Prof. Martin Kolmar
Professor of Economics and Managing Director of the Institute for Business Ethics at the University of St. Gallen
Civil disobedience can be a legitimate means of political expression in democratic states governed by the rule of law. A mature and prudent state understands that civil disobedience may sometimes be the only way for minorities to articulate their legitimate causes; a mature and prudent state understands that sometimes there may be a tension between legality and legitimacy.
“The good life can only be lived in a society in which tidiness is preached and practiced, but not too fanatically, and where efficiency is always haloed, as it where, by a tolerated margin of mess.”
Aldous Huxley (1949)
Particularly through the activities of groups like Fridays for Future, Last Generation, or Extinction Rebellion, a new and growing interest in the legitimacy and effectiveness of various forms of political activism has emerged. For example, Last Generation has been protesting for a year for tougher climate-protection measures. It relies mainly on blockades of roads and airports, with activists gluing themselves to the spot. In addition, there have also been high-profile protests at ministries, museums, and concert halls. They gained a lot of public attention when activists glued themselves to museum walls and attacked famous paintings with paint or mashed potatoes. A common viewpoint you hear from activists is the following: The climate crisis threatens our children and future generations with heatwaves, floods and rising sea levels, wildfires, loss of biodiversity, and psychological adaptation costs like climate anxiety. Hence, they must break the law to avoid being guilty of a bigger crime. Is that right?
In particular, civil disobedience, which aims to break the law while committing to the principle of nonviolence, has attracted public interest: Is civil disobedience legitimate or a criminal act? Can it be morally right to break the law if breaking the law seems to be the only way to “prevent disaster?” How can one distinguish between legitimate and illegitimate causes? Can there even be a moral obligation to engage in acts of civil disobedience? How should the state react to this form of protest? And how much hindrance from protests do citizens have to tolerate? What does non-violence mean? Is there no alternative, legal and democratic way to effectively articulate one’s interests? The list could go on.
An additional problem exists: Our attitudes toward forms of protest like civil disobedience are quickly colored and biased by our own normative judgments, our willingness to consider violations of the law by activists as tolerable is significantly higher if we agree on the content. Therefore, an important question is whether we are also willing to accept this form of protest when it is claimed for political causes with which we do not identify? Norms of fairness and impartiality require that we have to take an impartial stance.
As of February 2023, Climate activists seem to be highly motivated to continue their protests, and the movement seems to be spreading through society at large. In August 2022, even the prestigious scientific journal Nature Climate Change published an article that basically argued that especially scientists have a right if not a duty to engage in acts of civil disobedience to focus public attention on the severe consequences of climate inaction. It starts with the following unusually alarmist words: “Time is short to secure a liveable and sustainable future; yet, inaction from governments, industry and civil society is setting the course for 3.2 °C of warming, with all the cascading and catastrophic consequences that this implies. In this context, when does civil disobedience by scientists become justified?” And it continues: “When those with expertise and knowledge are willing to convey their concerns in a more uncompromising manner … this affords them particular effectiveness as a communicative act. This is the insight of Greta Thunberg when she calls on us to ‘act as you would in a crisis’.”
I will look at civil disobedience mainly from a philosophical and from an empirical point of view. I am not interested in the specifics of, e.g., the compatibility of civil disobedience with Swiss law. A companion piece by Benjamin Schindler (read here) focusses on the legal issues. The purpose is also not to give an exhaustive survey over the extensive and nuanced literature about the subject. And it is even less an attempt to justify or condemn civil disobedience as a practice of individual or collective resistance. It is rather a subjective attempt to sensitize for some of the issues that are discussed in ethics, political philosophy, and legal theory.
Civil disobedience is discussed for states without and with a justified claim to political authority, and as can be expected, the discussions come to very different conclusions. I will henceforth discuss this type of political activism only for states with a justified claim to authority, i.e., a state that fulfills certain procedural and consequentialist norms of fairness and justice that can be summarized as a liberal constitutional democracy with the rule of law.
For states like this, the default position seems to be clear: In a democratic state governed by the rule of law, there are ways for legal resistance: Independent courts can be appealed against unlawful state power, and elections plus popular initiatives enables opposition along legal lines. Hence, it could be argued that there basically no room for a right of resistance that intentionally breaks the law. In a state governed by the rule of law, respect for the law cannot be left to the discretion of individuals.
This position seems to align well with public opinion on civil disobedience: “Across the political spectrum, many people—journalists, politicians, but also activists and theorists—seem to think there is something fundamentally wrong with civil disobedience. Some consider it too radical, as an attempt to procure political power under the mantel of moral principles, as a one-sided renunciation of the duty to obey the law and to uphold order that is not to be tolerated.” Especially in Western democracies, citizens must restrict themselves to democratic institutions to express their normative discontent.
