(un)civil disobedience

Guy Aitchison Presses de Sciences Po (P.F.N.S.P.) | « Raisons politiques » 2018/1 N° 69 | pages 5 à 12 ISSN 1291-1941 ISBN 9782724635485 Article disponible en ligne à l'adresse : -------------------------------------------------------------------------------------------------------------------https://www.cairn.info/revue-raisons-politiques-2018-1-page-5.htm -------------------------------------------------------------------------------------------------------------------Pour citer cet article : -------------------------------------------------------------------------------------------------------------------Guy Aitchison, « (Un)civil Disobedience », Raisons politiques 2018/1 (N° 69), p. 5-12. DOI 10.3917/rai.069.0005 --------------------------------------------------------------------------------------------------------------------

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(UN)CIVIL DISOBEDIENCE

e appear to be living through a new era of political protest and unrest. In recent years, we have seen the proliferation and intensification of oppositional political action by groups challenging economic inequality, racist policing, immigration enforcement, austerity, war, climate change, financial oligarchy, privatisation, and corporate domination of cyberspace. The familiar methods of protest have been transformed and supplemented by new approaches appropriate to the specific historical character of these issues and making use of new digital technologies for rapid, large-scale mobilisation and new forms of online activism. This upsurge of activity has provoked renewed public controversy over what means are available to individuals and groups to pursue their aims beyond the realm of “ordinary” political activity, such as voting, lobbying representatives, party activism and public argument through the media. The papers in this special issue – from Piero Moraro, Gwilym Blunt, Candice Delmas, William Smith and Guy Aitchison – address themselves to this question. They aim to deepen our understanding of the contemporary forms of principled resistance, developing new justifications and conceptual categories and proposing suitable norms of engagement. Each of the papers focuses our attention on novel or under-theorised forms of political action, raising pressing ethical questions and touching upon controversial issues, from the systematic violation of private property rights through online “hacktivism” to the forceful deprivation of others’ liberty through “bossnapping”. In so doing, the papers rethink core assumptions about what “civility” means and what it practically entails in ways that challenge the restrictive definition of “classical” civil disobedience. At the same time, the papers aim to broaden the conceptual tool-kit in the normative analysis of dissent, offering principled arguments with which to evaluate forms of political action that are disruptive, violent, strategic, covert, forceful, disrespectful or otherwise “uncivil”.

The classical civil disobedience debate The “classical” understanding of civil disobedience – stated most influentially by John Rawls – was developed in response to a historically specific paradigm of political activism in the 1960s and 70s at a time of

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the US civil rights movement, anti-Vietnam war protests and widespread student protests against university administration. 1 At that time, the theory and practice of civil disobedience was in its relative infancy and philosophers wished to explain and defend it against the conservative charge that it is morally wrong to disobey the law and that disobedience will encourage a general breakdown in law and order. In response, liberal political philosophers were concerned to clarify what separates civil disobedience as a legitimate domain of political activity with its own norms and understandings that constrain its potentially dangerous effects and mark it out from revolutionary activity aimed at the overthrow of the state and from “ordinary” criminality in pursuit of private gain. In Rawls’s account, those who undertake civil disobedience are said to be distinguished from these categories of law-breakers by their commitment to the rule of law and the idea of a democratic constitutional regime, as demonstrated by their appeal to shared ideals of individual rights and justice, the public nature of their disobedience, their nonviolence and their willingness to accept (and even invite) legal punishment for their actions. The aim of civil disobedience was to persuade others by dramatizing one’s sincerely-felt opposition to some perceived injustice. In that sense, it was also distinct from “conscientious objection” where an individual evades the consequences of a law or administrative order on the personal grounds that it offends their moral conscience. For liberal philosophers, some combination of the aforementioned constraints were thought to qualify civil disobedience as being “civil” in the appropriate sense – that is to say, as a communicative appeal to fellow citizens animated by reciprocity and concern for the common good. The Rawlsian account in particular is structured by a set of fairly optimistic background assumptions about the nature of the political order being opposed – specifically, civil disobedience is understood as a method of contesting injustice within the context of a liberal state with functioning democratic institutions, in which citizens are broadly well-motivated in their relations towards one another, though they may at times fall short and overlook the just claims of minorities. 2 Theorists have been calling attention to the inflexibility of key elements of Rawls’s account ever since he first proposed it, with the requirements of nonviolence and acceptance of legal consequences receiving particular attention. 3

