More on what civil disobedience can and cannot do

More on what civil disobedience can and cannot do March 11, 2013

Civil disobedience can be a powerful tool for challenging unjust laws. It can be, and sometimes has been, the moral obligation of citizens committed to justice for all.

But not every injustice lends itself to being addressed by civil disobedience. We discussed this here last summer in a post on “Civil disobedience in Hazzard County” — using the old TV show The Dukes of Hazzard as a template for examining situations in which this tool can be extremely effective, and situations in which it tends not to be useful.

Even more importantly, civil disobedience cannot be made to work in defense of injustice.

Think of Rosa Parks, one of the great heroes of civil disobedience. The law said that black people had to give up their seats for white people. That was an unjust law, so Rosa Parks broke it. She broke the law and was arrested for breaking the law, forcing the nation to consider whether or not this law was just or right or acceptable. That is what civil disobedience looks like. You break an unjust law and submit to the unjust consequences of arrest and potential conviction and imprisonment for doing so.

An unjust law compelled Rosa Parks to act and she refused to act in compliance with the law. Parks’ action was the first step in a massive, carefully planned and executed nonviolent campaign for justice — one which also  involved the powerful economic tool of a boycott. And ultimately, the law was changed.

But what if some modern-day anti-Parks believed that the current equality of desegregated buses presented an injustice needing to be changed back to the old ways of the old days? It’s hard to imagine how civil disobedience would be a useful tool for such an effort. The current law, rewritten to correct the injustice Parks opposed, does not compel this counter-revolutionary to act nor prohibit them from acting. And since it does not directly demand compliance from them, it does not allow them to directly refuse to comply. It does not require their obedience, so it does not allow for their disobedience.

And even if this counter-revolutionary did concoct some elaborate way of disobeying the current law — say by purchasing a bus company, then implementing a policy of segregation on those buses — this tactic still wouldn’t work as “civil disobedience” because the punishment of this violation of the law would not arouse the consciences of others. The punishment of such a violation would be perceived, rightly, as the just enforcement of a just law — as fair and right and good. Our hypothetical counter-revolutionary would be fined or imprisoned and society would nod in assent at this reaffirmation of the law’s essential justice.

Or think all the way back to Henry David Thoreau and his original act of civil disobedience or, as he called it, “Resistance to Civil Government.” Thoreau, like Abraham Lincoln, believed that the U.S. war against Mexico was an unjust, unprovoked land-grab. In opposition to this war, Thoreau practiced and advocated tax resistance — the refusal to pay taxes to the government waging this unjust war.

Thoreau’s tax resistance was far less direct — and therefore far less effective — than Rosa Parks’ refusal to give up her seat. The declaration of war against Mexico did not directly compel Thoreau to act or directly prevent him from acting, and thus it was an unjust law he was incapable of disobeying. He thus chose, instead, to break a different law as an indirect form of protest. That doesn’t work nearly as well and I would argue that it’s not really quite the same as civil disobedience, which I would want to confine to disobedience of the unjust law itself. (This is why much of what is called “civil disobedience” these days is ineffective, since it’s mostly people getting arrested for trespassing when laws against trespassing are not either inherently unjust or the direct subject of the protesters’ complaint.)

But if Thoreau’s elliptically disobedient tax resistance could not and did not stop the war on Mexico, it was at least pointed in the right direction. He was protesting injustice. Can we even imagine what it would have meant if things had been the other way around — if Thoreau had been advocating for an unprovoked war in the absence of any such policy? If that had been his aim, then I cannot think of any way that civil disobedience would have been a useful or necessary tool for him. It cannot be employed to do that. It can be a vital tool for opposition to unjust laws, but it’s an utterly useless tool for those advocating injustice.

America is not a perfectly just society, yet not all of our unjust laws invite or compel a response of civil disobedience. One set of such laws, I think, are the statutes passed by many cities prohibiting the public distribution of food to the homeless. These are laws that require direct obedience and are thus laws that can be directly disobeyed. Such unjust laws are ripe for civil disobedience — preferably for coordinated, well-planned, sustained civil disobedience. I doubt that such statues could survive such a campaign. If these laws were boldly, methodically, publicly and confrontationally broken, then these laws would eventually have to be changed.

