From the fall of 2014 and for one year I studied at King’s College London. I received an MA in Philosophy, and graduated with merit. Below is my dissertation, which discusses the collision of civil disobedience and technology.
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On Rawls: Fidelity to Law and Electronic Civil Disobedience
Introduction
In A Theory of Justice, John Rawls offers an account of civil disobedience within what he calls “a just or nearly just society.” His account has served as the starting point for contemporary discussion of civil disobedience, yet critics claim that Rawls’ definition of civil disobedience is too narrow: many acts considered paradigmatic examples of civil disobedience may not be justifiable according to Rawls’ theory of justice.
In his account, Rawls lists the conditions that an act of civil disobedience must satisfy to be justifiable within the just or nearly just society that is the centrepiece of A Theory of Justice. These conditions constrain both when civil disobedience may be employed and how it may be conducted. The condition that I will henceforth scrutinize is that civil disobedience, as per Rawls, “expresses disobedience to law within the limits of fidelity to law, although it is at the outer edge thereof.” To be civilly disobedient within the limits of fidelity to law is to object neither to the rule of law in general nor to the institutions relevant to the formation and enforcement of laws. Rather, the disobedient acting within the limits of fidelity to law objects to a specific law or institutional policy deemed unjust. Rawlsian civil disobedience does not challenge the legitimacy and authority of either the rule of law or the institutions relevant to the rule of law. It aims to correct a particular injustice produced by legitimate, authoritative and just institutions.
I will argue that Rawls’ assertion that civil disobedience is conducted within the limits of fidelity to law is untenable. My argument is comprised of several parts:
The first part broadly defines civil disobedience and summarizes how civil disobedience functions within Rawls’ theory of justice. This part is largely expositional, and serves to stage the remainder of my paper.
The second part contends that expressing fidelity to law may compromise the efficacy of justifiable civil disobedience. Within Rawls’ just or nearly just society, it may not be in the interest of societal justice to constrain civil disobedience by requiring that it be conducted within the limits of fidelity to law. This first part of my argument will assert that, within a Rawlsian framework, it should not be a condition of justifiable civil disobedience that it is conducted within the limits of fidelity to law.
The third part asserts that there is no way for a disobedient to directly indicate his fidelity to law. Some of the conditions Rawls sets for justifiable civil disobedience allow the disobedient to demonstrate his fidelity to law. But since fidelity to law can only be implied, and not directly indicated, the satisfaction of the conditions meant to express fidelity to law may be no more than empty gestures. The third part contends that the conditions that express fidelity to law cannot be reasonably expected to separate disobedients who truly act within the limits of fidelity to law and those who do not. To demand that disobedients satisfy the conditions that express fidelity to law, then, is to make an arbitrary and meaningless demand.
The fourth part will take a broader look at Rawls’ moral framework, which demands that fidelity to law be expressed in the first place. Here I will cite an argument posited by Simmons, which questions the viability of Rawls’ account of political obligation. If, as Simmons argues, Rawls’ account of political obligation is untenable, then it cannot be expected that disobedients express fidelity to law where there is no reason for the disobedients to be committed to the legitimacy and authority of the law and its relevant institutions.
In conclusion, I will discuss electronic civil disobedience as a new standard for justifiable civil disobedience insofar as fidelity to law is typically not expressed during its engagement.
Part 1: A Formal Definition of Civil Disobedience
Before getting started, I need to introduce a bit of shorthand: instead of continually writing “the condition that civil disobedience is done within the limits of fidelity to law” I will refer to that condition simply as the “fidelity to law condition.” Again, the goal of this essay is to determine whether the fidelity to law condition is a tenable one for justifying civil disobedience within Rawls’ theory of justice.
My first objective is to offer a general definition of civil disobedience, which will exclude the fidelity to law condition. With a very broad definition of civil disobedience in hand, I’ll examine how civil disobedience is constrained when the fidelity to law condition is added to the definition of civil disobedience.
My definition of civil disobedience identifies three necessary features. These features are essential to the concept of civil disobedience: if an act does not have one of the three features, then it is not civil disobedience, but something else. The three features are its illegality, its conscientiousness, and its communicativeness.
It may be contended that there are other necessary features of civil disobedience, for instance that it must be non-violent, or that it must satisfy the fidelity to law condition. But the definition I offer isolates civil disobedience as a certain kind of political action, and the three features I present are necessary to distinguishing it from other kinds of political advocacy. Whether an act of civil disobedience is violent or not, or whether it satisfies the fidelity to law condition, may be relevant in considering the justifiability of an act of civil disobedience. But it does not seem like those conditions are necessary features of civil disobedience. For now, I only offer three necessary conditions for civil disobedience that mark it as a certain kind of political action—and one that may or may not be justifiable given other considerations.
In general I adhere to Brownlee’s definition of civil disobedience: an act of civil disobedience “must include a deliberate breach of law taken on the basis of steadfast personal commitment in order to communicate...condemnation of a law or policy to a relevantly placed audience.”
The first necessary feature of an act of civil disobedience is that its agent knowingly breaches the law. The illegality of an act of civil disobedience distinguishes it from lawful petitioning against a law or policy. Civil disobedience, despite its illegality, is nevertheless a permissible way to exact legal or political change, but by definition cannot be codified as lawful political action.
The second necessary feature of civil disobedience is the conscientiousness with which the illegal act is conducted. This serves to conceptually separate civil disobedience from normal offending. Unlike normal offenders—who are by definition disobedients, too—civil disobedients are motivated by a sincere, well-measured moral commitment, which Brownlee refers to as a conscientious moral conviction.
Together, the first and second features imply that there is a crucial distinction between an individual’s legal and moral commitments. While an individual may be committed to respect and adhere to the laws of his society, he may also embrace other moral commitments that either directly conflict with or are unaccounted for in his society’s laws or policies. Ultimately, an individual may have moral commitments that trump his commitment to abide by the law: our legal commitments are not indefeasible, and where an individual’s honouring some conscientious moral convictions is at odds with his legal demands, then it’s possible that he may justifiably breach the law to honour those conscientious moral convictions. Without a distinction between moral and legal commitments and an understanding that moral commitments may trump legal ones, civil disobedience would be conceptually incoherent. For an individual to neglect his legal commitment (which is the first necessary feature of civil disobedience) because he honours some other moral commitment (the second necessary feature of civil disobedience), there must be a clear distinction between the two classes of commitments.