1 - Philosophical discussions of civil disobedience tend to begin with Rawls’s account in A Theory of Justice, Cambridge, Belknap Press, 1999, Ch. 6. A number of his distinguished contemporaries also considered the issue. See e.g. Hugo A. Bedau, “On Civil Disobedience”, Journal of Philosophy, 58:21, 1961, pp. 653-665; Michael Walzer, “The Obligation to Disobey”, Ethics, 77:3, 1967, pp. 163-175 and Ronald Dworkin, “Civil Disobedience”, in Ronald Dworkin, Taking Rights Seriously, Cambridge: Harvard University Press, 1978. 2 - There is some disagreement about whether Rawls’s theory was intended to apply to the contemporary US under “Jim Crow”. David Lyons argues that Rawls and other liberals were guilty of moral myopia in mischaracterising oppressive, racist states such as the US as “near just”, in “Moral Judgment, Historical Reality, and Civil Disobedience”, Philosophy and Public Affairs, 27:1, 1998, pp. 31-49. 3 - See the early intervention of Brian M. Barry in The Liberal Theory of Justice: A Critical Examination of the Principal Doctrines in A Theory of Justice by John Rawls (Oxford: Clarendon


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The classical understanding has nonetheless proven remarkably tenacious. It continues to resonate with the attitudes of many citizens, politicians, legal officials and media commentators when it comes to the understanding and assessment of contemporary protest. While it offers scant protection from violent and intrusive policing and state surveillance, the label of civil disobedience still carries a certain degree of legitimating appeal and moral authority in liberal societies that other terms – such as “direct action” or “resistance” – lack. This is in large part thanks to the strong association of civil disobedience in the popular imagination with esteemed historical figures, such as Gandhi, Rosa Parks and Martin Luther King. Arguably, the real-life militancy of these figures has been downplayed and ignored so that they can be retrospectively assimilated into a sanitised narrative of moral progress. 4 The legitimacy of today’s resistance movements is much more contested. In recent philosophical discussion, then, there have been attempts to systematically revise different aspects of the classical understanding to accommodate a broader range of unlawful political activities and modes of engagement.

The new civil disobedience debate The “new” civil disobedience debate starts with a degree of sympathy towards some of the most prominent political movements of the past few decades, such as the environmental, alter-globalisation and animal rights movements, which frequently employ disruptive, confrontational tactics. Setting aside the language of liberal constitutionalism, these movements often frame their demands as a radical rejection of existing political institutions and of the prevailing (neo)liberal capitalist order. In an important study, Kimberley Brownlee sets out an account of civil disobedience as a form of conscientiouslymotivated dialogic protest; an understanding that imposes certain process-related constraints on political action, but with no strict assumption of nonviolence, say, or that activists should invite legal punishment, in advance of the specific context involved. 5 Recent contributions tend to place much less weight on legality and the presumptive obligation to obey the law. They have stressed the democratic role political law-breaking plays as a response to the defects of formal constitutional procedures in contrast to the classical liberal emphasis on the defence of individual rights where illegal protest is seen as a check on the power of political

Press, 1973) and also Peter Singer, “Disobedience as a Plea for Reconsideration” (in Hugo A. Bedau (ed.), Civil Disobedience in Focus, London: Routledge, 1991, pp. 189-211). Notably, an earlier account by Hugo Bedau was more permissive in viewing disobedience as a means to “frustrate” the law: Hugo A. Bedeau, “On Civil Disobedience”, p. 658. 4 - See e.g. Marc Stears, Demanding Democracy: American Radicals in Search of a New Politics, Princeton: Princeton University Press, 2010. Strikingly, very few of the political activities that these exemplary practitioners are known for fit the classical definition of civil disobedience, Candice Delmas, “Civil Disobedience”, Philosophy Compass, 11:11, 2016, pp. 681-691. 5 - Kimberley Brownlee, Conscience and Conviction: The Case for Civil Disobedience, Oxford: Oxford University Press, 2012.

