Democracy and Civil Disobedience at Law & Society Blog

Democracy and Civil Disobedience

Published by Brian Berkey September 5th, 2006 in Philosophy, Law and Society

In this post over at Philosophy, et cetera Richard Chappell suggets that in liberal democratic societies civil disobedience may never be morally acceptable. He says of radical activists (including those involved in the actions described here, whose tactics seem to have played a role in motivating his post):

These dogmatists feel so assured of the infallibility of their moral opinions that they’re willing to coercively impose them on others. This implies a startling disrespect for one’s fellow citizens. If you’re really in the moral right, then you ought to be able to persuade your fellow citizens of this, and hence get the needed reforms implemented through legitimate democratic processes. Hence, if you can’t succeed democratically, perhaps it’s just as well…

Now surely Richard is right that many radical activists are excessively self-assured in their views, and tend to be unwilling to seriously and honestly consider the possibility that they might be wrong (I discuss some reasons why this might be the case, in particular among student activists, in my very first post on my blog). And it seems reasonable to think that the activists involved in the animal rights action described in the above link fall into this category; let me be clear that I strongly disapprove of their tactics, given the totality of the circumstances surrounding their actions, despite the fact that I tend to agree with their motivating belief that nonhuman animals’ suffering ought to be given much more weight than it currently is in our society’s moral consciousness.

But it seems also to be the case that even in societies that can reasonably be considered democratic, it is false that, “If you’re really in the moral right, then you ought to be able to persuade your fellow citizens of this.” Just as radical activists tend to have an inflated degree of confidence in their views, so the general public tends to have an inflated degree of confidence in prevailing views on the very same moral issues that motivate radical activism (and others besides). Indeed, radical activists are often motivated to engage in civil disobedience out of (often legitimate) frustration with attempts to convince others of the importance of their cause. Animal rights activists, for example, are often portrayed by the media as out of control vigilantes (the above link shows that this characterization isn’t always wrong), even though most surely aren’t, and this is one reason that most Americans tend to be not just uninterested, but hostile to animal rights claims, despite the fact that the arguments in favor of greater moral consideration for animals are quite strong. The strength of the arguments for a cause, at least in some cases, does not mean that there is much chance that the public can be convinced that the cause is just.

Of course the fact that a cause is just, along with the fact that the public cannot be convinced of this, does not necessarily mean that advocacy of the cause through civil disobedience is morally acceptable. In many cases, including the above animal rights case, civil disobedience will be counterproductive, at least in the long run (for example, these tactics make it even less likely that the public at large will take seriously the case for animal rights). In other cases the injustice is simply not serious enough to justify attempting to rectify it outside the democratic process; for surely there are strong reasons not to engage in civil disobedience in a liberal democratic society that do not exist in non-democratic societies. I simply maintain that these reasons can, at least in principle, be overridden by the reasons provided by severe enough injustices to do whatever one can to rectify them. Richard seems to disagree:

What if one lived in a society that overwhelmingly endorsed slavery? Would it be wrong to “illegally” help slaves break free? That might seem a tough bullet to bite, but I think there is some plausibility to the idea that - even then - one would do better to work through legitimate channels (if such exist). Changing public opinion would have more significant long-term effects than isolated lawbreaking in any case, so could be preferred even on fairly crude utilitarian grounds (so long as such efforts are sufficiently likely to succeed). And again, we need to factor in our own fallibility: it’s not entirely obvious that in such a situation we would have sufficient epistemic justification for our anti-slavery beliefs to warrant coercive action on their basis.

Of course Richard is right that changing public opinion, if one could succeed in doing so, would be much better in the long run than whatever benefits would be obtained through civil disobedience (assuming that such civil disobedience would not itself be a factor in changing the public’s collective mind about an issue, which can surely happen - Rosa Parks’ courageous act of protest on a Montgomery bus is a clear and powerful example). But for many activists changing public opinion is simply not an attainable goal, especially in societies that, though democratic, have poor standards of public debate, or worse, have a public debate that is largely controlled by pro status quo forces that own nearly all of the media, such as is largely the case in the U.S. (though the internet has, I think, improved the situation overall, despite the fact that it has given rise to problems of its own). When one knows that she has no chance of affecting public opinion or government policy, and passionately believes in a cause, what is she to do?

