Thoughts on Civil Disobedience

(Written for the March 2011 issue of Pragati.)

An inquiry in to the social, cultural and historical narrative around civil disobedience as a legitimate tool of public protest would traditionally highlight the successes of these movements – Egypt in 1919 against British occupation, Gandhi and the Indian independence movement, the movement against Apartheid, the American civil rights movement and more recently, in movements across the Baltic states. Tempting, as it might be, to believe that civil disobedience is a legitimate tool that citizens can deploy in situations that are morally or politically at odds with their individual consciences, a question worth asking is whether it is a legitimate tool within the framework of a democratic State?

Martin Luther King, writing in his letter from Birmingham Jail, states that “In any nonviolent campaign there are four basic steps: collection of the facts to determine whether injustices exist; negotiation; self purification; and direct action.” He advocates these as escalating steps, that the first step is to gather evidence that such injustices, are in-fact, occurring, that armed with such evidence, negotiations are entered in to and only when such negotiations irretrievably fail or are unavailable should direct action be resorted to. While direct action seems to imply more than just peaceful confrontation, King explains that direct action is to be non-violent and “ … seeks to create such a crisis and foster such a tension that a community which has constantly refused to negotiate is forced to confront the issue. It seeks so to dramatize the issue that it can no longer be ignored.” Or, to put otherwise, when the traditional models and pathways for citizen engagement have broken down or can no longer be relied upon.

Recently, Dimitris Reppas, the Greek minister for public transport, stated the Government would not let “Greece [be] exposed to the risk of international disrepute and marginalisation, [the] destination of countries characterised by anomie. The attack on the social acceptability of the free-rider and the political dismantling of its simulacrum of progressiveness is paramount.” As convoluted as that statement is, it is worth remembering that Government’s, in democratically elected situations, derive their legitimacy from citizen and that the social contract is not absolute –  such that the mandate is in itself a blanket justification for policies and laws that are opposed for the opposition is derived from their individual moral and political conscience that cannot be seen to have been abrogated by an election. As Costas Douzinas writes, “Our implicit promise to obey the government does not mean blanket acceptance of its specific policies. A controversial policy does not become automatically legitimate because it has been enacted in parliament and become law … This is where the right and duty of civil disobedience enters the scene. If state laws and policies conflict with basic constitutional principles, the supposedly highest expression of popular sovereignty, the obligation to obey disappears and dissent replaces consent.”

A common criticism has been that democracies offer multiple methods of resolution of differences – regular elections allow those opposing a Government’s policies to vote them out of power and a legal system allows for multiple levels of challenge to laws and policies that are seen as unjust. However, these arguments often fail to take in to account that opposition cannot always be expected to wait for an election cycle – there is no obvious reason an unjust policy should not be challenged at the point of instatement. Further, where there are special interest groups that direct and shape policy, a civil movement might be the only available recourse to bring to attention an injustice. Not all civil disobedience movements confront issues that can be raised in a court of law. In many instances, where the law law trails social trends and moors, a movement of civil disobedience might be the only way to challenge such legal norms that are clearly out of sync with social norms. An important corollary to this is that it is necessary to disobey an unjust or unconscionable law in order to bring a legal challenge to it and that such individuals engaged in civil disobedience are willing to bear the consequences of such action.

The discourse around civil disobedience is complex and layered and touches upon multiple other manifestations of civil disobedience – whether violence is acceptable, whether non-cooperation is a valid tool to be used within this context, whether it is a recipe for anarchy if multiple groups chose this as a model for their own struggle against what they perceive to be morally transgressive laws and more. While the answers vary depending on the philosophical school of thought one engages, a common enough thread is that there is a strong moral mandate for individuals to follow their own conscience and that it is this that forms the basis of civil disobedience.

Rawls’ account of civil disobedience centers around the notion a nearly just society but real world exigencies point to a state of affairs far from this notion and civil disobedience movements, have, in many ways morphed to deal with these realities. However, remain, fundamentally, movements that center around conscientious opposition by individuals and a willingness to face the political and legal consequences of such action.

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About gkjohn

Recovering lawyer, erstwhile entrepreneur, pretend polymath, hopeful zookeeper and future dilettante and farmer of organic strawberries. Work at @aksharadotorg and @klpdotorg. Previously at @prathambooks. Was a @tedfellow.
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5 Responses to Thoughts on Civil Disobedience

  1. Anonymous says:

    Well, I stopped being one and now spend my time atoning for past sins. 🙂

  2. Anonymous says:

    Well, CDM are usually options of last resort, right? And when they are options of last resorts then there is usually already a movement that has formed and is at breaking point?

  3. Anonymous says:

    I’m sure the same was said of elections.

  4. Anonymous says:

    Gautam, do you do freelance legal work?

  5. Anonymous says:

    Booksm: Nope. I don’t.

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