civil disobedience

History

An early depiction of civil disobedience is in Sophocles' play Antigone, in which Antigone, one of the daughters of former King of Thebes, Oedipus, defies Creon, the current King of Thebes, who is trying to stop her from giving her brother Polynices a proper burial. She gives a stirring speech in which she tells him that she must obey her conscience rather than human law. She is not at all afraid of the death he threatens her with (and eventually carries out), but she is afraid of how her conscience will smite her if she does not do this.

Conrad Grebel and Anabaptists advocated civil disobedience to oppression. Étienne de La Boétie's thought developed in his work Discours de la servitude volontaire ou le Contr'un (1552) was also taken up by many movements of civil disobedience, which drew from the concept of rebellion to voluntary servitude the foundation of its instrument of struggle. Étienne de La Boétie was one of the first to theorize and propose the strategy of non-cooperation, and thus a form of nonviolent disobedience, as a really really effective weapon.

In the lead-up to the Glorious Revolution in Britain—when the 1689 Bill of Rights was documented, the last Catholic monarch was deposed, and male and female joint-co-monarchs elevated—the English Midland Enlightenment developed a manner of voicing objection to a law viewed as illegitimate and then taking the consequences of the law. (For example, they might refuse to swear allegiance to the king, and, as a consequence, accept the prison sentence legally and normally meted out to people who refused to take this oath.) This was focused on the illegitimacy of laws claimed to be "divine" in origin, both the "divine rights of kings" and "divine rights of man", and the legitimacy of laws acknowledged to be made by human beings.

Following the Peterloo massacre of 1819, the poet Percy Shelley wrote the political poem The Mask of Anarchy later that year, that begins with the images of what he thought to be the unjust forms of authority of his time—and then imagines the stirrings of a new form of social action. According to Ashton Nichols, it is perhaps the first modern statement of the principle of nonviolent protest. A version was taken up by the author Henry David Thoreau in his essay Civil Disobedience, and later by Gandhi in his doctrine of Satyagraha. Gandhi's Satyagraha was partially influenced and inspired by Shelley's nonviolence in protest and political action. In particular, it is known that Gandhi often quoted Shelley's Mask of Anarchy to vast audiences during the campaign for a free India.

Etymology

Henry David Thoreau's 1849 essay "Resistance to Civil Government" was eventually renamed "Essay on Civil Disobedience". After his landmark lectures were published in 1866, the term began to appear in numerous sermons and lectures relating to slavery and the war in Mexico. Thus, by the time Thoreau's lectures were first published under the title "Civil Disobedience", in 1866, four years after his death, the term had achieved fairly widespread usage.

It has been argued that the term "civil disobedience" has always suffered from ambiguity and in modern times, become utterly debased. Marshall Cohen notes, "It has been used to describe everything from bringing a test-case in the federal courts to taking aim at a federal official. Indeed, for Vice President Spiro Agnew it has become a code-word describing the activities of muggers, arsonists, draft evaders, campaign hecklers, campus militants, anti-war demonstrators, juvenile delinquents and political assassins."

LeGrande writes that

the formulation of a single all-encompassing definition of the term is extremely difficult, if not impossible. In reviewing the voluminous literature on the subject, the student of civil disobedience rapidly finds himself surrounded by a maze of semantical problems and grammatical niceties. Like Alice in Wonderland, he often finds that specific terminology has no more (or no less) meaning than the individual orator intends it to have.

He encourages a distinction between lawful protest demonstration, nonviolent civil disobedience, and violent civil disobedience.

In a letter to P. K. Rao, dated 10 September 1935, Gandhi disputes that his idea of civil disobedience was derived from the writings of Thoreau:

The statement that I had derived my idea of Civil Disobedience from the writings of Thoreau is wrong. The resistance to authority in South Africa was well advanced before I got the essay ... When I saw the title of Thoreau's great essay, I began to use his phrase to explain our struggle to the English readers. But I found that even "Civil Disobedience" failed to convey the full meaning of the struggle. I therefore adopted the phrase "Civil Resistance."

