Civil Disobedience and Conscientious Objection
- William SmithWilliam SmithDepartment of Government and Public Administration, Chinese University of Hong Kong
- and Kimberley BrownleeKimberley BrownleeSchool of Law, University of Warwick
Civil disobedience and conscientious objection are distinct but related social practices that display people’s opposition to specific laws, policies, directives, or schemes. In general, these two practices arise from people’s deeply held commitments. Civil disobedience is more overtly communicative and political than conscientious objection. Civil disobedience is also, almost by definition, a breach of law, which people engage in to push for changes in either governmental or nongovernmental practices. Conscientious objection, by contrast, does not always break the law: sometimes it is a legally protected form of nonconformity. It is also less overtly political than civil disobedience, stemming as it does from people’s desire not to participate in practices they oppose, rather than from their ambition to change those practices. Both practices can be morally justified under specific conditions that, among other things, include doing only limited harm to other people. Moreover, under even more specific conditions, both practices could be said to be protected by moral rights. Civil disobedience and conscientious objection generate pressing normative and political challenges concerning the nature of the rule of law, respect for the rule of law, conditions for deliberative democracy, equality before the law, policing, adjudication, and punishment.
Civil disobedience and conscientious objection are social practices motivated by moral and political beliefs. Civil disobedience is often characterized as a conscientious act of illegal protest that people engage in to communicate their opposition to law or government policy. Famous examples include Gandhi’s Salt March in 1930, Rosa Parks’s refusal in 1955 to give up her bus seat in segregated Alabama, and Aung San Suu Kyi’s sustained campaign for democracy in Myanmar/Burma. These disobedient acts contrast with ones that are not civilly disobedient, such as radically violent protests, riots, and acts of terrorism.
Conscientious objection is usually described as a principled act of nonconformity with a directive or legal order that people engage in for reasons of personal morality. Typical examples include the soldier’s refusal to fight in what he believes is an unjust war and the medical doctor’s refusal to perform legal abortions because she believes the procedure is deeply immoral. These refusals contrast with ones that are strategic, mercenary, or narrowly self-serving, such as a doctor refusing to perform abortions merely because her supervisor objects to them.
Both civil disobedience and conscientious objection belong to a broader category of conscientious disobedience, which we define here as nonconformity with a law, injunction, or formal directive for principled motives to communicate convictions to particular addressees. This broader category of conscientious disobedience is informed by a certain conception of conscientious action that requires that a person’s convictions and her conduct be consistent, and that her judgment about her own conduct align with her judgment about others’ conduct. On some accounts, conscientious conviction also requires that we not seek to evade the consequences of acting on our convictions and that we attempt to engage others in dialogue about our convictions.1 In what follows, we identify a link between civil disobedience and conscientious objection based in a communicative conception of conscientious action, which helps to shed light on a philosophical literature that is marked by significant disagreement about the similarities and differences between these types of conscientious disobedience.
Section “Conscientious Disobedience” examines the nature of these two forms of disobedience, drawing out their differences and similarities. In general, civil disobedience is seen as the more political of the two practices since people tend to use it to achieve political reform. By contrast, conscientious objection, while it can have a political dimension, does not aim centrally to bring about reform. At the same time, both civil disobedience and conscientious objection can be seen as modes of action that are characterized, at least to a certain degree, by an intent to communicate convictions to a given audience.
Section “Evaluating Conscientious Disobedience” explores the fundamental questions that civil disobedience and conscientious objection raise about the relationship between citizens and political authority. For instance, what is the normative status of these two practices, particularly in liberal democratic societies? Answers to this question typically focus on moral or political justifications for these practices. Many thinkers argue that conscientious disobedience has socially beneficial consequences, such as triggering public deliberation about marginalized issues or remedying some social injustice. Other thinkers focus on citizens’ moral rights to engage in conscientious forms of disobedience independent of its social benefits.
Section “Engaging with Conscientious Disobedience” explores how the state should respond to conscientious disobedience. For instance, is it appropriate to subject people who breach the law conscientiously to legal sanctions? Whereas some thinkers argue for harsh sanctions for what they see as undemocratic, if not antisocial, behavior, many other thinkers argue for tolerant approaches, such as non-prosecution, light sentencing, and a moral claim against the imposition of punishment or penalties. They also highlight the many ways that institutional authorities, police, prosecutors, and lawmakers can accommodate conscientious law-breakers. These philosophical debates are practically significant, especially given that police, courts, and governments often show intolerance toward some types of conscientious law-breaking even in societies that pride themselves on their liberal institutions and traditions.
Let us begin with a conceptual specification of civil disobedience:
Civil disobedience is a constrained, communicative protest, contrary to law, that people engage in to support a change in governmental or nongovernmental practices.
The constrained nature of civil disobedience is usually, though not universally, understood in terms of nonviolence. Civil disobedience is associated with a tactical repertoire of typically nonviolent acts that includes, but is not limited to, sit-ins, occupations, trespassing, blockades, lock-downs, banner drops, illegal street theater, and jail solidarity. Civilly disobedient acts can be either direct or indirect. In other words, they can involve either a direct refusal to conform with the law that is the immediate object of the protest, or a refusal to conform with noncontentious laws as a means of indirectly expressing opposition to the object of the protest.
Some thinkers hold that civil disobedience can only target governmental bodies and practices (Raz, 1979, p. 264). But, this gives an unduly narrow picture of its targets. To be sure, usually, dissenters direct their civil disobedience against public authorities that have the capacity to enact collective decisions through laws, policies, or directives at local, national, or transnational levels. Nevertheless dissenters can also engage in civil disobedience against nongovernmental agents, such as universities, corporations, and churches, whose lawful (or unlawful) practices they oppose. Of course, such protests often also intend to criticize the legal framework that tolerates such practices (Brownlee, 2013, 2007, p. 180).
The claim that civil disobedience is a communicative form of protest is widely accepted within the philosophical literature. Tony Milligan notes that a majority of commentators affirm what he calls the “communication thesis,” which holds that civil disobedience is to be understood primarily as a form of address or appeal (Milligan, 2013, p. 18). The accounts of diverse thinkers such as Rawls (1999), Singer (1973), Bedau (1991), Habermas (1985), and Arendt (1972) conceptualize civil disobedience as a means of articulating oppositional arguments in the public sphere. The communication thesis is not, however, universally accepted. Milligan notes that the thesis may lead to what he describes as “the question of exclusions,” which arises insofar as our conceptual framework leads us to deny that certain forms of principled activism should be treated as civilly disobedient (Milligan, 2013, p. 14). He considers forms of activism where the objective is primarily to disrupt or prevent a contentious practice, rather than to communicate opposition to that practice in the public realm. For example, radical environmental activists sometimes target contested development projects by covertly sabotaging machinery or imposing other forms of costs on developers. If we nonetheless insist on limiting civil disobedience to overtly communicative forms of protest, it might be difficult to categorize such activism as civilly disobedient (Welchman, 2001).
