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On Civil Disobedience in Recent American Democratic Thought*

  • Paul F. Power (a1)


Theoretical discussions of civil disobedience on ethical and political grounds received special attention in this country during the Nuremberg trials, the security and loyalty controversies of the 1950's and the pre-arms control years of nuclear power. A fourth wave of interest formed after the early civil rights protests and a fifth is appearing to consider dissent from national policies on the Vietnam War. In this paper civil disobedience is viewed from a trough between the fourth and most recent wave. The phenomenon is interpreted with selected ideas from the study of political obligation and unconventional dissent. The essay first assesses recent American analysis of civil disobedience to determine what the criteria should be to distinguish it from other forms of political action and to discover its political ethics. Secondly, there is an attempt to answer the question: Is there any appreciable service that carefully defined civil disobedience might perform in American democratic thought? The complete enterprise is provoked by a need to examine new strategies for democratic citizenship in a time when the deficiencies of American political life are becoming known to increasing numbers and varieties of people instead of remaining the preserve of enlightened elites.



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Research for this project was supported by a summer faculty fellowship of the University of Cincinnati. I wish to thank John T. Bookman for helpful criticisms of an earlier version of my paper.



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1 Prominent commentary on political obligation was offered by Thomas Aquinas, Locke, Rousseau, and notably T. H. Green who may have been the first to use the term. A study of Green's thought and environment is Richter, Melvin, The Politics of Conscience: T. H. Green and His Age (Cambridge, Mass.: Harvard University Press, 1964). Reassessments include Carnes, John R., “Why Should I Obey The Law?,” Ethics, 71 (1960), 1426; Pitkin, Hanna, “Obligation and Consent,” This Review, 59 (1965), 9901000, and 60 (1966), 39–52; Plamenatz, John, Consent, Freedom and Political Obligation, 2nd ed. (New York: Oxford University Press, 1968); Pocklington, T. C., “Protest, Resistance, and Political Obligation,” a paper presented at the 1969 Annual Meeting of the American Political Science Association, New York, 09 3–6, 1969; and Tussman, Joseph, Political Obligation and the Body Politic (New York: Oxford University Press, 1960).

2 Bay, Christian, “Civil Disobedience,” International Encyclopedia of the Social Sciences, Vol. II, pp. 473486, at pp. 473–474.

3 Representative statements are Allen, Francis A., “Civil Disobedience and the Legal Order,” University of Cincinnati Law Review, 36 (1967), 1–38, 175195; Fortas, Abe, Concerning Dissent and Civil Disobedience (New York: The New American Library, 1968); Griswold, Erwin N., “Dissent—1968,” Tulane Law Review, 42 (1968), 726739; and Hook, Sidney, “Social Protest and Civil Disobedience,” The Humanist, 27 (09.12., 1967), 157–159, 192193.

4 There are commentators whose alarm about civil disobedience suggests that there is a fully conservative category. See Morris I. Liebman, “Civil Disobedience—A Threat to Our Law Society,” Riehm, John W., “Civil Disobedience—A Definition,” American Criminal Law Quarterly, 3 (1964), 2126, 11–15; and former Justice Whittaker's remarks in Whittaker, Charles E. and Coffin, William Sloane Jr., Law, Order and Civil Disobedience (Washington: American Enterprise Institute for Public Policy Research, 1967), pp. 125. A majority of the National Commission on the Causes and Prevention of Violence held that civil disobedience, including non-violent action, is potential anarchy: New York Times, 12. 9, 1969, pp. 1, 44.

5 Report of the National Advisory Commission on Civil Disorder (Washington: Government Printing Office, 1968), p. 92.

6 Internal agreements on justification, and means and ends of ethical resistance provide considerable diversity to the current. But consult Bedau, Hugo A., “On Civil Disobedience,” The Journal of Philosophy, 58 (1961), 653665; Harrop A. Freeman and Bayard Rustin in Freeman, Harrop A., ed., Civil Disobedience (Santa Barbara: Center for the Study of Democratic Institutions, 1966), pp. 2–10, 1013; Keeton, Morris, “The Morality of Civil Disobedience,” Texas Law Review, 43 (1965), 507525; and Walzer, Michael, “The Obligation to Disobey,” Ethics, 77 (1967), 163175.

7 Civil disobedience is one, undefined form among many “disorderly surrogates” for socially acceptable types of protest in the stockpile of the “politics of radical pressure,” recommended in Kaufman, Arnold S., The Radical Liberal (New York: Atherton Press, 1968), pp. 5675, at 70.

8 The anti-patrician and self-determinist spirit is evident in Barbour, Floyd B. (ed.), The Black Power Revolt (Boston: Sargent, 1968), and Wright, Nathan Jr., Black Power and Urban Unrest (New York: Hawthorn Books, 1967).

