Abstract
Bringing together normative political theory and recent empirical research on the state, the essay examines the challenges posed by the postnationalization and privatization of state authority to conventional accounts of civil disobedience. It does so by taking a careful look at John Rawls’ influential theory of civil disobedience along with its oftentimes neglected implicit assumptions about state and society, assumptions which turn out to have reproduced commonplace postwar statist and Westphalian ideas, including the optimistic view that the liberal democratic nation state should prove up to the task of successfully regulating and perhaps civilizing capitalism. Postnationalization and privatization render those assumptions problematic. Consequently, the Rawlsian model that was partly constructed on them becomes problematic as well. However, some of its features transcend the obsolescent empirical assumptions on which it was implicitly built. Theorists of civil disobedience should not just deconstruct but also reconstruct the Rawlsian account of civil disobedience. Postnationalization and privatization may leave us with a bare-bones version of the Rawlsian original. Yet bare bones arguably remain better than no bones.
Keywords
It is now common knowledge that political authority is undergoing postnationalization, with even the most powerful nation-states sharing authority with major global institutions (e.g. the United Nations (UN), World Trade Organization (WTO), or International Monetary Fund (IMF)), intergovernmental organizations, international agencies and regimes, regionally based supranational institutions (most notably, European Union (EU)) and privileged private actors. Simultaneously, the state’s organizational structure has experienced extensive privatization, with the actual day-to-day exercise of political authority increasingly dependent on private businesses, outsourcing, contracting-out, and novel organizational structures inconsonant with traditional (and oftentimes Weberian) notions of top-down public administration.
An impressive empirical literature addresses the relevant shifts, while an equally imposing normative literature considers their implications for political theory. Yet, relatively few voices have analyzed their potential consequences for our dominant conceptions of civil disobedience. Why does it matter? At least since Mahatma Gandhi and Martin Luther King, civil disobedience has appealed to those hoping to bring about significant social change. Not surprisingly, recent movements, some of which appear closely related to postnationalization and privatization, occasionally describe their activities as falling under the rubric of civil disobedience. The global justice (or misnamed “anti-globalization”) movement, “Occupy” and European anti-austerity protestors, as well as those presently engaging in electronic or digital disobedience, not only thematize issues having a global scope and occasionally bring together activists from different countries, but also at least claim to be engaging in civil disobedience (Della Porta et al., 2006: 134–449; Douzinas, 2013: 6, 50, 89–106; Gould-Wartofsky, 2015; Sauter, 2014: 19–38; Schock, 2015: 90–91). Admittedly, the term “civil disobedience” is sometimes employed loosely by such activists; some of its uses might surprise Gandhi and King. As a starting point for analysis, however, it seems appropriate to take seriously what many globally minded activists are saying, and they in fact are frequently describing their actions as legitimate civil disobedience.
Here I take an initial stab at answering a key question: do recent changes in the nature of political authority require us to rethink conventional views of civil disobedience? 1 If so, what theoretical revisions are called for? In order to do so, I start with John Rawls’ influential account of civil disobedience. The Anglophone debate on civil disobedience in the 1960s and 1970s was complex and wide-ranging; Rawls was only one among many impressive voices, many of whom were directly inspired by King and the US civil rights movement. 2 Nonetheless, the stunning success of his A Theory of Justice (Rawls, 1971) meant that the Rawlsian defense of civil disobedience, warts and all, soon took on a canonical stature, both for liberals and those skeptical of liberalism. His model, of course, has long been subjected to a barrage of criticisms; my own view is that many of the criticisms are persuasive. 3 Yet, in deference to the usual convention among scholars of civil disobedience, I begin with Rawls. Although I cannot sufficiently document this claim in the present essay, some of the arguments I direct against—and sometimes cautiously in defense of—Rawls also apply to competing liberal (and many non-liberal) ideas about civil disobedience.
In order to formulate my criticisms, I turn to some important empirical research about state transformation to analyze a set of revealing implicit presuppositions about state and society. Oftentimes, ignored by philosophical critics, those assumptions not only proved historically more contingent than Rawls and other far-sighted liberals in the 1960s and early 1970s grasped but now seem empirically obsolescent. By reconsidering the Rawlsian model’s original political and social framing we can offer a helpful and perhaps superior analysis of its weaknesses. Just to be clear: normative political philosophy cannot be reduced to empirical political science. Yet by zeroing in on the Rawlsian view’s neglected empirical presuppositions, we can gain a better sense of exactly where its limitations lie. We can also perhaps better understand why so many forms of conscientious lawbreaking now clash with the Rawlsian model. Postnationalization and privatization pose major challenges to it. Nonetheless, the story hardly buttresses the easy conclusion that Rawls’ view of civil disobedience should be discarded in toto. When properly reconceived, some of its basic features remain pertinent. Admittedly, this modest conclusion is unlikely to satisfy either orthodox Rawlsians or their critics. Nonetheless, I believe that it can be successfully defended.
Rawlsian civil disobedience
Rawls viewed civil disobedience as a means for political minorities to communicate to majorities a competing interpretation of the community’s underlying sense of justice. The disobedient “declares that in one’s considered opinion the principles of social cooperation among free and equal men [sic] are not being respected,” and that the majority has ignored or violated the polity’s shared ideas about justice (Rawls, 1971: 364). In order to be effective, such declarations necessarily involve (direct or indirect) public lawbreaking, as minorities aim to convince majorities of their errors in interpreting the political community’s basic normative principles. Civil disobedience represents a symbolically assertive yet ultimately defensive signal to political majorities that they have irresponsibly infringed on principles of justice they implicitly already share with those being mistreated.
