doi: 10.1111/1467-8675.

12216

Rethinking Civil Disobedience as a Practice

of Contestation—Beyond the Liberal Paradigm
Robin Celikates

Across the political spectrum, many people— of practicing civil disobedience—makes it necessary to
journalists, politicians, but also activists and theorists— conceive of the relation between its symbolic and its
seem to think there is something fundamentally wrong confrontational (maybe even violent) aspect in a dif-
with civil disobedience. Some consider it too radical, ferent, more complicated way. This rethinking of civil
as an attempt to procure political power under the man- disobedience seems especially called for today in a sit-
tel of moral principles, as a one-sided renunciation of uation that poses a series of challenges to traditional
the duty to obey the law and to uphold order that is understandings of political contestation. Amongst these
not to be tolerated.1 Citizens in more or less function- challenges, the crises-ridden globalization of neoliberal
ing democracies, they say, must limit themselves to the political and economic power structures, the rise of the
legally sanctioned possibilities available to them for ex- Internet both as a tool of political action and as a po-
pressing dissenting views and influencing the political litically contested space, and the troubled resurgence of
process. As Anne Applebaum put it, in characteristi- radical opposition to the status quo, for example, in the
cally simple terms, referring to the disobedience prac- form of the Occupy movement,5 can be seen as the most
ticed by Occupy Wall Street: “Unlike the Egyptians pressing. They urge us to be aware of both the potential
in Tahrir Square, to whom both the London and and the limits of a conception of civil disobedience that
New York protesters openly (and ridiculously) com- goes beyond its narrowly liberal understanding.6
pare themselves, we have democratic institutions in the
Western world.”2 From this point of view, civil dis-
obedience is little more than political blackmail. On 1. Civil Disobedience—The Liberal Paradigm
the other extreme we find those who consider it noth- and What Is Wrong With It
ing more than the impotent expression of a reformist 1.1. The Definition of Civil Disobedience
yearning for cosmetic changes within a given system, Let me begin with the highly influential definition pro-
as a socially permissible and harmless protest of well- vided by John Rawls in his classic A Theory of Justice.
intentioned citizens, which remains purely symbolic and According to Rawls, civil disobedience is, in distinction
only contributes to the stabilization of the status quo.3 to other forms of resistance, “a public, non-violent, con-
In this article I argue that both of these widespread scientious yet political act contrary to law usually done
views miss the specific characteristics of civil disobe- with the aim of bringing about a change in the law or
dience as a genuinely political and democratic practice policies of the government” by appealing to the “sense
of contestation. In order to present these specifics in of justice of the majority,” all “within the limits of fi-
detail, it is first necessary to examine how civil disobe- delity to law,” which, among other things, is expressed
dience is understood—in what will turn out to be a very by accepting the possibility of a penalty.7 To show that
one-sided and sanitized way—in the mainstream liberal Rawls is by no means alone in understanding civil dis-
paradigm, not least because the definition elaborated in obedience in this way, let me also quote the definition
liberal political philosophy4 is either so successful that provided by Jürgen Habermas, which closely follows
it has shaped public understandings of civil disobedi- Rawls’s lead:
ence, or so uncritical that it more or less systematizes
and reproduces these understandings. This first step of Civil disobedience is a morally justified protest which
my argument will be developed in three short subsec- may not be founded only on private convictions or indi-
tions on the definition, justification, and role of civil vidual self-interests; it is a public act which, as a rule, is
disobedience. In a second step I address the crucial and announced in advance and which the police can control
complex question of the relation between civil disobe- as it occurs; it includes the premeditated transgression
of legal norms without calling into question obedience
dience, a practice often regarded as essentially non-
to the rule of law as a whole; it demands the readiness
violent, and violence. In the last part I briefly sketch to accept the legal consequences of the transgression of
why understanding civil disobedience as a specifically those norms; the infraction by which civil disobedience
democratic political practice—one we might also call is expressed has an exclusively symbolic character—
democratic or political disobedience in order to mark hence is derived the restriction to nonviolent means of
the difference with classical ways of understanding and protest.8

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38 Constellations Volume 23, Number 1, 2016

