I. Introduction
Civil disobedience is defined by John Rawls as ‘a public, nonviolent, conscientious yet political act contrary to law usually done with the aim of bringing about a change in law or policies of government’.Footnote 1 He considers the problem of civil disobedience in the context of ‘a more or less just democratic state for those citizens who recognize and accept the legitimacy of the constitution’.Footnote 2 Such a state may enact unjust laws and policies, such that the case in favour of compliance with law can be overridden by the good of engaging in a suitably conducted unlawful protest. In protesting this way, according to Rawls, ‘one addresses the sense of justice of the majority of the community and declares that in one’s considered opinion the principles of social cooperation among free and equal men are not being respected’.Footnote 3 Civil disobedience should, he argues, be restricted to protesting clear and serious injustices, such as infringements of the equal rights and liberties of citizens. Civil disobedience should also be preceded by good faith efforts to remedy the injustice through legal methods and conducted in such a way that the overall stability of the constitutional order is preserved. In fact, assuming that it is used with ‘due restraint’ and ‘sound judgement’, Rawls argues that civil disobedience can be a ‘stabilizing device’ in the sense that it ‘serves to inhibit departures from justice and to correct them when they occur’.Footnote 4
The Rawlsian theory of civil disobedience has been the subject of extensive discussion, but a dimension that has only recently begun to be addressed is its assumption of a national or statist context.Footnote 5 The theory assumes such a context in a number of ways, including the status of protesters (citizens of a nearly just society), the nature of their grievance (a failure of their government to observe the domestic terms of social cooperation), and the intended audience of their protest (the majority of the community). This is a perfectly appropriate means of conceptualising many cases of civil disobedience, but it will not speak to those cases that cannot be incorporated within a national or statist framework. This would include those cases where the protesters are not citizens of the relevant society, and/or their grievance does not relate to a domestic injustice, and/or their intended audience is not limited to the majority of their society. The failure to address such cases diminishes the normative reach of the theory, particularly in light of extensive protest action surrounding matters such as the effects of economic globalisation, military conflict and warfare, global climate change and destruction of natural habitats, opaque regulatory structures at global or transnational levels, the treatment of immigrants, refugees and asylum seekers, and the detention and torture of non-nationals. This shortcoming might not matter if the national or statist assumptions that shape the Rawlsian approach were transcended by other prominent theoretical approaches. But this appears not to be the case. The approaches of diverse thinkers such as Hannah Arendt, Ronald Dworkin, Jürgen Habermas, Joseph Raz, and Peter Singer, for example, depart from Rawls in allowing foreign or defence policy to be legitimate targets of civil disobedience, but follow his lead in framing these acts as protests carried out by citizens against their own government with a domestic audience in mind.Footnote 6
The aim of this article is to sketch a theory of civil disobedience as transnational disruption. Civil disobedience is ‘transnational’, on this account, if it appeals to the sense of justice or reason of a national, international or global public that publicises failures to observe moral, political or legal values that are an appropriate source of normative authority in global contexts. Civil disobedience is ‘disruptive’ in the sense that it ‘obstructs the routine activities of opponents, bystanders, or authorities and forces them to attend to protesters’ demands’.Footnote 7 The theory that will be developed here can be usefully contrasted with the Rawlsian account. It follows his approach in several respects, such as conceptualising civil disobedience as a public, nonviolent, conscientious and unlawful mode of address. It differs from his account, though, in adopting a broader conceptualisation of the audience of civil disobedience, allowing that it can address an international or global as well as, or instead of, a domestic public. It also envisages a broader range of targets for civil disobedience, allowing that it can be employed against non-state actors operative in domestic, international or global contexts as well as state actors.Footnote 8 It also – and most significantly – shifts the normative focus of civil disobedience away from principles of justice that are limited in their scope to domestic settings. This shift leads to a rather different understanding of the role of civil disobedience than that envisaged by Rawls. Civil disobedience, on this account, is a means of upholding normative standards that have been incorporated into a dense network of treaties, conventions and global regulatory frameworks. Although it can be seen as a means of ‘stabilizing’ this emerging legal order, it can also be seen as a more transformative resource that promotes innovative interpretations of its contested norms. The argument starts by exploring the nature of transnational disruption, then turns to consider the circumstances where its use might be warranted, before addressing several objections that can be raised against the theory.