Because it contradicts our usual legal obligations, the disobedient is expected to communicate a basic fidelity to the law so as to prove “to the majority that the act is indeed politically conscientious and sincere, and that it is intended to address the public sense of justice” (Rawls, 1971: 366–367). On Rawls’ view, this can be accomplished through nonviolence and a willingness to accept legal consequences. Civil disobedience should remain exceptional because it conflicts with our general duty to obey the law, and also because in “nearly just” societies minorities should typically be able to identify ordinary institutional channels for political reform. Even in such “well-ordered” and basically just social orders, however, grave injustices can occur, and civil disobedience may then prove appropriate (Rawls, 1971: 351, 363). As long as dissenters challenge only flagrant injustices, and not those potentially checked by ordinary political channels to which they should first turn, they can legitimately pursue politically motivated conscientious lawbreaking.
On this account, egregious injustices typically concern basic civil and political liberties but not matters of social and economic policy; the latter are “best left to the political process” (Rawls, 1971: 373). Even when disobedients apparently target private businesses (e.g. a segregated restaurant), they should aspire to prevent violations of civil or political rights for which public authorities are ultimately culpable. Although civil disobedience requires evidence of moral seriousness, appeals to private morality or religion do not suffice. Instead, disobedients ultimately must speak a common or shared language of (political) justice. King was motivated, of course, by religious conscience, yet on Rawls’ account he aptly appealed to “the [US] Constitution correctly understood.”
4
Lest one worry that this demand still taxes the limits of modern pluralism, Rawls conceded that there can be considerable differences in citizens’ conceptions of justice provided that these conceptions lead to similar political judgments. And this is possible, since different premises can yield the same conclusion. In this case there exists what we may refer to as overlapping rather than strict consensus. (1971: 387–388)
An overlapping rather than strict consensus about justice might suffice to provide the requisite normative basis for prospective disobedients. Rawls also inferred that it was unrealistic to expect “sincere professions of principle” from disobedients or their critics. Sometimes, the best evidence for the existence of an overlapping consensus acknowledging the basic rightness of the disobedient’s views is simply a refusal by authorities to suppress or punish illegal protests. “Ruthless tactics that might be contemplated in other societies are not entertained” because the majority has begun to consider or perhaps already acknowledge the soundness of the disobedient’s cause (Rawls, 1971: 387). Nonetheless, disobedients must be ready to “pay a certain price to convince others” that their actions are legitimate (Rawls, 1971: 367).
Looking back from the vantage point of four decades of accelerated globalization, we can see how the Rawlsian account rested on some tenuous assumptions about state and society. A substantial body of scholarship, of course, has long tried to apply Rawls to our postnational political and social universe. As Charles Beitz (1979) worried as early as 1979, for example, A Theory of Justice inaccurately imagined “a world of nation-states which interact only in marginal ways” (1979: 133; also, Pogge, 1988: 211–280).However, this scholarly genre rarely addresses his theory of civil disobedience, though admittedly some recent writers have used Rawls to analyze “international” civil disobedience and “transnational” civil disobedience, with the former referring to politically motivated lawbreaking by states and the latter to lawbreaking by “supranational networks of actors that define their causes as global and organize protest campaigns that involve more than one state” (Della Porta et al., 2006: 18). Yet, these otherwise creative reconstructions of Rawls remain flawed. Those who envision state lawbreaking as potentially consonant with civil disobedience risk reproducing a conventional view of the nation-state as the predominant and indeed central institutional player on the global scene (Goodin, 2005; Miller, 2015). 5 Recent changes in state/society relations, as I will show, probably undermine the empirical presuppositions on which that view rests. Even more fundamentally, the move to depict “states” as conscientious, nonviolent lawbreakers is normatively dubious. Does it make sense to view the messy and multi-headed institutional complexes we call “states” as “conscientious” moral actors? By doing so, analysts attribute a moral agency and capacity for systematic moral reflection to states which they probably lack. Given its monopoly over legitimate coercion and arsenal of power advantages, it seems similarly implausible to associate state activity in the international arena, especially when it entails lawbreaking, with nonviolence. As for recent analysts of transnational civil disobedience, they tend to rely on conventional versions of the Rawlsian approach, even as they tweak it (Cabrera, 2010: 130–153; Kokaz, 2005; Ogunye, 2015). They borrow more or less extensively from the Rawlsian original, without systematically considering the possibility that it relies implicitly on now questionable assumptions about the empirical contours of political authority. There may be some good reasons, as I hope to demonstrate, for salvaging elements of the Rawlsian view. Yet, a mechanical application of his theory to contemporary political conditions remains unsatisfactory.