Although at first sight these definitions seem rela- out of a conviction that certain radical positions (that one
tively unproblematic and commonsensical, in the debate does not necessarily personally subscribe to) should be
about civil disobedience virtually all their elements have represented in the public debate.12 Rawls seems to fo-
proven controversial. Let us briefly look at each of them cus on conscientious civil disobedience in order to cope
in turn. with what in the discussion about the allocation of social
The first element is that civil disobedience accord- bads has come to be called the “NIMBY” problem: the
ing to Rawls is a public act. As is well-known, Henry empirically widespread “not in my backyard” variety
David Thoreau—who is usually credited with invent- of civil disobedience where people protest, for exam-
ing the very term—protested against slavery and the ple, against a new highway or toxic waste dump being
Mexican War by withholding his taxes, a decision he built in their quiet and peaceful neighborhood.13 Again,
made public only several years later. To this example however, Rawls’s focus turns out to be too narrow in
Rawls could respond—in my view correctly—that it is excluding these forms of civil disobedience—however
closer to conscientious refusal than to civil disobedience difficult their justification might turn out to be—from
proper, although the line between these two might be the very definition.
more difficult to draw than Rawls suggests. It is, in any The remaining two elements of the liberal definition,
case, a further question how the emphasis on publicity as developed by Rawls, suffer from underdetermination.
would accommodate more recent forms of digital dis- First, consider the appeal to the majority’s sense of jus-
obedience, as practiced, for example, by Anonymous, tice. In many cases, civil disobedience seems at odds
and more generally what “public” is supposed to mean with and indeed directed against the majority’s moral
here.9 A second look shows that for Rawls civil disobe- sentiments; it is often failures of this sense of justice that
dience is public insofar as “[i]t is engaged in openly make civil disobedience necessary in the first place. In
with fair notice; it is not covert or secretive.”10 Haber- fact, it is difficult to see why one should appeal to it at
mas places even more emphasis on this point in claiming all when the majority’s sense of justice is taken to be
that “public” means that “as a rule” civil disobedience systematically distorted or biased and has shown itself
“is announced in advance” and controllable by the po- to be largely immune to critical challenges. Of course,
lice. However, the exercise of many well-established one could further qualify the sense of justice in a way
forms of civil disobedience—think of blocking a busy that removes it from what members of the majority in a
intersection, occupying a port or obstructing the de- society take to be just and unjust as a matter of contin-
portation of so-called illegal immigrants, to give just a gent fact.14 But turning it into a non-empirical court of
few examples—depends on not giving the authorities appeal in this way raises the problem of relating the ac-
fair notice in advance. It would be strange—and indeed tual, radically deficient sense of justice to its idealized
it can be taken to be a sign of the ideological poten- counterpart, which the practitioners of civil disobedi-
tial of philosophical debates—to exclude these forms ence are supposed to ascribe to their fellow citizens in
of protest by definition from the very category of civil spite of their actual convictions and behavior. Even on
disobedience, whatever else one may think of them and this understanding, it is unclear to whose sense of justice
their justifiability in concrete circumstances. Martin Luther King, Jr., for example, was appealing—
According to the second element of the definition, in cases such as this one, the determination of the ad-
civil disobedience is non-violent. Since this part of the dressee, the relevant majority, will not be an obvious
definition is both generally accepted as well as particu- matter.15 Furthermore, there are cases of civil disobedi-
larly problematic I devote the next section of this article ence that cannot be construed as appealing to anyone’s
to it. sense of justice because they aim not at persuasion but at
According to the third element of the liberal defini- increasing the political and economic costs for a certain
tion, civil disobedience is a conscientious act. But why political option or way of action. Animal rights activists
should only disobedience out of reasons of conscience may again serve as an example: since they have often
count as civil disobedience? Putting the need to draw lost any hope that the majority can really be brought to
some distinction between civil disobedience and consci- care about the fate of animals, they resort to a politics of
entious objection to one side,11 we may wonder whether cost-levying designed to alter the incentive structure of
one could not disobey for all sorts of at least prima facie those (private individuals, corporations or politicians)
legitimate reasons, for example reasons of self-respect who will otherwise remain indifferent.16
or political responsibility, that are not conscientious, at The final element of the liberal definition—that civil
least in a narrow sense. There is, I would argue, also disobedience takes place within the limits of fidelity
something like advocatory civil disobedience (for ex- to law—is supposed to distinguish it from more rad-
ample, in the animal rights movement), which is not ical and revolutionary forms of protest and resistance
necessarily conscience-based and could indeed be un- that put into question the political system itself. The
dertaken with a more or less strategic attitude: such as line between these different forms of illegal protest,


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 Rethinking Civil Disobedience as a Practice of Contestation: Robin Celikates 39

however, apart from being politically contested in prac- dience is public, nonviolent, conscientious, appealing to
tice, is more difficult to draw in theory than the liberal the majority’s sense of justice, and restricted to trans-
definition suggests. Consider again the case of Martin forming the system within its existing limits. Whether
Luther King, Jr. and other participants in the US Civil an act of disobedience should exhibit these further fea-
Rights Movement. It is not clear that they were aiming tures involves substantial normative issues that cannot
only at more or less local corrections within the exist- be resolved on the level of definition.21 Although civil
ing system or that their disobedience was an expression disobedience has to be distinguished from both legal
of their recognition of the system’s general legitimacy. opposition on the one side and full-scale revolution-
Again, this seems to depend on how “the system” is ary revolt on the other, the boundaries between these
defined here. Rawls’s restriction stands in some tension varieties of political action are politically contested in
with a much more radical attitude that is characteristi- practice and cannot be drawn as easily as liberal the-
cally expressed in King’s statement that “The thing to ory suggests.22 Not least for this reason, the question of
do is get rid of the system.”17 Similarly, Gandhi seemed definition should not be mixed up with the question of
to pursue a pretty radical goal. He had understood the justification (and perhaps that of strategy as well).
lesson La Boétie demonstrated in his Discourse on Vol-
untary Servitude from the 1550s that the power of the 1.2. The Justification of Civil Disobedience
ruling elite is based entirely on the cooperation of its The limitations of the liberal perspective on civil disobe-
subjects—non-cooperation and disobedience are thus dience and the need for a more practice-based, demo-
potentially revolutionary as they can—and are often in- cratic and pluralist perspective are even more evident
tended to—put the whole system into crisis. From the when we turn to the second part of Rawls’s discussion
fact that many disobedients—King, Edward Snowden of civil disobedience, which focuses on its justification.
and other prominent figures among them—are commit- In a nutshell, my argument in this section is that the
ted to the principle of the rule of law it does not follow liberal conception, as elaborated by Rawls, imposes too
that they express fidelity to the law as it exists or rec- many constraints on the justifiability of this kind of po-
ognize its de facto claims on our obedience here and litical practice, again foreclosing meaningful practical
now.18 deliberation by the agents themselves.
Although the distinction between civil disobedience According to Rawls, an act of civil disobedience is
and more radical forms of dissent is far from being justified when it opposes
obsolete, the way Rawls builds it into his definition ob-
serious infringements of the first principle of justice, the
scures its gradual and politically contested character.
principle of equal liberty, and . . . blatant violations of
As David Lyons points out with reference to Thoreau,
[the second part of the second principle,] the principle
Gandhi, and King, “none of these three regarded the pre- of fair equality of opportunity,
vailing system as ‘reasonably just’ or accepted a moral
presumption favoring obedience to law.”19 Under these when it is used as a “last resort,” and when it is coordi-
conditions, the requirement that civil disobedience has nated with other protesting groups in order to avoid “se-
to stay “within the limits of fidelity to law,” in order rious disorder.”23 We can first note the striking fact that
to count as civil disobedience at all, ceases to be plau- violations of the so-called difference principle, which
sible (and this does not even touch on the problematic is supposed to regulate socioeconomic inequalities, are
assumption, shared by Rawls and Habermas, that the explicitly excluded from the potential grounds of jus-
acceptance of punishment for the breach of law that tification of civil disobedience. The reason for this is
necessarily goes along with civil disobedience is an im- that, according to Rawls, civil disobedience should be
plication of this fidelity). restricted to easily detectable violations of clear and
In the face of these problems, it seems appropriate basic demands of justice that can also be formulated
to define civil disobedience in a way that is less norma- in terms of individual basic rights. Dworkin seems to
tively loaded and therefore less restrictive, as an inten- have a similar point in mind in distinguishing between
tionally unlawful and principled collective act of protest “matters of principle” and “matters of policy,” and ar-
(in contrast to both legal protest and “ordinary” crim- guing that civil disobedience should be restricted to the
inal offenses or “unmotivated” rioting20 ), with which former. According to this distinction, protesting against
citizens—in the broad sense that goes beyond those the infringement of civil liberties will count as justified
recognized as citizens by a particular state—pursue the civil disobedience (think of the Civil Rights Movement
political aim of changing specific laws, policies or in- in the USA) while protesting against nuclear weapons
stitutions (in contrast to conscientious objection, which or against the decision of one’s government to go to
is protected in some states as a fundamental right and war will not.24 Obviously, however, this distinction is
does not seek such change). This somewhat minimalist itself politically contested in a way that Dworkin’s ideal
definition deliberately leaves open whether civil disobe- theory is insufficiently attentive to. Surely those who


