The Journal of Political Philosophy: Volume 23, Number 4, 2015, pp.

427449

Recent Theories of Civil Disobedience:

An Anti-Legal Turn?*
William E. Scheuerman
Political Science, Indiana University

SIGNIFICANT shift appears underway in contemporary thinking about

civil disobedience. While liberal Anglophone philosophers in the 1960s and
1970s regularly underscored how politically motivated law-breaking could be
interpreted as supportive of the rule of law, present-day scholarly accounts
frequently depict conscientious illegality as potentially expressing what Martin
Luther King, a key political inspiration behind much of the academic debate,
dubbed the very highest respect for the law.1 The initially paradoxical intuition
that nonviolent law-breaking is sometimes necessary to preserve the law, that it
constitutes what John Rawls aptly described as disobedience to law within the
limits of fidelity to law, tends to vanish from the purview of recent theorists of
civil disobedience.2 For a surprising range of thinkers, it is now anachronistic.3
For radical critics, it is time to move beyond the hairsplitting legalistic
orientation of the standard liberal model, which forecloses possibilities for
creative protest and stands in the way of far-reaching change.4 For many others,
it is simply a matter of recognizing that civil disobedience is best understood
primarily as a conscientious moral challenge to the law. The final result, in an
event, obscures civil disobediences identifiably legal contours.
A political and theoretical dead end, the anti-legal turn robs civil disobedients
and their advocates of an impressive line of defense. In order to vindicate this
position, I start by revisiting the political and intellectual contextin particular,

*I am extremely grateful to the three anonymous referees who provided incisive comments on
earlier versions and also to Ryan Balot, Ronald Beiner, Kimberley Brownlee, Robin Celikates, Simone
Chambers, Maeve Cooke, Chris Cowley, Jeff Isaac, Peggy Kohn, and Frances Olsen for opportunities
to present my ideas and also for their generous critical feedback.
1
Martin Luther King, Letter from Birmingham city jail (1963), Civil Disobedience in Focus, ed.
Hugo Adam Bedau (New York: Routledge, 1991), pp. 6884, at p. 74.
2
John Rawls, A Theory of Justice (Cambridge, MA: Harvard University Press, 1971), p. 366.
3
This applies, as I document at length below, to a broad swath of scholarly opinion. Anti-legalism
sometimes overlaps with hostility to the standard liberal (and especially Rawlsian) model of civil
disobedience as formulated in the 1960s and 70s. Yet it would be misleading to describe the trend at
hand as congenitally anti-liberal since many liberals embrace it.
4
Adam Sitze, Foreword, in Raffaele Laudani, Disobedience in Western Political Thought: A
Genealogy (Cambridge: Cambridge University Press, 2013), pp. viixxvi, at p. xix.
2015 John Wiley & Sons Ltd
doi: 10.1111/jopp.12055

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WILLIAM E. SCHEUERMAN

Kings nuanced views about the relationship between civil disobedience and
the lawin which liberal thinkers initially formulated what soon became the
commonplace account (Section I). I then turn to recent scholars critical
assessment of that political and intellectual moment. Though they have
successfully directed powerful criticisms against the liberal view as formulated
by Rawls and others, their flawed anti-legal proclivities threaten to throw the
baby out with the bathwater (Sections II, III). In order to refurbish the familiar
but now beleaguered view of civil disobedience as inextricably linked to the very
highest respect for the law, I discuss two contemporary examples (i.e., Edward
Snowdens whistleblowing and anti-austerity protests in the European Union),
both of which support my attempt to salvage the idea that civil disobedience
needs to be understood as underpinning the rule of law (Section IV).
I. NONVIOLENT DIRECT ACTION AND THE LAW
Kings praises are now sung by politicians on a US national holiday named after
him, schoolchildren recite phrases from his speeches, and university students get
quizzed on his Letter from a Birmingham Jail. Yet his views about the nexus
between civil disobedience and law are often neglected.5 Even if those ideas once
mesmerized Kings own philosophically-minded contemporaries, we need to
revisit them to appreciate what contemporary theories of civil disobedience risk
abandoning.
King, of course, offered a demanding account of what he dubbed nonviolent
direct action, which he characterized as presenting our very bodies as a means
of laying out our case before the conscience of the local and national
community.6 Civil disobedience appealed to the conscience of broader publics
and could only be undertaken by actors whose own moral credentials had been
instilled via a series of rigorous practical tests. Even if the underlying sources of
conscientious protest were fundamentally religious (and, for King, basically
Christian),7 its seriousness was validated by practices that could be undertaken by
a diversity of moral and political agents: Gandhian-style self-purification, for
example, impelled prospective disobedients, Christian or otherwise, to think long
and hard about their capacity to put up with physical and psychological abuse.

5
For an exception, see David Lyons, Moral judgment, historical reality, and civil disobedience,
Philosophy and Public Affairs, 27 (1998), 3149. Some of the recent literature on political
disobedience seems uninterested in King, his ideas about law, and the liberal theory of civil
disobedience (e.g., Howard Caygill, On Resistance [London: Bloomsbury, 2013]). Others discount
Kings relevance in the context of accelerated globalization (Lawrence Quill, Civil Disobedience:
(Un)Common Sense in Mass Democracies [London: Palgrave, 2009], p. 6) or worry about a
misplaced nostalgia for him (Molly Sauter, The Coming Swarm: DDOs Actions, Hacktivism, and
Civil Disobedience on the Internet [London: Bloomsbury, 2014], pp. 1938). Not surprisingly, such
authors tend to discount legal justifications for civil disobedience.
6
King, Letter from Birmingham city jail, p. 70.
7
He does refer to other traditions (e.g., Bubers Judaism).

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429

Other tests King prescribed similarly allowed nonviolent lawbreakers to make a

plausible case that their actions were morally well-considered. Though King
struggled to free conscientious protest from the suspicion of moral subjectivism,
he always believed that conscientious appeals possessed impressive persuasive
force.
King also grasped that in pluralistic societies where the voice of conscience
typically speaks in different tongues, however, civil disobedience could not rest
exclusively or even primarily on appeals to it. Whatever the virtues of such
appeals, nonviolent law-breaking would only contribute in most instances to
changes in attitudes (and, ultimately, policy) by demonstrating its congruence
with the communitys highest [shared] respect for the law. The point was
not to dispense with conscience but to supplement it with less sectarian appeals
invoking a commonly held respect for the law. Not surprisingly, Kings
comments about civil disobedience are replete with claims about its distinctive
legal underpinnings. Admittedly, this feature of Kings agenda was often driven
by strategic dictates. Peaceful law-breaking had to be politically delineated from
the uncivil disobedience of segregationists who engaged in horrific violence
under the cover of nightfall and then circumvented legal consequences.8 The civil
rights movement needed to respond to the widespread apprehension that it was
advancing what US President Richard M. Nixon once derided as the corrosive
doctrine that every citizen possesses an inherent right to decide for himself which
laws to obey and when to disobey them, along with a resulting deterioration
for the respect for the rule of law.9 By describing nonviolent law-breaking as
fundamentally exemplifying the rule of law, King thought it possible to counter
such views.
Nonetheless, it would be wrong to view Kings ideas about law as resting
ultimately on underlying and more basic moral or political arguments: he
regularly pointed towards a powerful and relatively independent source of legal
justification for nonviolent direct action. He saw this legal justification as not
only a puissant practical tool but also implicitly as essential to understanding civil
disobediences normative underpinnings. Even if civil disobedience unavoidably
tapped into powerful moral and political resources, its specifically legal traits
possessed a special normative status.
Most famously, King appealed to traditional (mostly Christian) natural law
ideas when explaining why some (unjust) laws could potentially be violated by
prospective civil disobedients. On his reading of that tradition, [a]ny law that
uplifts human personality is just. Any law that degrades human personality is
unjust, as the Christian tradition had demonstrated. According to King, [a]ll
8
King, The time for freedom has come, A Testament of Hope: The Essential Writings of Martin
Luther King, Jr., ed. James Melvin Washington (New York: Harper & Row, [1961] 1986), pp. 1606,
at p. 164. King was politically adept at exploiting the violent white backlash.
9
Cited in Costas Douzinas, Philosophy and Resistance in the Crisis (Cambridge: Polity Press,
2013), pp. 901.

