Abstract
Political theorists and philosophers, writing in the long shadow cast by Sophocles’s Antigone and Plato’s Crito, have generally argued that individuals have a political obligation to obey the laws of their state or country. The inversion of this question—is there a duty to disobey unjust laws?—was, with a few important exceptions, generally ignored until the 1960s. During the civil rights movement proponents of civil disobedience argued that breaking unjust laws could be moral too, especially when it was done in a particular way. According to this view, disobedience to the law can be legitimate so long as it is “civil,” meaning in the broadest terms that it is subject to collectively imposed constraints that are in accord with democratic principles and values.
What about uncivil disobedience to unjust laws? Might that be legitimate, too? This is the central question taken up by Candice Delmas in A Duty to Resist: When Disobedience Should Be Uncivil. The book makes two related arguments. First, Delmas argues that there is a duty to disobey unjust laws, not just a right to do so. Individuals are morally required to violate laws that are unjust, even in democratic, legitimate states or governments. “Resistance to injustice is, I will argue, our political obligation” (5). Second, Delmas argues that both civil and uncivil disobedience are legitimate methods of violating the law. A main goal of the book is to argue for an expanded notion of legitimate resistance and law breaking, one that includes violent, covert, or offensive actions that are typically seen as outside of the realm of civil disobedience.
The book begins by exploring “principled disobedience,” a term that encompasses civil and uncivil disobedience (21). Delmas’s goal is to clarify what these two terms mean, and she begins by examining existing accounts of civil disobedience, paying particular attention to John Rawls’s account of civil disobedience as well as the activism in the civil rights movement that inspired it. Rawls, Delmas argues, offered an idealized account of civil disobedience that, in addition to being unattainable, was based on a misunderstanding of the civil rights movement. Rawls, for instance, emphasized the activists’ respect for the law and their preference for nonviolence, seeing these elements (and others) as key to civil disobedience as a legitimate political action. But, these decisions were strategic decisions made for tactical, context-dependent reasons, not principled ones (27). Thus, the Rawlsian notion of civil disobedience, scrubbed as it is of historical accuracy, creates a standard of judgment that emphasizes conformity and docility. Delmas does not, in the end, give an account of civil disobedience that is radically different from traditional conceptions. She understands civil disobedience as a form of resistance that is public, nonevasive, nonviolent, and respectful (17). But Delmas suggests that these characteristics should be informed by an understanding of the phenomenology of resistance as unruly and oppositional action that intends to disrupt and transform power relations, not by an idealized and disciplinary account of what civil disobedience should be.
The centrally provocative argument of the book is that uncivil disobedience is also a legitimate form of resistance. Since this is a less familiar term, several sections of the book are devoted to defining and defending uncivil disobedience. Delmas categorizes uncivil disobedience as the second element of principled disobedience and sees it as the inverse of civil disobedience on every count. Uncivil disobedience is covert, evasive, anonymous, violent, or deliberately offensive. At the same time, uncivil disobedience is not unbounded, unrestrained, or chaotic for Delmas. Specific examples of uncivil disobedience include destruction of property, violence toward individuals, guerilla theater, distributed-denial-of-service attacks, riots, and vigilantism (17).
Delmas makes efforts to limit legitimate uncivil disobedience, arguing that those engaging in uncivil disobedience should act with respect for the interests of others, “including, but not limited to, their basic interests in life and bodily integrity . . . and their interest in protection by a stable, secure system of rights” (49). Here Delmas might be accused of the very same critique that she raised against Rawls—that is, of ignoring the unruly phenomenology of resistance in order to present an idealized and disciplinary account of uncivil disobedience. Delmas does not confront or address this critique directly. She does note that the interests of others are not absolute; they must be weighed against the interests of the activists. For instance, the activists’ fundamental interest in nondomination might justify a limited destruction of property or the violent removal of scabs during a strike. Another limitation, according to Delmas, is taking the least harmful course of action to achieve the activists’ legitimate goal. At the same time, those engaging in uncivil disobedience might choose a more harmful plan if the least harmful course of action requires too much sacrifice on their part (49). With these two limitations in mind, respect for the interests of others and the least harmful course of action, Delmas excludes racist and hateful violence from the realm of uncivil disobedience. The limitations mean, for example, that the “Ku Klux Klan’s vigilante terrorism” does not constitute uncivil disobedience, while the “British feminist street artist Bambi’s politically conscious graffiti and swastika vandalism” does (48–49, also see 96–98). Or, as she puts it, “throwing flour and eggs—or as PETA activists do, tofu cream pie—is preferable to throwing punches” (245).
The extent of political obligation in this account is high; ordinary citizens have a duty to resist laws they deem to be unjust. In part because the obligation is so demanding, it makes sense to ask what principles support it. The bulk of the text, the three central chapters, take on this issue by illuminating the principles that demand the duty to disobey. This part of the book is intriguing, not just for the substance of the argument but also for its form. Delmas does not support disobedience by appealing to unconventional principles, obscure vocabulary, or an unfamiliar ideology but rather justifies disobedience by way of broadly accepted political principles and ideals that support obedience. In fact, she maintains that the very principles that demand obedience to the law also demand disobedience.
