## 1. Features of Civil Disobedience



Henry David Thoreau is widely credited with coining the term *civil
disobedience*. For years, Thoreau refused to pay his state poll
tax as a protest against the institution of slavery, the extermination
of Native Americans, and the war against Mexico. When a Concord,
Massachusetts, constable named Sam Staples asked Thoreau to pay his
back taxes in 1846 and Thoreau refused, Staples escorted him to jail.
In a public lecture that Thoreau gave twice in 1848, he justified his
tax refusal as a way to withdraw cooperation with the government and
he called on his fellow townspeople to do the same. Thoreau's
lecture, titled "The Rights and Duties of the Individual in
relation to Government," formed the basis of his 1849 essay,
"Resistance to Civil Government." In 1866, four years
after Thoreau's death, the essay was republished under the title
"Civil Disobedience." Some scholars believe the new title
was provided by Thoreau's sister Sophia, his sole literary
executor and sole editor of his posthumous edited works (Fedorko
2016). But others have provided evidence for Thoreau's authority
over the edits in the 1866 text (Dawson 2007).



Whereas Thoreau understood the "civil" in civil
disobedience to characterize the political relations between civilian
subjects and their civil government, today most scholars and activists
understand the "civil" to relate to *civility*
- a kind of self-restraint necessary for concord under
conditions of pluralism. The next sub-sections review central features
of civil disobedience.


### 1.1 Principled Disobedience



*Lawbreaking*: First, for an act to be civilly disobedient, it
must involve some breach of law. In democratic societies, civil
disobedience as such is not a crime. When an agent who engages in
civil disobedience is punished by the law, it is not for "civil
disobedience," but for the recognized offenses she commits, such
as disturbing the peace, trespassing, damaging property, picketing,
violating official injunctions, intimidation, and so on.



When civil disobedients directly break the law that they oppose
- such as Rosa Parks violating the Montgomery, Alabama, city
ordinance requiring African Americans to sit at the back of public
buses and give up those seats to white riders if the front of the bus
filled up - they engage in *direct* civil disobedience.
By contrast, when disobedients break a law which, other things being
equal, they do not oppose, in order to demonstrate their protest
against another law or policy - such as anti-war protesters
staging sit-ins in government buildings - they engage in
*indirect* civil disobedience. The distinction between direct
and indirect civil disobedience is mainly relevant to the possibility
of mounting constitutional test cases, since one cannot test the
constitutionality of a law in court without actually breaching it.
Although some scholars argue that direct civil disobedience is
preferable to its indirect counterpart because it is most clearly
legible as an act of protest against the law breached (C. Cohen 1966,
4-5), most scholars maintain the acceptability of indirect
disobedience given that not all unjust laws or policies can be
disobeyed directly (M. Cohen 1970, 109-110; Rawls 1999, 320;
Brownlee 2012, 19-20). For instance, a same-sex couple living in
a jurisdiction that forbids same-sex marriage cannot get married in
violation of the law. Black Lives Matter activists cannot directly
disobey police brutality, stop-and-frisk policing, or the acquittal of
police officers who killed unarmed Blacks. Also, even when a person
can engage in direct disobedience of a law, doing so may be unduly
burdensome, such as when the punishment for the breach would be
extreme.



*Principledness*: An act of lawbreaking must be deliberate,
principled, and conscientious, if it is to be civil and, hence,
distinguishable from ordinary criminal offenses. Civil disobedience
cannot be unintentional (say, done in ignorance of the fact that one
is violating the law): it must be undertaken deliberately. Principled
disobedience can be distinguished from ordinary criminal offending by
examining the motives that underlie the disobedient act. The person
must intend to protest laws, policies, institutions, or practices that
she believes are unjust on the basis of her sincerely held moral or
political commitments. The agent may not be correct or even entirely
reasonable about her convictions, but she holds them sincerely. In
these ways, principled disobedience is distinct from garden-variety
criminal activity, which is generally self-interested and selfish,
opportunistic and unprincipled.



*Conscientiousness*: The deliberate and principled features of
civil disobedience are often brought together under the umbrella of
conscientiousness and equated with seriousness, sincerity, depth of
conviction, and selflessness - again, in order to contrast civil
disobedience with criminal lawbreaking. In response, some scholars
highlight the pervasiveness of self-interested civil disobedience
- of the 'not in my backyard' variety (e.g., people
protesting against a new highway passing through their neighborhood)
- as a challenge to the supposed conscientiousness of all civil
disobedience (Celikates 2016, 38). Others insist that civil
disobedience need not be selfless: oppressed groups indeed have a lot
to gain from their anti-oppression struggles, including better life
prospects, improved material conditions, and heightened self-respect
(Delmas 2019, 183-4). And, unsurprisingly, many of the most
famous civil disobedients - Mohandas Gandhi, Rosa Parks, Martin
Luther King, Jr., Nelson Mandela - were members of the groups
whose rights they sought to champion. But conscientiousness -
understood as sincerity and seriousness - does not require
selflessness, and ordinary crime should not be equated with
selfishness, as the example of Robin Hood illustrates. That said, some
thinkers also challenge the requirement of seriousness by regarding,
for example, the DDoS (distributed denial-of-service) attacks
undertaken by Anonymous, such as *Operation: Avenge Assange*,
as acts of civil disobedience, despite their
'lulz-seeking', playful and non-serious motivations
(Celikates and de Zeeuw 2016, 211-3).


### 1.2 Civility



What makes an act of disobedience *civil*? Scholars commonly
consider all or some of the five features below to define civil
disobedience.


#### 1.2.1 Communication



Typically, a person who commits an offense has no wish to communicate
with her government or society. This is evinced by the fact that
usually such a person does not intend to make it known that she has
offended. In contrast, civil disobedience is understood as a
communicative act - a kind of symbolic speech, which aims to
convey a message to a certain audience, such as the government and
public. Civil disobedients are thought to contribute arguments to the
public sphere. Typically, their message is a call for reform or
redress; and their audience is the majority. Civil disobedience is
variously described as an act by which "one addresses the sense
of justice of the majority of the community" (Rawls 1999, 320),
as "a plea for reconsideration" (Singer 1973,
84-92), and as a "symbolic... appeal to the capacity
for reason and sense of justice of the majority" (Habermas 1985,
99). Even when scholars expand the central criteria for civil
disobedience, they agree that civil disobedience is essentially
communicative. In comparison, other types of principled disobedience
are not necessarily communicative. For instance, animal rescue
primarily seeks to relieve the suffering of the rescued animals; the
tactic of environmental sabotage known as 'tree-spiking'
primarily seeks to prevent or stall the cutting down of trees (Delmas
2018a, 44-45). Both types of action can of course be understood
in terms of their messages, too, but communicating such a message is
not their primary aim in each case.


#### 1.2.2 Publicity



On many accounts, civil disobedience must be not only communicative,
but also public in a specific way. *Publicity* may designate
different features: (i) the openness of the act, (ii) non-anonymity of
the agent, (iii) advance warning of planned action, (iv)
responsibility-taking for the action, or (v) an appeal based in
publicly shared principles of justice. The first four requirements may
be classified together under the umbrella of
*publicity-as-visibility*, while the fifth can be dubbed
*publicity-as-appeal*. Since the latter requirement matters
mainly for the justification of civil disobedience, it is discussed
below (SS3.2). That said, Rawls (1999, 321), for one, clarifies
the publicity of civil disobedience by describing it as a
"political act," to wit, "an act guided and
justified by political principles, that is, by the principles of
justice which regulate the constitution and social institutions
generally," thereby suggesting that publicity-as-appeal is in
fact part of the definition of civil disobedience.



Rawls and Hugo Bedau (1961, 655), on whom Rawls relies, defend all of
the features of publicity-as-visibility, arguing that civil
disobedience could never be covert or secretive but could only ever be
committed in public, openly, and with advance warning to authorities
(per (i)-(iii); and additionally that it involves
responsibility-taking (iv). The thought is that publicity is crucial
to the civil disobedient's communicative aims and that any
violation of these features of publicity would obscure or muddy the
nature of civil disobedience as a communicative act. Critics have
rejected the requirement to give advance warning as a defining
criterion of civil disobedience. If a person publicizes her intention
to breach the law, by giving advance notice about it, then she
provides legal authorities with the opportunity to abort her action
(Dworkin 1985, 115; Smart 1991, 206-7). For instance,
anti-nuclear activists who advertise their planned trespass on
military property would simply be prevented from executing their
action. In this case, not giving advance warning is necessary to
accomplish the communicative act.