When Rawls demanded of disobedients that they act publicly and address the general public, the “public” he had in mind was the national public of (existing) constitutional democracies, which he took to be the central site for the realization of the shared sense of justice to which disobedients were expected to appeal. More generally, Rawls’ theory implicitly followed the strictures of what Nancy Fraser has helpfully described as the “Westphalian political frame” (Fraser, 2009: 76–99). The national public Rawls envisioned entailed a shared liberal, pluralistic, and tolerant political culture: disobedients were obliged to appeal to common political principles of justice partly because the “fact of pluralism” necessarily limited the persuasive force of traditional moral and political appeals. The political give-and-take between conscientious lawbreakers and privileged majorities also presupposed a shared linguistic and communicative infrastructure (e.g. a nationally centered mass media). Disobedients sought corrections from errant majorities that had come to dominate policy making over a state apparatus described by Rawls as exercising “final and coercive authority over a certain territory” (1971: 222). Nonviolence was exercised especially in relation to one’s fellow co-nationals because it was their (presumably) mistaken views about justice one had to correct; it was they to whom dis-obedients owed proof of their moral seriousness. Policy changes sought by conscientious lawbreakers were, of course, changes at the national or regional levels. Fidelity to the law meant fidelity to the legal order of the specific “nearly just” (nation-state) constitutional democracies in which conscientious lawbreaking took place. Similarly, legal penalties were to be meted out by national or perhaps subnational political authorities.
Tellingly, the structure of Rawls’ exposition directly reproduced the Westphalian premise of a strict divide between “domestic” and “international” affairs. Rawls thought it made sense to distinguish civil disobedience from conscientious objection, and he outlined a number of grounds for doing so. Yet, one reason for that delineation was geographical: civil disobedience “concerned domestic affairs,” whereas conscientious refusal entailed the extension of “the theory of justice to the law of nations” (Rawls, 1971: 377). In his subsequent The Law of Peoples, Rawls (1999) offered a more complex view of the nexus between national and global affairs, as well as a more intricate discussion of international ethics. Nonetheless, even there “Rawls begins with the idea of domestic societies or nations (‘peoples’) as having fixed sets of members and fixed geographical boundaries” (Simmons, 2010: 1826–1827). 6 Unfortunately, he never systematically reconsidered his earlier views about civil disobedience.
The Rawlsian model’s underlying Westphalian frame also included once commonplace ideas about the institutional primacy of the state (and law) in the domestic arena, or the expectation that state institutions are “capable in principle of regulating its inhabitants’ affairs and solving their problems” (Fraser, 2009: 79). Rawls’ views on political economy were notoriously complex; he was no apologist for the postwar welfare state status quo or regulated capitalism. Yet, he endorsed some relatively orthodox postwar assumptions about state and society, widely shared by left-liberals and social democrats in Europe, North America, and elsewhere. Rawls envisioned a basically just order as one where a robust state sector would correct for as well as supplement a flourishing market economy (1971: 258–283). Yet even the “nearly just” society he had in mind when considering civil disobedience was one where state authorities could realistically regulate and potentially tame otherwise divisive economic and social conflicts. Unlike other associations (e.g. corporations or churches), the state alone possessed a “comprehensive scope” and “substantial regulative powers with respect to other institutions” (Rawls, 1971: 236). Disobedients appealed to public and not private authorities because only the former might decisively “affect permanently men’s [sic] prospects in life” in ways typically denied other institutions (Rawls, 1971: 222). Majorities and minorities fought political battles on the terrain of the state because it offered possibilities for realizing justice other associations ultimately could not match.
These familiar assumptions also undergirded Rawls’ strong but counterintuitive assertion that civil disobedience should be limited to protesting infringements of civil and political rights. Many injustices both in Rawls’ day and our own seem fundamentally economic in character. Even Rawls’ own inspiration, the civil rights movement, regularly targeted economic injustice. His views about this question were complicated and nuanced, with core philosophical claims about the lexical primacy of the first principle of justice (that is, the idea of equal liberty) playing a major role (Rawls, 1971: 302–303). Yet, his deep skepticism about civil disobedience in the context of social and economic injustice partly mirrored a postwar faith that robust state authorities, acting via an array of regulatory measures, could successfully reduce economic injustice and perhaps even civilize capitalism. Serious rights violations potentially impacted civil and political but not social and economic rights because the latter’s resolution is best left to the political process provided that the requisite equal liberties are secured. In this case a reasonable compromise can presumably be reached. …When it [equal liberty] is fully honored the presumption is that other injustices, while possibly persistent and significant, will not get out of hand. (Rawls, 1971: 372–373)
Under a more-or-less well-functioning liberal democracy we can expect public authorities to prevent social and injustice “from getting out of hand.” Social and economic policy should be left to legislatures, in which self-interest and complex pragmatic preoccupations about efficiency and welfare predominate, and where “speculative beliefs” about social policy along with “a wealth of statistical and other information” are indispensable. Unlike principled disputes about civil and political rights, appeals to the public’s conception of justice are unlikely to prove sufficiently clear or persuasive in social and economic policy. Consequently, “they should not normally be protested by civil disobedience” (Rawls, 1971: 372). Like many others writing about civil disobedience in the 1960s and early 1970s, Rawls rejected civil disobedience in the context of distributive justice and when directed primarily at private corporations. 7
In short, social and economic management involved technically complex and pragmatic matters, about which potential disobedients probably could not realistically formulate transparent or even coherent ideas of justice on which to make convincing appeals. Fortunately, Rawls hoped, in a “nearly just” society we could still expect legislatures to hammer out compromises so to keep social and economic inequities from getting out of hand. Because of the state’s comprehensive nature and ability to shape our activities decisively, public authorities should prove up to the tasks at hand.
