A Theory of Civil Disobedience in No Less Than 10 Minutes
Brian Kogelmann expands a short article on civil disobedience into a longer, more serviceable general theory of civil disobedience.
Over the weekend Jason Brennan published an article at Bleeding Heart Libertarians called “A Theory of Civil Disobedience in Three Minutes.” As one might be able to guess from the title, the crux of the article is that philosophical questions surrounding civil disobedience are easy questions to answer. I do not share Jason’s optimism concerning the ease of questions surrounding civil disobedience, though there is probably good reason for this. The senior thesis for my political science undergraduate degree was an 80 page exploration of the concept of civil disobedience. It would be quite upsetting if Jason could solve a set of problems in three minutes that it took me a semester to not even come close to solving, but rather to merely gain clarity on. In this article, I outline a few things Jason might have missed with his three minute theory of civil disobedience.
The three minute theory starts by defining what civil disobedience is: “Civil disobedience is at base the conscientious decision to break a law on the grounds that it’s unjust.” There are, I believe, a few problems with this definition of civil disobedience, problems which I shall spend the bulk of this article pointing out. For one, it’s not always clear what is and what isn’t a law. In fact, an entire branch of legal philosophy, analytical jurisprudence, seeks to answer the question: what is law? Because there is ambiguity here, there might be cases where it seems like no law is being broken, though intuitively we might want to call such cases acts of civil disobedience.
Here is an example: suppose a group of people are walking down the street protesting wealth inequality in our country. Suppose they want to walk past a certain bank they think particularly highlights the sorts of problems they’re after. About to walk past the bank, they are stopped by the police. In this situation suppose there is no law preventing the protesters from going where they want to go. By implication the police are, technically speaking, doing something illegal in trying to stop them. If the protesters continue past the police barricades, and then are arrested for doing so, have they committed an act of civil disobedience? Intuitively I think so. Yet it’s not clear that they have broken the law. Indeed, whether they have or have not broken the law depends on how we define what the law is, but there is a good case to be made that (1) the protesters did not break the law and (2) the protesters committed an act of civil disobedience.
We can get around these difficulties by saying that civil disobedience is at base the conscientious decision to break a law or imperative on the grounds that it’s unjust. Even with this revision, though, we might run into problems. Simply not any imperative will do. Here’s why: suppose a kid wants to eat a cookie, but his mom says not until after dinner. This particularly bright child believes that restrictions on sweets before dinner are unjust acts of paternalism. So, he decides to eat the cookie, in violation of his mother’s imperative. Is this an example of civil disobedience? Obviously not. Thus, we need to add something: maybe the imperative one is breaking must be an imperative given by an agent of the state. This excludes the child disobeying his mother’s imperatives from counting as an act of civil disobedience.
There also seems something wrong‐headed about holding that any violation of a law or imperative on the grounds that it is unjust counts as an act of civil disobedience. Here’s an example: suppose that someone thinks that laws telling people where and when they can/cannot cross the street are unjust. As a result this individual jaywalks quite frequently. Does this individual commit an act of civil disobedience every time she jaywalks? Intuitively I don’t want to say she is. Maybe we should add that we must be able to reasonably infer that the violation of the law or imperative given by the state will result in some sort of significant punishment by the state. This builds into our theory of civil disobedience the intuition that civil disobedience is committed when something is at stake, though I recognize that this intuition might be less frequently shared than other intuitions I have been making use of thus far.
Here’s another problem with the three minute theory’s definition of civil disobedience: imagine a group of students performing a sit‐in at the office of a senator. Normally, these students don’t think that there is anything unjust about laws preventing people from entering buildings and refusing to leave after having been asked. But they decide to perform the sit‐in because they want to highlight the injustice of something else: maybe drone strikes in Yemen. They are all arrested. In this case, have the students committed an act of civil disobedience? I think so. But if we believe the three minute theory, they haven’t, because they aren’t breaking whatever law prevents them from performing the sit‐in on the grounds that such a law is unjust. They are breaking what they believe is a just and reasonable law in attempt to get at what they believe is an unjust policy. Thus, we might further edit the three minute theory so that civil disobedience involves (i) violating a law or imperative given by the state (ii) that we can reasonably infer will be met with some sort of significant punishment by the state (iii) on the grounds that the law or imperative is unjust, or in attempt to highlight the injustice of a different law or imperative.
