Civil obedience and disobedience

I Freedom and political authority

My proposed model of freedom and political authority starts from an intersubjective conception of freedom as autonomous agency. I find Charles Taylor’s idea of strong evaluation a productive starting point for this conception. If developed in certain ways, it can accommodate the self-determining aspect of the concept of autonomy, while avoiding the unwelcome connotations of self-ownership and self-containment that the concept has acquired in the course of western modernity. I argue, however, that Taylor’s articulation of the idea of strong evaluation requires development in three directions. ² As it stands, one significant shortcoming is its lack of a constitutive intersubjective dimension. While Taylor acknowledges the modern self’s formation within webs of social relationships, ³ he does not build intersubjectivity into the very concept of strong evaluation. In addition, his account of ethical justification and truth is underdeveloped. A further inadequacy is insufficient attention to the social and political conditions necessary to enable interaction between strong evaluators.

Taylor views (western) modern selves as ‘strong evaluators’, persons who construct their identity in reflective engagement with a range of questions about the good. ⁴ As strong evaluators we are concerned not only with the question of who we are, but also who we want to be. To ask such questions is to position ourselves reflectively in relation to ideas of the good; ‘the good’ here is that which is picked out as comparably higher in a qualitative distinction; thus Taylor speaks of ‘higher goods’. ⁵

In my account strong evaluators form their identities in engagement with other human subjects, who, too, must be strong evaluators. My argument for this starts with Taylor’s connection between strong evaluation and ‘higher goods’. However, it adds to this an idea of ethical truth that is dependent on deliberation with others. This enables me to show that strong evaluators can develop fully as such only in interaction with other strong evaluators.

While Taylor often grapples with the question of conflict between rival conceptions of the good, ⁶ he does not confront the question of how to assess claims to ethical truth; by this I mean a subject- and context-transcending idea of validity relating to the good. I fill this gap by positing an idea of ethical validity that is at once context-transcending and justification-dependent. ⁷ By ‘ethical’ I mean relating to ‘higher goods’ (I use the terms ‘ethical’ and ‘moral’ interchangeably in the following). My contentions are: first, truth in the ethical sense transcends the justificatory practices of any human community; second, truth in the ethical sense is conceptually tied to social practices of open-ended, unconstrained, inclusive and fair argumentation; for this I offer an argument in terms of a relatively stable set of values shaping human identities in western modernity. ⁸ This leads me to conclude – in the spirit of Taylor – that a constellation of ideas connecting truth conceptually to public justification is an important element in the formation of modern selves as strong evaluators and, by extension, autonomous agents.

To accommodate this aspect of strong evaluation, I introduce a second core element into my account of autonomy: rational accountability. By this I mean a human subject’s willingness and ability to take responsibility for her actions, judgements and self-interpretations in the sense of giving an account of them to others. Rational accountability is an interpretation of what it means for individual human subjects to be able to call reasons their own; this too is important for the self-determining aspect of autonomy. However, the emphasis shifts from ownership of reasons to responsibility for them: ethical reasons are not owned by individual human subjects, but owed to others. Moreover, ethical reasons are not guaranteed protection from the critical gaze of others, but rather opened up to their critical judgements, while allowing for specific contexts in which individuals would be justified in refusing to open their ethical views to critical interrogation; for example, because their interlocutors do not treat them as their equals.

In my account, in short, the development of selves as strong evaluators calls for critical engagement with ideas of the good in interaction with others.

A further important implication of my connection between strong evaluation and rational accountability, together with my assertion that strong evaluation is oriented towards a justification-dependent idea of ethical truth, is that full development of the capacity for strong evaluation requires encounters between selves who recognize each other as strong evaluators. Otherwise, the preconditions for public justification (in particular, the requirement of fairness) would not be met. The modern ideal of public justification through the exchange of arguments demands that everyone participating in the process of deliberation is given an equal opportunity to contribute to the discussion and that their contributions are treated as equally important in principle. This presupposes that everyone participating is acknowledged as a strong evaluator. I argue, therefore, that strong evaluation requires the kind of institutional framework that is provided only in modern institutions, which formally recognize the equal capacity for autonomy of all their members. I contend, furthermore, that even institutions (such as the family) that are not political in the narrow sense depend for their functioning as modern institutions on modern legal and political institutions, which guarantee formal recognition of the equal capacity for autonomy of all their members.

Another crucial part of my proposal ties strong evaluation and, hence, individual autonomy to active engagement in social life. The identities of modern selves are formed in webs of social relationships within multiple social institutions, used in a broad sense. Examples include schools, families, churches, sports clubs, courts of justice, the parliament and also some kinds of private corporation. Social institutions share 4 features. First, they are human constructions, produced in complex ways by social interactions. Second, their identity is not reducible to the identities of their members. Third, they are incorporations of particular (often plural) ideas of the good. As such their identities are ethically inflected. Fourth, they have determinate structures and are regulated by norms or, as the case may be, laws and ordinances that are binding equally on all their members.