Some theorists have also denied the first two publicity requirements
above that civil disobedients need to act openly and non-anonymously.
Some argue that publicity is compatible with covertness and anonymity,
so long as agents claim responsibility for their actions after the
fact (Greenawalt 1987, 239; Brownlee 2012, 160; Scheuerman 2018,
43-5). For instance, Edward Snowden's leaks of classified
information about the National Security Agency (NSA)'s massive
surveillance programs constitute acts of civil disobedience in this
view because, although Snowden obtained and leaked the documents
covertly, he eventually claimed responsibility and sought to publicly
justify his actions (Scheuerman 2014, 617-21; Brownlee 2016,
966). In this view, the only publicity requirement is (iv) that agents
take self-identifying responsibility for their actions after the fact.
The other requirements of publicity-as-visibility - openness,
non-anonymity, and advance warning - can in fact detract from or
undermine the attempt to communicate through civil disobedience and
are therefore not necessary to identify civil disobedience. Given,
however, that there is often widespread reluctance to regard as
"civil" covert and anonymous acts of disobedience such as
assistance to undocumented migrants or anonymous hacktivism, other
thinkers accept (i), (ii), and (iv) as standard requirements of
publicity-as-visibility and deem covert acts to be uncivil without
pre-judging their degree of justifiability (Delmas 2018a,
44-5).


#### 1.2.3 Non-violence



Like publicity, non-violence is supposed to be essential to the
communicativeness of a civilly disobedient act, non-violence being
part of its legibility as a mode of address. "To engage in
violent acts likely to injure and to hurt is incompatible with civil
disobedience as a mode of address. Indeed, any interference with the
civil liberties of others tends to obscure the civilly disobedient
quality of one's act" (Rawls 1999, 321). (The strategic
and tactical value of non-violence is discussed in SS3.3.) Critics
have objected to the supposed incompatibility between violence and
communication, arguing that violence, depending on its form and
targets, does not necessarily obscure the communicative quality of a
disobedient's act. Burning a police car or vandalizing a
Confederate monument, as some protesters did under the Black Lives
Matter banner, conveys a clear message of opposition to police
brutality and anger at the state's failure to address systemic
racism. The compatibility between violence and communication is
further underscored in cases of self-directed violence:
self-immolation may provide "an eloquent statement of both the
dissenter's frustration and the importance of the issues he
addresses" (Brownlee 2012, 21-2). On this basis, some
scholars deny altogether the requirement that civil disobedience be
non-violent (M. Cohen 1970, 103; Brownlee 2012, 198-9; Moraro
2019, 96-101).



Some scholars also see nothing inherently contradictory in the notion
of "violent civil disobedience" independent of its
communicative aims. John Morreall views a person's physical
assault on a slave owner chasing a runaway slave, in violation of the
Fugitive Slave Act of 1850, as a case of "justifiable violent
civil disobedience" (1976, 42-3). Jennifer Welchman
considers "violence, threats of violence, covert acts of
sabotage, blackmail, and even assault" as means that civil
disobedients can justifiably use to obstruct and frustrate injustice
(2001, 105). But, arguably this route is too hasty, as it disregards
what seems to be an essential and powerful association between civil
disobedience and non-violence: the civility of civil disobedience
seems to entail non-violence. The difficulty is to specify the
appropriate notions of *violence* and
*non-violence*.



This is a difficult task in part given its high political stakes:
protests labeled as non-violent are more likely to be perceived
favorably; protests labeled as violent are more likely to alienate the
public and to be met with violent repression. In addition, the
labeling of protests, as Robin Celikates notes, "far from being
a neutral observation, is always a politically charged speech act that
can reproduce forms of marginalization and exclusion that are often
racialized and gendered" and tends to serve the interests of
socially dominant or mainstream voices (2016, 983). On this basis,
Celikates casts doubt on the usefulness of "a fixed category of
non-violence ... for a philosophical analysis of disobedience
informed by its social and political reality" (ibid.).
Nonetheless, specifying the categories of violence and non-violence is
important to push back against disingenuous uses of these categories,
as when the police declare a peaceful protest a 'riot'
- a common occurrence in the 2020 Black Lives Matter protests
(ACLED 2020).



One way to conceive of *violence* is as the use of physical
force causing or likely to cause injury (Rawls 1999, 321). However,
non-violent acts or even legal acts may indirectly yet foreseeably
cause more harm to others than do direct acts of physical force. A
legal strike by ambulance workers or a roadblock on an important
highway may well have more severe consequences than minor acts of
vandalism (Raz 1979, 267). Psychological violence can also cause
injury to others. Philosophers typically reject the childhood chant
that "sticks and stones may break my bones, but words will never
hurt me," recognizing that harm and injury do not come solely
from the use of physical force. For one thing, words can incite
physical violence. Words can also hurt even without the threat of
physical injury, such as verbal insult and harassment, which can
undermine the recipient's sense of equal standing, self-worth,
and safety. The implication for civil disobedience is that the
requirement of non-violence prohibits the use of tactics likely to
inflict psychological violence on one's opponents. Aggressive
confrontations designed to denigrate and humiliate (distinct from
attempts to elicit shame through displays of unearned suffering and
appeals to conscience) are incompatible with the civility and
non-violence of civil disobedience.



Rawls does not mention, and it is unclear whether, non-violence
prohibits certain actions that don't physically or
psychologically injure others but still cause harms, such as property
damage (e.g., vandalism), violence to self (e.g., hunger strikes), and
coercion (e.g., forceful occupation).



*Property damage*: Authorities, much of the public, and many
scholars tend to conceive of non-violence strictly, as excluding any
damage to property (Fortas 1968, 48-9, 123-6; Smith 2013,
3, 33; Smith and Brownlee 2017, 5; Regan 2004). Two broad reasons may
explain the inclusion of property damage within the category of
violence. One is the classical liberal understanding of private
property as an extension of one's person; the other is the
assumption that property damage is likely to lead to violence against
persons. John Locke formulates both when he argues it is "lawful
for a man to kill a thief, who has not in the least hurt him, nor
declared any design upon his life ... [because] I have no reason
to suppose, that he, who would take away my liberty, would not, when
he had me in his power, take away every thing else" (Locke 1690,
III SS18). By counting all instances of property destruction as
violent, such a view dissuades one from drawing evaluative
distinctions among different cases, methods, targets, and aims.
However, not all property damage is or should be viewed as equal:
burning one's Selective Service card to protest the military
draft is not equivalent to burning crosses to intimidate African
Americans and Jews; smashing a stained-glass window depicting enslaved
persons in a cotton field (as a Yale janitor did in 2016) is not
equivalent to smashing the windows of a store in order to loot it. For
some thinkers, such differences are not only issues of justification.
They insist that violence and non-violence simply do not exhaust the
descriptive possibilities and that we should think of property damage
as a third conceptual category distinct from the other two and
requiring its own evaluative assessment (Sharp 2012a, 307; Delmas
2018a, 49, 244-5). Other scholars have instead argued that
non-violence can encompass property damage (Milligan 2013, ch. 2;
Scheuerman 2018, 46-7, 77, 87). They hold that civil
disobedients can remain non-violent while engaging in selective
destruction of property, assuming the damage is minor and relates
clearly to the civil disobedient's message, such as when
pacifists hammer warhead nose cones.



*Self-violence*: Self-violent protests include tactics such as
lip-sewing, self-cutting, hunger strikes, self-exposure to the
elements, and self-immolation. When theorists list hunger strikes
among the tactics of civil disobedience, they often do not address the
question of whether self-violence is compatible with non-violence
properly conceived, but simply assume an affirmative answer. Some
scholars cast doubt on this notion, given the violence of
self-destructive protests and given activists'
self-understanding of their own actions (see Bargu's 2014
critical ethnographic study on the 2000-2007 death fast by
left-wing militants in Turkish prisons). A notable exception to the
theoretical neglect of self-violence is Gandhi (1973, 103-5,
120-5), who thought that hunger strikes were coercive and
violent but that fasts of moral pressure and Satyagrahic fasts were
persuasive and non-violent (Sharp 2012a, 134, 151, 262); and likewise,
that self-immolation could accord with non-violence (*ahimsa*)
and be fueled by *satyagraha* ('Truth-force' in
Sanskrit) under the right circumstances (Gandhi 1999, 79.177; Milligan
2014, 295-9).



