscientious refusal as well) is one of the stabilizing devices of a constitutional system, although by definition an illegal one. Along with such things as free and regular elections and an independent judiciary empowered to interpret the constitution (not necessarily written), civil disobedience used with due restraint and sound judgment helps to maintain and strengthen just institutions. By resisting injustice within the limits of fidelity to law, it serves to inhibit departures from justice and to correct them when they occur. A general disposition to engage in justified civil disobedience introduces stability into a well-ordered society, or one that is nearly just.
Its aim is not to overturn the political order, but rather to deal with inevitable flaws that inhere in the democratic process itself. As Rawls puts it, the goal of civil disobedience is ‘to narrow the disparity between convictions of those who accept the basic principles of democratic society’.22 Civil disobedience is a mechanism for reform.
By Rawls's account, the legitimacy of civil disobedience is based on three necessary conditions:23
• a deeply held moral consensus in society at large, the ultimate testing ground of any dissent, based in justice as fairness and equality: ‘disobedience as a political act addressed to the sense of justice of the community’;
• an address by a clearly defined minority to the majority's point of view: ‘the existing political parties have shown themselves indifferent to the claims of the minority or have proved unwilling to accommodate them. Attempts to have the laws repealed have been ignored and legal protests and demonstrations have had no success’;
• a clear, singular focus on a major issue of injustice given that there is ‘an upper bound on the ability of the public forum to handle such forms of dissent; the appeal that civilly disobedient groups wish to make can be distorted and their intention to appeal to the sense of justice of the majority lost sight of. For one or both of these reasons, the effectiveness of civil disobedience as a form of protest declines beyond a certain point’.
The majoritarian element reinforces the entirely public nature of civil disobedience, and begins to fill in some of the meaning surrounding the term ‘speech’. Speech, as Rawls says, defines the mode of address by the minority to the majority-held view that needs correction, all within a broader, implicit consensus about the basic moral elements that hold the society together. Mill and de Tocqueville wrote earlier of the tyranny of the majority, of the inevitable domination of majority viewpoints over minorities as the democratic process unfolds. However, they did not assume an abstract moral base of majoritarian politics in an effort to normalise this process as the path to greater justice.
For Rawls, the public sphere is a very messy place, where all sorts of issues and conflicts are likely to be played out but, by linking majoritarian politics to a specific form of public speech called civil disobedience, he tries to align a deeper set of personally held convictions, a moral system, with that messy world of public debate and conflict. Here I believe he takes a step where Fortas stops short. Not all of these elements will align up in this way, and so for his purposes Rawls makes a very important qualification about what works and what does not in civil disobedience:24
When certain minorities are denied the right to vote or to hold office, or to own property and to move from place to place, or when certain religious groups are repressed and others denied various opportunities, these injustices may be obvious to all. They are publically incorporated into the recognised practice, if not the letter, of social arrangements … By contrast infractions of the difference principle are more difficult to ascertain. There is usually a wide range of conflicting yet rational opinion as to whether this principle is satisfied. The reason for this is that it applies primarily to economic and social institutions and policies. A choice among these depends upon theoretical and speculative beliefs as well as upon a wealth of statistical and other information, all of this seasoned with shrewd judgment and plain hunch. In view of the complexities of these questions, it is difficult to check the influence of self-interest and prejudice.
According to Rawls, where the issue does not rise to the level of testing core, moral convictions, civil disobedience would be inappropriate.25 Rawls's effort to find a positive role for civil disobedience in a democracy has set a very high standard. The issue must be clearly a matter of collective justice, not an issue where there is considerable muddle; it must strengthen and draw upon the basic framework of shared moral convictions of clarity, and it must contain the element of public redress. Because Rawls's entire theory of justice depends on an overlapping consensus about basic moral goods – fairness, equality, reciprocity – he assumes that the need to break a law in a very public way has to touch an issue of fundamental injustice. Disparities in income, educational opportunities, employment, housing, health care and decent living standards for the elderly could all rise to the level of concerns over economic equality. However, there are so many overlapping and competing interests within each of these conditions that they are probably not solvable by direct reference to the underlying moral consensus that glues together the social order. As he suggests, statistical data and speculative economic models can easily blur the necessity to make clear an ‘obvious’ injustice that is being temporarily held by the majority of citizens. Segregation, by contrast, which directly touches the post-Civil War language of the Constitution is another matter. Majorities are fallible; the democratic process is fallible. In the profusion of conflicts and competing interests that make up the democratic process, Rawls recognises the ongoing risks of coercive public opinion. The special virtue of Rawls's discussion of civil disobedience rests in his effort to give it a necessary place in the public sphere of democracy and in his effort to define the very specific conditions for its effectiveness.
