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The Journal of Political Philosophy: Volume 23, Number 4, 2015, pp.

427–449

Recent Theories of Civil Disobedience:
An Anti-Legal Turn?*
William E. Scheuerman
Political Science, Indiana University

A SIGNIFICANT shift appears underway in contemporary thinking about
civil disobedience. While liberal Anglophone philosophers in the 1960s and
1970s regularly underscored how politically motivated law-breaking could be
interpreted as supportive of the rule of law, present-day scholarly accounts
frequently depict conscientious illegality as potentially expressing what Martin
Luther King, a key political inspiration behind much of the academic debate,
dubbed the “very highest respect for the law.”1 The initially paradoxical intuition
that nonviolent law-breaking is sometimes necessary to preserve the law, that it
constitutes what John Rawls aptly described as “disobedience to law within the
limits of fidelity to law,” tends to vanish from the purview of recent theorists of
civil disobedience.2 For a surprising range of thinkers, it is now anachronistic.3
For radical critics, it is time to move beyond the “hairsplitting legalistic”
orientation of the standard liberal model, which forecloses possibilities for
creative protest and stands in the way of far-reaching change.4 For many others,
it is simply a matter of recognizing that civil disobedience is best understood
primarily as a conscientious moral challenge to the law. The final result, in an
event, obscures civil disobedience’s identifiably legal contours.
A political and theoretical dead end, the anti-legal turn robs civil disobedients
and their advocates of an impressive line of defense. In order to vindicate this
position, I start by revisiting the political and intellectual context—in particular,

*I am extremely grateful to the three anonymous referees who provided incisive comments on
earlier versions and also to Ryan Balot, Ronald Beiner, Kimberley Brownlee, Robin Celikates, Simone
Chambers, Maeve Cooke, Chris Cowley, Jeff Isaac, Peggy Kohn, and Frances Olsen for opportunities
to present my ideas and also for their generous critical feedback.
1
Martin Luther King, “Letter from Birmingham city jail” (1963), Civil Disobedience in Focus, ed.
Hugo Adam Bedau (New York: Routledge, 1991), pp. 68–84, at p. 74.
2
John Rawls, A Theory of Justice (Cambridge, MA: Harvard University Press, 1971), p. 366.
3
This applies, as I document at length below, to a broad swath of scholarly opinion. Anti-legalism
sometimes overlaps with hostility to the standard liberal (and especially Rawlsian) model of civil
disobedience as formulated in the 1960s and ‘70s. Yet it would be misleading to describe the trend at
hand as congenitally anti-liberal since many liberals embrace it.
4
Adam Sitze, “Foreword,” in Raffaele Laudani, Disobedience in Western Political Thought: A
Genealogy (Cambridge: Cambridge University Press, 2013), pp. vii–xxvi, at p. xix.

© 2015 John Wiley & Sons Ltd
doi: 10.1111/jopp.12055

428 WILLIAM E. SCHEUERMAN

King’s nuanced views about the relationship between civil disobedience and
the law—in which liberal thinkers initially formulated what soon became the
commonplace account (Section I). I then turn to recent scholars’ critical
assessment of that political and intellectual moment. Though they have
successfully directed powerful criticisms against the liberal view as formulated
by Rawls and others, their flawed anti-legal proclivities threaten to throw the
baby out with the bathwater (Sections II, III). In order to refurbish the familiar
but now beleaguered view of civil disobedience as inextricably linked to the “very
highest respect for the law,” I discuss two contemporary examples (i.e., Edward
Snowden’s whistleblowing and anti-austerity protests in the European Union),
both of which support my attempt to salvage the idea that civil disobedience
needs to be understood as underpinning the rule of law (Section IV).

I. NONVIOLENT DIRECT ACTION AND THE LAW
King’s praises are now sung by politicians on a US national holiday named after
him, schoolchildren recite phrases from his speeches, and university students get
quizzed on his “Letter from a Birmingham Jail.” Yet his views about the nexus
between civil disobedience and law are often neglected.5 Even if those ideas once
mesmerized King’s own philosophically-minded contemporaries, we need to
revisit them to appreciate what contemporary theories of civil disobedience risk
abandoning.
King, of course, offered a demanding account of what he dubbed “nonviolent
direct action,” which he characterized as presenting “our very bodies as a means
of laying out our case before the conscience of the local and national
community.”6 Civil disobedience appealed to the conscience of broader publics
and could only be undertaken by actors whose own moral credentials had been
instilled via a series of rigorous practical tests. Even if the underlying sources of
conscientious protest were fundamentally religious (and, for King, basically
Christian),7 its seriousness was validated by practices that could be undertaken by
a diversity of moral and political agents: Gandhian-style “self-purification,” for
example, impelled prospective disobedients, Christian or otherwise, to think long
and hard about their capacity to put up with physical and psychological abuse.

5
For an exception, see David Lyons, “Moral judgment, historical reality, and civil disobedience,”
Philosophy and Public Affairs, 27 (1998), 31–49. Some of the recent literature on political
disobedience seems uninterested in King, his ideas about law, and the liberal theory of civil
disobedience (e.g., Howard Caygill, On Resistance [London: Bloomsbury, 2013]). Others discount
King’s relevance in the context of accelerated globalization (Lawrence Quill, Civil Disobedience:
(Un)Common Sense in Mass Democracies [London: Palgrave, 2009], p. 6) or worry about a
misplaced nostalgia for him (Molly Sauter, The Coming Swarm: DDOs Actions, Hacktivism, and
Civil Disobedience on the Internet [London: Bloomsbury, 2014], pp. 19–38). Not surprisingly, such
authors tend to discount legal justifications for civil disobedience.
6
King, “Letter from Birmingham city jail,” p. 70.
7
He does refer to other traditions (e.g., Buber’s Judaism).

He saw this legal justification as not only a puissant practical tool but also implicitly as essential to understanding civil disobedience’s normative underpinnings.” Not surprisingly. ultimately.” as the Christian tradition had demonstrated. According to King. James Melvin Washington (New York: Harper & Row. RECENT THEORIES OF CIVIL DISOBEDIENCE 429 Other tests King prescribed similarly allowed nonviolent lawbreakers to make a plausible case that their actions were morally well-considered. Nonetheless. 160–6. Admittedly. he always believed that conscientious appeals possessed impressive persuasive force. King’s comments about civil disobedience are replete with claims about its distinctive legal underpinnings. 2013). ed.” along with a resulting “deterioration for the respect for the rule of law. King was politically adept at exploiting the violent white backlash. this feature of King’s agenda was often driven by strategic dictates.. King also grasped that in pluralistic societies where the voice of conscience typically speaks in different tongues. .” The point was not to dispense with conscience but to supplement it with less sectarian appeals invoking a commonly held “respect for the law. Whatever the virtues of such appeals. Nixon once derided as “the corrosive doctrine that every citizen possesses an inherent right to decide for himself which laws to obey and when to disobey them. “[a]ll 8 King. King thought it possible to counter such views. policy) by demonstrating its congruence with the community’s “highest [shared] respect for the law. King appealed to traditional (mostly Christian) natural law ideas when explaining why some (unjust) laws could potentially be violated by prospective civil disobedients. Any law that degrades human personality is unjust.” A Testament of Hope: The Essential Writings of Martin Luther King. 9 Cited in Costas Douzinas. “[a]ny law that uplifts human personality is just. 164. pp. Though King struggled to free conscientious protest from the suspicion of moral subjectivism. Most famously.8 The civil rights movement needed to respond to the widespread apprehension that it was advancing what US President Richard M. Philosophy and Resistance in the Crisis (Cambridge: Polity Press. civil disobedience could not rest exclusively or even primarily on appeals to it. “The time for freedom has come. 90–1. pp. Peaceful law-breaking had to be politically delineated from the “uncivil disobedience” of segregationists who engaged in horrific violence under the cover of nightfall and then circumvented legal consequences.”9 By describing nonviolent law-breaking as fundamentally exemplifying the rule of law. On his reading of that tradition. nonviolent law-breaking would only contribute in most instances to changes in attitudes (and. it would be wrong to view King’s ideas about law as resting ultimately on underlying and more basic moral or political arguments: he regularly pointed towards a powerful and relatively independent source of legal justification for nonviolent direct action. its specifically legal traits possessed a special normative status. Even if civil disobedience unavoidably tapped into powerful moral and political resources. however. Jr. at p. [1961] 1986).