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WILLIAM E. SCHEUERMAN

segregation statutes are unjust because segregation distorts the soul and damages
the personality.10 In the recent literature it is this feature of Kings legal thinking
that gets highlighted, at the price of reducing it to a fundamentally moral or
conscience-based argument positing the primacy of the ethical over the
political.11 The problem with this one-sided exegesis is that it collapses Kings
legal thinking into its conceptually distinguishable moral or ethical elements.12 By
interpreting natural law as a fundamentally ethical but not legal doctrine, Kings
legalism is unfairly jettisoned for his moralism.
King himself seems to have implicitly recognized this pillars weak spots;
he regularly supplemented it with less sectarian non-natural law views.
Religiously-tinged ideas about the fundaments of human personality and
degradation are only likely go so far in a pluralistic polity with radically
diverging moral and religious views. At least as vital to Kings thinking, not
surprisingly, were his appeals to existing positive (and constitutional) law. He
regularly depicted nonviolent direct action as a political device for reigniting the
stalled enforcement of standing US law, e.g., the landmark Brown v. Board of
Education case mandating school desegregation, which had been successfully
stymied by southern segregationists.13 Civil disobedience, from this perspective,
was essential to focus attention on the unsettling reality of a scenario in which
rulings by the communitys highest judicial body had been de facto invalidated by
hostile local officials. By effectively scuttling the Supreme Courts decisions,
it was segregationists who were getting away with egregious violations of the
law; official acquiescence and public apathy provided the requisite cover. Even if
civil rights activists openly abrogated local rules and statutes (e.g., state-level
segregation rules, ordinances against trespassing), they did so only to check more
fundamental violations of constitutional law.
King devoted substantial energy to the task of explaining how this might
best work. The federal government, to be sure, should enforce constitutional
law even in the face of local intransigence. However, the law needs help.
Fortunately,
[n]onviolence can touch men where the law cannot reach them . . . The courts can
order desegregation of the public schools. But what can be done to mitigate the
fears, to disperse the hatred, violence, and irrationality gathered around school
integration, to take the initiative out of the hands of racial demagogues, to release

10

King, Letter from a Birmingham city jail, p. 74.

Tony Milligan, Civil Disobedience: Protest, Justification, and the Law (London: Bloomsbury,
2013), p. 148.
12
To be sure, traditional natural law sometimes consisted of a motley mix of moral, ethical, legal,
and political elements.
13
See, for example, King, Love, law, and civil disobedience, A Testament of Hope: The Essential
Writings of Martin Luther King, Jr., ed. James Melvin Washington (New York: Harper & Row,
[1961] 1986), pp. 4353. On the hostile southern response to Brown, see Michael J. Klarman, From
Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality (Oxford: Oxford
University Press, 2004), pp. 385421.
11

RECENT THEORIES OF CIVIL DISOBEDIENCE

431

respect for the law? In the end, for laws to be obeyed, men must believe they are
right.14

Nonviolent direct action represented the ultimate form of persuasion. It broke

directly with a long tradition of racial mistrust and violence by peacefully,
openly, cheerfully breaking the law so as to disarm antagonists. By evincing
a willingness to sacrifice and even risk[ing] our lives to become witnesses to
the truth as we see it, activists not only gained a new self-respect, but also
sometimes the grudging respect of the previously indifferent and antagonistic.15
Looking into the future, King prophesied that legal desegregation will break
down the barriers, and bring men together physically. But something must
happen so to touch the hearts and souls of men.16 Nonviolent direct action
could play a decisive role in transforming hearts and souls. Its persuasive
power could firm up forward-looking decisions by the Supreme Court by
contributing to racial reconciliation and eventually to a beloved community
built on equality and mutual respect.17 Only in such a community, King argued,
might we expect the practical realization of complete and universal respect for
the law. Nonviolent action directly anticipated the ethos of a new and more
pacific constitutional order where law could rest on firmer normative foundations
and prove efficacious to a degree impossible under existing conditions. Absent
civil disobedience, politically and socially divided communities could never hope
for a legal order in which the formerly downtrodden might embrace the law as
their own, and then rigorously abide it. Racism and social injustice meant that
respect for the law still sometimes demanded disobedience to unjust law, whereas
in a prospective beloved community abstract fidelity to the law potentially
translated into (universal) legal obedience. In short, the idea of respect for the
law contained a forward-looking dynamic: fidelity to the law demanded of
conscientious political actors that they push for dramatic change that might
deepen both laws legitimacy and its efficacy.
Accordingly, well-chosen acts of conscientious law-breaking could catalyze
overdue forward-looking legal reform. Civil disobedience not only undergirded
existing statutory and constitutional law against recalcitrant opponents; it also
helped generate legislative innovationand sometimes, when appropriate,
unilateral executive action18by mobilizing public opinion against reactionary
politicians who were failing to keep up with the need for reform. By zooming in
on grave injustices, while helping to persuade apathetic bystanders and even some

14

King, Stride Toward Freedom, excerpted in A Testament of Hope, op.cit., pp. 41690, at p. 484.
Ibid.
16
Ibid., p. 487.
17
Ibid.
18
See Kings comments about Kennedys timid use of presidential power to support civil rights
(Hammer on civil rights [1964], A Testament of Hope, op.cit., pp. 16975, at pp. 1712).
15

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WILLIAM E. SCHEUERMAN

opponents, nonviolent law-breaking could galvanize public opinion and

overcome the US political systems notorious inefficacy and sluggishness.19
King also believed that by accepting punishment even for unjust laws,
lawbreakers demonstrated their fidelity to core traits of a more abstractbut
by no means thereby insignificant or politically quiescentideal of law-based
government, or the rule of law.20 Here he heeded Gandhis demand for
voluntary submission to the penalty for non-cooperation with evil, and as with
Gandhi, this view was frequently driven by strategic concerns.21
Yet Kings acceptance of punishment was not exclusively or even mainly
strategic. No academic jurist, King nonetheless demonstrated a supple grasp of
how ideas about the law could buttress forms of civil disobedience with
far-reaching and even radical political implications. King accepted a complex
version of the idea that citizens, even in unjust societies like his own, typically
stand under some general obligation to show respect for the law, even if in
some instances such fidelity paradoxically demands disobedience: precisely
because of this (general) obligation, disobedients are obliged to meet a
demanding panoply of tests in order to legitimize their (exceptional) illegal acts.22
Nonviolent lawbreakers are required to pass uncommon tests as a way of
expressing their underlying respect for the law, even ifas he undoubtedly
believedconsistent law abidingness could not be expected from oppressed
groups. Only in a radically overhauled prospective constitutional system might
we achieve a beloved community where everyone could identify sound reasons
for rigorously following the law.
When openly, lovingly violating the law, disobedientsunlike hateful
segregationists who act secretly and avoid penaltiesdirectly reproduce core
fundaments of any normatively legitimate or just system of law.23 They give
immediate expression to a future-oriented aspiration for a reformed legal (and

19
See, for example, Martin Luther King, Facing the challenge of a new age (1956), A Testament
of Hope, op.cit., pp. 13544. Also, Klarman, From Jim Crow to Civil Rights, p. 382.
20
King does not, as far I can tell, use the term rule of law, but a rudimentary notion of it is
implied in his thinking. Even if an unavoidably contested concept, the rule of law still has a
substantial political as well as normative bite, as I argue below. For the basics, see Brian Z. Tamanaha,
On the Rule of Law: History, Politics, Theory (Cambridge: Cambridge University Press, 2004).
21
Gandhi, Nonviolence, Civil Disobedience and Violence, ed. Jeffrie G. Murphy (Belmont, CA:
Wadsworth, 1971), pp. 93102, at p. 93. More, of course, needs to be said about Gandhis views of
the law and disobedience.
22
I disagree here with David Lyons, who reads King as disavowing a general presumption
favoring obedience to the law (Moral judgment, historical reality, and civil disobedience, p. 44).
His reading downplays both the dynamic and forward-looking character of Kings commitment to the
law and his deep legalistic instincts. Lyons correctly notes that King appealed to the central values
that we associate with the Declaration of Independence and the Constitution (p. 45). Yet King saw
in them not simply moral ideals to realize, but legal and constitutional materials on which
disobedients who properly evinced respect for the law could build in order to construct a superior
legal and constitutional order.
23
King, Letter from Birmingham city jail, p. 74. This implicitly aspirational features of legality
help explain why even in terrible regimes (e.g., communism in Eastern Europe, South Africa under
Apartheid) appeals to the law (or rule of law) sometimes functioned to destabilize the status quo.