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40 Constellations Volume 23, Number 1, 2016

disobeyed in protest of the stationing of US nuclear that Rawls is committed to holding that no amount of
missiles in Europe in the 1980s or of the US-led wars cruelty to animals can justify disobedience.31
in Iraq had good reason to think they were confronted
I see no reason why these justifications should be dis-
by “matters of principle” and not simply of “policy.”25
missed out of hand—indeed, it seems to be a serious
So Rawls’s discussion of the justification of civil dis-
deficit (with politically problematic effects) if a theory
obedience also runs into several problems. I can quickly
of civil disobedience does not account for them because
touch on only two of them. First, Rawls’s requirements
it has ex ante limited the range of permissible justifi-
of justification are too narrow. Some of the violations of
cations on the basis of ideal theory without any con-
the difference principle will be no less clear than viola-
cern for the social and political reality of protest and its
tions of the other two principles, the principle of equal
normative grammar.
liberty and the principle of fair equality of opportunity.
The focus on fundamental rights that is character-
Furthermore, violations of the difference principle will,
istic of the discussion of civil disobedience within the
if they exceed a certain measure, affect the fair value
liberal tradition thus tends to exclude from view certain
of the basic liberties (especially of political freedom)
forms of socioeconomic inequality and of suffering as
emphasized by Rawls himself, who acknowledges “the
well as procedural and institutional democratic deficits
duty to comply is problematic for permanent minorities
that systematically prevent citizens from effectively en-
that have suffered from injustice for many years.”26 On
gaging in collective self-determination and that will in
this basis, Tommie Shelby has convincingly argued that
many cases also qualify as potential grounds of justi-
the lack of justice in a basic structure and the legitimate
fication. As we will now see, this goes hand in hand
need to uphold one’s self-respect can alter the set of
with underestimating the transformative potential of
obligations we may legitimately ascribe to those who
civil disobedience. A more pluralist and at the same time
are systematically disadvantaged and thus the potential
radical understanding of civil disobedience is therefore
grounds for resistance the latter can make reference to.27
called for.
There are reasons for doubting that these grounds for
resistance can all be reduced to “serious infringements 1.3. The Role of Civil Disobedience
of . . . the principle of equal liberty, and . . . the prin-
The third part of Rawls’s discussion concerns the polit-
ciple of fair equality of opportunity.”28
ical and social role of civil disobedience. Here I limit
Perhaps more importantly, an alternative justifica-
myself to pointing out a very general problem, namely,
tion of civil disobedience that has arguably become
the conservative tendency or status quo bias that seems
more and more important since the time of Rawls’s writ-
inherent in the way that Rawls (and to a certain extent
ing and turns out to be a focus of more recent concerns
also Habermas) understands civil disobedience. Both
in democratic theory is also excluded by the narrow-
see it as a warning signal to existing institutions that
ness of the liberal analysis. Protesters often claim that
points to potential trouble and allows political leaders
their civil disobedience is justified on account of pro-
to react in ways that increase the stability of the exist-
cedural and institutional democratic deficits that may
ing order.32 According to Rawls, a “general disposition
leave the principle of equal liberty intact while restrict-
to engage in justified civil disobedience introduces sta-
ing the effective participation of citizens in democratic
bility into a well-ordered society, or one that is nearly
self-government.29 The development of semi-oligarchic
just.”33 This, however, seems to underestimate the trans-
party structures, the problem of agenda-setting and the
formative effects that civil disobedience can have as a
popular rejection of certain foreign policy decisions
specifically extra-institutional form of political practice,
may come to mind here. In this context protest often
the democratic and democratizing potential of which
aims at initiating and reopening democratic delibera-
has been stressed by theorists from Hannah Arendt to
tion, especially when citizens are faced with “failures
Etienne Balibar. From such a more radically democratic
of government to debate or enact important policy op-
perspective we can also describe the role of civil dis-
tions, where the discussion or enactment of those op-
obedience in more general terms as the
tions is obstructed by the phenomenon of deliberative
inertia.”30 Similarly, the justifications provided by ani- dramatizing of the tension between the poles of positive
mal rights activists for their acts of civil disobedience law and existing democratic processes and institutions
are often not justice-based in Rawls’s sense. As Peter on the one hand, and the idea of democracy as self-
Singer notes: government on the other, which is not exhausted by
established law and the institutional status quo,34