Civil Disobedience: Protest. official acquiescence and public apathy provided the requisite cover. to release 10 King. . law.” p. “Letter from a Birmingham city jail. Klarman. to take the initiative out of the hands of racial demagogues. The federal government. 2013). and civil disobedience. from this perspective.12 By interpreting natural law as a fundamentally ethical but not legal doctrine. and the Law (London: Bloomsbury.430 WILLIAM E. [1961] 1986). Board of Education case mandating school desegregation. which had been successfully stymied by southern segregationists. to be sure. . see Michael J. he regularly supplemented it with less sectarian non-natural law views. He regularly depicted nonviolent direct action as a political device for reigniting the stalled enforcement of standing US law. “Love.. was essential to focus attention on the unsettling reality of a scenario in which rulings by the community’s highest judicial body had been de facto invalidated by hostile local officials. violence. Jr.g. However. ed. King’s legalism is unfairly jettisoned for his moralism. state-level segregation rules. King. But what can be done to mitigate the fears.. 43–53. they did so only to check more fundamental violations of constitutional law. 74. and political elements. e. were his appeals to existing positive (and constitutional) law. SCHEUERMAN segregation statutes are unjust because segregation distorts the soul and damages the personality. not surprisingly. ethical.”10 In the recent literature it is this feature of King’s legal thinking that gets highlighted. 385–421. p. Justification. . 13 See. [n]onviolence can touch men where the law cannot reach them . Even if civil rights activists openly abrogated local rules and statutes (e. James Melvin Washington (New York: Harper & Row. traditional natural law sometimes consisted of a motley mix of moral. ordinances against trespassing). to disperse the hatred. 148. pp.13 Civil disobedience. pp. The courts can order desegregation of the public schools.” Fortunately. the landmark Brown v. On the hostile southern response to Brown. By effectively scuttling the Supreme Court’s decisions. legal. and irrationality gathered around school integration. “the law needs help. at the price of reducing it to a fundamentally moral or conscience-based argument positing “the primacy of the ethical over the political. 11 Tony Milligan.”11 The problem with this one-sided exegesis is that it collapses King’s legal thinking into its conceptually distinguishable moral or ethical elements. Religiously-tinged ideas about the fundaments of human personality and “degradation” are only likely go so far in a pluralistic polity with radically diverging moral and religious views. 2004). King himself seems to have implicitly recognized this pillar’s weak spots.g.” A Testament of Hope: The Essential Writings of Martin Luther King.. From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality (Oxford: Oxford University Press. it was segregationists who were getting away with egregious violations of the law. for example. King devoted substantial energy to the task of explaining how this might best work. should enforce constitutional law even in the face of local intransigence. At least as vital to King’s thinking. 12 To be sure.

15 Ibid.15 Looking into the future.”16 Nonviolent direct action could play a decisive role in transforming “hearts and souls.” Nonviolent action directly anticipated the ethos of a new and more pacific constitutional order where law could rest on firmer normative foundations and prove efficacious to a degree impossible under existing conditions.. men must believe they are right. unilateral executive action18—by mobilizing public opinion against reactionary politicians who were failing to keep up with the need for reform.cit.” Its persuasive power could firm up forward-looking decisions by the Supreme Court by contributing to racial reconciliation and eventually to a “beloved community” built on equality and mutual respect. 18 See King’s comments about Kennedy’s timid use of presidential power to support civil rights (“Hammer on civil rights” [1964]. pp. pp. 416–90. King prophesied that legal “desegregation will break down the barriers. In short. it also helped generate legislative innovation—and sometimes.” activists not only gained a new self-respect. when appropriate. while helping to persuade apathetic bystanders and even some 14 King. op. politically and socially divided communities could never hope for a legal order in which the formerly downtrodden might embrace the law as their own. well-chosen acts of conscientious law-breaking could catalyze overdue forward-looking legal reform. at p. op. RECENT THEORIES OF CIVIL DISOBEDIENCE 431 respect for the law? In the end. cheerfully” breaking the law so as to disarm antagonists.. at pp. Racism and social injustice meant that respect for the law still sometimes demanded disobedience to unjust law. openly.. and bring men together physically.17 Only in such a community. p. Accordingly. Stride Toward Freedom.cit.” It broke directly with a long tradition of racial mistrust and violence by “peacefully. 171–2). but also sometimes the grudging respect of the previously indifferent and antagonistic. Absent civil disobedience. might we expect the practical realization of complete and universal “respect for the law. 487. Civil disobedience not only undergirded existing statutory and constitutional law against recalcitrant opponents. whereas in a prospective “beloved community” abstract fidelity to the law potentially translated into (universal) legal obedience. 484. the idea of “respect for the law” contained a forward-looking dynamic: fidelity to the law demanded of conscientious political actors that they push for dramatic change that might deepen both law’s legitimacy and its efficacy. By zooming in on grave injustices. 169–75. and then rigorously abide it. .14 Nonviolent direct action represented “the ultimate form of persuasion. 17 Ibid. A Testament of Hope. By evincing a willingness to sacrifice “and even risk[ing] our lives to become witnesses to the truth as we see it. for laws to be obeyed. But something must happen so to touch the hearts and souls of men. King argued. excerpted in A Testament of Hope. 16 Ibid.

. Lyons correctly notes that King appealed “to the central values that we associate with the Declaration of Independence and the Constitution” (p. who reads King as disavowing a general “presumption favoring obedience” to the law (“Moral judgment. as far I can tell. 21 Gandhi. SCHEUERMAN opponents. of course.” and as with Gandhi.” p. For the basics. p.” Civil Disobedience and Violence. A Testament of Hope. Politics. op.21 Yet King’s acceptance of punishment was not exclusively or even mainly strategic. On the Rule of Law: History. 93. and civil disobedience. King nonetheless demonstrated a supple grasp of how ideas about the law could buttress forms of civil disobedience with far-reaching and even radical political implications. No academic jurist. “Letter from Birmingham city jail. 2004). “Nonviolence. 23 King. pp. lawbreakers demonstrated their fidelity to core traits of a more abstract—but by no means thereby insignificant or politically quiescent—ideal of law-based government. This implicitly aspirational features of legality help explain why even in terrible regimes (e. From Jim Crow to Civil Rights. as I argue below. Even if an unavoidably contested concept. Murphy (Belmont. the rule of law still has a substantial political as well as normative bite. disobedients are obliged to meet a demanding panoply of tests in order to legitimize their (exceptional) illegal acts.22 Nonviolent lawbreakers are required to pass uncommon tests as a way of expressing their underlying “respect for the law. lovingly” violating the law. 135–44. 22 I disagree here with David Lyons. even in unjust societies like his own.” but a rudimentary notion of it is implied in his thinking. CA: Wadsworth. Klarman. Tamanaha.cit.23 They give immediate expression to a future-oriented aspiration for a reformed legal (and 19 See. typically stand under some general obligation to show respect for the law..g. use the term “rule of law. Yet King saw in them not simply moral ideals to realize. this view was frequently driven by strategic concerns. 20 King does not. even if in some instances such fidelity paradoxically demands disobedience: precisely because of this (general) obligation. 44). South Africa under Apartheid) appeals to the law (or rule of law) sometimes functioned to destabilize the status quo. communism in Eastern Europe. ed. historical reality. at p. nonviolent law-breaking could galvanize public opinion and overcome the US political system’s notorious inefficacy and sluggishness. but legal and constitutional materials on which disobedients who properly evinced respect for the law could build in order to construct a superior legal and constitutional order. Only in a radically overhauled prospective constitutional system might we achieve a “beloved community” where everyone could identify sound reasons for rigorously following the law.20 Here he heeded Gandhi’s demand for “voluntary submission to the penalty for non-cooperation with evil. When “openly. needs to be said about Gandhi’s views of the law and disobedience. More.19 King also believed that by accepting punishment even for unjust laws. for example. disobedients—unlike hateful segregationists who act secretly and avoid penalties—directly reproduce core fundaments of any normatively legitimate or just system of law. 74. pp. His reading downplays both the dynamic and forward-looking character of King’s commitment to the law and his deep legalistic instincts. or the rule of law. “Facing the challenge of a new age” (1956). King accepted a complex version of the idea that citizens. see Brian Z.” even if—as he undoubtedly believed—consistent law abidingness could not be expected from oppressed groups. Theory (Cambridge: Cambridge University Press.432 WILLIAM E. 1971). Also. . Jeffrie G. 382.” p. Martin Luther King. 45). 93–102.

