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The practice of civil disobedience presents itself in stark conflict with the central political obligation: the duty to obey the law. Conceiving of civil disobedience as inherently incompatible with political obligations obscures the reality of the relationship between a state and its citizens, suggesting that the only relevant obligations are those owed to the state. This tension was emphasised last year in the UK in response to Black Lives Matter protests in Bristol, the most popular resulting in the removal of the statue of slave trader Edward Colston by protestors. One response to this occurrence was simply that property damage, however legitimate or principled its motivating reasons, was simply the wrong course of action and cannot be justified, because it is unlawful. This response reveals a belief that the only legitimate form of protest is that which does not break the law, hence excluding civil disobedience from the realm of legitimate protest. However, theories of political obligation in liberal states implicitly suggest that such action might be justified under specific circumstances, namely the failure of the state to fulfil its’ obligations to citizens. Where the state fails to fulfil its obligations, citizens, by virtue of their autonomy, should be understood as having a right to hold the state accountable. This right must not be restricted solely to legal action; hence illegal action in the course of civil disobedience and protest is justifiable with a non-anarchist state.
Civil disobedience refers to protest action against the laws and policies of a state, with the aim of influencing reform or change. Political theorists disagree on their definition of civil disobedience, with some conceiving of it as necessarily nonviolent, whereas others do not include a requirement of peacefulness. For example, John Rawls defines it as “a public, non-violent, conscientious yet political act contrary to law usually done with the aim of bringing about a change in the law or policies of the government.” (Rawls, 1999, p. 230). Contrarily, Candice Delmas argues for a right to uncivil disobedience, which includes property damage of the kind seen in Bristol. Rawls is representative of the position I argue against in this article, not for his advocacy of non-violence, but because of his broad conception of violence which includes property damage. Rawls excludes any acts which interfere with the civil liberties of others from civil disobedience (Rawls, 1999, p. 321). By defining violence so broadly he and others who argue against property damage as a legitimate form of protest severely restrict the scope of civil disobedience.
My understanding of the relationship between civil disobedience and political obligation mirrors Lefkowitz’ claim that the political obligation generated from a liberal-democratic state’s justified claim to political authority is disjunctive; either citizens must obey the law, or they must publicly disobey it (Lefkowitz, 2007). Public disobedience of the law should include property damage, particularly where it represents a clear political message. In making this argument, I show how theories of political obligation (the duty to obey the law) are compatible with the sort of uncivil disobedience represented by the removal of the Colston statue.
Consent-based theories
Social contract theories seek to reconcile the autonomy of citizens with political authority through the mechanism of consent. The source of political obligation is the covenant between citizens to transfer some of their natural rights to the sovereign who acts on their behalf. A covenant, as an agreement between persons, is inherently a situation of mutual exchange. For Hobbes, citizens transfer the majority of their rights to self-preservation to the sovereign in order to be lifted out of the state of nature (Hobbes, 1651).
Conversely, in making this assertion, Hobbes renders a breach of the instituting covenant possible. If the covenant is the source of obligations for citizens, it is also the source of obligations for the sovereign; state and citizen are mutually obligated. There is no reason why only citizens are able to breach the agreement; it does not follow that any act of the sovereign secures justice and thereby fulfils the state’s obligations. In order to hold the state accountable, and as a remedy for breach of the contract, citizens may partake in civil disobedience. It therefore does not follow that uncivil disobedience and Hobbes’ theory of political obligation are inherently incompatible. In fact, Hobbes qualifies the indisputable nature of the sovereign’s decree. He claims that individuals retain a right to defend their own bodies, even against those who lawfully invade them, including the sovereign (Hobbes, 1651, p. 104). Individuals are bound not to hurt themselves. They are also not bound to hurt other people. Thus, where the sovereign directly violates the bodily integrity of an individual, citizens may engage in civil disobedience. This would narrow the scope of civil disobedience to only those acts of the sovereign which directly violate the bodily integrity of a citizen. However, by limiting this right to that which violates the bodily integrity of oneself or another, property damage is left outside of the scope of illegitimate action, thus suggesting it may be a justifiable response to a state’s non-fulfilment, or direct violation of its’ obligations.