Another law that seems to demand a response of civil disobedience is the anti-immigration law in the state of Alabama. Back in 2011, the Center for American Progress listed the “Top 10 Reasons Alabama’s Immigration Law Is a Disaster for Faith Communities.” Among those reasons:

  • Religious ministries would be required to ask for documentation from people they serve
  • Religious groups would be forbidden to provide rides to worship for undocumented immigrants
  • Religious groups would be forbidden to include undocumented immigrants at church dinners
  • Religious groups would be forbidden to provide shelter or housing to undocumented immigrants
  • Religious groups would be forbidden to perform baptisms or weddings for undocumented immigrants

Religious leaders in Alabama have rightly spoken out against this law. They have written op-eds against it. They have signed petitions. Some have even filed lawsuits or participated in protests in the state capitol. That’s all good and commendable, and they should be proud of that response. But this seems to be an unjust law that is demanding a response of civil disobedience.

Some have used the term “civil disobedience” to describe protests in which opponents of the law have gotten themselves arrested for trespassing in the state capitol. That’s an admirable and courageous act that may help to draw attention to the issue, but it is not civil disobedience — the law against trespassing is not the subject of the protest, nor is it the injustice in question.

The injustice in question is a law that directly prohibits any expression of hospitality or neighborliness to any undocumented non-citizen. That law directly prohibits specific actions and those specific actions can and ought to be performed in direct disobedience to the unjust law.

Civil disobedience clearly applies here. Religious leaders in Alabama ought to continue with their protests, their petitions and op-eds, but they should also oppose this law by:

  • Refusing to ask for documentation from people they serve
  • Providing rides to worship for undocumented immigrants
  • Welcoming and including undocumented immigrants at church dinners
  • Providing shelter and housing for undocumented immigrants
  • Performing baptisms and weddings for undocumented immigrants

If such civil disobedience were planned, coordinated and sustained with as much strategy, care and dedication as the Montgomery Bus Boycott, then I do not think this unjust law could long survive.

This is, of course, easy for me to say, sitting here in Pennsylvania far-removed from the situation in Alabama. My point here is not to chastise the religious leaders of Alabama for not taking this step, but only to highlight their context as an excellent and obvious example of the enormous potential civil disobedience sometimes has to challenge and to change unjust laws.

And let’s again consider the opposite situation. Imagine you’re a religious leader in a state that does not have a draconian anti-immigrant law like the one in Alabama, but imagine also that for some reason you think it should have such a law — that the lack of legal prohibitions against hospitality and neighborliness seem to you to be an error in the law that you believe needs to be corrected. Civil disobedience simply would be of no use to you in such a campaign. The lack of such a prohibition is not something you would be able to disobey directly. It’s not clear how you could possibly violate the absence of a law directly compelling or prohibiting you from acting. And even if you could devise some scenario in which you might be able to violate such a non-law in some way, your efforts would still not be effective because they would not arouse the consciences of others in agreement with your stand.

In sum, civil disobedience can be an effective and necessary tool for changing unjust laws that require direct obedience. It tends to be far less useful for opposing unjust laws that do not require direct obedience. And it is utterly useless as a tool for promoting injustice.

If you’re wondering what prompted all this on a Monday afternoon, well, all of the above was written in response to the fact that Southern Baptist “ethics” spokesman Richard Land is still a deluded wanker and the that the National Religious Broadcasters conference is a self-absorbed bunch of fantasists who imagine that they’re all Dietrich Bonhoeffer and everyone else is Hitler.

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  • Where would the Westboro Wingnuts and their ilk fit in here?

  • AnonymousSam

    Here’s how the GOP performs civil disobedience:

    1) We are required to provide the means by which people can exist comfortably.
    2) LOL! OH YEAH?
    3) Want your house back? Send your money to Fairweather Moneybanks, Caribbean Bank 2019…

  • Madhabmatics

    The problem with civilly disobeying the Alabama immigration law is that, in order to make it effective, you have to not only risk arrest for you, but risk the arrest and future of the undocumented worker as well. If you are caught doing it, they are going to be just as interested in the people you are helping as they are in you, and the penalties are going to be way, way worse for that person.

  • AnonymousSam

    Wouldn’t a law preventing a church from baptising someone be a violation of the first amendment? The government has no stake in who gets baptized or not, it’s not tracked by any federal program I know of, so wouldn’t that be an exercise in controlling religion for the sake of controlling religion?

