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Resistance, Law, and the Limits of the Disobedience Framework

Published online by Cambridge University Press:  23 July 2025

ÇİĞDEM ÇIDAM*
Affiliation:
Union College , United States
*
Corresponding author: Çiğdem Çidam, Professor, Department of Political Science, Union College, United States, cidamc@union.edu.
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Abstract

In the last decade, many scholars have sought to overcome the shortcomings of the reified conception of civil disobedience that was developed in the 1970s by offering alternative conceptions of (un)civil disobedience. The “disobedience framework” is now so predominant that it is almost unthinkable to refer to any protest involving an alleged infraction of official rules as anything other than disobedience. I argue that this overstretching of “disobedience” rests on the misleading assumption that “intentional lawbreaking” occurs in an uncontested political/legal space; it also ignores that, in certain contexts, activists insist on the legality of their protests even when they defy official orders. Examining how feminist activists in Turkey offer alternative interpretations of existing laws to challenge the legality of protest bans, I demonstrate that folding such protests into the disobedience framework silences protesters, erases their narratives of resistance, and adopts the state’s perspective on the “illegality” of their actions.

Information

Type
Research Article
Copyright
© The Author(s), 2025. Published by Cambridge University Press on behalf of American Political Science Association

Over the past decade, there has been an explosion of interest in civil disobedience. Recent waves of protests have made it impossible to ignore the importance of popular action for democratic politics; they have also proved that the academic debates from the 1970s resulted in a reified conception of civil disobedience that can no longer account for the empirical realities of protests today. For many scholars, this narrow conception of civil disobedience cannot do justice to the phenomenological diversity of resistance practices that involve lawbreaking. Even worse, the “standard understanding,” which is largely based on John Rawls’ conception of civil disobedience (Delmas Reference Delmas2018, 35), has evolved into a disciplining mechanism that limits legitimate forms of resistance. In response, some scholars sought to recover civil disobedience’s radical character by broadening its definition to accommodate diverse forms of protests including blockades, occupations, distributed denial of service (DDoS) actions, and even sabotage (of, for example, animal testing facilities) (Celikates Reference Celikates2016a, 38, 43; Reference Celikates2016b, 984, 988) and self-immolation (Brownlee Reference Brownlee2004, 349). Yet another group of scholars, who are wary that a too capacious understanding of civil disobedience would render the concept unrecognizable, proposed to retain the “standard” account to make space for “principled” disobedients, whose actions are still justifiable in a democratic state (Delmas Reference Delmas2018), or for “conscientious disobedients” whose breaking of the law “may still be securely differentiated from [that of] criminals” (Lim Reference Lim2021, 140). This theoretical move to account for the diverse forms of protests that involve lawbreaking without overstretching the meaning of civil disobedience has resulted in an ever-increasing number of different types of “disobedience,” ranging from “political” (Harcourt Reference Harcourt2012) and “uncivil” disobedience (Delmas Reference Delmas2018) to “democratic” (Markovits Reference Markovits2005), “disruptive” (Edyvane and Kulenovic Reference Edyvane and Kulenovic2017), “radical” (Gourevitch Reference Gourevitch2023), and “biopolitical” (Preciado Reference Preciado2012) varieties. What I call, “the disobedience framework,” is now so predominant in the literature on protest politics that it has become almost unthinkable to refer to any protest activity that involves an alleged infraction of official rules as anything other than an act of disobedience.

This article challenges the literature’s current overreliance on the notion of disobedience by laying bare its problematic theoretical underpinnings. While there are significant differences that set the scholars of disobedience apart, their accounts rest on the shared assumption that there is an unambiguous line between lawful and unlawful protests and that “intentional lawbreaking” takes place in an uncontested political/legal space. I argue that this is a misleading assumption. It is shaped by what Robert Cover (Reference Cover1975) calls “a static and simplistic model of law” (6). A static model of law, to use legal scholar Reva Siegel’s (Reference Siegel2001) words, cannot account for the fact that “official declarations of the law are semantically permeable, contestable, and revisable” (26). The “essentially contested” character of legal precepts (Cover Reference Cover1983, 17) makes it possible for citizens to challenge officials’ understanding (and implementation) of given laws. Through their alternative interpretations of existing laws, political actors, Cover argues, participate in “the creation of legal meaning—‘jurisgenesis’” (Reference Cover1983, 11) and thereby challenge the state’s claim to be the sole arbiter of legality.Footnote 1 Scholars of disobedience who work with the assumption that there is an unambiguous line between lawful and unlawful protests risk losing sight of this contestation over the meaning of law. The consequences of this oversight are significant, especially when it comes to contemporary street protests.

In recent years, the bounds of “legal protest” have significantly contracted in both increasingly authoritarian countries, such as Turkey and Hungary, and democratic ones, such as the United Kingdom, France, and the United States (for the global trend, see Hamilton Reference Hamilton, Sajó, Uitz and Holmes2021; Page and Robinson Reference Page, Robinson, El-Haj, Hamilton, Probert and Srinivasan2024; for the contraction of the right to protest in the United States, see El-Haj Reference El-Haj2015; Freedman Reference Freedman2023; Inazu Reference Inazu2017; Robinson Reference Robinson2022). Accounts of disobedience that are built on the assumption that there is a clear-cut distinction between lawful and unlawful protests risk ignoring the ongoing political struggle between authorities and activists over the meaning of the right to protest. Moreover, in their efforts to justify the activists’ “disobedience,” such accounts unquestioningly accept the authorities’ characterization of the activists as lawbreakers and overlook the political and strategic reasons behind the activists’ insistence on the legality of their protest activity. To develop these points, I turn to the ongoing protests staged by various feminist groups in Turkey, where the right to protest has been under intensifying attack since the 2013 Gezi protests—the most significant popular challenge that Recep Tayyip Erdoğan and his Justice and Development Party (hereafter, AKP) had faced up until recently.Footnote 2

An analysis of the contemporary feminist struggle in Turkey is particularly helpful in exposing the limits of the disobedience framework since most feminist protests are, on the surface, straightforward cases of disobedience. These protests are met with heavy police presence and frequently end with police intervention. The police claim to have the authority to disperse these (what they deem to be) illegal gatherings and often make arrests based on ordinances that limit protest activity. And yet, even when the protesters openly defy official orders, they deny that they are breaking any laws. Instead, both in the street and in the courts, activists challenge the legality of the ordinances used by the authorities, insisting that it is not them but rather the authorities who arbitrarily subvert existing laws. In these cases, protesters often turn to Law 2911 (Law on Assembly and Demonstrations, Toplantı ve Gösteri Yüruyüşleri Kanunu) and argue that this law is being abused by local officials who use broad interpretations to crush dissent. This argument, which challenges the authorities’ claim to have exclusive authority to interpret the law, transforms the law into a site of contestation. By participating in legal meaning-making, jurisgensis, these activists form a dynamic relationship with the law, even as they operate within a significantly limited legal field where the law is frequently instrumentalized by the government.

In their protests, feminists regularly oppose the authorities’ attempt to render their protest activities illegal while also highlighting how the state fails to fulfill its legal obligations by ignoring its duty to implement Turkey’s Law 6284 (Law to Protect the Family and Prevent Violence against Women, Ailenin Korunması ve Kadına Karşı Şiddetin Önlenmesine Dair Kanun). Law 6284 incorporated many aspects of the Council of Europe’s Convention on Preventing and Combating Violence against Women and Domestic Violence, also known as the Istanbul Convention, which Turkey had signed and ratified in 2012 only to withdraw from it in 2021 through a presidential decree. Both when they challenge the legality of ordinances that criminalize their protests and when they confront the state for its willful disregard of Law 6284, feminists position themselves as co-authors of law (kanun) who stand up against the officials of a state apparatus that deliberately undermine the law (hukuk).

