a thesis statement on civil disobedience

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Civil Disobedience

From the Boston Tea Party to Mahatma Gandhi’s Salt March, and from suffragists’ illegally casting their ballots to whites-only lunch counter sit-ins, civil disobedience has often played a crucial role in bending the proverbial arc of the moral universe toward justice. But what, if anything, do these acts, and countless others which we refer to as civil disobedience have in common? What distinguishes them from other forms of conscientious and political action?

On the most widely accepted account, civil disobedience is a public, non-violent and conscientious breach of law undertaken with the aim of bringing about a change in laws or government policies (Rawls 1999, 320). On this account, people who engage in civil disobedience operate at the boundary of fidelity to law, have general respect for their regime, and are willing to accept the legal consequences of their actions, as evidence of their fidelity to the rule of law. Civil disobedience, given its place at the boundary of fidelity to law, is said on this view to fall between legal protest, on the one hand, and conscientious refusal, uncivil disobedience, militant protest, organized forcible resistance, and revolutionary action, on the other hand.

This picture of civil disobedience, and the broader accounts offered in response, will be examined in the first section of this entry, which considers conceptual issues. The second section contrasts civil disobedience, broadly, with other types of protest. The third focuses on the justification of civil disobedience, examining upstream why civil disobedience needs to be justified, and downstream what is its value and role in society. The fourth examines states’ appropriate responses to civil disobedience.

1.1 Principled Disobedience

1.2.1 communication, 1.2.2 publicity, 1.2.3 non-violence, 1.2.4 non-evasion, 1.2.5 decorum, 1.3 fidelity to law, 2.1 legal protest, 2.2 rule departures, 2.3 conscientious objection, 2.4 immigration disobedience.

• 2.5 Digital Disobedience
• 2.6 Uncivil Disobedience

2.7 Revolutionary Action

3.1 the problem of disobedience, 3.2 justificatory conditions, 4.1 punishing civil disobedience, 4.2 a right to civil disobedience, 4.3 accommodating civil disobedience, 5. conclusion, acknowledgments, other internet resources, related entries, 1. features of civil disobedience.

Henry David Thoreau is widely credited with coining the term civil disobedience . For years, Thoreau refused to pay his state poll tax as a protest against the institution of slavery, the extermination of Native Americans, and the war against Mexico. When a Concord, Massachusetts, constable named Sam Staples asked Thoreau to pay his back taxes in 1846 and Thoreau refused, Staples escorted him to jail. In a public lecture that Thoreau gave twice in 1848, he justified his tax refusal as a way to withdraw cooperation with the government and he called on his fellow townspeople to do the same. Thoreau’s lecture, titled “The Rights and Duties of the Individual in relation to Government,” formed the basis of his 1849 essay, “Resistance to Civil Government.” In 1866, four years after Thoreau’s death, the essay was republished under the title “Civil Disobedience.” Some scholars believe the new title was provided by Thoreau’s sister Sophia, his sole literary executor and sole editor of his posthumous edited works (Fedorko 2016). But others have provided evidence for Thoreau’s authority over the edits in the 1866 text (Dawson 2007).

Whereas Thoreau understood the “civil” in civil disobedience to characterize the political relations between civilian subjects and their civil government, today most scholars and activists understand the “civil” to relate to civility – a kind of self-restraint necessary for concord under conditions of pluralism. The next sub-sections review central features of civil disobedience.

Lawbreaking : First, for an act to be civilly disobedient, it must involve some breach of law. In democratic societies, civil disobedience as such is not a crime. When an agent who engages in civil disobedience is punished by the law, it is not for “civil disobedience,” but for the recognized offenses she commits, such as disturbing the peace, trespassing, damaging property, picketing, violating official injunctions, intimidation, and so on.

When civil disobedients directly break the law that they oppose – such as Rosa Parks violating the Montgomery, Alabama, city ordinance requiring African Americans to sit at the back of public buses and give up those seats to white riders if the front of the bus filled up – they engage in direct civil disobedience. By contrast, when disobedients break a law which, other things being equal, they do not oppose, in order to demonstrate their protest against another law or policy – such as anti-war protesters staging sit-ins in government buildings – they engage in indirect civil disobedience. The distinction between direct and indirect civil disobedience is mainly relevant to the possibility of mounting constitutional test cases, since one cannot test the constitutionality of a law in court without actually breaching it. Although some scholars argue that direct civil disobedience is preferable to its indirect counterpart because it is most clearly legible as an act of protest against the law breached (C. Cohen 1966, 4–5), most scholars maintain the acceptability of indirect disobedience given that not all unjust laws or policies can be disobeyed directly (M. Cohen 1970, 109–110; Rawls 1999, 320; Brownlee 2012, 19–20). For instance, a same-sex couple living in a jurisdiction that forbids same-sex marriage cannot get married in violation of the law. Black Lives Matter activists cannot directly disobey police brutality, stop-and-frisk policing, or the acquittal of police officers who killed unarmed Blacks. Also, even when a person can engage in direct disobedience of a law, doing so may be unduly burdensome, such as when the punishment for the breach would be extreme.

Principledness : An act of lawbreaking must be deliberate, principled, and conscientious, if it is to be civil and, hence, distinguishable from ordinary criminal offenses. Civil disobedience cannot be unintentional (say, done in ignorance of the fact that one is violating the law): it must be undertaken deliberately. Principled disobedience can be distinguished from ordinary criminal offending by examining the motives that underlie the disobedient act. The person must intend to protest laws, policies, institutions, or practices that she believes are unjust on the basis of her sincerely held moral or political commitments. The agent may not be correct or even entirely reasonable about her convictions, but she holds them sincerely. In these ways, principled disobedience is distinct from garden-variety criminal activity, which is generally self-interested and selfish, opportunistic and unprincipled.

Conscientiousness : The deliberate and principled features of civil disobedience are often brought together under the umbrella of conscientiousness and equated with seriousness, sincerity, depth of conviction, and selflessness – again, in order to contrast civil disobedience with criminal lawbreaking. In response, some scholars highlight the pervasiveness of self-interested civil disobedience – of the ‘not in my backyard’ variety (e.g., people protesting against a new highway passing through their neighborhood) – as a challenge to the supposed conscientiousness of all civil disobedience (Celikates 2016, 38). Others insist that civil disobedience need not be selfless: oppressed groups indeed have a lot to gain from their anti-oppression struggles, including better life prospects, improved material conditions, and heightened self-respect (Delmas 2019, 183–4). And, unsurprisingly, many of the most famous civil disobedients – Mohandas Gandhi, Rosa Parks, Martin Luther King, Jr., Nelson Mandela – were members of the groups whose rights they sought to champion. But conscientiousness – understood as sincerity and seriousness – does not require selflessness, and ordinary crime should not be equated with selfishness, as the example of Robin Hood illustrates. That said, some thinkers also challenge the requirement of seriousness by regarding, for example, the DDoS (distributed denial-of-service) attacks undertaken by Anonymous, such as Operation: Avenge Assange , as acts of civil disobedience, despite their ‘lulz-seeking’, playful and non-serious motivations (Celikates and de Zeeuw 2016, 211–3).

1.2 Civility

What makes an act of disobedience civil ? Scholars commonly consider all or some of the five features below to define civil disobedience.

Typically, a person who commits an offense has no wish to communicate with her government or society. This is evinced by the fact that usually such a person does not intend to make it known that she has offended. In contrast, civil disobedience is understood as a communicative act – a kind of symbolic speech, which aims to convey a message to a certain audience, such as the government and public. Civil disobedients are thought to contribute arguments to the public sphere. Typically, their message is a call for reform or redress; and their audience is the majority. Civil disobedience is variously described as an act by which “one addresses the sense of justice of the majority of the community” (Rawls 1999, 320), as “a plea for reconsideration” (Singer 1973, 84–92), and as a “symbolic… appeal to the capacity for reason and sense of justice of the majority” (Habermas 1985, 99). Even when scholars expand the central criteria for civil disobedience, they agree that civil disobedience is essentially communicative. In comparison, other types of principled disobedience are not necessarily communicative. For instance, animal rescue primarily seeks to relieve the suffering of the rescued animals; the tactic of environmental sabotage known as ‘tree-spiking’ primarily seeks to prevent or stall the cutting down of trees (Delmas 2018a, 44–45). Both types of action can of course be understood in terms of their messages, too, but communicating such a message is not their primary aim in each case.

On many accounts, civil disobedience must be not only communicative, but also public in a specific way. Publicity may designate different features: (i) the openness of the act, (ii) non-anonymity of the agent, (iii) advance warning of planned action, (iv) responsibility-taking for the action, or (v) an appeal based in publicly shared principles of justice. The first four requirements may be classified together under the umbrella of publicity-as-visibility , while the fifth can be dubbed publicity-as-appeal . Since the latter requirement matters mainly for the justification of civil disobedience, it is discussed below (§3.2). That said, Rawls (1999, 321), for one, clarifies the publicity of civil disobedience by describing it as a “political act,” to wit, “an act guided and justified by political principles, that is, by the principles of justice which regulate the constitution and social institutions generally,” thereby suggesting that publicity-as-appeal is in fact part of the definition of civil disobedience.

Rawls and Hugo Bedau (1961, 655), on whom Rawls relies, defend all of the features of publicity-as-visibility, arguing that civil disobedience could never be covert or secretive but could only ever be committed in public, openly, and with advance warning to authorities (per (i)–(iii); and additionally that it involves responsibility-taking (iv). The thought is that publicity is crucial to the civil disobedient’s communicative aims and that any violation of these features of publicity would obscure or muddy the nature of civil disobedience as a communicative act. Critics have rejected the requirement to give advance warning as a defining criterion of civil disobedience. If a person publicizes her intention to breach the law, by giving advance notice about it, then she provides legal authorities with the opportunity to abort her action (Dworkin 1985, 115; Smart 1991, 206–7). For instance, anti-nuclear activists who advertise their planned trespass on military property would simply be prevented from executing their action. In this case, not giving advance warning is necessary to accomplish the communicative act.

Some theorists have also denied the first two publicity requirements above that civil disobedients need to act openly and non-anonymously. Some argue that publicity is compatible with covertness and anonymity, so long as agents claim responsibility for their actions after the fact (Greenawalt 1987, 239; Brownlee 2012, 160; Scheuerman 2018, 43–5). For instance, Edward Snowden’s leaks of classified information about the National Security Agency (NSA)’s massive surveillance programs constitute acts of civil disobedience in this view because, although Snowden obtained and leaked the documents covertly, he eventually claimed responsibility and sought to publicly justify his actions (Scheuerman 2014, 617–21; Brownlee 2016, 966). In this view, the only publicity requirement is (iv) that agents take self-identifying responsibility for their actions after the fact. The other requirements of publicity-as-visibility – openness, non-anonymity, and advance warning – can in fact detract from or undermine the attempt to communicate through civil disobedience and are therefore not necessary to identify civil disobedience. Given, however, that there is often widespread reluctance to regard as “civil” covert and anonymous acts of disobedience such as assistance to undocumented migrants or anonymous hacktivism, other thinkers accept (i), (ii), and (iv) as standard requirements of publicity-as-visibility and deem covert acts to be uncivil without pre-judging their degree of justifiability (Delmas 2018a, 44–5).

Like publicity, non-violence is supposed to be essential to the communicativeness of a civilly disobedient act, non-violence being part of its legibility as a mode of address. “To engage in violent acts likely to injure and to hurt is incompatible with civil disobedience as a mode of address. Indeed, any interference with the civil liberties of others tends to obscure the civilly disobedient quality of one’s act” (Rawls 1999, 321). (The strategic and tactical value of non-violence is discussed in §3.3.) Critics have objected to the supposed incompatibility between violence and communication, arguing that violence, depending on its form and targets, does not necessarily obscure the communicative quality of a disobedient’s act. Burning a police car or vandalizing a Confederate monument, as some protesters did under the Black Lives Matter banner, conveys a clear message of opposition to police brutality and anger at the state’s failure to address systemic racism. The compatibility between violence and communication is further underscored in cases of self-directed violence: self-immolation may provide “an eloquent statement of both the dissenter’s frustration and the importance of the issues he addresses” (Brownlee 2012, 21–2). On this basis, some scholars deny altogether the requirement that civil disobedience be non-violent (M. Cohen 1970, 103; Brownlee 2012, 198–9; Moraro 2019, 96–101).

Some scholars also see nothing inherently contradictory in the notion of “violent civil disobedience” independent of its communicative aims. John Morreall views a person’s physical assault on a slave owner chasing a runaway slave, in violation of the Fugitive Slave Act of 1850, as a case of “justifiable violent civil disobedience” (1976, 42–3). Jennifer Welchman considers “violence, threats of violence, covert acts of sabotage, blackmail, and even assault” as means that civil disobedients can justifiably use to obstruct and frustrate injustice (2001, 105). But, arguably this route is too hasty, as it disregards what seems to be an essential and powerful association between civil disobedience and non-violence: the civility of civil disobedience seems to entail non-violence. The difficulty is to specify the appropriate notions of violence and non-violence .

This is a difficult task in part given its high political stakes: protests labeled as non-violent are more likely to be perceived favorably; protests labeled as violent are more likely to alienate the public and to be met with violent repression. In addition, the labeling of protests, as Robin Celikates notes, “far from being a neutral observation, is always a politically charged speech act that can reproduce forms of marginalization and exclusion that are often racialized and gendered” and tends to serve the interests of socially dominant or mainstream voices (2016, 983). On this basis, Celikates casts doubt on the usefulness of “a fixed category of non-violence … for a philosophical analysis of disobedience informed by its social and political reality” (ibid.). Nonetheless, specifying the categories of violence and non-violence is important to push back against disingenuous uses of these categories, as when the police declare a peaceful protest a ‘riot’ – a common occurrence in the 2020 Black Lives Matter protests (ACLED 2020).

One way to conceive of violence is as the use of physical force causing or likely to cause injury (Rawls 1999, 321). However, non-violent acts or even legal acts may indirectly yet foreseeably cause more harm to others than do direct acts of physical force. A legal strike by ambulance workers or a roadblock on an important highway may well have more severe consequences than minor acts of vandalism (Raz 1979, 267). Psychological violence can also cause injury to others. Philosophers typically reject the childhood chant that “sticks and stones may break my bones, but words will never hurt me,” recognizing that harm and injury do not come solely from the use of physical force. For one thing, words can incite physical violence. Words can also hurt even without the threat of physical injury, such as verbal insult and harassment, which can undermine the recipient’s sense of equal standing, self-worth, and safety. The implication for civil disobedience is that the requirement of non-violence prohibits the use of tactics likely to inflict psychological violence on one’s opponents. Aggressive confrontations designed to denigrate and humiliate (distinct from attempts to elicit shame through displays of unearned suffering and appeals to conscience) are incompatible with the civility and non-violence of civil disobedience.

Rawls does not mention, and it is unclear whether, non-violence prohibits certain actions that don’t physically or psychologically injure others but still cause harms, such as property damage (e.g., vandalism), violence to self (e.g., hunger strikes), and coercion (e.g., forceful occupation).

Property damage : Authorities, much of the public, and many scholars tend to conceive of non-violence strictly, as excluding any damage to property (Fortas 1968, 48–9, 123–6; Smith 2013, 3, 33; Smith and Brownlee 2017, 5; Regan 2004). Two broad reasons may explain the inclusion of property damage within the category of violence. One is the classical liberal understanding of private property as an extension of one’s person; the other is the assumption that property damage is likely to lead to violence against persons. John Locke formulates both when he argues it is “lawful for a man to kill a thief, who has not in the least hurt him, nor declared any design upon his life … [because] I have no reason to suppose, that he, who would take away my liberty, would not, when he had me in his power, take away every thing else” (Locke 1690, III §18). By counting all instances of property destruction as violent, such a view dissuades one from drawing evaluative distinctions among different cases, methods, targets, and aims. However, not all property damage is or should be viewed as equal: burning one’s Selective Service card to protest the military draft is not equivalent to burning crosses to intimidate African Americans and Jews; smashing a stained-glass window depicting enslaved persons in a cotton field (as a Yale janitor did in 2016) is not equivalent to smashing the windows of a store in order to loot it. For some thinkers, such differences are not only issues of justification. They insist that violence and non-violence simply do not exhaust the descriptive possibilities and that we should think of property damage as a third conceptual category distinct from the other two and requiring its own evaluative assessment (Sharp 2012a, 307; Delmas 2018a, 49, 244–5). Other scholars have instead argued that non-violence can encompass property damage (Milligan 2013, ch. 2; Scheuerman 2018, 46–7, 77, 87). They hold that civil disobedients can remain non-violent while engaging in selective destruction of property, assuming the damage is minor and relates clearly to the civil disobedient’s message, such as when pacifists hammer warhead nose cones.

Self-violence : Self-violent protests include tactics such as lip-sewing, self-cutting, hunger strikes, self-exposure to the elements, and self-immolation. When theorists list hunger strikes among the tactics of civil disobedience, they often do not address the question of whether self-violence is compatible with non-violence properly conceived, but simply assume an affirmative answer. Some scholars cast doubt on this notion, given the violence of self-destructive protests and given activists’ self-understanding of their own actions (see Bargu’s 2014 critical ethnographic study on the 2000–2007 death fast by left-wing militants in Turkish prisons). A notable exception to the theoretical neglect of self-violence is Gandhi (1973, 103–5, 120–5), who thought that hunger strikes were coercive and violent but that fasts of moral pressure and Satyagrahic fasts were persuasive and non-violent (Sharp 2012a, 134, 151, 262); and likewise, that self-immolation could accord with non-violence ( ahimsa ) and be fueled by satyagraha (‘Truth-force’ in Sanskrit) under the right circumstances (Gandhi 1999, 79.177; Milligan 2014, 295–9).

Coercion and persuasion : Theorists often complete the dichotomy between violence and non-violence by seeing violence as a means of coercion, non-violence as a means of persuasion, and the two as incompatible. Coercion can be defined as “any interference by an agent, A, in the choices of another agent, B, with the aim of compelling B to behave in a way that they would not otherwise do” (Aitchison 2018a, 668; see also entry on coercion ). Persuasion, by contrast, requires initiating a dialogue with an interlocutor and aiming to elicit a change of position or even their moral conversion. Coercive tactics impose costs on opponents. For instance, land occupation by environmental activists is designed to prevent or delay oil pipeline construction. Boycotts are also considered to be coercive tactics to the extent that they impose acute costs on businesses (through lost revenue) and sometimes involve intimidation and the threat of force to ensure maximum compliance with the boycott (Umoja 2013, 135–42). Some theorists of civil disobedience hold that civil disobedients cannot resort to coercion; they can only seek to persuade and appeal to their opponent’s moral conscience, which excludes confrontational and coercive tactics (Lefkowitz 2007, 216; Brownlee 2012, 24).

Practitioners and other critics maintain that this dichotomy between non-violent persuasion and violent coercion is false on the grounds that there is such a thing as ‘non-violent coercion’, which is furthermore compatible with the goal of moral suasion. Non-violence appeals to the conscience of the public, by eliciting shame and indignation at the witnessing of civil disobedients’ suffering and their discipline in the face of violent repression. After the 1955–56 Montgomery bus boycott, which unleashed spectacular white retaliatory violence, Martin Luther King, Jr., saw appeals to conscience as insufficient without disruption and “some form of constructive coercive power” (King 1968, 137). “Nonviolent coercion always brings tension to the surface”, he wrote (ibid.), affirming “the coercive face of nonviolence” along with its persuasive face (Livingston 2020a, 704; see also Terry 2018, 305). “The purpose of our direct action program,” King proclaimed in his ‘Letter from a Birmingham Jail’, “is to create a situation so crisis packed that it will inevitably open the door to negotiation” (King 1991). Non-violent action is thus the means to the goal of both forcing negotiations – an essential “mechanism for social change” (Atack 2012, 139) – and of persuading – its corresponding mechanism for moral and cultural change. This leaves open the question whether confrontational attacks that single out particular persons through harassment, doxing, and ‘calling out’ are compatible with non-violence. Such acts are coercive and, like verbal insults, they may be said to inflict psychological violence on the target.