*Coercion and persuasion*: Theorists often complete the
dichotomy between violence and non-violence by seeing violence as a
means of coercion, non-violence as a means of persuasion, and the two
as incompatible. Coercion can be defined as "any interference by
an agent, A, in the choices of another agent, B, with the aim of
compelling B to behave in a way that they would not otherwise
do" (Aitchison 2018a, 668; see also entry on
 coercion).
 Persuasion, by contrast, requires initiating a dialogue with an
interlocutor and aiming to elicit a change of position or even their
moral conversion. Coercive tactics impose costs on opponents. For
instance, land occupation by environmental activists is designed to
prevent or delay oil pipeline construction. Boycotts are also
considered to be coercive tactics to the extent that they impose acute
costs on businesses (through lost revenue) and sometimes involve
intimidation and the threat of force to ensure maximum compliance with
the boycott (Umoja 2013, 135-42). Some theorists of civil
disobedience hold that civil disobedients cannot resort to coercion;
they can only seek to persuade and appeal to their opponent's
moral conscience, which excludes confrontational and coercive tactics
(Lefkowitz 2007, 216; Brownlee 2012, 24).



Practitioners and other critics maintain that this dichotomy between
non-violent persuasion and violent coercion is false on the grounds
that there is such a thing as 'non-violent coercion',
which is furthermore compatible with the goal of moral suasion.
Non-violence appeals to the conscience of the public, by eliciting
shame and indignation at the witnessing of civil disobedients'
suffering and their discipline in the face of violent repression.
After the 1955-56 Montgomery bus boycott, which unleashed
spectacular white retaliatory violence, Martin Luther King, Jr., saw
appeals to conscience as insufficient without disruption and
"some form of constructive coercive power" (King 1968,
137). "Nonviolent coercion always brings tension to the
surface", he wrote (ibid.), affirming "the coercive face
of nonviolence" along with its persuasive face (Livingston
2020a, 704; see also Terry 2018, 305). "The purpose of our
direct action program," King proclaimed in his 'Letter
from a Birmingham Jail', "is to create a situation so
crisis packed that it will inevitably open the door to
negotiation" (King 1991). Non-violent action is thus the means
to the goal of both forcing negotiations - an essential
"mechanism for social change" (Atack 2012, 139) -
and of persuading - its corresponding mechanism for moral and
cultural change. This leaves open the question whether confrontational
attacks that single out particular persons through harassment, doxing,
and 'calling out' are compatible with non-violence. Such
acts are coercive and, like verbal insults, they may be said to
inflict psychological violence on the target.


#### 1.2.4 Non-evasion



Civil disobedients are standardly expected to take responsibility for,
and accept the legal consequences of, their lawbreaking. Their evading
punishment would make their acts ordinary crimes or acts of rebellion;
their willingness to invite punishment is supposed to demonstrate
their endorsement of the legal system's legitimacy and their
"intense concern over the issue at hand" (C. Cohen 1966,
6; see also Brownlee 2012 ch. 1; Tai 2017, 146). Non-evasion is an
essential correlate of the conscientiousness and non-violence of civil
disobedience: submitting to law enforcement is part of the dramatic
display of suffering required by non-violence. That said, theorists
have fleshed out this requirement of non-evasion in different ways,
arguing variously that the agent must (i) willingly submit to arrest
and prosecution, (ii) plead guilty in court, (iii) not try to defend
her crime, and/or (iv) not complain about the punishment received
(Delmas 2019, arguing that only (i) is necessarily entailed by
non-evasion). Some theorists reject (ii) and (iii), proposing instead
that agents plead 'not guilty' in court, so as to deny the
state's characterization of the civil disobedient act as a
public wrong (in this view, disobedients should either deny
responsibility of having committed the action as alleged by the
prosecutor or admit responsibility but deny criminal liability)
(Moraro 2019, 143-7). Indeed, while the civil disobedient who
pleads 'guilty' and does not try to defend her
'crime' highlights her willingness to self-sacrifice, a
'not guilty' plea accompanied by a defense of her action
might be more effective at communicating her convictions and
persuading others, including by inviting jury nullification. By
contrast, some thinkers reject (i) and (iv) on the grounds that when
civil disobedience is morally justified, the state's imposition
of punishment is itself problematic and arguably impermissible, so
that further protests against civil disobedients' arrests,
prosecutions, and sentences are justified (Zinn 2002, 27-31).
Critics have also noted that punishment can be detrimental to
dissenters' efforts by compromising future attempts to assist
others through protest (Greenawalt 1987, 239) and that willingness to
accept punishment cannot be reasonably expected when agents know they
risk heavy fines or very long sentences for their actions (Scheuerman
2018, 49-51).


#### 1.2.5 Decorum



In some views, being civil means that civil disobedients behave in a
dignified and respectful manner by following the conventional social
scripts that spell out displays of dignity and ways of showing respect
in their society. Some theorists understand civility itself as respect
for "minimal civil norms" (Milligan 2013, ch. 2); others
count decorum as an additional, implicit requirement of civility in
line with manifestations of self-restraint (Delmas in
Cidam, et al. 2020, 524-5). Decorum may be
understood to prohibit conduct that would be seen as offensive,
insulting, or obscene (with the standards for each varying widely
across cultures). In Scheuerman's view, Gandhi and King, but not
liberals and democrats, thought that politeness and decorum had a role
to play (2018, 11-31). Yet one reason to think that decorum has
seeped into the common understanding of civil disobedience is that it
helps to explain why some protests by Pussy Riot, ACT UP, and Black
Lives Matter, among others, which were conscientious, communicative,
public, non-violent, and non-evasive, were denied the label
*civil*: to wit, because protesters shouted down their
opponents, expressed anger, used offensive language, or disrespected
religious sites (Delmas 2020, 18-9). Critics, however, deny that
civil disobedience needs to be decorous and push back against denials
of civility, insofar as these are often deployed to silence activists
(Harcourt 2012; Zerilli 2014). They deem expressions of anger and
offensive or obscene displays to be compatible with civility
(Scheuerman 2019, 5-7; Cidam, et al. 2020,
517-8) and insist on dissociating the politics of
'respectability' from civil disobedience (Pineda 2021a,
161-3).


### 1.3 Fidelity to Law



What makes an act of civil disobedience special? On some accounts, an
act that satisfies the criteria of civility identified above,
especially non-evasion, signals disobedients' respect for and
fidelity to the legal system in which they carry out their protest, in
contrast with ordinary offenders and revolutionary agents (Rawls 1999,
322). Signaling one's fidelity to law by abiding the demands of
civility is seen as necessary to thwart fears of disorder or counter
the impression that civil disobedients are contemptuous of democratic
procedures. Critics point out that agents do not necessarily respect,
nor have any reasons to respect, the legal system in which they carry
out their civil disobedience (Lyons 1998, 33-6). It is thus
useful to distinguish the outward features of the civilly disobedient
act from the inward attitudes of the civilly disobedient agent.



Many thinkers argue that the link between the disobedient act's
civility and her fidelity to law or endorsement of the legal system
can indeed be pulled apart. For one thing, agents intent on
overthrowing their government may well resort to civil tactics simply
because civil disobedience works (Sharp 2012b). Some theorists
nonetheless hold on to the connection between civility and fidelity to
law. For instance, some discard some of the requirements of civility
but maintain that the civilly disobedient agent can still be motivated
by respect for law and act within the limits of fidelity to law while
disobeying covertly, evading punishment, damaging property, or
offending the public (Brownlee 2012, 24-9; Scheuerman 2018,
49-53; Moraro 2019, 96-101). Others hold that it is
worthwhile to maintain the link between the act's civility and
its conveying fidelity to law, whether or not agents actually endorse
the system's legitimacy, insofar as its self-restraint holds the
key to civil disobedience's place in democratic culture (Smith
2013, 32-5; Delmas 2019, 173-4).



Other theorists deny that civil disobedients need to demonstrate
fidelity to law, taking what Scheuerman (2015) dubs an *anti-legal
turn*. Civility, on a number of recent accounts (Brownlee 2012 ch.
1; Moraro 2019, ch. 2; M. Cooke 2021), is satisfied when agents aim to
communicate with an audience and engage with the public sphere. On a
radical understanding, the civility of civil disobedience is
compatible with tactics "that will be regarded as uncivil
because of their confrontational or even violent character, including
massive disruption, the destruction of property, and the use of
restrained force in self-defense," only excluding para-military
confrontation (Celikates 2021, 143).



