1.1 The Problem of Disobedience

The liberal inquiry into civil disobedience begins with lawbreaking.Footnote ⁴ Disobedience is found to pose a problem because violations of law destabilize society and shake confidence in the rule of law. As Socrates put it when refusing his friend Crito’s offer to help him escape jail and evade his death sentence, deliberately contravening the laws of Athens would amount to “intending the destruction” of the polity.Footnote ⁵ For any individual violation of law signals the permissibility of mass lawbreaking, which itself threatens the state’s ability to maintain the peace and justice.

Another way to describe these concerns is to say that disobedience is presumptively wrong because it violates the moral duty to obey the law, which philosophers refer to as political obligation. The law, on this view, holds sway not only because the state possesses the coercive power to enforce it. Subjects are bound by duty to submit to the law, when the state that issues it is a legitimate one.Footnote ⁶ Meanwhile, subjects have a right not only to disobey but to overthrow illegitimate government. Disobedience is thus a problem only in legitimate states.

The exact nature and contours of legitimacy are contested, of course, but democracy, insofar as it recognizes subjects’ fundamental moral equality and enables self-government, is usually seen as a condition and marker of political legitimacy. Disobedience is an especially acute concern in democracies because it expresses an individual’s willingness to place their judgment above that of the sovereign majority. This is so even in the face of unjust law. For the point of political obligation is at least in part to explain why subjects have a moral duty to obey the law even when disobedience appears morally right given the law’s injustice.

So, if, as Rawls puts it, there is “no difficulty in explaining why we are to comply with just laws enacted under a just constitution,” and if political obligation binds us to follow even unjust laws provided they are issued by a legitimate state, can disobedience ever be permitted on the liberal view?Footnote ⁷ Rawls wondered as much, writing, “The real question is under which circumstances and to what extent we are bound to comply with unjust arrangements.”Footnote ⁸ Rawls suggests that injustice may reach “certain limits” beyond which the subject is no longer bound to obey, even in an otherwise reasonably just state. With political obligation weakened or dissolved, there is room for unlawful forms of dissent, including civil disobedience.

1.2 Liberal Civility

Given the “problem” of disobedience, liberal theorists have sought to show that not all disobedience destabilizes society, undermines the rule of law, and flouts democracy. Their solution is civility. By disobeying civilly, one demonstrates one’s goal of addressing the community and one’s adherence to the system’s legitimacy and overall respect for law. Civil disobedience can thus be understood to stand “within the limits” or “at the boundary of fidelity to law,” as Rawls puts it.Footnote ⁹

Rawls defines civil disobedience as a “public, nonviolent, conscientious yet political act contrary to law [that is] usually done with the aim of bringing about a change in the law or policies of the government” by addressing the sense of justice of the majority and undertaken by an agent who accepts the legal sanctions.Footnote ¹⁰ Civil disobedience meets four criteria, three of which Rawls states directly: it is carried out publicly, nonviolent, and undertaken by an agent who willingly accepts the legal sanctions for her lawbreaking. In my view, the normative constraints of civility further imply that the agent acts with decorum.

The disobedient act’s requirement of publicity stems from the communicative purpose of civil disobedience: It must aim to send a message to the broader society. With this in mind, the act must be witnessable. It must be done in the open, which usually means a public space – a town square, say, rather than an official’s driveway. Many also argue that the agent must not conceal her face or identity. Some theorists even hold that civil disobedients must give authorities advance notice of their planned action and, when appropriate, seek a permit to protest. Finally, many theorists hold that the disobedient act must be public in the more specialized sense that the appeal it makes must be based on widely accepted principles of political morality.

The requirement of nonviolence prohibits the use or threat of physical force against persons, which, for Rawls, would muddy the disobedient act’s legibility as a public address. Most liberal theorists, as well as many disobedients, further argue that nonviolence prohibits coercion – the forcing of actions – as well as damage to property. Again, this reflects civil disobedience’s goal of pleading with and persuading the public. (Section 7 explores challenges to this orthodox view.)

Agents’ willing acceptance of the legal consequences of their lawbreaking – non-evasion, as I call it, though I mean something broader, as I’ll explain in Section 8 – is another mark of civility and a defining criterion of civil disobedience. Whereas the duty to accept punishment focuses on the moment of the trial, “non-evasion” refers to a series of demands on civil disobedients even before judicial proceedings are underway: agents must not dodge or resist law enforcement; they must comply with criminal and court proceedings and accept their outcomes. Non-evasion is crucial to the goal of demonstrating the agent’s respect for the rule of law and endorsement of the overall legitimacy of the system in which she is acting. (Section 8 motivates the conceptual shift from the narrower duty to accept punishment to the broader requirement of non-evasion and defends departures therefrom.)

I believe a fourth mark of civility is at play in the standard liberal conception, albeit implicitly: decorum, which holds that civil disobedients ought to behave in a dignified manner, by following the conventional social scripts that spell out the ways of showing respect in their society. This mark explains why some public, nonviolent, and non-evasive acts of disobedience are nonetheless denied the label “civil,” on the grounds that they are seen as, say, offensive, obscene, or blasphemous – in violation of decorum. (Section 8 explores this requirement’s intersection with non-evasion in the form of courtroom decorum, and Section 9 defends the intrinsic value of fitting expressions of distrust and anger.)

Civility thus understood appears in stark contrast to criminality and revolution. People who commit criminal offenses typically break the law for self-interested reasons, potentially violently, and almost always covertly, with intent to evade legal sanctions. And while revolutionary actors are, like civil disobedients, moved by moral and political principles to break the law, revolutionaries tend to share with criminals the willingness to use violence and the desire to evade of punishment. Criminal offenders and revolutionaries, then, act outside the “limits of fidelity to law.”

In contrast, by satisfying the weighty demands of civility, the agent can demonstrate her respect for law and assuage the public’s fear of disorder and resentment at the disruption that disobedience creates. Some acts of civil disobedience may even earn praise.

1.3 Justification and Role of Civil Disobedience

Rawls offers both an account of conditions under which acts of civil disobedience can be justified and a general account of the role of the practice in a liberal democratic society. In his view, acts of civil disobedience can be justified only if they are undertaken: (1) to target serious and long-standing injustice, (2) as a last resort, and (3) in coordination with other groups with similar grievances.Footnote ¹¹ I’ll explain all three in turn.

First, Rawls, along with Dworkin and Jürgen Habermas, restricts the target of civil disobedience to serious and long-standing or entrenched injustices – paradigmatically, violations of basic rights. In Rawls’s view, the chance that civil disobedience will succeed rests on the clarity of the injustice protested: the overwhelming majority must be able to recognize the violation as an injustice, given widely accepted and valid principles of political morality. For instance, racial segregation, which in the United States imposed second-class-citizen status on African Americans, constitutes an incontrovertible and entrenched injustice in a way that socioeconomic inequality does not. Both segregation and socioeconomic inequality undermine the fair value of political liberties, but only one is a blatant violation of basic rights that anyone in agreement with democratic principles would be enjoined to recognize. Similarly, Dworkin and Habermas argue that civil disobedience should focus on constitutional rights, not matters of policy such as nuclear or climate regulations.Footnote ¹²

Critics, including some liberal philosophers, have sought to expand the justificatory conditions beyond this narrow frame, to include protests against economic inequality such as Occupy Wall Street in the United States and the Indignados movement in Spain. Other critics contend that novel – which is to say, not widely accepted – principles of justice and non-political principles of morality can ground permissible civil disobedience, for instance on behalf of animal welfare. Indeed, the actions of the animal rights movement, as well as other major emancipatory movements like Black Lives Matter and #MeToo, reveal that civil disobedients often seek to transform common-sense political morality rather than issue calls for change on its basis.

The second justificatory requirement – that civil disobedience be undertaken as a last resort – has become an article of faith. In a liberal democratic society where the right to vote and the right to dissent are recognized and protected, people should not turn to disobedience lightly. Essentially, civil disobedience is thought to be permissible to the extent that majorities overlook people with legitimate grievances. Where lawful channels are less than wholly effective in addressing the majority – a condition that is especially likely to prevail among minorities – civil disobedience may be acceptable.Footnote ¹³ How do we know that agents are overlooked? Rawls suggests that if past actions, including by other persons similarly situated, have shown the majority to be immovable or apathetic, then further attempts may reasonably be thought unnecessary, and the dissenter may undertake civil disobedience.

Some critics defend a moral right to civil disobedience that does not require exhausting all legal means first, as we’ll see in Section 8 (§2). Other critics argue that civil disobedience itself may be overlooked by an immovable majority, and that in such cases, uncivil disobedience may be considered a last resort after civil disobedience has been exhausted.

The third justificatory requirement demands that those minority social groups equally justified in resorting to civil disobedience against injustice coordinate their civil disobedient actions with each other. This condition is designed to regulate the overall level of dissent and minimize disruption. It is also supposed to heighten the act’s chances of success by avoiding a cacophony of small civil disobedient protests that would tax the public’s attention, ensuring instead maximum participation in well-planned actions.

Critics have argued that while coalition-seeking is generally good strategy for activists, it makes little sense to condition the justification of civil disobedience on it. Groups may not have the time to coordinate with other groups, or they may have security concerns that prevent them from inviting affinity groups to participate. Furthermore, a protest must not necessarily be large in order to attract attention. For instance, Prescription Addiction Intervention Now (PAIN), an advocacy group founded by artist Nan Goldin in response to the opioid crisis and specifically targeting the Sackler family for their responsibility, staged a die-in at the Metropolitan Museum of Art in 2018, scattering in the rotunda fake prescription bottles and mock one-dollar bills labeled “Oxy.” Performance protests like this one led large museums to remove the Sackler name from their galleries and endowments. Such highly choreographed actions require only small numbers of participants.

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Liberal philosophers recognize that justified civil disobedience does not necessarily undermine the rule of law and can instead strengthen the social and legal order. As Rawls has it, civil disobedience serves “to inhibit departures from justice and to correct them when they occur,” thereby enhancing justice.Footnote ¹⁴ Civil disobedience offers a special protection from majoritarian encroachments on individual rights, functioning as a defense or redress mechanism – a corrective device to fix rights violations.

Liberal philosophers assume in their reflections on civil disobedience the validity of the constitutional principles that regulate society, and which activists must appeal to. They conceive of civil disobedients as gadflies, intervening in the public sphere to remind the society of its professed commitments to worthy principles of political morality. Dworkin thus analogized civil disobedients to constitutional court justices engaging in constitutional disputes but from below. On this view, when the law’s validity is doubtful, civil disobedience is constitutionally acceptable – even welcome – and may, in fact, not involve lawbreaking at all, given the law’s possible unconstitutionality.Footnote ¹⁵

Habermas similarly conceives of civil disobedients as breaking the law to protest “against the transgression of valid constitutional principles.”Footnote ¹⁶ He presumes a constitutional liberal democratic society regulated by acceptable principles of justice. At the same time, he understands civil disobedience as a valuable and “necessary component of [the constitutional liberal democratic society’s] political culture,” because of its contribution to public deliberation. In fact, Habermas’s recognition of civil disobedience as “the guardian of legitimacy” is also at the root of democratic accounts of civil disobedience.Footnote ¹⁷ Let’s turn to these.