It is, he [Rawls] says, wrong to be cruel to animals, or, in Balibar’s words, of an

although we do not owe them justice. If we combine
this view with the idea that the justification of civil indefinite oscillation . . . between two obviously anti-
disobedience must be in terms of justice, we can see nomical forms of “politics:” an insurrectional politics


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 Rethinking Civil Disobedience as a Practice of Contestation: Robin Celikates 41

and a constitutional politics . . . , a politics of perma- Before developing this idea a bit further, let us turn
nent, uninterrupted revolution, and a politics of the state to the requirement of non-violence (or peacefulness,
as institutional order.35 as it is also sometimes put). The plausibility of this
requirement obviously depends on how broad or narrow
While from a liberal perspective civil disobedience the concept of violence is taken to be. Does violence
mainly appears as a form of protest of individual rights include only serious violations of the physical integrity
bearers against governments and political majorities of others? What about violence against property (think
that transgress the limits established by constitution- of the French farmer and political activist José Bové
ally guaranteed moral principles and values, a radical and the dismantling of the McDonald’s in Millau, or
democratic perspective does not view civil disobedience the destruction of genetically modified plants), violence
primarily in terms of limitations on popular sovereignty. against oneself, or minimal violence in self-defense?
It views it rather as the expression of a democratic prac- And what about restricting the freedom of movement
tice of collective self-determination, as a dynamizing of uninvolved third parties or exerting psychological
counterweight to the rigidifying tendencies of state in- pressure on others? According to some influential views
stitutions that attempt to absorb the constituent power of some or all of these are incompatible with the civility of
their subjects.36 From this viewpoint, this episodic, in- civil disobedience. In an influential article, Hugo Bedau
formal, and extra-institutional or anti-institutional form argues that
of political action also allows citizens (and even those
who are excluded from this status) to protest and [a]nytime the dissenter resists government by deliber-
participate, when—as is often the case in representa- ately destroying property, endangering life and limb,
tive democracies—the official and regular institutional inciting to riot (for example, sabotage, assassination,
channels of action and communication are closed to street fighting), he has not committed civil disobedi-
them or are ineffective in getting their objections across. ence. The pun on “civil” is essential; only nonviolent
acts thus can qualify.39
In addition, these institutions and channels are often not
only limited but prove to be so in ways that make it im- This assumption seems in accordance with widespread
possible or at least difficult for citizens to address these reactions to forms of protest that are seen as violent.
limits. In these cases these institutions and channels Think of the expressions of public outrage caused by
themselves become obstacles to democratic action.37 the London riots in 2011, which often equated the de-
Rather than as a defensive act of individual rights struction of private property with the attack on human
bearers, civil disobedience thus emerges as an essen- lives and then portrayed the riots as sheer apolitical
tially collective and political practice of contestation— criminality that calls for a military rather than a polit-
as a form of struggle in which the vertical form ical response. These stigmatizing reactions neutralize
of state authority is confronted with the horizontal the normative and political logic also present in urban
power of the association of citizens or the governed, riots and should remind us that an all too easy juxta-
the “low-intensity representative democratic institutions position of violence and non-violence makes it possible
and modern constitutional formations” with the “partici- to combine the celebration of protest that is “good” in
patory or high-intensity democratic forms of democracy terms of who protests how and with what aim with the
and self-determination.”38 criminalization of more radical forms of protest.40
Legal discourse and practice concerning the
(non-)violence of civil disobedience can also serve to
2. The Question of Violence illustrate the problem with this aspect of the liberal
As we saw, two of the most prominent theories of civil paradigm. In a notorious series of cases, German courts
disobedience, those of Rawls and Habermas, highlight have in the past ruled that to exert psychological pres-
its primarily or even exclusively symbolic character sure on others, for example, by sit-down blockades on
and infer from this characterization that civil disobe- the road that force drivers to stop their cars, consti-
dience is essentially non-violent. Indeed, non-violence tutes an act of violent coercion (Nötigung) under §240
may very well be the notion most often associated with StGB (the German Penal Code) and is incompatible
civil disobedience both in the public imaginary and with peaceful and non-violent protest. The legal his-
in theoretical discussions. This identification, however, tory is as complicated as it is amusing but can only
threatens to reduce civil disobedience to a purely moral be summarized here in its crudest outline.41 The Bun-
appeal, which sets all hopes on a responsive political desgerichtshof (BGH, Federal Court of Justice) in its
system or public sphere. In turn, this raises the ques- famous Laepple decision of 1969 ruled that it is an
tion of whether civil disobedience does not require a act of violent coercion to sit down in the street and to
moment of real confrontation for it to be politically psychologically pressure the driver of a car to stop.
effective. For the Bundesverfassungsgericht (BVerfG, Federal


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42 Constellations Volume 23, Number 1, 2016