The communication thesis nonetheless retains considerable appeal in the conceptual specification of civil disobedience. First, the thesis is compatible with themes explored in the writings of prominent figures in the civil disobedience tradition. Gandhi and Martin Luther King, for instance, both defend civil disobedience as a means of reaching out to an opponent in order to provoke dialogue and to search for a reconciliation of perspectives. The Gandhian perspective insists that civilly disobedient agents must adopt a dialogic orientation toward their opponents, such that “the adversary is treated as worth hearing, as another person or group of persons with a viewpoint that, while different from one’s own, is not inferior by virtue of being different” (May, 2015, p. 75). King, for his part, held that the role of civil disobedience is “to create such a crisis and establish such creative tension that a community that has constantly refused to negotiate is forced to confront the issue” (King, 1991, p. 71). There is, to be sure, some doubt about the extent to which Gandhi and King adopt a consistent position in their writings, as both flirt with the idea of disruptive protest as both a communicative and a noncommunicative strategy.2 The prominent place of communicative intent in their writings nonetheless attests to its historical and practical relevance to civil disobedience.
Second, the communication thesis recognizes that certain forms of principled protest and resistance are necessarily excluded from the category of civil disobedience. This is because it is necessary to provide an account of the civility of this practice, which enables us to contrast it with other forms of principled disobedience. Civility can be associated with the conscientious motivations of its practitioners, particularly their aim to publicize the reasons for their protest so as to persuade the relevant audience to accept their position. The aim of reaching out to an audience in this way places certain constraints on civil disobedients’ conduct, because overly violent or forceful forms of expression may frustrate efforts to bring about a lasting change in law or societal practices. Civil disobedients have reasons to at least attempt to persuade others of the merits of their views rather than achieve change through force; this is partly because the strength of their message may be lost if it is drowned out by aggressive tactics and partly because their appeal rests on treating the addressees as interlocutors with whom reasoned discussion is possible. The case for militant resistance that goes beyond the constraints associated with civility may be more compelling if persuasion through dialogue appears to be, or is shown to be, impossible (Rawls, 1999, pp. 322–323).
Third, the range of activity compatible with communicative intent is quite broad. In fact, the communication thesis helps to make sense of the pervasive disagreement in the philosophical literature about which particular constraints on conduct are to be associated with civil disobedience including: publicity, nonviolence, appeal to public political principles, fidelity to law, and willingness to accept punishment.
Consider, for instance, the much-discussed definition advanced by Rawls, according to which civil disobedience is “a public, non-violent, conscientious yet political act contrary to law usually done with the aim of bringing about a change in law or policies of government” (Rawls, 1999, p. 320). Rawls adds the further requirements that civil disobedients should give due notice of their protest, should limit their appeal to public political principles, and should abstain from coercive or intimidatory tactics that aim to force the hand of public authorities. One way of making sense of Rawls’s position is that the constraints reflect a certain conception of how civil disobedience functions as an appeal in the special circumstance of a “nearly just society” (Rawls, 1999, p. 319). In a society within which the majority is both committed to justice and open to the possibility that its decisions reflect or entrench injustice, it makes sense to limit civil disobedience to tactics that enhance its credentials as a respectful appeal to that majority. For instance, Rawls contends that civil disobedience must be nonviolent because “to engage in violent acts likely to injure and to hurt is incompatible with civil disobedience as a mode of address” (Rawls, 1999, p. 321). In other words, violence fails to respect the civil liberties of the audience and thus obscures the clarity and force of any appeal to their sense of justice.
The reticence of some critics to accept such constraints can be interpreted not as a rejection of the basic claim that civil disobedience is a communicative act but as a reflection of disagreement about the behavior that is compatible with communicative intent. Kimberley Brownlee, for example, departs from Rawls by allowing that certain forms of limited violence might be compatible with civil disobedience as a form of address. This is because the concept of violence includes a range of acts that can be major or minor in their impact on persons or property, as well as acts that might risk but not necessarily cause injury or damage. It is therefore implausible to contend that a modest or noninjurious act of violence would necessarily infringe the civil liberties of our addressees (Brownlee, 2012, p. 198). This line of thought suggests a more permissive attitude toward violence even in the special context of a nearly just society.
The Rawlsian view can also be challenged on the grounds that constraints on conduct that might make sense within the special setting of a nearly just society are less appropriate in contexts that more closely resemble real world conditions. The requirement to give due notice, for instance, is reasonable in nearly just societies where public authorities could be trusted not to take steps to prevent protest from occurring but not in societies that make clear that they oppose peaceful protest that departs from lawful behavior.
Peter Singer focuses on a different issue by contesting Rawls’s claim that civil disobedience must incorporate an appeal to public political principles. Rawls insists on this condition because it fits well with his account of civil disobedience as a “stabilizing device,” which functions to publicize particularly serious departures from a society’s prevailing conception of justice. Singer argues that this condition is inappropriate in societies that either lack a settled conception of justice or hold a conception that fails to address important issues of moral concern. He thus offers a broader conception of civil disobedience as a plea to a democratic majority to reconsider its decisions, which allows protesters to draw on a potentially wide range of ethical ideas in defending their aims and conduct (Singer, 1973, pp. 88–90).
These criticisms of Rawls are compatible with the thought that civil disobedience must observe some constraints on conduct if it is to function as a form of address. For instance, Daniel Markovits offers a nuanced perspective on coercion in his republican theory of civil disobedience. He agrees with the Rawlsian view that protesters should not attempt to impose a specific policy outcome on public authorities because such a strategy would be incompatible with the broadly democratic conception upon which the republican defense of civil disobedience rests. But he departs from the Rawlsian view that coercion is necessarily incompatible with civil disobedience as a mode of address, by allowing that a moderate degree of force might be legitimate as a means of securing a hearing for defeated or marginalized perspectives. As he puts it, “although democratic disobedience may not force a sovereign to change course, it may (try to) force the sovereign to reconsider” (Markovits, 2005, p. 1942; italics and parenthesis in original). The communication thesis thus enables us to understand the reasons behind the disagreements about conduct that permeate the literature, which might otherwise lead us to despair at the prospects for any meaningful dialogue about the nature of civil disobedience.
Now let us consider the practice of conscientious objection:
Conscientious objection is the act of not conforming with some directive or legal order for reasons of personal morality.