RECENT THEORIES OF CIVIL DISOBEDIENCE

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political) order. The open and public character of their acts mirrors the familiar
rule of law demand for openness, clarity, and publicity in the law. By lovingly
breaking the law, they similarly embody a commitment to the view that every
legal order needs to rest on some underlying (normative) commitments to
reciprocity and mutuality. King correspondingly defined a just law as a code that
a majority compels a minority to follow that it is willing to follow itself. This is
sameness made legal.24 Only laws embodying the quest for generality typically
are just and worthy of respect. By accepting the possibility of legal penalties
disobedients concede that they, in principle, are subject to the same legal rules as
other members of the legal community. They implicitly work to defend legal
generality, and their actions anticipate a much reformed legal order, better able to
instantiate basic legal virtues.
Respect for legality or the rule of law as evinced by such activism, King
believed, was indispensable to the creation of a more decent and egalitarian
society. As he intuitively grasped, political orders resting on secret or
discriminatory laws are unlikely to prove morally or politically attractive.
Pervasive violations of the rule of law demands for publicity and generality open
the door to irresponsible and morally deplorable state action. Racist and
authoritarian regimes typically make mincemeat of basic rule of law virtues.25
When Tony Milligan describes Kings model of civil disobedience as simply
endorsing the legitimacy of the judicial order, we therefore would do well to
foreground Kings multilayered view of the law.26 For King, law or the judicial
order was always much more than a static collection of existing statutes or
constitutional rulings. He drew on natural law ideas in order to envision law as
dynamic and potentially progressive. Protestors could also advance fundamental
reform by supporting forward-looking legal and constitutional innovations
on the books, but still lacking a firm foundation in political life. When
additional legislative innovations were imperative, nonviolent direct action
could help achieve them. Any legal order deserving our respect would have to
institutionalize a substantial dose of rule of law virtues (e.g., publicity, openness,
and generality). The US legal system too often made a mockery of basic legal
virtues, King recognized, particularly when it came to guaranteeing their
potential advantages to African-Americans. Without a good dose of them, the
legal order was unlikely to prove decent or just. The very highest ideal of law
provided a yardstick for measuring political and social progress, as well as a
powerful basis for instigating nonviolent protest. Our general obligation to the
law demanded of us that we overhaul a legal and constitutional status quo that
failed to live up to certain basic legal ideals.

24

Ibid.
Lon Fuller, The Morality of Law (New Haven, CT: Yale University Press, 1964), esp. pp. 401;
Ernst Franekel, The Dual State (New York: Oxford University Press, 1941).
26
Milligan, Civil Disobedience, p. 99.
25

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WILLIAM E. SCHEUERMAN

Consistent with this interpretation, King did not believe that his view of
nonviolent disobedience as exemplifying respect for the law entailed sympathy
for the political and social status quo. Describing nonviolent direct action, he
frequently emphasized its radicalism: The thing to do is to get rid of the
system.27 When responding to black power militants, he underscored his
approachs superior political credentials, describing nonviolent law-breaking as
providing an answer to the long debated [political] question of gradualism
versus immediacy.28 Civil disobedience, from this perspective, offered
possibilities for political and social transformation with which seemingly more
radical (e.g., violent or revolutionary) approaches could not in fact keep pace,
initial appearances to the contrary. It was able to do so significantly because the
idea of the very highest respect for the law called for far-reaching change.
II. LAW, LIBERALISM, AND CIVIL DISOBEDIENCE
Looking back at the mostly American philosophical literature on civil
disobedience from the late 1960s and 1970s, one is immediately struck by its
varied attempts to do justice to the intuition that nonviolent illegality represents
the best way to advance the very highest respect for the law. A large and
diverse group of liberal theorists, inspired by the civil rights movement,29
diligently tried to construct a proper framework for understanding what King
and other activists had set into motion. Not surprisingly, many of their ideas
tracked King. For John Rawls, as for King, in justifying civil disobedience one
does not appeal [merely] to principles of personal morality.30 A politically viable
defense of civil disobedience, as King had argued, would have to rest on the
political communitys shared commitment to a (common) rule of law. For Hugo
Bedau, for example, civil disobedience referred to acts
which are illegal (or presumed to be so by those committing them, or by those
coping with them at the time), committed openly (not evasively or covertly),
nonviolently (not intentionally or negligently destructive of property or harmful of
persons), and conscientiously (not impulsively, unwillingly, thoughtlessly, etc.)

27
King, Love, law, and civil disobedience, p. 471. The word system is ambiguous in the
lecture: it could be taken as alluding to the evil system of segregation, or to the American political
and social system more broadly. Since King believed that crucial features of the US polity were
poisoned by racism, the ambiguity is hardly surprising.
28
King, Stride Toward Freedom, p. 488. King challenged the usual dichotomy between mere
(legal) reform and (violent) revolution because he believed nonviolent civil disobedience could bring
about radical change. For a corrective to politically sanitized views of King, see Michael Eric Dyson,
I May Not Get There With You: The True Martin Luther King (New York: Touchstone, 2000). On
the transformational character of the civil rights movement: Bruce Ackerman, We the People: The
Civil Rights Revolution (Cambridge, MA: Harvard University Press, 2014).
29
At its 1961 meeting, the American Philosophical Association sponsored a symposium on the
topic. A participant (and soon a major figure in the debate), Hugo Bedau, reports that the civil rights
movement was clearly on the mind of the panel participants (Bedau, Introduction, Civil
Disobedience in Focus, op.cit, pp. 112, at pp. 78).
30
Rawls, A Theory of Justice, p. 365.

RECENT THEORIES OF CIVIL DISOBEDIENCE

435

within the framework of the rule of law (and thus with a willingness on the part of
the disobedient to accept the legal consequences of his act . . .) and with the
intention of frustrating or protesting some law, policy, or other decision (or the
absence thereof) of the government (or some of its officers).31

In a similar vein, Carl Cohen characterized the civil disobedient as acting within
a framework of laws whose legitimacy he accepts,32 Marshall Cohen (and also
Rawls) argued that she evinced fidelity to law,33 and Harrop Freeman insisted
that the nonviolent lawbreaker nonetheless respects the law and is within the
law.34 Other participants in the exchange similarly formulated views of civil
disobedience highlighting its congruence with the law.35
While trying to reproduce Kings intuition that peaceful disobedients were
obliged to demonstrate respect for the law, his liberal academic disciples
nonetheless generally proffered a politically more cautious rendition. Civil
disobedience was conceived as appropriate to what Rawls described as already
nearly justthat is: extensively liberal, basically democratic, and socially
fairsocieties.36 Correspondingly, it had to be neatly delineated from more
radical forms of disobedience.37 Those who saw nonviolent disobedience as
resting on the legitimacy of the existing legal order as a whole,38 rule of law
generally,39 or frame of established authority and the general legitimacy of the
system of law,40 in actuality reconfigured Kings views, even if the overlapping
legalistic terminology probably veiled the shift. The idea of nonviolent
law-breaking as embodying the highest respect for the law now meant that
disobedients had to demonstrate loyalty to the fundaments of the existing legal
and constitutional system, though not to the specific (unjust) laws they opposed.
Kings view that law-based defenses of civil disobedience might motor radical
change, even to the point of getting rid of the system, tended to vanish from the
liberal reworking of his legacy. By prescribing nonviolent direct action as

