Democratic disobedience.

• Author: Markovits, Daniel
• Position: Civil disobedience and the limits of legitimate political authority

CONTENTS INTRODUCTION I. DEMOCRATIC POLITICAL AUTHORITY A. The Liberal View (or Democracy as Reason) B. The Republican View (or Democracy as Will) II. DEMOCRATIC DEFICITS III. JUDICIAL REVIEW IV. DEMOCRATIC DISOBEDIENCE CONCLUSION INTRODUCTION

Political protesters sometimes break the law. Moreover, disobedience may sometimes be a part of political protest, as protesters elaborate their claims that laws or policies are wicked or foolish or lack authority. (1) In such cases, disobedience is not guided by greed or self-dealing but by principle, and it is therefore not criminal in any ordinary, sense but becomes, instead, political disobedience. (2)

Even when the laws or policies at which a protest takes aim are indeed bad or wrong, political disobedience may be imprudent or even counterproductive: Disobedience must always contend with the possibility that it will be met with overwhelming repression or trigger a popular backlash against the very ends it seeks to promote. But when the underlying political order that has produced the objectionable laws or policies is legitimate, disobedience triggers concerns of political principle as well. It seems, in such cases, that political disobedience risks becoming itself a form of oppression, in which protesters attempt improperly to impose their personal political preferences upon others. Nor is this concern answered (or even addressed) by emphasizing the distinction between political disobedience and ordinary crime: Oppression need not involve greed or self-dealing, and even the benevolent may overstep their authority. The worry about oppression, moreover, is particularly salient when the political system in which disobedience occurs, and that underlies the laws and policies that disobedient protest seeks to unseat, is democratic. In such cases, the oppression that political disobedience threatens to impose takes on a familiar countermajoritarian form. Political disobedience in a democracy carries a taint of autocracy.

In spite of these concerns, many believe that political disobedience can sometimes be justified and, indeed, that it plays an important role in politics more broadly. (3) In particular, political disobedience has been connected to libertarian and egalitarian ideas about the limits of political authority, in the service of a theory of liberal disobedience--liberal because the ideas about limited government to which the theory refers lie at the heart of the liberal tradition in political theory characterized by Mill and Rawls. (4) Importantly, political disobedience, on this liberal account, may properly be directed against even democratic laws and policies, because liberalism imposes limits on the authority even of democratic governments. Political disobedience, on this liberal account, expressly addresses "the nature and limits of majority rule," (5) and those who practice liberal disobedience "claim[] a qualification or exception of some kind" to majority rule. (6) These limits and qualifications on majority rule have to do with fundamental rights--to certain basic liberties and to equal treatment--that liberalism familiarly regards as trumps over democratic majorities. (7) Governments, including democratic governments, that violate fundamental rights overstep their authority, and when the violations are grave enough, those whose rights are violated or others who make common cause with them may justly resist, including by disobeying the law.

Moreover, the historical cases of disobedience around which the traditional liberal view arose--the particular practices that this view sought to explain and justify--actually did assert fundamental rights against overreaching majorities. The most prominent of these historical examples, the disobedience of the American civil rights movement, sought to secure equal treatment and protect basic liberties of black Americans against white majorities that aimed to deny those rights. Other cases from the same era, such as the disobedience by Jehovah's Witnesses of democratic laws requiring school students to salute the American flag, had a similar basic structure. (8)

Of course, liberal disobedience can have a democratic component also, insofar as protesters hope, by their example, to persuade others that a law does in fact violate fundamental rights. Especially when democratic values are entrenched in a political order, even rights that limit democratic authority may be most effectively secured, in practice, by persuading the majority that these limits are just. Successful liberal disobedience will therefore often have wide persuasive appeal, as is once again illustrated by the civil rights protests in the American South, which undoubtedly succeeded partly by persuading the white majority of the evil of American apartheid. (9) But even in such cases, in which liberal disobedience seeks self-consciously to win democratic approval, this is an instrumental decision only. The justification of liberal disobedience does not depend on democratic approval, and protesters may continue to disobey, perhaps now with the aim of coercing a change of law or policy, if the majority remains unpersuaded. Certainly the civil rights movement's challenge to Jim Crow did not depend on the opinions of white Southerners.

The connection to rights not only underwrites political disobedience on the liberal view but naturally takes on a regulative role as well--it determines the metes and bounds of justified liberal disobedience. This regulative role appears on the face of the most prominent accounts of liberal disobedience. It appears affirmatively in Rawls's observation that "there is a presumption in favor of restricting civil disobedience to serious infringements of ... the principle of equal liberty, and to blatant violations of ... the principle of fair equality of opportunity." (10) And it appears negatively in Dworkin's concern that when civil disobedience becomes unmoored from basic rights and takes aim at laws or policies that are thought merely imprudent or foolish, its justification becomes fragile indeed. (11)

Not all political disobedience may plausibly be cast, therefore, as following the liberal model and protecting fundamental rights to liberty and equality. And actual cases of political disobedience that fall outside of the liberal model do exist. Indeed, the civil rights movement--and the rights revolution more generally--represented the heyday of liberal disobedience. In the subsequent years, the most prominent cases of political disobedience have increasingly not emphasized liberal rights to equal treatment or to basic liberties. This trend away from liberal disobedience figured in the protests against the Vietnam War. It also appeared in protests against nuclear weapons, especially in Europe--including the cases in the 1980s that Dworkin had expressly in mind when he worried about the justification of civil disobedience that is based on prudence rather than rights. Finally (although here I am only speculating), the trend is perhaps reaching maturity in the most prominent cases of political disobedience in the United States and Europe today, which arise in connection with protests against globalization.

These protests are increasingly difficult to cast as liberal efforts to protect fundamental rights against overreaching governments. Although the Vietnam War may have been unwise and even wicked, the decision to wage a war to rid a foreign nation of a hostile and repressive regime plausibly falls within the scope of a democratic government's political authority. Although the aggressive deployment of nuclear missiles, including American missiles, in Europe may have been reckless, the decision to deploy them in order to deter attack by hostile neighbors probably falls within the scope of a democratic government's political authority. And although policies that support multinational corporate enterprises and remove national barriers to trade may be unappealing, they certainly fall within the scope of a democratic government's political authority. Political disobedience in protest of these policies therefore becomes increasingly difficult to justify by reference to liberal ideas about the limits of democracy, and efforts to explain or defend such disobedience must proceed outside the liberal model.

I speculate later that such cases--which cannot be fit into the liberal model--represent the future of political disobedience. But however that may be, the examples that I have given emphasize that disobedient protest that pursues ends besides the vindication of liberal rights is becoming the dominant form of political disobedience, at least in developed, democratic states. The political culture of these states therefore presents a challenge today much like the one that confronted the lawyers and philosophers who constructed the liberal theory of political disobedience four decades ago. An important form of political engagement, which is experienced as legitimate by those who participate in it, cannot be understood through the prevailing theoretical accounts of legal and political authority.

To meet the challenge, a new theory of political disobedience must once again be developed. This theory will not justify all the disobedient practices that confront it, just as the liberal theory did not justify every case of disobedience that it faced--the opinions and even self-conceptions of the political actors the theory addresses may, after all, be mistaken. (12) But if the theory is to succeed at interpreting the lived experience of contemporary political disobedience, then it must enable a sympathetic approach to the forms of political disobedience that confront politics today, sympathetic in the sense of translating the dissatisfactions that generate this disobedience into a theoretically articulate language that connects the impulse toward disobedience to pressure points or possibly even ruptures in the underlying justification...