  • AnonymousSam

     Okay, the actual text..

    to provide penalties for solicitation, attempt, or conspiracy to violate this act

    Congratulations, Fred, you’re violating the law.

    But the exact text of this is so vague…

    It shall be unlawful for a person to do any of the following: … Encourage or induce an alien to come to or reside in this state if the person knows or recklessly disregards the fact that such coming to, entering, or residing in the United States is or will be in violation of federal law.

    So anything which could be construed as encouraging someone to stay within the country is to be illegal? Okay, so… yes, what does that consist of? If I smile at someone without demanding to see their papers first, am I guilty of a crime? If an old lady spills her groceries on the ground, am I at fault for helping her pick them up? Really, people, specifity: HOW MUCH, exactly, am I expected to not behave like a human being around my fellow people?!

    Fuck you, Alabama legislators.

  • MaryKaye

    It seems to me that civil disobedience can be attempted against any law that requires direct obedience, whether just or unjust.  If the law is everywhere regarded as just, you won’t get any buy-in.   But there are many laws that are regarded as just by some and unjust by others.

    For an example:  during the military draft some people tore up their draft cards publicly and went to jail.  They saw this as civil disobedience:  protesting an unjust law forcing them to fight in a war they didn’t support.  Was the draft really just or unjust?  There are arguments both ways (which I am not trying to open here).  But whether it was just or unjust didn’t matter to whether card-burning could get it stopped.  That depends a lot more on (a) how many people saw it as just or unjust, (b) what other causes got linked to it in the public eye, and (c) how the war was going.

    I can very easily imagine a case where the law was (in my eyes) just, but unpopular, and civil disobedience helped crystallize public opposition and get it repealed.

    I do not think we can judge the morality of an act of protest by whether it works.  They can succeed or fail for a wide variety of other reasons.

    One can argue that the Tea Party’s acts of tax rebellion were civil disobedience against an unpopular but fairly just law; and the Tea Party certainly gained a lot of power, partly due to these public protests, because they whipped up the emotions of supporters.

    It’s a bleak fact that just as the moral sense of an individual can be wrong, so can the moral sense of a community.

  • Edo

    Which is different from the ordinary risks of being an undocumented worker how, exactly? And even if the rest of the ideas were considered too likely to jeopardize somebody, not asking Papiere, bitte is blowback-safe: in a court of law, the problem with its disobedience would fall solely on you, not the people served.

  • AnonymousSam

    I think the logic is that if you’re found aiding an illegal alien, the police are going to wonder how many OTHER illegal aliens you’ve been aiding and will inspect everyone connected to you in any way.

  • Edo

    Oh noes standard operating procedure whatever shall we do

  • MaryKaye

    You have to be careful that inviting a bunch of undocumented people to a dinner, for example, doesn’t just have the effect of rounding them up  for INS to nab.

    In general civil disobedience needs to be public, and undocumented people need to be private; not an easy combination.  I agree that refusing to ask for papers is fairly safe.  Holding a wedding or a dinner–if you publicize that it’s for undocumented people you put them at risk, and if you don’t it’s not visible.

    Maybe putting up huge signs that say:  “This is a house of God.  All people are welcome here.  We do not ask for documents; we do not discriminate against people without them” could work–announcing that you will break the law and trying to get arrested or fined for *that* rather than for specific instances that would endanger specific people.

    Of course, if you have undocumented people who are willing to put their livelihoods on the line, you can go whole hog.  But that has to be *their* choice as they have the most to lose.

    Once the law has criminalized a whole group of people in this way it is difficult for anyone to use civil disobedience in their direct support (they themselves could use it, though at a very high price):  again, c.d. has to be public, and people outside the law cannot.  You can defy the law, and you should in this case, but it won’t be worth much as c.d. because you will probably mostly be doing it in secret.

  • Madhabmatics

     The only way civil disobedience has an impact is if you are doing it publicly. “I’m not going to ask for papers” has no effect, how can anyone tell if you are really disobeying the unjust law? You have to do it in a way that everyone can see.

    “I will give a ride to whoever I want, but none of you will know” isn’t civil disobedience that challenges law. “I am driving this undocumented worker, right now, and everyone will see me get arrested” is, and in that situation, the undocumented you are driving is going to take the brunt of the punishment, not you.

