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Civil disobedience has been theorised as an informal guardian of the constitution in democratic societies, but such accounts struggle to accommodate protest that has an international or global dimension. This article addresses this issue through offering a theory of civil disobedience as transnational disruption. Civil disobedience is ‘transnational’ insofar as it is an appeal to a national, international or global public that highlights failures to observe moral, political or legal values that are an appropriate source of normative authority in global contexts. Civil disobedience is ‘disruptive’ insofar as it obstructs the routine activities of relevant parties in order to draw attention to the demands of protesters. The core argument is that civil disobedience can uphold normative standards that have been incorporated into a dense network of treaties, conventions and global regulatory frameworks. It can thus make a modest but valuable contribution to the processes through which publics deliberate about the meaning and interpretation of these contested norms.
1 Rawls, J, A Theory of Justice: Revised Edition (Oxford University Press, Oxford, 1999) 319. Civil disobedience is ‘public’ in that it is carried out openly without attempts to escape arrest; it is ‘nonviolent’ in the sense that it avoids causing physical or emotional harm to persons and destruction of their property; it is ‘conscientious’ in that it is motivated by a sincere opposition to law and policy on grounds of moral, ethical or political principle; and it is ‘political’ in the sense that it aims to communicate this opposition in the hope of bringing about change in law, policy or practices. This article adopts these core features of the Rawlsian definition of civil disobedience, though it does not share his view that protesters must give ‘due notice’ of their action. For an exploration and defence of a broadly Rawlsian interpretation of civil disobedience, see A Sabl, ‘Looking Forward to Justice: Rawlsian Civil Disobedience and Its Non-Rawlsian Lessons’ (2001) 9 The Journal of Political Philosophy 307.
2 Rawls (n 1) 319.
3 Ibid 320.
4 Ibid 336.
5 See, for instance, Cabrera, L, The Practice of Global Citizenship (Cambridge University Press, Cambridge, 2010) 131–53; S Caney, ‘Responding to Global Injustice: On the Right of Resistance’ (2015) 32 Social Philosophy and Policy 51; Celikates, R, ‘Learning from the Streets: Civil Disobedience in Theory and Practice’ in Weibel, P (ed), Global Activism: Art and Conflict in the 21st Century (MIT Press, Cambridge, MA, 2015) 65–72; T Ogunye, ‘Global Justice and Transnational Civil Disobedience’ (2015) 8 Ethics and Global Politics 1; WE Scheuerman, ‘Civil Disobedience in the Shadows of Postnationalization and Privatization (2016) 12 Journal of International Political Theory 237.
6 Arendt, H, Crises of the Republic (Harcourt Brace & Company, New York, NY, 1972) 49–102; Dworkin, R, Taking Rights Seriously (Duckworth, London, 1977) 206–22; Habermas, J, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy (Polity, Cambridge, 1996) 379–84; Raz, J, The Authority of Law: Essays on Law and Morality (Clarendon Press, Oxford, 1979) 262–75; Singer, P, Democracy and Disobedience (Clarendon Press, Oxford, 1973).
7 Tarrow, S, Power in Movement: Social Movements and Contentious Politics (3rd edn, Cambridge University Press, Cambridge, 2011) 101.
8 This shift is a necessary response to the transformation of political power in conditions of increasing globalisation and deregulation, as argued forcefully by Scheuerman (n 5) 247–8. It should be stressed, however, that – as a reviewer for this journal quite rightly points out – the costs of civil disobedience in such cases are typically borne by domestic governments and publics, whether or not they are the intended target of the protest.