While Rawls has deepened the public understanding of civil disobedience and refined its moral foundations, he has not applied his theoretical model to any major case study. The limitations and standard of clarity that Rawls applies to civil disobedience are useful for separating true cases of civil disobedience from protest movements, revolutionary political action, isolated and very case-specific sit-ins, and occupations of public spaces. Rawls moves the discussion of civil disobedience into the public sphere, beyond the task of judges’ decisions about its ultimate legality. He forces a much broader, democratic grasp of citizens’ consensus about what is just. By the same token, however, public speech and public opinion contain elements of ‘messiness’ that do not appear to be rational. Even in clear-cut examples of civil disobedience touching fundamental issues of justice, those that would meet Rawls's tests and conditions, the clarity of the issue is not necessarily immediate and apparent. Like Fortas, Rawls's discussion of civil disobedience emerges out of the political upheavals of the 1960s, civil rights and the Vietnam War.26 Since the lengthy treatment in A Theory of Justice, Rawls has not engaged with ongoing political and theoretical work on civil disobedience, and more recent work does not engage with the original elements in Rawls's work.27
4. Civil Disobedience in Practice
Rawls advances the definition of, and justification for, civil disobedience in three important ways:
• he situates civil disobedience as an essential, stabilising force within democracies that are by definition ‘nearly just’;
• he narrows the field of civil disobedience to issues that speak clearly to matters of deep social justice, casting to the side a host of problems of social inequality that deserve correction but simply cannot be addressed through civil disobedience; and
• he treats civil disobedience as a matter of public speech, first separating it from individual conscientious objection and militancy, then emphasising its function as a public address to a majority-held view on the part of a disadvantaged minority.
Civil disobedience as a function of speech is both the most original part of Rawls's discussion and the least well developed in comparison with his effort to narrow civil disobedience to specific issues and to give it a central role in the democratic process. Although he refers to civil disobedience as a form of ‘speech’, he makes no attempt to attach this speech to any type of legal protection, leaving aside the sorts of argument Fortas makes about dissent as one example of protected free speech. In fact, for Rawls there is no reference whatsoever to any legal protection for acts of civil disobedience. Civil disobedience as such holds no rights in Rawls's view. He does not draw any distinctions between verbal and physical acts of communication; nor does he make reference to speech in order to distinguish violent from non-violent forms of protest, a distinction that appears in most of the literature on the topic of civil disobedience. Yet, civil disobedience as a mode of public address is critical to his effort to justify its positive, political function in a nearly just society. Rawls sidesteps altogether the legal question of when and if it is appropriate to punish an act of civil disobedience but, by attaching the term ‘speech’ to civil disobedience, he makes rather large, implicit assumptions about the orderliness of the public sphere.
In an effort to capture and expand upon the originality of Rawls's theory of civil disobedience, I would like to draw upon the work of Alon Harel on freedom of speech.28 Harel's work is relevant because he looks beyond a set of justifications for the protection of free speech to ask the fundamental question:29
We have surveyed some of the most influential arguments favoring the protection of speech. While each one of the justifications has its strengths and weaknesses, they all are subject to a challenge that is quite familiar in the discourse of rights. Rights, it is often argued, are grounded in values. But if this is the case, why should we protect the rights rather than the values underlying the rights? For instance, if the protection of speech is grounded in autonomy, why do our constitutions and bills of rights protect speech rather than all autonomy-enhancing activities? Or if it is grounded in self-realization, why do we not protect all activities which are conducive to self-realization?
By probing weaknesses in the discourse of rights-based theories for protecting speech, Harel puts forward an original ground for protecting the values attached to speech, which avoids the problem of regression directly to the values themselves that underlie speech. He writes:30
[T]he primary justification for protecting the right to free speech (rather than all autonomy-enhancing activities) is that the enhancement of autonomy depends on societal conventions protecting certain practices for the sake of enhancing autonomy. In societies in which speech is protected for the sake of autonomy, people use speech in autonomy-enhancing ways. There is thus a close dependence between the values underlying rights and the activities protected by rights, such that protecting a defined set of activities for the sake of enhancing autonomy facilitates the exercise of autonomy. Promoting and reinforcing autonomy must take concrete form, i.e., it must be grounded in identifying and protecting activities that are autonomy enhancing.
