Abstract

On the occasion of the Last Generation’s protest actions, the political categories of civil disobedience and civil resistance have been discussed increasingly within criminal law. These discussions are rarely linked to Émile Durkheims theorem of necessary deviation from social rules. Durkheim describes deviation as a phenomenon that is to a certain extent necessary in a functioning society because it enables the natural development of society and the collective change of ideas. Similarly, public sanctioning of norm-breaking is to some extent necessary and serves to reinforce the collective self-definition and understanding. Looking at the actions of the Last Generation, this essay raises the question of whether and to what extent it is possible to identify useful or aesthetic norm violations and whether there are adequate means of social reaction below the threshold of criminal sanctions. It argues that bringing back to mind Durkheim’s premise of necessary breach of norms can help to set a new focus within criminal law discourse: to redirect the discussion away from the individual criminal liability of activists towards the aesthetics of their actions and the effectiveness of communicating their concerns.