9 The focus on persons means that the theory does not consider the claim that states or state-like entities can carry out civil disobedience as a means of promoting legal or political reform. A problem with this latter claim is that states – to a much greater degree than individuals – typically rely on the use or threat of coercive violence to achieve their goals, which places their actions beyond the category of civil disobedience as it is defined here. Of course, the actions of states in the international system might nonetheless be compared with that of civilly disobedient citizens in certain circumstances. For interesting discussion of these circumstances, see M Allen, ‘Civil Disobedience, International’, Encyclopedia of Global Justice (Springer, Netherlands, Dordrecht, 2011) 133–5; A Franceschet, ‘Theorizing State Civil Disobedience in International Politics’ (2015) 11 Journal of International Political Theory 239; R Goodin, ‘Towards an International Rule of Law: Distinguishing International Law-Breakers from Would-Be Law-Makers’ (2005) 9 Journal of Ethics 225.
10 An institution is defined as ‘persistent and connected sets of formal and informal rules within which attempts at influence take place’, see RO Keohane, ‘Governance in a Partially Globalized World’ in D Held and A McGrew (eds), Governing Globalization: Power, Authority and Global Governance (Polity, Cambridge, 2002) 327. On the related concepts of a ‘regime’ and a ‘network’, see respectively SD Krasner (ed), International Regimes (Ithaca, Cornell University Press, NY, 1983) and A Slaughter, A New World Order (Princeton University Press, Princeton, NJ, 2004). On ‘global risks’ and their implications, see U Beck, World Risk Society (Polity, Cambridge, 1998) and D Held, Democracy and the Global Order (Polity, Cambridge, 1996).
11 Tarrow, S, The New Transnational Activism (Cambridge University Press, Cambridge, 2005) 25.
12 Habermas, J, The Lure of Technocracy (Polity, Cambridge, 2015) 29–30.
13 J Cohen, ‘Minimalism about Human Rights: The Best We Can Hope For?’ (2004) 12 The Journal of Political Philosophy 190, 195.
14 A Buchanan and RO Keohane, ‘The Legitimacy of Global Governance Institutions’ (2006) 20 Ethics & International Affairs 405, 407.
15 The current global order is characterised by some as an uneasy marriage of ‘Westphalian’ norms based on the interests of states and ‘cosmopolitan’ norms based on the interests of individuals. See, for instance, S Benhabib, ‘On the Alleged Conflict between Democracy and International Law’ (2005) 19 Ethics & International Affairs 85; J Habermas, ‘The Constitutionalization of International Law and the Legitimation Problems of a Constitution for World Society’ (2008) 15 Constellations 444–50.
16 Tarrow (n 11) 60.
17 These dynamics have been subject to extensive empirical analysis in the literatures on social movements and civil resistance. Daniel Ritter, for instance, discusses how revolutionary movements in autocratic societies can use non-violent tactics to apply pressure on regimes that are closely aligned with Western liberal-democracies, in D Ritter, The Iron Cage of Liberalism: International Politics and Unarmed Revolutions in the Middle East and North America (Oxford University Press, Oxford, 2015) 16–22. Thanks to a reviewer for alerting me to the relevance of this literature, which often tends to be overlooked by philosophical and normative approaches.
18 The idea of normative standards that are a matter of ‘international concern’ is discussed at length in C Beitz, The Idea of Human Rights (Oxford University Press, Oxford, 2009).
19 A representative sample of such criticism can be found in J Habermas and J Derrida, ‘February 15, Or What Binds Us Together: A Plea for a Common Foreign Policy, Beginning in the Core of Europe’ (2003) 10 Constellations 291–7.
20 Allen, M, ‘Civil Disobedience, Transnational’ Encyclopaedia of Global Justice (Springer Netherlands, Dordrecht, 2011) 135, 136.
21 Ibid.
22 To clarify: civil disobedience as transnational disruption can aim to achieve change through legal reform, as would be the case if the target of a protest were a domestic or foreign government. The conceptual possibility of protest that targets non-law-making bodies merely suggests that we should not take legal reform as a necessary objective of civil disobedience as transnational disruption.
