Civil disobedience

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Civil disobedience is the active, professed refusal of a citizen to obey certain laws, demands, orders or commands of a government. By some definitions[ specify ], civil disobedience has to be nonviolent to be called 'civil'. Hence, civil disobedience is sometimes equated with peaceful protests or nonviolent resistance. [1] [2]

Citizen is the status of a person recognized under the custom or law as being a legal member of a sovereign state or belonging to a nation. The idea of citizenship has been defined as the capacity of individuals to defend their rights in front of the governmental authority.

Law System of rules and guidelines, generally backed by governmental authority

Law is a system of rules that are created and enforced through social or governmental institutions to regulate behavior. It has been defined both as "the science of justice" and "the art of justice". Law regulates and ensures that individuals or a community adhere to the will of the state. State-enforced laws can be made by a collective legislature or by a single legislator, resulting in statutes, by the executive through decrees and regulations, or established by judges through precedent, normally in common law jurisdictions. Private individuals can create legally binding contracts, including arbitration agreements that may elect to accept alternative arbitration to the normal court process. The formation of laws themselves may be influenced by a constitution, written or tacit, and the rights encoded therein. The law shapes politics, economics, history and society in various ways and serves as a mediator of relations between people.

A government is the system or group of people governing an organized community, often a state.

Contents

Henry David Thoreau popularized the term in the US with his essay Civil Disobedience , although the concept itself has been practiced longer before. It has inspired Mahatma Gandhi in his protests for Indian independence against the British Raj; and Martin Luther King Jr.'s peaceful protests during the civil rights movement in the US. Although civil disobedience is considered to be an expression of contempt for law, King regarded civil disobedience to be a display and practice of reverence for law: "Any man who breaks a law that conscience tells him is unjust and willingly accepts the penalty by staying in jail to arouse the conscience of the community on the injustice of the law is at that moment expressing the very highest respect for the law." [3]

Henry David Thoreau American poet, essayist, naturalist, and abolitionist (1817–1862)

Henry David Thoreau was an American essayist, poet, and philosopher. A leading transcendentalist, Thoreau is best known for his book Walden, a reflection upon simple living in natural surroundings, and his essay "Civil Disobedience", an argument for disobedience to an unjust state.

<i>Civil Disobedience</i> (Thoreau) literary work

Resistance to Civil Government, called Civil Disobedience for short, is an essay by American transcendentalist Henry David Thoreau that was first published in 1849. In it, Thoreau argues that individuals should not permit governments to overrule or atrophy their consciences, and that they have a duty to avoid allowing such acquiescence to enable the government to make them the agents of injustice. Thoreau was motivated in part by his disgust with slavery and the Mexican–American War (1846–1848).

Mahatma Gandhi Pre-eminent leader of Indian nationalism during British-ruled India

Mohandas Karamchand Gandhi was an Indian lawyer, anti-colonial nationalist, and political ethicist, who employed nonviolent resistance to lead the successful campaign for India's independence from British Rule, and in turn inspire movements for civil rights and freedom across the world. The honorific Mahātmā, first applied to him in 1914 in South Africa, is now used throughout the world.

History

An early depiction of civil disobedience is in Sophocles' play Antigone , in which Antigone, one of the daughters of former King of Thebes, Oedipus, defies Creon, the current King of Thebes, who is trying to stop her from giving her brother like Polynices a proper burial. She gives a stirring speech in which she tells him that she must obey her conscience rather than human law. She is not at all afraid of the death he threatens her with (and eventually carries out), but she is afraid of how her conscience will smite her if she does not do this. [4]

Sophocles ancient Athenian tragic playwright

Sophocles is one of three ancient Greek tragedians whose plays have survived. His first plays were written later than or contemporary with those of Aeschylus, and earlier than or contemporary with those of Euripides. Sophocles wrote over 120 plays during the course of his life, but only seven have survived in a complete form: Ajax, Antigone, Women of Trachis, Oedipus Rex, Electra, Philoctetes and Oedipus at Colonus. For almost 50 years, Sophocles was the most celebrated playwright in the dramatic competitions of the city-state of Athens that took place during the religious festivals of the Lenaea and the Dionysia. He competed in 30 competitions, won 24, and was never judged lower than second place. Aeschylus won 13 competitions, and was sometimes defeated by Sophocles, while Euripides won four competitions.

