Civil Disobedience Today: Some Basic Problems and Possiblities

Abstract

Trust in our legal and political institutions has been eroding for decades. Civil disobedience as, variously, a form of resistance; as a means of promoting social change; or as a public statement, is likely to take on greater prominence under such circumstances. This Article first addresses the most important, and evidently unresolvable, questions of the definition and justification of civil disobedience. These questions focus on, respectively, openness or publicity; the role of violence; acceptance of legal punishment; ‘direct’ versus ‘indirect’ civil disobedience; civil disobedience as a moral right or as a moral duty; and the relations between civil disobedience and the democratic rule of law. However we attempt to resolve any of these questions, we should, more crucially, consider other ways in which civil disobedience cases might be judicially tried. Our culture of mutual alienation and distrust undersupplies opportunities for sustained, meaningful dialogue on complex issues of public policy. Civil disobedience trials should be reconceived and restructured precisely to encourage such dialogue, to the typical benefit of civilly disobedient actors, policy-enforcing governments, and the broader public.