What Edward Snowden can teach theorists of conscientious law-breaking

Abstract

The article recalls the triple-pronged normative structure of familiar liberal democratic theorists of civil disobedience, who argued that conscientious law-breaking should rest on political, moral and legal claims. In opposition to a certain tendency among recent theoreticians of civil disobedience to reduce this complex multi-pronged normativity to one or two prongs (i.e. the political or the moral), I use the case of Edward Snowden’s whistle-blowing to illustrate and defend the triple-pronged approach. In particular, any sound as well as effective model of civil disobedience needs to highlight its legal underpinnings: conscientious law-breaking should be conceived as ultimately resting on – or expressing basic fidelity to – the law or legality. Only by taking this legal prong seriously can civil disobedients fully acknowledge the pluralistic character of modern societies. Against some radical critics, I argue that this legal approach does not in fact necessarily favor the legal or political status quo. Despite the many strengths of Kimberley Brownlee’s model of conscientious law-breaking, it misses the importance of this legal prong and sometimes rests on a problematic anti-legalism. Consequently, she offers an incomplete model of civil disobedience that cannot sufficiently explain why Snowden and others whose actions fall under the rubric of civil disobedience rely so extensively on legal arguments.