by Tim Sommers
When is it acceptable to break the law to protest an injustice? That’s an easy one. Anytime the injustice is sufficiently unjust. But that’s not the whole story. Among the rights everyone should be afforded in a reasonably just liberal democracy, I believe, is the right to break the law sometimes in certain ways. Many have defended, in particular, one kind of civil resistance that involves lawbreaking, namely, civil disobedience.*
John Rawls, in A Theory of Justice, defines civil disobedience as a politically (or socially) motivated, public, non-violent and conscientious breach of law (or order) undertaken with the aim of bringing about a change in laws or policies against a general background of fidelity to law by actors willing to accept the consequences of their actions. He argued that civil disobedience is justifiable even in a reasonably just society.
Some have objected to Rawls’ focus on an idealized account of what civil disobedience would be like in a society presumably more just than ours. They worry that this distorts, rather than clarifies, the role of civil disobedience in actual, existing societies.
Others have argued that Rawls’ account has too little to do with the paradigm cases of civil disobedience. For example, Gandhi and King did not operate against the backdrop of legitimate, reasonably just societies – unless you consider Colonial India or the Jim Crow South reasonably just.
Philosophers have also objected to various features of the view wondering whether justifiable political actions must be public or whether the actors must always accept the consequences or even whether political action must be non-violent.
I believe that Rawls had good reasons for offering an account idealized in these ways.
Rawls’ theory of civil disobedience is not a general theory of justifiable political action. His focus on civil disobedience is motivated simply by the need to take one thing at a time and an awareness of the special place in our thinking about justice and our public life that civil disobedience holds. Ideally, civil disobedience as conscientious political action for social or political change models the change it seeks by being public, non-violent, and appealing to the sense of justice of others. Appealing especially to those who disagree with a particular act or campaign. And it is done with a willingness to accept consequences in a way that reinforces the rule of law even in its breach. It is part of the change it seeks. In fact, again, I think that in a liberal democracy there is a right to civil disobedience, rather than it being sometimes justifiable.
One problem with focusing on justifiability is that it can get mired in the issue of whether or not there is a generalized obligation to obey the law. Surprisingly, most philosophers are “Philosophical Anarchists.” They say that you have no obligation to obey the law over and above your moral or pragmatic reasons for doing so. I assume, nonetheless, that at least sometimes, especially in a reasonably just society, it is wrong to break the law.
Another way justifiability can lead us astray is that, behind every act of civil disobedience there is a claim of injustice or wrong. A focus on justifiability leads to a focus on these claims. However, I don’t want to know if political action is ever justified by injustice, of course it is. I want to know if, even in a reasonably just society, there is at least this form of political action, civil disobedience, that is justified even when the claim that the actor has been wronged is mistaken.
As Joseph Raz puts the point, the question of whether or not civil disobedience is a right is whether actors are “entitled civilly to disobey even though [or when] one should not do so”.
Like free speech – indeed, it is free speech – the test case is always what to do with what it is that you disagree. Of course, you don’t want to suppress your own side in an argument. But what about the other side? Even John Stuart Mill in his seminal On Liberty failed to extend free speech to youth, barbarians, and Catholics (under the sway of a foreign sovereign).
Admittedly, there is something paradoxical about suggesting that there even could be a legal right to break the law. Since the law has been broken and, by hypothesis, civil disobedients are willing to accept the consequences of such an act and since we are assuming it is wrong to break the law – what can it even mean to say there is such a right?
I assume that civil disobedients face and accept legal consequences for their actions, but that we would recognize such a right by treating them differently than ordinary law breakers. This might mean leniency in treatment, sentencing, or even, in some cases, simply not subjecting them to the full legal consequences their actions. I leave aside the practical side of this question.
As for the conceptual side, again, rights, by definition, can be used wrongly. That may put the point too strongly. But there is nothing logically wrong with the claim that a reasonably just society includes a right (potentially enshrined in law in some way) to disobey the laws of that society. A reasonably just society, arguably, would have a special place for civil disobedience.
Civil disobedience proceeds out of a desire to communicate an injustice, to appeal to the better angels of our nature, even at some risk to yourself and without rejecting the whole of the social order tout court. It invokes a lawful social order, even where it does not yet exist, an order based on a shared commitment to justice while recommending fidelity to law even in the breach of it.
Civil disobedience also and enacts the liberal political order by demonstrating that it is strong enough to tolerate, within limits, even dissent that breaks with the liberal order and/or the law on some particular point. Just as Rawls argues that a liberal political state must tolerate a certain level of intolerance by its illiberal members, so too must tolerate its own excesses. It is consistent with the proper understanding of liberalism that there is, paradoxically, a (limited) right to break the law even in the best – but, most importantly, in the worst of times. “Civil disobedience is not our problem,” Howard Zinn argued, “Our problem is civil obedience.”
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*See also noncooperation, conscientious resistance, conscientious objection, direct action, symbolic protest, mass noncompliance, etc.
I didn’t use any examples of civil disobedience above. The left/right valence tends to sidetrack discussion onto matters of fact rather than principle. Here are some examples to mix in as needed. These are all 21st century and they are in roughly chronological order. Add your own in the comments. Or feel free to dispute one or more.
Anti-War Protests, Iraq War (2003) Massive global demonstrations included acts of deliberate civil disobedience — sit-ins, blockades of military facilities — opposed by people across the political spectrum, from the left to libertarians and traditional conservatives.
Whistleblowing (Snowden, Manning, 2010–2013) Edward Snowden and Chelsea Manning broke laws to expose government surveillance and military conduct — celebrated by civil libertarians on both left and right, condemned by others on both sides as well.
Occupy Wall Street (2011) Protesters occupied Zuccotti Park in New York City and dozens of cities worldwide to protest economic inequality and corporate influence in politics. Thousands were arrested for refusing to leave public spaces.
Kim Davis / Marriage License Refusals (2015) Kentucky county clerk Kim Davis refused to issue same-sex marriage licenses following the Obergefell ruling, citing religious conscience. She was jailed briefly for contempt of court
Standing Rock Pipeline Protests (2016–2017) Indigenous-led demonstrators blocked construction of the Dakota Access Pipeline on sacred lands. Hundreds were arrested for trespassing and unlawful assembly.
Extinction Rebellion (2018–present) Climate activists blockaded roads, bridges, and government buildings across Europe and North America, deliberately inviting arrest to pressure governments on climate policy.
Black Lives Matter Street Actions (2020) Following George Floyd’s death, protesters defied curfews in dozens of cities. Some activists also engaged in deliberate acts of non-compliance with dispersal orders as a form of protest against policing.
Anti-Lockdown Protests (2020–2021) Business owners in multiple U.S. states openly defied COVID-19 closure orders, continuing to operate gyms, restaurants, and salons in deliberate violation of government mandates — several were fined or arrested.
Trucker Convoy / Freedom Convoy, Canada (2022) Truckers and supporters blockaded the Ambassador Bridge (a key U.S.-Canada trade route) and occupied Ottawa’s downtown for weeks to protest vaccine mandates. The Canadian government invoked the Emergencies Act in response.
Sanctuary for the Unborn Ordinances (2019–present) Several small Texas cities passed local ordinances banning abortion in defiance of then-federal Roe v. Wade precedent, a deliberate act of nullification by local governments.
ICE Watch/Defend the 612 (2026) Grassroots activists utilized rapid response teams to record agents, create noise disruptions, and provide accompaniment to protests, particularly following the death of activist Renee Good.