This anti-legal turn goes along with what we may call a *critical
turn* in scholarship on civil disobedience. Not only do theorists
critique the liberal account of civil disobedience as unduly narrow
and restrictive (as contemporary critics of Rawls already did) and
articulate a more inclusive concept; but they also critique the
ideology that undergirds the common account, uncovering the ways in
which it distorts the reality of the practice, deters resistance, and
buttresses the status quo (Celikates 2014, 2016; Delmas 2018a, ch. 1;
Pineda 2021b, ch. 1). In this vein, several scholars have reassessed
the complex legacy of Thoreau and Gandhi to the civil disobedience
tradition, in order to both show the misappropriation of their
writings on political resistance and to call for a reappropriation and
appreciation of their visions (Mantena 2012; Hanson 2021; Livingston
2018; Scheuerman 2018, ch. 1, 4). Scholars have also reconsidered the
historical record of the American Civil Rights Movement to excavate
the radical understanding of civil disobedience forged by actors
themselves, in lieu of the romantic and sanitized version that
dominates public perception of the Movement (Hooker 2016; Livingston
2020a, 2020b; Pineda 2021b, ch. 2-5; Mantena 2018; and Shelby
and Terry 2018). Setting the record straight matters not just for
historical accuracy but also because the Civil Rights Movement is used
as the benchmark to judge contemporary protest movements such as Black
Lives Matter, unfavorably comparing today's activists with an
idealized standard with the effect of prejudicing the public against
them.


## 2. Other Types of Protest



Although civil disobedience often overlaps broadly with other types of
dissent, nevertheless some distinctions may be drawn between the key
features of civil disobedience and the key features of these other
practices.


### 2.1 Legal Protest



The obvious difference between legal protest and civil disobedience is
that the former lies within the bounds of the law, but the latter does
not. Legal ways of protesting include, among many others, making
speeches, signing petitions, organizing for a cause, donating money,
taking part in authorized demonstrations, and boycotting. Some of
these can become illegal, for instance when law enforcement declares
an assembly unlawful and orders the crowd to disperse, or under
anti-boycott legislation. Some causes may also be declared illegal,
such that one cannot be associated with the cause or donate to it
(such as the Communist Party in the U.S.). Most of the features
exemplified in civil disobedience - other than its illegality
- can be found in legal protest: a conscientious and
communicative demonstration of protest, a desire to bring about
through moral dialogue some lasting change in policy or principle, an
attempt to educate and to raise awareness, and so on.


### 2.2 Rule Departures



A practice distinct from, but related to, civil disobedience is rule
departure on the part of authorities. Rule departure is essentially
the deliberate decision by an official, for conscientious reasons, not
to discharge the duties of her office (Feinberg 1992, 152). If an
official's breach of a specific duty is more in keeping with the
spirit and overall aims of the office than a painstaking respect for
its particular duties is, then the former might be said to adhere
better than the latter does to the demands of the office (Greenawalt
1987, 281). Rule departures resemble civil disobedience in that both
communicate the agent's dissociation from and condemnation of
certain policies and practices. Civil disobedience and rule departure
differ mainly in the identity of their practitioners and in their
legality. First, whereas rule departure typically is done by an agent
of the state (including citizens serving in juries), civil
disobedience typically is done by citizens (including officials acting
as ordinary citizens and not in the capacity of their official role).
Second, whereas the civil disobedient breaks the law, the official who
departs from the rules associated with her role is not usually
violating the law, unless the rule she breaks is also codified in law.
For instance, jurors may refuse to convict a person for violating an
unjust law. When they do, they nullify the law. However, many judges
forbid any mention of jury nullification in their courtroom, so that
jurors are not allowed to advise each other of the possibility to
refuse to convict (Brooks 2004).


### 2.3 Conscientious Objection



Conscientious objection may be defined as a refusal to conform to some
rule, mandate, or legal directive on grounds of personal opposition to
it. Examples include conscripts refusing to serve in the army; public
officials refusing to issue same-sex marriage licenses; and parents
refusing to vaccinate their children as mandated by state law. Public
officials' conscientious objection is indistinguishable from
rule departures insofar as the agent refuses to discharge the set of
duties associated with her official role. Conscientious
objectors' non-conformity may stem from very different kinds of
motives: the conscript's religious pacifism or moral and
political opposition to a particular war or military occupation, for
instance, has little in common with anti-vaxxers'
pseudo-scientific beliefs. But, in many views, conscientious objection
is conscientious in the sense identified above, that is to say,
sincere, serious, and reflecting the depth of the person's
conviction. In other views, however, when an objector seeks to keep
her act private and to avoid detection, this casts doubt on her
sincerity and seriousness (Brownlee 2012, ch. 1). As an objection,
conscientious objection also shares with civil disobedience the
agent's opposition to the law, since the conscientious objector
refuses to conform with the law because she considers it bad or wrong,
totally or in part, and thus seeks to disassociate herself from
it.



Conscientious objection is often considered to be the private
counterpart of civil disobedience: where civil disobedients address
the public, are motivated by and appeal to general considerations of
justice, and seek to bring about reform, conscientious objectors are
supposed to be animated by personal convictions and to simply seek to
preserve their own moral integrity through exemption (Smith and
Brownlee 2017). For instance, consider that the refusal of
Jehovah's Witnesses to salute the flag is a matter of private
religious morality; they do not seek to abolish the practice of
saluting the flag for all citizens. Their example is instructive in
another way: Jehovah's Witnesses' refusal is legally
protected. Conscientious objection, unlike civil disobedience, is not
necessarily unlawful. Indeed, the law protects conscientious objectors
in many contexts, including in the military and healthcare, by carving
out exemptions for them.



Some thinkers distinguish conscientious objection from conscientious
evasion and stress that we should not overstate the private and
personal characteristics of the former. Conscientious objectors often
act openly and non-anonymously and take responsibility for their
non-conforming act by attempting or being willing to justify it to
authorities. To that extent, they may be said to meet the
publicity-as-visibility requirement. Some agents, in contrast,
undertake their conscientious objection covertly and evasively as
conscientious evasion. A young man drafted to fight a war he opposes,
for instance, may openly refuse to serve and be arrested and charged
for his refusal, or covertly dodge the draft by going AWOL. While
conscientious evasion is incompatible with the intention to
communicate, conscientious objection may have a public or
communicative component, as Thoreau clearly did with his conscientious
tax refusal, in a way that blurs the distinction with civil
disobedience. Moreover, when such actions are taken by many people
- as they often are - their collective impact can
approximate the kind of communicative protest exemplified in civil
disobedience (Delmas 2018a, ch. 7). In this vein, Emanuela Ceva (2015)
highlights the public and political character of conscientious
objection (what we call publicity-as-appeal above), which she
conceives of as 'a form of political participation'.


### 2.4 Immigration Disobedience



Writings on immigration and on civil disobedience have merged into an
area of research devoted to principled disobedience in response to
anti-immigration policies. One view, which focuses on what individual
actors should do about immigration, examines various unlawful tactics
of resistance, including evasion, deception, use of force against
state officials, and smuggling (Hidalgo 2019, chs. 5-6). Another
view conceives of illegal migration as a form of resistance to global
poverty (Blunt 2019, ch. 4), while a third sees unauthorized border
crossing as a type of conscientious evasion (Cabrera 2010,
136-43, 165). It is further useful to distinguish transnational
civil disobedience from global civil disobedience.
*Transnational* (or trans-state) civil disobedience is the
principled violation of a state's law or policy (a) by
individuals who are not citizens or authorized permanent residents of
that state, such as asylum-seekers marching from Hungary to Austria
against E.U. regulations; or (b) by the state's own citizens on
behalf of outsiders, such as U.S. citizens active in the Sanctuary
movement who provided illegal assistance to asylum-seekers from
Central America in the 1980s. Both kinds of cases involve at root the
"principled claim... that the state's law is
misaligned with the foundational moral principles of the current
global system" (Cabrera 2021, 322). Acts of *global*
civil disobedience, on this view, involve "claims implicating
structural principles of the global system itself, as misaligned with
its foundational moral principles" (Cabrera ibid.). For
instance, when the *sans-papiers* in France openly protest
against their socio-political and legal exclusion through occupations,
demonstrations, and hunger strikes, they may be viewed as engaged in
acts of global civil disobedience. One last useful category of
principled disobedience that relates to immigration restrictions,
although it overlaps with rule departures and conscientious objection,
is *official* or *local* disobedience, as when local
authorities declare themselves 'Sanctuary cities' to
protect immigrants by refusing to cooperate with federal authorities
(Blake and Hereth 2020, 468-71. See also Applbaum 1999, ch. 9 on
'official disobedience' and Scheuerman 2020 on
'state-based' or 'political institutional civil
disobedience').