Civil disobedients are standardly expected to take responsibility for, and accept the legal consequences of, their lawbreaking. Their evading punishment would make their acts ordinary crimes or acts of rebellion; their willingness to invite punishment is supposed to demonstrate their endorsement of the legal system’s legitimacy and their “intense concern over the issue at hand” (C. Cohen 1966, 6; see also Brownlee 2012 ch. 1; Tai 2017, 146). Non-evasion is an essential correlate of the conscientiousness and non-violence of civil disobedience: submitting to law enforcement is part of the dramatic display of suffering required by non-violence. That said, theorists have fleshed out this requirement of non-evasion in different ways, arguing variously that the agent must (i) willingly submit to arrest and prosecution, (ii) plead guilty in court, (iii) not try to defend her crime, and/or (iv) not complain about the punishment received (Delmas 2019, arguing that only (i) is necessarily entailed by non-evasion). Some theorists reject (ii) and (iii), proposing instead that agents plead ‘not guilty’ in court, so as to deny the state’s characterization of the civil disobedient act as a public wrong (in this view, disobedients should either deny responsibility of having committed the action as alleged by the prosecutor or admit responsibility but deny criminal liability) (Moraro 2019, 143–7). Indeed, while the civil disobedient who pleads ‘guilty’ and does not try to defend her ‘crime’ highlights her willingness to self-sacrifice, a ‘not guilty’ plea accompanied by a defense of her action might be more effective at communicating her convictions and persuading others, including by inviting jury nullification. By contrast, some thinkers reject (i) and (iv) on the grounds that when civil disobedience is morally justified, the state’s imposition of punishment is itself problematic and arguably impermissible, so that further protests against civil disobedients’ arrests, prosecutions, and sentences are justified (Zinn 2002, 27–31). Critics have also noted that punishment can be detrimental to dissenters’ efforts by compromising future attempts to assist others through protest (Greenawalt 1987, 239) and that willingness to accept punishment cannot be reasonably expected when agents know they risk heavy fines or very long sentences for their actions (Scheuerman 2018, 49–51).

In some views, being civil means that civil disobedients behave in a dignified and respectful manner by following the conventional social scripts that spell out displays of dignity and ways of showing respect in their society. Some theorists understand civility itself as respect for “minimal civil norms” (Milligan 2013, ch. 2); others count decorum as an additional, implicit requirement of civility in line with manifestations of self-restraint (Delmas in Çıdam, et al. 2020, 524–5). Decorum may be understood to prohibit conduct that would be seen as offensive, insulting, or obscene (with the standards for each varying widely across cultures). In Scheuerman’s view, Gandhi and King, but not liberals and democrats, thought that politeness and decorum had a role to play (2018, 11–31). Yet one reason to think that decorum has seeped into the common understanding of civil disobedience is that it helps to explain why some protests by Pussy Riot, ACT UP, and Black Lives Matter, among others, which were conscientious, communicative, public, non-violent, and non-evasive, were denied the label civil : to wit, because protesters shouted down their opponents, expressed anger, used offensive language, or disrespected religious sites (Delmas 2020, 18–9). Critics, however, deny that civil disobedience needs to be decorous and push back against denials of civility, insofar as these are often deployed to silence activists (Harcourt 2012; Zerilli 2014). They deem expressions of anger and offensive or obscene displays to be compatible with civility (Scheuerman 2019, 5–7; Çıdam, et al. 2020, 517–8) and insist on dissociating the politics of ‘respectability’ from civil disobedience (Pineda 2021a, 161–3).

What makes an act of civil disobedience special? On some accounts, an act that satisfies the criteria of civility identified above, especially non-evasion, signals disobedients’ respect for and fidelity to the legal system in which they carry out their protest, in contrast with ordinary offenders and revolutionary agents (Rawls 1999, 322). Signaling one’s fidelity to law by abiding the demands of civility is seen as necessary to thwart fears of disorder or counter the impression that civil disobedients are contemptuous of democratic procedures. Critics point out that agents do not necessarily respect, nor have any reasons to respect, the legal system in which they carry out their civil disobedience (Lyons 1998, 33–6). It is thus useful to distinguish the outward features of the civilly disobedient act from the inward attitudes of the civilly disobedient agent.

Many thinkers argue that the link between the disobedient act’s civility and her fidelity to law or endorsement of the legal system can indeed be pulled apart. For one thing, agents intent on overthrowing their government may well resort to civil tactics simply because civil disobedience works (Sharp 2012b). Some theorists nonetheless hold on to the connection between civility and fidelity to law. For instance, some discard some of the requirements of civility but maintain that the civilly disobedient agent can still be motivated by respect for law and act within the limits of fidelity to law while disobeying covertly, evading punishment, damaging property, or offending the public (Brownlee 2012, 24–9; Scheuerman 2018, 49–53; Moraro 2019, 96–101). Others hold that it is worthwhile to maintain the link between the act’s civility and its conveying fidelity to law, whether or not agents actually endorse the system’s legitimacy, insofar as its self-restraint holds the key to civil disobedience’s place in democratic culture (Smith 2013, 32–5; Delmas 2019, 173–4).

Other theorists deny that civil disobedients need to demonstrate fidelity to law, taking what Scheuerman (2015) dubs an anti-legal turn . Civility, on a number of recent accounts (Brownlee 2012 ch. 1; Moraro 2019, ch. 2; M. Cooke 2021), is satisfied when agents aim to communicate with an audience and engage with the public sphere. On a radical understanding, the civility of civil disobedience is compatible with tactics “that will be regarded as uncivil because of their confrontational or even violent character, including massive disruption, the destruction of property, and the use of restrained force in self-defense,” only excluding para-military confrontation (Celikates 2021, 143).

This anti-legal turn goes along with what we may call a critical turn in scholarship on civil disobedience. Not only do theorists critique the liberal account of civil disobedience as unduly narrow and restrictive (as contemporary critics of Rawls already did) and articulate a more inclusive concept; but they also critique the ideology that undergirds the common account, uncovering the ways in which it distorts the reality of the practice, deters resistance, and buttresses the status quo (Celikates 2014, 2016; Delmas 2018a, ch. 1; Pineda 2021b, ch. 1). In this vein, several scholars have reassessed the complex legacy of Thoreau and Gandhi to the civil disobedience tradition, in order to both show the misappropriation of their writings on political resistance and to call for a reappropriation and appreciation of their visions (Mantena 2012; Hanson 2021; Livingston 2018; Scheuerman 2018, ch. 1, 4). Scholars have also reconsidered the historical record of the American Civil Rights Movement to excavate the radical understanding of civil disobedience forged by actors themselves, in lieu of the romantic and sanitized version that dominates public perception of the Movement (Hooker 2016; Livingston 2020a, 2020b; Pineda 2021b, ch. 2–5; Mantena 2018; and Shelby and Terry 2018). Setting the record straight matters not just for historical accuracy but also because the Civil Rights Movement is used as the benchmark to judge contemporary protest movements such as Black Lives Matter, unfavorably comparing today’s activists with an idealized standard with the effect of prejudicing the public against them.

2. Other Types of Protest

Although civil disobedience often overlaps broadly with other types of dissent, nevertheless some distinctions may be drawn between the key features of civil disobedience and the key features of these other practices.

The obvious difference between legal protest and civil disobedience is that the former lies within the bounds of the law, but the latter does not. Legal ways of protesting include, among many others, making speeches, signing petitions, organizing for a cause, donating money, taking part in authorized demonstrations, and boycotting. Some of these can become illegal, for instance when law enforcement declares an assembly unlawful and orders the crowd to disperse, or under anti-boycott legislation. Some causes may also be declared illegal, such that one cannot be associated with the cause or donate to it (such as the Communist Party in the U.S.). Most of the features exemplified in civil disobedience – other than its illegality – can be found in legal protest: a conscientious and communicative demonstration of protest, a desire to bring about through moral dialogue some lasting change in policy or principle, an attempt to educate and to raise awareness, and so on.

A practice distinct from, but related to, civil disobedience is rule departure on the part of authorities. Rule departure is essentially the deliberate decision by an official, for conscientious reasons, not to discharge the duties of her office (Feinberg 1992, 152). If an official’s breach of a specific duty is more in keeping with the spirit and overall aims of the office than a painstaking respect for its particular duties is, then the former might be said to adhere better than the latter does to the demands of the office (Greenawalt 1987, 281). Rule departures resemble civil disobedience in that both communicate the agent’s dissociation from and condemnation of certain policies and practices. Civil disobedience and rule departure differ mainly in the identity of their practitioners and in their legality. First, whereas rule departure typically is done by an agent of the state (including citizens serving in juries), civil disobedience typically is done by citizens (including officials acting as ordinary citizens and not in the capacity of their official role). Second, whereas the civil disobedient breaks the law, the official who departs from the rules associated with her role is not usually violating the law, unless the rule she breaks is also codified in law. For instance, jurors may refuse to convict a person for violating an unjust law. When they do, they nullify the law. However, many judges forbid any mention of jury nullification in their courtroom, so that jurors are not allowed to advise each other of the possibility to refuse to convict (Brooks 2004).

Conscientious objection may be defined as a refusal to conform to some rule, mandate, or legal directive on grounds of personal opposition to it. Examples include conscripts refusing to serve in the army; public officials refusing to issue same-sex marriage licenses; and parents refusing to vaccinate their children as mandated by state law. Public officials’ conscientious objection is indistinguishable from rule departures insofar as the agent refuses to discharge the set of duties associated with her official role. Conscientious objectors’ non-conformity may stem from very different kinds of motives: the conscript’s religious pacifism or moral and political opposition to a particular war or military occupation, for instance, has little in common with anti-vaxxers’ pseudo-scientific beliefs. But, in many views, conscientious objection is conscientious in the sense identified above, that is to say, sincere, serious, and reflecting the depth of the person’s conviction. In other views, however, when an objector seeks to keep her act private and to avoid detection, this casts doubt on her sincerity and seriousness (Brownlee 2012, ch. 1). As an objection, conscientious objection also shares with civil disobedience the agent’s opposition to the law, since the conscientious objector refuses to conform with the law because she considers it bad or wrong, totally or in part, and thus seeks to disassociate herself from it.

Conscientious objection is often considered to be the private counterpart of civil disobedience: where civil disobedients address the public, are motivated by and appeal to general considerations of justice, and seek to bring about reform, conscientious objectors are supposed to be animated by personal convictions and to simply seek to preserve their own moral integrity through exemption (Smith and Brownlee 2017). For instance, consider that the refusal of Jehovah’s Witnesses to salute the flag is a matter of private religious morality; they do not seek to abolish the practice of saluting the flag for all citizens. Their example is instructive in another way: Jehovah’s Witnesses’ refusal is legally protected. Conscientious objection, unlike civil disobedience, is not necessarily unlawful. Indeed, the law protects conscientious objectors in many contexts, including in the military and healthcare, by carving out exemptions for them.

Some thinkers distinguish conscientious objection from conscientious evasion and stress that we should not overstate the private and personal characteristics of the former. Conscientious objectors often act openly and non-anonymously and take responsibility for their non-conforming act by attempting or being willing to justify it to authorities. To that extent, they may be said to meet the publicity-as-visibility requirement. Some agents, in contrast, undertake their conscientious objection covertly and evasively as conscientious evasion. A young man drafted to fight a war he opposes, for instance, may openly refuse to serve and be arrested and charged for his refusal, or covertly dodge the draft by going AWOL. While conscientious evasion is incompatible with the intention to communicate, conscientious objection may have a public or communicative component, as Thoreau clearly did with his conscientious tax refusal, in a way that blurs the distinction with civil disobedience. Moreover, when such actions are taken by many people – as they often are – their collective impact can approximate the kind of communicative protest exemplified in civil disobedience (Delmas 2018a, ch. 7). In this vein, Emanuela Ceva (2015) highlights the public and political character of conscientious objection (what we call publicity-as-appeal above), which she conceives of as ‘a form of political participation’.

Writings on immigration and on civil disobedience have merged into an area of research devoted to principled disobedience in response to anti-immigration policies. One view, which focuses on what individual actors should do about immigration, examines various unlawful tactics of resistance, including evasion, deception, use of force against state officials, and smuggling (Hidalgo 2019, chs. 5–6). Another view conceives of illegal migration as a form of resistance to global poverty (Blunt 2019, ch. 4), while a third sees unauthorized border crossing as a type of conscientious evasion (Cabrera 2010, 136–43, 165). It is further useful to distinguish transnational civil disobedience from global civil disobedience. Transnational (or trans-state) civil disobedience is the principled violation of a state’s law or policy (a) by individuals who are not citizens or authorized permanent residents of that state, such as asylum-seekers marching from Hungary to Austria against E.U. regulations; or (b) by the state’s own citizens on behalf of outsiders, such as U.S. citizens active in the Sanctuary movement who provided illegal assistance to asylum-seekers from Central America in the 1980s. Both kinds of cases involve at root the “principled claim… that the state’s law is misaligned with the foundational moral principles of the current global system” (Cabrera 2021, 322). Acts of global civil disobedience, on this view, involve “claims implicating structural principles of the global system itself, as misaligned with its foundational moral principles” (Cabrera ibid.). For instance, when the sans-papiers in France openly protest against their socio-political and legal exclusion through occupations, demonstrations, and hunger strikes, they may be viewed as engaged in acts of global civil disobedience. One last useful category of principled disobedience that relates to immigration restrictions, although it overlaps with rule departures and conscientious objection, is official or local disobedience, as when local authorities declare themselves ‘Sanctuary cities’ to protect immigrants by refusing to cooperate with federal authorities (Blake and Hereth 2020, 468–71. See also Applbaum 1999, ch. 9 on ‘official disobedience’ and Scheuerman 2020 on ‘state-based’ or ‘political institutional civil disobedience’).

2.5 Digital disobedience

Digitalization – access to personal computers and the Internet – has transformed not only our lives and interactions, but also our disobedient practices. From piracy to DDoS attacks and from open-access coding to Digital Care Packages (which provide tools to circumvent censorship and surveillance), digital disobedience has emerged as a rich terrain for theoretical inquiry. Scholars disagree about the application of the defining features of civil disobedience to the digital, e.g., whether client-sided DDoS actions, which involve only voluntary botnets, amount to “virtual sit-ins”; whether hacktivists such as Anonymous may be considered civil disobedients despite their covert and evasive actions, their penchant for pranks, and their singling out of particular individuals for doxing and retaliation (such as in Operation Hunt Hunter which targeted ‘revenge porn’ magnate Hunter Moore); or whether the use of zombie botnets in DDoS attacks and the cost of updating security systems for the target evinces the violation of non-violence (see, e.g., Critical Art Ensemble 1998; Himma 2006; Scheuerman 2018, ch. 6; Celikates 2015, 2016; Sauter 2016; Delmas 2018b; Züger 2021).

These debates aside, it is useful to distinguish different kinds of digital tools, sites, strategies, and aims. First, activists use digital technology as tools to organize, document, communicate, raise funds, and make decisions. For instance, Black Lives Matter activists use social media to promote their cause, raise consciousness about systemic racism, and publicize instances of police brutality. They use crowdfunding platforms for fundraising to cover bail and other legal expenses for those arrested. They encourage people to use police scanner apps to watch police activity and legal assistance apps to record encounters with law enforcement officials. Second, the digital is itself a crucial site and object of activism. Hacktivists envision a different Internet – one that is democratic and democratically controlled, free, respectful of privacy, and creative. They protest against the digital architecture of surveillance and control that has been imposed on netizens without their consent. For instance, a number of websites, search engines, and online communities launched coordinated actions in 2012 to protest against the Stop Online Piracy Act (SOPA) and the Protect IP Act (PIPA), whose overbroad scope they saw as threats to online freedom of speech. Third, some properly digital strategies of principled disobedience have emerged, such as DDoS actions, web defacement, and hacking. For instance, the No Border network created a fake Lufthansa website touting its “Deportation Class service … the most economic way to travel the world” (“special restrictions apply … no round trips available”). The Open Access Movement, which advocates for open-source software and an open-source repository of academic and scientific research, combines all three dimensions of digital disobedience: it uses networked computers to organize and communicate; it seeks to bring about a free Internet characterized by the free flow of software, science, and culture and has developed a coherent political platform in its defense; and it deploys properly digital strategies, such as illegal downloads and peer-to-peer file sharing (which is illegal when the content torrented is copyrighted material). The Open Access Movement epitomizes a public, geeks-and-grassroots mass movement that not only promotes online democratic governance, but also enacts it within the movement (Swartz 2008 [Other Internet Resources]; Delmas 2018b, 79–80).

2.6 Uncivil disobedience

Uncivil disobedience is not a distinct category of political action, but a cluster concept or umbrella term that can be used to designate acts of principled disobedience that may or may not be communicative, and which violate one or more of the marks of civility by being covert, violent, evasive, or offensive (Delmas 2018a, 2020; Lai 2019). Examples include animal rescue, Sanctuary assistance, sabotage, ecotage (e.g., monkeywrenching and tree-spiking), graffiti, leaks, government whistleblowing, hacktivism (including DDoS attacks), guerrilla protests, and riots. These various act-types do not share any essential property, besides violating one or more of the commonly accepted criteria of civility. Each form of uncivil disobedience must be examined (conceptualized and assessed) on its own. By conceptualizing uncivil disobedience, scholars intend to counter the theoretical impetus to make the concept of civil disobedience ever broader to encompass protests that one approves of, but which do not fit the standard account and may not even fit activists’ self-understanding either. For instance, in her 1913 speech “Freedom or Death”, the suffragist Emmeline Pankhurst described herself as a “soldier” in a “civil war” waged against the state and defended the use of militant tactics, including heckling, window-smashing, sabotage, arson, and hunger strikes: radical defiance was the point of such uncivil tactics. Identifying some principled disobedient acts as uncivil makes room to focus on their justification. Scholars have defended such uncivil disobedience as political rioting (Pasternak 2019), vandalism (Lim 2020; Lai 2020), violent protest (Kling and Mitchell 2019), coercive strike tactics (Gourevitch 2018), and direct action (Smith 2018).

While a civil disobedient does not necessarily oppose the regime in which she acts, the revolutionary agent is deeply opposed to that regime (or a core aspect of that regime). Revolutionary agents may not seek to persuade others of the merits of their position – communication is usually not their primary aim, although they convey the urgency of a regime change. When revolution is called for, such as under colonial occupation, there is no need to justify constrained acts of protest like civil disobedience. Indeed, more forceful resistance can be justified as we pass into the realm of just war theory (Buchanan 2013; Finlay 2015). This is not to say that all violent tactics, including terror, are permissible, since the use of violence must not only pursue a just cause but also accord with proportionality and necessity (i.e., be undertaken in last resort and with a reasonable chance of success). As will be discussed in the next section, revolutionary activists and thinkers like Frantz Fanon (2004, ch. 1) and Gandhi disagreed about the effectiveness of violence in emancipatory struggles, but not about its justifiability, as Karuna Mantena (2018, 83–4) has shown.

3. Justification

The task of defending civil disobedience is commonly undertaken with the assumption that in reasonably just, liberal societies people have a general moral duty to follow the law (often called political obligation ). It is on the basis of such an assumption that civil disobedience requires justification. This section examines common understandings of the problem of disobedience (3.1), before presenting prominent accounts and critiques of the conditions under which civil disobedience may be justified (3.2). Whether or not theorists assume that civil disobedience is presumptively impermissible and in need of justification, their analyses also articulate the value and role of civil disobedience in non-ideal, nearly just or less-than-nearly-just liberal democracies (3.3).

Philosophers have given many arguments in favor of the moral duty to obey the law (see entry on political obligation ). Despite the many critiques of, and general skepticism toward, arguments for the moral duty to obey the law, most prominently following A. John Simmons (1979), theorists of civil disobedience have continued to conceive of the practice’s illegality as a hurdle to surmount (see Lyons 1998 for an analysis of the endurance of such a problematic assumption). They conceive of principled disobedience in general as presumptively wrong because it violates political obligation, undermines the rule of law, and destabilizes society both through example, by signaling to others that anyone can disobey if they feel the urge, and in principle, by expressing disrespect for law’s authority. They contend that civil disobedience in particular is presumptively wrong because of its anti-democratic nature. The agent who violates the outcomes of democratic decision-making processes because she disapproves of them puts herself above the law and threatens the legal and democratic order. Some see in it a violation of reciprocity, a kind of political “blackmail” and a sign of “moral self-indulgence” and arrogance, insofar as a minority, whose views didn’t prevail, disregards democratic processes and imposes on the majority its own view of the good and just (C. Cohen 1971, 138–45; Dworkin 1985, 112; Weinstock 2016, 709; for a response to the charge of ‘epistemic arrogance’, see Hindkjær Madsen 2021).

Recent scholarship on civil disobedience has taken what may be dubbed an anarchist turn , as theorists tend to no longer approach civil disobedience as presumptively wrong and in tension with political obligation. Although some theorists still defend the latter (Smith 2013), most start from skepticism vis-à-vis the moral duty to obey the law (Brownlee 2012; Celikates 2014, 2016). Others defend a disjunctive moral duty to obey the law or disobey it civilly (Lefkowitz 2007); and still others argue that the grounds commonly used to support political obligation – the natural duty of justice, the principle of fairness, the Samaritan duty, and associative obligations – yield duties to resist injustice, through civil and uncivil disobedience, under non-ideal circumstances, and that such duties should be considered among our political obligations (Delmas 2018a). Likewise, on a virtue-ethical account, political obligation can be understood as an obligation to respect rather than to obey the law, which can sometimes give rise to a duty to engage in civil disobedience (Moraro 2019, ch. 6).

