Civil disobedience

Mahatma Gandhi employed civil disobedience during the Indian independence movement.

Civil disobedience is the active, professed refusal to obey certain laws, demands, or commands of a government, or of an occupying international power. Civil disobedience is sometimes, though not always,^[1][2] defined as being nonviolent resistance.

Overview

One of its earliest massive implementations was brought about by Egyptians against the British occupation in the 1919 Revolution.^[3] Civil disobedience is one of the many ways people have rebelled against what they deem to be unfair laws. It has been used in many nonviolent resistance movements in India (Gandhi's campaigns for independence from the British Empire), in Czechoslovakia's Velvet Revolution and in East Germany to oust their communist governments,^[4][5] in South Africa in the fight against apartheid, in the American Civil Rights Movement, in the Singing Revolution to bring independence to the Baltic countries from the Soviet Union, recently with the 2003 Rose Revolution in Georgia and the 2004 Orange Revolution^[6] in Ukraine, among other various movements worldwide.

One of the oldest depictions of civil disobedience is in Sophocles' play Antigone, in which Antigone, one of the daughters of former King of Thebes, Oedipus, defies Creon, the current King of Thebes, who is trying to stop her from giving her brother Polynices a proper burial. She gives a stirring speech in which she tells him that she must obey her conscience rather than human law. She is not at all afraid of the death he threatens her with (and eventually carries out), but she is afraid of how her conscience will smite her if she does not do this.^[7]

Following the Peterloo massacre of 1819, poet Percy Shelley wrote the political poem The Mask of Anarchy later that year, that begins with the images of what he thought to be the unjust forms of authority of his time—and then imagines the stirrings of a new form of social action. It is perhaps the first modern statement of the principle of nonviolent protest.^[8] A version was taken up by the author Henry David Thoreau in his essay Civil Disobedience, and later by Gandhi in his doctrine of Satyagraha.^[8] Gandhi's Satyagraha was partially influenced and inspired by Shelley's nonviolence in protest and political action.^[9] In particular, it is known that Gandhi would often quote Shelley's Masque of Anarchy to vast audiences during the campaign for a free India.^[8][10]

Thoreau's 1848 essay Civil Disobedience, originally titled "Resistance to Civil Government", has had a wide influence on many later practitioners of civil disobedience. The driving idea behind the essay is that citizens are morally responsible for their support of aggressors, even when such support is required by law. In the essay, Thoreau explained his reasons for having refused to pay taxes as an act of protest against slavery and against the Mexican-American War. He writes, "If I devote myself to other pursuits and contemplations, I must first see, at least, that I do not pursue them sitting upon another man's shoulders. I must get off him first, that he may pursue his contemplations too. See what gross inconsistency is tolerated. I have heard some of my townsmen say, 'I should like to have them order me out to help put down an insurrection of the slaves, or to march to Mexico; — see if I would go'; and yet these very men have each, directly by their allegiance, and so indirectly, at least, by their money, furnished a substitute."

By the 1850s, a range of minority groups in the United States--blacks, Jews, Seventh Day Baptists, Catholics, antiprohibitionists, racial egalitarians, and others--employed civil disobedience to combat a range of legal measures and public practices that to them promoted ethnic, religious, and racial discrimination. Public and typically peaceful resistance to public power would remain an integral tactic in modern American minority-rights politics.^[11]

Etymology

Henry David Thoreau's classic essay Civil Disobedience inspired Martin Luther King and many other activists.

Thoreau's 1849 essay "Resistance to Civil Government" was eventually renamed "Essay on Civil Disobedience." After his landmark lectures were published in 1866, the term began to appear in numerous sermons and lectures relating to slavery and the war in Mexico.^{[12][13][14][15]} Thus, by the time Thoreau's lectures were first published under the title "Civil Disobedience," in 1866, four years after his death, the term had achieved fairly widespread usage.

