Historicization of the concept of civil disobedience and its practice

4.3.1 Its relation to the politics of those without politics: Henry David Thoreau and MahatmaGandhi

Thoreau’s exhortation to civil disobedience appears in print for the first time in May 1849, three years after the experience that inspired it: his confinement in the Concord prison for refusing to pay the tax for the electors in the talks discussing the slave status of Texas and the U.S. war with Mexico, which ended with the annexation of the California and New Mexico territories to the United States.² Thoreau knew that his taxes were not going to make much difference in the matter of slavery or the war with Mexico, but his imprisonment did have great effect. The son of his friend Emerson intuitively interpreted that theatrical touch: “It was the act of a poet rather than a logician.”³ But he had made his statement, and although it was an act of individual conscience, Thoreau did not renounce the perlocutionary effect of his private/public action. Thus, when his friend Emerson came to visit him and greeted him with the words, “Henry, why are you here?”, Thoreau replied with another question: “Why are you not here?”⁴

Thoreau sought that perlocutionary effect more explicitly in Civil disobedience (1849), Slavery in Massachusetts (1854), A plea for Captain John Brown (1859), After the death of John Brown (1859), The last days of John Brown (1860), and Life without principle (1863). In these texts Thoreau urged people to follow his example in order to save lives: “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.’”⁵ Obedience presupposes an obligation, and the only obligation that Thoreau recognized was that of doing what was right. We are human beings before we are

1 Laclau, 2010, p.59.

2 Tauber, 2001, p.189.

3 Emerson, 1917, p.64.

4 Salt, 1890, p.100.

5 Thoreau, 1906, p.371.

citizens. The justification for disobedience is that “It is not desirable to cultivate a respect for the law, so much as for the right.”¹ The authority of the state is restricted by the conscience of individuals and the will of the governed.

That limit can be embodied in a minority that is opposed to the laws that the majority has approved. The electoral game, to which Thoreau conceded no more dignity than to a game of backgammon,² usually imposes the will of the majority, but not because the majority has reason on its side: if the majority is permitted “to rule it 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.”³ However, a government in which all issues are decided by the majority cannot function justly unless it possesses mechanisms that allow individuals in the minority to manifest the dictates of their conscience. In Thoreau’s judgment, since government failed to provide channels for this to happen, “its very Constitution is the evil.” When forced in such a situation to collaborate with injustice, Thoreau exclaimed: “Break the law. Let your life be a counter-friction to stop the machine.”⁴ He also urged people to carry the fight to the arena of consumption, pointing out that readers’ subscriptions were supporting journals that were in favor of the support Massachusetts was providing for the fugitive slave law.⁵

Thoreau’s writings contain the essential elements for justifying civil disobedience that have been taken up by later theorists: the struggle against injustice, the primacy of individual conscience over law, the limits that must be placed on every government, and the right of minorities to make their petitions heard through non-compliance when legal means have been exhausted. At the center of his reasoning on civil disobedience is a subjectivist justification that is based exclusively on individual conscience. This pivot presents a weak flank: the always feasible situation that the conscience of another person is not bothered by that with which I cannot live. If civil disobedience derives its status as such and its political force from individual conscience, it is difficult to understand how an egalitarian would be more assisted by the law than a segregationist.

In politics the force of numbers that Thoreau despised is decisive. The disobedient measure their strength in the size of the group. A reasoned argument—as just as it may be—is no more than an opinion when confronted with the mass of humanity. As such, Arendt would say, it is

1 Thoreau, 1906, p.358.

2 Thoreau, 1906, p.363.

3 Thoreau, 1906, p.358.

4 Thoreau, 1906, p.368.

5 Thoreau, 1906, p.399.

indistinguishable from other opinions, and its force is not derived from conscience but from the number of persons with which it is associated. That is why Arendt thought that the greatest fallacy in the debate over civil disobedience was the supposition that it was best exemplified by individuals acting subjectively.¹ Political effectiveness requires collective exposition in the face of social pluralism. In other words, if disobedience is not embodied in a movement or a non-movement, it is simply conscientious objection or a private, isolated case of non-compliance without political significance. Nevertheless, the social character of the act does not negate the fact that the judgment and the decision are made by an individual.