23 Rawls (n 1). See also Scheuerman (n 5) 251–2.
24 D Lyons, ‘Moral Judgment, Historical Reality, and Civil Disobedience’ (1998) 27 Philosophy and Public Affairs 31.
25 Sabl (n 1) 314. For an attractive application of Sabl’s argument to the case of transnational civil disobedience, see Ogunye (n 5).
26 Cabrera (n 5) 148.
27 A nuanced discussion of violence can be found in Caney (n 5) 65–7.
28 Rawls (n 1) 319.
29 See, for instance, Wellman, CH and Simmons, AJ, Is There a Duty to Obey the Law? (Cambridge University Press, Cambridge, 2005).
30 Rawls (n 1) 5.
31 Mansbridge, J, et al., ‘A Systemic Approach to Deliberative Democracy’ in Parkinson, J and Mansbridge, J (eds), Deliberative Systems (Cambridge University Press, Cambridge, 2012) 1; see also Raz (n 6) 262. For more detailed discussion of these reasons, see Smith, W, Civil Disobedience and Deliberative Democracy (Routledge, London, 2013) 5–7.
32 This claim is compatible with the thought that there is a moral right to civil disobedience in democratic societies (see, for example, D Lefkowitz, ‘On a Moral Right to Civil Disobedience’ (2007) 117 Ethics 202). This is because acting within our rights is typically an insufficient basis for the claim that our conduct is justified; in order to vindicate the latter claim, it is necessary to show that we have exercised our rights in a way that is defensible all-things-considered.
33 Held, D, Global Covenant: The Social Democratic Alternative to the Washington Consensus (Polity, Cambridge, 2004) 119.
34 Ibid 120–36. Seyla Benhabib augments Held’s list by foregrounding the category of transnational migration, which she identifies as an important dimension of the ‘international human rights regime’ in S Benhabib, Another Cosmopolitanism (Oxford University Press, Oxford, 2006) 27–31.
35 Held (n 33) 132.
36 Ibid.
37 The conditions are presumptive in the manner envisaged by Rawls in his theory of civil disobedience. As he puts it, ‘no doubt there will be situations when they do not hold, and other arguments could be given for civil disobedience’, in Rawls (n 1) 326.
38 The recent decision of the Trump administration to withdraw the United States from the Paris Agreement on climate change is a paradigmatic example of such a case. Thanks to a reviewer for helpful discussion of this point.
39 To clarify: the argument here does not affirm or deny the contentious claim that non-members should be included in the decision-making process, but rather requires that the perspectives of those exposed to serious threats as a result of collective decisions should be heard. For an interesting discussion of broader issues about democracy and globalisation, see DF Thompson, ‘Democratic Theory and Global Society’ (1999) 7 The Journal of Political Philosophy 111–25.
40 MJ Sørensen and B Martin, ‘The Dilemma Action: Analysis of an Activist Technique’ (2014) 39 Peace & Change 73.
41 Rawls (n 1) 339.
42 R Wouters, ‘From the Street to the Screen: Characteristics of Protest Events as Determinants of Television News Coverage’ (2013) 18 Mobilization: An International Quarterly 83.
43 PE Oliver and DJ Meyer, ‘How Events Enter the Public Sphere: Conflict, Location, and Sponsorship in Local Newspaper Coverage of Public Events’ (1999) 105 American Journal of Sociology 38.
44 NT Gavin, ‘Pressure Group Direct Action on Climate Change: The Role of the Media and the Web in Britain – A Case Study’ (2010) 12 British Journal of Politics and International Relations 459.
45 The phrase ‘disruption fatigue’ was suggested by a reviewer for this journal. Thanks to that reviewer for prompting me to consider this issue.
46 Stevenson, H and Dryzek, JS, Democratizing Global Climate Governance (Cambridge University Press, Cambridge, 2014) 147–8.
47 Ibid 148.
48 Wood, LJ, Direct Action, Deliberation, and Diffusion: Collective Action after the WTO Protests in Seattle (Cambridge University Press, Cambridge, 2012) 143–5.