In a nuanced way, conscientious objection—as an act of objecting—is also a communicative act of disobedience, which a person engages in to disassociate herself from actions that are incompatible with her moral convictions as she understands them. As an objection, this differs from noncommunicated disagreement or purely evasive disobedience.
Conscientious objection is associated with such actions as citizens refusing to serve in armed forces or military conflict, medical professionals’ refusing to provide certain forms of treatment or service, and public officials’ refusing to discharge certain duties. It can also take the form not of refusing to act but of defiantly acting, such as a doctor defiantly providing a medical service that she has been instructed to withhold.
Conscientious objection differs from civil disobedience in several ways. First, it is not necessarily an unlawful act, but it does entail at least nonconformity with an injunction, directive or norm short of law. Second, it can only be carried out in a direct fashion against the dictum that the objector opposes. Third, most importantly, conscientious objection, unlike civil disobedience, is not necessarily carried out as a means of protesting against or reforming the practice that the objector opposes, although—as shall be discussed—it can implicitly or explicitly raise the issue of exemptions.
The claim that conscientious objection is a communicative act is much less widely accepted in the philosophical literature than the claim that civil disobedience is a communicative act. This may reflect the fact that conscientious objection is often defined as an act that is in some sense not public in its aims or conduct, that is to say, not performed in public; it is not done either with fair notice to society and its authorities or with the aim of drawing the public’s attention. Joseph Raz, for instance, writes that “conscientious objection is a private act, designed to protect the agent from interference by public authority” and to assert “immunity from public interference with matters he regards as private to himself” (Raz, 1979, p. 276). That said, the communicative dimensions of conscientious objection can be unpacked by reflecting on difficulties with this definition, particularly the claim that it is a “private” act.
First, it is mistaken to conceptualize conscientious objection as private in the sense that it is carried out in an evasive or clandestine manner. Conscientious objection, unlike the related notion of conscientious evasion, is carried out by agents on the assumption that public authorities are aware (or may become aware) of their nonconformity. Emanuela Ceva illustrates this difference through a contrast between parents who hide their refusal to vaccinate their children and parents who declare their refusal to vaccinate their children. The parents in the latter case “communicate to their fellow citizens the impossibility of their complying with a democratically enacted decision that demands something of them that goes against their moral integrity” (Ceva, 2015, p. 42).
Second, it is misleading to think about conscientious objection as private in the sense of a purely private conviction that clashes with societal laws, requirements, or norms. There is, of course, an important sense in which conscientious objection does place an individual in an oppositional relation to mainstream views, but this should not obscure the fact that her convictions have been forged in dialogue with others. Michael Walzer suggests that “it is chiefly in ideological sects, parties and movements that commitments are made that later lead to conscientious objection” (Walzer, 1970, p. 139). The doctor who refuses to perform an abortion on religious grounds, for instance, is acting on the basis of convictions that have emerged through ongoing interaction with others in religious communities. Furthermore, such communities are likely to devote considerable attention to the moral complexities that arise in clashes between the requirements of secular society and the dictates of faith. It is, for Walzer, a matter of great significance that the convictions expressed through conscientious objection typically “follow from some more or less consistent pattern of interpersonal commitment and group action” (Walzer, 1970, p. 141). This is partly because an act of conscientious objection is almost always an implicit or explicit invitation to engage in dialogue, addressed to those who profess to share our convictions, which may elicit responses in the form of expressions of solidarity or—perhaps less commonly—sympathetic criticism.
Third, it is a mistake to think about conscientious objection as private in the sense that it has no aspirations to impact upon broader legal or societal arrangements. The temptation to think in this way arises because conscientious objectors often do not offer a direct challenge to a contentious law or practice but rather seek to avoid the personal implications of conformity. So, for example, a registrar who refuses to officiate a same-sex marriage does not challenge the legislation that allows for such unions, if her objective is merely to gain permission not to be a participant to a ceremony that she opposes on conscientious grounds.3 The act nonetheless retains an important public dimension because it is either an implicit or explicit appeal to establish a de jure or de facto exemption on the grounds of conviction. The act of conscientious objection thus has the often foreseen effect of promoting deliberation about the important issue of legal or societal accommodation for conscientious conviction. This is because a conscientious objector is not merely asking to be left alone, but to be given some sort of guarantee that his or her subjective moral integrity will not be compromised through compulsory enrolment in practices he or she perceives as objectionable. The answer that addressees give to this request will have consequences beyond those for the agent in question, as it will in all likelihood establish a legal or societal precedent for the treatment of relevantly similar persons.
The upshot of these considerations is that conscientious objection, unlike conscientious evasion or other forms of personal disobedience, has a constitutive communicative dimension.4 There may nonetheless be some uncertainty about why an agent prefers to communicate his or her convictions through conscientious objection rather than civil disobedience. This is particularly relevant if we are inclined to think that conscientious conviction is best served through conduct that not merely disassociates an agent from perceived wrongdoing, but which also articulates a direct or indirect challenge to the perceived wrongdoing itself. This is a weighty consideration, which offers some support to the intuition that civil disobedience is often more worthy of moral praise than conscientious objection. There are, though, two considerations that can support the decision of an agent to prefer conscientious objection over civil disobedience in certain contexts. First, civil disobedience may have no reasonable prospects for success given the prevailing climate of opinion in society, such that securing an exemption from the contentious law or practice—particularly on religious grounds—may be a more realistic goal. This consideration is anticipated by Rawls, who notes that conscientious objectors tend to be “less optimistic than those undertaking civil disobedience and […] entertain no expectation of changing laws or policies” (Rawls, 1999, p. 324). Second, conscientious objection may be a more appropriate course of action than civil disobedience is in light of the facts of moral pluralism within society. This consideration is explored by Ceva, who discusses the case of a pro-life doctor who “thinks it is wrong for him to perform abortions but, as he recognizes the uncertainties concerning the status of the fetus, he may not think this is equally wrong for any other doctor” (Ceva, 2015, p. 44). These concerns may lead conscientious agents to favor conscientious objection as a less confrontational mode of communication than civil disobedience.
Evaluating Conscientious Disobedience
In evaluating these two types of conscientious disobedience, thinkers tend to ask two key questions. First, when, if ever, are people morally justified in resorting to these practices? Second, regardless of their justifiability, do people have a moral right to engage in these practices rightly or wrongly under certain conditions?
The Justification of Civil Disobedience
The attempt to justify civil disobedience must reckon with a number of objections that can be leveled against this practice. First, let us consider the detrimental consequences that civil disobedience might have on relations of civic friendship in a democratic society. For instance, civil disobedience often has negative impacts on public order, imposes burdens on third parties and public officials, and has a polarizing effect on democratic debate. These negative impacts might support the view that civil disobedience should be rejected in favor of lawful modes of advocacy, at least on the (not uncontroversial) assumption that lawful forms of advocacy are likely to be less divisive or harmful than unlawful forms of advocacy.
