Civil Disobedience

The civil disobedience is the refusal to subject itself to a Loi, a payment, an organization or a capacity considered to be iniquitous by those which dispute it. The term was created by American Henry David Thoreau in his test civil Disobedience , published in 1849, following its refusal to pay a tax intended to finance the war against the Mexico.

In Europe, even if the recourse to the concept of civil disobedience were long in being formulated, the idea of resistance to an iniquitous or unjust law existed well before the 19th century. Today, the concept extended to many people in particular by the very media actions of the altermondialists or those from the movements anti-pub, some seeing in these actions only the degradation of goods, others seeing a salutary act of civil disobedience there, aiming at making modify the policy of the authorities.

Definition of civil disobedience

The doctrines are not unanimous on the definition and even on the recognition of the existence of civil disobedience. John Rawls and J. Habermas has each one a definition of civil disobedience.

According to Rawls: “Civil disobedience can be defined like an act public, Non-violent, decided in conscience, but political, opposite with the law and generally achieved to bring a change in the Loi or in the policy of the Gouvernement. While thus acting, one addresses oneself within the meaning of the Justice of the majority of the community and one declares that, according to an opinion maturely considered, the principles of social co-operation between legal beings are not currently respected. ”

For Habermas: “Civil disobedience includes illegal acts, generally due to their collective authors, definite at the same time by their public character and symbolic system and the fact of having principles, acts which initially comprise means of protest Non-violent S and which invite with the capacity to reason and within the meaning of the Justice of the Peuple. ”

Mr. J. Falcon Y Tella has, starting from these two definitions, highlighted several features which make it possible to qualify a fact like concerning civil disobedience: “Civil disobedience is analyzed like a conscious and intentional infringement: it results in a public attitude and falls under a collective movement; it uses generally peaceful means; its protagonists assume the risk of the sanctions to which them behavior exposes them; it continues innovative ends and called upon ethical principles. ”

Six elements are thus characteristic of an act of civil disobedience:

A conscious and intentional infringement

1. The act of disobedience must be a conscious and intentional infringement, and must thus violate a legal provision positive. One will notice here that the infringement can relate to the directly disputed standard, in this case one speaks about direct disobedience; it was for example the case of the civil disobedience campaigns launched by Martin Luther King which aimed at making occupy by the blacks the spaces legally reserved for the white. But the violated standard can not be that disputed, one speaks then about indirect civil disobedience, it is the case for example sit-ins, which do not aim of course at disputing the highway code.

Although it is not possible to note the existence of an infringement a priori (it is the judge which determines the existence of an infringement), it is considered that an act is constitutive of a civil act of disobedience when its authors take the risk to make an act which is, with the eyes of the Public opinion and with those of the authorities, generally held like an infringement.

Concerning this question, it is interesting to point out the experiment carried out by Stanley Milgram.

A public act

2. The act of disobedience results in a public attitude, which differentiates it from criminal disobedience the latter, thriving only in clandestinity (sometimes with a claim).

In civil disobedience, publicity aims drawing aside any suspicion on the morality of the act, at conferring to him, moreover, a value symbolic system as well as the greatest possible audience so that the act has the greatest repercussion to modify the feeling of the public opinion. The act aims the greatest possible mediatization thus and can return in a strategy of provocation and Agitprop.

Certain authors go beyond. Faithful to the line of Gandhi, they see in publicity a requirement which wants that one communicates in advance with the competent authorities the future actions of disobedience.

A movement with collective vocation

3. The act of disobedience falls under a collective movement. It is the act of a group which is presented in the form of an acting minority, and results in the joint action of this one, thus Hannah Arendt raises that “far from proceeding of the subjective philosophy of some eccentric individuals civil disobedience results from the co-operation deliberated on the members on the group precisely drawing their force from their capacity to work jointly. ” Disobedience is thus by collective nature. However nothing nevertheless the moral start of an individual does not end up mobilizing a more broad current which could then be qualified of civil disobedience.

A peaceful action

4. Disobeying generally uses of peaceful means. Civil disobedience aims at calling with the public debates and, with this intention, it calls some with the deadened conscience of the majority rather than to the violent action. It is one of the features which distinguishes it from the revolution, which to arrive at its ends can potentially invite some with the force. Moreover the opposition to the law which is inherent in civil disobedience makes in a paradoxical fidelity with a law considered higher, it thus does not have there in the spirit of the civil disobedience of violence. This one being rather the fact of the State, the only one which has a “legitimate violence” according to max Weber, this violence being able to be physical but also psychic, even economic.

