This is an informal introduction to an extended essay I am considering. Ever since I heard Professor T R S Allan’s lecture in favour of a theory for civil disobedience during his Jurisprudence course at Cambridge, the thought has been recurring to me that we need a different, stronger definition of “civil disobedience” to ensure that we can have the theoretical justification we need to fight for real change. We see injustice form the government, from corporations and from Parliament so frequently, and our ability to challenge them is so limited, that I felt that a discussion on the subject was somewhat overdue. Please let me know your thoughts. I have avoided formal and academic formatting for the purposes of simplicity: forgive me.
Broadly, civil disobedience can be defined as a purposive and conscientious refusal to obey the laws or regulations of one’s jurisdiction. Unlike what might be described as ordinary criminality or disorder, the intent for this type of activity is highly specific: the intention is to serve the purpose of demonstrating against, or highlighting, perceived injustice within the legal or executive system of the jurisdiction in question. Notable examples historically include the civil rights movement in the USA, and the approaches Ghandi undertook in the Indian independence movement. Although strictly these acts are illegal in the sense that they infringe upon a legitimate and recognized law or regulation, they are considered in a quite distinct manner jurisprudentially by virtue of either their moral or constitutional import. They serve to highlight the very nature of what “legitimizes” the morally questionable laws they are bringing to question.
Although they differ in accordance with each writer’s own perspective of the larger themes discussed, definitions of civil disobedience as a jurisprudential concept tend to be unified by a few recurring criteria. The act(s) must be conscientious, with some moral or constitutional principle in mind. They must be public, in the sense that the acts must be part of an open demonstration; or at least they must attract or be in support of a matter of public interest. Finally, almost all definitions of justifiable civil disobedience circumscribe the nature of the act(s) committed: they must be non-violent, and those committing them must be willing to accept the legitimate sanctions for the act(s) committed.
It is not intended here to analyse with any great depth the various theories in question (Thoreau, Raz, etc). Rather, my intention here is to introduce the possibility of an alternative theory which would obviate the need for non-violence or subservience to the sanctions imposed for acts committed within the scope of justified civil disobedience.
In general terms, the reasons why acts of civil disobedience must be non-violent include the following. Violence undermines the moral legitimacy of the acts. The constitutional and legal order of the country cannot in any way condone behaviour which threatens mass disorder or riot. Violence is incommensurate with the aims and purposes of civil disobedience. Public order is itself a moral good which should be maintained and respected, and so acts of civil disobedience could only be permissible when they respect this. Condoning acts which could cause harm to individuals, irrespective of these victims’ moral culpability, cannot be allowed under the rule of law.
These traditionally have been considered sound and worthy justifications for limiting the definitions of civil disobedience. They have rarely been considered in the literature as disproportionately onerous, for the purposes of outlining what can and cannot be permissible behaviour in accordance with the definitions above. However, it can be argued that upon a different, perhaps more nuanced conception of the purposes of civil disobedience, we can obviate the requirement for non-violence if we in turn provide a more nuanced definition of that violence which can be permissible.
By way of demonstration: approximately two million citizens of the United Kingdom protested before the invasion of Iraq in the previous decade. It was the largest protest in British history both in terms of actual size, and its size per capita of the population (larger than the Peasant’s Revolt in terms of participation per percentage of population); similarly, it was the most broadly and thoroughly covered demonstration in the media in our history, both with regard to its attendance and its reasons and motivations. Regardless the peaceful protests, war was declared in defiance of the express intentions of the populace.
Perhaps peaceful protest is not enough.
Non-violence could be a justified limitation to acts of protest and of civil disobedience (which two concepts, although legally entirely distinct, I have equated for the purposes of this introduction for the sake of simplicity). However, if we reinterpret the very reasons (mentioned above) why non-violence should be observed, we can reconsider the effectiveness of this principle.