2.1 Republicanism: Civil Disobedience as Democratic Renewal

Hannah Arendt, a contemporary of the US-based liberal theorists discussed in Section 1, interpreted the disobedient antiwar and civil rights activism of her day as an essentially democratic mode of political action. In so doing, she turned the liberal approach on its head. Whereas liberal theorists sought to show that the civility of civil disobedience could defuse its destabilizing potential, Arendt argued that what really disrupts social order is not civil disobedience but instead the state’s exclusion of certain groups from the political process, which makes rebellion inevitable.Footnote ¹⁸ Mass disobedience, in Arendt’s view, always occurs under unstable political circumstances but ultimately steadies society by reenacting the social contract and thus strengthening civic bonds. Civil disobedience, then, is both a symptom of and the remedy to an unstable legal order.

Arendt emphasizes the political, rather than moral or legal, aspect of disobedience by tying it to the spirit and practice of voluntary association. Here, voluntary association is the germ cell of democratic political power because it fosters collective deliberation and active civic engagement. Arendt does not define civil disobedience, and she does not distinguish it from revolution. She instead views both as modalities and even exemplars of democratic action, efforts to found a new shared public space where political freedom can appear, that is, where human beings can live and act together and start something new. As historical case studies, she looks to the American Revolution, the Paris Commune of 1871, and the Hungarian revolt of 1956. Like these, the Civil Rights and antiwar movements were opening the space to usher in new beginnings.

2.2 Deliberative Democracy and Civil Disobedience

Deliberative democracy, a school of thought influenced by Rawls and Habermas, emphasizes the role of reason and communication in public life in general and democratic decision-making in particular. Rawls argues that discussion should be informed by mutually acceptable reason-giving, while Habermas highlights inclusive dialogue premised on mutual respect. While Rawls’s own account of civil disobedience is not of the deliberative school, Habermas articulates a hybrid liberal-deliberative account. Like Rawls, he conceives of civil disobedience as a guardian of constitutional principles. However, he also stresses civil disobedience’s essential contribution to democratic deliberation and will-formation, with disobedients promoting more radical interpretations of the system of rights. Such a contribution is valuable on the deliberate view because civil disobedients do not aim to undermine the constitutional principles that underpin political legitimacy but rather to deepen and extend them.

This might sound like the liberal account, which also legitimizes civil disobedience to the extent that it supports the constitutional order. But there is a crucial difference. Where liberal accounts deem legitimate disobedience which guards rights from the infringements of democratic majorities, deliberative theorists argue that disobedience can be legitimate even in the absence of clear rights violations to the extent that it stimulates public deliberation concerning foundational principles of free societies. For instance, civil disobedience can inspire a public conversation about material and political inequality and failures of recognition and reciprocity, issues that redound to the value of our political rights, even when they are not technically violated.Footnote ¹⁹ What is more, deliberative democrats welcome debates, reassessments, and revisions of fundamental rights through public action aimed at achieving a novel political consensus.

The deliberative approach, then, focuses on the citizen as an agent within the democratic process. William Smith, who has articulated the most complete and compelling deliberative treatment of civil disobedience, looks beyond constitutional rights and instead to the rudiments of citizenship when he speaks of the “capacity” of civil disobedience “to enhance epistemic processes through which publics weigh up competing claims and perspective.”Footnote ²⁰

This epistemic purpose is especially crucial in the face of “deliberative breakdowns or process-related failings in the public sphere,” as Smith writes.Footnote ²¹ The actions of Occupy Wall Street exemplify this sort of epistemic work. The US constitutional order does not attempt to prevent economic inequality and therefore does not recognize such inequality as unjust. Yet political power is concentrated in the hands of the wealthiest, resulting in the alienation of most people from their power within the framework of self-government. This was the message of the Occupiers, who sought to appeal to the constitutional principle of political equality, even in the absence of rights violations. Similarly, the US Dreamers – undocumented-immigrant youth who have been granted legal status without a path to citizenship – have protested their exclusion from participation in the public sphere as antidemocratic, given the impact that the state’s decisions have on them. For a last example, La Via Campesina, an anti-globalization farmers organization, seeks to put the concerns of landless workers, indigenous people, rural migrants, and certain other populations on the agendas of states, where these concerns are otherwise ignored as a result of “deliberative inertia.”Footnote ²² In each of these cases, the point of civil disobedience is not to guard justice but to enhance democratic deliberation by triggering processes of epistemic reflection across the public sphere.

2.3 A Radical Theory of Disobedience

Whereas deliberative democrats conceive of democracy as a space of respectful dialogue geared toward the achievement of consensus, theorists of radical democracy conceive of democracy as first and foremost a space of contestation. Further, civil disobedience is central to this struggle. For radical democrats like Robin Celikates, civil disobedience is neither a check on democratic politics nor a remedy for deliberative breakdowns. It is instead, as in Arendt’s republican account, democratic agency itself – an assertion and creation of the citizen’s power that opens spaces of political possibility. But radical theorists, unlike republicans, further draw on critical theory in their analysis of power and resistance, as they situate themselves within political practice and align their theoretical objectives with the broader goal of emancipation that underpins the movements they study.

According to Celikates, civil disobedience constitutes a form of democratic empowerment, which works by putting forth a “dynamizing counterweight to the rigidifying tendencies of state institutions.”Footnote ²³ That is, civil disobedience confronts the vertical constituted power of state authorities with the horizontal constituting power of the people. Civil disobedience aims at a more inclusive and extensive form of democratic self-rule: it democratizes democracy, from below. On this view grassroots actions are the heartbeat of democracy. Thus, in her study of the Gezi protests of 2013, Çiğdem Çıdam pays close attention to the on-the-ground efforts of political actors to build political friendship and enact democratic action.Footnote ²⁴

Radical theorists’ critique of liberal and deliberative accounts is extensive. Radical democrats reject the liberal framing of the problem of civil disobedience, which deliberative democrats share: radical democrats do not assume state legitimacy or political obligation, and they do not conceptualize the constraints of civility as a solution to disobedience’s presumptive impermissibility. They also reject the argument that disobedience is justified only on the basis of its appeal to valid constitutional principles. On the radical view, civil disobedience needs no distinctive moral justification. In any case, constitutional principles are unlikely to provide any such justification, as these principles often buttress a violent order rather than safeguard minority rights.

Radical democrats overhaul the liberal conception of civil disobedience first by rebuffing any effort to fix it in amber. Instead, civil disobedience is understood as a constantly evolving concept “not just in theory but also in practice.”Footnote ²⁵ Celikates thus denounces practically every defining feature of the standard liberal account. Against the publicity requirement (which includes advanced notification to authorities), for instance, he notes that covertness is often essential to the preparation and conduct of civil disobedient action and that anonymity not only protects activists but also can have a powerful symbolic value, as when protesters all don Guy Fawkes masks. He also understands nonviolence as compatible with property damage and civil disobedience as incompatible “not with violence per se, but with an unreflective embrace of violent means that neglects how violence – in addition to potentially harming others – affects and transforms both the subjects and the aims as well as the context of political action.”Footnote ²⁶ Thus acts of civil disobedience, for radical democrats but not for liberal philosophers, may be covert and destructive.

What radical democrats maintain as the core element of civil disobedience is its communicative function. This function is conceived in collective and political terms, not through the lens of individual freedom of expression. Hence Celikates defines civil disobedience much more broadly than liberals and deliberative democrats do, as

This capacious definition makes plenty of space for activists’ experimentation with the practice of disobedience, outside the liberal strictures of civility.

Radical democrats also propose rethinking the notion of civility itself, arguing that liberal civility does covert ideological work to “discredit and discipline” activists.Footnote ²⁸ Specifically, radical democrats charge that liberal theory sets up activists to fail by erecting excessively demanding standards for the practice of disobedience. Radical theorists propose instead that civility is not a normative standard of behavior but rather refers to the condition of political membership. A civil act need not be a decorous one; instead, it is an act of citizenship, even when the actor is not legally designated a citizen but is, say, a refugee, guest worker, or undocumented migrant. As citizens, disobedients “acknowledge some kind of civil bond with their adversaries, which goes hand in hand with certain forms of self-limitation and self-restraint that exclude military or quasi-military action aiming at the destruction of an enemy.”Footnote ²⁹ Civility, on this view, is synonymous with political contestation, which involves struggling for recognition and vying for power, rather than the elimination of the opposition.

Finally, radical democrats insist that theorists must take sides in the political struggles of their times. In this respect, they are heirs to the Frankfurt School of critical theory, members of which argued that the philosopher’s role is to contribute somehow to the emancipatory struggle that she seeks to theorize. Emmanuel Renault contrasts critical theorists’ self-positioning as allies with those who oppose injustice against liberal understandings in which the philosopher is an “impartial” observer.Footnote ³⁰ As Karl Marx argued, radical philosophies of resistance should be developed from the bottom up, on the basis of activists’ experiences, claims, and practices, so that they can constitute an “organ” of emancipatory movements.Footnote ³¹ Celikates likewise urges theorists to “learn from the streets,” so as to do justice to social movements and facilitate their struggles.

Radical theory thus departs significantly from the more liberal orientation of deliberative theory, but it is important that we not lose sight of areas of agreement. Republican, deliberative, and radical democrats all view civil disobedience as an essential tool for contesting state failures and as a quintessential form of democratic empowerment. Democratic theorists converge on their conception of civil disobedience as a creative, not defensive, mechanism and an expression of popular power.

3.1 Insist on Civility or Justify Incivility?

To argue for the civility of actions like those just described involves relaxing the criteria of civility. Some liberal theorists do this, insisting for instance that Snowden was engaged in civil disobedience because he took responsibility for his actions, which appealed to valid constitutional principles for justification and sought to strengthen the rule of law. He avoided punishment but never denied or hid his efforts.Footnote ³³ For their part, radical democrats need not bend over backward to accommodate these cases: their capacious vision of civil disobedience can find space for them.

The benefits of incorporating acts of resistance in the category of civil disobedience are clear: to do so not only begins but nearly completes the work of normative legitimation. To say – and be able to persuade others – that the agents above were all engaged in civil disobedience, like Gandhi, Parks, and King, is to deny their lawlessness and to justify their actions at once. So, why do anything else? The fact is that, in the public imagination, civil disobedience is a conscientious, public, nonviolent, non-evasive, and respectful breach of law. Hence many attempts to encompass acts that fail to satisfy the constraints of civility within the category of civil disobedience often fail, at least in the public’s eye, for they are perceived to be stretching the common understanding beyond recognition. These attempts’ failures by no means suggest they shouldn’t be undertaken; to the contrary, I find theorists’ efforts to contest and broaden the public conception of civil disobedience very important, as the latter is of course not fixed for eternity. But it is dominant for now.

This is why the second option must be pursued, too. It strikes me as the more fruitful in the short and medium term, because while the common understanding of civil disobedience remains, this second route enables theorists to defend certain acts of principled disobedience on widely accepted grounds. It is therefore a pragmatic move. It counsels setting aside debates about the meaning and constraints of civility, accepting the standard definition of civil disobedience and common presumption that the society is a basically liberal democratic one, and focusing instead on justifying uncivil tactics.

As sketched in the introduction, uncivil disobedience can be conceptualized as the negative image of the standard understanding of civil disobedience. If an act of principled disobedience is civil when it is (i) public, (ii) nonviolent, (iii) non-evasive, and (iv) dignified and respectful, then an act of principled disobedience may be uncivil in virtue of being (i) covert or anonymous, (ii) violent, injurious to persons, harmful to oneself, destructive of property, or coercive, (iii) evasive of law enforcement and legal sanctions, or (iv) offensive, disrespectful, or undignified. A principled disobedient act’s failure to meet any one of the criteria of civility is usually sufficient to mark it as uncivil.