II. The definition of transnational disruption
The theory of civil disobedience developed by Rawls adopts the perspective of citizens in a nearly just society, which is well ordered for the most part but in which serious injustices nonetheless arise. The theory of civil disobedience as transnational disruption, by contrast, adopts the perspective of persons in societies that are internally structured along more or less democratic lines, but which are embedded in relationships with other societies in an international system modelled loosely on contemporary conditions.Footnote 9 These societies are assumed to be linked and related to one another in a number of ways, including through mechanisms such as bilateral and multilateral agreements, participation in various institutions, networks and regimes, the cross-border movement and activity of people, goods and organisations, and a related exposure to global risks such as climate change, devastation of ecosystems, transnational crime and terrorism, and cross-border financial and economic activity and instability.Footnote 10 These circumstances can be captured under the heading of ‘internationalism’, defined as ‘a dense, triangular structure of relations among states, non-state actors, and international institutions, and the opportunities this produces for actors to engage in collective action at different levels of this system’.Footnote 11 Though it would be wrong to overstate the challenge that internationalism poses to the nation state as the principal provider of public goods, such tendencies can and do severely tax the ‘steering’ capacity of many and perhaps most domestic governments.Footnote 12
Civil disobedience as transnational disruption is a type of collective action that can be associated with internationalisation. This kind of civil disobedience appeals to standards that are established or emerging sources of normative authority in global contexts, which means that these standards are a salient framework for moral, political or legal appraisal and action. These standards apply to three distinct, but related, aspects of international or global interaction. The first are standards that address the internal organisation of societies, such that observance of these standards may be taken either as an aspiration or – more ambitiously – a requirement for equal standing in international relations. The Universal Declaration of Human Rights (UDHR), for instance, has been described as ‘a set of important standards that all political societies are to be held accountable to in their treatment of their members’.Footnote 13 The second are standards that address the relations between societies, the observance of which also function as an aspiration or requirement for equal standing in international contexts. The principles associated with the just war tradition, for example, set normative standards for the declaration and conduct of military confrontations, many of which have been codified and translated into international law. The third are standards that apply to miscellaneous sources of power at the transnational level, such as the institutional arrangements that have been established by societies to facilitate their cooperative activities and/or to address perceived governance gaps at regional or global levels. The content of these standards is a matter of considerable uncertainty; as Allen Buchanan and Robert Keohane argue, ‘global governance institutions are novel, still evolving, and characterized by reasonable disagreement about what their proper goals are and what standards they should meet’.Footnote 14 There is nonetheless an awareness that these agencies cannot operate in a normative vacuum, reflected in ongoing debate about their efficiency, accountability and transparency to constituents. The standards applicable to the contexts identified here may share overlapping content; for instance, human rights norms are clearly salient in all three domains. There may also be conflict between standards, such that it is uncertain whether a coherent normative framework is emerging or achievable at the global level.Footnote 15
The complexity of global normative authority must inform our ideas about the nature of civil disobedience as transnational disruption. It is, for instance, impossible to reduce this practice to a formula analogous to the Rawlsian model of civil disobedience as an appeal to the democratic majority to uphold the principles of social cooperation. Instead, one can envisage a range of communicative dynamics that might characterise a campaign of transnational disruption. First, a law, policy or practice that detrimentally impacts actors or entities within a particular society might be condemned as a departure from global normative standards. This practice is described by Sidney Tarrow as ‘global framing’, defined as ‘the use of external symbols to orient local or national claims’.Footnote 16 This would be the case, for instance, if protesters associated with a minority culture framed their domestic grievance through reference to global normative standards, such as the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). Civil disobedience in this context can certainly function in a similar fashion to the Rawlsian model, as a moral appeal to a democratic majority to reconsider contentious laws or policies. The invocation of global normative standards, though, introduces a transnational dimension that is absent from that approach, in the sense that protesters attempt to enhance the credibility of their complaint through reference to norms that transcend local or national levels. This can be particularly significant if minority groups find it difficult to express their claim through reference to the dominant normative discourses in the domestic political culture. The invocation of global standards can also function as a means of enlarging the audience for a civil disobedience movement, through reaching out to international or global publics. Their protest can function as an invitation to these publics to adopt a perspective on a domestic conflict, potentially bringing the pressure of global public opinion to bear on their domestic government.Footnote 17 These standards are matters of international or global concern, such that it may be legitimate and perhaps obligatory for ‘external’ actors – such as foreign governments, global governance bodies, or international non-governmental organisations – to engage in condemnation of inappropriate ‘internal’ practices.Footnote 18
Second, laws, policies and practices that detrimentally impact actors or entities beyond the national or territorial borders of a particular society might be condemned as departures from global normative standards. The focus of protest might include detrimental impacts on non-nationals, non-human species, ecosystems, foreign governments or societies, or regional, transnational or global governance bodies. The paradigmatic example of such protest is, in many respects, protest against government initiation of or participation in an unjust war. The condemnation of such policies can, of course, also refer to impacts on populations of participating societies, such as the folly of exposing its military forces or civilian populations to the risks of retaliatory attacks. It is, though, likely that a significant dimension of condemnation will focus on the impacts of war on target states and their populations, as well as broader consequences for the global order. The condemnation of the 2003 Iraq war among the populations of its Western perpetrators, for instance, focused upon the devastating impacts of military action on the civilian population and infrastructure of Iraq. The criticism also addressed concerns about the legitimacy and legality of the war, focusing in particular on the absence of appropriate United Nations (UN) authorisation for the action.Footnote 19 There are, in fact, a number of ways in which laws, policies or practices might negatively impact external actors or entities, of which warfare is merely the most obvious. The circumstances associated with internationalism include multiple opportunities for societies to both influence and be influenced by each other, with inequalities in power, wealth and resources resulting in asymmetric exposure to the risks of such externalities. Civil disobedience might be a response to laws, policies or practices that expose foreign societies and their populations to a range of severe threats, such as pollution, economic upheaval, poverty, civil strife, as well as military conflict. Civil disobedience in such contexts is, again, primarily an appeal to a domestic public, but with the aim of drawing attention to the external impacts of their society’s actions.