Harel joins together the value that justifies the protection of speech with specific, concrete activities that realise and strengthen that value. He avoids abstracting rights from concrete practice, a flaw in the legal argumentation that appears to render speech as a secondary medium, merely conveying the real value that the law seeks to protect. Instead, by Harel's account, speech is a necessary form of activity that gives substance to the values it enhances.
By the same token, I would argue that Rawls's references to speech as a component of his theory of civil disobedience attempts to shift the discussion away from punishment versus social order into a central mechanism for the greater realisation of justice, always by definition imperfectly realised in a liberal, constitutional democracy. Merely protecting the right to dissent, as dissent, fails to measure the effectiveness of civil disobedience, narrowly defined, as shifting the public consensus about core values related to social justice.
Combining the insights of Rawls and Harel brings me to the final step of my argument. Harel's discussion of the right to free speech amplifies the critical but rather under-developed concept of speech in Rawls's theory. We have seen that Rawls departs from the arguments that place civil disobedience in the context of protected speech. Protecting the dissenter's right to speak freely does not contribute to the furthering of social justice if speech falls on deaf ears. For Rawls, the crucial question about an act of civil disobedience is whether it clearly addresses an injustice that will cause the majority to reflect and change a law (the legal flaw is typically one that creates inequality or unfairness by limiting a minority's ability to pursue a fundamental good). Harel's work on freedom of expression, in its special emphasis on speech as a substantive expression of value, fills a gap in Rawls's theory of civil disobedience. As substantive expressions of perceived injustice, acts of civil disobedience must involve communicative action – which is not to say that they will always be successful. They cannot be assessed superficially as dissent for its own sake, simply tolerated; they must move public opinion in a measurable way.
Extending Harel's approach to the right to free speech enables a rather more nuanced response to the practice and effectiveness of civil disobedience. By this approach, we must follow expressions of civil disobedience as sustained chains of meaning, narratives in short, as we track their actual communicative effect on the majority point of view. In today's world of social media, 24-hour news cycles and compressed video imagery of collective actions, it is perhaps more important than ever to be able to hear the voice of civil disobedience amidst all the noise in the public sphere. Fortunately, we have two exemplary accounts of civil disobedience in the form of narratives, which offer a precise opportunity to complete the picture of civil disobedience as substantive speech. They are Martin Luther King's personal account of the Montgomery Boycott, Stride Toward Freedom,31 and Norman Mailer's account of the largest anti-war protest in US history, the March on the Pentagon, in Armies of the Night.32 These two works complement other work of Rawls and Harel because they track in great detail the precise moments of change or obstruction in public opinion. Following Rawls and Harel, we now realise that the tracking of public opinion is critical to the definition of civil disobedience. The discussion shifts from the usual question of whether to apply punishment or the pseudo-tolerance of free speech for its own sake.
Consensus about the principles of justice must work through a messy public sphere and retain an inescapable public dimension. The stability of the consensus about justice cannot be detached from the process of its articulation in the public sphere. The writings of King and Mailer provide evidence of the ‘messiness’ that influences the reception of even the clearest moral expressions of injustice. While Rawls shows the limitations of a strictly legal interpretation of civil disobedience as the constitutional right to dissent via free speech, the full implications of his theory call us to investigate rather more carefully the vicissitudes of disobedient public speech that is a built-in feature of a nearly just regime. He is not at fault for wanting clarity rather than messiness. We need to follow his path by engaging that messiness as a broader feature of the public sphere. That effort to work back to clarity brings us closer to the truly conflicted nature of civil disobedience.
Martin Luther King's Stride Toward Freedom is an autobiographical, historical account of fact, specifically of the Montgomery Bus Boycott of 1955–56, which defines the meaning of civil disobedience for contemporary American politics.33 In an effort to break discriminatory segregation laws in the state of Alabama, African Americans staged their first successful collective action, specifically boycotting the use of the public transportation system in Montgomery for more than a year. The Montgomery boycott catapulted King to national leadership of the black civil rights movement, broke the hold of segregationist laws in the US South, and became the first popular articulation of the principle of non-violence. King's story of the boycott process also plunges us into a very messy political world, full of the speculations and special interests that Rawls would hope, against hope, to disentangle from a deeper consensus about social justice. One of the most powerful elements of King's narrative, which we know in retrospect will succeed, rests in his minute, careful exposition of the twists and turns that maintained the boycott over the course of a year.