9 It is true that Herbert Marcuse has referred to “uncivil” disobedience. See An Essay on Liberation (Boston: Beacon Press, 1969), pp. 6869. But his view of the phenomenon is controlled by beliefs that capitalist “pseudo-democracy” eventually absorbs any kind of non-mass opposition and hypocritically distracts attention from its own brutality through discovery of “illegitimate” resistance. Ibid., pp. 64–65, 76–77. A radical New Left view of the national and world scene is Carl Oglesby's section in Oglesby, Carl and Schaull, Richard, Containment and Change (London: Collier-Macmillan, 1967), pp. 3176. For a glimpse of strategy in Students for a Democratic Society targeting, see The Rudd October Proposals,” in Cox Commission Report, Crisis At Columbia (New York: Random House, 1968), Appendix B. The sources, ideas and literature of the New Left in Europe and the United States are reviewed in Ruether, Rosemary, “The New Left: Revolutionaries After the Fall of the Revolution,” Soundings, 51 (1969), 245263.

10 Legalists associated with federal civil rights activities have argued that civil disobedience is not present when rule-breaking is later held legal under existing Congressional legislation or Constitutional principles: Taylor, William L., “Civil Disobedience.,” in King, Donald B. and Quick, Charles W. (eds.), Legal Aspects of the Civil Rights Movement (Detroit: Wayne State University Press, 1965), pp. 227235, at 228–229; and Marshall, Burke, “The Protest Movement and the Law,” Virginia Law Review, 51 (1965), 785803, at 795–796. The focus of Taylor and Marshall is on the sit-ins in the early 1960's and the arrests that followed but never received Supreme Court approval.

11 On the possibly quandary of the nuclear commander, see Lewy, Guenter, “Superior Orders, Nuclear Warfare, and the Dictates of Conscience in the Atomic Age,” this Review, 55 (1961), pp. 223.

12 283 U.S., 605, 633 (1931); Griswold, op. cit., 728–738.

13 A leading statement of this view which rests its certainty in Christ is Bennett, John C., “The Place of Civil Disobedience,” Christianity and Crisis, 27 (12. 25, 1967), 299302. Religious institutions, it has been urged, have a duty to speak and act corporately on the great issues of conscience and not limit themselves to urging individual members to speak and act: Brown, Robert McAfee, et al., Vietnam: Crisis of Conscience (New York: Association Press, 1967), pp. 62106, at 63.

14 “Sources of Political Rights,” paper read to Southern Political Science Association, Durham, N.C., November 13, 1964. Mimeo., p. 7. Italics in the original.

15 There is also the possibility that the Devil rather than God is the source of inspiration. The perplexing implications of this option for actor and authorities were found at least as recently as John Brown of Harpers Ferry.

16 An example of the self-protecting formula is found in William Sloane Coffin, Jr.'s comments in Whittaker and Coffin, op. cit., pp. 29–41.

17 380 U.S., 163 (1965).

18 See Clancy, Christopher H. and Weiss, Jonathan A., “The Conscientious Objector Exemption: Problems in Conceptual Clarity and Constitutional Considerations,” Maine Law Review, 17 (1963), 143160. If upheld, the Federal District Court ruling in U. S. v. Sisson (297 F. Supp. 902, 1969), which found that the 1967 law unconstitutionally discriminates against non-theists, religious or not, with profound moral convictions, will move the C. O. issue closer, either to the opening of Pandora's box or the victory of the inner light, depending on one's view. Ending compulsory military service would retire the question, unless there is another major war.

19 Fortas, op. cit., pp. 51–52.

20 On selective objection to military service, the American Civil Liberties Union has equated the genuine objector's belief with conscience that is entitled to First Amendment protection whether or not he claims to be “religious.” Although no testing formula was suggested, it has held that administrative scrutiny of the objector will detect the unconscientious and discourage this means to avoid the draft. Civil Liberties (March, 1966). Without plebiscites, church elites have endorsed selective objection. A statement upholding conscientious resistance to military service in particular wars received the approval of most American delegates to the Fourth (1968) Assembly of the World Council of Churches. The selective objection issue is a new and ambivalent question for historical critics of all wars. See American Friends Service Committee, The Draft? (New York: A.F.S.C., 1968), esp. Chapter 3, “From Witness to Resistance: The New CO.”

21 Green, Thomas Hill, Lectures on the Principles of Political Obligation (London: Longmans, Green and Co., 1921), pp. 3538.