Third, citizens might condemn departures from global standards that are carried out by foreign governments, global governance organisations or non-governmental transnational actors. The audience of civil disobedience in these cases can include both domestic and transnational publics, though it is possible that protesters are entirely unconcerned with appealing to members of their own society. Although the protest will almost certainly be conducted within a particular national territory, the government of that territory might not be the principal target of the protest. This has often been the case in relation to the ‘summit protests’ associated with the global justice movement. These events were enacted as dramatic expressions of protest against global governance institutions – such as the World Trade Organization (WTO), the G8, and the World Bank – rather than the city or nation that happened to be hosting the particular summit or meeting. This type of transnational disruption differs from the previous two categories because, as Michael Allen suggests, it often ‘focuses on the prospects for achieving justice through illegal action without directly engaging the formal institutions of law’.Footnote 20 This would be the case insofar as protest addresses a non-governmental body that lacks formal law-making powers, such as certain international organisations or non-state actors. Allen discusses the case of Greenpeace’s illegal occupation of the Brent Spa oil platform in British territorial waters, which aimed to change the behaviour of the Shell Corporation rather than to reform British or international law. The communicative dynamics at work here are described by Allen in the following terms:
Greenpeace … sought to publicize the global risks of environmental dumping to a global public, resolving the issue of dumping not by changing laws but reshaping the common terms and assumptions that may be said to constitute the sense of justice of this public.Footnote 21
The fact that civil disobedience can be an attempt to achieve change without engaging legal institutions is a departure from the Rawlsian model, which sees legal or political reform as a standard aim of this kind of protest.Footnote 22
The distinctive feature of civil disobedience as transnational disruption is that it invokes normative standards that are an appropriate source of authority in international or global contexts. This is significant not merely as a conceptual matter, but also contributes to the rationale for preferring civil disobedience over more militant or radical forms of activism. The Rawlsian theory describes civil disobedience as an expression of protest ‘within the limits of fidelity to law’, which – roughly speaking – means that its practitioners constrain their conduct according to norms of non-violence and publicity due to their respect for principles embodied in the constitutional order.Footnote 23 There is some disagreement about whether and to what extent this claim coheres with the historical practice of civil disobedience, but one way of rethinking Rawls’s argument is that protest as an appeal may be appropriate in a societal context within which claims of justice can secure a purchase in the public political culture.Footnote 24 The political and legal framework of society are shaped by principles of justice, even though its laws, policies and practices often fall far short of those ideals. The availability of these norms means that society possesses latent resources that can be tapped by social critics to facilitate self-correction, progress and reform. The basis for preferring civil disobedience over more militant forms of protest is thus forward-looking; as Andrew Sabl argues, ‘violence causes an escalation of tit-for-tat retributions and increasing hatred, while nonviolent civil disobedience leaves open the possibility of just harmony in a scale of years rather than generations’.Footnote 25 This argument can apply to civil disobedience against failures to observe global normative standards, provided that an appeal to such standards can secure some purchase in public political discourse. Luis Cabrera has argued that global civil disobedience is appropriate in current conditions due to the emergence of a ‘thickening network of human rights instruments and institutions elaborating global or cosmopolitan norms’.Footnote 26 The claim is not that there is anything like a coherent or complete global constitutional order, but that processes of internationalisation are triggering the transnational diffusion of norms that might function as the basis for such an order. This means that there is at least some basis for thinking that appealing to such norms through a suitably conducted form of protest might be both appropriate and effective. This does not imply that violent or covert forms of resistance are always inappropriate in the context of an emerging normative order.Footnote 27 The claim is rather more modest: if there is reason to think that civil disobedience as an appeal has some prospects for success, this provides some basis for preferring it as a method of protest in the first instance.
III. The justification of transnational disruption
Civil disobedience requires a moral justification in more-or-less democratic societies, which is arguably not the case under authoritarian or autocratic regimes.Footnote 28 This is so even if, contrary to what many contend, there is no general duty or obligation to comply with law in democratic societies.Footnote 29 The reason is that democratic institutions provide opportunities for pursuing political objectives through lawful avenues, which should generally be preferred as unlawful modes of participation pose a greater risk to fragile ties of ‘civic friendship’ in democratic societies.Footnote 30 Civil disobedience, although public and non-violent, causes considerable disruption to third parties, requires authorities to divert scarce resources to protest policing, encourages others to engage in similar protest, and contributes to polarisation that makes deliberative resolution of a particular conflict less likely.Footnote 31 These considerations support a general presumption in favour of lawful participation, but it is nonetheless possible that this presumption can be overridden if the case in favour of civil disobedience is or appears to be sufficiently compelling.Footnote 32 The following reflections offer some thoughts about how the case for transnational disruption might be constructed.
The Rawlsian approach associates the justification of civil disobedience with a liberal conception of justice, suggesting that certain kinds of ‘clear’ and ‘serious’ departures from the terms of social cooperation can be an appropriate target of this kind of unlawful protest. A similar approach might be adopted in relation to transnational disruption, such that conduct of agents that could be condemned through reference to global normative standards can be seen as appropriate targets of civil disobedience. This requires saying a little more about the content of global normative standards, which is highly challenging given the aforementioned underdetermined state of knowledge about such standards. David Held, discussing the changing structure of international law, claims that ‘a legal process has been unfolding which, albeit in a slow and often halting way, has sought to reframe human activity and entrench it in law, rights and responsibilities’.Footnote 33 This process is associated with the growth and diffusion of a complex web of conventions, treaties and regulatory frameworks, covering the rules of warfare and weaponry, war crimes, human rights and political participation, protections for minority groups, and international environmental law.Footnote 34 These developments can be seen, at least in part, as means of protecting persons, peoples, or non-human species from a range of serious threats to their welfare, security or survival. Of course, as Held affirms, ‘states remain of the utmost importance to the protection and maintenance of the security and welfare of their citizens’.Footnote 35 The rise of international law is a means of complementing rather than replacing the nation state, offering ‘a set of common standards for states or sub-state authorities within their jurisdiction to observe, and some system of incentives or disincentives to encourage the weakest to obtain these standards’.Footnote 36 These standards thus arise because the modern state is not always willing or able to offer protection against threats by itself, such that a certain degree of international cooperation, assistance or pressure is a necessary complement to its legal and moral authority. The international legal order offers a layer of protection that supplements the protections traditionally associated with domestic laws and regulations, albeit in conditions where extensive disagreement remains about its foundation and interpretation.
