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Should the Law Convict Those Who Act from Conviction? Reflections on a Demands-of-Conscience Criminal Defense

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How should the judge or jury in a just criminal court treat a civil disobedient, someone who performs a conscientiously motivated communicative breach of the criminal law? Kimberley Brownlee contends that all else equal a court of law should neither convict nor punish such offenders. Though I agree with this conclusion, I contend that Brownlee mischaracterizes the nature of the criminal defense to which civil disobedients are entitled. Whereas Brownlee maintains that such actors ought to be excused for their criminal breach, I argue that they ought to enjoy a justification defense. Acts of civil disobedience are not (morally) wrongful violations of the law for which an actor ought not to be blamed; rather, they are violations of the law that are not (morally) wrong in virtue of their illegality. It is the absence of wrongdoing, and not merely the absence of fault, that renders the conviction and punishment of those who perform acts of civil disobedience inappropriate.

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  1. Brownlee (2012).

  2. Brownlee distinguishes between conscientious conviction and conscience, with the former describing a serious and sincere, though possibly mistaken, belief in a moral norm and the latter referring to “a set of practical moral skills that stem from an inward knowledge of the working of our own mind and heart” Brownlee (2012: 52). Since Brownlee’s nomenclature is not widespread, I have used the phrase ‘demands-of-conscience’ in this paper’s title. Henceforth, however, I follow Brownlee in using the phrase ‘demands-of-conviction’ to refer to a criminal defense for those who are motivated to violate the law by a conscientiously held conviction.

  3. Brownlee (2012: 161).

  4. For illuminating discussion of this point, see Horder (2004: 15–20); see also Brownlee (2012: 250–252).

  5. Brownlee and I dispute how best to understand this argument. See Brownlee (2012: 240–248) for criticisms of my argument that the moral right to civil disobedience protects those who perform such acts from punishment but not from penalties; Lefkowitz (2007: 218–223). In Lefkowitz (2012) I offer a preliminary response to those criticisms, but space does not permit me to address them further here.

  6. See, e.g., Smith (2012).

  7. Brownlee (2012: 29–47).

  8. Brownlee (2012: 140–151).

  9. Brownlee (2012: 7).

  10. Brownlee (2012: 141–149).

  11. Brownlee (2012: 18).

  12. Brownlee (2012: 20).

  13. The epistemic authority of such norms ought not to be exaggerated, however, as Brownlee rightly argues.

  14. Brownlee contrasts civil disobedience with what she terms personal disobedience: non-communicative violations of the law motivated by personal conviction that are either evasive or non-evasive. Brownlee rightly points out that, in comparison to the civil disobedient, we have more reason to doubt the seriousness and sincerity of a law-breaker’s claim to have acted from moral conviction if she attempts to evade the law’s detection of her criminal conduct and refuses to offer a reasoned defense of the conviction on which she allegedly acted. At times, though, it seems that Brownlee makes a stronger claim, namely that actors who do not meet the communicative condition and perhaps also the non-evasion condition lack a conscientious moral conviction altogether.

    Brownlee frequently identifies personal disobedience with what other authors refer to as conscientious objection, and then claims to reverse the standard liberal view by arguing that civil disobedients have a stronger claim to accommodation by the state than do personal disobedients. I think she misrepresents the views of many liberal theorists when she equates their notion of a conscientious objector with her conception of a personal disobedient. As I read the theoretical literature on principled disobedience to law (which, admittedly, is far from uniform in how it characterizes these concepts), what distinguishes civil disobedience from conscientious objection is not evasion or communication but whether the disobedient actor aims to bring about a change to existing law or policy or merely seeks to be exempted from it. The “standard liberal view,” then, is not that actors who non-communicatively violate the law have a stronger claim to accommodation by the state than do those who do so communicatively. Instead, the claim is that the state should be more accommodating toward those who simply seek an exemption from a law or policy than it is towards those who violate the law as part of a political campaign to change it. Even if the arguments for the standard liberal view grounded in democratic authority fail, as Brownlee and I both argue they do, there may be other reasons that support it. The relative strength of the claim to accommodation aside, what I take to be the standard liberal distinction between civil disobedience and conscientious objection leaves room for an argument that the state ought to tolerate conscientiously motivated disobedience to law even when it is not undertaken for the purpose of challenging law or policy. Contrary to Brownlee’s assertion (2012: 144–145), then, an argument like my own that grounds a right to civil disobedience in a more general right to political participation need not imply that the state has a duty to accommodate conscientious disobedience to law only when undertaken for a political aim by disempowered minorities.

  15. See Brownlee (2012: 169) on this point.

  16. Gardner (2007: 132–133).

  17. Gardner (2007: 133–134). Brownlee writes “… we not only want to assert our basic responsibility if we take ourselves seriously, but have an interest in asserting it as reasoning beings” and that “according to this Aristotelian picture, if we can, we give a justificatory explanation for any wrong we do” (2012: 161).

  18. Brownlee (2012: 160).

  19. This is not to deny that civil disobedients may care more about correcting the perceived injustice they oppose than their own treatment at the state’s hands. But the fact that on the basis of strategic considerations a civil disobedient may pursue an excusatory defense rather than a justificatory one (e.g., couch her defense in terms of blameless wrongdoing rather than in terms of having committed no wrong) does not entail that she does not care whether others think her criminal breach justifiable or merely excusable.