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majorities. According to these democracy-based accounts, disobedience is understood as a means to bring marginalized arguments into the public sphere and enhance the breadth and quality of democratic deliberation. 6 Some theorists drop the term “civil” entirely and talk instead of “democratic disobedience”. 7 Running parallel to this debate has been the “activist” challenge to deliberative democratic theory, which notes how formal constraints on political communication may disempower less privileged social constituencies and which seeks to redeem disruptive, confrontational forms of social movement activism as a legitimate form of democratic empowerment. 8 In its radical form, the democratic conception encompasses an expansive range of activities that exceed merely symbolic forms of engagement, extending to acts of coercion and violence that involve militant confrontation with the authorities. For Robin Celikates, civil disobedience has an unpredictable, boundless character, which eschews domestication and which must undergo constant transformation to maintain its potency. 9 Under this definition, even violent forms of militancy would count as civil disobedience. Reflecting on recent contributions, William Scheuermann identifies an “anti-legal turn” which unduly departs from the interpretation King and other gave to civil disobedience as a form of internal critique; one which acknowledges the need to be bound by a shared, mutual structure of rules and obligations. 10 Yet whatever one thinks about the expectation of deference to the law, there is good reason to think that the category of civil disobedience has had a lot packed into it in recent discussions – perhaps more than it can accommodate. The case for investigating other forms of principled resistance is compelling.

(Un)civil disobedience The recent literature, then, has tended to maintain a focus on civil disobedience as the over-arching category with which to understand and evaluate oppositional politics, while seeking to loosen the prescriptive straight-jacket of classical conceptions. Moraro’s paper adopts a comparable approach in this special issue, arguing that conduct which at first sight seems militant can nonetheless be accommodated within the conventional notion of civil disobedience as a constrained communicative exercise. Meanwhile, the papers of Smith,

6 - William Smith, Civil Disobedience and Deliberative Democracy, London: Routledge, 2013. 7 - Daniel Markovits, “Democratic Disobedience”, Yale Law Journal, 114, 2004. 8 - See Iris Marion Young, “Activist Challenges to Deliberative Democracy”, Political Theory, 29:5, 2001, pp. 670-690; John Medearis, “Social movements and deliberative democratic theory”, British journal of political science, 35:1, 2005, pp. 53-75. 9 - Robin Celikates, “Rethinking Civil Disobedience as a Practice of Contestation†Beyond the Liberal Paradigm”, Constellations, 23:1, 2016, pp. 37-45. 10 - William E. Scheuerman, “Recent Theories of Civil Disobedience: An Anti?Legal Turn?”, Journal of Political Philosophy, 23:4, 2015, pp. 427-449.


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Aitchison and Delmas argue for alternative or supplementary categories. Some of these (such as “direct action” and “nonviolent action”) may be familiar, while others (such as “guerilla communication” and “electronic humanitarianism”) are more novel proposals. The papers suggest that no single, authoritative model can make sense of the array of different types of political engagement that take place beyond the realm of ordinary politics. Indeed, some of the activities discussed in this special issue – most notably Blunt’s discussion of “illegal immigration” – are not conventionally thought of as being a form of political resistance at all. A further characteristic the papers share is that they are broadly “bottom-up” in their approach, beginning from the messy, complex terrain of real politics. The papers proceed in a way that is sensitive to the practical obstacles and strategic pressures faced by activists in confronting injustice, while nonetheless affirming a role for normative principles in guiding and evaluating conduct. Delmas helpfully summarises this type of approach as one that aspires to be “phenomenologically accurate” and “politically useful”, while at the same time being open to the justification of political practices that the state reflexively seeks to criminalise. 11 The term “civility” calls to mind the ancient ideal of the “cives”, or city, as a political community and the traditional liberal model of civil disobedience implicitly addressed itself to citizens of a state who, while they may have suffered from the denial of rights, were not fundamentally “outsiders” whose very physical presence was in dispute. The recent humanitarian crisis at the borders of Europe however has focused attention on the countless acts of defiance practiced by those attempting to overcome the violence and coercion of immigration enforcement to secure a minimally decent life for themselves. In his contribution, Gwilym Blunt mounts an argument for seeing “illegal” economic migration as a form of justified political resistance to global poverty. Blunt starts from a cosmopolitan perspective, but does not rest his argument on a universal right to freedom of movement, as some theorists have defended. 12 Instead, he builds a case for migration-as-resistance based on a comparison with the case of fugitive slaves in the antebellum south in the US. There are important differences of course, but in the case of both slavery and global poverty, Blunt argues, people were subject to a system of domination that is durable over time and from which there is the possibility of exit. Those who escape poverty across borders have a right to do so, says Blunt, with this right being an instantiation of a more general human right to resistance. The main obstacle to seeing illegal immigration as a form of political resistance is that it is usually done covertly and there need be no accompanying efforts by migrants to change the law through campaigning and public argument.