It has been argued that the term "civil disobedience" has always suffered from ambiguity and in modern times, become utterly debased. Marshall Cohen notes, "It has been used to describe everything from bringing a test-case in the federal courts to taking aim at a federal official. Indeed, for Vice President Agnew it has become a code-word describing the activities of muggers, arsonists, draft evaders, campaign hecklers, campus militants, anti-war demonstrators, juvenile delinquents and political assassins."^[16]

LeGrande writes that "the formulation of a single all-encompassing definition of the term is extremely difficult, if not impossible. In reviewing the voluminous literature on the subject, the student of civil disobedience rapidly finds himself surrounded by a maze of semantical problems and grammatical niceties. Like Alice in Wonderland, he often finds that specific terminology has no more (or no less) meaning than the individual orator intends it to have." He encourages a distinction between lawful protest demonstration, nonviolent civil disobedience, and violent civil disobedience.^[17]

In a letter to P.K.Rao, dated September 10, 1935, Gandhi disputes that his idea of civil disobedience was derived from the writings of Thoreau:^[18]

I HEARTILY ACCEPT the motto, — "That government is best which governs least";(1) and I should like to see it acted up to more rapidly and systematically. Carried out, it finally amounts to this, which also I believe, — "That government is best which governs not at all"; and when men are prepared for it, that will be the kind of government which they will have. Government is at best but an expedient; but most governments are usually, and all governments are sometimes, inexpedient. The objections which have been brought against a standing army, and they are many and weighty, and deserve to prevail, may also at last be brought against a standing government. The standing army is only an arm of the standing government. The government itself, which is only the mode which the people have chosen to execute their will, is equally liable to be abused and perverted before the people can act through it. Witness the present Mexican war,(2) the work of comparatively a few individuals using the standing government as their tool; for, in the outset, the people would not have consented to this measure. [2] This American government — what is it but a tradition, though a recent one, endeavoring to transmit itself unimpaired to posterity, but each instant losing some of its integrity? It has not the vitality and force of a single living man; for a single man can bend it to his will. It is a sort of wooden gun to the people themselves. But it is not the less necessary for this; for the people must have some complicated machinery or other, and hear its din, to satisfy that idea of government which they have. Governments show thus how successfully men can be imposed on, even impose on themselves, for their own advantage. It is excellent, we must all allow. Yet this government never of itself furthered any enterprise, but by the alacrity with which it got out of its way. It does not keep the country free. It does not settle the West. It does not educate. The character inherent in the American people has done all that has been accomplished; and it would have done somewhat more, if the government had not sometimes got in its way. For government is an expedient by which men would fain succeed in letting one another alone; and, as has been said, when it is most expedient, the governed are most let alone by it. Trade and commerce, if they were not made of India rubber,(3) would never manage to bounce over the obstacles which legislators are continually putting in their way; and, if one were to judge these men wholly by the effects of their actions, and not partly by their intentions, they would deserve to be classed and punished with those mischievous persons who put obstructions on the railroads.

[3] But, to speak practically and as a citizen, unlike those who call themselves no-government men,(4) I ask for, not at once no government, but at once a better government. Let every man make known what kind of government would command his respect, and that will be one step toward obtaining it.

[4] After all, the practical reason why, when the power is once in the hands of the people, a majority are permitted, and for a long period continue, to rule, 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. But a government in which the majority rule in all cases cannot be based on justice, even as far as men understand it. Can there not be a government in which majorities do not virtually decide right and wrong, but conscience? — in which majorities decide only those questions to which the rule of expediency is applicable? Must the citizen ever for a moment, or in the least degree, resign his conscience to the legislator? Why has every man a conscience, then? I think that we should be men first, and subjects afterward. It is not desirable to cultivate a respect for the law, so much as for the right. The only obligation which I have a right to assume is to do at any time what I think right. It is truly enough said that a corporation has no conscience; but a corporation of conscientious men is a corporation with a conscience. Law never made men a whit more just; and, by means of their respect for it, even the well-disposed are daily made the agents of injustice. A common and natural result of an undue respect for law is, that you may see a file of soldiers, colonel, captain, corporal, privates, powder-monkeys,(5) and all, marching in admirable order over hill and dale to the wars, against their wills, ay, against their common sense and consciences, which makes it very steep marching indeed, and produces a palpitation of the heart. They have no doubt that it is a damnable business in which they are concerned; they are all peaceably inclined. Now, what are they? Men at all? or small movable forts and magazines, at the service of some unscrupulous man in power? Visit the Navy Yard, and behold a marine, such a man as an American government can make, or such as it can make a man with its black arts — a mere shadow and reminiscence of humanity, a man laid out alive and standing, and already, as one may say, buried under arms with funeral accompaniments, though it may be

"Not a drum was heard, not a funeral note,

As his corse to the rampart we hurried; 
Not a soldier discharged his farewell shot 
O'er the grave where our hero we buried."(6)