José Medina adds nuance to this way of distinguishing between civil and uncivil protests, stressing that the key differences between civil and uncivil acts are “not absolute and categorical, but gradual and contextual.”Footnote ³⁴ The distinction is “contextual” because civility and incivility can be properly interpreted and assessed only in context – that is, only in light of the social, cultural, and epistemic norms that govern how people perceive the act in question. The distinction is also “gradual” insofar as civil and uncivil protests should be thought “as being in a continuum, as situated in a wide and heterogeneous spectrum of cases deploying different kinds of confrontation that may challenge legality and norms of civility to a lesser or fuller extent.”Footnote ³⁵

The sociocultural variations in perceptions of civility are real. In fact, one of the vignettes above is considered paradigmatic of civil disobedience (or “désobéissance civique”), despite the significant property damage involved, to wit: the unionized farmers’ dismantling (“démontage”) of the McDonald’s restaurant, which unfolded undisturbed by the police and then led to a highly mediatic trial.Footnote ³⁶ While a number of French people – and the authorities – viewed the action as vandalism (“saccage”), the French public as a whole does not see property destruction as necessarily incompatible with civility, the way the United States does. There is no doubt that a similar action in the United States would have been brutally repressed and branded as “violent extremism” and “domestic terrorism,” given the legislation that makes damage to critical infrastructure punishable as terrorism today. The French tradition of resistance, replete with revolutionary and socialist uprisings and the underground resistance to the Nazis, does not involve nor celebrate nonviolence. While anti-imperialist activists in the United States, India, and South Africa looked to Gandhi, King, and Mandela as their models in the twentieth century, their French counterparts turned instead to revolutionaries like Leo Trotsky, Ho Chi Minh, and Che Guevara: nonviolent civil disobedience for the former, armed class struggle for the latter. French activists today tend to view both civil disobedience and sabotage as among a healthily diversified repertoire of tactics rather than as a disjunctive and existential choice. To put it simply, conceptualizing uncivil disobedience is less pressing or useful in societies where the public understanding of civil disobedience and of the permissibility of resistance is already broader and more permissive.

Medina is right: civility and incivility exist on a spectrum. Conformity with certain criteria is objectively ascertainable: whether an act was carried clandestinely, for instance, may be hard to argue. But, in many cases, whether a protest is civil or uncivil will depend on the agent’s perceived identity, social position, and goals. Consider how Black American football players’ silent protests in solidarity with Black Lives Matter were condemned as disrespectful, unpatriotic, and even traitorous, while silent protests by police officers under the banner of Blue Lives Matter were read as dignified and respectful.

If Medina suggests that the distinction between civil and uncivil disobedience is not rigid or fixed, other theorists argue that such distinction is misguided and should be abandoned. For William Scheuerman, defenders of uncivil disobedience “tend to group a vast array of distinctive types of lawbreaking under one amorphous categorical rubric, impeding the suitably complex, nuanced analysis we need.”Footnote ³⁷ In his view, the very concept of uncivil disobedience functions as a “residual category (meaning, in effect, ‘non-CD [civil disobedience],’ with CD narrowly and controversially defined).”Footnote ³⁸ He continues:

Such hodgepodge of a concept hinders rather than promotes nuanced analysis of protests and resistant practices and their context-dependent permissibility. What is more, according to Erin Pineda, conceptualizing uncivil disobedience hinders the vital work of reclaiming civil disobedience’s subversive power from the claws of the sanitized liberal account which is too narrow and too demanding and distorts the real historical practices of civil disobedience.Footnote ⁴⁰

One might be tempted to respond to the idea that the concept of uncivil disobedience is an amorphous hodgepodge, that the opposite strategy of broadening civil disobedience also bloats the concept to incorporate “variegated types”Footnote ⁴¹ that one may deem uncivil, such as politically motivated vandalism and leaks. But proponents of such inclusive approach argue that all these types of conscientious lawbreaking are united by their civil orientation. For Scheuerman, it is an embrace of a shared political project and fidelity to law that makes an act of disobedience civil; for Kimberley Brownlee, it is the act’s communicative nature and the agent’s willingness to bear the risks of honoring her conscientious convictions; for Robin Celikates, it is the protester’s enactment of radical citizenship.Footnote ⁴²

Now what, if anything, unites uncivil disobedience? It is true that the concept groups together diverse types of principled disobedience that all have in common not to fit a narrow concept of civil disobedience, though they might be situated on different points of the spectrum of incivility. But as I noted, operating with the public understanding of civil disobedience is the point of this approach: it challenges the existing normative parameters that make civil disobedience the only acceptable mode of protest and puts new concepts in circulation that point beyond it. Having categorized an act under the umbrella of uncivil disobedience does not tell us very much about it beyond its principledness and perceived and/or deliberate failure to satisfy one or other of the marks of civility. Whereas defenders of civil disobedience have articulated full-throated accounts of the value and role of civil disobedience in liberal democratic societies and defended citizens’ moral right to civilly disobey (discussed in Section 8.2), there can be no blanket defense of uncivil disobedience, nor a general moral right to engage in it. But there is no reason to infer from this asymmetry the ineptness of the present account of uncivil disobedience. Far from “impeding the suitably complex, nuanced analysis we need,” as Scheuerman criticizes, the underspecification of the concept of uncivil disobedience invites and even requires close-up examination.

Because the concept of uncivil disobedience groups together “variegated types”Footnote ⁴³ of principled disobedience, it must be disaggregated. Indeed, a defense of, say, the clandestine provision of abortion services where it is illegal will not tell us much about the circumstances under which property damage inflicted during political rioting might be permissible. Normatively evaluating uncivil disobedience (a fortiori specific acts within distinct situations) requires (a) articulating a political ethics of a given type of uncivil disobedience (such as government whistleblowing, environmental sabotage, political rioting, or hunger strike), with defining features and justificatory conditions; and (b) assessing the specific context in which a particular act takes place, to properly draw the contours of the injustice being resisted (or to confront agents’ perceptions with the reality) and to enable us to judge whether the uncivil tactics were well calibrated to the context and end pursued. Close-up judgments will reveal that even among justified acts of a given type of uncivil disobedience, some might, while others will not be undertaken by agents who display fidelity to law and share a commitment to a common political project. In contrast, many theories of civil disobedience make the latter by definition a signal of these things, without being open to the possibility that the disobedience in question be both justified and not designed to signal them.

Finally, from the conceptualization of uncivil disobedience as a negative of civil disobedience, it doesn’t follow that the account leaves intact a too-narrow, too-demanding, and sanitized concept of the latter. Rather, characterizing certain acts of principled disobedience as uncivil creates opportunities to expose and denounce the ideological agenda underlying ubiquitous calls for civility in the liberal mode. As critics of liberal civility note, the powerful often use the injunction to be civil as a way of controlling and silencing activists, casting them in a negative light and prejudicing the public against them – even when their protests are, in fact, peaceful. Calls for civility conceal what Bernard Harcourt calls the “incivility of politics” – the harms it regularly inflicts – and obscure power differentials.Footnote ⁴⁴ Embracing incivility can then be a way to render these dynamics visible by showing that the public sphere is infected by testimonial injustice: only those in power have ready access to a public sphere governed by norms of civility; only they can speak and be heard. Entrenched minorities, meanwhile, lack such access, forcing them to engage in uncivil disobedience. Incivility, then, becomes an index of disempowerment, its recognition a means of foregrounding testimonies that otherwise find no audience.

More directly, incivility can help reveal how the template of civil disobedience is used as a muzzle. Perhaps this is why, despite its negative connotations, the label of incivility has more often been embraced in recent years. Consider the example of the democracy movement in Hong Kong, which took an explicitly and unapologetically uncivil turn after the 2014 Occupy Central protest failed to sway the Chinese government. Whereas Occupy Central was modeled on liberal civility, the 2019–2020 Water Revolution saw hundreds of protesters turning out in hard hats to smash the windows of the territory’s Legislative Council Complex. One protester scrawled on a wall of the complex, “It was you who taught me that peaceful marches are useless.”Footnote ⁴⁵

Finally, a caveat: albeit useful, the distinction between civil and uncivil disobedience does not fit all acts of unlawful resistance. Indigenous resistance to settler colonialism in North America is a case in point: although typically interpreted as civil or uncivil disobedience, it is often neither. That binary categorization, as Yann Allard-Tremblay argues, presupposes a “shared civic world” – a common public and constitutional order – and frames resistant conduct as concerned with it.Footnote ⁴⁶ But Indigenous activists neither accept nor see themselves as participants in the settler-colonial civic order. Instead, their resistance is grounded in and revitalizes Indigenous sovereignty – that is, ancestral ways of relating to one another, animals, and the land. Thus, the Indigenous activists who resisted the construction of the Dakota Access Pipeline at Standing Rock rejected the labels of “protestors” and “civil disobedients,” insisting they were instead “protectors” of water and land.

3.2 Justifying Uncivil Disobedience

If it is at least sometimes valuable to understand principled disobedience as uncivil, then we should ask whether such disobedience can be justified. This section briefly outlines the possibility of extending arguments in favor of civil disobedience to justify some types of uncivil disobedience. Section 9 will go further by responding to charges that uncivil disobedience is counterproductive and undermines civic bonds and by outlining its unique, positive contributions to supposedly liberal democratic societies.

Recall that, in response to the concern that disobedience violates the moral duty to obey the law, many theorists have pointed out that injustice, when it exceeds certain limits, dissolves political obligation and opens up a space for principled, civil disobedience. Why not uncivil disobedience as well? In previous work, I have urged an expansion of the concept of political obligation to include duties to resist injustice, including by way of civil and uncivil disobedience. My argument is that the same normative principles commonly used to ground the moral duty to obey the law support obligations to resist injustice and sometimes counsel uncivil disobedience.Footnote ⁴⁷

Recall, too, the liberal argument that civil disobedience can strengthen the recognition, protection, and enforcement of basic constitutional rights. Now consider as well that a disobedient act need not be civil in order to have such effects. For example, Snowden’s whistleblowing bolstered the rule of law by exposing serious wrongdoing and abuses by state agents and by promoting governmental accountability. Similarly, the FBI’s unconstitutional Counterintelligence Program, better known as COINTELPRO, was ended after the Washington Post ran a front-page story about it on the basis of illegal leaks: anonymous members of an activist group, the Citizens’ Commission to Investigate the FBI, broke into a bureau office, stole more than a thousand classified documents, and turned them over to reporters. Indeed, in these cases, uncivil disobedience not only promoted justice, it also buttressed the rule of law even as it involved covert lawbreaking. And yet the activists who exposed COINTELPRO were radical peace activists who neither trusted the government nor saw themselves as acting within the limits of fidelity to law. At the very least, such incidents complicate the liberal argument that civility is necessary in order that disobedience not destabilize the social order and the rule of law.

If uncivil disobedience can be a means of promoting justice, it can also be an exercise of democratic politics, following democratic accounts. Disobedience need not be civil in order to highlight democratic deficits, demand inclusion, and combat the rigidifying tendencies of state institutions. Suffragists’ uncivil protests in demand of the franchise are a case in point. Although female suffragists’ tend to be remembered as civil disobedients (likely due to class privilege), they used tactics that were clearly uncivil. They smashed the windows of London’s shopping district, vandalized the Royal Botanic Gardens, cut telephone and telegraph wires, and burnt post boxes. One of the better known disobedients, Emily Davison, stepped in front of King George V’s horse during the 1913 Epsom Derby and was fatally injured. These activists deliberately defied norms of civility in insisting that state institutions uphold their avowed commitment to protecting civil and political equality and see them as equal partners in the shared political project.Footnote ⁴⁸

To be clear, while arguments in favor of civil disobedience might be extended to justify certain acts of uncivil disobedience, these arguments do not offer a wholesale justification of uncivil disobedience. Such arguments could only justify certain types of uncivil disobedience undertaken in pursuit of goals that align with defenses of civil disobedience – including strengthening the rule of law, promoting democratic inclusion, and redressing injustice – or that align with the normative principles that ground political obligation.