At first, of course, it was simply dismissed as a little protest that would soon wear itself out, just given the basic need for transportation to and from work that blacks faced by staying away from public transportation. As their resolve strengthened, however, volunteers, sheer determination and growing self-confidence managed to overcome these challenges as blacks came to realise that in fighting segregation laws they were facing a do-or-die situation. As the boycott continues, violence and legal tricks begin to play a larger and larger role. The white establishment begins to use the law – through traffic violations, registration checks, minor provocations, firings and so on – to push back against the resolve of the boycotters. The boycotters are tempted to fight fire with fire. Militancy and disruptions of the social order begin to fray the defined outlines of a civil disobedience movement, bringing into the equation elements that defeat civil disobedience both legally and morally. Had large-scale violence broken out, the focus of the collective disobedience would be obscured. Yet, the white establishment pushes even further: Martin Luther King's home is actually bombed, and so is the home of one of his key co-organisers. Beatings occur. It is at this point, in stark contrast to what today is an all too familiar ‘stand your ground’ mentality, that Martin Luther King's doctrine of non-violence comes into its own, both intellectually in the narrative, which switches to philosophical prose in examining the writings of Marx and Hegel, and autobiographically, spelling out the commitment to non-violence as essential to the moral conscience of the protestors.
King's principle of non-violence is only marginally connected with a respect for peace and order. After all, the boycott could be seen as very disruptive, though technically nothing illegal was being done. No one is compelled by law to take public transportation to work. Tensions grew, but what legal remedy was there? The law was in effect used as an instrument of coercion. King was incarcerated during the boycott on trumped-up, minor driving charges. Acceptance of this punishment, however, had nothing whatsoever to do with issues of justice framed by the collective action of the boycott. The non-violent response to increasing provocation, coercion and outright violence became a lucid symbolic expression of a commitment to dignity and endurance, and it was the very clarity of the stance and purpose that managed, in the end, to cut through the terrific volume of social ‘noise’ about the police tactics, white militancy, harassment and absence of due process. King's success, however, was to use the principle of non-violence to break through that messiness and achieve public recognition of the clarity of the issue at hand. He bridges that gap between personal conviction and public speech, taking speech broadly to mean an address that is heard by the majority.
Of course, at the end of the day all theorists would have to agree that a legal element is required in order to further justice. At the moment when the energy of the boycotters appears to be exhausted, and they have little to show for their hardships, the Supreme Court ruling is handed down, declaring racial segregation on public transportation in Alabama to be unconstitutional. However, that moment of triumph has ambiguous weight from a strictly social perspective, because it comes after the ground had been prepared for its inevitable acceptance. The borderline between peaceable, protected dissent and unruly civil disobedience opens another fault line in the public sphere, between hegemonic discourse, capable of blocking out public perception of social injustice, and ludic protests that involve a risky strategy of ‘wonder’ and ‘rupture’ over rational deliberation and debate.
This fault line is most clearly expressed in my second example: the 1967 anti-war march on the Pentagon, pitting colourful, eclectic protestors – from business-suited writers like Robert Lowell and Norman Mailer to half-naked, drugged student activists – against the neat rows of US national guardsman and soldiers, armed with bayonets and attack dogs, protecting the temple of US military power – the monumental, inscrutable, invincible Pentagon.34
Mailer took up the fundamental question of civil disobedience and its public image in a book-long analysis of the march on the Pentagon, published in 1968 under the title Armies of the Night. The book became a sensation, widely praised and commented upon in leading journals: The New York Review of Books, The New Statesman, The New York Times, Harper's Magazine, The Nation and Commentary,35 and won Mailer the Pulitzer Prize for non-fiction. At the time of his involvement in the Pentagon march, Mailer's primary interest was participation in a collective act of civil disobedience, involving the willingness to be arrested and incarcerated for breaking the legal boundary of ‘order’ surrounding the Pentagon. Much of the book's story of the march has to do with his experience of incarceration, and his determination to join fellow protestors in crossing a negotiated line of protest that marked the difference between acceptable dissent over the Vietnam War and civil disobedience in the name of illegal public disorder. As the story develops, however, it becomes increasingly clear that the discussion of civil disobedience cannot be detached from an analysis of the imagery of the line of protest itself, and a good deal of Mailer's writing blends historical reportage with novelistic depictions of the protestors and militia in an effort to capture the experience of the protest in opposition to the major media coverage, particularly the coverage in Time.36 Mailer's historico-novelistic descriptions continue to be relevant today whenever we are confronted with mass imagery of protest.