22 Hook, Sidney, The Paradoxes of Freedom (Berkeley and Los Angeles, University of California Press, 1967), pp. 116118; Allen, op. cit., 10–11; Fortas, op. cit., p. 34. See also “A Declaration of Confidence in Columbia's Future,” signed by faculty members of the Columbia Law School, New York Times, 05 17, 1968, p. 41. Neo-conservatives honor Socrates as the Eesponsible Disobedient, holding that he drank the hemlock to testify to the state's integrity and the rule of law even as he believed that he had been unjustly accused and convicted. A variation is that the Gadfly's submission proved that he would let others disobey laws if they would assume the risk he had assumed: Fried, Charles, “Moral Causation,” Harvard Law Review, 77 (1964), 12581270, at 1269.

23 King, Martin Luther Jr., “Love, Law and Civil Disobedience,” New South, 16 (1961), 311, at 8. It is less clear that King's adherence to the edifice of the law prevailed in his last few years when war policies and the maldistribution of wealth became his targets.

24 Zinn, Howard, Disobedience and Disorder: Nine Fallacies on Law and Order (New York: Vintage Books, 1968), pp. 120121. Italics in the original.

25 Bay, op. cit., p. 474.

26 Commenting from within the peace movement on the division between the non-violent ethic and politics, A. J. Muste observed: “And since, in itself pacifism does not provide criteria for political discrimination, these criteria must be found elsewhere. In their search for sound criteria not all pacifists mine the same political quarry.” Quoted in Finn, James A., Protest: Pacifism and Politics (New York: Random House, 1968), p. 200. Pacifist and related writings from William Penn to Bayard Rustin are collected in Lynd, Staughton (ed.), Non-violence in America (Indianapolis: Bobbs Merrill, 1966). Gandhian resistance to reform the law is urged in Wofford, Harris Jr., “Non-Violence and The Law,” Journal oj Religious Thought, 15 (1957), 2536. Satyagraha is appraised in my Toward a Reassessment of Gandhi's Political Thought,” Western Political Quarterly, 16 (1963), 99108.

27 Contrast Zinn, op. cit., p. 46. For a dualistic thesis that when avenues for peaceful change have been closed, exhausted or found ineffective, violence is needed as much as peaceful civil disobedience as a mechanism to advance democratic values, subject to the government's enforcement of order and its removal of the causes of the outbursts, see Conant, Ralph W., “Rioting, Insurrection and Civil Disobedience,” The American Scholar, 37 (1968), 420433, at 433.

28 Allen, op. cit., 12–13.

29 The preparations and conduct of the October, 1967 demonstrations at the Pentagon had factors of interest to the student of civil disobedience. One participant-observer finds the criteria of advance notice, “non-violence,” and appeal to the public conscience. He also suggests as the claim that the government was obliged to negotiate on how it would be disobeyed. See Mailer, Norman, The Armies of the Night (New York: New American Library, 1968). A situational description of the Pentagon events as a mixture of Gandhian and insurgency tactics is reported in Liberation, 12 (11, 1967) 37 (David Dellinger), 26–28 (Arthur Waskow).

30 U. S. v. O'Brien, 88 S. Ct. 1673 (1968).

31 Keeton, op. cit., 515. Italics of the original removed.

32 Riehm, op. cit., 14. See also Van Dusen, Lewis H. Jr., “Civil Disobedience: Destroyer of Democracy,” American Bar Association Journal, 55 (02., 1969), 123126.

33 Freeman, op. cit., pp. 5–6.

34 For this position, see Wasserstrom, Richard, “Disobeying the Law,” The Journal of Philosophy, 58 (1961), 641653.

35 Appeals to Nuremberg principles to justify disobedience have a close affinity to conscientious dissent. The focus of the relevant passages of the 1945 London Agreement on moral choice in the face of immoral state orders tends to assign the principles to a category of inner judgment. [The Agreement is in Journal of International Law, 39 (1945), Supp., 257264.] It is debatable whether that judgment is “only” entitled to decide for disobedience or is obligated to so decide. The latter interpretation has been influential in popular resistance ideas. See Spock, Benjamin, “Vietnam and Civil Disobedience,” The Humanist, 28 (1968), 37, at 6. This stand was also adopted by Capt. Howard B. Levy in his military trial. United States v. Levy, CM416463 (Army Bd. of Rev. Aug. 29, 1968), et cetera. His view was an interpretation of Army Field Mannual 27–10, The Law of Land Warfare (1965). Yet, this document, which outlines legal responsibility for war crimes, stipulates neither entitlement nor obligation to disobey.

36 Neuman, Franz L., The Democratic and the Authoritarian State (Glencoe: The Free Press 1957), p. 158.

37 Hook contends that “conscience” is a dangerous guide for principled action, which if accepted, opens the way for totalitarians along with peace workers. See especially Paradoxes of Freedom, Chapter 3. His thesis is overly dependent on viewing conscience as a basis for political theory, where as many who claim its guidance are no more or less than moralists who may be correct or mistaken in their judgments but who seldom offer political theories. I agree with Hook's evaluation that individual conscience alone is an untrustworthy basis for consent to law. Contrast Laski, Harold J., Authority in the Modern State (New Haven: Yale University Press, 1927), pp. 3247. Recent controversies have caused constitutional libertarians to attempt to combine political respect for and legal skepticism about disobedience based on highest principle: “The American Civil Liberties Union Statement on Civil Disobedience,” February 1, 1969, mimeo.

