Table of Contents
2. Grounds of Justification: A Shared Sense of Justice?
3. Objects of Civil Disobedience: Why “Minor” Injustices Matter
4. Methods of Civil Disobedience: On Justification and Adequacy
5. Concluding Remarks
In 2011, current President of the Federal Republic of Germany, Joachim Gauck, discredited civilly disobedient acts committed by supporters of the Occupy Wall Street movement as “ineffably foolish” and, on a different note, warned of a protest culture “that only flares if one’s own front yard is affected.”1 With the latter statement, Gauck undermined the protest of thousands of demonstrators in the city of Stuttgart who had been engaging in acts of civil disobedience out of frustration about a large-scale construction project on the city’s main train station—a project which they perceived to be neither economically nor ecologically reasonable, nor sufficiently legitimized democratically. These attention-grabbing movements receiving harsh judgements of high state representatives such as Gauck reignited the public debate about the justification of civil disobedience in Germany—a debate that is of everlasting importance amongst theoretical examinations.
Whereas within this debate it is largely beyond question that citizens of unjust and corrupt states with no legitimately established authority clearly have the right to (even more drastic forms of) resistance,2 the real challenge lies in answering the following question: How, that is to say, on which grounds and under which circumstances, can illegal means of protest be justified in a prima facie legitimate state?
One of the most prominent and cited theoretical accounts in answering this question is provided by the American moral philosopher John Rawls and supported by the German philosopher and sociologist Jürgen Habermas. For Rawls, in order for civil disobedience to be justified, it can only be targeted at “instances of substantial and clear injustice”3 which he defines as the violation of basic rights (or more precise: the violation of civil liberties) that are connected to the moral foundations of a legitimate democratic constitutional state. Looking at some of the most prominent and successful cases of civil disobedience in history such as the Civil Rights Movement in the United States in the 1960s, it seems only plausible to agree with this argumentation.
However, Rawls’ theory does not encompass protesters such as the ones mentioned in the examples above, or environmental and animal rights activists that fight against (perceived) injustices without—at least primarily—defending civil liberties. Yet, they seem to be able to justifiably engage in civil disobedience.
While this discrepancy does not fundamentally contradict Rawls’ argumentation—the cases he deems justified still remain justified—it shows that the aspect of limiting justified civil disobedience exclusively to cases of “blatant violations”4 of civil rights is indeed problematic. To me, as civil disobedience in such instances is undoubtedly justifiable, Rawls’ theory merely seizes the most unambiguous cases—the ones at the very end of a continuum of cases of justified civil disobedience, if you will. Consequently, the main aim of this paper lies in defending the following thesis: civil disobedience can also be justified in cases of “minor” injustices.5
In order to do so, I will proceed in three steps which mirror the aspects that I see crucial for assessing the justifiability of civil disobedience. I will (1) examine the theoretical grounds on which it is being justified, (2) identify what sort of objects are ascribed to justified civil disobedience and (3) look into the role varying methods play in justifying it.6
Although these categories are highly dependent on one another and thus might overlap, I am convinced that they make a more systematical analysis possible.
Within each of the steps, I will take the considerations of Rawls and Habermas as a starting point, and discuss the arguments presented by the two authors. I will do so also by juxtaposing their theories to other strategies of justifying civil disobedience. While I obviously do not intend to establish a gradual concept of justice in this paper, in the course of the discussion I will develop arguments to show that the justification of civil disobedience is closely connected to the “gravity” of the injustice at hand and to the application of adequate means to tackle it. In other words: I will show that different kinds of injustice justify different forms of civil disobedience. In the concluding remarks, I will then summarize the arguments brought forward as to why “minor” injustices matter.
2. Grounds of Justification: A Shared Sense of Justice?
As opposed to institutionalized forms of protest that are embodied in the law (such as the right to demonstrate, the right of assembly, etc.), civil disobedience cannot be justified on legal grounds as it is illegal in nature; other grounds of justification have to be sought.
As indicated above, in the following I will accept the premise that civil disobedience—in its very nature of breaking the law for non-selfish reasons—only really poses an issue in states of “near justice”7. Even though this term in itself might be problematic (how can, given the paradigm case of Martin Luther King, a state be described as of near justice when there is institutionalized racial segregation?), it seems plausible to me because as I understand it, Rawls does not imply that every circumstance within such a state is just— he even admits that “serious violations of justice”8 can occur—but aims at seizing the political order of states. As opposed to autocratic or authoritarian regimes, by “nearly just states” he refers to democratic constitutional states with a legitimately established authority—states in which laws are established through democratic processes, where citizens accept the rule of law and generally obey the rules. It makes sense then, to limit the examination of civil disobedience to such states, as carrying out a form of protest deemed illegal in these states must involve a distinct justification. In authoritarian or autocratic states on the other hand, any form of disobedience is effortlessly justified given the inherent illegitimacy of such regimes.9
Thus, the question addressed in this section is: Upon which grounds can a legitimately established authority be dissented from? The described premise is important to answer this question insofar as the grounds on which both Rawls and Habermas justify civil disobedience are closely connected to the political order associated with it: democracy. For the two authors, democracy seems to be more than its laws and more than a certain set of institutions. In the way they describe it, within a democratic system citizens seem to share a certain set of moral values that is broader, or more profound, than (positive) law. Rawls speaks of a “commonly shared conception of justice that underlies the political order”10 and it seems to be this shared sense of justice that constitutes the moral foundations upon which every constitutional democracy is based. At the same time, since it is these moral principles upon which “the modern constitutional state grounds the expectation of voluntary recognition by its citizens”11, moral considerations combined with the democratic state’s claim to legitimacy seem to be the theoretical grounds on which Rawls and Habermas justify civil disobedience.