Richard suggests that she should do nothing, since one can never be sure that she has “sufficient epistemic justification” for her beliefs to “warrant coercive action.” Even in a society in which slavery is widely accepted, perhaps it is better to simply defer to the majority on policy until such time as prevailing views change (if they ever do), since we are all fallible and could, for all we know, be mistaken in opposing slavery. Though I think this view is actually more plausible than it may initially appear (after all, we are all fallible, and there are very strong, though overridable, reasons not to engage in civil disobedience in liberal democratic societies), there are problems, particularly in the case of slavery. First, it seems to me that any society in which slavery is legal cannot legitimately be called a liberal democracy. Without going into the details of what makes a society democratic (this would make an already too long post much longer), it seems clear that simply having elections is far from sufficient; legitimate liberal democracies must protect certain individual rights, and allowing slavery certainly violates this requirement. We can even imagine that slaves are given the right to vote, but because they are outnumbered by pro-slavery citizens, their favored (anti-slavery) candidates inevitably lose elections, and so they are condemned to their lives as slaves against their will by the very democratic process that Richard suggests makes civil disobedience necessarily unjustified.

Furthermore, if we accept that our fallibilty with respect to our anti-slavery beliefs means that we should not engage in civil disobedience in order to free slaves, then we ought to be at least as skeptical of our committment to democracy. And if we allow that this sort of radical skepticism should undermine the reasons that we take ourselves to have to work to free slaves by (just about) any means necessary, then it will also undermine the reasons provided by the existence of democratic institutions not to engage in civil disobedience. And then it seems that many of the reasons that we ordinarily take to be legitimate guiding forces for our actions will lose their force. From this state of radical skepticism about our own most strongly held moral beliefs, it seems that conservatism about civil disobedience is just as arbitrary as endorsement of radical activism. We cannot, from this position, either endorse or condemn civil disobedience to free slaves or for any other cause. If we give up the reasons for civil disobedience provided by our anti-slavery convictions due to an acknowledgment of our fallibility, we give up the reasons against that same civil disobedience in the process, and are left without much to say on the subject.

In a comment in the thread for Richard’s post, he gives the following principle that he says underlies his position (along with others that are not as troubling):

The Epistemic principle: No matter how awful X seems to you, if you can’t rationally convince your fellow citizens then you’re probably wrong about it, and so have no business engaging in coercion.

This principle seems to me not just false, but obviously false, and beyond that, dangerous. In effect it is the claim that prevailing views on all issues are likely to be correct, so long as those prevailing views are sufficiently resistent to criticism. But throughout history many of the views that were the most deeply entrenched and resistent to criticism have been ones that we now consider obviously wrong (e.g. slavery is morally acceptable, women should not be treated equally to men, etc…). The fact that one cannot “rationally convince her fellow citizens” of a view is, I think, not much of a reason (if it is a reason at all) to think that she is wrong in her belief.

Finally, Richard treats the democracy condition, which he takes to be a defeater for any claim to the legitimacy of civil disobedience, as an all or nothing matter. Either a society is a liberal democracy or it is not. I’m inclined to think, however, that societies can be more or less democratic, and that this can affect the legitimacy of civil disobedience. For example, a society with publicly financed elections, proportional representation, a multi-party system, and a diverse media that provides outlets for a variety of views on important social, political, and ethical matters, should be considered more democratic than a society like the United States, in which politicians can easily be bought, elections are an all or nothing matter dominated by two parties that don’t differ much on many key issues, and the media is heavily consolidated and managed by pro status quo forces. In societies that are democratic to a lesser extent, the reasons provided by democracy not to engage in civil disobedience are, I think, more easily overridden, though they still possess significant force.

