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Resolved: Civil disobedience in a democracy is morally justiﬁed.

September-October Novice LD Topic

Published by Victory Briefs, PO Box 803338 #40503, Chicago, IL 60680-3338. Edited by Jake Nebel and Chris Theis. Written by Chetan Hertzig, Jerry Chen, and Nick Smith. Evidence cut by authors. For customer support, please email [email protected] or call 330.333.2283.

Transaction: 4731 - September 9, 2014 - This product is licensed to: Wilson Wyatt Debate League - [email protected] by Victory Briefs. Any distribution or modification of this file not explicitly allowed by the terms of purchase (including removing or obscuring this text) is a violation of copyright. Please report illicit distribution of this file to [email protected] Contents

1 Introduction 4

2 Topic Analysis by Chetan Hertzig 5 2.1 Background ...... 5 2.2 What the Resolution Means ...... 7 2.3 Armative Arguments ...... 10 2.4 Negative Arguments ...... 14 2.5 Full Text of Evidence Above ...... 17 2.6 Full Deﬁnitions ...... 17 2.7 Armative Evidence ...... 20 2.8 Negative Evidence ...... 25

3 Topic Analysis by Jerry Chen 29 3.1 Background Information ...... 29 3.2 Resolutional Analysis and Deﬁnitions ...... 30 3.3 Framework Issues ...... 31 3.4 Armative Arguments ...... 33 3.5 Negative Arguments ...... 35 3.6 Full Text of Evidence (in order) ...... 37 3.7 Additional Evidence ...... 41

4 Topic Analysis by Nick Smith 47 4.1 Introduction ...... 47 4.2 Interpretations ...... 48 4.3 Armative Positions ...... 50 4.4 Negative Positions ...... 53

5 Armative Evidence 55 5.1 AT Democracy Makes CD Unnecessary ...... 55 5.2 AT Must Exhaust Alternatives ...... 55 5.3 AT Social Contract Objection ...... 56 5.4 AT Slippery Slope ...... 57 5.5 Promoting Change ...... 57 5.6 Remedying Injustice ...... 58 5.7 CD Key to Democracy ...... 58 5.8 Revolutionary War Example ...... 59

5.9 Slavery Example ...... 59 5.10 Workers’ Rights ...... 60 5.11 Civil Rights Movement ...... 60 5.12 History Proves ...... 60 5.13 Republicanism ...... 61 5.14 Social Contract ...... 64 5.15 AT Tacit Consent ...... 66 5.16 Environmental Advocacy ...... 68 5.17 AT Obligation to Obey ...... 68

6 Negative Evidence 72 6.1 CD in tension with Democracy ...... 72 6.2 Rule of Law ...... 73 6.3 Harm to Others ...... 74 6.4 Obligation to Obey ...... 76

7 General Evidence 80

We are very excited to release an updated brief of the topic, “Resolved: Civil disobedience in a democracy is morally justified.” Our last brief on this topic was published in 2004, when it was the resolution for the national championship. Much of the advice in that brief is specific to debaters who qualified to Nationals, whereas the advice here is tailored specifically for new debaters. We encourage coaches to use this brief as an applied introduction to LD. Our contributors—Chetan Hertzig, Jerry Chen, and Nick Smith—are three excellent coaches with experience teaching both novices and experienced debaters. Their contri- butions discuss the resolution from dierent angles, and each topic analysis has its own flavor. We encourage our authors to disagree over fundamental issues, and to express opinions rather than taking neutral stances towards controversial questions. We hope this helps you prepare for those issues as they arise in debates. Much of the evidence in this volume is integrated into each topic analysis, so it contains more explanation and application than other briefs. Some of the analyses contain cards that are modified with ellipses; novices should be sure to cut the full, original text of these cards, which are available in this book’s evidence packet. If you’re not sure about some card or citation, we suggest searching the PDF for the citation elsewhere in the document. We wish you the best of luck this season. Sincerely, Chris Theis & Jake Nebel

Chetan Hertzig is the head coach of Harrison High School in New York. He has coached a TOC champion, an NCﬂ national champion and runner-up, an NSDA Nationals runner-up, two Glenbrooks champions, three Harvard champions, an Apple Valley champion, and winners of numerous other tournaments. He holds an M.A. from Teachers College at Columbia University, a J.D. from Boston College Law School, and a B.A. from Brandeis University.

2.1 Background

FERGUSON, Mo. — The long, white bus emerged from a dark side street earlier in the week. Through the tinted windows, people on the street could see ﬂashing lights and bodies moving to a beat. It was a party bus. It crept slowly through an angry crowd of demonstrators and a cluster of armored vehicles and police ocers with large weapons threatening to arrest people if they did not disperse. Some in the crowd started dancing. Eventually, the bus made a U-turn and raced out of the police spotlight’s glare. And the demonstrators returned their attention to the police, shouting, “Don’t shoot me,” and gesturing obscenely. Ferguson is a strange place these days. Ever since a white police ocer, Darren Wilson, fatally shot an unarmed black youth, Michael Brown, two Saturdays ago, this St. Louis suburb has been deeply troubled, but also sometimes hard to fathom. By night, it can seethe with anger and frustration; by day, hope and even celebration can appear. It is a place where the emotions of young black men run raw and real, where they say their voices are ﬁnally being heard. They hope the fallout from the death of Mr. Brown, 18, will change the way the police treat them.1

FERGUSON, Mo. — Each night on the streets of this city, the nation’s latest symbol of racial unrest, there are two waves of protesters. Call them the A team and the B team. The A team comes out in the early evening, and its demonstrations are largely peaceful. These are people committed to the idea of non-violent protest. . . .[Then there are] the B-team protesters, the

1Eligon, John. “Anger, Hurt, and Moments of Hope in Ferguson.” The New York Times, 20 Aug. 2014. Web. http://www.nytimes.com/2014/08/21/us/in-ferguson-anger-hurt-and-moments-of-hope. html?hpw&rref=us&action=click&pgtype=Homepage&version=HpHedThumbWell&module= well-region®ion=bottom-well&WT.nav=bottom-well&_r=0.

people referred to by Missouri State Highway Patrol Capt. Ron Johnson as “a dangerous dynamic in the night” and “agitators and criminals.” He told CNN on Thursday: “There are some outsiders. There’s a lot of people who live here . . . We can’t just blame it on outside instigators.”. . . ..Late Monday night, with police and protesters in a tense standothat would erupt into a confrontation, a black male who looked to be about 17 crept along West Florissant Avenue toward the intersection of Ferguson Avenue, looked about furtively, then flung what appeared to be a plastic bottle of water toward police. He fled back down West Florissant, apparently unobserved by the police. Bass says the dire economic situation of many young blacks leaves them receptive to those who would incite them to violence. “There’s a depressed, defeated, frustrated view, a lack of hope that really permeates young people right now,” he says. “Some of them feel there is no place for them. Some of them are easily used for other people’s objectives.” He says some of the small group of protesters who seek chaos “work to evoke the anger of the people and of law enforcement. They are stoking the emotions of protesters and law enforcement to create a situation that they benefit from.”2

These two excerpts, both about recent events in Ferguson, Missouri, present two dierent pictures of what civil disobedience means. In the first, it is a peaceful act against the law, a way for those who have been systematically excluded from the political system to finally make their voices heard. In the second, it is a dangerous act that quickly escalates into violence, disrupting and subverting the democratic process to benefit a particular group. Acts of civil disobedience cover a wide spectrum, from Mahatma Gandhi’s acts of anti- colonialist satyagraha in India in the 1930s and ’40s to Estonia’s Singing Revolution in 1991, Nelson Mandela’s anti-apartheid movement in South Africa, or Cuba’s “Yo No Coopero Con La Dictadura” (“I Do Not Cooperate with the Dictatorship”) movement. In democracies such as the U.S., citizens have often used civil disobedience as a means of political protest, as exemplified by the Boston Tea Party, Susan B. Anthony’s protests against female disenfranchisement, and the American Civil Rights Movement. More recently, individuals have used civil protest to register their disagreement with Walmart’s wages3, or to show their disagreement with entire economic or political systems, as with the Occupy Wall Street Movement. (Some have contended that the Occupy movement should be classified as political disobedience rather than civil disobedience because it refuses to accept the legitimacy of the state.)

2Copeland, Larry, and Yamiche Alcindor. “In Ferguson, Dierent Kinds of Protestors.” USA Today,20 Aug. 2014. Web. http://www.usatoday.com/story/news/nation/2014/08/20/two-teams-of-protesters- ferguson/14361335/>. 3Miles, Kathleen. “Largest Civil Disobedience In Walmart History Leads To More Than 50 Ar- rests.” Hungton Post, 8 Nov. 2013. Web. http://www.hungtonpost.com/2013/11/08/walmart- arrests_n_4227411.html

2.2 What the Resolution Means

2.2.1 Civil disobedience

Within the topic literature, there is some disagreement as to what civil disobedience (hereafter “CD”) entails. Most authors agree that all acts of CD involve the following: 1) breaking a law that the rest of society typically follows; 2) law-breaking that will not threaten the very existence of the social order; and 3) protest against a specific governmental policy or action, rather than a rejection of the entire political system.4 Political theorists usually hold that civil disobedients accept punishment for their actions; they don’t seek to overthrow the state. Moreover, such protestors take action not out of self-interest, but because they genuinely have a moral objection to the law in question. For instance, when Henry David Thoreau refused to pay taxes in the 1840s, it wasn’t because he felt like evading the law, but because he was genuinely disgusted by the existence of slavery and the Mexican-American War. Ken Kress and Scott Anderson summarize Ronald Dworkin’s categorization of the dierent ways CD can register moral protest as follows: 1) “Integrity-based” CD, in which “a citizen disobeys a law because he feels that law is immoral” (e.g., “an antebellum Northerner refusing to turn over a slave to authorities”); 2) “Justice-based” CD, in which “a citizen engages in actions designed to lay claim to some right denied that citizen—wrongfully, in his view” (e.g., “the actions of protestors during the Civil Rights Movement”); and 3) “Policy-based” CD, in which a citizen responds to a policy s/he believes is “danger- ously wrong” (e.g., “the sit-ins and other protests against deployment of American nuclear weapons in Germany”).5 There is also a distinction to be made between direct CD, which involves protesting the actual law the citizen disagrees with, and indirect CD, which means breaking one law in order to show that one protests another. For example, when white Americans sheltered escaped slaves in violation of the Fugitive Slave Act in the U.S., they were directly disobeying the law they were protesting against; when environmentalists engage in trespassing and protest on a public ocial’s lawn because they disagree with existing pollution regulations, they engage in indirect CD. A separate, critical issue is whether CD is non-violent or not. Many writers, such as philosopher John Rawls, argue that CD cannot, by definition, involve physical violence. Andrew Sabl agrees with Rawls’s view, explaining it as follows: 4See Betz, Joseph. “Can Civil Disobedience be Justified?” Social Theory and Practice,Vol.1,No.2 (Fall 1970), pp. 13-30. 5Kress, Ken, and Scott W. Anderson. “Dworkin in Transition.” The American Journal of Comparative Law,Vol. 37, No. 2 (Spring, 1989), pp. 337-351

I deﬁne civil disobedience, following Rawls, as “a public, nonviolent, conscientious yet political act contrary to law usually done with the aim of bringing about a change in the law or policies of the government.”.. . . So deﬁned, civil disobedience has two aspects that appear to be in tension. It is disobedience: deliberate violation of laws passed according to a society’s accustomed procedures. But it is also civil: those engaging in disobedience believe that the regime and the electorate that supports it are related to them as fellow citizens, or at least as potentially reasonable human beings capable of recognizing and acting on moral claims. . . .6

Yet other writers dispute this deﬁnition:

The proviso of non-violence has been criticised by many theorists, who have argued that some degree of violence within civil disobedience may be allowed. The main diculty lies, indeed, in what we mean by “violent act”. According to the traditional view, violence is equated to the illegitimate use of physical force applied to people, or things, with the intention of causing harm. . . .Coercive civil disobedience, on the other hand, seeks the attainment of its objective not by “persuading”, but by “threatening the rest of society with the dire consequences the disobedients will bring about unless their goals are attained” (Falcon Y Tella, 2004, 61). For example, the prolonged or repeated obstruction of public spaces, or the sending of false recruitment papers in order to oppose military call-up, as during the protest against the war in Vietnam. The attitude of this action is not to persuade the public, but to cause an inconvenience in order to coerce the State into accepting the demand of the disobedients.7

Moraro continues:

6Sabl, Andrew. “Looking Forward to Justice: Rawlsian Civil Disobedience and its Non-Rawlsian Lessons.” The Journal of Political Philosophy: Vol. 9, Number 3, 2001, pp. 307-330 7Moraro, Piero. “Violent Civil Disobedience and Willingness to Accept Punishment.” Essays in Philosophy: Vol. 8: Iss. 2, Article 6, 2007.

and serious belief of an injustice, we may be allowed to put pressure upon the government using coercion, be it coercion of persuasion or of force. . . .[I]t is hard to draw a line between a “violent” and a “nonviolent” action. ˆIbid. Committing to a particular conception of CD is important, since it aects the arguments each side can make regarding the social impacts CD may have.

2.2.2 Democracy

The resolution’s context is a democracy, rather than a dictatorship or other politically repressive regime. This is significant, since it may exclude certain examples of CD from discussion. For instance, the 1989 Tiananmen Square massacres in China certainly demonstrated a hostile reaction to civil disobedience, but didn’t occur within a democratic climate. Likewise, examples like American resistance to slavery and South African resistance to apartheid are only questionably topical, since one could argue that those societies weren’t democracies, either. What, then, is a democracy? The broadest definition of the term indicates that it is “rule by the people.” This typically means that the government must have a voting system, as well as safeguards for individuals’ free expression and minority rights. Moreover, democracies definitionally provide a means of holding leaders accountable. Carl Gershman writes: ...Democracy oer[s] the means by which the citizen can hold governments accountable for their policies and integrity. The political scientist Larry Diamond has written that “predatory, corrupt, wasteful, abusive, tyrannical, incompetent governance is the bane of development.” There is simply no way to control or eliminate corruption if people don’t have access to the fundamental institutions of democracy: a free media that can expose corruption, an independent judiciary that can punish its perpetrators, and a system of free and fair elections that can hold political leaders accountable and, where appropriate, kick the rascals out. This doesn’t mean that democracy will automatically reduce corruption or produce good governance. Responsible governance requires political will, eective institutions, professional ocials, and an informed, alert, and aroused citizenry. But without democracy none of these things are possible, and the absence of political and legal restraints leads inevitably to abusive and corrupt behavior. 8 Various theories of what democracy means exist; the fundamental point here is that democracy is not just majority rule. Rather, it is a means of balancing majority rule and minority rights. The existence of laws does not, by itself, make those laws democratically valid; it’s important that individuals have a check on the legislative process in any truly democratic system, since that ensures that all voices have the opportunity to be heard. 8Gershman, Carl; President, the National Endowment for Democracy. “Why the Developing World Needs and Wants Democracy.” National Endowment for Democracy, September 12, 2003.

2.2.3 Morally Justiﬁed

Perhaps the most important question in the resolution is what it means for an action to be morally justified. Is this necessarily the same as the action being moral or just? Why does the resolution include the word “morally” before “justified” – what’s the distinction between those terms? It seems that the armative must do more than simply prove that there may be good reasons to engage in CD, yet s/he doesn’t need to prove that CD is actually good. Rather, s/he needs to show the action to be morally valid or legitimate – i.e., that it doesn’t break moral duties. The negative, meanwhile, must establish reasons why CD should be taken othe table entirely, since democracies should discourage the use of morally illegitimate tactics. Debaters on both sides should consider using something related to moral justification or democracy as the basis of their frameworks, since the resolution’s goal is to achieve some kind of morally justified action within a democratic context. Sample values might include morality, justice, democratic legitimacy, or some combination of terms (e.g., moral legitimacy).

2.3 Armative Arguments

2.3.1 Democratic Fallibility

Democracies aren’t perfect, and often make mistakes. The U.S. alone has historically denied various groups their rights (e.g., slavery, Jim Crow laws, denial of women’s surage, bans on gay marriage, etc.). Given that societies can engage in systematic oppression against minorities even when there are existing checks on the system, CD is a necessary tool in the citizenry’s toolbox of protest options. This position can be justiﬁed on the grounds that democracies are only legitimate if citizens consent to their authority, and unjust laws represent a breach of that consent. Indeed, philosopher John Locke argued that people agree to give up some of the absolute liberty that had in the state of nature to a state that must protect their natural rights. This exchange – commonly referred to as the Social Contract – forms the basis of the relationship between citizens and the state. Locke justiﬁes a citizen-led revolt against oppressive regimes; since failure to respect citizens’ fundamental rights removes the people’s obligation to obey particular laws, governmental injustice breaks the Social Contract. Norman Bowie and Robert Simon explain this position:

The civil disobedient accepts the prima facie obligation [to obey laws], at least in a reasonably just democratic state, but maintains that in certain cases the prima facie obligation is overridden by a higher ethical principle.

Let us begin our discussion of the argument by indicating where it applies and where it does not. First, it will not count if the contract of the relation between the individual and the state is wrong. Second, this argument will have no force if the contract is entered under duress or if there is no escape clause. . . .Consider a holdup victim who has promised the armed robber to tell the police nothing about his crime. Suppose the victim then tells the police everything, and as a result the robber is captured. Surely the thief has no right to say that the victim was morally unjustiﬁed in telling the police since in so doing he broke a promise. A contract made under duress is not a contract at all. . . According to our theory, no contract is morally obligatory if it denies the natural rights of the citizen signees or resolves conﬂicts between rights by unjust procedures. The individual citizen may also be excused from obeying the contract when the state has failed to live up to the provisions in the contract that apply to it. After all, a contract places responsibilities and obligations on both contractors. The systematic failure of one party to carry out its obligations removes the moral obligation on the other party. 9

Arguments of this nature could link to a criterion about checks on government, since those checks form the basis of democratic citizenship.

2.3.2 Last Resort

Although the existence of built-in checks on government within the democratic system is a good thing, one of the downsides of using those checks is their ineciency. It often takes several years for an individual court case to reach the highest levels of government, and several additional years for a court to strike down a particular law. Further, individuals may ﬁnd that they must break a law or be directly impacted by it to have standing to sue the government in the ﬁrst place. When legal means of protest fail, civil disobedience may be a necessary last resort, as Daniel Markovits notes:

A citizen. . . may wish to reintroduce into the political agenda preferences and ideals that have been excluded by the collective decision whose ongoing democratic authority and current democratic appeal she doubts. . . .[I]n such cases, the inertial practices and institutions that usually promote democratic sovereignty inevitably come to impede it instead-they create democratic deficits. The citizen therefore has good democratic reasons to resist these inertial institutions – to overcome the democratic deficits. . . .A citizen who perceives a democratic deficit may promote sovereign reengagement with an issue through these orderly political processes, that is, by means that conform to the law. But these approved mechanisms for triggering sovereign reengagements are not always adequate to correct the democratic deficits that arise from time to time. Indeed, it is impossible for a democratic system

9Bowie, Norman E., and Robert L. Simon. The Individual and the Political Order: An Introduction to Social and Political Philosophy. Oxford, England: Rowman & Littleﬁeld Publishers, Inc., 1998.

to anticipate all the democratic deficits it generates and to develop ocially sanctioned routes of protest that perfectly counterbalance all its inertial institutions.. . . .Accordingly, the legally sanctioned means of protest that a political system incorporates are inevitably less capable of correcting the full range of democratic deficits that arise in that system than the revisionary habits of persons are of correcting the defects in rationality that arise from time to time in individual wills. The benefit to the democratic sovereign of the unanticipated and unwelcome shocks associated with disobedient protests tend, therefore, to exceed the benefit to the individual will of being shocked out of its complacency.10

This type of argument could link to a general criterion related to rights protection, or to a more speciﬁc criterion related to the obligations of democratic regimes.

2.3.3 Good Citizenship

A popular argument on this topic relates to CD’s potential to bring about legal and social change. Indeed, it may well be the spark that springs leaders to action; at minimum, politicians and other agents of the state are concerned with retaining power, so they have some incentive to listen to dissidents who might otherwise threaten their authority. However, since there’s no real way to know whether CD will, in fact, result in legal change, a stronger armative argument may be that CD is an act of good citizenship, regardless of its legal impact. Indeed, CD may cause citizens to rethink even deeply-held positions on matters like racial discrimination. Even if the law doesn’t change as a result of CD, CD still forces citizens and leaders to question themselves, which is always good in a democracy. Thus, CD strengthens the democratic system, rather than weakening it. Bowie and Simon explain:

. . . .[I]n a state where the achievement of justice is at best imperfect, we believe that civil disobedience has a central place. First, civil disobedience gives an opportunity for individual citizens to make a moral appeal to their fellow citizens when they believe that the institutions or practices of a state have violated their rights. Civil disobedience is then a means for seeking a redress of grievances. The potential beneﬁts of civil disobedience do not accrue solely to the civil disobedient, however. There are also substantial potential beneﬁts for the state. The civil disobedient may well be able to show that certain state actions are unjust. Hence, the disobedient will provide the catalyst for reform. Given that the purpose of the state is to provide justice, a civil disobedient who succeeds in pointing out an injustice in civil procedures is a good citizen and not an ordinary lawbreaker. Even if the civil disobedient should fail in the attempt to convince the state that an injustice

10Markovits, Daniel. “Democratic Disobedience.” Yale Law Journal, Vol. 114, No. 8 (Jun., 2005), pp. 1897-1952

has been done, the disobedient still ﬁlls the role of good citizen. Because of such disobedience, the state is forced to reexamine its policies and to be ever vigilant against situations where state activities do create injustice. A state that is constantly challenged is more likely to be a just one. . . .The civil disobedient serves as the analogue of an intellectual gadﬂy. . . .The civil disobedient is not an enemy of the state; rather, the civil disobedient, as Socrates argues, is a good citizen. . . ..Willingness to break the law openly is one of the characteristics that distinguishes the civil disobedient from the thief in the night.11

Kimberely Brownlee makes a similar argument:

There is a distinctive social value in conscientious dissent and disobedience. . . ..[I]t may well be that, if there are persons willing to contest a received opinion, we should thank them for it, open our minds to listen to them and rejoice that there is someone to do for us what we otherwise ought to do ourselves (Mill 1859, ch. 2). And when their causes are well founded and their actions justiﬁed, these dissenters serve society not only by questioning, but by inhibiting departures from justice and correcting departures when they occur, thereby acting as a stabilizing force within society. . . .In performing such services, society’s dissenters and disobedients may prove to exemplify truly responsible citizenship and civic virtue.12

Armatives could link this type of argument to a framework about the need to preserve checks on state power, or perhaps a criterion related to democratic discourse and deliberation. The more dialogue there is regarding state policies, the likelier it is that the state will ultimately be just in its actions.