Philosophical and legal positions that argue in favor of civil disobedience usually take this idealized vision of a state as a starting point to argue why real states fall short of this idealization and how these shortcomings can make other, non-law-abiding forms of political articulation legitimate. An example would be that democratic elections, if not properly controlled by the rule of law, can lead to the majority always prevailing at the expense of minorities. Hence, even if every citizen has formal voting rights, there may be situations where minorities’ voices are systematically not heard within the system. Civil disobedience might therefore be the only way to bring attention to their causes. Creating this space may therefore not only be an ethical imperative but also prudent for the state as it may allow to involve groups that would otherwise threaten to radicalize.
But before we start with a more detailed discussion, let us briefly look at the history of civil disobedience. The term can be traced back to Henry David Thoreau, who, in protest against slavery and the United States’ war against Mexico in 1846, stopped paying taxes and accepted a prison sentence for doing so. Since then, the term has been intensively discussed. All positions have in common that they see a limited tolerance for violations of the law as an expression of a mature constitutional state. The latter recognizes that there may be situations in which legitimate decisions of conscience are made that do not receive an appropriate hearing within the legal framework. Therefore, in extreme situations, the creation of a social balance is only possible if law is broken. However, there is also agreement that not every arbitrary breach of law can be considered civil disobedience.
What is civil disobedience?
Civil disobedience is a form of political protest that challenges the existing order by purposefully breaking the law. Compared to more radical forms of protest, however, this is done in a specific, “civil” way. The normative perspective on this phenomenon therefore depends on the implicit or explicit understanding of the relationship between society and its institutions.
Several of the most influential political philosophers and legal theorists were concerned with civil disobedience, and their positions form what might be called the mainstream, liberal view. None of them question the legitimacy of this form of protest per se but hedge the area in which it is considered legitimate, sometimes strongly.
The most influential definition goes back to John Rawls’ book A Theory of Justice. He defines civil disobedience as “a public, non-violent, conscientious yet political act contrary to law usually done with the aim of bringing about a change in the law or policies of the government” by appealing to the “sense of justice of the majority,” all “within the limits of fidelity to law”. The latter element of the definition implies a willingness of the protestor to accept lawful penalty (which does not imply that the state must execute it; in fact, there is a long debate regarding the adequacy of punishment in case of legitimate civil disobedience).
Jürgen Habermas has a similar and even “tamer” concept in mind by requiring that the protest has to be announced in advance: “Civil disobedience is a morally justified protest which may not be founded only on private convictions or individual self-interests; it is a public act which, as a rule, is announced in advance and which the police can control as it occurs; it includes the premeditated transgression of legal norms without calling into question obedience to the rule of law as a whole; it demands the readiness to accept the legal consequences of the transgression of those norms; the infraction by which civil disobedience is expressed has an exclusively symbolic character— hence is derived the restriction to nonviolent means of protest.”
Boiling it down to its essential core, civil disobedience is a form of individual or collective protest, if it is public, non-violent, conscientious, and contrary to but accepting the law. Even though this mainstream view gives rise to a lot of disputes, it is still a relatively “tame” concept, as it requires a basic acceptance of the state’s institutions. This plus the commitment to nonviolence make this form of disobedience civil. And at that level of abstraction, most scholars as well as laypeople would agree that protest that respects this definition can be legitimate.
Does it have to be this way? As I have already said, implicit in this definition is a very specific understanding of the relationship between society and its institutions. The liberal fallback starts with the idea that rules and institutions are constitutive of society. According to this view, a liberal democracy can only come to life insofar as it is expressed in its institutions. As an implication, any form of protest that challenges these institutions must be illegitimate, and it must be taken for granted that the basic architecture of the state is just. From a more radical democratic perspective, however, institutions and legal principles like the rule of law are themselves expressions of collective self-determination. From this point of view, civil disobedience is more like a specific form of expression in the continuous process of negotiating consensus. In the words of Celitakes (2016): “Rather than as a defensive act of individual rights bearers, civil disobedience thus emerges as an essentially collective and political practice of contestation— as a form of struggle in which the vertical form of state authority is confronted with the horizontal power of the association of citizens or the governed, the “low-intensity representative democratic institutions and modern constitutional formations” with the “participatory or high-intensity democratic forms of democracy and self-determination.”
Are these definitions adequate? This is not the place to survey the extensive debates regarding the adequacy of the different elements of the definition. To give you an idea about what is at stake, I will focus on two elements of the definition, sense of justice of the majority and non-violence.
