1. The Problem of Collective Institutional Agency

Fundamentally, political-institutional civil disobedience probably has to presuppose that the state or its specific state institutions (parliaments, courts) can exercise agency akin to that of conventional civil disobedients. Although usually claiming that they merely aim to identify analogies between political-institutional and conventional modes of extrainstitutional civil disobedience, most theorists describe the alleged parallels as more or less clear-cut, that is, they fail to thematize major structural differences.Footnote ²⁴ State institutions are not, in fact, strictly akin to grassroots activists or political movements coming together to engage in joint action, as Buchanan implicitly concedes when defining the state as possessing “a persisting [institutional] structure” in which the “wielding of political power” and “supremacy in the use of coercion” are crucial.Footnote ²⁵ How best to define an “institution,” political or otherwise, remains an object of wide-ranging debate; we say more about this below. At a minimum, the notion of political-institutional disobedience probably requires some notion of collective or corporate institutional agency, perhaps even that institutions “can deliberate and arrive at a unified course of action,” and demonstrate “a capacity for reasoning and decision-making” akin to that of grassroots activists and the joint action they pursue. Nor should political institutions be viewed as “reducible to descriptions of the actions of its individual members,”Footnote ²⁶ at least if we are to take them seriously as collective agents.

The potential problem here is not per se that the state or its institutional parts should be viewed as collective bodies with shared identities; this would arguably also apply to many civil society–based organizations. Rather, problems arise because the institutional collectivity “state” possesses privileged access to an imposing collection of power and coercive instruments typically denied other social organizations. The state and its institutions differ from other collective political actors (for example, political parties), and these differences matter. They help illuminate why it would be wrong to push the analogy between state-based or political-institutional and civil society–based disobedience too far.

Civil society or grassroots lawbreakers, to be sure, sometimes act with support from political or social organizations having a “persisting structure,” yet such organizations typically lack direct access to the instruments of state power. When the state or one of its institutional elements (courts, parliaments) acts, it does so legally on behalf of people who may not in fact agree with its acts. If a left-wing majority in the Greek parliament were in fact publicly to disobey EU austerity directives, for example, it would speak as the binding, institutionalized, legal representative of the entire Greek populace, even if many Greeks disagreed with its approach. In contrast, in conventional civil disobedience activists and political organizations can always simply refuse to participate, and even when participants claim to speak “in their name” or “on their behalf,” their assertion possesses symbolic political value but only limited legal significance.

To be sure, activist political organizations often possess an organized legal status, speak on behalf of members, and sometimes demand that members “toe the line” on issues. Yet major differences remain: knottier questions of binding authorization and political representation arise in the context of institutional modes of civil disobedience than in familiar extrainstitutional modes. Political institutions possess a binding, collective legal agency fundamentally dissimilar to the political agency at work in grassroots civil disobedience. Political-institutional disobedience, by its very nature, means that potentially those represented (e.g., conservative Greeks disagreeing with “their” left-wing government's refusal to enforce EU austerity measures) might want nothing to do with the acts in question. To the extent that legitimate civil disobedience is supposed to rest on consensual action and presupposes an implicit commitment to ideals of political freedom and equality, its state or institutional variant raises tough questions. This is not simply a matter of semantics: when governments act illegally but bindingly on behalf of citizens who disagree with their acts, it seems strange and perhaps even perverse to interpret those acts as somehow doing justice to some notion of free and equal citizens. On the contrary, they arguably represent a fundamental breach of trust by means of which political institutions and officials ignore appropriate legal limits on their actions.Footnote ²⁷