The doctrine of hypothetical consent
Traditional social contract theories rely on a loose definition of consent which is incongruent with autonomy. This loose definition sees that simply remaining within the physical boundary of a state counts as consenting to its’ authority, hence departing from a definition of consent as a positive act of assent.. Consequently, Pitkin proposes an alternative; the doctrine of hypothetical consent, asserting that these theories are actually about the nature of the government (Pitkin, 1966). For Pitkin, political obligation depends on “whether the government is such that you ought to consent to it, whether its actions are in accord with the authority a hypothetical group of rational in a hypothetical state of nature would have (had) to give to any government they were founding.” (Pitkin, 1966, p. 39)
In short, Pitkin tells us that if the government deserves to be obeyed, you are obligated to obey the law. Pitkin is right to conclude that the nature of the government is indicative of the stringency of political obligation. Locke, for example, claims no obligations arise where the government is tyrannical, and Hobbes’ restraint of civil laws by the laws of nature show that individuals’ have no duty to obey the civil law where they violate the laws of nature. Under the doctrine of hypothetical consent, “your obligation is to obey what deserves obedience and consent and to resist what deserves resistance and rejection.” (Pitkin, 1966, p. 42) The terms of the agreement reveal what laws deserve obedience and consent, and thus where the state does not fulfil their obligations, individuals are positively obligated to oppose the government (Pitkin, 1966, p. 42), which would constitute civil disobedience. How does that obligation arise? The agreement between the state and citizens may be the source, if we acknowledge the conclusion underlying the practice of justifying political authority; the state is in service to its citizens.
One might be concerned that civil disobedience may result in a regression to the state of nature, as the state’s ability to act as impartial adjudicator is compromised. This may be the case if my claim was that all forms of civil disobedience are justified. However, my claim is not that all civil disobedience is compatible with political obligation, but that the general practice is. What kinds of civil disobedience are justifiable will vary depending on the relevant theory of obligation. Pitkin’s duty to resist is limited. The action taken must be appropriate; “the fact that some action is justified […] does not mean that just any action will do.” (Pitkin, 1966, p. 44) Hence, a more nuanced, case-to-case approach to evaluating the legitimacy of uncivil disobedience is necessary. Property damage might be appropriate in one instance but not the other. Because these consent-based theories emphasise the existence of duties between citizens, the implication is that property damage which violates these duties is illegitimate. Hence, the actions of the Bristol protestors is justifiable, but property damage which endangers human lives is not.
Principle of fairness
The principle of fairness grounds political obligation in reciprocity between citizens. It dictates:
“when a number of persons conduct any joint enterprise according to rules and thus restrict their liberty, those who have submitted to those restrictions when required have a right to a similar submission from those who have benefitted by their submissions.” (Hart, 1955, p. 185)
This describes another society based on mutual exchange between citizens, which results in state institutions that produce a package of benefits. The assumption underlying this principle is that fairness secures justice for all, and thus it appears there is no room for civil disobedience. In a pluralistic society, it is unclear that fairness means the same thing to everyone. The inequality of burdens does not free those with more onerous burdens from their obligations as long the assignments were fair. This reveals that fairness also regulates the interactions between state and individual. The state’s actions are constrained by considerations of fairness.
Consequently, the scope for civil disobedience widens considerably. Most evidently, civil disobedience might be justified in response to unfair assignments in the provision of presumptive public goods. It would also mean that where the government fails to function in distributing presumptively beneficial goods (Klosko, 1987, p. 247), citizens may engage in civil disobedience where the distribution is unfair. In this way, civil disobedience serves as a check on the fairness of the scheme. The shape of their non-compliance may be determined by the principle of fairness; it might justify paradigmatic peaceful acts of civil disobedience such as those taken by Martin Luther King, but not the Rodney King Riots.