Both kanun and hukuk are translated as “law” in English. Hukuk, which refers to the body of laws that regulate social relations enforced by the state, comes from the Arabic word hak, meaning “right” (Şirin Reference Şirin2018). In this sense, hukuk has a normative content that the word kanun (qanun in Arabic) lacks. Law as kanun refers to, borrowing Franz Neumann’s ([1947] Reference Neumann2009) words, “Every measure of a sovereign power, regardless of its form and content” (440); historically, the term denoted rules established by the sovereign to regulate areas such as administrative and economic fields, that were not covered by sharia, the body of law elaborated by Muslim jurists (Şirin Reference Şirin2018). Hukuk, on the other hand, like the German word Recht, covers both the meaning of sovereign command and “subjective rights,” which are “the claims of an individual legal person” (Neumann [1937] Reference Neumann and Scheuerman1996, 102). The normative content of hukuk is affirmed in the constitution, which establishes that the Republic of Turkey is a Rechtsstaat [hukuk devleti]—that is, it is governed by the rule of law (Constitution of the Turkish Republic, Article 2). Activists frequently draw on the conceptual distinction between kanun and hukuk and appeal to the constitution’s guarantee of the rule of law, as they accuse the government’s actions, including the regime’s criminalization of protests, its disregard of Law 6284, and Erdoğan’s withdrawal from the Istanbul Convention of “hukuksuzluk” (lawlessness).

This article begins with a critical analysis of the current efforts to overcome the limitations of the “standard” account of civil disobedience in addressing the phenomenological diversity of contemporary protests. Here, I argue that critics’ move to account for diverse forms of protest by incorporating all protest activity that involves an alleged infraction of law under the broad category of (un)civil “disobedience” risks silencing and obscuring protesters’ political claims. Focusing on Candice Delmas’ evolving arguments on the justifiability of hunger strikes, I demonstrate that accounts that assume there is a clear-cut distinction between legal and illegal protests cannot but overlook those instances where there is ongoing contestation regarding the legality of the protest activity. Reducing activists’ interpretive claims over the meaning of the law and their insistence on the legality of their actions to “merely a complicating matter” (Rawls Reference Rawls1999, 365), such accounts unquestioningly accept the authorities’ claim that the protesters are “disobeying” the law. In doing so, like Rawls, whom they otherwise criticize, they end up adopting “the state’s perspective” (Pineda Reference Pineda2021, 25). As Erin Pineda notes, this approach silences “forms of ‘local knowledge’” (41), including how activists resist authorities’ attempts to turn law into an instrument of control by making interpretive claims that appeal to law’s normative content as “a source of rights and egalitarian norms” (Pope Reference Pope1997, 954).

To elaborate on this point, I will turn to the Turkish context and discuss why it is politically and strategically important for feminist activists in Turkey to insist on the legality of their protest activity, despite the existing consensus in the literature that civil disobedience provides the protesters with a degree of protective cover. There are two central concerns here. First, operating in an increasingly authoritarian environment, feminists understand that characterizing their actions as civil disobedience does not provide them with the kind of “vital line of defense” that civil disobedience presumably provides in democratic states (Scheuerman Reference Scheuerman2015, 444)—the indictment of the Gezi trial that sentenced Osman Kavala to prison for life and his co-defenders to 18 years included the charge of organizing “civil initiatives to promote nonviolent activism and civil disobedience” (Human Rights Watch 2019). Second, by contesting the authorities’ claim that they are lawbreakers, feminist activists both question authorities’ arbitrary interpretations of Law 2911 and call out the state’s disregard of its own laws, in this case, Law 6284, passed by the parliament in 2012 largely in response to years of feminist activism. Through their interpretive claims regarding these laws, activists show that they will defend both their right to protest and the movement’s democratic legal achievements against a state that is bent on undermining the law (hukuk). Folding such protests into the disobedience framework not only puts the protesters at grave risk but also silences the activists, who appeal to the constitutional principles of the rule of law (hukuk devleti) and the right to protest to claim that the authorities’ discretionary, inconsistent, and arbitrary implementation of the existing laws amount to unlawfulness (hukuksuzluk).

I will conclude by suggesting that rather than turning to increasingly authoritarian states to paternalistically determine what kinds of “uncivil” disobedience might be justifiable under which circumstances (Scheuerman Reference Scheuerman2022, 981–2), it is, theoretically and politically, more productive to pay close attention to what the activists are doing in these political contexts to think about what would it take to resist the ongoing contraction of the right to assembly in liberal democratic states which emulate, at an alarming rate, the “legal” strategies frequently deployed by authoritarian populists to chip away at the right to protest.

REJECTING DISOBEDIENCE: CONTESTING “ILLEGALITY” AND CREATING NARRATIVES OF RESISTANCE

As William Scheuerman (Reference Scheuerman2015) observes, “contemporary thinking about civil disobedience typically begins by targeting the now (allegedly) hegemonic liberal model first formulated in the 1960s and ‘70s” (436). Turning to Rawls and, as Scheuerman suggests, overstating his centrality in the conceptual development of civil disobedience, most critics formulate their alternative accounts through a critical engagement with Rawls’s definition of the term. In A Theory of Justice, Rawls famously defines civil disobedience as “a public, non-violent, conscientious yet political act contrary to law, usually done with the aim of bringing about a change in the law or policies of government” (Rawls Reference Rawls1999, 364). Civil disobedients, he argues, must break the law by appealing to “the sense of justice of the majority of the community” and act “within the limits of fidelity to law” by demonstrating their willingness to accept the legal consequences of their conduct (364).

Despite its enormous popularity in both academic circles and political culture, “virtually all aspects of this definition” (Celikates Reference Celikates2016b, 983) have been challenged by critics. While their criticisms differ, these scholars agree that there is a misfit between this rigid liberal conception of civil disobedience and the “empirical realities of political protest” today (Scheuerman Reference Scheuerman2022, 982; see also Delmas Reference Delmas2016, 685). Robin Celikates argues that this misfit calls for a broadened conception of civil disobedience. For while he is troubled by the mobilization of “idealized instances of civil disobedience from the past (Gandhi, King)” to discredit contemporary protests (Celikates Reference Celikates2018, 71), he also finds it politically irresponsible to abandon a concept that offers activists a protective cover from state institutions (Celikates Reference Celikates2016a, 43). To broaden the conception of civil disobedience, Celikates highlights the limitations of the standard account, such as Rawls’s unrealistic requirements that to be considered civil disobedients, the protesters must inform the authorities of their planned activities, appeal to the majority’s sense of justice, and act within the limits of “fidelity to law”—a requirement which, in Celikates’s reading, implies that the protesters must be committed to the legal order “as it exists” (Celikates Reference Celikates2016b, 990). But perhaps Celikates’s most provocative objection targets, up until recently, the least debated aspect of Rawls’s definition, namely his claim that civil disobedience is nonviolent. Footnote 3 Celikates’s point here is not that civil disobedience can be violent; it is rather that what constitutes a “nonviolent” act is largely shaped by “how violence is socially, politically, and legally (re-)defined” (Celikates Reference Celikates2016a, 42). Making nonviolence a part of the definition of civil disobedience without paying attention to its “ambivalent” nature, he argues, side-steps how the distinction between violence and nonviolence is politically instrumentalized (42). Those who incorporate nonviolence into their accounts of civil disobedience ignore that what constitutes a (non)violent act is itself a matter of political contestation. In light of these criticisms, Celikates calls for a “less normatively demanding and therefore less restrictive” account that defines civil disobedience as:

an intentionally unlawful and principled collective act of protest (in contrast to both legal protest and “ordinary” criminal offenses or “unmotivated” rioting), with which citizens—in the broad sense that goes beyond those recognized as citizens by a particular state—pursue the political aim of changing specific laws, policies, or institutions (in contrast to conscientious objection, which is protected in some states as a fundamental right and does not seek change) in ways that can be seen as civil (as opposed to military). (Celikates Reference Celikates2016b, 985, italics mine)

Celikates’s (Reference Celikates2016a) stipulation that the “civil” in civil disobedience refers to any action that follows “a political and not a military logic” (43) significantly expands the meaning of the term “civil.” For Delmas, this aspect of Celikates’s definition stretches his conception of civil disobedience “beyond recognition” (Delmas Reference Delmas2018, 37). Such an account, Delmas argues, can help the commentators claim that many different forms of dissent, ranging from riots to DDoS attacks orchestrated by groups such as Anonymous, are acts of civil disobedience. Yet, whether the public finds such a claim convincing remains an open question—one that matters because, as Delmas notes, if the public is skeptical, labeling such acts as civil disobedience can hardly confer legitimacy on activists’ actions.