A follower acclaimed and despised: Mahatma Gandhi

Gandhi first developed his form of struggle in South Africa. When he returned to India, his campaigns were directed against three main impositions: the imperial monopoly of salt production (1930-34), India’s involvement in the Second World War (1940-41), and British domination of India (1942).² The heroism with which Gandhi opposed them is widely acknowledged. Seeking a name for his form of struggle, he called it satyagraha (truth force), and its morally and physically courageous and disciplined practitioners he referred to as satyagrahi.³ But in a 1942 letter to Franklin D. Roosevelt, Gandhi confessed how much he had profited from reading Thoreau and Emerson.⁴ In an open letter to Americans he acknowledged: “You have given me a teacher in Thoreau, who furnished me through his essay on the ‘Duty of Civil Disobedience’ scientific confirmation of what I was doing in South Africa.”⁵ Gandhi formulated his disobedience in terms that unmistakably evoke the words of Thoreau: “It is my firm belief that in the complex constitution under which we are living, the only safe and honourable course for a self-respecting man is, in the circumstances such as face me, to do what I have decided to do, that is, to submit without protest to the penalty of disobedience. I venture to make this statement not in any way in extenuation of the penalty to be awarded against me, but to show that I have disregarded the order served upon me not for want of respect for lawful authority, but in obedience to the higher law of our being, the voice of conscience.”⁶

1 Arendt, 1972, p.98.

2 Brown, 2009, p.44.

3 Brown, 2009, p.43.

4 Gandhi, 1998, p.27.

5 Gandhi, 1998, p.291

6 Gandhi, 2009, pos.492.

Despite the bold efforts of many biographers, there is a patina of skepticism about Gandhi´s effectiveness. The British historian Judith M. Brown passed the following judgment: “In retrospect it is clear that civil resistance never made British rule impossible (…).It was essentially the Second World War which drove the British to grant independence to the subcontinent.”¹ During Gandhi’s lifetime as well, some sectors of the left rejected the method of non-violent disobedience. In an explanatory letter addressed to Reverend Iorwerth Jones in April 1948, George Orwell noted the criticism of Gandhi’s ineffective methods: “It was always admitted in the most cynical way that Gandhi made it easier for the British to rule India, because his influence was always against taking any action that would make any difference.” And the writer added: “As to the conquest of England, Gandhi would certainly advise us to let the Germans rule here rather than fight against them—in fact he did advocate just that. And if Hitler conquered England he would, I imagine, try to bring into being a nationwide pacifist movement, which would prevent serious resistance and therefore make it easier for him to rule.”² Orwell wrote this letter five years before the end of British rule of India. Seven years later and one year after Gandhi’s death, he repeated the same arguments, adding that for the Indian multitudes Gandhi’s calls to conversion were preferable to the confiscations of socialists and communists.³ Orwell ended by recognizing that Gandhi’s “main political objective, the peaceful ending of British rule, had after all been attained.”⁴ However, this final verdict of his did not dispel the fog of skepticism and ridicule contained in Orwell’s article about that “humble, naked old man, sitting on a praying-mat and shaking empires by sheer spiritual power.” Nor did he fail to mention that “the things that one associated with him—homespun cloth, ‘soul forces’ and vegetarianism—were unappealing, and his medievalist programme was obviously not viable in a backward, starving, overpopulated country.”⁵

4.3.2 The contemporary development of concepts about civil disobedience

Contemporary reflection on civil disobedience has centered on a) the justification of disobedience and its legal status in the juridico-political system; b) the features that accredit it as such, with fierce differences about whether it can be violent; c) its penalization, whether it applies, and

1 Brown, 2009, p.45.

2 Orwell, 1968, pp.80-81.

3 Orwell, 1968a, p.464.

4 Orwell, 1968a, p.470.

5 Orwell, 1968a, p.463.

whether the disobedient should accept it; d) the social order on which it has an effect; and e) its typology. In what follows I will present the principal arguments in each of these debates.

Justification of civil disobedience and its juridical status

The main question regarding justification is whether there is a right to civil disobedience or not.