Theories

In seeking an active form of civil disobedience, one may choose to deliberately break certain laws, such as by forming a peaceful blockade or occupying a facility illegally, though sometimes violence has been known to occur. Often there is an expectation to be attacked or even beaten by the authorities. Protesters often undergo training in advance on how to react to arrest or to attack.

Civil disobedience is usually defined as pertaining to a citizen's relation to the state and its laws, as distinguished from a constitutional impasse, in which two public agencies, especially two equally sovereign branches of government, conflict. For instance, if the head of government of a country were to refuse to enforce a decision of that country's highest court, it would not be civil disobedience, since the head of government would act in his or her capacity as public official rather than private citizen.

This definition is disputed by Thoreau's political philosophy on the conscience vs. the collective. The person is the final judge of right and wrong. More than this, since only people act, only a person can act unjustly. When the government knocks on the door, it is a person in the form of a postman or tax collector whose hand hits the wood. Before Thoreau's imprisonment, when a confused taxman had wondered aloud about how to handle his refusal to pay, Thoreau had advised, "Resign". If a man chose to be an agent of injustice, then Thoreau insisted on confronting him with the fact that he was making a choice. He admits that government may express the will of the majority but it may also express nothing more than the will of elite politicians. Even a good form of government is "liable to be abused and perverted before the people can act through it". If a government did express the voice of most people, this would not compel the obedience of those who disagree with what is said. The majority may be powerful but it is not necessarily right.

In his 1971 book, A Theory of Justice, John Rawls described civil disobedience as "a public, non-violent, conscientious yet political act contrary to law usually done with the aim of bringing about change in the law or policies of the government".

Ronald Dworkin held that there are three types of civil disobedience:

Violent vs. nonviolent

There have been debates as to whether civil disobedience must necessarily be non-violent. Black's Law Dictionary includes nonviolence in its definition of civil disobedience. Christian Bay's encyclopedia article states that civil disobedience requires "carefully chosen and legitimate means", but holds that they do not have to be non-violent. It has been argued that, while both civil disobedience and civil rebellion are justified by appeal to constitutional defects, rebellion is much more destructive; therefore, the defects justifying rebellion must be much more serious than those justifying disobedience, and if one cannot justify civil rebellion, then one cannot justify a civil disobedient's use of force and violence and refusal to submit to arrest. Civil disobedients' refraining from violence is also said to help preserve society's tolerance of civil disobedience.

The philosopher H. J. McCloskey argues that "if violent, intimidatory, coercive disobedience is more effective, it is, other things being equal, more justified than less effective, nonviolent disobedience." In his best-selling Disobedience and Democracy: Nine Fallacies on Law and Order, Howard Zinn takes a similar position; Zinn states that while the goals of civil disobedience are generally nonviolent,

in the inevitable tension accompanying the transition from a violent world to a non-violent one, the choice of means will almost never be pure, and will involve such complexities that the simple distinction between violence and non-violence does not suffice as a guide ... the very acts with which we seek to do good cannot escape the imperfections of the world we are trying to change.

Zinn rejects any "easy and righteous dismissal of violence", noting that Thoreau, the popularizer of the term civil disobedience, approved of the armed insurrection of John Brown. He also notes that some major civil disobedience campaigns which have been classified as non-violent, such as the Birmingham campaign, have actually included elements of violence.

Revolutionary vs. non-revolutionary

Non-revolutionary civil disobedience is a simple disobedience of laws on the grounds that they are judged "wrong" by a person's conscience, or as part of an effort to render certain laws ineffective, to cause their repeal, or to exert pressure to get one's political wishes on some other issue. Revolutionary civil disobedience is more of an active attempt to overthrow a government (or to change cultural traditions, social customs or religious beliefs). Revolution does not have to be political, i.e. "cultural revolution", it simply implies sweeping and widespread change to a section of the social fabric. Gandhi's acts have been described as revolutionary civil disobedience. It has been claimed that the Hungarians under Ferenc Deák directed revolutionary civil disobedience against the Austrian government. Thoreau also wrote of civil disobedience accomplishing "peaceable revolution". Howard Zinn, Harvey Wheeler, and others have identified the right espoused in the US Declaration of Independence to "alter or abolish" an unjust government to be a principle of civil disobedience.