Postnationalization and privatization
These assumptions about state and society no longer unreservedly obtain. The relevant empirical literature is complicated and wide-ranging; it would be misleading to posit a neat scholarly consensus about the main changes or their underlying causes. However, the literature tends to point in two relatively clear directions (Genschel and Zangl, 2008; Hurrelmann et al., 2007).
First, nation-states now share decision-making authority with many institutional actors on the international scene. The actors take myriad forms: they include regional organizations (like the EU or North American Free Trade Agreement (NAFTA)), powerful international organizations (the WTO or IMF), as well as more familiar global political bodies (the UN). To be sure, nation-states remain crucial sites for authoritative decision-making; fashionable talk about “global governance” tends to mask that abiding reality. Yet, they no longer enjoy the virtual monopoly on political decision making Rawls presupposed and in empirical reality was perhaps roughly approximated among many Organisation for Economic Co-operation and Development (OECD) states during the 1960s. 8 The “final authority” Rawls associated with (national) states tends increasingly to be situated in a complex multi-layered system where national decision makers remain central yet no longer always dominant players. Empirical evidence, in short, suggests a heightened role for international and postnational decision-making sites Rawls (and his contemporaries) neglected.
Here, we can speak of an internationalization or postnationalization of decision-making authority, or what we might cautiously describe as a nascent post-Westphalian institutional constellation. In any event, “stateness” as a decision-making complex is presently co-produced by a panoply of political authorities both within and beyond the nation state.
Second, there have been dramatic changes in the state’s administrative structure and organizational capacities since the 1970s. Decades of neoliberalism notwithstanding, states are in fact oftentimes involved in more areas of social existence than during the heydays of the interventionist and welfare state. Yet states decreasingly rely on classical top-down public bureaucratic mechanisms when doing so. This trend manifests itself in many ways. Privatization is widespread (Zohlhöfer and Ohringer, 2006), outsourcing and contracting are ubiquitous, and regulation often depends on novel public-private forms of “cooperation” (Schuppert, 2010). These changes directly impact even those functions conventionally associated with the “hard” kernel of state sovereignty: “in many countries private security personnel now outnumber their public counterparts” (Abrahamsen and Williams, 2011: 1). The massive growth of state surveillance activities in recent years, for example, has been abetted by burgeoning private intelligence and security firms heavily dependent on lucrative government contracts (Shorrock, 2008). Even when the state apparatus remains directly involved in specific regulatory tasks, that apparatus has been reorganized in accordance with new organizational ideals (e.g. “governance” or “new public management”) that have generated dramatic administrative restructurings (Bevir, 2010).
Here, we can speak of a de-statization or privatization of political authority. “Stateness” as an organizational complex is being co-produced in conventional public bureaucratic and novel private and quasi-private institutional sites, many of which mesh poorly with traditional (implicitly Weberian) notions of public administration. At times, internationalization and privatization also coalesce: some forms of international business dispute resolution, for example, rely heavily on what are essentially private adjudicators (Cutler, 2003).
One immediate consequence of these shifts deserves special attention. Whatever the precise causal mechanisms, the structural shifts at hand seem connected to a noticeable “fraying” of the (national) state such that it decreasingly proves competent at achieving precisely what Rawls and other postwar left-liberals and social democrats expected, that is, manage social and economic affairs so as effectively to mitigate inequality and economic injustice. Despite national variations, for OECD countries, the general trends remain striking: the welfare state “social net” fails to protect many social groups, material inequality has increased drastically, and state regulators have not been able to ward off devastating economic disturbances and crises (e.g. the 2008 financial crisis). The nation-state too often appears disturbingly inept when it comes to managing our globalizing and increasingly high-speed capitalism. Nor have effective postnational regulatory mechanisms filled the resulting gaps. Some even think it unrealistic for them to try to do so (Streeck, 2014). Nobody should romanticize the “golden age” of the postwar welfare and interventionist states. Yet fundamental—and basically troublesome—shifts have occurred. Whatever the specific causes, our existing political system too often seems ineeffective when it comes to grappling with contemporary capitalism’s more disturbing traits.
Novel threats to Rawlsian civil disobedience
What then do these broad structural shifts suggest about the Rawlsian model of civil disobedience? The story is predictably complicated. To be sure, the Rawlsian framework can occasionally help us make sense of certain challenges faced today by those contemplating civil disobedience. However, shifts in state/society relations tend to stretch his model to the limit. In some ways, the model no longer seems relevant.
The internationalization and postnationalization of decision-making strains the implicit assumption that civil disobedients, publics (and political majorities) to which they appeal, and the relevant political authorities overlap within the borders of a single territorially bound polity. Since many key decisions are still made by national institutions and directly impact specific national constituencies, the Westphalian frame remains pertinent. Yet, prospective conscientious lawbreakers face complicated questions the Rawlsian framework conveniently submerged because of its Westphalian framing, which decreasingly makes sense given the complex and multi-layered character of present-day political authority. To whom—that is, local, national, or postnational addressees—should the disobedient’s appeal be directed? Which political majorities need to be swayed, and at which level of decision making are they located? From which political authorities should one seek redress? What are the relevant (national or global) laws or policies that require change, or the shared principles of justice on which one’s appeal should rest? Which laws are crucial when expressing fundamental fidelity to the law? At the very least, the emerging system’s complexity and resulting lack of transparency make it extraordinarily difficult for activists to answer these questions, let alone develop a persuasive political appeal based on their answers. Earlier generations of disobedients faced parallel questions; Gandhi and King also strategized about how to propel local political battles into the national and global limelight. Nonetheless, those pursuing civil disobedience now confront them in exceptionally complex and pressing ways, in part for reasons I outline in what follows.