To their credit, some defenders of institutional dependence have acknowledged the underlying dilemmas. Rather than attributing a fictional cohesion to disobedient institutions, Jonathan White suggests in a recent discussion focused on the EU, we instead might focus on intermediary actors such as political parties and social movements, some of which can be defined by shared purposes and something along the lines of collective intentionality. If they were to gain majority control of political institutions it would perhaps make sense to view them as purposeful political agents, capable of exercising judgment and bearing the attendant risks, in a manner analogous to grassroots political activists and social movements.Footnote ²⁸ The problem with this view, as White seems to concede, is that it presupposes an idealized view of political parties oftentimes unrelated to the realities of contemporary political life in the EU or elsewhere.Footnote ²⁹ More fundamentally, it remains unclear how it solves the underlying structural problem. Of course, political parties regularly play a pivotal role in civil society–based civil disobedience; there are good reasons to assume they will continue to do so. Yet once those parties occupy positions of formal political authority and advocate institutional lawbreaking (by parliaments, for example), a fundamentally different scenario emerges: unlike political parties, political institutions represent collective “agents” having a special legal status backed up by coercive power. This familiar fact of contemporary political life necessarily limits the scope of any analogy we might draw between institutional and extrainstitutional civil disobedience.

Revealingly, others acknowledge the problem but move to resolve it by effectively abandoning the idea of distinctly institutional disobedience:

Notwithstanding its analytic virtues (about which I have more to say below), this position reduces the idea of disobedience by a corporate institutional agency to something akin to conscientious disobedience by individual government officials who feel obliged to break the law. But why then hold on to the idea of identifiably state-based or political-institutional disobedience? It makes sense to do so, I suspect, only under the controversial assumption that institutions can be viewed as nothing more than the collection or sum of some group of individuals and their acts. By day's end, we are left with a call for individual official disobedience, a scenario that has long interested many scholars, rather than a proposal for a basically novel variety of institutional obedience. References to collective types of state-based or institutional disobedience arguably confuse an already vexing topic.

Not surprisingly perhaps, Buchanan has occasionally admitted that there are dangers to overstating the analogy between institutional and conventional civil disobedience,Footnote ³¹ and even as he ignited the ensuing debate criticized any idea of government as a collective agent with an “independent moral status.”Footnote ³² However, this concession may be more consequential than he seems to realize. To the extent that the idea of institutional disobedience presupposes not only collective agency, but also a shared institutional capacity for conscientious moral action, its misleading contours become even more evident.

2. Conscientious Moral Agency

If we are to characterize its actions as somehow analogous to extrainstitutional civil disobedience, institutional disobedience needs to be interpreted as potentially resting on some collective capacity for conscientious moral deliberation. To be sure, competing (religious-spiritual, liberal, radical-democratic, anarchist) activists and intellectuals have interpreted moral conscientiousness in different and sometimes opposing ways, with spiritual thinkers such as Gandhi and King, not surprisingly, envisioning it as the centerpiece of civil disobedience and offering demanding accounts of its basic requirements. Liberals and radical democrats, in contrast, have tended both to downplay moral conscientiousness's overall significance and provide looser readings of its demands, in part as a way of acknowledging the dictates of modern moral and religious pluralism.Footnote ³³ With rare exceptions (e.g., Arendt), practitioners and theorists of civil disobedience have nonetheless described its possible legitimacy as resting on some evidence of more or less sustained conscientious moral reflection.

Does it make sense to transfer this idea to state and political institutions? Their efforts notwithstanding, theorists of institutional disobedience have failed to make a sufficiently persuasive case for doing so.

Moral agency might be robustly interpreted so as to entail the possession of consciousness, self-awareness of an “inner life,” the ability to follow a moral law, a sense of remorse or empathy, rationality, and other demanding moral conditions we might identify.Footnote ³⁴ Conscientiousness, presumably a key component of moral agency, has been conceived in a variety of ways, some of which have indeed entailed strict moral rigorism.Footnote ³⁵ Revealingly, even theorists who have endorsed the idea that political institutions exhibit moral agency admit that they cannot realistically be viewed as possessing it in this strict sense: “Formal organizations are quite clearly not, for example, ‘conscious.’”Footnote ³⁶ In fact, it seems far-fetched to attribute to a statist collective agent (or any of its specific institutional parts) something like an “internal voice” or capacity for inner reflection associated with strict notions of moral conscience. If it is to hold water, the idea of state moral agency will have to be conceived more modestly.