    It’s different because a “risk” involves chance, but going YO UNDOCUMENTED WORKER HERE WATCH ME ‘HELP’ THIS DUDE (HEH) involves certainty, and whether they want to face ICE or not should be their decisions, not yours.

    “We should publicly reveal ourselves helping undocumented (and thereby reveal these people as undocumented workers)” is base paternalism.

  • Madhabmatics

    Imagine that this is WWII and you want to protest Nazi treatment of jewish people. Going “YO I AM DISOBEYING YOUR UNJUST LAW BY HIDING PEOPLE IN MY ATTIC AT 312 BOURBON STREET” is probably less valuable than just about any other thing you could do.

  • Edo

    That makes a fair bit of sense; and looking at it like that, civil disobedience isn’t really the right approach for this after all. The way to go is simply direct action: just disregard the law, and public witness be damned.

  • Jim Roberts

    Well, there are key differences here

    1. The chief opponents of the law in Alabama are in civil liberties and also in the police department because the law is almost entirely unenforceable.
    2. These immigrants would not be killed or sent to prison and camps and, frankly, won’t even be sent to jail or prison, in all practicality, if this is done right.
    3. We aren’t talking about bring in a handful of people. We’re talking about ever single church in the entire state announcing to the police, “We’re going to be having a potluck for undocumented immigrants. You’re invited. Please bring a casserole or salad.” If the rough numbers I’ve seen are correct, you’d have less than one police officer at every church, and between 10 and 20 immigrants at each church. It’s a logistical nightmare. And if you decide to raid the place, the parishioners link arms around the poor and the fatherless, Quaker-style, except for the one guy in the back who’s videotaping the proceedings straight onto YouTube.

    That. Times between 10 000 and 14 000, depending on how accurate the site I found is for the number of churches in Alabama.

  • Madhabmatics

     “If this all goes right maybe people won’t be disappeared into an ICE facility” is a big assumption considering that this law has lead to people that merely “look” hispanic being arrested on the suspicion of being undocumented.

  • Madhabmatics

    Also like half the churches into the state are full of xenophobes who think hispanic people are taking their jobs, do you think every church in the state is going to do that? I live in Alabama and I’ve been involved in protesting against this law (ironically, I’ve attended events against it that featured Richard Land as a speaker, too). There are a lot of religious leaders against this law, but it’s not even near “all of the churches in the state.” Hell, it’s not even near “A half of the churches in the state.” Maybe a third, maybe.

  • Jim Roberts

    Well, no. It’s unrealistic to think that it would happen. You’d need a large network of heavily activist churches with parishioners who are willing to get arrested – as Fred says, it’s not something that he expected will happen, but that it would be effective, if possible.

  • Edo

    “I’m not going to ask for papers” has no effect, how can anyone tell if
    you are really disobeying the unjust law?

    Usually by sending over a squad car to talk to you and find out. That’s where it starts having an effect.

    Ever had a close encounter with police before? Everything they do on the clock has to be documented, recorded and filed in case it becomes relevant later on, and a lot of people are involved in it, not just the officers on scene. That’s why they take writing classes, why they carry dedicated computers in the cars, why it takes half an hour to get pulled over if you run a red light.

    “No Questions Asked” works because it’s bait. It’s an open defiance of Their Authoritah, but it’s so trivial that any police involvement can (and ought) be spun as a Really Big Unilateral Escalation. It works because there’s no good way to respond to it.

  • AnonymousSam

    Actually, wouldn’t an effective version of civil disobedience be for lawful immigrants and anyone who looks foreign to refuse to carry papers and such, forcing the police to arrest them, only to confirm (possibly repeatedly) that they are, in fact, legal citizens?

  • Edo

    …and (as I was building up to in the second paragraph) dealing with it is an enormous waste of their time and resources. (Don’t underestimate how much that matters: part of the reason for the most heavy-handed Zucotti Park crackdowns was the cost, in overtime pay, of round-the-clock police presence.)

  • Jim Roberts

    Considering how often immigrants are whisked away without due process, that’s a rather dangerous plan, but at least it only puts one group at risk.

  • Actually, I think that the GOP currently is engaging in civil disobedience  of a kind.  They (or at least those aligned with the Tea Party) believe that taking money from the very wealthy to give to the less wealthy is unjust, and they flooded the legislature with people who would refuse to let the government go about its business of maintaining the country unless it promises to take no more money away from the very wealthy.  

