DISCUSSION Penalizing Public Disobedience* Kimberley Brownlee I In a recent article, David Lefkowitz argues that members of liberal democracies have a moral right to engage in acts of suitably constrained civil disobedience, which he calls public disobedience. 1 An example of public disobedience might be antiwar protesters holding a sit-in in a federal building to communicate their objections to a government military operation. 2 The claim constitutive of the moral right to engage in such public disobedience, Lefkowitz says, is a claim against punishment by the state. It is a claim against stigmatization and censure through hard treat- * I thank David Lefkowitz, Joseph Raz, and John Tasioulas for valuable discussions on public disobedience. I thank David Miller, Alan Hamlin, Jeff McMahan, James Morauta, Jonathan Quong, and the editors and referees of Ethics for helpful comments on different versions of this essay. Constrained by space, I have restricted this discussion to a point of disagreement with David Lefkowitz. In a longer version of this essay, I support various aspects of Lefkowitz s account of public disobedience, since he shows that the right to public disobedience is an important manifestation of persons political participation rights even in liberal regimes. Lefkowitz s arguments concerning both the conditions for effective exercise of rights and the need to reduce the impact that luck has upon meaningful political participation are compelling and well worth developing. A working version of my longer discussion, Rights, Civil Disobedience, and Punishment, is archived at http://www.socialsciences.manchester.ac.uk/disciplines/politics/researchgroups/mancept/working papers/. 1. David Lefkowitz, On a Moral Right to Civil Disobedience, Ethics 117 (2007): 202 33. Lefkowitz defines civil disobedience as the deliberate disobedience of one or more laws of a state undertaken for the purpose of advocating a change to that state s laws or policies. He defines suitably constrained civil disobedience (or public disobedience) as noncoercive and communicative disobedience undertaken by persons willing to accept the legal consequences of their conduct, specifically, penalization (215). Lefkowitz challenges Joseph Raz s claim that members of liberal regimes have no such right to engage in civil disobedience. Compare Joseph Raz, The Authority of Law: Essays on Law and Morality (Oxford: Clarendon, 1979), 273. 2. Compare Lynne Williams, Restraining Dissent Is Harmful, Bangor Daily News, September 10, 2004. Ethics 118 ( July 2008): 711 716 2008 by The University of Chicago. All rights reserved. 0014-1704/2008/11804-0006$10.00 711
712 Ethics July 2008 ment. It is not, however, a claim against other forms of coercive state interference. Drawing upon Joel Feinberg s arguments for the expressive element of punishment, Lefkowitz argues that, although the state may not punish public disobedients, it is at liberty to penalize them for their conduct through heavy fines and even temporary incarceration. 3 Such authoritative deprivations are permissible on certain grounds, he says, when they lack the symbolic condemnatory significance that characterizes punishment. Lefkowitz offers both instrumental grounds and symbolic grounds for his claim that severe penalization does not infringe the moral right to public disobedience. He argues that granting the state the liberty to penalize public disobedience contributes to the stability of the state by both better enabling the state to facilitate morally necessary collective action and reducing the likelihood that people will undertake public disobedience unless they believe that a law or policy is significantly unjust (219). In brief, the justification for a fine or limitation on liberty rests primarily on considerations of deterrence, i.e., on an instrumental calculation of the effect that penalizing, or not penalizing, a public disobedient will have on the stability and effectiveness of the legal order (223 n. 41). 4 Concerning symbolism, he argues that the state should be at liberty to penalize public disobedients because their acceptance of harsh penalties allows them symbolically to affirm citizens collective authority to settle reasonable disagreements about morally necessary collective action schemes (220). Paying heavy fines allows public disobedients symbolically to recognize the costs they impose on others when they adopt this mode of political participation. And, accepting temporary incarceration allows public disobedients to show that they do not intend to usurp the authority of the state but, rather, to act ( just) within the boundaries of political debate (222). I support Lefkowitz s efforts to defend a moral right to public disobedience in liberal regimes but disagree with his account of penalization. Although the instrumental and symbolic grounds he identifies 3. Joel Feinberg distinguishes penalization from punishment on the grounds that, although both are authoritative deprivations for failures, punishment alone involves the communication of condemnation through hard treatment. Joel Feinberg, The Expressive Function of Punishment, in A Reader on Punishment, ed. Antony Duff and David Garland (Oxford: Oxford University Press, 1994), 73 74. 4. Deterring all but the most serious dissenters might not contribute to the stability of the state. First, the most serious dissenters are not necessarily the most justified in their commitments. Second, John Rawls suggests that ( justified) civil disobedience can serve to inhibit departures from justice and to correct departures when they occur; thus, it can act as a stabilizing force in society. John Rawls, A Theory of Justice (Cambridge, MA: Harvard University Press, 1971), 383.
