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Can Political Institutions Commit Civil Disobedience?

  • William E. Scheuerman

Abstract

A growing number of political activists and scholars defend the idea of state-based or political-institutional civil disobedience: they locate civil disobedience's agency in state rather than civil society–based actors. Diverging from older ideas of civil disobedience as directed against government, the concept of institutional disobedience raises tough questions its exponents have not yet fully answered. Civil disobedience has usually referred to politically motivated lawbreaking that is morally conscientious, nonviolent, and demonstrates basic respect for law. Because of the modern state's normatively ambivalent traits (e.g., its monopoly on legitimate coercion), political-institutional disobedience is incompatible with minimally acceptable interpretations of civil disobedience's core components. Political-institutional civil disobedience's advocates mischaracterize what they in fact are proposing, namely, disobedience to the law by individual state officials. Such offiical disobedience poses challenges distinct from and probably greater than civil society–based disobedience.

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I am grateful to the journal's referees, as well as Maria Emilia Barreyo, Illaria Cozzaglio, and Agustin Jose Menendez, for thoughtful written feedback. Participants at events at ISA (Toronto), Normative Orders Program (Goethe University, Frankfurt), and University of Oslo Law School also provided insightful criticisms.

Footnotes

References

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1 Yanis Varoufakis, “Europe's Left after Brexit” (2016), www.jacobinmag.com/2016/09/european-union-strategy-democracy-yanis-varoufakis-diem25, accessed July 30, 2018; Yanis Varoufakis, Adults in the Room: My Battle with Europe's Deep Establishment (New York: Vintage Books, 2017), 60.

2 A Guide to “Constructive Disobedience” (Democracy in Europe, 2017), www.opendemocracy.net/can-europe-make-it/diem25/guide-to-constructive-disobedience, accessed July 30, 2018.

3 A Plan B in Europe (Plan B, 2015), www.euro-planb.eu, accessed July 30, 2018. There may be parallels elsewhere, e.g., the emergence of “sanctuary cities” in the United States, in which local authorities promise to protect immigrants by refusing to cooperate with federal authorities. But the parallels only go so far: “Far from exemplars of civil disobedience, sanctuary cities … require employees to ‘follow the law to a T.’ When the federal government issues warrants, for example, city officials must cooperate or face criminal penalties. Despite the tough talk … no sanctuary city calls for summary noncooperation with ICE” (Joshua K. Leon, “Sanctuary Cities in an Age of Resistance,” Feb. 27, 2017, https://progressive.org/magazine/sanctuary-cities-in-an-age-of-resistance/, accessed Sept. 19, 2018).

4 Arendt, Hannah, Crises of the Republic (New York: Harcourt, Brace & Jovanovich, 1972), 7475, 101–2; Scheuerman, William E., “Crises and Extra-Legality from Above and from Below,” in Critical Theories of Crisis in Europe, ed. Kjaer, Poul and Olsen, Niklas (London: Rowman & Littlefield, 2016), 197212.

5 Scheuerman, William E., Civil Disobedience (Cambridge: Polity, 2018), 1131, 55–80. For a radical democratic approach, see Celikates, Robin, “Rethinking Civil Disobedience as a Practice of Contestation: Beyond the Liberal Paradigm,” Constellations 23, no. 1 (2016): 3745.

6 Varoufakis, “Europe's Left after Brexit”; A Guide to “Constructive Disobedience.

7 Declaration for a Democratic Rebellion in Europe (Plan B, 2016), www.planbeuropa.es/declaration-for-ademocratic-rebellion-in-europe, accessed July 30, 2018.

8 Critically on institutional disobedience within the EU, see Emmanuel Melissaris, “Constructive Disobedience: A Critique” (2017), www.opendemocracy.net/can-europe-make-it/emmanuel-melisaris/constructive-disobedience-critique, accessed July 30, 2018.

9 White, Jonathan P. J., “Principled Disobedience in the EU,” Constellations 24, no. 4 (2017): 113.

10 King, Martin Luther, “Letter from Birmingham City Jail” (1963), in Civil Disobedience in Focus, ed. Bedau, Hugo (New York: Routledge, 1991), 74; Buchanan, Allen, “From Nuremberg to Kosovo: The Morality of Illegal International Reform,” Ethics 111, no. 4 (2001): 673705; Buchanan, Allen, Justice, Legitimacy, and Self-Determination: Moral Foundations for International Law (Oxford: Oxford University Press, 204), 456–72.

