(Sebastian Loscher: Allegory of Justice (1536))
Civil disobedience is the public and accepted refusal to submit to a law, regulation, organization or power deemed unfair by those who challenge it, while making this refusal a peaceful weapon of combat. The term was coined by the American Henry David Thoreau in his essay Civil Disobedience, published in 1849, following his refusal to pay a tax to finance the war against Mexico. If civil disobedience is a form of revolt or resistance, it is distinguished from revolt in the classical sense. Classical revolt opposes violence to violence. Civil disobedience is more subtle: it refuses to be an accomplice to an illegitimate power and to feed that power through its own cooperation. The very principle of political power could make the effectiveness of this action possible.
The idea of resistance to an unjust law existed long before the nineteenth century. It can be traced back to the jus resistendi (“droit de résistance”) of Roman law and it can be said that La Boétie, from the sixteenth century, has demonstrated the effectiveness of the process. He shows in the Voluntary Servitude Discourse that the power of a state rests entirely on the cooperation of the people. Thus, as soon as the population refuses to obey, the state no longer has power. A people can resist without violence by disobedience and provoke the collapse of an illegitimate state, because, he said, the most ferocious power draws all its power from its people. Still, it is necessary to have a general awareness and the courage of the first militants for this principle to be effective. It is mainly Gandhi in India, Martin Luther King in the United States, Mandela in South Africa, the Grandmothers of the Place de Mai in Argentina and the contestation of Soviet power in the 1980s that showed the effectiveness.
The principle is used today in democracies to fight against certain laws when activists believe that legality – which depends on the majority and / or a certain inertia – will not succeed in modifying these laws. Disobedience is illegal by definition, but is in principle non-violent.
Definition of civil disobedience
There is no unanimity on the definition of civil disobedience. John Rawls and Jürgen Habermas each have a definition of civil disobedience.
According to Rawls, civil disobedience can be defined as a public, non-violent act, decided in conscience, but political, contrary to the law and accomplished most often to bring about a change in the law or in the policy of the government. In doing so, one addresses the sense of justice of the majority of the community and it is stated that, according to a considered thought, the principles of social cooperation between free and equal beings are not currently respected.
For Habermas, civil disobedience includes illegal acts, generally due to their collective authors, defined both by their public and symbolic character and by the fact of having principles, acts which include in the first place means of not violent protest and call to the capacity to reason and the sense of justice of the people.
Six elements are therefore characteristic of an act of civil disobedience.
A conscious and intentional offense
The act of disobedience must be a conscious and intentional offense, and it must violate a rule of positive law. If the offense relates to the directly challenged standard, it is called direct disobedience; this was the case, for example, of Martin Luther King’s civil disobedience campaigns aimed at blacks occupying spaces legally reserved for whites. But if the norm violated may not be the one challenged, it is called indirect civil disobedience, this is the case, for example, of sit-ins, which are not intended to challenge the Highway Code.
Although it is not possible to establish the existence of an offense a priori (it is the judge who determines the existence of an offense), it is considered that an act constitutes an act of disobedience when the perpetrators take the risk of committing an act which is, in the eyes of public opinion and those of the authorities, generally regarded as an offense.
In touching this question, it is interesting to recall Stanley Milgram’s experiment in which the subject of the experiment consists of measuring the proportion of individuals capable of starting such an act of disobedience despite social or administrative pressure.
A public act
The act of disobedience results in a public attitude, which differentiates it from criminal disobedience – the latter, only thriving in the underground (sometimes with a claim).
In public disobedience, advertising is intended to remove any suspicion about the “morality of the act”, to give it, in addition, a symbolic value as well as the greatest possible audience so that the act has the greatest impact for change the “feeling” or “conviction” of public opinion. The act aims at the greatest media coverage possible and can be part of a strategy of provocation and agitprop.
Some authors go beyond. Faithful to Gandhi’s line, they see in the advertising a requirement that one communicates in advance to the competent authorities the future actions of disobedience.
A collective movement
The act of disobedience is, in principle, part of a collective movement. It is the act of a group that presents itself as an active minority, and is reflected in the concerted action of it, so Hannah Arendt notes that “far from proceeding from the subjective philosophy of some eccentric individuals, civil disobedience results from the deliberate cooperation of the members of the group drawing their strength from their ability to work together”. Disobedience is therefore by nature a collective action. However, nothing prevents the moral burst of an individual from ending up mobilizing a wider current that can then be described as civil disobedience.
A peaceful action
The disobedient generally uses peaceful means. Civil disobedience aims at calling public debates and, to do this, it calls for the “sleeping conscience” of the majority rather than violent action. It is one of the features that sets it apart from the revolution, which in order to achieve its ends can potentially appeal to force. Moreover, the opposition to the law that is inherent in civil disobedience is paradoxically faithful to a law considered superior, so there is no violence in the spirit of civil disobedience. This is rather the fact of the state, the only one that has a “legitimate violence” according to Max Weber, this violence can be physical but also “symbolic” that is to say, psychic, often economic.
One goal: changing the rule
According to its promoters, civil disobedience pursues innovative ends. It refers to the “repeal” or at least the amendment of the challenged standard.
Superior principles
Civil disobedience refers to “superior principles” in the impugned act. This is undoubtedly the most important feature of civil disobedience since it is he who gives it a certain legitimacy. These considered superior principles may be religious: thus, clergy members have often been participants or leaders in acts of civil disobedience. In the United States, for example, the Berrigan brothers are priests who have been arrested dozens of times for acts of civil disobedience in anti-war protests.
The higher principles invoked may also be “constitutional” or “supra constitutional”. For example, French writers and filmmakers in their text calling for civil disobedience in 1997 against a bill by Jean-Louis Debré, which notably required anyone hosting a foreigner on a private visit to France to declare his departure to the mayor, referred to public freedoms and respect for the human person. In launching this call, the disobedient show that there is, according to them, an opportunity to be heard by the rulers. This was also the case against this Debré bill, because, following the debate that took place, and before the mobilization of public opinion, the government of the day had no choice but to give up the project.
According to its promoters, civil disobedience, far from weakening institutions, could, on the contrary, reinforce them by creating a clearer understanding of their founding ideals and by increasing the participation of public opinion in the normative process.
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