Constitutional Court) this went too far and it determined concept of violence in order to describe the conditions
that there has to be an element of physical coercion in against which people legitimately protest by means of
order to speak of violence. To this the BGH responded civil disobedience as violent (for example, in the sense
in an ingenious way; namely by arguing that the ap- of structural violence), this broadened notion of vio-
peal holds only for the first car. If more than one car lence might make it more difficult to defend certain
is blocked the second driver will be physically coerced forms of civil disobedience as non-violent. If, in con-
in a way that constitutes a criminal offence commit- trast, we stick to a narrow understanding of violence,
ted by the protester because the latter turns the first and on that basis reject the critique of civil disobedi-
car into a physical barrier. This so-called “second-row” ence as violent, we might lose a powerful tool for the
jurisprudence (Zweite-Reihe-Rechtsprechung) has then critique of the status quo in terms of the suffering it
also been taken up by the Federal Constitutional Court. produces.
Accordingly, in 2001, the court ruled that it is an act In addition to these more general questions we can
of violent coercion to chain oneself to railway tracks or ask whether defining civil disobedience as non-violent
to an entrance gate, thereby erecting a physical barrier, does not foreclose important normative and strategic
and in 2011 it explicitly stated that sitting down in the questions about weighing the costs of different forms of
street can be a violent act.42 Without being able to go disobedience, especially in the face of severe injustice.
into all the details of these curious semantic contortions, Consider the two following quotes by two philosophers
this example shows that the widespread assumption that who are usually not regarded as political radicals. The
civil disobedience is, by definition, non-violent is not first is by Joseph Raz:
particularly helpful, and that everything depends on how
violence is socially, politically, and legally (re-)defined. The evil the disobedience is designed to rectify may
be so great [ . . . ] that it may be right to use violence
In addition, there is a further problem. Does the con-
to bring it to an end. . . . [furthermore] certain non-
struction of the history of civil disobedience as essen-
violent acts, indeed some lawful acts, may well have
tially and exclusively non-violent not involve “falsified much more severe consequences than many an act of
histories of struggle” and a certain amount of “histori- violence: consider the possible effects of a strike by
cal whitewashing”?43 Besides, or rather behind Martin ambulance drivers.46
Luther King, Jr. there was Malcolm X; besides or rather
behind Gandhi a variety of decidedly more radical po- The second is by John Simmons:
litical actors. In some of the most prominent instances,
Violence against persons will obviously always be
the success of civil disobedience seems to depend at
harder to morally justify. But it again seems far from
least in part on the deliberate threat, provocation, or use
obvious that some such violence—say, kidnapping a
of violence by one group or other. Even if we leave public official who is instrumental in administering
this background threat of violence aside for the mo- an unjust policy—could never be both effective and
ment, it is not difficult to appreciate that the success of, morally justifiable.47
for example, the US Civil Rights Movement depended,
again at least in part, on the violence its “non-violent” Of course, such skepticism about the usefulness of
protests have (intentionally and for strategic reasons) flatly asserting the nonviolence of civil disobedience is
provoked on the part of the state’s security apparatus.44 not new but has been voiced, by Howard Zinn, among
Against this background, the strategy of claiming non- others, since the 1960s.48 Following Rawls, most liberal
violence can be seen as aiming at the symbolic construc- approaches have failed even to discuss the questions it
tion of an opposition between the non-violent militants gives rise to, let alone to provide a satisfying answer to
and the violent police (thus revealing the structural vio- them.
lence of the status quo) from which no inference should
be made about the essential non-violence of this form
of protest.45 3. Between Symbolic Politics and Real
Whatever one thinks of these concrete historical Confrontation
cases, Rawls and other liberals do not take up these Far from being clear-cut, the relation between civil dis-
important questions about violence and non-violence. obedience and violence is ambivalent and open to both
Rather, they are routinely sidestepped by the common interpretation and contestation. Even if one agrees, and
stipulation that civil disobedience is and has to be non- there are good reasons to do so, that civil disobedience is
violent. In the absence of further elaboration, however, in fact irreducibly symbolic, one should insist that, pace
making non-violence part of the definition of civil dis- Rawls and Habermas, it cannot simply be reduced to
obedience raises both theoretical and political worries. this dimension. Without moments of real confrontation
We should also be aware, however, that there might be (that will in many instances be seen and categorized
theoretical and political tradeoffs here. If we broaden the as violent) it would also lose its symbolic power and


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 Rethinking Civil Disobedience as a Practice of Contestation: Robin Celikates 43