How is it possible to admit the existence of a right to disobey laws? Legitimizing that right appears to be an oxymoron. The theory of civil disobedience has centered on distinguishing this type of noncompliance from other forms of illegal activity, such as those that occur in criminal gangs, civil wars, or anarchist groups. A basic division exists between those who justify disobedience by reason of its content and those who seek to make its justification a basic principle of the functioning of the political system. An exponent of the first type is the Italian philosopher Norberto Bobbio, who emphasized the civil character of disobedience, as something inspired by the duties of citizens and their right to resistance. He was convinced that to be a good citizen, one should in some circumstances disobey rather than obey. For Bobbio disobedience is justified when it defies laws that are unjust, illegitimate (decreed without due authority), or invalid (unconstitutional). In the first case the law is not substantially a law, in the second case it is not a law in any sense, and in the third case it is not a law formally. These are situation in which juridical reciprocity is broken: if the legislator has the right to be obeyed, the citizen has the right to be governed wisely by established laws.¹ Joseph Raz coincides with Bobbio: in a liberal society the legitimacy of civil disobedience depends on whether the motivating cause is correct. Its plausibility is based on the justice of the political goal. Otherwise it is not justified, because a liberal society offers diverse legal mechanisms for expressing dissent. There should be no need to go to the extreme of breaking the laws in order to demand their modification.²

Arendt pointed out the Achilles’ heel of this justification: any given cause can find convinced defenders and also convinced opponents. Both can disobey: “the result is that conscience will stand against conscience.”³ For Arendt, it is obvious that this subjective principle cannot be generalized. If we place this objection within the trajectory of Arendt’s reflections, we will be able to see the direction in which she is moving. As with many other topics, the theme of disobedience is one in which Arendt was immersed by her own life experience, for she could not understand what had happened to the friends who during the Third Reich had helped her as a Jew.

1 Bobbio, 1998, pp.335 and 338.

2 Raz, 1979, p.273.

3 Arendt, 1972, p.64.

As a result of this tragedy, Arendt proposed the principle of not complying with authority when it requires conduct that goes against one’s conscience. Responsibility and judgment are at the heart of disobedience. In “Some Questions in Moral Philosophy,” she postulates the same motive for disobedience that she rejects as a justification for civil disobedience: since the substance of each person is rooted in his memories and thoughts, the awareness that he has to live with himself imposes limits on what he allows himself to do.¹ Without formulating it as such, Arendt obviously believes that she is dealing with two very different phenomena: one is the situation of disobeying an oppressive regime, such as the Third Reich, and the other is the situation where it is possible to change the law, such as in the civil rights struggles or the protests against the war in Vietnam (when the results were still uncertain). Arendt’s experience in the United States made her compare these two experiences. In the state of emergency imposed by the Third Reich, thinking ceased to be a marginal affair in political matters.² There was no question of changing the law but only of preventing a criminal law from being implemented.

In the United States the struggle was to change the laws in a context that was relatively favorable. Arendt starts from the fact that the law is not immutable and that the possibility of changing it is always available to the citizens. She knew this from her analysis but also because of the obligation she had, once naturalized as a U.S. citizen, to serve on a jury. As she declared in a letter to Jaspers, the judge told the jury: “If you don´t like the law, there is nothing you can do about it as a juror. You still have to decide by it. You can change the law as a citizen but not now in your role as juror.”³ Certainly Arendt heard in the judge’s statement the echoes of Kant’s distinction between the public and the private: in their private role as functionaries, they must obey the laws; in their public role as citizens, they can change the laws. That public role has its own demand, namely, that conscience be transformed into the sum of consciences. Only in this way can conscience have political weight because “what had been decided in foro conscientiae has now become part of public opinion, and although this particular group of civil disobedients may still claim the initial validation –their consciences- they actually rely no longer on themselves alone.”⁴ To use the language of Scott, Bayat, and Gramsci: it is only in this form that the unified murmurings pose a challenge to hegemony.