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9 Responses to “Democracy and Civil Disobedience”

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1 Patrick S. O'Donnell Sep 5th, 2006 at 5:51 am

Brian,

I agree with most if not all of your comment here in response to Chappell’s post but I’ll have to reserve the right to comment later when I find more time (and I haven’t read the comments thread). Let me say for now I think we should be clear as to what civil disobedience means, as there are various conceptions ‘out there,’ some of them quite disparate in formulation and effect. I’m not at all convinced that the actions (as described in the link) of the animal liberations activists would properly qualify as CIVIL disobedience according to most conceptions, some of which, for instance ‘the Gandhian,’ are quite demanding as regards the behavior of the individual or group engaged in the selected nonviolent violation of a law or laws. I recall a compilation by Hugo Adam Bedau (several decades ago) that helped illustrate the various moral and political reasons that might be used to justify civil disobedience in a would-be democratic polity, and I’m trying to track down a publication on this topic by the Center for the Study of Democratic Institutions (founded by Robert Maynard Hutchins), which was based in Santa Barbara from 1958-1987. I know there are some recent publications on this subject but I’ve yet to read them.

So, for now, let me say how much I appreciate your articulate response to Chappell’s thoughts on this topic (which strike me as not well thought-out), and I hope to chime in later about the theory and praxis of civil disobedience.
2 Patrick S. O'Donnell Sep 5th, 2006 at 7:29 am

Now that I’ve had my first cup of tea I recall that we might also discuss John Rawls’ sketch of a theory of civil disobedience in A Theory of Justice (1971; I don’t have access at the moment to the revised edition), pp. 363-391.
3 Alex Gregory Sep 6th, 2006 at 3:40 am

“it seems to me that any society in which slavery is legal cannot legitimately be called a liberal democracy. Without going into the details of what makes a society democratic (this would make an already too long post much longer), it seems clear that simply having elections is far from sufficient; legitimate liberal democracies must protect certain individual rights, and allowing slavery certainly violates this requirement.”
“Finally, Richard treats the democracy condition, which he takes to be a defeater for any claim to the legitimacy of civil disobedience, as an all or nothing matter. Either a society is a liberal democracy or it is not. I’m inclined to think, however, that societies can be more or less democratic, and that this can affect the legitimacy of civil disobedience.”

Much as I stated in the comments to Richard’s post, I think this is the key issue. If protestors are demonstrating against what they see as flaws in the kind of democracy that we live in, you can’t condemn them for failing to use those same democratic processes.

That’s not to say that there aren’t other reasons against direct action, but that I think you can’t decisely object to it on the basis that such opinions should be raised through democratic means.
4 Ben Samuel Nelson Sep 6th, 2006 at 10:12 pm

I agree with your dismissal of the “epistemic principle”, mostly because the clause “because you’re probably wrong about it” is dubious. However, in all fairness, once you eliminate that, we are left with something that liberal democracies would seem to endorse by design. As you pointed out, the strength of liberal democracy is that it provides a civil outlet for moral disagreement so that *coercion* is not necessary.

Patrick addressed the manner of disobedience, and how it may not in fact be civil at all. That was my first thought, too. But you touched on another powerful argument which deserves emphasis: the *content* behind the disobedience is extremely important as well. Animal rights are an interesting new subject, but unlike issues re: slavery, universal suffrage, gay marriage, etc., issues of animal rights are not interpretations of a liberal democracy’s demands. Rather, they are accretions, tangeants. That makes both a moral and political difference. Moral leeway might be granted to the one more than the other.
5 Brian Berkey Sep 6th, 2006 at 10:14 pm

Patrick,

You say that the actions of the animal rights activists might not count as CIVIL disobedience because some conceptions of what civil disobedience is are quite demanding. Those who use the term ‘civil disobedience’ in this way, however, seem to be attempting to define it in a way such that the acts that qualify will always be morally acceptable; I, on the other hand, purposely define the term broadly, to include any law-breaking activity intended to further a political or social cause, in order to answer the question posed by Richard, namely whether civil disobedience is ever morally justified. If we accept the meaning that you suggest, the question seems not to arise, and this shouldn’t be surprising because men like Gandhi often simply assume that breaking the law can be justified if the law is sufficiently unjust. The question for these people seems to be what forms of resistance to unjust laws are acceptable, since they assume that at least sometimes some form of resistance will be justified.

