Civil Disobedience by Stephen Nathanson

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On the last day of the Pilgrim 14’s trial for trespass on the property of Entergy Corporation, Northeastern University professor and social justice expert Stephen Nathanson cited Henry David Thoreau, Mahatma Gandhi, and the American civil rights movement as examples where civil disobedience prompted social change.

“The main thing civil disobedience does is highlight a situation and bring a level of urgency to it,” Nathanson said. “In crossing a line, (the Downwinders) are trying to reach other people and show them this is more than a run-of-the-mill disagreement…. People become complacent, then when something happens, they say ‘Why didn’t we do something?’”

Civil Disobedience

[From The Encyclopedia of Philosophy, 2nd. ed., Macmillan, 2006]
Copyright © Stephen Nathanson

The idea of civil disobedience comes out of the tradition of social and political protest whose best known advocates are the 19th century American transcendentalist Henry David Thoreau, the Indian reformer Mohandas Gandhi, and the American civil rights leader, Martin Luther King, Jr. While the idea of civil disobedience has diverse roots, the views of these activist/thinkers set the stage for academic and popular discussion.

Philosophical discussions of civil disobedience generally focus on two questions. First, what is civil disobedience? Second, can acts of civil disobedience be morally justified? 

Defining “civil disobedience”

The definition of civil disobedience that best accords with the tradition of Thoreau, Gandhi, and King categorizes acts as civil disobedience if they have four features. They must be: 1) illegal, 2) nonviolent, 3) public, and 4) done to protest a governmental law or policy.

Thoreau’s refusal to pay his taxes has all these features. It was illegal, nonviolent, and was public. (Unlike a tax evader, Thoreau did not hide his not paying.) And, it was done to protest policies of the United States government that Thoreau thought were seriously unjust—support of slavery and an aggressive war against Mexico.

 Actions like Thoreau’s are sometimes described as “conscientious refusal,” refusing to obey a law that requires one to act immorally. Some people see conscientious refusal as different from publicly protesting a policy, but the two usually go together. Generally, people who refuse to obey unjust laws hope that their act will stimulate others to see that the law is wrong and to work for change. Thoreau spoke publicly about the reasons for his act, and his lecture became the classic essay “Civil Disobedience.”

Gandhi and King went beyond individual conscientious refusal and organized large numbers of people to disobey the law as a means of protest. These illegal acts were intended to publicize serious injustices and to rally support for change. If enough people were to disobey an unjust law, it might be impossible for a government to enforce it.

Acts of civil disobedience cover a spectrum, ranging from a) conscientious refusal by individuals to b) symbolic disobedience that is meant to convey a message about the wrongness of government policy to c) large scale acts of disobedience that aim to render a government unable to carry out its policies.

Not everyone would accept the definition given above. Some argue that civil disobedients must accept the punishment, but this does not seem necessary. For example, someone who publicly burns a draft card might flee the country if the punishment were extremely severe; yet the original act would still be civil disobedience, even if the act of fleeing is not. John Rawls has argued that civil disobedience addresses a community’s sense of justice, but this overlooks the fact that a community can have mistaken or conflicting conceptions of justice. Finally, some argue that civil disobedience can be violent, but this overlooks the connotations of the word “civil” and violates the tradition of Gandhi and King, who were explicitly committed to nonviolent strategies of resistance. Moreover, since violent acts require stronger types of justification, including them in the definition complicates the evaluation of civil disobedience. Violent acts will have to be distinguished from nonviolent ones when we try to see if civil disobedience can be morally justified. In the end, the test of definitions is that they help to clarify matters, and lumping together violent and nonviolent acts in this case does not seem helpful.

Using the definition above, the question “Is civil disobedience ever morally justified?” can be understood to mean “Is it ever morally permissible to engage in nonviolent, public violations of the law in order to protest a governmental law or policy?”

The duty to obey the law

Asking whether civil disobedience can be morally justified presupposes that there is some moral duty to obey the law. If there were no such moral duty, then breaking the law would not need a special justification. In addition, people who think that civil disobedience can never be justified must believe that the moral duty to obey the law is absolute and can never be over-ridden by other moral concerns.

Socrates’ arguments in the Crito are often taken as a source of the view that people must always obey the law. Socrates appears to argue that people must always obey the law because the state is like a parent and one must obey one’s parents, that the state has benefited him and therefore should be obeyed, and that he has made a tacit agreement to obey the laws by living in Athens all his life. In the Apology, however, Socrates states that he will disobey the law if it requires him to violate the commands of the gods. Socrates, then, is a source of both the individualist tradition that approves civil disobedience and the authoritarian, statist tradition that condemns it.

In his Leviathan, Thomas Hobbes provides a famous argument for the duty of obedience  to law. He argued that recognition of government’s authority is justified because it is the only way for people to avoid a state of nature in which everyone is a threat to everyone else. If everyone followed their own judgment and recognized no legal authority, this would lead to a situation of unlimited conflict in which life is “nasty, brutish, and short.” Hobbes thought that peace could be achieved if people agree to obey a sovereign who enforces the laws. If everyone claims a right to act according to their own judgment and to disregard the law, then government would be undermined, and there would be a return to anarchy and a “war of all against all.” In short, individuals must trade away their personal autonomy if peace and security are to be possible.

In a much discussed argument from the 1960s, Robert Paul Wolff turned Hobbes’ argument on its head in order to defend a version of philosophical anarchism. Wolff agrees with Hobbes that governments claim authority over what citizens should do and thus take away personal autonomy. But, Wolff claimed, personal autonomy—deciding what is right and wrong for oneself and acting on those decisions—can never legitimately be traded away. Therefore, governmental authority can never be morally legitimate. From Wolff’s anarchist perspective, it is obedience to law rather than disobedience that is morally questionable.