Modern institutions must substantively recognize their members as strong evaluators. This is in addition to the formal recognition they accord their members as in principle free and equal. By ‘substantive’ I mean recognition of the importance of the substance of their particular ideas of the good. Put differently, modern institutions must be open to transformation in response to the ethical challenges they encounter from their members; these challenges will be directed at some aspect of the institution’s ethically inflected identity: at its operation, its organization, or its guiding ideas of the good. This means, in turn, that modern social institutions must see themselves, and be seen by their members, as in a permanent process of construction, motivated by a concern to make the institution expressive of the good as its members conceive it. Since these conceptions of the good are often plural and sometimes conflicting, the process of construction will be agonistic rather than harmonious. Nonetheless, each member of the institution, insofar as he is a strong evaluator, may see himself as involved in the construction of a common good that defines the identity of the social institution in question.

In explicitly political contexts I use the term ‘common good’ to refer to the source of political authority. The common good is the ethically inflected identity of an ensemble of institutional arrangements designed to foster the well-being of everyone equally. These serve to constitute a system of law that formally guarantees the equal status of subjects as strong evaluators, both within particular social institutions and as participants in the collective process of constructing a common good. These institutional arrangements also contribute substantively to the construction of the identities of individual human subjects as strong evaluators; they do so by incorporating ideas of the good that offer individual subjects ethical orientation, which they can accept or challenge in processes of critical engagement with their own ethical ideas and intuitions.

Liberal-democratic thinkers tend to treat the idea of the common good with suspicion. They worry that particular visions of the common good may be imposed by politically dominant groups on all members of the political association to the detriment of their individual freedom. Even Habermas, who offers a model of liberal-democratic politics with explicit ‘republican’ features, is wary of the term ‘common good’, which he sees as an unacceptable ethical constriction of politics. ⁹ However, this objection is addressed by my processual interpretation of the common good as perpetually under construction by the strong evaluators affected by it. For, a processual conception of the common good calls for political institutions in which political authority, too, is constructed on an ongoing basis in agonistic democratic processes and, thus, made by its subjects rather than imposed on them.

The ethically oriented construction of political authority by the subjects of that authority is only one of its two sides. In the broadly Kantian tradition of legal thinking, which I find fruitful, modern law has a dual character: its enforcement is always intertwined with a claim to legitimacy based on its promise to ensure freedom for everyone. In my discussion so far I have focused on its normative claim to legitimacy. But political authority, and the law as its organ, requires not just acceptance for freedom-related reasons, it demands compliance from the subjects who make it. This is why the term ‘obedience’ is appropriate. However, political authority is distinguished from other forms of political power by its internal relation with freedom. As mentioned initially, this means that it is a constraining power, but not purely constraining. At a minimum, this is because it is freely accepted by those it constrains (for the sake of some good, which may not be freedom); the stronger interpretation I propose connects political authority with freedom due to its contribution to the full development of autonomous agency – because it is freedom-enabling, in both a formal and a substantive sense.

In modern contexts when a political system in its totality fails to meet its commitment to freedom, it no longer exercises authority; rather, insofar as it continues to constrain its subjects, it is dominating power. Resistance here cannot take the form of disobedience, since disobedience presupposes authority. Historically, the breakdown in political authority, and its replacement by dominating power, has met with various forms of resistance – from ‘inner emigration’, to purely symbolic public expressions of dissent, to political dissidence, to revolutionary struggle. We may speak of disobedience, by contrast, where the political institutions as a whole continue to exercise authority. In such cases certain aspects of the political system are regarded by citizens as unacceptable, but the legally established means of addressing its deficiencies prove ineffective. Citizens, individually or collectively, find it necessary to break the law in the interests of making good the political system’s claim to authority. Thus they seek to transform aspects of the existing system; they do not seek to destroy it in its entirety. In my account, as we have seen, law is a necessary precondition for the full development of autonomy, guaranteeing each citizen formal equality as an autonomous agent. Thus, breaking the law is a serious matter, even when undertaken for the sake of restoring or enhancing the freedom-enabling powers of the political authority it serves. This is why civil disobedience should not be undertaken lightly, but only when other routes to political change are blocked, and following due reflection and mental and bodily preparation. ¹⁰