The first conjoined principles that compel disobedience to unjust laws are justice and democracy. These principles come into play when citizens confront laws that deny some individuals their free and equal status or create conditions that do so. There are five categories of unjust laws or contexts: disrespect, wrongs to nonmembers, deliberative inertia, official misconduct, and public ignorance. Disrespectful laws, for instance, that enslave, segregate on the basis of race, or disenfranchise women can legitimately be disobeyed, as can antitrans bathroom policies, the French Riviera’s “burkini bans,” policies concerning the solitary confinement and exploitation of prisoners, and laws that concentrate wealth. Because they actually do harm to democratic principles of freedom and equality, Delmas argues, violating these unjust laws and policies will strengthen democracy. The demands of justice and democracy are not limited by formal citizenship or national boundaries, as the concern for injustice should extend to all those who live within a state or country, not only legal citizens, and to transnational prodemocracy struggles beyond its borders.
The second principle that compels disobedience is fairness, which implies a duty to fair play and proscribes against free riding. Free riding is especially important for Delmas, because she uses it to understand the injustice of laws that foster exploitation or harmful social schemes like racial caste systems, capitalist economic arrangements, and sexist societies. Using the American period of Jim Crow racial oppression as an example throughout this discussion, Delmas argues that Whites who supported and were sympathetic to the racial oppression and terror during this period were moral free riders—that is, they deliberately took advantage of the subjection of Blacks and, so doing, benefitted unfairly from the economic, social, and political oppression of this group. Delmas thus extends the moral culpability of ordinary citizens, making them responsible for the broad social injustices, and she expands the moral responsibility of ordinary citizens to address these wrongs. There are multiple ways to address systemic injustice, including legislation, court decisions, reparations, and affirmative action. At an individual level, individuals might exit a morally unjust system. Delmas argues against these approaches and finds them lacking in the absence of resistance. Affirmative action programs, for instance, may fail to address pervasive structural injustices and instead provide a more humane veneer over them (126). For Delmas, resistance is critical for extensive political change. Referring back to the period of Jim Crow, resistance would mean more than voting for candidates in support of civil rights legislation. The duty to resist would mean that Whites should “contribute their money, time, and energy to the political efforts [to end racial injustice]. They ought to treat Black people with respect; call out other Whites on their overt racism; and raise unprejudiced, nonracist children: their interpersonal and even familial relations should be transformed by their recognition of their duty to resist” (129).
The third idea that compels ordinary citizens to disobey the law is the natural duty to be a “good Samaritan.” This means in practice that if an individual comes across a person or group in peril and can help without incurring an unreasonable cost, the individual is morally required to assist. Building on Christopher H. Wellman’s argument that being a good Samaritan creates a duty to obey the law, Delmas argues that it also compels disobedience. 1 What Delmas has in mind are situations in which successfully engaging in a Samaritan rescue would also entail breaking the law. Rendering assistance to undocumented immigrants today, which in some jurisdictions is illegal, is justified disobedience in her view. Another historical example Delmas gives is rendering aid to fugitive slaves, which after 1850 in the United States was a violation of the Fugitive Slave Act. Delmas also wants to extend the duty of being a good Samaritan to addressing institutional structures that create vulnerable populations, like the laws and policies that create mass incarceration, impoverished neighborhoods, police brutality, sexual trafficking, rape, and enslavement. In these contexts, acting as a good Samaritan may mean engaging in reform of unjust sociopolitical conditions, what Delmas aptly calls “rescue through reform” (153). Delmas concedes that not all citizens may be potential rescuers, because some may not be aware of the peril or may be unable to assist. Still, many individuals are morally bound by being a good Samaritan. “I want to say, many—or most—citizens, including the potential victims themselves, are passers-by capable of assistance” and therefore have a duty of assistance (148).
A theme in Delmas’s book is that ordinary citizens and individuals have a far greater duty to act on the injustices in their world than is commonly supposed. Delmas makes a concerted argument against representative government, which generally understands that representatives, not citizens, are endowed with the capacity and the responsibility to act to address injustices through law and policy. Delmas, in contrast, places moral responsibility firmly in the hands of individuals, not officials. Average, unexceptional people can act legitimately using a wide variety of tactics, including protests, strikes, civil disobedience, limited violence, and covert actions. Delmas goes further, claiming that ordinary people must act in the face of injustice. In these bracing parts of the book Delmas is at her best—a rousing critic who unflinchingly argues for our moral duty to address the injustices of our shared political world. Delmas is inspiring as well. She draws attention to the potential of ordinary individuals to achieve substantial political change through resistance and gives a palpable sense that the ordinary can become extraordinary. However, the risk is that Delmas’s account places too much emphasis on the individual, from whom she demands a great deal, and very little on the responsibilities of political officials and institutions to address pervasive and structural injustices.
An implication of the extension of moral responsibility to ordinary individuals not explored by Delmas is that it may unwittingly play into the logic of terrorism, as perpetrated both by states and nonstate actors. Delmas is careful to exclude terroristic violence from uncivil disobedience, and she advocates for a constrained use of violence that meaningfully considers the interests of others, something terrorists do not do. At the same time, terrorists generally argue ordinary individuals bear responsibility for the moral injustices of their society and, as a result, they see ordinary individuals as legitimate targets. If all are guilty, all can be legitimate targets of violence. In other words, the indiscriminate use of violence to target civilians, not representatives or officials, has its roots in the moral complicity of ordinary individuals. This type of justification for terrorism was integral to the racial violence in the Jim Crow South, a period of American history that Delmas returns to repeatedly. Some lynch mobs and their apologists understood that all Blacks were blameworthy as a group and thus targeted violence was unnecessary—any Black person’s property could be destroyed and any Black person could be tortured, raped, or murdered.
While some arguments may thus support dangerous agendas, Delmas has given us a stimulating book that goes far beyond the standard justifications for civil disobedience and that describes a far more engaged and morally responsible citizenry. For that reason alone, it should be read widely.