There is also a cynical tradition that sees laws as devices for protecting the interests of the rich and powerful. Thrasymachus, a character in Plato’s Republic, defined justice as whatever is in the interests of the stronger. This idea is echoed in the Marxist view that the legal system is a prop for the protecting the property and power of the wealthy. This cynical perspective suggests that it is foolish to believe in a moral obligation to obey the law.

Justifying civil disobedience

Debates about civil disobedience are often conducted in all or nothing terms. They presuppose either a) that there is an absolute obligation to obey the law no matter what, or b) that there is no obligation to obey the law at all. From this perspective, support for civil disobedience leads to anarchism while opposition to it requires mindless conformity to law.

 A different tradition emerges from John Locke’s Second Treatise on Civil Government. While Locke argued that governments and laws could be legitimate and should be taken seriously, he also defended a right of revolution in cases where the government violates the rights that it is supposed to defend. According to Locke, the duty to obey is conditional on the nature of the government. There is no duty to obey a tyrannical government. This Lockean view acknowledges a general moral duty to obey the law while recognizing that there are circumstances in which disobedience—and even revolution—might be justified. Locke’s view is echoed in the American Declaration of Independence which affirms a right to “alter or abolish” a government that violates its people’s rights.

Defenders of civil disobedience, then, need not anarchists. They can recognize the moral force of the law while at the same time believing that the moral force of the law is conditional. When the right conditions do not exist, various forms of disobedience, including civil disobedience, may be justified. If the conditions that warrant obedience do exist, then people who violate the law are acting wrongly. Because obedience to law can be morally required in some cases and not in others, civil disobedience can be justified in some cases and not in others.

The argument for civil disobedience is strongest when what a specific law requires people to act immorally. A broader justification for disobedience arises when a government lacks legitimacy. Gandhi’s campaign for Indian independence, for example, challenged the legitimacy of British colonial rule. If British rule was illegitimate, then there was no moral duty to obey British laws. Still, for both moral and tactical reasons, Gandhi used civil disobedience very selectively.

King’s Defense of Selective Obedience

While there are plausible justifications for disobedience to some laws and some governments, a serious problem faces people who engage in civil disobedience but nonetheless appeal to others to obey the law. Martin Luther King Jr.’s classic “Letter from a Birmingham Jail” discusses just this problem. Critics charged that King was inconsistent because he urged segregationists to obey laws that prohibited racial discrimination at the same time that King and his followers stated their willingness to violate other laws. If selective obedience was permissible for King, why was it not permissible for his opponents?

King defended himself by providing criteria for justified disobedience. He argued that it is morally permissible to disobey the law a) when the law itself is unjust because it “degrades human personality” rather than respecting people, b) when the laws are binding on a minority group but do not bind the majority that imposes it, c) when those who are mistreated are deprived of rights of democratic participation in the process of enacting the law, or d) when a proper law is unjustly applied so as to deprive people of their rights of protest. These conditions, he argued, were met by those campaigning for racial equality but not by those who supported segregation.

 King’s argument shows how one can consistently defend the right to disobey the law and also take obedience to law seriously. He recognizes a strong presumption in favor of obedience but argues that the presumption is over-ridden in the kinds of circumstances he describes.

Unjustified civil disobedience

Acts of civil disobedience are not as difficult to justify as forms of protest that use violence. Nonetheless, acts of civil disobedience can be morally wrong. For example, they can be committed on behalf of an unjust cause. Thoreau, Gandhi, and King all protested serious evils, but if a person mistakenly believes that a law or policy is unjust, then an act of disobedience against it will not be morally justified. Moreover, even if a law or policy is bad, its defects may not be serious enough to justify violating the law. If obedience to law is something we expect of others when they disagree with a law, then we are not justified if we disobey laws simply because we disagree with them. Disobedience must be reserved for very serious cases, and even then, it may not be justified if legal means are available for effectively promoting change. It is only when effective, legal means are unavailable that civil disobedience is permissible. Finally, such acts can be wrong if they undermine just and valuable institutions.

A strong case, then, can be made for the view that civil disobedience can be morally justified under certain conditions. Whether specific acts of civil disobedience are justified, however, is often controversial. This is because people often disagree about the seriousness of the evils being opposed, the availability of other effective means of protest, and the long term effects on valuable institutions and practices. People who agree that civil disobedience can be justified in theory can still disagree about whether it is justified in practice.

Bibliography

Bedau, Hugo Adam, ed. Civil Disobedience in Focus. London: Routledge, 1991.

Gandhi, M. K. Non-violent Resistance. New York: Schocken Books, 1961.

Hobbes, Thomas. Leviathan. Many editions.

King, Martin Luther, Jr. “Letter from a Birmingham Jail.” In Why We Can’t Wait. New York: Signet Books, 1964.

Locke, John. Second Treatise on Civil Government. Many editions.

Nathanson, Stephen. Should We Consent to Be Governed?, 2nd ed.  Belmont, CA: Wadsworth, 2001.

Plato, Apology, Crito, Republic. Many editions.

Rawls, John. “The Justification of Civil Disobedience.” In John Rawls: Collected Papers, ed.  Samuel Freedman.  Cambridge, MA: Harvard University Press, 1999.

Thoreau, Henry David. “Civil Disobedience” and “A Plea for Captain John Brown.” In Walden and Other Writings of Henry David Thoreau, ed. Brooks Atkinson. New York: Modern Library, 1950.

Wolff, Robert Paul. In Defense of Anarchism, 2nd ed. New York: Harper and Row, 1976.

Zinn, Howard. Disobedience and Democracy: Nine Fallacies on Law and Order. New York: Vintage Books, 1968.

Copyright Stephen Nathanson, 2004

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