11 Goodin, Robert, “Toward an International Rule of Law: Distinguishing International Law-Breakers from Would-Be Law-Makers,” Journal of Ethics 9, nos. 1–2 (2004): 225–46.

12 Kokaz, Nancy, “Theorizing International Fairness,” Metaphilosophy 36, nos. 1–2 (2005): 6892; Gerald Neubauer, “State Civil Disobedience: Morally Justified Violations of International Law Considered as Civil Disobedience” (TranState Working Papers 86, Bremen, 2009).

13 Franceschet, Antonio, “Theorizing State Civil Disobedience in International Politics,” Journal of International Political Theory 11, no. 2 (2015): 239–56.

14 Andreas Follesdal, “Law Making by Law Breaking? A Theory of Parliamentary Civil Disobedience against International Human Rights Courts?” (Multirights Workshop on International Human Rights Judiciary and National Parliaments, Oslo, 2015); Kokaz, “Theorizing International Fairness”; Miller, Nathan J., “International Civil Disobedience: Unauthorized Intervention and the Conscience of the International Community,” Maryland Law Review 74 (2015): 314–75.

15 Michelsen, Danny, “State Civil Disobedience: A Republican Perspective,” Journal of International Political Theory 14, no. 3 (2018): 331–48.

16 Franceschet (“Theorizing State Civil Disobedience”) relies, for example, on Giorgio Agamben, “What Is Destituent Power?,” Environment and Planning D: Society and Space, no. 32 (2014): 65–74.

17 Hjorth, Ronnie, “State Civil Disobedience and International Society,” Review of International Studies 43, no. 2 (2016): 330–44.

18 Follesdal, “Law Making by Law Breaking?”

19 Cruz, Julio Bacquero, “Legal Pluralism and Institutional Disobedience in the European Union,” in Constitutional Pluralism in the European Union and Beyond, ed. Avbelj, Matej and Komarek, Jan (Oxford: Hart, 2012), 249–68; Isiksel, N. Türküler, “Fundamental Rights in the EU after Kadi and Al Barakaat,” European Law Journal 16, no. 5 (2010): 551–77; Kumm, Mattias, “Constitutionalism and the Moral Point of Constitutional Pluralism: Institutional Civil Disobedience and Conscientious Objection,” in Philosophical Foundations of EU Law, ed. Dickson, Julie and Eleftheriadis, Pavlos (Oxford: Oxford University Press, 2012), 216–46.

20 The existing scholarly and political debate employs a variety of terms, including “governmental disobedience,” “state disobedience,” and “international civil disobedience” (Michael Allen, “Civil Disobedience, International,” in Encyclopedia of Global Justice, ed. Deen K. Chatterjee [London: Springer, 2011], 133–35). I refer here to such proposals as calls for state-based or political-institutional disobedience, terms I generally employ interchangeably. However, when appropriate I distinguish between cases of state (i.e., by states) and political-institutional (i.e., by specific institutions) disobedience. Though there are some potential differences and complications we will need to explore, the fundamental problems raised by them remain the same.

21 This section relies heavily on William Scheuerman, Civil Disobedience (Cambridge: Polity, 2018). The literature on civil disobedience is vast but see the important recent contributions by Brownlee, Kimberley, Conscience and Conviction: The Case for Civil Disobedience (Oxford: Oxford University Press, 2012); Milligan, Tony, Civil Disobedience: Protest, Justification, and the Law (London: Bloomsbury, 2013).

22 King, “Letter from Birmingham City Jail,” 74.

23 Brownlee, Conscience and Conviction, 21–22, 98–99. Why the concept of “harm” is any less open to competing interpretations than “violence” is unclear. Joseph Raz rejects the nonviolence test because “the evil the disobedience is designed to rectify may be so great”; as an example, he refers to Soviet-era labor camps, where it would indeed seem strange to limit disobedience to nonviolent means (Raz, The Authority of Law, 2nd ed. [Oxford: Oxford University Press, 2009], 267). This criticism ignores the fact that nonviolent civil disobedience, at least for some liberals, is suited to more or less democratic (in Rawls's terminology, “nearly just”) polities. They often concede, however, that in dictatorships violent resistance, a type of lawbreaking very different from civil disobedience, may be justified.