Racist and authoritarian regimes typically make mincemeat of basic rule of law virtues. the legal order was unlikely to prove decent or just. was indispensable to the creation of a more decent and egalitarian society. and their actions anticipate a much reformed legal order. p. as well as a powerful basis for instigating nonviolent protest. 1964). and generality). 40–1. and publicity in the law. Protestors could also advance fundamental reform by supporting forward-looking legal and constitutional innovations “on the books. particularly when it came to guaranteeing their potential advantages to African-Americans. they similarly embody a commitment to the view that every legal order needs to rest on some underlying (normative) commitments to reciprocity and mutuality.25 When Tony Milligan describes King’s model of civil disobedience as simply endorsing “the legitimacy of the judicial order. esp. As he intuitively grasped. law or the “judicial order” was always much more than a static collection of existing statutes or constitutional rulings. pp. openness. He drew on natural law ideas in order to envision law as dynamic and potentially progressive. When additional legislative innovations were imperative. . Our general obligation to the law demanded of us that we overhaul a legal and constitutional status quo that failed to live up to certain basic legal ideals. King correspondingly defined a just law as “a code that a majority compels a minority to follow that it is willing to follow itself.”24 Only laws embodying the quest for generality typically are just and worthy of respect. 26 Milligan. Without a good dose of them. The US legal system too often made a mockery of basic legal virtues. The Dual State (New York: Oxford University Press. By “lovingly” breaking the law. Civil Disobedience. political orders resting on secret or discriminatory laws are unlikely to prove morally or politically attractive. publicity. in principle.” but still lacking a firm foundation in political life.26 For King. clarity. The open and public character of their acts mirrors the familiar rule of law demand for openness. CT: Yale University Press. The “very highest ideal of law” provided a yardstick for measuring political and social progress. King believed. are subject to the same legal rules as other members of the legal community. 25 Lon Fuller. By accepting the possibility of legal penalties disobedients concede that they. 1941). This is sameness made legal. Ernst Franekel. 99. RECENT THEORIES OF CIVIL DISOBEDIENCE 433 political) order.g. nonviolent direct action could help achieve them. Any legal order deserving our respect would have to institutionalize a substantial dose of rule of law virtues (e.” we therefore would do well to foreground King’s multilayered view of the law.. better able to instantiate basic legal virtues. King recognized. They implicitly work to defend legal generality. Pervasive violations of the rule of law demands for publicity and generality open the door to irresponsible and morally deplorable state action. The Morality of Law (New Haven. 24 Ibid. Respect for legality or the rule of law as evinced by such activism.

he frequently emphasized its radicalism: “The thing to do is to get rid of the system. and civil disobedience.. in “justifying civil disobedience one does not appeal [merely] to principles of personal morality. at pp. For John Rawls. from this perspective. pp. the American Philosophical Association sponsored a symposium on the topic.29 diligently tried to construct a proper framework for understanding what King and other activists had set into motion. 2000). or by those coping with them at the time). For a corrective to politically sanitized views of King. etc. describing nonviolent law-breaking as providing an “answer to the long debated [political] question of gradualism versus immediacy. law. p. or to the American political and social system more broadly. 29 At its 1961 meeting. offered possibilities for political and social transformation with which seemingly more radical (e. unwillingly. civil disobedience referred to acts which are illegal (or presumed to be so by those committing them. reports that the civil rights movement was clearly on the mind of the panel participants (Bedau. LAW.cit. 471. thoughtlessly. Hugo Bedau. 365.” Civil Disobedience in Focus. 1–12.”30 A politically viable defense of civil disobedience.) 27 King. King did not believe that his view of nonviolent disobedience as exemplifying “respect for the law” entailed sympathy for the political and social status quo. AND CIVIL DISOBEDIENCE Looking back at the mostly American philosophical literature on civil disobedience from the late 1960s and 1970s. for example.”28 Civil disobedience.434 WILLIAM E. Describing nonviolent direct action. I May Not Get There With You: The True Martin Luther King (New York: Touchstone. “Love. he underscored his approach’s superior political credentials. The word “system” is ambiguous in the lecture: it could be taken as alluding to the “evil system” of segregation. initial appearances to the contrary.” p. op. nonviolently (not intentionally or negligently destructive of property or harmful of persons). committed openly (not evasively or covertly). For Hugo Bedau. 488. “Introduction. violent or revolutionary) approaches could not in fact keep pace. Since King believed that crucial features of the US polity were poisoned by racism. 2014). SCHEUERMAN Consistent with this interpretation. A participant (and soon a major figure in the debate). Not surprisingly. and conscientiously (not impulsively. It was able to do so significantly because the idea of the “very highest respect for the law” called for far-reaching change. 28 King. 7–8). as for King. inspired by the civil rights movement.”27 When responding to “black power” militants.g. King challenged the usual dichotomy between “mere” (legal) reform and (violent) revolution because he believed nonviolent civil disobedience could bring about radical change.” A large and diverse group of liberal theorists. would have to rest on the political community’s shared commitment to a (common) rule of law. Stride Toward Freedom. many of their ideas tracked King. II. A Theory of Justice. LIBERALISM. On the transformational character of the civil rights movement: Bruce Ackerman. . as King had argued. MA: Harvard University Press. see Michael Eric Dyson. p. 30 Rawls. We the People: The Civil Rights Revolution (Cambridge. one is immediately struck by its varied attempts to do justice to the intuition that nonviolent illegality represents the best way to advance the “very highest respect for the law. the ambiguity is hardly surprising.

at p. see Hugo Bedau. and the Law (New York: Columbia University Press. Civil Disobedience and Violence. pp. 382.”34 Other participants in the exchange similarly formulated views of civil disobedience highlighting its congruence with the law. 17–27.” p.” Jeffrie Murphy. and socially fair—societies. 94–117). 1–17.” p. The idea of nonviolent law-breaking as embodying the “highest respect for the law” now meant that disobedients had to demonstrate loyalty to the fundaments of the existing legal and constitutional system.” Rutgers Law Review. Carl Cohen. Civil Disobedience: Conscience. Jeffrie G.”32 Marshall Cohen (and also Rawls) argued that she evinced “fidelity to law. it had to be neatly delineated from more radical forms of disobedience.31 In a similar vein. 1969). 211–26. 363. Direct Action and Liberal Democracy [New York: Harper..” 38 Christian Bay. 37 King would surely have challenged Rawls’ view of US democracy as “nearly just. 1971). pp. 1971). . at p. CA: Wadsworth. at p. “Civil disobedience and the law. 17.”40 in actuality reconfigured King’s views. . 39 Bedau. (1966). 6. p. at p. By prescribing nonviolent direct action as 31 Hugo Bedau. Ronald Dworkin. Taking Rights Seriously (Cambridge. 40 Cohen. Murphy.”36 Correspondingly. 3. Rawls. 73–92. at p. 21. policy. basically democratic. ed.” p. 35 Among countless others. 51. “Civil disobedience and the law. ed. 214. 72. Carl Cohen characterized the civil disobedient as acting “within a framework of laws whose legitimacy he accepts. “Introduction. p. “Civil disobedience: prerequisite for democracy in mass society. Civil disobedience was conceived as appropriate to what Rawls described as already “nearly just”—that is: extensively liberal.. ed. 366.cit..” Rutgers Law Review. op. pp. 34 Harrop Freeman. An early critic aptly identified the institutionally complacent implications of this position (April Carter. also. though not to the specific (unjust) laws they opposed. The debate was a complicated one.. Also. “Civil disobedience and personal responsibility for injustice. Civil Disobedience and Violence (Belmont.. 49–67. 1973]. pp. 10 (1969). “Civil disobedience and the law.cit.37 Those who saw nonviolent disobedience as resting on the “legitimacy of the existing legal order as a whole. 21 (1966). Tactics. even if the overlapping legalistic terminology probably veiled the shift. King’s view that law-based defenses of civil disobedience might motor radical change. Civil Disobedience: Theory and Practice (New York: Pegasus. A Theory of Justice. his liberal academic disciples nonetheless generally proffered a politically more cautious rendition.” The Massachusetts Review. 36 Rawls. p. .” Civil Disobedience in Focus.) and with the intention of frustrating or protesting some law. “Response to Cohen. 1977). MA: Harvard University Press. 33 Marshall Cohen. “Civil disobedience in a constitutional democracy. 76–91. Cohen. 32 Carl Cohen.35 While trying to reproduce King’s intuition that peaceful disobedients were obliged to demonstrate respect for the law. A Theory of Justice. op.”33 and Harrop Freeman insisted that the nonviolent lawbreaker nonetheless “respects the law and is within the law. even to the point of getting “rid of the system. RECENT THEORIES OF CIVIL DISOBEDIENCE 435 within the framework of the rule of law (and thus with a willingness on the part of the disobedient to accept the legal consequences of his act .”39 or “frame of established authority and the general legitimacy of the system of law.”38 “rule of law generally. 3. or other decision (or the absence thereof) of the government (or some of its officers). 8. much more remains to be said.” tended to vanish from the liberal reworking of his legacy.