31
Hugo Bedau, Civil disobedience and personal responsibility for injustice, Civil Disobedience
in Focus, op.cit., pp. 4967, at p. 51.
32
Carl Cohen, Civil disobedience and the law, Rutgers Law Review, 21, (1966), 117, at p. 6.
33
Marshall Cohen, Civil disobedience in a constitutional democracy, The Massachusetts
Review, 10 (1969), 21126, at p. 214; Rawls, A Theory of Justice, p. 366.
34
Harrop Freeman, Response to Cohen, Rutgers Law Review, 21 (1966), 1727, at p. 17.
35
Among countless others, see Hugo Bedau, ed., Civil Disobedience: Theory and Practice (New
York: Pegasus, 1969); Carl Cohen, Civil Disobedience: Conscience, Tactics, and the Law (New York:
Columbia University Press, 1971), pp. 7691; Ronald Dworkin, Taking Rights Seriously (Cambridge,
MA: Harvard University Press, 1977); Jeffrie G. Murphy, ed., Civil Disobedience and Violence
(Belmont, CA: Wadsworth, 1971). The debate was a complicated one; much more remains to be said.
36
Rawls, A Theory of Justice, p. 363; also, p. 382. Also, Cohen, Civil disobedience and the law,
p. 3.
37
King would surely have challenged Rawls view of US democracy as nearly just.
38
Christian Bay, Civil disobedience: prerequisite for democracy in mass society, Jeffrie Murphy,
ed., Civil Disobedience and Violence, op.cit., pp. 7392, at p. 72.
39
Bedau, Introduction, p. 8.
40
Cohen, Civil disobedience and the law, p. 3. An early critic aptly identified the institutionally
complacent implications of this position (April Carter, Direct Action and Liberal Democracy [New
York: Harper, 1973], pp. 94117).

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WILLIAM E. SCHEUERMAN

buttressing standing constitutional law, King may have inadvertently opened

the door to politically tamed restatements. Yet his account always contained
more dramatically reformist and potentially transformative implications. His
religiously-based natural law ideas also tended to vanish from its subsequent
academic reconstruction: most American liberals did not think it sound to
build on Kings controversial (religious) ideas. Religious justifications, Rawls
characteristically noted, may coincide with and support ones claims, but civil
disobedience should be buttressed by less sectarian means.41
Why revisit this earlier juncture in the debate? I do so because contemporary
thinking about civil disobedience typically begins by targeting the now (allegedly)
hegemonic liberal model first formulated in the 1960s and 70s. For a broad
swath of recent scholarly opinion, that previous debate constitutes a troublesome
other which needs to be warded off in order to advance more sophisticated
accounts of civil disobedience. Contemporary critics regularly zero in on Rawls,
with a substantial body of earlier theorizing getting reduced to the Rawlsian
account of civil disobedience as formulated in A Theory of Justice.42 Defending a
radical-democratic vision of civil disobedience, for example, Robin Celikates
directs much of his theoretical acumen against Rawls.43 Similarly targeting
Rawls, Raffaele Laudani claims that his account has since become canonic.44
Milligan describes an uneasy [Rawlsian] consensus on civil disobedience,
found even among those [i.e., activists] who may never have heard of Rawls,
which allegedly has come to dominate thinking about it.45 His massive impact
notwithstanding, the preoccupation with Rawlsian ideas offers a convenient
rhetorical strategy: it allows critics to unleash a series of (sometimes persuasive)
rebuttals, as though Rawls theory of civil disobedience could uncritically be
taken as the paradigmatic example of legalistic models of civil disobedience. In
the eyes of the critics, the liberal (Rawlsian) model and legalism are apparently
tied at the hip: if we can successfully transcend Rawls views, we can also discard
the idea of civil disobedience as consonant with the rule of law. Critics pay the
usual homage to King and the civil rights movements, yet they downplay his
powerful legal intuitions.
Recent critics worry, for example, about the democratic deficits of Rawls
model of civil disobedience, which they interpret as unduly preoccupied with the

41

Rawls, A Theory of Justice, p. 365.

Ibid., pp. 36394.
43
Celikates, Civil disobedience as a practice of civic freedom, Global Citizenship: James Tully in
Dialogue, ed. James Tully (London: Bloomsbury, 2013), pp. 21128; also, Celikates, Ziviler
Ungehorsam und radikale Demokratie. Konstituierende vs. konstituierte Macht? (Civil
disobedience and radical disobedienceconstituent vs. constituted power?) in Das Politische und
die Politik, ed. Thomas Bedorf and Kurt Rttgers (Berlin: Suhrkamp, 2010), pp. 274300, at p. 287.
The hostility to Rawls now seems well-nigh universal on the left (see also Douzinas, Philosophy and
Resistance in the Crisis, pp. 914).
44
Laudani, Disobedience in Western Political Thought: A Genealogy, p. 112.
45
Milligan, Civil Disobedience: Protest, Justification, and the Law, p. 26.
42

RECENT THEORIES OF CIVIL DISOBEDIENCE

437

protection of individual rights in opposition to political majorities. Among

republicans and radical democrats, Rawls is taken to task for obscuring the fact
that nonviolent lawbreakers have more in mind than bringing errant political
majorities to their senses, alerting them to rights violations inconsonant with the
communitys shared conception of justice. Disobedients help counter severe
impairments to democratic politics, and not just grave rights violations by
majorities, by deepening deliberation and participation in novel ways. In Daniel
Markovits republican model, civil disobediences main function is to undermine
political complacency by focusing attention on issues that may never have been
meaningfully discussed in the first place, or where a necessary reconsideration of
existing policy has been stymied by institutional stasis or powerful privileged
interests. The principal dilemma sometimes is that a policy was never approved
by the democratic sovereign at all but instead arose in some other way, as through
a slow and unattended transformation of an initially very different policy.46
Nonviolent law-breaking aims to stir the lumbering democratic sovereign into
action, provoking it to tackle vital issues whose neglect threatens democratic
legitimacy.
In the analogous radical democratic model creatively outlined by Celikates,
civil disobedience dramatizes the fundamental contrast between constituent and
constituted powers, functioning as a dynamizing counterweight by means of
which the popular sovereign counters the rigidifying tendencies of state
institutions.47 Civil disobedience checks what the deliberative democrat Will
Smith dubs deliberative inertia, where political views about problems that
have demonstrable and urgent import have been unfairly marginalized.48
For the record, notable participants in the 1970s debate also sometimes
focused directly on civil disobediences democracy-enabling functions, while
directing congruent criticisms at Rawls account.49 So, to some extent, this
latest round of criticisms covers familiar territory. As Andrew Arato and Jean L.
Cohen observed nearly twenty-five years ago, fundamental challenges to the
communitys views of justice, or the thematization of basic questions about new
kinds of or new interpretations of rights, and about more and new kinds of
participation lack a secure place in the Rawlsian framework, which indeed is
susceptible to a range of democratic criticisms.50
Present-day critics also worry that the Rawlsian model robs civil disobedience
of its once subversive political character by ritualizing and neutralizing radical
46
Daniel Markovits, Democratic disobedience, Yale Law Journal, 114 (20045), 1897952, at
p. 1933.
47
Celikates, Civil disobedience as a practice of civic freedom, p. 223.
48
Smith, Civil Disobedience and Deliberative Democracy (London: Routledge, 2013), p. 70.
49
See, for example, Peter Singer, Democracy and Disobedience (Oxford: Oxford University Press,
1973), pp. 889. For the republican response to the liberal model, Hannah Arendt, Civil
disobedience, in Crises of the Republic (New York: Harcourt Brace Jovanovich, 1972), pp. 49102.
50
Arato and Cohen, Civil Society and Political Theory (Cambridge, MA: MIT Press, 1992), pp.
574604.