Jurisprudence has in recent decades refined a number of workable definitions for human dignity. It is not possible to explore these here: however, in essential terms these definitions share such concepts as fundamental rights, freedom of expression, freedom of conscience, and so on. It can be argued that, given the available definitions for dignity, we can dispense with the broad requirement for non-violence in acts of civil disobedience, and use in substitution the requirement that the acts in question respect our belief in the sanctity of human dignity. If so, we can provide counterarguments to each of the aforementioned reasons why violence cannot be permissible in such circumstances.
“Violence undermines the moral legitimacy of the acts.” Perhaps: but if the acts of violence are committed against the property of arms industries, or civic buildings where morally egregious decisions are being executed, this principle becomes increasingly a matter for debate. They gain moral legitimacy in the pursuit of the defence of human dignity.
“The constitutional and legal order of the country cannot in any way condone behaviour which threatens mass disorder or riot.” It could, if our constitution recognizes principles equated with definitions of dignity, and the acts of civil disobedience are committed within and with a view to protect that dignity. If the violence was used to protect the very constitution itself, and its respect for rights and human dignity, then the refusal to condone these acts becomes paradoxical.
“Violence is incommensurate with the aims and purposes of civil disobedience.” This is not so if the acts of violence do not injure human dignity: no violence to individuals could be allowed, but criminal damage to state or corporate property might not be incommensurate given a sufficiently strong moral justification.
“Public order is itself a moral good which should be maintained and respected, and so acts of civil disobedience could only be permissible when they respect this.” This presumes that the nature of public order is always a moral good. If public order is maintained through violence, miscommunication and coercion by the state, then this maintenance of public order is incompatible with the constitution and the legal order that it is aiming to protect. If the constitution of the country recognizes principles synonymous with human dignity, then acts compatible with that doctrine, in order to preserve our freedoms, cannot be in defiance of true public order.
“Condoning acts which could cause harm to individuals, irrespective of these victims’ moral culpability, cannot be allowed under the rule of law.” Again, our definition of “violence” must change. We cannot allow human dignity, including fundamental rights of the person, to be adversely affected by acts of civil disobedience: violence against the person would be an affront to the very human dignity that the act was attempting to protect. So instead, only violence which does not threaten human dignity can be permissible according to our amended definition. Violence to property, violence in art or expression, and so forth, bring about their own constitutional and theoretical challenges. However, their affront to human freedoms (rights to property, protection from harassment etc) would have to be balanced on a public interest test in the usual manner. Further, it is far from clear that the rights a state or a corporation has to property can demonstrably equate to rights encompassed within the definition of human dignity.
From the foregoing, we can rework the concept of those acts which are acceptable within the scope of civil disobedience. Defacing, destroying or sabotaging machinery used by a company or government for unjust wars can fall within our definition. Mass violent protests, which do not aim to compromise or recklessly risk human safety, also fall within its scope. Operating outside of the prescribed police lines of protest, trespassing onto private land, even hijacking public or corporate media: it all is permissible under this new view. A new lease of life for civil disobedience could be granted.
And it is quite clear that there is a perceived need for this reinterpretation of the doctrine. We no longer expect protestors who stand quietly within permitted police cordons to achieve anything. Our machinery for political change is kept from us. It is held by the media, by the police who limit our ability to protest, by political forces beyond our control. Even the right to vote, the cornerstone of our ability to participate within our democratic political structure, is increasingly being made redundant, and is ignored, forgotten or simply derided as irrelevant to the notion of genuine political change. Peaceful participation within the current mechanism of our democracy is insufficient for us to voice our moral, political and constitutional outrage.
In the context of our current political state, non-violence is an imperfect and outdated prerequisite for the civil disobedience that we must undertake to highlight or counter the injustices we perceive in governmental and corporate irresponsibility. If we can change the operative definitions which limit those acts of civil disobedience we hope to achieve, and continue to abide by the previous requirements of publicity and conscientiousness, it is possible that we can create a jurisprudential tool which can provide the theoretical and moral justification needed to act for real change in the pursuit of human dignity.