II Civil disobedience: A constellation of ethical, legal and political concerns

I have situated political obedience and disobedience within a dynamic model of individual freedom and political authority, in which each contributes in significant measure to the constitution of the other. The model provides a framework for thinking about civil disobedience that is general enough to allow for contextually relevant variations; for example, regarding requirements of publicity, non-violence, acceptance of punishment and so on. At the same time, it possesses a certain determinacy, specifying an account of civil disobedience as a form of transformative action that has three moments: an ethical, a legal and a political one. This resonates with William Scheuerman’s contribution to the present discussion, where he endorses the ‘three-pronged’ approach to civil disobedience he discerns in Rawls’ famous definition. ¹¹ However, Scheuerman’s helpful spotlighting of the legal ‘prong’ of civil disobedience seems to come at the expense of its ethical and political ones. A similar one-sidedness is evident in the normative models outlined by Kimberley Brownlee and by Robin Celikates. Brownlee spotlights the ethical moment and Celikates the political one; in each case, there is implicit reference to the other two moments, but they are not well developed and it is quite unclear how the three moments are related.

The general framework I propose acknowledges the importance of the moments spotlighted by Brownlee, Scheuerman and Celikates but moves beyond them, integrating the three moments within an account of civil disobedience as a constellation of ethical, legal and political concerns.

The ethical component of civil disobedience is often construed in terms of conscience. Some political theorists worry that appeals to conscience, which they regard as appeals to ‘private morality’, are inappropriate in the justification of political action under contemporary conditions of value pluralism. Thus, Scheuerman queries the normative force of appeal to conscience in pluralistic societies ‘in which conscience speaks neither with one voice nor even in one moral or religious language’. In the same vein Celikates warns against ‘a one-sided ethical focus on individual conscience’. By contrast, in her book Conscience and Conviction Brownlee offers a strong argument for conscience-driven civil disobedience based on a secular re-articulation of the idea of conscience. ¹² Brownlee refrains from making conscience a necessary component of her normative account of civil disobedience, allowing for justifiable acts of civil disobedience that are not conscience-driven. Nonetheless, she emphasizes its ethical dimension, reminding us that civil disobedients address us as moral agents and are concerned to provoke democratic reflection on the moral merits of their cause. I take my lead from Brownlee in my approach to the ethical dimension of civil disobedience, leaving open the question of the specific motivations driving acts of disobedience in particular cases. At the same time I share Brownlee’s view that (a reconfigured idea of) conscience has an important place in any account of civil disobedience. ¹³ Conscience as I understand it refers to a dynamic movement, in which a fluid set of ethical norms or guidelines is produced by the self for the self by way of an internal process of ethical reflection. Typically, this process of reflection is motivated by an internal dissonance: the self is divided within itself. This fits well with my account of autonomous agency in terms of strong evaluation. I argue further that the ethical prescriptions issuing from an individual agent’s conscience should feed into public life, contributing to the construction of the common good, and in turn open to reconstruction when contested by other agents in everyday encounters. Notwithstanding this insistence on the importance of conscience for the vitality of the public sphere, my approach to civil disobedience remains on a general level. It abstains from specifying any particular motivation, such as conscience, while allowing us to make sense of the ethical component of civil disobedience, which remains implicit in both Celikates’ and Scheuerman’s accounts. Celikates describes civil disobedience as seeking to change specific laws, policies, or institutions. Presumably he means social change for the better in an ethical sense: change that makes society more just or transparent or freedom-enhancing or in some other way conducive to human flourishing; however, this part of his account is underdeveloped. Likewise, Scheuerman endorses Rawls’ attribution of an ethical moment to civil disobedience as flagged by the term ‘conscientious’ in his famous definition; ¹¹ however, as things stand it remains unclear what he means by this term and how the ethical moment relates to the legal one, in particular.

As mentioned, Scheuerman spotlights the legal moment of civil disobedience, offering a normatively demanding account of the Rawlsian idea of ‘fidelity to law’. He characterizes civil disobedience as a radical, non-violent assault on the legal status quo that may be the starting point for far-reaching and potentially transformative change. The aim is a broader system of legality suitable for modern, complex and pluralistic societies in which all citizens can coexist peacefully and each citizen can enjoy a ‘measure of liberty’. While the idea of freedom implicit in Scheuerman’s account is less robust than the one I have sketched, and moreover is tied to a concern for stability, the transformative aim he attributes to civil disobedience resonates with the model of freedom and political authority I propose. Unlike Brownlee and Celikates, therefore, I do not regard his view of law as overly idealistic and optimistic.