Replies to this concern tend to highlight the potential that civil disobedience has to achieve particular societal benefits, which can override the case against it. Ronald Dworkin, writing in the context of the civil rights movement and the anti–Vietnam War movement in the United States, argues that civil disobedience often entails the violation of law that is of uncertain constitutional validity. This can have the beneficial consequence of either prompting courts to address this uncertainty or, in conditions where the issue is not ripe for adjudication, stimulating societal deliberation about the issues at stake (Dworkin, 1978, pp. 206–222).
In a similar vein, many authors explore the potential benefits of civil disobedience as a means of contributing to democratic debate. Jürgen Habermas explores the role of civil disobedience as a means of publicizing novel interpretations of constitutional principles in changing social and political circumstances (Habermas, 1996, p. 384). William Smith defends civil disobedience as a means of highlighting exclusions and inequalities that question the fairness of democratic debates and decisions (Smith, 2004). Daniel Markovits notes the potential that civil disobedience has to rectify deficits in democratic discussion by turning the community’s collective attention to topics that are being ignored or actively suppressed (Markovits, 2005). But, of course, there is no guarantee that civil disobedients will champion topics that are generally being neglected or that the topics they champion, if neglected, ought to be resurrected for further debate. That said, their activism may stimulate defenders of other views to enter the political arena, thereby bringing to the fore those topics that do need close discussion.
These responses typically support the resort to civil disobedience by drawing attention to certain advantages it may enjoy over lawful advocacy, such as its capacity to generate publicity or to signal the urgency of the protesters’ cause. Also, the case for civil disobedience seems to be much stronger when reasonable lawful methods have been attempted and found wanting. Rawls, for instance, holds that civil disobedience can have a stabilizing effect by inhibiting departures from justice and rectifying them when they occur, at least when civil disobedients exhaust all legal options first and coordinate their efforts with other minority groups so as not to overburden the ear of the community to whose sense of justice they appeal (Rawls, 1999, pp. 326–331). When other, legal means have been exhausted, civil disobedience may be the only suitably constrained way to remedy a (perceived) injustice.
A related objection is that civil disobedience might encourage or incite other parties to engage in more harmful types of activity. Replies tend to note both that civil disobedience is, by nature, a constrained breach of law and hence should bring with it comparatively modest risks in itself and, moreover, that civil disobedients are not themselves responsible for other people choosing to engage in less civil forms of disobedience. They may bear some responsibility when they decide not to coordinate their activities with other conscientious protesters (see Rawls, 1999, pp. 328–329), but they are not accountable for others’ decision to break the law.
A third objection focuses less on the deleterious consequences of civil disobedience and more on its expressive dimension. The thought is that civil disobedience manifests a disrespectful and arrogant attitude, in the sense that protesters appear to privilege their moral convictions over the outcome of a democratic process. There are two potential responses to this concern. The first is to suggest that civil disobedience can be justified as a remedial measure to counter deficits or distortions in the democratic process (Weinstock, 2016). The second response is that civil disobedience is neither disrespectful nor arrogant, because it is an attempt to communicate rather than impose convictions on others. The constraints on conduct associated with communicative intent embody an appropriate respect both for the democratic process and for the status of its participants as free and equal citizens (Moraro, 2014).
A fourth objection is that civil disobedience is typically doomed to fail, because it is an essentially symbolic protest that eschews significant acts of force or violence. As such, it may appear to be a somewhat impotent and self-indulgent gesture in the face of injustice (Barry, 1973, p. 153). A first reply is to focus on success stories where civil disobedients have effectively redressed injustices and furthered democratic aims. The paradigm examples of civil disobedience are cases in point: Gandhi’s resistance against British rule in India; Rosa Parks, Martin Luther King Jr., and the civil rights movement against segregation in the United States; Nelson Mandela’s and the ANC’s thirty-year push for democracy in South Africa (which did include some violent acts of protest); and Aung San Suu Kyi and the NLD’s equally long struggle for democracy in Myanmar/Burma. A second reply focuses on the relationship between the constrained conduct of civil disobedience and the achievement of just and stable outcomes. Andrew Sabl, for instance, offers a “forward-looking” defense of civil disobedience, which presents it as more likely to preserve conditions for future cooperation between oppressed and oppressors than revolutionary violence (Sabl, 2001). A third reply focuses on the fact that, intuitively, constrained breach of law seems most defensible in the most hostile conditions, where dissenters seem least likely to succeed in airing their views or achieving change through this or any other constrained means. Rawls, for one, holds that, in an unjust or corrupt system, if any means to overturning that system are justified, surely (nonviolent) civil disobedience is justified (Rawls, 1999, p. 319). In such cases, among other things, civil disobedience can be an important outlet for the expression of frustration or a means for subjugated agents to reaffirm their sense of dignity and self-respect through resistance (Smith, 2013, pp. 45–47).
A fifth objection is that civil disobedience might be employed in pursuit of frivolous or unjust causes, or carried out for the wrong sort of reasons. In response, the justification of civil disobedience might be thought to depend, at least in part, on the credibility and urgency of its cause. In Rawls’s view, for example, such a cause is properly responsive to one of the two principles of justice, which guarantee all members of the society equal rights and civil liberties and fair equality of opportunity (Rawls, 1999, pp. 326–327). On broader accounts, disobedients’ causes may track a range of important values that cannot be subsumed easily under Rawls’s two principles of justice, including animal welfare, non-members’ interests, and the environment. Concerning motives, according to many thinkers, civil disobedients must support their good cause for the right reasons, and not for merely extraneous reasons such as enjoying the experience of protest or self-serving reasons such as promoting their personal interests. However, some other thinkers hold that such selflessness is too strong a condition for justified civil disobedience. In their view, justified disobedience could be animated by an attitude of “not in my backyard,” such as when people protest against the construction of a new prison in their neighborhood (Celikates, 2013). Related to that, civil disobedients should engage in particular modes of suitably constrained illegal protest that align appropriately with their communicative aims. When these various conditions are met, most thinkers are bound to concur that civil disobedience is justified.
The Justification of Conscientious Objection
To be justified, a conscientious objector, like the civil disobedient, must have a good cause and be properly animated by that cause when he or she objects to a given directive. To meet these two conditions, not only must the conscientious objector believe that either the general character of the law or directive is morally wrong or that it extends to cases it should not (Raz, 1979, p. 263) but also he or she must be broadly correct in his or her views: that is, the objector must have undefeated moral reasons for taking this stance. Since, however, conscientious objection does not aim to produce political reform, he or she does not have to pass the additional, demanding tests for justification that are often said to apply to civil disobedience, such as (1) likelihood of good consequences, (2) some coordination with other minority-opinion holders, and (3) declaration of the reasons for the protest as well as, on some views, self-identification.
