Common normative justifications in ethics, legal, and political theory
Now that we have a first idea about the mainstream understanding of civil disobedience, it is time to come back to one of the questions from the beginning: How can this form of protest be justified in a liberal democracy under the rule of law? Again, I am wildly selective in this section; its main purpose is to give you a first idea about the different ways political philosophers and legal theorists think about this issue. Most liberal thinkers look at civil disobedience from a contractarian perspective. They see society as a kind of implicit contract between citizens where citizens have agreed to obey the law and the state guarantees justice. What happens if some groups in society feel that the state does not keep its promises? And what are these promises? We can be more or less controversial in answering these questions. Let us start with the more “conservative” views.
For Rawls (1971), either serious infringements with his first principle of justice (equal liberty) or serious violations of his second principle of justice (fair equality of opportunity) can justify an act of civil disobedience. He thereby implicitly accepts that “real” in contrast to “ideal” states are necessarily only approximations of justice, which creates legitimate space for acting “out of the state.” Ronald Dworkin (1985), a leading legal theorist, makes a somewhat similar point.[1] He distinguishes between “matters of principle” (like civil liberties) and “matters of policy” (like decisions about the energy mix of a country) and argues that civil disobedience should be restricted to matters of principle. Hence, discrimination according to gender may legitimize civil disobedience, whilst the decision of the government to invest in nuclear power plants or to allow factory farming not. Rawls’ concept would give rise to a similar conclusion, as it would be hard to build a case that nuclear power plants or factory farming are serious infringements to the principle of equal opportunity. This example illustrates that a lot of the protests that we are currently observing would not qualify as acts of civil disobedience. Peter Singer, an early advocate of animal welfare, makes exactly this point with respect to the treatment of animals: “It is, he [Rawls] says, wrong to be cruel to animals, although we do not owe them justice. If we combine this view with the idea that the justification of civil disobedience must be in terms of justice, we can see that Rawls is committed to holding that no amount of cruelty to animals can justify disobedience.”
There are positions that go beyond this narrow view. Here are two examples:
First, Smith (2004) argues for the case of constitutional democracies that civil disobedience is justifiable if (1) deliberation is insufficiently inclusive, (2) if it is manipulated by powerful participants, and (3) if it is insufficiently informed.[2] Hence, there is no mention to the type of harm that is a distinguishing factor for both, Rawls and Dworkin. The first aspect is directly related to the problem of minorities to have a voice in the democratic processes. The second aspect relates to the fairness of the democratic process that is violated if single financially or otherwise powerful actors have an unjustifiable impact on political decision making. The third aspect is the most complicated one, as the complexity of modern life places a high informational burden on citizens in democratic societies. It is implicitly an epistemic claim that democratic citizens do not have a right to ignorance if they want to participate in the political process. Debates about “fake news” and “alternative facts” over the last couple of years reveals, that this requirement points towards a much deeper level: Democratic societies do not only depend on a political but also on an “epistemic constitution,” a set of agreed upon principles about how to reach epistemic consensus.[3]
Smith’s arguments are especially relevant for climate protests, as a strong case can be built as the climate crisis fulfills all three criteria: Future generations have no direct voice in political deliberations even though they will be influenced by the climate crisis,[4] it has been shown that corporations in the energy sector tried to manipulate public opinion,[5] and climate activists are on the side of scientific evidence. Lemons and Brown (2011) explicitly make the point that there might even be a moral obligation to engage in acts of civil disobedience: “Despite knowledge of the risks of global climate change during the past 30 yr, the USA, among other nations, has failed to mitigate greenhouse gas emissions to reduce the risks to present and future generations. This is despite the fact that scientific and ethical literature makes the case that meaningful action is urgent. Consequently, we suggest that climate and environmental scientists, among others, consider whether non-violence civil disobedience should be used as a means to promote action on global climate change.”[6] This position is hard to square with Rawls’ or Dworkins’ justifications of civil disobedience, but it can be consistently derived within Smith’s framework
Second, Lefkowitz (2007) published an influential paper on the moral right to civil disobedience in constitutional democracies.[7] He builds on Raz (1979) who denies such a right by arguing that the basic rights of citizens can be adequately recognized and protected in law.[8] Contrary, Lefkowitz sees a conflict between the moral duty to obey the law and a moral right to express criticism and demand changes of exactly this law. He resolves this conflict arguing in favor of a specific kind of disobedience: citizens must either obey the law or they must publicly disobey it. He argues that a moral right to civil disobedience follows directly from the justification of a state’s claim to political authority: as collective action is a moral necessity, and as there is legitimate disagreement over the specific form of public action, “the moral right to political participation cannot be adequately recognized in law but instead entails a suitably constrained moral right to civil disobedience.” He develops his argument within a contractarian framework by first acknowledging basic human rights such as a right to be free from bodily harm, a right to freedom of religious belief and practice, a right to freedom of speech, a right to adequate nutrition, and a right to basic health care and argues that it cannot be guaranteed in pluralist societies that these rights are always respected within the political and legal framework that defines the state. Hence, a moral right to civil disobedience is a necessary counterweight that given people a kind of voice in situations where they would otherwise have none. The essential core of the disagreement is the view about the state’s ability to set and enforce rules that protect its citizen’s basic rights under all circumstances, even if they are very diverse. Given that much is at stake if Raz’s position is wrong and given that civil disobedience does not challenge the existence of the state as such, a precautionary principle would argue in favor of such a moral right.
When is civil disobedience effective?