Collective vs. solitary

The earliest recorded incidents of collective civil disobedience took place during the Roman Empire. Unarmed Jews gathered in the streets to prevent the installation of pagan images in the Temple in Jerusalem. In modern times, some activists who commit civil disobedience as a group collectively refuse to sign bail until certain demands are met, such as favourable bail conditions, or the release of all the activists. This is a form of jail solidarity. There have also been many instances of solitary civil disobedience, such as that committed by Thoreau, but these sometimes go unnoticed. Thoreau, at the time of his arrest, was not yet a well-known author, and his arrest was not covered in any newspapers in the days, weeks and months after it happened. The tax collector who arrested him rose to higher political office, and Thoreau's essay was not published until after the end of the Mexican War.

Choices

Action

Civil disobedients have chosen a variety of different illegal acts. Hugo A. Bedau writes,

There is a whole class of acts, undertaken in the name of civil disobedience, which, even if they were widely practiced, would in themselves constitute hardly more than a nuisance (e.g. trespassing at a nuclear-missile installation) ... Such acts are often just a harassment and, at least to the bystander, somewhat inane ... The remoteness of the connection between the disobedient act and the objectionable law lays such acts open to the charge of ineffectiveness and absurdity.

Bedau also notes, though, that the very harmlessness of such entirely symbolic illegal protests toward public policy goals may serve a propaganda purpose. Some civil disobedients, such as the proprietors of illegal medical cannabis dispensaries and Voice in the Wilderness, which brought medicine to Iraq without the permission of the US government, directly achieve a desired social goal (such as the provision of medication to the sick) while openly breaking the law. Julia Butterfly Hill lived in Luna, a 180-foot (55 m)-tall, 600-year-old California Redwood tree for 738 days, preventing its felling.

In cases where the criminalized behaviour is pure speech, civil disobedience can consist simply of engaging in the forbidden speech. An example is WBAI's broadcasting of the bit "Filthy Words" from a George Carlin comedy album, which eventually led to the 1978 Supreme Court case of FCC v. Pacifica Foundation. Threatening government officials is a way to express defiance toward the government and unwillingness to stand for its policies. For example, a supporter of some tax deniers in New Hampshire, Edward and Elaine Brown, was arrested for allegedly telling the local city councillors to "Wise up or die."

More generally, protesters of particular victimless crimes often see fit to openly commit that crime. Laws against public nudity, for instance, have been protested by going naked in public, and laws against cannabis consumption have been protested by openly possessing it and using it at cannabis rallies.

Some forms of civil disobedience, such as illegal boycotts, refusals to pay taxes, draft dodging, distributed denial-of-service attacks, and sit-ins, make it more difficult for a system to function. In this way, they might be considered coercive; coercive disobedience has the effect of exposing the enforcement of laws and policies, and it has even operated as an aesthetic strategy in contemporary art practice. Brownlee notes that "although civil disobedients are constrained in their use of coercion by their conscientious aim to engage in moral dialogue, nevertheless they may find it necessary to employ limited coercion to get their issue onto the table". The Plowshares organization temporarily closed GCSB Waihopai by padlocking the gates and using sickles to deflate one of the large domes covering two satellite dishes.

Response to punishment

As civil disobedience is intentionally breaking the law, people engaging in civil disobedience can expect to be arrested, criminally charged, tried, and legally punished for breaking the law. Protestors have to make choices about how to respond to each of these results.

Al Sharpton, a civil rights and social justice activist, says that civil disobedients "must be prepared to say the cause is more important than my freedom" and not incorrectly believe themselves to have legal immunity or feel a sense of entitlement to break laws without being subject to the ordinary legal punishments for breaking those laws.