  20. Brownlee (2012: 162), Gardner (2007: 97).

  21. The phrasing of this sentence reflects my acceptance arguendo of Brownlee’s and Gardner’s view that one may be justified in acting wrongly. See Brownlee (2012: 161–162), Gardner (2007: 77–82, 95–103).

  22. Brownlee (2012: 99–100). Gardner (2007: 104–107) employs this account as well.

  23. Raz (2006: 1014).

  24. Brownlee (2012: 123–124) notes that it would be paradoxical for the law to recognize the moral right to civil disobedience, i.e., to conscientious communicative disobedience to the law, by translating it into a legal right. After all, were there a legal right to deliberately break the law in order to communicate one’s conscientious convictions, such acts would not actually count as illegal. The foregoing analysis of justificatory legal defenses shows how the law may recognize a moral right to conscientious action that includes civil disobedience without generating this paradox. Acts for which a person enjoys a justificatory legal defense are illegal; that is, they are tokens of an act type proscribed by a criminal offense definition. But they are not wrongful because the criminal norm in question is not authoritative vis-à-vis the actor in question in the circumstances in which she acted. As I argue below, in the case of civil disobedience the explanation for the norm’s lack of authority lies in the actor’s moral right to conscientious action.

  25. Gardner (2007: 106–107).

  26. Duff (2007: 263–298) distinguishes faultless failures to advert to reasons that apply to one, which he labels unjustified but warranted, from faultless failures of deliberation, which he labels excuses. Gardner (2007: 86–87) groups both types of shortcomings under the heading of “excuses”.

  27. Brownlee (2012: 163).

  28. Gardner (2007: 124).

  29. See Gardner (2007: 129–130) on this point.

  30. Horder (2004: 8–9) says of excuses that they shine a positive light on wrongdoing. Though it may be substantively identical, I think it more apt to say that excuses show the performance of a wrongful act, and so the agent who performed it, in a less negative light; that is, they show her failure to respond appropriately to reasons to be a lesser shortcoming than it would be had she not been subject to the human imperfections or frailties that led her to reason poorly.

  31. Note that partial excuses are not the only grounds a court may have to mitigate the punishment it assigns a particular defendant. Rather, partial excuses constitute reasons the law ought to take into account insofar as it aims to engage with her as a responsible agent, i.e., to give her what she deserves.

  32. Brownlee (2012: 167), Horder (2004: 199–200).

  33. Brownlee (2012: 7).

  34. That someone might make the latter claim may sound odd. Consider, however, the possibility that in the interval between when she performed the act in question and when she goes to trial for it the agent may conclude that she ought not to have acted as she did because the moral or prudential reasons that applied to her left her with no undefeated reason for so acting. “I ought not to have done it,” she may concede, but not because it was illegal. Intriguingly, such an agent may have a justification for her violation of the law, but at most only an excuse for her violation of some other norm she also breached in acting as she did.

  35. Brownlee (2012: 168).

  36. Brownlee (2012: 168).

  37. Brownlee (2012: 120–121) explicitly adopts an interest theory of rights.

  38. As in the previous section I put the point this way because Brownlee maintains that acts can be wrong but justified all things considered; i.e., done for an undefeated reason.

  39. Brownlee (2012: 120).

  40. Brownlee (2012: 7).

  41. I touch on all three of these possibilities below.

  42. The passages in which Brownlee argues for a demands-of-conviction defense include only a single remark that connects her discussion of the nature of excuses with her claim that all else equal conscientiously motivated law-breakers ought to be legally excused for their communicative acts of disobedience to law. In characterizing their disobedience to law as an “autonomous act taken on the strength of their [conscientious] commitments,” Brownlee writes, such actors can give reasons for mistakenly believing that they had undefeated reasons to act as they did. But it does not follow that in doing so these actors must be offering an excuse for their criminal conduct, as Brownlee suggests. Rather, they may wish to demonstrate their conscientious motive because doing so is necessary to establish that they acted within their right to conscientious action, and so necessary to establishing that they were justified in not treating the particular law they violated as authoritative.

  43. Brownlee (2012: 166).

  44. Horder (2004: 225).

  45. Horder (2004: 209).

  46. Horder only claims that the defendant is entitled to a partial excuse because he thinks only minor violations of individual rights can be fully excused.

  47. Bronwlee (2012: 160). The story might be constructed so as to make defendants’ criminal conduct evasive or non-evasive.

  48. See Brownlee (2012: 174–178); see also Lefkowitz (2007: 211–217).

  49. Horder (2004: 221–225).

  50. Horder (2004: 201).

  51. Brownlee (2012: 235).

  52. Brownlee (2012: 235).


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This paper develops some of the ideas originally presented at an author-meets-critics session organized by the Society for Applied Philosophy; I thank the Society, and Hugh LaFollete in particular, for the invitation to participate in that event. I have also benefited from discussion of the arguments contained herein with Richard Dagger, Joshua Kassner, David Shoemaker, and Bas van der Vossen.

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Correspondence to David Lefkowitz.

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Lefkowitz, D. Should the Law Convict Those Who Act from Conviction? Reflections on a Demands-of-Conscience Criminal Defense. Criminal Law, Philosophy 10, 657–675 (2016).

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