<i>Antigone</i> (Sophocles play) ancient Greek tragedy by Sophocles

Antigone is a tragedy by Sophocles written in or before 441 BC.

Oedipus mythological king of Thebes

Oedipus was a mythical Greek king of Thebes. A tragic hero in Greek mythology, Oedipus accidentally fulfilled a prophecy that he would end up killing his father and marrying his mother, thereby bringing disaster to his city and family.

In the lead up to the Glorious Revolution in Britain, when the 1689 Bill of Rights was documented, the last Catholic monarch was deposed, and male and female joint-co-monarchs were elevated. The English Midland Enlightenment had developed a manner of voicing objection to a law viewed as illegitimate and then taking the consequences of the law. This was focused on the illegitimacy of laws claimed to be "divine" in origin, including the "divine rights of Kings" and the "divine rights of man", and the legitimacy of laws acknowledged to be made by human beings.[ citation needed ]

Glorious Revolution 17th Century British revolution

The Glorious Revolution, or Revolution of 1688, was the November 1688 deposition and subsequent replacement of James II and VII as ruler of England, Scotland and Ireland by his daughter Mary II and his Dutch nephew and Mary's husband, William III of Orange. The outcome of events in all three kingdoms and Europe, the Revolution was quick and relatively bloodless, though establishing the new regime took much longer and led to significant casualties. The term was first used by John Hampden in late 1689.

Midlands Enlightenment

The Midlands Enlightenment, also known as the West Midlands Enlightenment or the Birmingham Enlightenment, was a scientific, economic, political, cultural and legal manifestation of the Age of Enlightenment that developed in Birmingham and the wider English Midlands during the second half of the eighteenth century.

Following the Peterloo massacre of 1819, the poet Percy Shelley wrote the political poem The Mask of Anarchy later that year, that begins with the images of what he thought to be the unjust forms of authority of his time—and then imagines the stirrings of a new form of social action. According to Ashton Nichols, it is perhaps the first modern statement of the principle of nonviolent protest. [5] A version was taken up by the author Henry David Thoreau in his essay Civil Disobedience, and later by Gandhi in his doctrine of Satyagraha . [5] Gandhi's Satyagraha was partially influenced and inspired by Shelley's nonviolence in protest and political action. [6] In particular, it is known that Gandhi would often quote Shelley's Masque of Anarchy to vast audiences during the campaign for a free India. [5] [7]

Ashton Nichols is the current Walter E. Beach ’56 Distinguished Chair in Sustainable Studies and Professor of English Language and Literature at Dickinson College. His interests are in literature, contemporary ecocriticism, Romanticism, and nature writing. Nichols teaches courses in Romanticism, 19th century literature, literature and the environment, and nature writing. He is especially well-known for his study of James Joyce's literary concept of "epiphany" and his coinage of the phrase "urbanatural roosting," an idea which links urban with natural modes of existence and argues for ways of living more lightly on the earth, for inhabiting our planet the way birds do, by altering our environments without harming those same environments.

Satyagraha, or holding onto truth, or truth force, is a particular form of nonviolent resistance or civil resistance. It is not the same as passive resistance, and advocates resisting non-violently over using violence. Resisting non-violently is considered the summit of bravery. Someone who practices satyagraha is a satyagrahi.

Thoreau's 1849 essay Civil Disobedience , originally titled "Resistance to Civil Government", has had a wide influence on many later practitioners of civil disobedience. The driving idea behind the essay is that citizens are morally responsible for their support of aggressors, even when such support is required by law. In the essay, Thoreau explained his reasons for having refused to pay taxes as an act of protest against slavery and against the Mexican–American War. He writes,

Tax resistance refusal to pay a tax out of opposition to a government or policy, rather than opposition to tax in of itself

Tax resistance is the refusal to pay tax because of opposition to the government that is imposing the tax, or to government policy, or as opposition to taxation in itself. Tax resistance is a form of direct action and, if in violation of the tax regulations, also a form of civil disobedience.