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WILLIAM E. SCHEUERMAN

protest. Rawls offers an unfairly restrictive model of civil disobedience.51 They

accurately note that liberals like Rawls defanged the more radical version of civil
disobedience outlined by King. Yet even when doing so they discount the fact
that King conceived radical politics as congruent with respect for the law.52 In
any event, the Rawlsian view of civil disobedience as a public, nonviolent,
conscientious yet political act contrary to the law usually done with the aim of
bringing about a change in the law or policies of the government is now a dead
dogma that confines rather than enables creative protest.53
Much can surely be said in favor the recent critical literature, which seems
partly inspired by real-life political trends. When masked animal rights activists
engage in covert animal rescue, anti-globalization protestors smash storefront
windows, anti-austerity activists block access to national parliaments, or
hacktivists pursue electronic civil disobedience, their endeavors do not
consistently fall under the rubric of civil disobedience as codified by Rawls and
other liberals in the 1960s and 70s.54 Though civil disobedience has always been
a messier affair than our theoretical ideal-types imply, the relationship between
political practice and conventional liberal understandings of civil disobedience is
undergoing severe stress.55
Its strengths notwithstanding, the potentially fruitful attempt to move beyond
the conventional liberal (and especially Rawlsian) model occasionally risks
reinventing the wheel, on some occasions replacing it with a new one less
functional than the old one.
Celikates argues that we should discard the standard liberal (Rawlsian) tests of
publicity and nonviolence for civil disobedience. Yet what ultimately frustrates
him is an overly narrow (and probably dispensable) interpretation of the
publicity standard as requiring of disobedients that they provide the authorities
fair notice in advance of their actions.56 Similarly, what vexes him about the
nonviolence test is that it risks conflating violence against persons with violence
against things. Like his liberal opponents, however, when push comes to shove
Celikates insists on nonviolence vis--vis persons.57 More problematically, he
abandons the idea of civil disobedience as operating within the limits of fidelity
to law, seeing in such requirements a latently complacent commitment to a

51
Laudani, Disobedience in Western Political Thought, p. 113; Quill, Civil Disobedience:
(Un)Common Sense in Mass Democracies, p. 68. Worries about the rigid character of the liberal
definition were anticipated by G.G. James, The orthodox theory of civil disobedience, Social
Theory and Practice, 2 (1973), 47598.
52
Celikates, Civil disobedience as a practice of civic freedom, pp. 2167.
53
Rawls, A Theory of Justice, p. 364.
54
For a discussion, Andrew Calabrese, Virtual nonviolence? Civil disobedience and political
violence in the information age, Info, 6 (2004), 32638. Like so many others, however, Calabrese
downplays civil disobediences legal contours.
55
Lewis Perry, Civil Disobedience: An American Tradition (New Haven, CT: Yale University Press,
2013).
56
Celikates, Civil disobedience as a practice of civic freedom, p. 213.
57
Celikates, Ziviler Ungehorsam und radikale Demokratie, pp. 294, 297.

RECENT THEORIES OF CIVIL DISOBEDIENCE

439

constitutional and legal status quo badly in need of fundamental overhaul.58 Just
like the 1970s liberals he eagerly criticizes, he interprets rule of law-based
justifications for civil disobedience as incongruent with demands for
transformational political and social change. Not surprisingly, he sacrifices the
idea of civil disobedience as evincing the very highest respect for the law.
Costas Douzinas defends a fundamental right to resistance viewed as
sublating, in the Hegelian sense, both liberal and democratic models of civil
disobedience, both taking up and transcending them because of their
inadequacy to the political challenges of the present age, which for him
constitutes an age of resistance.59 This right to resistance initially appears to
rely on the traditional natural law idea of a law higher than state law. Yet
Douzinas, like most modern liberals, doubts that natural law can be refurbished
today: it has all the cognitive and theoretical difficulties of the belief in Gods
law.60 Unlike them, he wants nothing to do with familiar legal defenses of civil
disobedience: The intolerance at the core of liberalism cannot be easily
hidden.61 Despite his enmity to liberal views of civil disobedience, Douzinas
proposed test for determining whether protestors have met a moral quality
control for legitimate resistance latently reproduces some of their original
features. Protestors should be ready to accept not only legal penalties but also
meet what are effectively familiar (and strikingly neo-Kantian) standards of
generality and publicity:
The first test is the willing acceptance of the risk and possibility (nowadays
probability) of punishment. The second brings the specific grievance or demand
under the control of a moral principle . . . [C]an the good or principle, the
disobedient obeys, be addressed to everyone and anyone? Can it be universalized?
. . . [This] is a tough, anxiety-producing moral test; if replaced, it is replaced by
empty moralizing. . . .62

For his part, Milligan jettisons Rawls definition for a more flexible
civility-centered alternative. Arguing that the Rawlsian model unjustly demands
of disobedients that they openly communicate their grievances, he believes that it
reduces nonviolent law-breaking to public speech.63 Its dialogical focus unfairly
delegitimizes forms of law-breaking where communication and public dialogue
are marginal, e.g., protests in which activists disrupt or obstruct practices they
consider immoral. In his new definition, however, disobedients are still expected
to evince:
58
Celikates, Civil disobedience as a practice of civic freedom, p. 216; Ziviler Ungehorsam und
radikale Demokratie, pp. 2839. Celikates seems partly inspired by Howard Zinn (Disobedience
and Democracy: Nine Fallacies on Law and Order [Cambridge, MA: South End, 1968/2002]), who
preserved Kings radical political legacy while downplaying Kings legalism.
59
Douzinas, Philosophy and Resistance in the Crisis, p. 96.
60
Ibid., p. 90.
61
Ibid., p. 93.
62
Ibid, p. 99.
63
Milligan, Civil Disobedience: Protest, Justification, and the Law, p. 18.

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WILLIAM E. SCHEUERMAN

(i) respect for others . . . [or] the recognition that other humans are fellow humans,
i.e., members of the same moral community; (ii) the rejection of hate speech; (iii) the
avoidance of acts which are driven by hatred; (iv) the largely successful commitment
to try to avoid violence and threats of violence . . .; (v) the avoidance of cruelty;
and finally (vi) the recognition of a duty of care or an avoidance of reckless
endangerment of others.64

Even if we ignore that such conditions are unlikely to be met in some self-evident
(i.e., non-communicative) manner, but instead will typically require a
well-formulated public defense, the new definition is probably no less restrictive
than the Rawlsian original. On one plausible exegesis, for example, stipulations
that activists are obliged to show a duty of care and respect for others as
members of the same moral community might easily garner demandingand
thus politically quite restrictivetraits.
Kimberley Brownlee describes civil disobedience as a conscientious
communicative breach of law motivated by steadfast, sincere, and serious, though
possibly mistaken, moral commitment, in the process criticizing the Rawlsian tests
of publicity and nonviolence.65 As in other recent redefinitions of civil disobedience,
the notion that legal breaches must evince the very highest respect for the law fades
into the background. Like Celikates, she believes that nonviolence is a concept
destined to generate confusion. In everyday language, violence can refer to a range
of acts and events that risk but do not necessarily cause damage or injury, such as
catapulting stuffed animals at the police.66 As for the publicity test, civil
disobedientsfor example, animal rights activists who break into laboratories to
liberate animalsmay initially need their actions to take a covert form.
Yet here as well, it remains unclear whether the author has wholly transcended
the Rawlsian definition. Sacrificing the conventional nonviolence standard,
Brownlee underscores the presumptively more salient issue of harm.67 It seems
worth noting that the concept of harm has suffered, since John Stuart Mill made
it a mainstay of liberalism, from as many ambiguities as the distinct but
oftentimes overlapping ideas about violence. As for Brownlees abandonment of
the publicity test, she herself notes that initially covert acts of disobedience may
nonetheless [ultimately] be open and communicative when followed by an
acknowledgement of the act and reasons for taking it.68 In fact, it is hard to
imagine how conscientious communicative breaches of the law, undertaken
with an expectation of producing changes in public policy, might operate without
openness and/or publicity, even if it is unrealistic and perhaps undesirable for
every facet of civil disobedience to do so.