Given the assumption that people have a moral duty to obey the law and the concern that civil disobedience has the potential to destabilize society, Rawls famously raised the bar for the justified use of the practice, requiring acts of civil disobedience 1) to target serious and long-standing injustice and at the same time appeal to widely accepted principles of justice, 2) to be undertaken as a last resort, and 3) to be done in coordination with other minority groups with similar grievances (Rawls 1999, 326–9). These conditions for the justification of civil disobedience, which are critically examined in this part, are closely tied not only to the ostensible need to diffuse its destabilizing potential and discourage proliferation of the practice, but also to the efficacy and role of civil disobedience in society (which is explored further in 3.3).

Longstanding Injustice : Why did Rawls restrict the target of civil disobedience to entrenched, longstanding injustices – in particular, violations of the principle of equal basic liberties? For Rawls, civil disobedience’s chance of success rests on the clarity of the injustice: everyone must be able to recognize the violation as an injustice, given widely accepted principles of political morality. Racial segregation fell in this category, according to Rawls, but not economic inequality. Rawls thinks that appeals to publicly shared principles of constitutional morality (per the publicity-as-appeal requirement) are more likely to persuade the majority and succeed to bring about reform. Rawls, Jürgen Habermas, and Ronald Dworkin restrict both civil disobedients’ appeals and their possible targets: they exclude matters of policy, as well as injustices that do not consist of incontrovertible violations of widely accepted principles of justice.

Critics reject this justificatory condition because it arbitrarily excludes both progressive but not widely shared conceptions of justice (such as cosmopolitanism) and appeals to other principles of morality besides justice (say, regarding the ethical treatment of animals; Singer 1973, 86–92). And whereas Dworkin (1985, 111–2) finds anti-nuclear protest unjustifiable to the extent that it turns on judgments of policy instead of appealing to fundamental principles of political morality, Robert Goodin (1987) counters that the justice/policy distinction is flimsy and arbitrarily drawn and insists that civil disobedients should pursue the common good by protesting international and climate policies. Scholars also include in the class of justifiable targets private agents such as trade unions, banks, health insurance companies, labs, farm factories, and private universities (Walzer 1982, ch.2; Smith 2013, 55–6; Milligan 2013, ch. 11–12; S. Cooke 2016). Finally, observation of past and present social movements, including the Abolitionist movement, #MeToo, and Black Lives Matter, suggests that, rather than appealing to the public principles of political morality, civil disobedients may in fact seek to transform common sense morality.

Last Resort : What grounds the widely accepted requirement that civil disobedience be undertaken as a last resort? How do we know agents have met it? One position is that, in a liberal democracy, citizens should use proper legal channels of political participation to express their grievances (Raz 1979; though Raz grants that individual acts of disobedience can be justified in liberal regimes). But, since causes defended by a minority are often those most opposed by persons in power, legal channels may be less than wholly effective (Rawls 1999, 327). Moreover, it is unclear when a person could claim to have reached a situation of last resort; she could continue to use the same tired legal methods without end. To ward off such challenges, Rawls suggests that, if past actions, including by others, have shown the majority to be immovable or apathetic, then further attempts may reasonably be thought fruitless and the dissenter may be confident her civil disobedience is a last resort (1999, 328).

Minority Group Coordination : The coordination requirement is designed to regulate the overall level of dissent (Rawls 1999, 327). The idea is that since minority groups are equally justified in resorting to civil disobedience when they have sufficiently weighty objections, these groups should avoid undermining each other’s efforts through simultaneous appeals to the attention of society and government. While there is some merit to this condition, arguably civil disobedience that does not meet it can still be justifiable. In some cases, there will be no time or opportunity to coordinate with other minorities. In other cases, other minority groups may be unable or unwilling to coordinate. The refusal or inability of other groups to cooperate should arguably not affect the ultimate defensibility of a person’s or group’s use of civil disobedience.

A reason for Rawls to defend this coordination requirement is that often coordination serves a more important concern, namely, the achievement of good consequences. It is often argued that civil disobedience can only be justified if there is a high probability that it will produce positive change, since only such change can justify exposing society to the risks of harm usually associated with civil disobedience – namely, its destabilizing and divisive potential and the risk that it could encourage lawbreaking or escalate into uncivil disobedience. In response to these challenges, one might question the empirical claims that civil disobedience is divisive and that it has the consequence of leading others to use disobedience to achieve changes in policy. One might also question whether it necessarily would be a bad thing if civil disobedience had these consequences. Concerning likelihood of success, civil disobedience can seem most justifiable when the situation appears hopeless and when the government refuses to listen to conventional forms of communication. Additionally, even when general success seems unlikely, civil disobedience might be defended for any reprieve from harm that it brings to victims of a bad law or policy. Tree-hugging, for example, can delay or curtail a clear-cut logging scheme and thereby prolong the protection of an ecosystem.

The justification of civil disobedience further articulates the conditions for its effective role in society. Far from undermining the rule of law or destabilizing society, civil disobedience could strengthen the social and legal order. Civil disobedience can have a justice-enhancing value: it can serve “to inhibit departures from justice and to correct them when they occur” (Rawls 1999, 336). Equally, it can have a legitimacy-enhancing function, with some thinkers conceiving of civil disobedience as ‘the guardian of legitimacy’ (Habermas 1985, 103). Both ideas deem the practice of civil disobedience to be a valuable component of the public political culture of a near-just constitutional democratic society. Habermas even took the state’s treatment of civil disobedience as a ‘litmus test’ for the maturity of the political culture of a constitutional democracy: “Every constitutional democracy that is sure of itself considers civil disobedience as a normalized – because necessary – component of its political culture” (Habermas 1985, 99).

While Habermas’s account resembles Rawls’s liberal approach in many ways, its distinctive deliberative strand has also influenced democracy-based accounts, which defend the justification and role of civil disobedience on the basis of its contribution to democracy. Deliberative democrats (Markovits 2005; Smith 2013, ch. 1–3), republican democrats (Arendt 1972), and radical democrats (Celikates 2014, 2016) focus on the potential of civil disobedience to enhance democratic legitimacy and to constitute in itself a form of democratic empowerment. Agents engaged in civil disobedience can enhance democratic legitimacy in a number of ways, including by putting a heretofore-neglected issue on the political agenda and raising awareness about its stakes; contributing to and informing democratic deliberation; highlighting the outsize influence of powerful players and the exclusionary effects of certain processes of public deliberation, and working to make the latter more inclusive. Civil disobedience does not only aim to invigorate democratic sovereignty, but also can constitute a form of democratic empowerment in itself – an exercise of political agency that is especially meaningful for marginalized groups. Through civil disobedience, individuals discover and realize their power. They work together and forge bonds of solidarity. They engage in democratic politics. Theorists’ examples to illustrate democratic civil disobedience include: the Occupy Movement, pro-democracy movements around the world, anti-globalization and anti-austerity protests, climate justice activism, and Campesino movements for land redistribution and agrarian reform. Many activists further enact within their movement the norms and values that guide their struggles, for instance through radical inclusion, direct democratic decision-making, aspiration to consensus, and leaderless organizational structures. Some theorists insist on the need to align the means of protest with its aims, by deploying only persuasive, non-violent forms of protest that reflect democratic ideals (Habermas 1997, 383–4; M. Cooke 2016), while others contend that civil disobedience can be confrontational and coercive without betraying its democratic aims (Smith 2021; Fung 2005, 409).

A third approach to the value of civil disobedience, besides the liberal and democratic lenses, comes from the political realist perspective. Robert Jubb (2019) critiques Rawlsian accounts of civil disobedience for the binary theory of political authority they rest on: they take the whole political order to be either legitimate or illegitimate, and thereby ignore or deny the possibility that a regime may be authoritative in virtue of having a democratic mandate, yet fail to protect everyone’s basic liberties or to treat all its members as equals, for example. Jubb proposes instead to “disaggregate” political authority, that is, to distinguish between the different forms of authority which a political order may possess or lack, in order to make sense of the conditions under which different forms of protest and resistance may be appropriate. Other realists criticize both liberal and deliberative democratic perspectives for their deductive, top-down approach to moral analysis, their quest for rational consensus, and their assumption that people can be persuaded by rational arguments alone (Sabl 2001, 2021; Mantena 2012). Realist accounts of civil disobedience stress instead “the ubiquity of moral disagreement and the permanence of political conflict” (Sabl 2021, 153). Andrew Sabl, for instance, envisions civil disobedience as a properly ‘political technology’ (2021, 165), situated between submission and revolution, through which agents seek to effect change in the basic allocation of burdens and benefits by raising costs for adversaries, but without undermining the state’s basic functions such as its provision of public goods.

For her part, Mantena debunks the common understanding of Gandhi and King as committed in principle and absolutely to non-violence, showing that their endorsement of non-violence reflected concerns of political efficacy. They considered political violence to be “futile”, that is, ineffective for social change and likely to bring about “dangerous and perverse consequences in politics” (Mantena 2018, 84). In Gandhi’s view, violence would cultivate the wrong kind of independence for India and breed the wrong kind of polity, amounting to a mere change of personnel in a violent state and generating unstable conditions. Mantena identifies “three faces of nonviolent action”, which we can reframe as realists’ account of the triple value of civil disobedience: 1) morally, civil disobedience is the right means by which oppressed people can regain dignity and self-respect; 2) strategically, it is a necessary means to just and stable political results and future democratic concord; and 3) tactically, the dramatization of civil disobedients’ discipline works effectively to persuade opponents. Recent social scientific research has corroborated the effectiveness of non-violence in campaigns of civil resistance, which seek to topple dictatorships or colonial powers (Chenoweth and Stephan 2011; Schock 2015).

Many democratic theorists incorporate political realism in their approach as they strive to think about and “learn from the streets” (Celikates 2014), in a “bottom-up” approach designed to understand particular contemporary protest movements. This approach constitutes a stark departure from “top-down” liberal approaches like Rawls’s and Dworkin’s that require agents justify their disobedient protest before engaging in it. As Alexander Livingston puts it, many democratic and critical theorists today seek to draw “theoretical insights from protest movements themselves around the globe rather than legislating moral guidelines for activist praxis from the sidelines” (Çıdam et al 2020, 540). Guy Aitchison sees this as a central feature of the ‘new civil disobedience debate’, in which scholars seek to respond to ‘a new era of political protest and unrest’ characterized by “the proliferation and intensification of oppositional political action by groups challenging economic inequality, racist policing, immigration enforcement, austerity, war, climate change, financial oligarchy, privatization, and corporate domination of cyberspace” (Aitchison 2018b, 5, 7–8) – which theorists tend to be in broad sympathy with. Such bottom-up approach also diverges from David Lefkowitz’s and Kimberley Brownlee’s defenses of a moral right to civil disobedience that applies impartially to all acts of civil disobedience, justified or not (see 4.2).

4. Responding to Civil Disobedience

How should the state respond to civil disobedience? The question of appropriate legal response applies, first, to the actions of law-enforcers when deciding whether and how to intervene in a civilly disobedient action. It applies, second, to the actions of prosecutors when deciding whether to file charges and proceed to trial. Finally, it applies to the actions of judges (and juries) when deciding whether to convict and (for judges) how much to punish. All three contexts of legal sanctions beg the question of criminal law’s function.

How much punishment is appropriate for civil disobedients? Is punishment appropriate at all? If there is a right to civil disobedience, then, as we saw, it protects people from punishment. Even if there isn’t, is punishment indefensible if it sanctions morally justified civil disobedience? The tensions become clear when we consider the criminal law’s function, which is to punish and prevent crimes, that is, to tackle wrongful conduct. Unlike civil wrongs, which are privately brought, criminal wrongs are public wrongs: the polity, not the victim (there may not be any), prosecutes the alleged wrongdoer. Punishment, depending on one’s overarching account, serves to: dissuade people from committing the types of conduct identified as wrongful (Bentham 1789 [1970]); appropriately respond to those who culpably commit them (Moore 1997), including by engaging with them in a moral dialogue so that they repent and reform (Duff 1998); and/or express the community’s moral disapproval of such conduct (Feinberg 1994). So, we may ask, from the consequentialist, forward-looking standpoint, whether the state should deter civil disobedience; and, from a retributivist (desert-based) or communicative, backward-looking perspective, whether civil disobedients deserve the community’s censure (Bennett and Brownlee 2021).

If civilly disobedient breaches of law are public wrongs, comparable to or worse than ordinary offenses, then civil disobedients should be punished similarly or more severely than those who commit ordinary offenses. Kent Greenawalt lays out reasons to hold that civil disobedients deserve the same punishment as others who breach the same laws. First, the demands of proportionality would seem to recommend a uniform application of legal prohibitions. Since trespass is prohibited, persons who breach trespass laws in protest of either those laws or other laws would seem to be equally liable to persons who breach trespass laws for private purposes. Second, any principle that officials may use to excuse justified illegal acts will result in some failures to punish unjustified acts, for which the purposes of punishment would be more fully served. Even when officials make correct judgments about which acts to excuse, citizens may draw mistaken inferences, and restraints of deterrence and norm acceptance may be weakened for unjustified acts that resemble justified ones (Greenawalt 1987, 273). What follows is that all such violations, justified and unjustified, should be treated the same.

There also are reasons to believe that civil disobedients should be dealt with more severely than are others who have offended. First, as mentioned above, disobedients seem to have put themselves above the law in preferring their own moral judgment about a certain issue to that of the democratic decision-making process and the rule of law. Second, the communicative aspect of civil disobedience could be said to aggravate disobedient offenses since their communication usually is attended by much greater publicity than most covert violations are. This forces legal authorities to concern themselves with the possibility that law-abiding citizens will feel distressed, insecure, and perhaps imposed on, if no action is taken. So, notes Greenawalt, while authorities may quietly let minor breaches pass, failure to respond to violations performed, in some respect, in the presence of authority, may undercut claims that the rules and the persons who administered them deserve respect (1987, 351–2). Third, and related, civil disobedients often invite, and might inspire, other citizens to do what they do. Such risk of proliferation of civil disobedience and, further, of its escalation into lawlessness and violence, may support the imposition of more severe punishment for agents engaged in civil disobedience.

However, both the models of civil disobedience presented above, which stress its role and value in liberal democracies, and the arguments for the right to civil disobedience examined below, strongly push for the opposite view that civil disobedients, if punished at all, should be dealt with more leniently than others who have offended. The preceding discussion highlights that civil disobedience is in fact a public good – a crucial component of democratic culture, in Habermas’s words – and, hence, many theorists defend the state’s responsibility to treat civil disobedients leniently.

Dworkin argues that the state has a “special responsibility to try to protect [the civil disobedient], and soften his predicament, whenever it can do so without great damage to other policies” (Dworkin 1978, 260). The government can exercise its responsibility of leniency by not prosecuting civil disobedience at all, depending on the balance of reasons, including individual rights, state interests, social costs, and constitutional benefits. Reasons for prosecuting in any particular case are ‘practical’, not intrinsic or deontological, and always potentially defeasible. In general, prosecutors should not charge disobedients with the most serious offenses applicable and judges should give them light sentences. Leniency follows from the recognition of the special constitutional status of civil disobedience.

In this view, officials at all levels have the discretion to not sanction civil disobedients, and they should use it. Prosecutors have and should use their discretion not to press charges against civil disobedients in some cases, or to charge them with the least serious offense possible. Dworkin (1985) urges judges to engage in an open dialogue with civil disobedients (at least those who articulate legal arguments in defense of their actions) and dismiss their charges after hearing them, or to use their discretion in sentencing, for instance by accepting guilty pleas or guilty verdicts but imposing trivial punishments.

However, this proposal could amount to letting judges evaluate the worthiness of individual civil disobedients’ causes, which would not on its own guarantee judicial leniency. To the contrary, judges might well systematically decide against civil disobedients, upholding the special interests of the ruling class of which they are part. The proceduralist insistence on courts’ neutrality avoids this pitfall, and generally warns against turning courtrooms into political forums. Yet the transformation of courts into public fora might not be so insidious, and may indeed be part of a necessary institutional reform to provide civil disobedients with a platform, perhaps along the lines of Arendt’s (1972, 101–2) proposal to treat civil disobedients as a kind of people’s lobbyists (see Smith 2011).

For Rawls, there is only a moral right to engage in justified civil disobedience. But many other theorists defend at least a limited right to engage in civil disobedience irrespective of a particular act’s justification, given the general value of the practice. Dworkin (1978) outlines what such a right of conduct might look like, analogizing civil disobedients with Supreme Court justices, who test the constitutional validity of (unjust) law through direct disobedience of that law. In doing so, they can make law more faithful to the principles of justice and fairness that justify it (on Dworkin’s theory of law). Some theorists accept the value of constitutional challenges but argue that once the law is found by a high court to be constitutional and disobedients’ initial conviction is upheld, disobedients have a duty to accept their punishment and recognize the law’s validity (Fortas 1968; Nussbaum 2019, 177). In contrast, Dworkin argues that forcing citizens to obey court decisions – including the Supreme Court’s – would mean forcing them to do something their conscience forbids them to do, which would contravene the constitutional imperative, entrenched in the First Amendment and rooted in dignity, to respect individuals’ “right to conscience” and protect their freedom of speech.

The right to conscience, on this account, thus grounds a weak “right to break the law”. It is a right in the sense that one “does the right thing to break the law, so that we should all respect” the agent when she follows her conscientious judgment about doubtful law and refuses to comply with a law that requires her to do what her conscience forbids (Dworkin 1978, 228–37), but it does not ground a right in the strong sense that the government would do wrong to stop her from disobeying. In other words, on this view, the right to disobedience is deemed to be compatible with the state’s right to punish. Contra Cohen (1966, 6), Rawls (1999, 322), and others, however, Dworkin does not defend agents’ moral duty to accept punishment (1985, 114–5). He considers non-evasion of legal sanctions to be a good strategy for civil disobedients denouncing unconstitutional law and unjust policy ( justice - and policy -based civil disobedience on his view) but denies that accepting punishment is a conceptual, moral, or tactical requirement for civil disobedience motivated by personal convictions (‘integrity-based’ civil disobedience). For the latter, Dworkin argues that utilitarian reasons for punishing should be weighed against the fact that the accused acted out of principled convictions, and that the balance should generally favor leniency.

Joseph Raz puts forward a different account of the right to civil disobedience, insisting that this right extends to cases in which people ought not to exercise the right: it is part of the nature and purpose of rights of conduct that they give persons a protected sphere in which to act rightly or wrongly. To say that there is a right to civil disobedience is to allow the legitimacy of resorting to this form of political action for causes one opposes (Raz 1979, 268). That said, Raz places great emphasis on the kind of regime in which a disobedient acts, arguing that only in an illiberal regime could individuals have a right to civil disobedience to reclaim their political participation rights which their illiberal state is violating: they are entitled to “disregard the offending laws and exercise their moral right as if it were recognized by law.” Raz adds that “members of the illiberal state do have a right to civil disobedience which is roughly that part of their moral right to political participation which is not recognized in law” (Raz 1979, 272–3). By contrast, in a liberal state, the right to political activity is, by hypothesis, adequately protected by law and, hence, the right to political participation cannot ground a right to civil disobedience.

A different view of rights holds that when a person appeals to political participation rights to defend her disobedience, she does not necessarily criticize the law for outlawing her action. Lefkowitz maintains that members of minorities can appreciate that democratic discussions often must be cut short so that decisions may be taken, and those who engage in civil disobedience may view current policy as the best compromise between the need to act and the need to accommodate continued debate. Nonetheless, they also can point out that, with greater resources or further time for debate, their view might have held sway. Given this possibility, the right to political participation must include a right to continue to contest the result after the votes are counted or the decisions taken. And this right should include suitably constrained civil disobedience because the best conception of political participation rights is one that reduces as much as possible the impact that luck has on the popularity of a view (Lefkowitz 2007; see also Smith 2013, ch. 4; Ceva 2015).

An alternative response to Raz questions whether the right to civil disobedience must be derived from rights to political participation. Brownlee (2012, ch. 4) bases the right to civil disobedience on a right to object on the basis of sincere conviction. Whether such a right would fall under participation rights depends on the expansiveness of the latter rights. When the right to participate is understood to accommodate only legal protest, then the right conscientiously to object, which commonsensically includes civil disobedience, must be viewed as distinct from political participation rights.