Civil disobedience as transnational disruption, according to this line of thought, might be justifiable as a protest against failures to protect persons, peoples or species from serious threats that are recognised as appropriate concerns of a global normative order. There are, as shall be discussed later, sensible reasons to allow for a certain degree of flexibility in our standards for the justification of civil disobedience, such that we do not attempt to specify in advance the full range of threats that might warrant this form of protest. There are, though, certain presumptive conditions that can orient our evaluation of particular cases.Footnote 37 The first condition is that civil disobedience should be limited to protesting avoidable failures to protect agents from serious threats, where such failures can be condemned as a departure from international conventions, treaties or other types of established regulatory frameworks. The governments that sign up to such schemes at international or global levels often acquire moral and/or legal obligations to their own and/or other populations, as is the case for all the signatories of the major human rights treaties associated with the UN or regional bodies. Civil disobedience can thus perform the important role of safeguarding these normative frameworks, through publicising failures in their observance by governments or other salient actors. This function is all the more important in light of the oft-noted weaknesses in the enforcement capacity of international treaties and/or global governance arrangements. The decision to sign up to these schemes is often taken by governments secure in the knowledge that they reap the benefits of membership without genuine risk of sanctions in the event of failures to abide by their terms. Civil disobedience serves a useful monitoring and shaming function, in the sense that it subjects governments to unwanted negative publicity in the event of policies that have detrimental impacts on entities protected by the scheme. Civil disobedience can perform a similar role in the absence of formal membership in any such scheme, insofar as it is a demand for a society or other relevant agent to join or rejoin a scheme. The case for this kind of campaign will be stronger if the scheme enjoys overwhelming support across an international or global public, such that the wrong implicit in a refusal to join or a decision to withdraw may appear to be as serious as a failure of existing members to comply with its terms.Footnote 38 The appeal to authoritative frameworks at the global level lends such protest a certain degree of moral legitimacy, in the sense that protesters cannot be accused of seeking to impose their personal or idiosyncratic convictions upon domestic or transnational publics.
The second condition is that lawful methods should already have been tried over a period of time, unless there are compelling reasons to think that such efforts would be ineffectual. The protesters should, furthermore, account for their transition from lawful to unlawful methods, through referring to significant hurdles that obstruct their lawful attempts to advocate on behalf on global normative standards. This requirement might be discharged in a number of ways. First, consider the case of protesters attempting to reframe a domestic conflict through appealing to global normative standards. The challenge here is to present a societal conflict in such a way that it is no longer seen merely as a matter of domestic concern and no longer conceptualised solely through reference to domestic doctrines. This can be difficult in light of the natural resistance of domestic governments to the threat of international condemnation or external interference, coupled with the tendency for societies to understand their conflicts through reference to their particular histories and ideas. Second, consider the case of protesters attempting to challenge the harmful impacts of collective decisions on external actors or entities that lack any formal or informal role in the discussions leading up to those decisions. The challenge here is to secure a hearing for the perspectives of these external parties in societal contexts that are dominated by the interests and opinions of domestic constituencies.Footnote 39 This is particularly difficult in light of the structural dependence of decision-makers on electoral, financial, or other forms of support offered by domestic constituencies, which tends to create incentives to prioritise their interests over those of non-members. Third, consider the case of protesters contesting decisions of foreign governments, global governance organisations, or other external actors. The problem here is that protesters are either formally excluded from the forums that are relevant to their concerns or included in a purely symbolic fashion. This creates significant obstacles to efforts at reaching out to foreign publics or their governments, as well as accessing the decision-making procedures of governance bodies that are typically characterised by a lack of transparency, responsiveness and accountability to publics. These diverse situations are linked by a common theme: discursive interlocutors confront considerable hurdles in their lawful efforts to invoke global normative standards in a way that is likely to reach their intended audience. The decision of protesters to shift from lawful methods to more attention-grabbing forms of unlawful protest gains moral credibility insofar as it is explicitly linked to the challenges of overcoming such hurdles.
The third condition is that there must be a robust basis for thinking that civil disobedience is an effective means of upholding global normative standards in any given circumstance. This goes beyond the requirement that protest must be rationally framed as an attempt to communicate a perspective to an intended audience, but also calls for a sense of heightened responsibility toward the broader cause that the protesters aim to advance. There are, to be sure, a number of familiar features of civil disobedience that support its potential efficacy as a means of pushing neglected perspectives onto the public political agenda. First, it has an important symbolic or performative dimension that enhances its potential as a means of disturbing orthodoxies and creating space for the consideration of alternative views. Civil disobedience conveys the depth or intensity of our opposition to law or policy, because it signals a willingness to accept the personal risks of arrest, imprisonment, and public censure for expressing our convictions. This form of expression can thus be an effective means of impacting upon an otherwise apathetic or passive audience, in the hope that doing so will trigger a discursive engagement with oppositional arguments. Second, civil disobedience poses a direct challenge to authorities that makes it far harder to ignore than lawful protest, insofar as decisions must be made about whether to impose sanctions on its practitioners. The use of non-violent protest is sometimes described by social movement scholars as a ‘dilemma action’, in the sense that it can compel opponents to choose between either allowing protesters to achieve their objectives or to risk the prospect of negative publicity through using force against peaceful protesters.Footnote 40 The dynamics at work in such circumstances can sometimes benefit protesters, reflected in Rawls’s observation that the ‘community’s sense of justice is more likely to be revealed in the fact that the majority cannot bring itself to take the steps necessary to suppress the minority and to punish acts of civil disobedience as the law allows’.Footnote 41 Third, the possibility of arrest, incarceration and punishment mean that civil disobedience can be an effective means of securing publicity for oppositional arguments. The effectiveness of unlawful protest as a means of impacting public agendas compared to institutionalised methods has been extensively discussed in the empirical literature, with scholars noting that the nature and extent of disruptionFootnote 42 and/or contentionFootnote 43 can be important variables in securing coverage. This is, to be sure, a somewhat risky gambit, not only because protesters might suffer negative personal consequences but also because the resulting coverage may focus predominantly on the disruption caused by protest rather than the issues that it aims to publicise.Footnote 44 It is, therefore, important that activists exploit the inertia-busting potential of protest, through the use of smart tactics, savvy media management and the expression of a clear and potent message for public dissemination and consumption.