we can also discard the idea of civil disobedience as consonant with the rule of law. A Theory of Justice. 45 Milligan. p. Disobedience in Western Political Thought: A Genealogy. King may have inadvertently opened the door to politically tamed restatements. as though Rawls’ theory of civil disobedience could uncritically be taken as the paradigmatic example of “legalistic” models of civil disobedience. SCHEUERMAN buttressing standing constitutional law. p. ed. Rawls characteristically noted. “Ziviler Ungehorsam und radikale Demokratie. found “even among those [i.45 His massive impact notwithstanding. The hostility to Rawls now seems well-nigh universal on the left (see also Douzinas. pp.436 WILLIAM E. 26. 2010). 44 Laudani. “Civil disobedience as a practice of civic freedom. pp. and the Law. 363–94. konstituierte Macht?” (“Civil disobedience and radical disobedience—constituent vs. Contemporary critics regularly zero in on Rawls. James Tully (London: Bloomsbury.” but civil disobedience should be buttressed by less sectarian means. 112. Thomas Bedorf and Kurt Röttgers (Berlin: Suhrkamp. For a broad swath of recent scholarly opinion. Justification. 42 Ibid. Critics pay the usual homage to King and the civil rights movements. 91–4).” which allegedly has come to dominate thinking about it. that previous debate constitutes a troublesome “other” which needs to be warded off in order to advance more sophisticated accounts of civil disobedience. Civil Disobedience: Protest.41 Why revisit this earlier juncture in the debate? I do so because contemporary thinking about civil disobedience typically begins by targeting the now (allegedly) hegemonic liberal model first formulated in the 1960s and ‘70s. Konstituierende vs. also. 287. for example. In the eyes of the critics. activists] who may never have heard of Rawls. pp. ed. His religiously-based natural law ideas also tended to vanish from its subsequent academic reconstruction: most American liberals did not think it sound to build on King’s controversial (religious) ideas.43 Similarly targeting Rawls. 274–300.. which they interpret as unduly preoccupied with the 41 Rawls. Raffaele Laudani claims that his account “has since become canonic.”44 Milligan describes an “uneasy [Rawlsian] consensus” on civil disobedience.” Global Citizenship: James Tully in Dialogue. 365. about the democratic deficits of Rawls’ model of civil disobedience. Recent critics worry. Robin Celikates directs much of his theoretical acumen against Rawls. Religious justifications.. constituted power?”) in Das Politische und die Politik. pp. Celikates.42 Defending a radical-democratic vision of civil disobedience. the liberal (Rawlsian) model and legalism are apparently tied at the hip: if we can successfully transcend Rawls’ views. 211–28. for example. . “may coincide with and support one’s claims. 43 Celikates. Philosophy and Resistance in the Crisis.e. Yet his account always contained more dramatically reformist and potentially transformative implications. p. at p. with a substantial body of earlier theorizing getting reduced to the Rawlsian account of civil disobedience as formulated in A Theory of Justice. yet they downplay his powerful legal intuitions. 2013). the preoccupation with Rawlsian ideas offers a convenient rhetorical strategy: it allows critics to unleash a series of (sometimes persuasive) rebuttals.

pp.” where political views about “problems that have demonstrable and urgent import” have been unfairly marginalized. Peter Singer. RECENT THEORIES OF CIVIL DISOBEDIENCE 437 protection of individual rights in opposition to political majorities. In Daniel Markovits’ republican model. “Democratic disobedience. . or where a necessary reconsideration of existing policy has been stymied by institutional stasis or powerful privileged interests. functioning as a “dynamizing counterweight” by means of which the popular sovereign counters “the rigidifying tendencies of state institutions.49 So. 70. 88–9. “Civil disobedience as a practice of civic freedom. 1973). 48 Smith.” in Crises of the Republic (New York: Harcourt Brace Jovanovich. 1933. The principal dilemma sometimes is that a “policy was never approved by the democratic sovereign at all but instead arose in some other way. 114 (2004–5).”47 Civil disobedience checks what the deliberative democrat Will Smith dubs “deliberative inertia. In the analogous radical democratic model creatively outlined by Celikates. 1897–952. 49–102. notable participants in the 1970s debate also sometimes focused directly on civil disobedience’s democracy-enabling functions. Democracy and Disobedience (Oxford: Oxford University Press. 49 See. civil disobedience dramatizes the fundamental contrast between constituent and constituted powers. this latest round of criticisms covers familiar territory. 2013). Among republicans and radical democrats. 1972). pp. Civil Society and Political Theory (Cambridge. provoking it to tackle vital issues whose neglect threatens democratic legitimacy.” p. and about more and new kinds of participation” lack a secure place in the Rawlsian framework. to some extent. pp. “Civil disobedience. p. 1992). 47 Celikates. alerting them to rights violations inconsonant with the community’s shared conception of justice.” Yale Law Journal. 223. Hannah Arendt.48 For the record. civil disobedience’s main function is to undermine political complacency by focusing attention on issues that may never have been meaningfully discussed in the first place. fundamental challenges to the community’s views of justice. 574–604. MA: MIT Press. and not just grave rights violations by majorities. Rawls is taken to task for obscuring the fact that nonviolent lawbreakers have more in mind than bringing errant political majorities to their senses.”46 Nonviolent law-breaking aims to stir the lumbering democratic sovereign into action. as through a slow and unattended transformation of an initially very different policy. Cohen observed nearly twenty-five years ago. which indeed is susceptible to a range of democratic criticisms. Civil Disobedience and Deliberative Democracy (London: Routledge. For the republican response to the liberal model. while directing congruent criticisms at Rawls’ account. for example. by deepening deliberation and participation in novel ways. or the thematization of basic questions “about new kinds of or new interpretations of rights. Disobedients help counter severe impairments to democratic politics. at p. As Andrew Arato and Jean L.50 Present-day critics also worry that the Rawlsian model robs civil disobedience of its once subversive political character by ritualizing and neutralizing radical 46 Daniel Markovits. 50 Arato and Cohen.