2.3.4 Moral Autonomy

As human beings, individuals have a fundamental right to make their own moral decisions; people dier from objects in that they can make ethical choices and rocks can’t. To avoid dehumanizing citizens, we must preserve their ability to decide for themselves what’s moral, which will sometimes entail divorcing themselves from their legal duties. For instance, a bus driver in the segregated South during the Jim Crow era may have taken it upon himself to allow an African-American passenger to sit in the “Whites Only” section of his vehicle, even though doing so would be illegal. CD lets citizens choose not to be agents of injustice, actively separating themselves from laws to which they object. Brownlee notes:

11Bowie, Norman E., and Robert L. Simon. The Individual and the Political Order: An Introduction to Social and Political Philosophy. Oxford, England: Rowman & Littleﬁeld Publishers, Inc., 1998. 12Brownlee, Kimberley. “Conscientious Objection and Civil Disobedience.” Warwick School of Law Research, 25 Jun. 2012, Paper No. 2012/15.

. . . [W]hat morality requires of a person in morally dicult circumstances is not something to be mechanically determined by an examination of the person’s oce or position. An individual must on some occasions have the courage to rise above all that and obey the dictates of (good) conscience. . . ..[T]he point is that society should strive as well as it can to avoid setting up institutional frameworks to address important concerns which place overly weighty moral burdens on any would-be occupants of those institutions.13 A criterion related to moral autonomy may work well for this sort of position, so long as the armative establishes why that standard is relevant to a just democracy.

2.4 Negative Arguments

2.4.1 Selective Obedience

Although the armative may seem appealing at ﬁrst, its position poses several questions its advocates may have diculty answering. To begin with, it seems that the awould have to justify CD whenever an individual believed a law to be unjust. Yet a critical component of democratic citizenship is acceptance that one won’t get one’s way every time; otherwise, it would be impossible for the state to resolve conﬂicts between dierent parties’ interests. Indeed, one consents to the representative system, rather than to a guarantee that the state will always do what each individual wants. CD thus seems problematic, as it allows individual citizens to pick and choose which laws to follow depending on which they personally agree with. Steven Schlesinger explains the problem: . . . .Once it is claimed, as most of the proponents of civil disobedience do, that the law broken need not be the one protested, then certain questions arise: Which laws may be broken? May more than one law be broken?. . . .[T]he advocates of civil disobedience regard it as a moral responsibility. But the fatal diculty in the argument when applied to governments that operate by majority rule is that the eectiveness and continuance of the regime requires that individuals divest themselves of authority to judge which enacted laws are suciently just to warrant obedience. . . .[W]hen [democracies enact unjust laws], the citizen who truly supports such a regime must use legal means to seek change in the law.14 This argument could link to a framework about contractual duties or consent, since the neg could argue that citizens have a pre-existing duty to follows laws and register their protest through legal means.

13Brownlee, Kimberley. “Conscientious Objection and Civil Disobedience.” Warwick School of Law Research, 25 Jun. 2012, Paper No. 2012/15. 14Schlesinger, Steven R. “Civil Disobedience: The Problem of Selective Obedience to the Law.” Hastings Constitutional Law Quarterly,Vol.3,Fall1976.

2.4.2 Violence

As noted above, CD carries with it the threat of physical violence, which has a real possibility of materializing. Even if CD is deﬁned as non-violent in nature, it can (and empirically has) escalated into something greater, as citizens frustrated by the lack of change they see grow impatient. Further, the logic of CD often justiﬁes an escalation to violence. Schlesinger continues:

Whatever the number of its practitioners, civil disobedience tends to promote violence in a democratic regime. The possibility that prevailing conditions or perceptions of them may change leaves a signiﬁcant potential for violence in a democratic regime. What will the nonviolent protester do if conditions, in his view, do not improve—or even deteriorate—despite (or perhaps because of) his nonviolent civil disobedience? What course of action directed toward improvement of the situation is left other than violence? As citizens become increasingly inured to. . . civil disobedience, acts of civil disobedience will lose their educational or shock value, citizens will no longer be moved to an examination of the justice of the protester’s cause, and protesters will have to resort to increasingly coercive and violent methods simply to get attention.15

This argument may work well with a criterion related to rights protection, since violence is likely to result in violations of life, liberty, and property.

2.4.3 Ecacy (or Lack Thereof)

CD simply wouldn’t work if it were adopted as a legitimate means of protest. Although CD may make sense in individual cases, the ahas to justify it holistically or on balance, which poses both practical and moral problems. Moreover, CD often occurs indirectly; it’s an act of protest against one law that often involves breaking another. For instance, a disobedient protesting against a war may disrupt trac to make her voice heard, but that doesn’t mean she’s protesting road construction or the placement of stop lights. As Robert Hall shows:

. . . .It is dicult to see how conscientious objection to laws which protect the rights of others could be allowed without destroying the establishment of justice within a society. Not all acts of disobedience are undertaken as a protest against the law which is actually violated. Some are deliberate infringements of property rights or personal rights for the purpose of calling public attention to a particular problem or issue. Surely these could not be legalized. . . .[T]he granting of permissions to objectors would also serve to reduce the number of court cases challenging the constitutionality of

15Schlesinger, Steven R. “Civil Disobedience: The Problem of Selective Obedience to the Law.” Hastings Constitutional Law Quarterly,Vol.3,Fall1976.

objectionable laws, since individuals would have an easier remedy for their objections. The basic purpose of civil disobedience in many cases is to change the law and that purpose would be entirely frustrated by allowing exceptions. Constitutional rights would therefore not be armed as frequently as they are now.16

This argument could also link to a criterion related to rights protection, and could mitigate aarguments about social change.

2.4.4 Legal Means are Better

Perhaps the most common neg argument is simply that in a democracy, legal means of protest are available, and are morally better options than CD. While the mere existence of legal means does not, by itself, invalidate CD, the possibility that those means can provide similar beneﬁts without CD’s harms make it preferable to lawbreaking. Further, the fact that citizens accept the beneﬁts of living in a democracy (e.g., order or rights protection) obligates them to respect the existing democratic process when trying to achieve change. Lewis Van Dusen explains:

There are many civil rights leaders who show impatience with the process of democracy. . . .But. . . [t]he victories of these civil rights leaders must not shake our conﬁdence in the democratic procedures, as the pressures of demonstration are desirable only if they take place within the limits allowed by law. . . ..Those who advocate taking the law into their own hands should reﬂect that when they are disobeying what they consider to be an immoral law, they are deciding on a possibly immoral course. . . .Our Bill of Rights guarantees wide opportunities to use mass meetings, public parades, and organized demonstrations to stimulate sentiment, to dramatize issues, and to cause change. . . ..When militant students storm a college president’s oce to achieve demands, when certain groups plan rush hour car stalling to protest discrimination in employment, these are not dissent, but a denial of rights to others. Neither is it the lawful use of mass protest, but rather the unlawful use of mob power.17

This argument may link to a criterion related to respect for the democratic process, which seems central to the question of which actions are morally legitimate within a democracy. Those who reap the beneﬁts of the system without respecting the burdens the system places on them can’t be said to engage in morally justiﬁed conduct.

16Hall, Robert T. “Legal Toleration of Civil Disobedience.” Ethics,Vol. 81, No. 2 (Jan., 1971), pp. 128-142 17Van Dusen Jr., Lewis H. “Civil Disobedience: Destroyer of Democracy.” American Bar Association Journal, Vol. 55, No. 2 (February 1969), pp. 123-126

2.5 Full Text of Evidence Above

2.6 Full Deﬁnitions

A: CD is non-violent Sabl, Andrew. “Looking Forward to Justice: Rawlsian Civil Disobedience and its Non-Rawlsian Lessons.” The Journal of Political Philosophy: Vol. 9, Number 3, 2001, pp. 307-330

I define civil disobedience, following Rawls, as “a public, nonviolent, conscientious yet political act contrary to law usually done with the aim of bringing about a change in the law or policies of the government.” I also add the Rawl- sian proviso that civil disobedience involves “address[ing] the sense of justice of the majority of the community” (TJ, 364). The method is, by stipulation, one of moral appeal rather than mere coercion; I defend this stipulation below. So defined, civil disobedience has two aspects that appear to be in tension. It is disobedience: deliberate violation of laws passed according to a society’s accustomed procedures. But it is also civil: those engaging in disobedience believe that the regime and the electorate that supports it are related to them as fellow citizens, or at least as potentially reasonable human beings capable of recognizing and acting on moral claims. The disobedients try to reflect this belief in their actions by avoiding not only violence but also insults and verbal expressions of hatred that would endanger the chances of future cooperation. This civility does not imply a belief that the current behavior of constituted authorities manifests just dispositions or a sucient disposition to be fair. Those who practice civil disobedience generally argue that the injustice they are protesting is not trivial but severe; they regard the laws or practices being contested as direct and open assaults on the human dignity and equal citizenship of those whom the laws and practices oppress.

Neg: CD may be violent Moraro, Piero. “Violent Civil Disobedience and Willingness to Accept Punishment.” Essays in Philosophy: Vol. 8: Iss. 2, Article 6, 2007.

and third parties directly or indirectly linked to the state. Members of the “radical” faction held that civil disobedience, while “peaceful”, should not be equated with “non-violence”. They assumed that, although civil disobedience cannot aim at moral or physical destruction of the adversary, a certain risk of violence -on occasion and always as a secondary conditionis to be accepted. Thus, according to them, the main issue would be choosing carefully which methods could achieve the limited objectives aimed for. It is also crucial that the use of violence be proportional to the injustice that one is trying to abolish. It is on this “radical” faction that I will focus my discussion. Civil disobedience can be either “persuasive” or “coercive” (Rosenberg 1981, 45-62), the dierence resting upon the means used to attain the target. The former kind of disobedience appeals to public conscience, the latter involves the use of threats. An example of persuasive civil disobedience would be the temporary obstruction of a public space, with the aim of making the public opinion aware of a possible injustice in the society: that is, to send a message, to persuade the society, and the majority in power, of the necessity of a change. Coercive civil disobedience, on the other hand, seeks the attainment of its objective not by “persuading”, but by “threatening the rest of society with the dire consequences the disobedients will bring about unless their goals are attained” (Falcon Y Tella, 2004, 61). For example, the prolonged or repeated obstruction of public spaces, or the sending of false recruitment papers in order to oppose military call-up, as during the protest against the war in Vietnam. The attitude of this action is not to persuade the public, but to cause an inconvenience in order to coerce the State into accepting the demand of the disobedients.

Let us think, for example, about the case of civil disobedients that occupy a public space, with the aim of leading the government to re-examine its policy. Rawls allows this kind of protest: yet, it may be possible to argue that this is not “pure persuasion”, rather a form of “mild coercion”. In fact, even those forms of civil disobedience that satisfy Rawls’s conditions seem to contain some elements of coerciveness. As both Morreall and Greenawalt underscore, most of the times persuasion involves coercion. To clarify this point, let us consider Gandhi and M. L. King’s strategies of non-cooperation, two passionate endorsements of the principle of non-violence. Both of them aimed at persuading the oppressor of the necessity to change a policy: yet both of them recognized that the inconvenience caused to the oppressor might have been a necessary means to focus their attention on the issue of justice (Greenawalt, 179). King’s words seem to give support to this view: “Non- violent direct action seeks to create such a crisis and establish such creative tension that a community that has constantly refused to negotiate is forced to confront the issue.” (King, 71, emphasis added). It seems that pure appeals to persuasion, in civil disobedience, are rare: some form of pressure is usually present. There is not a big gap between trying to persuade the majority that

a certain law is unjust, and trying to persuade them that enacting a certain law will be “inconvenient”. Furthermore, if we denied civil disobedience any form of coercion, there would not be much left. We may even wonder why we need to break a law, if what we are aiming for is simply the persuasion of the other part. We have to reject, of course, what Morreall calls “naked coercion”, that is, coercion applied to Essays in Philosophy unreasonable demands, as in the case of “unconscientious” civil disobedience, i.e. the case of disobedients acting not from a sincere and serious belief that a law is unjust, but from more particular reasons such as religion, ideology, or even self-interest. In this case, the act would not be civil disobedience; rather it would constitute the illegitimate attempt to impose one’s view upon the majority. Nevertheless, when the reasons for civil disobedience are genuine, clear and coherent, i.e. when there is the sincere and serious belief of an injustice, we may be allowed to put pressure upon the government using coercion, be it coercion of persuasion or of force. Recognizing the possibility of coercive civil disobedience is still not enough to justify the use of violence in it. Even though some form of violence might be required, under certain conditions, in order to make one’s own voice heard in the public arena, still it is hard to draw a line between a “violent” and a “nonviolent” action. Gandhi oered an interesting interpretation of violence in civil disobedience, described in Haksar (1986, 156): there is no violence, Gandhi writes, when there is no infraction of a duty. He presented the example of milk drivers that decide to cut othe milk supply because of a grievance with the local municipality: in this case, endangering people’s life, they would be guilty of a crime against humanity. However, if the milk drivers were underpaid by their employer, and were consequently starving, they might be justiﬁed in refusing to drive the milk carts (had alternative legal ways to get better wages been previously tried without results) even though their action may cause the death of babies in the city. This is because it was not part of their duty to supply milk to children under every circumstance. Equally, even if India’s boycott of British goods would cause the suering of people in Lancashire, the Indian population could not be accused of violence against those people, since India never bound herself to maintain Lancashire.

Democracy holds leaders accountable Gershman, Carl; President, the National Endowment for Democracy. “Why the De- veloping World Needs and Wants Democracy.” National Endowment for Democracy, September 12, 2003.

How democracy can help a country become “ﬁt” is a complex and subtle process that doesn’t lend itself to news-bites. Let me suggest seven ways that democracy contributes to this process. The ﬁrst is by oering the means by which the citizen can hold governments accountable for their policies and integrity. The political scientist Larry Diamond has written that “predatory,

corrupt, wasteful, abusive, tyrannical, incompetent governance is the bane of development.” There is simply no way to control or eliminate corruption if people don’t have access to the fundamental institutions of democracy: a free media that can expose corruption, an independent judiciary that can punish its perpetrators, and a system of free and fair elections that can hold political leaders accountable and, where appropriate, kick the rascals out. This doesn’t mean that democracy will automatically reduce corruption or produce good governance. Responsible governance requires political will, eective institutions, professional ocials, and an informed, alert, and aroused citizenry. But without democracy none of these things are possible, and the absence of political and legal restraints leads inevitably to abusive and corrupt behavior.

2.7 Armative Evidence

CD holds fallible governments accountable Bowie, Norman E., and Robert L. Simon. The Individual and the Political Order: An Introduction to Social and Political Philosophy. Oxford, England: Rowman & Littleﬁeld Publishers, Inc., 1998.

There are several arguments designed to show that one should not break valid laws as a means of registering one’s moral protest against the state. One such major argument has its basis in the moral imperative that one ought to obey the law. Some critics of civil disobedience seem to believe that the mere validity of this imperative is sucient to show that civil disobedience is not justiﬁed." Of course, this is not correct. For such a position to be correct, the moral imperative that one ought to obey the law would have to be supreme, that is, whenever this imperative was in conﬂict with another moral imperative, the moral imperative that one ought to obey the law would have priority. It is one thing to grant that “One ought to obey the law” is prima facie binding. However, any attempt to make it a supreme moral principle would need considerable additional argument. The civil disobedient accepts the prima facie obligation, at least in a reasonably just democratic state, but maintains that in certain cases the prima facie obligation is overridden by a higher ethical principle. Let us begin our discussion of the argument by indicating where it applies and where it does not. First, it will not count if the contract of the relation between the individual and the state is wrong. Second, this argument will have no force if the contract is entered under duress or if there is no escape clause. We are in essence defending a freedom condition that the contract must meet. Most people would agree to obey the laws of the state, indeed surrender all personal liberty, if they were hungry enough and if the state provided food and shelter. Consider a holdup victim

who has promised the armed robber to tell the police nothing about his crime. Suppose the victim then tells the police everything, and as a result the robber is captured. Surely the thief has no right to say that the victim was morally unjustified in telling the police since in so doing he broke a promise. A contract made under duress is not a contract at all. In other words, since the state is supposed to provide great advantages for the individual, if the contract argument for obedience is to be accepted, then there must be some options for those who feel they are not receiving the advantages or do not want them. Socrates tries to provide these options by procedures for registering complaints and ultimately for emigration. Our analysis has tried to indicate the necessity for those conditions. This leads to our third and final point. The contract itself must be a moral one. If Smith promises Jones that Smith will murder Green,]ones cannot hold Smith in violation of his contract should Smith not murder Green. Similarly, any contract between an individual citizen and the state must be of a moral nature if the contract is to have binding force. The kinds of constraints put on a contract depend on the moral theory that one holds. According to our theory, no contract is morally obligatory if it denies the natural rights of the citizen signees or resolves conflicts between rights by unjust procedures. The individual citizen may also be excused from obeying the contract when the state has failed to live up to the provisions in the contract that apply to it. After all, a contract places responsibilities and obligations on both contractors. The systematic failure of one party to carry out its obligations removes the moral obligation on the other party.

CD is a last resort when legal means fail Markovits, Daniel. “Democratic Disobedience.” Yale Law Journal, Vol. 114, No. 8 (Jun., 2005), pp. 1897-1952

A citizen who faces such a situation may wish to reintroduce into the political agenda preferences and ideals that have been excluded by the collective decision whose ongoing democratic authority and current democratic appeal she doubts. (The citizen probably has these preferences and arms these ideals herself, although this is not necessary, and she may pursue a renewed sovereign engagement in spite of being content with the status quo, simply for the sake of democratic values.) But in such cases, the inertial practices and institutions that usually promote democratic sovereignty inevitably come to impede it instead-they create democratic deficits. The citizen therefore has good democratic reasons to resist these inertial institutions-to overcome the democratic deficits. Of course, the political processes of democratic states generally (and perhaps necessarily) recognize ocially sanctioned mechanisms for collective course changing and revision-including, if the argument of the previous Part is correct, the processes of judicial review.84 A citizen who perceives a democratic deficit may promote sovereign reengagement with an issue

through these orderly political processes, that is, by means that conform to the law. But these approved mechanisms for triggering sovereign reengagements are not always adequate to correct the democratic deficits that arise from time to time. Indeed, it is impossible for a democratic system to anticipate all the democratic deficits it generates and to develop ocially sanctioned routes of protest that perfectly counterbalance all its inertial institutions. The earlier analogy to the individual will illuminates this point. A moment’s introspection reveals that the exclusionary force of our intentions is not and indeed could not possibly be always perfectly counterbalanced by the revisionary mechanisms that we cultivate. No matter how carefully we calibrate our intentions’ exclusionary force, and no matter how sensitively we pursue revisionary habits, the nonreconsideration on which our practical rationality depends on occasion so entrenches our intentions that we will benefit from being forced to reconsider them by means that go beyond the reconsiderative methods to which we have antecedently committed ourselves. We simply cannot help but sometimes become complacent, and we will then benefit from being shocked out of our complacency by unanticipated, and initially unwelcome, means. Moreover, these inevitable imbalances between inertial forces and cultivated revisionary mechanisms are only more pronounced in the case of the sovereign will than in the case of the individual will. The practices necessary for sustaining the widespread sense of individual authorship of collective decisions on which democratic sovereignty depends involve much more inertia than the exclusionary properties of intentions on which individual practical rationality depends. Accordingly, the legally sanctioned means of protest that a political system incorporates are inevitably less capable of correcting the full range of democratic deficits that arise in that system than the revisionary habits of persons are of correcting the defects in rationality that arise from time to time in individual wills. The benefit to the democratic sovereign of the unanticipated and unwelcome shocks associated with disobedient protests tend, therefore, to exceed the benefit to the individual will of being shocked out of its complacency. None of this denies that democratic systems should invite rather than discourage legal protest, just as individual persons should be flexible rather than rigid. But the mechanisms needed to generate a democratically authoritative sovereign inevitably (and even more markedly than in the case of individual intentions) also create democratic deficits whose cures no democratic system can incorporate.

CD is an act of good citizenship Bowie, Norman E., and Robert L. Simon. The Individual and the Political Order: An Introduction to Social and Political Philosophy. Oxford, England: Rowman & Littleﬁeld Publishers, Inc., 1998.