64

Ibid., p. 36.
Kimberley Brownlee, Conscience and Conviction: The Case for Civil Disobedience (Oxford:
Oxford University Press, 2012), p. 23.
66
Ibid., p. 21.
67
Ibid., p. 22.
68
Ibid., p. 23.
65

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441

My aim, it should be clear, is not to salvage the orthodox liberal (or Rawlsian)
view, which indeed suffers from serious problems. Instead, my point is simply
that transcending its achievements proves more difficult than contemporary
writers concede.69 By reducing a wide-ranging debate about civil disobedience to
its Rawlsian version, and then tossing the standard liberal approach out the
window, contemporary theorists risk throwing the baby out with the bathwater.
Whatever the limitations of his efforts to do so, Rawls tried to follow King in
viewing civil disobedience as potentially expressing our very highest respect for
the law. Tellingly, those now discounting his theory tend also to neglect the vital
idea that civil disobedience and respect for the rule of law go hand in hand.
III. THE ANTI-LEGAL TURN
Ready evidence for the anti-legal turn in the contemporary debate lies in its
updated definitions. Like those just discussed, they have been systematically
scrubbed of the once ubiquitous legalistic terminology.70 Along with the
previously prevalent thesis that civil disobedience is best grounded in appeals to
law, the related intuition that disobedients should be expected to accept
punishment for their acts has also come under attack.
The story, not surprisingly, is a complicated one. The ongoing debate about
punishment and civil disobedience, in particular, has identified some tough
questions. Yet one starting point for the ongoing shift appears straightforward
enough: blame for the earlier models perceived limitations too often gets placed
at its legal doorsteps. In part, the anti-legal current stems from a deeply rooted
legal skepticism, which crudely depicts legal appeals as an ideological veneer for
state violence, or an invitation for pedantic legalistic hairsplitting.71 Another
pillar is an occasionally tendentious anti-statism, which views the state and law
one-sidedly as permanent threats to democracy and self-government rather than
potentially enabling conditions.72 This trend sometimes appears married to

69
Andrew Sabl suggests that we reformulate the Rawlsian model of civil disobedience while
discarding its problematic philosophical foundations; Looking forward to justice: Rawlsian civil
disobedience and its non-Rawlsian concerns, Journal of Political Philosophy, 9 (2001), 30730, at
pp. 3112.
70
For example, Smiths reformulation of Rawls definition (i.e., disobedience to law within the
limits of fidelity to the law) as disobedience to law within the limits of deliberative intent (Civil
Disobedience and Deliberative Democracy, p. 32). Even those sympathetic to Rawls model
de-emphasize its legalistic currents. Sabl interprets the idea of fidelity to the law as reflecting the
disobedients effort to bring about just cooperation in the future, rather than veneration for the law,
which allegedly misses the forward-looking character of Rawls views (Looking forward to justice:
Rawlsian civil disobedience and its non-Rawlsian concerns, pp. 31720). Yet a principled
commitment to the rule of law cannot be reduced to mere shorthand for the terms under which
people agree to cooperate (p. 319).
71
For the former, Jarret S. Lovell, Crimes of Dissent: Civil Disobedience, Criminal Justice, and the
Politics of Conscience (New York: New York University Press, 2009), pp. 478. For the latter, Sitze,
Foreward, in Laudani, Disobedience in Western Political Thought, op.cit., pp. viixxvi, at p. xix.
72
See, for example, Celikates, Ziviler Ungehorsam und radikale Demokratie, pp. 296300.

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WILLIAM E. SCHEUERMAN

philosophical (and also political) anarchism, elements of which motivate some

activists on the ground (e.g., elements of the Occupy movement). Yet another
basis, as we have already noted, is a tendency to misread legalistic ideas about
civil disobedience (for example, Kings natural law views) as fundamentally
moral or ethical claims.
In the final instance, however, the most common source is probably the
misleading view that the very highest respect for the law necessarily entails
loyalty to the legal and constitutional status quo, or the legitimacy of the judicial
order in its existing form.73 Even as contemporary theorists aspire to transcend
liberal models of civil disobedience, they reproduce its politically cautious ideas
about the law. They may employ King to criticize the liberal paradigm, but they
neglect his own provocative insights about the nexus between law and radical
change.74 In a political universe where respect for the rule of law is widely shared,
King grasped, a law-based defense of civil disobedience possessed impressive
normative and political credentials, even to the point of providing an answer to
the long debated question of gradualism versus immediacy.75
King was right to highlight civil disobediences intimate links to the rule of
law. Unlike moral conscience, law consists of shared rules and principles, about
which people can always disagree, but which are publicly announced and
promulgated. If a legal order instantiates the idea of legality or the rule of law, it
is obliged to realize legal clarity and cogency. As a relatively accessible shared
code, law potentially represents a collective and common source of normativity
conscientious moral appeals can neither match nor supplant. In political
communities based on the rule of law, not surprisingly, political discourse tends
irrepressibly to take legalistic forms. Commentators since Tocqueville have
noted this trend, and recent communitarians may lament it, but it is vital to
recognize that it implicitly highlights laws distinctive virtues. Those virtues are
essential if illegal protest is to rest on more than narrow appeals. By speaking the
language of law, disobedients transform their controversial and sometimes
sectarian claims into broader, and implicitly general, normative appeals.
In principle, though of course not always in empirical reality, law also rests on
the general agreement of the political orders members, each of whom has
contributed at least indirectly to raising the norms in question above the sphere
of morality. Law belongs to all of us: it rests on complex processes of public
contestation where in principle everyone participates. Of course, specific laws can
be controversial or unjust; the process which produced them may be flawed. Yet
the very fact of legal enactment or promulgation means that the political
community has managed to agree on a binding public rule even in the face of

73

Milligan, Civil Disobedience: Protest, Justification, and the Law, p. 99.

Celikates, Civil disobedience as a practice of civic freedom, pp. 2167.
75
King, Stride Toward Freedom, excerpted in A Testament of Hope, op.cit., p. 488.
74

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443

potentially extensive disagreement.76 Binding law represents a triumph of

peaceful deliberation and respectful cooperation in the context of modern
pluralism.77 In contrast to conscientious moral appeals, law implicitly takes the
possibility of far-reaching disagreement seriously, while recognizing that we still
need shared binding rules in order to coexist. When the legal order embodies
virtues associated with the rule of law (e.g., publicity, clarity, generality,
prospectiveness), it invites a potentially inclusive public conversation concerning
those matters about which, if only for the time being, we may need to promulgate
binding norms.
Because the rule of law requires state officials to act in a relatively consistent,
predictable, and transparent fashion, it also helps provide legal security and basic
liberty. By making a shared public conversation about state action possible, it
buttresses and potentially deepens self-government. Where rule of law violations
are rampant, it will be difficult for citizens to know what their government is
doing, let alone shape or reform its policies.78 Of course, we should avoid
conflating the rule of law with other attractive political ideals (e.g., democracy or
racial justice), as legal positivists emphatically insist.79 Yet we also need to
recognize that the rule of law often lends significant support to such ideals.
Admittedly, in racially and socially divided communities, or in authoritarian
states, the communitys shared commitment to a public legal order oftentimes
seems minimal or even fictional. Yet to the extent that even there the rule of law
is taken seriously, some modicum of legal security is probably guaranteed. By
making sure that state action is public, the rule of law opens the door, however
tentatively, to political contestation and debate. Though history includes
numerous examples of legalistic authoritarianism, the rule of law still works to
counter dictatorship and political oppression.80
Here as well, Kings thinking was prescient. Lacking any illusions about
the racist and politically exclusionary contours of his own country, he believed
that even there appeals to the law, when properly tied to militant protests
exemplifying respect for the law, could play a decisive role in spawning radical
reform. If citizens violate the law in the name of morality, he correctly observed,
they simultaneously had to show that their acts were conducive towards
reforming a broader system of legality from which we all potentially might
benefit, and without which our common existence would be impossible. Of
course, King and his followers were chiefly targeting the content or substance of
76

Jeremy Waldron, The Dignity of Legislation (Cambridge: Cambridge University Press, 1999).
Keith E. Whittington, In defense of legislatures, Political Theory, 28 (2000), 690702, p. 693.
78
In extreme cases, what King described as uncivil disobedience may, at least in principle,
represent a legitimate political strategy. When the political order does not even pay lip service to the
rule of law or legality, regularly making a mockery of even its most basic requirements, a law-based
model of (nonviolent) civil disobedience may face insurmountable hurdles.
79
Joseph Raz, The Authority of Law (Oxford: Clarendon Press, 1979), pp. 21029.
80
Fuller, The Morality of Law; also, Franz L. Neumann, The Democratic and Authoritarian State
(Glencoe, IL: Free Press, 1957), pp. 2268, 160200.
77

