The boundaries of justifiable disobedience

Piero Moraro

This article was published in Living Ethics: issue 85 spring 2011

In the early hours of 13 May 2011, Michael Fox climbed on top of the Sydney Harbour Bridge and unfurled two banners saying: “Please help  my kids”. His protest was aimed at a court ruling limiting his right to see his kids after divorcing his wife. As a consequence of this action, the traffic of Sydney at peak-time was seriously disrupted with thousands of commuters stuck for hours in a massive traffic jam. Was Fox’s action a case of civil disobedience (CD)?

If it was, then we may have to say that it represented a kind of protest that is morally permissible in democratic societies. Answering this question in Michael Fox’s case is particularly puzzling given the fact his behaviour challenged some of the main assumptions of the traditional theory of CD. On the one hand, it was a highly disruptive action that infringed on the liberty of thousands of commuters. On the other hand, Fox’s later decision to plead not guilty sits oddly with the general expectation that a civil disobedient will submit to punishment. According to the standard definition of CD, this is a central element of an act of CD.

Following John Rawls’ influential argument, for an illegal action to constitute an instance of CD it has to fulfill the following three requirements:

1. The protesters have to inform the authorities of their planned action. This is meant to enable local authorities to make arrangements to limit the disruption to other citizens, which has to be minimised
2. The action has to be non-violent, for any violation of others’ freedom is incompatible with the values of a democratic system
3. The protesters ought to be willing to accept the punishment attached to a law-breaking action. For example, were protesters to try to avoid arrest by running away from the police, their actions would not be a genuine case of CD

What I want to suggest is that this definition of CD should be revised, and that Michael Fox’s protest on the bridge might be deemed an instance of CD.

Although Rawls’ definition is still a point of reference in the literature on CD, there is now general agreement that the first requirement is too strict and its application would often be self-defying. Most actions of CD would not even take place were the police given fair notice of the protesters’ intention of, for example, occupying a military base. So while there is certainly a duty to eschew secrecy in CD, this should be understood to generate a requirement to reveal protesters’ own identities immediately after the illegal action. Michael Fox’s behaviour satisfied this first requirement of CD since he did nothing to hide his identity once on the bridge and, rather, took action to make his identity public.

The second requirement highlights the necessity of non-violence. Although there is wide acceptance that what distinguishes CD from other forms of protest is that the former does not endanger other people’s safety, it is highly debatable where the line between violence and non-violence should be drawn. If what we are concerned with is not endangering people’s lives, then a strike by ambulance drivers might be much more violent than the smashing of a McDonald’s window by protesters against globalization.

CD is an act of communication. Following  Habermas’ communicative theory, the aim of communication is the rational persuasion of others through engagement in a discourse that treats them as equal. Thus any form of threat or of manipulation is to be ruled out from communication and, therefore, from CD.

So, if CD is to be understood as a form of communication, and if communication requires persuasion and forbids coercion, then the second requirement can be qualified as banning from the realm of CD any use of force or violence that aims to threaten or coerce. This suggests that some violence might sometimes be allowed, insofar as it is necessary for the addressees’ acknowledgment of the protesters’ message.

Did Michael Fox’s action satisfy this revised version of the second requirement of CD? He certainly did intend to cause a serious disruption to the city of Sydney and to force people to abandon their activities for a few hours against their will. Disruption was not just a side effect of his action; rather, it was a constitutive element of it.

But that use of force was the means by which he tried to persuade society that his case needed attention: it was not  intended as a threat to coerce society into accepting his request. Whether or not he was justified in choosing this strategy, the fact that people were forced to act against their will is not sufficient, per se, to disqualify his protest as an instance of CD. So I would suggest that Michael Fox’s protest on the
bridge can satisfy the first two requirements in the revised form I have proposed.

We are left, then, with the third requirement, namely that civil disobedients ought to be willing to accept the legal consequences of
their actions. Regardless of the communicative aims underlying the action, a breach of the law is still a breach of the law and, as such, is subject to legal punishment.

One main difference between CD and other forms of protest is that the former does not aim at overthrowing the system. Civil disobedients acknowledge their government’s legitimacy and its authority to enact laws and punish lawbreakers. The attempt to avoid punishment would defy
this principle.

The cases of Gandhi and of Martin Luther  King, considered as paradigmatic of CD, exemplify the centrality of the acceptance of punishment. They both appeared in court and pleaded guilty (though they offered statements explaining the reasons behind their acts of CD). Pleading guilty is meant to express the acceptance of disobedients’ own responsibility in front of the legal system and the institution of democracy. Attempting to avoid punishment would betray the disobedients’ self-interest in eschewing the burdens of their actions, and instantiate the belief that the law can be disobeyed at their discretion.

This final requirement of CD points out that, before committing the act, the agents should know, and accept, that they will be punished for disobeying the law. Civil disobedients, as it were, before breaching the law should accept that they will be punished.According to Rawls, the law is broken, but fidelity to law is expressed “… by the willingness to accept the legal consequences of one’s conduct”.

Was then Michael Fox expressing disrespect or ‘infidelity’ to the law by pleading not guilty to the criminal charges? Although assessing his particular case involves discussing further issues (for example, whether he was acting for the common good or for his own interest), it raises the question of whether or not the not-guilty plea for CD shows disrespect for the law.

Once again, I think that the requirement that civil disobedients be willing to accept their punishment needs further specification. Gandhi and King suggest that civil disobedients should aim for the punishment as a way to bear witness to the injustice they are denouncing and to the sincerity of their motives. However, this seems based on instrumental reasons (namely, to give more resonance to their case), not on the desire to show respect for the law.

If what we are concerned with is the latter, and the importance of one’s own accountability for the choice to disobey, then requirement two prescribes exposing oneself to punishment, not seeking to be punished. Were protesters to run away from the police, and/or to resist being arrested, and refuse to cooperate with the authorities, we could doubt that their acts qualify as civil disobedience. However, the attempt to persuade the community that one’s act though illegal was not criminal (for it did not express defiance of the legal system) may be compatible with the communicative ideals of CD, and with the requirement to take on responsibility for one’s own behaviour.

I am not arguing that Michael Fox did take the law seriously, and that therefore he should not be punished for his action on the bridge. The last word belongs to the judge who will decide which sanction, if any, to impose on him. Nor do I claim, by any means, that by pleading guilty one always shows respect for the law. Someone might have a very distorted idea of what the law should punish and what it should condone.

My goal has been to suggest that we should expand our notion of what actions are civil, and that strict adherence to the letter of the law is not, in itself, a sign of respect for the principles the law is meant to protect and promote.