Someone like Gandhi might also define ‘civil disobedience’ in a way that specifies certain types of acts in resistance to an existing law, without assuming that such acts will always be justified. For example, nonviolent resistance that causes a certain amount of disruption might always count as civil disobedience, and might be unjustified in cases in which the injustice of the law is less significant than the amount of disruption caused by the protest (imagine a massive protest of jaywalking laws which themselves are nothing but a minor nuisance). If we define ‘civil disobedience’ in this way, however, it’s not clear why we’re excluding certain act-types while including others, because some acts of the included types will be unjustified in at least some cases. The only reason this might seem useful is if we think that there are what Scheffler calls “agent-centered restrictions” that make certain act-types always impermissible, and I find this view quite implausible. And if we reject agent-centered restrictions, then debates over the definition are essentially irrelevant.
6 Patrick S. O'Donnell Sep 7th, 2006 at 12:01 am

I’ll be commenting at length on these issues at a later date. Let me say for now that I think we might come up with a normative theory (one that proffers a moral justification) of civil disobedience for a democratic polity, like Rawls, and that such a theory would exclude the actions by these animal rights activists as falling under its characterization of what counts as civil disobedience. There is a whole spectrum of actions within the categories of ‘nonviolent resistance,’ ‘nonviolent non-cooperation,’ or, even wider, political resistance or rebellion (which is not necessarily nonviolent), that are beyond civil disobedience proper and within which at least some of the actions of these activists might be better described or understood. We can certainly address the question of whether civil disobedience is ever ‘morally justified’ without expanding its meaning in a manner that makes it quite different from existing conceptions that have emerged in conjunction with famous exemplary instances of civil disobedience that occurred, for example, with the civil rights movement and in opposition to the Vietnam War. The problem with a ‘broad definition’ of civil disobedience is that it is not clear in which respect it any longer deserves the adjective ‘civil’ if the actions are such that laws are broken with impunity, if the activists’ lawbreaking is secret, covert, conspiratorial and so on in a manner evidencing a disrespect of, or disregard for, the legal system and a correlative contempt for the principles and procedures of liberal constitutionalism. Indeed, such actions may disrespect majority rule in a way that is subversive of the principles and practices of democracy. Indeed, such actions show a reckless disregard of the principles of justice in a democratic polity. Such actions may encourage further lawbreaking, violence or political chaos so as to undermine the rule of constitutional law, so as to weaken the strength and effectiveness of constitutionally mandated democratic procedures, or infringe on the equal liberties of others. I happen to think these activists have given very little thought to whether or not their actions are within the umbrella of civil disobedience, believing rather that such theoretical, moral and political niceties are subordinated to ends or goals understood to trump any such considerations, or at any rate, render them irrelevant. To this extent, their moral self-righteousness is indeed dangerous. Of course some forms of resistance are justified, but I think it helps to confine ourselves to those forms justified within a democratic polity, which is the situation in this instance, and to recall that we were speaking about civil disobedience, not forms of resistance in general, which is a far wider category (so we might attempt to clarify the distinction here).

Being a vegetarian for over thirty years and having studied and lectured on animal ethics, rights and law (in fact I assembled a rather large bibliography on this topic that was first circulated at Leiter Reports), you can imagine where my sympathies in the first instance lie. Yet I think the actions of these activists are ill-considered, and consequentially speaking, hurt rather than help the animal rights movement in the long term, alienating potential converts to the cause with their manner of lawbreaking rather than winning over the hearts and minds of members of the majority to a cause with substantial and urgent moral merit.