The third feature is this: civil disobedience is necessarily communicative. The condition of communicativeness subsumes another integral feature of civil disobedience, which is the fact that civil disobedience communicates the need for substantial legal or policy change within a society. Acts of civil disobedience express both condemnation of a policy or law deemed objectionable and the relevant reasons for that condemnation. Civil disobedience is persuasive: it is an appeal to both policy makers and the public to reconsider the moral implications of a law or policy so as to instigate legal or political change. Its communicativeness separates civil disobedience from other forms of disobedience: it is possible to be conscientiously disobedient yet uncommunicative. Such is the case with so-called conscientious objectors or personal disobedients—like draft dodgers or tax-evaders—who privately breach the law because they object to some policy or law, but do not attempt to communicate their objection to achieve political or legal change.
The second and third features are related. A disobedient’s communicating his objection indicates of the strength of the conscientious moral conviction that motivates his acting: he communicates his objection because it is relevant to society at large. The private disobedient and the civil disobedient are distinguishable in this way. While both object to some policy or law, the private disobedient may or may not care to see substantial policy change so long as he can continue to act in a way that contravenes the policy or law. So if a tax-evader decides not to pay a certain tax because he objects to some tax-funded policy, he may not care whether or not that policy is changed. He may be content to know that he doesn’t finance the policy to which he objects, and that will be the sole purpose of his disobedience.
The personal disobedient’s goal in being disobedient is not political change per se, so he neglects communicating his objection. He may simply find peace of mind knowing he honours his moral commitments over his legal ones where the two diverge. The civil disobedient, however, sees his objection not just as a personal concern, but as a communal one. Civil disobedience’s end is socio-political change, and the civil disobedient’s willingness to achieve change by communicating his objection (let alone breaking the law) is a function of how strong his conscientious moral convictions are. As Brownlee notes, practitioners of civil disobedience “are wholly sincere and serious in [their] desire to bring about a lasting positive change in law or policy.”
The three necessary features of civil disobedience distinguish civil disobedience from other kinds of political and illegal acts. Civil disobedience is illegal, it is conducted conscientiously, and it is communicative. It is therefore distinct from lawful political advocacy, normal offending and personal disobedience, respectively. My definition highlights the role of civil disobedience as a certain type of political strategy. It counts as civil disobedience both direct and indirect civil disobedience. Civil disobedience is direct where the law breached by the disobedient is also the law to which the disobedient objects, as is the case with, for instance, Saudi women who drive cars in protest of Saudi laws that forbid women from driving. Civil disobedience is indirect where the disobedient breaks one law, yet the disobedient does so to communicate an objection to another, distinct law or policy. A recent example of indirect civil disobedience occurred when activists trespassed onto Heathrow airport’s runway and staged a sit-it to communicate an objection to a proposed new runway, the construction of which would require the demolition of nearby residences and businesses.
Employing civil disobedience, as I’ve defined it, may be unjustifiable where it does not satisfy other conditions. Rawls, for instance, asserts that an act of civil disobedience is justifiable only when it satisfies the fidelity to law condition. Within a Rawlsian moral framework, a civil disobedient is morally committed to fidelity to law. The focus of this paper is to contest the notion that the Rawlsian condition of fidelity to law is a tenable one. I must bracket other conditions that may be relevant to the justifiability of an act of civil disobedience—such as its being violent or not, or coercive or not—and only focus on fidelity to law. I will, however, periodically return to the condition of non-violence, as it is incidentally relevant to discussion of fidelity to law.
Part 1: Rawls and Civil Disobedience
Before scrutinizing the fidelity to law condition—which Rawls asserts is a condition that an act of civil disobedience must satisfy in order to be justifiable—it’s crucial to understand what purpose civil disobedience plays in Rawls’ political framework. A brief examination of Rawls’ A Theory of Justice is necessary to understand how civil disobedience fits into a Rawls’ political and moral schemata.
Much of the content from A Theory of Justice, including Rawls’ account of civil disobedience, is the product of a thought experiment: if a group of rational individuals were to unbiasedly construct its society’s system of justice from the ground up, what would that system look like? Rawls refers to the impartial starting point at which the group of rational individuals chooses its system of justice as the “original position.” Rawls’ theory of justice is partly comprised of the decisions that he argues those in the original position would make, from the moral principles to which the society would ascribe to the structures of their political arrangements.
Rawls’ account of civil disobedience is a product of his arguing how those in the original position would see civil disobedience justly employed. For Rawls, civil disobedience is a means—albeit a definitionally illegal one—for stabilizing justice within a society. Civil disobedience draws attention to unjust laws or policies: sometimes a law or policy deviates from a society’s standards of justice, and civil disobedience works to instigate a revision of the objectionable law or policy so it better reflects the society’s sense of justice.
Rawlsian civil disobedience does not criticize the institutions or political arrangements that produced the unjust law or policy. Instead, its aim is exclusively to amend a policy or law. Rawls argues that “there is no feasible political process which guarantees that the laws enacted in accordance with it will be just.” Regardless of a society’s political arrangements, it is possible that unjust laws or policies will be produced. Civil disobedience is an effective way to instigate change from outside of the procedures of the political institutions that produce the occasional unjust law or policy. Successful civil disobedience persuades the general populace and political decision-makers that there is an asymmetry between the society’s principles of justice and a law or policy, and that that asymmetry requires correction.
Though Rawls acknowledges that a society’s legal and political procedures may be imperfect insofar as they are liable to produce unjust laws and policies, this acknowledgment does not mean that the institutions and procedures are therefore unjust themselves. It’s important to note how the political arrangements of Rawls’ hypothetical society are contrived: the specific arrangements and procedures are devised because it’s understood that they will most likely produce just legislation and policies. So the arrangements and procedures are just insofar as they are optimal, yet imperfect, devices for producing just legislation.
While it may seem viable to conduct civil disobedience as a means of objecting to the imperfections of the institutions that produce unjust laws or policies, Rawls argues that those in the original position would agree upon the conditions of justifiable civil disobedience so that civil disobedience would stabilize just institutions—specifically the constitution that codifies the structure and interrelatedness of the society’s other just institutions. Civil disobedience should not, Rawls argues, jeopardize the stability of the just arrangements already agreed upon, but should correct whatever errors those just arrangements happen to produce. Yet the following may be asked: Why should members of a society have any interest in maintaining the stability of its just institutions? Rawls’ response is the natural duty of justice.
The natural duty of justice, Rawls argues, is a moral principle to which those in the original position would have their society ascribe. It consists of two parts: “first, we are to comply with and to do our share in just institutions when they exist and apply to us; and second, we are to assist in the establishment of just arrangements when they do not exist, at least when this can be done with little cost to ourselves.” The natural duty of justice is not one to which an individual need voluntarily commit himself. Instead, it applies naturally to everyone; however, members of a society need only comply with and further the just institutions that “apply” to them.