In conclusion, the concept of uncivil disobedience is certainly not a short cut to legitimize protests and acts of resistance. It must be disaggregated for further evaluation, since different types call for different justifications. As will become clear in Part III, whether given acts of uncivil disobedience are permissible and justified might depend on many factors, including the agent’s motivations and intended goals, the act’s expected and actual consequences, and the constraints that the agents took upon themselves in order to minimize the risk of harm.

Sketching the normative dimensions of diverse types of uncivil disobedience is the task of Part III. First, Part II traces the resistant practices at the imagined origins of civil disobedience, the better to understand what civil and uncivil disobedience might consist of and hope to achieve.

4.1 Against Obedience

The question at the heart of Thoreau’s essay is this one: What obligations do subjects owe their civil government?Footnote ⁵² Thoreau takes as his foil the utilitarian and Christian philosopher William Paley, who defended a “duty of submission to civil government” or “duty of civil obedience” on the basis of “expediency” or utility. Thoreau responds that the demands of justice outweigh those of expediency, so that resistance is warranted when a government perpetuates grave injustice. The “civil” in Paley’s “civil obedience” and Thoreau’s “civil resistance” thus refers to the political relation between civilian subjects and their civil government. It has nothing to do with restraint, decorum, or any other behavioral norm.

Thoreau puts forth a radical critique of the idea that citizens are morally bound to submit to law, offering instead a stirring defense of their responsibility to resist injustice. His rebuttal of political obligation is grounded in the recognition of large gaps between law and justice:

The state demands uncritical obedience and fosters in the public the opinion that obedience is a virtue. But what the state commands is often death and destruction; in obeying, people take part in the perpetration of daily injustices and large-scale atrocities – in Thoreau’s time, against Native Americans, Mexicans, and enslaved Africans and African-descended persons. More than a century later, Howard Zinn reminds us that “[h]istorically, the most terrible things – war, genocide, and slavery – have resulted not from disobedience but from obedience.”Footnote ⁵⁴

The obedient not only feel morally bound to comply but also are relieved of any responsibility for the acts they are commanded to perform. Thoreau attacks these default attitudes by enjoining people to stop serving the state “as machines, with their bodies”Footnote ⁵⁵ and by arguing that obedient citizens are complicit with the state’s nefarious projects:

Thoreau’s answer to the question of political obligation is clear: subjects owe nothing to a state that creates and perpetuates grave injustice. Rather, their duty is to not contribute to the perpetration of serious wrongs.

4.2 Injustice and Conscience

Many scholars, Arendt and Rawls chief among them, have read Thoreau as principally concerned with the purity of his moral conscience. Rawls describes Thoreau’s action as “conscientious refusal,” lacking civil disobedience’s appeal to the political community. Arendt likewise contends that Thoreau’s resistance is not political, on her view because he acts alone rather than in concert with others.

Parts of Thoreau’s essay support this individual- and conscience-centered reading of the duty to dissociate oneself from injustice. His claim that a citizen’s duty is not to contest injustice but, less stringently, to not contribute to it is arguably an example. Thoreau also writes that “under the name of Order and Civil Government, we are all made at last to pay homage to and support our own meanness,”Footnote ⁵⁷ further suggesting that what’s wrong with habitual submission to an unjust state is the corruption of individual moral lives.

However, conscience-based appeals are not necessarily apolitical. In Thoreau’s time, and indeed today, appeals to conscience are a common rhetorical ploy to political motivate action. Consider that Thoreau and his contemporaries used similar strategies to urge more from complacent Abolitionists. “At most, they give only a cheap vote,” Thoreau laments at one point in Civil Disobedience – a case of browbeating with obvious political valence.Footnote ⁵⁸ Angelina Grimké, the feminist and Abolitionist daughter of a South Carolina enslaver, was another exponent of this genre, excoriating whites who were satisfied to denounce slavery from the distance of the North:

For Abolitionists like Grimké and Thoreau, tracing citizens’ complicity with horrors from which they felt distant was a consciousness-raising effort. These authors perceived that holding readers to account for their own moral failings might move them. This was not just a rhetorical manipulation, either. As Grimké explains in a letter to a friend, slavery fostered prejudice and thwarted compassion among southern white people, eroding their moral capacities and leaving them unable to cultivate Christian virtue. She cites the testimony of a born-again Abolitionist describing how living as a free white person under slave law had distorted his moral sense: “I had become so familiar with the loathsome features of slavery, that they ceased to offend – besides, I had become a southern man in all my feelings, and it is a part of our creed to defend slavery.”Footnote ⁶⁰

Ultimately, I would argue that, if Thoreau emphasizes the moral injury suffered by citizens complicit with state injustice, he does so as a form of moral suasion. This is potentially an effective call to action – the mode whereby Thoreau encourages readers to do right. Thoreau’s imperative – “I do not lend myself to the wrong which I condemn” – entails a demand to rectify injustice because the government acts in the citizen’s name and derives its power from the citizen’s cooperation. Obedience makes possible the state’s continued wrongdoing and therefore amounts to acquiescence to, and responsibility for, what it does – no matter the nature of the government. Even under tyranny, individual submission fuels the state machine.

4.3 Noncooperation and Anarchy

How should citizens respond to the call to resist their unjust government? Disobedience is one way, according to Thoreau: “If [the injustice] is of such a nature that it requires you to be the agent of injustice to another, then, I say, break the law. Let your life be a counter-friction to stop the machine.”Footnote ⁶¹ Thoreau’s own disobedient actions suggest that such actions need not be civil (in the behavioral sense), public, or nonviolent. Thoreau participated in the Underground Railroad – a covert project – at great risk to himself. He also praised John Brown’s 1859 raid on Harpers Ferry, a violent and ultimately unsuccessful action intended to initiate further violence in the form of an armed slave revolt.Footnote ⁶²

Crucially, Thoreau recognizes the need for collective action and appeals to the political community in his lectures and writings. His appeals are very different from those that Rawls and Arendt hear at the heart of civil disobedience, as he calls on all to cease cooperation with the government. Thoreau does not see his own tax resistance not as a “solitary” act, to use Arendt’s word, but as a link in a long chain leading to revolution:

Noncooperation, even by a minority, starves the state machine, potentially bringing about transformative effects: “A minority is powerless while it conforms to the majority; … but it is irresistible when it clogs by its whole weight.”Footnote ⁶⁴

Thoreau’s political philosophy proves to be anarchist at its core. As James Ingram persuasively argues, for Thoreau, “Rulers are not to be replaced, but left behind.”Footnote ⁶⁵ Contra readings of Thoreau as a “democrat”Footnote ⁶⁶ or “constitutional patriot,”Footnote ⁶⁷ Eraldo Souza dos Santos likewise argues that the horizon of Thoreau’s political vision is the abolition of civil government.Footnote ⁶⁸ Thoreauvian civil resistance – this original blueprint of civil disobedience – is radical indeed. Ingram even suggests that what Thoreau “proposes is not civil disobedience, but what anarchists term direct action: practices by which people, rather than petitioning the state, express their demands by disrupting social or official life.”Footnote ⁶⁹

Is anarchist direct action, in fact, a blueprint for civil disobedience, or are these practices alien to each other – even opposed? The next section takes up this question.

5.1 What Direct Action Is Not

The concept of direct action arose in the late nineteenth and early twentieth centuries within revolutionary leftist organizations strewn across the globe, many associated with causes like syndicalism, which sought to make labor unions the owners of the means of production.Footnote ⁷² Labor organizers debated the meaning of direct action, its justification, and its role in class struggle, while opponents of the practice smeared it by association with violence, terrorism, and political assassination. As the American anarcho-feminist Voltairine de Cleyre wrote in 1912, detractors had flipped the concept of direct action “inside out, and upside down, and hindside before, and sideways, by occurrences out of the control of those who used the [expression] in their proper sense.”Footnote ⁷³

What is the proper sense of direct action, then? It is most easily defined by what it is not: it is not political action, which anarchists also referred to as indirect action. For de Cleyre, indirect or political action consists in following the avenues set out by political institutions to bring about change. Under a representative or parliamentary government, the central avenue of political action is voting in elections. In a 1903 pamphlet, the French anarchist-syndicalist Émile Pouget argues that direct action is the “rebuttal of democratism” or “negation of Parliamentarism.”Footnote ⁷⁴ On this view, whereas parliamentarism erects and legitimizes authority and demands obedience and passivity, direct action manifests workers’ freedom and agency.

In her essay, de Cleyre rebuts those socialists who believe that “political action and political action only can win the workers’ battle.”Footnote ⁷⁵ While opponents condemned direction action as “the author of mischief incalculable,” de Cleyre defends it as doing significantly more good than harm, which she cannot say of indirect action. Her calculus here goes beyond the instrumentalist question of what strategy is most likely to bring about the revolution: de Cleyre believes the good of direct action also lies in its ability to foster in citizens the virtues that enable them to establish and maintain a free society – virtues that have no place in electoral politics.

In particular, de Cleyre argues that the injunction to channel grievances through the ballot entails that workers “be peaceable, industrious, law-abiding, patient” and not “rise up” even against obstacles to participation in political action itself, such as disenfranchisement. For to do so “might ‘set back the [working-class] party.’” This mode of operating, she writes,

On de Cleyre’s view, direct action is an antidote to the docility of political action and the only sustainable method to achieve emancipation. Similarly, Pouget highlights the value of direct action as a source of energy and “moral impregnation,” for it releases workers “from the straitjacket of passivity” and fosters their “will-power,” “sovereignty,” and “continued growth.”Footnote ⁷⁷

5.2 What Direct Action Is

Through direct action, workers actively put pressure on the boss and, beyond, on the state, to obtain the satisfaction of some demand. But exactly what form direct action takes is a matter of debate.

Pouget states that direct action is not any one thing – for instance, it can be “anodyne” or “very violent,” depending on what the circumstances demand.Footnote ⁷⁸ However Pouget’s insistence that direct action is “the symbol of revolutionary unionism [i.e., syndicalism] in action” suggests that in his view the labor strike epitomizes the practice.

For her part, de Cleyre argues that “direct action has always been used, and has the historical sanction of the very people now reprobating it.”Footnote ⁷⁹ She illustrates this claim with reference to a number of historical instances of “peaceable” direct action: American colonists’ non-importation agreements against the British; the Salvation Army’s “singing, praying, and marching” for their freedom of assembly; the Industrial Workers’ strikes for higher wages; New York housewives’ butchery boycotts, seeking to lower the price of meat; Quakers’ persistent refusal to pay taxes, take up arms, or swear allegiance to any government; and abolitionists’ organization of the Underground Railroad. But de Cleyre does not consider violence disqualifying and also cites what she considers justified cases of “violent direct action,” including the Boston Tea Party.

