Civil disobedience is a form of protest that involves breaking the law. But most forms of protest that involve breaking the law are not civil disobedience. Tearing down the propaganda posters of a tyrant, for example, is illegal, but it’s not civil disobedience. Nor are any of the time-honored forms of protest involving spray paint. A brick through a window isn’t civil disobedience either — even when it may be the right thing to do.
And, as I’ve written here many times, “getting arrested” during a protest isn’t civil disobedience either. That’s a courageous, sometimes useful tactic for drawing attention to a cause, which makes it similar to the conscience-troubling and consciousness-raising effect of civil disobedience, but it’s still a different category. Such protesters usually get arrested for trespassing, but the laws forbidding trespassing are not the laws they’re protesting, nor are they laws those protesters consider unjust.
That’s the identifying characteristic of civil disobedience, which protests an unjust law by breaking that law, specifically, and thereafter submitting to the legal consequences of that unjust law.
Consider the 2014 case of Arnold Abbott of Fort Lauderdale, Florida. That city passed an ordinance restricting the public distribution of food to the homeless. Abbott, a World War II veteran who was then 90 years old, had been sharing meals with the homeless in a city park near the beach for decades and he wasn’t going to stop doing so just because the city had decided to make that illegal.
So Abbott was arrested and charged with breaking the law, after which he returned to the park and resumed his criminal enterprise. City police officers had been able to convince themselves to stop him once (“Just doing our job” and all that), but they couldn’t quite bring themselves to do it a second time. And the sight of this elderly veteran getting handcuffed for feeding the hungry had a dramatic effect on the people of Fort Lauderdale. They agreed with Abbott that the law he was breaking was “unfair” and “repressive.” Seeing such a law enforced didn’t make them want to see the lawbreaker punished, it made them want to see the law changed.
That is what civil disobedience looks like.
It’s a powerful tool. We can see that power in the effectiveness of the civil disobedience that changed American law during the Civil Rights Movement. The young people arrested and abused for lunch-counter sit-ins were breaking the law. By breaking that law, they demonstrated its injustice, and that led to the unjust law being changed.
Civil disobedience is a form of law-breaking, but it is not lawless. We might think of it in D&D terms as a lawful good response to lawful evil.
Earlier this decade, the state of Alabama and the city of Hazleton, Pennsylvania, passed similar sets of unjust laws making it illegal for anyone to act as a neighbor toward anyone suspected of being an “illegal” immigrant. Those laws made it illegal to provide food or shelter to the undocumented — illegal to sell them food or to rent them an apartment. It was even illegal just to offer someone a ride if that person was suspected of being an immigrant.
Such unfair and repressive laws seem ripe for the opposition of civil disobedience. Such laws need to be broken — breaking them is a moral obligation, a moral imperative. And to their great credit, many people in Alabama and Hazleton refused to comply with them, never granting them moral legitimacy even if they were otherwise “lawful.” But this principled law-breaking wasn’t precisely a form of civil disobedience. That wasn’t an appropriate or available tool for that situation.
The problem in those cases had to do with the disproportionate consequences of civil disobedience, and where those consequences would fall. It was right and proper that, for example, church groups vocally announced their intention to continue acting as neighbors despite laws forbidding them from doing so. But those church groups couldn’t take the stand of civil disobedience because doing so wouldn’t have resulted only in their own arrest and prosecution, but also in the arrest, indefinite detention and/or deportation of the immigrant neighbors they were assisting. Those immigrant neighbors would not have the same legally recognized rights and protections, or the same visibility as the documented church folk helping them. Those neighbors might be, essentially, disappeared into the system, their lives forever affected without any of the public visibility and public debate that civil disobedience seeks to compel.
So in the case of unjust laws like that, citizens have not only a moral obligation to violate and reject the unjust laws, but also a moral obligation to get away with it. That’s not civil disobedience. It’s not even, primarily, a form of protest. It’s a necessary measure for protecting the would-be victims from the intolerable consequences of unjust laws.
This is the difference between Rosa Parks and Harriet Tubman. Parks effectively and strategically practiced civil disobedience. She broke an unjust law, submitting to her arrest and prosecution, and thereby helped to spark a public debate and a mass movement that ultimately changed and corrected that unjust law. Harriet Tubman broke an unjust law — many unjust laws — but she was compelled not to get caught doing so, for her own sake and for the sake of those she rescued. Her actions were illegal and unconstitutional but also, without question, the right thing to do. Her context denied her access to the lawful good, law-respecting law-breaking protest of civil disobedience, so she was forced to resort to something more akin to a chaotic good approach.
This Rosa Parks/Harriet Tubman distinction has a parallel in the various forms of what we sometimes describe as “sanctuary.” In most times and most places, the sanctity of sanctuary is respected, even if the legal framework is otherwise unjust. The sanctuary provided by ancient Greek temples, Israelite cities of refuge, and medieval cathedrals was recognized as legitimate, sometimes upheld by tradition and divine right and superstition as much as by formal law. Exercising their prerogative of sanctuary might put them at odds with those seeking to enforce unjust laws, but that was regarded as a legitimate prerogative and one that was in some sense legally inviolable.
But in many times and many places, the idea of such legally recognized legitimate sanctuary is rejected by the lawless enforcers of unjust laws. In those situations, Rosa Parks is not an option. In those situations, anyone seeking to provide sanctuary must act like Harriet Tubman. The first priority in such a context is not protest, but resistance and protection of the victims of injustice.
Context matters. It determines the appropriate form of protest or resistance and what may or may not be the right thing to do when confronted with unjust laws. Sometimes an unjust law can be challenged and changed through wholly legal channels without any recourse to any form of law-breaking. Other times, civil disobedience may be a necessary measure to force the issue and to rouse sufficient opposition to compel that change to take place. And still other times, one may be obliged to break an unjust law and attempt to get away with it as the only available means of protecting the victims of its injustice.
Correctly evaluating what kind of context one faces is essential to deciding what course of action will be most effective and what will be the right thing to do.