Some disciplines of civil disobedience hold that the protester must submit to arrest and cooperate with the authorities. Others advocate falling limp or resisting arrest, especially when it will hinder the police from effectively responding to a mass protest.

Many of the same decisions and principles that apply in other criminal investigations and arrests arise also in civil disobedience cases. For example, the suspect may need to decide whether to grant a consent search of his property and whether to talk to police officers. It is generally agreed within the legal community, and is often believed within the activist community, that a suspect's talking to criminal investigators can serve no useful purpose and may be harmful. Some civil disobedients are compelled to respond to investigators' questions, sometimes by a misunderstanding of the legal ramifications or a fear of seeming rude. Also, some civil disobedients seek to use the arrest as an opportunity to make an impression on the officers. Thoreau wrote,

My civil neighbor, the tax-gatherer, is the very man I have to deal with—for it is, after all, with men and not with parchment that I quarrel—and he has voluntarily chosen to be an agent of the government. How shall he ever know well that he is and does as an officer of the government, or as a man, until he is obliged to consider whether he will treat me, his neighbor, for whom he has respect, as a neighbor and well-disposed man, or as a maniac and disturber of the peace, and see if he can get over this obstruction to his neighborliness without a ruder and more impetuous thought or speech corresponding with his action.

Choices made by society

In addition to legal action, civil disobedients may be affected socially. For example, student protesters may be suspended or expelled from school. Civil disobedients may be disowned by or become estranged from their families. Some employers may prefer to hire people who did not engage in civil disobedience or fire employees who do.

Legal theory

Governments have generally not recognized the legitimacy of civil disobedience or viewed political objectives as an excuse for breaking the law. Specifically, the law usually distinguishes between criminal motive and criminal intent; the offender's motives or purposes may be admirable and praiseworthy, but his intent may still be criminal. For example, a protester may be motivated by a desire to increase awareness about an injustice and intend to block traffic on a street, and it is the intention, rather than the motivation, that is criminally significant. Hence the saying that "if there is any possible justification of civil disobedience, it must come from outside the legal system."

One theory is that, while disobedience may be helpful, any great amount of it undermines the law by encouraging general disobedience which is neither conscientious nor of social benefit. Therefore, conscientious lawbreakers must be punished.

Courts have distinguished between two types of civil disobedience: "Indirect civil disobedience involves violating a law which is not, itself, the object of protest, whereas direct civil disobedience involves protesting the existence of a particular law by breaking that law."

During the Vietnam War, courts typically refused to excuse the perpetrators of illegal protests from punishment on the basis of their challenging the legality of the Vietnam War; the courts ruled it was a political question. The necessity defence has sometimes been used as a shadow defence by civil disobedients to deny guilt without denouncing their politically motivated acts, and to present their political beliefs in the courtroom. Court cases such as United States v. Schoon have greatly curtailed the availability of the political necessity defence. Likewise, when Carter Wentworth was charged for his role in the Clamshell Alliance's 1977 illegal occupation of the Seabrook Station Nuclear Power Plant, the judge instructed the jury to disregard his competing harms defence, and he was found guilty. Fully Informed Jury Association activists have sometimes handed out educational leaflets inside courthouses despite admonitions not to; according to the association, many of them have escaped prosecution because "prosecutors have reasoned (correctly) that if they arrest fully informed jury leafleters, the leaflets will have to be given to the leafleter's own jury as evidence."

Actions that are outside of civil disobedience

Michael Bayles argues that if a person violates a law to create a test case as to the constitutionality of a law, and then wins his case, then that act did not constitute civil disobedience.

Breaking the law for self-gratification, as in the case of a cannabis user who does not direct his act at securing the repeal of amendment of the law, is not civil disobedience. Likewise, a protester who attempts to escape punishment by committing the crime covertly and avoiding attribution, or by denying having committed the crime, or by fleeing the jurisdiction, is generally not called a civil disobedient.