### 2.5 Digital disobedience



Digitalization - access to personal computers and the Internet
- has transformed not only our lives and interactions, but also
our disobedient practices. From piracy to DDoS attacks and from
open-access coding to Digital Care Packages (which provide tools to
circumvent censorship and surveillance), digital disobedience has
emerged as a rich terrain for theoretical inquiry. Scholars disagree
about the application of the defining features of civil disobedience
to the digital, e.g., whether client-sided DDoS actions, which involve
only voluntary botnets, amount to "virtual sit-ins";
whether hacktivists such as Anonymous may be considered civil
disobedients despite their covert and evasive actions, their penchant
for pranks, and their singling out of particular individuals for
doxing and retaliation (such as in Operation Hunt Hunter which
targeted 'revenge porn' magnate Hunter Moore); or whether
the use of zombie botnets in DDoS attacks and the cost of updating
security systems for the target evinces the violation of non-violence
(see, e.g., Critical Art Ensemble 1998; Himma 2006; Scheuerman 2018,
ch. 6; Celikates 2015, 2016; Sauter 2016; Delmas 2018b; Zuger
2021).



These debates aside, it is useful to distinguish different kinds of
digital tools, sites, strategies, and aims. First, activists use
digital technology as tools to organize, document, communicate, raise
funds, and make decisions. For instance, Black Lives Matter activists
use social media to promote their cause, raise consciousness about
systemic racism, and publicize instances of police brutality. They use
crowdfunding platforms for fundraising to cover bail and other legal
expenses for those arrested. They encourage people to use police
scanner apps to watch police activity and legal assistance apps to
record encounters with law enforcement officials. Second, the digital
is itself a crucial site and object of activism. Hacktivists envision
a different Internet - one that is democratic and democratically
controlled, free, respectful of privacy, and creative. They protest
against the digital architecture of surveillance and control that has
been imposed on netizens without their consent. For instance, a number
of websites, search engines, and online communities launched
coordinated actions in 2012 to protest against the Stop Online Piracy
Act (SOPA) and the Protect IP Act (PIPA), whose overbroad scope they
saw as threats to online freedom of speech. Third, some properly
digital strategies of principled disobedience have emerged, such as
DDoS actions, web defacement, and hacking. For instance, the No Border
network created a fake Lufthansa website touting its
"Deportation Class service ... the most economic way to
travel the world" ("special restrictions apply ... no
round trips available"). The Open Access Movement, which
advocates for open-source software and an open-source repository of
academic and scientific research, combines all three dimensions of
digital disobedience: it uses networked computers to organize and
communicate; it seeks to bring about a free Internet characterized by
the free flow of software, science, and culture and has developed a
coherent political platform in its defense; and it deploys properly
digital strategies, such as illegal downloads and peer-to-peer file
sharing (which is illegal when the content torrented is copyrighted
material). The Open Access Movement epitomizes a public,
geeks-and-grassroots mass movement that not only promotes online
democratic governance, but also enacts it within the movement (Swartz 2008
[Other Internet Resources]; Delmas 2018b, 79-80).


### 2.6 Uncivil disobedience



*Uncivil disobedience* is not a distinct category of political
action, but a cluster concept or umbrella term that can be used to
designate acts of principled disobedience that may or may not be
communicative, and which violate one or more of the marks of civility
by being covert, violent, evasive, or offensive (Delmas 2018a, 2020;
Lai 2019). Examples include animal rescue, Sanctuary assistance,
sabotage, ecotage (e.g., monkeywrenching and tree-spiking), graffiti,
leaks, government whistleblowing, hacktivism (including DDoS attacks),
guerrilla protests, and riots. These various act-types do not share
any essential property, besides violating one or more of the commonly
accepted criteria of civility. Each form of uncivil disobedience must
be examined (conceptualized and assessed) on its own. By
conceptualizing uncivil disobedience, scholars intend to counter the
theoretical impetus to make the concept of civil disobedience ever
broader to encompass protests that one approves of, but which do not
fit the standard account and may not even fit activists'
self-understanding either. For instance, in her 1913 speech
"Freedom or Death", the suffragist Emmeline Pankhurst
described herself as a "soldier" in a "civil
war" waged against the state and defended the use of militant
tactics, including heckling, window-smashing, sabotage, arson, and
hunger strikes: radical defiance was the point of such uncivil
tactics. Identifying some principled disobedient acts as uncivil makes
room to focus on their justification. Scholars have defended such
uncivil disobedience as political rioting (Pasternak 2019), vandalism
(Lim 2020; Lai 2020), violent protest (Kling and Mitchell 2019),
coercive strike tactics (Gourevitch 2018), and direct action (Smith
2018).


### 2.7 Revolutionary Action



While a civil disobedient does not necessarily oppose the regime in
which she acts, the revolutionary agent is deeply opposed to that
regime (or a core aspect of that regime). Revolutionary agents may not
seek to persuade others of the merits of their position -
communication is usually not their primary aim, although they convey
the urgency of a regime change. When revolution is called for, such as
under colonial occupation, there is no need to justify constrained
acts of protest like civil disobedience. Indeed, more forceful
resistance can be justified as we pass into the realm of just war
theory (Buchanan 2013; Finlay 2015). This is not to say that all
violent tactics, including terror, are permissible, since the use of
violence must not only pursue a just cause but also accord with
proportionality and necessity (i.e., be undertaken in last resort and
with a reasonable chance of success). As will be discussed in the next
section, revolutionary activists and thinkers like Frantz Fanon (2004,
ch. 1) and Gandhi disagreed about the effectiveness of violence in
emancipatory struggles, but not about its justifiability, as Karuna
Mantena (2018, 83-4) has shown.


## 3. Justification



The task of defending civil disobedience is commonly undertaken with
the assumption that in reasonably just, liberal societies people have
a general moral duty to follow the law (often called *political
obligation*). It is on the basis of such an assumption that civil
disobedience requires justification. This section examines common
understandings of the problem of disobedience (3.1), before presenting
prominent accounts and critiques of the conditions under which civil
disobedience may be justified (3.2). Whether or not theorists assume
that civil disobedience is presumptively impermissible and in need of
justification, their analyses also articulate the value and role of
civil disobedience in non-ideal, nearly just or less-than-nearly-just
liberal democracies (3.3).


### 3.1 The Problem of Disobedience



Philosophers have given many arguments in favor of the moral duty to
obey the law (see entry on
 political obligation).
 Despite the many critiques of, and general skepticism toward,
arguments for the moral duty to obey the law, most prominently
following A. John Simmons (1979), theorists of civil disobedience have
continued to conceive of the practice's illegality as a hurdle
to surmount (see Lyons 1998 for an analysis of the endurance of such a
problematic assumption). They conceive of principled disobedience in
general as presumptively wrong because it violates political
obligation, undermines the rule of law, and destabilizes society both
through example, by signaling to others that anyone can disobey if
they feel the urge, and in principle, by expressing disrespect for
law's authority. They contend that civil disobedience in
particular is presumptively wrong because of its anti-democratic
nature. The agent who violates the outcomes of democratic
decision-making processes because she disapproves of them puts herself
above the law and threatens the legal and democratic order. Some see
in it a violation of reciprocity, a kind of political
"blackmail" and a sign of "moral
self-indulgence" and arrogance, insofar as a minority, whose
views didn't prevail, disregards democratic processes and
imposes on the majority its own view of the good and just (C. Cohen
1971, 138-45; Dworkin 1985, 112; Weinstock 2016, 709; for a
response to the charge of 'epistemic arrogance', see
Hindkjaer Madsen 2021).



Recent scholarship on civil disobedience has taken what may be dubbed
an *anarchist turn*, as theorists tend to no longer approach
civil disobedience as presumptively wrong and in tension with
political obligation. Although some theorists still defend the latter
(Smith 2013), most start from skepticism vis-a-vis the moral
duty to obey the law (Brownlee 2012; Celikates 2014, 2016). Others
defend a disjunctive moral duty to obey the law or disobey it civilly
(Lefkowitz 2007); and still others argue that the grounds commonly
used to support political obligation - the natural duty of
justice, the principle of fairness, the Samaritan duty, and
associative obligations - yield duties to resist injustice,
through civil and uncivil disobedience, under non-ideal circumstances,
and that such duties should be considered among our political
obligations (Delmas 2018a). Likewise, on a virtue-ethical account,
political obligation can be understood as an obligation to respect
rather than to obey the law, which can sometimes give rise to a duty
to engage in civil disobedience (Moraro 2019, ch. 6).