The presentation by Time pays lip service to the great American tradition of dissent as a protected right of the people, but couches it entirely in actual misunderstanding and false consciousness on the part of the protestors:37
However ill-conceived – the Washington demonstration was a reminder to the world of America's cherished right of dissent. It was not the prospect of protest that alarmed Washington so much as the potential for violence and the volatility of the march leaders.
Pentagon officials were alarmed by the possibility of the Pentagon being ‘invaded’ by the protestors. So we can all admire the state's great concession in allowing protest to occur at all, but naturally side with the state in rejecting the protestors’ disorderly, and potentially dangerous, behaviour, which in the eyes of Time included the supposedly ‘ugly’ image of picketers outside draft stations associated with this march (but nowhere actually seen at the time), and the ‘carmine side of the rainbow’ consisting of Trotskyites, Maoists, Communists, hippies, pacifists and anarchists. Other typical accounts include statements like: ‘Unsophisticated pacifist and digger do-gooders from the hippie subculture are frequently suckered into the hard line camp and end up unwittingly propagandizing as activists’.38 The overt bias and distortion of this account speaks directly to Iris Marion Young's analysis of structural inequality and the efforts of protestors to deploy ludic elements when confronted with an immovable centre of power and authority in the state.39 Is it anyway conceivable that an unarmed, largely middle-class group of anti-war protestors could seriously interfere with the centre of US military power, not only encased in a formidable piece of architecture but protected at the time by armed troops and National Guard units? Frustration with this level of distortion, both verbal and visual, around an issue of the utmost importance, causing deep divisions in public opinion over the whole notion of an unjust war, motivates Mailer to describe in full a counter-narrative of true civil disobedience, one that is relevant today whenever ‘disorder’ and ‘potential violence’ and ‘chaos’ are used by the state to diminish the effort to bring the actual political issue at hand into the public sphere. The Time story was the immediate motivation for writing Armies of the Night, but it leads Mailer into larger questions about image almost from the outset. Why is it so difficult to move public opinion? In the face of structural inequality, how does Mailer add to the question of civil disobedience and its mode of expression?
There are three phases to the presentation of civil disobedience that will help to strengthen and make accurate its image in the public sphere. First, as Mailer involves himself with the eclectic groups that comprise the anti-war movement, he is faced with competing strategies of protest that point back to its spectrum of dissent. The organisers of the protest included members of the Old and New Left, not in the sarcastic sense reported by Time but as a mixture of optimism and uncertainty in the face of changing historical realities. The Old Left, still very active in both the American church and labour movement, were:40
[B]reaking up under the knockdown combinations of Hungary's revolt, and Polish and Czechoslovakian riots and/or uprisings by Communist students and workers, plus the denigration of Stalin by Krushchev … famine in the Ukraine; Moscow trials; … and the infiltration of the Party ranks by the FBI.