[5] The mass of men serve the state thus, not as men mainly, but as machines, with their bodies. They are the standing army, and the militia, jailers, constables, posse comitatus,(7) etc. In most cases there is no free exercise whatever of the judgment or of the moral sense; but they put themselves on a level with wood and earth and stones; and wooden men can perhaps be manufactured that will serve the purpose as well. Such command no more respect than men of straw or a lump of dirt. They have the same sort of worth only as horses and dogs. Yet such as these even are commonly esteemed good citizens. Others, as most legislators, politicians, lawyers, ministers, and office-holders, serve the state chiefly with their heads; and, as they rarely make any moral distinctions, they are as likely to serve the devil, without intending it, as God. A very few, as heroes, patriots, martyrs, reformers in the great sense, and men, serve the state with their consciences also, and so necessarily resist it for the most part; and they are commonly treated as enemies by it. A wise man will only be useful as a man, and will not submit to be "clay," and "stop a hole to keep the wind away,"(8) but leave that office to his dust at least: — "I am too high-born to be propertied,

To be a secondary at control, 
Or useful serving-man and instrument 
To any sovereign state throughout the world."(9)

[6] He who gives himself entirely to his fellow-men appears to them useless and selfish; but he who gives himself partially to them is pronounced a benefactor and philanthropist. [7] How does it become a man to behave toward this American government to-day? I answer, that he cannot without disgrace be associated with it. I cannot for an instant recognize that political organization as my government which is the slave's government also.

[8] All men recognize the right of revolution; that is, the right to refuse allegiance to, and to resist, the government, when its tyranny or its inefficiency are great and unendurable. But almost all say that such is not the case now. But such was the case, they think, in the Revolution of '75.(10) If one were to tell me that this was a bad government because it taxed certain foreign commodities brought to its ports, it is most probable that I should not make an ado about it, for I can do without them. All machines have their friction; and possibly this does enough good to counterbalance the evil. At any rate, it is a great evil to make a stir about it. But when the friction comes to have its machine, and oppression and robbery are organized, I say, let us not have such a machine any longer. In other words, when a sixth of the population of a nation which has undertaken to be the refuge of liberty are slaves, and a whole country is unjustly overrun and conquered by a foreign army, and subjected to military law, I think that it is not too soon for honest men to rebel and revolutionize. What makes this duty the more urgent is the fact that the country so overrun is not our own, but ours is the invading army.(11)

[9] Paley, a common authority with many on moral questions, in his chapter on the "Duty of Submission to Civil Government," resolves all civil obligation into expediency; and he proceeds to say that "so long as the interest of the whole society requires it, that is, so long as the established government cannot be resisted or changed without public inconveniency, it is the will of God that the established government be obeyed, and no longer" — "This principle being admitted, the justice of every particular case of resistance is reduced to a computation of the quantity of the danger and grievance on the one side, and of the probability and expense of redressing it on the other."(12) Of this, he says, every man shall judge for himself. But Paley appears never to have contemplated those cases to which the rule of expediency does not apply, in which a people, as well as an individual, must do justice, cost what it may. If I have unjustly wrested a plank from a drowning man, I must restore it to him though I drown myself.This, according to Paley, would be inconvenient. But he that would save his life, in such a case, shall lose it.(13) This people must cease to hold slaves, and to make war on Mexico, though it cost them their existence as a people.

[10] In their practice, nations agree with Paley; but does any one think that Massachusetts does exactly what is right at the present crisis?

"A drab of state, a cloth-o'-silver slut,

To have her train borne up, and her soul trail in the dirt."(14)