A further challenge to a regime-focused account is that real societies do not align with a dichotomy between liberal and illiberal regimes; rather they fall along a spectrum of liberality and illiberality, being both more or less liberal relative to each other and being more or less liberal in some domains than in others. Perhaps, in a society that approximates a liberal regime, the political-participation case for a right to civil disobedience diminishes, but to make legally protected participation fully adequate, a liberal society would have to address Bertrand Russell’s charge that controllers of the media give defenders of unpopular views few opportunities to make their case unless they resort to sensational methods such as disobedience (1998, 635).

Philosophers have typically focused on the question of how courts should treat civil disobedients, while neglecting to apply that question to law enforcement. Yet the police have much discretion in how to deal with civil disobedients. In particular, they have no obligation to arrest protesters when they commit minor violations of the law such as traffic obstruction: accommodation of and communication with protesters is something they can but all too rarely decide to do. Instead, many governments practice militarized repression of protests. Local police departments in the U.S. often respond to demonstrations with riot gear and other military equipment. Also, the British government sought to strengthen public order laws and secure new police powers to crack down on Extinction Rebellion (XR), the global environmental movement whose street protests, die-ins, and roadblocks for climate justice have brought cities to a standstill.

One notable exception to the theoretical neglect of law enforcement is Smith’s (2013, ch. 5) articulation of a “policing philosophy” that orientates policing strategies toward accommodation, rather than prevention or repression, of civil disobedience. On Smith’s view, “the police should, where possible, cooperate with civilly disobedient activists in order to assist in their commission of a protest that is effective as an expression of their grievance against law or policy” (2013, 111). Accommodation requires communication channels between police and activists and involves strategies such as pre-negotiated arrests. While the U.S. often implements punitive and strong-handed law enforcement strategies, the U.K.’s current goal (at the time of writing) is, according to one senior police source, to develop ‘move forward’ – proactive and preventive – tactics that are designed to clear the streets of XR demonstrators. Neither approach respects anything like a right to civil disobedience.

A constitutional government committed to recognizing the right to civil disobedience would also have to reform part of its criminal laws and make available certain defenses. Brownlee proposes two. First, disobedients should have access to a “demands-of-conviction,” excusatory defense to point to the deep and sincere reasons they had for believing they were justified in acting the way they did (Brownlee 2012, ch. 5). Second, states should accept necessity as a justificatory defense for civil disobedience undertaken as a reasonable and parsimonious response to violations of and threats to non-contingent basic needs (Brownlee 2012, ch. 6). As these defenses suggest, constitutionally recognizing civil disobedience does not mean making civil disobedience legal. Disobedients would still be arrested and prosecuted, but they would get to explain and defend their actions in court. They would be heard.

There have been shifts in the paradigm forms and goals of civil disobedience over the past century, from the suffragettes’ militant activism in pursuit of their basic rights of citizenship to the youth climate movement’s school walkouts and mass demonstrations to demand governments take urgent action to combat the climate crisis. Even so, civil disobedience remains an enduring, vibrant part of political activism and, increasingly, benefits from transnational alliances.

Theorists have long assumed that civil disobedience only begs justification in liberal, democratic societies – the best real-world candidates for legitimate states. However, civil disobedience also raises questions in undemocratic and illegitimate contexts, regarding its overall role, strategic value, and tactical efficacy. For instance, disobedient protests in support of democracy in Hong Kong may not be presumptively impermissible given China’s authoritarian rule. Yet they still beg significant questions concerning the proper contours of extra-institutional dissident politics and the justification of uncivil and forceful tactics in repressive contexts, including violence against police and the destruction of pro-China shops and Chinese banks.

Finally, whereas theorists have tended to think of civil disobedience as generally undertaken to achieve worthy public goals, liberal democratic states have recently witnessed much disobedience in pursuit of anti-democratic and illiberal goals, including conscientious refusal to abide by antidiscrimination statutes and violations of, and protests against, laws requiring the provision of reproductive services and the public health measures enacted to slow the spread of the coronavirus. We may need a different lens than liberal and democratic theorists have offered to evaluate the full range of conservative social movements, counter-movements, and reactionary movements which resort to civil (and other forms of) disobedience.

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We thank Adrian Blau, Adam Cureton, Alan Hamlin, Jonathan Quong, Ben Saunders, Hillel Steiner, Zofia Stemplowska, John Tasioulas, Joseph Raz, and an anonymous referee for their useful suggestions. Thanks to Kelsey Vicar for research assistance.

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• The Martin Luther King Jr Research and Education Institute

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Home > UNIVERSITY-JOURNALS > SUURJ > Vol. 2 (2018)

Civil Disobedience: What Would Thomas Aquinas Do?

Rachael I. Yonek , Seattle University Follow

College of Arts and Sciences

Faculty Mentor

Natalie Cisneros

Faculty Editor

Kendall Fisher

Student Editor

Caroline Craighead

This essay analyzes Thomas Aquinas’ justification for civil disobedience via his theory of law. This will be accomplished by discussing Aquinas’ conception of the four types of law and what conditions must be met for him to support the use of civil disobedience. Using these conditions, the essay will then examine recent demonstrations and protests to see if modern civil disobedience is Thomistically justifiable. I will finish the discussion with an in-depth examination of the civil disobedience argument used by the prosecution at the Nuremberg Trials and draw conclusions as to whether Aquinas would have supported this argument. The thesis asserts that civil disobedience is not only just, but required in the instances of unjust law. This has far-reaching consequences in the present, as acts of civil disobedience have increased in force since the 2016 election.

Recommended Citation

Yonek, Rachael I. (2018) "Civil Disobedience: What Would Thomas Aquinas Do?," SUURJ: Seattle University Undergraduate Research Journal : Vol. 2, Article 17. Available at: https://scholarworks.seattleu.edu/suurj/vol2/iss1/17

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Home — Essay Samples — Social Issues — Civil Disobedience — A Critical Analysis of “Civil Disobedience” by Henry David Thoreau

A Critical Analysis of "Civil Disobedience" by Henry David Thoreau

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Henry David Thoreau online

Civil disobedience.

by Henry D. Thoreau

I heartily accept the motto, "That government is best which governs least"; and I should like to see it acted up to more rapidly and systematically. Carried out, it finally amounts to this, which also I believe--"That government is best which governs not at all"; and when men are prepared for it, that will be the kind of government which they will have. Government is at best but an expedient; but most governments are usually, and all governments are sometimes, inexpedient. The objections which have been brought against a standing army, and they are many and weighty, and deserve to prevail, may also at last be brought against a standing government. The standing army is only an arm of the standing government. The government itself, which is only the mode which the people have chosen to execute their will, is equally liable to be abused and perverted before the people can act through it. Witness the present Mexican war, the work of comparatively a few individuals using the standing government as their tool; for in the outset, the people would not have consented to this measure.

This American government--what is it but a tradition, though a recent one, endeavoring to transmit itself unimpaired to posterity, but each instant losing some of its integrity? It has not the vitality and force of a single living man; for a single man can bend it to his will. It is a sort of wooden gun to the people themselves. But it is not the less necessary for this; for the people must have some complicated machinery or other, and hear its din, to satisfy that idea of government which they have. Governments show thus how successfully men can be imposed upon, even impose on themselves, for their own advantage. It is excellent, we must all allow. Yet this government never of itself furthered any enterprise, but by the alacrity with which it got out of its way. _It_ does not keep the country free. _It_ does not settle the West. _It_ does not educate. The character inherent in the American people has done all that has been accomplished; and it would have done somewhat more, if the government had not sometimes got in its way. For government is an expedient, by which men would fain succeed in letting one another alone; and, as has been said, when it is most expedient, the governed are most let alone by it. Trade and commerce, if they were not made of india-rubber, would never manage to bounce over obstacles which legislators are continually putting in their way; and if one were to judge these men wholly by the effects of their actions and not partly by their intentions, they would deserve to be classed and punished with those mischievious persons who put obstructions on the railroads.

But, to speak practically and as a citizen, unlike those who call themselves no-government men, I ask for, not _at once_ no government, but at once a better government. Let every man make known what kind of government would command his respect, and that will be one step toward obtaining it.

Council on Science and Technology

Civil disobedience: breaking the law from socrates to the civil rights movement (em or ha).

This seminar uses canonical texts, alongside little known primary sources and works of historical analysis to examine the origins of Civil Disobedience theory and practice. We will discuss Civil Disobedience in the context of U.S. fugitive slave law, labor organizers occupying factories, the temperance protesters who went to jail by smashing barrels of rum, the pioneering use of mass civil disobedience by Gandhi, and, of course, the American Civil Rights Movement.

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The moral status of civil disobedience

This dissertation examines the moral character of civil disobedience. The discussion begins with a conceptual analysis of civil disobedience which eschews standard definitions in favour of a paradigm case approach, highlighting a parallel between the communicative aspects of civil disobedience and the communicative aspects of lawful punishment by the state. Foundations for a moral evaluation of civil disobedience are then laid down through, first, an examination of the nature of wrongdoin...

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The Limits and Dangers of Civil Disobedience: The Case of Martin Luther King, Jr.

Key takeaways.

America’s founding principles of natural rights and the rule of law permit the practice of civil disobedience narrowly conceived.

American civil disobedience in the theory and practice of Martin Luther King, is mainly—but not perfectly—in accord with those founding principles.

As King rightly understood, civil disobedience may only be undertaken: (1) for the right reasons; (2) in the right spirit; and (3) by the right people.

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Introduction

At the heart of the American character, evident since our nation’s birth, is a seeming paradox: Americans take pride in our self-image as a republic of laws and no less pride in our propensity toward righteous disobedience. The “very definition of a Republic,” John Adams remarked, “is ‘an Empire of Laws, and not of men’”—words he wrote in the spring of 1776, even as his compatriots were engaged in an armed uprising that they as a people, with Adams’s own assistance, would shortly thereafter declare to be revolutionary and justified by a law higher than any human law. [REF] Acutely aware of the turbulent history of republics, [REF] America’s revolutionary Founders hoped that Americans would prove exceptional in our lawfulness: lawful both in our obedience and, where need be, in our disobedience.

This idea of rightful disobedience has inspired protests in various degrees and kinds in America ever since the Boston Tea Party, and it continues to inspire such actions even to the present day. Beginning in the mid-20th century, however, a significant modification of the idea has gained legitimacy and prestige in this country and around the world, as many Americans and others have become persuaded that organized disobedience can be not only rightful and, in a higher sense, lawful, but also civil —it can effect a popular uprising against injustice even as it remains in conformity with the requirements of civility and social stability. [REF] Such actions have become increasingly normalized in post-1960s America, as groups protesting a wide range of issues—including, in a partial list, nuclear armaments, abortion, environmental policy, and more recently, alleged misdeeds in the financial-services industry, immigration policy, and alleged police misconduct—have laid claim to the method of civil disobedience.

Broadly defined, “civil disobedience” denotes “a public, non-violent and conscientious breach of law undertaken with the aim of bringing about a change in laws or government policies.” [REF]  The idea entered America’s public consciousness in 1849 via Henry David Thoreau’s essay “Civil Disobedience,” prompted by Thoreau’s objections to the Mexican War as an instrument of the slaveholding interest. [REF] Its present legitimacy and prestige, however, reflect the influence of the Civil Rights movement of the 1950s and 1960s, a movement characterized by its leader, Martin Luther King, Jr., as “the greatest mass-action crusade for freedom that has ever occurred in American history.” [REF] Prompted by that movement, America has undergone sea changes in law and in public sentiment regarding race relations and the antidiscrimination idea, and King’s “Letter from Birmingham Jail,” containing his most elaborate justification of the practice of civil disobedience, has become a widely anthologized writing and a fixture in U.S. secondary and collegiate civics education.

To its proponents, led by King, the idea of civil disobedience represents a compelling linkage of morality and efficacy, a happy marriage of moral ends to moral means in the pursuit of social or political reform. Yet, however glorious its historical associations and however appealing it may be on its face, the idea is complicated in its theoretical basis and problematic in its potential practical effects.

The conventional definition of civil disobedience leaves open some basic and challenging questions concerning its justifying causes and its permissible scope and objectives. How, for instance, are we to know that protestors’ claims of injustice are valid and the changes they demand are salutary? How can civil disobedience be explained and justified so as to foreclose the possibility that it could implicitly license uncivil, non-rightful disobedience, or to ensure that even its legitimate usages will not prove corrosive of the rule of law?

To its proponents, the idea of civil disobedience represents a compelling linkage of morality and efficacy, a happy marriage of moral ends to moral means in the pursuit of social or political reform.

Such questions reflect more than merely theoretical concerns. For enthusiasts of rightful disobedience (civil or not), events such as the American Revolution and the Civil Rights movement serve as congenial examples—but the participants in the slaveholders’ rebellion of 1861 and the mid-20th century campaign of “massive resistance” to desegregation no less firmly believed their causes to be just. Enthusiasts of civil disobedience proper should likewise recall the eruption of hundreds of urban riots in the years 1965–1968, almost immediately following the civil rights movement’s moment of greatest triumph. Moreover, all should consider the degree to which the successful practice of civil disobedience in the early 1960s, by virtue of its very success, has functioned in the post-Civil Rights era to normalize the practice of lawbreaking as an element of protest and commensurately to erode popular respect for law.

The nation’s experience over the past half-century or so highlights the need for a careful reconsideration of the case for civil disobedience. The discussion that follows is meant to provide such a reconsideration. Its primary finding may be summarized in this lesson: Civil disobedience is justifiable but dangerous. It is justifiable, where circumstances warrant, by the first principles of the American republic and of free, constitutional government, and it is dangerous in that it poses a threat to the rule of law. Consequently, its practice must be confined to rare and exceptional circumstances. The judgment as to when circumstances warrant, along with the practice of civil disobedience itself, must be governed by the most careful prudential regulation.

The judgment as to when circumstances warrant, along with the practice of civil disobedience itself, must be governed by the most careful prudential regulation.

The discussion begins with a consideration of America’s founding principles, focusing in particular on the natural-rights principles summarized in the Declaration of Independence, and then moves to an extended analysis of the arguments of Martin Luther King, Jr. It centers on King primarily because of the near-universal acclaim now accorded King’s “Letter,” which stands as the most influential defense of civil disobedience in our time, if not in all U.S. history. For present purposes, however, King serves as a source of useful lessons in both positive and negative ways.

Complications arise foremost from the fact that King did not hold a unitary and coherent position on civil disobedience. His argument for civil disobedience in the later phase of his career diverges significantly from the relatively moderate argument he presented in his earlier, more successful phase. That earlier argument, the argument presented in the “Letter,” conforms for the most part with the closely circumscribed idea of civil disobedience supported by the Founders’ understanding of natural rights and the rule of law. Yet even King’s earlier argument conforms only imperfectly with the Founders’ principles, and the manner in which it departs from them prefigures his excesses in his later phase.

The disorders that follow from ill-considered notions of civil or rightful disobedience are abundantly and frighteningly evident in the late 1960s and lately resurgent in lesser degrees. To ward off such disorders, it is necessary to sort out the virtues and vices of King’s arguments and to use the virtues in those arguments to light the way back to the sounder understanding of civil disobedience and the rule of law that is implicit in America’s first principles.

Civil Disobedience and America’s First Principles

In his major statement on civil disobedience, the “Letter from Birmingham Jail,” King wrote that the practitioner of civil disobedience does not disregard or undervalue the rule of law but, to the contrary, “express[es] the highest respect for law.” [REF] The rule of law itself, in his reasoning, entails the legitimacy of civil disobedience. A consideration of America’s first principles, as explicated in the political thought informing the American Founding, corroborates King’s view.

Americans’ simultaneous devotion to law and insistence on a right to disobey unjust laws signifies a fruitful tension in American principles, inherent in our foundational idea of the rule of law. “In republican governments,” wrote James Madison in Federalist No. 51, “the legislative authority necessarily predominates.” [REF] Madison followed the teaching of John Locke, who explained in his Second Treatise of Government that “the first and fundamental positive law of all commonwealths is the establishing of the legislative power,” which stands as “the supreme power of the common-wealth.” [REF]

The constitutional primacy of the legislative power is the institutional corollary of the rule of law. The legislative must be the primary, supreme power because the alternative to legislative supremacy is subjection to the arbitrary will of another—to the will of an unchecked, potentially despotic prince or ruling class. “Absolute arbitrary power,” Locke maintained, is equivalent to “governing without settled standing laws,” and to be subject to it is to be exposed to the worst evils of a state of war with another. Such exposure is a condition to be avoided at all costs; to escape or avoid it is the primary objective in the formation of political society. [REF]

When Locke said the ruling power “ought to govern” by law, he meant that the law must rule so “that both the people may know their duty … and the rulers too kept within their bounds.” [REF] In Locke’s design and in that of the American Founders, governmental powers are bounded in that they are limited to those specifically delegated by the people who are to be subject to them. In the Founders’ design, of course, the instrument for specifying those delegations is the U.S. Constitution, promulgated as the higher law to which the ruling authority is subject.

As the Declaration makes clear, the right to disobey the laws or decrees of unjust government, whether by civil or uncivil means, must be exercised with great caution.

For both Locke and the Founders, however, the ultimate law to which human government is subject—including the fundamental legislative authority of constitution-framers and ratifiers—is a law beyond human making, the law of nature. Legitimate, constitutional government can possess only those powers delegated to it by the people who are its constituents, and the people in turn can delegate only powers they rightfully possess under the law of nature. [REF]

It follows that should government attempt to exercise powers beyond those duly delegated to it, it would forfeit its legitimacy and therewith its claim to popular allegiance and obedience. The people in such circumstances hold rights to petition and protest, and should those appeals prove unavailing, to take action to effect such changes as are needed. In the Declaration of Independence, the ultimate recourse is a right, again where circumstances dictate, to full-blown revolution: “Whenever any form of government becomes destructive of [its proper] ends, it is the right of the people to alter or to abolish it, and to institute new government.”

Further, it should be clear that the imperative subjection to the rule of law applies no less to the people themselves, as represented by a ruling majority, than to government. “All … will bear in mind this sacred principle,” Thomas Jefferson noted, that “the will of the majority … to be rightful must be reasonable,” and to be reasonable it must respect the “equal rights” of the minority. [REF] A democracy is as capable of injustice as is a monarchy—and a societal majority as capable of it as a government. An aggrieved minority also has a right to take actions necessary and proper to prevent or correct governmental or societal transgressions. [REF]

At this point arises the issue of civil disobedience. In circumstances justifying greater forms of disobedience, it is reasonable to infer that lesser forms are permissible. Where uncivil or violent disobedience would be rightful but unwise, the lesser means of civil disobedience must likewise be rightful.

As the Declaration makes clear, however, the right to disobey the laws or decrees of unjust government, whether by civil or uncivil means, must be exercised with great caution. Because, as Madison put it, “the latent causes of faction are … sown in the nature of man,” [REF] the doctrine of a right to resist unjust government carries the danger that it might itself be put to unjust uses and thus might operate to undermine the rule of law. To provide against this danger, the Declaration appends to its announcement of the right “to alter or abolish” unjust government a crucial qualifying admonition: “Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes.”

Here, in fuller elaboration, is the logic informing the Declaration’s dictates of prudence with respect to actions leading up to and including revolutionary uprising. Revolution, the outermost extreme among acts of protest or resistance, is justified, according to the Declaration, only where all of the following conditions are present:

• government perpetrates or abets clear violations of natural rights, involving clear “abuses” and/or “usurpations”;
• the violations at issue are not isolated or exceptional but occur in “a long train” indicative of a “design” to subject their victims to “absolute Despotism”;
• the violations, persisting despite “repeated petitions” by the injured parties, are reasonably judged to be irremediable by any lawful measures;
• the violations are reasonably judged to be irremediable by any extra-lawful but non- revolutionary measures;
• the violations are reasonably judged to be remediable by revolutionary action.

Informing the Declaration’s admonition of prudence is the rule that revolutionary actions are to be taken only as a last resort—only in acquiescence to “necessity,” as the Declaration states, to the end of correcting injustice. Prudence, in other words, dictates a narrow-tailoring rule, according to which less radical alternative measures are to be preferred, explored, and exhausted prior to the adoption of more radical measures.

These prudential regulations circumscribing the right to revolution apply similarly to acts of civil disobedience. To say that less radical measures are to be preferred to more radical measures is to say that actions outside established legal and political channels are to be taken only where necessary and only so far as necessary. All plausibly viable lawful alternatives are to be attempted prior to the adoption of extra-lawful measures, just as all plausibly viable peaceful means are to be employed prior to any recourse to violent force. Protests against domestic injustices are to be conceived with a view toward preserving or restoring conditions of basic concord. They are to be conceived in the Declaration’s spirit of “justice and consanguinity,” and likewise in the spirit of Abraham Lincoln (“We are not enemies, but friends. We must not be enemies”) and of King (“the end is reconciliation; the end is redemption; the end is the creation of the beloved community”). [REF] For the same reason, they are to embody the greatest respect for man-made positive laws that circumstances permit.