That said, conscientious objection does touch the lives of individual people, usually when those people are the intended recipients of the goods and services that the objector refuses to provide (or refuses to withhold). Sometimes, the impact that the objector’s refusal has on other people is modest: the customer who wants to buy alcohol may have to go to a different shop if this clerk refuses to process the sale of alcohol. But, in other cases, the objector’s impact on others by denying them goods or services, such as medical treatment or a prescription, matters greatly to the recipients, even if the objector has a good pro tanto reason to refuse because reasonable people may disagree about the moral acceptability of the goods or services. The refusal may delay proceedings such that the persons cannot receive the service; or it may cause them to feel stigmatized and reluctant to request the service elsewhere.
Thus, the justificatory constraints on conscientious objection pertain centrally to the negative impact that the objection has on immediately affected persons as well as the broader ramifications of refusals in that domain.
We can distinguish two types of objection: ones that react to the content of the dictum and ones that react to the identity of affected parties. Mark Wicclair argues that there is a salient moral difference between a doctor refusing to provide a service such as abortion, on the one hand, and a doctor refusing to provide that service to a certain group of patients, such as African Americans, Muslims, lesbian women, or unmarried women, on the other hand (Wicclair, 2011). Only the latter is directly discriminatory. However, the former may be indirectly discriminatory since only women seek abortions and, hence, a doctor refusing to perform abortions potentially puts a disproportionate burden on women.
Both of these types of objections differ from a third type, which Wicclair does not discuss, which is driven by formal or circumstantial features, such as a doctor refusing to provide abortions on certain days of the week or in facilities that provide other services that the doctor opposes, such as euthanasia. Of the three types, this last may be the easiest to justify, other things being equal, though it, too, can manifest unjust discrimination.
Questions about justifying conscientious objection arise most vividly in the context of war. Rawls, for one, focuses his discussion of conscientious refusal on the context of war, arguing that people’s justified refusals to go to war, while they are not political acts (since they do not take place in the public forum in the way civil disobedience does) are based on the same principles of justice, which include roughly the principles of jus ad bellum and jus in bello (Rawls, 1999, pp. 331–335). In a similar vein, Jeff McMahan proposes that not only conscripts but voluntary, active-duty soldiers should also be allowed to selectively conscientiously object against fighting in wars that they have good reason to believe are unjust (McMahan, 2013). Indeed, in such cases, soldiers have not so much a moral justification as a moral duty to refuse to fight.
The Right to Civil Disobedience
In liberal philosophy, a right of conduct is typically understood to give people a protected sphere of autonomy in which to behave unencumbered by third parties even when they act wrongly. Both the right to civil disobedience and the right to conscientious objection, if credible, would give their holders the right to engage in the putatively wrongful conduct of disobeying an order or formal rule, on the ground that the disobedience falls within a protected moral sphere of personal autonomy.
According to Joseph Raz, people have a moral right to civil disobedience to the extent that it reclaims political participation rights that should be respected by their society (Raz, 1979). People’s moral right to civil disobedience is restricted, therefore, to illiberal regimes. In liberal regimes, people’s rights to political participation are, by hypothesis, adequately protected by law. In other words, in such a society, the law already provides people with adequate opportunities for political participation within the law. Therefore, in such a society, their political participation rights cannot ground a right to civil disobedience.
Raz’s regime-centric view of the right to civil disobedience confronts several objections. First, in illiberal regimes, only those people whose rights are not adequately respected can claim they have a moral right to engage in civil disobedience. Other people, whose own participation rights are not compromised, have no moral right of solidarity to engage in civil disobedience with them in the way that, for example, morally sensitive white people in pre–civil rights America might have civilly disobeyed segregation laws in collaboration with black people to undo generations of bigotry and division. In reply, Raz might argue that in an illiberal regime no one’s participation rights are adequately protected because not everyone is given a seat at the table. The people who are granted participation rights are unable to engage fully with the people who are denied such rights and, hence, neither group can participate effectively to adopt policies that serve their own and others’ interests.
Second, in liberal regimes, resorting to civil disobedience need not imply that dissenters are attempting (illegitimately) to reclaim participation rights. Their disobedience can instead be a response to the operational realities of politics (i.e., that decisions must be made and votes taken before minorities can fully make their case). In other words, the right to political participation either cannot or should not be limited to legal methods (Lefkowitz, 2007). One limitation of this approach is that it does not generate a universal moral right to engage in civil disobedience in liberal democratic regimes; it generates such a right only for members of persistent, vulnerable minorities who are unable to make their case fully before decisions are made.
Third, in rooting the right to civil disobedience in participation rights, Raz risks delimiting unduly the range of causes that people could raise through civil disobedience. In other words, his view risks making participation-rights-issues the only issue that people could legitimately advance under their right to civil disobedience. And this would clash with Raz’s liberal commitment to rights as protecting a sphere of conduct in which to act wrongly—that is a sphere in which to advance a cause that is neither meritorious nor related to participation rights.
Fourth, a regime-centric account struggles to accommodate new forms of disobedience such as globalized disobedience. In principle, Raz’s account could be extrapolated to the global context in a fully functioning system of international law where the liberality or illiberality of that global system determined whether people had a moral right to civilly disobey in defense of meaningful participation rights. However, Raz’s account cannot allow for a right to engage in either civil disobedience in solidarity as a visitor to another country, or in home-based civil disobedience oriented toward another state’s policies.
Finally, the moral right to civil disobedience could be rooted more plausibly and profitably in something other than participation rights. It could be rooted more humanistically in persons’ needs to have a protected sphere in which to express and communicate their personal convictions through conduct that aligns with those convictions. This defense starts with the observation that we human beings are expressive creatures with capacities for agency, dignity, and deep belief (Brownlee, 2012).
To this argument, some thinkers add a further, double-harmony argument for a moral right to civil disobedience: society’s interests in the enhancement of democratic deliberation. And, when disobedients’ causes are well founded, they may serve society by exposing or rectifying a moral wrong, thereby acting as a stabilizing force (Markovits, 2005; Rawls, 1999, p. 336; Brownlee, 2012).
The Right to Conscientiously Object
In professional contexts, many liberal societies recognize a right to conscientiously object to performing certain legal functions of an office. In health care, for instance, professionals seem to have an ever-expanding right to refuse to perform standard functions of their job, including performing legal abortions, blood transfusions, and surgical procedures, as well as dispensing certain pharmaceutical drugs. Sometimes the right does not seem to require even minimally evidential satisfactoriness, such as whether the drug being objected to actually does what the objector believes it does. An extreme form of support for this right, found in many US laws protecting health professionals who object, is a kind of “conviction absolutism,” according to which people who object on grounds of sincere belief should be exempt from performing any act that conflicts with those beliefs. (For a critique of such absolutism, see Wicclair, 2011.)
