Abstract
Kimberley Brownlee’s Conscience and Conviction offers a powerful defence of civil disobedience as a conscientious and communicative mode of protest. The overall argument of the book is important and compelling, but this critical commentary explores certain aspects of Brownlee’s view that warrant further consideration and clarification. Those aspects relate to her suggestion that civil disobedience is a dialogic mode of communication, her attempt to ground a moral right of civil disobedience in a principle of humanism, and her belief that the right establishes a defeasible moral claim against all forms of interference.
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Notes
The distinction between civil disobedience and personal disobedience, on Brownlee’s account, is that the former is categorised as a form of communicative disobedience and the latter as a form of non-communicative disobedience. A person who carries out a non-coercive infringement of law to communicate his or her opposition to the legal availability of abortion would be engaged in civil disobedience, whereas a doctor who refuses to participate in the provision of abortions to maintain his or her sense of personal integrity would be engaged in personal disobedience (27–29).
The thought that some moral rights cannot and should not be translated into legal rights is defended at length by Brownlee at 120–126.
This characterisation of the right to civil disobedience is compatible with Jonathan Quong’s argument that moral rights do not necessarily offer protection to persons seeking to exercise their rights in support of ‘unreasonable’ political causes (Quong 2004: 332–335).
This idea that penalties might function as an ex post facto licensing fee for a particular type of protest is mooted by Lefkowitz as a potential supplement to the deterrence-based considerations that he presents as the primary basis for penalties (Lefkowitz 2007: 220ff).
The following discussion draws on ideas discussed at greater length in Smith (2013: 84–108). Briefly: I argue there for a moral right to civil disobedience grounded in our rights to political participation. The right is conditional on the observance of reasonable standards that apply to both our conduct and our cause. The right is associated with a positive duty to provide certain kinds of assistance and a negative duty against some, but not all, forms of interference. This view overlaps with Brownlee’s in certain respects, but—as should be clear from the discussion throughout this commentary piece—it differs from her account of the grounds and content of the right.
To be clear, I am not proposing an alternative to the standard liberal model for all moral rights, though I do not rule out that such a model might be feasible and desirable. The idea that rights of conduct might protect against unreasonable interference is discussed in De Marneffe 1998, Cohen 2009: 311–317, and Edmundson 2004: 170–172.
References
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Smith, W. The Burdens of Conviction: Brownlee on Civil Disobedience. Criminal Law, Philosophy 10, 693–706 (2016). https://doi.org/10.1007/s11572-014-9336-z
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DOI: https://doi.org/10.1007/s11572-014-9336-z