57 More problematically.51 They accurately note that liberals like Rawls defanged the more radical version of civil disobedience outlined by King. Yet what ultimately frustrates him is an overly narrow (and probably dispensable) interpretation of the publicity standard as requiring of disobedients that they provide “the authorities fair notice in advance” of their actions. 2013).” Info.” their endeavors do not consistently fall under the rubric of civil disobedience as codified by Rawls and other liberals in the 1960s and ‘70s. 6 (2004). what vexes him about the nonviolence test is that it risks conflating violence against persons with violence against things. SCHEUERMAN protest.” p. or hacktivists pursue “electronic civil disobedience.54 Though civil disobedience has always been a messier affair than our theoretical ideal-types imply. conscientious yet political act contrary to the law usually done with the aim of bringing about a change in the law or policies of the government” is now a dead dogma that confines rather than enables creative protest. 326–38. “Civil disobedience as a practice of civic freedom.52 In any event. 55 Lewis Perry. Worries about the rigid character of the liberal definition were anticipated by G. he abandons the idea of civil disobedience as operating within the limits of fidelity to law. Rawls offers an unfairly restrictive model of civil disobedience. Civil Disobedience: (Un)Common Sense in Mass Democracies. on some occasions replacing it with a new one less functional than the old one. Civil Disobedience: An American Tradition (New Haven. “Civil disobedience as a practice of civic freedom. CT: Yale University Press. nonviolent. Calabrese downplays civil disobedience’s legal contours.” anti-globalization protestors smash storefront windows. 297. 475–98. 54 For a discussion. When masked animal rights activists engage in covert “animal rescue.56 Similarly. the relationship between political practice and conventional liberal understandings of civil disobedience is undergoing severe stress. 113. 216–7. “The orthodox theory of civil disobedience. seeing in such requirements a latently complacent commitment to a 51 Laudani. Yet even when doing so they discount the fact that King conceived radical politics as congruent with respect for the law. 294. p. Andrew Calabrese. the Rawlsian view of civil disobedience as a “public. p. 56 Celikates. however.53 Much can surely be said in favor the recent critical literature. . 68. Like so many others. 2 (1973). “Virtual nonviolence? Civil disobedience and political violence in the information age.438 WILLIAM E. anti-austerity activists block access to national parliaments. 364. A Theory of Justice. when push comes to shove Celikates insists on nonviolence vis-à-vis persons. Like his liberal opponents. 52 Celikates. Celikates argues that we should discard the standard liberal (Rawlsian) tests of publicity and nonviolence for civil disobedience.” pp.G. 53 Rawls. 57 Celikates. 213.55 Its strengths notwithstanding. James. Quill.” Social Theory and Practice. Disobedience in Western Political Thought. which seems partly inspired by real-life political trends. “Ziviler Ungehorsam und radikale Demokratie. the potentially fruitful attempt to move beyond the conventional liberal (and especially Rawlsian) model occasionally risks reinventing the wheel. however.” pp. p.

[C]an the good or principle.” Costas Douzinas defends a fundamental “right to resistance” viewed as sublating. 93.g.” Yet Douzinas. which for him constitutes an “age of resistance. however. . Douzinas’ proposed test for determining whether protestors have met a “moral quality control” for legitimate resistance latently reproduces some of their original features. 216. if replaced. Justification. p.” p. doubts that natural law can be refurbished today: it “has all the cognitive and theoretical difficulties of the belief in God’s law. anxiety-producing moral test. 63 Milligan. the disobedient obeys. . 1968/2002]). Milligan jettisons Rawls’ definition for a more flexible civility-centered alternative. 59 Douzinas. p. RECENT THEORIES OF CIVIL DISOBEDIENCE 439 constitutional and legal status quo badly in need of fundamental overhaul. 99. he believes that it reduces nonviolent law-breaking to public speech. Not surprisingly. be addressed to everyone and anyone? Can it be universalized? . MA: South End. 18..”61 Despite his enmity to liberal views of civil disobedience. 61 Ibid. 62 Ibid. p. . p.58 Just like the 1970s liberals he eagerly criticizes. 60 Ibid. . and the Law.” pp. “Civil disobedience as a practice of civic freedom. “Ziviler Ungehorsam und radikale Demokratie. who preserved King’s radical political legacy while downplaying King’s legalism. e.. disobedients are still expected to evince: 58 Celikates. The second brings the specific grievance or demand under the control of a moral principle . both liberal and democratic models of civil disobedience. like most modern liberals. . he wants nothing to do with familiar legal defenses of civil disobedience: “The intolerance at the core of liberalism cannot be easily hidden. 283–9. 90. . in the Hegelian sense. protests in which activists disrupt or obstruct practices they consider immoral. In his new definition. he sacrifices the idea of civil disobedience as evincing the “very highest respect for the law.63 Its dialogical focus unfairly delegitimizes forms of law-breaking where communication and public dialogue are marginal. Philosophy and Resistance in the Crisis. . . Civil Disobedience: Protest. Arguing that the Rawlsian model unjustly demands of disobedients that they openly communicate their grievances.”60 Unlike them.. it is replaced by empty moralizing. p. “both taking up and transcending them” because of their inadequacy to the political challenges of the present age.62 For his part.”59 This right to resistance initially appears to rely on the traditional natural law “idea of a law higher than state law. [This] is a tough. he interprets rule of law-based justifications for civil disobedience as incongruent with demands for transformational political and social change. Protestors should be ready to accept not only legal penalties but also meet what are effectively familiar (and strikingly neo-Kantian) standards of generality and publicity: The first test is the willing acceptance of the risk and possibility (nowadays probability) of punishment. 96. Celikates seems partly inspired by Howard Zinn (Disobedience and Democracy: Nine Fallacies on Law and Order [Cambridge.

67 Ibid. it remains unclear whether the author has wholly transcended the Rawlsian definition.e. for example. p. Yet here as well. p.e. p.”68 In fact... 66 Ibid.”67 It seems worth noting that the concept of harm has suffered. On one plausible exegesis. (ii) the rejection of hate speech. (iv) the largely successful commitment to try to avoid violence and threats of violence . the notion that legal breaches must evince the “very highest respect for the law” fades into the background. violence can refer to “a range of acts and events that risk but do not necessarily cause damage or injury.” undertaken with an expectation of producing changes in public policy. . it is hard to imagine how “conscientious communicative breaches of the law.. but instead will typically require a well-formulated public defense. (v) the avoidance of cruelty. 68 Ibid. 65 Kimberley Brownlee. i.”66 As for the publicity test. 22. sincere. As for Brownlee’s abandonment of the publicity test. non-communicative) manner. animal rights activists who break into laboratories to “liberate” animals—may initially need their actions to take a covert form... .. p. p. the new definition is probably no less restrictive than the Rawlsian original. even if it is unrealistic and perhaps undesirable for every facet of civil disobedience to do so. . Sacrificing the conventional nonviolence standard. In everyday language. since John Stuart Mill made it a mainstay of liberalism. . Brownlee underscores “the presumptively more salient issue of harm. 36.64 Even if we ignore that such conditions are unlikely to be met in some self-evident (i. members of the same moral community. though possibly mistaken. Kimberley Brownlee describes civil disobedience as “a conscientious communicative breach of law motivated by steadfast.. Conscience and Conviction: The Case for Civil Disobedience (Oxford: Oxford University Press. might operate without openness and/or publicity. stipulations that activists are obliged to show a “duty of care” and respect for others as “members of the same moral community” might easily garner demanding—and thus politically quite restrictive—traits.65 As in other recent redefinitions of civil disobedience. such as catapulting stuffed animals at the police. 21.440 WILLIAM E.” in the process criticizing the Rawlsian tests of publicity and nonviolence. civil disobedients—for example. 64 Ibid. [or] the recognition that other humans are fellow humans. 23. (iii) the avoidance of acts which are driven by hatred. . SCHEUERMAN (i) respect for others . and finally (vi) the recognition of a duty of care or an avoidance of reckless endangerment of others. she believes that nonviolence is a concept destined to generate confusion. 2012). she herself notes that initially covert acts of disobedience “may nonetheless [ultimately] be open and communicative when followed by an acknowledgement of the act and reasons for taking it. moral commitment. and serious. 23. Like Celikates. from as many ambiguities as the distinct but oftentimes overlapping ideas about violence.