The democratic state constrained by general and particular principles of justice may be generally reliable but, nonetheless, imperfect in performing

its function of implementing the natural rights claims of its citizens and of resolving disputes among rights claims. In such a state, justified acts of civil disobedience would not occur with great frequency. Nonetheless, in a state where the achievement of justice is at best imperfect, we believe that civil disobedience has a central place. First, civil disobedience gives an opportunity for individual citizens to make a moral appeal to their fellow citizens when they believe that the institutions or practices of a state have violated their rights. Civil disobedience is then a means for seeking a redress of grievances. The potential benefits of civil disobedience do not accrue solely to the civil disobedient, however. There are also substantial potential benefits for the state. The civil disobedient may well be able to show that certain state actions are unjust. Hence, the disobedient will provide the catalyst for reform. Given that the purpose of the state is to provide justice, a civil disobedient who succeeds in pointing out an injustice in civil procedures is a good citizen and not an ordinary lawbreaker. Even if the civil disobedient should fail in the attempt to convince the state that an injustice has been done, the disobedient still fills the role of good citizen. Because of such disobedience, the state is forced to reexamine its policies and to be ever vigilant against situations where state activities do create injustice. A state that is constantly challenged is more likely to be a just one. As rigid patterns of thought need to be challenged and reexamined if the best kinds of intellectual activity are to prevail, so must the patterns of the state be challenged if the ideal of justice is to be approached. The civil disobedient serves as the analogue of an intellectual gadfly. In this sense, our view of civil disobedience is clearly in the tradition of Socrates. The civil disobedient is not an enemy of the state; rather, the civil disobedient, as Socrates argues, is a good citizen: “If you put me to death, you will not easily find anyone to take my place. It is literally true, even if it sounds rather comical, that God has specially appointed me to this city, as though it were a large thoroughbred horse which because of its great size is inclined to be lazy and needs the stimulation of some stinging fly. It seems to me that God has attached me to this city to perform the oce of such a fly, and all day long I never cease to settle here, there, and everywhere, rousing, persuading, reproving every one of you. You will not easily find another like me, gentlemen.” To take this perspective on civil disobedience, however, is to be committed to constraining the form that civil disobedience must take if it is to be justifiable. If an act of disobedience is to be justified, (1) it must be public; (2) it must be nonviolent; (3) the civil disobedient must be willing to take the punishment the legal system may impose for disobedience; and (4) the law being violated must be identical with, or related to, the policy or law against which the moral protest is lodged. To the extent that any of these conditions is violated, the act of civil disobedience in question is harder to justify. It is hard to see how violations of the first three conditions can be justified at all. Thus, if civil disobedience is designed to call attention to a possible injustice so that the state might correct its procedures, then the act

of civil disobedience must be open and public. Such openness is an indication that the lawbreaking of a civil disobedient is nonetheless a political act of good citizenship. Clandestine lawbreaking, on the other hand, is directed against the political community; it is antipolitical. In such cases, one breaks the rules of society and tries to go undetected. Such action, if universalized, would threaten the state itself. Willingness to break the law openly is one of the characteristics that distinguishes the civil disobedient from the thief in the night.

Brownlee, Kimberley. “Conscientious Objection and Civil Disobedience.” Warwick School of Law Research, 25 Jun. 2012, Paper No. 2012/15.

There is a distinctive social value in conscientious dissent and disobedience. These practices contribute centrally to the democratic exchange of ideas by forcing the champions of dominant opinion to reﬂect upon and defend their views. Following Mill, it may well be that, if there are persons willing to contest a received opinion, we should thank them for it, open our minds to listen to them and rejoice that there is someone to do for us what we otherwise ought to do ourselves (Mill 1859, ch. 2). And when their causes are well founded and their actions justiﬁed, these dissenters serve society not only by questioning, but by inhibiting departures from justice and correcting departures when they occur, thereby acting as a stabilizing force within society (cf. Rawls 1971: 383). In performing such services, society’s dissenters and disobedients may prove to exemplify truly responsible citizenship and civic virtue. Richard Dagger argues that: To be virtuous. . . is to perform well a socially necessary or important role. This does not mean that the virtuous person must always go along with the prevailing views or attitudes. On the contrary, Socrates and John Stuart Mill have persuaded many people to believe that questioning and challenging the prevailing views are among the highest forms of virtue (1997: 14). It is in this spirit that we should understand the best of conscientious dissent and disobedience (Brownlee forthcoming).

CD protects citizens’ moral autonomy Brownlee, Kimberley. “Conscientious Objection and Civil Disobedience.” Warwick School of Law Research, 25 Jun. 2012, Paper No. 2012/15.

The gap between codiﬁed law and non-codiﬁable morality is easily discerned in dicult situations where conformity to formal norms rightly elicits condemnation. For example, in a recent case, two British community support police ocers (CSOs) endeavored to save a child drowning in a pond not by attempting a rescue, but by radioing for a trained emergency crew to come to the scene. In the intervening time, the child died. The ocers were praised by their superior for following proper procedure, but censured by both the community and government ocials, one of whom stated that, “What was appropriate in

this circumstance for a uniformed ocer would be appropriate for CSOs as human beings, never mind the job” (BBC 2007). Similar condemnation may rightly be elicited when judges sentence convicted oenders to death, or when police or intelligence ocers use extreme interrogation techniques, or when doctors oversee executions by lethal injection, even though in each of these cases the law may well have demanded the conduct. As Joel Feinberg observes, what morality requires of a person in morally dicult circumstances is not something to be mechanically determined by an examination of the person’s oce or position. An individual must on some occasions have the courage to rise above all that and obey the dictates of (good) conscience (2003: 16). And this truth is not restricted to lowerlevel ocials or ordinary citizens. Raz rightly observes that, “Sometimes courts ought to decide cases not according to the law but against it. Civil disobedience, for example, may be the only morally acceptable course of action for the courts” (Raz 1994: 328). The point here is not simply that a reasonably just or liberal society should make provision for persons to excuse themselves from adhering to formal demands that are especially onerous for them. Certainly, in many cases, it should do that. Rather, the point is that society should strive as well as it can to avoid setting up institutional frameworks to address important concerns which place overly weighty moral burdens on any would-be occupants of those institutions. For instance, in states such as California, doctors have justiﬁably refused to carry out the function of overseeing executions by lethal injection because their assigned function is not just to reduce the condemned person’s suering, but to intervene to facilitate death if the person wakes up. This task deeply conﬂicts with doctors’ responsibilities as healers and carers to promote people’s well-being. As a result of doctors’ refusal to perform this function, a moratorium was imposed on capital punishment in California (Gels 2006). A similar objection can be raised against prison doctors’ function of treating oenders in high-security prisons whose conditions are often marked by brutality, degradation and deprivation, thereby requiring doctors to oversee punishments highly detrimental to oenders’ well-being.

2.8 Negative Evidence

Selective obedience to laws is wrong Schlesinger, Steven R. “Civil Disobedience: The Problem of Selective Obedience to the Law.” Hastings Constitutional Law Quarterly, Vol. 3, Fall 1976.

There is a ﬁnal diculty with civil disobedience: Which laws and how many may be broken in civil disobedience? Once it is claimed, as most of the proponents of civil disobedience do, that the law broken need not be the one protested, then certain questions arise: Which laws may be broken? May more

than one law be broken? Perhaps many? May a citizen refuse compliance with all laws—or at least the ones he claims he can break nonviolenfly—until the claimed injustices are rectified? Nowhere do the proponents of civil disobedience give a satisfactory answer to this problem; until they do, civil disobedience is a doctrine in search of limits. As noted above, the advocates of civil disobedience regard it as a moral responsibility. But the fatal diculty in the argument when applied to governments that operate by majority rule is that the eectiveness and continuance of the regime requires that individuals divest themselves of authority to judge which enacted laws are suciently just to warrant obedience. If the regime is worth maintaining and preserving, then civil disobedience is unjustifiable because it undermines the fundamental principles of the regime. Nothing in this essay denies that democratic regimes can and do enact unjust laws. The argument here is that when they do, the citizen who truly supports such a regime must use legal means to seek change in the law.

CD leads to and justiﬁes violence Schlesinger, Steven R. “Civil Disobedience: The Problem of Selective Obedience to the Law.” Hastings Constitutional Law Quarterly, Vol. 3, Fall 1976.

The argument can be made that civil disobedience is a self-limiting phe- nomenon because only a few will have the courage to face the accompanying legal penalties. But the penalties for most forms of civil disobedience are a short period in jail or perhaps a fine—and these in some circles may bring respect to the person engaged in civil disobedience. One must question the amount of courage needed for these kinds of acts. Also, as will be discussed later, as acts of civil disobedience become more violent and coercive, the tendency to flee the penalty altogether becomes greater. Whatever the number of its practitioners, civil disobedience tends to promote violence in a democratic regime. The possibility that prevailing conditions or perceptions of them may change leaves a significant potential for violence in a democratic regime. What will the nonviolent protester do if conditions, in his view, do not improve—or even deteriorate—despite (or perhaps because of) his nonviolent civil disobedience? What course of action directed toward improvement of the situation is left other than violence? As citizens become increasingly inured to and perhaps even bored or angered by the tactics of civil disobedience, acts of civil disobedience will lose their educational or shock value, citizens will no longer be moved to an examination of the justice of the protester’s cause, and protesters will have to resort to increasingly coercive and violent methods simply to get attention.” Nothing in the argument for lawbreaking through civil disobedience necessarily precludes resort to violence if it is deemed necessary to accomplish a just result. If nonviolent lawbreaking is justifiable given certain perceptions or conditions, then violent lawbreaking is justified when those conditions are said not to be operative. Once one thinks

that lawbreaking is justiﬁable in a democratic regime, once the lawbreaking barrier has been overcome, the decision for or against violence in that regime is simply a matter of prudential considerations, of tactics.

CD is ineective at achieving the goals it sets out to meet Hall, Robert T. “Legal Toleration of Civil Disobedience.” Ethics,Vol. 81, No. 2 (Jan., 1971), pp. 128-142

Prof. Hugo A. Bedau has presented an interesting suggestion concerning civil disobedience and conscientious objection. “There is no logical reason,” he says, “why every law could not have a rider to the eect that anyone who violates it on conscientious grounds shall be exempt from prosecution and penalty.”5 If this exemption were established in law, most of what is now civil disobedience would become conscientious objection-that is, legal exemption from the requirements of a law rather than an illegal act. Indeed, there is no logical reason why the laws of a state could not contain this provision. The practical diculties of establishing conscientious objector provisions for every law, however, are so overwhelming as to make the proposal impractical. First, there is an important distinction-one mentioned in a number of court opinions-between laws which if violated harm only the general good and laws whose violation would infringe upon or endanger the rights of other individuals. Conscientious objection to the former would be similar to the current objection to military service; the eect of granting such status would be only a minimal hindrance to a government policy or operation. It might therefore be allowed in some instances, as it is now in the case of the draft. But it is dicult to see how conscientious objection to laws which protect the rights of others could be allowed without destroying the establishment of justice within a society. Not all acts of disobedience are undertaken as a protest against the law which is actually violated. Some are deliberate infringements of property rights or personal rights for the purpose of calling public attention to a particular problem or issue. Surely these could not be legalized. A second diculty with Bedau’s suggestion would be that it would require, as with the selective service law, the establishment of a board of judges to rule in advance on the conscientiousness of objections. The bureaucracy needed to make these decisions would be an elaborate, complex, and costly governmental institution. Third, any procedure for advance approval of disobedience would amount to government power to grant or withhold permission for certain acts. This would be an undesirable extension of government inﬂuence and control. Fourth, the granting of permissions to objectors would also serve to reduce the number of court cases challenging the constitutionality of objectionable laws, since individuals would have an easier remedy for their objections. The basic purpose of civil disobedience in many cases is to change the law and that purpose would be entirely frustrated by allowing exceptions. Constitutional rights would therefore not be armed as frequently as they are now. And

ﬁnally, this suggestion would not solve the problem, since civil disobedience would still be morally required of anyone who is refused permission, but still feels morally bound to violate a certain law. For many reasons, therefore, the general objector classiﬁcation suggested by Bedau would be an undesirable legal remedy, although an extension of this privilege in some areas would certainly enlarge the realm of individual liberty with little eect upon the state.

Citizens’ duty is to use legal means of protest Van Dusen Jr., Lewis H. “Civil Disobedience: Destroyer of Democracy.” American Bar Association Journal, Vol. 55, No. 2 (February 1969), pp. 123-126

There are many civil rights leaders who show impatience with the process of democracy. They rely on the sit-ins, boycott or mass picketing to gain speedier solutions to the problems that face every citizen. But we must realize that the legitimate pressures that won concessions in the past can easily escalate into the illegitimate power plays that might extort demands in the future. The victories of these civil rights leaders must not shake our confidence in the democratic procedures, as the pressures of demonstration are desirable only if they take place within the limits allowed by law. Civil rights gains should continue to be won by the persuasion of Congress and other legislative bodies and by the decision of courts. Any illegal entreaty for the rights of some can be an injury to the rights of others, for mass demonstrations often trigger violence. Those who advocate taking the law into their own hands should reflect that when they are disobeying what they consider to be an immoral law, they are deciding on a possibly immoral course. Their answer is that the process for democratic relief is too slow, that only mass confrontation can bring immediate action, and that any injuries are the inevitable cost of the pursuit of justice. Their answer is, simply put, that the end justifies the means. It is this justification of any form of demonstration as a form of dissent that threatens to destroy a society built on the rule of law. Our Bill of Rights guarantees wide opportunities to use mass meetings, public parades, and organized demonstrations to stimulate sentiment, to dramatize issues, and to cause change. The Washington freedom march of 1963 was such a call for action. But the rights of free expression cannot be mere force cloaked in the garb of free speech. As the courts have decreed in labor cases, free assembly does not mean mass picketing or sitdown strikes. These rights are subject to limitations of time and place so as to secure the rights of others. When militant students storm a college president’s oce to achieve demands, when certain groups plan rush hour car stalling to protest discrimination in employment, these are not dissent, but a denial of rights to others. Neither is it the lawful use of mass protest, but rather the unlawful use of mob power.

Jerry Chen debated for three years at Lexington High School, graduating in 2013. On the local circuit, he co-championed the Massachusetts State Tournament. On the national circuit, he qualiﬁed twice to the TOC, with four career bids. Jerry attends the University of Chicago and coaches for the Harker School.

3.1 Background Information

Throughout history, civil disobedience has been used as a tool by dissidents and activists pushing for social or political change. In United States history alone, we can easily identify numerous instances of civil disobedience during major social movements. To protest against female disenfranchisement, Susan B. Anthony, a pivotal ﬁgure in the Women’s Surage Movement, was arrested for committing voter fraud in a House of Representatives election.[ˆDoug Linder, University of Missouri-Kansas City Law, “The Trial of Susan B. Anthony for Illegal Voting,” 2001. http://law2.umkc.edu/faculty/projects/ftrials/anthony/sbaaccount.html] During the American Civil Rights Movement, protestors of racial segregation and discriminatory practices against African-Americans engaged in sit-ins at “white-only” diners and restaurants.[ˆ“Civil Rights Movement,” History.com, 2009. http://www.history.com/topics/black-history/civil-rights-movement] One of the more famous examples of civil disobedience during the Civil Rights Movement is Rosa Parks’ refusal to give up her seat on the bus to a white passenger, as a protest against bus segregation. A few years down the road, antiwar protesters took to streets and rallied against American involvement in the Vietnam War. While novice debaters may naturally turn towards historical examples of civil disobedience in America, it is worth noting that acts of civil disobedience were certainly not limited to the United States. Indeed, the use of civil disobedience played an integral role in numerous anti-colonialist movements for independence in Africa and Asia. In colonial India, Mohandas Gandhi led his famous non-violent movement for Indian independence by advocating for civil disobedience on a large scale.[ˆ“Salt March,” History.com, 2010. http://www.history.com/topics/salt-march] Evidently, history provides a litany of examples of the use of civil disobedience during various social and political movements.

3.2 Resolutional Analysis and Deﬁnitions

While historical examples oer a rough idea of what civil disobedience entails, it is nevertheless important to provide a precise deﬁnition for some extra clarity. Peter Suber, professor of philosophy at Earlham College, deﬁnes civil disobedience:[ˆPeter Suber, Research Professor of Philosophy at Earlham College, “Civil Disobedience,” 1999. http://legacy.earlham.edu/~peters/writing/civ-dis.htm]

Civil disobedience is a form of protest in which protestors deliberately violate a law. . . Most activists who perform civil disobedience are scrupulously nonviolent, and willingly accept legal penalties. The purpose of civil disobedience can be to publicize an unjust law or a just cause; to appeal to the conscience of the public; to force negotiation with recalcitrant ocials. . . or to put an end to one’s personal complicity in the injustice which ﬂows from obedience to unjust law—or some combination of these.

Suber’s definition of civil disobedience includes a few essential components. Although civil disobedience is characterized by its illegality, acts of civil disobedience have a specific purpose. Most acts of civil disobedience are aimed at publicizing or undermining what activists believe to be an unjust law or government policy. The motivations or intentions behind civil disobedience must be distinguished from similar actions that break the law. Whereas most criminal actions are undertaken with some selfish aim or desire for personal gain, civil disobedience is unique in that it is often taken with the goal of improving society. In a sense, there is some moral purpose or belief in justice behind an act of civil disobedience, a component usually not found in ordinary law breaking or criminal activity. Andrew Sabl, professor of Public Policy and Political Science at the University of California, Los Angeles, clarifies:[Ândrew Sabl, professor of Public Policy and Political Science at the University of California, Los Angeles, “Looking Forward to Justice: Rawlsian Civil Disobedience and its Non-Rawlsian Lessons,” The Journal of Political Philosophy: Volume 9, Number 3, 2001, pp. 307-330.]

So deﬁned, civil disobedience has two aspects that appear to be in tension. It is disobedience: deliberate violation of laws passed according to a society’s accustomed procedures. But it is also civil: those engaging in disobedience believe that the regime and the electorate that supports it are related to them as fellow citizens, or at least as potentially reasonable human beings capable of recognizing and acting on moral claims.

Moreover, it is important to clarify that most civil disobedients willingly accept the consequences or punishment that accompanies their unlawful behavior. Whereas criminals generally break the law with the intention of evading notice and/or avoiding legal consequences, civil disobedience seeks to bring public attention to certain laws or causes. Without the publicity element, one could not reasonably argue that breaking the law constitutes an appropriate method to cause change.

Another important distinction to note is that most civil disobedients are “scrupulously non-violent.” Although such an interpretation may lend some legitimacy to the use of civil disobedience, it is unclear whether or not civil disobedience may lead to violence (and/or other negative consequences). It is not entirely implausible to think that collective law breaking may sometimes lead to unintended consequences. These distinctions become important in delineating between the types of actions that the armative can advocate for or defend, and vice versa for the negative. With this particular definition of civil disobedience in mind, the core conflict of the resolution becomes clear. Proponents of civil disobedience highlight the potential for civil disobedience to serve a catalyst for positive social change. Opponents of civil disobedience, however, may argue that it ultimately undermines the rule of law and democracy through its illegality and may even have other negative side eects. The phrase “in a democracy” also provides an extra constraint on the resolution. Debaters will need to argue that civil disobedience is morally justified in a particular setting (although most debaters will likely justify or condemn the use of civil disobedience in general or under any type of government). The modified setting of the resolution also seems to hint at certain types of arguments that debaters on either side might try to make. The aforementioned examples of civil disobedience have largely taken place in democratic countries. In most of those cases, civil disobedience was also undertaken with the intention of promoting certain democratic ideals, such as social or political equality. The setting of a democracy may also aect the necessity of civil disobedience. Strictly speaking, civil disobedience is still a breach of the laws of society. As a result, it may be strategic for debaters to include a discussion of the principles or aims of democracy as they argue over the legitimacy of civil disobedience.

3.3 Framework Issues

The final key phrase in the resolution is “morally justified,” which brings us to a discussion of philosophical and framework issues in evaluating the debate over the legitimacy of civil disobedience. Aside from the resolutional and definitional issues discussed above, the philosophical framework is another essential component of a strong case for debaters arguing on either side. Following standard Lincoln-Douglas debate conventions, the framework generally involves two components: the “value” and the “value criterion.” Together, they form a “framework” by which the judge (and debaters) can use to evaluate the importance of dierent arguments in the round. The value is often some overarching (often philosophical) concept or goal that the debate is focused around. Examples of common values include “justice” or “morality.” The value criterion, on the other hand, is some standard or metric that determines whether or not one has achieved the value for the round. Examples of common criterions include “maximizing societal welfare,” or “respecting the rule of law.” A good rule of thumb to remember is that value criterions serve as an evaluative standard for adjudicating the debate. Arguments for or against

civil disobedience will fit under or “link” to certain criterions, and thereby allow the judge to make a decision about the moral justifiability of civil disobedience. For this particular resolution, there are multiple valid values that debaters could argue for as the starting point in justifying the framework for the round. By itself, the phrase “morally justified” brings up questions of justice and morality. While there may be relevant distinctions between the two, both justice and morality function as a system designed to guide the actions of individuals or governments. In the context of this resolution, however, the evaluative term “morally justified” does not simply ask for any type of justification, but rather a moral one. Given the modifier of “morally,” it seems more likely that the resolution concerns the actions of certain individual/s, since the act of civil disobedience is presumably carried out by the citizens within a democracy. The relevant question for both sides, then, is whether the act of civil disobedience can be justified under some conception of morality. Unlike other topics that include a prescriptive term such as “ought” or “should,” this resolution is descriptive in that it asks whether civil disobedience is morally justified. Rather than advocate for a specific course of action for a particular individual or group, debaters must simply evaluate the legitimacy or justifiability of civil disobedience as a general principle. It is also possible to take a dierent approach in constructing the framework for the round. As previously mentioned, the phrase “in a democracy” in the resolution seems to hint at a particular focus on the principles or goals of a democratic government. Although both morality and justice serve as codes of conduct, those rules are necessarily influenced by the relevant social and political context of the resolution. As such, it is not unreasonable for debaters to choose values that are more focused on aspects of the government, rather than individuals. For example, having a value of democracy or governmental legitimacy will certainly raise questions concerning the actions of individual citizens. The moral justifiability of civil disobedience will naturally have ties to political systems and political philosophy. Another approach debaters could take is exploring the large branch of philosophical literature commonly known as social contract theory, which discusses the obligations that exist between the government and its citizens. Many Enlightenment thinkers, such as John Locke and Jean-Jacques Rousseau, have written extensively about the nature of political life and the obligations that the result from the implicit “contract” between the government and the governed.[ˆCeleste Friend, Hamilton College, “Social Contract Theory,” IEP. http://www.iep.utm.edu/soc-cont/] Generally speaking, social contract theorists argue that people give up certain rights and freedoms to the government (i.e. the right to kill or steal) in return for other rights (i.e. the right to protection). Dierent authors will have distinct conceptions of what the social contract entails, so debaters should be precise in justifying and outlining exactly which kind of rights are relevant under their framework/criterion. For novice debaters, it is important to recognize that philosophical questions of morality and justice are primarily focused around the evaluative mechanism of the round, i.e. the value criterion and standard that the judge uses to determine whether civil disobedience

is “morally justified” or not. Rather than provide a technical definition of morality or justice from a dictionary (which are often vague and unwarranted), debaters should argue for a specific conception of justice, morality, or philosophical theory. We will discuss particular armative and negative positions and their corresponding frameworks below.

