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Disaggregating political authority: What's wrong with Rawlsian civil disobedience
Political protest is politically controversial. The recent campaign to free three protesters against Cuadrilla’s fracking operation in Lancashire after their convictions for public nuisance show that at least significant parts of the public see much peaceful protest as legitimate, and something for which people should not be punished, at least not by imprisonment. Yet it is equally clear both that parts of the public see some, even peaceful protest as illegitimate and that the law cannot remain effective if anyone may disobey it whenever she or he pleases. This poses a question. How ought we to understand the relationship between the government’s authority to make and enforce law, and individuals’ rights to struggle to try to change the law?
Typically, political theorists and philosophers who have tried to understand this problem have drawn two distinctions. First, they have distinguished between legal and illegal protest. We all have the right to try to change the law within the law, and rightly so. It may sometimes be unclear whether protest is legal, because for example of the possibility of legal judgments being overturned or laws being found unconstitutional, and sometimes we may not have the legal rights to protest which we ought. In this sense, illegal protest may involve claiming rights we have been wrongly denied. Still, broadly speaking, there is a sphere of legally permitted protest. This protest may be wrongheaded or even malicious, in the way that any ordinary political argument may be wrongheaded or malicious, but like other ordinary political arguments, they are something to which people have a right.
The second distinction political theorists and philosophers have drawn is between legitimate and illegitimate regimes. Some governments are tyrannical and oppressive, or so incompetent that they lose their authority to make and enforce law. Illegal protest against these governments is legitimate. The laws the protests break are not authoritative. The governments did not have a right to make them and so no-one is obliged to obey them. Protests against these governments should avoid or minimize harming people, at least long as they are not agents of the state like police officers or members of the security services. The moral obligations which we have whatever the law is, against for instance murder, still apply, and so insofar as the law matches these obligations, it ought to be obeyed. The law itself though is just not worthy of respect, given who made it and what they hope to do with it.
Political theorists and philosophers of course disagree about which regimes are legitimate and illegitimate. Some, for example, think that only governments whose citizens have consented to their power are legitimate. Others require governments to achieve social and political equality, or various forms of liberty, to make themselves authoritative. What almost all of them agree on though is that states can be divided into legitimate and illegitimate states, and that on which side of that line a state falls determines whether significant illegal protest against it is acceptable. Civil disobedience and conscientious objection may be special cases of permissible illegal protest even in legitimate regimes, but generally, if the regime is legitimate, you ought not to break the law, whereas if the regime is illegitimate, there is no reason to respect the law simply as the law.
This shared understanding of when illegal protest is appropriate is though implausible and needs to be revised, as I try to show (in my forthcoming Political Studiesarticle/here/whatever is appropriate). That understanding treats authority as an all-or-nothing matter, which governments either have or lack completely. If governments either have authority or lack it completely, then they should never be in a position where some illegal protest against them is appropriate but some is not. Either all illegal protest is fine, as long as it is not independently morally wrong, or no illegal protest is acceptable, at least if it is not civil disobedience. This simply does not adequately capture the range of different attitudes we might reasonably adopt to different forms of illegal protest.
Consider the anti-Poll Tax campaign in the UK in the late 1980s. Neither the riot in which the campaign culminated nor its earlier attempts to make the tax uncollectable by not just mass refusal to pay, but also mass refusal to pay fines for non-payment, seem relevantly like sitting in the “wrong” seat on a bus, as Rosa Parks did in her defining act of civil disobedience. It is not obvious that all of the tactics adopted by the anti-Poll Tax campaign were illegitimate, or that covert and destructive tactics used by anti-nuclear campaigners are. However, there clearly are tactics they could have adopted which would be illegitimate. Anti-Poll Tax campaigners could not have defended themselves by claiming they were forced to begin a campaign of sabotage by their oppression, as Nelson Mandela did during his trial for treason in Apartheid South Africa. Even when some laws may be broken, others remain binding. This is incompatible with the binary, all-or-nothing view shared by almost all political theorists, and so we need to abandon it and rethinking our understanding of political authority to better understand when political protest is appropriate.
Read the full-length article published in Political Studies here.
Robert Jubb is Associate Professor at the University of Reading.