In this alternative vein, Toni Erskine characterizes state moral agency in terms of a “deliberative capacity, discernible in the ability of some institutions to access and process information,” in conjunction with an ability to pursue purposive action independently and autonomously.Footnote ³⁷ The problem with this more restricted view, however, is that it remains unclear why we should describe the resulting form of collective agency as moral and not, perhaps, chiefly political (and legal). Even if we accept the (arguably controversial) thesis that political institutions engage in deliberation, access information, and act purposively and independently, why does it follow that they should be viewed as conscientious moral agents? It is true that we often talk about the responsibility of government or of specific institutional players. At least since Max Weber delineated the ethic of responsibility from the ethic of conviction, however, we have rightly acknowledged that political responsibility cannot simply be reduced to—or equated with—standard ideas of moral agency or responsibility.Footnote ³⁸ The danger here is a misleading moralization of political institutions that ignores their distinctive attributes, including what Weber famously described as their monopoly over legitimate violence. This monopoly necessarily generates deep normative paradoxes: the use of (morally deplorable) coercive power or force may sometimes be necessary to advance politically sensible goals, while a failure to do so can produce politically (and perhaps also morally) undesirable consequences.Footnote ³⁹ In the immediate context of state action, as in no other social arena, the prospect of force and violence means that gaps between intentions and real-life consequences can take on potentially explosive significance.

To be sure, in civil society–based civil disobedience, moral motives and aspirations get mixed with personal self-interest, the struggle for power, and so on. Even Gandhi was not just a spiritual leader but a hard-headed political animal.Footnote ⁴⁰ All political actors, and not simply those exercising political authority, find themselves grappling with normative paradoxes linked to the special role played by force and violence. In the case of political institutions, however, moral aims and motives are unavoidably intermingled with—and tainted by—the looming specter of force and coercion. The state is never just another moral “agent” but one fundamentally preoccupied with the successful employment of binding political power and the terrible exigencies of organized violence. This complicates any attempt to attribute moral conscientiousness to it.

The point here is not to defend a “realist” view of the state in which its relationship to coercion, force, and violence predominate. Rather, I commence from a descriptive claim about modern political institutions and their special relationship to organized violence; we need not endorse the standard political realist's account of such institutions as normatively desirable. An alternative political order in which organized coercion loomed less large might hypothetically prove normatively more desirable. But the fact remains: under existing political conditions, attributions of moral agency to political institutions risk neglecting modern state power's normatively ambivalent and sometimes unsettling coercive functions.Footnote ⁴¹

Not surprisingly, advocates of state-based disobedience turn one of the more appealing features of traditional ideas of moral conscience on its head: the “call of conscience” has provided a powerful check or restraint on the political community and its employment of organized force, playing a pivotal justificatory role for defenders of conscientious lawbreaking (e.g., Henry David Thoreau) in challenging state acts they viewed as morally unacceptable. By instead viewing the state as potentially embodying conscientiousness, we lose conscience's restraining function: institutional disobedience effectively attributes to political institutions, not individuals, what has periodically been viewed as one of humanity's more admirable moral-deliberative capacities. The idea of institutional disobedience, by implication, may contain worrisome authoritarian overtones.

Not surprisingly, theorists of institutional disobedience have struggled to flesh out how the demand for moral conscientiousness can be satisfactorily met. Buchanan, for example, probably conflates his own theoretical and moral justification for political-institutional disobedience with state conscientiousness: he provides a detailed moral justification for “illegal legal reform” without sufficiently explaining how states (or state officials) might themselves in fact exhibit the requisite conscientious moral reflection.Footnote ⁴² The two tasks are related but remain distinct. Like Buchanan, Nathan Miller wants to build a theory of legitimate (and potentially military) humanitarian intervention on the basis of liberal models of civil disobedience. But his reconstruction of Rawls tends to conflate conscientiousness with other standard liberal tests of legitimate civil disobedience: lawbreaking states need to (1) have first exhausted existing legal channels, (2) be ready to accept legal consequences, and (3) act on the basis of principles of justice.Footnote ⁴³ Only the requirement that states provide evidence of their sincerity, based on an “objectively defined good faith,” can be described as properly evincing moral conscientiousness. Unfortunately, Miller fails to demonstrate that such a faith can be readily identified in our morally and politically divided universe.