At the opposite end of the spectrum, some thinkers defend what is called the “incompatibility thesis,” namely, that, in the case of many professionals (notably health-care professionals) it is contrary to their professional obligations to refuse to provide the legal goods and services within the scope of their professional competence; therefore, they have no right to refuse to perform their professional duties on grounds of sincere belief (Savulescu, 2006, pp. 294–297).
Between these two extremes, thinkers such as Wicclair, Dan Brock, and others argue for a middle-ground, compromise position (at least in professional domains such as health care), according to which we should accommodate some conviction-driven objections within specified ethical limits that rein in conscientious objections (Brock, 2008). Most if not all accounts of professional obligation seem to favor a content-sensitive, compromise approach, including accounts based on general ethical theories, accounts that track supposed internal professional morality, evolutionary nonessentialist accounts, and traditionalist nonessentialist accounts, as well as contractual obligations and covenant obligations (Wicclair, 2011).
It is noteworthy that, in contrast to the expanding range of exemptions and accommodations in many professional spheres for conscientious and usually religiously inspired objections, there is one professional realm in which there is no recognized right for professionals to conscientiously object—namely, the military. In the United States, for example, where there is general recognition of the right to object in health care and in many other domains, there is no comparable right to object in its all-voluntary military, even on the grounds that God instructed a person not to fight in certain ways or in certain wars.
In defending a right to engage in conscientious objection, it is not possible to appeal to political participation rights or double harmony between the objector’s interests in subjective integrity and society’s interests, except perhaps when, coincidentally, society garners the benefit of increased democratic deliberation. The right to conscientious objection must rest solely on the humanistic value of protecting the person’s sphere of autonomy in which to act wrongly. Some argue that when a person’s formal office raises such deep moral qualms for her, she should seek another form of employment. This appears to be too strong a condition: in many contexts—such as the military—responsiveness to moral qualms may be both commendable and necessary. It may, though, be appropriate to suggest that a medically trained professional could avoid the particular branch of medicine that would require her to perform tasks she opposes: for instance, she need not enter obstetrics and gynecology if she opposes performing abortions.
Engaging with Conscientious Disobedience
This section explores ethical and legal issues that arise in confrontations between conscientious disobedients and public authorities. A prominent theme in the philosophical literature is the moral case for the state to take an accommodating approach toward conscientious disobedients. Philosophers have adopted an increasingly sophisticated approach to this issue, focusing on the distinct issues raised by the treatment of disobedients by different organs of the state, including police forces, courts, and government.
The police play an important front-line role in the state’s response to many cases of conscientious disobedience, particularly acts of civil disobedience that disrupt public order (LeGrande, 1967). Police forces’ operational decisions play an important role in shaping the environment within which such protest takes place, influencing the prospects for success for civil disobedience actions that aspire to communicate opposition within the public sphere. The police also have an important symbolic role to play, as their operational decisions can express and influence societal perceptions of conscientious disobedience.
The theme of policing has received rather less attention by philosophers than issues associated with the post-arrest treatment of protesters. This is unfortunate, because prevailing policing strategies can—and indeed should—be subject to moral analysis in light of both the societal benefits of civil disobedience, which at least sometimes outweigh its potential harms, and the case in favor of treating this form of protest as a moral right. These considerations, discussed in the previous section, are difficult to reconcile with policing strategies that tend to limit the effectiveness and visibility of civil disobedience.
The shortcomings of these approaches are examined by Smith as part of his case for “negotiated accommodation,” a normative approach that police forces should adopt toward civilly disobedient protest (Smith, 2012). The term “accommodation” in this context means that the police should, where possible, cooperate with civil disobedients to assist in their commission of a protest that is effective as an expression of their grievance against law or policy.
The accommodating approach requires that police take a flexible attitude toward policing tactics and recognize the political legitimacy of suitably conducted forms of conscientious lawbreaking. It calls on police to adopt tactics such as under-enforcement of law, pre-negotiated arrests, and on-the-scene dialogue and negotiation between officers and activists. The latter idea is particularly significant, as it allows police and protesters to defuse tense confrontations through a negotiated settlement acceptable to both sides. A potentially violent confrontation could thus be transformed into a choreographed spectacle, whereby protesters are permitted to engage in a symbolic act of rule or norm violation in return for giving police officers certain guarantees about their subsequent behavior or conduct (Smith, 2012, pp. 830–834).
Negotiated accommodation can be contrasted with “command-and-control” or “strategic incapacitation” tactics, which mandate police action to stop civilly disobedient acts from occurring or to limit the duration of such acts insofar as they occur (Vitale, 2007, p. 406). The accommodating approach rejects the heavy-handed tactics associated with these preventative approaches, such as their quasi-militaristic use of force, infringements of personal privacy, and extensive restrictions on protest and demonstration. The accommodating approach can also be contrasted with “negotiated management” tactics, which recommends dialogue with protesters as a means for the police to exercise control over their protest (Waddington, 1994, p. 102). Negotiated accommodation has more in common with this approach, but it insists on a genuine dialogue informed by a willingness on the part of police to facilitate, rather than constrain, civil disobedience.
An objection to Smith’s type of accommodating approach is that it might expose law-abiding persons to greater levels of disruption and disorder than more repressive or managerial techniques. But it is not obvious that this is the case. First, repressive or managerial policing strategies may not enjoy significant comparative advantage as a means of reducing levels of disruption and disorder. If activists perceive that police are taking steps to marginalize the impact of their protest, this may push them toward a more confrontational relationship with police and the adoption of more radical or assertive protest tactics. Second, the case in favor of negotiated accommodation is presumptive. This means that it can, in principle, be outweighed in the face of sufficiently compelling countervailing considerations. The fact that inconvenience would be a corollary of unlawful protest, or that protesters might for a short time block a right-of-way or occupy government or corporate property, should ordinarily not be taken as sufficient reason to take preventive steps against civil disobedience. The genuine prospect of harm to third parties or damage to their property, by contrast, or serious and prolonged disruption to the life of the community, should ordinarily be taken as a countervailing consideration that outweighs the good of accommodating civilly disobedient protest. The operational judgment that police make in particular contexts must be informed by past experience of similar protest actions, awareness of the intentions and methods of protest groups gleaned through an open dialogue with activists, and a risk assessment that is as comprehensive as possible.
