‘Do We Need to ‘Democratize’ Civil Disobedience?’
The last ten years or so we are witnessing a new proliferation of ‘civil disobedience’. It was during the roaring sixties and seventies of the last century that civil disobedience became an explicit and popular form of political protest and received, accordingly, a lot of attention from scholars. Today, with successively the Occupy Movement, the Gilets Jaunes, Black Lives Matters, but also the anti-vaccination and corona policy protests, the trucker blockades and convoy protests, and recently the farmers’ protests in the Netherlands, ‘civil disobedience’ is a hot topic once again.
Of course, these movements differ substantially in their aims as well as in their methods. But in some way or the other, they all refer to a notion of ‘civil disobedience’ and claim a ‘right’ to it. Leaving the empirical differences aside, I will focus on a more abstract and general question: is there, in principle, a legitimate place for civil disobedience in a democratic society? By ‘civil disobedience’ I do not mean formal protests or strikes – as these are allowed and protected by law in democratic constitutions. What I do mean is purposefully breaching the law – though restricted by certain ethico-political commitments, as I will explicate later – to influence and manipulate the democratic decision-making process.
"Gilets jaunes #6" by Christophe Becker is licensed under CC BY-NC-SA 2.0.
Civil disobedience and democracy
On the face of it, the answer to the question whether civil disobedience can be legitimate in a well-functioning democracy seems to be ‘no’. After all, democratic decisions receive their legitimation (and accordingly their authority) because they are the outcome of a certain procedure. The goal is to reach collective decisions despite societal disagreement. Democracy is a form of government that encompasses the risk that one is forced to comply with majority decisions that do not represent one’s preferred outcome – as long as those outcomes are not the product of corrupted procedures or transgress the confines of the constitution.
People who believe that they stand above this procedure are vulnerable to the criticism of behaving in a morally and/or epistemically arrogant way. One claims decision-making power on the basis of ‘being better’ or ‘knowing better’, which is non-democratic. This criticism is, however, not always applicable to people who choose to disobey. Civil disobedience also has the potential to strengthen democracy by drawing attention to unrecognized injustices in the input or output of democratic decision-making processes. The relevant question is, accordingly, whether we can conceive of situations in which it is from a democratic (or moral) point of view permissible to disobey democratic authority?
Rawls’ classical notion of civil disobedience and the critique of the critical turn
The most famous answer to this question came from the 20th century political philosopher John Rawls. During the ‘first wave’ of civil disobedience (the sixties and seventies), Rawls made an effort to reconcile what he called a general moral principle to obey democratic outcomes on the one hand, with a conditional right to disobey in certain exceptional circumstances on the other. He argued that civil disobedience can only be used as a last resort with the aim to correct longstanding injustices. Beyond that, he subjected this conditional right to strict ethical commitments: disobedient citizens need to show a general ‘fidelity to the law’ by behaving in a ‘civil’ – i.e. public, non-violent and communicative – way and by accepting punishment for breaching the law. This can be called a liberal/deliberative form of disobedience.
Recently, a new scholarly debate has emerged in which Rawls’ view is heavily criticized. This is known as ‘the critical turn’. The main argument is that Rawls restricted the concept and practice of civil disobedience too much, excluding movements that behave ‘uncivil’ (in Rawls’ terms) but nevertheless promote justice. One outspoken representative of this current is Robin Celikates. He claims that civil disobedience needs to be ‘democratized’. Civil disobedience is, according to him, not in conflict with democratic decision-making but instead part of the process of collective self-determination. He proposes a less ‘normative’ and ‘restrictive’ definition: disobedient actions can have a place in a democracy as long as the practicing protesters treat their opponents not as absolute enemies that need to be destroyed or permanently excluded from society.
I oppose both of these approaches to civil disobedience. With Celikates I argue against Rawls and insist on a more politicized approach of civil disobedience. With Rawls, however, I argue against Celikates that civil disobedience needs to be subjected to more substantial commitments. By loosening the concept, Celikates makes room for violent (albeit not aimed at destruction) forms of disobedience in the decision-making process. This, I would argue, is not compatible with democracy. Following the ideas of the political philosopher Chantal Mouffe, I propose a third alternative: ‘agonistic disobedience’.
Mouffe’s notion of democracy can be summarized as follows: the main task of a democracy is to transform ‘antagonism’ – a dangerous and potentially violent and destructive form of conflict – into ‘agonism’ – a restrained and legitimized form of conflict. Antagonism defines a relation between absolute enemies, agonism only one between political opponents or – as Mouffe likes to call them – ‘friendly enemies’. My central argument is that, following Mouffe’s theory of democracy, there is a legitimate place for civil disobedience in a democracy as long as it promotes agonism and impedes antagonism.
By emphasizing moral deliberation and communication, Rawls’ approach depoliticizes civil disobedience. This risks suppressing legitimate anger and dissatisfaction in society, unleashing antagonisms in the long run. Agonistic disobedience, as I envision it, is much more conflictual and activist in nature. It creates a controlled way to transform antagonism into agonism. Civil disobedience understood in this way seems to overlap with Celikates’ democratized approach of civil disobedience to a certain extent. However, agonistic disobedience is more demanding.
Agonistic disobedience recognizes that modern democratic societies are fragile accomplishments that need to be protected. Mouffe’s work centralizes a fundamental pluralism of values at the base of these democracies. Defending this fundamental pluralism requires the existence of what she calls a ‘conflictual consensus’. This can be interpreted as a common symbolic space among the different political actors in a democratic society. Creating this space requires the fulfillment of two criteria. The first criterion is substantial: claims made in a democratic society should reference at least some generally shared ethico-political principles. The second is mostly formal: treat your opponents – i.e. those who also makes democratic claims, though probably fundamentally different from yours – as a ‘friendly enemy’ with a legitimate right to defend their standpoint.
Subscribing to these criteria is incompatible with using violence to assert one’s claims in the democratic decision-making process. It seems that Celikates does not endorse this enough, making room for forms of disobedience that (also) can lead to antagonistic conflict. He argues that there is no reason to exclude violence a priori from a democratized understanding of civil disobedience. Whether violent disobedient actions can be justified, he argues, is a question that needs to be evaluated case-by-case. From an agonistic point of view, however, incorporating the possibility of violent forms of disobedience in the democratic process is already problematic on a conceptual level.
This does not mean, to conclude, that Mouffe’s theory does not recognize the role of violence in defending the democratic society from those who want to disrupt or destroy it. Political actors that structurally undermine the conflictual consensus turn into an antagonistic enemy. Thus it can be argued that in certain exceptional situations civil disobedients are allowed to use restrained forms of violence out of self-defense, for example when confronted with militant antidemocratic groups or a state apparatus that illegitimately deprives them from their right to defend their democratic standpoint. Agonistic disobedience, so to speak, does not imply a total pacifism.