Practically speaking, the opponents to a reform in Massachusetts are not a hundred thousand politicians at the South, but a hundred thousand merchants and farmers here, who are more interested in commerce and agriculture than they are in humanity, and are not prepared to do justice to the slave and to Mexico, cost what it may. I quarrel not with far-off foes, but with those who, near at home, co-operate with, and do the bidding of those far away, and without whom the latter would be harmless. We are accustomed to say, that the mass of men are unprepared; but improvement is slow, because the few are not materially wiser or better than the many. It is not so important that many should be as good as you, as that there be some absolute goodness somewhere; for that will leaven the whole lump.(15) There are thousands who are in opinion opposed to slavery and to the war, who yet in effect do nothing to put an end to them; who, esteeming themselves children of Washington and Franklin, sit down with their hands in their pockets, and say that they know not what to do, and do nothing; who even postpone the question of freedom to the question of free-trade, and quietly read the prices-current along with the latest advices from Mexico, after dinner, and, it may be, fall asleep over them both. What is the price-current of an honest man and patriot to-day? They hesitate, and they regret, and sometimes they petition; but they do nothing in earnest and with effect. They will wait, well disposed, for others to remedy the evil, that they may no longer have it to regret. At most, they give only a cheap vote, and a feeble countenance and Godspeed, to the right, as it goes by them. There are nine hundred and ninety-nine patrons of virtue to one virtuous man; but it is easier to deal with the real possessor of a thing than with the temporary guardian of it. [11] All voting is a sort of gaming, like checkers or backgammon, with a slight moral tinge to it, a playing with right and wrong, with moral questions; and betting naturally accompanies it. The character of the voters is not staked. I cast my vote, perchance, as I think right; but I am not vitally concerned that that right should prevail. I am willing to leave it to the majority. Its obligation, therefore, never exceeds that of expediency. Even voting for the right is doing nothing for it. It is only expressing to men feebly your desire that it should prevail. A wise man will not leave the right to the mercy of chance, nor wish it to prevail through the power of the majority. There is but little virtue in the action of masses of men. When the majority shall at length vote for the abolition of slavery, it will be because they are indifferent to slavery, or because there is but little slavery left to be abolished by their vote. They will then be the only slaves. Only his vote can hasten the abolition of slavery who asserts his own freedom by his vote.

[12] I hear of a convention to be held at Baltimore,(16) or elsewhere, for the selection of a candidate for the Presidency, made up chiefly of editors, and men who are politicians by profession; but I think, what is it to any independent, intelligent, and respectable man what decision they may come to? Shall we not have the advantage of his wisdom and honesty, nevertheless? Can we not count upon some independent votes? Are there not many individuals in the country who do not attend conventions? But no: I find that the respectable man, so called, has immediately drifted from his position, and despairs of his country, when his country has more reason to despair of him. He forthwith adopts one of the candidates thus selected as the only available one, thus proving that he is himself available for any purposes of the demagogue. His vote is of no more worth than that of any unprincipled foreigner or hireling native, who may have been bought. Oh for a man who is a man, and, as my neighbor says, has a bone in his back which you cannot pass your hand through! Our statistics are at fault: the population has been returned too large. How many men are there to a square thousand miles in this country? Hardly one. Does not America offer any inducement for men to settle here? The American has dwindled into an Odd Fellow (17) — one who may be known by the development of his organ of gregariousness, and a manifest lack of intellect and cheerful self-reliance; whose first and chief concern, on coming into the world, is to see that the almshouses are in good repair; and, before yet he has lawfully donned the virile garb, to collect a fund for the support of the widows and orphans that may be; who, in short ventures to live only by the aid of the Mutual Insurance company, which has promised to bury him decently.

[13] It is not a man's duty, as a matter of course, to devote himself to the eradication of any, even the most enormous wrong; he may still properly have other concerns to engage him; but it is his duty, at least, to wash his hands of it, and, if he gives it no thought longer, not to give it practically his support. If I devote myself to other pursuits and contemplations, I must first see, at least, that I do not pursue them sitting upon another man's shoulders. I must get off him first, that he may pursue his contemplations too. See what gross inconsistency is tolerated. I have heard some of my townsmen say, "I should like to have them order me out to help put down an insurrection of the slaves, or to march to Mexico; — see if I would go"; and yet these very men have each, directly by their allegiance, and so indirectly, at least, by their money, furnished a substitute. The soldier is applauded who refuses to serve in an unjust war by those who do not refuse to sustain the unjust government which makes the war; is applauded by those whose own act and authority he disregards and sets at naught; as if the state were penitent to that degree that it hired one to scourge it while it sinned, but not to that degree that it left off sinning for a moment. Thus, under the name of Order and Civil Government, we are all made at last to pay homage to and support our own meanness. After the first blush of sin comes its indifference; and from immoral it becomes, as it were, unmoral, and not quite unnecessary to that life which we have made.