Other theorists of institutional disobedience think that conscientiousness is demonstrated by moral unease in the face of laws that can be challenged on the basis of universal moral arguments or principles of global justice.Footnote ⁴⁴ However appealing, this position still fails to show how moral deliberation can be attributed to the collective agency of state institutions rather than individual government officials. Though Gerald Neubauer, for example, defends the possibility of conscientious state civil disobedience, what he actually wants is “responsible state representatives” to justify lawbreaking on the basis of “universal moral arguments instead [of] … particular, national reasons.”Footnote ⁴⁵ Here again, state disobedience in fact means disobedience by individual state officials, an important—but by no means altogether novel—scenario about which we will need to say more. And once again, we might ask whether references to state or institutional (e.g., judicial, parliamentary) lawbreaking do not in fact unnecessarily confuse the messy issues at hand.

3. State Nonviolence?

It is hard to see how political-institutional disobedience could hold on to some sensible rendition of the old idea that civil disobedience requires nonviolence “especially against persons.”Footnote ⁴⁶ If we once again recall that state institutions should be characterized in part as resting on a monopoly on legitimate coercion, the idea of nonviolent institutional disobedience seems implausible. Can we reasonably posit a fundamental analogy between civil society–based lawbreaking and illegal acts by the modern state, tasked with the (potentially) coercive enforcement of law, and outfitted with awesome organized power and destructive instruments?Footnote ⁴⁷ Predictably, those who have reinterpreted humanitarian intervention, including its military variants, as analogous to civil disobedience conveniently downplay the nonviolence requirement.Footnote ⁴⁸ Others qualify or even abandon it by arguing that nonviolence can be trumped by more fundamental justificatory components of civil disobedience. Republican nondomination, Danny Michelsen argues, permits military intervention against oppressive governments that commit crimes against humanity.Footnote ⁴⁹ Since an updated version of Rawlsian shared “principles of justice” should be interpreted as resting on an emerging global “right to protect” (R2P), Miller claims, Rawls's defense of civil disobedience can now be reinterpreted as congruent with R2P-based military intervention. Against Rawls's own views, nonviolence should generally be respected but in exceptional cases scrapped.Footnote ⁵⁰ For others as well, violence can be justified as long as “extraordinary care to avoid collateral casualties” is taken and “strict conditions of proportionality” respected.Footnote ⁵¹

The immediate flaw with this move is that it fails to pay sufficient attention to the myriad grounds theorists of civil disobedience have provided for nonviolence.Footnote ⁵² Gandhi and King, for example, would have worried that it occludes how civil disobedience is supposed to prefigure an improved, future social order: if one seeks a nonviolent future, violent lawbreaking seems more likely to impede than contribute to its realization. Liberal proponents of civil disobedience have widely condemned violence as inconsistent with the basic respect we owe political equals: violent acts are incompatible with the quest to convince or persuade them to alter their political position. Nonviolence is a prerequisite of an “ideal political discourse” in which rational exchange, tolerance, and patience with one's political foes are supposed to prevail.Footnote ⁵³ By abandoning it, we revert to paternalistic and elitist lawbreaking that belies civil disobedience's core egalitarian normative premises.