Brownlee Penalizing Public Disobedience 713 may offer some defense for penalizing public disobedients, they do not show that public disobedients have no defeasible normative claim against being penalized. In what follows, I argue that, if there is a moral right to public disobedience, it includes a claim against penalization by the state. II According to Lefkowitz, public disobedience, as a form of political participation, offers one of two ways to satisfy the demands of legal obligation in a liberal democracy because both adherence to the law and public disobedience, and only these two options, demonstrate respect for other citizens as persons who have equal authority to determine what the law ought to be. On his view, the right to public disobedience derives from the right to political participation, since the best conception of political participation rights is one that reduces as much as possible the impact that luck has upon the popularity of a view. 5 Respect for agents moral right to political participation requires that potential barriers to their effective exercise of this right be diminished as much as possible, consistent with the state s ability to achieve those ends that justify its existence and authority. Thus, the right to public disobedience gives citizens a claim against state punishment because condemning their public disobedience amounts to denying their standing as persons with a moral claim to contribute to the resolution of disputes over collective decisions. Given Lefkowitz s reasoning, it is surprising that he maintains that this right gives citizens no claim against the state interfering either to prevent their public disobedience or to enforce against them the laws they violate and to penalize them for violating those laws (217). One thing to notice is that Lefkowitz s conception of the right to public disobedience diverges from the standard liberal conception of a right of conduct. Typically, a right of conduct is conceived of in terms of a certain sphere of liberty or autonomy with which interference by others is restricted. In other words, a right of conduct provides defeasible normative protection against all forms of coercive interference with that conduct, not just protection against particular forms of interference, 5. Lefkowitz states that oftentimes those who find themselves in the minority when... a vote occurs may justifiably complain that, had there been further time for debate and deliberation, or had they enjoyed greater resources for the dissemination of their arguments, their own (reasonable) views might have won majority support. In recognition of this fact, the moral right to political participation should be understood to give rise to two more specific moral rights one a right to participate in the decision process itself, say by casting a vote in a majority rule procedure, and one a right to continue to contest the decision reached by such a process after the fact by a variety of means, including suitably constrained civil disobedience (213).
714 Ethics July 2008 such as punishment. The reason for this is that the parameters of the protection that a right of conduct provides are shaped by the nature of that conduct, not by the nature of any proposed interference, such as penalization. But let us accept Lefkowitz s characterization of the right to public disobedience as a claim against only certain forms of interference, and let us then test the suggestion that this right includes no claim against penalization. Our test is to consider whether the liberal-democratic state that penalizes someone for public disobedience properly owes her some apology for this treatment (on the grounds that the treatment infringes her rights). There are several rights-related reasons to think that such an apology by the state would be appropriate even when the imposition of penalization is at some level defensible. First, Lefkowitz s claim that public disobedients have no right against penalization conflicts with his contractualist account of what is required to respect persons as autonomous rational agents, an account upon which he bases his defense of both the liberal-democratic state s political legitimacy and the right to public disobedience. In brief, Lefkowitz argues that it is the noninstrumental value of individual autonomy and the protection of persons good and bad choices that that value demands, that make it impermissible for the state to condemn (to punish) public disobedience. But, he fails to explain why, on his view, the noninstrumental value of individual autonomy does not also make it impermissible, other things being equal, for the state to seek to prevent public disobedience and to penalize its practitioners. One reason that such interference is impermissible on autonomyrelated grounds is that it disregards both the conscientious nature of public disobedients conduct and public disobedients status as equal, autonomous members of the community. When, for example, a judge orders a long-time anti-fur-trade activist, who blocked a department store entrance, to stay away from animal rights protests so that she and others won t be back doing the same things again, he gives no weight to the conscientiousness of her convictions or the merits of her position or the constrained, noncoercive nature of her chosen conduct. He simply issues an order to deter undesired behavior. 6 And, when a judge penalizes a public disobedient primarily to deter either her or other people from engaging in undesired behavior, he treats her merely as a means to achieve some future good. Unless further arguments are offered, 6. Will Potter, The New Backlash: From the Streets to the Courthouse, Activists Find Themselves under Attack, Texas Observer 93, no. 17 (September 14, 2001).
