Abstract
A parallel may be drawn between the communicative aspect of civil disobedience and the communicative aspect of lawful punishment by the state. In punishing an offender, the state seeks to communicate both its condemnation of the crime committed and its desire for repentance and reformation on the part of the offender. Similarly, in civilly disobeying the law, a disobedient seeks to convey both her condemnation of a certain law or policy and her desire for recognition that a lasting change in policy is required. When disobedients and authorities target each other, their confrontation allows for a direct comparison of the respective justifiability of their conduct. Their confrontation is explored in this paper with an eye to analysing how civil disobedients and authorities should engage with each other.
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Notes
See Brownlee, 2004: 337–351 for a fuller discussion of paradigmatic civil disobedience.
See Raz, 1979: 264.
It would be a mistake to hold that the non-governmental policies and practices opposed by civil disobedients are somehow not matters of law. In condemning such policies, civil disobedients challenge, amongst other things, the legal framework that accepts these policies and practices as lawful.
Brownlee, 2004: 337–351.
By “radical disobedience”, I mean extreme forms of dissent—militant action, coercive violence, terrorisation—which lack the conscientious communication and persuasive aims exemplified in paradigmatic civil disobedience.
John Stuart Mill makes a similar point with regard to dissent in general. Sometimes, says Mill, the only way to make a view heard is to allow, or even to invite, society to ridicule and sensationalise it as intemperate and irrational. (Mill, 1999) Admittedly, the success of this strategy depends partly upon the character of the society in which it is employed; but we should not rule it out as a mode of communication.
C.f. Gardner, 2002. Like Gardner, I endorse a non-closure theory of wrongdoing, which allows that actions can be wrong, but justified. In other words, an action that violates a requirement nonetheless may be taken for undefeated reasons.
Subjective intrinsic reasons are reasons based upon one’s own values and one’s need for self-respect. They may be contrasted with objective intrinsic reasons, which derive from a respect for the value of a relationship or institution that is itself objectively valuable. C.f. Soper, 2002.
The distinction often drawn between direct civil disobedience and indirect civil disobedience may be less clear-cut than one might think. For example, would refusing to pay taxes that support the military be an act of indirect or direct civil disobedience against foreign policy? Although this act presumably would be classified as indirect civil disobedience, a part of one’s taxes, in this case, would have gone directly to support the policy one opposes.
The justifiability of indirect civil disobedience marks a key place where the parallel between civil disobedience and lawful punishment breaks down. Given the emphasis that the communicative theory of punishment places upon engaging the offender in a moral dialogue, it presumably would be impossible, on this account, to justify indirect punishment such as either punishing someone other than the offender or punishing the offender for an action other than the offence for which she is convicted.
One might wonder whether a person shows an error of judgment if she undertakes civil disobedience before all legal methods have been exhausted. In reply, as noted above, civil disobedience often is more effective than legal protest is. Moreover, the intelligibility of “last resort” may be questioned, as it is unclear whether a person could ever claim to have exhausted all legal options. Presumably, she could continue to use the same tired, conventional methods indefinitely.
See also Ashworth and von Hirsch (2005): 12–13.
C.f. Tasioulas, 2006: 279–322.
I thank Antony Duff for highlighting this point.
The notion of justification does not require that those who legitimately demand it actually must be satisfied by the explanation given. Rather the justification must be such that similarly placed people who reflected upon the explanation would be satisfied by it.
It is unlikely, for example, that a career-dissenter would be responsive to a ban placed on her being in the proximity of political protests. Moreover, judges should consider the likely costs for the disobedient of having such a ban imposed upon her. C.f. Potter, 2001.
Duff uses the phrase “rational persuasion” to describe the kind of persuasion that I have labelled “prudential persuasion”. “Rational persuasion” is an ill chosen term here since deterrence theories are criticised for not treating offenders as rational agents capable of responding to the moral reasons they have to follow this law.
In practice, the contrast between civil disobedience and radical disobedience as well as that between desert systems and deterrence systems will not be as clear-cut as this.
I thank John Tasioulas for noting this point.
During the 2005 British Columbia Teachers Federation’s (BCTF) illegal strike, BC Supreme Court (trial court) Justice Brenda Brown chose not to adopt the customary strategy of imposing heavy fines on the union, but chose rather to freeze the union’s strike fund, preventing the union from paying its members their daily strike-pay. In this precedent-setting decision, Justice Brown argued that the BCTF acts through its members to commit the contempt of the court order that required them to return to work and that the BCTF is using its assets to facilitate the continuing breach of that order in part by paying teachers. Her response to the union was to impose a punishment of sorts in denying members their strike pay, but not the traditional punishment of a fine that the union had expected (and that it received a week later after it continued to act in contempt of the court order). In making this judgment, Brown stepped around the union and addressed teachers directly. Many teachers took the judgement as a challenge to them to show the strength of their convictions, that is, to show whether they would continue the strike without their strike-pay. See BC Public School Employers Association v BC Teachers Federation [2005] BCSC 1446.
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Acknowledgements
I am grateful for the feedback I received from participants of the Socio-Legal Studies Association annual conference, University of Stirling, Scotland, 28–30 March 2006; the London Legal and Political Philosophy Seminar 3–4 April 2006; and the 10th annual Law and Philosophy Colloquium, University College London, 3–4 July 2006. I also wish to thank Claire Grant, Kinch Hoekstra, Christoph Ortner, Mark Reiff, John Tasioulas, and two anonymous referees for their helpful comments on previous drafts.
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Brownlee, K. The communicative aspects of civil disobedience and lawful punishment. Criminal Law, Philosophy 1, 179–192 (2007). https://doi.org/10.1007/s11572-006-9015-9
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DOI: https://doi.org/10.1007/s11572-006-9015-9