Was history on their side? Could revolutionary principles hold in the face of these setbacks, all of which, despite their clear and unwavering political focus, left room for a New Left, less concerned with the ruling concept of revolution and international unity and rather more with poverty in America, civil rights and media censorship? Specifically, what this meant from Mailer's cultural perspective was the collapse of speechifying as the best means of delivering the political message. It was simply a bore to endure lengthy speeches about the future of the revolution in the face of what he describes as omnipresent television cameras ‘clicking and rounding and snapping and zooming’41 before the first rank of protestors were ever formed. So the popular tendencies of the New Left, their use of satire, dress and theatrics, was in fact a contemporary articulation of a new agenda for reform, not indebted to internationalism but truly founded in American progressivism – a feature obliterated by the Time coverage of ‘Trotskyites, etc. etc.’42
Second, Mailer devotes a great deal of his book to the lengthy and difficult negotiations over the acceptable limits or line of protest that would surround the Pentagon, a negotiation conducted by representatives of the protest movement (Rubin, Dellinger) and representatives of the US military, police force and the White House, both parties testing exactly the limits of ‘civil disobedience’.43 Here the issue of ‘disorder’ takes centre stage. What was to be the exact route of the march? Which entrance to the Pentagon would the protest face? How long would it last? Not that there was really any serious threat to the capacity of the US military to function in the face of potential ‘disorder’, but these negotiations would define the line of acceptable approach to the building, which then becomes the figurative line of expression of what is ‘legal’ dissent, ultimately the crux of Mailer's whole book and the culminating imagery of the day and night of protest. As Van Cleve, the government negotiator shrewdly observes, ‘[i]t would be undeniably safer to permit civil disobedience. The problem was to limit its intensity’.44
All these lead up to the climax of the event, and the climax of Mailer's book – the face-to-face confrontations, on the line, between white middle-class, ludic, sexually provocative protestors, and armed, primarily African-American soldiers, mostly from the working class without the benefit of university education. On the line, the tension between the groups is electrifying and dangerous, and indeed makes for the most graphic images of the day. Old Left speeches not only do not ‘play’ well to younger ears; they are not particularly interesting as image, but the confrontation of an apparently liberated, drugged, white protestor, face to face with a dedicated protector of the government and public order – that has all the makings of an allegory, to say nothing of sensational media imagery. Mailer describes in careful detail the gradual exhaustion, frustration and taunting of the guards on the front line, to the point where violence does erupt, mostly on the side of the military in the form of beatings, to the astonishment of the protestors. Civil disobedience is lost in the imagery of narrowly focused ‘disorder’ when in fact there is no palpable threat to the greater political order. Secretary McNamara is seen safely but anxiously observing the fray from his office window in the Pentagon.
In the final analysis, the disorder that is most disturbing, from Mailer's perspectives, is a truly ‘surrealist’ portrait of American politics – a blend of historical imagery, comic heroism, Biblical stereotypes and Hollywood movies – all contributing to a dulling effect on political discourse. The story behind the image is critical to the function of the image, but from the public's point of view all images are one-dimensional: masses versus individual moments of disorder, content-less disobedience.
Episodes of mass public dissent are occurring with increasing frequency in the public sphere. The issues that have historically motivated acts of civil disobedience remain: government oppression, excessive policing, economic inequality, and minority rights and protection. In some cases, civil disobedience has broken its boundaries and led to political upheaval across the globe. Analysis and evaluation of these cases of mass protest and dissent continue to raise questions about the limits of free speech in relation to public order: the separation of civil from militant collective action; shifting the majority/minority balance within an underlying moral consensus in order to reform the law by means of illegal action.
John Rawls's analysis of civil disobedience sees it as a built-in feature of democracy, an ongoing, progressive development of a ‘nearly just’ society. Rawls's work deserves renewed attention because it offers a theoretical advance over the legalistic arguments that prevail in the scholarly literature. Radical dissent, anarchism, militancy and revolution fall outside the proper democratic function of civil disobedience. That point is already well understood in the literature as the ‘civil’ element in dissent: respect for public order and peaceable assembly or acceptance of legal punishment for actions that break the law. Rawls places a further limitation on civil disobedience, however, in order to clarify its unique political function as public speech. He looks beyond the immediate tests of orderliness, or constitutionality, or irresolvable moral conflict. He focuses instead on a collective speech act in which a minority causes moral, rational reflection about justice on the part of a majority. In Rawlsian democracy the stability of the law is not imposed by judicial interpretation. It progresses towards rather more inclusive justice by the expansion of a collectively held moral consensus and, since it is imperfect at any given time – ‘nearly just’ in practice – disobedience of certain laws will recur.
The Civil Rights movement and the anti-war protests of the 1960s remain paradigms of civil disobedience in the scholarly literature. Although Rawls bases his analysis on the moral issues in each case, he does not apply his theoretical model to an actual case study. To follow Rawls, we need to extend his analysis into the multiple coercive forces that may distort the speech function of civil disobedience, even when the morality of the disobedience is clearly a matter of basic social justice. The lived experience of civil disobedience, with all its contradictions and uncertainties, can be analysed as narratives, as in the exemplary writings of Martin Luther King and Norman Mailer. These narratives show that the public expression of an injustice, with the clarity that defines it as true civil disobedience, may emerge at different points along a continuum of lived experience, subject to coercive forces in the public sphere. By combining Rawls's theoretical model with narratives of lived experience, we are in a better position to recognise and respond to specific acts of disobedience of the law as a positive feature of our civil society.