A rather different objection is that negotiated accommodation might contribute to the co-optation of civil disobedience, understood as a set of processes that exert pressure on activists to mold their protest into forms that are approved by police and/or other organs of the state. This objection rests on a misunderstanding of Smith’s argument. The ideal of negotiated accommodation imposes moral obligations on police forces to explore avenues for dialogue with protesters, rather than preventative force or managerial pressure. It does not impose moral obligations on protesters to respond to an invitation to dialogue offered by police forces. Civil disobedients might resist such overtures on expressive or strategic grounds, such as their interest in staging a protest that communicates the extent of their alienation from state institutions or that adopts noncooperative tactics as a means of drawing greater attention to their cause. Of course, protesters’ refusal to negotiate might strengthen the case in favor of police forces switching from accommodating tactics to preventative or managerial approaches. In any case, the adoption of negotiated accommodation by police would leave ample scope for protesters to break free from the alleged threat of co-optation.
The courts also play a significant role in the state’s response to unlawful protest, particularly decisions relating to the imposition of penalties or punishment. Daniel Farrell observes a curious tendency for philosophers to affirm that conscientious disobedience is often justified, while also holding that the imposition of punishment is justified (Farrell, 1977, p. 165). This tendency, he suggests, might be supported through a certain conception of law as a rule-based system that should not or cannot differentiate between justified and unjustified violations, or through concerns about detrimental consequences for society that might follow if punishment is not imposed. Farrell contends that a legal system could (and in fact should) suspend imposition of punishment if a defendant succeeds in convincing a jury of his or her peers that unlawful protest is justified. Farrell thus arrives at a position similar to that of Rawls, who writes that “courts should take into account the civilly disobedient nature of the protester’s act, and the fact that it is justifiable (or may seem so) by the political principles underlying the constitution, and on these grounds reduce and in some cases suspend the legal sanction” (Rawls, 1999, p. 339).
The view that conscientious disobedients should be exempt from punishment if their unlawful act is (or appears) justifiable is more modest than the claim that there is a presumption against imposing punishment irrespective of their act’s justifiability. This stronger claim, or something close to it, nonetheless enjoys a certain degree of support in the philosophical literature. The issue is complicated by the fact that contrasting attitudes can be adopted toward conscientious objection and civil disobedience. Horder (2004) and Raz (1979), for instance, suggest that there may be a stronger case for leniency toward the former than the latter. Their reason, roughly speaking, is the good of protecting personal autonomy in cases where agents are confronted with a choice between legal compliance and deep moral convictions. This good is particularly weighty in cases where the law has a rationale that is difficult to reconcile with autonomy, as in the case of paternalistic legislation, and where an agent’s decision not to conform has little or no problematic consequences. This consideration has less weight in relation to civil disobedience: although it may be inspired by deep moral convictions, its aims are at least partly strategic or political and its impacts can be significant in terms of societal stability or the rights of affected parties.
The thought that conscientious objection may be a more appropriate object of toleration than civil disobedience, as Brownlee (2012, pp. 5–7) points out, appears to be quite widespread among liberal political philosophers. There are nonetheless important objections to the claim that the presumption against punishment is stronger in relation to conscientious objection than civil disobedience. First, consider the suggestion that conscientious objection, unlike the more political and strategic tactic of civil disobedience, does not challenge democratic authority. Horder writes that, “those acting purely for reasons of conscience do not seek to challenge the state’s supreme right, through law, to take decisions on behalf of a whole community, either generally or on some particular issue” (Horder, 2004, p. 224). In response, it is not at all clear that civil disobedience challenges the “supreme right” of the state to take decisions on behalf of the community. Instead, as noted in the previous sections, it is an unlawful but constrained attempt to initiate or engage in communication with the state about how it exercises that right. This is, as we have seen, a crucial element of the defense of civil disobedience put forward by a range of thinkers, including Rawls, Singer, Habermas, Brownlee, Smith, and Markovits. It appears implausible, absent further explanation, to contend that the constrained form of lawbreaking associated with civil disobedience is a greater challenge to democratic authority than conscientious objection (Brownlee, 2012, pp. 174–178).
Second, consider the claim that negative consequences would follow if civil disobedients, like conscientious objectors, were permitted to employ legal defenses that might reduce prospects of punishment. Horder, for instance, suggests that granting an excusatory defense for civil disobedience might entail “unwelcome follow-on threats to common goods, such as a greater willingness amongst protest movements at large to forego a preference for law-abiding protest in favour of rights violations” (Horder, 2004, p. 224). This concern has some affinity with the familiar worry that removing the threat of punishment would encourage more people to engage in civil disobedience, which could be seen as particularly troublesome if it functions as an incentive to civilly disobey in the name of frivolous or mistaken causes.
There are two potential responses to this concern. The first is to endorse a presumption against punishing civil disobedience but to allow the courts to impose other forms of sanction for this offense. This approach is favored by David Lefkowitz, who utilizes the distinction between punishment as a mode of sanction that expresses moral disapproval and penalties that lack such a condemnatory dimension. Civil disobedience should not be punished on this account, but penalties can be imposed as a means of deterring excessive or frivolous forms of protest (Lefkowitz, 2007, pp. 218–219). The second response is to endorse a presumption against all forms of legal sanction, including punishment and penalties but to allow that this presumption can be overridden in certain circumstances. This approach is favored by Brownlee. Her argument challenges the assumption that non-punishment of civil disobedience will necessarily foster a preference for protest that entails “rights-violations.” It is by no means evident that the constrained forms of law violation involved in civil disobedience necessarily amount to infringements of other persons’ rights. It is, furthermore, disrespectful of a person’s autonomy to impose sanctions on the grounds that doing so is necessary to deter undesirable conduct of others (Brownlee, 2012, p. 174). Insofar as there is compelling reason to believe that an unlawful protest entails rights-violations, or that the case for sanctions as a deterrent is overwhelming, the presumption against punishment may be overridden. In such, hopefully rare, circumstances, “it would be appropriate for judges to acknowledge that punishment is a necessary evil and that an apology is due to the civil disobedients whom they censure” (Brownlee, 2012, p. 251). Defense lawyers, solicitors, and juries also have special roles to play in softening the blow of the law upon protesters and in emphasizing the valuable service that conscientious disobedience can provide to a society.
The police and the courts tend to be at the forefront of the state’s response to conscientious disobedience, for the simple reason that these state actors hold primary responsibility for detecting and dealing with unlawful activity. This should not obscure the role that government bodies, particularly the legislature, play in shaping the environment within which police and legal actors react to conscientious dissent. The influence of such bodies can be attributed to their role in crafting the relevant legislative frameworks within which police and courts operate, as well as their impact on the tenor of public discussion.