Protest expression of objection

A protest is an expression of bearing witness on behalf of an express cause by words or actions with regard to particular events, policies or situations. Protests can take many different forms, from individual statements to mass demonstrations. Protesters may organize a protest as a way of publicly making their opinions heard in an attempt to influence public opinion or government policy, or they may undertake direct action in an attempt to directly enact desired changes themselves. Where protests are part of a systematic and peaceful nonviolent campaign to achieve a particular objective, and involve the use of pressure as well as persuasion, they go beyond mere protest and may be better described as cases of civil resistance or nonviolent resistance.

Slavery System under which people are treated as property to be bought and sold, and are forced to work

Slavery is any system in which principles of property law are applied to people, allowing individuals to own, buy and sell other individuals, as a de jure form of property. A slave is unable to withdraw unilaterally from such an arrangement and works without remuneration. Many scholars now use the term chattel slavery to refer to this specific sense of legalized, de jure slavery. In a broader sense, however, the word slavery may also refer to any situation in which an individual is de facto forced to work against their own will. Scholars also use the more generic terms such as unfree labour or forced labour to refer to such situations. However, and especially under slavery in broader senses of the word, slaves may have some rights and protections according to laws or customs.

If I devote myself to other pursuits and contemplations, I must first see, at least, that I do not pursue them sitting upon another man's shoulders. I must get off him first, that he may pursue his contemplations too. See what gross inconsistency is tolerated. I have heard some of my townsmen say, "I should like to have them order me out to help put down an insurrection of the slaves, or to march to Mexico;—see if I would go;" and yet these very men have each, directly by their allegiance, and so indirectly, at least, by their money, furnished a substitute.

By the 1850s, a range of minority groups in the United States: Blacks, Jews, Seventh Day Baptists, Catholics, anti-prohibitionists, racial egalitarians, and others—employed civil disobedience to combat a range of legal measures and public practices that to them promoted ethnic, religious, and racial discrimination. Pro Public and typically peaceful resistance to political power would remain an integral tactic in modern American minority rights politics. [8]

It later became an effective tool by various peoples who objected to British occupation, such as in the Egyptian Revolution of 1919. However, this was never used with native laws that were more oppressive than the British occupation[ specify ], leading to problems for these countries today. [9] Zaghloul Pasha, considered the mastermind behind this massive civil disobedience, was a native middle-class, Azhar graduate, political activist, judge, parliamentary and ex-cabinet minister whose leadership brought Christian and Muslim communities together as well as women into the massive protests. Along with his companions of Wafd Party, who started campaigning in 1914, they have achieved independence of Egypt and a first constitution in 1923.

Civil disobedience is one of the many ways people have rebelled against what they deem to be unfair laws. It has been used in many nonviolent resistance movements in India (Mahatma Gandhi's campaigns for independence from the British Empire), in Czechoslovakia's Velvet Revolution, in early stages of Bangladesh independence movement against Pakistani repression and in East Germany to oust their communist governments. [10] In South Africa in the fight against apartheid, in the American civil rights movement, in the Singing Revolution to bring independence to the Baltic countries from the Soviet Union, recently with the 2003 Rose Revolution in Georgia and the 2004 Orange Revolution [11] in Ukraine, among other various movements worldwide.

Etymology

Henry David Thoreau's classic essay Civil Disobedience inspired Martin Luther King and many other activists. Benjamin D. Maxham - Henry David Thoreau - Restored - greyscale - straightened.jpg
Henry David Thoreau's classic essay Civil Disobedience inspired Martin Luther King and many other activists.

Henry David Thoreau's 1849 essay "Resistance to Civil Government" was eventually renamed "Essay on Civil Disobedience". After his landmark lectures were published in 1866, the term began to appear in numerous sermons and lectures relating to slavery and the war in Mexico. [12] [13] [14] [15] Thus, by the time Thoreau's lectures were first published under the title "Civil Disobedience", in 1866, four years after his death, the term had achieved fairly widespread usage.