which indeed suffers from serious problems. contemporary theorists risk throwing the baby out with the bathwater. Lovell. Crimes of Dissent: Civil Disobedience. pp. op. 70 For example. p. Yet a principled commitment to the rule of law cannot be reduced to mere “shorthand for the terms under which people agree to cooperate” (p. 317–20). in particular. Criminal Justice. Jarret S. at pp. 307–30.72 This trend sometimes appears married to 69 Andrew Sabl suggests that we reformulate the Rawlsian model of civil disobedience while discarding its problematic philosophical foundations. 319). “Looking forward to justice: Rawlsian civil disobedience and its non-Rawlsian concerns.” rather than veneration for the law. 72 See. is not to salvage the orthodox liberal (or Rawlsian) view. the anti-legal current stems from a deeply rooted legal skepticism. 32). . they have been systematically scrubbed of the once ubiquitous legalistic terminology. “Ziviler Ungehorsam und radikale Demokratie. pp. which crudely depicts legal appeals as an ideological veneer for state violence. at p. 311–2. Sitze. RECENT THEORIES OF CIVIL DISOBEDIENCE 441 My aim. In part. THE ANTI-LEGAL TURN Ready evidence for the anti-legal turn in the contemporary debate lies in its updated definitions. The ongoing debate about punishment and civil disobedience..71 Another pillar is an occasionally tendentious anti-statism. 296–300. the related intuition that disobedients should be expected to accept punishment for their acts has also come under attack. Smith’s reformulation of Rawls’ definition (i.” pp. is a complicated one. 2009). 47–8.” Tellingly.” pp. 71 For the former. and then tossing the standard liberal approach out the window. “Foreward. Even those sympathetic to Rawls’ model de-emphasize its legalistic currents.” in Laudani. those now discounting his theory tend also to neglect the vital idea that civil disobedience and respect for the rule of law go hand in hand. for example. Instead. 9 (2001). xix. Sabl interprets the idea of fidelity to the law as reflecting the disobedient’s effort to bring about “just cooperation in the future. “disobedience to law within the limits of fidelity to the law”) as “disobedience to law within the limits of deliberative intent” (Civil Disobedience and Deliberative Democracy.70 Along with the previously prevalent thesis that civil disobedience is best grounded in appeals to law. it should be clear. For the latter. my point is simply that transcending its achievements proves more difficult than contemporary writers concede. Like those just discussed. Disobedience in Western Political Thought. vii–xxvi. and the Politics of Conscience (New York: New York University Press.” Journal of Political Philosophy. Whatever the limitations of his efforts to do so. not surprisingly. has identified some tough questions.e. which allegedly misses the forward-looking character of Rawls’ views (“Looking forward to justice: Rawlsian civil disobedience and its non-Rawlsian concerns. Rawls tried to follow King in viewing civil disobedience as potentially expressing our “very highest respect for the law. or an invitation for pedantic legalistic hairsplitting.69 By reducing a wide-ranging debate about civil disobedience to its Rawlsian version.. The story.cit. Yet one starting point for the ongoing shift appears straightforward enough: blame for the earlier model’s perceived limitations too often gets placed at its legal doorsteps. which views the state and law one-sidedly as permanent threats to democracy and self-government rather than potentially enabling conditions. Celikates. III.

King grasped. each of whom has contributed at least indirectly to raising the norms in question above the sphere of morality. disobedients transform their controversial and sometimes sectarian claims into broader. law also rests on the general agreement of the political order’s members. law potentially represents a collective and common source of normativity conscientious moral appeals can neither match nor supplant. but which are publicly announced and promulgated. Justification. elements of which motivate some activists on the ground (e. Civil Disobedience: Protest. and the Law. “Civil disobedience as a practice of civic freedom. p. . however. Those virtues are essential if illegal protest is to rest on more than narrow appeals. even to the point of providing an “answer to the long debated question of gradualism versus immediacy.”75 King was right to highlight civil disobedience’s intimate links to the rule of law. the process which produced them may be flawed. or “the legitimacy of the judicial order” in its existing form. a law-based defense of civil disobedience possessed impressive normative and political credentials. They may employ King to criticize the liberal paradigm. 216–7. as we have already noted.g. Of course. Law belongs to all of us: it rests on complex processes of public contestation where in principle everyone participates. but it is vital to recognize that it implicitly highlights law’s distinctive virtues. 488. and implicitly general. op. specific laws can be controversial or unjust. is a tendency to misread legalistic ideas about civil disobedience (for example. 74 Celikates. 99.cit. elements of the Occupy movement). Yet another basis. but they neglect his own provocative insights about the nexus between law and radical change. In principle. If a legal order instantiates the idea of legality or the rule of law. political discourse tends irrepressibly to take “legalistic” forms. Stride Toward Freedom. Yet the very fact of legal enactment or promulgation means that the political community has managed to agree on a binding public rule even in the face of 73 Milligan.. it is obliged to realize legal clarity and cogency. As a relatively accessible shared code. By speaking the language of law. they reproduce its politically cautious ideas about the law. about which people can always disagree. though of course not always in empirical reality. normative appeals. the most common source is probably the misleading view that the “very highest respect for the law” necessarily entails loyalty to the legal and constitutional status quo. not surprisingly. excerpted in A Testament of Hope. King’s natural law views) as fundamentally moral or ethical claims.73 Even as contemporary theorists aspire to transcend liberal models of civil disobedience. In political communities based on the rule of law. p.. Commentators since Tocqueville have noted this trend. In the final instance. 75 King.74 In a political universe where respect for the rule of law is widely shared.” pp. law consists of shared rules and principles. Unlike moral conscience. SCHEUERMAN philosophical (and also political) anarchism. and recent communitarians may lament it.442 WILLIAM E.

King and his followers were chiefly targeting the content or substance of 76 Jeremy Waldron. let alone shape or reform its policies.g. law implicitly takes the possibility of far-reaching disagreement seriously. 1999). a law-based model of (nonviolent) civil disobedience may face insurmountable hurdles.” Political Theory.76 Binding law represents “a triumph of peaceful deliberation and respectful cooperation” in the context of modern pluralism. we may need to promulgate binding norms. Though history includes numerous examples of legalistic authoritarianism.80 Here as well. Because the rule of law requires state officials to act in a relatively consistent. at least in principle. Admittedly. 28 (2000). if only for the time being. regularly making a mockery of even its most basic requirements.78 Of course. also. 78 In extreme cases. By making sure that state action is public. prospectiveness). Neumann. 80 Fuller. it invites a potentially inclusive public conversation concerning those matters about which. and transparent fashion. they simultaneously had to show that their acts were conducive towards reforming a broader system of legality from which we all potentially might benefit.77 In contrast to conscientious moral appeals. some modicum of legal security is probably guaranteed. and without which our common existence would be impossible. what King described as “uncivil disobedience” may. The Authority of Law (Oxford: Clarendon Press. 1979). when properly tied to militant protests exemplifying respect for the law. he correctly observed. Yet to the extent that even there the rule of law is taken seriously. the rule of law opens the door. By making a shared public conversation about state action possible. When the political order does not even pay lip service to the rule of law or legality. however tentatively. democracy or racial justice). 160–200. If citizens violate the law in the name of morality. 79 Joseph Raz. predictable. Of course. 210–29. or in authoritarian states.79 Yet we also need to recognize that the rule of law often lends significant support to such ideals. King’s thinking was prescient. he believed that even there appeals to the law. 693. the community’s shared commitment to a public legal order oftentimes seems minimal or even fictional. Lacking any illusions about the racist and politically exclusionary contours of his own country. as legal positivists emphatically insist. publicity. pp. 690–702. RECENT THEORIES OF CIVIL DISOBEDIENCE 443 potentially extensive disagreement. Whittington. 77 Keith E. pp. in racially and socially divided communities. 22–68. The Morality of Law. to political contestation and debate. 1957). Franz L. IL: Free Press. while recognizing that we still need shared binding rules in order to coexist. Where rule of law violations are rampant. .g. The Dignity of Legislation (Cambridge: Cambridge University Press. clarity. “In defense of legislatures. we should avoid conflating the rule of law with other attractive political ideals (e.. When the legal order embodies virtues associated with the rule of law (e. The Democratic and Authoritarian State (Glencoe. the rule of law still works to counter dictatorship and political oppression. could play a decisive role in spawning radical reform. it will be difficult for citizens to know what their government is doing. it also helps provide legal security and basic liberty. represent a legitimate political strategy. generality.. p. it buttresses and potentially deepens self-government.

