Abstract
While many contemporary political philosophers agree that citizens of a legitimate state enjoy a moral right to civil disobedience, they differ over both the grounds of that right and its content. This essay defends the view that the moral right to civil disobedience derives from (or is a facet of) a general right to political participation, and the characterization of that right as precluding the state from punishing, but not from penalizing, those who exercise it. The argument proceeds by way of rebuttals to criticisms of both claims recently advanced by Kimberley Brownlee. While in some cases those criticisms fail on their merits, in other cases the responses offered here reveal that the dispute over the ground and content of a moral right to civil disobedience reflects deeper disagreements regarding two foundational issues: first, whether moral rights are best conceived of as defeasible evaluative principles or conclusive normative ones, and second, whether principles of justice should be theorized on the basis of full or partial compliance.
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Notes
The claim in the text need not preclude characterizing the duty to obey the law as pro tanto if in acting illegally an agent can simultaneously treat his or her fellow legal subjects unjustly and act in a manner that is morally justifiable all things considered. Illegal conduct that contributes to the extension of the rule of law (and so, for republicans, just relations) to encompass interaction among agents not presently subject to a common juridical order might be an example of such an act. On the other hand, some of the arguments I advance in section III against a conception of rights as general but defeasible likely count equally well against such an understanding of duties.
Subjects may also petition for conscientious objector status; see Kassner and Lefkowitz (2012).
It may be worth noting that the question of whether Brownlee or I offer a better specification of government exercised in accordance with a commitment to the moral equality of persons can only be answered holistically, which involves considering many more implications of our competing views than those I discuss here. My goal in this paper is simply to demonstrate that there is much more to be said in favor of my treatment of the moral right to civil disobedience than Brownlee believes, though of course many of the arguments I detail do imply that her rival account is mistaken.
Space does not permit me to defend this claim against those who argue for alternative understandings of a state’s right to rule and its subjects’ duty to obey the law. Instead, I simply note that many contemporary defenders (as well as critics) of political authority and obligation continue to rely on the understanding I presuppose in the text. For a response to some objections to the traditional characterization of legitimacy, see Lefkowitz (2016).
By ‘reasonable disagreement’ I mean cognitively reasonable disagreement; i.e. disagreement that is intelligible in light of the burdens of judgment. See Lefkowitz (2005).
A liberal state, as I understand it here, is one that manifests a principled commitment to respect for individuals’ basic rights. Individual rights designate the limits of the compromises it is reasonable for any agent, including the state, to demand of people regarding their freedom to pursue what they believe to be the good life.
I assume here that whatever design for collective action is settled upon, its implementation is a morally better outcome than would occur were no collective action to take place. This may not always be the case.
Depending on the design of the decision-making institutions in a given political society, the majority view may not be expressed by legal means (or realized in the law), in which case the justification for employing public disobedience described in the text will apply to the majority, rather than the minority.
This may require calculating fines as a percentage of an individual’s annual income or net worth so as to mitigate inequalities in the opportunity to engage in civil disobedience that might otherwise follow from inequalities in income or wealth.
I owe the framing of this dispute in terms of a conflict between a remedial and a primary right to civil disobedience to Daniel Weinstock; see Weinstock 2016.
Brownlee’s fifth objection (the fourth as she enumerates them) rests on a straightforward misreading of my original argument, and for reasons of space I do not address it here.
The same conclusion holds in Feinberg’s cabin example: we need a defense of a theory of property rights that entails that the person caught in the blizzard commits a wrong against the cabin owner when she breaks into the cabin and burns the chair. This in turn justifies a claim regarding the need for an apology (which, I argue below, is distinct from an expression of regret).
Brownlee considers arguendo and then rejects a specificationist account of the moral right to civil disobedience that draws the boundaries of the right ‘at the point where disobedients’ action would encourage, incite, or inspire others to engage in non-conscientious disobedience' (Brownlee 2012, p. 245). I respond to some of those arguments in my rebuttals to her second and third objections.
As should be clear my argument rests on empirical claims regarding the likely effects of competing practices of responding to civil disobedience, a point I return to in the conclusion.
Brownlee also adds that penalizing civil disobedience ‘misattributes blame for the decline in general deterrence, because copycats are responsible for their own decisions to breach the law …' (Brownlee 2012, p. 246). Blame is an appropriate response only to culpable wrongdoing, however, and since it is not wrong per se to perform a suitably constrained act of civil disobedience, the state ought not to respond to it with treatment intended in part to convey or express blame. This is precisely why civil disobedients ought to be penalized, not punished.
Civil disobedients sometimes, and perhaps often, bear costs such as public hostility and violent treatment at the hands of police. Might the willingness to do so suffice as a means for conveying their recognition of their fellow citizens’ equal rights to determine what the law ought to be? I see no grounds for ruling out this possibility. However, I contend that an institutionalized practice of penalizing but not punishing civil disobedients provides an especially perspicuous mechanism whereby both the state and civil disobedients can affirm that despite the illegal nature of their conduct the latter were engaged in a good faith effort to contribute to political dialogue, not an effort to use coercion to advance their conceptions of justice or the good life. The ritualistic nature of the practice as I envision it makes it a better means for both parties’ public expression of this understanding of the civil disobedients’ act than, say, a police officer’s use of force to remove a disobedient from a public street and the disobedient's passive resistance to her removal.
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Acknowledgements
Earlier versions of this paper were presented at the Disagreements and Disobedience conference at the University of Milan and the 2016 Association for Legal and Political Philosophy annual conference. I thank Emanuela Ceva, Robin Celikates, and Tony Reeves for their helpful comments.
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Lefkowitz, D. In Defense of Penalizing (but not Punishing) Civil Disobedience. Res Publica 24, 273–289 (2018). https://doi.org/10.1007/s11158-017-9362-5
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DOI: https://doi.org/10.1007/s11158-017-9362-5