It has been argued that the term "civil disobedience" has always suffered from ambiguity and in modern times, become utterly debased. Marshall Cohen notes, "It has been used to describe everything from bringing a test-case in the federal courts to taking aim at a federal official. Indeed, for Vice President Spiro Agnew it has become a code-word describing the activities of muggers, arsonists, draft evaders, campaign hecklers, campus militants, anti-war demonstrators, juvenile delinquents and political assassins." [16]

LeGrande writes that

the formulation of a single all-encompassing definition of the term is extremely difficult, if not impossible. In reviewing the voluminous literature on the subject, the student of civil disobedience rapidly finds himself surrounded by a maze of semantical problems and grammatical niceties. Like Alice in Wonderland, he often finds that specific terminology has no more (or no less) meaning than the individual orator intends it to have.

He encourages a distinction between lawful protest demonstration, nonviolent civil disobedience, and violent civil disobedience. [17]

In a letter to P. K. Rao, dated September 10, 1935, Gandhi disputes that his idea of civil disobedience was derived from the writings of Thoreau: [18]

The statement that I had derived my idea of Civil Disobedience from the writings of Thoreau is wrong. The resistance to authority in South Africa was well advanced before I got the essay ... When I saw the title of Thoreau's great essay, I began to use his phrase to explain our struggle to the English readers. But I found that even "Civil Disobedience" failed to convey the full meaning of the struggle. I therefore adopted the phrase "Civil Resistance."

Theories

In seeking an active form of civil disobedience, one may choose to deliberately break certain laws, such as by forming a peaceful blockade or occupying a facility illegally, [19] though sometimes violence has been known to occur. Often there is an expectation to be attacked or even beaten by the authorities. Protesters often undergo training in advance on how to react to arrest or to attack.

Civil disobedience is usually defined as pertaining to a citizen's relation to the state and its laws, as distinguished from a constitutional impasse, in which two public agencies, especially two equally sovereign branches of government, conflict. For instance, if the head of government of a country were to refuse to enforce a decision of that country's highest court, it would not be civil disobedience, since the head of government would be acting in her or his capacity as public official rather than private citizen. [20]

However, this definition is disputed by Thoreau's political philosophy pitching the conscience vs. the collective. The individual is the final judge of right and wrong. More than this, since only individuals act, only individuals can act unjustly. When the government knocks on the door, it is an individual in the form of a postman or tax collector whose hand hits the wood. Before Thoreau's imprisonment, when a confused taxman had wondered aloud about how to handle his refusal to pay, Thoreau had advised, "Resign." If a man chose to be an agent of injustice, then Thoreau insisted on confronting him with the fact that he was making a choice. But if government is "the voice of the people," as it is often called, shouldn't that voice be heeded? Thoreau admits that government may express the will of the majority but it may also express nothing more than the will of elite politicians. Even a good form of government is "liable to be abused and perverted before the people can act through it." Moreover, even if a government did express the voice of the people, this fact would not compel the obedience of individuals who disagree with what is being said. The majority may be powerful but it is not necessarily right. What, then, is the proper relationship between the individual and the government? [21]

Ronald Dworkin held that there are three types of civil disobedience:

Some theories of civil disobedience hold that civil disobedience is only justified against governmental entities. Brownlee argues that disobedience in opposition to the decisions of non-governmental agencies such as trade unions, banks, and private universities can be justified if it reflects "a larger challenge to the legal system that permits those decisions to be taken". The same principle, she argues, applies to breaches of law in protest against international organizations and foreign governments. [23]

It is usually recognized that lawbreaking, if it is not done publicly, at least must be publicly announced to constitute civil disobedience. But Stephen Eilmann argues that if it is necessary to disobey rules that conflict with morality, we might ask why disobedience should take the form of public civil disobedience rather than simply covert lawbreaking. If a lawyer wishes to help a client overcome legal obstacles to securing her or his natural rights, he might, for instance, find that assisting in fabricating evidence or committing perjury is more effective than open disobedience. This assumes that common morality does not have a prohibition on deceit in such situations. [24] The Fully Informed Jury Association's publication "A Primer for Prospective Jurors" notes, "Think of the dilemma faced by German citizens when Hitler's secret police demanded to know if they were hiding a Jew in their house." [25] By this definition, civil disobedience could be traced back to the Book of Exodus, where Shiphrah and Puah refused a direct order of Pharaoh but misrepresented how they did it. (Exodus 1: 15-19) [26]