For Delmas, there is another reason why broadening the conception of civil disobedience is problematic: those who expand the scope of civil disobedience fail to see that for many activists the point is “to refuse to follow the standard script of civil disobedience” (Delmas Reference Delmas2018, 38). Activists may intentionally reject civil disobedience, for instance, because it is not accessible to them as a form of resistance, as in the case of incarcerated persons, or because they seek to expose “the falseness of the presumption of equal standing within the standard conception of civil disobedience” (39). Under these circumstances, insisting that activists who participate in hunger strikes, riots, sabotage, and so forth are engaging in civil disobedience ignores the protesters’ strategic decisions regarding the form of resistance they choose.

Given these concerns, Delmas argues that rather than trying to confer legitimacy to activists by stretching the conception of civil disobedience, it is theoretically more productive to accept that there are acts of uncivil disobedience, that is acts of resistance that may, unlike civil disobedience, be “covert, evasive, anonymous, more than minimally destructive, or deliberately offensive” (44), which may nonetheless be justifiable under certain circumstances. According to this account, any protest that displays one or more of the traits listed earlier is “generally uncivil” (44) yet potentially justifiable.Footnote 4

Delmas raises a crucial concern when she argues that accounts that expand the conception of civil disobedience to cover an ever-lengthening list of different forms of protest both lose phenomenological accuracy and erase the protesters’ self-understanding of their actions.Footnote 5 I argue that a similar point can be made about the current tendency to broaden the conception of disobedience to discuss different forms of dissent. For indeed, in certain forms of protest, whether or not the activists are engaging in actions that involve law-breaking is contested. Surely, some of the examples listed by scholars of disobedience are rather straightforward cases. When activists blow a pipeline, engage in breaking and entering in animal rescue operations, or leak the personal data of officials, both the activists and the public agree that the protest in question is in violation of existing law. In other cases, however, things are not as clear-cut.

There are, for instance, certain acts of resistance listed by these authors as examples of disobedience even though, conceptually speaking, it is unclear as to why they constitute a “deliberate breach of law” (Delmas Reference Delmas2018, 42). Consider the case of hunger strikes.Footnote 6 For Delmas, “principled disobedience,” which may be civil or uncivil, involves “unlawful acts of resistance” that are “politically or morally motivated resorts to illegality in the opposition or refusal to conform to the system’s dominant norms” (Delmas Reference Delmas2018, 42). Based on this definition, Delmas lists hunger strikes as one of her examples of uncivil disobedience. Hunger strikes are uncivil, for Delmas, because “they are evasive and coercive, involving a threat of suicide”; they are acts of disobedience because they involve “the deliberate or repeated defiance of official orders” (Delmas Reference Delmas2018, 45).

However, the legal status of protest activities that involve self-harm, such as self-immolation, hunger strikes, or the lip-sewing practiced frequently in immigrant detention centers, is a more complicated issue than what Delmas seems to suggest. Delmas is surely correct in that authorities try to prevent activists from engaging in these forms of protest in various ways, including the issuance of official bans as frequently done in prisons/detention centers. Even with such bans, however, the “illegality” of these acts of resistance is not a settled matter. The supposed illegality of hunger strikes is particularly contested. Perhaps in recognition of this fact, while discussing hunger strikes in A Duty to Resist, Delmas expands her definition of principled disobedience from a politically or morally motivated decision to resort to “illegality” to the “deliberate or repeated defiance of official orders” (Delmas Reference Delmas2018, 45). In doing so, she both broadens the meaning of disobedience from engaging in an act contrary to law, as Rawls puts it, to general defiance of authority, and ignores the fact that the legality of these official orders is frequently challenged by activists who argue that it is the authorities—not they—who are violating the law.

In a recent article, where she develops a new defense for “the right to hunger strike,” Delmas acknowledges the complexity of the matter and engages with the legal challenges presented by activists/rights advocates. In this piece, she avoids describing hunger strikes as “uncivil disobedience” (Delmas Reference Delmas2024, 857). Still, Delmas objects to those who associate this resistance tactic with “Gandhian nonviolence and civil disobedience” (850). “[T]he right to hunger strike should not be premised on the tactic’s peaceful (noncoercive and nonviolent) nature,” she argues, because as a case of “self-destructive resistance,” a hunger strike is a violent act and “to threaten to starve oneself for the purposes of constraining or exerting pressure on a target is coercive” (850). Crucially, Delmas emphasizes that neither its violent nature nor its coerciveness makes hunger strikes morally wrong; the strength of her position rests on the claim that incarcerated persons have a right to hunger strike even though it is a violent and coercive form of protest.

For Delmas, argumentative strategies deployed by activists and lawyers that present “the repression of hunger strikers as a violation of freedom of speech” remain “inadequate” (Delmas Reference Delmas2024, 848). Instead of insisting that hunger strikes are nonviolent and noncoercive, Delmas proposes that we should accept that hunger strikes are coercive and violent while making a case against prison authorities’ attempt to use the violent and coercive nature of hunger strikes as a justification to repress the practice. This is, as Delmas writes, what the authorities did at Pelican Bay State Prison in 2013 when they “charged hunger strikers with ‘willfully delaying peace officer by participating in a mass hunger strike,’ in violation of the California Code of Regulations (15 §3005(a)): ‘Inmates and parolees shall obey all laws, regulations, and local procedures, and refrain from behavior which might lead to violence or disorder, or otherwise endangers facility, outside community or another person’” (849).

Delmas does not discuss in her article how this charge was challenged in court by one of the hunger strikers, Jorge A. Gomez, who argued that “the prison had violated his constitutional right to freedom of speech by punishing him for ‘hunger striking in a peaceful manner’” (In re Jorge A. Gomez [1st App. Dist., 2016] 246 Cal. App. 4th 1082)a legal strategy that proved to be effective in this case. In an opinion filed on March 25, 2016, the California Court of Appeals First Appellate District stated that the contention of the prison authorities that Gomez contributed to “significant disruptions” to the functioning of the institution does not indicate that “there was a breakdown of order in any aspect of the prison” nor that “the protest involved any violence or disorderly conduct.” Accordingly, the court ruled that Gomez’s participation in the hunger strike did not constitute a rule violation.

Undoubtedly, a different court could have sided with the prison authorities. This fact, however, does not undermine the political significance of this case: Gomez challenged the authorities’ claim that a hunger strike is unlawful since it “might lead to violence and disorder” by arguing that not only that his actions did not endanger any other person but also that hunger striking in a peaceful manner is protected by the Constitution’s guarantee of freedom of speech. Gomez’s defense deployed an alternative interpretation of the law that contested the officials’ interpretation of it; countering the officials’ attempt to reduce law to only sovereign command, Gomez appealed to the law’s normative content as a source of rights. As Jules Lobel, drawing on Cover, argues, litigations such as this one are important not because their success is guaranteed—many of them fail—but because, as instances of jurisgenesis, they bring to the public’s attention “an alternative vision of justice” that “allows law to move towards an imagined ideal” (Lobel Reference Lobel1995, 1333).