If the disputed law or policy can be attributed to international or postnational authorities, for example, or if linked (as commonly transpires) to a multiplicity of decision making sites, prospective disobedients will need to do something Rawls never really considered, namely move beyond the usual local or national political preoccupations and address publics and political authorities “beyond the state.” Yet empirical research suggests that this is extraordinarily difficult: even those activists who successfully zero in on postnational or global issues remain fundamentally embedded in domestic politics, and their efforts generally prove fragile and short-lived. Relatively few activists have been able to bridge national gaps and come together across borders in pursuit of an identifiably postnational agenda (Schock, 2015: 140–157; Tarrow, 2005). 9 Although recent “Occupy” activists, for example, developed cross-border ties and spoke directly to common concerns about global inequality, the movement rapidly dissipated (Gould-Wartofsky, 2015). Of course, there are exceptions: global justice activists, including many who engaged in nonviolent civil disobedience, and also recent anti-austerity protestors in Greece, Spain and elsewhere, have effectively targeted postnational authorities (the G-8, WTO, and EU) and have brought substantial public attention to controversial policies having cross-border ramifications. In particular, the global justice movement successfully forged activists from different countries around a coherent agenda and was genuinely transnational in character, despite significant linguistic variations and differences in political culture. It also creatively updated civil disobedience’s arsenal of tactics. 10 In any event, many activists today are clearly cognizant of the daunting challenges at hand, with their internal debates sometimes implicitlytackling precisely those questions posed above. They argue, for example, howbest to frame their appeals given political authority’s multi-tiered contours, or where ideally (i.e., the local, national, or postnational level) to focus theirorganizational energies. Despite their oftentimes admirable efforts, our decentered and multilayered postnational system impairs the formulation of coherent let alone easily communicable justifications for conscientious lawbreaking. Even when disobedients manage to do so, it remains unclear whether their efforts can result in changes to law or policy along the lines Rawls envisioned: too many of the key decision makers are insulated from public opinion and familiar political mechanisms operative, however, inadequately, in “nearly just” liberal democracies. The WTO or EU “troika,” for example, do not seem to pay the same political price or face the same repercussions risked by elected national officials when ignoringmass civil disobedience. Global justice and anti-austerity movements have probably only had a marginal impact on policy making at the postnational level.
Despite its conceptual limits, Rawls’ framework provides some resources for explaining why this is so. Postnationalization of decision-making means that key decisions are increasingly being made at sites that arguably fail to meet basic democratic tests of legitimacy. I will not revisit the familiar question of whether it makes sense to democratize the WTO or even EU, and if so, how best to do so. I merely want to recall the crucial Rawlsian proviso that civil disobedience presupposes the existence of a “nearly just” society in which familiar liberal and democratic mechanisms typically function. To be sure, Rawls’ notion of “near justice” suffers from ambiguities (Sabl, 2001). Even if we bracket them, it remains an open question whether our emerging global system, in which liberal democracies are embedded in postnational complexes having limited democratic legitimacy, can pass some minimal version of the “nearly just” test. On many occasions democratic political mechanisms are expected to abide rules “from above” promulgated by institutions (the IMF, for example, or WTO) whose democratic credentials remain dubious. 11 Some evidence suggests that once previously “advanced” democracies are consequently entering a “post-democratic” phase (Crouch, 2004). This is important for two reasons. First, Rawls insisted that prospective disobedients should initially exhaust ordinary political channels, and that civil disobedience could remain unusual because such channels would typically provide possibilities for redress. In our emerging post-Westphalian system, however, the relevant channels too often lack transparency or remain underdeveloped. Second, Rawls conceded that absent “a reasonably just democratic regime” militant forms of resistance and maybe even revolution, where protestors evade legal penalties and other tests associated with nonviolent civil disobedience, might in principle prove legitimate (Rawls, 1971: 365–368). 12 Revealingly, and even though their role has been overstated, small groups of transnational activists have in fact sometimes abandoned nonviolence, opting to pursue messier and more militant forms of political illegality. Global justice protestors, for example, have been criticized for “clashing with the police, setting fire to cars, and smashing windows” (Della Porta et al., 2006: 147). If in fact postnationalization has undermined rather than refurbished the accountability of key decision makers Rawls might still have been forced to acknowledge the possible legitimacy of such actions. (Of course, their legitimacy hardly guarantees either their appropriateness or effectiveness.)
The fact that the emerging postnational political order perhaps fails the “nearly just” test has further implications. Rawls envisioned civil disobedience as a defensive and corrective action targeting majorities that had presumably infringed on a pregiven conception of justice already ensconced in existing social and political institutions. It helped stabilized basically just constitutional systems (Rawls, 1971: 384). Absent liberal democracy, protest in principle could take not only a more militant but also more forward-looking and fundamentally constructive approach. Interestingly, some recent movements targeting postnational or global institutions and policies appear to do just that. Although their political rhetoric often sounds defensive, 13 they demand basic and potentially transformative reforms, with many of them suggesting the need for a far-reaching democratization of global institutions (Della Porta et al., 2006: 203–205; Smith, 2007), or an EU in which economic policy is no longer be dominated by the European Central Bank or powerful member-states (Douzinas, 2013). Even when engaging in what otherwise looks like familiar forms of nonviolent civil disobedience, their actions can hardly be considered politically or institutionally defensive. For understandable reasons, the movements in question do not believe that we presently possess a shared postnational order or overarching conception of justice worth defending (Green, 2002).