One final problem with the three minute theory’s definition: the three minute theory doesn’t specify in what manner civil disobedience must be carried out. An example: it used to be true that black people weren’t allowed to enter certain establishments; such discrimination was legally permitted. Suppose that one day a group of black people try to enter Ollie’s Barbeque, which is for whites only, in an act of civil disobedience. The owner locks the door to keep them out. Persistent, the black people start breaking windows with rocks and bricks so they can enter the building. Does this seem like civil disobedience? I don’t think so, even though these people are breaking laws on the grounds that they are unjust, or in attempt to highlight unjust policies. There is something about the concept civil disobedience that seems to imply nonviolence. Note, it might be true that instances of violent law‐breaking are justified. But even if they’re justified it doesn’t follow that such acts are civilly disobedient. Civil disobedience implies non‐violence. As such we should add a corresponding clause.
So far we have moved far beyond the three minute theory’s definition of civil disobedience by adding much more nuance. We ended up with something like this: civil disobedience involves (i) violating a law or imperative given by the state (ii) that we can reasonably infer will be met with some sort of significant punishment by the state (iii) on the grounds that the law or imperative is unjust, or in attempt to highlight the injustice of a different law or imperative (iv) carried out in a non‐violent manner. No doubt this definition is incomplete, and no doubt others might be able to poke holes in it. But nonetheless, I think it provides sophistication in places the three minute theory lacks.
After defining what civil disobedience is, the three minute theory attempts to answer this question: When is civil disobedience justified? Jason thinks this is an easy question to answer because he believes that there is no such thing as political obligation. Since there is no prima facie duty to obey laws, it follows that civil disobedience is always justified. As one might be able to guess (from the fact that I blog for a website called Libertarianism.org), I am sympathetic to this answer. But still there might be more to it than this, which I shall try to show with the remainder of this article. Briefly, while it may be true that we never have political reasons to refrain from committing acts of civil disobedience, there are many times when we have moral reasons to refrain. While Jason surely recognizes this point, he doesn’t attempt to outline in the three minute theory any general cases involving moral reasons to refrain from commiting an act of civil disobedience. I shall now try to outline a few such cases.
Suppose we live in a society where roughly 30 percent of the population is regularly committing acts of civil disobedience. Needless to say, the society isn’t very stable. Another group wants to regularly commit acts of civil disobedience protesting their own pet issue. If they did, then 60 percent of population will be regularly committing acts of civil disobedience. Suppose that, if such a large amount of the population were to break laws regularly, then society will collapse in on itself and chaos would ensue.
While things might be great in the long term without government, I doubt that, were the government to collapse tomorrow, things would be fine in the short run. As such, the fact that one’s act of civil disobedience may result in horrible consequences might give one a moral reason to not commit the act of civil disobedience, a moral reason to obey the law. That is, in such circumstances civil disobedience is not justified. This is not because the government has authority, as both Jason and I agree that it has none. It is because one’s actions should not be allowed, even though unintentionally, to bring down the rest of society.
Interestingly this is a point John Rawls briefly makes in A Theory of Justice, though one often ignored: there is an upper‐limit to the amount of civil disobedience tolerable for general reasons of stability. If a particular instance of civil disobedience crosses this threshold then there might be a case to be made that the particular act is not justified, and not for reasons of government legitimacy/obligation.
Going along with the upper‐limits restriction on civil disobedience, it may be that acts of civil disobedience are justified only if they do not cause significant harm to other people. If an act of civil disobedience were to cause significant harm to other people, then the act might be morally impermissible. This is a point that Joseph Raz makes when he highlights that not all non‐violent acts are harmless acts: consider the possible effects of striking ambulance drivers, for instance (The Authority of Law, 267).
Here is an example of what this restriction on civil disobedience might look like: suppose large groups of people want to protest the fact that the U.S. doesn’t have free healthcare. To do so they decide to perform sit‐ins in all major hospitals across the country. Suppose that the people who want to commit these sit‐ins is so large a group that, were they to carry this out, they would overwhelm the hospitals, effectively shutting them down. Obviously, this act of civil disobedience would cause great harm to many people who need urgent care. In such a case, I think it would be morally impermissible to carry out such an act of civil disobedience. Again, though, this is not because the protesters have some prima facie obligation to obey the law. It is because they have a moral obligation to not cause great amounts of suffering on account of their actions.
Finally, the three minute theory addresses a third question: When must you submit to punishment for breaking an unjust law? Jason contends the answer is never. I actually agree with him on this point and can think of no argument requiring otherwise. Even so, it is probably the case that I am missing something here.
In this essay I tried to provide insights to transform Jason’s three minute theory of civil disobedience into a slightly‐more‐than‐three‐minute theory of civil disobedience. I did this because I think there is far more complexity to the issue of civil disobedience than Jason’s brief article lets on. One of my favorite philosophers, Bernard Williams, was famous for his focus on the complexity – sometimes the irreducible complexity – of philosophical problems, particularly those in ethics. I tend to agree with Williams, holding that no question interesting enough to be asked philosophically is simple enough to be answered easily. Civil disobedience, I have tried to show, is no different.