The sense of responsibility that informs this condition may, though, call for restraint on the part of protesters. The first reason for this is that protesters must be sensitive to the likelihood that disruptive protest might become commonplace and routine, rather than an effective means of addressing publics in and across democratic societies. The thought here is not merely that an excess of civil disobedience might pose a threat to societal stability, but that the potency and impact of this form of protest may be dulled through repetition and overfamiliarity. This implies that civil disobedients must take steps to avoid the risks of ‘disruption fatigue’, through judicious and discriminating use of this tactic in their struggles.Footnote 45 The second reason is that activists attempting to subject their own or other governments to international condemnation often trigger nationalist or reactionary responses that are unconducive to the broader objective of promoting global normative standards. Hayley Stevenson and John Dryzek discuss the case of a symbolic protest carried out by global environmental activists against the Saudi Arabian delegation to the June 2010 United Nations Framework Convention on Climate Change (UNFCCC) meeting in Bonn, which involved stealing the Saudi nameplate and circulating photographic images of it in a toilet. The problem with this activist prank was that it ‘undermined participation and deliberation by intensifying Saudi Arabia’s opposition to civil society engagement and providing justification for this opposition’.Footnote 46 It is contrasted by the authors with an unlawful attempt to hold an impromptu People’s Assembly within the grounds of the venue used for the 15th Conference of the Parties (COP–15), which is seen as a much more effective means of drawing attention to the number of salient perspectives excluded from formal deliberations.Footnote 47 It must be noted that the effective means standard should not merely be applied comparatively as a method of choosing between different types of disruption, but might instead recommend abstaining from any form of disobedient protest. The sociologist Lesley Wood considers such a case in relation to a strategic dilemma confronted by global justice protesters in the aftermath of the 9/11 terrorist attack, in deciding whether or not to engage in disruptive activism at the World Economic Forum (WEF) in New York City during January 2002. The majority of activists chose not to engage in any form of civil disobedience, preferring to organise lawful demonstrations or educative activities. Their rationale was that engaging in the kind of confrontational and disruptive protest tactics seen at previous global summits might alienate public opinion at this sensitive time and give authorities an excuse to escalate their use of repressive policing. The deliberations of the activists in this case manifest an appropriate concern for the likely outcomes of their protest, with the arguments for restraint overriding the case in favour of attempting to maintain the momentum of the movement through a continuation of its disruptive and disobedient tactics.Footnote 48
IV. Three objections to transnational disruption
The justification of transnational disruption is thus a complex matter, which turns upon a judgement sensitive to the cause of the protesters, the hurdles that confront the pursuit of their cause through lawful avenues, and the efficacy of non-violent but unlawful protest as a means of overcoming these hurdles. The argument that has been developed here is vulnerable to a number of objections, which focus upon difficulties that arise when transnational elements are incorporated into our theories of civil disobedience.Footnote 49 The responses to these objections help point toward a fuller picture of civil disobedience as transnational disruption, with a particular focus on its role in both entrenching and reinterpreting the normative principles that underpin the global order.
The problem of disagreement
The first objection focuses upon the presumption in favour of limiting civil disobedience to protest against avoidable failures to protect agents from serious threats, where such failures are a departure from obligations incurred under international conventions, treaties or regulatory schemes. The problem with this condition is that there is considerable disagreement, within and across societies, about the grounds, weight and requirements of these obligations. This disagreement arises, at least in part, because of the extensive ambiguity to be found in many conventions and treaties, such as the lack of clarity and coherence that plagues international human rights law.Footnote 50 The lack of clarity to be found in these frameworks casts considerable doubt on the rationale and effectiveness of civil disobedience as an attempt to dramatise their normative content.
The force of this objection can be appreciated through returning to Rawls’s theory of civil disobedience, which is relevant to our argument as it shares certain intuitions about the nature of this form of protest as a mode of address. The Rawlsian account, like the one developed here, conceptualises civil disobedience as an attempt to communicate political convictions to a broader audience, with the goal of cultivating popular support for their cause. The Rawlsian approach assumes that civil disobedience can only function as an effective moral appeal in a ‘nearly just’ constitutional regime, in which legal authority is based upon a publicly recognised conception of justice. There is scope for citizens to differ in their conceptions of justice, but for civil disobedience to be effective it must be the case that ‘these conceptions lead to similar political judgments’.Footnote 51 This overlapping of political judgments supports a shared ‘sense’ or ‘sentiment’ of justice, such that protesters can appeal to ‘the greater part of society’ in defending their aims and actions.Footnote 52 The absence of such sentiment calls into question the wisdom of civil disobedience, as it would no longer be possible to mobilise the greater part of public opinion against injustice. As Rawls puts it, ‘in a fragmented society as well as in one moved by group egoisms, the conditions for civil disobedience do not exist’.Footnote 53 The problem with appealing to global normative standards, irrespective of whether our target audience is a domestic or transnational public, is that the requisite overlapping of political judgements is likely to be lacking. The ambiguity of international treaties and conventions is such that, if civil disobedients attempt to mobilise their normative content, ‘the appeal to the public’s conception of justice is not sufficiently clear’.Footnote 54
This is a plausible objection, but it is not at all apparent that the rationale and effectiveness of civil disobedience as a moral appeal requires anything like the degree of consensus among its target audience as supposed by Rawls. Jürgen Habermas, for instance, follows Rawls in associating the justification of civil disobedience with the normative foundation of a constitutional democracy, but allows for rather more diversity of opinion throughout the polity about the proper interpretation of those foundations. He writes that:
The justification of civil disobedience relies upon a dynamic understanding of the constitution as an unfinished project. From this long-term perspective, the constitutional state does not represent a finished structure but a delicate and sensitive—above all fallible and revisable—enterprise, whose purpose is to realize the system of rights anew in changing circumstances, that is, to interpret the system of rights better, to institutionalize it more appropriately, and to draw out its content more radically.Footnote 55
This characterisation of civil disobedience emphasises that the moral obligations enshrined in domestic legal frameworks, albeit perhaps to a somewhat lesser degree than international treaties and conventions, are often the subject of considerable disagreement and intense contestation. Peter Singer, in a similar vein, suggests that civil disobedience often occurs in the context of complex and divisive disputes within domestic societies about the proper interpretation of justice.Footnote 56 Civil disobedience, for both Habermas and Singer, can nonetheless function as an effective appeal in conditions of disagreement, either as a means of publicising a particular perspective that has received inadequate attention in the public sphereFootnote 57 or as a means or prodding a majority to reconsider its decision in light of the intense opposition of a minority.Footnote 58 These perspectives, if sound, offer some credibility to the contention that civil disobedience can be an effective means of dramatising international treaty obligations, despite pervasive disagreement about such norms.