Gomez’s defense is also significant because the success of this interpretive claim was determined by the struggle over what constitutes a “violent” and “disruptive” act. Put differently, it was the “essentially contested” character of legal precepts (Cover Reference Cover1983, 17) that enabled Gomez to challenge the official’s implementation of the law, opening space for an oppressed community, namely, the incarcerated persons, “to develop ways to maintain its own vision of law” (Lobel Reference Lobel1995, 1351). Understood this way, Gomez’s alternative interpretation of the law is at the same time a “narrative of resistance” that may become a resource “in the struggles of other… communities for decades and generations to come” (1388).

I suggest that Delmas risks losing sight of such narratives of resistance when she adopts the perspective of the prison authorities to claim that hunger strikes are indeed violent and coercive. This is the case despite the fact that Delmas’s goal is to challenge authorities’ attempts to repress hunger strikers (Delmas Reference Delmas2024, 854), In her effort to ground the right to hunger strike on the moral right to seek redress, Delmas overlooks the political significance of the dispute over the question of whose actions are to be considered illegal—the officials who forcefully suppress hunger strikes or the protesters? Claiming that hunger striking is, by definition, disobedience, or a violent and coercive act of resistance that is nonetheless morally justifiable, she ends up erasing both the ongoing political contestation and the activists’ alternative legal visions from her account. Delmas is not alone in enacting such an erasure; in fact, on this point, she is closely following Rawls’s lead.

While discussing civil disobedience, Rawls acknowledges that often there is “some uncertainty as to whether the dissenters’ actions will be held illegal or not” (Rawls Reference Rawls1999, 365). Yet, he dismisses the significance of this ambivalence by stating that “this is merely a complicating matter”; after all, he suggests, the protesters would continue their actions even if the courts were to find their actions illegal (365). Contemporary scholars of disobedience unquestioningly adopt this aspect of Rawls’s account of civil disobedience while challenging all other aspects of it. Contestation over what constitutes an illegal act is hardly “merely a complicating matter,” however, when the protesters’ refusal to accept the alleged illegality of their actions is central to their claim-making. Accounts that insist on calling these protesters disobedients, even as the protesters themselves openly reject the disobedience framework, distort the protesters’ claims. In their well-intentioned effort to offer a protective cover to the protesters, these commentators adopt the state’s view of the law and silence activists’ narratives of resistance, which draw on law’s normative content to move the meaning of the existing law toward an alternative vision of justice.

Celikates’s comments regarding the contested nature of the meaning of violence are helpful in highlighting what is at stake in this contestation over legality. Those who incorporate “illegality” into their accounts of disobedience without acknowledging the essentially contested character of legal precepts overlook that in certain instances what constitutes an (il)legal act is itself a matter of political contestation. The issue here is not limited to acts of protest that involve self-harm or other contested practices, such as politically motivated occupations of derelict buildings; the contestation over the meaning of legality is equally relevant to street protests. After all, the meaning of peaceable assembly is continually contested both by authorities, who seek to suppress dissent, and by protesters who challenge them, especially in contexts where the right to protest is being increasingly restricted.

To illustrate this point and explore why activists may choose to reject the disobedience framework in such contexts, the following sections turn to the contemporary feminist movement’s confrontation with state authorities in Turkey. In what follows, I will first discuss how the bounds of “legal protest” have contracted in Turkey since 2013. Then, turning to the websites, press releases, social media posts of various feminist organizations, and court hearings of activists on trial, I will examine how feminist protests in Turkey challenge the regime’s efforts to limit the right to protest and expose the state’s failure to fulfill its legal obligations to its citizens. As will be demonstrated, the feminist activists discussed in this article do not characterize themselves as disobedients who intentionally break the law to highlight an injustice. Instead, insisting on the legality of their actions, they posit themselves as equal citizens authorized to interpret the law and resist the government’s attempt to reduce law (hukuk) to mere sovereign command (kanun). In so doing, they participate in the creation of legal meaning, jurisgenesis.

LEGAL CONTESTATION IN AN INCREASINGLY AUTHORITARIAN CONTEXT: THE STRUGGLE OVER THE RIGHT TO PROTEST IN TURKEY

While the right to peaceful protest has been under constitutional guarantee for over a century in Turkey (Şirin Reference Şirin2013, 290), the exercise of the right has never been fully protected within the current legal framework that was established by the junta regime of 1980–83. Article 34 of the Constitution states that everyone has a right to organize peaceful protests “without prior permission.” The right to peaceful assembly, however, can be limited under certain circumstances. Article 34 provides an ambiguous list of what these circumstances might be; it states that: “The right to hold meetings and demonstration marches shall be restricted only by law on the grounds of national security, public order, prevention of commission of crime, protection of public health and public morals or the rights and freedoms of others” (Constitution of the Turkish Republic, Article 34).Footnote 7

The law that regulates the right to protest, Law 2911 (Law on Assembly and Demonstrations), was legislated in 1983 during the military rule. As legal scholars agree, restrictive elements of the law suggest that it was designed to curtail the right to assembly (Altıparmak Reference Altıparmak2013; Şirin Reference Şirin2013, 291). While a series of reforms moderated the law during the EU accession process in the early 2000s, Law 2911 still includes “spatial and temporal restrictions on the use of the right to protest and gives [local administrators] extensive powers to restrict, suspend, or ban protests” (Arslanalp and Erkmen Reference Arslanalp and Erkmen2020b, 105). These powers were extended in 2018. In July of that year, President Erdoğan ended the ongoing state of emergency, which was declared following the coup attempt in July 2016, as the parliament passed amendments to Law 2911 and Law 5442 (Provincial Administration Law, İl Idaresi Kanunu) that integrated parts of the State of Emergency Law into ordinary law. These amendments give governors, who are appointed administrators, the capacity to “control the mobility of people in public areas” for the purposes of preventing what the law ambiguously defines as “disruptions and future disruptions to public order and security”; the amendments also put time limits on protests, requiring the protesters to request an extension from governors to allow demonstrations to continue past sunset (117).

As Mert Arslanalp and Deniz Erkmen (Reference Arslanalp and Erkmen2020a) argue, this restrictive legal framework provided the AKP regime with legal tools to intensify its crackdown on the right to protest and to establish what these authors aptly call a “mobile emergency rule,” which refers to the “temporary and localized practice of suspending or limiting constitutional rights via administrative orders in the name of public order without enacting a total suspension” (948). Mobile emergency rule uses legal ambiguities and procedural technicalities to open space for the discretionary exercise of sovereign power. In so doing, it institutes a juridical order that normalizes “lawful lawlessness”—to adopt a phrase that Ayten Gündoğdu (Reference Gündoğdu, Shachar and Benhabib2025) uses to discuss the routinized violation of the principle of equality before the law through the manipulation of jurisdiction in the contemporary immigration context (177). Rather than suspending the right to protest, the regime, by incorporating the State of Emergency Law into ordinary law, has granted the administrative authorities discretionary powers to disperse any protest activity on the grounds of public security. In a perfect enactment of “lawful lawlessness,” appointed officials (governors, district heads, rectors, and public prosecutors) frequently invoke their duty to secure law and order to issue temporary and localized bans and/or impose restrictions (such as preventing access to protest sites by closing off metro stations), thereby limiting protest activity based on broad interpretations of the existing law.