A goal: modification of the rule

5. Civil disobedience continues innovative ends. It aims at the abrogation or at least the modification of the disputed standard.

Higher principles

6. Civil disobedience calls upon “principles higher” than the disputed act, it is undoubtedly the most important feature of civil disobedience since it is him which gives him a certain legitimacy, these principles considered higher can be a monk thus members of the clergy often were of the participants or the leaders in actions of civil disobedience. In the United States for example, the brothers Berrigan are priests who were stopped dozen time for acts of civil disobedience in protests anti-war.

The called upon higher principles can also be constitutional or supra constitutional. Thus French writers and authors, in their text calling with civil disobedience in 1997 against a bill of Jean-Louis Debré, which obliged in particular any person lodging a foreigner in visit deprived in France to declare with the town hall its departure, referred to public freedoms and the respect for human dignity. By appealing this, disobeying them reveal that there exists according to them a possibility of being understood by controlling. It was besides the case against the Debré bill, because following the debate which took place, and in front of the mobilization of the public opinion, the government of the time had of another choice to only give up the project.

One realizes that by this feature, civil disobedience, far from weakening the institutions, can on the contrary reinforce them by causing a clearer comprehension of their ideals founders and while making more take part the public opinion in the normative process.

The legitimacy of civil disobedience: the French case

It is by bringing it back to the legal sphere and not to its moral dimension, however accepted generally well, that the justification of civil disobedience is the most of interest. But it is as there as it is discussed. Can one speak about a “right” to civil disobedience?

Civil disobedience can be regarded as a nonjurisdictional guarantee of public freedoms, guarantee exerted by controlled themselves. She is not explicitly recognized juridically in the hierarchy of the French standards. However article 2 of the Déclaration of the Human rights and the Citizen lays out that:

The goal of any political association is the conservation of the natural and imprescriptible rights of the man. These rights are freedom, the property, safety and resistance to oppression.
The “mountain” constitution of 1793 will go even until setting up in its article 33,34 and 35 a true right to the insurrection: Article 35

When the government violates the rights of the people, the insurrection is, for the people and each portion of the people, more crowned rights and most essential of the duties.

The Preamble to the Constitution of 1958 is very short but this one returns to two fundamental texts in our legal history: the Declaration of the Human rights and the Citizen of 1789, and the Preamble to the Constitution of 1946.

Does the value of the declaration of the Human rights and the Citizen of 1789 was discussed for a long time, act of a simple declaration of intent or a standard of the substantive law? The two theses clashed about the legal authenticity of this preamble and the texts to which it returns. One supported that it could be only moral and philosophical (an optional guide for the State), while the other defended its normative and legal character (an obligation of constitutional value).

The Constitutional council French solved the question in its decision of July 16th, 1971, relating to the right of association: it is indeed a normative text of the highest value. Thereafter in the decision of the Constitutional council of December 27th, 1974 relating to the finance law for 1974, the Constitutional council referred for the first time at the Declaration of the Human rights and the Citizen of 1789. Then by a decision of January 16th, 1982 on the law of nationalization, the Constitutional council indirectly recognized a constitutional value with resistance to oppression: indeed it reaffirmed the constitutional value of the property right by stressing that the Declaration of 1789 had it “ put at the same row as freedom, safety and resistance to oppression ”.

It is necessary here to wonder which are the bonds between resistance to oppression and civil disobedience. Resistance to oppression goes very far, the text quoted in fact a right, but as “more crowned duties”, which implies as it is not a question only of one means of action but of an aim in itself, and that which calls upon it must act immediately and very extremely. That exceeds the civil disobedience, which remains a mode of action among others, like the demonstration, the recourse to the exemplary lawsuit, the armed struggle, etc

However the assertion of this right remains somewhat theoretical and is directly used by the magistrates during judgment of nobody having made an act of disobedience. Another standard of the French Droit interpreted a contrario (article of the penal code) grants a certain protection to the people making of the acts of rebellion with regard to public civils servant who would act without title (for example in the case of a searching without mandate). In addition, when a civil servant receives an obviously illegal order, it belongs to him to oppose a refusal to obey to it (article of the penal code).