Protests against domestic injustices are to be conceived with a view toward preserving or restoring conditions of basic concord.

This point concerning the regulation of civil disobedience by the dictates of prudence yields a vitally important corollary: Acts of civil disobedience are not necessarily revolutionary actions and do not necessarily rest on premises that justify revolutionary action. In the definition cited above, the general objective of civil disobedience, to effect a “change in laws or government policies,” encompasses a variety of possible specific objectives, ranging from reform of particular laws or policies to fundamental change in constitutional order. The correction of unjust government may not require radical, thoroughgoing regime change—and in the Declaration’s teaching of prudence, where such revolutionary change is not required, it is not permitted: Actions to “alter” unjust government are to be preferred, where possible, to actions taken to “abolish” it. All lawful alternatives are to be attempted prior to the adoption of extra-lawful measures, and all plausibly viable non-revolutionary measures are to be attempted prior to the adoption of revolutionary measures.

However paradoxical it might appear, America’s founding principles of natural rights and the rule of law permit the practice of civil disobedience narrowly conceived.

In the early Civil Rights Era, the paradigmatic acts of civil disobedience were designed to achieve relatively limited, reformist objectives. This fact, along with the profession of nonviolence, helps explain the mainstream legitimacy accorded such acts, but it also means that civil disobedience so conceived may pose a greater threat to America’s republican constitutional order than would a conception of civil disobedience as an inherently revolutionary practice. So far as it is dissociated from the objective of full, fundamental regime change, it would become more widely available and appealing as a means of mere reform, and thus normalized, it would tend to act over time to corrode popular respect for the rule of law. In cases of reformist no less than of revolutionary civil disobedience, it is therefore imperative to define clearly and to circumscribe closely the conditions under which this mode of protest is warranted.

In sum, however paradoxical it might appear, America’s founding principles of natural rights and the rule of law permit the practice of civil disobedience narrowly conceived. It is permissible, on those principles, only where necessary and, in a context of functioning constitutional, republican government, only in exceptional cases. As we will see, American civil disobedience in its most widely admired form, in the theory and practice of King, is mainly—but not perfectly—in accord with those founding principles.

Martin Luther King, Jr.’s Discovery of Civil Disobedience

From his adolescence to the end of his life, Martin Luther King, Jr., found inspiration in the promise inherent in the Declaration of Independence, although he was acutely aware that for black Americans, that promise had gone unfulfilled. In his very first public speech (as a prizewinner in his high school’s oratory contest), King protested that decades after Emancipation, “Black America still lives in chains.” For the remainder of his secondary and advanced education, he searched for the proper means, as he put it in that initial speech, to “cast down the last barrier to perfect freedom.” [REF]

In his first book, Stride Toward Freedom , King recalled the discoveries that would supply the moral power for the social revolution he envisioned. First was the famous essay by Thoreau, who therein declared:

I know this well, that if one thousand, if one hundred, if ten men whom I could name—if ten honest men only, ay, if one HONEST man, in this State of Massachusetts, ceasing to hold slaves , were actually to withdraw from this copartnership, and be locked up in the county jail therefor, it would be the abolition of slavery in America. [REF]

“During my student days at Morehouse,” King wrote, “I read Thoreau’s essay ‘Civil Disobedience’ for the first time. Fascinated by the idea of refusing to co-operate with an evil system, I was so deeply moved that I reread the work several times. This was my first intellectual contact with the theory of nonviolent resistance.” [REF]

A still more powerful influence was Mohandas (Mahatma) Gandhi, whose teaching King discovered as a seminary student a few years thereafter. He attended a talk on Gandhi’s life and teaching and found the message “so profound and electrifying” that he immediately bought a half-dozen books on Gandhi. “As I delved deeper into the philosophy of Gandhi,” King reported, “my skepticism concerning the power of love gradually diminished, and I came to see for the first time its potency in the area of social reform …. It was in this Gandhian emphasis on love and nonviolence that I discovered the method for social reform that I had been seeking.” [REF]

Here, for King, are the primary and overarching conditions of morally sound protest:

• Such protest must be nonviolent and must be animated by a spirit of love for the perpetrators of the injustice against which one protests.
• Nonviolent protest so conceived may or may not involve actions in violation of positive law, but where such protest does involve disobedience of law, it must be civil in character.
• In addition to being nonviolent, it must proceed from a devotion to the ideal of moral community.
• It must convey a respect for law as a necessary bond of moral community—including, so far as possible, the laws governing the particular community one means to reform.

As a subclass of nonviolent protest, civil disobedience in King’s understanding is marked by:

• a conscientious refusal to submit to a law deemed unjust;
• a respectful acceptance of the legal consequences (typically jailing) of one’s action; and
• a design to restore or to create a bond of community between the erstwhile victims and perpetrators of the injustice at issue.

King’s awareness of the power of civil disobedience as a protest method quickened in the course of his first nonviolent direct-action campaign, the Montgomery bus boycott, and developed further as he reflected on the sit-in movement initiated by black college students in early 1960. [REF] It reached its full fruition in the pivotal campaign of the entire movement, the Birmingham campaign in the spring of 1963, which occasioned his most extended and influential reflection on the subject.

King’s Classic Exposition of Civil Disobedience: The “Letter from Birmingham Jail”

On Friday, April 10, 1963—Good Friday—King marched purposefully to a Birmingham jail cell, where he was confined for leading a protest march in violation of a local ordinance. That same day, the local newspaper published a public letter addressed to King and his fellow protesters, written by a group of eight Birmingham clergy (seven Christian pastors and one rabbi). The eight were not segregationists; they were moderate proponents of gradual integration. Their letter, entitled “An Appeal to Law and Order and Common Sense,” urged the protesters to desist, arguing that direct-action street protests, especially those involving lawbreaking, were unhelpful as means for repairing race relations in Birmingham. Their appeal provided a perfect occasion for a response from King, who with other movement leaders had been contemplating, since a previous campaign in Albany, Georgia, the composition of a prison epistle to serve as a manifesto for their movement. Thus originated the famous “Letter from Birmingham Jail.” [REF]

The Objections to Civil Disobedience . In roughly the first third of the letter, King responded to the clergymen’s charge that it was imprudent of him to lead protests at that moment in Birmingham. He then turned to their specific objection to the tactic of civil disobedience. He conceded that it was “certainly a legitimate concern. Since we so diligently urge people to obey the Supreme Court’s decision of 1954 outlawing segregation in the public schools … [o]ne may well ask: ‘How can you advocate breaking some laws and obeying others?’” [REF]

The objection was familiar to King. It had been raised not only by moderate southern whites such as the eight clergymen but also by defenders of segregation and by some conservative, moderate, and even liberal black supporters of the cause. In a 1960 televised debate with King, the segregationist James J. Kilpatrick, editor of the Richmond News Leader , remarked that in the controversy over public school integration, “[W]e at the South … were exhorted on every hand to abide by the law … and it is therefore an interesting experience to be here tonight and see Mr. King assert a right to obey those laws he chooses to obey and disobey those that he chooses not to obey.” [REF] Prominent black leaders also objected to the practice of civil disobedience, as Emory O. Jackson, editor of the black newspaper The Birmingham World , Joseph H. Jackson, president of the National Baptist Conference, and even the great civil-rights attorney (and, subsequently, the first African-American U.S. Supreme Court Justice) Thurgood Marshall, all called for fidelity to the law in pursuance of the movement’s objectives. [REF]

Positive or man-made law must conform with higher law—with natural or divine law.

Reduced to its essence, King’s response appears in a simple, if paradoxical formulation: Civil disobedience is not lawlessness but instead a higher form of lawfulness. Drawing upon the higher-law tradition of American and western political thought, King argued that to qualify as law in the proper sense, a given statute or ordinance must conform with the principles of justice. Positive or man-made law must conform with higher law—with natural or divine law. If it conflicts with the higher law, it cannot be binding as law. “‘An unjust law is no law at all,’” King declared, holding it to be both a right and a moral duty to disobey any such measure: “[O]ne has a moral responsibility to disobey unjust laws.” [REF]

Beyond such simple formulations, King took seriously the objections Kilpatrick, the clergymen, and others raised. Mindful of the dangers in an excessively permissive justification, he rejected the sort of disobedience that “would lead to anarchy” and explained his own practice in terms that indicate an earnest intention to negate or minimize any anarchic effects. [REF]

As we will see, King failed to provide a rigorous account of civil disobedience, and it is also arguable that his practice of civil disobedience failed to adhere strictly to his principles. Yet despite these shortcomings, his discussion adumbrates several regulating and confining conditions that, properly elaborated, could supply a defensible justification of the practice. In summary, as King presented it in the “Letter,” civil disobedience may only be undertaken: (1) for the right reasons; (2) in the right spirit; and (3) by the right people.

King’s Defense: The Right Reasons . That civil disobedience may be practiced only for the right reasons is first and fundamental among the regulating conditions King suggested. This means that the practitioner of civil disobedience must judge properly in identifying unjust laws as the justification for disobedience. To repeat, King rejected the legal positivism that he imputed (unfairly) to his interlocutors: “We can never forget that everything Adolf Hitler did in Germany was ‘legal’ and everything the Hungarian freedom fighters did in Hungary was ‘illegal’.... I had hoped that the white moderate would understand that law and order exist for the purpose of establishing justice.” [REF] He also rejected the error Kilpatrick had ascribed to him, a reliance on conscience to distinguish just and unjust laws that reduces in practice to a mere idiosyncratic choice. It is notable in this regard that the numerous authorities King cited in the “Letter” do not include Thoreau, whose highly individualist idea of conscience, disdain for majoritarian democracy, and pronounced antinomianism King did not share. [REF]

Justice, King maintained, is manifest in a higher law that is accessible to human reason. A just law “is a man-made code that squares with the moral law or the law of God. An unjust law is a code that is out of harmony with the moral law.” An unjust law, he continued, invoking St. Thomas Aquinas, “is a human law that is not rooted in eternal law or natural law.” A law “that uplifts human personality is just,” and one that “degrades human personality is unjust.” Governmentally mandated segregation by color is unjust, because it “distort[s] the soul and damages the personality,” producing in perpetrators and victims false senses of superiority and inferiority. Like slavery in this respect, segregation violates the moral law by “relegating persons to the status of things.” [REF] Such practices and the positive laws that support them do violence to the divine and natural order by denying to some classes of human beings the status of full moral humanity or personhood.

Further, the dignity of human personality signifies the equal dignity of human persons. In King’s account, therefore, justice entails the principle of equality under law, and legitimate government derives from the consent of the governed. An enactment to which lawmakers subjected only others, not themselves, would be no true law, and a similar disqualification would apply to any legislation imposed upon an unjustly disfranchised portion of the population. [REF]

Acknowledging the seriousness of any act of lawbreaking, King recognized his responsibility to explain the criteria for judging the injustice of law and the rightfulness of disobedience. That is not to say that he fully met that responsibility, either in the “Letter” (which he continued to compose and revise after his release [REF] ) or elsewhere in his published work. King’s account of unjust laws in the “Letter” specifically targeted laws in America’s Old South that sustained race-based segregation and disfranchisement, laws inconsistent in principle with any plausible understanding of human moral equality. In that specific application, his explanation of just cause for civil disobedience may be judged successful. He was less successful, however, in clarifying the ideas of personhood and equality that were to supply the basis and the limiting principle for claims of rights and of rights violations.

Justice, King maintained, is manifest in a higher law that is accessible to human reason.

In the “Letter,” King indicated that the sources of his thinking about the moral law were eclectic. They included the Protestant theology of personalism that he had studied as a graduate student, [REF] the philosophy of Aquinas, and the charter of liberty that he described as a repository of America’s “sacred values, the Declaration of Independence.” [REF] Those sources contain overlapping (but not identical) accounts of the moral law and its basis, and King failed to explain precisely what he drew from each, how they were compatible with one another, or their order of priority in his argument. Nor did he address in the “Letter” the implications of his idea of equality for other, more difficult questions pertaining to justice in race relations and to the cause of social and political equality in general—questions controversial even among proponents of equality. Readers receive only very limited guidance as to how they are to judge, amid a wide range of plausible interpretive possibilities, what sorts of laws work to uplift or to degrade human personality.

The result of these shortcomings is that the argument of King’s “Letter,” while strong and clear enough to identify the injustice of racial segregation and disfranchisement, is also abstract and ambiguous enough to expose a broad range of positive laws to charges of injustice—and therefore, potentially, to acts of disobedient protest. One cannot say that King’s explanation of the distinction between just and unjust laws suffices in itself to ward off the charges of anarchism leveled by critics. To establish the compatibility of his practice of civil disobedience with the rule of law, he needed to say more.

Readers receive only very limited guidance as to how they are to judge, amid a wide range of plausible interpretive possibilities, what sorts of laws work to uplift or to degrade human personality.

The Right Spirit . King’s second main regulating condition, that civil disobedience must be undertaken in the right spirit, means foremost that civil disobedience must convey a proper respect for law. In the endeavor to fulfill the law, the would-be reformer must be properly mindful of the danger of destroying it. Civil disobedience must convey a respect for the authority of law as an indispensable and inherently fragile instrument of human governance, no less than for the rational principles from which the law must ultimately derive. Moreover, as his illustrations of unjust law make clear, it must convey a special respect for the authority of democratically enacted law. Against his critics, King insisted that civil disobedience signifies no disrespect but, to the contrary, “the highest respect for law.” [REF] For King, as in the logic of the Declaration, civil disobedience may be practiced only where necessary and only so far as necessary to the purpose of reforming an unjust human law.

To practice civil disobedience only where necessary means, in the precise sense, to practice it as a next-to-last resort, short only of uncivil or violent resistance to tyranny. In the Declaration, as previously noted, prudence dictates that action to alter or abolish an unjust order may be taken only by “necessity”—only after “patient sufferance” of “a long train of abuses,” wherein “repeated Petitions” offered “in the most humble terms … have been answered only by repeated injury.”

In the “Letter,” King contended that the history of race in America met and exceeded those criteria. “We have waited for more than 340 years for our constitutional and God-given rights.” In the specific locale of Birmingham, anti-black segregation was enforced by the most brutally violent means. “There have been more unsolved bombings of Negro homes and churches in Birmingham,” King reported, “than in any other city in the nation.” In response, “Negro leaders sought to negotiate with the city fathers. But the political leaders consistently refused to engage in good-faith negotiation.” Nor was there a legitimate opportunity for effecting change by the normal electoral process: “Throughout Alabama all typesof devious methods are used to prevent Negroes from becoming registered voters.”

In sum, King argued, “we had no alternative” but to engage in street protests, and—after Birmingham Police Commissioner Eugene “Bull” Connor obtained an anti-demonstration injunction from an Alabama court—no alternative but to engage in civil disobedience. Our impatience, he said, was “legitimate and unavoidable.” The implication is that civil disobedience was undertaken as a last, nonviolent resort and was justified as such. [REF]

The action in Birmingham was King’s first disobedience of a court order, and he found it a very difficult decision. For present purposes, the fundamental questions concern whether his judgments to disobey the court’s injunction and to justify that disobedience by an appeal to natural and divine law rather than U.S. constitutional law are properly characterized as last resorts, taken in response to a genuine necessity. In the “Letter,” King contended that as applied to his direct-action campaign, the ordinance that the injunction was issued to enforce was a violation of the U.S. Constitution, in particular of the First Amendment’s guarantee of rights of peaceful assembly and protest. He added that “federal courts have consistently affirmed” his position that the threat of violence by others—the so-called “rioter’s veto—provides no legally defensible ground for an abridgement of the right of peaceful protest. [REF]

The difficulty in King’s position appears still more challenging in light of the impressive victories equal-rights activists had achieved over the previous two decades by a combination of political pressure and legal challenges. Those victories included:

• Executive Order 8802, issued in 1941 by President Franklin D. Roosevelt under pressure from A. Philip Randolph, mandating antidiscrimination provisions in government defense contracts;
• Executive Order 9981, issued in 1948 by President Harry S. Truman, mandating the desegregation of the U.S. armed services;
• the U.S. Congress’s enactment of the Civil Rights Acts of 1957 and 1960; and
• above all, the U.S. Supreme Court’s landmark Brown v. Board of Education ruling, the culmination of the National Association for the Advancement of Colored People’s (NAACP’s) campaign of legal challenges to segregation and other discrimination.

So far as it was taken not as a last resort but, to the contrary, amid a period of accumulating successes for the equal-rights cause achieved by scrupulously lawful means, King’s decision to practice civil disobedience in Birmingham appears precipitant, unwarranted by his own criterion of justification. Pursuant to his own insistence on respect for law, it appears that King’s proper initial recourse in Birmingham was the legal channel of judicial appeal rather than disobedience, and that until legal and political channels for reform proved clearly unavailing, his justification for his actions should have remained within the realm of positive, constitutional law.

Two main considerations, however, convinced King of the immediate necessity of civil disobedience in the Birmingham campaign. He believed that among the available channels for such demands, action via the court system was at best dilatory and often ineffectual; it needed reinforcement by direct-action, demonstrative protest. Further, he was convinced that his direct-action movement, having suffered notable setbacks since the initial victory in Montgomery in 1956, had arrived at a crisis moment in Birmingham, such that any significant delay at that juncture would likely prove fatal to the movement as an effective force for reform. Noting that “the injunction method” was proving an effective tool for segregationists in thwarting blacks’ rights to peaceful protest, King therefore decided to reject his father’s advice to submit to the court’s ruling. [REF] “If we obey this injunction,” he concluded, “we are out of business.” [REF]

In Birmingham, the very citadel of southern segregation, the movement would either revitalize itself, King believed, or it would fail and all previous gains would come to naught. Here is the key point: King’s actions in Birmingham and elsewhere were born of a deep impatience, informed, as he wrote in the “Letter,” by a centuries-long history of injustice, including promises made and unfulfilled, that had taught him to equate slow or partial progress with no progress: “Half a loaf is no bread.” [REF] Despite his generally gracious recognition of NAACP efforts, King held that the courtroom victories won by that senior organization, along with the other apparent successes achieved in the electoral branches to that point, would prove practically worthless unless reinforced by further, stronger measures that would be enacted only in response to sustained, intensified pressure. [REF] At bottom, it was this deep mistrust for merely partial, preparatory, or ephemeral gains that moved him to consider civil disobedience a moral imperative.

Recall, too, however, that civil disobedience as King conceived it was to be practiced only so far as necessary. Even where it proves necessary to disobey an unjust law, to disobey the law in its entirety may be unnecessary to the purpose of reform—and indeed may conflict with that purpose. To convey the proper respect for law, one must obey as much of the law as possible. In a general sense, King’s conformity with this precept in the first phase of his activism appears, despite his sometimes eager usage of the language of revolution, in his scrupulous expressions of respect for the principles and institutions established by the American Founders. In its most concrete manifestation, however, the precept of obeying law so far as possible appears in his insistence on submitting to the legally prescribed punishment for disobedience. “In no sense do I advocate evading or defying the law,” he explained. “One who breaks an unjust law must do so openly, lovingly, and with a willingness to accept the penalty.” [REF]

In this way both the disobedience and the acceptance of the penalty are essential to King’s effort to reform the law by means of moral suasion.

King’s distinction between disobedience that is evasive or defiant and disobedience marked by acceptance of the authority of law is vividly meaningful in context. The former described the practice of “rabid segregationist[s],” while the orderly disobedience of freedom movement protesters exemplified the latter. To gain a full, sympathetic understanding of King’s position, it is necessary, as King scholar Jonathan Rieder has commented, to think concretely about the distinction: “In Birmingham, the lawbreakers [castrated] a black man; they bomb[ed] ordinary families …. Bull Connor, the chief lawman, colluded with the Klan so they could carry out bloody mayhem on Freedom Riders.” Given the context, it would seem a gross distortion of perspective to see in King’s and his fellow protesters’ actions a danger to law and order comparable to that posed by pro-segregation extremists. [REF]

The insistence on accepting the prescribed penalty for disobedience was integral to King’s larger design of presenting to the broad American public the sharpest possible contrast between the characteristically lawful practitioners of disobedience and the lawless defenders of the local statutes and ordinances. It was integral, in other words, to his larger design of exposing the stark conflict between local positive laws sustaining racial subordination and the moral laws of nature. To reform the city’s—and the region’s and the country’s—laws, it was necessary to expose that conflict, and to expose that conflict it was necessary to demonstrate to a national public the effect of those laws in inflicting brutality and imprisonment on a class of decent and law-abiding people, who would demonstrate those qualities most visibly by their voluntary acceptance of the penalties for disobeying the city’s law. In this way both the disobedience and the acceptance of the penalty are essential to King’s effort to reform the law by means of moral suasion.