Indeed, de Cleyre underscores the violence inherent in strikes, which she considers legitimate direction action. A telegraph strike “means cutting wires and poles, and getting fake scabs in to spoil the instruments.” A steel mill strike “means beating up the scabs, breaking the windows, setting the gauges wrong, and ruining the expensive rollers together with tons and tons of material.” A garment workers’ strike “means having an unaccountable fire, getting a volley of stones through an apparently inaccessible window, or possibly a brickbat on the manufacturer’s own head. A strike in the building trades “means dynamited structures.” And, in the case of any strike, “fights between strike-breakers and scabs against strikers and strike-sympathizers, between People and Police.”Footnote ⁸⁰

As de Cleyre’s analysis of strikes indicates, sabotage – the worker’s attack on his work tool and product – is an important weapon in the arsenal of proletarian warfare. Pouget agrees, memorably describing “sabotage as a form of revolt … as old as human exploitation.”Footnote ⁸¹ Sabotage epitomizes direct action and improves the chances that a strike will succeed: by destroying or disabling the work equipment, sabotage preempts the use of scabs and soldiers to keep the factory running. But sabotage doesn’t end with the destruction of tools; Pouget details the many other forms that sabotage can take, including work stoppages and slowdowns; targeting production quality (e.g., cutting clothes according to the wrong patterns or providing a good product where the boss serves a bad one); “open-mouthed sabotage,” meaning blowing the whistle on bosses’ sordid business practices; and work-to-rule strike, which involves the worker’s strict adherence to the rules of their work contract with the goal of disrupting and slowing down the work process.Footnote ⁸²

Certainly, neither Pouget nor de Cleyre would conflate direct action and civil disobedience as the latter is widely understood today. For them, direct action was a tactic specifically of class struggle, designed to counter a far more destructive enemy: while the proletarian sabotage “hits capital only in the bank account,” Pouget writes, capital (itself a form of sabotage, in his view) “strikes at the sources of human life, ruins the health of the people and fills the hospitals and the cemeteries.”Footnote ⁸³ Still, proletarian sabotage and the labor strike more broadly hit. They aren’t supposed to be civil. Sabotage is usually covert, and strikes tend to involve violence. The goal of direct action is not to communicate or persuade. It is to empower workers and leverage their collective power to coerce employers and industries – not only for better wages and working conditions but also, ultimately, to bring about the revolution: to destroy the imperium of capital and place the system of production in the hands of the workers.

5.3 Direct Action and Civil Disobedience

Insofar as de Cleyre wants to describe historical and contemporary cases of civil disobedience (loosely conceived, as we saw) as direct action, she is not especially interested in distinguishing the two concepts. But if we understand civil disobedience from a liberal or deliberative perspective – as an appeal to the majority on the basis of widely accepted constitutional principles – then we could highlight a contrast between the two, and summarize it in terms of deeds versus words. We could then associate civil disobedience with indirect action rather than direct action, given the civil disobedient act’s function as a plea to legally constituted authorities.

Agents engaged in direct action do not rely on authorities; they rely only on themselves. “Every person who ever had a plan to do anything, and went and did it, or who laid his plan before others, and won their co-operation to do it with him, without going to external authorities to please do the thing for them,” de Cleyre writes, “was a direct actionist.”Footnote ⁸⁴ David Graeber’s conception of direct action and civil disobedience echoes de Cleyre’s:

If civil disobedience is first and foremost a mode of address, “a form of protest, a public act addressed at least partly to the authorities themselves,” direct action is a mode of doing undertaken “as if the state does not exist.” It is a form of defiance that has no interest in communicating with the entity defied but rather circumvents it, and seeks to bring about change by cultivating free and caring forms of community in the here and now.

Benjamin Franks distinguishes civil disobedience and direct action along three dimensions.Footnote ⁸⁶ First, civil disobedients, but not direct actionists, commit to nonviolence. Second, civil disobedients necessarily break laws, whereas direct action is not necessarily illegal, as when it takes the form of open-mouthed sabotage or work-to-rule strike. Third, and crucially, direct action is prefigurative. Prefiguration, a hallmark of anarchist ethics, holds that “the means have to be in accordance with the ends” – that is, the method of action must mirror or prefigure the goal that is sought. In practice, this means that anarchist acts of resistance, including direct action, should manifest desiderata like self-reliance, mutual aid, and free agreement. It is, for instance, on the basis of prefiguration that anarchists critique Marxist-Leninist avant-garde politics, which demands deference to party leaders and leads to the abdication of individual responsibility.Footnote ⁸⁷ Civil disobedience, for its part, has no intrinsic relationship with prefiguration. It may be justified instrumentally, by its beneficial effects alone.

•••

While the classical Anarchist revolutionary tradition has receded from the political scene, “neo-anarchism” or “small-a anarchism,” understood as an anti-oppression and non-hierarchical organizing framework infuses a large number of left-wing social movements today.Footnote ⁸⁸ Informed and experimented with since the 1970s by peace activists, feminist and queer groups, and radical environmental activists, neo-anarchism was turbocharged by the alter-globalization movement of the late 1990s, the Argentinian uprising of 2001, anti-austerity movements in Europe, and Occupy Wall Street. Horizontalism – the creation of organizational structures that are non-hierarchical, decentralized, and participatory, where all members have an equal voice and decision-making power – is a key component of prefiguration.Footnote ⁸⁹ Horizontalist groups coordinate activity and strategy through general assemblies, and seek consensus in their decision-making. They reclaim public spaces where they establish protest encampments which sometimes turn into police-free “temporary autonomous zones” (a term popularized by anarchist Hakim Bey).Footnote ⁹⁰ Black Lives Matter embraces both prefigurative politics and horizontalism, but not anarchism itself.Footnote ⁹¹ Mohandas Gandhi and Martin Luther King, Jr., to whom we now turn, embraced prefiguration.

6.1 Gandhi’s Satyagraha

Gandhi, the most influential figure in India’s campaign for independence from British rule, developed and conceptualized a practice and philosophy of nonviolence he termed satyāgraha. Literally “truth-force” in Sanskrit, this neologism designated the nonviolent resistance Gandhi began experimenting with while working as a lawyer in South Africa. There, Gandhi led a multiethnic movement against discriminatory legislation targeting Indians, Africans, and Coloreds (multiracial South Africans). He perfected this nonviolent resistant practice in India, organizing a broad noncooperation movement, which aimed to paralyze British governance through mass boycotts of British goods and services, withdrawals and resignations from British institutions, and tax refusals.

Gandhi sought to distinguish his form of resistance, which he described as “dynamic,” from the pacificism theorized by the Russian novelist Leo Tolstoy and practiced elsewhere in the United Kingdom and South Africa.Footnote ⁹² At the heart of satyagraha is love and discipline. Gandhi’s followers, satyagrahis, pledged themselves to nonviolence and swore their preparedness to suffer for the truth. “A satyāgrahi was ever ready to endure suffering and ever lays down his life to demonstrate to the world the integrity of his purpose and the justice of his demands,” Gandhi said in a speech on March 7, 1919.

This preparedness to bear pain and suffer further distinguishes satyagraha from political violence:

On Gandhi’s view, an unjust law is an “error” and a lie, submission to which cannot ever be morally required. Gandhi sees two possible roads toward emancipation, once legal avenues of bringing about change have been exhausted: either political violence, which involves the use of physical force to coerce opponents, or satyagraha, which involves civilly disobeying the unjust law since it consists of “suffering in your own person by inviting the penalty for the breach of the law.” Nonviolence is a compelling force (like physical violence) – but a spiritual one, wielded to persuade, not coerce, the opponent. Satyagraha is thus Gandhi’s answer to unjust law.

In fact, the self-sacrifice required of satyāgrahi exceeds acceptance of legal penalties. It demands self-examination and self-purification – an extensive process usually involving prayer and fast to spiritually prepare oneself for “the pitting of one’s whole soul against the will of the tyrant.”Footnote ⁹⁴ Satyagraha also demands “suffering wrong without retaliation,” whether the brutality of police, soldiers, and other “evil-doers” (for instance, the security services hired by factory bosses) or the resistance of one’s peers.Footnote ⁹⁵

Come what may, then, the satyagrahi renounces any right to self-defense. As Karuna Mantena has shown, Gandhi deems violence in individual and collective self-defense not so much morally impermissible as futile.Footnote ⁹⁶ Violence against colonial domination would cultivate the wrong kind of independence for India and breed the wrong kind of polity, amounting to a mere change of the personnel ruling a violent state that generates unstable conditions. Nonviolence is superior because only it can preserve the conditions enabling peace and concord after the decolonization struggle. “We reap exactly as we sow,” Gandhi writes in Hind Swaraj, stressing an organic, prefigurative connection between means and ends at the heart of political action.Footnote ⁹⁷ Nonviolence bolsters activists’ sense of self-worth and dignity and enables them to affirm their agency and powers of self-determination even under conditions of political subjugation.

What is more, nonviolence proves to be a highly effective tactic of moral suasion. Richard Gregg, who introduced Gandhi’s philosophy of nonviolence to the US public in 1934 through his monograph The Power of Nonviolence, argued that nonviolence ignites an affective and psychological chain reaction in the bystander and the opposition. This process begins with surprise at the defeat of one’s expectation that activists will respond violently to their own violent repression. Surprise leads to wonder, followed by self-reflection, admiration for the activist and shame at one’s conduct, and finally conversion. Gregg describes this process as “moral jiu-jitsu” because the opponent loses their balance and experiences a profound disorientation, as if the world was turned upside down – the strong is revealed weak and the weak as strong.Footnote ⁹⁸ That is the power of nonviolence.

6.2 King’s Nonviolent Direct Action

King was deeply influenced by Gandhi’s analysis of the power of nonviolence. He wrote a Foreword to the second edition of Gregg’s book in 1959, which had been updated with the examples of nonviolent (overt and covert) resistance against the Nazis in Europe and of the 1955–1956 Montgomery Bus Boycott in Alabama. King praised the book, wishing it “a wide readership, particularly among those, in this country and throughout the world, who are seeking ways of achieving full social, personal and political freedom in a manner consistent with human dignity.”Footnote ⁹⁹

Mantena identifies in King’s writings and speeches (as in Gandhi’s) his endorsement of what she dubs the “three faces of nonviolence”: morally, nonviolence is the right means by which oppressed people can regain dignity and self-respect; strategically, it is a necessary means to just and stable political results and future democratic concord; and tactically, the dramatization of nonviolent actors’ discipline works effectively to persuade opponents.Footnote ¹⁰⁰ Like Gandhi, King rejected violence on pragmatic grounds, as futile and counterproductive in light of post-struggle aspirations for democratic concord and racial integration.

But King recognized the legitimacy of Black anger in response to police brutality, racial discrimination, and poverty; and this anger frequently erupted in civil unrest, especially in what is known as the “long, hot summer” of 1967, when over 150 riots took place. As Brandon Terry highlights, “King argued that it was best, both politically and for one’s own flourishing, to channel anger into less corrosive emotions.”Footnote ¹⁰¹ Rage makes one powerless. Anger should instead be directed into creative nonviolence, cleansed from its violent and vengeful impulses while retaining its lucid assessment of and indignation at white supremacy. Nonviolence is, for King, an “ethic of love” built on Christian agape – a kind of love for humanity which “enjoins us to see even our political enemies as moral equals whom we are interdependent with and vulnerable to, and whose needs and welfare we are obligated to consider.”Footnote ¹⁰² Nonviolence imagines a different future.

King also located the transformative power of nonviolence in the activist’s steadfast courage and preparedness to self-sacrifice. For King, nonviolent activists must not only “willingly accept the penalty of imprisonment in order to arouse the conscience of the community over its injustice,” as he wrote in the “Letter from a Birmingham Jail,” but they must also “accept blows without retaliating.”Footnote ¹⁰³ Nonviolent activists display “unearned suffering” as they absorb and reflect, rather than defending themselves against, state and mob violence.Footnote ¹⁰⁴ In doing so, they make the reality of their own oppression stark, compelling the white majority to see it and renounce it out of shame at their contribution to its maintenance.