To sum up, Rawls argues that those in the original position would construct a moral and political framework within which civil disobedience may be justifiably employed. At the most fundamental moral level, individuals would be indelibly bound by a natural duty of justice, which demands the maintenance and development of just institutions. While the precise political arrangements agreed upon from the original position may be imperfect, they are nevertheless just insofar as they were agreed upon because they were expected to be the best arrangements for creating just legislation. Thus the natural duty of justice requires individual members of the society to do their part in maintaining those institutions.
Civil disobedience is meant to correct the errors that just institutions may make. Civil disobedience is not meant to destabilize those institutions: it is not employed to undermine the legitimacy and authority of just institutions. If an individual undermines or destabilizes a just institution, then he ipso facto contravenes his natural duty of justice. He would not be “doing his share” in maintaining just institutions.
Within a Rawlsian framework there is, then, a moral commitment to conduct civil disobedience in a way that does not compromise the authority or legitimacy of the just institutions that apply to an individual: civil disobedience must still honour one’s natural duty of justice. The conditions for justifiable civil disobedience that Rawls argues those in the original position would set, notably the fidelity to law condition, ensure that civil disobedience is conducted in a way that preserves just institutions and, thus, agrees with the disobedient’s natural duty of justice.
Part 1: Rawlsian Civil Disobedience and Fidelity to Law
By conducting civil disobedience within the limits of fidelity to law, a disobedient acknowledges the authority of the just institutions to which his natural duty of justice commits him. Within a Rawlsian framework, it is morally reprehensible for the disobedient to regard the law contemptuously or see himself as above the law. To be sure, Rawls asserts that it may be permissible to be disobedient beyond the limit of fidelity to law. But doing so would preclude one’s engaging in civil disobedience—this is the work of a militant, not a civil disobedient. Instead, the disobedient is committed to the law’s legitimacy and authority on pain of contravening his natural duty of justice.
There is, however, a difficulty. How does one satisfy the fidelity to law condition via an act of civil disobedience? To consider the law as legitimate and authoritative is to have a specific attitude about the law. Is it possible to convey such an attitude through civil disobedience short of openly declaring one’s respect for the rule of law?
A disobedient’s fidelity to law cannot be self-evidently evinced. It is implausible that some feature of civil disobedience may directly convey the disobedient’s attitude toward the law. To see this, I’ll contrast the fidelity to law condition with a different condition of justifiable civil disobedience that Rawls proposes: that civil disobedience is justifiable only when it is non-violent.
The non-violence of an act of civil disobedience is self-evident provided we have an agreed-upon definition of what makes an act violent. All one must do is examine the nature of the disobedience and see whether our definition of violence applies to it. Where it does, then, according to Rawls, the act is categorically unjustifiable, and where it doesn’t, the act is justifiable where it also satisfies all other conditions of justifiable civil disobedience.
We cannot say that an act of civil disobedience may self-evidently satisfy fidelity to law condition in the same way that it may self-evidently satisfy the non-violence condition. The difference lies simply in the fact that we cannot definitively infer the psychological state of the disobedient from his actions, whereas we can draw conclusions about the nature of an act by examining it. Leaving the condition of non-violence aside, fidelity to law can merely be suggested or implied; it cannot be directly indicated.
For Rawls, the fidelity to law condition is not satisfied by one condition or feature of the act of civil disobedience. Instead, Rawls proposes several (as I will call them) “sub-conditions” that must be satisfied because their satisfaction expresses the disobedient’s fidelity to law. Those sub-conditions are as follows: that civil disobedience is employed as a last resort—that is, only after adequate lawful petition for change has been made—, that civil disobedience is conducted publicly, that it is conducted after fair notice is given to relevant authorities, and that the disobedient willingly submits himself to punishment.
Part 1: Summary
Part one established a working definition of civil disobedience. Civil disobedience satisfies three necessary features: it is illegal, it is done conscientiously, and it communicates an objection to a law or policy. This definition conceptually separates civil disobedience from other kinds of disobedience and political action. The definition does not stipulate the conditions of justifiable civil disobedience.
Part one also summarized Rawls’ theory of justice, specifically how the Rawlsian natural duty of justice informs the use of civil disobedience. Rawlsian civil disobedience is not a platform for objecting to the just institutions to which individuals have a moral duty to “support and further.” Instead, civil disobedience is employed to object to a specific policy or law. Rawlsian civil disobedience is unjustifiable where it jeopardizes the legitimacy and authority of just institutions, as it is a moral duty to support and further just institutions. Lastly, I argued that an act of civil disobedience cannot self-evidently indicate fidelity to law. Fidelity to law may only be expressed through the satisfaction of other “sub-conditions,” as I call them. Those sub-conditions are that civil disobedience is employed as a last resort for political change, that it is public, that it gives fair notice, and that the disobedient willingly accepts the legal consequences of his act.
Part 2: The Argument
Rawls does not explicitly define the fidelity to law condition qua set of “sub-conditions.” Instead, he says that “fidelity to law is expressed by” certain conditions. Rawls, further, does not go into much detail in explaining why, exactly, such conditions express fidelity to law. In part two, I will offer plausible explanations of how each sub-condition expresses fidelity to law, and I will also describe how each sub-condition constrains the manner in which civil disobedience may be employed.
Part two argues within Rawls’ framework: I will offer a reinterpretation of what those in the original position would do when setting the conditions for justifiable civil disobedience. Once it is clear how the sub-conditions constrain the efficacy of civil disobedience, it follows that expressing fidelity to law through civil disobedience would not be in the best interest of societal justice, and that those in the original position would not demand that civil disobedience satisfy the sub-conditions that express fidelity to law.
Part 2: Last Resort
The first Rawlsian feature of civil disobedience relevant to demonstrating fidelity to law is the “last resort” condition. The condition states that civil disobedience is to be undertaken as a last resort and only after legal avenues for change have been adequately, but ineffectively, explored. Rawls qualifies this condition considerably: he writes that it is not necessary to “exhaust” all legal means, and that civil disobedience is justifiable where legal attempts have failed so that “further attempts may be thought fruitless.” Additionally, if the injustice is severe enough—Rawls offers the banning of a religion as one such extreme injustice—then legal means may be forgone altogether.