3.4 Armative Arguments

Most novice debaters will begin by arguing for some variation of a consequentialist or utilitarian framework, justifying civil disobedience through its potential benefits for a democratic society and its citizens. Under a consequentialist framework, the moral value of an action depends on the “goodness” or “badness” of the consequences (utilitarian frameworks hold that certain consequences, such as happiness or welfare, are valuable) that result from taking that action. For example, under a value criterion of “maximizing societal welfare,” the morally justifiability of civil disobedience would depend on the eects of civil disobedience on the welfare of society. Based on the intended aim of civil disobedience, it is unsurprising that most common armative debaters will argue that civil disobedience serves as a necessary check on governmental oppression or tyranny. Since civil disobedience is often used to protest potentially unjust laws or government policies, it may be justified based on the repeal of those policies. These arguments will fit under many consequentialist frameworks, with possible criterions such as “minimizing oppression,” “protecting human rights,” or “maximizing societal welfare.” Under a framework that evaluates the impacts or results of civil disobedience, the armative will have to demonstrate solvency in some form, or provide proof that civil disobedience will succeed and lead to the repeal of certain unjust laws. As earlier mentioned, history provides many examples of the success of civil disobedience, so these empirical arguments should not be dicult to find. Historian Howard Zinn, professor emeritus at Boston University, oers a few key examples:[ˆHoward Zinn, historian and professor emeritus at Boston University, “The Role of Civil Disobedience in Promoting US Democracy,” February 1999.]

The rights of working people in the US. . . were achieved by many decades of struggle, including violations of trespassing laws and other statutes. The occupation of factories in 1936 and 1937–the famous “sit-down strikes”–were illegal, but resulted in the recognition of unions and the betterment of working conditions. In more recent times, the civil disobedience of the civil rights movement of the 1960s is well known. Not only were local segregation laws violated, but when people engaged in “sit-ins” in 1960 and 1961 to protest racial segregation, they were in violation of recognized federal law. . . Also in the 1960s and 1970s, the movement against the Vietnam War involved countless acts of civil disobedience, but these violations were recognized as playing a crucial role in bringing that disastrous war to an end, and thus saving many lives.

With some additional empirical analysis, armative debaters should be able to leverage the historical success of civil disobedience to justify its illegality. In fact, Zinn concludes that the illegality of civil disobedience is not necessarily detrimental in and of itself. Rather, he argues that “[civil disobedience] is not to be punished because it is a technical violation of law, but to be honored as part of the American tradition, enhancing democracy.” Other sources provide even more support for the positive eect of civil disobedience in promoting democratic governance. A research paper by Francis Oor of Fayetteville State University argues that civil disobedience has the potential to develop a “culture” of democracy in numerous African states. Oor elaborates:[ˆFrancis Oor, Fayetteville State University, “Civil Disobedience, Moral Autonomy and the Quest for Sustainable Democratic Culture in Africa,” Journal of Sustainable Development in Africa, Volume 9, No. 1, 2007.]

In this paper, attempt has been made to reﬂect on the positive role civil disobedience can possibly play in the development and sustenance of a stable democratic culture in Africa. . . . The general indierence and refusal of citizens in most states in Africa to embark on civil disobedience. . . as well as the continuous intolerance and repression of acts of civil disobedience by governments in most of the democratic states in Africa. . . has forced most of their citizens to seek social fulﬁllment within groups not receptive to democratic ideals. . . Civil disobedience, the paper concludes, is a corrective mechanism informed by the individuals’ moral conviction on the inadequacy of rules and policies of government.

These arguments not only serve as a strong source of independent oense for the armative, but also implicitly answers many negative arguments about the value or important of the rule of law in a democracy. While upholding the rule of law is certainly important in a democracy, the implicit assumption is that the laws in place are just laws that protect the rights of all citizens. Novice debaters should recognize the inherent tradeos between the armative and negative side in the context of these stock arguments. In a vacuum, unjust laws are certainly undesirable, by deﬁnition; similarly, the rule of law is ideally a system that citizens ought to respect and abide by. It is up to the debaters to weigh between the relative advantages and disadvantages of either side. With regard to rule of law arguments, the armative will also have to answer the implicit objection that because citizens of a democracy have the ability to vote on laws and policies, there is no justiﬁcation for violating them. Under social contract theory frameworks, the negative could argue that citizens willingly, or tacitly give up their right to break the law by virtue of being a citizen. Peter Suber oers a few responses:[ˆPeter Suber, Research Professor of Philosophy at Earlham College, “Civil Disobedience,” 1999. http://legacy.earlham.edu/~peters/writing/civ-dis.htm]

But surprisingly many disobedient activists arm that theory, making this an objection they must answer. . . . Thoreau and Gandhi both reply. . . that those who object deeply to the injustices committed by the state can, and

should, relinquish the beneﬁts they receive from the state. . . in eect to revoke one’s tacit consent to obey the law. Another of Thoreau’s replies is that consent to join a society and obey its laws must always be express, and never tacit. But even for Locke, whose social contract theory introduces the term “tacit consent,” the theory permits disobedience, even revolution, if the state breaches its side of the contract. A reply from the natural law tradition, used by King, is that an unjust law is not even a law. . . Hence, consent to obey the laws does not extend to unjust laws.

3.5 Negative Arguments

The bulk of the negative’s arguments on the topic will likely revolve around the rule of law. Since many of armative arguments will implicitly answer arguments about the inherent value of obeying the law at all times, the negative should establish a strong philosophical framework in order to make their case. As mentioned in the discussion of armative arguments, the concept of consent is hugely controversial, especially within a democracy. If the negative can successfully demonstrate that citizens do, in fact, consent to the laws within a democracy, then arguments about the illegality of civil disobedience become much more persuasive. There are a couple of ways the negative can achieve this goal. Negative debaters can argue that, in a democracy, there exist certain channels by which citizens can express their disapproval with governmental policies. Citizens of a democracy have the ability to vote, both on legislation and representatives who they believe will represent their best interests. As a result, the negative can argue that citizens of a democracy must necessarily consent to the outcomes of the democratic process, since they are, by nature, representative of the voice of the people. Disobeying the law would only serve to undermine the voice of the majority and the established system of government, harming the legitimacy of the democratic process. Under the social contract, the negative can argue that consent is expressly given by virtue of participating in democratic processes such as elections. The mutual acceptance of governance thus grounds a prohibition on violations of the law, such as civil disobedience. Kimberley Brownlee, associate professor in legal and moral philosophy at the University of Warwick, explains:[ˆKimberley Brownlee, associate professor in legal and moral philosophy at the University of Warwick, “Civil Disobedience,” Stanford Encyclopedia of Philosophy, December 2009. http://plato.stanford.edu/entries/civil-disobedience/]

In the history of philosophy, many arguments have been given for legal obligation (often called ‘political obligation’). . . . [For example,] Socrates emphasises the importance of moral consistency; he would prefer to give up his life than to compromise his principles. . . . To escape without persuading the state would be to try to destroy it and its laws. . . . Socrates maintains that he has an obligation to follow the laws of Athens since he has tacitly

agreed to do so and since he enjoys the rights and beneﬁts of citizenship. . . . [C]ontemporary arguments for legal obligation. . . concern respectively consent, gratitude, promise-keeping, fairness, necessary institutions, and public good.

Another approach negative debaters can take to justify the value of the rule of law is to consider the assumptions behind common armative arguments. Proponents of civil disobedience generally argue that citizens need a method for combatting unjust laws. In response, the negative could argue that the armative cannot simply assert that laws are unjust; in a democracy, the citizenry (ideally) have a fair and equal opportunity to express their voice through legal channels and play a large (direct and indirect) role in shaping governmental policy. As a result, laws within a democracy cannot be unjust. In response to historical examples of oppressive policies such as disenfranchisement and slavery, the negative could argue that such policies were not enacted within a true democracy, and thus cannot warrant the necessity of civil disobedience. Naturally, these types of arguments also coincide with interpretational issues concerning the resolution, so debaters should be cognizant of potential theoretical objections. The negative can also choose to engage in debates over the consequentialist impacts of civil disobedience. While the aforementioned arguments about consent and democracy serve to justify the intrinsic value of the rule of law, it is nevertheless possible to argue that obeying the rule of law is instrumentally valuable for the sake of other utilitarian goods, such as the wellbeing of the community. Many opponents argue that civil disobedience is not only unjust or immoral based on its illegality, but also based on the detrimental eects that may result. Lewis Van Dusen argues that civil disobedience harms democracy by justifying intentional violations of the law, encouraging deﬁance of authority, and even violence. He writes:[ˆLewis H. Van Dusen Jr., “Civil Disobedience: Destroyer of Democracy,” American Bar Association Journal, 1969. http://www.jstor.org/stable/25724673]

Law violations, even for ends recognized as laudable, are not only assaults on the rule of law, but subversions of the democratic process. The disobedient act. . . courts violence, and even the most careful and limited use of nonviolent acts of disobedience may help sow the dragon-teeth of civil riot. Civil disobedience is the progenitor of disorder. . . it has the eect of inducing others to engage in dierent forms of law breaking. . . the most patent lesson of civil disobedience is not so much nonviolence of action as deﬁance of authority.

Lastly, as an alternative to civil disobedience, the negative can defend certain legal channels that allow citizens to voice their disapproval of governmental policies. If the negative can successfully prove that legal alternatives exist and have a reasonable chance of succeeding, then civil disobedience would be largely unnecessary. On the topic of legal channels, Van Dusen points out that civil disobedience not only undermines the rule of law, but also ends up infringing upon the rights of innocents. As such, legal channels are the only justiﬁable method of dissent. Van Dusen notes:[ˆIbid.]

Our Bill of Rights guarantees wide opportunities to use mass meetings, public parades, and organized demonstrations to stimulate sentiment, to dramatize issues, and to cause change. . . . These rights are subject to limitations of time and place so as to secure the rights of others. When militant students storm a college president’s oce to achieve demands, when certain groups plan rush hour car stalling to protest discrimination in employment, these are not dissent, but a denial of rights to others.

The armative will likely argue that legal channels are limited and/or ineectual, so both debaters will need to be prepared to weigh between the relevant tradeos that exist concerning eectiveness and immediacy.

3.6 Full Text of Evidence (in order)

Definition of civil disobedience. Suber 99 Peter Suber, Research Professor of Philosophy at Earlham College, “Civil Disobedience,” 1999. http://legacy.earlham.edu/~peters/writing/civ-dis.htm Civil disobedience is a form of protest in which protestors deliberately violate a law. Classically, they violate the law they are protesting, such as segregation or draft laws, but sometimes they violate other laws, which they find unobjectionable, such as trespass or trac laws. Most activists who perform civil disobedience are scrupulously non-violent, and willingly accept legal penalties. The purpose of civil disobedience can be to publicize an unjust law or a just cause; to appeal to the conscience of the public; to force negotiation with recalcitrant ocials; to “clog the machine” (in Thoreau’s phrase) with political prisoners; to get into court where one can challenge the constitutionality of a law; to exculpate oneself, or to put an end to one’s personal complicity in the injustice which flows from obedience to unjust law —or some combination of these. While civil disobedience in a broad sense is as old as the Hebrew midwives’ defiance of Pharaoh, most of the moral and legal theory surrounding it, as well as most of the instances in the street, have been inspired by Thoreau, Gandhi, and King. In this article we will focus on the moral arguments for and against its use in a democracy. Definition of civil disobedience. Sabl 01 Andrew Sabl, professor of Public Policy and Political Science at the University of California, Los Angeles, “Looking Forward to Justice: Rawlsian Civil Disobedience and its Non-Rawlsian Lessons,” The Journal of Political Philosophy: Volume 9, Number 3, 2001, pp. 307-330. So defined, civil disobedience has two aspects that appear to be in tension. It is disobedience: deliberate violation of laws passed according to a society’s accustomed procedures. But it is also civil: those engaging in disobedience believe that the regime and the electorate that supports it are related to them as fellow citizens, or at least as potentially reasonable human beings capable of recognizing and acting on moral claims.

The disobedients try to reflect this belief in their actions by avoiding not only violence but also insults and verbal expressions of hatred that would endanger the chances of future cooperation. This civility does not imply a belief that the current behavior of constituted authorities manifests just dispositions or a sucient disposition to be fair. Those who practice civil disobedience generally argue that the injustice they are protesting is not trivial but severe; they regard the laws or practices being contested as direct and open assaults on the human dignity and equal citizenship of those whom the laws and practices oppress. Civil disobedience is part of the American tradition and upholds democracy. Zinn 99 Howard Zinn, historian and professor emeritus at Boston University, “The Role of Civil Disobedience in Promoting US Democracy,” February 1999. There is a long and honorable tradition in the US of citizen actions of civil disobedience– that is, of technical violations of law to serve important social values. Either at the time these actions took place, or later, in the judgment of history, they became recognized as justified because they served a vital purpose for society. What follows is a list–far from complete–of such events: 1. The acts of civil disobedience in the period preceding the Revolutionary War are quite well known, but often ignored when contemporary acts are judged, not by standards of justice, but by narrow technical standards of war. The various oppressive British laws were disobeyed by colonists, in protest against the harshness of British rule: there were demonstrations against the Stamp Act of 1765, there were violations of the Tea Act, including the dumping of tea in Boston Harbor, known as the Boston Tea Party. 2. The Fugitive Slave Act of 1793, requiring the return of escaped slaves to their masters, was violated repeatedly. In 1830, for instance, an escaped slave brought into federal court was rescued by anti-slavery people and set free. The people who committed that act of civil disobedience were not prosecuted, despite their violation of the law, because it was recognized that the moral end of their action superseded the technicality of breaking the law. 3. There were many violations of the Fugitive Slave Law of 1850, in which groups of white and black abolitionists rescued, or attempted to rescue, escaped slaves. They took place in Christiana, Pennsylvania, Syracuse, New York, Boston, Massachusetts, and Oberlin, Ohio, among other places. In several of these instances, juries refused to find the defendants guilty, judging their technical violation of the law to be superseded by a higher moral objective. 4. The rights of working people in the US–the eight hour day, decent wages, safe working conditions–were achieved by many decades of struggle, including violations of trespassing laws and other statutes. The occupation of factories in 1936 and 1937–the famous “sit-down strikes”–were illegal, but resulted in the recognition of unions and the betterment of working conditions. 5. In more recent times, the civil disobedience of the civil rights movement of the 1960s is well known. Not only were local segregation laws violated, but when people engaged in “sit-ins” in 1960 and 1961 to protest racial segregation, they were in violation of recognized federal law, as enunciated in the Civil Rights Cases of 1883. The nation soon recognized that these violations of law were honorable, and that punishment of people seeking to support the principles of the Declaration of Independence was wrong. 6. Also in the 1960s and 1970s,

the movement against the Vietnam War involved countless acts of civil disobedience, but these violations were recognized as playing a crucial role in bringing that disastrous war to an end, and thus saving many lives. In short, American history sustains the idea that civil disobedience–the violation of laws on behalf of human rights, against starvation and sickness–should be distinguished from criminal disobedience, where a law is violated for individual gain. Civil disobedience therefore is not to be punished because it is a technical violation of law, but to be honored as part of the American tradition, enhancing democracy. Civil disobedience is key to democratic stability—empirics prove. Oor 07 Francis Oor, Fayetteville State University, “Civil Disobedience, Moral Autonomy and the Quest for Sustainable Democratic Culture in Africa,” Journal of Sustainable Development in Africa, Volume 9, No. 1, 2007. In this paper, attempt has been made to reflect on the positive role civil disobedience can possibly play in the development and sustenance of a stable democratic culture in Africa. The paper took a preview of the socio-political conditions in Africa since the early 70s, with a view to showing how Africans have adjusted to situations that call for protests and how this general indierence and apathy has contributed to the socio-political and economic crises presently threatening democratic experiments on the continent. The general indierence and refusal of citizens in most states in Africa to embark on civil disobedience even when prevailing circumstances have been calling for such acts, as well as the continuous intolerance and repression of acts of civil disobedience by governments in most of the democratic states in Africa, which has forced most of their citizens to seek social fulfillment within groups not receptive to democratic ideals, are what the paper identified as greater threats to democracy on the continent today. For states in Africa therefore to sustain their present democratic structures, both the citizens and governments must cultivate the right attitudes toward civil disobedience as one of the chief instruments for actualizing the right of dissent. Civil disobedience, the paper concludes, is a corrective mechanism informed by the individuals’ moral conviction on the inadequacy of rules and policies of government. The basis for such conviction is provided by the individuals’ conscience. Since political oce holders in a democracy exercise power in trust for the individuals who voted for them, the individuals’ conscience, the paper concludes, will continue to remain a major source of challenge to all those who exercise political power under a democratic arrangement. Such challenges are expressed through dierent ways, chief among which is civil disobedience. The social contract justifies civil disobedience. Consent does not extend to unjust laws. Suber 99 Peter Suber, Research Professor of Philosophy at Earlham College, “Civil Disobedience,” 1999. http://legacy.earlham.edu/~peters/writing/civ-dis.htm Obviously this objection can be evaded by anyone who denies the social contract theory. But surprisingly many disobedient activists arm that theory, making this an objection they must answer. Socrates makes this objection to Crito who is encouraging him to

disobey the law by escaping from prison before he is executed. Thoreau and Gandhi both reply (as part of larger, more complex replies) that those who object deeply to the injustices committed by the state can, and should, relinquish the benefits they receive from the state by living a life of voluntary simplicity and poverty; this form of sacrifice is in eect to revoke one’s tacit consent to obey the law. Another of Thoreau’s replies is that consent to join a society and obey its laws must always be express, and never tacit. But even for Locke, whose social contract theory introduces the term “tacit consent,” the theory permits disobedience, even revolution, if the state breaches its side of the contract. A reply from the natural law tradition, used by King, is that an unjust law is not even a law, but a perversion of law (Augustine, Aquinas). Hence, consent to obey the laws does not extend to unjust laws. A reply made by many Blacks, women, and native Americans is that the duty to obey is a matter of degree; if they are not fully enfranchised members of American society, then they are not fully bound by its laws. There are moral reasons that dictate respect for the rule of law. Brownlee 09 Kimberley Brownlee, associate professor in legal and moral philosophy at the University of Warwick, “Civil Disobedience,” Stanford Encyclopedia of Philosophy, December 2009. http://plato.stanford.edu/entries/civil-disobedience/ The task of defending civil disobedience is commonly undertaken with the assumption that in reasonably just, liberal societies people have a general moral obligation to follow the law. In the history of philosophy, many arguments have been given for legal obligation (often called ‘political obligation’). Plato’s Socrates, in the Crito, oers at least two lines of argument for legal obligation in order to defend his decision not to escape from prison. First, Socrates emphasises the importance of moral consistency; he would prefer to give up his life than to compromise his principles. A basic principle for Socrates is that a person must never do wrong or injury in return for wrong. To escape without persuading the state would be to try to destroy it and its laws. Second, Socrates maintains that he has an obligation to follow the laws of Athens since he has tacitly agreed to do so and since he enjoys the rights and benefits of citizenship. This voluntarist line of argument is also espoused later by John Locke, who argues that we have a duty to follow the law only when we have consented to its rule. This view contrasts with the non-voluntarist position of David Hume, according to which the obligation to follow the law is rooted in the value of government under law. From these two traditions rise the principal contemporary arguments for legal obligation, which concern respectively consent, gratitude, promise-keeping, fairness, necessary institutions, and public good. Democracy requires the rule of law. Van Dusen 69 Lewis H. Van Dusen Jr., “Civil Disobedience: Destroyer of Democracy,” American Bar Association Journal, 1969. http://www.jstor.org/stable/25724673 Law violations, even for ends recognized as laudable, are not only assaults on the rule of law, but subversions of the democratic process. The disobedient act of conscience does do not ennoble democracy; it erodes it. First, it courts violence, and even the most careful and limited use of nonviolent acts of disobedience may help sow the dragon-teeth of civil

riot. Civil disobedience is the progenitor of disorder, and disorder is the sire of violence. Second, the concept of civil disobedience does not invite principles of general applicability. If the children of light are morally privileged to resist particular laws on grounds of conscience, so are the children of darkness. Former Deputy Attorney General Burke Marshall said: “If the decision to break the law really turned on individual conscience, it is hard to see in law how [the civil rights leader] is better othan former Governor Ross Barnett of Mississippi who also believed deeply in his cause and was willing to go to jail.” Third, even the most noble act of civil disobedience assaults the rule of law. Although limited as to method, motive and objective, it has the eect of inducing others to engage in dierent forms of law breaking characterized by methods unsanctioned and condemned by classic theories of law violation. Unfortunately, the most patent lesson of civil disobedience is not so much nonviolence of action as deﬁance of authority. Dissent must be voiced through legal channels because civil disobedience violates human rights. Van Dusen 69 Lewis H. Van Dusen Jr., “Civil Disobedience: Destroyer of Democracy,” American Bar Association Journal, 1969. http://www.jstor.org/stable/25724673 Our Bill of Rights guarantees wide opportunities to use mass meetings, public parades, and organized demonstrations to stimulate sentiment, to dramatize issues, and to cause change. The Washington freedom march of 1963 was such a call for action. But the rights of free expression cannot be mere force cloaked in the garb of free speech. As the courts have decreed in labor cases, free assembly does not mean mass picketing or sit-down strikes. These rights are subject to limitations of time and place so as to secure the rights of others. When militant students storm a college president’s oce to achieve demands, when certain groups plan rush hour car stalling to protest discrimination in employment, these are not dissent, but a denial of rights to others. Neither is it the lawful use of mass protest, but rather the unlawful use of mob power.

3.7 Additional Evidence

Deﬁnition of civil disobedience Stuart M. Brown, chairman of the department of philosophy at Cornell University, “Civil Disobedience” Journal of Philosophy, 1961. pp. 670-679 Acts of civil disobedience may be distinguished from typical cases of crime in two ways. First, they are characterized by publicity, whereas typical cases of crime are characterized by concealment. An act of civil disobedience breaches the law openly in the course of a public protest against some oending statute, decree, verdict, or practice. The breach may be planned or not, it may or may not be a necessary part of the protest, but it must be open. People demonstrating against a court order to desegregate the school system may not plan to disturb the peace, and disturbing it may in fact harm their cause. Nonetheless, if they do disturb it and openly defy an order to disperse, they have

committed acts of civil disobedience. The breach may, of course, be a necessary and carefully planned part of the protest. One might protest a new parking ordinance by an organized campaign of saturated, overtime parking: the cars left locked up, in gear and braked, with appropriate posters pasted on the inside of each windshield. But it is essential that the breach be open and occur in the course of the protest. If one has to steal money in order to pay for posters, the theft is not civil disobedience. Or if one has to leave a car parked overtime in order to engage in a sit-in, the overtime parking is not civil disobedience. In contrast, typical cases of disobeying the laws are characterized by concealment. One main point of a system of legal penalties is deterrence. The penalties operate to prevent law-breaking in circumstances where our normal habits of obedience or conformity and our sense of obligation prove insucient. If these penalties have the necessary deterrent eect, as they must generally in any viable system, they also have the eect of concealment. In order to avoid the penalty for his crime, the criminal attempts to prevent its discovery. This attempt to conceal occurs generally even when the criminal believes his crime to have been justiﬁed. Indeed, the fact that one believes oneself justiﬁed in having disobeyed the law will tend to make the penalty less rather than more acceptable.