    I guess the problem is that they have a very different idea of “justice” than a lot of other people do.  

  • Edo

    It occurs to me that, if you’re a liturgical church, there’s a uniquely liturgical way to express your contempt for the law: confessional privilege.

    All of the liturgical Western church traditions have at least pastoral instruction, if not canon law, that forbids disclosing or acting on any information revealed in the context of auricular confession, no matter the consequences. (It’s mostly a Catholic thing, but the 1979 BCP has language to that effect too, and Wikipedia says Lutherans do as well.) It’d be an entirely legit way to defy the law, and any attempt by the police to get the information out of you could be challenged on both First and Fourth Amendment grounds.

    The one problem I see, and it’s a big one, is getting confessors to show up.

  • Si

    in another post, there’s a concern troll asking why an employer should be made to pay maternity leave, and if so forced, why he should be unable to discriminate against women by not hiring them. That seems like a just law that could be protested by civil disobedience to me.

  • MaryKaye

    You could also easily use civil disobedience against anti-segregation law.  Put up a big “No Coloreds” sign and refuse to serve people.  Go to jail.  If your community is racist enough this could earn you a lot of support.

    Logically speaking there cannot be a tool usable only by those whose cause is just, because if there were, it would be a perfect test for whether a cause *is* just–and our world doesn’t have such a test. 

  • Edo

    Actually, I think that the GOP currently is
    engaging in civil disobedience  of a kind…. I guess the problem is that they have a very different idea of “justice” than a lot of other people do.

    Gonna disagree here.

    Civil disobedience is a challenge to power, but not a challenge for it. Maybe you think it’s just wrong; maybe you think that the power itself is illegitimate; but whatever you think, civil disobedience (as compared to trespassing, and thank you Fred for making that distinction) is about forcing the power to interact with you in a specific, symbolic way that revaluates the situation.

    What the Tea Party has done isn’t civil disobedience. They’re all for power, and all that they do is a challenge for power. It’s not disobedience, it’s seizure. The closest they have ever been to civil disobedience was at the beginning, when they packed heat to meet their representatives; and that wasn’t a challenge of power. That was a threat.

  • Another counterexample, I’m afraid: Every time a pharmaceutical worker refuses to fill a prescription for contraceptives (including emergency contraceptives), that’s civil disobedience against what they think is an unjust law forcing them to contravene their own consciences.

    Whether such civil disobedience inflames others to action depends on how many people agree with them. Unfortunately, in some locations, their ideas about morality enjoy majority status.

  • SisterCoyote

    One set of such laws, I think, are the statutes passed by many cities prohibiting the public distribution of food to the homeless. These are laws that require direct obedience and are thus laws that can be directly disobeyed.

    We won a battle – not a war, but a minor struggle to avoid being shut down en masse – against this in Connecticut. If you want to help out with civil disobedience of this one, talk to your local Food Not Bombs. If your local Food Not Bombs is …unhelpful or combative or perpetually irresponsible, you can also grab a bunch of friends and start a Food Not Bombs. It’s an awesome thing to do.

  • grannygramgrams

     “It’s a bleak fact that just as the moral sense of an individual can be wrong, so can the moral sense of a community.”
    Sad but true, MaryKaye. And this is why we are experiencing such polarization in our society today.

  • Thehat

    I think, in your discussion of civil disobedience, you may be conflating the terms civil disobedience and direct action. When you say that protestors who are arrested for trespassing are not practicing civil disobedience, I think what you mean is that they are not engaging in direct action. If they are choosing to break laws (assuming, of course, that they aren’t arrested for no reason, and then “trespassing” or “disorderly conduct” hurriedly scribbled on a police report) they are engaging in civil disobedience because they are intentionally breaking a law, with the further intention of accepting the legal consequences. But they are NOT engaging in direct action,, unless they are disrupting an event they object to or something.

    Rosa Parks was engaging in direct action, because she effected, in a small way, the change that she wanted.

    (I really enjoyed the article, this is a minor nitpick)

  • DavidGross

    That’s quite a misunderstanding of Thoreau’s position. He wasn’t resisting taxes as an indirect protest against the Mexican war and slavery — he was resisting taxes because to pay those taxes would have made him personally complicit in the Mexican war and slavery, and he felt an obligation not to be so complicit. If you read his “Resistance to Civil Government” he spells this out explicitly. ( )