Sense of justice of the majority: Rawls’ claim that civil disobedience must appeal to the sense of justice of the majority is empirically wrong and normatively problematic, as it can be argued that almost by definition, the outcome of democratic processes more or less reflects the opinion of the majority. Hence, any meaningful form of protest must challenge this mainstream view. Claiming otherwise makes this form of protest a blunt sword. One could argue that the outcome of democratic processes does not need to reflect the majority’s sense of justice, but its more narrowly defined self-interest, but even in this case, societal tensions often exist because a minority thinks that the mainstream sense of justice is deeply flawed. Historical acts of civil disobedience in the fight for women’s rights, for example, cannot be adequately framed as appeals to the majority’s sense of justice, at least not initially. What from today’s perspective seems like a broad normative consensus—the equality of women and men with respect to their political and civic rights—was nothing like this in the early days of the movement. And it is hard to think of forms of democratic and legal ways to express women’s interest as they did not have the democratic right to vote, and their legal rights were severely restricted as well. What else could for example the suffragettes do than to articulate their interests by means of civil disobedience? Even more radical forms of protest? If one wants to have a benevolent interpretation of this criterion, one could argue that protests changed the majority’s sense of justice over time.
Non-violence: A similar point can be made regarding the notion of nonviolence. At first glance, the term sounds innocuous and plausible. But the devil turns out to be in the details, as it is subject to interpretation. By definition, disobedience infringes with the interest of at least some person, organization, or institution. There must be some aspect of confrontation. Is an act violence if it violates the physical integrity of another person? If it damages property? If the protester harms her- or himself? What about psychological harm like stress? How about mere inconveniences? With sufficient interpretative leeway and creativity, any such infringement could count as an act of violence, which would make this form of protest ineffective.
Those who doubt the creativity of the status quo to define violence in a way as to make acts of civil disobedience impossible, should review the rulings by the German Federal Court of Justice. In 1969, it ruled that it is an act of violent coercion to sit down in the street and to psychologically pressure the driver of a car to stop. In 2001, it ruled that it is an act of violent coercion to chain oneself to railway tracks or to an entrance gate. And in 2011, it ruled that even sitting down in the street may constitute a violent act.
Civil disobedience challenges the interests of the majority and the existing order. Hence, there is always an interest to define key terms as to disqualify protest and make it seem illegitimate or to even criminalize it. This general tendency is confirmed by the reaction the state to the current protests in Germany. For example, police took several climate activists in so-called preventive detention (Präventivhaft) in Munich in November 2022. This detention can last up to two months without a criminal trial in Bavaria. Preventive detention has the purpose to prevent breaches of the law and is reserved to situations that qualify, e.g., as significant disturbances of public safety. Is the use of this measure and the classification really justified in dealing with the climate protesters, is their form of protest a significant disturbance of public safety? Celitakes (2016) nicely summarizes the problem: “Jurisprudence can always try to de-facto eliminate civil disobedience by defining key concepts in status-quo defending ways. If one grants the state this freedom, civil disobedience is reduced to a pressure valve without any potential for initiating reform of injustices embedded in the status quo. Or to be more precise, it reduces civil disobedience to a specific type of marketing campaign.”
I will come back to the marketing-aspects of this “toothless” form of resistance later. It is important to recognize at this point that this tendency toward “rhetorical delegitimization,” while understandable individually, is probably not socially prudent. People who engage in forms of social protest like civil disobedience make a moral claim, they are pointing towards some form of deeply felt injustice. If the state reacts by an attempt to delegitimize forms of protest, the normative discontent felt by these groups will not vanish. On the contrary, their sense of injustice may even grow, as they experience the state as oppressive and may therefore be motivated to reach for more extreme forms of protest. What may look like a threat to the existing order to the state or an illegitimate and strange request for the majority society, is a burning problem for protesters who often seek this form of protest as last resort. In the words of Martin Luther King, Jr.: “[Nonviolent] direct action seeks to create such a crisis and foster such a tension that a community which has constantly refused to negotiate is forced to confront the issue. It seeks so to dramatize the issue that it can no longer be ignored.”
Continue on page 2.
 To my knowledge, the paintings have never been damaged by the attacks, as they have been protected by glass. However, these activities are costly for museums as the paintings must be lavishly cleaned and—if this form of protest becomes the rule—museums may be confronted with higher insurance premia.
 Capstick, S., Thierry, A., Cox, E. et al. Civil disobedience by scientists helps press for urgent climate action. Nat. Clim. Chang. 12, 773–774 (2022).
 Celitakes, R. (2016): Rethinking Civil Disobedience as a Practice of Contestation—Beyond the Liberal Paradigm, Constellations Volume 23, No 1.
 Rawls, J. (1971): A Theory of Justice, Cambridge, MA: Harvard University Press, 364–6.
 Habermas, J. (1985): Civil Disobedience. Litmus Test for the Democratic Constitutional State, Berkeley Journal of Sociology 30, 96–116, 100.
 Delmas, Candice and Kimberley Brownlee, “Civil Disobedience”, The Stanford Encyclopedia of Philosophy(Winter 2021 Edition), Edward N. Zalta (ed.), URL = <https://plato.stanford.edu/archives/win2021/entries/civil-disobedience/>.
 Some of these rulings have later been revoked by the German Federal Constitutional Court. See Celitakes, R. (2016): Rethinking Civil Disobedience as a Practice of Contestation—Beyond the Liberal Paradigm, Constellations Volume 23, No 1 for details.