(continued in part two) Notes 1. Possible reference to "The best government is that which governs least," motto of the United States Magazine and Democratic Review,1837-1859, or "the less government we have, the better" - from Ralph Waldo Emerson's "Politics", 1844, sometimes mistakenly attributed to Jefferson - back 2. U.S.-Mexican War (1846-1848), abolitionists considered it an effort to extend slavery into former Mexican territory - back 3. Made from the latex of tropical plants, "India" because it came from the West Indies, and "rubber" from its early use as an eraser - back 4. Anarchists, many of whom came from Massachusetts - back 5. Boys who carry gunpowder for soldiers - back 6. Charles Wolfe (1791-1823) The Burial of Sir John Morre at Corunna - back 7. Group empowered to uphold the law, a sheriff's posse - back 8. Shakespeare (1564-1616) English dramatist, from Hamlet - back 9. Shakespeare, from King John - back. 10. The American Revolution began in Concord & Lexington in 1775 - back 11. A reference to slavery in the U.S, and to the invasion of Mexico by the U.S. - back 12. William Paley (1743-1805) English theologian & philosopher, from Principals of Moral and Political Philosophy, 1785 - back 13. "He that findeth his life shall lose it..." - Matthew 10:39 - back 14. Cyril Tourneur (1575?-1626) The Revengers Tragadie - back 15."... a little leaven leaveneth the whole lump" - 1 Corinthians 5:6 - back 16. In 1848, Democratics nominated Lewis Case for U.S. president, later defeated by Zachary Talor - back 17. A member of the Independent Order of Odd Fellows, a fraternal organization originating in England in the mid-1700s. - back Thoreau Reader: Home - Civil Disobedience Intro - Civil Disobedience - 2

Techniques

Choice of specific act

Civil disobedients have chosen a variety of different illegal acts. Bedau writes, "There is a whole class of acts, undertaken in the name of civil disobedience, which, even if they were widely practiced, would in themselves constitute hardly more than a nuisance (e.g. trespassing at a nuclear-missile installation)...Such acts are often just a harassment and, at least to the bystander, somewhat inane...The remoteness of the connection between the disobedient act and the objectionable law lays such acts open to the charge of ineffectiveness and absurdity." Bedau also notes, though, that the very harmlessness of such entirely symbolic illegal protests toward public policy goals may serve a propaganda purpose.^[19] Some civil disobedients, such as the proprietors of illegal medical cannabis dispensaries and Voice in the Wilderness, which brought medicine to Iraq without the permission of the U.S. Government, directly achieve a desired social goal (such as the provision of medication to the sick) while openly breaking the law. Julia Butterfly Hill lived in Luna, a 180-foot (55 m)-tall, 600-year-old California Redwood tree for 738 days, successfully preventing it from being cut down.

In cases where the criminalized behavior is pure speech, civil disobedience can consist simply of engaging in the forbidden speech. An example would be WBAI's broadcasting the track "Filthy Words" from a George Carlin comedy album, which eventually led to the 1978 Supreme Court case of FCC v. Pacifica Foundation. Threatening government officials is another classic way of expressing defiance toward the government and unwillingness to stand for its policies. For example, Joseph Haas was arrested for allegedly sending an email to the Lebanon, New Hampshire city councilors stating, "Wise up or die."^[20]

More generally, protesters of particular victimless crimes often see fit to openly commit that crime. Laws against public nudity, for instance, have been protested by going naked in public, and laws against cannabis consumption have been protested by openly possessing it and using it at cannabis rallies.^[21]

Some forms of civil disobedience, such as illegal boycotts, refusals to pay taxes, draft dodging, distributed denial-of-service attacks, and sit-ins, make it more difficult for a system to function. In this way, they might be considered coercive. Brownlee notes that "although civil disobedients are constrained in their use of coercion by their conscientious aim to engage in moral dialogue, nevertheless they may find it necessary to employ limited coercion in order to get their issue onto the table."^[22] The Plowshares organization temporarily closed GCSB Waihopai by padlocking the gates and using sickles to deflate one of the large domes covering two satellite dishes.

Electronic civil disobedience can include web site defacements, redirects, denial-of-service attacks, information theft and data leaks, illegal web site parodies, virtual sit-ins, and virtual sabotage. It is distinct from other kinds of hacktivism in that the perpetrator openly reveals his identity. Virtual actions rarely succeed in completely shutting down their targets, but they often generate significant media attention.^[23]

Dilemma actions are designed to create a "response dilemma" for public authorities "by forcing them to either concede some public space to protesters or make themselves look absurd or heavy-handed by acting against the protest."^[24]

Cooperation with authorities

A police officer speaks with a demonstrator at a union picket, explaining that she will be arrested if she does not leave the street. The demonstrator was arrested moments later.

