Civil disobedience and conscientious objection

The question of civil disobedience has preoccupied philosophical discourse at least since Thoreau’s articulation of disobedience as a form of non-compliance and Rawls’ classic definition outlined in the wake of the civil rights and student protest movements of the 1960s. ¹ It has become increasingly clear, however, that these classic definitions are being challenged and rethought from a variety of traditions in the wake of contemporary protests such as global anti-austerity movements, highly politicized acts of whistle-blowing and cyber-disobedience. As a response to these new forms of objection, philosophers and political theorists have sought to reconsider the classic analyses provided by Rawls and others, ² and to renew discussion on the importance of civil disobedience for contemporary democracies.

In Rawls’ classic definition, civil disobedience is understood as a conscientious political act; however, he emphasizes fidelity to the law along with the requirements of non-violence and publicity. ³ One important consequence of his idea of fidelity to the law is that civil disobedients must be prepared to accept criminal liability and punishment for their actions. Furthermore, Rawls separates civil disobedience from individual acts of conscientious objection. He argues that in contrast to civil disobedience, conscientious objection is not a form of action aimed at the ‘sense of justice of the majority’ nor is it an act undertaken in the public forum. In his view conscientious objection is not aimed at changing laws or policies but is a form of subjective non-compliance. In contrast to civil disobedience, conscience-based objection is seen as appealing to non-publicly-shared moral or religious principles of conviction, which are too subjective to constitute the basis for public political action (a concern reiterated by several contributors to the discussion in this special section). Thus, Rawls makes a clear distinction between private acts based on conscience, and public acts of civil disobedience that are addressed to aspects of a particular legal and political framework.

Many contemporary theorists argue that Rawls’ understanding of civil disobedience cannot adequately account for recent examples of disobedience such as those that transcend the boundaries of the nation-state or appeal to a transnational public sphere. Moreover, for some, the sharp distinctions he draws between matters of individual conscience, conscientious objection and civil disobedience do not adequately capture either the nature of or the motivation for political protest under contemporary conditions. Kimberley Brownlee maintains that Rawls’ definition is anachronistic and that it also neglects the ways in which disobedience might be ‘animated by conscience’. In her recent book Conscience and Conviction she makes a case for rethinking the relation between conscience and civil disobedience, as well as contesting the conditions of publicity and non-secrecy attached to the Rawlsian model. ⁴ In her view, civil disobedience should be understood as ‘a conscientious communicative breach of the law motivated by steadfast, sincere, and serious, though possibly mistaken, moral commitment’. ⁵ Brownlee attempts to rethink the relation between conscience and civil disobedience by arguing for what she terms a ‘communicative principle of conscientiousness’, whereby among other conditions, civil disobedients must be prepared to communicate their moral convictions to others and thereby partake in public debate and discussion in regard to the merits of the convictions motivating their illegal acts. In this manner, the conditions she outlines are intended to offer a means of distinguishing between justifiable and non-justifiable acts of both conscientious objection and civil disobedience, based on principles of dialogue and communicability rather than a legal framework.

The complexity of justifying action of this kind has been illustrated recently by the case of Edward Snowden. The debate between William E. Scheuerman and Brownlee in this special section shows that there are very different ways of interpreting Snowden’s acts, depending on the definition of civil disobedience one adopts. In contrast to Brownlee, Scheuerman advocates a revised Rawlsian account according to which Snowden’s whistle-blowing may be described as civil disobedience: that is, as a conscience-driven breach of law that is both public and non-violent, and undertaken in cognizance of the punishment attached to such acts of illegality. In a previous article Scheuerman argues that acts of civil disobedience, paradigmatically those of Martin Luther King Jr, are best understood as forms of protest undertaken explicitly within the parameters of the law for the purposes of changing the law; moreover, that this ‘fidelity to the law’ should determine whether or not such acts are justifiable. ⁶ In contrast, Brownlee rejects Scheuerman’s emphasis on legality and argues that a broader understanding of civil disobedience is required if we are to justify Snowden’s actions as a legitimate form of protest. In her view, in line with her principles of communicability and universalizability, Snowden’s actions can be considered a form of civil disobedience for the simple reason that they fulfil dialogic criteria, which stipulate sincerity and constancy of moral conviction as well as a willingness to communicate and defend these convictions in public. ⁷