But let us stick with the laundered, tame forms of civil disobedience that Celitakes (2016) has called a specific type of marketing campaign. Civil disobedience has at its core an evolutionary idea of change: it breaks the law to sensitize politicians, lawyers, or the public for an issue that the protesters find of supreme moral importance. Hence, it must rely on persuasion, and there is a growing body of literature that looks at civil disobedience as a specific form of marketing campaign. And as with marketing campaigns, a necessary condition for its success is public attention. But attention is not enough, in the end, it must convince the decisive group of people of their cause. Wieringa (2020) focusses on the possible dilemma: “For social movements, coverage in itself is not enough. Movements depend on media to spread their world view and repeat their arguments. Especially when using civil disobedience, which can be considered the most extreme form of nonviolent protest, social movements risk coverage that is counterproductive to their goals. They face a dilemma between quantity and quality of coverage: the more severe their protest, the more media attention they may get, but the more negative this coverage may also be.”
Is it possible to identify elements that make forms of civil disobedience successful in this respect? There are some relatively straightforward findings: Activism is more likely to be effective when there is already a significant level of public support. In addition, the organizational capacity, and the resources of activist groups also play an important role. In addition, and based on a historical comparative analysis, Dillard (2002) has shown that the effectiveness of civil disobedience depended on the way it was enacted.[9] A clear commitment to non-violence (as understood by the public) and a non-threatening way to demonstrate turned out to be more effective. In addition, the credible signaling of their willingness to suffer for their cause and a willingness to communicate that suffering to the public turned out to be important. In a comprehensive study of resistance campaigns, Stephan and Chenoweth (2011) found that nonviolent ones succeeded more than half the time and more than twice as often than violent ones.[10] Wieringa (2020) comes up with a more comprehensive list, and he identifies journalists not only as essential gatekeepers, but as key players to shape the public opinion.[11]
First, a specific aspect of non-violence seems to be very important: hindrance. The prospect of civil disobedience alone tends to grab media attention, however, a decisive factor for getting the right kind of media coverage, media coverage that draws attention to the cause of the protestors, is non-hindrance. If the type of protest violates this requirement, media coverage is likely to focus on the obstruction of public order and the implied inconveniences imposed by the protest instead of its cause. In addition, it turns out to be hard to change the media narrative if protesters change their strategies. A campaign that does not respect this constraint is likely to fail as it gets a lot of media attention, but not for their cause but for its disruption of public life.
Second, narrow, and easy-to-communicate goals are advantageous: “The simpler the claim underlying an act of civil disobedience, the more effective the protest is in terms of media coverage.” Relatedly, a successful campaign succeeds in relating the claim to the form of protest (“the claim should be embedded in the act”). Simple claims and acts of civil disobedience that are directly related to this claim reduce the need for explanation and background information.
Third, a strong hierarchical, top-down coordination of the activists turns out to be advantageous in terms of media coverage. The underlying topic is simplicity again: An uncoordinated and undisciplined group of protestors is likely to sed complicated and incoherent messages, blurring the cause.
Fourth, social movements should build ties and establish trust with journalists. Social ties and trust make it more likely that journalists will report about the protest and focus on its cause instead of the inconveniences implied by it. Direct communication with the media should be inclusive, as journalists who feel excluded makes them seem biased.
In summary, Wieringa’s (2020) explorative analysis reveals that four elements turn out to be decisive: act, claim, organization, and media interaction. Additional research is needed to make the results of his study more reliable, but it is laying the foundations for an evaluation of existing campaigns and the design of future ones.
Conclusion
It should be clear by now that while legal theorists and political philosophers agree that certain forms of civil disobedience are legitimate and may even constitute a moral duty, there are no easy answers for judging specific campaigns. What ethical and empirical reasoning can do is not to provide us with easy, one-size-fits-all answers to complex societal problems. Rather, it allows us to think about these issues in a principle-based way. So, I would like to invite everyone who has read the article up to this point to accept this invitation and form an opinion about this form of political protest and about their own moral obligations in general and also about the specific forms of protest that we are currently observing.
[1] Dworkin, R. (1985): A Matter of Principle, Cambridge, MA: Harvard University Press, Ch. 4.
[2] Smith, W. (2004): Democracy, Deliberation and Disobedience, Res Publica.
[3] Rauch, J. (2021): The Constitution of Knowledge, A Defense of Truth, Brookings Institution Press.
[4] From a philosophical point of view, the argument that a lack of action to mitigate the climate crisis harms future generations, is subtle. As has been discussed by Parfit (1980), it is not clear how to apply the standard definition of harm to future, biologically unconceived generations, especially if the future individuals’ existence and identity depends on the present policies. See Parfit, D. (1980): Reasons and Persons, Oxford University Press.
[5] https://www.theguardian.com/environment/2022/sep/17/oil-companies-exxonmobil-chevron-shell-bp-climate-crisis
[6] Lemons J, Brown D.A (2011): Global climate change and non- violent civil disobedience. Ethics Sci Environ Polit 11:3–12.
[7] Lefkowitz (2007): On a Moral Right for Civil Disobedience. Ethics 117, 202-233.
[8] Raz, J. (1979): The Authority of Law, Oxford: Clarendon.
[9] Dillard, C. (2002): Civil Disobedience: A Case Study in Factors of Effectiveness, Society & Animals.
[10] Chenoweth, E. and M. J. Stephan (2011): Why Civil Resistance Works: The Strategic Logic of Nonviolent Conflict, New York, Columbia University Press.
[11] Wieringa (2020): Take the Front Page, Exploring Differences in the Use of Civil Disobedience and their Effects on News Coverage., Radboud University.