11 - Candice Delmas, “Is Hacktivism the New Civil Disobedience?”, Raisons Politiques, 69:1, 2018, p. 64. 12 - See Javier Hidalgo, “Resistance to Unjust Immigration Restrictions”, Journal of Political Philosophy, 23:4, 2015, pp. 450-470.

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Drawing on the work of the anthropologist James Scott, however, Blunt notes that while some forms of resistance are justice-seeking, others are “infrapolitical” and aim to escape injustice. Document téléchargé depuis www.cairn.info - Institut d'Etudes Politiques de Paris - - 193.54.67.91 - 09/04/2018 18h19. © Presses de Sciences Po (P.F.N.S.P.)

Candice Delmas’s paper offers a lucid overview of the varieties of electronic resistance – or “hacktivism” – and examines some of their ethical implications. A number of sympathetic commentators have argued that Edward Snowden’s release of classified documents, file-sharing, DDOS attacks, and other principled forms of online action, can be understood as a form of electronic civil disobedience in the Rawlsian mould. 13 Delmas disputes this approach. The “standard electronic civil disobedience approach”, she argues, in insufficiently sensitive to the particularities of the online world and risks holding hacktivism to a demanding set of normative standards that it cannot meet. The alternative, more inclusive conception of electronic civil disobedience, as proposed by Robin Celikates, is better able to accommodate hacktivist activity. However, for Delams, it over-stretches the category of civil disobedience and misses how many hacktivist actions purposefully reject the conventional “script” of civility. Instead of trying to make hacktivism fit this earlier paradigm, Delmas proposes a typology of electronic resistance made up of five categories that are “attentive to the many shapes and goals of hacktivism”. 14 This includes: i) “vigilantism” in which hacktivists take the law into their own hands to punish wrongdoing; ii) “whistleblowing” which involves the intentional exposure of questionable institutional conduct; iii) “guerrilla communication” which involves the symbolic – often artistic – disruption of dominant systems of representation; iv) “electronic humanitarianism” where hacktivists provide software and assistance to human rights activists and v) “electronic civil disobedience”, which involves principled, unlawful action online that broadcasts some perceived wrong or injustice. The latter category of electronic civil disobedience is more limited than previously thought, for Delmas, though it includes actions by the Open Access Movement, championed by Aaron Swartz, which promotes free access to research in violation of copyright and licensing restrictions. Aitchison’s paper examines the nature and ethics of coercive “nonviolent action”, which refers to a broad range of protests, interventions and acts of disobedience intended to undermine the power of adversaries and pressure them to change course. Theorists have tended to assimilate the concept of non-violent action into discussions of civil disobedience, losing its distinctive character. Moreover, despite the ostensible use of compulsion involved in such methods as strikes and mass noncompliance, some of the most prominent practitioners of nonviolent action – most notably Mahatma Gandhi – have maintained that their methods rely solely upon an appeal to conscience. The

13 - See e.g. William E. Scheuerman, “Whistleblowing as Civil Disobedience: The Case of Edward Snowden”, Philosophy & Social Criticism, 40:7, 2014, pp. 609-628. 14 - Candice Delmas, “Is Hacktivism the New Civil Disobedience?”, p. 64.