This discretionary exercise of sovereign power has been frequently “contested, resisted, and negotiated” (Arslanalp and Erkmen Reference Arslanalp and Erkmen2022, 929) both on the ground and in the courts. For instance, local authorities frequently interpret Article 10 of Law 2911, which requires protesters to “inform authorities” of planned protests, as “a requirement to get permission” and cite “lack of prior permission” as a pretext for disproportionate police response. Rights advocates/activists contest this interpretation. Participating in the creation of legal meaning, they argue that official declarations regarding Law 2911 contradict Article 34 of the Constitution, which states that everyone has a right to protest “without prior permission” (Altıparmak Reference Altıparmak2013; Şirin Reference Şirin2013, 293–4).Footnote 8

To circumvent activists’ legal challenges, officials announce protest bans shortly before the protests, constraining activists’ ability to file judicial appeals ahead of the planned event. Nor are the courts always sympathetic to protesters’ challenges; in fact, given how much the AKP regime has eroded judicial independence over the last decade (Özbudun Reference Özbudun2015), it is surprising that the courts occasionally decide in favor of the protesters.Footnote 9 Despite these limitations of the legal field, protesters continue to contest the legality of administrative bans not because there is any guarantee that the courts will decide in their favor but because such legal contestations are part of a narrative of resistance that exposes to the public the regime’s assault on the rule of law and the right to protest.

These legal contestations are especially important, given that by limiting protests through the deployment of the law (kanun), the AKP government also seeks to control the public narrative surrounding the legitimacy of both the regime and the protests. In a move reminiscent of how the fascist state retained the appearance of a functioning legal system while divorcing law from its rational form and content (Neumann [1947] Reference Neumann2009, 440–58), the AKP regime presents these discretionary administrative bans as “legal” acts to maintain the veneer of the rule of law while simultaneously stripping law of both its generality and subjective rights, reducing it to mere sovereign command. By describing the protesters as lawbreakers, the regime also seeks to delegitimize their protests. Engaging in jurisgenesis, activists counter this official account with a narrative that offers an alternative interpretation of Law 2911 based on their readings of the constitutional guarantees of the right to protest and the rule of law to make a case for the legality of their protests and the lawlessness (hukuksuzluk) of the official bans.Footnote 10 Politically, this narrative confronts the government’s public campaign of delegitimation by highlighting how these last-minute arbitrary bans undermine the rule of law, which “requires state officials to act in a relatively consistent, predictable, and transparent fashion” (Scheuerman Reference Scheuerman2015, 443). Strategically, these arguments provide a legal defense to activists, who face possible prison sentences for violating Law 2911.

INTERPRETING THE LAW FROM BELOW: FEMINIST PROTESTS AND THE MILITANT POLITICS OF LEGALITY

The feminist movement’s struggle against the regime’s efforts to criminalize protests constitutes a striking illustration of this ongoing contestation over the meaning of law and what counts as an illegal protest.Footnote 11 While the AKP regime has intensified its restrictions on protests in recent years, the feminist movement has continued to stage massive demonstrations. The March 8 Feminist Night March is especially important in this regard. The first Feminist Night March dates to 2003 when feminists decided to meet at night on Istiklal Street to stage a protest that could bring together all women with (or without) any organizational affiliation (Akdemir Reference Akdemir2022; Çaylı Rahte and Tokdoğan Reference Çaylı Rahte and Tokdoğan2014). Since then, each march has been organized by a committee whose members change every year and come from different feminist groups. The organizing committee publicizes the event, coordinates the participation of protesters, communicates with the authorities informing them of the event as required by Law 2911, and issues a press release on the day of the march.

The number of participants in the Feminist Night March has steadily increased over the years. The 2013 Gezi Protests, in which feminist organizations played a major role, contributed to the growing visibility of the march. Along with the Istanbul Pride March, the Feminist Night March became one of the venues where the legacy of Gezi as an ideologically diverse resistance movement continued to live. In 2013 and 2014, each of these demonstrations took thousands to Istiklal Street. The AKP regime’s initial response was to ban the Pride March, starting in 2015, through ordinances issued by appointed officials. The declaration of a state of emergency after July 2016’s coup attempt enabled the regime to further curtail the right to protest. Despite the increased levels of repression, in 2017, during the first year of the emergency rule, more than 40,000 women filled the streets in the Taksim area for the Feminist Night March. The following year, the protesters, whose path was blocked by a police barricade, altered the direction of the march. Since 2019, all marches organized by feminists in the Taksim area have been targeted by protest bans, issued by the Beyoğlu District governorship shortly before the events. The texts of these bans state that the location of the protest is unsuitable for demonstrations, asserting that large protests in Istanbul can only be held in two designated gathering zones located in Yenikapi and Maltepe. Referring to Law 2911, the authorities ground the suspension of the right to assembly on the claim that the protests may provoke other groups and thereby risk undermining public order.

The legality of these arguments has been challenged by activists who push back against these bans. For instance, “when the Beyoğlu district authorities in Istanbul banned the planned women’s march on 25 November 2019, … persistent demands on the part of the organizations led to the withdrawal of the ban” (Arslanalp and Erkmen Reference Arslanalp and Erkmen2022, 929). Still, the authorities imposed spatial restrictions by closing off large sections of Istiklal Street. Protesters marching beyond the designated area were confronted by police who used disproportionate force to disperse the protest, which they now deemed “unlawful.” Starting in 2020, these localized, temporary, and targeted bans have been accompanied by restrictions imposed by the Istanbul governorship on public transportation to prevent access to Taksim.

Since 2019, when the Feminist Night March was first banned, activists defied each of these protest bans, which they claimed to be arbitrary and unlawful (hukuksuz). On March 8, 2022, for instance, following the Beyoğlu District governorship’s announcement to ban the Feminist Night March, the Association for Monitoring Equal Rights challenged the authorities’ interpretation of Law 2911. After tweeting the text of Article 34 of the Constitution, they stated: “Despite this clear constitutional provision, administrative authorities’ decision to ban the protests and to require prior permission is unlawful (hukuksuzdur)” (@esithaklar, March 8, 2022). Despite numerous obstacles imposed by the authorities, including heavy police presence, blocked streets, and closed metro stations, during the last 5 years, activists continued to march around the Taksim area.

Authorities have targeted protesters in other ways as well. In 2021, for instance, 17 women who participated in protests were taken into custody 2 days after the march through a police operation conducted in the early hours of the day. These protesters were later charged with violating Law 2911 by not dispersing after the police announcement and with disparaging the presidency by participating in the performance of the slogans, “Tayyip run run women are coming” (“Tayyip Kaç Kadınlar Geliyor”) and “Jump jump, those who don’t are Tayyip” (“Zıpla zıpla, zıplamayan Tayyip’tir”), by “jumping to the rhythm of the slogan that was being chanted” (Akgül Reference Akgül2022). In the court hearings, protesters both defended themselves by insisting on the legality of their actions and participated in the creation of legal meaning, by challenging officials’ interpretation of Law 2911 and appealing to constitutional principles.

For instance, one defendant stated: “I don’t remember if I participated in the slogans listed in the indictment, but I also don’t think that the slogans in question involve an element of crime… I exercised my constitutional right. I demand my acquittal” (Cumhuriyet 2022). Other defendants challenged the prosecution’s claim that the defendants disobeyed the police announcement to disperse. One of them, referring directly to Articles 23 and 24 of Law 2911, which gives a list of conditions that would require the police to make an announcement to disperse, argued that the “police did not make an announcement to disperse because the conditions requiring such an announcement were not met.”