actually turn into a mere appeal to the conscience of the belong to the repertoire of civil disobedience—is re-
powers that be and their respective majorities, probably garded as violent). And at the same time, it can only
losing any prospect of having practical effects. The ne- function as a real confrontation if those who practice it
cessity to go beyond the purely symbolic is therefore are aware of its irreducible symbolic dimension. This
grounded in the symbolic function of civil disobedience dimension seems to be forgotten by those on the mili-
itself; it is a condition of the latter’s effectiveness. tant left unhappy with the all too tame practice of civil
Civil disobedience is a form of political practice that disobedience, who are guided by the phantasmic idea
essentially—and more so than other forms of political that “the state” is a cold monster in front of us that we
practice—relies on stagings and (re-)presentations. This have to, and can, fight directly on the streets.51
is the case in at least two respects, both of which are What the false dichotomy between true militancy
tied up with moments of confrontation. First, as Martin and pure symbolism misses is precisely the complex-
Luther King, Jr. has observed, civil disobedience func- ity of civil disobedience as a genuinely political and
tions primarily as dramatization: democratic practice of contestation. Ultimately, what
the “civil” in civil disobedience refers to is thus not its
[Nonviolent] direct action seeks to create such a crisis “tame” or non-confrontational character but that it fol-
and foster such a tension that a community which has lows a political and not a military logic. Those who en-
constantly refused to negotiate is forced to confront the
gage in civil disobedience are acting as citizens, in many
issue. It seeks so to dramatize the issue that it can no
longer be ignored.49
cases (most evidently, in the case of undocumented mi-
grants and refugees) without being recognized as citi-
This symbolic effect of civil disobedience, however, zens by the state. In these ways they are reclaiming the
obviously depends on the efficacy of its confronta- political capacities of citizens that the state (or some
tional strategy. Secondly, the practice of civil disobe- other actor that acts in a state-like fashion) denies them
dience is always associated with symbolic struggles, or grants them only partially and that liberal political
first and foremost about the label “civil disobedience” theory can be seen as attempting to channel into existing
itself. These struggles are symbolic, but they are not institutions and the limited forms of extra-institutional
merely symbolic, since as we have already seen, they political action it opens up to citizens. Situated between
have tangible political and legal consequences. Further- the poles of symbolic politics and real confrontation,
more, they involve struggles about how practices of civil disobedience exposes the tension between institu-
real confrontation are framed by the public at large and tionalized, constituted, and constituting power, between
more specifically by the state. To name just a few re- “constitutional politics” and “insurrectional politics.”
cent examples, in Austria the SoKo Pelztier was created This tension, however, is at the basis of democracy—
to take action against the more or less civil disobedi- and it keeps open the dialectic between these two poles
ence of radical animal rights activists, who were then against the claim that it has been successfully resolved
charged with forming a criminal organization. In the and that no further struggles are necessary.52
UK, in the context of the Blair government’s anti-terror
legislation, animal rights activists were in a similar way
NOTES
explicitly categorized as terrorists and as a threat to na-
tional security. Similarly, in the Netherlands the Cyber Earlier versions of this article have been presented at
workshops and colloquia in Hannover, Giessen, Amsterdam,
Crimes Unit of the Dutch Police targets groups engaged
Nice, and Berlin. I would like to thank all participants for their
in digital disobedience, presumably because they pose a comments.
terrorist threat.50 A critical theory of civil disobedience 1. See, e.g., Abe Fortas, Concerning Dissent and Civil
cannot stand apart from the struggles about terminol- Disobedience (New York: New American Library, 1968).
ogy and framing that are so clearly part of any political 2. Anne Applebaum, “What the Occupy Protests Tell
Us About the Limits of Democracy,” October 18, 2011,
struggle. accessed May 27, 2013, http://www.washingtonpost.com/
In any case, what is crucial is that neither the aspect opinions/what-the-occupy-protests-tell-us-about-the-limits-
of dramatization nor the centrality of symbolic struggles of-democracy/2011/10/17/gIQAay5YsL_story.html.
and their entanglement with practices of real confronta- 3. See, e.g., Peter Gelderloos, How Nonviolence Protects
the State (Boston: South End Press, 2007).
tion can be adequately understood if civil disobedience
4. For current purposes I take this to be the discussion
is reduced to a purely symbolic protest and framed as about civil disobedience, as it was initiated primarily by John
essentially non-violent. It can only function as sym- Rawls and Ronald Dworkin.
bolic protest if it involves moments of real confronta- 5. Whether Occupy should be understood in terms of
tion, practices such as blockades and occupation, which civil disobedience is an interesting question that I will not be
able to discuss in this article. As will become clear, however,
will sometimes contain elements of violence (especially I tend to disagree with the view put forth by Bernard Har-
if the destruction of private property and the blocking court in “Political Disobedience,” Critical Inquiry 39 (2012):
of roads and buildings—forms of action which clearly 33–55, which emphasizes the discontinuities but seems to