King, but not Gandhi, deemed nonviolence compatible with coercion. After the Montgomery bus boycott, which unleashed spectacular white retaliatory violence, King saw appeals to conscience as insufficient. He wrote about the campaign in Birmingham, Alabama, which involved a mass boycott of local businesses, sit-ins and marches, including by youth participants in the Children’s Crusade: “Nonviolent direct action seeks 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.”Footnote ¹⁰⁵ King, however, does not name coercion in the letter, equivocating about what Alexander Livingston dubs “the coercive face of nonviolence” until 1966, when the Civil Rights Movement, having formally ended the southern racial caste system, pivoted the struggle for equality toward northern ghettos.Footnote ¹⁰⁶ It then became clear that nonviolent resistance, to succeed, needed not only to arouse and persuade but also to disrupt and confront, by means of “some form of constructive coercive power.”Footnote ¹⁰⁷

As Livingston shows, King’s philosophy of nonviolence and civil disobedience evolved over time. Early on, in the “Letter,” King both proclaims nonviolent activists’ aim to “arouse the conscience of the [white] majority” and appeals to the United States government’s federal authority and to the principles of political morality entrenched in the Constitution, presenting nonviolent discipline as evidence of activists’ embrace of these principles. (The “highest respect for law” he professes, however, must be understood as directed toward natural law, not positive law.Footnote ¹⁰⁸) But these appeals to white conscience and to constitutional principles fade out of his late theory of civil disobedience, to make place for “militant love” – “a militant conception of protest politics that looks toward emancipatory transformation beyond the terms of the nation’s constitutional frame.”Footnote ¹⁰⁹ In Where Do We Go from Here?, King describes as a “miscalculation” civil rights leaders’ assumption that “without massive upheavals certain systemic changes were inevitable as the whole nation reexamined and searched its conscience,” given the realization that white Americans’ power was “conscienceless.”Footnote ¹¹⁰ Stokely Carmichael (later Kwame Ture) had put the problem succinctly years earlier: “in order for nonviolence to work, your opponent must have a conscience. The United States has none.”Footnote ¹¹¹ Appeals to shame and denunciations of hypocrisy would not work.

The problem runs deep, as Livingston’s insightful analysis shows, for King “denies that there is any common moral language shared between white and black Americans … The work of liberatory integration is therefore in no small part the creation of new values that could serve as the shared language of any future association worth fighting for.”Footnote ¹¹² Nonviolence must not only force negotiations and dismantle unjust institutions; it must also imagine and bring about a new language through which the work of rebuilding could be done, collectively.

6.3 Myth and Reality

The consensus narrative of the Civil Rights Movement has simplified, sanitized, and distorted King’s rich philosophy of nonviolence and ignored the complex battle of ideas waged within the movement about nonviolence itself. Consensus history suggests that the Civil Rights Movement achieved major goals through nonviolence alone, thereby sidelining the roles of radical activists and groups, including Black nationalists. To the extent that King’s Southern Christian Leadership Conference was successful, this was in part due to the contrast it made with Black Power groups, which made King and his allies seem moderate.

Furthermore, while civil rights activists are to be praised for their extraordinary sacrifices, in celebrating their absorption of violence, the consensus narrative erects nonviolence into a normative imperative, thereby assuming the state’s legitimacy even amid state-authored and state-sanctioned violence and at least implicitly condemning those Black Americans who did try to defend themselves. Consider the experience of Angela Davis, who grew up amid white racial terror in Birmingham. Her neighborhood saw such a constant stream of bombings of Black homes that it soon became known as Dynamite Hill. The city itself was nicknamed “Bombingham.” She writes in her autobiography:

Davis’s analysis underscores both the prevalence of racial terror and the state’s encouragement and commission of violence against Blacks.

The romanticized history of the Black freedom struggle ends up serving the status quo by misrepresenting nonviolent activists’ practices and fostering a kind of optimism about the possibility of US racial justice that is unmoored from reality, as Juliet Hooker has shown.Footnote ¹¹⁴ Erin Pineda, too, has debunked such myths, which seem to be manufactured for the purpose of preserving and justifying an oppressive state.Footnote ¹¹⁵ She has revealed, through archival research, civil rights activists’ own understanding of their civil disobedience as “decolonizing praxis.” Uncovering a global network of freedom struggle, Pineda shows that activists in the Civil Rights Movement saw themselves as militants against colonialism and imperialism, linking the domestic to the international – the Indian independence movement to the “occupied territory” of Black America.Footnote ¹¹⁶

Finally, against the popular understanding of Civil Rights activists being absolutely committed to nonviolence, most organizers and activists throughout the country, but especially in the Jim Crow south, carried weapons to defend themselves from white violence. Carmichael, who served as the chairman of the Student Nonviolent Coordination Committee, estimated that 90 percent of SNCC’s field workers were armed. Like fellow civil rights leaders Robert F. Williams and Charles E. Cobb Jr., and Black nationalist Akinyele Umoja, Carmichael considered armed self-defense necessary for the operation of nonviolent activities like boycotts, marches, and voting registration.Footnote ¹¹⁷ Even King kept guns in his home for protection. He argued that arms shouldn’t be visible at demonstrations, because armed self-defense had no chance of gaining sympathetic white allies, without whom there could be no victory for the movement. But he did not consider self-defense illegitimate.

In short, the pantheon of civil disobedience misrepresents its own heroes. Gandhi and King did not consider nonviolence a moral necessity; they defended it on pragmatic grounds, given their respective goals of Indian self-rule and racial equality. Nor did civil rights activists and satyāgrahis seek to vindicate the state’s promise of justice: as decolonial movements, both sought fundamental transformation of the constitutional order. The consensus narrative of the Civil Rights Movement defangs the transformative power of nonviolence as a decolonial praxis, turning it into a normative imperative that obfuscates state violence and undermines justifications of armed self-defense.

If even Gandhi’s and King’s nonviolence are more complicated – more provisional – than admirers of civil disobedience credit, what does this mean for the justifiability of violent and uncivil resistance? Part III brings us face to face with this central moral concern.

7.1 Conceptual Foundations of Violence

There are high stakes involved in defining acts as violent: observers tend to condemn violent protests and excuse their repression, while nonviolent protests are more likely to win over allies. However, the designation of a protest as either violent or nonviolent is not a straightforward matter. Objective facts do not alone determine whether a given observer perceives resistance as violent.

Designations of violence and peacefulness occur within a preexisting frame of reference, based on diverse cultural understandings of what constitutes violence. Observers’ determinations will also be influenced by their biases concerning resisters and their motives. And crucially, unless one is a direct participant in or eyewitness to an action, one will be exposed to it via media coverage. The press often does the labeling for us, describing protests as either violent or nonviolent according to criteria that may be ambiguous, unfair, and unstated. Such labels can make or break a protest movement: as social scientific research has shown, mainstream news coverage frequently delegitimizes protests by labeling them as violent.Footnote ¹¹⁸

Even in the absence of observer bias, the binary opposition between violence and nonviolence is conceptually problematic, for it implies that acts of resistance fall neatly into one or the other category. But if violence is understood as the intentional and direct infliction of injury or harm, and nonviolence as the deliberate refraining from the use of force against persons, then we are left to contend with large gray areas. What about deliberately causing injury to oneself, as the Buddhist and IRA protesters did? What about coercion, unrelated to physical harm? Recall that Gandhi and liberal theorists view coercion as impermissible violence, whereas King and radical democrats consider coercion compatible with nonviolence.

Practitioners and theorists of civil disobedience often classify the hunger strike, which involves self-starvation, as a quintessentially nonviolent and noncoercive tactic. Yet this tactic is often seen as “political blackmail,” and both the British and the Irish saw the IRA’s hunger strike as coercive.Footnote ¹¹⁹ The World Health Organization considers self-harm violent, defining violence as “the intentional use of physical force or power, threatened or actual, against oneself, another person, or against a group or community, that either results in or has a high likelihood of resulting in injury, death, psychological harm, maldevelopment, or deprivation.”Footnote ¹²⁰ According to this definition, starving oneself, immolating oneself, or endangering one’s bodily health through self-neglect, as in the Dirty Protest, are all acts of violence.

For his part, Gandhi believed that self-immolation and total fasting could accord with the principle of nonviolence if the agent harbored the right mental state – accessible to only a true satyagrahi, who has engaged in deep self-purification. He thus contrasted sātyagrahi fasts with the Irish republicans’ hunger strikes, viewing the former as persuasive and the latter as coercive. Meanwhile, in a letter to Dr. King, Thich Nhat Hanh explained that Thich Quang Duc’s self-immolation expressed “will and determination” and should be contrasted with suicide: “To express will by burning oneself, is not to commit an act of destruction but perform an act of construction, that is, to suffer and to die for the sake of one’s people.”Footnote ¹²¹

As for property damage, it is often treated as a kind of violence, especially in Western societies founded upon liberal traditions, which see private property as an extension of personhood.Footnote ¹²² However, some societies (like France) are more tolerant of property damage and open to its compatibility with nonviolence than others, as we saw in Section 3 (although France has since increasingly aligned itself with neoliberal and repressive trends). Many practitioners count some types of property damage as nonviolent. For instance, members of the radical Catholic pacifist Plowshares movement deliberately damaged lethal objects such as nuclear weapons. In a 1968 action, the Catonsville Nine, before they founded Plowshares, burned 378 draft files with homemade napalm, targeting the administrative bureaucracy of war. These activists would not condone the destruction of life-sustaining property, such as habitation or medication. But, as the activists saw it, the philosophy of nonviolence permitted the elimination of life-destroying property, to ensure respect for the dignity of human life.

My own view is that it is most useful to conceptualize property damage and self-harm as categorically distinct from both violence and nonviolence, to better recognize the ways in which property damage and self-harm mix features of violence and nonviolence while fully fitting neither. In any case, the important question is that of normatively assessing violence, property damage, and self-violence. To address that sort of question, theorists have deployed the theoretical framework of the ethics of self-defense.

7.2 Normative Justifications for the Use of Force

8.1 Civil Disobedience as Public Wrong

Many argue that civil disobedience should be understood as a wrongful act from the standpoint of law. Unlike its cousin, conscientious objection, civil disobedience has no legal existence; it is, in and of itself, unrecognized by law – a “legally unidentified object,” in the jurist Clémence Demay’s phrase.Footnote ¹⁴³ Civil disobedience involves lawbreaking, and so civil disobedients are subject to criminal punishment, but not for civil disobedience itself.