1 Arendt, 2003, p.101.

2 Arendt, 2003, p.188.

3 Arendt and Jaspers, 1992, p.666.

4 Arendt, 1972, p.68.

Such justification displaces the debate about civil disobedience from its content toward the principle that legitimizes it. Michael Walzer elaborates an interesting justification based on a group foundation. He bases his proposal on a theory of consent, which suggests a non-substantive, procedural ethics; in other words, he is not concerned with the moral content of obligations but with how persons acquire what they consider to be their obligations. This means focusing on what an individual has agreed to do, but it tells us nothing about what he should or should not have accepted to do.¹ Using this procedural focus, Walzer makes us realize that laws make up only some of the rules we should observe and some of the obligations we incur. Moral obligations emerge from a moral biography. This means that persons determine their obligations by examining their own consent or various conflicting consents. Walzer states that governments derive "their just powers from the consent of the governed," adopting the same phrase that Jefferson used to rationalize the overthrowing of tyrants who governed without the consent of the people but that would later come to form part of an ideology compliant with the established order.² If we assume that democracy is based on such consent, we are induced to obey. Walzer turns the argument around: we have consented to disobey the law because democratic pluralism allows for the formation and flourishing of groups with their own rules and values. Some of these groups can claim that their rules, at least on certain occasions, have greater binding force that some legal rules, even though they recognize the supremacy of most of the rules of the legal system. Although membership in some of these groups may be inherited and then reinforced by voluntary participation, the hereditary character can give it more force.³ These groups may be analogous to the state in their structures; they have constitutions and may possess very elaborate structures for formulating their rules. They differ from the state mainly in that they can claim authority over only a limited fragment of the inhabitants of a country and then over only a portion of their conduct. Belonging to one of these groups involves obedience to its rules with equal or greater force than to the laws of the great group called the state. Walzer even argues that, although the Constitution establishes that the federal government is legally superior to all other governments, there is no clause regarding the moral supremacy of the government in relation to non-governmental groups. The state can be described as an external limit of group action that sometimes overreaches its proper sphere and needs to be restricted.⁴ On this basis Walzer thinks

1 Walzer, 1970, p.X.

2 Walzer, 1970, p.3.

3 Walzer, 1970, p.10.

4 Walzer, 1970, p.18.

that each person can decide when he should disobey a law that enters into conflict with the laws of his particular group.

Walzer’s theory was criticized as superficial and even absurd.¹ And it is superficial and absurd if it is considered to be a justification, because in that case his enthusiasm for civic associations, which Tocqueville anticipated, reaches the extreme where associations are not just complementary powers counterbalancing state power; they are parallel, alternative powers. Since for Walzer the state is simply one group among many, the resultant procedural ethics conceding primacy and autonomy to different groups can be used to justify both the suicidal People’s Temple sect² and the civil rights movement. In fact, the former can be more easily justified than the latter since its membership had a greater sense of belonging and a more sophisticated canon of beliefs.

But Walzer’s argument makes sense and has force if it is considered to be an analysis of the justifications for disobedience. His argument is a theory that proposes not an ideal horizon but a procedural explanation. It is totally realistic in that it describes what happened and what is still happening in the churches that welcome migrants: since the churches are not limited by the borders that correspond to the nation-state, they grant primacy to the duty of welcoming their neighbor over the federal laws that reject that neighbor. Walzer explains an important element:

the disobedient share a system of values, and they obey norms that they hold in higher esteem than they do government directives. But he assumes that the groups exist previous to their noncompliance. The advantage that Arendt has over Walzer is that she does not assume that the groups are previously constituted. Her perspective allows me to concur more with authors who do not submit to the rationalist paradigm.

Another theorist who opted for a procedural justification was Habermas. As a justification for civil disobedience in liberal regimes, he claims to provide an argument that is not juridico-political but juri-philosophical: the exceptional claims to legitimacy made by the rule of law, which requires free and voluntary acceptance of juridical order, assume that the laws are debated, approved, and promulgated by competent bodies. By means of this procedural legitimization the laws obtain positive validity and a sphere of application. What is legal becomes legitimate. The underlying principle here is that only those norms can be justified that express an interest susceptible to being generalized, that is, they are norms which in theory receive the voluntary

1 Horowitz, 1970, p.174.

2 Urged on by their leader, James Warren, 909 members of his sect committed collective suicide in November 1978, killing in the process almost 300 children.

Im Dokument The Disobedience of the Masses: Unauthorized Migration of Central Americans to the United States as an Act of Civil Disobedience (Seite 60-74)