Violent vs. non-violent

There have been debates as to whether civil disobedience must necessarily be non-violent. Black's Law Dictionary includes non-violence in its definition of civil disobedience. Christian Bay's encyclopedia article states that civil disobedience requires "carefully chosen and legitimate means," but holds that they do not have to be non-violent. [27] It has been argued that, while both civil disobedience and civil rebellion are justified by appeal to constitutional defects, rebellion is much more destructive; therefore, the defects justifying rebellion must be much more serious than those justifying disobedience, and if one cannot justify civil rebellion, then one cannot justify a civil disobedient's use of force and violence and refusal to submit to arrest. Civil disobedients' refraining from violence is also said to help preserve society's tolerance of civil disobedience. [28]

The philosopher H. J. McCloskey argues that "if violent, intimidatory, coercive disobedience is more effective, it is, other things being equal, more justified than less effective, nonviolent disobedience." [29] In his best-selling Disobedience and Democracy: Nine Fallacies on Law and Order, [30] Howard Zinn takes a similar position; Zinn states that while the goals of civil disobedience are generally non-violent,

in the inevitable tension accompanying the transition from a violent world to a non-violent one, the choice of means will almost never be pure, and will involve such complexities that the simple distinction between violence and non-violence does not suffice as a guide ... the very acts with which we seek to do good cannot escape the imperfections of the world we are trying to change. [31]

Zinn rejects any "easy and righteous dismissal of violence", noting that Thoreau, the popularizer of the term civil disobedience, approved of the armed insurrection of John Brown. He also notes that some major civil disobedience campaigns which have been classified as non-violent, such as the Birmingham campaign, have actually included elements of violence. [32] [33]

Revolutionary vs. non-revolutionary

Non-revolutionary civil disobedience is a simple disobedience of laws on the grounds that they are judged "wrong" by an individual conscience, or as part of an effort to render certain laws ineffective, to cause their repeal, or to exert pressure to get one's political wishes on some other issue. Revolutionary civil disobedience is more of an active attempt to overthrow a government (or to change cultural traditions, social customs, religious beliefs, etc...revolution doesn't have to be political, i.e. "cultural revolution", it simply implies sweeping and widespread change to a section of the social fabric). [34] Gandhi's acts have been described as revolutionary civil disobedience. [20] It has been claimed that the Hungarians under Ferenc Deák directed revolutionary civil disobedience against the Austrian government. [35] Thoreau also wrote of civil disobedience accomplishing "peaceable revolution." [36] Howard Zinn, Harvey Wheeler, and others have identified the right espoused in the US Declaration of Independence to "alter or abolish" an unjust government to be a principle of civil disobedience. [33] [37]

Collective vs. solitary

The earliest recorded incidents of collective civil disobedience took place during the Roman Empire [ citation needed ]. Unarmed Jews gathered in the streets to prevent the installation of pagan images in the Temple in Jerusalem.[ citation needed ][ original research? ] In modern times, some activists who commit civil disobedience as a group collectively refuse to sign bail until certain demands are met, such as favourable bail conditions, or the release of all the activists. This is a form of jail solidarity. [38] [ page needed ] There have also been many instances of solitary civil disobedience, such as that committed by Thoreau, but these sometimes go unnoticed. Thoreau, at the time of his arrest, was not yet a well-known author, and his arrest was not covered in any newspapers in the days, weeks and months after it happened. The tax collector who arrested him rose to higher political office, and Thoreau's essay was not published until after the end of the Mexican War. [39]

Techniques

Choice of specific act

Civil disobedients have chosen a variety of different illegal acts. Hugo A. Bedau writes,

There is a whole class of acts, undertaken in the name of civil disobedience, which, even if they were widely practiced, would in themselves constitute hardly more than a nuisance (e.g. trespassing at a nuclear-missile installation) ... Such acts are often just a harassment and, at least to the bystander, somewhat inane ... The remoteness of the connection between the disobedient act and the objectionable law lays such acts open to the charge of ineffectiveness and absurdity.