24 Among many other examples: Miller, “International Civil Disobedience,” 316; Hoag, Robert W., “Violent Civil Disobedience: Defending Human Rights, Rethinking Just War,” in Rethinking the Just War Tradition, ed. Brough, Michael W., Lango, John W., and Van der Linden, Harry (Albany: State University of New York Press, 2007), 224.

25 Buchanan, Justice, Legitimacy, and Self-Determination, 237.

26 Erskine, Toni, “Assigning Responsibilities to Institutional Moral Agents: The Case of States and Quasi-States,” Ethics and International Affairs 15, no. 2 (2001): 7475.

27 If we were to revise the idea of civil disobedience so that coercive illegal actions by state officials fell under its rubric, something crucial would be lost from its shared conceptual language (see II.4 below).

28 White, “Principled Disobedience in the EU,” 6–7.

29 Ibid., 11n5. On the crisis of European party democracy, see Mair, Peter, Ruling the Void: The Hollowing of Western Democracy (London: Verso, 2013).

30 Cruz, “Legal Pluralism and Institutional Disobedience,” 263.

31 Buchanan, “From Nuremberg to Kosovo,” 676–78.

32 Buchanan, Justice, Legitimacy, and Self-Determination, 102.

33 Scheuerman, Civil Disobedience, 11–40.

34 Erskine, Toni, “Introduction: Making Sense of ‘Responsibility’ in International Relations —Key Questions and Concepts,” in Can Institutions Have Responsibilities? Collective Moral Agency and International Relations, ed. Erskine, T. (London: Palgrave, 2003), 6; Vinit Haksar, “Moral Agents,” in Routledge Encyclopedia of Philosophy (1998), https://www.rep.routledge.com, accessed July 30, 2018.

35 Sorabji, Richard, Moral Conscience through the Ages (Chicago: University of Chicago Press, 2014).

36 Erskine, “Making Sense of ‘Responsibility,’” 6.

37 Erskine, “Assigning Responsibilities to Institutional Moral Agents,” 75–76; Erskine, “Making Sense of ‘Responsibility,’” 6–7.

38 Beardsworth, Richard, “Moral Responsibility and the Problem of Representing the State,” Ethics and International Affairs 29, no. 1 (2015): 7192; David Runciman, “Moral Responsibility and the Problem of Representing the State,” in Erskine, Can Institutions Have Responsibilities?, 41–50.

39 Weber, Max, “Politics as a Vocation,” in The Vocation Lectures, ed. Owen, David and Strong, Tracy (Indianapolis, IN: Hackett, 2004), 3294.

40 Mantena, Karuna, “Another Realism: The Politics of Gandhian Nonviolence,” American Political Science Review 106, no. 2 (2012): 455–70.

41 Postnational orders “beyond the nation state” also exercise power and can be responsible for policies having dire consequences (extreme poverty, forced migration, etc.). But this hardly justifies ignoring the fact that state coercion generates difficulties for attempts to ascribe moral conscientiousness to political-institutional lawbreakers. Even in the EU, the globe's most developed postnational political order, member-states “retain their monopoly on the legitimate use of force” (Jürgen Habermas, The Crisis of the European Union [Cambridge: Polity, 2012], 13).

42 Buchanan, Justice, Legitimacy, and Self-Determination, 456–72.

43 Miller, “International Civil Disobedience,” 314.

44 Neubauer, State Civil Disobedience, 8; Follesdal, Law Making by Law Breaking?, 16.

45 Neubauer, State Civil Disobedience, 8, emphasis added.

46 John Rawls, A Theory of Justice (Cambridge, MA: Harvard University Press, 1971), 366.

47 On the nexus between law and coercion see Frederick Schauer, The Force of Law (Cambridge, MA: Harvard University Press, 2015).

48 For example, Buchanan, Justice, Legitimacy, and Self-Determination, 456–72; Goodin, “Toward an International Rule of Law.”

49 Michelsen, “State Civil Disobedience,” 11.

50 Miller, “International Civil Disobedience,” 315–17.

51 Follesdal, Law Making by Law Breaking?, 14; Hoag, “Violent Civil Disobedience,” 224.

52 For a recent defense of nonviolence see Stellan Vinthagen, A Theory of Nonviolent Action: How Civil Resistance Works (London: Zed Books, 2015).