Resistance to oppression is thus between the assertion of a right of resistance to somewhat theoretical oppression and the recognition of a right to disobedience very limited. The question of the legality of civil disobedience is thus not clearly marked, it is in theory illegal but this principle does not prevent certain demonstrations of administrative tolerance or legal leniency (the judge has many means of right to discharge the defendant or to moderate the sorrow: state of necessity, self-defense, error of right, extenuating circumstances, restrictive interpretation of the legal provision, etc)

The problem of the legality of civil disobedience comes owing to the fact that in spite of a voluntary transgression of the legal provision, this one is carried out paradoxically in a fidelity with the remainder of the legal device (including for example with the sanction envisaged by the disputed law), like to a higher law. Civil disobedience can thus be analyzed like a “political offense” and consequently disobeying it civil will profit from the mode of protection which can be set up for this type of offense.

Formation of the concept of civil disobedience

Antiquity at the time modern

A form of civil disobedience existed already in the myth of Antigone, which faces the laws of the city to give to his/her brother a decent burial, and in Lysistrata d' Aristophane, where the women decide to refuse with their husbands as long as they will not have put a term at the war.

The Roman history preserved the memory of demonstrations of women, into 195 before J. - C., against vestimentary restrictions, like into 42 before J. - C. against an abusive tax, which shows that already the idea of resistance to a law considered to be iniquitous was already present.

On its side, the Christian religion with the Middle Ages distinguished, on the basis of theory of the two swords formulated in Ve century by the pope Gélase, the civil sphere and the religious sphere. Referring to the standard of the Gospel which wants that one “gives to César what belongs to César and with God what is with God”, the Church then formulated in a final way the duty of obedience while being based on the doctrines paulinienne according to which there is of other to be able only that which comes from God. It establishes moreover which the armed wing of God is more powerful than that of the men, than they are kings or emperors, because they are what they are by the only grace of God. However Saint-Thomas d' Aquin in the Summa Theologica, will open a beginning of breach with blind obedience with the law by accepting that one disobeys unjust laws (rather definite like acts of violence that laws) and in so far as them known as laws are contrary with the divine right and that disobedience to the law does not produce evils higher than its achievement. With XVIe of the thinkers like Etienne of Boétie or the Monarchomaque S theorized the refusal to obey the tyrant.

Henry David Thoreau

The movement of “independence of the colonies” with respect to the metropolitan absolutism was at the origin of the appearance of new legal orders. These new systems were preceded by a disobedience in fact which constitutes the base of the right to self-determination of the people.

This movement of independence allowed the theorization of the civil disobedience which was installation by Henry David Thoreau in his test “Resistance to Civil Government” published in 1849 following its refusal to pay the share of the tax intended to finance the war against Mexico for the annexation of Texas, made for which Thoreau was constrained to spend one night in prison. Thoreau was also opposed to the slave policy States of the South, with the unjust treatment inflicted with the population aboriginal Indian. Its editor remade to publish the work on a purely posthumous basis with a new name “Civil Desobedience”, inspired by the correspondence of the author where indeed the mot. Its work appeared was translated by civil disobedience although it would have been undoubtedly more faithful to translate the term by civic disobedience, however the use of civil the disobedience term became current thereafter.

Thoreau, took the defense of the minorities, he wrote that “a man who would be right against his fellow-citizens constitutes already a majority of one” and, encouraging this man with the action, he added that “a minority does not have any capacity as long as it agrees to the will majority: in this case, it is not even a minority. But, when she is opposed of all her forces, one cannot any more stop it. ” Civil disobedience would be thus a tool against the “dictatorship of the majority” which prevails in democracy according to Tocqueville, a famous contemporary of Thoreau.

Mohandas Gandhi

The XXe century was marked by two great figures of civil disobedience, Mohandas Gandhi and Martin Luther King.

Thus on September 11th, 1906, Gandhi brought together 3000 people with the Imperial Theater of Johannesburg and obtains, as in a kind again Serment of Jeu de Paume of the French revolution, of the assembly thus joined together, the oath of disobedience. That will be worth to him in 1907 its first two stays in prison. It is during the second that it will discover the treaty of civil disobedience of Henry David Thoreau. Thereafter, Gandhi developed the idea of civil disobedience through the concept of Satyagraha (literally the way of the truth), which allowed him to carry out its nonviolent fight against the Apartheid in South Africa and to be opposed to the colonial policy the United Kingdom in India, then for the independence of India. March 17th, 1930, Gandhi launches a “Walk of salt”, towards the salt-water marshes of Jabalpur, distant of 300 km. The British government indeed holds the monopoly of the salt which brings back 15 franc million to him gold per annum, used for the maintenance of the colonial troops. Arrived on the spot on April 6th, 1930, with 8:30 of the morning, accompanied by a few thousands of sympathizers, it collects salt which will be sold with the biddings for the sum of 425 rupees, a considerable amount for the time. The 50.000 walkers defy the authorities by collecting salt on the beach, then invest the salt deposits of the colonial government. Throughout walk, Gandhi diffused a list of religious rules of the behavior Non-violent which are scrupulously complied with. The demonstrators are struck or stopped. After several weeks, the government finally yields.