Bedau also notes, though, that the very harmlessness of such entirely symbolic illegal protests toward public policy goals may serve a propaganda purpose. [35] Some civil disobedients, such as the proprietors of illegal medical cannabis dispensaries and Voice in the Wilderness, which brought medicine to Iraq without the permission of the US government, directly achieve a desired social goal (such as the provision of medication to the sick) while openly breaking the law. Julia Butterfly Hill lived in Luna, a 180-foot (55 m)-tall, 600-year-old California Redwood tree for 738 days, successfully preventing it from being cut down.

In cases where the criminalized behaviour is pure speech, civil disobedience can consist simply of engaging in the forbidden speech. An example would be WBAI's broadcasting the track "Filthy Words" from a George Carlin comedy album, which eventually led to the 1978 Supreme Court case of FCC v. Pacifica Foundation . Threatening government officials is another classic way of expressing defiance toward the government and unwillingness to stand for its policies. For example, Joseph Haas was arrested for allegedly sending an email to the Lebanon, New Hampshire, city councillors stating, "Wise up or die." [40]

More generally, protesters of particular victimless crimes often see fit to openly commit that crime. Laws against public nudity, for instance, have been protested by going naked in public, and laws against cannabis consumption have been protested by openly possessing it and using it at cannabis rallies. [41]

Some forms of civil disobedience, such as illegal boycotts, refusals to pay taxes, draft dodging, distributed denial-of-service attacks, and sit-ins, make it more difficult for a system to function. In this way, they might be considered coercive. Brownlee notes that "although civil disobedients are constrained in their use of coercion by their conscientious aim to engage in moral dialogue, nevertheless they may find it necessary to employ limited coercion to get their issue onto the table." [23] The Plowshares organization temporarily closed GCSB Waihopai by padlocking the gates and using sickles to deflate one of the large domes covering two satellite dishes.

Electronic civil disobedience can include web site defacements, redirects, denial-of-service attacks, information theft and data leaks, illegal web site parodies, virtual sit-ins, and virtual sabotage. It is distinct from other kinds of hacktivism in that the perpetrator openly reveals his identity. Virtual actions rarely succeed in completely shutting down their targets, but they often generate significant media attention. [42]

Dilemma actions are designed to create a "response dilemma" for public authorities "by forcing them to either concede some public space to protesters or make themselves look absurd or heavy-handed by acting against the protest." [43]

Cooperation with authorities

A police officer speaks with a demonstrator at a union picket, explaining that she will be arrested if she does not leave the street. The demonstrator was arrested moments later. Police officer speaking to demonstrator during civil disobedience action.jpg
A police officer speaks with a demonstrator at a union picket, explaining that she will be arrested if she does not leave the street. The demonstrator was arrested moments later.

Some disciplines of civil disobedience hold that the protester must submit to arrest and cooperate with the authorities. Others advocate falling limp or resisting arrest, especially when it will hinder the police from effectively responding to a mass protest.

Many of the same decisions and principles that apply in other criminal investigations and arrests arise also in civil disobedience cases. For example, the suspect may need to decide whether or not to grant a consent search of his property, and whether or not to talk to police officers. It is generally agreed within the legal community, [44] and is often believed within the activist community, that a suspect's talking to criminal investigators can serve no useful purpose, and may be harmful. However, some civil disobedients have nonetheless found it hard to resist responding to investigators' questions, sometimes due to a lack of understanding of the legal ramifications, or due to a fear of seeming rude. [45] Also, some civil disobedients seek to use the arrest as an opportunity to make an impression on the officers. Thoreau wrote,

My civil neighbor, the tax-gatherer, is the very man I have to deal with—for it is, after all, with men and not with parchment that I quarrel—and he has voluntarily chosen to be an agent of the government. How shall he ever know well that he is and does as an officer of the government, or as a man, until he is obliged to consider whether he will treat me, his neighbor, for whom he has respect, as a neighbor and well-disposed man, or as a maniac and disturber of the peace, and see if he can get over this obstruction to his neighborliness without a ruder and more impetuous thought or speech corresponding with his action. [36]

Some civil disobedients feel it is incumbent upon them to accept punishment because of their belief in the validity of the social contract, which is held to bind all to obey the laws that a government meeting certain standards of legitimacy has established, or else suffer the penalties set out in the law. Other civil disobedients who favour the existence of government still don't believe in the legitimacy of their particular government, or don't believe in the legitimacy of a particular law it has enacted. And still other civil disobedients, being anarchists, don't believe in the legitimacy of any government, and therefore see no need to accept punishment for a violation of criminal law that does not infringe the rights of others.