According to the defendants’ narrative, these unfounded charges were a part of the authorities’ ongoing effort to reduce law to a mere means of control, instrumentalized by the government to intimidate activists. During the hearing that was held on March 1, 2022, a defendant pointed to the government’s instrumentalization of law (kanun) to intimidate dissent by stating that “the reason why I, along with my co-defendants, am here today is to prevent the possibility that the number of those who will participate in the Feminist Night March next week increase from 30,000 to 50,000 women.” Others echoed this point and highlighted the double standard in the state’s willingness to charge peacefully protesting women, who were simply exercising their rights, for breaking the law, while state officials frequently failed to enforce the Law to Protect the Family and Prevent Violence against Women (Law 6284) to save women’s lives: “I am saddened that when violent assailants targeting women are walking the streets freely,” one of the defendants claimed, “we are being charged here for a crime that does not exist” (Cumhuriyet 2022). After 8 hearings over the course of 2 years, on September 28, 2023, all the defendants, who insisted in their final statements that it was unlawful (hukuksuz) that they were put on trial for participating in the Feminist Night March, were acquitted of all charges (Bianet 2023).

Such legal arguments are never merely strategic moves; they are, at the same time, political claims. The activists use the publicity afforded to them in the courtroom to demonstrate not only that they are not lawbreakers, but also that it is actually the authorities who are undermining law (hukuk) by instrumentalizing the existing law (kanun) to crush dissent. As Lobel (Reference Lobel1995) suggests, even in losing cases, articulations of such alternative interpretations of law can be used to galvanize public support and become a part of the “oppressed community’s legal vision and aspirations” (1348). The following ongoing case illustrates this point.

In 2022, 40 activists from the Woman Defense Network (Kadın Savunma Ağı), a feminist organization that was formed in 2019 to address violence against women, were prevented from attending the 20th Feminist Night March. Activists were taken into custody at Kadıköy Ferry Pier before ever making it to Taksim, which is on the other side of the Bosporus Strait. In a press release posted on their website shortly after the activists were indicted for violating Law 2911, the Woman Defense Network stated, “Participating in the March 8 marches is not against the law; it is a fundamental right” (Kadin Savunma Ağı 2022). They also charged the authorities both for “usurping” the activists’ rights to peaceful protest and freedom of movement, and for inventing “crimes” in their indictments, including the absurd claims that slogans such as “Let’s Create a Feminist World” and “We Want a World without Bosses and Pimps” contained criminal elements. “We are not surprised,” the activists declared in an allusion to Law 6284, that those “who do not enforce the laws that are legislated to protect women” would usurp these constitutional rights. Indeed, the press release emphasized that it was the authorities, not the activists, who were on the wrong side of the existing law: “it is not our friends, who were unfairly taken into custody,” the statement reads “but those, who turn a blind eye to the plight of women, trans people, and children who are subjected to violence every single day in this country; those who release their murderers, and those who withdrew from Istanbul Convention, are the guilty ones” (Kadın Savunma Aǧı 2022).

Before the trial of these activists concluded, another group challenged the legality of the authorities’ decision to ban the 20th Feminist Night March on the grounds of potential disturbances to social peace. On March 22, 2024, the 10th Administrative Chamber of the Istanbul Regional Court of Justice ruled that the administrative order to ban the march was a violation of the right to assembly (Akgül Reference Akgül2024). According to the ruling, insofar as it failed to demonstrate a necessary social need, the ban was a “disproportionate and excessive measure” that was against the law. The court also noted that it was unacceptable for the Istanbul governorship to issue a blanket ban rendering protests in the Taksim area unlawful on the grounds that large protests in Istanbul can only be held in designated gathering zones; after all, the court concluded, “Considering the definition, purpose, and nature of the right to organize…demonstration marches, one of the elements of this right is the freedom to choose the venue or route for the meeting or demonstration” (Akgül Reference Akgül2024).

This decision did not prevent the authorities from issuing a similar ban targeting the Feminist Night March in 2025. Still, for the activists, the court’s decision is a political and strategic win: politically, it confirms, in the public eye, the activists’ point that it is the state, not the activists, who are breaking the law in banning protests; strategically, it provides those activists who are taken into custody for violating Law 2911 with the legal defense that the bans issued by the authorities are lawless (hukuksuz).

As these examples demonstrate, while they openly and publicly defy the protest bans, feminists refuse to follow, to use Delmas’s phrase, “the standard script” of disobedience (Delmas Reference Delmas2018, 38). Rather than characterizing their actions as those of disobedients who intentionally break the law to highlight an injustice, feminist activists offer a narrative of resistance that makes a case for the legality of their actions by appealing to law (hukuk) and the constitutional guarantees of the rule of law (hukuk devleti) and the right to protest to contest the authorities’ interpretations of the existing laws which reduces them to simply sovereign command (kanun).

This is not to suggest that civil disobedients do not appeal to law. On the contrary, as Scheuerman rightly suggests, in their attempt to show that Rawls’s emphasis on “fidelity to law” implies a status quo bias, contemporary critics such as Celikates fail to appreciate that none other than Martin Luther King had a “dynamic and forward-looking” commitment to law (Scheuerman Reference Scheuerman2015, 432). While he had no illusions regarding the racist underpinnings of the existing legal system, Scheuerman convincingly argues that King believed “appeals to the law, when properly tied to militant protests exemplifying respect for the law, could play a decisive role in spawning radical reform” (443). The militant protests in question involved activists “break[ing] an unjust law,” to use King’s words, “openly, lovingly, and with a willingness to accept the penalty” (King [1964] Reference King2000, 95). The feminist activists in Turkey share King’s commitment to the ideal of law-based government and agree with his insights regarding the nexus between law and radical change. Still, they reject the disobedience framework: the form of resistance that these activists choose, which also carries the risk of police violence and legal prosecution, is defined by a refusal to accept the authorities’ interpretations of the law that cast them as intentional lawbreakers. Why?

As we have seen, the temporary and localized bans that are based on broad interpretations of the law do not only aim to prevent a specific protest activity, limit the visibility of the protests, and ensure that the activists’ demands remain unheard by the broader public. The creation of this juridical order that embodies a form of “lawful lawlessness” (Gündoğdu Reference Gündoğdu, Shachar and Benhabib2025) also serves as an instrument in the regime’s toolbox to render street protests as “undemocratic acts that do not fall within the rule of law, and protesters as ‘terrorists’ and ‘bandits’” (Arslanalp and Erkmen Reference Arslanalp and Erkmen2022, 922). Consider the following statement delivered by Erdoğan shortly after the Gezi protests:

Anyone who has problems with the government, the policies of the government, can express themselves within the framework of democracy and law. They can show their democratic reactions at the ballot. The measure of this is the ballot. […] Everyone can, within the limits of democracy and law, show their reactions, hold a meeting. Yet no one has the right to protest unlawfully, undemocratically. (cited in Arslanalp and Erkmen Reference Arslanalp and Erkmen2020a, 957)

Protest bans issued by local administrators give a legal veneer to this attempt to contain democratic politics within the narrow confines of elections and to delegitimize street protests while stripping law of its normative content of subjective rights, thereby reducing hukuk to kanun—that is, “only voluntas… the political command of the sovereign” (Neumann [1947] Reference Neumann2009, 368). By emphasizing that the bans are unlawful use of executive power because they are excessive, unpredictable, and arbitrary, and by challenging the legality of the interpretive reasoning offered by the administrators, protesters both direct the public’s attention to how the regime is undermining the rule of law and participate in jurisgenesis. This militant politics of legality transforms the law into a site of contestation; by claiming the authority to interpret the law in their capacity as equal citizens, activists not only challenge the regime’s claim to be the sole arbiter of legality but also stand up against its attempt to reduce law simply to a sovereign command to which one has no option other than to obey or disobey. In so doing, they form a dynamic and forward-looking interpretive relationship with the law, which rejects its instrumentalization by the regime, to reclaim the law (hukuk) as a source of rights and mobilize it as a means of potential restraint on the discretionary use of sovereign power.