Rawls worried that absent a shared and publicly recognized conception of justice civil disobedience would inevitably fail and the ruling “majority may simply be aroused to more repressive measures” (1971: 387). Postnationalization exacerbates this danger. The notion of an overlapping consensus was partly introduced in order to explain how pluralistic political communities might provide the requisite normative terrain on which disobedients could act. Can we identify something along these lines in the postnational arena (in the EU, for example, or elsewhere) such that prospective disobedients could identify a sufficiently robust common normative basis on which to sway political opponents? Given the conditions of what Alessandro Ferrara (2014) describes as global “hyperpluralism,” the answer is hardly self-evident.
Postnationalization challenges the institutional primacy of the state and thus its exclusive capacity to satisfy its inhabitants’ basic social and economic needs. This tendency is compounded by the privatization and de-statization of the state’s organizational capacities. In principle, privatization might bolster rather than undermine the state’s monopoly over decision making and with it also the state’s capacity for effective intervention and regulation, as long as public authorities can exercise proper oversight and core political functions remain in public hands. However, empirical evidence suggests that these basic tests are often left unmet: the rage for privatization means that a growing number of state functions, including those pertaining to basic security, are being outsourced to private and quasi-private entities enjoying substantial leeway and subject to mere cursory oversight by public authorities. Even scholars otherwise sympathetic to privatization have acknowledged the dangers (Verkuil, 2007). Admittedly, Rawls’ view of the state as possessing “comprehensive scope” and primacy vis-a-vis private institutions was an idealization even during the heydays of the welfare state and regulated capitalism. Today it seems increasingly detached from empirical reality. Accordingly, it no longer seems clear that civil disobedience should target only public but not private authorities. Where poorly regulated private corporations affect life prospects in a manner at least as consequential as government, they become fair game for political lawbreaking. When the state ceases to be institutionally supreme in the fashion presupposed by Rawls (and others), public officials no longer “manage” the private sphere, but instead, political functions are sometimes placed immediately in private hands. Then it potentially makes sense for disobedients to take aim at non-state institutions. 14 And when (as in the contemporary US) politicians are being auctioned off to billionaires, directly targeting those who bankroll them may prove essential in the battle against injustice. Not surprisingly, some of the most important contemporary examples of politically motivated lawbreaking operate in the grey zone between state and private authorities. Edward Snowden, who has frequently described his actions as civil disobedience, was employed as a private contractor under the auspices of the National Security Agency (NSA) and claims that he and his colleagues were effectively allowed to engage in legally dubious forms of surveillance (Scheuerman, 2015b). Even before Snowden went public in 2013, observers were highlighting the fragility of institutional checks on private contractors operating in the shadows of the US national security state (Shorrock, 2008). Similarly, many high-profile “hacktivists” are directly targeting private contractors profiting from both the private and public sector’s growing taste for surveillance. Jeremy Hammond, for example, cooperated with Anonymous activists in 2011 to hack the computer networks of a private intelligence firm (Stratfor) working on behalf of both governments and large private firms. Although his actions were directed against a private business, he and his sympathizers consider them legitimate forms of civil disobedience (Coleman, 2014; Owen, 2015).
Even when not directly targeting private corporations engaging in what traditionally have been considered public or state activities, many protestors and closely related civil disobedients (e.g. in Occupy, or recent European anti-austerity activists) are focusing their energies on egregious forms of economic injustice. 15 Although this trend conflicts with the Rawlsian model, its underlying sources are clear enough. Given postnationalization and privatization, even OECD states no longer can prevent economic injustices from “getting out of hand.” Rawls’ postwar faith that (nationally based) democratic states would be able to manage the economy successfully increasingly seems unrealistic. In the eyes of many contemporary activists, the most shocking injustices are basically economic (e.g. rising material inequality and increasing economic insecurity). Nor do they seem to share Rawls’ worry that economic appeals are necessarily are less clear than appeals to civil and political rights. In their view, economic injustices also “obstruct the path to removing other injustices” in a manner Rawls attributed exclusively and probably incorrectly to civil and political rights (1971: 372).
What’s left? Rawlsian civil disobedience today
My analysis so far corroborates the commonplace criticism that the Rawlsian definition of civil disobedience as a “public, nonviolent, conscientious yet political act contrary to law usually done with the aim of bringing about a change in the law” seems inapt (1971: 364). 16 In contrast to most critics, however, I have proceeded without presupposing external normative or political perspectives but instead chiefly by disclosing Rawls’ own latent assumptions about state and society. 17 Its Westphalian frame, principled hostility to economic civil disobedience (potentially targeting private corporations), view of civil disobedience as fundamentally defensive, and hostility to militant forms of (potentially “uncivil”) disobedience: each tenet is rendered suspect by postnationalization and privatization. Our emerging political system invites novel types of civil disobedience, many of which Rawls never anticipated and probably would have criticized. Yet some of them seem potentially legitimate. As I have noted, research on transnational activism suggests that many political actors are already struggling with the political and institutional novelties at hand.
