Civil disobedience and the need for protest
Civil disobedience is, at times, both our democratic duty and the highest form of morality, writes Costas Douzinas.
Greek Minister for Public Transport Dimitris Reppas stated some weeks ago that the government will not let ‘Greece be exposed to the risk of international disrepute and marginalisation, destinations of countries characterized by anomie. The attack on the social acceptability of the free-rider and the political dismantling of its simulacrum of progressiveness is paramount.’
The harassed minister was referring to the mass protests that have gripped Greece in the last months. Greece has entered a period of legitimation and governance crisis. When governments start claiming that citizens have an absolute duty to obey the law, they implicitly recognize that their policies have failed and their moral authority has followed suit.
When policies and laws become unenforceable through extensive disobedience it is clear that a government is losing its legitimacy. The minister’s reference to anomie instead of paranomia - non-legality instead of illegality - was interesting. What he called ‘anomie’, in his ignorance and desperation, political and legal theory examines under the term ‘civil disobedience’. From Antigone, to the campaigners for workers rights, pacifists, suffragettes, conscientious objectors and civil rights campaigners, disobedience is not illegality. It is the outward sign of moral conscience and of political fidelity to the principles of justice and democracy. Disobedience is both the highest moral act and a collective political event. Throughout history it has changed regimes, constitutions and laws as we are currently witnessing in Egypt.
The mass disobedience against racial discrimination and the Vietnam war in the US in the ‘60s and ‘70s led to a major debate amongst judges and political philosophers that, strangely, Greek ‘liberal’ commentators seem to have missed. The debate concluded that in certain circumstances disobedience is not only allowed but required and the courts must protect those who undertake it. The argument following classical liberal philosophy went as follows. Political power is legitimate when it promotes individual autonomy. In its Rousseauan version, we the people are both legislators and subjects, masters and servants. Citizens have given their implicit consent to the constitution and government in a real or virtual social contract and have promised their obedience in return for laws that promote the common good and justice.
But the fact that we have not chosen where to be born and live makes dissent an integral part of the constitutional arrangements with their presumed consent. Our implicit acceptance of a constitutional form and the associated promise to obey the government does not mean blanket acceptance of its specific policies. A controversial or wrong policy does not become automatically legitimate because it has been enacted in Parliament and become law. On the contrary, at this point legality and legitimacy follow different routes. Opposition parties continue their campaign to repeal it, ordinary citizens their fight in the streets. This is where the right and duty of civil disobedience enters the scene.
The idea of a social contract was an ideological construct hard to believe in the 18th century and impossible to accept today, something that makes the theories of John Rawls so counterintuitive. But ideology is not false consciousness, it is a set of fictions which create the ‘realities’ of our lives. Following the liberal fiction, if state laws and policies conflict with basic constitutional principles, the supposedly highest expression of popular sovereignty, the obligation to obey disappears and dissent replaces consent as the support of the constitution. There is an additional argument: when the law has consistently fallen into disrepute claims to obedience become weak and contradictory. For many years the Greek legal system and its political masters failed to prosecute corruption, tax avoidance and the crimes of power and wealth. The appeal to the ‘majesty’ of the law today is hypocritical and unconvincing. The rule of law in Greece has been associated for too long with the rule of powerful politicians, wealthy industrialists and their promoters in the media.
The constitutional argument for civil disobedience applies fully to the Greek case. Basic constitutional procedures have been violated by the adoption of the IMF-EU ‘memorandum’ and key social and economic rights have been breached by its provisions. These measures would be enough to justify disobedience. But the sources of disaffection and the justifications for disobedience go much deeper. The liberal theories of civil disobedience and the constitutional arguments of the 60s have been overtaken all over the world by a new type of democratic disobedience that opposes and tries to reverse the decay of our post-democratic politics.
The democratic deficit of our political system is evident and dramatic. The manifesto and promises of the Greek government before the last elections were comprehensively broken. No consent has been sought or given to the various measures that are destroying the post-war social bond. These measure have led to the surrender of national sovereignty to a motley crew of international bankers and deluded eurocrats and the demotion of Parliament to the position of a multinational company’s local branch executing the orders of the headquarters. In all these senses, Greece is in a state of emergency ruled by the diktat of foreign powers.
Someone who disobeys a public order law by occupying a ministry in order to advertise the unconstitutionality and injustice of the measures acts in the name of the constitution. Someone who breaks a law that violates the basic constitutional guarantees of the minimum standard of living by not paying exorbitant toll duties or transport fees acts in the name of justice. A citizen who disobeys an unconstitutional law acts replaces the courts when they neglect their duty to the constitution. A minister on the other hand who attacks disobedience ignores that the theoretical concept of ‘anomie’ applies first and foremost to institutions that promote nihilism and cynicism. If ‘anomie’ exists in Greece today, it is found in the separation between law and democracy and the destruction of any sense of the common good which has brought institutions and law into disrepute. Disobedience is not paranomia but a moral and civic response to governmental ‘anomie’. It is what preserves democracy.
For the ordinary person, the deeply moral decision to break the law is the strongest mark that the morality of citizens has not atrophied like that of politicians. It happens when someone reaches the point at which he says to himself, ‘enough is enough – I can’t take it any more’ and is prepared to risk punishment. Civil disobedience is a dangerous freedom, but it represents morality at its highest. In normal circumstances, morality and legality represent two different types of overlapping but not identical duty: the external duty to the law (in formal terms a ‘heteronomous’ duty) and the internal responsibility to a conception of the good (‘autonomy’). In cases of disobedience the two moralities come into conflict. These are the rare instances when in choosing difficult freedom and justice against unconstitutional or unprincipled legality we become temporarily autonomous. This kind of autonomy is not given to those who believe that morality and legality are the simple obedience to an external code.
Unlike purely subjective moral decisions however democratic disobedience is a collective act. When a large number of citizens realises that the democratic process is malfunctioning and legitimate grievances cannot be heard, the obligation to disobey the law turns them from mere subjects to the law into proper citizens. This is the second achievement of disobedience: it raises people from takers of orders and commands into self-legislating polities, agents of democracy. At that point, the attempt to control bodies and minds and turn the multitude into a pliant body politic fails. This is what power fears more than the loss of some euros in the toll and metro stations.
A legitimation crisis results from much more than isolated acts of disobedience. It arises when the political system can no longer generate acceptance of its basic policies and principles and has to retort to open coercion, ideological manipulation or lies, in other words to anomie, to keep the population in line. The democratic dissident is precisely the person who acts morally as a member of a political campaign. She defies power on account of a basic conception of the good rather than for individual profit or benefit as the powerful and wealthy have consistently done. When the multitude becomes the agent of morally disobedient action against unjust law, that law decays and passes away – occasionally alongside the government that instituted it. This is authentic morality and democracy in action against the anomie of power.
Costas Douzinas is Professor of Law – Director of the Birkbeck Institute for the Humanities, University of London.