3.7.1 Armative Cards

If legal channels are only open in theory, but not in practice, then civil disobedience is necessary. Suber 99 Peter Suber, Research Professor of Philosophy at Earlham College, “Civil Disobedience,” 1999. http://legacy.earlham.edu/~peters/writing/civ-dis.htm Thoreau, who performed civil disobedience in a democracy, argued that sometimes the constitution is the problem, not the solution. Moreover, legal channels can take too long, he argued, for he was born to live, not to lobby. His individualism gave him another answer: individuals are sovereign, especially in a democracy, and the government only holds its power by delegation from free individuals. Any individual may, then, elect to stand apart from the domain of law. Martin Luther King, Jr., who also performed civil disobedience in a democracy, asks us to look more closely at the legal channels of change. If they are open in theory, but closed or unfairly obstructed in practice, then the system is not democratic in the way needed to make civil disobedience unnecessary. Other activists have pointed out that if judicial review is one of the features of American democracy which is supposed to make civil disobedience unnecessary, then it ironically subverts this goal; for to obtain standing to bring an unjust statute to court for review, often a plaintimust be arrested for violating it. Finally, the Nuremberg principles require disobedience to national laws or orders which violate international law, an overriding duty even in (perhaps especially in) a democracy. Legal channels can never be exhausted, so civil disobedience is necessary to check ineective legal options.

Suber 99 Peter Suber, Research Professor of Philosophy at Earlham College, “Civil Disobedience,” 1999. http://legacy.earlham.edu/~peters/writing/civ-dis.htm Legal channels can never be “exhausted”. Activists can always write another letter to their congressional delegation or to newspapers; they can always wait for another election and cast another vote. But justice delayed, King proclaimed, is justice denied. After a point, he argued, patience in fighting an injustice perpetuates the injustice, and this point had long since been passed in the 340 year struggle against segregation in America. In the tradition which justifies civil disobedience by appeal to higher law, legal niceties count for relatively little. If God trumps Caesar to justify disobedience to unjust law, then God can trump Caesar to permit this disobedience sooner rather than later. In this tradition, A.J. Muste argued that to use legal channels to fight unjust laws is to participate in an evil machine, and to disguise dissent as conformity; this in turn corrupts the activist and discourages others by leading them to underestimate the numbers of their congeners. Civil disobedience can avoid deontological objections about universalizability. Suber 99 Peter Suber, Research Professor of Philosophy at Earlham College, “Civil Disobedience,” 1999. http://legacy.earlham.edu/~peters/writing/civ-dis.htm The first reply, oered in seriousness by Thoreau and Gandhi, is that anarchy is not so bad an outcome. In fact, both depict anarchy as an ideal form of society. However, both are willing to put othe anarchical utopia for another day and fight in the meantime for improved laws; consequently, this strand of their thinking is often overlooked. Another reply is a variation on the first. Anarchy may be bad, but despotism is worse (Locke instead of Hobbes). If we face an iniquitous law, then we may permissibly disobey, and risk anarchy, in order to resist the tendency toward the greater evil of despotism. A.J. Muste extended this line of thinking to turn the slippery slope objection against itself. If we let the state conscript young men against their wills to fight immoral wars, then what will the state do next? For Muste, conscription puts us on a slippery slope toward despotism, and obedience would bring us to the bottom. Utilitarians observe that disobedience and obedience may both be harmful. The slippery slope objection falsely assumes that the former sort of harm always outweighs the latter. In the case of an iniquitous law, the harm of disobedience can be the lesser evil. This utilitarian reply is sometimes found to coexist with a complementary deontological reply, for example in Thoreau: one simply must not lend one’s weight to an unjust cause. Ronald Dworkin replies, in eect, that the descriptive version of the argument is false and the normative version irrelevant. There is no evidence that civil disobedience, even when tolerated by legal ocials, leads to an increase in lawlessness. Moreover, rights trump utility. Since (for Dworkin) there is a strong right to disobey certain kinds of unjust laws, and since the slippery slope argument points only to the disutility of disobedience, this is a case of a right in conflict with utility; hence the right to disobey must prevail. Civil disobedience is justified only as a last resort. Brownlee 09 Kimberley Brownlee, associate professor in legal and moral philosophy at

the University of Warwick, “Civil Disobedience,” Stanford Encyclopedia of Philosophy, December 2009. http://plato.stanford.edu/entries/civil-disobedience/ On the assumption that people have a pro tanto obligation to follow the law (or at least those laws that are not excessively unjust), it follows that people then have a pro tanto obligation to use the proper legal channels of political participation before resorting to illegal methods. On this view, civil disobedience can be justified only when employed as a last resort. But since causes defended by a minority are often those most opposed by persons in power, legal channels may be less than wholly eective. Moreover, it is unclear when a person could claim to have reached the situation of last resort; she could continue to use the same tired legal methods without end. To ward osuch challenges, Rawls suggests that, if past actions have shown the majority to be immovable or apathetic, then further attempts may reasonably be thought fruitless and one may be confident one’s civil disobedience is a last resort. Civil disobedience serves as a check on government tyranny. Thoreau 1849 Henry David Thoreau, “Civil Disobedience,” The Thoreau Reader, 1849. All men recognize the right of revolution; that is, the right to refuse allegiance to, and to resist, the government, when its tyranny or its ineciency are great and unendurable. But almost all say that such is not the case now. But such was the case, they think, in the Revolution of ‘75.12 If one were to tell me that this was a bad government because it taxed certain foreign commodities brought to its ports, it is most probable that I should not make an ado about it, for I can do without them. All machines have their friction; and possibly this does enough good to counterbalance the evil. At any rate, it is a great evil to make a stir about it. But when the friction comes to have its machine, and oppression and robbery are organized, I say, let us not have such a machine any longer. In other words, when a sixth of the population of a nation which has undertaken to be the refuge of liberty are slaves, and a whole country is unjustly overrun and conquered by a foreign army, and subjected to military law, I think that it is not too soon for honest men to rebel and revolutionize. What makes this duty the more urgent is the fact, that the country so overrun is not our own, but ours is the invading army. Civil disobedience is necessary because no legislation is perfect. Thoreau 1849 Henry David Thoreau, “Civil Disobedience,” The Thoreau Reader, 1849. No man with a genius for legislation has appeared in America. They are rare in the history of the world. There are orators, politicians, and eloquent men, by the thousand; but the speaker has not yet opened his mouth to speak, who is capable of settling the much-vexed questions of the day. We love eloquence for its own sake, and not for any truth which it may utter, or any heroism it may inspire. Our legislators have not yet learned the comparative value of free-trade and of freedom, of union, and of rectitude, to a nation. They have no genius or talent for comparatively humble questions of taxation and finance, commerce and manufactures and agriculture. If we were left solely to the wordy wit of legislators in Congress for our guidance, uncorrected by the seasonable experience and the eectual complaints of the people, America would not long retain

her rank among the nations. For eighteen hundred years, though perchance I have no right to say it, the New Testament has been written; yet where is the legislator who has wisdom and practical talent enough to avail himself of the light which it sheds on the science of legislation?

3.7.2 Negative Cards

Civil disobedience hurts democratic legitimacy and promotes anarchy. Van Dusen 69 Lewis H. Van Dusen Jr., “Civil Disobedience: Destroyer of Democracy,” American Bar Association Journal, 1969. http://www.jstor.org/stable/25724673 There are many civil rights leaders who show impatience with the process of democracy. They rely on the sit-ins, boycott or mass picketing to gain speedier solutions to the problems that face every citizen. But we must realize that the legitimate pressures that won concessions in the past can easily escalate into the illegitimate power plays that might extort demands in the future. The victories of these civil rights leaders must not shake our confidence in the democratic procedures, as the pressures of demonstration are desirable only if they take place within the limits allowed by law. Civil rights gains should continue to be won by the persuasion of Congress and other legislative bodies and by the decision of courts. Any illegal entreaty for the rights of some can be an injury to the rights of others, for mass demonstrations often trigger violence. Those who advocate taking the law into their own hands should reflect that when they are disobeying what they consider to be an immoral law, they are deciding on an immoral course. Their answer is that the process for democratic relief is too slow, that only mass confrontation can bring immediate action, and that any injuries are the inevitable cost of the pursuit of justice. Their answer is, simply put, that the end justifies the means. It is this justification of any form of demonstration as a form of dissent that threatens to destroy a society built on the rule of law. Taking the law into one’s own hands undermines the democratic process. Van Dusen 69 Lewis H. Van Dusen Jr., “Civil Disobedience: Destroyer of Democracy,” American Bar Association Journal, 1969. http://www.jstor.org/stable/25724673 There is no man who is above the law, and there is no man who has a right to break the law. Civil disobedience is not above the law, but against the law. When the civil disobedient disobeys one law, he invariably subverts all law. When the civil disobedient says that he is above the law, he is saying that democracy is beneath him. His disobedience shows a distrust for the democratic system. He is merely saying that since democracy does not work, why should he help make it work. Thoreau expressed well the civil disobedient’s disdain for democracy: As for adopting the ways which the state has provided for remedying the evil, I know not of such ways. They take too much time and a man’s life will be gone. I have other aairs to attend to. I came into this world not chiefly to make this a good place to live in, but to live in it, be it good or bad. Thoreau’s position is not only morally irresponsible but politically reprehensible. When

citizens in a democracy are called on to make a profession of faith, the civil disobedients oer only a confession of failure. Tragically, when civil disobedients for lack of faith abstain from democratic involvement, they help attain their own gloomy prediction. They help create the social and political basis for their own despair. By foreseeing failure, they help forge it. If citizens rely on antidemocratic means of protest, they will help bring about the undemocratic result of an authoritarian or anarchic state. How far demonstrations properly can be employed to produce political and social change is a pressing question, particularly in view of the provocations accompanying the National Democratic Convention in Chicago last August and the reaction of the police to them. A line must be drawn by the judiciary between the demands of those who seek absolute order, which can lead only to a dictatorship, and those who seek absolute freedom, which can lead only to anarchy. The line, wherever it is drawn by our courts, should be respected on the college campus, on the streets, and elsewhere. Martin Luther King should not be considered a true civil disobedient. Van Dusen 69 Lewis H. Van Dusen Jr., “Civil Disobedience: Destroyer of Democracy,” American Bar Association Journal, 1969. http://www.jstor.org/stable/25724673 But the conscientious law breaking of Socrates, Gandhi, and Thoreau is to be distinguished from the conscientious law testing of Martin Luther King, Jr. , who was not a civil disobedient. The civil disobedient withholds taxes or violates state laws knowing he is legally wrong, but believing he is morally right. While he wrapped himself in the mantle of Gandhi and Thoreau, Dr. King led his followers in violation of state laws he believed were contrary to the Federal Constitution. But since Supreme Court decisions in the end generally upheld his many actions, he should not be considered a true civil disobedient.

Nick currently coaches for his alma mater, Hopkins High School in Minnesota. As a coach his students have qualiﬁed to the TOC, Nﬂ Nationals, & Minnesota State Tournament. His students consistently clear each year at numerous national tournaments including: Valley, Minneapple, Blake, & Dowling Catholic and have participated in late elimination rounds at tournaments such as Stanford, Iowa Caucus, & Omaha Westside. His students have participated in the Harvard & Valley Sophomore round robins. He currently attends the University of Minnesota where he is studying political science & philosophy with a focus in contemporary political theory.

4.1 Introduction

This is a topic analysis for the National Speech and Debate Association Novice Lincoln- Douglas topic, resolved: Civil disobedience in a democracy is morally justiﬁed. Civil disobedience has been a frequently exercised practice in United States history, from the recent Occupy Wall Street movement to dumping tea in the Boston Harbor. The question of whether there can be moral grounds for refusing to comply with laws that are contrary to a person’s moral convictions has been heavily debated for a long period of time. Discussion of civil disobedience can be seen far back in history, like with Sophocles’ tragedy Antigone from Ancient Greece, which is a story about the ruler of Thebes refusing Antigone the ability to bury a body that Antigone feels morally compelled to bury. This topic analysis will be divided into three main sections. The ﬁrst section will be a discussion of how to interpret the particular wording of the resolution. The next section will be a discussion of armative positions and suggestions of potential frameworks for said positions. The last section will go over some prominent negative positions in the topic literature and suggestions for frameworks that synergize well with these negative positions.1

1The full text of the evidence used throughout this topic analysis is available in the evidence section of this book.

4.2 Interpretations

4.2.1 Civil Disobedience

Most basically, civil disobedience is an act of protest, but one that is distinct from other forms of protest in a number of ways. Bedau explains a few of the dierences:

There would clearly be something odd about a policeman’s reporting that he had surprised several persons in the act of committing civil disobedience. . . [T]his would suggest. . . that these illegal acts were an embarrassment to the dissenter and that he might wish them to be kept secret from the. . . [I]t is essential that the government know of his act if it is intended that the government shall change its policy because of the act. . . More fundamental still is the fact that the dissenter views what he does as a civic act, an act that properly belongs to the public life of the community. This derives from the fact that he thinks of himself as acting to thwart some law, policy, etc., that deviates from the true purpose of government as he sees it.2

Bedau continues:

Not every illegal act of public resistance to government. . . is an act of civil disobedience. Anytime the dissenter resists government by deliberately destroying property, endangering life and limb, inciting to riot (e.g., sabotage, assassination, street ﬁghting), he has not committed civil disobedience. The pun on ‘civil’ is essential; only nonviolent acts thus can qualify.3

There are a number of things that one can interpret from these two quotes and the first of which is that civil disobedience requires the violation of law. It would not be disobedient to protest in a way that is consistent with law, so the very name ‘civil disobedience’ suggests that the law has been somehow broken in the processes of protest. So in order to be topical the armative has to defend that breaking the law can be morally justified. Conversely, if the negative is able to demonstrate that one cannot ever be morally justified in breaking the law then they have suciently demonstrated that civil disobedience is not morally justified. The next thing that can be interpreted from Bedau is that in order for an act to be considered civil disobedience it must be committed openly and not in secret. This is pretty widely accepted in the literature although there are a few authors that would disagree. The main idea is that if one is violating the law due to their moral convictions then it should not be done in hiding, as though it were some dirty or shameful thing. So to be civilly disobedient one must make public their violation of the law.

2Bedau, Hugo. “On Civil Disobedience”, The Journal of Philosophy, Vol. 58, No. 21, December 27-29, 1961, pp. 655-656 http://www.jstor.org/stable/2023542 3Bedau, Hugo. “On Civil Disobedience”, The Journal of Philosophy, Vol. 58, No. 21, December 27-29, 1961, pp. 656 http://www.jstor.org/stable/2023542

Lastly, a component of civil disobedience that is almost universally accepted is that the act must be nonviolent. Were the act to entail some sort of harm to another’s limb or property then the act would no longer be civil so it wouldn’t make sense to call such an act civilly disobedient. There is some disagreement in the literature as to whether nonviolent acts that end up inciting future violence still constitute civil disobedience, but the majority of the literature seems to indicate that so long as the initial act is peaceful then it can be deemed an act of civil disobedience.

4.2.2 Democracy

Democracy, most basically, is a system of government with an emphasis on rule by the people. Power typically rests in the hands of the people and is exercised frequently in daily life. Diamond explains that democracy is:

A political system for choosing and replacing the government through free and fair elections. . . the active participation of the people, as citizens, in politics and civic life. . . . protection of the human rights of all citizens. . . a rule of law, in which the laws and procedures apply equally to all citizens.4

The specification of democracy is really important to consider when debating this resolution. Arguments about civil disobedience being necessary due to the government being super oppressive and totalitarian probably aren’t topical simply because that government likely is not a true democracy. This prevents the armative picking the most extreme of circumstances and making it so the negative must defend that it is morally unjustified to be civilly disobedient in the face of a potential genocidal law/policy or something similarly abhorrent. How far the argument that the government in question is not actually democratic due to some failure of it is important to consider. There are plenty of examples of governments that are, on balance, democratic but still had major flaws in the law that may have justified the use of civil disobedience. So the most extreme instances of civil disobedience being necessary, like in instances of not being complicit in atrocities, probably don’t apply to the resolution there are certainly instances of democracies that have bad laws that may or may not morally justify citizens being civilly disobedient.

4.2.3 Morally Justiﬁed

Morality is usually interpreted as meaning a system of right conduct or, put more simply, a system that is meant as a guide to good action. In Lincoln-Douglas the framework will typically articulate some sort of moral or ethical system that is used to determine what an actor (whether it be individuals, governments, societies, etc.) ought to do. For example, consequentialism is a moral system, which says that acts that overall promote

4Diamond, Larry. “What is Democracy”, Lecture at Hilla University for Humanistic Studies, Jan 21, 2004, web.stanford.edu/~ldiamond/iraq/WhaIsDemocracy012004.htm.

the best consequences (i.e. the best outcomes) are what an actor morally ought to do or are what an actor would be morally justified in doing. So to say that something is morally justified is to say that given a particular moral system that this something meets the necessary conditions for justification. Using the above example of consequentialism, an armative might try to demonstrate that the use of civil disobedience in a democracy promotes the best outcomes and therefore is morally justified according to consequentialism (should consequentialism be the best/proper moral system). This means that being able to defend whatever ethical system you oer in your framework is imperative, not only in Lincoln-Douglas generally speaking, but also especially on this particular topic. Being able to set the conditions for what constitutes a morally justified act will give you a big leg up in the debate as to whether civil disobedience in a democracy is morally justified. It is always better to have the round decided under your interpretation of the resolution, rather than the interpretation oered by your opponent.

4.3 Armative Positions

4.3.1 Consequentialism

As mentioned above, a large number of moral theories fall under the broad umbrella of consequentialism. A consequentialist framework says that acts which promote the best outcomes are morally justiﬁed. So a consequentialist armative will argue that civil disobedience in a democracy, as opposed to a democracy without civil disobedience, is the ideal way to set up society. Civil disobedience, especially in the United States, has a long history of promoting and accelerating the pursuit of social justice. Starr outlines a few of these instances:

The Boston Tea Party – citizens of the colony of Massachusetts trespassed on a British ship and threw its cargo (tea from England) overboard, rather than be forced to pay taxes without representation to Britain. This was one of the many acts of civil disobedience leading to the War for Independence. . . Anti-war movements have been a part of U.S. history since Thoreau went to jail for refusing to participate in the U.S. war against Mexico in 1849. . . The Women’s Surage Movement lasted from 1848 until 1920, when thousands of courageous women marched in the streets, endured hunger strikes, and submitted to arrest and jail in order to gain the right to vote. . . Abolition of slavery – including Harriet Tubman’s underground railway, giving sanctuary, and other actions which helped to end slavery. . . The Civil Rights Movement, led by Martin Luther King, Jr. and others, included sit-ins and illegal marches which weakened segregation in the south.5

5Starr, Kayla. “The Role of Civil Disobedience in Democracy”, Civil Liberties, summer 1998, www.civilliberties.org/sum98role.html

The list that Starr oers continues for a while, but the gist is that civil disobedience is an excellent tool for citizens of a democracy to challenge and disrupt patterns of oppression through open and peaceful defiance of seemingly unjust laws. Counterfactually speaking, without civil disobedience the United States may have been a significantly less welcoming and free nation that it is today. This is not to say that the United States is perfect right now, I simply mean to say that things are much better now than they were when these various acts of civil disobedience was committed. One important thing to know when running consequentialist positions is to understand the dierence between act and rule consequentialism. Act consequentialism says that individual actions should be evaluated to determine whether they promote the best consequence. Rule consequentialism, on the other hand, says that the morally justified thing to do is that which, as a rule, has the best tendency to promote better outcomes. It would seem like a rule consequentialist framework on this topic would make a little more sense for armatives because that allows them to argue that, generally speaking, having some civil disobedience in a society is preferable to having no civil disobedience.

4.3.2 Social Contract

The social contract is a set of theories that attempt to explain why we have a government in the ﬁrst place. This basic idea of these theories, although they dier according to the particular social contract theorist, is that we submit to the authority of the government to avoid the state of nature (the state of nature being a society without a government). The social contract is the basic and original agreement between people and the state. The people restrict their possible range of actions according to the mandates of the state and for this the state ensures protection of basic rights/liberties that would otherwise be unsecured in the state of nature. So the social contract outlines the respective duties of citizens and of the state. A social contract armative would say that in instances where the state fails to live up to its end of the social contract individuals are morally justiﬁed in violating the law via civil disobedience. Gray and Suber expand on this argument:

[F]or Locke, whose social contract theory introduces the term “tacit consent,” the theory permits disobedience, even revolution, if the state breaches its side of the contract. A reply from the natural law tradition, used by King, is that an unjust law is not even a law, but a perversion of law (Augustine, Aquinas). Hence, consent to obey the laws does not extend to unjust laws.6

So when the state fails to live up to its end of the social contract individuals are no longer bound to obey the law since the agreement is no longer valid. Thus, according to a social contract armative, civil disobedience is morally justiﬁed in a democracy when

6Gray, Christopher & Suber, Peter. “Philosophy of Law: An Encyclopedia”, Garland Pub. Co, 1999, http://dash.harvard.edu/bitstream/handle/1/4725008/suber_civ-dis.htm?sequence=1

the government fails to secure one or more of the basic rights/liberties that the state is contractually bound to provide to its citizens.