p. 82 Douzinas.”82 Even if traditional ideas of natural law can no longer plausibly claim universal validity.444 WILLIAM E. p. A defensible view of the rule of law should pursue some sort of middle way between legal positivism and natural law approaches: we should neither reduce the rule of law to the “rule of good law.” it still plays an indispensable role in preserving core elements of traditional natural law. substantial quotients of clarity. Nor do we want a conception that is either overly court-centered or unduly legislature-centered. the impossibility of retroactive legislation. Neuman believed that a commitment to the rule of law could be welded to a radically reformist political agenda. courts. possesses a minimal yet decisive normative content well-suited to the conditions of disenchantment and modern pluralism. Democratic and Authoritarian State. Nonetheless. Philosophy and Resistance in the Crisis. and prospectiveness). Like King. In a context characterized by the “disenchantment” of overarching moral worldviews.g. on this view. every legal order should still be expected to realize the rule of law (i. 158). abrogations of basic rule of law standards regularly go hand-in-hand with substantive injustice. Brownlee succumbs to the general tendency to devalue civil disobedience’s identifiably legal features. 158. Democratic and Authoritarian State. generality. The quest to bring about a greater quotient of formal legal virtues. 90. the prohibition of individual legislative decisions.. contemporary theorists not only distort civil disobedience’s rich normative foundations but also rob protestors of a vital line of defense. and thus gives everyone” potentially a right to disobey (Neumann.”83 The rule of law.84 When political systems sacrifice legal virtues to cover up dubious and even repressive state action. publicity. appeals to the rule of law offer an effective launching pad for critique. Though the idea of the rule of law remains contested. 90. One source of the shift here is the author’s embrace of a strongly positivist account of the rule of law. Even as she offers a brilliant account of the role conscientious motivation plays in civil disobedience.. Brownlee claims that the “procedural norms of generality and 81 Neumann.e. as well as a pluralization of religious and moral perspectives. Democratic and Authoritarian State. they leave us with a principled commitment to “the generality of law. . with some accounts admittedly seeming “very thin and unsatisfactory. is often linked to the struggle for justice. 84 The systematic violation of the rule of law “makes the exercise of political power illegitimate. p. generality. and not primarily the US legal system’s failure to achieve abstract legal virtues. publicity. which systematically disadvantages the law vis-à-vis morally conscientious law-breaking. especially in penal law. Complicated jurisprudential issues are at stake here. SCHEUERMAN specific unjust laws.81 Douzinas is probably right to see natural law under contemporary conditions as having “all the cognitive and theoretical difficulties of the belief in God’s law.” nor rob it of any moral or normative substance whatsoever. The (always aspirational and thus incomplete) realization of rule of law standards (e. as King intuitively appreciated. and an independent jury. By belittling civil disobedience’s legal foundations. clarity. the equality of men [sic]. More recent civil disobedients have similarly attacked specific political and legal evils and not the failures of legality per se. and the executive. 83 Neumann. prospectiveness) requires cooperation between and among the legislatures. p.

” crucial to the codification of formalized legal structures and “often grouped together under the heading ‘rule of law’.” and thus apparently lack a robust independent normative status.). free-wheeling deliberative exchange. and non-codifiable moral responsibilities of underlying moral roles. brutality. To be sure. 210–29. no principled grounds for favoring fidelity to the law over conscientious moral action can be identified. Conscience and Conviction. they thought it imperative that we explain how nonviolent law-breaking. pp. are compatible with a substantively unjust system. Conscience and Conviction. she interprets civil disobedience as potentially enriching “the deliberative democratic process. 2012]. under certain demanding exceptional conditions. general. p. 23. p. 175–6. p.88 She offers an unflattering assessment of real-life democratic legislation. and degradation” (Waldron. p.87 Brownlee tends to depict the law as a burdensome and even onerous restriction on morally conscientious action. 86 In contrast. in order to contrast it unfavorably to a demanding—and highly idealized—vision of morally conscientious protest. Such rule of law virtues should be considered subordinate to “the substantive. 158. p. and law is not the final arbiter on the content and force of those rules and norms [author’s emphasis].”85 Since the rule of law can be disconnected altogether from morality.”89 However. a certain tendency to discount the law slips into her account.. context-sensitive. In opposition to the view I recalled above. The myriad reasons why respect for the law typically makes sense when government action is public. 89 Ibid. because she views the crucial law-making element of that process as flawed. 96. . 116. Jeremy Waldron’s legal positivism sees the rule of law as associated “with prohibitions on torture. which emphasizes law’s normative and political advantages vis-à-vis conscience. or rests on an imperfect yet still inclusive. for Brownlee law is only the most blunt manifestation of the social rules and moral norms that govern a reasonably good society.86 The author’s skepticism about law’s own normative resources surfaces elsewhere as well. 88 Ibid. and indeed may be congruent with injustice or evil. pp. The Rule of Law and the Measure of Property [Cambridge: Cambridge University Press. tend to get pushed to the wayside. could be 85 Brownlee. 87 Brownlee. proffering a hard-headed “realistic” account of legislative politics as a way of undercutting law-making’s merits and the many familiar reasons for a general deference to the law. 47). She worries about exaggerating its epistemic merits. a position which even some legal positivists now deem excessive. RECENT THEORIES OF CIVIL DISOBEDIENCE 445 predictability.. prospective. She relies here on Raz’s legal positivism (Authority of Law. Precisely because earlier liberal theorists took our general obligation to the law so seriously. The problem here is a controversial assessment of the rule of law that risks robbing it of any normative substance.

Civil Disobedience and Deliberative Democracy. some legal penalties (for example. 92 Brownlee.”91 The conventional demand that nonviolent lawbreakers be prepared to accept the legal consequences of their actions is by no means absolute. E. 91 Brownlee. p.94 90 Brownlee is hardly alone today in her rejection of a robust general duty to obey the law (see M.” then evasion might be justifiable. in fact. fines). . “Penalizing public disobedience. 711–6. Also. p. A disobedient who accepts the legitimacy of criminal proceedings which are secret. When conscientious and politically responsible. and the law is then justified in relying on sanctions that better acknowledge their distinctive traits. 240.” This simple but decisive point was already made by Peter Singer in 1973. and society should “look to non-punitive. or if punishments were made draconian in order to prevent dissenters from publicizing their views. Conscience and Conviction.92 Admittedly.” Ethics. restorative ways” to engage civil disobedients. and publicity).90 This tricky but decisive question—how do we square law-breaking with general obligations to the law?—tends to disappear from Brownlee’s account. 117 (2007).” A Companion to the Philosophy of Law. but not an array of conventional punishments which inappropriately stigmatize conscientious lawbreakers. 118.93 When criminal proceedings potentially violate basic legal virtues (generality. On the contrary. 83–4. their actions are in fact qualitatively different from garden varieties of criminality. are then probably most suitable. In a complicated exposition whose logic flows out of her philosophically impressive version of the anti-legal turn. or arbitrary does not.” Ethics. White. SCHEUERMAN interpreted as consistent with it. Brownlee concludes that civil disobedients possess a defeasible “moral right not to be punished. by participating in them she risks inadvertently becoming complicit in the regime’s assault on the rule of law. Dennis Patterson [Oxford: Blackwell’s. 93 Singer. there may be better ways to undergird civil disobedience’s legal credentials than requiring protestors to face criminal sanctions.446 WILLIAM E. Willingness to accept such sanctions only makes sense if judicial proceedings embody core facets of the rule of law. necessarily help uphold law’s highest aspirations. 251. Smith. irregular. pp. (2008). and no possibility of using punishment for publicity purposes. ed. 94–8. otherwise. “The duty to obey the law. B. According to David Lefkowitz. 94 Lefkowitz. 465–74). As recent writers have also noted. also. sound reasons can be adduced for avoiding criminal punishment. see Brownlee. pp. Democracy and Disobedience. or where the independence of courts is badly compromised. when he noted that if protestors faced a situation where there was “no right of public trial. 202–33. there may be good reasons why disobedients should face only those legal penalties which successfully mitigate the moral condemnation and opprobrium typically associated with criminal punishment. Conscience and Conviction. “On a moral right to civil disobedience. 1996]. clarity. pp. it is unclear that a disobedient in fact demonstrates “the very highest respect for the law.