C 2016 John Wiley & Sons Ltd.
44 Constellations Volume 23, Number 1, 2016

presuppose a narrow liberal understanding of civil disobedi- 12. Gandhi speaks of “vicarious” civil disobedience
ence; see 33, 55: “Civil disobedience accepted the legitimacy (which is, in his view, of course still conscientious in the
of political institutions, but resisted the moral authority of re- broad sense); see Mahatma Gandhi, Non-Violent Resistance
sulting laws. Political disobedience, by contrast, resists the and Social Transformation. Moral and Political Writings, vol.
very way in which we are governed: it resists the structure of 3 (Oxford: Clarendon Press, 1987), 93.
partisan politics, the demand for policy reforms, the call for 13. See Andrew Sabl, “Looking Forward to Justice.
party identification, and the very ideologies that dominated Rawlsian Civil Disobedience and its Non-Rawlsian Lessons,”
the post-War period. . . . Ultimately, what matters to the po- Journal of Political Philosophy 9 (2001): 307–30, 328.
litically disobedient is the kind of society we live in, not a 14. Ibid., 315–17.
handful of policy demands.” Arguably, this is also the case for 15. Rawls discusses King in Political Liberalism
those who subscribe to a more radical understanding of civil (New York: Columbia University Press, 1996), 250–1, in a
disobedience. somewhat laboured way, trying to make room for King’s civil
6. Earlier versions of this article have appeared in French disobedience within his theory despite the fact that King justi-
in Rue Descartes 77 (2013): 35–51, and in German in Gewalt- fied his actions not exclusively by reasons that are, according
befragungen: Beiträge zur Theorie von Politik und Gewalt, eds. to Rawls’s standards, “public,” but also by reference to com-
Franziska Martinsen and Oliver Flügel-Martinsen (Bielefeld: prehensive moral and religious doctrines.
transcript, 2013), 215–29. Some related ideas are also devel- 16. For a discussion, see Mathew Humphrey and Marc
oped in my contributions to On Global Citizenship: James Tully Stears, “Animal Rights Protest and the Challenge to Delibera-
in Dialogue, ed. David Owen (London: Bloomsbury, 2014), tive Democracy,” Economy and Society 35 (2006): 400–22.
and Global aCtIVISm: Art and Conflict in the 21st Century, 17. Martin Luther King, Jr., “Love, Law, and Civil Dis-
ed. Peter Weibel (Cambridge, MA: MIT Press, 2015). obedience,” in A Testament of Hope: The Essential Writings
7. John Rawls, A Theory of Justice (Cambridge, MA: and Speeches (New York: Harper Collins, 1991), 43–53, 47.
Harvard University Press, 1971), 364–6. 18. For a critique of this view see William E.
8. Jürgen Habermas, “Civil Disobedience. Litmus Test Scheuerman, “Recent Theories of Civil Disobedience: An
for the Democratic Constitutional State,” Berkeley Journal of Anti-Legal Turn?,” Journal of Political Philosophy 23 (2015):
Sociology 30 (1985): 96–116, 100. 427–49; I provide a partial response to Scheuerman’s criticism
9. See Gabriella Coleman, Hacker, Hoaxer, Whistle- in an article forthcoming in a special issue of Philosophy &
blower, Spy: The Many Faces of Anonymous (London: Verso, Social Criticism.
2015), Epilogue to the new paperback edition. 19. David Lyons, “Moral Judgment, Historical Reality,
10. Rawls, A Theory of Justice, 366. and Civil Disobedience,” Philosophy and Public Affairs 27
11. As I said, this line is not as easy to draw as Rawls (1998): 31–49, 33. See also Erin Pineda, “Civil Disobedience
seems to suggest. For Rawls, as for many other theorists, the and Punishment: (Mis)reading Justification and Strategy from
distinction between civil disobedience and conscientious ob- SNCC to Snowden,” History of the Present 5 (2015): 1–30.
jection is of great importance, not least because the first in- 20. Obviously, while not falling under the category of
volves illegal actions and those who engage in it thus, in his civil disobedience, riots can also be a politically motivated
view, justly face punishment whereas the second is, in liberal and even politically legitimate means of protest; see, e.g.
democracies, generally protected by law (in Germany even Ferdinand Sutterlüty, “The Hidden Morale of the 2005 French
by the Constitution) on the grounds of freedom of thought, and 2011 English Riots,” Thesis Eleven 121 (2014): 38–56; and
conscience, or religion. Rawls therefore tries to provide clear Etienne Balibar, “Uprisings in the Banlieues,” Constellations
criteria for separating the two: whereas the conscientious ob- 14 (2007): 47–71.
jector acts for deeply personal moral or religious reasons and 21. See also Kimberley Brownlee: Conscience and
does not seek to alter the government’s policies or the law, civil Conviction. The Case for Civil Disobedience (Oxford: Ox-
disobedience must be justified by public reasons and seeks to ford University Press, 2012), chap. 1.1, and Kimberley
effect such a change. Governments, understandably, wish to Brownlee “Race, Rioting and Civil Disobedience,” March
distinguish not only between legally protected conscientious 17, 2015, accessed April 1, 2015, http://www.thecritique.
objection and civil disobedience which is not so protected, but com/articles/race-rioting-and-civil-disobedience/.
furthermore between the standard nonselective form of con- 22. See, from a more historical perspective, Raffaele
scientious objection and what is called selective conscientious Laudani, Disobedience in Western Political Thought: A Ge-
objection, that is, the refusal to participate in a particular war nealogy (Cambridge: Cambridge University Press, 2013),
or military action. The latter is usually understood to be justi- chap. 4.
fied by explicitly political reasons and thus to resemble civil 23. Rawls, A Theory of Justice, 372–4.
disobedience. It is therefore generally concluded that it does 24. See Ronald Dworkin, A Matter of Principle
not fall under the legal protection enjoyed by conscientious ob- (Cambridge, MA: Harvard University Press, 1985), ch. 4:
jection proper. Consequently, governments claim the right to “Civil Disobedience and Nuclear Protest.” For a critical dis-
punish those members of the military who engage in the more cussion, see Robert E. Goodin, “Civil Disobedience and Nu-
limited form of refusal (just as they claim the right to punish clear Protest,” Political Studies 35 (1987): 461–6, and Richard
those who engage in the illegal acts involved in civil disobe- Norman, “Civil Disobedience and Nuclear Protest,” Radical
dience). The case of the Israeli reserve officers and soldiers Philosophy 44 (1986): 24–7.
who refuse to serve in the occupied territories and who are 25. On the first case, see Peter E. Quint, Civil Disobedi-
sometimes referred to as Refuseniks shows that these distinc- ence and the German Courts: The Pershing Missile Protests in
tions are extremely problematic from both a theoretical and Comparative Perspective (London: Routledge, 2008).
political point of view; see the discussion in Israel Law Re- 26. Rawls, A Theory of Justice, 355.
view 36 (2002), 3, Special Issue: Refusals to Serve—Political 27. See Tommie Shelby, “Justice, Deviance, and the
Dissent in the Israel Defense Force; and Rupert Read, “Re- Dark Ghetto,” Philosophy and Public Affairs 35 (2007): 126–
fusing to Hear the ‘Refuseniks’: A Cautionary Tale For Our 60, esp. 160: “It is crucial, given the duty of justice and on
Times, From Israel/Palestine,” Practical Philosophy 10 (2009): grounds of self-respect, that the ghetto poor make manifest
56–63. their principled dissatisfaction with the existing social order,


C 2016 John Wiley & Sons Ltd.
 Rethinking Civil Disobedience as a Practice of Contestation: Robin Celikates 45