At the same time, a jurisprudence has arisen around acts of civil disobedience – a jurisprudence concerned with whether the intent to disobey law, for principled reasons, could be a reason to treat a defendant leniently or else to sanction her that much more harshly. In particular, the destabilizing potential of civil disobedience and its perceived impermissibility in democracies that afford citizens lawful avenues of dissent pervade this jurisprudence. For example, judges in the nineteenth-century United States who harshly sanctioned Abolitionists breaking the law to aid slaves sometimes did so on the grounds that their actions would inflame the Southern states, leading to instability and even secession.Footnote ¹⁴⁴ Decades later, civil rights activists protesting the racial caste system were presented as seditious “rabble-rousers” endangering political stability and undermining the rule of law with their disobedient activities.Footnote ¹⁴⁵

With respect to impermissibility, officials and judges have argued that the lawbreaking attending civil disobedience must be punished harshly because to do otherwise would imperil the democratic process by undermining its exclusive role in legal reform. A US appellate court faced with antiwar defendants convicted of violating the Military Selective Service Act of 1967 by “seizing Selective Service registration cards with intent to destroy them” brought together the stability and democracy concerns thusly:

At least in the United States, legal theorists who want to concede the value and justification of civil disobedience, while still defending its punishment, make a proceduralist argument based on courts’ proper functions. They note that, per the doctrine and law of the separation of powers, the legislative assembly alone is tasked with making and changing laws, whereas courts are concerned with enforcing the letter of the law, impartially and without considering the moral merits or demerits of that law. Andrew Sabl has advanced a related argument, from a realist perspective, advocating punishing agents’ actions without examining their states of mind, to avoid incentivizing defendants to profess deep conscientious beliefs in the hope of acquittal or leniency.Footnote ¹⁴⁷

8.2 Judicial Leniency and Rights to Civil disobedience

If many theorists – including judges weighing in on the philosophy of law and governance – view civil disobedience as a public wrong, others insist that civil disobedience is a public good that should be tolerated or at least prosecuted leniently. Ronald Dworkin urges judges to engage in an open dialogue with civil disobedients and dismiss their charges after hearing their motivations, or to use their discretion in sentencing to impose minimal punishments.Footnote ¹⁴⁸ Although Dworkin is keen to give civil disobedients a space to articulate substantial constitutional arguments, his proposal still amounts to letting judges evaluate the worthiness of individual civil disobedients’ causes, which does not on its own guarantee judicial leniency (though such leniency may well materialize, and regularly does in lower courts). Arendt proposed a reform that would treat civil disobedients as lobbyists rather than lawbreakers – specifically, that they be heard before legislatures as opposed to courts.Footnote ¹⁴⁹

Some liberal and democratic theorists have argued that civil disobedients should never be presumed worthy of punishment. They defend a moral right to civil disobedience that is independent of any justifications attributed to a given exercise of the right. This moral right designates a protected sphere in which to engage in civil disobedience, justifiably or not, and entails a presumptive claim against censure and punishment. Just as the right of free speech protects illiberal and offensive speech, not just “good” speech, so a right to civil disobedience would protect civil disobedients who pursue illiberal, undemocratic, or otherwise problematic causes.

David Lefkowitz and William Smith support this view, basing the right to civil disobedience on the broader right to democratic political participation. Kimberley Brownlee also argues for a right to civil disobedience, but grounds it in the “principle of humanism,” which holds that “society has a duty to honor the fact that we are reasoning and feeling beings capable of forming deep moral commitments” by allowing conscientious persons who find themselves burdened by law’s demands to freely disobey these on the basis of their convictions.Footnote ¹⁵⁰ For Brownlee, the right to civil disobedience entails a presumptive protection against all forms of state interference, not just punishment but also smaller forms of penalization such as fines. None of these defenses of a right to civil disobedience extends to a defense of a right to uncivil disobedience, given the more serious transgressions and harms that the latter can generate.

Smith has further articulated a policing philosophy that orients law enforcement strategies toward accommodation, rather than prevention or management, of civil disobedience. On his view, “the police should, where possible, cooperate with civilly disobedient activists in order to assist in their commission of a protest that is effective as an expression of their grievance against law or policy.”Footnote ¹⁵¹ This means that activists and police should engage in a dialogue about how the civil disobedient action will unfold, from beginning to end, including, say, pre-negotiated arrests. Noting that the police is especially unlikely to adopt such accommodating approach in the face of anti-police protests like Black Lives Matter, Jake Monaghan argues that police responses to disobedient demonstrations should be guided by a principle of proportionality, which requires de-escalating tactics – a principle that common crowd control police tactics like cordons and skirmish lines blatantly violate.Footnote ¹⁵²

With this background in place, let’s turn to our next question: how should principled disobedients relate to law enforcement, including efforts to arrest and prosecute them?

8.3 (Non-)Evasion in the Street, Jail, and Courtroom

Recall Socrates’s refusal of Crito’s offer to escape, despite the injustice of Socrates’s death sentence. Like the requirement of publicity, the demand of non-evasion is motivated in large part by the imperative that disobedients demonstrate to the public the sincerity of their conviction as well as their respect for the rule of law, if not for the particular laws they have broken.Footnote ¹⁵³

Most philosophers endorse the requirement to accept punishment without elaborating on what it entails exactly. Those theorists who have discussed the requirement have tended to focus on questions related to the criminal trial: Must civil disobedients welcome their sentence without complaint or can they protest unfair punishment?Footnote ¹⁵⁴ Is an appeal to legal defenses compatible with civil disobedience’s requirement to accept punishment?Footnote ¹⁵⁵ Must civil disobedients plead “guilty” or “not guilty”?Footnote ¹⁵⁶ As these questions indicate, theorists have proceeded as though civil disobedients typically went to trial, and they have reduced the demands of civility to the willing acceptance of legal sanctions, presumed to be the verdict and sentence dispensed at trial.Footnote ¹⁵⁷

Yet most principled disobedients, like their “criminal” counterparts, never go to trial. Participants in public demonstrations, who are usually charged with Class A violations such as disorderly conduct and trespass, often have their charges dropped; or their case is dismissed; or they are issued an Adjournment in Contemplation of Dismissal (ACD) or Release on One’s Recognizance (ROR), which simply requires defendants to remain offense-free for a set period (typically six months to a year) to have their case dismissed and the record sealed.Footnote ¹⁵⁸ This would suggest that only disobedient defendants charged with serious offenses (even unjustly so) and tried are really in a position to satisfy the demand of civility – an odd and counterintuitive implication.

Whereas the requirement to willingly accept the punishment focuses on the judicial phase (with the question of pleas, defenses, and reactions to the verdict), the concept of “non-evasion” is better suited to capture the series of expectations corresponding to different stages of the face-off with the state. Non-evasion demands that the civil disobedient, during the action, (1) risk arrest by disobeying the law publicly and (2) either voluntarily submit to or else passively resist arrest; in jail, (3) cooperate with the detention and booking procedures; in court, (4) willingly appear before the judge when summoned, and (5) respect rules of courtroom decorum. It is plausible to hold that liberal civility implies all five demands, yet only the first one has been theorized, in the context of the publicity requirement.

Indeed, the demands that theorists have focused on – the question of pleas, criminal defenses, and reactions to the verdict – are not specified by civility: civil disobedients may have good principled or prudential reasons to plead “guilty” or “not guilty,” they may appeal to criminal defenses, and they may complain about a harsh sentence without reneging their civil disobedient status. Meanwhile, critics of the duty to accept punishment tend to conflate the question of the permissibility of evading arrest and sanctions with the conceptual question, what makes an act of disobedience civil?Footnote ¹⁵⁹ In what follows I both clarify each demand of non-evasion and defend the permissibility, under some circumstances, of evasion in the street, jail, and courtroom.

First, non-evasion demands risking arrest by publicly disobeying the law. Risking arrest applies to civil as well as uncivil disobedience. But by disobeying publicly, the agent puts her body on the line in a different way than covert disobedients might: she is visible and vulnerable to law enforcement and publicly demonstrates her willingness to risk sanctions. There may be reasons not to disobey publicly, but to do so anonymously and covertly, but this public and open stance in the street marks the civility of the disobedient agent.

The second component of non-evasion regards arrest, which is the last tool in the arsenal of law enforcement to control protests. Arrests usually come after various police orders have been issued, such as orders to stay on the sidewalk, get in the pen, show identification, or cease and disperse. Civil disobedients do not need to comply with police orders – indeed, there would be no lawbreaking if protesters abided police orders in the case of public demonstrations.

However, civility demands submitting to arrest. Fleeing or hiding to avoid arrest, helping others avoid arrest, and forcefully resisting arrest amount to evasive, uncivil conduct and are incompatible with civil disobedience. Passive resistance to arrest is different: it should be recognized as basically non-evasive and compatible with civil disobedience. Tactics commonly associated with civil disobedience and taught in nonviolence training workshops such as “going limp” or chaining oneself to equipment are classified in penal law as “Resisting Arrest” or “Obstructing Governmental Administration in the Second Degree” because they slow down police and make their work more difficult. Yet they effectively enable the disobedient to continue their dissent past the action itself, by focusing attention on the state’s forceful response to peaceful protests.

While civility demands non-evasion of law enforcement, much covert principled disobedience, such as clandestine provision of abortion services where it is illegal, requires evading law enforcement, by operating underground and maintaining strict security protocols to evade encounters with police and the criminal justice system. Evasion, in many cases like this, is a condition for the possibility of achieving the disobedient agent’s goal. It is also a potentially permissible decision when the disobedient knows they will face very harsh and disproportionate criminal charges. Under the Animal Enterprise Terrorism Act (AETA), for instance, animal welfare activists have faced “terrorism” charges, even for acts that did not cause physical harm to people. In one infamous case, seven activists associated with the Stop Huntingdon Animal Cruelty (SHAC), a campaign to close one animal-testing firm, were convicted and sentenced in 2006 to four to six years in federal prison, solely for their online advocacy (coverage and support of protests that others carried out).Footnote ¹⁶⁰

Once arrested, protesters are brought to jail where they are detained and processed through the booking procedures. They will be held in a cell, identified, photographed, fingerprinted, strip searched, and interrogated. Civility arguably demands cooperating with police in jail by accepting detention and willingly sharing one’s identity, so as to demonstrate that one stands by and is willing to answer to one’s public disobedience. Noncompliance is likely to lead to forceful police response and put the arrestee in danger. However, civility does not require truthfully answering all the police questions at interrogation, and some forms of refusals to cooperate are compatible with civil disobedience and potentially justifiable as protests against mistreatment by the police.

The requirement to willingly appear before the judge when summoned for arraignment appears essential for civil disobedients, who would otherwise appear like criminals on the run. A “failure to appear warrant” would be filed against them, their driver’s license could be immediately suspended, the police would look for them, and they would be held without bail upon their re-arrest. Again, a disobedient may have good reasons to evade criminal justice proceedings – the injustice of the charges, the expectation that they would not get a fair trial, and the likelihood of severe sanctions being some of them – but they could not be considered a civil disobedient if they did.

Finally, the requirement to respect rules of courtroom decorum translates civility into the courtroom, demanding the disobedient defendant demonstrate her overall respect for legality by abiding the rules of courtroom decorum – rules that instruct defendants to stand up or sit, address the judge with her proper honorific, remain silent unless explicitly allowed to speak, solely answer the questions asked at the witness stand, and so on. This demand of civility entails that the paradigmatic uncivil conduct is “contempt of court,” which includes heckling, interrupting, and refusing to obey judges’ orders. Principled disobedients have often been punished specifically for such violations. For instance, in 1969, Black Panther Party chairman Bobby Seale repeatedly interrupted the proceedings of what came to be known as the Chicago Eight Conspiracy Trial to demand legal representation, which he hadn’t been granted. He was gagged and shackled during the trial, charged with sixteen counts of contempt, and sentenced to four years in prison.Footnote ¹⁶¹

This facet of non-evasion is, as Medina taught us, contextual and gradual. Courtroom rules vary from one setting (state and jurisdiction) to the next, and whether and how they are followed and enforced might greatly vary, depending on the judicial culture and the judge. Courtroom decorum is also a matter of degree: appearing to court in the “wrong” attire (say, wearing a t-shirt with a political slogan) is a minor violation, and it may well be ignored. It will typically take an accumulation of violations of courtroom decorum to describe a disobedient agent as “uncivil” in the courtroom. And as Seale’s example makes clear, the judge may wield his discretionary power to keep order in the courtroom unfairly and unreasonably. The case also shows the flipside of the demands of civility in the courtroom, namely, the possibility for disobedient agents to weaponize the latter space for political purposes. If non-evasion in the form of courtroom decorum manifests respect for law, then incivility such as contempt of court may be justified to express disrespect toward the legal system, when the latter doesn’t deserve our respect. Black Power defendants like Seale thus viewed the courtroom as a “hegemonic white space” and site of resistance.Footnote ¹⁶²

• • •

This section addressed the central twin issues of the state’s proper, rights-respecting treatment of principled disobedients and of disobedient agents’ expected response to the state’s enforcement and administration of the law. The discussion revealed that principled disobedience does not emerge out of a vacuum, polished and frictionless, but takes shape through the course of events that also involve the legislature, police, district attorneys, and judges.