Choice of plea

An important decision for civil disobedients is whether or not to plead guilty. There is much debate on this point, as some believe that it is a civil disobedient's duty to submit to the punishment prescribed by law, while others believe that defending oneself in court will increase the possibility of changing the unjust law. [46] It has also been argued that either choice is compatible with the spirit of civil disobedience. ACT UP's Civil Disobedience Training handbook states that a civil disobedient who pleads guilty is essentially stating, "Yes, I committed the act of which you accuse me. I don't deny it; in fact, I am proud of it. I feel I did the right thing by violating this particular law; I am guilty as charged," but that pleading not guilty sends a message of, "Guilt implies wrong-doing. I feel I have done no wrong. I may have violated some specific laws, but I am guilty of doing no wrong. I therefore plead not guilty." A plea of no contest is sometimes regarded as a compromise between the two. [47] One defendant accused of illegally protesting nuclear power, when asked to enter his plea, stated, "I plead for the beauty that surrounds us"; [48] this is known as a "creative plea," and will usually be interpreted as a plea of not guilty. [49]

When the Committee for Non-Violent Action sponsored a protest in August 1957, at the Camp Mercury nuclear test site near Las Vegas, Nevada, 13 of the protesters attempted to enter the test site knowing that they faced arrest. At a pre-arranged announced time, one at a time they stepped across the "line" and were immediately arrested. They were put on a bus and taken to the Nye County seat of Tonopah, Nevada, and arraigned for trial before the local Justice of the Peace, that afternoon. A well known civil rights attorney, Francis Heisler, had volunteered to defend the arrested persons, advising them to plead nolo contendere , as an alternative to pleading either guilty or not-guilty. The arrested persons were found guilty nevertheless and given suspended sentences, conditional on their not reentering the test site grounds.[ citation needed ]

Howard Zinn writes,

There may be many times when protesters choose to go to jail, as a way of continuing their protest, as a way of reminding their countrymen of injustice. But that is different than the notion that they must go to jail as part of a rule connected with civil disobedience. The key point is that the spirit of protest should be maintained all the way, whether it is done by remaining in jail, or by evading it. To accept jail penitently as an accession to "the rules" is to switch suddenly to a spirit of subservience, to demean the seriousness of the protest ... In particular, the neo-conservative insistence on a guilty plea should be eliminated. [50]

Sometimes the prosecution proposes a plea bargain to civil disobedients, as in the case of the Camden 28, in which the defendants were offered an opportunity to plead guilty to one misdemeanour count and receive no jail time. [51] In some mass arrest situations, the activists decide to use solidarity tactics to secure the same plea bargain for everyone. [49] But some activists have opted to enter a blind plea, pleading guilty without any plea agreement in place. Mahatma Gandhi pleaded guilty and told the court, "I am here to ... submit cheerfully to the highest penalty that can be inflicted upon me for what in law is a deliberate crime and what appears to me to be the highest duty of a citizen." [52]

Choice of allocution

Some civil disobedience defendants choose to make a defiant speech, or a speech explaining their actions, in allocution. In U.S. v. Burgos-Andujar, a defendant who was involved in a movement to stop military exercises by trespassing on US Navy property argued to the court in allocution that "the ones who are violating the greater law are the members of the Navy". As a result, the judge increased her sentence from 40 to 60 days. This action was upheld because, according to the US Court of Appeals for the First Circuit, her statement suggested a lack of remorse, an attempt to avoid responsibility for her actions, and even a likelihood of repeating her illegal actions. [53] Some of the other allocution speeches given by the protesters complained about mistreatment from government officials. [54]

Tim DeChristopher gave an allocution statement to the court describing the US as "a place where the rule of law was created through acts of civil disobedience" and arguing, "Since those bedrock acts of civil disobedience by our founding fathers, the rule of law in this country has continued to grow closer to our shared higher moral code through the civil disobedience that drew attention to legalized injustice." [55]