either through politically motivated modes of deviance or in 45. See Graeme Hayes and Sylvie Ollitrault, La
some other recognizable way.” désobéissance civile (Paris: Presses de Sciences Po, 2012),
28. Rawls, A Theory of Justice, 372. chap. 4.
29. See Daniel Markovits, “Democratic Disobedience,” 46. See Joseph Raz, “Civil Disobedience,” in The Au-
Yale Law Journal 114 (2005): 1897–952, and for a more thority of Law (Oxford: Clarendon Press, 1979), 262–75, 267.
global perspective, James Tully, “On Global Citizenship,” in 47. A. John Simmons, “Disobedience and Its Objects,”
On Global Citizenship, ed. Owen, 3–100. Boston University Law Review 90 (2010), 1805–32, 1808.
30. William Smith, Civil Disobedience and Deliberative 48. Howard Zinn, Disobedience and Democracy. Nine
Democracy (London: Routledge, 2013), 9. Fallacies on Law and Order (Boston: South End Press, 2002)
31. Peter Singer, Democracy and Disobedience (Oxford: [originally published in 1968]). It is remarkable that Rawls
Clarendon Press, 1973), 90. even cites this work in A Theory of Justice, 364, n. 19, referring
32. Interestingly, this comes close to the epistemic role to Zinn as someone who “defined civil disobedience more
Niklas Luhmann attributes to protest: compensating the reflex- broadly,” without addressing the problems this raises for his
ivity deficits inherent in functionally differentiated modern so- own approach.
cieties; see his Risk: A Sociological Theory (Berlin: de Gruyter, 49. Martin Luther King, Jr., “Letter from Birmingam
1993), chap. 7, esp. 142–3. City Jail,” in A Testament of Hope, 289–302, 291.
33. Rawls, A Theory of Justice, 383. 50. On the possibilities and challenges opened up by dig-
34. Ulrich Rödel, Günter Frankenberg and Helmut ital disobedience, see Graham Meikle, “Electronic Civil Dis-
Dubiel, Die demokratische Frage (Frankfurt am Main: obedience and Symbolic Power,” Cyber-conflict and Global
Suhrkamp, 1989), 46. Politics, ed. Athina Karatzogianni (London: Routledge, 2008),
35. Etienne Balibar, “‘Rights of Man’ and ‘Rights of the 177–87; Molly Sauter, The Coming Swarm: DDOS Actions,
Citizen’: The Modern Dialectic of Equality and Freedom,” in Hacktivism, and Civil Disobedience on the Internet (London:
Masses, Classes, Ideas: Studies on Politics and Philosophy Bloomsburg, 2014); Robin Celikates, “Digital Publics, Digital
before and after Marx (London: Routledge, 1994), 39–60, 51. Contestation A New Structural Transformation of the Public
36. See Hannah Arendt, “Civil Disobedience,” in Sphere?,” in Transformations of Democracy, eds. Robin Ce-
Hannah Arendt, Crises of the Republic (New York: HBC, likates, Regina Kreide, and Tilo Wesche (London: Rowman &
1972), 49–102; Etienne Balibar, “Sur la désobéissance Littlefield, 2015), 159–74.
civique,” in Droit de cité (Paris: PUF, 2002), 17–22; and for a 51. For an example, see Gelderloos, How Nonviolence
more detailed discussion: Robin Celikates: “Ziviler Ungehor- Protects the State, 121: “A further delusion (expressed by paci-
sam und radikale Demokratie—konstituierende vs. konstitu- fists who want to appear militant and powerful) is that pacifists
ierte Macht?,” in Die Politik und das Politische, eds. Thomas do fight back, only non-violently. This is rubbish. Sitting down
Bedorf and Kurt Röttgers (Frankfurt am Main: Suhrkamp, and locking arms is not fighting, it is a recalcitrant capitula-
2010), 274–300. On Arendt’s notion of civil disobedience see tion. In a situation involving a bully or a centralized power
Andreas Kalyvas, Democracy and the Politics of the Extraor- apparatus, physically fighting back discourages future attacks
dinary: Max Weber, Carl Schmitt, and Hannah Arendt (Cam- because it raises the costs of oppression incurred by the oppres-
bridge: Cambridge University Press 2008), chap. 9. See also sor. The meek resistance of nonviolence only makes it easier
Claire Moulin-Doos, CiviC Disobedience: Taking Politics Se- for the attacks to continue. Nonviolent practice is ineffective
riously (Baden-Baden: Nomos, 2015). and self-serving. We are in the midst of a war, and neutral-
37. See, e.g., Iris Marion Young, “Activist Challenges ity is not possible.” This seems to be precisely the kind of
to Deliberative Democracy,” Political Theory 29 (2001): mistake Wendy Brown diagnoses with regard to a problematic
670–90; and Smith, Civil Disobedience and Deliberative tendency in the Occupy movement: “The police, the state, the
Democracy. one-on-one collisions with what was taken to be the face of
38. James Tully, Public Philosophy in a New Key, vol. power, became distracting to the point of absorption, which I
II: Imperialism and Civic Freedom (Cambridge: Cambridge want to call a certain Oedipalization, and a personification of
University Press 2009), 206, 158. power in the father, the state, the cops, or the chancellor of a
39. Hugo A. Bedau, “On Civil Disobedience,” Journal university. Once you do that, you’ve lost the big picture and
of Philosophy 58 (1961): 653–65, 656. lost the big agenda.” (Robin Celikates and Yolande Jansen,
40. On the normative logic behind urban riots see Shelby, “Reclaiming Democracy. An Interview with Wendy Brown on
“Justice, Deviance, and the Dark Ghetto,” 156, and Sutterlüty, Occupy, Sovereignty, and Secularism,” Krisis 31 (2012): 68–
“The Hidden Morale”; combining the celebration with the 76, 73).
criminalization of protest, follows the logic of repressive tol- 52. See Balibar, “Sur la désobéissance civique”; Balibar,
erance analyzed by Herbert Marcuse in his “Repressive Toler- “‘Rights of Man’ and ‘Rights of the Citizen.’”
ance,” in Robert Paul Wolff, Barrington Moore, Jr. and Herbert
Marcuse, A Critique of Pure Tolerance (Boston, MA: Beacon Robin Celikates is Associate Professor of Political
Press, 1965), 81–117.
41. For an extensive account, see Quint, Civil Dis- and Social Philosophy at the University of Amster-
obedience. dam, where he also directs the research project Trans-
42. See Andreas Fischer-Lescano, “Sitzen ist Gewalt,” formations of Civil Disobedience. He is a member of
Der Freitag, March 31, 2011. To be fair, Habermas has been the Amsterdam Centre for Globalisation Studies and
a trenchant critic of this legal expansion of the notion of
an Associate Member of the Institute for Social Re-
violence.
43. Gelderloos, How Nonviolence Protects the State, search in Frankfurt am Main. His most recent publi-
2, 7. cations include the co-edited volumes Transformations
44. It is also worth remembering that the movement has of Democracy: Crisis, Protest, and Legitimation and
been, perversely, criticized as violent by its opponents for this The Irregularization of Migration in Contemporary Eu-
reason; see James A. Colaiaco, “Martin Luther King, Jr. and
the Paradox of Nonviolent Direct Action,” Phylon 47 (1986): rope: Detention, Deportation, Drowning (both Rowman
16–28. & Littlefield 2015).


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