### 3.2 Justificatory Conditions



Given the assumption that people have a moral duty to obey the law and
the concern that civil disobedience has the potential to destabilize
society, Rawls famously raised the bar for the justified use of the
practice, requiring acts of civil disobedience 1) to target serious
and long-standing injustice and at the same time appeal to widely
accepted principles of justice, 2) to be undertaken as a last resort,
and 3) to be done in coordination with other minority groups with
similar grievances (Rawls 1999, 326-9). These conditions for the
justification of civil disobedience, which are critically examined in
this part, are closely tied not only to the ostensible need to diffuse
its destabilizing potential and discourage proliferation of the
practice, but also to the efficacy and role of civil disobedience in
society (which is explored further in 3.3).



*Longstanding Injustice*: Why did Rawls restrict the target of
civil disobedience to entrenched, longstanding injustices - in
particular, violations of the principle of equal basic liberties? For
Rawls, civil disobedience's chance of success rests on the
clarity of the injustice: everyone must be able to recognize the
violation as an injustice, given widely accepted principles of
political morality. Racial segregation fell in this category,
according to Rawls, but not economic inequality. Rawls thinks that
appeals to publicly shared principles of constitutional morality (per
the publicity-as-appeal requirement) are more likely to persuade the
majority and succeed to bring about reform. Rawls, Jurgen
Habermas, and Ronald Dworkin restrict both civil disobedients'
appeals and their possible targets: they exclude matters of policy, as
well as injustices that do not consist of incontrovertible violations
of widely accepted principles of justice.



Critics reject this justificatory condition because it arbitrarily
excludes both progressive but not widely shared conceptions of justice
(such as cosmopolitanism) and appeals to other principles of morality
besides justice (say, regarding the ethical treatment of animals;
Singer 1973, 86-92). And whereas Dworkin (1985, 111-2)
finds anti-nuclear protest unjustifiable to the extent that it turns
on judgments of policy instead of appealing to fundamental principles
of political morality, Robert Goodin (1987) counters that the
justice/policy distinction is flimsy and arbitrarily drawn and insists
that civil disobedients should pursue the common good by protesting
international and climate policies. Scholars also include in the class
of justifiable targets private agents such as trade unions, banks,
health insurance companies, labs, farm factories, and private
universities (Walzer 1982, ch.2; Smith 2013, 55-6; Milligan
2013, ch. 11-12; S. Cooke 2016). Finally, observation of past
and present social movements, including the Abolitionist movement,
#MeToo, and Black Lives Matter, suggests that, rather than appealing
to the public principles of political morality, civil disobedients may
in fact seek to transform common sense morality.



*Last Resort*: What grounds the widely accepted requirement
that civil disobedience be undertaken as a last resort? How do we know
agents have met it? One position is that, in a liberal democracy,
citizens should use proper legal channels of political participation
to express their grievances (Raz 1979; though Raz grants that
individual acts of disobedience can be justified in liberal regimes).
But, since causes defended by a minority are often those most opposed
by persons in power, legal channels may be less than wholly effective
(Rawls 1999, 327). Moreover, it is unclear when a person could claim
to have reached a situation of last resort; she could continue to use
the same tired legal methods without end. To ward off such challenges,
Rawls suggests that, if past actions, including by others, have shown
the majority to be immovable or apathetic, then further attempts may
reasonably be thought fruitless and the dissenter may be confident her
civil disobedience is a last resort (1999, 328).



*Minority Group Coordination*: The coordination requirement is
designed to regulate the overall level of dissent (Rawls 1999, 327).
The idea is that since minority groups are equally justified in
resorting to civil disobedience when they have sufficiently weighty
objections, these groups should avoid undermining each other's
efforts through simultaneous appeals to the attention of society and
government. While there is some merit to this condition, arguably
civil disobedience that does not meet it can still be justifiable. In
some cases, there will be no time or opportunity to coordinate with
other minorities. In other cases, other minority groups may be unable
or unwilling to coordinate. The refusal or inability of other groups
to cooperate should arguably not affect the ultimate defensibility of
a person's or group's use of civil disobedience.



A reason for Rawls to defend this coordination requirement is that
often coordination serves a more important concern, namely, the
achievement of good consequences. It is often argued that civil
disobedience can only be justified if there is a high probability that
it will produce positive change, since only such change can justify
exposing society to the risks of harm usually associated with civil
disobedience - namely, its destabilizing and divisive potential
and the risk that it could encourage lawbreaking or escalate into
uncivil disobedience. In response to these challenges, one might
question the empirical claims that civil disobedience is divisive and
that it has the consequence of leading others to use disobedience to
achieve changes in policy. One might also question whether it
necessarily would be a bad thing if civil disobedience had these
consequences. Concerning likelihood of success, civil disobedience can
seem most justifiable when the situation appears hopeless and when the
government refuses to listen to conventional forms of communication.
Additionally, even when general success seems unlikely, civil
disobedience might be defended for any reprieve from harm that it
brings to victims of a bad law or policy. Tree-hugging, for example,
can delay or curtail a clear-cut logging scheme and thereby prolong
the protection of an ecosystem.


### 3.3 Value



The justification of civil disobedience further articulates the
conditions for its effective role in society. Far from undermining the
rule of law or destabilizing society, civil disobedience could
strengthen the social and legal order. Civil disobedience can have a
justice-enhancing value: it can serve "to inhibit departures
from justice and to correct them when they occur" (Rawls 1999,
336). Equally, it can have a legitimacy-enhancing function, with some
thinkers conceiving of civil disobedience as 'the guardian of
legitimacy' (Habermas 1985, 103). Both ideas deem the practice
of civil disobedience to be a valuable component of the public
political culture of a near-just constitutional democratic society.
Habermas even took the state's treatment of civil disobedience
as a 'litmus test' for the maturity of the political
culture of a constitutional democracy: "Every constitutional
democracy that is sure of itself considers civil disobedience as a
normalized - because necessary - component of its
political culture" (Habermas 1985, 99).



While Habermas's account resembles Rawls's liberal
approach in many ways, its distinctive deliberative strand has also
influenced democracy-based accounts, which defend the justification
and role of civil disobedience on the basis of its contribution to
democracy. Deliberative democrats (Markovits 2005; Smith 2013, ch.
1-3), republican democrats (Arendt 1972), and radical democrats
(Celikates 2014, 2016) focus on the potential of civil disobedience to
enhance democratic legitimacy and to constitute in itself a form of
democratic empowerment. Agents engaged in civil disobedience can
enhance democratic legitimacy in a number of ways, including by
putting a heretofore-neglected issue on the political agenda and
raising awareness about its stakes; contributing to and informing
democratic deliberation; highlighting the outsize influence of
powerful players and the exclusionary effects of certain processes of
public deliberation, and working to make the latter more inclusive.
Civil disobedience does not only aim to invigorate democratic
sovereignty, but also can constitute a form of democratic empowerment
in itself - an exercise of political agency that is especially
meaningful for marginalized groups. Through civil disobedience,
individuals discover and realize their power. They work together and
forge bonds of solidarity. They engage in democratic politics.
Theorists' examples to illustrate democratic civil disobedience
include: the Occupy Movement, pro-democracy movements around the
world, anti-globalization and anti-austerity protests, climate justice
activism, and Campesino movements for land redistribution and agrarian
reform. Many activists further enact within their movement the norms
and values that guide their struggles, for instance through radical
inclusion, direct democratic decision-making, aspiration to consensus,
and leaderless organizational structures. Some theorists insist on the
need to align the means of protest with its aims, by deploying only
persuasive, non-violent forms of protest that reflect democratic
ideals (Habermas 1997, 383-4; M. Cooke 2016), while others
contend that civil disobedience can be confrontational and coercive
without betraying its democratic aims (Smith 2021; Fung 2005,
409).



A third approach to the value of civil disobedience, besides the
liberal and democratic lenses, comes from the political realist
perspective. Robert Jubb (2019) critiques Rawlsian accounts of civil
disobedience for the binary theory of political authority they rest
on: they take the whole political order to be either legitimate or
illegitimate, and thereby ignore or deny the possibility that a regime
may be authoritative in virtue of having a democratic mandate, yet
fail to protect everyone's basic liberties or to treat all its
members as equals, for example. Jubb proposes instead to
"disaggregate" political authority, that is, to
distinguish between the different forms of authority which a political
order may possess or lack, in order to make sense of the conditions
under which different forms of protest and resistance may be
appropriate. Other realists criticize both liberal and deliberative
democratic perspectives for their deductive, top-down approach to
moral analysis, their quest for rational consensus, and their
assumption that people can be persuaded by rational arguments alone
(Sabl 2001, 2021; Mantena 2012). Realist accounts of civil
disobedience stress instead "the ubiquity of moral disagreement
and the permanence of political conflict" (Sabl 2021, 153).
Andrew Sabl, for instance, envisions civil disobedience as a properly
'political technology' (2021, 165), situated between
submission and revolution, through which agents seek to effect change
in the basic allocation of burdens and benefits by raising costs for
adversaries, but without undermining the state's basic functions
such as its provision of public goods.