4.3.3 Deﬁciencies of Democracy

Paying close attention to the nuances of democracy can be really beneficial on both sides of the resolution. As the armative, you can argue that there is some sort of deficiency that exists in democracies, which requires the acceptance of civil disobedience as having a permanent and important place in democracies. For example, an issue of democracy that is frequently cited is tyranny of the majority. Tyranny of the majority is the idea that democracy being rule-by-the-many opens up for the possibility of the majority of society oppressing or harming the minority of that same society. So sometimes only listening to the majority of a society can be problematic because it permits for bad laws to exist. Civil disobedience could be a really eective tool for citizens to combat the issue of tyranny of the majority by giving them a course of redress for dealing with laws that are symptomatic of this tyranny of the majority. Another issue that democracy faces is having individuals being able to exert undue amounts of influence on the process in an undemocratic spirit. Markovits explains this issue:

[T]he very same procedures needed to generate a sovereign will are open to manipulation and abuse by special interests. . . But persons who have no interest in deliberation or compromise—who refuse to engage others politically—can use the same inertial institutions and processes that generally foster coalition building and political engagement to block proposals around which the sovereign will could coalesce under slightly dierent factual circumstances or institutional arrangements.7

So sometimes, in a democracy, individuals can use the very institutions meant to protect the system to block policies that are important to the democratic society. An armative built around deficiencies in democracy is pretty cool because these arguments allow the armative debater to pick out some sort of problem that democracies face and then argue that civil disobedience is uniquely key to remedying the particular problem. This may allow the armative debater to sidestep some common negative arguments by saying that it may be generally true that civil disobedience is morally unjustified but in democracies it is uniquely valuable and morally justified.

7Markovits, Daniel. “Democratic Disobedience” Yale Law Journal, vol 114, nu 8, June 2005 pp. 1922, www.yalelawjournal.org/essay/democratic-disobedience

4.4 Negative Positions

4.4.1 Rule of Law

Rule of law is an important part of governmental theory according to a number of political theorists. The idea behind the rule of law is that the law is absolute in the demands that it places on citizens and the government. Udeh continues:

The essence of. . . the rule of law are that of the sovereignty or supremacy of law over man and as such should be respected. . . The rule of law in particular insists that every person – irrespective of rank and status in society – be subject to the law. For the citizen, the rule of law is both prescriptive – dictating the conduct required by law – and protective of citizens – demanding that government acts be accordance to the law.8

So rule of law negatives will argue that the law places demands on individuals to obey it, and this creates a moral prohibition on individuals violating the law. Failure to obey the law is morally unjustified according to the rule of law, so a rule of law negative will argue that acts of civil disobedience are not morally justified because civil disobedience definitionally entails a violation of the law. A significant portion of negatives on this topic will essentially be rule of law negatives, arguing that one cannot be morally justified in their violations of the law, meaning that civil disobedience can’t be morally justified. As the negative it is imperative that you have very strong arguments in favor of absolutely uphold the rule of law. Conversely, as the armative you better be ready to argue that an act being illegal is not sucient to mean that the act is prima facie morally unjustified.

4.4.2 Consent

The Sydney Grammar Philosophy Club explains three dierent approaches to the idea of consent in social contract theories:

1. Consent: The social contract is based on citizens giving their consent to the state and its laws and hence having a duty to obey them. In other words, the social contract is based on actual consent. . . 2. Tacit consent: By remaining within the boundaries of the state, a citizen tacitly agrees to live by the laws of the state. “Tacit consent” means that the consent is understood or implied without actually being stated. Anyone who didn’t at least give tacit consent to the state and its laws would leave and go and live somewhere else. . . 3. Hypothetical consent: It is as if there were a contract between state and citizen. . . The state oers certain advantages such as security and since citizens derive beneﬁts

8Udeh, Collins. “Rights, Responsibility, Law and Order in 21st Century’s Civil Dis- obedience”, Journal of Politics and Law, vol 7, no 2, May 28, 2014, pp. 32-33, http://www.ccsenet.org/journal/index.php/jpl/article/viewFile/37459/20998

from what the state oers, there is an obligation to comply with the laws.9

A potential negative position would be to argue that individuals consent directly, tacitly, or hypothetically to follow laws (under a social contract theory) and are therefore obligated to obey the laws of the sovereign. To violate the law, according to this position, is to break the social contract between the citizens and the state. There are two interesting ways that this position could be structured. One version of the consent negative would have a framework that says that individuals must obey the law because they, in some way or another, consented to obey the laws of the sovereign. The contention would then argue that civil disobedience is a violation of the law, which is inconsistent with the framework and therefore morally unjustified. The other version of the consent negative would have a framework that says moral justification is to be found in consent. The contention level of the position it would argue that people consent to the laws of the land, which means that individuals are not justified in civil disobedience since they agreed to follow the very law(s) that they are breaking.

9Sydney Grammar Philosophy Club. Sydney Grammar School, www.philosothon.org/WhyObeyLaws.pdf

5.1 AT Democracy Makes CD Unnecessary

Civil disobedience, in a democracy, is still sometimes necessary since democratic procedures sometimes face signiﬁcant issues.

Gray, Christopher & Suber, Peter. “Philosophy of Law: An Encyclopedia”, Gar- land Pub. Co, 1999, http://dash.harvard.edu/bitstream/handle/1/4725008/suber_civ- dis.htm?sequence=1

Thoreau, who performed civil disobedience in a democracy, argued that sometimes the constitution is the problem, not the solution. Moreover, legal channels can take too long, he argued, for he was born to live, not to lobby. His individualism gave him another answer: individuals are sovereign, especially in a democracy, and the government only holds its power by delegation from free individuals. Any individual may, then, elect to stand apart from the domain of law. Martin Luther King, Jr., who also performed civil disobedience in a democracy, asks us to look more closely at the legal channels of change. If they are open in theory, but closed or unfairly obstructed in practice, then the system is not democratic in the way needed to make civil disobedience unnecessary. Other activists have pointed out that if judicial review is one of the features of American democracy which is supposed to make civil disobedience unnecessary, then it ironically subverts this goal; for to obtain standing to bring an unjust statute to court for review, often a plainti must be arrested for violating it. Finally, the Nuremberg principles require disobedience to national laws or orders which violate international law, an overriding duty even in (perhaps especially in) a democracy.

5.2 AT Must Exhaust Alternatives

Those who engage in civil disobedience need not have exhausted ‘all legal channels’.

Gray, Christopher & Suber, Peter. “Philosophy of Law: An Encyclopedia”, Gar- land Pub. Co, 1999, http://dash.harvard.edu/bitstream/handle/1/4725008/suber_civ- dis.htm?sequence=1

Legal channels can never be “exhausted”. Activists can always write another letter to their congressional delegation or to newspapers; they can always wait for another election and cast another vote. But justice delayed, King proclaimed, is justice denied. After a point, he argued, patience in fighting an injustice perpetuates the injustice, and this point had long since been passed in the 340 year struggle against segregation in America. In the tradition which justifies civil disobedience by appeal to higher law, legal niceties count for relatively little. If God trumps Caesar to justify disobedience to unjust law, then God can trump Caesar to permit this disobedience sooner rather than later. In this tradition, A.J. Muste argued that to use legal channels to fight unjust laws is to participate in an evil machine, and to disguise dissent as conformity; this in turn corrupts the activist and discourages others by leading them to underestimate the numbers of their congeners.

5.3 AT Social Contract Objection

Civil disobedience can ﬁt within a social contract theory.

Gray, Christopher & Suber, Peter. “Philosophy of Law: An Encyclopedia”, Gar- land Pub. Co, 1999, http://dash.harvard.edu/bitstream/handle/1/4725008/suber_civ- dis.htm?sequence=1

Obviously this objection can be evaded by anyone who denies the social contract theory. But surprisingly many disobedient activists arm that theory, making this an objection they must answer. Socrates makes this objection to Crito who is encouraging him to disobey the law by escaping from prison before he is executed. Thoreau and Gandhi both reply (as part of larger, more complex replies) that those who object deeply to the injustices committed by the state can, and should, relinquish the beneﬁts they receive from the state by living a life of voluntary simplicity and poverty; this form of sacriﬁce is in eect to revoke one’s tacit consent to obey the law. Another of Thoreau’s replies is that consent to join a society and obey its laws must always be express, and never tacit. But even for Locke, whose social contract theory introduces the term “tacit consent,” the theory permits disobedience, even revolution, if the state breaches its side of the contract. A reply from the natural law tradition, used by King, is that an unjust law is not even a law, but a perversion of law (Augustine, Aquinas). Hence, consent to obey the laws does not extend to unjust laws. A reply made by many Blacks, women, and native Americans is that the duty to obey is a matter of degree; if they are not fully enfranchised members of American society, then they are not fully bound by its laws.

5.4 AT Slippery Slope

The slippery slope argument against civil disobedience falls ﬂat.

Gray, Christopher & Suber, Peter. “Philosophy of Law: An Encyclopedia”, Gar- land Pub. Co, 1999, http://dash.harvard.edu/bitstream/handle/1/4725008/suber_civ- dis.htm?sequence=1

The first reply, oered in seriousness by Thoreau and Gandhi, is that anarchy is not so bad an outcome. In fact, both depict anarchy as an ideal form of society. However, both are willing to put othe anarchical utopia for another day and fight in the meantime for improved laws; consequently, this strand of their thinking is often overlooked. Another reply is a variation on the first. Anarchy may be bad, but despotism is worse (Locke instead of Hobbes). If we face an iniquitous law, then we may permissibly disobey, and risk anarchy, in order to resist the tendency toward the greater evil of despotism. A.J. Muste extended this line of thinking to turn the slippery slope objection against itself. If we let the state conscript young men against their wills to fight immoral wars, then what will the state do next? For Muste, conscription puts us on a slippery slope toward despotism, and obedience would bring us to the bottom. Utilitarians observe that disobedience and obedience may both be harmful. The slippery slope objection falsely assumes that the former sort of harm always outweighs the latter. In the case of an iniquitous law, the harm of disobedience can be the lesser evil. This utilitarian reply is sometimes found to coexist with a complementary deontological reply, for example in Thoreau: one simply must not lend one’s weight to an unjust cause. Ronald Dworkin replies, in eect, that the descriptive version of the argument is false and the normative version irrelevant. There is no evidence that civil disobedience, even when tolerated by legal ocials, leads to an increase in lawlessness. Moreover, rights trump utility. Since (for Dworkin) there is a strong right to disobey certain kinds of unjust laws, and since the slippery slope argument points only to the disutility of disobedience, this is a case of a right in conflict with utility; hence the right to disobey must prevail.

5.5 Promoting Change

Civil disobedience is a eective tool for promoting political change.

Honderich, Ted. HIERARCHIC DEMOCRACY AND THE NECESSITY OF MASS CIVIL DISOBEDIENCE, Conway Lecture, http://www.ucl.ac.uk/~uctytho/ted5.htm

It is a kind of coercion, although what might be called coercion by persuasion rather than coercion by force. It is a refusal to continue in helpful compliance

with injustice, often a refusal to continue in self-injuring behaviour. It brings pressure on a society, and more particularly its government. It expresses moral hatred, hostility, disgust or exasperation, a determination to condemn or shame a government and a society, to press them into decent human sympathy and into action on it. It is also part of this coercion, of course, that mass civil disobedience makes life harder for governments, their servants, and others. It may cost police time, reduce proﬁts, disrupt order, and at least threaten incidental violence and damage. Ocially peaceful demonstrations are very likely to include broken windows and broken arms.

5.6 Remedying Injustice

Civil disobedience needed for when legal channels fail to remedy social injustices.

Zinn, Howard. “Disobedience and Democracy: Nine Fallacies on Law and Order”, New York, Random House, 1968. pp. 119-122

Civil disobedience is the deliberate, discriminate, violation of law for a vital social purpose. It becomes not only justiﬁable but necessary when a fundamental human right is at stake, and when legal channels are inadequate for securing that right. It may take the form of violating an obnoxious law, protesting an unjust condition, or symbolically enacting a desirable law or condition. It may or may not eventually be held legal, because of constitutional law or international law, but its aim is always to close the gap between law and justice, as an inﬁnite process in the development of democracy.

5.7 CD Key to Democracy

Democracy requires civil disobedience to oppose the totalitarian tendency to hold steadfast to the rule of law.

Zinn, Howard. “Disobedience and Democracy: Nine Fallacies on Law and Order”, New York, Random House, 1968. pp. 119-122

There is no social value to a general obedience to the law, any more than there is value to a general disobedience to the law. Obedience to bad laws as a way of inculcating some abstract subservience to “the rule of law” can only encourage the already strong tendencies of citizens to bow to the power of authority, to desist from challenging the status quo. To exalt the rule of law as an absolute is the mark of totalitarianism, and it is possible to

have an atmosphere of totalitarianism in a society which has many of the attributes of democracy. To urge the right of citizens to disobey unjust laws, and the duty of citizens to disobey dangerous laws, is of the very essence of democracy, which assumes that government and its laws are not sacred, but are instruments, serving certain ends: life, liberty, happiness. The instruments are dispensable. The ends are not.

5.8 Revolutionary War Example

The actions of the colonists prior to the Revolutionary War are prime examples of important civil disobedience.

Zinn, Howard. “The Role of Civil Disobedience in Promoting US Democracy”, Peace Work, Feb 1999, www.peaceworkmagazine.org/pwork/0299/029904.htm The acts of civil disobedience in the period preceding the Revolutionary War are quite well known, but often ignored when contemporary acts are judged, not by standards of justice, but by narrow technical standards of war. The various oppressive British laws were disobeyed by colonists, in protest against the harshness of British rule: there were demonstrations against the Stamp Act of 1765, there were violations of the Tea Act, including the dumping of tea in Boston Harbor, known as the Boston Tea Party.

5.9 Slavery Example

Denying the use of civil disobedience would have once meant the moral condemnation those who failed to return slaves to their masters.

Zinn, Howard. “The Role of Civil Disobedience in Promoting US Democracy”, Peace Work, Feb 1999, www.peaceworkmagazine.org/pwork/0299/029904.htm The Fugitive Slave Act of 1793, requiring the return of escaped slaves to their masters, was violated repeatedly. In 1830, for instance, an escaped slave brought into federal court was rescued by anti-slavery people and set free. The people who committed that act of civil disobedience were not prosecuted, despite their violation of the law, because it was recognized that the moral end of their action superseded the technicality of breaking the law. There were many violations of the Fugitive Slave Law of 1850, in which groups of white and black abolitionists rescued, or attempted to rescue, escaped slaves. They took place in Christiana, Pennsylvania, Syracuse, New York, Boston, Massachusetts, and Oberlin, Ohio, among other places. In several of these instances, juries refused to ﬁnd the defendants guilty, judging their technical violation of the law to be superseded by a higher moral objective.

5.10 Workers’ Rights

Civil disobedience helped ensure important rights for the working class in America that still exist today.

Zinn, Howard. “The Role of Civil Disobedience in Promoting US Democracy”, Peace Work, Feb 1999, www.peaceworkmagazine.org/pwork/0299/029904.htm

The rights of working people in the US–the eight hour day, decent wages, safe working conditions–were achieved by many decades of struggle, including violations of trespassing laws and other statutes. The occupation of factories in 1936 and 1937–the famous “sit-down strikes”–were illegal, but resulted in the recognition of unions and the betterment of working conditions.

5.11 Civil Rights Movement

The Civil Rights Movement often used civil disobedience as a means toward the end of disrupting social injustice.

Zinn, Howard. “The Role of Civil Disobedience in Promoting US Democracy”, Peace Work, Feb 1999, www.peaceworkmagazine.org/pwork/0299/029904.htm

In more recent times, the civil disobedience of the civil rights movement of the 1960s is well known. Not only were local segregation laws violated, but when people engaged in “sit-ins” in 1960 and 1961 to protest racial segregation, they were in violation of recognized federal law, as enunciated in the Civil Rights Cases of 1883. The nation soon recognized that these violations of law were honorable, and that punishment of people seeking to support the principles of the Declaration of Independence was wrong.

5.12 History Proves

There is a long history of civil disobedience being invaluable to movements that promote social justice.

Starr, Kayla. “The Role of Civil Disobedience in Democracy”, Civil Liberties, summer 1998, www.civilliberties.org/sum98role.html

Throughout the history of the U.S., civil disobedience has played a signiﬁcant role in many of the social reforms that we all take for granted today. Some of the most well known of these are: 1) The Boston Tea Party – citizens of the colony of Massachusetts trespassed on a British ship and threw its cargo

(tea from England) overboard, rather than be forced to pay taxes without representation to Britain. This was one of the many acts of civil disobedience leading to the War for Independence, establishing the United States of America as a sovereign state. 2) Anti-war movements have been a part of U.S. history since Thoreau went to jail for refusing to participate in the U.S. war against Mexico in 1849. More recent examples were the nationwide protests against the war in Viet Nam, U.S. involvement in Nicaragua and Central America, and the Gulf War. Actions have included refusal to pay for war, refusal to enlist in the military, occupation of draft centers, sit-ins, blockades, peace camps, and refusal to allow military recruiters on high school and college campuses. 3) The Women’s Surage Movement lasted from 1848 until 1920, when thousands of courageous women marched in the streets, endured hunger strikes, and submitted to arrest and jail in order to gain the right to vote. 4) Abolition of slavery – including Harriet Tubman’s underground railway, giving sanctuary, and other actions which helped to end slavery. 5) The introduction of labor laws and unions. Sit-down strikes organized by the IWW, and CIO free speech confrontations led to the eradication of child labor and improved working conditions, established the 40-hour work week and improved job security and beneﬁts. 6) The Civil Rights Movement, led by Martin Luther King, Jr. and others, included sit-ins and illegal marches which weakened segregation in the south. 7) The Anti-Nuclear Movement, stimulated by people like Karen Silkwood and the Three Mile Island nuclear power accident, organized citizens throughout the country into direct action anity groups, with consensus decision making and Gandhian nonviolence as its core. Massive acts of civil disobedience took place at nuclear power facilities across the country, followed by worldwide protests against ﬁrst-strike nuclear weapons, occupying military bases, maintaining peace camps, interfering with manufacture and transport of nuclear bombs and devices, marching, sitting in, blockading and otherwise disrupting business as usual at nuclear sites. 8) Environmental and forest demonstrations, with acts of civil disobedience such as sit-ins, blockades, tree sits and forest occupations, have emerged in the last decade, prompted by the continuing mass clear cuts and destruction of the forest ecosystem and widespread environmental consequences.

5.13 Republicanism

Civil disobedience in a democracy may only be justiﬁed through arguments grounded in democratic political authority.

Markovits, Daniel. “Democratic Disobedience” Yale Law Journal, vol 114, nu 8, June 2005 pp. 1905, www.yalelawjournal.org/essay/democratic-disobedience

The problem of political disobedience arises in light of the authority of law in

democratic states, and the theory of democratic disobedience must therefore be grounded in an account of democratic political authority—that is, of the ways in which the decisions of a democratic majority legitimately govern dissenters who would prefer to pursue an alternative course of action but have been outvoted. I take up two accounts of democratic political authority, which I associate, respectively, with liberal and republican political thought. The liberal view is perhaps more popular nowadays—it is also implicit in the liberal defense of political disobedience—but the republican view provides a more plausible reconstruction of political practice. I address the liberal view only brieﬂy, and only to emphasize the gaps between that theory and actual democratic politics. I develop the republican view in greater detail to serve as a foundation for my account of democratic disobedience.

The dierence between ‘democracy as reason’ and ‘democracy as will’.

Markovits, Daniel. “Democratic Disobedience” Yale Law Journal, vol 114, nu 8, June 2005 pp. 1911, www.yalelawjournal.org/essay/democratic-disobedience The republican view of democracy reverses the basic structure of the liberal view. Where the liberal view holds that democratic political authority depends on antecedent and more fundamental political principles, the republican view proposes that democracy is a freestanding political value that contributes to political authority on its own bottom. Where the liberal view constrains democratic processes in the ordinary sense, the republican view stresses the procedural aspects of democracy. Where the liberal view concludes that democracy ultimately sounds in equality, the republican view concludes that it ultimately sounds in liberty, and in particular in the connection between individual and collective self- governance. Finally, where the liberal view explains democratic authority on the basis of abstract principles that may be appreciated quite apart from actual political practice, the republican view proposes to explain democratic authority in terms of the aective consequences of engagement with the democratic political process—that is, in terms of the inﬂuence that democratic politics aspires to have on the political attitudes of the persons who participate in it. The republican view might therefore be called not democracy as reason but rather democracy as will.

Creation of a democratic sovereign permits for deﬁciencies in democratic legitimacy.

Markovits, Daniel. “Democratic Disobedience” Yale Law Journal, vol 114, nu 8, June 2005 pp. 1922, www.yalelawjournal.org/essay/democratic-disobedience There are at least two reasons for which the practices necessary for constructing a democratic sovereign also open up deﬁcits in democratic legitimacy.

First, and more banally, democratic deﬁcits can arise because the very same procedures needed to generate a sovereign will are open to manipulation and abuse by special interests. These procedures encourage political engagement by requiring deliberation and compromise among both citizens and elected ocials. At the popular level, a candidate cannot get elected out of a single- member district unless she can persuade a broad coalition of voters, with initially very dierent preferences, to join together in support of her campaign. And at the representative level, a legislator cannot enact a bill into law unless she can persuade a broad coalition of ocials, perhaps from multiple institutions of government (which may be controlled by dierent political parties), to join together in support of her proposal. Such deliberation and compromise is, I have argued, necessary for democratic sovereignty. But persons who have no interest in deliberation or compromise—who refuse to engage others politically—can use the same inertial institutions and processes that generally foster coalition building and political engagement to block proposals around which the sovereign will could coalesce under slightly dierent factual circumstances or institutional arrangements.

There can be policies in a democracy that do not have democratic authority for citizens.

Markovits, Daniel. “Democratic Disobedience” Yale Law Journal, vol 114, nu 8, June 2005 pp. 1933-1934, www.yalelawjournal.org/essay/democratic-disobedience

It can happen in a democracy that a public policy lacks democratic authority for current citizens. This may occur because the 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 dierent policy. Alternatively, even if the policy was produced by a democratically authoritative sovereign engagement, the distance between this engagement and the present political situation—measured in terms of citizen preferences, institutional continuity, time, or whatever other variables contribute to individual authorship of collective decisions and so span the space of republican democratic authority—may be so great that the conditions of sovereign authority no longer apply in connection with the policy at hand. Moreover, it can happen that such policies not only lack democratic authority but also would not win democratic approval if the sovereign reengaged them.