The last resort condition expresses fidelity to law because it shows that the disobedient does not circumvent the law, but instead utilizes it as an instrument for change available to all members of society. It demonstrates that the disobedient is committed to the justness of the political process, and that he only resorts to disobedience both because his lawful pleas have failed and because he has some moral commitment that ultimately overrides his commitment to the law. His commitment to work within the law before turning to civil disobedience is at least suggestive of his commitment to creating and preserving just institutions, for, as Greenawalt writes, “presenting one’s views in a full and orderly fashion to those who have made or are to make a decision can be an important aspect of duties based on consent or fairness.” A disobedient’s immediately resorting to civil disobedience without attempting lawful petition implies that he doesn’t perceive the political process and its relevant institutions as legitimate and authoritative.
How does the last resort condition constrain the efficacy and employment of civil disobedience? Rawls recognizes that the last resort condition may be forgone where it’s clear that pursuing further legal options will not be fruitful or where the injustice is too grave. This qualification indicates that even Rawls is aware that the last resort condition is not absolutely sufficient to justify civil disobedience—as it may be forgone—, and it may instead inhibit the employment of otherwise justifiable civil disobedience.
What seems important to this condition is not the pursuit of legal avenues for change per se, but knowing that legal avenues will not bring about the desired legal or political change. Indeed, Rawls notes that “[s]ince civil disobedience is a last resort, we should be sure that it is necessary.” Having a disobedient’s legal pleas rebuffed is evidence that civil disobedience is necessary; having one’s legal attempts for change denied affirms that change may only be generated from without the lawful political process.
There are other ways, though, of securing the necessity of civil disobedience. Rawls’ example of a legislature banning the practice of some religion is one scenario in which it is indisputable that the political process will not respond to lawful objections. In this case, it is clear that there is no point in pursuing lawful change: if it wasn’t apparent to policy makers that their anti-religious legislation was unjust during its drafting, then it’s reasonable to expect that they will be apathetic toward further lawful petitioning. Civil disobedience, in this case, is necessary insofar as it may be the only remaining vehicle for securing justice short of rejecting the legitimacy of the just institutions that produce the injustice. In this way, Rawlsian civil disobedience is a last resort: it’s a “final device to maintain the stability of a just constitution” that doesn’t implicate a rejection of the legitimacy and authority of a society’s political arrangements.
When else might it be reasonable to deem civil disobedience as necessary where lawful alternatives are forgone? In other words, in what ways does the last resort condition constrain the employment of civil disobedience?
For one, it may be necessary to resort to civil disobedience without pursuing lawful alternatives where an injustice may worsen with time. Consider a newly introduced but plausibly unjust system of benefits distribution: while those who are to receive a disproportionately small amount of benefits may be able to get by for a time with what they are allotted, the long-term effects of the unjust policy will emerge as benefits recipients work through whatever resources they might have in store. It is unreasonable, I think, to pursue legal avenues for change where an injustice would only worsen over the period of time in which legal action would take place. Where time is of the essence, it is not always in the interest of social justice to waste time and energy on legal avenues for change, especially if they are expected to fail anyway.
It may also be necessary to resort to civil disobedience where the avenues for legal change are so long and torturous that an injustice may persist because of the bureaucratic complexities of the political arrangement. Consider an activist objecting to his society’s policies on the division of military and civilian tribunals. In the United States, if a member of the military is accused of committing a crime, his commanding officer reviews the case, and legal proceedings against the suspect only occur after the commanding officer refers the case to a court-martial. The system is a closed one, and it’s liable to perpetuating certain injustices: cases of sexual assault are notorious for being unduly thrown out by commanding officers.
How would an individual who objects to this policy possibly change it through legal petition? It is apparent that the US military’s justice system is flawed, and that it does not serve justice well. Yet the legal obstacles required for change are insurmountable: one does not simply hire a lawyer to correct such an injustice. It is imprudent to attempt any legal action in objection to military tribunal system, the policies of which are determined internally and immune to normal petitions for change. Engaging in civil disobedience against such a policy is intuitively justifiable even where lawful alternatives are not initially explored. It is clear that lawful petition would require an inordinate amount of bureaucratic negotiation, and it is overly burdensome—and does justice no favours—to exempt such policies from scrutiny by civil disobedience because lawful action was not taken first.
The last resort condition is overly burdensome. It insulates certain injustices from being the targets of civil disobedience. Where an injustice may worsen over time and where bureaucratic obstructions may hinder legal petition, it is unreasonable to expect that civil disobedience must be postponed until legal petitions are made. Though it is true that first pursuing legal alternatives may express a disobedient’s attitude that the law is authoritative and legitimate, it constrains the efficacy of civil disobedience to directly tackle injustices that are immune to lawful petition.
It seems beside the point to justify civil disobedience on the grounds that legal attempts have failed to effect a change in policy. The necessity of civil disobedience is not simply the function of the failure of legal attempts, but is instead a function of the severity of the injustice and how deeply it is engrained into a society’s institutions. The failure of legal petitions only evinces how engrained a policy or law may be, but it’s not necessary to knowing that lawful attempts for change will be ineffective by pursuing them and having them fail. Therefore, it seems as though those in the original position, and by extension Rawls, would be mistaken in setting as a condition for justifiable civil disobedience the last resort condition.
Part 2: Public & With Fair Notice
This section will scrutinize two distinct conditions for justifiable civil disobedience in one felled swoop. Those conditions are as follows: civil disobedience is conducted in public and it’s conducted only once fair notice has been provided to relevant authorities.
The “public condition” is this: civil disobedience is to take place in a public place. According to Rawls, civil disobedience “is not covert or secretive.” And the “fair notice condition” is this: the disobedient must announce to relevant authorities—enforcement agencies, civil offices, whomever—that he will conduct a civilly disobedient act at a certain time and place; Rawls writes that civil disobedience is “engaged in openly and with fair notice.”
Rawls does not explicitly write why either condition expresses fidelity to law. In fact, Rawls doesn’t explicitly write that the fair notice condition expresses fidelity to law as he does with the publicity condition. But I will present my reasons for believing that the fair notice condition does express fidelity to law. The conditions of publicity and fair notice contribute to the justifiability of civil disobedience in similar ways.
The two conditions express fidelity to law because while the disobedient wishes to convey his objection through illegal means, he does not wish to undermine the legitimacy or power of the authorities he’s informed. A hallmark of ordinary offending is that the criminal wishes to circumvent the reach of the authorities. Ordinary offending is usually inherently subversive: a criminal is secretive and covert so as to undermine the ability of the authorities to respond to his misconduct.
Yet the openness and fair notice of civil disobedience marks the civil disobedient as willing to comply with just institutions as best he can. Civil disobedience definitionally requires deviating from the law, but these two conditions limit the extent of that deviation: by satisfying the fair notice and publicity conditions, the disobedient broadcasts that his disobedience does not challenge or test the rule of law. He does not seek to destabilize the political arrangements by frustrating the authorities with covertness and secrecy. Though he breaks the law, the disobedient still deals with the authorities fairly insofar as he cooperates with them by allowing them to plan a tactful response to his disobedience.