53 Hugo Bedau, introduction to Civil Disobedience in Focus, 8.

54 Scheuerman, Civil Disobedience, 101–21.

55 Rawls, Theory of Justice, 365–68.

56 See Simon Caney, “Responding to Global Injustice: On the Right of Resistance,” Social Philosophy and Policy 32, no. 1 (2015): 51–73.

57 We still might ask whether it makes sense to gloss the violent acts in question with the normatively appealing term “civil disobedience.”

58 Buchanan, Justice, Legitimacy, and Self-Determination, 466.

59 Neubauer, State Civil Disobedience, 10.

60 Ibid.

61 Rawls, Theory of Justice, 364.

62 Ibid., 366.

63 Goodin, “Toward an International Rule of Law,” 236–38; Miller, “International Civil Disobedience,” 369–73.

64 Buchanan, “From Nuremberg to Kosovo,” 676.

65 Hjorth, “State Civil Disobedience and International Society,” 340.

66 For example, think of how US president George W. Bush's administration claimed a legal veneer for (illegal) torture and never meaningfully faced any legal sanctions for doing so.

67 Rawls, Theory of Justice, 55.

68 Ibid.

69 Ibid., 59, 238.

70 Patberg, Markus, “Destituent Power in the European Union: On the Limits of a Negativistic Logic of Constitutional Politics,” Journal of International Political Theory 15, no. 1 (2019): 93.

71 Feinberg, Joel, “Civil Disobedience in the Modern World,” Humanities in Society 2, no. 1 (1979): 37.

72 Rawls, Theory of Justice, 72.

73 Ibid., 113; see also Ken Greenawalt, Conflicts of Law and Morality (Oxford: Oxford University Press, 1979), 279.

74 Rawls, Theory of Justice, 236.

75 A point, I fear, usually missed by those who deploy Rawls to justify institutional disobedience.

76 Brownlee, Conscience and Conviction, 86. For an earlier critique, see Arthur I. Applbaum, Ethics for Adversaries: The Morality of Roles in Public and Professional Life (Princeton: Princeton University Press, 1999), 72–73.

77 Brownlee, Conscience and Conviction, 87.

78 Greenawalt, Conflicts of Law and Morality, 279.

79 Brownlee, Conscience and Conviction, 110. Brownlee tends to downplay what is distinctive about state or government roles and responsibilities. Of course, those occupying nonstate positions or offices can also do harm (e.g., a negligent or incompetent physician, or a CEO who exploits his or her employees). But those involved directly in the exercise of state power have ready access to coercive and destructive instruments generally unmatched elsewhere.

80 Brownlee, Conscience and Conviction, 96.

81 In fairness, some defenders of state civil disobedience endorse stringent tests for analogous reasons. As Neubauer, for example, notes, “since state violations of international law pose a bigger threat to the whole legal system than individual law violations, a rather strict approach is needed” (State Civil Disobedience, 7).

82 Will Smith and Kimberlee Brownlee, “Civil Disobedience and Conscientious Objection,” in Oxford Research Encyclopedia of Politics (2017), www.politics.oxfordre.com, accessed July 30, 2018. Conscientious objection by institutional actors also raises questions distinct from those raised when committed by nonstate actors.

83 Delmas, Candice, “The Ethics of Government Whistleblowing,” Social Theory and Practice 41, no. 1 (2015): 77105. See also David Fagelson and Douglas B. Klusmeyer, “Justifying Official Disobedience,” Law, Culture and the Humanities, published online Aug. 22, 2017, doi:10.1177/1743872117721987.

84 Or consider, for example, the active refusal by local and state officials in the segregated US South to enforce a range of US Supreme Court rulings, beginning with Brown v. Board of Education, to desegregate education.

I am grateful to the journal's referees, as well as Maria Emilia Barreyo, Illaria Cozzaglio, and Agustin Jose Menendez, for thoughtful written feedback. Participants at events at ISA (Toronto), Normative Orders Program (Goethe University, Frankfurt), and University of Oslo Law School also provided insightful criticisms.

Can Political Institutions Commit Civil Disobedience?

  • William E. Scheuerman

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