5.14 Social Contract

Under immoral governments and laws the question of civil disobedience becomes increasingly important to address.

Forji, Amin George. “Just Laws versus Unjust Laws: Asserting the Morality of Civil Disobedience”, Journal of Politics and Law, vol 3, no 2, Sep 2010, pp. 157

To say the least thus, the question whether one is bound to always obey the law is increasingly important during periods of grossly immoral legislations and unjust institutions. (Note 15) The law is a teacher and its supposed utility is to the greatest good. Just as street signs guide all cars and pedestrians on the highway to drive or walk in a particular direction, the law has a corresponding responsibility to walk the society towards a path of equity. But law in itself does not mark the end of the road. It only points the way to justice. (Note 16) My contention in this paper is that in cases of gross immorality, illegality and disregard to the tenets of fairness, the law cannot be perceived as acting as a teacher.

Civil disobedience is distinct from evasion of law due to the lack of concealment.

Forji, Amin George. “Just Laws versus Unjust Laws: Asserting the Morality of Civil Disobedience”, Journal of Politics and Law, vol 3, no 2, Sep 2010, pp. 157

Civil disobedience is dierent from evasion of law. Unlike the civil disobedient, the law evader attempts to conceal his violation and the penalties of the law. A good example of a law evader is the case of a militia or maﬁa that musters and hoards enough weapons to overpower agencies of law enforcement, and elude punishment by carrying out unauthorized activities. (Note 28) A trac violator who tries to dodge and do away with his crime is also an evader and not a civil disobedient. The Law evader does not at all think of himself as committing an act of civil disobedience. Evasion of the law is however not always wrong. Take for instance the case of a citizen who violates the apartheid decrees in South Africa, Nazism in Germany or the American Fugitive Slave Act of 1850. Today, we can concur that such violations were warranted. Most importantly, protesters engaged in civil disobedience strongly nurse the conviction that a speciﬁc law is illegal, unconstitutional or unjust. They thus deliberately violate it as an eective way of getting it declared illegal. (Note 29) Civil disobedience however excludes people who unconsciously violate an unjust law.

An explanation of the role of government according to social contract theories.

Forji, Amin George. “Just Laws versus Unjust Laws: Asserting the Morality of Civil Disobedience”, Journal of Politics and Law, vol 3, no 2, Sep 2010, pp. 158

The history of the world from the perspective of Social Contract theorists can be divided into two clear periods to wit: the period before and the period after the state. In the ﬁrst period, there is no government or law (state of nature). In the second, there is a contract between the subjects in nature (that is, the government and the people). According to John Locke, the raison-d’être of establishing a government was to move men away from a state of nature, given that men in the state of nature were too often judges in their own cases. A civil society was vital to guarantee peace and a common judge to settle disputes for everyone. The constitution and institutions of government are in place to ensure that individuals conform to the dictates of reason and justice since “the passions of men will not conform to the dictates of reason and justice, without constraint”.(Note 40)

Civil disobedience is morally permissible in instances where the government fails to uphold the social contract.

Forji, Amin George. “Just Laws versus Unjust Laws: Asserting the Morality of Civil Disobedience”, Journal of Politics and Law, vol 3, no 2, Sep 2010, pp. 158

The signiﬁcance of this theory lies in its assumption that the civil society is based on consent. It instills the view that the state is a “contractual” servant and not the master of the people. The contract is only valid for as long as the state honours its servitude to the people. Consequently, whenever any form of government becomes vi cious (betrayal of trust), it is the right of the people in the interest of the society to take back the power they have entrusted on it.

The concept behind the social contract theory is very closely linked to democratic ideals.

Forji, Amin George. “Just Laws versus Unjust Laws: Asserting the Morality of Civil Disobedience”, Journal of Politics and Law, vol 3, no 2, Sep 2010, pp. 159

The ideals of democracy are very closely related with the basic fundamentals of the social contract theory. A democracy to quote its founding father, Abraham Lincoln, is a “government of the people, by the people and for the people.” (Note 45) A democratic regime as a result gets its governing mandate from a majority of the populace through a free and fair election.

By casting their ballots or votes, the citizens are in eect expressing their consent to the authority of the winning majority to legitimately act on behalf. It follows that an administrator is stricto sensu a servant assigned to manage something in the interest of the community. (Note 46) Characteristically, a democratic culture emphasizes participation of all citizens, observance of the rule of law, equality of all citizens, right to assemble, education, the building of self conﬁdence and a sense of somebodiness.

Civil disobedience is needed in a democracy when majority rule results in undemocratic outcomes.

Forji, Amin George. “Just Laws versus Unjust Laws: Asserting the Morality of Civil Disobedience”, Journal of Politics and Law, vol 3, no 2, Sep 2010, pp. 160

Lets reconsider the examples of Nazi Germany, Apartheid South Africa, Jim Crow America, all of which openly discriminated and excluded a signiﬁcant portion of the population from the political process based on race. Because of these exclusions, the majority rule (or minority rule in the case of South Africa) was undemocratic in practical sense. Not only were they authoritarian, they also sustained their rule by acts unworthy of a democratic culture. However stable and eective a majority rule, there can never be a democratic right to commit torture, genocide, holocaust, racism, segregation, etc. These acts are by their very nature, atrocious and contrary to the spirit of rule of law or democratic values. In such regimes, the duty to always comply with the law is obviously problematic for minorities who have never known anything else but injustice.

5.15 AT Tacit Consent

Political obligations are distinct from other varieties of obligations.

Powell, Aaron Ross. “Theories of Political Obligation: Consent”. Libertarianism: Columns, Apr 11, 2012, www.libertarianism.org/blog/theories-political-obligation-consent

In the story I told last time, you’re living with your family in Montana, raising cattle, drinking their milk, and generally bothering no one. Now the government’s decided that, ﬁrst, they want to levy a tax on each head of cattle to pay for road construction and, second, drinking raw milk is illegal, so you’d better stop. The question I raised was, “Are you politically obligated to obey either law?” If so, why? Of course, you may choose to obey one or both of the laws for reasons of prudence–it’d be more trouble than it’s worth to disobey, you’re afraid of retribution by the government’s agents, etc.–but that would mean acting based on non-political-obligation justiﬁcation. Likewise,

you may feel you have a moral duty to not drink raw milk (you’ve been convinced by the arguments against it), but that duty need not be political. Remember, a political obligation is one you are duty-bound to follow because of its source (the state) and your relationship to it.

The notion of tacit consent is ﬂawed because not everyone has a choice about where they live and pretty much anywhere that one might go is under the authority of some government.

Powell, Aaron Ross. “Theories of Political Obligation: Consent”. Libertarianism: Columns, Apr 11, 2012, www.libertarianism.org/blog/theories-political-obligation-consent But if tacit consent depends on making a choice between two possible actions– one that expresses consent and one that doesn’t–then the choice itself must be meaningful. If you’d been chained to a large rock in Montana your whole life, little sense could be found in saying you’d “chosen” to remain there. David Hume extended this meaningful/non-meaningful distinction to less far-fetched imaginings when he asked, “Can we seriously say that a poor peasant or artisan has a free choice to leave his country, when he knows no foreign language or manners, and lives from day to day, by the small wages which he acquires?” Further, given that every bit of land where one could reasonably live is already claimed by some government, none of us have the legitimate option to avoid the state altogether.

Voting does not mean that one has consented to the entire legal system as voting could just be a voter attempting to promote the least bad outcome for themselves.

Powell, Aaron Ross. “Theories of Political Obligation: Consent”. Libertarianism: Columns, Apr 11, 2012, www.libertarianism.org/blog/theories-political-obligation-consent What about voting? It seems that whether voting rises to the level of tacit consent depends much on the intent of the voter. Clearly, if the voter intends to become obligated by voting, then his act of voting acts as consent. But need it? A potential voter might live in the United States but not believe he has consented to be bound to its laws. However, he knows that the outcome of the upcoming election will impact him. One candidate may favor policies leading to greater pollution. Or one may be tougher on crime, making his election a potential security beneﬁt. So our potential voter becomes an actual voter, but not because he consents to the legal system of the United States or because he consents to the rule of either potential victor. Instead, he votes for the same reason you might decide to give your wallet to a mugger: if all probable outcomes aren’t any good, it still makes sense to try to get the least worst one.

5.16 Environmental Advocacy

A modern and recent example of civil disobedience being used in an eort to advance environmental advocacy.

Rotherberg, Peter. “Youth Plan Mass Civil Disobedience to Protest Keystone XL”, The nation, Feb 6, 2014, www.thenation.com/blog/178270/youth-plan-mass-civil-disobedience- protest-keystone-xl

Here we go again. With President Obama on the cusp of a decision on whether to approve the Keystone XL tar sands pipeline, on March 2, hundreds of students and young people are expected to risk arrest in an act of civil disobedience at the White House to pressure President Obama to reject the project. The sit-in is expected to be the largest act of civil disobedience by young people in the recent history of the environmental movement and it will be led by just the demographic that helped propel Obama to the presidency. The protest, known as “XL Dissent,” is meant to send a clear signal to President Obama that the base that helped elect him sees Keystone XL as a decision that will deﬁne his entire legacy.

5.17 AT Obligation to Obey

Even if there is a moral obligation to obey the law it may be the case that there is some other more powerful moral obligation.

Christie, George C. “ON THE MORAL OBLIGATION TO OBEY THE LAW”, Duke Law Journal, Vol 1311, 1990, pp. 1312, http://scholarship.law.duke.edu/faculty_scholarship/244

To simplify the discussion, I shall adopt John Simmons’ practice of speaking of a moral obligation to obey the law, rather than of a prima facie moral obligation to obey the law. Following this practice, to say that one has a moral obligation to obey the law does not mean that one must necessarily obey the law. Other more important countervailing moral obligations may require that one not obey the law. Although the obligation to obey the law remains, it may be outweighed by other relevant moral considerations. Unlike a discussion expressed in terms of prima facie obligations, this analysis does not suggest that overridden moral “obligations” were in fact not obligations.

Just because a law demands obedience does not mean that said demand is legitimate.

Namtvedt, Peter. “Why Must We Obey Laws”, from Reason to Freedom, Jan 29, 2008, www.reasontofreedom.com/why_must_we_obey_laws.html

We obey the law and those legally appointed for its enforcement for various reasons. When the police order us to stop or to move back, we almost always do as the police order. The police are armed. Moreover, even if we were armed as well, we are morally constrained not to initiate the use of force. None of that, however, explains why we are obligated to obey. Neither the ocer’s gun nor our fear of it can explain it. We may obey laws for fear of loss of reputation or out of a desire for order. They only explain the fact that we obeyed, not why obedience to a law is obligatory. While there might be a moral obligation to obey a particular law because of its moral content (e.g., laws prohibiting murder) or because it solves a coordination problem (e.g., laws requiring people to drive on the right side of the road and other rather benign rules that hardly anyone would quarrel with), the mere fact that a rule is law does not provide a moral reason for doing what the law requires. Establishing a law implies a demand for obedience, but does not prove why it must be obeyed.

There is a dierence between a prudential reason to obey the law and a moral one.

Bear, David. “ESTABLISHING A MORAL DUTY TO OBEY THE LAW THROUGH A JURISPRUDENCE OF LAW AND ECONOMICS”, Florida State Law Review, Vol 34:491, May 2007, pp. 493, http://www.law.fsu.edu/journals/lawreview/downloads/342/bear.pdf

A reason to obey the law can be either prudential or moral. A prudential reason to obey the law is simply because doing so is in one’s own best interest. A moral reason to obey the law is because one has an intrinsic philosophical reason to do so. Prudential reasons to obey the law do not prescribe a moral duty upon the individual and, hence, need no moral justifications. For example, if the law dictates that one cannot drive more than fifty-five miles per hour upon penalty of a ticket, then he may decide to drive below fifty-five miles per hour if he determines that the risk of getting a ticket is great enough. But he would have no moral duty to do this; it is simply a rational choice of self-interest. As a prudential reason to obey the law was never sucient for Locke or Hobbes, it is also insucient for purposes of this Article.

Legal positivism is nonsense – there is not a moral obligation to obey the law simply because the government is the sovereign.

Bear, David. “ESTABLISHING A MORAL DUTY TO OBEY THE LAW THROUGH A JURISPRUDENCE OF LAW AND ECONOMICS”, Florida State Law Review, Vol 34:491, May 2007, pp. 493-494, http://www.law.fsu.edu/journals/lawreview/downloads/342/bear.pdf

A moral reason to obey the law assigns an intrinsically binding duty upon the individual. Perhaps the most common reason to obey the law is legal positivism.14 A strict legal positivist believes that a government gains legitimacy over individuals simply by being sovereign over them.15 In order to be sovereign over individuals, citizens have to be in a habit of obedience to the government and that government must not be in a habit of obedience to a determinant human superior.16 Under a philosophy of pure positivism, the most ruthless dictators of recent history—Pol Pot, Joseph Stalin, and Saddam Hussein—would command a moral duty of obedience.17 Such a theory is facially absurd, as is the idea that legal positivism establishes a moral duty to obey the law.

Consent can allow something that is typically bad to be considered good or acceptable.

Bear, David. “ESTABLISHING A MORAL DUTY TO OBEY THE LAW THROUGH A JURISPRUDENCE OF LAW AND ECONOMICS”, Florida State Law Review, Vol 34:491, May 2007, pp. 494, http://www.law.fsu.edu/journals/lawreview/downloads/342/bear.pdf

Much of modern liberal philosophy, especially Western philosophy, is premised on consent.18 Consent is powerful enough to turn a legal bad into a legal good and is certainly sucient to establish a moral duty to obey the law. For example, consent is powerful enough to turn battery into boxing. That being the case, the ideal method of establishing a moral duty to obey the law is through an individual’s own consent to be governed by that law. Sir William Blackstone expresses this idea clearly: “[N]o subject of England can be constrained to pay any aids or taxes, even for the defence of the realm or the support of government, but such as are imposed by his own consent, or that of his representatives in parliament.”

A moral duty to obey the law out of fair play or gratuity is absurd.

Bear, David. “ESTABLISHING A MORAL DUTY TO OBEY THE LAW THROUGH A JURISPRUDENCE OF LAW AND ECONOMICS”, Florida State Law Review, Vol 34:491, May 2007, pp. 499, http://www.law.fsu.edu/journals/lawreview/downloads/342/bear.pdf

The refutation of the arguments for gratuity and fair play are similar, so they will be addressed at the same time. The theory of gratuity is that there is a moral duty to obey the law when an individual receives benefits from another.41 By receiving the benefit, he incurs a debt of gratitude toward his benefactor.42 The theory of fair play is that the existence of a cooperative enterprise gives rise to a duty of obligation to the system.43 The typical benefit referred to is the generalized benefit that one receives from living in a

prosperous society, not a direct benefit such as a transfer payment.44 The fatal flaw with these positions is that because the benefit is not asked for but instead forced upon the individual, gratuity and “returning the favor” are virtues, not legal obligations.45 It is not a normally recognized legal principle that one may demand payment from another after unilaterally conferring a benefit upon that other person.

6.1 CD in tension with Democracy

There is a natural tension that exists between democracy and civil disobedience.

Sande, Silje. “When Democracy Gets Personal. -Civil Disobedience in the Case of Re- jected Asylum Seekers”, Humanity in Action. 2013 www.humanityinaction.org/knowledgebase/284- when-democracy-gets-personal-civil-disobedience-in-the-case-of-rejected-asylum-seekers

In a democracy the tension between civil obedience and disobedience is a necessary tension. Civil disobedience challenges the commonly accepted laws and norms and keeps the guardians of the system alert and in constant dialogue with the changing public opinion. However, civil disobedience has to be checked and controlled by the system, in order for it to uphold itself. The paradox of civil disobedience is that while it aims at eective legislation, the legislative system itself can only respond, but never be involved. If civil disobedience was to be incorporated in the system, this would lead to mistrust in the state and, in an extreme case, anarchy. When one holds the torch of civil disobedience they must recognize this action for what it is. Like ﬁre, it can serve as a powerful tool, exposing injustice and lighting the way to a better solution; conversely it can easily burn out of control. Therefore, this concept can never be taken lightly, but must always be performed with caution. You’ve got to know what you are doing to prevent even the best of intentions from engulﬁng the very justice you attempt to serve.

The use of civil disobedience functions to subvert democracy.

Van Dusen, Lewis H. Jr. “Civil Disobedience: Destroyer of Democracy”, American Bar Association Journal, Vol 55, No 2, Feb 1969, http://www.jstor.org/stable/25724673

Law violations, even for ends recognized as laudable, are not only assaults on the rule of law, but subversions of the democratic process. The disobedient act of conscience does not ennoble democracy; it erodes it. First, it courts violence, and even the most careful and limited use of nonviolent acts of disobedience may help sow the dragon-teeth of civil riot. Civil disobedience is the progenitor of disorder, and disorder is the sire of violence. Second, the

concept of civil disobedience does not invite principles of general applicability. If the children of light are morally privileged to resist particular laws on grounds of conscience, so are the children of darkness. Former Deputy Attorney General Burke Marshall said: “If the decision to break the law really turned on individual conscience, it is hard to see in law how [the civil rights leader] is better othan former Governor Ross Barnett of Mississippi who also believed deeply in his cause and was willing to go to jail.”[26] Third, even the most noble act of civil disobedience assaults the rule of law. Although limited as to method, motive and objective, it has the eect of inducing others to engage in dierent forms of law breaking characterized by methods unsanctioned and condemned by classic theories of law violation. Unfortunately, the most pa tent lesson of civil disobedience is not so much nonviolence of action as deﬁance of authority. Finally, the greatest danger in condoning civil disobedience as a permissible strategy for hastening change is that it undermines our democratic processes. To adopt the techniques of civil disobedience is to assume that representative government does not work. To resist the decisions of courts and the laws of elected assemblies is to say that democracy has failed.

6.2 Rule of Law

An explanation of the role that the rule of law plays in society.

Udeh, Collins. “Rights, Responsibility, Law and Order in 21st Century’s Civil Disobedience”, Journal of Politics and Law, vol 7, no 2, May 28, 2014, pp. 32-33, http://www.ccsenet.org/journal/index.php/jpl/article/viewFile/37459/20998

Rights, responsibility and the rule of law in twenty ﬁrst century civil disobedience may be interpreted either as a philosophy or political theory, which lays down fundamental requirements for law. The rule of law in particular may also be seen as a procedural device in which those with power rule under the law. The essence of rights, responsibility and the rule of law are that of the sovereignty or supremacy of law over man and as such should be respected especially by those in authority. The rule of law in particular insists that every person – irrespective of rank and status in society – be subject to the law. For the citizen, the rule of law is both prescriptive – dictating the conduct required by law – and protective of citizens – demanding that government acts be accordance to the law. This central theme recurs whether the doctrine is examined from the perspective of philosophy, or political theory, or from the more pragmatic vantage point of the rule of law as a procedural device. The rule of law underlies the entire constitution and, in one sense, all constitutional law is concerned with the rule of law. The concept is of great antiquity and continues to exercise legal and political philosophies today.

The rule of law in a democracy is an asset.

Udeh, Collins. “Rights, Responsibility, Law and Order in 21st Century’s Civil Disobedience”, Journal of Politics and Law, vol 7, no 2, May 28, 2014, pp. 33, http://www.ccsenet.org/journal/index.php/jpl/article/viewFile/37459/20998

Rights, responsibility and the rule of law in twenty ﬁrst century cannot be viewed in isolation from political society. The emphasis on rights, responsibility and the rule of law as a yardstick for measuring both the extent to which government acts under the law and the extent to which individual rights and responsibility are recognised and protected by law, is inextricably linked with western democratic liberalism. (Note 2) In this respect, it is only meaningful to speak of rights, responsibility and the rule of law in a society, which exhibits the features of a democratically elected, responsible – responsive – government and a separation of powers, which will result in a judiciary, which is independent of government. In liberal democracies, therefore, the concept of the rule of law implies an acceptance that law itself represents a good; that law and its governance is a demonstrable asset to society.

6.3 Harm to Others

In some instances there is a moral duty not to engage in civil disobedience.

Kogelmann, Brian. “A Theory of Civil Disobedience in No Less Than 10 Minutes” Columns, Aug 16, 2013 www.libertarianism.org/blog/theory-civil-disobedience-no-less- 10-minutes

Suppose we live in a society where roughly 30 percent of the population is regularly committing acts of civil disobedience. Needless to say, the society isn’t very stable. Another group wants to regularly commit acts of civil disobedience protesting their own pet issue. If they did, then 60 percent of population will be regularly committing acts of civil disobedience. Suppose that, if such a large amount of the population were to break laws regularly, then society will collapse in on itself and chaos would ensue. While things might be great in the long term without government, I doubt that, were the government to collapse tomorrow, things would be ﬁne in the short run. As such, the fact that one’s act of civil disobedience may result in horrible consequences might give one a moral reason to not commit the act of civil disobedience, a moral reason to obey the law. That is, in such circumstances civil disobedience is not justiﬁed. This is not because the government has authority, as both Jason and I agree that it has none. It is because one’s actions should not be allowed, even though unintentionally, to bring down the rest of society.

Civil disobedience is morally impermissible when it entails doing harm.

Kogelmann, Brian. “A Theory of Civil Disobedience in No Less Than 10 Minutes” Columns, Aug 16, 2013 www.libertarianism.org/blog/theory-civil-disobedience-no-less- 10-minutes

Interestingly this is a point John Rawls briefly makes in A Theory of Justice, though one often ignored: there is an upper-limit to the amount of civil disobedience tolerable for general reasons of stability. If a particular instance of civil disobedience crosses this threshold then there might be a case to be made that the particular act is not justified, and not for reasons of government legitimacy/obligation. Going along with the upper-limits restriction on civil disobedience, it may be that acts of civil disobedience are justified only if they do not cause significant harm to other people. If an act of civil disobedience were to cause significant harm to other people, then the act might be morally impermissible. This is a point that Joseph Raz makes when he highlights that not all non-violent acts are harmless acts: consider the possible eects of striking ambulance drivers, for instance (The Authority of Law, 267).

An example where civil disobedience is morally impermissible due to the harm that it would entail.