The Duty to Justice
The duty to justice states:
“we are required to support states because we have pre-existing, coercible duties to other people that we can fulfil only through states. If a state exists where I happen to be, and if it enforces a legitimate system of law, then I ought to comply with it since it is only through a state institution that I can fulfil my more basic duty to do justice to people with whom I interact.” (Stilz, 2012, p. 246)
This theory claims that justice depends on legitimate state authority, as the state is the only means of solving coordination problems without the unilateral imposition of one’s will over another, which is contemptuous of individual autonomy. Stilz argues that “the state is therefore an indispensable means to fulfilling a moral duty by which we are already bound, namely the duty to respect others’rights.” (Stilz, 2012, p. 256). It would follow that civil disobedience is incompatible with the duty to justice. However, because the duty to obey depends on pre-existing moral duties, which ‘go through’ the state, the content of laws is relevant to the stringency of political obligation. The state is obligated to facilitate justice and the fulfilment of citizens’ moral duties. Even where the state is the only mechanism by which justice may be served, that does not mean that a state serves the ends of justice in every case better than would occur in the state of nature. The external freedom of an individual, or a group of people, may be directly violated by an act of the state. Consequently, the state may fail to serve the end which justifies its existence, thus justifying civil disobedience.
Stilz does not suggest that every individual state is the only method of securing justice . Instead, she insists “I think I am obliged to respect [laws] – unless I am committing a public act of protest or civil disobedience—because of the important expectations of the rightsholders in having others coordinated around a common view of their rights,” (Stilz, 2012, p. 257), and that there is “no duty to obey laws that violate the core elements of the right to external freedom.” (Stilz, 2012, p. 257). In this case, individuals whose rights are not directly violated may also partake in civil disobedience because the state obstructs them from fulfilling their duties to others, thereby acting contrary to its obligation. It is also these duties which shape the content of civil disobedience—because we have duties to our fellow citizens, we may not be justified in destroying their property, or in committing acts of violence. However, damage to state-owned or public property, in so far as it does not violate or endanger the rights of fellow citizens, remains justifiable under this theory of political obligation.
To conclude, I have sought to show how the ideal of peaceful, non-violent, and legal protest does not fully entail what kinds of civil disobedience may be justifiable in liberal states. A more nuanced approach, which seeks to acknowledge the legitimacy of property damage as a form of political discourse, and hence engage such actors rather than criminalise them, is preferable.
Bibliography
Hart, H., 1955. Are There Any Natural Rights?. Philosophical Review, Volume 64, p. 185.
Hobbes, T., 1651. Leviathan. London: Andrew Crooke.
Lefkowitz, D., 2007. On a Moral Right to Civil Disobedience. Ethics, 117(2), pp. 202-233.
Locke, J., 1823. The Works of John Locke. London: Thomas Tegg Aalen, Scientia Verlag.
Lyons, D., 1998. Moral Judgment, Historical Reality, and Civil Disobedience. Philosophy and Public Affairs, Volume 27, pp. 31-49.
Pitkin, H., 1966. Obligation and Consent Part II. American Political Science Review, 60(1), pp. 39-52.
Rawls, J., 1999. Duty and Obligation. In: A Theory of Justice. Cambridge, Massachusetts: Harvard University Press, p. 320.
Rawls, J., 2005. Political Liberalism. Expanded Edition ed. Columbia: Columbia University Press. re, n.d. re. re: s.n.
Stilz, A., 2012. Why Does the State Matter Morally?. In: R. M. S. Sigal R. Ben-Porath, ed. Varieties of Sovereignty and Citizenship. Philadephia: University of Pennyslvania Press, pp. 244-264.
By Yewande
Yewande Oyekan is an MA in Legal and Political Theory student, having previously completed an LLB in Law.
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