Some disciplines of civil disobedience hold that the protestor must submit to arrest and cooperate with the authorities. Others advocate falling limp or resisting arrest, especially when it will hinder the police from effectively responding to a mass protest.

Many of the same decisions and principles that apply in other criminal investigations and arrests arise also in civil disobedience cases. For example, the suspect may need to decide whether or not to grant a consent search of his property, and whether or not to talk to police officers. It is generally agreed within the legal community,^[25] and is often believed within the activist community, that a suspect's talking to criminal investigators can serve no useful purpose, and may be harmful. However, some civil disobedients have nonetheless found it hard to resist responding to investigators' questions, sometimes due to a lack of understanding of the legal ramifications, or due to a fear of seeming rude.^[26] Also, some civil disobedients seek to use the arrest as an opportunity to make an impression on the officers. Thoreau wrote, "My civil neighbor, the tax-gatherer, is the very man I have to deal with--for it is, after all, with men and not with parchment that I quarrel--and he has voluntarily chosen to be an agent of the government. How shall he ever know well that he is and does as an officer of the government, or as a man, until he is obliged to consider whether he will treat me, his neighbor, for whom he has respect, as a neighbor and well-disposed man, or as a maniac and disturber of the peace, and see if he can get over this obstruction to his neighborliness without a ruder and more impetuous thought or speech corresponding with his action."^[27]

Some civil disobedients feel it is incumbent upon them to accept punishment because of their belief in the validity of the social contract, which is held to bind all to obey the laws that a government meeting certain standards of legitimacy has established, or else suffer the penalties set out in the law. Other civil disobedients who favor the existence of government still don't believe in the legitimacy of their particular government, or don't believe in the legitimacy of a particular law it has enacted. And still other civil disobedients, being anarchists, don't believe in the legitimacy of any government, and therefore see no need to accept punishment for a violation of criminal law that does not infringe the rights of others.

Choice of plea

An important decision for civil disobedients is whether or not to plead guilty. There is much debate on this point, as some believe that it is a civil disobedient's duty to submit to the punishment prescribed by law, while others believe that defending oneself in court will increase the possibility of changing the unjust law.^[28] It has also been argued that either choice is compatible with the spirit of civil disobedience. ACT-UP's Civil Disobedience Training handbook states that a civil disobedient who pleads guilty is essentially stating, "Yes, I committed the act of which you accuse me. I don't deny it; in fact, I am proud of it. I feel I did the right thing by violating this particular law; I am guilty as charged," but that pleading not guilty sends a message of, "Guilt implies wrong-doing. I feel I have done no wrong. I may have violated some specific laws, but I am guilty of doing no wrong. I therefore plead not guilty." A plea of no contest is sometimes regarded as a compromise between the two.^[29] One defendant accused of illegally protesting nuclear power, when asked to enter his plea, stated, "I plead for the beauty that surrounds us";^[30] this is known as a "creative plea," and will usually be interpreted as a plea of not guilty.^[31]

When the Committee for Non-Violent Action sponsored a protest in August 1957, at the Camp Mercury nuclear test site near Las Vegas, Nevada, 13 of the protesters attempted to enter the test site knowing that they faced arrest. At a pre-arranged announced time, one at a time they stepped across the "line" and were immediately arrested. They were put on a bus and taken to the Nye County seat of Tonopah, Nevada, and arraigned for trial before the local Justice of the Peace, that afternoon. A well known civil rights attorney, Francis Heisler, had volunteered to defend the arrested persons, advising them to plead "nolo contendere", as an alternative to pleading either guilty or not-guilty. The arrested persons were found "guilty," nevertheless, and given suspended sentences, conditional on their not reentering the test site grounds.

Howard Zinn writes, "There may be many times when protesters choose to go to jail, as a way of continuing their protest, as a way of reminding their countrymen of injustice. But that is different than the notion that they must go to jail as part of a rule connected with civil disobedience. The key point is that the spirit of protest should be maintained all the way, whether it is done by remaining in jail, or by evading it. To accept jail penitently as an accession to 'the rules' is to switch suddenly to a spirit of subservience, to demean the seriousness of the protest...In particular, the neo-conservative insistence on a guilty plea should be eliminated."^[32]