Habermas’ explanation as to why that is the case is particularly detailed: As soon as there is a disconnect between legal regulations and the moral foundations on which these regulations should be based (as soon as laws are legal but not legitimate), justified civil disobedience becomes possible. It is situated at the interface between legality and legitimacy, where citizens have the right to appeal to the sense of justice of other citizens in order to point out that actual laws are incompatible with this shared idea of justice, and thereby incompatible with the moral values underlying the constitution. Citizens are attributed such a right because every modern constitutional state can “only expect of its citizens obedience to the laws if and in so far as it rests on principles worthy of recognition, in light of which that which is legal can be justified as legitimate—and, if necessary, can be rejected as illegitimate.”12 However, whether legal regulations are illegitimate has to be assessed exclusively according to the moral principles that underlie the constitution and not according to private moral convictions, which are described as “arbitrary standards of private moral”13.
Whereas of course moral considerations on which civil disobedience is grounded should be “reasonable for all”14, the way in which Rawls and Habermas intimately link the moral values citizens are assumed to share to the constitution of a state seems rather narrow and prompts several questions: Does the commonly shared sense of justice that both authors assume exclusively apply to the political order of a state? Does there not exist a shared sense of justice amongst citizens that does concern more than the moral foundations that underlie the constitution? If we take one of the examples of the beginning and imagine protesters engaging in civil disobedience because of moral convictions concerning animal rights, can they not appeal to a shared sense of justice of people albeit not triggering moral values that are connected to the constitution in some way? I refuse to agree that every moral principle that does not underlie the constitution of a state is per se “arbitrary” and “private”.
Whereas the moral grounds on which Habermas and Rawls justify civil disobedience are intimately connected to the legitimacy of a state, the grounds on which Kimberley Brownlee justifies civil disobedience seem to be somewhat of a “purer” moral nature. She deems civil disobedience justified on the grounds of moral values that are “sufficiently weighty to require a breach of law in their defense”15 and that constitute the basis of serious and sincere believes. To counter the allegation of arguing for some kind of private moral, Brownlee explicitly states that she does not refer to private convictions. She explains how a sincere belief must be “well-founded”, which means that it has to have “objective intrinsic reasons” and “considerations that are objectively valuable”16. Moral reasons, in order not to be arbitrary and private, have to be intersubjectively traceable, which does not mean that they have to be limited to the “constitutional consensus”17 exclusively. Thus, Brownlee understands morality in a broader sense than Rawls and Habermas while still restricting moral considerations by objectivity demands.
While Rawls and Habermas combine morality and legitimacy as grounds of justification and Brownlee focuses on broader moral grounds that are not connected to considerations about legitimacy, Daniel Markovits, by referring to democratic theory, seems to justify civil disobedience18 on grounds of democratic legitimacy only: As soon as there is a gap between government policies and citizens’ preferences, democratic deficits occur that undermine democratic authority. In order to counteract this disconnect and to cure the democratic deficits, citizens assume the original rights of the sovereign and are justified in engaging in civil disobedience.19
1 http://www.sueddeutsche.de/politik/umstrittene-aeusserungen-ueber-occupy-und-sarrazin-was- gauck-wirklich-gesagt-hat-1.1288683; own translation; 4.8.2016.
2 Rawls, John  1999: A Theory of Justice. Revised Edition, Cambridge, MA, 319.
3 Rawls  1999: 326.
4 Rawls  1999: 326.
5 As to that, I understand “minor” injustices as opposed to Rawls notion of “substantial and clear” injustices, meaning that they do not primarily concern basic rights/civil liberties.
6 Looking at the question brought up earlier, the combination of objects and methods can be understood as the “circumstances” (what is addressed and how is it addressed) under which civil disobedience is justified.
7 Rawls  1999: 319.
9 See also Markovits, Daniel 2005: Democratic Disobedience, in: Yale Law School Faculty Scholarship Series 418, http://digitalcommons.law.yale.edu/fss_papers/418, 1936; 18.8.16.
10 Rawls  1999: 321.
11 Habermas, Jürgen 1985: Civil Disobedience: Litmus Test for the Democratic Constitutional State, in: Berkeley Journal of Sociology 30, 103.
12 Habermas 1985: 102.
13 Habermas 1985: 103.
14 Habermas 1985: 103.
15 Brownlee, Kimberley 2004: Features of a Paradigm Case of Civil Disobedience, in: Res Publica 10, 431.
16 Brownlee, Kimberley 2006: The communicative aspects of civil disobedience and lawful punishment, in: Crim Law and Philos (2007) 1, 183.
17 Habermas 1985: 107.
18 For reasons of simplicity I continue talking about civil disobedience although Markovits uses a different terminology: He divides political disobedience up into liberal disobedience and democratical disobedience to differenciate between a liberal and a republican framework of democracy—considerations that cannot be addressed further within this paper.