Civil disobedience conducted openly and with fair notice, then, expresses a fidelity to law; however, it may also constrain the efficacy of civil disobedience. Brownlee argues that providing the authorities fair notice “gives political opponents and authorities an opportunity to abort” the act of civil disobedience. Providing the authorities with fair notice is unlikely to serve the interests of the disobedient should the relevant authorities act to stifle his disobedience.
Likewise, it may not serve the interests of the disobedient to conduct his disobedience publicly. Many acts of civil disobedience may never successfully communicate their message should they be conducted entirely in public, if only because complete openness might attract the attention of the authorities, who would be obliged to halt the disobedience.
Civil disobedience is definitionally communicative, so the act must at some point appeal to an audience in order to satisfy the communicative condition. But sometimes covertness is necessary to achieving those communicative ends. Imagine the fate of the disobedients who trespassed into Heathrow should they have informed airport security that they were going to cut a nearby fence and conduct an illegal sit-in on the tarmac in objection to a proposed runway. It is likely, I think, that their disobedience would have been aborted by airport security.
It is evident that the public and fair notice conditions may compromise the efficacy of some acts of civil disobedience. It is also clear that a disobedient’s acting secretly or covertly does not necessitate his contempt for the law: though the Heathrow trespassers acted secretly, it is not the case that they are ipso facto contemptuous toward the rule of law. The two conditions may be overly restrictive insofar as they preclude some acts of civil disobedience that may nevertheless be conducted by individuals who see the rule of law as legitimate.
Yet it may still be argued that satisfying the public and fair notice conditions should count toward the justifiability of civil disobedience because they ensure the disobedient’s fidelity to law. A disobedient who acts publicly and after giving fair notice ipso facto complies with just institutions as best he can, all things considered.
There is some strength to the preceding point. Yet the conditions are nevertheless too restrictive—and so restrictive that I doubt that those in the original position would seriously consider them as counting toward the justifiability of civil disobedience. This is because the conditions of publicness and fair notice may jeopardize the viability of civil disobedience as a political strategy altogether. To demonstrate this, I will sketch out a short scenario.
Rawls concedes that unjust laws and policies will invariably be enacted. It is possible that an enforcement policy might be introduced that categorically forbids civil disobedience: should authorities catch wind that someone is planning to conduct civil disobedience, then they should do everything in their power to stop it from happening. The policy would contravene the societal acceptance of civil disobedience that Rawls’ argues those in the original position would decree ad initio, but such a contravention is not impossible. Civil disobedience, then, would be entirely impotent. A potential disobedient would inform the authorities of his plans, and—assuming it’s within the power of the authorities to actively forestall public violations of the law—the authorities would stop him before he could get started.
While the above situation is contrived, it shows the danger in resting the employment of civil disobedience in the authorities. Civil disobedience that defers to authorities runs the risk of being aborted, and it is not in the interests of those conducting civil disobedience—nor in the interest of social justice—for civil disobedience to rely on the approval or complicity of any individual or organization outside of those conducting civil disobedience. The employment of civil disobedience should be solely rested in individuals who engage in civil disobedience to honour their conscientious moral convictions.
Rawls seems to imply that the relevant authorities will unconditionally permit civil disobedience to occur. But even in a nearly just society, the authorities’ absolute tolerance of civil disobedience—which is definitionally non-compliant—seems unlikely. Though a disobedient’s satisfying the conditions of publicness and fair notice may guarantee his fidelity to law, it is at too high of a cost. The two conditions expose the efficacy of civil disobedience to the whim of the authorities, who may have distinct interests from the disobedients and who may permissibly quash any attempt at civil disobedience. For this reason, it seems dubious that those in the original position would set the conditions of publicness and fair notice as counting toward justifiable civil disobedience.
Part 2: Accepting Punishment
The last sub-condition of the condition of fidelity to law is that civil disobedients must willingly submit to the legal consequences of their disobedience.
Rawls explicitly states that accepting punishment expresses fidelity to law, but says little more to develop that point; I will further flesh out that notion. The “punishment condition” demonstrates fidelity to law because it shows that the disobedient does not challenge the rule of law. He does not aim to subvert the political arrangements necessary to enforcing the law, but instead selectively breaches a single law while remaining true to the rule of law in general. Though his disobedience marks a deviation from compliance to just institutions, his willingly submitting to punishment suggests that he still views the rule of law as legitimate and authoritative. It’s effectively the disobedient’s admitting that he deserves punishment according to the rule of law to which he is committed.
The punishment condition, like the preceding three, is one that may undermine the efficacy of civil disobedience. It may especially constrain the employment of indirect civil disobedience where a society enacts unfavourable policies regarding the methods of indirect civil disobedience.
Consider the following. Suppose a group of activists wish to conduct indirect civil disobedience in opposition of some policy or law, as it’s impractical to conduct direct civil disobedience against this policy or law. Perhaps the policy in question is one endorsing military aggression, or the law in question is one forbidding abortion. In either case, direct civil disobedience may not be the best or a morally acceptable course of action to change the policy or law. The only viable option is indirect civil disobedience.
Now suppose that there are laws in place that heavily penalize common methods of indirect civil disobedience. Whether or not the laws were enacted so as to deter civil disobedience makes no difference: would-be civil disobedients would be disincentivized to practice indirect civil disobedience where the punishments for common methods of indirect civil disobedience are disproportionately stiff.
Much like the conditions of publicness and fair notice, satisfying the punishment condition exposes the viability of civil disobedience to the policies or laws a society has toward civil disobedience. The punishment condition may immunize certain injustices from being the targets of civil disobedience where those injustices may not be objected to by direct civil disobedience. It is plausible that a society would enact unjust laws of policies that disincentivize civil disobedience by overly penalizing common methods of indirect civil disobedience, and, for this reason, it seems unlikely that those in the original position would endorse the adoption of the punishment condition.
Part 2: A Word on Violence
Rawls writes that “fidelity to law is expressed by the public and non-violent nature of the act.” While I have included the public condition in my list of sub-conditions that express fidelity to law, I have excluded the condition of non-violence. This is because I cannot, for the life of me, come up with a plausible explanation that could explain why a disobedient act’s non-violence expresses fidelity to law.
One plausible explanation is that a violent act may be a necessarily unjust one: it may be a moral principle that violence is wrong. But Rawls rejects this notion quite explicitly, writing:
[Civil disobedience] tries to avoid the use of violence, especially against persons, not from the abhorrence of the use of force in principle, but because [civil disobedience] is the final expression of one’s case. To engage in violent acts likely to injure and to hurt is incompatible with civil disobedience as a mode of address.