Sometimes the prosecution proposes a plea bargain to civil disobedients, as in the case of the Camden 28, in which the defendants were offered an opportunity to plead guilty to one misdemeanor count and receive no jail time.^[33] In some mass arrest situations, the activists decide to use solidarity tactics to secure the same plea bargain for everyone.^[31] But some activists have opted to enter a blind plea, pleading guilty without any plea agreement in place. Mohandas Gandhi pleaded guilty and told the court, "I am here to . . . submit cheerfully to the highest penalty that can be inflicted upon me for what in law is a deliberate crime and what appears to me to be the highest duty of a citizen."^[34]

Legal implications of civil disobedience

Barkan writes that if defendants plead not guilty, "they must decide whether their primary goal will be to win an acquittal and avoid imprisonment or a fine, or to use the proceedings as a forum to inform the jury and the public of the political circumstances surrounding the case and their reasons for breaking the law via civil disobedience." A technical defense may enhance the chances for acquittal but make for more boring proceedings and reduced press coverage. During the Vietnam War era, the Chicago Eight used a political defense, while Benjamin Spock used a technical defense.^[35] In countries such as the United States whose laws guarantee the right to a jury trial but do not excuse lawbreaking for political purposes, some civil disobedients seek jury nullification. Over the years, this has been made more difficult by court decisions such as Sparf v. United States, which held that the judge need not inform jurors of their nullification prerogative, and United States v. Dougherty, which held that the judge need not allow defendants to openly seek jury nullification.

Governments have generally not recognized the legitimacy of civil disobedience or viewed political objectives as an excuse for breaking the law. Specifically, the law usually distinguishes between criminal motive and criminal intent; the offender's motives or purposes may be admirable and praiseworthy, but his intent may still be criminal.^[36] Hence the saying that "if there is any possible justification of civil disobedience it must come from outside the legal system."^[37]

One theory is that, while disobedience may be helpful, any great amount of it would undermine the law by encouraging general disobedience which is neither conscientious nor of social benefit. Therefore, conscientious lawbreakers must be punished.^[38] Michael Bayles argues that if a person violates a law in order to create a test case as to the constitutionality of a law, and then wins his case, then that act did not constitute civil disobedience.^[39] It has also been argued that breaking the law for self-gratification, as in the case of a homosexual or cannabis user who does not direct his act at securing the repeal of amendment of the law, is not civil disobedience.^[40] Likewise, a protestor who attempts to escape punishment by committing the crime covertly and avoiding attribution, or by denying having committed the crime, or by fleeing the jurisdiction, is generally viewed as not being a civil disobedient.

Courts have distinguished between two types of civil disobedience: "Indirect civil disobedience involves violating a law which is not, itself, the object of protest, whereas direct civil disobedience involves protesting the existence of a particular law by breaking that law."^[41] During the Vietnam War, courts typically refused to excuse the perpetrators of illegal protests from punishment on the basis of their challenging the legality of the Vietnam War; the courts ruled it was a political question.^[42] The necessity defense has sometimes been used as a shadow defense by civil disobedients to deny guilt without denouncing their politically motivated acts, and to present their political beliefs in the courtroom.^[43] However, court cases such as U.S. v. Schoon have greatly curtailed the availability of the political necessity defense.^[44] Likewise, when Carter Wentworth was charged for his role in the Clamshell Alliance's 1977 illegal occupation of the Seabrook Station Nuclear Power Plant, the judge instructed the jury to disregard his competing harms defense, and he was found guilty.^[45] Fully Informed Jury Association activists have sometimes handed out educational leaflets inside courthouses despite admonitions not to; according to FIJA, many of them have escaped prosecution because "prosecutors have reasoned (correctly) that if they arrest fully informed jury leafleters, the leaflets will have to be given to the leafleter's own jury as evidence."^[46]

Along with giving the offender his "just deserts", achieving crime control via incapacitation and deterrence is a major goal of criminal punishment.^[47][48] Brownlee argues, "Bringing in deterrence at the level of justification detracts from the law’s engagement in a moral dialogue with the offender as a rational person because it focuses attention on the threat of punishment and not the moral reasons to follow this law."^[22] Leonard Hubert Hoffmann writes, "In deciding whether or not to impose punishment, the most important consideration would be whether it would do more harm than good. This means that the objector has no right not to be punished. It is a matter for the state (including the judges) to decide on utilitarian grounds whether to do so or not."^[49]

See also

Wikiquote has quotations related to: Civil disobedience

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References

Further reading

• Lewis Perry, Civil Disobedience: An American Tradition. New Haven, CT: Yale University Press, 2013.

External links