Kogelmann, Brian. “A Theory of Civil Disobedience in No Less Than 10 Minutes” Columns, Aug 16, 2013 www.libertarianism.org/blog/theory-civil-disobedience-no-less- 10-minutes

Here is an example of what this restriction on civil disobedience might look like: suppose large groups of people want to protest the fact that the U.S. doesn’t have free healthcare. To do so they decide to perform sit-ins in all major hospitals across the country. Suppose that the people who want to commit these sit-ins is so large a group that, were they to carry this out, they would overwhelm the hospitals, eectively shutting them down. Obviously, this act of civil disobedience would cause great harm to many people who need urgent care. In such a case, I think it would be morally impermissible to carry out such an act of civil disobedience. Again, though, this is not because the protesters have some prima facie obligation to obey the law. It is because they have a moral obligation to not cause great amounts of suering on account of their actions.

6.4 Obligation to Obey

Under rule utilitarianism one has a duty to obey the law because the law is, on balance, the best option for society.

Sydney Grammar Philosophy Club. Sydney Grammar School, www.philosothon.org/WhyObeyLaws.pdf

Utilitarianism is a general ethical theory which states that the rightness or wrongness of an action is determined by the amount of happiness or well being it produces. This theory can then be used as a basis for the state in the following way. According to utilitarianism we have an obligation to the state and its laws because they contribute more to human well being than any alternative. Without a state life would be much as Hobbes said. Thus, the utilitarian argues, people’s being will be greater within the state and its laws than without them.

Beneﬁting from everything that society has to oer has been seen as sucient to generate an obligation to obey laws.

Sydney Grammar Philosophy Club. Sydney Grammar School, www.philosothon.org/WhyObeyLaws.pdf

According to this principle, political obligation is based on the idea that since citizens derive beneﬁts (security, orderly government, public services, for example) from living in a state then they owe allegiance to the state and its laws. This is simply a matter of fairness. You owe it to your fellow citizens (and they owe it to you) to play your part in an arrangement from which you derive a beneﬁt. It is a matter of fairness rather than consent, tacit or otherwise. In other words, you get something out of living in a state and being protected and serviced by its laws, so you have an obligation to obey those laws. The obligation is like a payment for a service.

The majority of people believe that laws should be obeyed even if one happens to disagree with them.

Tunick, Mark. “The Moral Obligation to Obey Law”, JOURNAL of SOCIAL PHILOSO- PHY, Vol. 33 No. 3, Fall 2002, pp. 464, onlinelibrary.wiley.com.ezp3.lib.umn.edu/doi/10.1111/0047- 2786.00153/abstract

It is often held that breaking the law, any law, is morally wrong, and in doing so one acts badly. Walter Berns writes that “[t]he law must not be understood to be merely a statute that we enact or repeal at our will, and obey or disobey at our convenience—especially not the criminal law.”1 John Finnis argues that the law has moral authority because we beneﬁt from it as a whole. The law, he says, “presents itself as a seamless web. Its subjects are

not per- mitted to pick and choose.”2 Something like a consensus has emerged on the part of legal and moral philosophers that this position is mistaken. A number of philosophers—Wasserstrom, Brandt, Simmons, Smith, Raz—have rejected the position that there is a prima facie moral obligation to obey law, some have defended selective disobedience, and M. B. E. Smith contends that most people would agree there is no such obligation: “For most people, violation of the law becomes a matter for moral concern only when it involves an act which is believed to be wrong on grounds apart from its illegality.”3 My impression is that what Smith says here isn’t true and that most people feel they ought to obey the law even if the law goes against what they think is right, and this impression is supported by some empirical data. In his book length study of why people obey law, Tom Tyler reports that 82% of 1,575 people interviewed agreed that people should obey even laws with which they disagree.4 That a large majority of people believe that I act badly in breaking a law regardless of the moral reason for the law I violate may have little bearing on the persuasiveness of the philosophical position, but it does add to my concern that proponents of the position that one may selectively disobey the law have not fully acknowledged its problematic nature. Which laws can we morally disregard? If behavior that violates a particular law is harmless, then perhaps the behavior should not be illegal, but shouldn’t the determination of whether it is harmless belong to the state, not to each individual?

To say that there is a moral obligation to obey the law is to say that the law claiming something is itself a moral reason.

Tunick, Mark. “The Moral Obligation to Obey Law”, JOURNAL of SOCIAL PHILOSO- PHY, Vol. 33 No. 3, Fall 2002, pp. 467, onlinelibrary.wiley.com.ezp3.lib.umn.edu/doi/10.1111/0047- 2786.00153/abstract

In this section I apply some general theories of why there is a prima facie moral obligation to obey law. To say we have a prima facie moral obligation to obey law is to say that the fact that a law proscribes x is itself a moral reason for not doing x. But it is not quite to say we morally ought to obey the law, for sometimes we morally ought not to do what we have a moral obligation to do. My purpose in turning to these theories is to decide not whether a prima facie moral obligation to obey the trespass law, however weak, exists at all but, rather, whether these theories provide a moral reason to obey this law, a reason that might lead us to conclude that the lawbreaker acts badly.

Just because something is called a law or a rule does not mean that we have a moral obligation to obey said rule or law.

Tunick, Mark. “The Moral Obligation to Obey Law”, JOURNAL of SOCIAL PHILOSO- PHY, Vol. 33 No. 3, Fall 2002, pp. 468, onlinelibrary.wiley.com.ezp3.lib.umn.edu/doi/10.1111/0047- 2786.00153/abstract

One account of why we must obey law relies on what I call the conceptual argument: to call something a law means we must obey it. Because trespassing is against the law, this just means Jane must not trespass.6 The diculty with this view is that the imperative to obey law is conceptual or grammatical, but it is not moral. The “must” of obeying law expresses an institutional obligation, and institutional obligations do not necessarily have moral force. We do not always act badly in failing to comply with institutional obligations. On the conceptual argument, we should say of Jane when she trespasses that she has done what a citizen must not do. But this is not to say that she has acted badly, not even badly as a citizen.

An explanation of the contagion argument for there being a moral duty to obey the law.

Tunick, Mark. “The Moral Obligation to Obey Law”, JOURNAL of SOCIAL PHILOSO- PHY, Vol. 33 No. 3, Fall 2002, pp. 468, onlinelibrary.wiley.com.ezp3.lib.umn.edu/doi/10.1111/0047- 2786.00153/abstract

Disobedience does sometimes spread by example. On the freeway divid- ing the two tracts of land in our example, most people drive at 65m.p.h. or above when the law says that one must not exceed 55 m.p.h. A flow is established at an illegal speed, and most people drive with the flow.8 The fact that some people break this law encourages some to disobey the speed limit who otherwise would not but who think it safest to stay within the flow of trac. Here lawbreaking is contagious, but this fact does not provide a convincing reason to comply with the speed limit law. For if it is not wrong to drive with the flow of trac at 65 m.p.h. even when the law sets a limit of 55 m.p.h., and absent evidence that seeing people violate the speed limit law encourages some drivers to engage in illegal activity that is objectionable, such as driving faster than the flow, weaving in and out of lanes, or tailgating, the spread of disobedience in this instance provides insucient reason to obey the law. The case is dierent where awareness that some income tax evaders go unpunished encourages others to avoid paying all the tax they owe, thereby increasing the burden of all citizens to remedy the resulting deficit. In this case the spread of disobedience would be troublesome; avoiding it is a good reason to comply with income tax laws. Of course fear of a speeding ticket provides sucient reason for some people to comply strictly with the speed limit law, but this

motivation can be distinguished from a moral reason that would explain why the lawbreaker acts badly.

Civil disobedience is distinct from simple acts of protest.

Bedau, Hugo. “On Civil Disobedience”, The Journal of Philosophy, Vol. 58, No. 21, December 27-29, 1961, pp. 653-654 http://www.jstor.org/stable/2023542

A dissenter performs an act of civil disobedience only if he acts illegally; i.e., if he violates some positive law, because of (one of) the laws, policies, or decisions of his government which he ﬁnds objectionable. Acts of protest directed at government, no matter how conscientious or eective, in which no law is violated (as is usually the case with a poster parade, voluntary boycott, or refusal to accept government employment), are not acts of civil disobedience. Civil disobedience, after all, is not just done; it is committed. It is always the sort of thing that can send one to jail.

Hypothetically, a government could eliminate the need for civil disobedience.

Bedau, Hugo. “On Civil Disobedience”, The Journal of Philosophy, Vol. 58, No. 21, December 27-29, 1961, pp. 655 http://www.jstor.org/stable/2023542

Since all civil disobedience involves illegal activity, it has usually been supposed 3 that such acts could not receive legal protection; i.e., that there could be a legal right of civil disobedience (or of any form of resistance to government). What has not been noticed is that, by extending a practice already in use, civil disobedience could be lawfully eliminated. The law has long man- aged to obviate much civil disobedience by clauses providing exemption for conscientious objectors. There is no logical reason why every law could not have a rider to the eect that anyone who violates it on conscientious grounds shall be exempt from prosecution and penalty. The way in which such a provision would tend to weaken habitual obedience of the law and thus create problems for the police and the courts is obvious. But the fact that no government is likely even to consider such a provision, human nature being what it is, does not show any purely logical defect in extending this sort of legal protection to civil disobedience.

Civil disobedience is more than merely the intentional breaking of the law.

Bedau, Hugo. “On Civil Disobedience”, The Journal of Philosophy, Vol. 58, No. 21, December 27-29, 1961, pp. 655-656 http://www.jstor.org/stable/2023542

There would clearly be something odd about a policeman’s reporting that he had surprised several persons in the act of committing civil disobedience or about employing detectives to root out conspiracies to commit civil disobedience. For this would suggest, contrary to fact, that these illegal acts were an embarrassment to the dissenter and that he might wish them to be kept secret from the public and especially from the government. Usually, though not always, it is essential to the purpose of the dissenter that both the public and the government should know what he intends to do. At least, it is essential that the government know of his act if it is intended that the government shall change its policy because of the act. This is one reason why the authorities are customarily notiﬁed in advance by those intending to commit civil disobedience. More fundamental still is the fact that the dissenter views what he does as a civic act, an act that properly belongs to the public life of the community. This derives from the fact that he thinks of himself as acting to thwart some law, policy, etc., that deviates from the true purpose of government as he sees it. Thus, his act draws attention to something he thinks the whole community should be brought to consider, since the community has as much interest in the act as he does. For these reasons, civil disobedience is necessarily public.

Civil disobedience is, by deﬁnition, nonviolent.

Bedau, Hugo. “On Civil Disobedience”, The Journal of Philosophy, Vol. 58, No. 21, December 27-29, 1961, pp. 656 http://www.jstor.org/stable/2023542

Not every illegal act of public resistance to government, however, is an act of civil disobedience. Anytime the dissenter resists government by deliberately destroying property, endangering life and limb, inciting to riot (e.g., sabotage, assassination, street ﬁghting), he has not committed civil disobedience. The pun on ‘civil’ is essential; only nonviolent acts thus can qualify.4 By ‘nonviolent act’ one means, I take it, that the agent does not try to accomplish his aim either by initiating or by threatening violence, that he does not respond with violence or violent resistance during the course of his disobedience, regardless of the provocation he may have, and thus that he is prepared to suer without defense the indignities and brutalities that often greet his act. Even if the reaction to his act is a violent one, whether by the police or by a hostile public, I do not think this negates the civility of his act; it is not a logical consequence of anyone’s attempt to act nonviolently that anyone else should respond with violence.

Civil disobedience may be used to defend the moral convictions of those with a perverted sense of morality.

Bedau, Hugo. “On Civil Disobedience”, The Journal of Philosophy, Vol. 58, No. 21, December 27-29, 1961, pp. 660-661 http://www.jstor.org/stable/2023542

It is not even necessary that the law because of which the disobedience is committed eect substantial injustice, violate basic rights, suocate liberty, or otherwise work to the public disadvantage, though some such claim is almost invariably put forward. Though it may be highly improbable, there is no logical reason why a United States citizen could not commit acts of civil disobedience because of racial desegregation in the public schools, the Fifth Amendment, or foreign economic aid. A government, after all, can be subjected to conscientious resistance on account of any of its laws, policies, or decisions; and if anyone can have the right to resist conscientiously whatever he chooses, everyone else can have an equal right. I am even doubtful whether a civil disobedient must justify his resistance by appeal to the belief that the government sanctions manifest injustice, etc. I do not see any contradiction in his having no interest in that issue and still believing that his act is justified. It is true that disobedience that is mainly and patently self-serving raises doubts about its conscientiousness. But it is not a logical truth that people are easily self-deceived about their own motives, especially for those of their acts which benefit themselves. About the only moral convictions, therefore, we can assume in advance that a civil disobedient must have are that it is better to suer violence than to inflict it and that law and order are not lightly to be disturbed. But since even these convictions need obtain only ceteris paribus (one need not, after all, be a Gandhian Satyagrahi), this is not saying much. Any number of circumstances might arise to override them, and there are any number of other convictions one might have with which they could conflict. I can conclude only and somewhat lamely that probably no one holds moral convictions that would rule out civil disobedience for him in every conceivable situation.

Civil disobedience still applies when the direct rule or law in question is not the one being violated.

Zinn, Howard. “Disobedience and Democracy: Nine Fallacies on Law and Order”, New York, Random House, 1968. pp. 119-122

Civil disobedience may involve violation of laws which are not in themselves obnoxious, in order to protest on a very important issue. In each case, the importance of the law being violated would need to be measured against the importance of the issue. A trac law, temporarily broken, is not nearly as important as the life of a child run over by a car; illegal trespass into oces is

nowhere as serious as the killing of people in war; the unlawful occupation of a building is not as sinful as racism in education. Since not only speciﬁc laws, but general conditions may be unbearable, laws not themselves ordinarily onerous may need to be violated as protest.

Civil disobedience does NOT require that an individual accept the legal consequences of their action. They should only accept the punishment if it works to further their cause.

Zinn, Howard. “Disobedience and Democracy: Nine Fallacies on Law and Order”, New York, Random House, 1968. pp. 119-122

If a speciﬁc act of civil disobedience is a morally justiﬁable act of protest, then the jailing of those engaged in that act is immoral and should be opposed, contested to the very end. The protester need be no more willing to accept the rule of punishment than to accept the rule he broke. There may be many times when protesters choose to go to jail, as a way of continuing their protest, as a way of reminding their countrymen of injustice. But that is dierent than the notion that they must go to jail as part of a rule connected with civil disobedience. The key point is that the spirit of protest should be maintained all the way, whether it is done by remaining in jail, or by evading it. To accept jail penitently as an accession to “the rules” is to switch suddenly to a spirit of subservience, to demean the seriousness of the protest.

In a democracy civil disobedience can seem oddly undemocratic.

Markovits, Daniel. “Democratic Disobedience” Yale Law Journal, vol 114, nu 8, June 2005 pp. 1898, www.yalelawjournal.org/essay/democratic-disobedience

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.

The nature of civil disobedience in various democracies has evolved over the years.

Markovits, Daniel. “Democratic Disobedience” Yale Law Journal, vol 114, nu 8, June 2005 pp. 1901, www.yalelawjournal.org/essay/democratic-disobedience

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. 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.

It can sometimes be unclear or debated whether a particular act constitutes civil disobedience.

Kogelmann, Brian. “A Theory of Civil Disobedience in No Less Than 10 Minutes” Columns, Aug 16, 2013 www.libertarianism.org/blog/theory-civil-disobedience-no-less- 10-minutes

The three minute theory starts by deﬁning what civil disobedience is: “Civil disobedience is at base the conscientious decision to break a law on the grounds that it’s unjust.” There are, I believe, a few problems with this deﬁnition of civil disobedience, problems which I shall spend the bulk of this article pointing out. For one, it’s not always clear what is and what isn’t a law. In fact, an entire branch of legal philosophy, analytical jurisprudence, seeks to answer the question: what is law? Because there is ambiguity here, there might be cases where it seems like no law is being broken, though intuitively we might want to call such cases acts of civil disobedience.

An example where whether an act represents civil disobedience isn’t entirely clear.

Kogelmann, Brian. “A Theory of Civil Disobedience in No Less Than 10 Minutes” Columns, Aug 16, 2013 www.libertarianism.org/blog/theory-civil-disobedience-no-less- 10-minutes

Here is an example: suppose a group of people are walking down the street protesting wealth inequality in our country. Suppose they want to walk past a certain bank they think particularly highlights the sorts of problems they’re after. About to walk past the bank, they are stopped by the police. In this situation suppose there is no law preventing the protesters from going where they want to go. By implication the police are, technically speaking, doing something illegal in trying to stop them. If the protesters continue past the police barricades, and then are arrested for doing so, have they committed an act of civil disobedience? Intuitively I think so. Yet it’s not clear that they have broken the law. Indeed, whether they have or have not broken the law depends on how we deﬁne what the law is, but there is a good case to be made that (1) the protesters did not break the law and (2) the protesters committed an act of civil disobedience.

Intuition tells us that for an act to be civil disobedience something of signiﬁcance must be at stake.

Kogelmann, Brian. “A Theory of Civil Disobedience in No Less Than 10 Minutes” Columns, Aug 16, 2013 www.libertarianism.org/blog/theory-civil-disobedience-no-less- 10-minutes

There also seems something wrong-headed about holding that any violation of a law or imperative on the grounds that it is unjust counts as an act of civil disobedience. Here’s an example: suppose that someone thinks that laws telling people where and when they can/ cannot cross the street are unjust. As a result this individual jaywalks quite frequently. Does this individual commit an act of civil disobedience every time she jaywalks? Intuitively I don’t want to say she is. Maybe we should add that we must be able to reasonably infer that the violation of the law or imperative given by the state will result in some sort of signiﬁcant punishment by the state. This builds into our theory of civil disobedience the intuition that civil disobedience is committed when something is at stake, though I recognize that this intuition might be less frequently shared than other intuitions I have been making use of thus far.

A more sophisticated deﬁnition of civil disobedience.

Kogelmann, Brian. “A Theory of Civil Disobedience in No Less Than 10 Minutes” Columns, Aug 16, 2013 www.libertarianism.org/blog/theory-civil-disobedience-no-less- 10-minutes

So far we have moved far beyond the three minute theory’s definition of civil disobedience by adding much more nuance. We ended up with something like this: civil disobedience involves (i) violating a law or imperative given by the state (ii) that we can reasonably infer will be met with some sort of significant punishment by the state (iii) on the grounds that the law or imperative is unjust, or in attempt to highlight the injustice of a dierent law or imperative (iv) carried out in a non-violent manner. No doubt this definition is incomplete, and no doubt others might be able to poke holes in it. But nonetheless, I think it provides sophistication in places the three minute theory lacks.

A deﬁnition of democracy

Diamond, Larry. “What is Democracy”, Lecture at Hilla University for Humanistic Studies, Jan 21, 2004, web.stanford.edu/~ldiamond/iraq/WhaIsDemocracy012004.htm.

I want to begin with an overview of what democracy is. We can think of democracy as a system of government with four key elements: 1. A political system for choosing and replacing the government through free and fair elections. 2. The active participation of the people, as citizens, in politics and civic life. 3. Protection of the human rights of all citizens. 4. A rule of law, in which the laws and procedures apply equally to all citizens. I want to talk about each of these four elements of what democracy is. Then I will talk about the obligations and requirements of citizens in a democracy. Then I will conclude by talking about the obligations that we, the international community, have to the people of Iraq as you seek to build the ﬁrst true democracy in the Arab world.

The social contract according to Thomas Hobbes.

Sydney Grammar Philosophy Club. Sydney Grammar School, www.philosothon.org/WhyObeyLaws.pdf

The great English philosopher Thomas Hobbes (1588–1679) introduced the idea of the social contract in order to solve the problem posed by what he called the “state of nature”. The state of nature for Hobbes was the condition in which humans would live without the protection of a state and its laws. In the state of nature life would be “solitary, poor, nasty, brutish and short”. In other words, it would be a state of war of all against all – no co-operation,

peace or security and constant fear. How can humans avoid the state of nature? According to Hobbes the only way was for all people to obey laws. The social contract consists in the understanding that people will obey the law on the assumption that everyone else will also obey the law. And for Hobbes the only way of enforcing the social contract was by creating a state with absolute power – the “sovereign” or the “commonwealth”. The existence of such a state will then enable citizens to pursue their lives in peace and security. For Hobbes the social contract is a form of trade o. The citizen gives up his rights to the state and in return receives peace and security.

Locke’s consent-based view of the social contract.

Sydney Grammar Philosophy Club. Sydney Grammar School, www.philosothon.org/WhyObeyLaws.pdf

Locke believed that all people are naturally free, equal and independent. So no-one is naturally in authority over anyone else. For Locke the basis of all authority is consent. No-one has authority over you unless you voluntarily put yourself in that position by giving your consent. If authority is based on consent then the question is how a citizen’s obligation to the state and its laws can be explained in these terms. This is where Locke’s idea of the social contract omes in. According to this view of political obligation, citizens are obliged to obey the law because of a contract between them and the state – the “social contract”. However, for Locke the social contract was based on consent rather than on the absolute power of the state. There are three main versions of the social contract. However, each one has problems – I mention one of them in each case.

An explanation of direct consent, tacit consent, and hypothetical consent.

Sydney Grammar Philosophy Club. Sydney Grammar School, www.philosothon.org/WhyObeyLaws.pdf

1. Consent: The social contract is based on citizens giving their consent to the state and its laws and hence having a duty to obey them. In other words, the social contract is based on actual consent. Problem: No-one actually does give their consent. No-one signs a document or makes a verbal agreement giving their consent. Have you? 2. Tacit consent: By remaining within the boundaries of the state, a citizen tacitly agrees to live by the laws of the state. “Tacit consent” means that the consent is understood or implied without actually being stated. Anyone who didn’t at least give tacit consent to the state and its laws would leave and go and live somewhere else. Problem: Simply too dicult to leave – it’s not an option for most people. Therefore it can’t be assumed that a citizen has given any form of consent, tacit or otherwise, just because he

or she remains within the state’s borders. 3. Hypothetical consent: It is as if there were a contract between state and citizen. There may be no actual or tacit agreement but the relationship between state and citizen is like a contract. The state oers certain advantages such as security and since citizens derive beneﬁts from what the state oers, there is an obligation to comply with the laws. Problem: A hypothetical contract is not a contract, so how can it serve as the basis of political obligation?