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WILLIAM E. SCHEUERMAN

specific unjust laws, and not primarily the US legal systems failure to achieve
abstract legal virtues. More recent civil disobedients have similarly attacked
specific political and legal evils and not the failures of legality per se. Nonetheless,
abrogations of basic rule of law standards regularly go hand-in-hand with
substantive injustice. The quest to bring about a greater quotient of formal legal
virtues, as King intuitively appreciated, is often linked to the struggle for justice.
In a context characterized by the disenchantment of overarching moral
worldviews, as well as a pluralization of religious and moral perspectives, every
legal order should still be expected to realize the rule of law (i.e., substantial
quotients of clarity, publicity, generality, and prospectiveness). Though the idea
of the rule of law remains contested, with some accounts admittedly seeming
very thin and unsatisfactory, it still plays an indispensable role in preserving
core elements of traditional natural law.81 Douzinas is probably right to see
natural law under contemporary conditions as having all the cognitive and
theoretical difficulties of the belief in Gods law.82 Even if traditional ideas of
natural law can no longer plausibly claim universal validity, they leave us with a
principled commitment to the generality of law, the equality of men [sic], the
prohibition of individual legislative decisions, the impossibility of retroactive
legislation, especially in penal law, and an independent jury.83 The rule of law,
on this view, possesses a minimal yet decisive normative content well-suited to the
conditions of disenchantment and modern pluralism.84 When political systems
sacrifice legal virtues to cover up dubious and even repressive state action,
appeals to the rule of law offer an effective launching pad for critique. By
belittling civil disobediences legal foundations, contemporary theorists not only
distort civil disobediences rich normative foundations but also rob protestors of
a vital line of defense.
Even as she offers a brilliant account of the role conscientious motivation
plays in civil disobedience, Brownlee succumbs to the general tendency to devalue
civil disobediences identifiably legal features. One source of the shift here is
the authors embrace of a strongly positivist account of the rule of law,
which systematically disadvantages the law vis--vis morally conscientious
law-breaking. Brownlee claims that the procedural norms of generality and

81
Neumann, Democratic and Authoritarian State, p. 158. Like King, Neuman believed that a
commitment to the rule of law could be welded to a radically reformist political agenda.
82
Douzinas, Philosophy and Resistance in the Crisis, p. 90.
83
Neumann, Democratic and Authoritarian State, p. 90. Complicated jurisprudential issues are at
stake here. A defensible view of the rule of law should pursue some sort of middle way between legal
positivism and natural law approaches: we should neither reduce the rule of law to the rule of good
law, nor rob it of any moral or normative substance whatsoever. Nor do we want a conception that
is either overly court-centered or unduly legislature-centered. The (always aspirational and thus
incomplete) realization of rule of law standards (e.g., clarity, publicity, generality, prospectiveness)
requires cooperation between and among the legislatures, courts, and the executive.
84
The systematic violation of the rule of law makes the exercise of political power illegitimate,
and thus gives everyone potentially a right to disobey (Neumann, Democratic and Authoritarian
State, p. 158).

RECENT THEORIES OF CIVIL DISOBEDIENCE

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predictability, crucial to the codification of formalized legal structures and

often grouped together under the heading rule of law, are compatible with a
substantively unjust system, and thus apparently lack a robust independent
normative status. Such rule of law virtues should be considered subordinate to
the substantive, context-sensitive, and non-codifiable moral responsibilities of
underlying moral roles.85 Since the rule of law can be disconnected altogether
from morality, and indeed may be congruent with injustice or evil, no principled
grounds for favoring fidelity to the law over conscientious moral action can be
identified.
The problem here is a controversial assessment of the rule of law that
risks robbing it of any normative substance, a position which even some legal
positivists now deem excessive.86 The authors skepticism about laws own
normative resources surfaces elsewhere as well. In opposition to the view I
recalled above, which emphasizes laws normative and political advantages
vis--vis conscience, for Brownlee
law is only the most blunt manifestation of the social rules and moral norms that
govern a reasonably good society, and law is not the final arbiter on the content and
force of those rules and norms [authors emphasis].87

Brownlee tends to depict the law as a burdensome and even onerous restriction
on morally conscientious action. She worries about exaggerating its epistemic
merits, proffering a hard-headed realistic account of legislative politics as a
way of undercutting law-makings merits and the many familiar reasons for a
general deference to the law.88 She offers an unflattering assessment of real-life
democratic legislation, in order to contrast it unfavorably to a demandingand
highly idealizedvision of morally conscientious protest. To be sure, she
interprets civil disobedience as potentially enriching the deliberative democratic
process.89 However, because she views the crucial law-making element of that
process as flawed, a certain tendency to discount the law slips into her account.
The myriad reasons why respect for the law typically makes sense when
government action is public, general, prospective, or rests on an imperfect yet
still inclusive, free-wheeling deliberative exchange, tend to get pushed to the
wayside. Precisely because earlier liberal theorists took our general obligation to
the law so seriously, they thought it imperative that we explain how nonviolent
law-breaking, under certain demanding exceptional conditions, could be

85
Brownlee, Conscience and Conviction, p. 96. She relies here on Razs legal positivism (Authority
of Law, pp. 21029.).
86
In contrast, Jeremy Waldrons legal positivism sees the rule of law as associated with
prohibitions on torture, brutality, and degradation (Waldron, The Rule of Law and the Measure of
Property [Cambridge: Cambridge University Press, 2012], p. 47).
87
Brownlee, Conscience and Conviction, p. 23.
88
Ibid., p. 158, pp. 1756.
89
Ibid., p. 116.

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WILLIAM E. SCHEUERMAN

interpreted as consistent with it.90 This tricky but decisive questionhow do we

square law-breaking with general obligations to the law?tends to disappear
from Brownlees account.
In a complicated exposition whose logic flows out of her philosophically
impressive version of the anti-legal turn, Brownlee concludes that civil
disobedients possess a defeasible moral right not to be punished.91 The
conventional demand that nonviolent lawbreakers be prepared to accept the legal
consequences of their actions is by no means absolute, and society should look
to non-punitive, restorative ways to engage civil disobedients.92
Admittedly, there may be better ways to undergird civil disobediences legal
credentials than requiring protestors to face criminal sanctions. Willingness to
accept such sanctions only makes sense if judicial proceedings embody core facets
of the rule of law; otherwise, it is unclear that a disobedient in fact demonstrates
the very highest respect for the law. This simple but decisive point was already
made by Peter Singer in 1973, when he noted that if protestors faced a situation
where there was no right of public trial, and no possibility of using punishment
for publicity purposes, or if punishments were made draconian in order to
prevent dissenters from publicizing their views, then evasion might be
justifiable.93 When criminal proceedings potentially violate basic legal virtues
(generality, clarity, and publicity), or where the independence of courts is badly
compromised, sound reasons can be adduced for avoiding criminal punishment.
A disobedient who accepts the legitimacy of criminal proceedings which are
secret, irregular, or arbitrary does not, in fact, necessarily help uphold laws
highest aspirations. On the contrary, by participating in them she risks
inadvertently becoming complicit in the regimes assault on the rule of law.
As recent writers have also noted, there may be good reasons why disobedients
should face only those legal penalties which successfully mitigate the moral
condemnation and opprobrium typically associated with criminal punishment.
When conscientious and politically responsible, their actions are in fact
qualitatively different from garden varieties of criminality, and the law is then
justified in relying on sanctions that better acknowledge their distinctive traits.
According to David Lefkowitz, some legal penalties (for example, fines), but
not an array of conventional punishments which inappropriately stigmatize
conscientious lawbreakers, are then probably most suitable.94

90
Brownlee is hardly alone today in her rejection of a robust general duty to obey the law (see
M. B. E. White, The duty to obey the law, A Companion to the Philosophy of Law, ed. Dennis
Patterson [Oxford: Blackwells, 1996], pp. 46574).
91
Brownlee, Conscience and Conviction, p. 240. Also, see Brownlee, Penalizing public
disobedience, Ethics, 118, (2008), 7116.
92
Brownlee, Conscience and Conviction, p. 251.
93
Singer, Democracy and Disobedience, pp. 834.
94
Lefkowitz, On a moral right to civil disobedience, Ethics, 117 (2007), 20233; also, Smith,
Civil Disobedience and Deliberative Democracy, pp. 948.