These findings potentially provide fodder for those arguing that we should jettison the liberal (i.e. Rawlsian) for a revised post-liberal model of civil disobedience more attuned to the messy and sometimes “uncivil” forms politically motivated illegality presently takes (Celikates, 2010). By doing so, critics posit, we can successfully overcome the liberal model and permit contemporary activists to benefit from the normative prestige the idea of civil disobedience continues to enjoy. Why should only iconic lawbreakers like Gandhi or King but not more recent disobedients enjoy those benefits? (Sauter, 2014: 19–38).
Much can be said in favor of this position. However, I worry that it risks throwing the baby out with the bathwater. I hope to show why a sensible response to the Rawlsian approach’s flaws should be reconstructive and not just deconstructive.
Nothing above, for example, discredits the Rawlsian (and standard liberal) view of civil disobedience as public and communicative, that is, as an act aimed at persuading political peers and (eventually) the relevant political authorities to change policy, even if postnationalization and privatization complicate matters. The complex normative commitment to publicity sometimes gets interpreted too narrowly, an unfortunate pattern Rawls unhelpfully set by asserting that disobedients should provide “fair notice” of their impending protests to public authorities, a view which even on Rawlsian grounds seems unnecessary (1971: 366). Political movements depend unavoidably on elements of confidentiality, privacy, and even secrecy. We should avoid succumbing to an overly mechanical interpretation of what publicity requires. Even contemporary groups like Anonymous arguably remain committed to it: while insisting on personal anonymity, its leaks are generally public, and the group frequently issues public statements intended to have a broad political impact.
Nor does my account threaten the rudiments of Rawls’ intuitions about the role of conscience. He thought it made sense for disobedients to provide evidence of their moral seriousness, in order to impress on others their sincerity, and also because it was crucial to demonstrate that lawbreaking rested on “a sufficient moral basis” in the community (Rawls, 1971: 367). Here, we face some thorny philosophical issues concerning Rawls’ ideas about religion in public life and, more generally, the public/private divide. I do not intend to endorse Rawls’ views in toto; they surely require more critical scrutiny. Yet Rawls was probably right to highlight the circumscribed place of moral and religious appeals in pluralistic societies where conscience cannot speak in one voice or even in a sufficiently robust shared moral language. Given intensified globalization, Rawls’ insights about the limitations of conscience-based justifications for civil disobedience remain relevant. The prospect of a coherent let alone durable “legal system in which conscientious belief that the law is unjust is accepted” as a sufficient ground for noncompliance seems particularly troublesome given intense “hyperpluralism” (Rawls, 1971: 367; Ferrara, 2014). 18 Under contemporary conditions, a “legal system” where moral conscience sufficed to justify disobedience would risk rendering respect for the law episodic and perhaps exceptional. As Rawls appreciated, however, any decent or just order requires the rule of law, according to which political authority has to abide clear, public, prospective, general legal rules capable of proffering a reliable and predictable framework for social cooperation. A legal “system” in which noncompliance became ubiquitous would simply by inconsonant with this worthwhile aspiration (Rawls, 1971: 235–243).
Nor has anything I argued above been directed in principle against Rawls’ view of nonviolence as an expression of basic respect for those with whom disobedients disagree but to whom they must provide evidence of their sincerity and convince through persuasion. “To engage in violent acts likely to injure and to hurt is incompatible with civil disobedience as a mode of address” directed at other political actors whom disobedients need to bring over to their side. (Rawls, 1971: 366). 19 All that has been demonstrated is that on Rawls’ own terms, given the key premise of “near justice,” even he might now be forced to concede the possible legitimacy of more militant or even revolutionary lawbreaking. 20 Simultaneously, however, he could still sensibly resist embracing open-ended definitions of civil disobedience that risk occluding important empirical and normative distinctions. 21 Those today hoping to extend the concept of civil disobedience in dramatically new directions face a basic dilemma: encompassing too many different types of political illegality, the term potentially becomes vacuous or at least unclear. Referring to many and perhaps most political illegalities, it risks connoting nothing sufficiently precise. When the radical democratic theorist Robin Celikates, for examples, redefines civil disobedience as unlawful collective protest based on principles and aiming at political change, viewing Rawlsian notions of publicity, nonviolence, and fidelity to the law as expendable, too many vital analytic and political distinctions have probably been sacrificed (Celikates, 2010: 283–298, 294–297, 2013: 211–228). Like other critics, Celikates is too eager to discount the Rawlsian view in toto rather than consider the possibility that some of its traits remain sound.