Rather than being non-violent because violence is wrong “in principle”, civil disobedience is non-violent because violence compromises the communicativeness of civil disobedience.
It seems to me that violent civil disobedience may be justifiable. First, to allay the Rawlsian, the violence of an act of civil disobedience neither indicates nor necessitates the disobedient’s wishing to destabilize society’s just institutions: an act of civil disobedience may be simultaneously violent and done to further just institutions—and thus honour one’s natural duty of justice. Second, violence need not be harmful or destructive. Brownlee offers an example of civil disobedience that is violent yet unharmful: catapulting stuffed animals at police officers. Morreall notes that when we consider the justifiability of violent civil disobedience, we tend to think of violence “only in terms of unlimited violence found in riots and revolutions” and not as something that “could ever be limited in scope to achieve limited ends.” To categorically forbid violent civil disobedience would be to ignore how limited violence may be justifiable. Third, violence does not preclude the communicativeness of an act of civil disobedience. It seems like violent civil disobedience could be done to further just institutions, could be adequately constrained to prevent harm to persons or property, and could, contra Rawls, nevertheless communicate a moral objection to a law or policy.
So Rawls’ suggestion that civil disobedience is non-violent because civil disobedience expresses fidelity to law falls short, since it is not immediately clear—to me, at least—how it is that violence necessarily signifies a contempt for the law. But Rawls’ latter comment alludes to another set of reasons for satisfying the conditions for justifiable civil disobedience. Instead of a disobedient’s satisfying certain conditions because doing so is morally right—that is, because doing so honours one’s natural duty of justice—he may satisfy them because it best persuades his audience of his objection. Non-violent disobedience may be preferable to violent disobedience because an audience may respond better to non-violent tactics. The same can reasonably be said of other conditions: it may be strategically advantageous to conduct civil disobedience as a last resort, in public, and so forth. In part three, I will argue that because a disobedient may satisfy the four sub-conditions for strategic purposes, their satisfaction does not reliably indicate the disobedient’s fidelity to law. Thus, expressing fidelity to law by satisfying the four sub-conditions may be an empty and misleading gesture, and they should not be taken as conditions of justifiable civil disobedience for that reason.
Part 2: Summary
The four sub-conditions that express fidelity to law are the conditions of last resort, publicness, fair notice, and accepting punishment. All of these conditions constrain the employment of civil disobedience because they rest the employment of civil disobedience in the society’s policies and laws. These policies and laws may be unfavourable or even hostile to the employment of civil disobedience. Where this is the case, civil disobedience may not be as potent of a political check as those in the original position would want it to be. Civil disobedience is, according to Rawls, “one of the stabilizing devices of a constitutional system.” It would be folly to demand that a disobedient deliberately express fidelity to law where his doing so compromises the efficacy of civil disobedience.
Satisfying any of the above four conditions exposes the civil disobedient to a conflict of interests. It may not be in the interests of the political establishment to permit acts of civil disobedience, and they may shape policy and laws to stall, suppress or disincentivize the employment of civil disobedience. Civil disobedience is intuitively an action motivated by the conscientiousness of the individual. The four conditions permit the political establishment to affect the process by which civil disobedience is conducted. This not only seems at odds with the individualist spirit of civil disobedience, it jeopardizes the viability of civil disobedience as a political strategy for change.
Part 3: Strategic versus Moral Reasons for Expressing Fidelity to Law
In part two, I argued within the framework of Rawls’ theory of justice. I offered a counter-interpretation of how those in the original position would define justifiable civil disobedience. I argued that those in the original position would not demand that disobedients express fidelity to law by satisfying four distinct conditions.
Part three will operate outside of Rawls’ framework insofar as my criticism won’t depend on what those in the original position would or wouldn’t do. Instead, I will argue that the satisfaction of any of the four sub-conditions gives no indication that a disobedient actually views the rule of law as authoritative and legitimate. This argument will hinge on a distinction between what I call moral and strategic reasons for satisfying any of the four sub-conditions. With this distinction in place, I will argue that satisfying the four sub-conditions may falsely indicate a disobedient’s fidelity to law. The four sub-conditions, then, cannot be said to undisputedly evince a disobedient’s fidelity to law. Though it still may be morally important to view the rule of law as legitimate, the four sub-conditions fail to secure a disobedient’s fidelity to law—making them superfluous.
I have thus far mentioned only moral reasons for satisfying any of the sub-conditions. A moral reason is one that appeals to the moral commitments of the disobedient. Within a Rawlsian framework, a disobedient is morally committed to the maintenance and establishment of just institutions, as he is bound by a natural duty of justice. He is committed to complying with those just institutions, and he does so—despite failing to comply through his act of civil disobedience—by pursuing lawful alternatives, by engaging in civil disobedience publicly and after giving fair notice, and by submitting to punishment. Despite breaking the law, the disobedient nevertheless acts in a way that demonstrates fidelity to law—that is, in a way that might confirm that the disobedient views the law as legitimate and authoritative.
There are, however, reasons for expressing fidelity to law that do not derive from a disobedient’s commitment to just institutions. A disobedient may opt to satisfy the four sub-conditions because their satisfaction may have strategic value. That is, it may increase the likelihood of success for the act of civil disobedience because the audience may more positively respond to a disobedient’s expressing fidelity to law.
Rawls is aware that there may be strategic reasons for expressing fidelity to law: “This fidelity to law helps to establish...that the act is indeed politically conscientious and sincere.” In regards to the condition of publicness, he writes further: “... for it is not easy to convince another that one’s acts are conscientious, or even to be sure of this before oneself.”
Rawls explicitly acknowledges that it may be strategically valuable both to express fidelity to law in general and to satisfy the condition of publicness. Yet there are strategic reasons for satisfying the other three sub-conditions, too. Brownlee asserts that satisfying the punishment condition is strategically valuable insofar as it heightens publicity and “can lessen tensions with those who are antipathetic to” a disobedient’s views. It is fair, I think, to say that a disobedient’s first pursuing lawful alternatives legitimizes his cause, and an audience may be more likely to perceive his convictions as sincere because of that. Lastly, it’s plausible that it may serve the interests of a disobedient to provide the relevant authorities with fair notice: a police presence may publicize the civil disobedience and the objection it makes, and a disobedient may cite his providing fair notice as a means to legitimize his case.
The takeaway is that the audience credits the disobedient who expresses fidelity to law. So a disobedient may express fidelity to law not because he views the rule of law as legitimate and authoritative, but because he means only to impress his audience. The fidelity to law sub-conditions, then, are false indicators of the attitude that a disobedient has toward the rule of law.