For her part, Mantena debunks the common understanding of Gandhi and
King as committed in principle and absolutely to non-violence, showing
that their endorsement of non-violence reflected concerns of political
efficacy. They considered political violence to be
"futile", that is, ineffective for social change and
likely to bring about "dangerous and perverse consequences in
politics" (Mantena 2018, 84). In Gandhi's view, violence
would cultivate the wrong kind of independence for India and breed the
wrong kind of polity, amounting to a mere change of personnel in a
violent state and generating unstable conditions. Mantena identifies
"three faces of nonviolent action", which we can reframe
as realists' account of the triple value of civil disobedience:
1) morally, civil disobedience is the right means by which oppressed
people can regain dignity and self-respect; 2) strategically, it is a
necessary means to just and stable political results and future
democratic concord; and 3) tactically, the dramatization of civil
disobedients' discipline works effectively to persuade
opponents. Recent social scientific research has corroborated the
effectiveness of non-violence in campaigns of civil resistance, which
seek to topple dictatorships or colonial powers (Chenoweth and Stephan
2011; Schock 2015).



Many democratic theorists incorporate political realism in their
approach as they strive to think about and "learn from the
streets" (Celikates 2014), in a "bottom-up" approach
designed to understand particular contemporary protest movements. This
approach constitutes a stark departure from "top-down"
liberal approaches like Rawls's and Dworkin's that require
agents justify their disobedient protest before engaging in it. As
Alexander Livingston puts it, many democratic and critical theorists
today seek to draw "theoretical insights from protest movements
themselves around the globe rather than legislating moral guidelines
for activist praxis from the sidelines" (Cidam et al
2020, 540). Guy Aitchison sees this as a central feature of the
'new civil disobedience debate', in which scholars seek to
respond to 'a new era of political protest and unrest'
characterized by "the proliferation and intensification of
oppositional political action by groups challenging economic
inequality, racist policing, immigration enforcement, austerity, war,
climate change, financial oligarchy, privatization, and corporate
domination of cyberspace" (Aitchison 2018b, 5, 7-8)
- which theorists tend to be in broad sympathy with. Such
bottom-up approach also diverges from David Lefkowitz's and
Kimberley Brownlee's defenses of a moral right to civil
disobedience that applies impartially to all acts of civil
disobedience, justified or not (see 4.2).


## 4. Responding to Civil Disobedience



How should the state respond to civil disobedience? The question of
appropriate legal response applies, first, to the actions of
law-enforcers when deciding whether and how to intervene in a civilly
disobedient action. It applies, second, to the actions of prosecutors
when deciding whether to file charges and proceed to trial. Finally,
it applies to the actions of judges (and juries) when deciding whether
to convict and (for judges) how much to punish. All three contexts of
legal sanctions beg the question of criminal law's function.


### 4.1 Punishing Civil Disobedience



How much punishment is appropriate for civil disobedients? Is
punishment appropriate at all? If there is a right to civil
disobedience, then, as we saw, it protects people from punishment.
Even if there isn't, is punishment indefensible if it sanctions
morally justified civil disobedience? The tensions become clear when
we consider the criminal law's function, which is to punish and
prevent crimes, that is, to tackle wrongful conduct. Unlike civil
wrongs, which are privately brought, criminal wrongs are public
wrongs: the polity, not the victim (there may not be any), prosecutes
the alleged wrongdoer. Punishment, depending on one's
overarching account, serves to: dissuade people from committing the
types of conduct identified as wrongful (Bentham 1789 [1970]);
appropriately respond to those who culpably commit them (Moore 1997),
including by engaging with them in a moral dialogue so that they
repent and reform (Duff 1998); and/or express the community's
moral disapproval of such conduct (Feinberg 1994). So, we may ask,
from the consequentialist, forward-looking standpoint, whether the
state should deter civil disobedience; and, from a retributivist
(desert-based) or communicative, backward-looking perspective, whether
civil disobedients deserve the community's censure (Bennett and
Brownlee 2021).



If civilly disobedient breaches of law are public wrongs, comparable
to or worse than ordinary offenses, then civil disobedients should be
punished similarly or more severely than those who commit ordinary
offenses. Kent Greenawalt lays out reasons to hold that civil
disobedients deserve the same punishment as others who breach the same
laws. First, the demands of proportionality would seem to recommend a
uniform application of legal prohibitions. Since trespass is
prohibited, persons who breach trespass laws in protest of either
those laws or other laws would seem to be equally liable to persons
who breach trespass laws for private purposes. Second, any principle
that officials may use to excuse justified illegal acts will result in
some failures to punish unjustified acts, for which the purposes of
punishment would be more fully served. Even when officials make
correct judgments about which acts to excuse, citizens may draw
mistaken inferences, and restraints of deterrence and norm acceptance
may be weakened for unjustified acts that resemble justified ones
(Greenawalt 1987, 273). What follows is that all such violations,
justified and unjustified, should be treated the same.



There also are reasons to believe that civil disobedients should be
dealt with more severely than are others who have offended. First, as
mentioned above, disobedients seem to have put themselves above the
law in preferring their own moral judgment about a certain issue to
that of the democratic decision-making process and the rule of law.
Second, the communicative aspect of civil disobedience could be said
to aggravate disobedient offenses since their communication usually is
attended by much greater publicity than most covert violations are.
This forces legal authorities to concern themselves with the
possibility that law-abiding citizens will feel distressed, insecure,
and perhaps imposed on, if no action is taken. So, notes Greenawalt,
while authorities may quietly let minor breaches pass, failure to
respond to violations performed, in some respect, in the presence of
authority, may undercut claims that the rules and the persons who
administered them deserve respect (1987, 351-2). Third, and
related, civil disobedients often invite, and might inspire, other
citizens to do what they do. Such risk of proliferation of civil
disobedience and, further, of its escalation into lawlessness and
violence, may support the imposition of more severe punishment for
agents engaged in civil disobedience.



However, both the models of civil disobedience presented above, which
stress its role and value in liberal democracies, and the arguments
for the right to civil disobedience examined below, strongly push for
the opposite view that civil disobedients, if punished at all, should
be dealt with more leniently than others who have offended. The
preceding discussion highlights that civil disobedience is in fact a
public good - a crucial component of democratic culture, in
Habermas's words - and, hence, many theorists defend the
state's responsibility to treat civil disobedients
leniently.



Dworkin argues that the state has a "special responsibility to
try to protect [the civil disobedient], and soften his predicament,
whenever it can do so without great damage to other policies"
(Dworkin 1978, 260). The government can exercise its responsibility of
leniency by not prosecuting civil disobedience at all, depending on
the balance of reasons, including individual rights, state interests,
social costs, and constitutional benefits. Reasons for prosecuting in
any particular case are 'practical', not intrinsic or
deontological, and always potentially defeasible. In general,
prosecutors should not charge disobedients with the most serious
offenses applicable and judges should give them light sentences.
Leniency follows from the recognition of the special constitutional
status of civil disobedience.



In this view, officials at all levels have the discretion to not
sanction civil disobedients, and they should use it. Prosecutors have
and should use their discretion not to press charges against civil
disobedients in some cases, or to charge them with the least serious
offense possible. Dworkin (1985) urges judges to engage in an open
dialogue with civil disobedients (at least those who articulate legal
arguments in defense of their actions) and dismiss their charges after
hearing them, or to use their discretion in sentencing, for instance
by accepting guilty pleas or guilty verdicts but imposing trivial
punishments.



However, this proposal could amount to letting judges evaluate the
worthiness of individual civil disobedients' causes, which would
not on its own guarantee judicial leniency. To the contrary, judges
might well systematically decide against civil disobedients, upholding
the special interests of the ruling class of which they are part. The
proceduralist insistence on courts' neutrality avoids this
pitfall, and generally warns against turning courtrooms into political
forums. Yet the transformation of courts into public fora might not be
so insidious, and may indeed be part of a necessary institutional
reform to provide civil disobedients with a platform, perhaps along
the lines of Arendt's (1972, 101-2) proposal to treat
civil disobedients as a kind of people's lobbyists (see Smith
2011).