“WE DO NOT OBEY!”: ACTING AS CO-AUTHORS OF LAW AND DEFYING PATRIARCHAL AUTHORITY

While the feminist movement in Turkey is composed of diverse constituents with significant disagreements, making what Siegel (Reference Siegel2001) calls “interpretive and amendatory” legal claims (300) has historically been central to the movement. Starting in the 1980s, feminist activists “prioritized amendment of the legal codes” (Arat Reference Arat2016, 129). They first targeted the Civil Code, which recognized the husband as the “head” of the household, legalizing the hierarchical relation between man and woman in the family, and then called for a change in the Penal Code, which, they argued, provided legal backing to patriarchal domination that made the female body “a target of male aggression and assault” (Tekeli Reference Tekeli2010, 121). After years of struggle, the movement achieved numerous legislative successes between the 2000s and early 2010s, including progressive amendments to the Civil Code in 2001, a new Penal Code in 2004, and, most significantly, the ratification of the Istanbul Convention, which was incorporated into domestic law with the passing of the Law on the Protection of the Family and Prevention of Violence against Women, Law 6284, in 2012 (Acar and Altunok Reference Acar and Altunok2013, 18).Footnote 12

After the success of their amendatory claims that resulted in new and/or improved laws, feminists directed their attention to the officials’ interpretation/implementation of these laws. Feminist organizations monitor “the judicial interpretation of these legal reforms” in numerous ways (Caltekin Reference Caltekin2022, 18). “We Will Put an End to Femicides Platform” (Kadın Cinayetlerini Durdurucağiz Platformu; hereafter, The Platform), an organization that seeks justice for the victims of gendered violence, for instance, observes and publicizes court cases. Activists organize demonstrations in places where women are murdered or attacked both to raise awareness and to stop possible cover-ups. Feminist lawyers, such as the ones who are a part of the Gelincik Project, provide legal assistance and follow femicide victims’ cases. They also bring attention to procedural concerns as well as to judges’ discretionary use of Article 29 of the Turkish Criminal Law to grant sentence reductions to violent offenders on the grounds that they committed the act “in a state of anger or severe distress caused by an unjust act” (16). In doing so, these activists contest judicial interpretations by creating a narrative of resistance to move the meaning of the existing law toward an alternative vision of justice—a vision that finds its most succinct expression in the slogan: “Not Male Justice, Real Justice” (“Erkek Adalet Değil, Gerçek Adalet”).

The Platform also documents how the state institutions willfully disregard various provisions of Law 6284. The activists expose cases where the law enforcement officials’ reluctance to take preventive and protective measures prescribed by Law 6284 resulted in femicides. They keep a public record of femicides on their website drawing attention to the government’s failure to provide reliable data in violation of Law 6284. Finally, they release yearly reports documenting the government’s lack of compliance with the provisions of Law 6284 to open and maintain safehouses for women in abusive relationships.

For the feminist movement, the AKP regime’s failure to fulfill its legal obligations and responsibilities to its citizens, exemplified by its willful disregard of Law 6284, has become one of the most telling signs of its increasing authoritarianization, one with deadly consequences for many women. By refusing to abide by the provisions of Law 6284, which was enacted by the parliament in response to the years-long activism of feminist groups, the regime not only shows its disdain for democratic will formation but also, by enforcing some laws while ignoring others, undermines the fundamental principles of the rule of law: namely consistency, predictability, and transparency. For feminist activists, both when state officials disregard Law 6284 and when they instrumentalize Law 2911 to crush public dissent, they create lawlessness (hukuksuzluk) in the service of a regime that seeks to strip law of its normative content, reducing it simply to the political command of sovereign (kanun). To challenge this usurpation of power, feminist activists emphasize their status as equal citizens and contest the official interpretations of the existing laws to reclaim law (hukuk) as a source of rights and egalitarian norms.

This emphasis on equal citizenship along with the feminist activists’ rejection of the label of “lawbreaker”—even when they defy official orders—and their insistence that it is, in fact, the authorities who are undermining the law bring into sharp relief what is at stake in the now-classic slogan of the movement: “We are not shutting up, we are not afraid, we do not obey” (Susmuyoruz, Korkmuyoruz, Itaat Etmiyoruz). Read in this context, rather than being a call for disobedience (itaasizlik) to an otherwise legitimate authority, the slogan expresses a feminist refusal to obey a regime that seeks to establish a hierarchical relation between the state and its citizens, modeled on patriarchal rule. Feminist activists reject this command and obedience model of politics, whereby citizens are transformed into silent subjects who have no option other than to obey or disobey the authorities’ orders, by laying bare its patriarchal roots. They demonstrate that the ongoing attacks on the constitutional principles of the rule of law and freedom of assembly are integral to the regime’s broader strategy of enforcing unquestioning obedience to its discretionary and arbitrary rule. Standing up against this attempt to resurrect patriarchal authority in the realm of politics, activists uphold their authority to interpret the laws as equal citizens; engaging in “feminist rebellion” (feminist isyan), as they call it in their slogans, they resist the “lawlessness” (hukuksuzluk) of the “male-state” (@8MartYuruyus, March 8, 2023) and act as co-authors of law to counter its subversion by an increasingly authoritarian and lawless (hukuksuz) regime. The protesters’ insistence on the legality of their actions even as they openly defy administrative protest bans is crucial to the making of this claim. Folding such protests into the disobedience framework not only silences the voices of the protesters and erases their narratives of resistance but also adopts the state’s perspective regarding the “illegality” of their actions, thereby putting the protesters’ safety at serious risk.

CONCLUSION

In this article, I argued that the over-broadening of the conception of “disobedience” in contemporary literature on (un)civil disobedience rests on a shared assumption that there is a clear and unambiguous line between lawful and unlawful protests and that “intentional lawbreaking” takes place in an uncontested political/legal space. As I hope to have shown, this is a misleading assumption, since the notion of “legal protest” is a contested category. The political contestation over its meaning has become especially important in contexts where authoritarian populists are curtailing the right to protest. However, limiting the right to protest is not unique to authoritarian countries. A brief look at the recent regulatory changes introduced in the United States, the United Kingdom, France, and Germany reveals that ostensibly liberal democracies also seem to be in the process of limiting the right to protest through the implementation of juridical formulas and legal mechanisms deployed by authoritarian regimes (Hamilton Reference Hamilton, Sajó, Uitz and Holmes2021; Page and Robinson Reference Page, Robinson, El-Haj, Hamilton, Probert and Srinivasan2024).

Given this background, it is especially important to look at what the activists are doing in countries such as Turkey to struggle against the regime’s effort to limit protests. It is also time to think more critically about an emerging consensus in the disobedience literature that is based on a shared concern that the emergence of authoritarian populism, even in some of the world’s oldest liberal democracies, places special strains on nonviolence: after all, these commentators claim, protesters may ask, “Why pursue open or public lawbreaking when publics have no effective way to shape state decision-making?” (Scheuerman Reference Scheuerman2022, 992). Under conditions of authoritarian populism, violent forms of resistance may appear to be more effective than nonviolent ones. Convinced that the use of violent methods is bound to become more likely in such contexts, many theorists have turned their attention to the question of under what conditions violent lawbreaking can be justifiable (Jubb Reference Jubb2019; Scheuerman Reference Scheuerman2022, 981–2). The logic here is that in authoritarian states, people first try legal protests only to realize that such protests are ineffective. This leads them to take on “more militant” types of lawbreaking from a widespread sense that existing systems are failing their citizens, raising the question of what kind of militant acts are justifiable under such circumstances.