The Right People . Conceiving of civil disobedience as a willing submission of self to a higher discipline, King made clear that this mode of protest carried a high risk. He noted the silence in the room when, at a meeting of supporters to finalize plans for the Birmingham campaign, Reverend Fred Shuttlesworth of Birmingham remarked, “You have to be prepared to die before you can begin to live.” King meant quite literally his statement in the “Letter” that in direct-action protest, his group “would present our very bodies as a means of laying our case before the conscience of the local and the national community.” His praise for the protestors’ “sublime courage” was no mere exercise in boosting morale. [REF]

The dangers were sufficiently great that the average person, naturally concerned for the preservation of life and limb, could not be presumed willing or able to brave them. Something similar was true with respect to the indignations and provocations to which protestors would be subjected, which could be expected often to surpass the limits of the average person’s patience. The practice of civil disobedience required a special kind of person—meaning, in most cases, a specially trained kind of person. “Mindful of the difficulties involved,” King wrote, “we decided to undertake a process of self-purification. We started havingworkshops on nonviolence, and we repeatedly asked ourselves the questions: ‘Are you able to accept blows without retaliating?’ ‘Are you able to endure the ordeal of jail?’” [REF]

The training that protesters received was rigorous in itself, but the moral formation King judged requisite to nonviolent protest and properly civil disobedience required more than any relatively brief workshop could produce. What sort of person, marked by what sorts of qualities, volunteers for such training in the first place? A concern about injustice was a minimum condition, but King insisted that civil disobedience must be animated also by an ethic of love and service for other human beings, including perpetrators as well as primary victims of injustice.

Indicative of the moral qualities required are the tenets of the “Commitment Card” the leadership of the Southern Christian Leadership Conference (SCLC) required volunteers to sign:

I hereby pledge myself—my person and body—to the nonviolent movement. Therefore I will keep the following ten commandments: 1. Meditate daily on the teachings and life of Jesus. 2. Remember always that the nonviolent movement in Birmingham seeks justice and reconciliation—not victory. 3. Walk and talk in the manner of love, for God is love. 4. Pray daily to be used by God in order that all men might be free. 5. Sacrifice personal wishes in order that all men might be free. 6. Observe with both friend and foe the ordinary rules of courtesy. 7. Seek to perform regular service for others and for the world. 8. Refrain from the violence of fist, tongue, or heart. 9. Strive to be in good spiritual and bodily health. 10. Follow the directions of the movement and of the captain on a demonstration. [REF]

It is meaningful, if unsurprising, that the SCLC required of protesters a commitment suffused with the moral spirit of Christianity. Granted, the commitment pledge did not quite signify a religious test for participation; it required meditation on Jesus’s teaching, not worship of Jesus, and it required prayer to a God of love, not necessarily to the God Christians recognize. [REF] Nonetheless, it is significant that King stipulated, as a requisite of civil disobedience, that the practitioner must possess a distinctive set of religiously grounded moral qualities, including a firm commitment to a higher, natural and divine law and a faith that suffering in the service of that law can be redemptive for oneself and others. He proudly described his movement as “a mass-action crusade,” but by insisting on proper training and character formation, he made clear that not simply anyone was suitable for direct-action protest and civil disobedience: “Not all who volunteered could pass our strict tests.” [REF]

King’s Achievement . Judged by its main objectives of reforming the law and strengthening the bonds of moral community, King’s direct-action protest movement of the 1950s and early 1960s appears to have been a resounding success. The Birmingham campaign, epitomized by the now-canonical “Letter,” is credited with generating an irresistible momentum for the passage of the Civil Rights Act of 1964. The subsequent campaign in Selma, organized on the same principles and initiated by its own act of civil disobedience, generated a similar energy for the enactment of the Voting Rights Act of 1965. Those two statutes constitute the most ambitious and effective civil- and political-rights guarantees in the nation’s history, and their enactment coincides with the onset of a profound reformation in Americans’ moral sentiments about race relations.

Admirers of King and the movement might contend further that these successes were achieved by generally peaceful means, without effecting lasting ruptures in civil order in the southern venues in which protesters campaigned. Critics had predicted that the tactics of direct action and civil disobedience would degenerate into uncivil disobedience, marked by lawlessness and violence. Those evils did ensue—but as King emphasized, they came in the main from the actions of segregation’s defenders, not from its protesters. The protests he led and supported did not incite violence so much as they exposed pre-existing violence to the view of a national public. By attaching to the practice of civil disobedience the regulatory conditions that he described in the “Letter,” King helped contain disorders that might otherwise have so expanded as to scuttle the possibility of meaningful reform. By this means, his admirers might plausibly argue, King acknowledged the seriousness of critics’ major concern and effectively addressed it.

Nonetheless, critics of King’s arguments and actions relative to civil disobedience even in this more successful phase of his career have a point in warning of their tendency to propagate disrespect for law and an enthusiasm for (purportedly) righteous disobedience. It is not clear that a patient reliance on the judicial process in the Birmingham campaign would have doomed the direct-action movement to failure, as King feared. One might also discern in King’s eagerness to deploy the language of revolution and natural rights in preference to that of constitutional law a certain zeal for revolution at odds with his insistence on respect for positive law. One might further suggest that even in the first phase of his activism, King’s actions and his rhetoric did not fully accord with the strict criteria for civil disobedience that he adumbrated in the “Letter.” Critics have a point in charging that King bore a measure of responsibility for the eruptions of lawlessness that would begin to sweep U.S. cities from 1965–1968, even as the direct-action movement was achieving its greatest triumphs. [REF]

The details of his second-phase proposals varied over time, but the general idea was to call for a new federal antipoverty initiative, unprecedented in size and scope.

For his own, very different reasons, King, too, judged the first phase of his movement as only a partial and mixed success. In this respect, his dissatisfaction with the “half a loaf” gained in previous decades applied also to his movement’s accomplishments, which marked, in his view, not the end of its work but only “the end of the beginning,” as President Lyndon Johnson said in anticipation of the Voting Rights Act. [REF]

In the years that followed, King would radicalize his calls for civil disobedience.

Civil Disobedience Radicalized

“With Selma and the Voting Rights Act,” King wrote in his final book, Where Do We Go From Here? “one phase of development in the civil rights revolution came to an end.” He announced the advent of a second phase, targeting conditions in impoverished urban ghettoes across the country and aiming at “the realization of [socioeconomic] equality” across lines of class and color. [REF] The details of his second-phase proposals varied over time, but the general idea was to call for a new federal antipoverty initiative, unprecedented in size and scope. Dissatisfied with Johnson’s “War on Poverty,” King called for a multifaceted “real war on poverty” designed to provide “jobs, income,” and housing for all in need of them: in sum, “a new economic deal for the poor,” consisting in “a massive, new national program.” [REF]

To hasten the achievement of his second-phase objectives, King renewed and intensified his call for civil disobedience. In the fourth of his Massey Lectures, [REF] delivered in late 1967 and published under the title, The Trumpet of Conscience , he stated:

There is nothing wrong with a traffic law which says you have to stop for a red light. But when a fire is raging, the fire truck goes right through that red light, and normal traffic had better get out of its way …. Or, when a man is bleeding to death, the ambulance goes through those red lights at top speed. There is a fire raging now for the Negroes and the poor of this society …. Disinherited people all over the world are bleeding to death from deep social and economic wounds. [REF]

Even after the enactment of the Voting Rights Act, King believed, America remained in a state of social emergency, “a desperate and worsening situation” even more serious than the country had faced in 1963. King held further acts of civil disobedience to be warranted because he regarded prevailing conditions of poverty and rising discontentment as effects of a set of “terrible economic injustices” no less grievous and even more widespread than the wrongs of the Jim Crow regime: “In our society it is murder, psychologically, to deprive a man of a job or an income …. You are in a real way depriving him of life, liberty, and the pursuit of happiness, denying in his case the very creed of his society. Now, millions of people are being strangled that way.” [REF]

Violent in itself, that injustice was in King’s view also violent in its emerging effects—above all in the rioting that began in Watts just days after the Voting Rights Act became law and spread, in the two years thereafter, to hundreds of cities across the U.S. As was the case in Watts, the riots were often precipitated by disputes involving police—but evidence suggests that neither charges of police brutality nor discontentment at socioeconomic deprivation was the predominant cause. Anger at the brutality inflicted upon King and the southern protesters was, however, widespread among northern blacks. Whatever the broader causes, the Watts riots left 34 people dead and over 1,000 injured. Two years later, a riot in Detroit wrought even greater destruction. [REF]

The failure of federal authorities to adopt antipoverty measures on the schedule—and in the degree and kind he desired—necessitated, in King’s view, a new round of protests.

King was profoundly alarmed at these events and at the corresponding emergence of the “black power” faction that rejected his calls for nonviolent means and integrationist ends. Believing that only prompt remedial action by the federal government could bring peace to the cities, he amplified his demands for the enactment of his phase two, antipoverty measures as “an emergency program.” Congress’s failure to enact that program angered him; he called it a provocation and ascribed it to a “white backlash” indicative of a broader and deeper racism among whites than he had previously estimated. The failure of federal authorities to adopt antipoverty measures on the schedule—and in the degree and kind he desired—necessitated, in King’s view, a new round of protests. He reiterated his calls for nonviolent action, including civil disobedience, but this time in a significantly modified form. In his first Massey Lecture, he declared:

Nonviolent protest must now mature to a new level to correspond to heightened black impatience and stiffened white resistance. This higher level is mass civil disobedience. There must be more than a statement to the larger society; there must be a force that interrupts its functioning at some key point … Mass civil disobedience as a new stage of struggle can transmute the deep rage of the ghetto into a constructive and creative force. To dislocate the functioning of a city without destroying it can be more effective than a riot because it can be longer-lasting, costly to the larger society, but not wantonly destructive. [REF]

King called this modified conception a more “mature” form of civil disobedience. A closer analysis makes clear, however, that it signifies a radical departure from the practice he defended in the “Letter.” Whereas in that earlier account he explained that civil disobedience must be practiced only for the right reasons, in the right spirit, and by the right people, the “mass civil disobedience” he advocated in 1967 effects decisive modifications of all three of those regulating conditions.

Reasons . King characterized poverty and unemployment as deprivations of the rights of life, liberty, and the pursuit of happiness, and he conceived of poverty as a form of segregation. [REF] He contended that the social and economic rights he demanded are no less firmly rooted in America’s first principles than are the civil and political rights for which he campaigned in his movement’s first phase. These are untenable claims.

The difficulty appears first in the fact that, as King at times acknowledged, his expansive, second-phase conception of rights was rooted in principles outside America’s constitutional tradition: “We have left the realm of constitutional rights,” he remarked in Where Do We Go From Here? “and we are entering the area of human rights.” [REF] To say that King’s later claims about rights fall outside America’s constitutional tradition is not necessarily to discredit them, but by construing poverty itself as indicative of injustice, irrespective of any action or inaction by those who suffer it, he implicitly placed rights on an infirm foundation. He adopted an idea of rights grounded in indefinite human needs rather than in definite and distinctive human faculties, thus leaving rights claims with no clear foundation or limiting principle even as he endorsed a great expansion of those claims. [REF]

By adopting this controversial and problematic conception of rights, King effectively discarded his earlier regulating condition that civil disobedience may be undertaken only for the right reasons, clearly identifiable as such in the light of the natural law philosophy exemplified in the U.S. constitutional tradition.

King characterized poverty and unemployment as deprivations of the rights of life, liberty, and the pursuit of happiness, and he conceived of poverty as a form of segregation.

Spirit . King’s later conception departs, too, from his earlier insistence that civil disobedience must be practiced in a spirit of respect for law, respect for democratic governance, and redemptive good will, manifesting a desire for reconciliation with one’s erstwhile adversaries.

A corollary of King’s earlier position that civil disobedience may be practiced only where necessary is that such disobedience should cease as soon as possible—i.e., as soon as the necessary reforms are achieved or lawful, political avenues to their achievement become available. Mindful of the same socioeconomic conditions that alarmed King, Bayard Rustin (King’s longtime adviser and perhaps the movement’s shrewdest tactician and organizer) called for activism within the regular democratic processes of petition, electoral persuasion, and voting; he endorsed “a strategic turn toward political action and a temporary curtailment of mass demonstrations.” [REF] By failing to heed Rustin’s advice, King departed from his previously stated principles regarding civil disobedience. At least momentarily, he lost faith in the democratic processes the Voting Rights Act had newly reformed.

King departed from his previously held regulatory principles in another, related respect. Note that in his call for a more “mature” form of civil disobedience, he emphasized the exercise of “force” aimed at interrupting society’s functioning “at some key point.” [REF] In the “Letter,” King explained civil disobedience as a form of moral suasion, designed “to arouse the conscience of the community.” [REF] The earlier model of civil disobedience thus contrasts sharply with the model King later proposed, which was not demonstrative or persuasive in character but instead disruptive and coercive and, moreover, targeted not unjust laws but instead just laws necessary to the ordinary functioning of society. The latter sort of action is unintelligible as a claim upon conscience. To the contrary, it signifies a purposeful encroachment on others’ rights and interests as members of civil society.

King’s illustrations of the sort of actions he envisioned are useful in clarifying the distinction. His first illustration was offered as a hypothetical, though it has since become a common method in actual protests. Traffic laws are not in themselves unjust, King allowed, but their operation may be legitimately suspended for emergency purposes. The disruption of traffic, infringing on a right of access to a public road, is in his view a permissible means of extracting a public concession to an aggrieved group’s demands. He offered a second illustration in the form of a direct suggestion. “[We] will move on Washington,” he resolved, “determined to stay there until the legislative and executive branches of the government take serious and adequate action …. A delegation of poor people can walk into a high official’s office with a carefully, collectively prepared list of demands. And if that official [is nonresponsive], you can say, ‘All right, we’ll wait.’ And you can settle down in his office for as long a stay as necessary.” [REF]

In advocating this radicalized form of civil disobedience, King contended that those who perceive a serious societal injustice have the right to disobey just laws to the end of reforming unjust laws or policies. They have the right, by his logic, to violate the rights of innocent parties (travelers, office workers, or public officials, along with their clients, patrons, and constituents). So understood, King’s later idea of civil disobedience is properly if bluntly characterized as a form of extortion clothed in moral purposes. It is plainly at odds with his insistence on the correspondence of moral ends and moral means. [REF] It is no less at odds with his insistence that the ultimate objective of direct-action protest and civil disobedience is reconciliation between the erstwhile victims and perpetrators of injustice, enabled by a “change of heart” in the latter. [REF]

King’s later idea of civil disobedience is properly if bluntly characterized as a form of extortion clothed in moral purposes.

People . Finally, as for the principle that civil disobedience may be practiced only by people of properly formed character, King’s call for an expanded and disruptive campaign of civil disobedience did include a training period. Describing his plan to recruit “three thousand of the poorest citizens” from various urban and rural areas to participate in a “Poor People’s March on Washington,” he indicated that “this nonviolent army, this ‘freedom church’ of the poor, will work with us for three months to develop nonviolent action skills.” [REF]

Even so, King’s remarks relative to the character and motivations of this newly recruited “army” suggest that here, too, he departed significantly from his earlier account. Although the enlistees in that new army might receive training similar to what their first-phase predecessors received, the fact remains that the latter, drawn substantially from a population of southern churchgoers imbued with a Christian ethic of love and service, were beneficiaries of a moral heritage that many of those solicited for the later phase did not share. Attempting to find virtue in the difference, King offered a troubling description of the prospective participants in his second-phase project, highlighting not their moral discipline but their social desperation: “The only real revolutionary, people say, is a man who has nothing to lose.” [REF]

In a similar vein, King attempted to find even in the riots themselves support for his contention that the disaffected urban poor constituted a promising new class of potential pilgrims to nonviolence. Among “the most striking features of the city riots,” he argued, was that “the violence, to a startling degree, was focused against property rather than against people.” The overwhelming majority of people killed during the riots, he went on, were protesters killed by law enforcement officers. In those facts, he discerned an “unmistakable pattern,” in which “a handful of Negroes used gunfire substantially to intimidate, not to kill; and all of the other participants had a different target—property.” On closer examination, then, the riots were actually characterized by a “restraint” that gave cause for hopefulness. King concluded: “If one can find a core of nonviolence toward persons, even during the riots when emotions were exploding, it means that nonviolence should not be written off for the future as a force in Negro life.” [REF]

King’s apologetic discussion of the rioting raises troubling questions. What defensible basis is there for his finding of “a core of nonviolence” in acts of intimidation against persons and of violence against property? Is there any tenable moral distinction between the intimidation he equivocally decried and the disruption and coercion he advocated as elements of his “mature” form of civil disobedience? On what ground could he continue in his second-phase arguments to affirm the moral imperative of nonviolence, given his justification of coercion? On what ground could he locate the natural rights of persons, given his denigration of the property right—a right affirmed in classical natural-rights philosophy as a direct corollary of the liberty of the person? [REF] Finally, in his second-phase advocacy of intensified civil disobedience—justified, he claimed, by the force of the “white backlash” and the depth of white racism in America—what remained of the ethic of redemptive love that animated his first-phase argument?

King attempted to find even in the riots themselves support for his contention that the disaffected urban poor constituted a promising new class of potential pilgrims to nonviolence.

To such questions King offered no compelling answers. The conclusion seems inescapable that in his desperate zeal to add rapid socioeconomic uplift to his movement’s previous victories in securing civil and political rights, King again neglected a piece of wise counsel from Rustin, who observed: “There is a strong moralistic strain in the civil rights movement which would remind us that power corrupts, forgetting that absence of power also corrupts.” [REF] Especially in his final two years, King overestimated his ability to govern the anger of the urban poor that he purposely assisted in arousing. He lent his moral authority to a radicalized form of civil disobedience that was more likely to sow disrespect than respect for law and more likely to foster division than moral reconciliation.

“One of the great glories of democracy,” King remarked at the outset of the Montgomery Bus Boycott, “is the right to protest for right.” [REF] Americans in the exercise of that right gave birth to a new and singular republic, and the same right endures as an endowment by nature and a precious national heritage. Of this venerable right, the practice of civil disobedience is extolled by its proponents as an ingeniously conceived variant—a finely calibrated method of protest, at once safe and effective—not so radical as needlessly to unsettle an established order and just radical enough to remediate governmental or societal injustices.

This right, like every other, however, comes with correlative responsibilities, among which the most fundamental are responsibilities to law and republican government. Above all, because the right to civil disobedience is intelligible only as a corrective of rulers’ lawlessness, it must not itself foster lawlessness. The practice of civil disobedience must preserve or enhance respect for law and therewith for constitutional republicanism. Further, because the rule of law is not only indispensable to free and just government but also inherently fragile, the practice of disobedient protest can only qualify as properly civil if it is circumscribed with the greatest care.

That sort of care is especially needed at the present time. A half-century after the Civil Rights movement, an upsurge in disobedient protest has moved some observers to proclaim a new era of civil disobedience in America, even as the boundary between civil and uncivil disobedience in this latest wave of protests appears increasingly permeable. [REF]

This upsurge appears unlikely soon to abate. Americans’ trust in government has fallen to historic lows as our partisan divisions and animosities have intensified; [REF] large and increasing numbers of Americans are convinced, for one set of reasons or another, of the illegitimacy of the ruling order. Moreover, a broad national consensus now glorifies the Civil Rights movement as a 20th century American revolution, conferring moral prestige on its signature methods of direct-action protest and civil disobedience. Attempts to emulate those methods have naturally followed, and the multiplication of such attempts must heighten the likelihood of a corrosive effect on the public’s attachment to law. Locke’s prudent admonition, “the reigns of good princes have been always most dangerous to the liberties of their people,” [REF] applies equally well to the danger even the best protest leaders or movements pose to the rule of law.

Because the right to civil disobedience is intelligible only as a corrective of rulers’ lawlessness, it must not itself foster lawlessness. The practice of civil disobedience must preserve or enhance respect for law and therewith for constitutional republicanism.

Most worrisome in the recent waves of purportedly civil disobedience is their participants’ disregard for the divided legacy of the Civil Rights movement. It is crucial to bear in mind that as the movement proceeded from its first to its second phase, two very different models of civil disobedience emerged. Despite its shortcomings, the initial model, epitomized in King’s “Letter from Birmingham Jail,” was marked by a high degree of moral discipline, by professions of conscientious respect for law and for America’s founding principles, and, not by mere coincidence, a remarkable degree of success in achieving its practical objectives. The later model was altogether more problematic: less respectful of law, of the moral sentiments of the American public, and of democratic government, and less grounded in the American tradition of natural-rights liberalism.