Brownlee Penalizing Public Disobedience 715 such treatment ignores that a person has certain rights as an autonomous agent that proscribe her being treated that way. 7 This autonomy-related objection also applies to some of the particular penalties that Lefkowitz endorses, such as temporary incarceration, which is by its nature at odds with respect for individual autonomy. Lefkowitz compares the penalization of public disobedients through incarceration with the quarantining of potential disease carriers to demonstrate that there is no necessary connection between confinement by the state and the state s communication of disapproval or resentment to those confined. However, the issue Lefkowitz overlooks is whether the unpleasantness of the burden imposed is an essential and intended feature of what is done to the detained person and whether the reasons for imposing the unpleasantness are at odds with a respect for individual rights. Incarceration as penalization cannot be compared to quarantine because, whereas the deprivation imposed in quarantine is an unintended and regrettable side effect of isolating persons as potential disease carriers, the deprivation imposed on public disobedients as penalization is an essential and intended part of what is done to them. The incarceration is meant to be burdensome on public disobedients so that it deters either them or others from engaging in excessive or frivolous disobedience. And this disregards their rights as full members of the community to contribute to the resolution of collective disputes through forms of political participation that include public disobedience. Second, related to the autonomy objection is an objection concerning the conditions for effective exercise of the right to political participation. Lefkowitz s willingness to have the state penalize public disobedients through means that are sufficient to impose a genuine sacrifice upon them (220) conflicts with his claim that it is important ceteris paribus to reduce as much as possible the barriers to effective political participation. Since penalization, and in particular penalization sufficient to impose a genuine sacrifice, is likely to dissuade many people from undertaking public disobedience (including many who are serious about their convictions), the use of penalization is a barrier to citizens effective exercise of their right to political participation, including the right to public disobedience. Third, Lefkowitz s defense of the state s liberty to prevent people from publicly disobeying and to penalize them for publicly disobeying would be more understandable if public disobedience were, on his view, a deviant form of political engagement beyond what can be tolerated in a liberal democracy. But, for Lefkowitz, public disobedience is not 7. Compare J. G. Murphy, Marxism and Retribution, in Duff and Garland, A Reader on Punishment, 44. See also Kimberley Brownlee, The Communicative Aspects of Civil Disobedience and Lawful Punishment, Criminal Law and Philosophy 1 (2007): 179 92.
716 Ethics July 2008 beyond what can be tolerated. Rather, it offers one of two ways to satisfy the demands of legal obligation because it respects other citizens as persons who have equal authority to determine what the law ought to be. And this status of public disobedience as a legitimate form of political engagement considerably weakens the symbolic grounds for penalization. Since suitably constrained civil disobedience respects the equal authority of all to determine what the law ought to be, there can be, on Lefkowitz s view, no real costs of the relevant kind for disobedients symbolically to acknowledge. One might respond on Lefkowitz s behalf that, since public disobedience can encourage frivolous or opportunistic disobedience in the absence of penalization, public disobedients should accept certain significant penalties as a means of restoring the level of deterrence that their own actions have undermined. Since they are responsible for a decline in the deterrence of frivolous disobedience, it seems fair, so the argument goes, to impose the burden of repair on them. 8 This response fails because burdening conscientious actors on such grounds uses them merely to deter other types of conduct, which, unlike their own conduct, do not respect the authority of all citizens to contribute to collective decision making. Penalizing public disobedients in order to restore deterrence levels may be a necessary evil that the state must impose in order to avoid having to prohibit and to punish all civil disobedience, but we should not suppose, as Lefkowitz does, that it is anything other than a necessary evil that fails to respect public disobedients as autonomous persons who contribute to collective decision making in legitimate ways. III For these reasons, it would be appropriate for a state to say to the public disobedients whom it fines and whom it incarcerates, we appreciate the value of what you do, and we re sorry that we have to penalize you so severely for your efforts, but this is the necessary price of allowing any illegal protest to occur. Since such an apology is reasonable on autonomy-related grounds, we may conclude that penalization does interfere with the right to public disobedience. Such interference sometimes may be justified and thereby override citizens claims not to be interfered with in their efforts to participate through public disobedience. But that does not alter the fact that, if there is a moral right to public disobedience in a liberal democracy, it includes a claim against both forcible prevention and penalization by the state. 8. I thank Jeff McMahan for outlining this response.