What Edward Snowden can teach theorists of conscientious law-breaking

In an article previously published in this journal, I argued that Edward Snowden’s whistle-blowing could be interpreted as meeting the demanding tests outlined in standard models of civil disobedience, as formulated by a host of political activists and sympathetic intellectuals in the 1960s and 1970s. ¹ In contrast to those critical of Snowden, in my view he has courageously undertaken a ‘public, nonviolent, conscientious yet political act contrary to the law … done with the aim of bringing about a change in the law or policies of the government’, an act of ‘disobedience to law within the limits of fidelity to law’, along the lines described by John Rawls and other thinkers who formulated sophisticated defenses of conscientious law-breaking in the aftermath of the political upheavals of the 1960s. ²

That familiar model, I have belatedly learned, is the object of a wide-ranging critique by recent scholars, many of whom view it as providing a poor basis for understanding civil disobedience. Although this burgeoning critical literature has pointed to major limitations plaguing the mainstream liberal defense of conscientious law-breaking, I worry that it risks throwing the baby out with the bathwater. Edward Snowden can help explain why.

The liberal model relied on the simple but fundamental insight that justifications for civil disobedience properly rest on a triple-pronged normativity, in which oftentimes interconnected yet analytically distinguishable political, moral and legal appeals loom large. As Rawls’ definition concisely captured, civil disobedients appeal publicly to their fellow citizens in order to change public policy (i.e. political appeals), their actions rest on the voice of conscience (i.e. moral appeals), and even when committing illegalities their actions must demonstrate basic fidelity to the law, or what Martin Luther King, a political inspiration for liberal theorists like Rawls, famously dubbed ‘the very highest respect for the law’ (i.e. legal or constitutional appeals). ³ The model also presupposed a general obligation, even in manifestly imperfect societies like the United States, to follow the law: politically motivated conscientious law-breaking demanded a special justification. When properly undertaken, civil disobedience constituted a legitimate response to political ills Rawls, like many other forward-looking left-liberals in the 1960s and 1970s, hoped were becoming ever more exceptional in modern ‘nearly just’ liberal democracies.

Like other political progressives, Rawls had few illusions about US democracy’s myriad flaws. Yet he and others posited that legal abidingness should typically be presumed. Only when faced with what he hoped were increasingly unusual ‘serious infringements’ of basic rights, on this account, were disobedients justified in undertaking non-violent law-breaking, whose legitimacy then in turn could be guaranteed only if disobedients successfully met a demanding set of conditions (e.g. publicity, non-violence). ⁴

Snowden has offered a similarly triple-pronged normative justification for his actions. First, we can easily identify a political prong or defense: Snowden believes that terrible political injustices have been done, and those injustices need to be brought to public light and made the object of a wide-ranging public conversation. This is why, as he has repeatedly emphasized, his own actions, albeit admittedly illegal, have been open and public, and also why he has offered detailed public justifications for them. He is addressing not only his fellow US citizens, but citizens elsewhere as well, with the hope of fundamentally changing public policy both in his home country and in those eagerly cooperating with the USA.

Second, we can find a moral prong. Snowden describes his actions as resting on a moral decision, made only after a wrenching period of internal reflection and introspection, and which has been very costly to him: he was forced to trade in a comfortable and well-paying job in Hawaii, along with his home, family and friends, for Russian exile. He has not, on my interpretation, outlined this moral or conscientious justification at great length. Does he perhaps intuit that appeals to private morality are unlikely to have a sufficient normative force in pluralistic societies, in which conscience speaks neither with one voice nor even in one moral or religious language? Snowden’s defenders, in any event, view him as an exemplar of moral rectitude, whereas his critics deem his actions morally irresponsible.

The third and most developed justification Snowden has articulated is basically legal. As I described in detail in my article, he sees NSA spying as illegal and unconstitutional, viewing it as incongruent with the Fourth and Fifth Amendments to the US Constitution, the Universal Declaration of Human Rights, and many other international norms and agreements, about which he has spoken at great length. US surveillance policy, he also regularly intimates, conflicts with a more basic notion of legality or the rule of law, requiring of every legitimate order that it instantiate an ample dose of classical legal virtues (e.g. generality, clarity, publicity, constancy and judicial independence). ⁵ Accordingly, he lambastes the secrecy of the US Foreign Intelligence Surveillance (FISA) Court, and also worries about ‘the federation of secret law, unequal pardon, and irresistible executive power’ plaguing the relevant US legislation and jurisprudence. ⁶ In striking contrast to the open and public character of his actions, the secrecy in which NSA intelligence-gathering has been shrouded corrupts ‘the most basic notion of justice – that it must be seen to be done. The immoral cannot be made moral through use of secret laws.’ ⁷ As Snowden appreciates, publicity, clarity and constancy are fundamental to any decent system of legality, whereas secret laws and courts provide an easy cover for arbitrary and even immoral state action.