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paper critically interrogates Gandhi’s influential understanding of nonviolent action – or “satyagraha’ – as a method that converts opponents through the loving, purifying force of innocent self-suffering and an argument by Vinit Haksar that nonviolent action does not count as coercive so long as its aims are morally justified. The paper sets out a principled theoretical justification for the use of forceful and cost-levying methods not only in authoritarian regimes, but in democratic and semi-democratic societies. Drawing on a republican – or neo-republican – understanding of democracy as a means of controlling power relations, Aitchison contends that more coercive, confrontational methods are a legitimate means to counter forms of political domination that are severe (threatening the rights, opportunities and life chances of some group or future group of persons) and entrenched (distorting the conditions under which reason holds sway). William Smith’s paper confronts a similar problem – of how to justify non-communicative forms of law-breaking – though in this case through the lens of the concept of “direct action”. While the term is popular among radical social movements – especially environmental activists – it has again received little sustained attention in political philosophy. The practice of direct action aims to stop some perceived wrong directly, rather than calling upon government or one’s fellow citizens to change the law. As Smith notes, direct action therefore poses difficulties for common understandings of democratic citizenship, since it appears to bypass ordinary processes of dialogue and persuasion in the public sphere. Many forms of political action could be categorized as both an instance of direct action and nonviolent action, though notably direct action does not explicitly eschew violence. Another key difference lies in the fact that in the political imaginary of its practitioners, direct action often appeals to the idea of ignoring the authorities entirely, and not simply leveraging pressure against them, reflecting its association with an anti-statist philosophy of self-reliance found in the anarchist tradition. 15 Smith argues that a moral case can be given for direct action, though he suggests that it is more difficult to justify than communicative civil disobedience and he proposes a set of regulative principles for its use. Smith argues for adopting an “ethic of responsibility”, which involves only using direct action where necessary and avoiding violence and coercion insofar as that is possible. Intriguingly, Smith also notes that direct action is nearly always carried out as part of a broader network of opinion united by a shared political agenda. He therefore proposes that those who deploy it should conduct themselves so as to “not significantly undermine the gradual advancement of that agenda in the public sphere”, which would rule out reckless actions that undermine public support for an issue over time. 16

15 - David Graeber, Direct Action: An Ethnography, Oakland, AK press, 2009. 16 - William Smith, “Disruptive Democracy: The Ethics of Direct Action”, Raisons politiques, 69:1, 2018, p. 17.

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In his contribution, Piero Moraro argues that, under certain circumstances, “bosnapping” can be understood as a form of civil disobedience. The activity of bossnapping involves workers taking a recalcitrant employer hostage so as to compel them to address the workers’ grievances, as happened in several dramatic cases in the French aviation industry in recent years in response to the threat of large-scale redundancies. On the face of it, such actions would seem to fall foul of the idea of “civility”, involving as they do a not insignificant intrusion into the rights and freedoms of employers. However, Moraro contends that bossnapping can be counted as a form of civil disobedience where it involves a sincere effort at engaging employers with the demands of workers. This is because a distinguishing feature of civil disobedience, for Moraro, is not so much its rejection of force, but its attempt to involve others in a communicative exchange. The argument rests on a distinctive Kantian understanding of civility as respect for the overall autonomy of others without necessarily having to respect their freedom in every specific instance. It is thus possible, for Moraro, to force someone into having a debate with you without violating their autonomy and their capacity to make independent political choices. Suitably constrained acts of bossnapping, which renounce harsh and dehumanising treatment, can thus be thought of as civil (though whether such actions are justified is a separate question for Moraro who distinguishes the definition of civil disobedience from the justification of it use). In sum, the collection of papers in this special issue offer framing concepts and normative analyses appropriate to the changing, real-world practice of oppositional politics. They challenge us to reconsider the normative character of civility and what constraints (if any) it places on political action, opening up new productive lines of inquiry in thinking about dissent. Taken together, the papers in this special collection offer a timely and indispensable resource with which to understand and evaluate contemporary practices of protest and resistance. Guy Aitchison


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