Steven Barkan writes that if defendants plead not guilty, "they must decide whether their primary goal will be to win an acquittal and avoid imprisonment or a fine, or to use the proceedings as a forum to inform the jury and the public of the political circumstances surrounding the case and their reasons for breaking the law via civil disobedience." A technical defence may enhance the chances for acquittal, but increase the possibility of additional proceedings as well as reduced press coverage. During the Vietnam War era, the Chicago Eight used a political defence, while Benjamin Spock used a technical defence. [56] In countries such as the United States, whose laws guarantee the right to a jury trial but do not excuse lawbreaking for political purposes, some civil disobedients seek jury nullification. Over the years, this has been made more difficult by court decisions such as Sparf v. United States , which held that the judge need not inform jurors of their nullification prerogative, and United States v. Dougherty , which held that the judge need not allow defendants to openly seek jury nullification.

Governments have generally not recognized the legitimacy of civil disobedience or viewed political objectives as an excuse for breaking the law. Specifically, the law usually distinguishes between criminal motive and criminal intent; the offender's motives or purposes may be admirable and praiseworthy, but his intent may still be criminal. [57] Hence the saying that "if there is any possible justification of civil disobedience it must come from outside the legal system." [58]

One theory is that, while disobedience may be helpful, any great amount of it would undermine the law by encouraging general disobedience which is neither conscientious nor of social benefit. Therefore, conscientious lawbreakers must be punished. [59] Michael Bayles argues that if a person violates a law to create a test case as to the constitutionality of a law, and then wins his case, then that act did not constitute civil disobedience. [60] It has also been argued that breaking the law for self-gratification, as in the case of a homosexual or cannabis user who does not direct his act at securing the repeal of amendment of the law, is not civil disobedience. [61] Likewise, a protestor who attempts to escape punishment by committing the crime covertly and avoiding attribution, or by denying having committed the crime, or by fleeing the jurisdiction, is generally viewed as not being a civil disobedient.

Courts have distinguished between two types of civil disobedience: "Indirect civil disobedience involves violating a law which is not, itself, the object of protest, whereas direct civil disobedience involves protesting the existence of a particular law by breaking that law." [62] During the Vietnam War, courts typically refused to excuse the perpetrators of illegal protests from punishment on the basis of their challenging the legality of the Vietnam War; the courts ruled it was a political question. [63] The necessity defence has sometimes been used as a shadow defence by civil disobedients to deny guilt without denouncing their politically motivated acts, and to present their political beliefs in the courtroom. [64] However, court cases such as United States v. Schoon have greatly curtailed the availability of the political necessity defence. [65] Likewise, when Carter Wentworth was charged for his role in the Clamshell Alliance's 1977 illegal occupation of the Seabrook Station Nuclear Power Plant, the judge instructed the jury to disregard his competing harms defence, and he was found guilty. [66] Fully Informed Jury Association activists have sometimes handed out educational leaflets inside courthouses despite admonitions not to; according to the association, many of them have escaped prosecution because "prosecutors have reasoned (correctly) that if they arrest fully informed jury leafleters, the leaflets will have to be given to the leafleter's own jury as evidence." [67]

Along with giving the offender his just deserts, achieving crime control via incapacitation and deterrence is a major goal of criminal punishment. [68] [69] Brownlee argues, "Bringing in deterrence at the level of justification detracts from the law's engagement in a moral dialogue with the offender as a rational person because it focuses attention on the threat of punishment and not the moral reasons to follow this law." [23] British judge Lord Hoffman writes, "In deciding whether or not to impose punishment, the most important consideration would be whether it would do more harm than good. This means that the objector has no right not to be punished. It is a matter for the state (including the judges) to decide on utilitarian grounds whether to do so or not." [70] Hoffman also asserted that while the "rules of the game" for protesters were to remain non-violent while breaking the law, the authorities must recognize that demonstrators are acting out of their conscience in pursuit of democracy. "When it comes to punishment, the court should take into account their personal convictions", he said. [71]

See also

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Further reading