### 4.2 A Right to Civil Disobedience



For Rawls, there is only a moral right to engage in *justified*
civil disobedience. But many other theorists defend at least a limited
right to engage in civil disobedience irrespective of a particular
act's justification, given the general value of the practice.
Dworkin (1978) outlines what such a right of conduct might look like,
analogizing civil disobedients with Supreme Court justices, who test
the constitutional validity of (unjust) law through direct
disobedience of that law. In doing so, they can make law more faithful
to the principles of justice and fairness that justify it (on
Dworkin's theory of law). Some theorists accept the value of
constitutional challenges but argue that once the law is found by a
high court to be constitutional and disobedients' initial
conviction is upheld, disobedients have a duty to accept their
punishment and recognize the law's validity (Fortas 1968;
Nussbaum 2019, 177). In contrast, Dworkin argues that forcing citizens
to obey court decisions - including the Supreme Court's
- would mean forcing them to do something their conscience
forbids them to do, which would contravene the constitutional
imperative, entrenched in the First Amendment and rooted in dignity,
to respect individuals' "right to conscience" and
protect their freedom of speech.



The right to conscience, on this account, thus grounds a weak
"right to break the law". It is a right in the sense that
one "does the right thing to break the law, so that we should
all respect" the agent when she follows her conscientious
judgment about doubtful law and refuses to comply with a law that
requires her to do what her conscience forbids (Dworkin 1978,
228-37), but it does not ground a right in the strong sense that
the government would do wrong to stop her from disobeying. In other
words, on this view, the right to disobedience is deemed to be
compatible with the state's right to punish. Contra Cohen (1966,
6), Rawls (1999, 322), and others, however, Dworkin does not defend
agents' moral duty to accept punishment (1985, 114-5). He
considers non-evasion of legal sanctions to be a good strategy for
civil disobedients denouncing unconstitutional law and unjust policy
(*justice*- and *policy*-based civil disobedience on his
view) but denies that accepting punishment is a conceptual, moral, or
tactical requirement for civil disobedience motivated by personal
convictions ('integrity-based' civil disobedience). For
the latter, Dworkin argues that utilitarian reasons for punishing
should be weighed against the fact that the accused acted out of
principled convictions, and that the balance should generally favor
leniency.



Joseph Raz puts forward a different account of the right to civil
disobedience, insisting that this right extends to cases in which
people ought not to exercise the right: it is part of the nature and
purpose of rights of conduct that they give persons a protected sphere
in which to act rightly or wrongly. To say that there is a right to
civil disobedience is to allow the legitimacy of resorting to this
form of political action for causes one opposes (Raz 1979, 268). That
said, Raz places great emphasis on the kind of regime in which a
disobedient acts, arguing that only in an illiberal regime could
individuals have a right to civil disobedience to reclaim their
political participation rights which their illiberal state is
violating: they are entitled to "disregard the offending laws
and exercise their moral right as if it were recognized by law."
Raz adds that "members of the illiberal state do have a right to
civil disobedience which is roughly that part of their moral right to
political participation which is not recognized in law" (Raz
1979, 272-3). By contrast, in a liberal state, the right to
political activity is, by hypothesis, adequately protected by law and,
hence, the right to political participation cannot ground a right to
civil disobedience.



A different view of rights holds that when a person appeals to
political participation rights to defend her disobedience, she does
not necessarily criticize the law for outlawing her action. Lefkowitz
maintains that members of minorities can appreciate that democratic
discussions often must be cut short so that decisions may be taken,
and those who engage in civil disobedience may view current policy as
the best compromise between the need to act and the need to
accommodate continued debate. Nonetheless, they also can point out
that, with greater resources or further time for debate, their view
might have held sway. Given this possibility, the right to political
participation must include a right to continue to contest the result
after the votes are counted or the decisions taken. And this right
should include suitably constrained civil disobedience because the
best conception of political participation rights is one that reduces
as much as possible the impact that luck has on the popularity of a
view (Lefkowitz 2007; see also Smith 2013, ch. 4; Ceva 2015).



An alternative response to Raz questions whether the right to civil
disobedience must be derived from rights to political participation.
Brownlee (2012, ch. 4) bases the right to civil disobedience on a
right to object on the basis of sincere conviction. Whether such a
right would fall under participation rights depends on the
expansiveness of the latter rights. When the right to participate is
understood to accommodate only legal protest, then the right
conscientiously to object, which commonsensically includes civil
disobedience, must be viewed as distinct from political participation
rights.



A further challenge to a regime-focused account is that real societies
do not align with a dichotomy between liberal and illiberal regimes;
rather they fall along a spectrum of liberality and illiberality,
being both more or less liberal relative to each other and being more
or less liberal in some domains than in others. Perhaps, in a society
that approximates a liberal regime, the political-participation case
for a right to civil disobedience diminishes, but to make legally
protected participation fully adequate, a liberal society would have
to address Bertrand Russell's charge that controllers of the
media give defenders of unpopular views few opportunities to make
their case unless they resort to sensational methods such as
disobedience (1998, 635).


### 4.3 Accommodating Civil Disobedience



Philosophers have typically focused on the question of how courts
should treat civil disobedients, while neglecting to apply that
question to law enforcement. Yet the police have much discretion in
how to deal with civil disobedients. In particular, they have no
obligation to arrest protesters when they commit minor violations of
the law such as traffic obstruction: accommodation of and
communication with protesters is something they can but all too rarely
decide to do. Instead, many governments practice militarized
repression of protests. Local police departments in the U.S. often
respond to demonstrations with riot gear and other military equipment.
Also, the British government sought to strengthen public order laws
and secure new police powers to crack down on Extinction Rebellion
(XR), the global environmental movement whose street protests,
die-ins, and roadblocks for climate justice have brought cities to a
standstill.



One notable exception to the theoretical neglect of law enforcement is
Smith's (2013, ch. 5) articulation of a "policing
philosophy" that orientates policing strategies toward
accommodation, rather than prevention or repression, of civil
disobedience. On Smith's view, "the police should, where
possible, cooperate with civilly disobedient activists in order to
assist in their commission of a protest that is effective as an
expression of their grievance against law or policy" (2013,
111). Accommodation requires communication channels between police and
activists and involves strategies such as pre-negotiated arrests.
While the U.S. often implements punitive and strong-handed law
enforcement strategies, the U.K.'s current goal (at the time of
writing) is, according to one senior police source, to develop
'move forward' - proactive and preventive -
tactics that are designed to clear the streets of XR demonstrators.
Neither approach respects anything like a right to civil
disobedience.



A constitutional government committed to recognizing the right to
civil disobedience would also have to reform part of its criminal laws
and make available certain defenses. Brownlee proposes two. First,
disobedients should have access to a
"demands-of-conviction," excusatory defense to point to
the deep and sincere reasons they had for believing they were
justified in acting the way they did (Brownlee 2012, ch. 5). Second,
states should accept necessity as a justificatory defense for civil
disobedience undertaken as a reasonable and parsimonious response to
violations of and threats to non-contingent basic needs (Brownlee
2012, ch. 6). As these defenses suggest, constitutionally recognizing
civil disobedience does not mean making civil disobedience legal.
Disobedients would still be arrested and prosecuted, but they would
get to explain and defend their actions in court. They would be
heard.


## 5. Conclusion



There have been shifts in the paradigm forms and goals of civil
disobedience over the past century, from the suffragettes'
militant activism in pursuit of their basic rights of citizenship to
the youth climate movement's school walkouts and mass
demonstrations to demand governments take urgent action to combat the
climate crisis. Even so, civil disobedience remains an enduring,
vibrant part of political activism and, increasingly, benefits from
transnational alliances.



Theorists have long assumed that civil disobedience only begs
justification in liberal, democratic societies - the best
real-world candidates for legitimate states. However, civil
disobedience also raises questions in undemocratic and illegitimate
contexts, regarding its overall role, strategic value, and tactical
efficacy. For instance, disobedient protests in support of democracy
in Hong Kong may not be presumptively impermissible given
China's authoritarian rule. Yet they still beg significant
questions concerning the proper contours of extra-institutional
dissident politics and the justification of uncivil and forceful
tactics in repressive contexts, including violence against police and
the destruction of pro-China shops and Chinese banks.



Finally, whereas theorists have tended to think of civil disobedience
as generally undertaken to achieve worthy public goals, liberal
democratic states have recently witnessed much disobedience in pursuit
of anti-democratic and illiberal goals, including conscientious
refusal to abide by antidiscrimination statutes and violations of, and
protests against, laws requiring the provision of reproductive
services and the public health measures enacted to slow the spread of
the coronavirus. We may need a different lens than liberal and
democratic theorists have offered to evaluate the full range of
conservative social movements, counter-movements, and reactionary
movements which resort to civil (and other forms of) disobedience.