Gandhi proposed the following rules in its fight Non-violente:

  1. a resistant civilian should not have anger.
  2. It will support the anger of the opponent, like his attacks without answering. He will not subject himself, by fear of a punishment, with an order emitted by anger.
  3. If a person of authority seeks to stop a resistant civilian, it will be voluntarily subjected to the arrest, and it will not resist the confiscation of its goods.
  4. If a resistant civilian has under his responsibility for the goods belonging to others, it will refuse to give them, even with the danger of its life. But he will not answer violence.

After the Nazism: Nuremberg and obligatory disobedience

After the Second world war, at the time of the lawsuit of the former Nazis to Nuremberg, the question: “up to which point the principle of legality has to prevail on that of justice? ”, was in the middle of the debates. The former Nazis said simple executants obliged to act vis-a-vis the military rigor and with brutality Nazi and to punish any form of dissidence. However in its work, “Of the ordinary men, the 101eme battalion of reserve of the German police force and the final solution in Poland”, Christopher Browning shows that ordinary men, neither especially Nazis, nor even obsessionnellement anti-semites, acted with a fatal zeal for éradiquer the Jews of Poland. The historian raises a particularly interesting passage: " after the talk of the mission which was entrusted to the battalion, namely the execution by the men of the battalion of the women, children and Jewish old men of a Polish hamlet cash 1800 Jews, the commander of the battalion nauseated by the order which had been given to him proposes with those which do not feel the force it not to take part in the mission; only 12 men out of the 500 of the battalion refused to achieve the mission." Browning puts in the middle of these criminal behaviors certain factors also highlighted by Milgram: the conformism of group, the force of the social link, the division and the organization of “work” and especially the slow dehumanization of the Jews.

Thereafter, to Nuremberg, the judges did not restrict themselves to recognize the right of the person to disobey the iniquitous standards, they also condemned those which had obeyed to them, without paying attention to the principle of obedience due to the laws. They thus transformed the right of disobedience into a duty whose non-accomplishment deserves the corresponding punishment.

Martin Luther King

Civil disobedience was adopted thereafter by Martin Luther King, the leader of the movement for the Civic right of the blacks in the United States. He was the leader of the boycott of the buses of Montgomery (Alabama) in 1955, which starts when Rosa Parks refuses to yield her place to a white colored person. King is stopped during this program, which ends in a decision of the illegal Supreme court of the United States informant the segregation in the buses, restaurants, schools, and other public places.

Civil disobedience was also used by the pacifist militants who called into question the spirit and the reasons for the military intervention to Vietnam, they organized in particular sit-ins which paralyzed the center of the big cities.

César Chávez

Country trade unionist in California, it calls with the strike and the boycott to defend the social rights of the peasants and days laborer of 1965 with 1975.

Various cases and forms of civil disobedience today

The material forms of the asserted actions of civil disobedience are very diverse. One can distinguish in particular those primarily passive, those more offensive and, among those, those comprising destruction of assets materials . These last obey particular legal qualifications (destruction in meeting in the French case).

Examples in France

The concept of civil disobedience gains today new partisans in France. Thus can one quote the movement of the writers and authors against the bill Debré: the “proclamation of the delinquents of solidarity” writes on May 27th, 2003, in support for militants stopped to have helped of without-papers, was already signed by more than 12.000 people and 300 organizations. This proclamation is opposed thus to the application of article 21 of the ordinance of November 2nd, 1945 which lays out that: “Any person who (...) will have, by direct aid or indirect, facilitated or tempted to facilitate the entry, circulation or the irregular stay, from abroad in France or in above mentioned international space will be punished of a five years imprisonment and a fine of 30.000 €. ”

In the same way the mediatized lawsuits of Jose Bove for the disassembling of a store of transgenic fast-food or the pulling up of seedlings with the Faucheurs volunteers caused important dashes of solidarity and a starter of debate on the legitimacy of this type of practices, passing by destruction of assets materials.

