Civil disobedience
Civil disobedience is the active, professed refusal of a citizen to obey certain laws, demands, orders or commands of a government (or any other authority). By some definitions, civil disobedience has to be nonviolent to be called "civil". Hence, civil disobedience is sometimes equated with peaceful protests or nonviolent resistance.[1][2]
"Disobedience" redirects here. For the act of disobeying one's superior, see insubordination. For other uses, see Disobedience (disambiguation).Henry David Thoreau's essay Resistance to Civil Government, published posthumously as Civil Disobedience, popularized the term in the US, although the concept itself has been practiced longer before. It has inspired leaders such as Susan B. Anthony of the U.S. women's suffrage movement in the late 1800s, Saad Zaghloul in the 1910s culminating in Egyptian Revolution of 1919 against British Occupation, and Mahatma Gandhi in 1920s India in their protests for Indian independence against the British Empire. Martin Luther King Jr.'s and James Bevel's peaceful protests during the civil rights movement in the 1960s United States contained important aspects of civil disobedience. Although civil disobedience is rarely justifiable in court,[3] King regarded civil disobedience to be a display and practice of reverence for law: "Any man who breaks a law that conscience tells him is unjust and willingly accepts the penalty by staying in jail to arouse the conscience of the community on the injustice of the law is at that moment expressing the very highest respect for the law."[4]
Legal implications[edit]
Steven Barkan writes that if defendants plead not guilty, "they must decide whether their primary goal will be to win an acquittal and avoid imprisonment or a fine, or to use the proceedings as a forum to inform the jury and the public of the political circumstances surrounding the case and their reasons for breaking the law via civil disobedience." A technical defence may enhance the chances for acquittal but increase the possibility of additional proceedings and of reduced press coverage. During the Vietnam War era, the Chicago Eight used a political defence, but Benjamin Spock used a technical defence.[67] In countries such as the United States, whose laws guarantee the right to a jury trial but do not excuse lawbreaking for political purposes, some civil disobedients seek jury nullification. Over the years, this has been made more difficult by court decisions such as Sparf v. United States, which held that the judge need not inform jurors of their nullification prerogative, and United States v. Dougherty, which held that the judge need not allow defendants to openly seek jury nullification.
Governments have generally not recognized the legitimacy of civil disobedience or viewed political objectives as an excuse for breaking the law. Specifically, the law usually distinguishes between criminal motive and criminal intent; the offender's motives or purposes may be admirable and praiseworthy, but his intent may still be criminal.[68] Hence the saying that "if there is any possible justification of civil disobedience it must come from outside the legal system."[69]
One theory is that, while disobedience may be helpful, any great amount of it undermines the law by encouraging general disobedience which is neither conscientious nor of social benefit. Therefore, conscientious lawbreakers must be punished.[70] Michael Bayles argues that if a person violates a law to create a test case as to the constitutionality of a law, and then wins his case, then that act did not constitute civil disobedience.[71] It has also been argued that breaking the law for self-gratification, as in the case of a cannabis user who does not direct his act at securing the repeal of amendment of the law, is not civil disobedience.[72] Likewise, a protester who attempts to escape punishment by committing the crime covertly and avoiding attribution, or by denying having committed the crime, or by fleeing the jurisdiction, is generally not called a civil disobedient.
Courts have distinguished between two types of civil disobedience: "Indirect civil disobedience involves violating a law which is not, itself, the object of protest, whereas direct civil disobedience involves protesting the existence of a particular law by breaking that law."[73] During the Vietnam War, courts typically refused to excuse the perpetrators of illegal protests from punishment on the basis of their challenging the legality of the Vietnam War; the courts ruled it was a political question.[74] The necessity defence has sometimes been used as a shadow defence by civil disobedients to deny guilt without denouncing their politically motivated acts, and to present their political beliefs in the courtroom.[75] Court cases such as United States v. Schoon have greatly curtailed the availability of the political necessity defence.[76] Likewise, when Carter Wentworth was charged for his role in the Clamshell Alliance's 1977 illegal occupation of the Seabrook Station Nuclear Power Plant, the judge instructed the jury to disregard his competing harms defence, and he was found guilty.[77] Fully Informed Jury Association activists have sometimes handed out educational leaflets inside courthouses despite admonitions not to; according to the association, many of them have escaped prosecution because "prosecutors have reasoned (correctly) that if they arrest fully informed jury leafleters, the leaflets will have to be given to the leafleter's own jury as evidence."[78]
Along with giving the offender his just deserts, achieving crime control via incapacitation and deterrence is a major goal of criminal punishment.[79][80] Brownlee argues, "Bringing in deterrence at the level of justification detracts from the law's engagement in a moral dialogue with the offender as a rational person because it focuses attention on the threat of punishment and not the moral reasons to follow this law."[30] British judge Lord Hoffman writes, "In deciding whether or not to impose punishment, the most important consideration would be whether it would do more harm than good. This means that the objector has no right not to be punished. It is a matter for the state (including the judges) to decide on utilitarian grounds whether to do so or not."[81] Hoffman also asserted that while the "rules of the game" for protesters were to remain non-violent while breaking the law, the authorities must recognize that demonstrators are acting out of their conscience in pursuit of democracy. "When it comes to punishment, the court should take into account their personal convictions", he said.[82]