To be sure, liberal accounts of civil disobedience have sometimes presupposed something along the lines of what Rawls famously described as “shared principles of justice” ensconced within a specific constitutional democracy. For him and others, civil disobedience, as a mode of redress available to political actors in constitutional orders based on ideals of freedom and equality, presupposed a viable nation-state-based liberal democracy.Footnote ⁵⁴ Rawls conceded that if such shared principles could not be identified, or if the preconditions of a “basically just” liberal democracy were missing, more militant—and potentially violent—forms of protest might prove justified.Footnote ⁵⁵

If we then interpret the existing global order as basically unjust and one that fails to meet minimal liberal and democratic standards, even on Rawlsian grounds we might identify grounds for militant and potentially violent resistance.Footnote ⁵⁶ In the postnational and global institutional contexts where possible political-institutional disobedience is now being discussed, it perhaps makes some sense to relax the nonviolence requirement: many key political decisions are in fact being made “beyond the nation-state” in undemocratic and arguably illegitimate ways. If the WTO or so-called EU “troika,” for example, fail to respect sufficiently just shared principles, or some modicum of liberal and democratic ideals, why limit politically motivated institutional lawbreaking there to its strictly nonviolent forms?Footnote ⁵⁷

When faced with this and related questions, theorists of political-institutional disobedience want to have their cake and eat it as well. On the one hand, they strive to show that the postnational and global political contexts they have in mind already rest on far-reaching shared principles of justice, that is, widely shared moral and legal commitments (e.g., R2P, some shared vision of core human rights, the rule of law). This is vital to their espousal of institutional disobedience because state conscientious lawbreaking is not supposed to embody “moral subjectivism,” that is, narrowly partisan ideas of morality out of sync with those held by other key global players.Footnote ⁵⁸ On the other hand, they condone violence, though doing so remains in tension with the shared respect and common principles of justice they find operative in the existing global order. As they move to endorse cosmopolitan views of justice and law, they undercut their allowance for violent lawbreaking, instead implicitly suggesting that institutional disobedience should preferably take nonviolent forms.

To avoid these pitfalls, some writers have sensibly purged their defense of any justification for militarily based humanitarian intervention. Nonetheless, the idea of nonviolent institutional disobedience remains paradoxical. What in fact can it conceivably amount to since the “state depends on latent or actual police violence”?Footnote ⁵⁹ Admittedly, in the case of prospective lawbreaking by parliaments or courts, where the specter of state coercion seems to loom less large than in executive-based police or military action, the dilemmas appear to be somewhat mitigated. If a national court or parliament were to refuse to follow EU fiscal regulations, why equate its lawbreaking with more overtly violent lawbreaking? Even though there are surely some important differences here, all political institutions remain entangled in the use of force and the resulting ethical paradoxes; the underlying dilemmas still obtain. When parliaments or courts act illegally their decisions are still supposed to be universally binding; there remains an expectation of systematic enforcement, in sharp contrast to cases of disobedience by political parties or social movements. Parliaments and courts generate binding decisions, meaning that any legal transgressions on their part (against supranational rules or agreements, for example) are still irrepressibly caught up in the modern state's web of enforcement mechanisms.

Others have tried to salvage the idea of nonviolent state disobedience by asserting that when the state abides by the rule of law, its power takes an essentially “civilian” form and the nonviolence criterion can be satisfied.Footnote ⁶⁰ But if states are simply following the rule of law and refuse extralegal violence, it becomes unclear how they are acting illegally in the first place: the indispensable idea of civil disobedience as a “political act contrary to law” vanishes altogether.Footnote ⁶¹

4. Respect for Law?

Civil disobedience has been widely depicted as politically motivated lawbreaking that simultaneously exhibits fundamental respect for or “fidelity to law.”Footnote ⁶² Political-institutional disobedience also contradicts this core element.