This claim can be furnished with further support through turning to the empirical literature on social movements and contentious politics, which has devoted considerable attention to the rise of transnational protest movements.Footnote 59 Margaret Keck and Kathryn Sikkink, for example, suggest that transnational advocacy networks can be particularly effective in certain contexts, particularly when campaigning around ‘issues involving bodily harm to vulnerable individuals, especially when there is a short and clear causal chain (or story) assigning responsibility and … issues involving legal equality of opportunity’.Footnote 60 The cases that lend themselves best to effective campaigns, according to the authors, are those where serious injustices can be attributed to the deliberate acts of identifiable agents. At the same time, Keck and Sikkink note that ‘the real creativity of advocacy networks has been in finding intentionalist frames within which to address some elements of structural problems’.Footnote 61 A prominent example of the role that civil disobedience as transnational disruption can play in this process is the global justice movement. The problem that confronted the activists associated with this movement, as documented in a recent overview of the scholarly literature on non-violent resistance, was that ‘issues of injustice in the global economy could feel too diffuse and far-removed to capture much attention’.Footnote 62 The activists were nonetheless able to take advantage of the opportunities opened up by global summit meetings to stage highly-publicised acts of dissent. The summits provided the protesters with a suitable ‘opponent’, which could serve as a focal point for a wide range of grievances associated with global economic structures. There may be some doubt about whether the civil disobedience carried out by the global justice movement should be presented as an effective moral appeal, because it is somewhat difficult to ascertain what the goals of the movement were and the extent to which such goals were achieved. It is less controversial, though, to contend that the movement succeeded in presenting a broad agenda to multiple publics that had previously been neglected and that subsequently received considerable attention.Footnote 63 Of particular note is that it provided a platform for activists to implicate global economic structures in systemic failures to protect persons from serious threats to their security and wellbeing, such as climate change and global poverty. This outcome would have been difficult to achieve, were it not possible for civil disobedience to activate the moral sentiments of at least some members of diverse publics that are not characterised by significant overlapping of political judgements on fundamental issues.
The problem of stability
The second objection also relates to the presumption in favour of limiting civil disobedience to protest against serious threats, but focuses on its potential implications for the stability of more-or-less democratic societies. Civil disobedience, to recall, can place a certain degree of strain on relations of civic friendship, which supports the intuition that it is reasonable to place limits on our account of the conditions where its use should be regarded as appropriate. The problem is that the theory establishes a rather low threshold for the justification of civil disobedience, because it does not specify the nature and severity of the threats that it can protest. The reference to international treaties and conventions may seem an inadequate response to this worry, given the aforementioned ambiguity that is often associated with these frameworks.
This concern can also be explored in relation to the Rawlsian theory of civil disobedience. On that account, as we have seen, civil disobedience is thought to require considerable overlap among the political judgements of the citizenry. It is perhaps surprising that, despite this unusual degree of societal consensus, Rawls nonetheless insists upon a high threshold for the justification of civil disobedience. He contends that ‘there is a presumption in favor of restricting civil disobedience to serious infringements of the first principle of justice, the principle of equal liberty, and to blatant violations of the second part of the second principle, the principle of fair equality of opportunity’.Footnote 64 These types of wrong, unlike supposedly more complex issues of economic injustice, are seen as both weighty and relatively straightforward to ascertain.Footnote 65 The thought here is that the stability of the constitution recommends limiting civil disobedience to these clear and serious cases of injustice, which can be widely recognised as appropriate targets of such a confrontational and potentially disruptive tactic. This presumption, as noted in the Introduction, plays an important role in Rawls’s account of civil disobedience as a ‘stabilizing device’, which can correct for the human tendency to subject powerless or despised agents to unjust treatment. The account of civil disobedience as transnational disruption, by contrast, lacks these resources, as it leaves greater scope for protesters to act as innovators or pioneers in interpreting the requirements of global normative standards. Civil disobedience, on this account, consequently appears to have a rather more destabilising function than that envisaged by Rawls, because it is as likely to challenge prevailing assumptions about justice in democratic societies as reassert them. This, in turn, means that it cannot offer an account of the justification of civil disobedience that is likely to secure as much agreement throughout society as the Rawlsian approach.
This is a reasonable concern, but there are nonetheless sensible reasons not to follow Rawls in limiting civil disobedience to protest against a narrow range of clearly specified injustices. The first reason is that it is possible to contain the threat that civil disobedience poses to the stability of democratic societies without insisting that it should be restricted to protest against the clear and serious injustices discussed by Rawls. This is, in part, because theories of civil disobedience can set further conditions for its justification that are likely to limit its occurrence, such as the requirement to exhaust legal avenues of complaint and to consider its likely efficacy as a means of addressing the public. The latter consideration is particularly significant because, as we saw above, citizens have reasons not to engage in civil disobedience if it is likely to generate nationalist or reactionary responses unconducive to the promotion of global normative standards. There is a further feature of civil disobedience that acts as a constraint on its use, which is the deterrence effect that the risk of penalties and punishment typically has on its practitioners. David Lefkowitz, for example, argues that the legal entitlement of the state to impose certain sanctions on agents that engage in civil disobedience can be supported through the good of stability. He suggests that ‘imposing some costs on those who engage in public disobedience makes it more likely that actions with the potential to reduce the state’s ability to successfully and efficiently apply laws and policies will take place only when the injustice of existing laws and policies is believed to be significant’.Footnote 66 The constraints that are standard features of this form of protest can thus go some way towards allaying concerns about stability, without requiring us to take the further step of limiting its use to an antecedently specified and overly determined set of threats to persons and peoples.
This leads to a second reason for resisting this move, which is that it is not only unnecessary but also problematic to circumscribe the justification of civil disobedience to such an extent. This is because doing so diminishes the agency of activists, by setting unreasonable limits on the content of their moral appeal to national or transnational publics.
