Abstract
While philosophers usually agree that there is room for civil disobedience in democratic societies, they disagree as to the proper justification and role of civil disobedience. The field has so far been divided into two camps—the liberal approach on the one hand, which associates the justification and role of civil disobedience with the good of justice, and the democratic approach on the other, which connects them with the value and good of democracy. William Smith’s Civil Disobedience and Deliberative Democracy offers a ‘deliberative’ theory, which constitutes an attractive synthesis of the two camps as it conceives of civil disobedience as a guardian of both justice and deliberative democracy. In this review essay, I first revisit the ‘problem’ of civil disobedience, examining in particular the two pillars of the case against civil disobedience as Smith depicts it, namely, (a) the prohibition on legal disobedience established by the moral duty to comply, and (b) the notion that civil disobedience strains the bonds of civic friendship. I suggest, contra (a), that the duty to comply as Smith defends it fails to be comprehensive (to cover all laws) because it is tightly bound to deliberative democratic procedures, which are involved in the making of only a portion of authoritative decisions; and, contra (b), that civil disobedience does not strain, but instead invigorates, civic friendship. Second, I entertain the possibility that citizens have a moral duty, not a mere right, to resist injustice. I show that Smith’s theory, in particular his account of the moral duty to comply, provides the resources to defend a general duty to resist injustice which, depending on the circumstances, can demand protesting the law (including through civil disobedience) or frustrating injustice (including through covert disobedience). Third, I contend that Smith’s conception of the different contexts of injustice—he identifies three main ones—should be expanded to include what I call ‘official disrespect’ (i.e., routine and open illegal practices by the authorities) and ‘deliberative ignorance’ (which occurs when the state conceals officials programs or misconduct from the public). I argue that each context offers reasons to disobey the law but not necessarily in the civil manner determined by Smith.
This is a preview of subscription content, log in via an institution to check access.
Similar content being viewed by others
Notes
Plato, Crito, 51b.
Henry D. Thoreau, “On Civil Disobedience”, in ed. W. Glick, The Writings of Henry David Thoreau: Reform Papers (Princeton University Press, 1973): p. 75.
Martin Luther King, Jr., “Letter from a Birmingham Jail”, in A Testament of Hope: The essential writing and speeches of Martin Luther King, Jr., ed. J. M. Washington (San Francisco: HarperCollins 1986): p. 294. In other passages, however, King conceives of resistance to injustice as a moral duty, thereby suggesting an outlook closer to Thoreau’s. See David Lyons, “Moral Judgment, Historical Reality, and Civil Disobedience”, Philosophy and Public Affairs 27(1) (1998): pp. 31–49. I discuss some of the parallels between King and Thoreau below.
William Smith, Civil Disobedience and Deliberative Democracy (London: Routledge, 2013). Hereafter CD&DD.
Representatives of the liberal approach include John Rawls, A Theory of Justice, revised edition (Cambridge, Mass.: Harvard University Press, 1999): pp. 313–349; and Ronald Dworkin, A Matter of Principle (Cambridge, MA: Harvard University Press, 1985): pp. 104–116. Champions of the democratic approach include Hannah Arendt, “Reflections on Civil Disobedience”, The New Yorker (September 12, 1970), and Jürgen Habermas, “Civil Disobedience: Litmus Test for the Democratic Constitutional State”, Berkeley Journal of Sociology 30 (1985): pp. 95–116.
CD&DD: pp. 32–35.
CD&DD: p. 7.
CD&DD: p. 3.
CD&DD: p. 6.
CD&DD: pp. 28–29.
CD&DD: pp. 5–6.
CD&DD: p. 6.
CD&DD: pp. 6–7.
CD&DD: pp. 27–31.
CD&DD: p. 29.
Ibid. As I noted above, the duty to comply does not arise in contexts of deliberative disrespect, yet civilly disobedient agents are still supposed to recognize its weight and constrain their actions as if the duty to comply really bound them.
Ibid.
CD&DD, pp. 29–31. John Simmons first raised this objection against Rawls. See A. John Simmons, Moral Principles and Political Obligations (Princeton, NJ: Princeton University Press, 1979).
See Jeremy Waldron, “Special Ties and Natural Duties”, Philosophy and Public Affairs 22 (1993): pp. 3–30.
Amy E. Lerman, and Vesla M. Weaver, Arresting Citizenship: The Democratic Consequences of American Crime Control (The University of Chicago Press: 2014), Chapter 3.
‘Custodial citizens’, in Lerman and Weaver's conception, are those citizens in the orbit of the criminal justice system—that is, not only parolees, convicts, and ex-convicts, but also individuals innocent of any crime such as people who were arrested but not charged with any crime, and urban African American and Latino youth regularly stopped and frisked.
Rawls, Theory of Justice: p. 5, and Political Liberalism (New York: Columbia University Press, 1993): pp. xlix and 253.
CD&DD: p. 1.
Arendt, “Reflections on Civil Disobedience”: p. 104.
Ibid.
Arendt, “Reflections on Civil Disobedience”: p. 94.
Arendt, “Reflections on Civil Disobedience”: p. 99.
Arendt, “Reflections on Civil Disobedience”: p. 104.
On this political risk, see Étienne Balibar, “Impolitique des droits de l'homme. Arendt, le droit aux droits et la désobéissance civique”, Erytheis 2 (novembre 2007): http://idt.uab.es/erytheis/balibar_fr.htm.
See Hannah Arendt, On Revolution (New York: Penguin Books: 2006 [1963]).