Few philosophers have given sustained attention to the normative issues surrounding governments’ treatment of conscientious disobedience, but several authors have defended approaches that are broadly tolerant or respectful of this practice. In relation to conscientious objection, Raz foregrounds the role of the legislature in anticipating and avoiding clashes between law and conscience. There are, according to Raz, powerful objections against introducing a general legal defense of conscientious objection, such as the danger of abuse and the difficulty of ascertaining whether the defense should apply to a given case. This should not be taken as a basis for intolerant treatments of conscientious objection but rather emphasizes that “the main device for protecting freedom of conscience is and must in any case be the avoidance of laws to which people are likely to have conscientious objection” (Raz, 1979, p. 288). This approach requires that governments be sensitive to the moral and prudential case for not subjecting citizens to unwelcome interference in relation to areas that are likely to implicate matters of deep personal conviction. If it is necessary to introduce laws that might lead to conflicts between law and conscience, the government should anticipate this through incorporating “general exemptions from law for categories of people identified independently of their moral views” (Raz, 1979, p. 288).
Of course, governments may be unable to anticipate potential clashes between law and conscience in this way. In cases where people object to legal compliance on grounds of sincere conviction, governments should therefore remain open to the moral case for revising law and policy and introducing exemptions after the fact. This does not necessarily require that an exemption be granted; as Emanuela Ceva notes, “the concession of conscientious exemptions is not a matter for principled argumentation, but an issue whose case-by-case evaluation must be open to consequence-sensitive considerations concerning the impact that any given exemption could have on the rights of others” (Ceva, 2015, p. 48). The basic requirement is that lawmaking bodies should be receptive to claims of deep belief, even in circumstances where such claims are advanced in the public realm through acts of conscientious objection. These acts should not trigger condemnation but rather an authentic deliberative process that identifies and weighs the relevant factors before reaching a considered judgment. As an aside, it is worth noting that the formulation and dissemination of standards through norm-setting bodies at the international or global level can inform dispute resolutions at national or local levels. The promotion of a right to conscientious objection in the medical profession, for instance, has involved the formulation of guidelines by bodies such as the World Health Organization.5
In relation to civil disobedience, the good of respecting conscientious conduct suggests that lawmakers and policymakers should work with police and courts to make accommodating approaches more (rather than less) likely. Often governments reject such an approach, preferring laws and policies that increase the likelihood of repressive forms of policing and punitive legal sanctions. For example, social movement scholars have examined the ways in which policymakers in several democratic societies tend to encourage the adoption of command-and-control policing of large-scale protests. As Della Porta and Reiter note, “tolerance of minor violations was undermined by a bipartisan agreement between right-wing and centre-left parties to label any form of direct action (such as occupations or roadblocks) or even symbolic actions of civil disobedience (such as paying only half-price for public services or books) as violent” (Della Porta & Reiter, 2006, pp. 184–185). This reveals the importance of differentiating civil disobedience from modes of conduct, such as terrorism, in order to guard against the danger that officials will exploit indeterminacy or vagueness in public order statutes or national security legislation as an excuse for improper extensions of the category of illegitimate protest.
The case for accommodation might be resisted on the grounds that communication of convictions through acts of civil disobedience is not necessarily worthy of respect, particularly in cases where the relevant convictions are misguided or abhorrent. In response, it is important to note that the object of respect is not necessarily the content of our convictions but the constrained and conscientious nature of our disobedient conduct.
In fact, it is possible to envisage government response to civil disobedience that would tend to increase, rather than diminish, the extent to which protesters’ convictions are exposed to critical scrutiny. Hannah Arendt, writing about the wave of civil disobedience that swept through the United States in the wake of the civil rights and students’ movements, suggested that authorities should “deal with civil-disobedient groups in the same way as with pressure groups, which, through their representatives—that is, registered lobbyists—are permitted to influence and ‘assist’ Congress by means of persuasion, qualified opinion, and the numbers of their constituents” (Arendt, 1972, p. 101). Smith builds on this suggestion by suggesting that the complaints of civil disobedients could be treated as in-puts to either consultative or appellate mechanisms, depending on whether their protest is against a proposed or existing law or policy. These mechanisms could take the form of a specially convened public commission or inquiry, existing institutional forums or committees that are relevant to the contested policy area, or—most ambitiously—a permanent body set up for the purpose of hearing complaints from civil disobedients. This republican proposal has the advantage of providing a political forum within which a dialogic exchange between policymakers and protesters could be staged, allowing for both sides of a particular controversy to be aired and interrogated. The forum would enjoy a certain advantage over courts as deliberative venues, in that it would allow for a discussion on the merits of the broader issues that is not limited by the imperative of arriving at determinations of innocence or guilt before the law (Smith, 2013, pp. 127–135). The precise institutional form of a dialogue between protesters and policymakers is less significant than the underlying imperative that public authorities should engage with civil disobedience, rather than treat it as a nuisance that is merely to be tolerated or—as is more commonly the case—a threat to be deterred.
This article has surveyed some of the more significant themes in the philosophical literature on civil disobedience and conscientious objection, but it is far from definitive. There are, for instance, a number of important issues not addressed in depth here, which are nonetheless significant for both established and—in particular—emerging scholarship in this area. First, in addition to reflection on matters of justification and rights, there is considerable interest on the moral duty to engage in conscientious disobedience (Walzer, 1970; Delmas, 2014). Second, there is growing recognition that persons may have legitimate reasons to civilly disobey the actions of a state that is not their own or the actions of governance or non-governance agencies at the international, transnational, or global levels (Caney, 2015; Celikates, 2015). Third, there is increasing interest in the relationship between traditional forms of conscientious disobedience and forms of dissent—such as hacktivism, distributed denial of server actions, and digitally based dissemination of classified documents or sensitive information—that take place in the virtual or online realm (Sauter, 2014; Scheuerman, 2016). These themes illustrate the continued relevance of conscientious disobedience to democratic practice, as well as the considerable scope for further philosophical reflection on its ethical and political dimensions.
The authors would like to thank Candice Delmas, the editors and anonymous reviewers for their comments on an earlier draft of this chapter. They also wish to thank Fay Niker for her research assistance. William Smith acknowledges the support of the Research Grants Council of the Hong Kong Special Administrative Region (Project No. CU14409814). Kimberley Brownlee acknowledges the support of a Philip Leverhulme Prize from the Leverhulme Trust.
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1. This communicative conception of conscientious conduct is elaborated at length in Brownlee (2012, pp. 29–47).
3. This case would be different—and perhaps better classified as civil disobedience—if the registrar frames her defiance as part of a campaign against the legislation permitting same-sex marriage. We thank Candice Delmas for this point.
4. The concept of personal disobedience is discussed in Brownlee (2012, pp. 27–28).