For Rawls, this means that the satisfaction of the four sub-conditions do not confirm a disobedient’s fidelity to law. The sub-conditions are in place because they signify that the disobedient views the law as authoritative and legitimate, but, as I’ve argued, satisfying the sub-conditions may signify nothing: a disobedient may satisfy them for strategic reasons while viewing the rule of law contemptuously.
The four sub-conditions, then, might as well not apply, since they may fail their task, anyway. It is untenable to hold that civil disobedience is justifiable where the four sub-conditions are satisfied on the grounds that the four sub-conditions give an indication of a disobedient’s fidelity to law. The four sub-conditions’ satisfaction does not necessarily indicate a disobedient’s fidelity to law, but may only indicate the marketing savviness of the disobedient.
Part Four: Rawls’ Natural Duty of justice
In part two, I argued that, contrary to Rawls, the four sub-conditions that express fidelity to law should not count toward defining justifiable civil disobedience. I argued that the fidelity to law condition is untenable on the basis of a reinterpretation of what those in the original position would do. In part three, I argued that even if we grant that fidelity to law should be expressed in an act of civil disobedience, then the satisfaction of the four sub-conditions does not necessarily indicate that the disobedient views the rule of law as legitimate and authoritative. In part four, I will argue that there is no reasonable basis for Rawls’ natural duty of justice. In other words, civil disobedience need not express fidelity to law where there is no viable moral duty that commits a disobedient to doing so.
My argument in this part iterates an argument from Simmons’ Moral Principles and Political Obligations. Simmons questions what he refers to as Rawls’ “application clause,” which is that individual is morally committed to comply with the institutions that “apply” to that individual. The application clause restricts those institutions to which an individual is morally bound because, as Simmons, argues, “without that clause the duty specifies that we are to comply with and do our share in just institutions wherever they are; and this, of course, is not just an unreasonable demand, but one that might be impossible to meet.” It is a more modest expectation that individuals comply with and work to improve those institutions that have a direct bearing on their lives. While it may be laudable to comply with and do one’s share in just institutions that do not apply to an individual, there is no strong moral demand to do so.
Simmons, though, is unconvinced that an institution’s applying to an individual is sufficient to warrant a moral commitment to that institution:
But does it follow from this institution’s “applying to me” in this sense that I am morally required to follow its rules if the institution is just? Does its applying to me in this way distinguish it in a morally significant way from other equally just institutions? I think not, for the thing which makes the institution apply to me here is the simple fact of my birth and growth in a territory within which the institution’s rules are enforced; but my birth is not an act I perform, or something for which I am responsible.
Further, he suggests that an institution’s being just does not provide grounds for a moral commitment to its laws and policies:
It seems clear that the mere justice of an institution, which is the supposed ground of a duty to support just institutions, is insufficient to derive a moral requirement to comply with and do one’s part in that institution.
Simmons’ criticisms are sharp: there is nothing special about a just institution’s applying to an individual that morally binds him to comply with it. It is not a tenable position that members of a society necessarily have a moral commitment to those institutions that apply to them. Therefore, it cannot be expected that members of society should truly embrace a fidelity to law where they cannot be reasonably held to be morally committed to the law. Re-examining civil disobedience in this light, it seems like the conditions that express fidelity to law are overly demanding, insofar as they express a moral commitment that the disobedient need not have.
Part Five: Electronic Civil Disobedience and Conscientiousness
In parts two, three and four, I have argued that fidelity to law should not, does not, and need not be expressed in acts of justifiable civil disobedience, respectively. The justifiability of civil disobedience should not be a function of the satisfaction of the sub-conditions relevant to expressing fidelity to law for the reasons presented in the preceding three sections.
Though I have argued that it is impractical to require civil disobedience to satisfy the condition of fidelity to law (part one), implausible that the sub-conditions irrefutably indicate fidelity to law (part two), and impertinent to demand fidelity to law where no viable moral commitment may warrant it, it may still be counter-argued that civil disobedience is never justifiable where the disobedient neither has nor expresses fidelity to law. If a disobedient holds a contemptuous attitude toward the law, then he does not engage in civil disobedience. Instead, he may be but an aggravator or interloper.
In part five I will examine the practice of electronic civil disobedience and its neglect of fidelity to law. In my discussion of this new kind of civil disobedience, I will highlight how the failure to satisfy the condition of fidelity to law does not intuitively compromise the justifiability of civil disobedience.
First, a description of electronic civil disobedience. Electronic civil disobedience is civil disobedience that is conducted between computer systems. The most prevalent method for engaging in electronic civil disobedience—and the one that has attracted much press in the past few years—is called a Distributed Denial of Service (DDoS) attack. There are other means of practicing electronic civil disobedience, but I want to focus on DDoS attacks because of their ease of employment.
A DDoS attack works like this: a group of activists simultaneously send thousands of data requests to the website of an organization, corporation or government. This coordinated barrage of requests is made more effective by a simple, easily accessible computer program the sole function of which is to repeatedly send data requests to a specified website. Participating in a DDoS attack takes about as much computer know-how as is needed to navigate an Internet browser. DDoS attacks have thus a greatly democratized civil disobedience.
DDoS attacks work because websites are only capable of handling a finite amount of traffic: any one website is hosted on a server system that is itself computationally limited by its physical hardware. DDoS attacks exploit a website’s computational limitations by sending many times more data requests than the site is capable of handling. The tide of data requests effectively paralyzes the site: the site ignores the remainder of the requests that it can’t handle, including those requests sent by legitimate internet users. So normal users cannot access the site, since they won’t receive data from it.
Civilly disobedient DDoS attacks tend to last about an hour or two by design—just enough time to publicize the disobedients’ objection via the internet and its many media outlets. Once the bombardment of data requests ceases, the site returns to normal functionality. DDoS attacks merely temporarily disable a website, rather than corrupt or ruin it. The activists don’t aim to destroy the targeted website, only block traffic to it so as to bring attention to the objectionable practices of the organization under scrutiny.
The employment of DDoS attacks by cyber activists is self-consciously constrained. Yet DDoS attacks may also be employed for more malicious ends. One group of cyberfrauds has recently extorted money from financial companies by threatening to disable their sites with DDoS attacks should they refuse to pay them money. So it is easy to see why a government might draft legislation to outlaw DDoS attacks: they are an effective way to paralyze a website. Considering the importance of websites to the day-to-day activity of many organizations, DDoS attacks can severely disrupt an organization’s entire operations.