Erica Chenoweth and Maria Stephan argue, on the basis of statistical analyses of hundreds of recent civil resistance campaigns, that ‘as membership [in civil resistance campaigns] increases, the probability of success also increases’. Erica Chenoweth and Maria J. Stephan, Why Civil Resistance Works: The Strategic Logic of Nonviolent Conflict (Columbia University Press: New York, 2011), p. 39.
On Occupy’s rejection of the state’s overall legitimacy, see e.g., Bernard Harcourt, “Political Disobedience”, in M. Taussig, B. Harcourt, and W. J. T. Mitchell, Occupy: Three Inquiries in Disobedience (TRIOS: The University of Chicago Press, 2013): pp. 45–91.
CD&DD: pp. 99–101.
King, “Letter” (contra my earlier alignment of King with the standard view of civil disobedience).
CD&DD: p. 27.
CD&DD: pp. 39–41.
CD&DD: pp. 43–47.
CD&DD: pp. 75–77.
A simple way to deny that slavery constitutes a case of deliberative disrespect is to observe that the U.S. of antebellum disenfranchised more than half of its population. I chose these two cases to illustrate both a context of egregious injustice outside deliberative democracy and a context of deliberative disrespect within deliberative democracy.
On the movement, see Susan Bibler Coutin, The Culture of Protest: Religious Activism and the U.S. Sanctuary Movement (Boulder: Westview Press, 1993).
I address objections to the claim that there could be a moral requirement to disobey the law in cases like these in Candice Delmas, “Samaritanism and Civil Disobedience”, Res Publica 20(3) (2014): pp. 295–313.
CD&DD: pp. 39–41.
CD&DD: pp. 41–43.
See, e.g., Peter Singer, Democracy and Disobedience (Oxford: Clarendon Press, 1973): pp. 84–92.
CD&DD: pp. 68–70. Deliberative inertia, like deliberative disagreement, doesn’t defeat the duty to comply.
Estimates from the Tuskegee Institute; see “1959 Tuskegee Institute Lynch Report”, Montgomery Advertiser (April 26, 1959), re-printed in Ralph Ginzburg, 100 Years of Lynching (Baltimore: Black Classic Press, 1988 [1962]).
U.S. v. Cruikshank (92 U.S. 542, 1876) is a case in point. The Cruikshank Court overturned the convictions of two white defendants in the 1873 Colfax massacre (around 150 blacks were killed), and put an end to the Ku Klux Klan prosecutions. See e.g., Charles Lane, The Day Freedom Died: The Colfax Massacre, the Supreme Court, and the Betrayal of Reconstruction (Henry Holt and Company, New York: 2008). Justice John Paul Steven has argued that the decision judicially constrained the Fourteenth Amendment’s equal protection principle in a manner that has not been undone. John Paul Stevens, “Our ‘Broken System’ of Criminal Justice”, The New York Review of Books (November 10, 2011).
David Lyons, “The Legal Entrenchment of Illegality”, M. H. Kramer, et al. (eds.), The Legacy of H. L. A. Hart: Legal, Political, and Moral Philosophy (Oxford: Oxford University Press, 2008): pp. 29–43.
Travis Dumsday, “On Cheering Charles Bronson: The Ethics of Vigilantism”, The Southern Journal of Philosophy 47(1) (2009): pp. 49–67.
On the movement, see e.g., Lance Hill, The Deacons for Defense: Armed Resistance and the Civil Rights Movement (The University of North Carolina Press, 2006).
Candice Delmas, “The Ethics of Government Whistleblowing”, Social Theory and Practice (forthcoming).
On the interest in secrecy, see Sissela Bok, Secrets: On the Ethics of Concealment and Revelation (Random House, 1983): pp. 181–187.
See Inside the Pentagon Papers, ed. J. Prados and M. Pratt Porter (University of Kansas Press, 2005).
Snowden insisted that the state’s efforts to cover the surveillance program under the cloth of legality (via the FISA court) did not make the program constitutionally sound. A federal judge recently agreed with Snowden; and another disagreed, affirming the program’s legality under the 2001 PATRIOT Act. See Klayman v. Obama 957 F. Supp. 2d 1 (2013) and American Civil Liberties Union, et al. v. James R. Clapper, et al. 13 Civ. 3994 (2014).
CD&DD: p. 54.
Whistleblowing in general is very costly; a fortiori is government whistleblowing extremely costly. On the costs of whistleblowing in the workplace and the in the public sphere, see e.g., Myron P. Glazer and Penina M. Glazer, The Whistleblowers: Exposing Corruption in Government and Industry (New York, NY: Basic Books, 1989): p. 7; Joyce Rothschild and Terance D. Miethe, “Whistle-Blower Disclosures and Management Retaliation”, Work and Occupations 6(1) (1999): 107–128; Alan F. Westin, Whistle Blowing! Loyalty and Dissent in the Corporation (New York, NY: McGraw-Hill, 1981); and C. Fred Alford, Whistleblowers, Broken Lives and Organizational Power (Ithaca: Cornell University Press, 2001).
See PBS Frontline, “The United States of Secrets” (May 13 and 20, 2014); United States v. Drake, 130 S. Ct. 1562 (2010). The Espionage Act charges were dropped just before the trial, and Drake entered a guilty plea to a misdemeanor charge under the Computer Fraud and Abuse Act (CFAA).
Author information
Authors and Affiliations
Corresponding author
Rights and permissions
About this article
Cite this article
Delmas, C. Disobedience, Civil and Otherwise. Criminal Law, Philosophy 11, 195–211 (2017). https://doi.org/10.1007/s11572-014-9347-9
Published:
Issue Date:
DOI: https://doi.org/10.1007/s11572-014-9347-9