Recently, of the biometric devices were destroyed in Gif-sur-Yvette (91) by a collective anti-biometrics () to denounce the generalized digitalization of social control, and the wills of the industrialists to accustom the children as of their more young age to the Biométrie. Three people are continued, they are in call of judgment (3mois with deferment, 10.000 euros of damages, 1500 euros of fines).

Many associations practice actions of disobedience like specific or permanent means: thus associations as Greenpeace fight against transport of waste Nucléaire S; the militants being connected on the railways, others as the Right Association with housing occupy in an illegal way of the empty residences to alert the opinion and to modify the policy of the government as regards housing, the Family planning shelters with known of all of the discrete practices in contradiction with the law, as the distribution of addresses of foreign centers IVG for the women having exceeded the time of legal abortion in France… Act Up-Paris aims at alerting the opinion. “Except the demonstrations, which are lodged with the police headquarter, the actions, in the majority of the cases, are illegal. To penetrate in a ministry, an office, in a college, to invest a public building are actions not tolerated by the law”, points out a member of Act Up.

Civil disobedience was used on several occasions by the peasants of the Larzac in their fight against the extension of the military camp between 1971 and 1981.

However the majority of these associations do not want to be regarded as disobeying civil of fear of being marked at the time of a lawsuit and to lose this one, which would be harmful with their images and for their future actions, and is likely it to see itself dissolved as a vulgar criminal conspiracy is not negligible. Disobedience is thus an effective weapon but to handle when one is really sure of his fact, because dangerous for those which use it and assert it.

Actions on a world level

The actions of peaceful resistance of the movement altermondialist at the time of his “against-tops”, or of the workshops of formation to civil disobedience are followed by the militants of this mobility (in order to learn from the non-violent illegal techniques and the attitudes to be held in the event of arrest) shows that civil disobedience is a “weapon” with whole share of the altermondialists.

The anarchistic preach civil disobedience like means of escaping the State, in the form of squat S policies, appropriations, actions…

Civic disobedience

In the book For civic disobedience , Jose Bove and Gilles Luneau prefer this term with the phonetic translation of English " disobedience civile". They define six criteria to be joined together jointly to characterize an act thus:
  1. it is a personal and responsible act: it is necessary to know the incurred risks and not to withdraw itself from the legal sanctions
  2. it is a not involved act: one disobeys a contrary law with the general interest, not by personal profit
  3. it is an act of collective resistance: one mobilizes in the optics of a broader collective project
  4. it is a nonviolent act: the purpose of one is to convert at the same time the opinion and the adversary, not to cause a repression or an armed answer; any attack with the goods cannot have that a dimension symbolic system
  5. it is a transparent act: one acts with face discovered
  6. it is an ultimate act: one disobeys after having exhausted the recourse of the dialog and the legal actions

Jean-Marie Muller, professor of philosophy, theorist of non-violence, author of the book Of civil , critical disobedience the use of the “civic” term. It reacts to a file of Evelyne Lord-Sailor in the review Politis devoted to the centenary of “civic disobedience” (n°916), and denounces the definition of the civil disobedience given by Evelyne Lord-Sailor. According to him, this definition has been “in total contradiction with all the actions carried out for one century and having had recourse to this name”. Civilian coming from Latin civilis in the direction opposed to criminalis for Jean-Marie Muller. According to him, disobedience is “civil” in the sense that it is not “criminal”, i.e. it respects the principles, the rules and the requirements of “civility”.

See too

Related articles

Bibliographical tools

  • Arendt, Hannah, Of the lie to violence , Pocket Presses, 1991.
  • Bové, Jose and Luneau, Gilles, For civic disobedience , the Discovery, Paris, 2004
  • (of) Boétie, Etienne, Speech of the voluntary constraint or Contr' a , Thousand and One Nights, Paris 1997.
  • Sandra Laugier, “the American model of civil disobedience, Thoreau at our days”, Multitudes n°24, 2006.
  • Sandra Laugier , “the radical democracy of Emerson”
  • Sandra Laugier, “Emerson, skepticism, education and the policy”
  • Thoreau, Henry David, civil Disobedience (French translation) , 1849.
  • Sandra Laugier, Another American political thought, the radical democracy of Emerson with Cavell , Editions Michel Houdiard, Paris 2004.

References

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