The legal moment is underdeveloped in their accounts. Furthermore, the views of law they appear to endorse are at odds with the transformative aim they themselves attribute to civil disobedience and that is a vital ingredient in my model. In my account, law is not an irremediably hostile force that is challenged by acts of civil disobedience; rather civil disobedience challenges the law with a view to transforming it in an ethical sense. As we have seen, this by no means excludes a confrontational relationship between law and its subjects along the lines sketched by Celikates. Indeed, confrontation is built into the model of freedom and political authority that I propose. Importantly, however, such confrontation must be understood agonistically rather than antagonistically: ¹⁴ the law is not the enemy of civil disobedients but their adversary, a power that they normally encounter as an enabling component of their freedom, but which, in specific instances, becomes disabling. By contrast, at least on occasion, Celikates seems to regard law as an irremediably hostile force. This is not apparently Brownlee’s view; however, her ‘modesty of law’ thesis, according to which law has no ethical capacities or, at best, minimal ones, would deny law the role I ascribe to it as an agent of individual freedom. ¹⁵ But if law were irremediably hostile, or even essentially detached from citizens’ ethical aims – from their pursuit of ‘higher goods’ – we would not be able to make sense of the transformative aspect of Celikates’ and Brownlee’s accounts of civil disobedience. Celikates, as noted, attributes to it socially transformative aims. Brownlee writes that it aims ‘to prompt democratic reflection that will lead to well-considered, lasting change’; given the democratic character of the anticipated reflection, it seems safe to assume that the change sought is to the existing legal and political institutions or to some actual law, ordinance, or public policy; moreover, that it is change for the better in an ethical sense. However, it is not clear how this transformative aim fits with her view of the modesty of law; nor is it clear how the legal and political moments relate to the ethical moment spotlighted in her account.

Celikates spotlights the political moment of civil disobedience. He reads civil disobedience as a political act of citizen self-determination, understood as a dynamic process of democratic construction of the political realm: it is a horizontal form of constituent power that provides a democratically necessary antidote to the vertical, constituted power of the established political order. He describes it as an expressive act of collective self-determination, as an act of empowerment that aims for a more intensive or extensive form of democratic self-determination. While this is entirely in line with my own proposal, Celikates runs the risk of celebrating democratic engagement for its own sake, akin to Georges Sorel in his writings on violence and revolution in the first decade of the 20th century, who appears to endorse not what the proletariat fights for, but that it engages in violent confrontation. ¹⁶ In order to avoid this danger Celikates would have to see civil disobedience not as an act of collective self-assertion vis-à-vis an antagonistic political system but as confrontational political action that has a transformative, constructive aspect. In other words, he would have to share my view that civil disobedience aims not just to shake up legal and political institutions and their products; in addition, it seeks to change them for the better in an ethical sense. Certainly, Celikates hints at such a constructive aspect, but on occasion he appears to favour an antagonistic view of democratic confrontation and the view of law that is connected with it as irremediably hostile. Overall, however, I find his dynamic, processual account of the political – if understood agonistically rather than antagonistically – congenial from the point of view of my own approach, which situates civil disobedience within a mutually constitutive relationship between individual freedom and legally binding political authority. By contrast, it is unclear from Scheuerman’s account how civil disobedience could contribute to the very constitution of the public realm. He takes Celikates to task for over-inflating the transformative role of confrontational collective action by citizens. Instead, he apparently endorses a Rawlsian view of the political – or at least does not distance himself from the Rawlsian view. But without considerable development, Rawls’ model of public reasoning, together with the overlapping consensus that is an integral part of it, is not well suited to a view of civil disobedience as politically transformative action. Given his endorsement of Rawls’ three-pronged approach to civil disobedience, therefore, Scheuerman owes us a fuller account of not just its ethical moment but also its political one. Brownlee’s account of the political, too, is underdeveloped. In her book there is a brief reference to democracy as a ‘work-in-progress’; she elaborates to describe it as an ongoing process of giving and taking, discussing and competing, and prioritizing and adapting. In the same vein, she holds that the challenges to the majority issued by civil disobedients reflect the true spirit of democracy. ¹⁷ This fits well with the agonistic model I propose and provides a basis for a view of civil disobedience as seeking political and legal change in an ethical sense. As things stand, however, her account of the transformative dimension of civil disobedience is in need of further development.

I have sketched a model of freedom and political authority that allows us to see civil disobedience as transformative political action. Its transformative aims distinguish it from other forms of political protest, which either call for the overthrow of the existing political system (for example, dissidence or revolution) or resist it without hope of changing it for the better (for example, inner emigration or purely symbolic public expressions of dissent). In sum, the proposed model offers a general framework for thinking about civil disobedience as a form of political protest that intentionally breaks the law for the sake of ethical transformation of the law, together with the system of political authority it enables. The transformation is ethically motivated in the sense that it aims to change society for the better, which I take to mean a social condition more conducive to the individual autonomy of each of its members. In this way my model brings together the ethical, legal and political moments individually spotlighted by Brownlee, Scheuerman and Celikates.