POLITICAL RAMIFICATIONS I have argued that an earlier generation of Anglophone liberal thinkers. it cannot support the cause of dissidents who seek to bring about meaningful political change. By systematically favoring a moral right to civil disobedience over the law. and serious. that endeavor is simply out of sync with contemporary political realities. 96 William E. my claim raises questions I cannot fully answer here. On one critical view. I conclude by responding to one likely rejoinder to my defense of an increasingly unfashionable legalism. a more fine-tuned approach to the legal treatment of civil disobedience need not conflict with a prospective disobedient’s attempt to prove her fidelity to the law. it deserves to be embraced. According to advocates of the anti-legal turn. more remains to be said. moral commitments” but also principled fidelity to the rule of law. “Whistleblowing as civil disobedience: the case of Edward Snowden. Conscience and Conviction.g. 23–4. was right to follow the example of Martin Luther King in conceiving of civil disobedience as expressing fidelity to the law. In light of the necessity of overhauling the orthodox liberal theory of civil disobedience. a key reason for abandoning legalistic views of civil disobedience is precisely their alleged misfit with contemporary political and social movements. Yet Brownlee probably goes too far. she ultimately cannot explain why “conscientious communicative breaches of law” rest potentially not merely on “steadfast. RECENT THEORIES OF CIVIL DISOBEDIENCE 447 If legal systems can integrate this insight without unduly undercutting basic rule of law virtues.95 IV. Edward Snowden’s whistleblowing. relies heavily on appeals to standing law and an implicit notion of the rule of law. Who today really believes that far-reaching political change can be advanced via stodgy appeals to the rule of law? Some contemporary examples suggest otherwise. requiring basis due process and prohibiting unreasonable searches 95 Brownlee. Rawlsian) positions to which it was welded? How to separate the wheat from the chaff? Although my self-consciously modest efforts have hopefully provided preliminary answers to these questions. pp. their analytic limitations notwithstanding. can we maintain the idea that civil disobedience buttresses the rule of law without succumbing to the errors of the standard liberal (e. though possibly mistaken. In principle. Scheuerman. in short.96 In a public statement delivered at the Moscow Airport in July 2013.” Philosophy and Social Criticism. For now. sincere. . 40 (2014). 609–28. he lambasted US surveillance for being out of sync with the US Constitution (and especially the Fourth and Fifth Amendments. Of course. which in key respects meets the standard liberal conditions for legitimate civil disobedience. and that contemporary theorists risk abandoning this intuition at a high cost. how might its valuable “legalistic” intuitions be successfully salvaged and updated? How..

Observers can disagree about how precisely Snowden has ignited a massive worldwide public debate.”98 In his exchanges with the journalist Glenn Greenwald. forthcoming. unavoidable. Jonathan White uses the apt phrase “emergency Europe” to describe how EU elite-level political rhetoric now regularly asserts the existence of a panoply of urgent exceptional and even existential threats in order to legitimize measures “contravening established procedures and norms” as necessary. generate overdue legal reform. the NSA. . Ewan MacAskill.101 The immediate consequence is 97 “Statement by Edward Snowden to human rights groups at Moscow’s Sheremetyevo Airport.” Political Studies. 98 Quoted in Glenn Greenwald. Snowden’s legalism may be somewhat idiosyncratic.” Guardian. and the US Surveillance State (New York: Metropolitan Books.com> (accessed 20 July 2014).org/Statement-from . it is the US government which has systematically abandoned the rule of law.g. and consistency play paramount roles. individual citizens have the duty to violate domestic laws to prevent crimes against peace and humanity from occurring. and the Nuremberg principle that individuals have international duties which transcend the national obligations of obedience. they seem to have hit a raw nerve with people around the world. Yet a strong argument can be made that part of his astounding appeal stems from the “hairsplitting” legalism pivotal to his case. and thereby intrinsically rational.448 WILLIAM E. 100 Rule of law arguments are crucial to the related case of Bradley (now: Chelsea) Manning (Chase Madar. Therefore. available at <www. . 9 June 2013. 123–5). SCHEUERMAN and seizures). “Emergency Europe. 2013]. From his perspective. 99 Glenn Greenwald. “Edward Snowden: the whistleblower behind the NSA surveillance revelations.> (accessed 20 July 2014).theguardian.” 12 July 2013. Snowden relied extensively on arguments in which the legal virtues of publicity. The Passion of Bradley Manning: The Story Behind the Wikileaks Whistleblower [London: Verso. unequal pardon. Snowden’s appeals to international law and the principle of legality transcend national borders. No Place to Hide: Edward Snowden. he sees his illegal leaks as necessary to refurbish existing constitutional (and international) law. 2014). Admittedly.97 Snowden has also accused the secret Foreign Intelligence Surveillance Court of failing to exercise minimal judicial oversight. What then of the possible relevance of my argument for other settings? Anti-austerity protests in Greece. pp. Spain. while his actions merely bring its illegalities to public light. international human rights law (e.99 Reminiscent of earlier civil disobedients.. the Universal Declaration of Human Rights). . viewing the secret court as the main institutional vehicle for an ominous “federation of secret law. 101 Jonathan White. His cause has become a rallying cry for emerging transnational publics outraged by intrusive surveillances policies not just in the US or UK but elsewhere as well.100 His example also suggests that law-based models of civil disobedience may be suited to a globalized political universe. and irresistible executive power. and Lara Poitras. available at <http://wikileaks. and elsewhere provide a second example. and also help better achieve legal virtues associated with the rule of law. generality.

. at least claim loyalty. the EU bailout and anti-austerity measures were arguably passed in violation of the rule of law: The loan and memorandum agreements imposed taxation increases and savage salary and pension cuts before they reached Parliament. Within Greece. The law gives carte blanche to ministers to issue executive decrees. much of the protest in Europe has targeted concrete injustices. principle by discretion . Yet. given the austerity measures’ by no means accidental sacrifice of basic legal virtues. 102 Douzinas. . .. Here. protesters need to show potential sympathizers that they not only represent bad substantive policy but also a direct assault on longstanding rule of law ideals to which the EU. legislation by executive action. Philosophy and Resistance in the Crisis. 103 Ibid. repeal pre-existing laws and sign further binding agreements giving away parts of national sovereignty without Parliamentary approval.”103 He implicitly acknowledges that violations of basic rule of law standards are oftentimes intermingled with substantively unjust policies. The complex memorandum imposing the austerity measures was passed under “guillotine” procedures with minimal debate. RECENT THEORIES OF CIVIL DISOBEDIENCE 449 a growing dependence on legally dubious top-down executive measures along with a disturbing tendency to demote normal deliberative and law-making channels. The familiar—but now increasingly neglected—idea of civil disobedience as congruent with the rule of law still provides impressive normative and political firepower.” If the austerity measures are to be tempered or even reversed. it probably makes sense for protestors to pursue nonviolent disobedience so as to highlight their “very highest respect for the law. A viable response will need to counter both the concrete harms at hand and the broader and potentially more consequential attack on legality. 44. for example. as well as its member states. p. Douzinas rightly worries that the Greeks and others are facing a situation where “all major aspects of legality have been weakened. attacks on the rule of law and bad public policy go hand in hand. Understandably. which was reduced to the role of rubberstamping a fait accompli. . as in many other concrete scenarios. p. . Rule is replaced by regulation. The law implementing the agreement was adopted with a simple majority despite constitutional provisions requiring a three-fifths majority . which can cover all aspects of economic and social policy. 46.102 Despite his own skepticism about liberal legalism. normativity by normalization.