38 A third way is possible if one believes that the entire question of civil disobedience is based on what may be owed to others through shared values and associations. For this approach, which differs from mine, see Walzer, op. cit., passim.

39 Dworkin, Ronald, “On Not Prosecuting Civil Disobedience,” New York Review of Books, 10 (1968), 1421.

40 The ideal has received notable support from the Roman Catholic Church in Vatican Council IPs “Declaration on Religious Freedom.” A state, even one that is democratic, can make a declaration of this kind only at its peril. No longer a state, but still a government, the Church faces numerous dilemmas in combining the “no-coercion-toward-conscience-even-when-wrong” ideal with Apostolic and Papal theories. As discussed in the Encyclical Humane Vitae, the birth control issue is one controversy in which the difficulties are revealed. For the American Catholic Bishop's 1968 statement on the issue in which on net balance conscience “as a law unto itself” is subordinated to the Church's teaching authority, see Human Life in Our Day,” Catholic Mind, 66 (1968), 128.

41 U. S. v. Sisson, 297 F. Supp. 902 (1969).

42 For the caution that in a democratic context civil disobedience is minority rule, see Schaar, John H., Loyalty in America (Berkeley: University of California Press, 1957), p. 52.

43 A similar understanding of Lockean obligation and dissent is Prosch, Harry, “Toward An Ethics of Civil Disobedience,” Ethics, 77 (1967), 176191, at 178–179.

44 Dahl, Robert A., Pluralist Democracy in the United States: Conflict and Consent (Chicago: Rand McNally and Co., 1967), pp. 272273.

45 Justice and contract are joined in Rawls, John, “The Justification of Civil Disobedience,” in Civil Disobedience: Theory and Practice, Bedau, Hugo Adam, ed. (New York: Pegasus, 1969), pp. 240255.

46 On Green's “common good,” suggesting that its social context is true but because of faulty use of words he failed to distinguish different goods, see Plamenatz, op. cit., pp. 62–81.

47 Bay, op. cit., pp. 484–485. The populism inherent in Bay's ideas is more apparent than real, for he would trade the elitism behind liberal democracy for a new elitism of radicals who would produce bold policies.

48 International Commission of Jurists, The Rule of Law In A Free Society: A Report on the International Congress of Jurists, New Delhi: 1959 (Geneva: International Commission of Jurists, 1960), p. 196. Bay criticizes the dogma of the rule of law in pluralist democratic theory in Civil Disobedience: Prerequisite for Democracy in Mass Society,” in Political Theory and Social Change, Spitz, David, ed. (New York: Atherton Press, 1967), pp. 163183.

49 “The only obligation which I have a right to assume,” Thoreau said, “is to do at any time what I think right.” Civil Disobedience,” The Works of Thoreau, Canby, Henry S., ed. (Boston: Houghton Mifflin Co., 1937), 789808, at 790–791.

50 Spitz, David, “Democracy and the Problem of Civil Disobedience,” this Review, 48 (1954), 386403, at 401–403.

51 On some dangers of civil religion, see Lipsitz, Lewis, “If as Verba Says, the State Functions as a Religion, What are We To Do To Save Our Souls?”, this Review, 62 (1968), 527535. A vineyard note is Deming, Barbara, “Desanctifying Authority,” Liberation, 12 (11, 1967), 3233.

52 “Mutuality” between citizen and state is explored in Pranger, Robert J., Action, Symbolism, and Order: The Existential Dimensions of Politics in Modern Citizenship (Nashville: Vanderbilt University Press, 1968), pp. 5457.

53 For this point, see McWilliams, Wilson Carey, “Civil Disobedience and Contemporary Constitutionalism: the American Case,” Comparative Politics, I (1969) 211227, at 221.

54 Political obligation rests on a narrow interpretation of order and stability in Hyneman, Charles S. with Gilbert, Charles E., Popular Government in America: Foundations and Principles (New York: Atherton Press, 1968), 274275.

55 A minority of the Eisenhower Commission on Violence cited ethical criteria in its dissent from the majority's faulting of civil disobedience: n. 4, supra.

* Research for this project was supported by a summer faculty fellowship of the University of Cincinnati. I wish to thank John T. Bookman for helpful criticisms of an earlier version of my paper.

On Civil Disobedience in Recent American Democratic Thought*

  • Paul F. Power (a1)


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