In the United States, DDoS attacks are illegal where they affect “a government computer, a bank computer, or a computer used in, or affecting, interstate or foreign commerce.” The law that forbids DDoS attacks—the Federal Computer Fraud and Abuse Statute—is particularly open-ended, given it was drafted in 1986—long before DDoS attacks became a method of civil disobedience. The statute has been evoked to convict American electronic civil disobedients who have used DDoS attacks. In the United Kingdom, individuals convicted of participating in a DDoS attack may face up to ten years in jail in accordance with the Computer Misuse Act of 1990. DDoS attacks as they are employed to conduct electronic civil disobedience are indisputably illegal in the US and UK.
DDoS attacks qua civil disobedience may therefore satisfy the three definitional conditions I set at the beginning of this paper. First, DDoS attacks are illegal. Second, while activists do not directly communicate their objection with the DDoS attack, the communicative condition is satisfied by their advertising the attack and the moral reasons that motivated it through social and standard media outlets. Third, DDoS attacks may be employed conscientiously. Activists have used DDoS attacks to expose the injustices of third-world dictators and politicians, local and national governments, and multi-national corporations and non-governmental organizations.
Though DDoS attacks may satisfy the formal conditions for civil disobedience that I’ve set, they certainly do not satisfy the sub-conditions that express fidelity to law as set by Rawls. DDoS attacks qua civil disobedience are not public, nor do disobedients provide fair notice before commencing a DDoS attack. Disobedients do not typically pursue legal alternatives before resorting to DDoS attacks, nor do they submit themselves to punishment after having completed their disobedience. All four sub-conditions of fidelity to law are overlooked by electronic civil disobedients who employ DDoS attacks. For Rawls, DDoS attacks that entirely neglect the fidelity to law condition would be unjustifiable instances of civil disobedience.
However, to resolutely assert that DDoS attacks are unjustifiable acts of civil disobedience on the grounds that they don’t express fidelity to law is to ignore the problems that expressing fidelity to law may present and to discount the value of a disobedient’s conscientiousness in engaging in civil disobedience.
In part two, I argued that expressing fidelity to law may compromise the efficacy of civil disobedience. If electronic civil disobedients were to satisfy the four sub-conditions, their disobedience would be largely ineffective. Let’s consider each sub-condition as it relates to electronic civil disobedience and DDoS attacks.
First, last resort: electronic civil disobedience has been employed to communicate objections to the policies and laws of institutions across the world. Whether or not an institution “applies” to a disobedient is irrelevant to his participating in civil disobedience against it. The beauty of the technology employed in DDoS attacks is that it allows any concerned individual, wherever he may be, to participate in communicating an objection to any policy or law across the globe. Is it reasonable, then, to expect an American citizen who objects to some faraway law to initiate a lawful petition to overturn that law before joining a DDoS attack to object to it? Does his not doing so intuitively make his participating in the DDoS attack wrong, or does it even, as per Rawls, compromise the stability of the institutions that underwrite the objectionable policies? “No” to all, I think.
Next, publicness and fair notice: considering the severity of punishments that have been handed out for participating in DDoS attacks, it does not serve the interest of an electronic civil disobedient (in the US or UK, at least) to either provide fair warning to the relevant authorities or engage in a DDoS attack in public. UK and US laws are entirely unfavourable to the use of DDoS attacks as a form of civil disobedience. In 2011, 14 US citizens were indicted for partially disabling the activity of online payment provider PayPal in 2010. The activists were protesting PayPal’s refusal to transfer money that was donated to the whistleblower website, WikiLeaks, and they were among a reported 10,000 global participants in the DDoS attack against PayPal. The 14 Americans each faced 15 years in jail for their participation (though their sentences were reduced after a plea deal was struck). In the UK, two individuals were handed jail terms of 18 and 7 months respectively for their participation in the PayPal attack and other politically motivated DDoS attacks. US and UK policies regarding DDoS attacks are uncompromising, so to satisfy the public and fair notice conditions is to play in to the hands of those who already have unfavourable—and arguably unjust or unjustifiable—policies toward electronic civil disobedience.
Lastly, the accepting punishment condition is untenable (in the US or UK) for the same reasons as the public and fair warning conditions. The punishments meted out to those who participate in DDoS attacks are severe, and their severity has disincentivized others from participating in large-scale DDoS attacks. To expect a DDoS’er to hand himself in is to subject him to punishment that is severe, and arguably unjust and unjustifiable.
It is clear that the satisfaction of the four sub-conditions does not serve the interests of electronic civil disobedients or societal justice: Rawls’ conditions for justifiable civil disobedience fail to account for the complexities of 21st century politics. A Rawlsian may save his position by asserting that the US and UK—and Western civilization in general—do not qualify as the “just or nearly just” societies in which Rawlsian civil disobedience is designed to occur. If that is the case, then my criticisms are beside the point. Also, if that is the case, Rawlsian standards of civil disobedience don’t apply, so it is fair to discard fidelity to law from justifying civil disobedience in the US and UK, anyway.
Rather than a disobedient’s demonstrating that he views the law as legitimate and authoritative, what seems truly morally relevant to the permissibility to an act of civil disobedience is the nature of the objectionable injustice and conscientiousness with which a disobedience acts. Whether or not a disobedient believes his government—or one across the globe—is legitimate does not seem as important as the disobedient’s interest in preserving global justice, even if that interest is only manifest by running a computer program to temporarily disable a website.
At every level, conducting civil disobedience within the limits of fidelity to law is untenable. Simmons argues convincingly that an individual need not be morally committed to institutions that apply to him: there is no basis for a disobedient to see the rule of law as it applies to him as legitimate, so there is no need for a disobedient to vacuously express fidelity to law. A disobedient may fairly object to the policies of institutions regardless of whether they apply to him or not, and regardless of whether the disobedient views those institutions as legitimate and authoritative.
Also, I argued that expressing fidelity to law offers no guarantee that the disobedient sees the rule of law as legitimate. Satisfying the sub-conditions may be an empty gesture of one’s fidelity to law, done only for strategic purposes.
Lastly (although first in order), I argued that even if there were some morally binding natural duty of justice, and even if expressing fidelity to law actually guaranteed that the disobedient viewed the law as legitimate and authoritative, it would not be prudent for those in the original position to demand that disobedients express fidelity to law. Such a demand would inhibit the efficacy of civil disobedience.
To argue that fidelity to law must be expressed in order to justify civil disobedience is to ignore the relevancy and political potential of electronic civil disobedience. This new form of civil disobedience exposes and combats pressing injustices across the world at the price of forgoing the symbolic acknowledgment of the legitimacy of formal institutions. I think it’s a price well worth paying.