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If legal systems can integrate this insight without unduly undercutting basic
rule of law virtues, it deserves to be embraced. In principle, a more fine-tuned
approach to the legal treatment of civil disobedience need not conflict with a
prospective disobedients attempt to prove her fidelity to the law. Yet Brownlee
probably goes too far. By systematically favoring a moral right to civil
disobedience over the law, she ultimately cannot explain why conscientious
communicative breaches of law rest potentially not merely on steadfast,
sincere, and serious, though possibly mistaken, moral commitments but also
principled fidelity to the rule of law.95
IV. POLITICAL RAMIFICATIONS
I have argued that an earlier generation of Anglophone liberal thinkers, their
analytic limitations notwithstanding, was right to follow the example of Martin
Luther King in conceiving of civil disobedience as expressing fidelity to the law,
and that contemporary theorists risk abandoning this intuition at a high cost. Of
course, my claim raises questions I cannot fully answer here. In light of the
necessity of overhauling the orthodox liberal theory of civil disobedience, how
might its valuable legalistic intuitions be successfully salvaged and updated?
How, in short, can we maintain the idea that civil disobedience buttresses the rule
of law without succumbing to the errors of the standard liberal (e.g., Rawlsian)
positions to which it was welded? How to separate the wheat from the chaff?
Although my self-consciously modest efforts have hopefully provided preliminary
answers to these questions, more remains to be said.
For now, I conclude by responding to one likely rejoinder to my defense of an
increasingly unfashionable legalism. On one critical view, that endeavor is simply
out of sync with contemporary political realities; it cannot support the cause of
dissidents who seek to bring about meaningful political change. According to
advocates of the anti-legal turn, a key reason for abandoning legalistic views of
civil disobedience is precisely their alleged misfit with contemporary political and
social movements. Who today really believes that far-reaching political change
can be advanced via stodgy appeals to the rule of law?
Some contemporary examples suggest otherwise.
Edward Snowdens whistleblowing, which in key respects meets the standard
liberal conditions for legitimate civil disobedience, relies heavily on appeals to
standing law and an implicit notion of the rule of law.96 In a public statement
delivered at the Moscow Airport in July 2013, he lambasted US surveillance for
being out of sync with the US Constitution (and especially the Fourth and Fifth
Amendments, requiring basis due process and prohibiting unreasonable searches
95

Brownlee, Conscience and Conviction, pp. 234.

William E. Scheuerman, Whistleblowing as civil disobedience: the case of Edward Snowden,
Philosophy and Social Criticism, 40 (2014), 60928.
96

448

WILLIAM E. SCHEUERMAN

and seizures), international human rights law (e.g., the Universal Declaration of
Human Rights), and the Nuremberg principle that individuals have international
duties which transcend the national obligations of obedience. Therefore,
individual citizens have the duty to violate domestic laws to prevent crimes
against peace and humanity from occurring.97
Snowden has also accused the secret Foreign Intelligence Surveillance Court of
failing to exercise minimal judicial oversight, viewing the secret court as the main
institutional vehicle for an ominous federation of secret law, unequal pardon,
and irresistible executive power.98 In his exchanges with the journalist Glenn
Greenwald, Snowden relied extensively on arguments in which the legal virtues
of publicity, generality, and consistency play paramount roles.99 Reminiscent
of earlier civil disobedients, he sees his illegal leaks as necessary to refurbish
existing constitutional (and international) law, generate overdue legal reform,
and also help better achieve legal virtues associated with the rule of law. From his
perspective, it is the US government which has systematically abandoned the rule
of law, while his actions merely bring its illegalities to public light.
Observers can disagree about how precisely Snowden has ignited a massive
worldwide public debate. Yet a strong argument can be made that part of his
astounding appeal stems from the hairsplitting legalism pivotal to his case.100
His example also suggests that law-based models of civil disobedience may be
suited to a globalized political universe. Snowdens appeals to international law
and the principle of legality transcend national borders; they seem to have hit a
raw nerve with people around the world. His cause has become a rallying cry for
emerging transnational publics outraged by intrusive surveillances policies not
just in the US or UK but elsewhere as well.
Admittedly, Snowdens legalism may be somewhat idiosyncratic. What then of
the possible relevance of my argument for other settings?
Anti-austerity protests in Greece, Spain, and elsewhere provide a second
example. Jonathan White uses the apt phrase emergency Europe to describe
how EU elite-level political rhetoric now regularly asserts the existence of a
panoply of urgent exceptional and even existential threats in order to legitimize
measures contravening established procedures and norms as necessary,
unavoidable, and thereby intrinsically rational.101 The immediate consequence is

97
Statement by Edward Snowden to human rights groups at Moscows Sheremetyevo Airport,
12 July 2013, available at <http://wikileaks.org/Statement-from . . .> (accessed 20 July 2014).
98
Quoted in Glenn Greenwald, Ewan MacAskill, and Lara Poitras, Edward Snowden: the
whistleblower behind the NSA surveillance revelations, Guardian, 9 June 2013, available at
<www.theguardian.com> (accessed 20 July 2014).
99
Glenn Greenwald, No Place to Hide: Edward Snowden, the NSA, and the US Surveillance State
(New York: Metropolitan Books, 2014).
100
Rule of law arguments are crucial to the related case of Bradley (now: Chelsea) Manning (Chase
Madar, The Passion of Bradley Manning: The Story Behind the Wikileaks Whistleblower [London:
Verso, 2013], pp. 1235).
101
Jonathan White, Emergency Europe, Political Studies, forthcoming.

RECENT THEORIES OF CIVIL DISOBEDIENCE

449

a growing dependence on legally dubious top-down executive measures along

with a disturbing tendency to demote normal deliberative and law-making
channels. Within Greece, for example, the EU bailout and anti-austerity measures
were arguably passed in violation of the rule of law:
The loan and memorandum agreements imposed taxation increases and savage
salary and pension cuts before they reached Parliament, which was reduced to the
role of rubberstamping a fait accompli. The law implementing the agreement
was adopted with a simple majority despite constitutional provisions requiring a
three-fifths majority . . . The complex memorandum imposing the austerity
measures was passed under guillotine procedures with minimal debate. The law
gives carte blanche to ministers to issue executive decrees, which can cover all
aspects of economic and social policy, repeal pre-existing laws and sign further
binding agreements giving away parts of national sovereignty without
Parliamentary approval.102

Despite his own skepticism about liberal legalism, Douzinas rightly worries
that the Greeks and others are facing a situation where all major aspects of
legality have been weakened. Rule is replaced by regulation, normativity by
normalization, legislation by executive action, principle by discretion . . .103 He
implicitly acknowledges that violations of basic rule of law standards are
oftentimes intermingled with substantively unjust policies.
Understandably, much of the protest in Europe has targeted concrete
injustices. Yet, given the austerity measures by no means accidental sacrifice of
basic legal virtues, it probably makes sense for protestors to pursue nonviolent
disobedience so as to highlight their very highest respect for the law. If the
austerity measures are to be tempered or even reversed, protesters need to show
potential sympathizers that they not only represent bad substantive policy but
also a direct assault on longstanding rule of law ideals to which the EU, as well
as its member states, at least claim loyalty. Here, as in many other concrete
scenarios, attacks on the rule of law and bad public policy go hand in hand. A
viable response will need to counter both the concrete harms at hand
and the broader and potentially more consequential attack on legality. The
familiarbut now increasingly neglectedidea of civil disobedience as
congruent with the rule of law still provides impressive normative and political
firepower.

102

Douzinas, Philosophy and Resistance in the Crisis, p. 46.

Ibid., p. 44.

103

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