However, these moral and legal approaches to civil disobedience are not uncontested. The liberal-democratic definition offered by Rawls represents only one strand within the political-philosophical literature, albeit a prominent one. In the late 1960s and early 1970s, Hannah Arendt made the case for an alternative model of civil disobedience that was unreservedly critical of legal and moral approaches. As Danielle Petherbridge demonstrates, Arendt’s work proposes a radical democratic approach based on what she terms a principle of dissent at the heart of constitutional democracies. This leads her to separate disobedience from individual claims of conscience as well as from the restrictions imposed by legalistic conceptions. In contrast to Rawls, Arendt argues against understanding civil disobedience in legal terms and offers persuasive arguments for a political model of disobedience as a particular form of collective action, pointing to the constitutional ‘refounding’ that civil disobedience enables. In this way, Arendt distinguishes the vibrant political character of civil disobedience from the retaining and conservative character of the law, showing how civil disobedience is aimed at engaging political debate and action when political processes and institutions have lost their legitimacy. As a consequence, she argues that acts of civil disobedience should not be considered punishable by law but that instead a ‘constitutional niche’ should be opened up so that such acts are considered in political rather than juridical terms. ⁸ Thus, for Arendt civil disobedience is not only vital for the well-being of democratic societies; it is also the means by which constitutional legitimacy is created anew.

Robin Celikates draws directly on this radical democratic tradition to argue for a political conception of civil disobedience that is neither restricted by the requirement of fidelity to the law nor justified by appeals to individual conscience. He argues that mainstream liberal approaches to civil disobedience fail to capture fully its characteristics as a genuinely political and democratic practice of contestation that is not reducible to either ethical or legal action. Instead he argues for a political account of civil disobedience as collective action aimed at the reinvigoration of political and democratic processes, thereby addressing forms of deliberative inertia or deformations of existing political institutions, which in his view are an inevitable feature of democratic life in modern complex societies.

In her contribution Maeve Cooke seeks to integrate the valuable insights she discerns in the accounts offered by Brownlee, Scheuerman and Celikates within an alternative account of civil disobedience. Her article provides a general framework for thinking about civil disobedience as transformative political action. Positing authority as the mode of power corresponding to obedience, and authority and freedom as internally related, she proposes a model of individual freedom and political authority as the basis for this framework. The framework is sufficiently general to allow for context-dependent variations – for example, as to whether publicity or non-violence is required – while specifying a view of civil disobedience as transformative action driven by a constellation of ethical, legal and political concerns. In other writings Cooke emphasizes the importance of (a reconfigured idea of) conscience for public life; ⁹ in the present article, however, she merely identifies conscience as an important element in the development of individual freedom, drawing attention to its place in a normative account of civil disobedience. Moreover, like Brownlee, she refrains from stipulating conscience as a necessary driver of such protest, leaving open the question of the particular motivations of the agents involved in transformative political action of this kind.

The contributions by Christopher Cowley and Anita Chari further challenge current conceptions of conscience. Cowley focuses on the problems created by Brownlee’s strong dialogic model of civil disobedience and conscientious conviction, while Chari draws out the interconnections between embodiment, emotions and conscience. Cowley tackles the issue of conscientious objection in relation to the hypothetical case of a general medical practitioner’s ethical objection to performing or authorizing abortion. Engaging directly with Brownlee’s reformulation of conscientious objection, he argues that her communicative and dialogic conditions become problematic when applied to particular cases of conscience-based ethical disagreement. ¹⁰ Cowley contends that these conditions are too demanding and categorize ethical issues and disagreements too starkly and divisively. In his view, Brownlee assumes too hastily that subjects are always compelled to hold others to account in line with their own principles and moral convictions, as opposed to accepting a degree of ethical plurality and incommensurability.

Where Cowley urges for humility and mutual awareness of incommensurability in matters of conscience, Anita Chari draws attention to the interrelation between conscience, embodied feeling and responsiveness towards others. She argues that such intercorporeal ethical relations can be fostered only through practices of embodied and emotional self-cultivation, which in turn foster the development of individual conscience. In this way, Chari challenges views of conscience based solely on cognitive capacities or moral reasoning and judgement, and argues instead for an integrated embodied understanding of conscience. Moreover, Chari argues that the development of embodied consciousness as a form of responsivity to others and the world is central to the cultivation of critical capacities, which are overlooked in most conventional approaches but which are fundamental to ethical and political-philosophical inquiry.

These articles engage with the most recent debates surrounding civil disobedience and conscientious objection, opening up original new paths for thinking about such forms of protest. They also reveal disagreements about how to understand civil disobedience and about the place of conscience in political protest, inviting further reflection on and discussion of these questions and issues.