In the recent wave of protests and calls for protest one can find semblances of the first approach, but those more closely resembling the second model have predominated. Recent protesters have been generally heedless of the obligation to compose well-reasoned, empirically careful, rights-based arguments to support the justice of their cause, and their protests have consisted largely in efforts at disruption and coercion rather than persuasion. Moreover, the most prominent eruptions in the past decade of what supporters persist in calling civil disobedience, including the Occupy Wall Street movement, the Black Lives Matter movement, and the anti-Trump “Resistance,” [REF] have in fact featured a volatile mixture of acts of nonviolent and violent disobedience. Those two facts are related: The disruptive form of disobedience, even if it qualifies as civil at the outset, is likely to issue in acts of uncivil or violent disobedience, because by endorsing acts of coercion and rights violation, it undermines the rationale for a principled commitment to civility or nonviolence.

When proponents of this lately predominant form conflate King’s two models, [REF] therefore, they undermine the justification for civil disobedience altogether. Against their own purposes, they corroborate warnings by critics to the effect that acts of purportedly civil disobedience are likely to turn lawless and violent. [REF]

Recent protesters have been generally heedless of the obligation to compose well-reasoned, empirically careful, rights-based arguments to support the justice of their cause, and their protests have consisted largely in efforts at disruption and coercion rather than persuasion.

In sum, at the present moment in American public life, the practice of purportedly civil disobedience is becoming increasingly normalized even as its proper basis, tactics, and objectives are subject to increasing confusion. Such a condition poses a clear danger to the rule of law. As for a corrective response, the optimal approach would ultimately involve looking beyond lately canonical discussions of civil disobedience and returning to the position grounded in America’s first principles. The Declaration of Independence, as explained above, contains clear criteria for judging just and unjust government, along with a summation of dictates of prudence that yield an endorsement of civil disobedience only in exceptional and compelling circumstances.

The same conditions, however, that recommend a return to the Declaration’s tightly circumscribed justification may also render such a response presently unavailable. Amid these conditions, a reconsideration of King could serve as a useful first step—drawing our guidance from the best , not the whole, of King’s thinking regarding civil disobedience. Although his zeal for prompt reform moved him at times to transgress his own prudential regulations, in his earlier phase King showed himself to be a more sober and careful exponent of civil disobedience than the despairing, radicalized King of the second phase, advocate of the disruptive, disorderly mode of disobedience lately prevalent. To read his “Letter from Birmingham Jail” with particular attention to this conservative dimension of his argument may therefore serve to initiate a renewed and enhanced public appreciation of the rule of law, both of its basis and its centrality to the health of America’s constitutional republic.

— Peter C. Myers was the 2016–2017 Visiting Fellow in American Political Thought in the B. Kenneth Simon Center for Principles and Politics, of the Institute for Constitutional Government, at The Heritage Foundation, and is Professor of Political Science at the University of Wisconsin–Eau Claire. He is the author of Our Only Star and Compass: Locke and the Struggle for Political Rationality (Rowman & Littlefield, 1998) and Frederick Douglass: Race and the Rebirth of American Liberalism (University Press of Kansas, 2008).

Visiting Scholar, 2016-17 Visiting Fellow in American Political Thought

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civil disobedience , the refusal to obey the demands or commands of a government or occupying power, without resorting to violence or active measures of opposition; its usual purpose is to force concessions from the government or occupying power. Civil disobedience has been a major tactic and philosophy of nationalist movements in Africa and India, in the American civil rights movement , and of labour, anti-war, and other social movements in many countries.

Civil disobedience is a symbolic or ritualistic violation of the law rather than a rejection of the system as a whole. The civil disobedient, finding legitimate avenues of change blocked or nonexistent, feels obligated by a higher, extralegal principle to break some specific law. It is because acts associated with civil disobedience are considered crimes , however, and known by actor and public alike to be punishable, that such acts serve as a protest. By submitting to punishment , the civil disobedient hopes to set a moral example that will provoke the majority or the government into effecting meaningful political, social, or economic change. Under the imperative of setting a moral example, leaders of civil disobedience insist that the illegal actions be nonviolent.

A variety of criticisms have been directed against the philosophy and practice of civil disobedience. The radical critique of the philosophy of civil disobedience condemns its acceptance of the existing political structure; conservative schools of thought, on the other hand, see the logical extension of civil disobedience as anarchy and the right of individuals to break any law they choose, at any time. Activists themselves are divided in interpreting civil disobedience either as a total philosophy of social change or as merely a tactic to be employed when the movement lacks other means. On a pragmatic level, the efficacy of civil disobedience hinges on the adherence of the opposition to a certain morality to which an appeal can ultimately be made.

The philosophical roots of civil disobedience lie deep in Western thought: Cicero , Thomas Aquinas , John Locke , Thomas Jefferson , and Henry David Thoreau all sought to justify conduct by virtue of its harmony with some antecedent superhuman moral law. The modern concept of civil disobedience was most clearly formulated by Mahatma Gandhi . Drawing from Eastern and Western thought, Gandhi developed the philosophy of satyagraha , which emphasizes nonviolent resistance to evil. First in the Transvaal of South Africa in 1906 and later in India, via such actions as the Salt March (1930), Gandhi sought to obtain equal rights and freedom through satyagraha campaigns.

Drawing in part on Gandhi’s example, the American civil rights movement , which came to prominence during the 1950s, sought to end racial segregation in the southern United States by adopting the tactics and philosophy of civil disobedience through such protests as the Greensboro (North Carolina) sit-in (1960) and the Freedom Rides (1961). Martin Luther King, Jr. , a leader of the movement from the mid-1950s to his assassination in 1968, was an articulate defender of its strategy of nonviolent protest. Later the tactics of civil disobedience were employed by many protest groups within a variety of movements, including the women’s movement, the anti-nuclear and environmental movements, and the anti-globalization and economic equality movements.

The principle of civil disobedience has achieved some standing in international law through the war crime trials at Nürnberg , Germany, after World War II , which affirmed the principle that individuals may, under certain circumstances, be held accountable for failure to break the laws of their country.

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7 On civil disobedience, jurisprudence, feminism, and the law in the antigones of sophocles and anouilh

• Published: March 2010
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This chapter examines the connection between civil disobedience, jurisprudence, and feminism in ancient and modern comparative legal systems as viewed from a postmodernist perspective by comparing Sophocles' Antigone , written in Athens in 5th century B.C. , and Jean Anouilh's Antigone , written and performed in France in 1944 during the tyranny of the German Occupation. In Sophocles' Antigone , civil disobedience is represented by the tension between two different characters, Antigone and Creon. The most dramatic form of tension in the play is Antigone's act of civil disobedience that effectively causes legal reform in Thebes. Despite the obvious similarities between Antigone and Creon, Sophocles stresses the differences between their opposing jurisprudential positions on natural law and legal positivism. Sophocles espouses the argument that illegal protest can accomplish legal reform, but Anouilh does not appear to agree. In Sophocles' Antigone , the mind-set of the ruler and the hegemonic political system that produced an unjust law are ultimately reformed by virtue of the insight that tragedy naturally produces. Creon is eventually enlightened by Antigone's nonviolent protest, and his new understanding has the positive effect of suggesting a move away from a hegemonic to a pluralistic conception of the law. In contrast to the Sophoclean tragedy, Anouilh's melodrama does not propose civil disobedience as an effective force for legal or political reform. The two plays are in fact very different in form and substance. The chapter tries to tease out the underlying causes for Anouilh's radical change from his Sophoclean source.

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• Wall of the Wise

On Civil Disobedience by Henry David Thoreau (Full Text) The full text of Thoreau's 1849 essay that inspired a wave of peaceful revolutionaries

I heartily accept the motto, “That government is best which governs least”; and I should like to see it acted up to more rapidly and systematically. Carried out, it finally amounts to this, which also I believe- “That government is best which governs not at all”; and when men are prepared for it, that will be the kind of government which they will have. Government is at best but an expedient; but most governments are usually, and all governments are sometimes, inexpedient. The objections which have been brought against a standing army, and they are many and weighty, and deserve to prevail, may also at last be brought against a standing government. The standing army is only an arm of the standing government. The government itself, which is only the mode which the people have chosen to execute their will, is equally liable to be abused and perverted before the people can act through it. Witness the present Mexican war, the work of comparatively a few individuals using the standing government as their tool; for, in the outset, the people would not have consented to this measure.

This American government- what is it but a tradition, though a recent one, endeavoring to transmit itself unimpaired to posterity, but each instant losing some of its integrity? It has not the vitality and force of a single living man; for a single man can bend it to his will. It is a sort of wooden gun to the people themselves; and, if ever they should use it in earnest as a real one against each other, it will surely split. . But it is not the less necessary for this; for the people must have some complicated machinery or other, and hear its din, to satisfy that idea of government which they have. Governments show thus how successfully men can be imposed on, even impose on themselves, for their own advantage. It is excellent, we must all allow. Yet this government never of itself furthered any enterprise, but by the alacrity with which it got out of its way. It does not keep the country free. It does not settle the West. It does not educate. The character inherent in the American people has done all that has been accomplished; and it would have done somewhat more, if the government had not sometimes got in its way. For government is an expedient by which men would fain succeed in letting one another alone; and, as has been said, when it is most expedient, the governed are most let alone by it. Trade and commerce, if they were not made of india-rubber, would never manage to bounce over the obstacles which legislators are continually putting in their way; and, if one were to judge these men wholly by the effects of their actions and not partly by their intentions, they would deserve to be classed and punished with those mischievous persons who put obstructions on the railroads.

But, to speak practically and as a citizen, unlike those who call themselves no-government men, I ask for, not at once no government, but at once a better government. Let every man make known what kind of government would command his respect, and that will be one step toward obtaining it.

After all, the practical reason why, when the power is once in the hands of the people, a majority are permitted, and for a long period continue, to rule is not because they are most likely to be in the right, nor because this seems fairest to the minority, but because they are physically the strongest. But a government in which the majority rule in all cases cannot be based on justice, even as far as men understand it. Can there not be a government in which majorities do not virtually decide right and wrong, but conscience?- in which majorities decide only those questions to which the rule of expediency is applicable? Must the citizen ever for a moment, or in the least degree, resign his conscience to the legislation? Why has every man a conscience, then? I think that we should be men first, and subjects afterward. It is not desirable to cultivate a respect for the law, so much as for the right. The only obligation which I have a right to assume is to do at any time what I think right. It is truly enough said that a corporation has no conscience; but a corporation of conscientious men is a corporation with a conscience. Law never made men a whit more just; and, by means of their respect for it, even the well-disposed are daily made the agents of injustice. A common and natural result of an undue respect for law is, that you may see a file of soldiers, colonel, captain, corporal, privates, powder-monkeys, and all, marching in admirable order over hill and dale to the wars, against their wills, ay, against their common sense and consciences, which makes it very steep marching indeed, and produces a palpitation of the heart. They have no doubt that it is a damnable business in which they are concerned; they are all peaceably inclined. Now, what are they? Men at all? or small movable forts and magazines, at the service of some unscrupulous man in power? Visit the Navy-Yard, and behold a marine, such a man as an American government can make, or such as it can make a man with its black arts- a mere shadow and reminiscence of humanity, a man laid out alive and standing, and already, as one may say, buried under arms with funeral accompaniments, though it may be,

“Not a drum was heard, nor a funeral note,As his corse to the rampart we hurried; Not a soldier discharged his farewell shot O’er the grave where our hero we buried.”

The mass of men serve the state thus, not as men mainly, but as machines, with their bodies. They are the standing army, and the militia, jailers, constables, posse comitatus, etc. In most cases there is no free exercise whatever of the judgment or of the moral sense; but they put themselves on a level with wood and earth and stones; and wooden men can perhaps be manufactured that will serve the purpose as well. Such command no more respect than men of straw or a lump of dirt. They have the same sort of worth only as horses and dogs. Yet such as these even are commonly esteemed good citizens. Others- as most legislators, politicians, lawyers, ministers, and office-holders- serve the state chiefly with their heads; and, as they rarely make any moral distinctions, they are as likely to serve the devil, without intending it, as God. A very few- as heroes, patriots, martyrs, reformers in the great sense, and men- serve the state with their consciences also, and so necessarily resist it for the most part; and they are commonly treated as enemies by it. A wise man will only be useful as a man, and will not submit to be “clay,” and “stop a hole to keep the wind away,” but leave that office to his dust at least:

“I am too high-born to be propertied, To be a secondary at control, Or useful serving-man and instrument To any sovereign state throughout the world.”

He who gives himself entirely to his fellow-men appears to them useless and selfish; but he who gives himself partially to them is pronounced a benefactor and philanthropist.

How does it become a man to behave toward this American government today? I answer, that he cannot without disgrace be associated with it. I cannot for an instant recognize that political organization as my government which is the slave’s government also.

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 inefficiency 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. 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.

Paley, a common authority with many on moral questions, in his chapter on the “Duty of Submission to Civil Government,” resolves all civil obligation into expediency; and he proceeds to say that “so long as the interest of the whole society requires it, that is, so long as the established government cannot be resisted or changed without public inconveniency, it is the will of God… that the established government be obeyed- and no longer. This principle being admitted, the justice of every particular case of resistance is reduced to a computation of the quantity of the danger and grievance on the one side, and of the probability and expense of redressing it on the other.” Of this, he says, every man shall judge for himself. But Paley appears never to have contemplated those cases to which the rule of expediency does not apply, in which a people, as well as an individual, must do justice, cost what it may. If I have unjustly wrested a plank from a drowning man, I must restore it to him though I drown myself. This, according to Paley, would be inconvenient. But he that would save his life, in such a case, shall lose it. This people must cease to hold slaves, and to make war on Mexico, though it cost them their existence as a people.

In their practice, nations agree with Paley; but does any one think that Massachusetts does exactly what is right at the present crisis?

“A drab of state, a cloth-o’-silver slut, To have her train borne up, and her soul trail in the dirt.”

Practically speaking, the opponents to a reform in Massachusetts are not a hundred thousand politicians at the South, but a hundred thousand merchants and farmers here, who are more interested in commerce and agriculture than they are in humanity, and are not prepared to do justice to the slave and to Mexico, cost what it may. I quarrel not with far-off foes, but with those who, near at home, cooperate with, and do the bidding of those far away, and without whom the latter would be harmless. We are accustomed to say, that the mass of men are unprepared; but improvement is slow, because the few are not materially wiser or better than the many. It is not so important that many should be as good as you, as that there be some absolute goodness somewhere; for that will leaven the whole lump. There are thousands who are in opinion opposed to slavery and to the war, who yet in effect do nothing to put an end to them; who, esteeming themselves children of Washington and Franklin, sit down with their hands in their pockets, and say that they know not what to do, and do nothing; who even postpone the question of freedom to the question of free trade, and quietly read the prices-current along with the latest advices from Mexico, after dinner, and, it may be, fall asleep over them both. What is the price-current of an honest man and patriot today? They hesitate, and they regret, and sometimes they petition; but they do nothing in earnest and with effect. They will wait, well disposed, for others to remedy the evil, that they may no longer have it to regret. At most, they give only a cheap vote, and a feeble countenance and God-speed, to the right, as it goes by them. There are nine hundred and ninety-nine patrons of virtue to one virtuous man. But it is easier to deal with the real possessor of a thing than with the temporary guardian of it.

All voting is a sort of gaming, like checkers or backgammon, with a slight moral tinge to it, a playing with right and wrong, with moral questions; and betting naturally accompanies it. The character of the voters is not staked. I cast my vote, perchance, as I think right; but I am not vitally concerned that that right should prevail. I am willing to leave it to the majority. Its obligation, therefore, never exceeds that of expediency. Even voting for the right is doing nothing for it. It is only expressing to men feebly your desire that it should prevail. A wise man will not leave the right to the mercy of chance, nor wish it to prevail through the power of the majority. There is but little virtue in the action of masses of men. When the majority shall at length vote for the abolition of slavery, it will be because they are indifferent to slavery, or because there is but little slavery left to be abolished by their vote. They will then be the only slaves. Only his vote can hasten the abolition of slavery who asserts his own freedom by his vote.

I hear of a convention to be held at Baltimore, or elsewhere, for the selection of a candidate for the Presidency, made up chiefly of editors, and men who are politicians by profession; but I think, what is it to any independent, intelligent, and respectable man what decision they may come to? Shall we not have the advantage of his wisdom and honesty, nevertheless? Can we not count upon some independent votes? Are there not many individuals in the country who do not attend conventions? But no: I find that the respectable man, so called, has immediately drifted from his position, and despairs of his country, when his country has more reason to despair of him. He forthwith adopts one of the candidates thus selected as the only available one, thus proving that he is himself available for any purposes of the demagogue. His vote is of no more worth than that of any unprincipled foreigner or hireling native, who may have been bought. O for a man who is a man, and, as my neighbor says, has a bone in his back which you cannot pass your hand through! Our statistics are at fault: the population has been returned too large. How many men are there to a square thousand miles in this country? Hardly one. Does not America offer any inducement for men to settle here? The American has dwindled into an Odd Fellow-one who may be known by the development of his organ of gregariousness, and a manifest lack of intellect and cheerful self-reliance; whose first and chief concern, on coming into the world, is to see that the almshouses are in good repair; and, before yet he has lawfully donned the virile garb, to collect a fund for the support of the widows and orphans that may be; who, in short, ventures to live only by the aid of the Mutual Insurance company, which has promised to bury him decently.

It is not a man’s duty, as a matter of course, to devote himself to the eradication of any, even the most enormous, wrong; he may still properly have other concerns to engage him; but it is his duty, at least, to wash his hands of it, and, if he gives it no thought longer, not to give it practically his support. If I devote myself to other pursuits and contemplations, I must first see, at least, that I do not pursue them sitting upon another man’s shoulders. I must get off him first, that he may pursue his contemplations too. See what gross inconsistency is tolerated. I have heard some of my townsmen say, “I should like to have them order me out to help put down an insurrection of the slaves, or to march to Mexico;- see if I would go”; and yet these very men have each, directly by their allegiance, and so indirectly, at least, by their money, furnished a substitute. The soldier is applauded who refuses to serve in an unjust war by those who do not refuse to sustain the unjust government which makes the war; is applauded by those whose own act and authority he disregards and sets at naught; as if the state were penitent to that degree that it differed one to scourge it while it sinned, but not to that degree that it left off sinning for a moment. Thus, under the name of Order and Civil Government, we are all made at last to pay homage to and support our own meanness. After the first blush of sin comes its indifference; and from immoral it becomes, as it were, unmoral, and not quite unnecessary to that life which we have made.

The broadest and most prevalent error requires the most disinterested virtue to sustain it. The slight reproach to which the virtue of patriotism is commonly liable, the noble are most likely to incur. Those who, while they disapprove of the character and measures of a government, yield to it their allegiance and support are undoubtedly its most conscientious supporters, and so frequently the most serious obstacles to reform. Some are petitioning the State to dissolve the Union, to disregard the requisitions of the President. Why do they not dissolve it themselves- the union between themselves and the State- and refuse to pay their quota into its treasury? Do not they stand in the same relation to the State that the State does to the Union? And have not the same reasons prevented the State from resisting the Union which have prevented them from resisting the State?

How can a man be satisfied to entertain an opinion merely, and enjoy it? Is there any enjoyment in it, if his opinion is that he is aggrieved? If you are cheated out of a single dollar by your neighbor, you do not rest satisfied with knowing that you are cheated, or with saying that you are cheated, or even with petitioning him to pay you your due; but you take effectual steps at once to obtain the full amount, and see that you are never cheated again. Action from principle, the perception and the performance of right, changes things and relations; it is essentially revolutionary, and does not consist wholly with anything which was. It not only divides States and churches, it divides families; ay, it divides the individual, separating the diabolical in him from the divine.

Unjust laws exist: shall we be content to obey them, or shall we endeavor to amend them, and obey them until we have succeeded, or shall we transgress them at once? Men generally, under such a government as this, think that they ought to wait until they have persuaded the majority to alter them. They think that, if they should resist, the remedy would be worse than the evil. But it is the fault of the government itself that the remedy is worse than the evil. It makes it worse. Why is it not more apt to anticipate and provide for reform? Why does it not cherish its wise minority? Why does it cry and resist before it is hurt? Why does it not encourage its citizens to be on the alert to point out its faults, and do better than it would have them? Why does it always crucify Christ, and excommunicate Copernicus and Luther, and pronounce Washington and Franklin rebels?