This is, in fact, a criticism that has been made by numerous critics of the Rawlsian approach, which has been attacked for disallowing civil disobedience in support of a range of morally significant causes that are not anticipated or addressed by his principles of justice.Footnote 67 This concern is all the more weighty in the context of exposure to threats that can be protested through appeal to global normative standards, because of the uncertainty that continues to characterise debate about such standards. It is, for instance, not clear what is reasonable to expect of global governance arrangements in terms of their obligations to the global poor or their responsiveness to the interests of publics significantly impacted by their regulations. This uncertainty has meant that theories addressing such issues often incorporate a reflexive element that allows for ongoing deliberation among salient publics about the appropriate interpretation of global normative standards.Footnote 68 Civil disobedience as transnational disruption can be seen as a modest, but potentially significant, dimension of this broader deliberative process, insofar as disruptive protest triggers reflection about the content and weight of moral and legal obligations that are enshrined within international treaties and conventions. It is thus important not to foreclose the possibility that protesters might push unanticipated or novel interpretations of global normative standards into the public sphere. This type of consideration is arguably less pressing within the statist or nationalist frame that shapes the Rawlsian approach, as it – perhaps naively – assumes that the principles of social cooperation are more or less settled and their application to the major cases fairly straightforward.
The problem of fallibility
The third objection is that a theory of civil disobedience cannot assume the infallibility of groups or individuals that engage in this form of protest. There is always a possibility that practitioners of civil disobedience may be mistaken in their views, or that their appeals to global normative standards might prove to be ill-founded. The problem of fallibility is compounded in circumstances where there is considerable uncertainty about the requirements of those standards, as reflected in the absence of authoritative or definitive statements about their weight and meaning. The scope for protesters to advance innovative interpretations of global standards, though a potentially valuable stimulant of public deliberation, might risk a proliferation of dubious claims.
This concern can be illustrated through returning to the Rawlsian account one more time. That account offers an informal check on the possibility that civil disobedients might be mistaken, in the form of the collective judgement of the democratic majority. Rawls contends that, in relation to collective disputes about the principles that underpin the constitution, ‘the final court of appeal is not the court, nor the executive, nor the legislature, but the electorate as a whole’.Footnote 69 This means that the success of civil disobedience depends upon the skill and ingenuity with which its practitioners can appeal to this body. It is, therefore, imperative that civil disobedients reflect and deliberate prior to their acts of unlawful protest, looking to ‘the political principles that underlie and guide the interpretation of the constitution … to assess how these principles should be applied in the existing circumstances’.Footnote 70 The resonance that civil disobedience achieves in the public realm, at least according to Rawls, will turn to a considerable extent on the cogency of the moral arguments that are communicated through it. The Rawlsian approach can thus differentiate between, say, the successful moral appeal of the campaign against racial discrimination carried out by the US Civil Rights Movement and the ultimately unsuccessful appeal of the campaign against legalised abortion carried out by Operation Rescue.Footnote 71 This, of course, does not mean that the electorate should be seen as an infallible source of authority on moral matters, even in a Rawlsian ‘nearly just’ society. It means, rather, that the collective sense of justice, as represented by the opinion of the greater part of society, functions as a check on the activities of protesters, with failures of their message to resonate with the democratic majority acting as an occasion for retiring or re-evaluating their unlawful campaigns. The account of civil disobedience as transnational disruption appears to lack this resource, as it allows that this form of protest can address an international or global public as well as, or even instead of, the democratic majority in our society.
There are two responses to this concern. First, despite its broader account of the potential addressees of civil disobedience, the theory of transnational disruption retains the core Rawlsian idea that the collective judgement of a relevant public functions as a check on the fallibility of protesters. Civil disobedience, irrespective of whether it appeals to a national, international, or multinational public, remains a mode of address and, as such, requires protesters to present their convictions in a manner that will resonate with their intended audience. The presumption in favour of limiting protest to threats that can be condemned in terms of international treaties, conventions or other regulatory norms is significant in this context. The establishment of these arrangements does not occur in an institutional vacuum, but is an ongoing process that involves debate and discussion among relevant stakeholders and publics. This process, although beset with ambiguity and uncertainty, generates legal and moral normative frameworks that guide reflection on the content, scope and weight of international obligations to protect agents against serious threats. The scope for protesters to offer innovative or novel interpretations of global normative standards does not mean that these frameworks can simply be ignored. The frameworks, instead, function as a collective resource that protesters can and should turn to when defending the means and ends of their campaigns to the relevant publics. Their arguments must be grounded upon plausible interpretations of the relevant principles, otherwise their campaigns are unlikely to successfully activate the moral sentiments of their audience. If their campaigns fail to engender a sympathetic reaction on the part of the relevant public over a reasonable period of time, then this should be an occasion for protesters to suspend their campaigns and re-evaluate their chosen ends and means. Although these dynamics cannot eradicate the problem of fallibility, it suggests that the theory can offer as much of a check on the possibility of mistaken judgements on the part of protesters as that incorporated into the Rawlsian account.