Beyond theorists’ endorsement or critique of the requirement to accept punishment, which narrowly focuses on the trial, I proposed to conceptualize non-evasion to capture the demands of civility corresponding to different stages of the face-off with the state, in the street, jail, and courtroom. Ultimately, a stringent application of the non-evasion requirements threatens to undermine the goals of disobedience. Disobedients aim, after all, to defy the state. Escaping arrest and sanctions, rejecting judicial proceedings, and engaging in contempt of court can serve to promote a movement and express disobedient agents’ distrust toward the state. Theorists might do well to focus their attention on the courtroom as a space of dissident praxis. They would find here a range of actions no less principled than those that placed the disobedient’s case on the docket in the first place.

9.1 Is Uncivil Disobedience Counterproductive?

William Scheuerman, whose critique of the concept of uncivil disobedience as an “amorphous categorical rubric” we examined in Section 3, also chastises defenders of uncivil disobedience for ignoring its “ambivalent, oftentimes unsettling historical record.”Footnote ¹⁶³ In his view, theorists who defend uncivil disobedience neglect the social scientific evidence demonstrating the superior efficacy of civil disobedience and nonviolent protest across all sociopolitical contexts and the counterproductivity of uncivil, confrontational, and violent tactics. A social movement that relies on uncivil tactics is doomed to fail at the essential task of moral suasion: instead of winning the hearts of potential allies, an uncivil movement will alienate them, and thus undermine its chances of success.

Erica Chenoweth and Maria Stephan’s research provides empirical ballast for this widely accepted idea. Analyzing 323 civil resistance campaigns between 1900 and 2006, 106 of them nonviolent and the rest violent, they found that nonviolent campaigns succeeded 65 percent of the time, while violent campaigns succeeded about 35 percent of the time.Footnote ¹⁶⁴ What might explain this apparent divergence in fortunes? For one thing, a social movement benefits from as much popular participation as possible, and nonviolence lowers the bar for mass participation. In contrast, violent disobedience – and incivility more broadly – tends to depress movement turnout, by forcing participants to risk injury and arrest. In addition, those who oppose violence and incivility in principle will choose not to participate. Then too, uncivil and violent campaigns tend to galvanize security forces and the movement’s opponents – the regime and its supporters – instead of giving security forces reasons to defect and side with the movement. Finally, while nonviolent campaigns are sometimes violently repressed, violent campaigns are very likely to be met with such repression, which the public is likely to see as justified.

Yet, without dismissing the power of nonviolence, the social scientific wisdom about violent and uncivil disobedience is subject to challenges. As Chenoweth and Stephan themselves acknowledge, their sample is subject to selection bias: nonviolent campaigns crushed in their infancy are not included in the dataset, because they seldom receive media coverage, whereas violent campaigns that are quashed early are more likely to be reported upon. What is more, the authors classify as nonviolent various resistance movements that do, in fact, harbor violent elements, such as the Philippines democracy movement of 1983–1986, the anti-Apartheid movement, the Second Intifada, and the Arab Spring. It is not necessarily unreasonable to consider a mostly nonviolent campaign nonviolent on the whole. But this shouldn’t obscure the role that low-level violence, and the violent flanks of otherwise-nonviolent movements, might play in reaching successful outcomes. For instance, historians of the Black freedom struggle increasingly recognize the productivity of uncivil and threatening elements alongside and within the Civil Rights Movement.

Chenoweth and Stephan’s dataset also is limited to “maximalist” civil resistance campaigns, defined as major resistance movements seeking to topple a dictator, oust an occupier, or achieve territorial independence. Resistance campaigns that demand legal reforms or cultural change (such as SlutWalks and #MeToo); protests against economic inequality and austerity; and movements for land reform, prison abolition, climate activism, and so on are not maximalist in this sense, though they may well be radical and even revolutionary in their outlook. As a result, the data tell us nothing about these campaigns, yet Chenoweth and Stephan have applied their findings to contemporary non-maximalist resistance movements, condemning any kind of violence in protest. Conceiving of self-defense as “counterviolence,” they urge protesters not to protect themselves or each other.Footnote ¹⁶⁵ Such warnings should give us pause, especially as their effect is to legitimate the branding of peaceful protests as violent whenever protesters defend themselves from violence. As Avia Pasternak further notes, the data about the efficacy of nonviolence is, in fact, much “less conclusive when the resisting group is an oppressed minority,” such as undocumented migrants or incarcerated persons, “rather than a group that enjoys fairly broad popular support,” which shows again the limits of Chenoweth and Stephan’s argument.Footnote ¹⁶⁶

As well, whether a civil resistance campaign succeeds may be hard to discern. If all we are concerned about is regime change, then it is relatively easy to say whether a movement succeeds or fails (though that too can be a controversial matter). But non-maximalist protests may seek to do many things at once, any of which can be more or less successful. The campaign may hope to draw the government’s and the public’s attention to an issue, build or galvanize a movement, bring about reforms, revise principles of political morality, and so on. Meanwhile, many types of uncivil disobedience are not primarily communicative: assisting migrants seeking to cross borders, providing abortions where they are criminalized, and rescuing animals from abuse, for example. The success of these actions can’t be measured in terms of legal reforms, let along regime change.

Finally, Chenoweth has recently observed a concerning downward trend since 2006 in the success rates of “people-power movements,” as they now call civil resistance movements. Drawing on the continually updated Nonviolent and Violent Campaign Outcomes (NAVCO) data, they found that “although mass mobilization has indeed persisted and even increased in quantity” between 2006 and 2020, “the success rates of nonviolent resistance have plummeted.”Footnote ¹⁶⁷ As they argue, the global COVID-19 pandemic has exacerbated and thrown in stark relief an array of authoritarian strategies deployed against people-power movements since the turn of the twenty-first century. These authoritarian strategies include restrictions on public gatherings and limits on peaceful assembly and free speech; emergency declarations suspending civil liberties and expanding executive powers; and the diffusion of “smart repression” techniques including digital repression, divide-and-conquer strategies playing on and exacerbating polarized politics, propaganda and misinformation. All governments, not only recognizably autocratic ones, have used this toolkit, though to varying degrees, to surveil and deter dissidents and to demobilize and suppress protest movements.

If available social science research does not conclusively show that uncivil disobedience is counterproductive, there is also some reason to believe uncivil disobedience can be even more productive than civil disobedience. Pasternak notes that while there is no evidence that the use of violent tactics increases domestic social movements’ long-term effectiveness, there is evidence that violence can help movements achieve short-term gains, such as attracting substantial media attention and boosting morale among movement participants.Footnote ¹⁶⁸ A movement may also benefit from a diversity of tactics, with each deployed when contextually useful. In addition, the presence of radical and violent elements tends to pressure authorities to negotiate with the mainstream of the movement. All of this can contribute to the work of bringing about lasting change.

9.2 A Unique Role for Uncivil Disobedience

The second central objection to the use of uncivil tactics in basically liberal democracies treats incivility as incompatible with the duties of civic friendship – the relations of mutual respect and forbearance among citizens living in societies marked by pluralism and difference.Footnote ¹⁶⁹ For Rawls, “the duty of civility imposes a due acceptance of the defects of institutions and a certain restraint in taking advantage of them.”Footnote ¹⁷⁰ This restraint serves to maintain ties of “mutual trust and confidence” among citizens, fostering a bond based on “one’s sincerity, for it is not easy to convince another that one’s acts are conscientious, or even to be sure of this before oneself.”Footnote ¹⁷¹

In response to this objection, one might point out that some forms of uncivil disobedience, such as government whistleblowing, are unlikely to undermine civic friendship (though it might well diminish trust in institutions). But let us grant that uncivil tactics can indeed undermine civic friendship. An interesting question that follows is whether undermining civic friendship could be justified. I submit that it can be – that there is a place for threats to civic friendship in liberal democratic societies when the following conditions apply: the public is assured of the state’s commitment to respecting everyone’s full and equal status, a commitment typically embedded in a constitution or other basic law that guides institutional design and lawmaking; some citizens are effectively (de facto, if not de jure) denied full and equal status; and the injustice of this denial is not publicly recognized, perhaps because that injustice is not deliberate but results from the interplay of social practices and institutional structures, as in cases of structural injustice, or because it simply doesn’t seem like an injustice at all (think of felon disenfranchisement or enforcement of immigration law).

Under these circumstances, the majority may be and feel bound by civic friendship, but from the perspective of oppressed minorities, civic friendship is an illusion. The oppressed minority might then fruitfully resort to civil disobedience, although it very well may be perceived as uncivil. One way or another, uncivil disobedience may be better suited than civil disobedience to the goal of radically disrupting the status quo and gripping the public’s attention. Where civil disobedients typically seek to coax and persuade, uncivil disobedients can jolt – they can compel the community to confront the disconnect between reality and professed ideals. A peaceful march for civil rights or a Black Lives Matter die-in – instances of civil disobedience – can do this. But an uprising, including targeted property destruction and expressions of anger directed at the police, conveys the community’s rage at society’s lack of concern for Black poverty and Black death in more jarring ways. Uncivil protests, in certain contexts, do not so much threaten and undermine civic friendship as expose its absence.

By protesting uncivilly, agents question the rules of public engagement and their exclusionary effects. They contest and disrupt the moral and political consensus. This kind of uncivil disruption may set back activists’ cause by reducing popular support. But even where it is futile or counterproductive, uncivil disobedience may still have intrinsic value as a fitting expression of warranted frustration and distrust. These attitudes are especially worth communicating to fellow oppressed people, who may take confidence from expressions of solidarity. And the expressions of disrespect and anger toward legal and political authority that are characteristic of uncivil disobedience may be seen as assertions of agency and dignity in the face of threats to both.

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The idea that uncivil disobedience undermines the civic bonds among citizens and is counterproductive buttresses the widespread calls for civility in protest not only by condemning uncivil tactics but also by predicting their failure. This reasoning facilitates the unfolding of a self-fulfilling prophecy of sorts, as observers and potential allies might be cautious to join or support a movement that they have been assured will fail. This widespread view of uncivil disobedience’s counterproductivity supports the status quo that activists are trying to unsettle by restricting the repertoire of acceptable tactics they may use in the process. It thus adds to the activists’ task of trying to effect social change an extra – and unfair – burden of working with or around the common rejection of incivility. Amia Srinivasan has argued that the common notion that anger is counterproductive works to stifle its value as a source of motivation, self-respect, and knowledge, and to erase its intrinsic aptness, in this way constituting a second-order, affective injustice added to the first-order structural socio-political injustice confronting victims of oppression.Footnote ¹⁷² We might similarly argue that the common view of incivility imposes unfair demands on activists, such as tone policing, that obscure the fact noted above that domestic movements by highly marginalized groups, even when they are exclusively nonviolent and civil, often fail. Justice requires revising the demands made on protesters.