Like Rawls and other proponents of the standard liberal model of civil disobedience, Snowden grasps that conscientious law-breaking best operates ‘within the limits of fidelity to law’. On this account, selective law-breaking can be justified as part of a more fundamental appeal to a broader system of legality, without which no one can realistically expect to enjoy a measure of liberty, and which alone permits us to coexist more or less peacefully under the conditions of modern, complex and pluralistic societies. Without a shared and binding system of law that successfully realizes a substantial quotient of legal virtues, it is simply unrealistic for anyone to enjoy legal security or the measure of liberty it helps provide. For this simple but decisive reason, civil disobedients are obliged to highlight their underlying commitment to the realization (and, of course, improvement and reform) of legality.

As Snowden also grasps, political and moral appeals still have decisive roles to play in justifying civil disobedience. Yet such justifications necessarily remain incomplete unless married to a principled expression of respect for or ‘fidelity to the law’. In a pluralistic context, even well-formulated conscientious appeals too often will seem subjective and untenable to our compatriots; controversial political arguments will appear no less so. In contrast, law represents a system of shared norms and principles, about which we of course disagree, but which nonetheless alone are publicly promulgated and shared. Law belongs to all of us: as a shared public code, law offers a collective and common normative language neither private conscience nor controversial political ideas can replace or supplant. When successfully embodying classical rule of law virtues (e.g. clarity and publicity), it provides not only a shared but clear and cogent normative framework, and one which has taken on a special normative status precisely because it has been promulgated and codified. As Jeremy Waldron has rightly argued, the very fact of legal enactment demonstrates that a political community has successfully agreed on shared and binding public rules even when faced with far-reaching moral and political disagreements. ⁸ Law-making constitutes ‘a triumph of peaceful deliberation and respectful cooperation’ under modern pluralistic conditions. ⁹ In contrast to many moral appeals, or controversial political claims that have yet to result in public policy, law implicitly takes disagreement and pluralism seriously while aptly acknowledging that we need shared binding rules in order to flourish.

I claim no originality in recalling this familiar notion that a principled commitment to legality remains indispensable to understanding and defending civil disobedience. Unfortunately, that familiar idea now risks becoming passé among contemporary theorists of civil disobedience. They tend to dismantle the conventional approach’s triple-pronged justificatory strategy, while simultaneously obscuring the special role legal justifications need to play. Depleting the multi-sided normativity on which older models of conscientious law-breaking drew, they leave us with one-sided (and inadequate) political or moral accounts of civil disobedience. With Snowden, I believe that we should resist this trend.

Among recent radical theorists we find what we might describe as a political turn in theorizing civil disobedience. Here the tendency is to highlight its identifiably political credentials while downplaying moral and legal prongs. For the radical democrat Robin Celikates, for example, civil disobedience is best conceived as exemplifying the key distinction between constituent and constituted powers, functioning as a ‘dynamic counterweight’ employed by the popular sovereign in opposition to the ‘rigidifying tendencies of state institutions’. ¹⁰ Celikates describes conscience-based moral justifications as exemplifying anti-political ‘romantic individualism’; he also tends to discard conventional legal justifications for civil disobedience. ¹¹ The old idea of civil disobedience as framed by some notion of fidelity to the law allegedly represents a basically conservative and institutionally complacent fidelity to the legal status quo. Militant protestors, Celikates observes, frequently seek transformative change. So why must they evince fidelity to a legal or constitutional order they hope to overhaul or even overturn?

Notwithstanding its strengths, I worry that this position rests on a troublesome anti-legalism that misses the ways in which legal appeals can have context-transcending and politically transformative implications, a point astutely grasped by my country’s greatest practitioner of civil disobedience, Martin Luther King. Legal and constitutional appeals may of course serve as complacent justifications to uphold ‘law and order’. Yet as King understood, they can also serve as a starting point for a radical, albeit non-violent, assault on the status quo, and as a way of igniting far-reaching and potentially transformative change. Law’s normative resources can be tapped so as to transcend reified distinctions between ‘reform’ and ‘revolution’, and thus precisely those elements of an outmoded political imaginary that too often unproductively haunts radical thinking about civil disobedience. ¹²

We can also find a competing moral turn in the recent debate. The most sophisticated representative of this trend is Kimberley Brownlee, whose recent Conscience and Conviction: The Case for Civil Disobedience ¹³ has become an instant classic, and thus an indispensable starting point for anyone interested in thinking seriously about civil disobedience. No one has done a better job than Brownlee in offering a philosophically nuanced examination of the role conscientious motivation plays in civil disobedience, which she now defines as ‘a conscientious communicative breach of law motivated by steadfast, sincere, and serious, though possibly mistaken, moral commitment’. ¹⁴