What then of the idea that legitimate as well as effective lawbreaking should evince what King famously described as the “very highest respect for the law”? (1991 [1963]: 74). Like King, Rawls endorsed the seemingly paradoxical thesis that nonviolent lawbreaking was sometimes necessary to preserve the law, that it should be viewed as “dis-obedience to law within the limits of fidelity to the law” (1971: 366). 22 Following King as well, he suggested that fidelity to the law was best demonstrated via the disobedient’s willingness “to accept the legal consequences” (Rawls, 1971: 366). 23
Rawls’ position here again initially seems anachronistic. He insisted on disobedients evincing respect for law because they were expected to appeal to a shared (and already extant) conception of justice. That notion of justice, he suggested, had to be publicly recognized and was essential to the relevant (national) constitutional order (Rawls, 1971: 386–389). He also claimed that in “nearly just” communities we are obliged to follow the law even when unjust: civility imposes a due acceptance of the defects of institutions and a certain restraint in taking advantage of them. Without some recognition of this duty mutual trust and confidence are liable to break down. Thus in a state of near justice at least, there is normally a duty (and for some also the obligation) to comply with unjust laws provided that they do not exceed certain bounds of in justice. (Rawls, 1971: 355)
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On this account, social and political institutions are unavoidably imperfect; there is no guarantee that even in basically just orders legislative outcomes will necessarily be sound or fair. If we ignore this fact and exploit institutional frailties by breaking laws whenever we deem them unjust, the mutual trust and confidence on which just institutions necessarily depend disintegrate. Only when faced with flagrant injustices, therefore, should we consider civil disobedience.
Given postnationalization and privatization, however, these arguments no longer readily obtain. If, as noted above, ours is hardly a “nearly just” but instead in many settings an increasingly undemocratic (postnational) political order, where institutions like the WTO or European Central Bank possess substantial decision-making authority, it is not self-evident that politically motivated lawbreakers targeting postnational decision makers should be expected to show their loyalty to the law. Why should transnational or global-minded activists have to pay respect to a flawed and probably unjust post-national legal system? Instead, as many global-minded activists suggest, we urgently need to create a superior (postnational) political and legal order.
Yet it would still be wrong simply to discard this component of the Rawlsian model. Political decision making today is not simply postnational but also decentered and multi-tiered. When activists targeting global-level policies do so within political contexts where authorities respect basic rights and the rule of law, they enjoy massive advantages vis-à-vis those acting in unabashedly authoritarian settings. Even if it no longer makes sense to characterize many features of our post-Westphalian system as meshing with Rawlsian notions of “near justice,” it would still be misleading to downplay the importance of preserving basic rights and the rule of law in those contexts where protestors take to the streets and protestors nonviolently break the law. It remains vital for disobedients to communicate to those whom they hope to sway a shared commitment to protecting basic rights and law-based government. As King, Rawls, and many others grasped, the best way to communicate such a commitment is by showing that a specific illegality remains consonant with constitutional or international law, for example, or potentially by accepting possible legal repercussions.
Even more fundamentally, Rawls was right to posit that every just order has to rest on the rule of law, a notion he discussed at length in A Theory of Justice, and without which both legal regularity and equal liberty are unachievable (Rawls, 1971: 239; Kornhauser, 2015: 175–220). On his view, fidelity to the law was not just about expressing respect for the legal or constitutional status quo, but also about showing respect for a fundamental ideal of “justice as regularity,” which he accurately described as an “ideal notion which laws” should typically be “expected to approximate” even though they often fail to do so (Rawls, 1971: 236). When conscientious disobedients express fidelity to the law they implicitly appeal to an “ideal notion” demanding of power holders that they guarantee [t]hat laws be known and expressly promulgated, that their meaning be clearly defined, that statutes be general both in statement and intent and not be used as a way of harming particular individuals … that at least the more severe offenses be strictly construed … For if, say, statutes are not clear in what they enjoy and forbid, the citizen does not know how he [sic] is to behave. (Rawls, 1971: 238)
This element of Rawls’ theory of civil disobedience remains fruitful. Too often, powerful postnational and private decision makers make a mockery of basic legal virtues, especially when doing so potentially benefits the politically and socially vulnerable. 25 Disobedients who hope to challenge this and other disturbing political trends should evince fidelity to the rule of law as an ideal which power holders should be expected to heed. Fidelity to the law in this context anticipates the possibility of a reformed and improved order in which emerging postnational constitutional and legal rules might in fact prove more fully worthy of our respect. By expressing fidelity to the law, politically motivated lawbreakers contribute towards creating such an order. Their actions, though illegal, prefigure its existence. They then directly symbolize their role as midwives to a new global legal order we very much need if the powerful and privileged are finally forced to play by the same rules as everyone else. 26
Admittedly, powerful global players often preach and sometimes even practice the “rule of law” when doing so serves their own interests. Nonetheless, the “greatest assault on the Rule of Law” still generally stems from those “who hold themselves above the law and have the power in fact to stay above it.” If only because of its basic protective functions, “[a]s compromised as the Rule of Law is and always has been we would do wrong to discard it entirely” (Madar, 2013: 123–124). Any prospective transformed postnational political order will need to rest on the rule of law, if it is to embody justice and prove worthy of our respect. 27 Even in the shadows of postnationalization and privatization, civil disobedience should remain “disobedience to law within the limits of fidelity to the law.”
Postnationalization and privatization may leave us with a bare-bones version of Rawls’ liberal conception of civil disobedience. Nonetheless, bare bones remain better than no bones. Some might also dispute whether the remaining bones look enough like the original. Yet Rawls surely would be able to see in them the skeletal remains of the influential model of civil disobedience formulated in A Theory of Justice.
Footnotes
Acknowledgements
I am grateful to the journal’s referees who generously commented on (and incisively criticized) an earlier version of this paper. Thanks also to participants in the University of Pennsylvania’s Political Theory Luncheon, and to those at a conference on political authority at the University College Dublin, where I presented it. Special thanks to Jeff Green and Maeve Cooke for the invitations and their many helpful suggestions.