Determining whether a state or one of its institutions has even committed an illegality can prove especially arduous at the postnational or global level, partly because of the underdeveloped contours of some features of law there, and partly because states—and especially powerful states—still disproportionately shape adjudication and enforcement “beyond the nation-state.” Proponents of the idea of state civil disobedience have argued that for actions to fall under its rubric their illegality must be admitted and officials should submit them to an independent court (the International Court of Justice, for example) or a neutral arbitrator.Footnote ⁶³ Unless officials concede illegality and willingly accept legal consequences, it would also be difficult to characterize their acts as public or open. But what institutional incentives do they have for doing so? As Buchanan concedes: “in the typical case illegal acts directed toward reform of the international legal system are perpetrated by actors who will not be subject to legal penalty, not simply because the international legal system is weak in enforcement capacity but because the lawbreaker will tend to be a powerful state or coalition against whom punitive action is not likely to be taken.”Footnote ⁶⁴ Relatively powerful states, after all, are generally better situated to pursue—and benefit from—politically motivated lawbreaking: “the real inequality of states makes SCD [state civil disobedience] selective and mainly a strategy for states that enjoy high status.”Footnote ⁶⁵ Such states are best positioned not only to circumvent legal penalties but also to get away with denying that their activities were illegal in the first place.Footnote ⁶⁶ That their endeavors, even when their illegality has been conceded, deepens rather than discredits respect for basic rights or the rule of law also seems far more tenuous in their case than in the case of lawbreaking by extrainstitutional protestors. Even well-organized political and social movements lack the modern state's arsenal of power instruments, an arsenal that can prove decisive in warding off legal consequences for egregiously illegal acts. By contrast, it was politically and strategically unrealistic for Gandhi in colonial India, or King in the US South, to have tried to circumvent legal penalties, let alone deny that they had committed illegalities. For powerful state and institutional players, such a strategy may prove politically and legally tenable.

To be sure, in cases of disobedience by less powerful states, or by specific political institutions within multilayered postnational systems (for example, the EU), such perils seem somewhat reduced. Peripheral states, for example, are less capable of decisively shaping international law; the EU (and perhaps other postnational orders as well) possesses relatively developed legal systems. Yet, real problems remain. Defending political-institutional lawbreaking always risks obscuring that liberal-democratic political institutions are constituted by “a public system of rules which defines offices and positions with their rights and duties, powers, and immunities, and the like.”Footnote ⁶⁷ By definition, political institutions are supposed to pursue actions “regularly carried out in accordance with a public understanding that the system of rules defining the institution is to be followed.”Footnote ⁶⁸ There are many reasons for this, but the simplest one perhaps is that it would make no sense for any rational agent to outfit political institutions with “supremacy in the use of coercion” unless the rules governing them minimally exhibit a measure of formal justice, meaning that they are general, public, and clearly defined and treat similar cases similarly.Footnote ⁶⁹ Such rules are not something to be willy-nilly ignored: they make up the core identity of liberal institutions, since without them we would be ruled by lawless, potentially arbitrary individuals, rather than legally constituted officials acting in accordance with impersonal rules and legally defined official roles. Strictly speaking, it makes no sense, in a liberal democracy, to speak of institutional lawbreaking since legitimate institutions necessarily rest on some public system of general rules. We might still perhaps speak coherently of lawbreaking by government officials or representatives, who have decided that they can no longer abide duties as defined by the existing system of rules, and on the basis of conscience or political principles disobey them. Nonetheless, “we need to be careful not to provide [legally] constituted powers—against whose arbitrary interference we safeguard ourselves with the rule of law—with an easy justification for illegal action. Otherwise, the defense of democracy might become a pretext for measures that are in fact undermining the citizens’ capacities for self-government.”Footnote ⁷⁰ When extra-institutional actors engage in lawbreaking their acts can pose risks to others; the nonviolence criterion, in part, aims to reduce them. Because of their ready access to a significant array of coercive instruments, however, state or official lawbreakers possibly generate far greater perils: state officials, like no other social actors, occupy an institutional universe where organized coercive power looms large. We may find this feature of modern politics normatively unappealing and perhaps hope for a day when the modern state, as we know it, vanishes. Until then, however, it would be irresponsible to sugarcoat its harsh implications for contemporary political existence.