49 Thanks to a reviewer for prompting me to consider these objections.
50 Eric Posner is one of many to suggest that international human rights law is overburdened with poorly defined legal obligations, which bestows considerable discretion on governments in determining whether and how to implement these rights. See E Posner, The Twilight of Human Rights Law (Oxford University Press, Oxford, 2014) 86–95.
51 Rawls (n 1) 340.
52 Ibid 339.
53 Ibid 340.
54 Ibid 327.
55 Habermas (n 6) 384.
56 Singer (n 6) 90–2.
57 Habermas (n 6) 382–4.
58 Singer (n 6) 85.
59 For a recent survey, see Tarrow (n 7) 234–58.
60 ME Keck and K Sikkink, Activists Beyond Borders: Advocacy Networks in International Politics (Cornell University Press, Ithaca, NY, 1998) 27.
61 Ibid.
62 M Engler and P Engler, This is an Uprising: How Nonviolent Revolt is Shaping the Twenty-First Century (Nation Books, New York, NY, 2016) 189.
63 The prominent economist Joseph Stiglitz suggested that ‘until the protesters came along there was little hope for change and no outlets for complaint … it is the trade unionists, students, environmentalists – ordinary citizens – marching in the streets of Prague, Seattle, Washington, and Genoa who have put the need for reform on the agenda of the developed world’ in J Stiglitz, Globalisation and Its Discontents (London, Penguin, 2002) 9.
64 Rawls (n 1) 326.
65 Ibid 327.
66 Lefkowitz (n 32) 219–20.
67 This move is said to set Rawls’s theory at odds with campaigns in democratic societies that have employed civil disobedience in support of numerous progressive causes. See, for instance, JL Cohen and A Arato, Civil Society and Political Theory (MIT Press, Cambridge, MA, 1992) 572–7; D Markovits, ‘Democratic Disobedience’ (2005) 114 The Yale Law Journal 1897; Singer (n 6).
68 See, for instance, Buchanan and Keohane (n 14).
69 Rawls (n 1) 342.
70 Ibid 341.
71 The contrast between the Civil Rights Movement and Operation Rescue was suggested by a reviewer for this journal.
72 P Pettit, Republicanism: A Theory of Freedom and Government (Oxford University Press, Oxford, 1997) 193.
73 M Ganz, ‘Resources and Resourcefulness: Strategic Capacity in the Unionization of California Agriculture 1959–1966’ (2000) 105 American Journal of Sociology 1003; C Haug and D Rucht, ‘Structurelessness: An Evil or an Asset? A Case Study’ in DD Porta and D Rucht (eds), Meeting Democracy: Power and Deliberation in Global Justice Movements (Cambridge University Press, Cambridge, 2013) 179–213; F Polletta, Freedom Is an Endless Meeting: Democracy in American Social Movements (University of Chicago Press, Chicago, IL, 2002); Wood (n 48).
74 S Chabot, ‘Dialogue Matters: Beyond the Transmission Model of Transnational Diffusion between Social Movements’ in RK Givan, KM Roberts and SA Soule (eds), The Diffusion of Social Movements: Actors, Mechanisms, and Political Effects (Cambridge University Press, Cambridge, 2010) 99–124.
75 N Fraser, Scales of Justice: Reimagining Political Space in a Globalizing World (Polity, Cambridge, 2008).
76 W Smith, ‘Anticipating Transnational Publics: On the Use of Minipublics in Transnational Governance’ (2013) 41 Politics & Society 461.
77 Tarrow (n 11) 170–2.
78 Ibid 178.
79 Ibid 128–31.
80 For an interesting set of case studies focusing on the role that deliberation has played in the organisation of global justice protest, see DD Porta and D Rucht (eds), Meeting Democracy: Power and Deliberation in Global Justice Movements (Cambridge University Press, Cambridge, 2013).
81 Scheuerman (n 5) 245.
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