Consider the following articulation of this view by Derek Edyvane and Enes Kulenovic as they introduce the notion of “disruptive disobedience,” which they define as a form of disobedience that is more militant than civil disobedience since it aims “directly to frustrate practices that function to exclude citizens from basic resources, public services, and public spaces” (Edyvane and Kulenovic Reference Edyvane and Kulenovic2017, 1370). For the authors, disruptive disobedience is justifiable because:

…possession of the formal right to protest publicly is no guarantee of meaningful access to democratic opposition. It is the impotence of legal protests in changing unjust laws and practices that justifies illegal public protest. And it is the impotence of public protest in undermining exclusionary practices that justifies covert disruption. Used as a last resort or not, it is the purpose for which disruption is used—to challenge democratic exclusion—that justifies the act. (Edyvane and Kulenovic Reference Edyvane and Kulenovic2017, 1370)

The discussion presented in this article challenges the underlying assumption of this statement, namely that the inefficacy of legal protests leads protesters to adopt increasingly radical forms of lawbreaking. For, as we have seen, contrary to what Edyvane and Kulenovic and others seem to take for granted, what constitutes a “(il)legal” protest is far from clear-cut. In fact, paying attention to what the activists are doing in countries like Turkey demonstrates that popular struggles in such contexts revolve around a contestation over the meaning of “legal” protest. Rather than deliberating on the justifiability of different forms of lawbreaking, many activists who struggle against populist authoritarians reject the authorities’ claim that they are lawbreakers and emphasize the legality of their protests, both to avoid prison sentences and to reclaim their role as equal citizens protecting the rule of law against the unlawful actions of what has essentially become a lawless regime.

Under these circumstances, more militant forms of lawbreaking that involve the direct use of violence may perhaps be justifiable; but, in most cases, they are hardly meaningful political options for the protesters, who insist, in their slogans, press releases, and legal defenses, that their goal is to hold on to law (hukuk) in the face of an unlawful (hukuksuz) regime that seeks to reduce law only to sovereign command. Such protests are no less radical or dangerous for those who participate in them than acts of (un)civil disobedience: insisting on law (hukuk) under conditions of lawlessness is a militant act. Even more important, the activists’ strategic and political claim to legality in response to the increasing use of juridical formulas by authoritarian populists to chip away at the right to protest points to alternative ways of resisting the ongoing contraction of the right to assembly in liberal democratic states which emulate, at an alarming rate, their authoritarian counterparts.

ACKNOWLEDGEMENTS

I am grateful to Begüm Adalet, Claire Bracken, Ayten Gundogdu, Brad Hays, Pınar Kemerli, Nazlı Konya, Lori Marso, Zoe Oxley, and Jenelle Troxell for carefully reading this essay at various stages and for their very helpful suggestions. I thank the anonymous reviewers for their constructive criticisms. I would not be able to write this paper without the many insightful conversations that I had with Yeşim Arat, Volkan Çıdam, Alexander Livingston, and Guillermina Seri. The paper benefited immensely from the feedback I received at Union College Political Science Department’s Faculty Colloquium, and the University of Albany, Political Theory Workshop; I thank all the participants for their generous engagement with my work. The Central New York Humanities Corridor’s Political Disobedience Working Group has been instrumental in providing a productive intellectual venue to discuss and share research ideas. For their intellectual curiosity and their generosity to think along with me as I developed some of these ideas, I owe a special debt of gratitude to the wonderful students who participated in my “Politics of Protest” seminars at Union College in Winter 2023 and Fall 2024.

FUNDING STATEMENT

Union College’s Faculty Research Fund provided much needed financial support to conduct the initial research.

CONFLICT OF INTEREST

The author declares no ethical issues or conflicts of interest in this research.

ETHICAL STANDARDS

The author affirms this research did not involve human participants.

Footnotes

Handling editor: Julie Rose.

1 As Siegel (Reference Siegel2006) suggests, Cover’s understanding of jurisgenesis influenced many legal scholars in the United States, whose works explore how social movements shape constitutional meanings (1325). For James Pope (Reference Pope1997), who focuses on the early twentieth-century American labor movement, Cover’s notion of jurisgenesis provides the “foundation for a theory about the role of legal thought and practice in sustaining resistance” (954). Building on these accounts, this article demonstrates that the relevance of Cover’s insight goes beyond the “constitutional culture” in the United States (Siegel Reference Siegel2001, 322) and extends to increasingly authoritarian contexts where those who govern still find it necessary to claim democratic legitimacy and pay lip service to the rule of law, making it possible for those who resist to draw on law “as a source of rights and egalitarian norms” (Pope Reference Pope1997, 954).

2 A major new wave of protests erupted after Ekrem İmamoğlu, the Mayor of Istanbul and the main opposition party’s presidential candidate, was arrested on corruption and terrorism charges on March 19, 2025.

3 Kimberly Brownlee (Reference Brownlee2004) also challenges this aspect of Rawls’ definition, albeit for different reasons.

4 For Ten-Herng Lai (Reference Lai, Sobel, Vallentyne and Wall2019), for instance, “acts of disobedience, civil or uncivil, are justified insofar as they are necessary, proportionate, and represent the best way of responding to the political values that purportedly ground the duty to obey the law” (112).

5 This does not mean that uncivil disobedience is always a more accurate and useful way of describing protests. For example, JongWon Lee (Reference Lee2024) convincingly argues that Delmas’s characterization of the 2019 Hong Kong protests as uncivil disobedience was neither phenomenologically accurate nor politically useful for the protesters.

6 Another example is self-immolation. Brownlee (Reference Brownlee2004) argues that self-immolation should be considered civil disobedience because it is a “breach of law” that is “violent but non-coercive” (349). But is self-immolation unequivocally a breach of law? Self-harm is not illegal in the United States, the United Kingdom, the European Union (EU) member states, and Australia—just to name a few. And while Chinese officials criminalized self-immolation in early 2010, by “vowing to charge anyone found ‘inciting’ a self-immolation with murder” (Khazan Reference Khazan2012), they did so to crush dissent in the face of an increasing number of self-immolations by Tibetan activists. Even there, however, it was not immolation but rather the act of “inciting” that was deemed illegal. What counts as “inciting,” of course, is contestable.

7 Unless stated otherwise, all the translations belong to the author.

8 This argument proved to be an effective litigation strategy. Multiple European Court of Human Rights decisions have deemed various instances of the law’s implementation as violations of human rights standards (Şirin Reference Şirin2013, 292–4). Many cases resolved in lower courts found officials’ use of “lack of permission” to disperse protests unconstitutional.

9 That the courts, on occasion, side with protesters makes it possible for the regime to fend off the charges regarding the erosion of judicial independence.

10 On April 19, 2025, a protest on Istiklal Street became the stage for a real-time contestation over the meaning of the law. After the police announcement that declared the protest was “illegal,” mimicking the form of the official announcement, protesters addressed the police using a speakerphone. They stated: “Attention! This is the people speaking. We are addressing the law-enforcement. You are committing a constitutional crime (anayasal suç). Please do not obey unlawful orders. Remove the barricades” (@sendika.org, April 19, 2025).

11 There are other examples, including the LGBTQ movement’s ongoing efforts to challenge protest bans and Cumartesi Anneleri (Saturday Mothers) whose vigil for their forcefully disappeared relatives had been arbitrarily banned since 2018. Saturday Mothers contested these bans. After years of litigation, two of the cases reached the Constitutional Court, which found the Beyoğlu District governorship’s reasoning that the vigil could cause “disruptions and future disruptions to public order and security” baseless and declared the bans unlawful (Jin News 2023).

12 Erdoğan’s withdrawal from the Istanbul Convention, despite the massive protests and various court cases challenging the legality of the presidential decree, made it clear that none of these gains, many of which were legislated during the early years of the AKP government, are safe today (for a detailed account of democratic backsliding and the instrumentalization of women’s rights by the regime, see Arat Reference Arat2022).

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