Illegal activities that are caught are normally punished, often with good reason. Activities that are harmful to others should be deterred (Tadros, 2011). Offenders usually take advantage of others, and it is sometimes the business of the state to make sure that offenders relinquish the unfair benefits they have unjustly acquired (Dagger, 1997). The state is also in a good position to convey blame and express disapproval towards wrongdoers in our name as citizens (Duff, 2001).
Not all offenders, however, are appropriate targets of punishment. For one reason or another, one may be excused or even fully justified in breaching the law. Many have argued that civil disobedience—a deliberate breach of the law that is predominantly nonviolent, often highly restrained, typically respectful even if confrontational, and primarily communicative in expressing disapproval towards policies or political inaction and demanding political change—falls under the category of permissible law breaching (Brownlee, 2012; Celikates, 2016; Markovits, 2005; Rawls, 1999; Smith, 2013).
Accordingly, civil disobedience serves as an auxiliary mechanism to our legal system. Our democracy is imperfect at best. Individual laws may be unjust, even if the overall rule of law is worth preserving. Despite our best efforts to uphold political equality and ensure that the rights and interests of all stakeholders are taken into consideration, we make mistakes. Legal means of addressing democratic failures often work, but ocassionally they turn out to be futile or simply take too long to facilitate urgently needed political change while people continue to suffer from injustice and irreversible harm. Civil disobedience is a call for immediate action: we need racial equality now; we need climate action now; we need to end gender-based oppression now; we need to pay attention to the voices of the politically marginalised now.
It is wrong for the state to punish civil disobedients when their actions are called for. We would effectively be deterring and silencing this indispensable remedy for our democratic deficits. Moreover, these activists have taken no unfair advantage over their fellow citizens through their illegal actions. Ordinary citizens do their fair share in supporting fair and just institutions by obeying the law. Civil disobedients, in contrast, put effort into improving the institutions through their political engagement. They sacrifice their time and effort, and sometimes even risk the hostility of their fellow citizens, to make the state more just. They do more than their fair share (Moraro, 2019). It is not just that the state, through punishment, would be blaming those who are not blameworthy. The state simply lacks any standing to blame these disobedients: their actions are called for because the state fails to live up to the standards of justice and democracy.
However, a problem arises when we consider how civil disobedience works. Civil disobedience works, as I contend, as a costly social signal. To bring about the necessary political change, we must effectively allocate public attention to worthy issues. The voices of different groups and parties, worthy and unworthy, compete for this limited resource. Civil disobedience is a solution to this problem. It is a reliable indicator of the worthiness of the underlying issue it represents. Civil disobedients speak in a way those without the relevant sincerity and seriousness would be unwilling to speak. The speech is costly by being illegal and thus punished. Those with a less urgent pleading would be unwilling to incur the costs of punishment, as the gains realized through political change are not worth the costs. Those with unreasonable political proposals would also be screened out. They would be paying a hefty price just to be heard and quickly dismissed.
By refraining from punishing civil disobedience, however, the state risks rendering civil disobedience as “cheap talk.” It is no longer costly and thus unable to distinguish itself from other sorts of political noise. Those who suffer from oppression and marginalization would thus be robbed of one effective means to distinguish themselves from others, as this reliable indicator of worthy and urgent issues is neutralized. They would be left with no morally appropriate means to call attention to their plight or would have to escalate and resort to more radical means of protest should such means be morally permissible (Delmas, 2018; Lai, 2019). Disturbingly, by attempting to adhere to the apparent demands of justice regarding punishing civil disobedience, the state would effectively silence the oppressed and marginalized.
Maybe civil disobedience works merely by capturing attention through its illegality and disruptive nature; or maybe it is costly (and thus reliable) only because of the brutal arrests, the burdensome trials, and the hefty fines. Regarding the former, it is dubious whether merely forcing others to listen works without also demonstrating relevant sincerity and seriousness; otherwise, advertisement bombardment would be more effective than it actually is. Regarding the latter, brutal arrests and burdensome trials are by no means morally innocuous. These unjustified acts are not solutions because, well, they are unjustified. Fines, on the other hand, can be sponsored or crowdfunded. The commodification of civil disobedience is highly undesirable because neither “pay to protest” nor “being paid to protest” helps to demonstrate the sincerity and seriousness of protestors.
Overall, (Houston) we have a problem. It is unjust to punish civil disobedience when the latter is called for, but not punishing civil disobedience risks rendering civil disobedience useless. This is because civil disobedience is reliable because it is costly and costly because it is punished. Civil disobedience leverages punitive injustice to amplify its illocutionary force, and by taking away the punishment civil disobedience is cheap, no longer perceived as reliable, and thus useless.
Read the full article at https://journals.publishing.umich.edu/ergo/article/id/1137/
- Brownlee, K. (2012). Conscience and conviction: The case for civil disobedience. Oxford University Press.
- Celikates, R. (2016). “Rethinking civil disobedience as a practice of contestation—Beyond the liberal paradigm”. Constellations, 23(1), 37–45.
- Dagger, R. (1997). Civic virtues: Rights, citizenship, and republican liberalism. Oxford University Press.
- Delmas, C. (2018). A Duty to Resist: When Disobedience Should Be Uncivil. Oxford University Press.
- Duff, A. (2001). Punishment, communication, and community. Oxford University Press.
- Lai, T.-H. (2019). “Justifying uncivil disobedience”. Oxford Studies in Political Philosophy, (5), 90–114.
- Markovits, D. (2005). “Democratic disobedience”. Yale Law Journal, 114 (8), 1897–1952.
- Moraro, P. (2019). “Punishment, Fair Play and the Burdens of Citizenship”. Law and Philosophy, 38 (3), 289–311.
- Rawls, J. (1999). A Theory of Justice. Oxford University Press.
- Smith, W. (2013). Civil disobedience and deliberative democracy. Routledge.
- Tadros, V. (2011). The ends of harm: The moral foundations of criminal law. Oxford University Press.
About the author
Ten-Herng Lai is currently a Teaching Fellow at the University of Melbourne. He received his PhD from the Australian National University in 2020. In 2021, he was a Post-Doctoral Research Fellow of the Society for Applied Philosophy at the Australian National University. Starting August 2023, he will be a Lecturer in Philosophy at the University of Stirling. His research interests include social movements, democracy, statues and monuments.