Abstract
The requirement of “fidelity to law” is one of the most debated criteria of the “standard”, Rawlsian, definition of civil disobedience. This chapter examines its grounds and implications in relation to the idea of “legality” or the “rule of law”. First, it argues that the criterion of fidelity to law cannot be grounded in a vindication of legality. Once one adopts an asymmetrical interpretation of the latter, according to which the desiderata of the rule of law apply only to officials, those desiderata cannot be put forward as the reason why civil disobeyers must be faithful to the law and accept the legal consequences of their actions (punishments included). Secondly, the chapter shows that the rule of law is not, however, completely unrelated to the requirement of fidelity to law. In the Rawlsian definition, both play an important role in implementing a “moral dialogue” for giving effect to the special kind of publicity that is required. The chapter then concludes with the statement that although the rule of law is not at the basis of the fidelity-of-law requirement, it is a presupposition of civil disobedience implicit in the Rawlsian notion of a “nearly just society”.
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Notes
- 1.
Originally published in French in: Sperb Machado, Augusto. 2019. “La définition ‘standard’ de la désobéissance civile entre l’exigence de fidelité à la loi et l’idéal de l’État de droit”. Dissonância 3(1), 155–89. This paper was first written as an assignment essay submitted to Philippe Urfalino for his seminar “Conceptions and functions of violence in political thought”, held at the École des hautes études en sciences sociales (EHESS, Paris) in 2018–2019. This is an adapted and abridged version translated by the author. Unless indicated otherwise in the references, all translations are mine.
I am grateful to Eraldo Souza dos Santos (University Paris 1 Panthéon-Sorbonne) for having introduced me to this literature in a talk he gave in a seminar organized by Rui Pereira at the EHESS on 16 May 2019.
- 2.
“The fact that Snowden leaked the documents from Hong Kong and then looked for refuge in Moscow to escape the American law, as noted by the political scientist Rahul Sagar (2014), points to a denial of responsibility for his dissidence and of the punitive consequences that follow from it” (Delmas, 2018, para. 4). This claim can be discussed at the level not only of principles but also of facts. Scheuerman (2015b, 447–48), for example, gladly accepts fidelity to law as a defining criterion of civil disobedience but rejects the notion that Snowden was not faithful to the law.
- 3.
John Kerry, secretary of state of Barack Obama’s administration, claimed in an interview that “[Edward Snowden] should come back and deal with the justice system of the United States. He should prove his respect for that system. He should do what many people who have taken issue with their own government do, which is challenge it, speak out, engage in an act of civil disobedience, but obviously accept the consequences of that act of civil disobedience. Not find refuge in authoritarian Russia or seek asylum in Cuba or somewhere else—that’s running away from the consequences” (PBS NewsHour, 2014). See also Recode (2015); Thielman (2015); Brinkbäumer and Mikich (2016).
- 4.
“Edward Snowden […] qualifies as a civil disobedient, but not in the well-known, narrow and implausible sense articulated by John Rawls. […]. Snowden fails to meet two of the core conditions for civil disobedience as Rawls specifies them. […]. First of all, Rawls’ publicity condition includes giving fair notice (to the society and, consequently, to its authorities) that one is about to engage in civil disobedience. […]. Next, there is Rawls’ fidelity-to-law condition […] that one be willing to accept the legal consequences for one’s act” (Brownlee, 2016, 965–966).
- 5.
For Rawls, violence would not be compatible with fostering understanding and, consequently, with the communicative aspects of civil disobedience. Brownlee (2004, 349) does not agree: “Violence does not necessarily obscure the communicative quality of civil disobedience, as Rawls […] suggest[s] it does”.
- 6.
- 7.
This parallel exists as long as the ideal of the rule of law is reasonably realized. Otherwise, the communicative aspects highlighted by Brownlee are absent from legal punishment. This is because punishment is secret, retroactive, contrary to law, etc., when the “rule of men”, not “of law”, rules. I developed this argument in Sect. 4.4.
- 8.
- 9.
Scheuerman does not agree, however, that accepting punishment is the only possible way to render an act of civil disobedience “public” or “faithful to law”. Although my analysis focuses on Rawls’s instances of fidelity to law—namely, accepting legal consequences—I do not deny that there might be others.
- 10.
Lon Fuller’s well-known essay on the rule of law is curiously entitled “Positivism and Fidelity to Law” (Fuller, 1958). I do not have any objection to the interchangeable use of these terms so long as attention is paid to the distinction I make in this section.
- 11.
Disagreements about the value of the rule of law persist, however (see Waldron [2002, 158]).
- 12.
See Lovett (2016, 209–11), Appendix A, for a compilation of these requirements.
- 13.
I have adapted some of Samuel Scheuerman (2018, 8–9) remarks on obligations here.
- 14.
Gardner’s asymmetrical interpretation says neither that there is nothing that citizens could do to contribute to promoting or to infringing the rule of law nor that noncompliance with the law by authorities is never justified. Thanks to Gabriel Yordi for comments on this point.
- 15.
This is of course disputable on the level of facts.
- 16.
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Machado, A.S. (2023). The “Standard” Definition of Civil Disobedience Between the Fidelity-to-Law Requirement and the Rule-of-Law Ideal. In: Daher, L.M. (eds) Democratic Protests and New Forms of Collective Action. Contributions to Political Science. Springer, Cham. https://doi.org/10.1007/978-3-031-44049-6_4
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