One would think, that a deliberate and practical denial of its authority was the only offence never contemplated by government; else, why has it not assigned its definite, its suitable and proportionate, penalty? If a man who has no property refuses but once to earn nine shillings for the State, he is put in prison for a period unlimited by any law that I know, and determined only by the discretion of those who placed him there; but if he should steal ninety times nine shillings from the State, he is soon permitted to go at large again.

If the injustice is part of the necessary friction of the machine of government, let it go, let it go: perchance it will wear smooth- certainly the machine will wear out. If the injustice has a spring, or a pulley, or a rope, or a crank, exclusively for itself, then perhaps you may consider whether the remedy will not be worse than the evil; but if it is of such a nature that it requires you to be the agent of injustice to another, then, I say, break the law. Let your life be a counter-friction to stop the machine. What I have to do is to see, at any rate, that I do not lend myself to the wrong which I condemn.

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 affairs 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. A man has not everything to do, but something; and because he cannot do everything, it is not necessary that he should do something wrong. It is not my business to be petitioning the Governor or the Legislature any more than it is theirs to petition me; and if they should not bear my petition, what should I do then? But in this case the State has provided no way: its very Constitution is the evil. This may seem to be harsh and stubborn and unconciliatory; but it is to treat with the utmost kindness and consideration the only spirit that can appreciate or deserves it. So is an change for the better, like birth and death, which convulse the body.

I do not hesitate to say, that those who call themselves Abolitionists should at once effectually withdraw their support, both in person and property, from the government of Massachusetts, and not wait till they constitute a majority of one, before they suffer the right to prevail through them. I think that it is enough if they have God on their side, without waiting for that other one. Moreover, any man more right than his neighbors constitutes a majority of one already.

I meet this American government, or its representative, the State government, directly, and face to face, once a year- no more- in the person of its tax-gatherer; this is the only mode in which a man situated as I am necessarily meets it; and it then says distinctly, Recognize me; and the simplest, the most effectual, and, in the present posture of affairs, the indispensablest mode of treating with it on this head, of expressing your little satisfaction with and love for it, is to deny it then. My civil neighbor, the tax-gatherer, is the very man I have to deal with- for it is, after all, with men and not with parchment that I quarrel- and he has voluntarily chosen to be an agent of the government. How shall he ever know well what he is and does as an officer of the government, or as a man, until he is obliged to consider whether he shall treat me, his neighbor, for whom he has respect, as a neighbor and well-disposed man, or as a maniac and disturber of the peace, and see if he can get over this obstruction to his neighborliness without a ruder and more impetuous thought or speech corresponding with his action. I know this well, that if one thousand, if one hundred, if ten men whom I could name- if ten honest men only- ay, if one HONEST man, in this State of Massachusetts, ceasing to hold slaves, were actually to withdraw from this copartnership, and be locked up in the county jail therefor, it would be the abolition of slavery in America. For it matters not how small the beginning may seem to be: what is once well done is done forever. But we love better to talk about it: that we say is our mission, Reform keeps many scores of newspapers in its service, but not one man. If my esteemed neighbor, the State’s ambassador, who will devote his days to the settlement of the question of human rights in the Council Chamber, instead of being threatened with the prisons of Carolina, were to sit down the prisoner of Massachusetts, that State which is so anxious to foist the sin of slavery upon her sister- though at present she can discover only an act of inhospitality to be the ground of a quarrel with her- the Legislature would not wholly waive the subject the following winter.

Under a government which imprisons any unjustly, the true place for a just man is also a prison. The proper place today, the only place which Massachusetts has provided for her freer and less desponding spirits, is in her prisons, to be put out and locked out of the State by her own act, as they have already put themselves out by their principles. It is there that the fugitive slave, and the Mexican prisoner on parole, and the Indian come to plead the wrongs of his race should find them; on that separate, but more free and honorable, ground, where the State places those who are not with her, but against her- the only house in a slave State in which a free man can abide with honor. If any think that their influence would be lost there, and their voices no longer afflict the ear of the State, that they would not be as an enemy within its walls, they do not know by how much truth is stronger than error, nor how much more eloquently and effectively he can combat injustice who has experienced a little in his own person. Cast your whole vote, not a strip of paper merely, but your whole influence. A minority is powerless while it conforms to the majority; it is not even a minority then; but it is irresistible when it clogs by its whole weight. If the alternative is to keep all just men in prison, or give up war and slavery, the State will not hesitate which to choose. If a thousand men were not to pay their tax-bills this year, that would not be a violent and bloody measure, as it would be to pay them, and enable the State to commit violence and shed innocent blood. This is, in fact, the definition of a peaceable revolution, if any such is possible. If the tax-gatherer, or any other public officer, asks me, as one has done, “But what shall I do?” my answer is, “If you really wish to do anything, resign your office.” When the subject has refused allegiance, and the officer has resigned his office, then the revolution is accomplished. But even suppose blood should flow. Is there not a sort of blood shed when the conscience is wounded? Through this wound a man’s real manhood and immortality flow out, and he bleeds to an everlasting death. I see this blood flowing now.

I have contemplated the imprisonment of the offender, rather than the seizure of his goods- though both will serve the same purpose- because they who assert the purest right, and consequently are most dangerous to a corrupt State, commonly have not spent much time in accumulating property. To such the State renders comparatively small service, and a slight tax is wont to appear exorbitant, particularly if they are obliged to earn it by special labor with their hands. If there were one who lived wholly without the use of money, the State itself would hesitate to demand it of him. But the rich man- not to make any invidious comparison- is always sold to the institution which makes him rich. Absolutely speaking, the more money, the less virtue; for money comes between a man and his objects, and obtains them for him; and it was certainly no great virtue to obtain it. It puts to rest many questions which he would otherwise be taxed to answer; while the only new question which it puts is the hard but superfluous one, how to spend it. Thus his moral ground is taken from under his feet. The opportunities of living are diminished in proportion as what are called the “means” are increased. The best thing a man can do for his culture when he is rich is to endeavor to carry out those schemes which he entertained when he was poor. Christ answered the Herodians according to their condition. “Show me the tribute-money,” said he;- and one took a penny out of his pocket;- if you use money which has the image of Caesar on it, and which he has made current and valuable, that is, if you are men of the State, and gladly enjoy the advantages of Caesar’s government, then pay him back some of his own when he demands it. “Render therefore to Caesar that which is Caesar’s, and to God those things which are God’s”- leaving them no wiser than before as to which was which; for they did not wish to know.

When I converse with the freest of my neighbors, I perceive that, whatever they may say about the magnitude and seriousness of the question, and their regard for the public tranquillity, the long and the short of the matter is, that they cannot spare the protection of the existing government, and they dread the consequences to their property and families of disobedience to it. For my own part, I should not like to think that I ever rely on the protection of the State. But, if I deny the authority of the State when it presents its tax-bill, it will soon take and waste all my property, and so harass me and my children without end. This is hard. This makes it impossible for a man to live honestly, and at the same time comfortably, in outward respects. It will not be worth the while to accumulate property; that would be sure to go again. You must hire or squat somewhere, and raise but a small crop, and eat that soon. You must live within yourself, and depend upon yourself always tucked up and ready for a start, and not have many affairs. A man may grow rich in Turkey even, if he will be in all respects a good subject of the Turkish government. Confucius said: “If a state is governed by the principles of reason, poverty and misery are subjects of shame; if a state is not governed by the principles of reason, riches and honors are the subjects of shame.” No: until I want the protection of Massachusetts to be extended to me in some distant Southern port, where my liberty is endangered, or until I am bent solely on building up an estate at home by peaceful enterprise, I can afford to refuse allegiance to Massachusetts, and her right to my property and life. It costs me less in every sense to incur the penalty of disobedience to the State than it would to obey. I should feel as if I were worth less in that case.

Some years ago, the State met me in behalf of the Church, and commanded me to pay a certain sum toward the support of a clergyman whose preaching my father attended, but never I myself. “Pay,” it said, “or be locked up in the jail.” I declined to pay. But, unfortunately, another man saw fit to pay it. I did not see why the schoolmaster should be taxed to support the priest, and not the priest the schoolmaster; for I was not the State’s schoolmaster, but I supported myself by voluntary subscription. I did not see why the lyceum should not present its tax-bill, and have the State to back its demand, as well as the Church. However, at the request of the selectmen, I condescended to make some such statement as this in writing:- “Know all men by these presents, that I, Henry Thoreau, do not wish to be regarded as a member of any incorporated society which I have not joined.” This I gave to the town clerk; and he has it. The State, having thus learned that I did not wish to be regarded as a member of that church, has never made a like demand on me since; though it said that it must adhere to its original presumption that time. If I had known how to name them, I should then have signed off in detail from all the societies which I never signed on to; but I did not know where to find a complete list.

I have paid no poll-tax for six years. I was put into a jail once on this account, for one night; and, as I stood considering the walls of solid stone, two or three feet thick, the door of wood and iron, a foot thick, and the iron grating which strained the light, I could not help being struck with the foolishness of that institution which treated me as if I were mere flesh and blood and bones, to be locked up. I wondered that it should have concluded at length that this was the best use it could put me to, and had never thought to avail itself of my services in some way. I saw that, if there was a wall of stone between me and my townsmen, there was a still more difficult one to climb or break through before they could get to be as free as I was. I did not for a moment feel confined, and the walls seemed a great waste of stone and mortar. I felt as if I alone of all my townsmen had paid my tax. They plainly did not know how to treat me, but behaved like persons who are underbred. In every threat and in every compliment there was a blunder; for they thought that my chief desire was to stand the other side of that stone wall. I could not but smile to see how industriously they locked the door on my meditations, which followed them out again without let or hindrance, and they were really all that was dangerous. As they could not reach me, they had resolved to punish my body; just as boys, if they cannot come at some person against whom they have a spite, will abuse his dog. I saw that the State was half-witted, that it was timid as a lone woman with her silver spoons, and that it did not know its friends from its foes, and I lost all my remaining respect for it, and pitied it.

Thus the State never intentionally confronts a man’s sense, intellectual or moral, but only his body, his senses. It is not armed with superior wit or honesty, but with superior physical strength. I was not born to be forced. I will breathe after my own fashion. Let us see who is the strongest. What force has a multitude? They only can force me who obey a higher law than I. They force me to become like themselves. I do not hear of men being forced to have this way or that by masses of men. What sort of life were that to live? When I meet a government which says to me, “Your money or your life,” why should I be in haste to give it my money? It may be in a great strait, and not know what to do: I cannot help that. It must help itself; do as I do. It is not worth the while to snivel about it. I am not responsible for the successful working of the machinery of society. I am not the son of the engineer. I perceive that, when an acorn and a chestnut fall side by side, the one does not remain inert to make way for the other, but both obey their own laws, and spring and grow and flourish as best they can, till one, perchance, overshadows and destroys the other. If a plant cannot live according to its nature, it dies; and so a man.

The night in prison was novel and interesting enough. The prisoners in their shirt-sleeves were enjoying a chat and the evening air in the doorway, when I entered. But the jailer said, “Come, boys, it is time to lock up”; and so they dispersed, and I heard the sound of their steps returning into the hollow apartments. My room-mate was introduced to me by the jailer as “a first-rate fellow and a clever man.” When the door was locked, he showed me where to hang my hat, and how he managed matters there. The rooms were whitewashed once a month; and this one, at least, was the whitest, most simply furnished, and probably the neatest apartment in the town. He naturally wanted to know where I came from, and what brought me there; and, when I had told him, I asked him in my turn how he came there, presuming him to be an honest man, of course; and, as the world goes, I believe he was. “Why,” said he, “they accuse me of burning a barn; but I never did it.” As near as I could discover, he had probably gone to bed in a barn when drunk, and smoked his pipe there; and so a barn was burnt. He had the reputation of being a clever man, had been there some three months waiting for his trial to come on, and would have to wait as much longer; but he was quite domesticated and contented, since he got his board for nothing, and thought that he was well treated.

He occupied one window, and I the other; and I saw that if one stayed there long, his principal business would be to look out the window. I had soon read all the tracts that were left there, and examined where former prisoners had broken out, and where a grate had been sawed off, and heard the history of the various occupants of that room; for I found that even here there was a history and a gossip which never circulated beyond the walls of the jail. Probably this is the only house in the town where verses are composed, which are afterward printed in a circular form, but not published. I was shown quite a long list of verses which were composed by some young men who had been detected in an attempt to escape, who avenged themselves by singing them.

I pumped my fellow-prisoner as dry as I could, for fear I should never see him again; but at length he showed me which was my bed, and left me to blow out the lamp.

It was like travelling into a far country, such as I had never expected to behold, to lie there for one night. It seemed to me that I never had heard the town clock strike before, nor the evening sounds of the village; for we slept with the windows open, which were inside the grating. It was to see my native village in the light of the Middle Ages, and our Concord was turned into a Rhine stream, and visions of knights and castles passed before me. They were the voices of old burghers that I heard in the streets. I was an involuntary spectator and auditor of whatever was done and said in the kitchen of the adjacent village inn- a wholly new and rare experience to me. It was a closer view of my native town. I was fairly inside of it. I never had seen its institutions before. This is one of its peculiar institutions; for it is a shire town. I began to comprehend what its inhabitants were about.

In the morning, our breakfasts were put through the hole in the door, in small oblong-square tin pans, made to fit, and holding a pint of chocolate, with brown bread, and an iron spoon. When they called for the vessels again, I was green enough to return what bread I had left; but my comrade seized it, and said that I should lay that up for lunch or dinner. Soon after he was let out to work at haying in a neighboring field, whither he went every day, and would not be back till noon; so he bade me good-day, saying that he doubted if he should see me again.

When I came out of prison- for some one interfered, and paid that tax- I did not perceive that great changes had taken place on the common, such as he observed who went in a youth and emerged a tottering and gray-headed man; and yet a change had to my eyes come over the scene- the town, and State, and country- greater than any that mere time could effect. I saw yet more distinctly the State in which I lived. I saw to what extent the people among whom I lived could be trusted as good neighbors and friends; that their friendship was for summer weather only; that they did not greatly propose to do right; that they were a distinct race from me by their prejudices and superstitions, as the Chinamen and Malays are; that in their sacrifices to humanity they ran no risks, not even to their property; that after all they were not so noble but they treated the thief as he had treated them, and hoped, by a certain outward observance and a few prayers, and by walking in a particular straight though useless path from time to time, to save their souls. This may be to judge my neighbors harshly; for I believe that many of them are not aware that they have such an institution as the jail in their village.

It was formerly the custom in our village, when a poor debtor came out of jail, for his acquaintances to salute him, looking through their fingers, which were crossed to represent the grating of a jail window, “How do ye do?” My neighbors did not thus salute me, but first looked at me, and then at one another, as if I had returned from a long journey. I was put into jail as I was going to the shoemaker’s to get a shoe which was mended. When I was let out the next morning, I proceeded to finish my errand, and, having put on my mended shoe, joined a huckleberry party, who were impatient to put themselves under my conduct; and in half an hour- for the horse was soon tackled- was in the midst of a huckleberry field, on one of our highest hills, two miles off, and then the State was nowhere to be seen.

This is the whole history of “My Prisons.”

I have never declined paying the highway tax, because I am as desirous of being a good neighbor as I am of being a bad subject; and as for supporting schools, I am doing my part to educate my fellow-countrymen now. It is for no particular item in the tax-bill that I refuse to pay it. I simply wish to refuse allegiance to the State, to withdraw and stand aloof from it effectually. I do not care to trace the course of my dollar, if I could, till it buys a man or a musket to shoot one with- the dollar is innocent- but I am concerned to trace the effects of my allegiance. In fact, I quietly declare war with the State, after my fashion, though I will still make what use and get what advantage of her I can, as is usual in such cases.

If others pay the tax which is demanded of me, from a sympathy with the State, they do but what they have already done in their own case, or rather they abet injustice to a greater extent than the State requires. If they pay the tax from a mistaken interest in the individual taxed, to save his property, or prevent his going to jail, it is because they have not considered wisely how far they let their private feelings interfere with the public good.

This, then, is my position at present. But one cannot be too much on his guard in such a case, lest his action be biased by obstinacy or an undue regard for the opinions of men. Let him see that he does only what belongs to himself and to the hour.

I think sometimes, Why, this people mean well, they are only ignorant; they would do better if they knew how: why give your neighbors this pain to treat you as they are not inclined to? But I think again, This is no reason why I should do as they do, or permit others to suffer much greater pain of a different kind. Again, I sometimes say to myself, When many millions of men, without heat, without ill will, without personal feeling of any kind, demand of you a few shillings only, without the possibility, such is their constitution, of retracting or altering their present demand, and without the possibility, on your side, of appeal to any other millions, why expose yourself to this overwhelming brute force? You do not resist cold and hunger, the winds and the waves, thus obstinately; you quietly submit to a thousand similar necessities. You do not put your head into the fire. But just in proportion as I regard this as not wholly a brute force, but partly a human force, and consider that I have relations to those millions as to so many millions of men, and not of mere brute or inanimate things, I see that appeal is possible, first and instantaneously, from them to the Maker of them, and, secondly, from them to themselves. But if I put my head deliberately into the fire, there is no appeal to fire or to the Maker of fire, and I have only myself to blame. If I could convince myself that I have any right to be satisfied with men as they are, and to treat them accordingly, and not according, in some respects, to my requisitions and expectations of what they and I ought to be, then, like a good Mussulman and fatalist, I should endeavor to be satisfied with things as they are, and say it is the will of God. And, above all, there is this difference between resisting this and a purely brute or natural force, that I can resist this with some effect; but I cannot expect, like Orpheus, to change the nature of the rocks and trees and beasts.

I do not wish to quarrel with any man or nation. I do not wish to split hairs, to make fine distinctions, or set myself up as better than my neighbors. I seek rather, I may say, even an excuse for conforming to the laws of the land. I am but too ready to conform to them. Indeed, I have reason to suspect myself on this head; and each year, as the tax-gatherer comes round, I find myself disposed to review the acts and position of the general and State governments, and the spirit of the people, to discover a pretext for conformity.

“We must affect our country as our parents, And if at any time we alienate Our love or industry from doing it honor, We must respect effects and teach the soul Matter of conscience and religion, And not desire of rule or benefit.”

I believe that the State will soon be able to take all my work of this sort out of my hands, and then I shall be no better a patriot than my fellow-countrymen. Seen from a lower point of view, the Constitution, with all its faults, is very good; the law and the courts are very respectable; even this State and this American government are, in many respects, very admirable, and rare things, to be thankful for, such as a great many have described them; but seen from a point of view a little higher, they are what I have described them; seen from a higher still, and the highest, who shall say what they are, or that they are worth looking at or thinking of at all?

However, the government does not concern me much, and I shall bestow the fewest possible thoughts on it. It is not many moments that I live under a government, even in this world. If a man is thought-free, fancy-free, imagination-free, that which is not never for a long time appearing to be to him, unwise rulers or reformers cannot fatally interrupt him.

I know that most men think differently from myself; but those whose lives are by profession devoted to the study of these or kindred subjects content me as little as any. Statesmen and legislators, standing so completely within the institution, never distinctly and nakedly behold it. They speak of moving society, but have no resting-place without it. They may be men of a certain experience and discrimination, and have no doubt invented ingenious and even useful systems, for which we sincerely thank them; but all their wit and usefulness lie within certain not very wide limits. They are wont to forget that the world is not governed by policy and expediency. Webster never goes behind government, and so cannot speak with authority about it. His words are wisdom to those legislators who contemplate no essential reform in the existing government; but for thinkers, and those who legislate for all time, he never once glances at the subject. I know of those whose serene and wise speculations on this theme would soon reveal the limits of his mind’s range and hospitality. Yet, compared with the cheap professions of most reformers, and the still cheaper wisdom and eloquence of politicians in general, his are almost the only sensible and valuable words, and we thank Heaven for him. Comparatively, he is always strong, original, and, above all, practical. Still, his quality is not wisdom, but prudence. The lawyer’s truth is not Truth, but consistency or a consistent expediency. Truth is always in harmony with herself, and is not concerned chiefly to reveal the justice that may consist with wrong-doing. He well deserves to be called, as he has been called, the Defender of the Constitution. There are really no blows to be given by him but defensive ones. He is not a leader, but a follower. His leaders are the men of ’87- “I have never made an effort,” he says, “and never propose to make an effort; I have never countenanced an effort, and never mean to countenance an effort, to disturb the arrangement as originally made, by which the various States came into the Union.” Still thinking of the sanction which the Constitution gives to slavery, he says, “Because it was a part of the original compact- let it stand.” Notwithstanding his special acuteness and ability, he is unable to take a fact out of its merely political relations, and behold it as it lies absolutely to be disposed of by the intellect- what, for instance, it behooves a man to do here in America today with regard to slavery- but ventures, or is driven, to make some such desper

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