Though for different reasons than those motivating radical democrats like Celikates, Brownlee also devalues the familiar idea that conscientious law-breaking should rest on some basic or underlying fidelity to the law. Behind this move stands a stark legal-positivist view of the rule of law that effectively denies it meaningful normative substance, and which ultimately functions to disadvantage law’s normative energies vis-à-vis a modified conception of civil disobedience, now envisaged as a highly demanding form of morally conscientious law-breaking. Brownlee asserts that the ‘procedural norms of generality and predictability’, essential to formalized legal structures and ‘often grouped together under the heading “rule of law,” are compatible with a substantively unjust system’, and thus apparently lack a robust independent normative status. Such rule of law virtues (e.g. generality, predictability) possess at best limited normative power relative to ‘the substantive, context-sensitive, and non-codifiable moral responsibilities of underlying moral roles’. ¹⁵ Because terrible things can be done in accordance with the rule of law, its normative resources are minimal.

Brownlee’s skepticism about law’s normative resources emerges at other junctures as well. She revealingly comments that

… law is only the most blunt manifestation of the social rules and moral norms that govern a reasonably good society, and law is not the final arbiter on the content and force of those rules and norms. ¹⁶ [Emphasis added]

Not surprisingly, law tends to get depicted as a burdensome counterweight to morally conscientious action. Though her argument is generally pitched at a high philosophical level, when it comes to discussing real-life legislation she sometimes reverts to hard-nosed ‘realistic’ empirics. ¹⁷ By doing so, she conveniently undercuts law-making’s merits and the many familiar reasons for a general deference to the law along the lines presupposed by Rawls and an earlier generation of liberal theorists. Outfitted with an unsympathetic and probably one-sided account of real-life democratic legislation, she contrasts it unfavorably to a normatively demanding – and in my view, occasionally idealized – account of morally conscientious protest. We get a hard-nosed empirics of legislative politics, but no parallel hard-nosed empirics of political and social movements in which conscientious law-breaking plays a crucial role.

By highlighting civil disobedience’s specifically communicative and democratic credentials, Brownlee’s account includes some key political elements. ¹⁸ Yet hers is a model of deliberative democracy lacking a sufficient appreciation for legality or the rule of law. Many familiar reasons why respect for the law typically makes sense when government action is public, general and predictable, and statutes embody familiar legal virtues, tend to get obscured. The rule of law does, in fact, regularly provide protections against arbitrary as well as unjust state action. ¹⁹ Precisely because previous theorists of civil disobedience took our general obligation or fidelity to the law so seriously, they believed that it was necessary to explain how non-violent law-breaking, given certain demanding exceptional conditions, could be interpreted as consistent with it. ²⁰ This tricky but decisive question – how do we square law-breaking with general obligations to the law? – tends to vanish from Brownlee’s otherwise impressive analysis.

Perhaps the most important conclusion Brownlee draws from her discussion is that civil disobedients should be viewed as possessing a defeasible ‘moral right not to be punished’. ²¹ In a nuanced exposition I cannot do justice to here, she outlines a position directly pertinent to the case of Edward Snowden, who fled the USA and is still trying to circumvent prosecution. In the unforgettable (and unfortunate) words of US Secretary of State John Kerry, it is time for Snowden to ‘man up and come back’ to the USA to face criminal charges. ²² For many sound reasons, Brownlee challenges this orthodox view.

Nonetheless, as I have tried to suggest, Snowden’s heavily legal argumentation meshes poorly with the scholarly literature’s tendency to discount the law’s role in civil disobedience. Tellingly, even on the controversial matter of appropriate sanctions for disobedients, Snowden has implicitly relied on legal arguments. Nowhere has he denied that he in principle could be made subject to criminal punishment. What he in fact has emphasized is that he is unlikely to get a fair trial in the USA, chiefly because of the draconian fashion in which the Obama Administration has prosecuted whistle-blowers under the auspices of the Espionage Act, an infamous piece of legislation that makes mincemeat of basic legal virtues and provides a dubious legal cover for executive prerogative. ²³ As Snowden grasps, when criminal proceedings are likely to sacrifice basic legal virtues (e.g. publicity, or predictability), or where the independence of the judiciary is compromised, there may be good legal reasons for circumventing punishment. A disobedient who accepts the legitimacy of criminal proceedings which are secret, irregular, arbitrary, or unduly brutal does not, in fact, necessarily uphold legality. On the contrary, by participating in them she risks becoming complicit in the regime’s attack on the rule of law. Precisely such attacks, as Snowden astutely grasped, are what politically motivated conscientious disobedients have to avoid if they are to demonstrate their very ‘highest respect for the law’.