Ben hits upon a point congenial to discussions by Rawls and Dworkin on this topic, namely, that the moral content behind the logic of animal rights’ activism is not about proper application or extension of equal liberties or opportunities (’liberal democracy’s demands’) but rather about recognizing the moral principles and values of a minority within the polity on a subject about which there is substantial moral disagreement (if not about the ends, then at least about the means enlisted toward those ends). So while the majority may identify or sympathize with some of the moral intuitions, beliefs or principles of animal rights activists, they may be opposed to the manner whereby the minority has set about to gain recognition of such intuitions, beliefs or principles, if only because it sets poor precedent for how to address and resolve questions of moral difference or the pluralism of moral values.

I’m not quite sure what you’re trying to say in the second paragraph above Brian, but that may be because my ignorance or obtuseness is fatally interfering with proper comprehension.

Again, if you don’t mind waiting, I hope to speak more in-depth on this subject a bit later.
7 Brian Berkey Sep 7th, 2006 at 12:43 am

Patrick,

I basically agree with both your general sympathy for the animal rights cause and your analysis of why the actions of the activists in question were more damaging than helpful to that cause. With regard to your use of the term ‘civil disobedience’, I’m fine with drawing the distinction the way you have suggested, but I think that drawing it this way leaves us with at least two important questions, the second of which might seem to some not to be an open question at all. The first is the one that I attempted to raise in my initial post: under what circumstances is civil disobedience morally justified in a democratic society. The second is: under what circumstances is NON-civil disobedience justified in a democratic society. One advantage of my use of ‘civil disobedience’ is that it avoids the need to ask this second question, though upon reflection I can see how this usage would also obscure some important issues and distinctions.

The second question is, I think, an open one given your terminology because it is possible for democratic societies to enact extremely unjust laws, and also to create circumstances in which any action that would count as ‘civil’ on your definition would be ineffective in terms of remedying the injustice. Now it might turn out that even when this is the case, non-civil disobedience is never justified. But it certainly does not seem obvious to me that this is the case.
8 Patrick S. O'Donnell Sep 7th, 2006 at 5:21 am

Briefly and Quickly: I will endeavor to give at least rough, preliminary answers to both questions anon. Several existing theories of civil disobedience address the first question (moral justification of CD). I absolutely agree that ‘it is possible for democratic societies to enact extremely unjust laws’ (indeed, contemplation of this possibility goes back to Plato and Socrates) although I think ‘extremely unjust’ laws in democratic societies (admitting that they’re of varying degree with regard to the appellation ‘democratic’) are very rare. I also think non-civil disobedience may be theoretically justified on those rare occasions insofar as the injustice amounts to egregious, widespread if not systematic violations of basic principles of democratic or liberal (constitutional: written or unwritten) justice and a political judgement is made to the effect that civil disobedience, even on a mass scale, is likely to have no effect whatsoever on the powers-that-be. I’m assuming the actors making such a determination are committed to democratic principles and practices. Other forms of nonviolent resistance (and they are many: see the extremely important work of Gene Sharp) could then be adopted. I’m not sure I would want to come up with a justification for violent rebellion or revolt in a regime with at least a nominal commitment to democracy and the rule of law or that has in place a liberal ‘constitution’ (written or not), although I’m sure others might have at least plausible reasons for formulating an apologia for the resort to violence.
9 Richard Oct 17th, 2006 at 6:41 am

“In effect it is the claim that prevailing views on all issues are likely to be correct, so long as those prevailing views are sufficiently resistent to criticism. But throughout history many of the views that were the most deeply entrenched and resistent to criticism have been ones that we now consider obviously wrong”

I’m not sure what the counterargument here is meant to be. Obviously mainstream views CAN be wrong, I wouldn’t dream of denying that. I’m merely claiming that an unconvincing radical minority is EVEN MORE likely to be wrong. Pointing to a couple of examples of past mainstream mistakes doesn’t speak to this comparative probabilistic question at all. (Just think of all the mistaken vigilantes I could point to in response!)

(It’s also worth noting that my past post was mainly focused on uncivil disobedience. I’m sympathetic to most of Patrick’s comments, except the claim that my post was “not well thought-out”!)

In any case, I develop and explore the epistemic argument in further detail here…

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