There is a second – somewhat more tentative – response to this concern, which proceeds from the republican idea that social movements often function as an ‘initial clearing-house’ for the grievances that drive persons towards protest.Footnote 72 The idea is that these spaces enable activists to sift through their claims, identify the most relevant perspectives, and hone their arguments prior to entering the larger public sphere. The empirical literature on social movements offers some support for this idea, through showing that protest movements can adopt practices that make epistemic-reflection upon their ends and means more likely.Footnote 73 These practices include the use of decentralised organisational structures, the inclusion of participants from diverse backgrounds, and the adoption of deliberative decision-making processes that draw upon a wide range of ideas. There is some evidence that movements inclusive of transnational perspectives – either in terms of the adoption of ideas drawn from different national or international contexts or in terms of participants drawn from diverse national backgrounds – might be particularly adept at cultivating epistemic-reflective practices. The social movement scholar Sean Chabot, for example, analyses the benefits that accrued to the Civil Rights Movements as a result of dialogues between activists based in the US and followers of Gandhi based in India.Footnote 74 This transnational dialogue expanded the pool of knowledge and experience available to activists involved in the struggle against racial segregation, providing insight into a non-violent philosophy and tactical repertoire that had proven to be highly successful in a different context. The point here is not, of course, that the incorporation of transnational elements will render protest movements infallible, but that such practices often facilitate a process of collective learning among protesters. This learning process might enable movements to critically reflect not only on the wisdom of their strategies and tactics, but also on the cogency and adequacy of their interpretations of global normative standards. This can only be a tentative suggestion, as there can be no guarantee that a discursively-generated opinion among diverse activists could stand in for current or future public opinion more generally. The modest republican intuition here is that the cultivation of epistemic-reflective practices among the ranks of protesters might at least reduce the risk of movements that coalesce around deeply misguided or highly idiosyncratic interpretations of global normative standards.
V. Conclusion: The transnationalisation of the public sphere
This article has sketched a theory of civil disobedience as transnational disruption. The core theme of this account – the feature that best encapsulates its ‘transnational’ character – is that civil disobedience involves an appeal to normative standards that are an appropriate source of authority in global contexts. In drawing this discussion to a close, let us reflect again on the role that the theory envisages for civil disobedience as a dimension of the broader processes of internationalisation alluded to earlier. There has been extensive discussion about the implications of these processes for the future of democracy, with some calling for a progressive ‘transnationalisation’ of the public sphere.Footnote 75 The first requirement of this call is that the emergence of governance structures at supranational and/or global levels must be accompanied by the creation of corresponding transnational public spheres, which enable subjected publics to influence and shape the design and decisions of these structures. The second is that the inclusivity of the domestic public sphere within a democratic society must also be broadened, such that all persons subjected to its governance structures must be able to participate in public deliberation as equals. The institutional specifics of these requirements are uncertain, but would likely entail massive structural reforms at national and transnational levels. In the absence of such far-reaching change, a more modest goal is to cultivate sources of political agency that act as conduits for the diffusion of global normative standards within both domestic and transnational contexts. Civil disobedience can contribute to this process insofar as it draws attention to global injustices and triggers greater public discussion about the most appropriate institutional response.
First, we can briefly consider the potential impacts of civil disobedience on the cultivation of transnational public spheres. A public sphere is transnational if it includes contributions drawn from a multinational public, addressing sources of political and social power that transcend national borders. The nature and design of such public spheres is difficult to anticipate, but let us focus for a moment on the limited case of informal public debate that transcends national borders in terms of participants and discursive focus.Footnote 76 Activists can make a modest contribution to the emergence of such publics through forging cross-border coalitions that organise protests against national, international or global actors. Sidney Tarrow discusses the category of ‘event coalitions’, which are comprised of activists drawn from diverse national backgrounds who come together to coordinate large-scale protests.Footnote 77 The summit protests associated with the global justice movement are the paradigmatic instances of such coalitions. The transnational composition of a protest movement can have an important symbolic dimension, in the sense that it expresses a critique of injustice that is shared across borders. It also has the more practical function of bringing diverse persons together, facilitating the emergence of transnational perspectives and identities. Tarrow writes that ‘the experience of marching side by side with others from different countries and areas of interest can help to create broader identities and issue definitions’.Footnote 78 Although event coalitions are often short-lived, seeds can be sown for ongoing collaboration and organisation. The parallel summit and counter-summit movements, for example, flourished alongside mass protest events and often drew from the same pool of transnational activists.Footnote 79 Although the protests garnered the headlines, the parallel summits have arguably been more significant in terms of establishing an enduring space for transnational publics to debate issues of principle and strategy.Footnote 80
Second, we can briefly consider the potential impacts of transnational disruption on opening up the public spheres of democratic societies. Civil disobedience can be a transformative resource insofar as it disrupts entrenched assumptions about the national frame of reference that is the default setting in the domestic public sphere. It can do this in a number of ways: through introducing transnational discourses that challenge the assumption that societal conflicts should necessarily be viewed as matters of domestic concern; through challenging the tendency to ignore or downplay the impacts of government policy on persons or peoples beyond its borders; or through alerting dispersed publics to the pervasive reach of global governance schemes. The underlying dynamic is that civil disobedience can secure a hearing for transnational discourses in domestic public spheres, thus making modest contributions to its capacity to include and process claims that are, or could be, underpinned by an appeal to global normative authority. A notable feature of this kind of protest is that, as should be apparent from much of the preceding discussion, the appeal to global standards is often made by actors that remain firmly situated within local or national contexts. This might be seen as an indicator of the limits of transnational disruption, in the sense that ‘even those activists who successfully zero in on postnational or global issues remain fundamentally embedded in domestic politics, and their efforts generally prove fragile and short-lived’.Footnote 81 There is, however, another way of looking at the embeddedness of transnational advocacy within domestic politics. The fact that protesters are often – albeit not always – operating within their own societies may enhance their capacity to promote global normative standards. This is because their embeddedness enhances their knowledge of – as well as their standing within – their society, placing them in a better position to operate as skilled and effective advocates of global norms. The diffusion of global norms must involve a transformative process within nation states, driven by reasonable but relentless advocacy – involving civil disobedience alongside a range of other methods – of transnational perspectives in the domestic public sphere. The greater receptivity of domestic publics to global norms is, after all, a precondition of the progressive realisation of global constitutionalism.
Acknowledgements
An earlier version of this article was presented at a workshop on ‘Civil Disobedience beyond the State’ at Nuffield College, Oxford University, November 2015. Thanks to the audience and organisers of that workshop for their questions and feedback. Thanks also to the editors and three reviewers for this journal for their incredibly helpful criticisms and suggestions on the original submission. The research for this article was carried out with the assistance of a grant from the General Research Fund of the Research Grants Council of the Hong Kong Special Administrative Region (Project No. 14409814).