In her book, Conscience and Conviction, Kimberley Brownlee argues that there is nothing undemocratic about the robust, primary right to civil disobedience that she devotes most of her argument to defending. To the contrary, she holds that there is nothing paternalistic about civil disobedients opposing the will of democratic majorities, because, inter alia, democratic majorities cannot claim particular epistemic superiority, and because there are flaws inherent to democratic procedures that civil disobedience addresses. I hold that Brownlee’s arguments fail. In particular, her argument fails because it does not properly construe the nature of the epistemic claim that can be made either by democratic procedures or by civil disobedients, and because it illegitimately conflates the concern about permanent minorities that has been a constant thorn in the side of democratic theorists, with a concern with all outvoted minorities, whether permanent minorities or not.
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For example, civil disobedients who are taken to be acting in a morally justifiable manner may according to Brownlee be able to use certain kinds of defences unavailable to other law-breakers, such as demands-of-conscience defences or necessity defences, or they may be treated more leniently at the sentencing phase.
The second dimension of this principle is to the effect that “genuine moral conviction is essentially communicative and non-evasive” (p. 7).
Thanks to Massimo Renzo for having urged me to address this point.
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Weinstock, D. How Democratic is Civil Disobedience?. Criminal Law, Philosophy 10, 707–720 (2016). https://doi.org/10.1007/s11572-015-9367-0
- Civil disobedience