Abstract and Keywords
This concluding chapter continues the discussion of punishment by showing that civil disobedients have a moral right not to be punished. This right protects against both concretely burdensome hard treatment and symbolic censure. It puts a negative moral gloss on any lawful punishment of civil disobedience as something that wrongs the civil disobedient. That said, this moral right is not absolute. In some cases, there may be moral grounds for overriding it and communicating censure for the breach of law. But, in general, the reasons to respect the right recommend a non-punitive restorative approach that clearly distinguishes civil disobedients from ordinary offenders.
This chapter continues the discussion of punishment. Here, I defend a moral right against punishment. I show that civil disobedients such as anti-fur trade activist Megan Lewis, who blocked a Neiman Marcus store and was ordered by the judge to stay away from animal rights protests, have a moral right not to be punished.
In brief, the moral right to civil disobedience advanced in Chapter 4 grounds defeasible normative protection against interference by others including legal interference such as prevention or punishment.1 This blanket defeasible protection flows from the very concept of a right of conduct on the standard liberal conception of rights, which I endorse. Rights of conduct provide defeasible normative protection of a sphere of liberty or autonomy against all forms of coercive interference by others (Section 1).2 A question that arises from this is whether the protection of the right to civil disobedience holds against formal (p.240) censure or symbolic censure since such censure is ostensibly non-interfering and since our rights do not protect us from criticism about how we exercise them. I argue that the right to civil disobedience does protect against formal or symbolic censure,3 but the right is not absolute (Section 2). In principle, the grounds for communicating censure could override the right.4 But, in practice, the reasons to respect the right, including its humanistic foundation and its double-harmony with society’s interests, recommend a non-punitive restorative approach that clearly distinguishes civil disobedients from ordinary offenders (Section 3).
1. The Right to Civil Disobedience
Let me begin by exploring an account of the right to civil disobedience that contrasts with my own. This account is advanced by David Lefkowitz, who says that the moral right to civil disobedience consists of two parts.5 The first is a claim-right specifically against punishment, which is grounded in the non-instrumental value of individual autonomy. This claim-right, he argues, does not extend to a right against non-punitive forms of state interference such as forcible prevention or penalization. Penalization is one thing, he says, and punishment is another. This distinction between punishment and penalization is drawn by Joel Feinberg on the grounds that, although both penalization and punishment are authoritative deprivations for failures, punishment alone involves the communication of condemnation through hard treatment.6 Drawing on this distinction, Lefkowitz holds that, although the state may not punish civil disobedients, it is at liberty to penalize them for their conduct through heavy fines and even temporary incarceration. Penalization is permissible, he says, on both (p.241) instrumental grounds and symbolic grounds (which I elaborate later) because, unlike punishment, it does not aim to communicate condemnation to civil disobedients for their breach of law. The second part of the right to civil disobedience, Lefkowitz says, is a (special) Hohfeldian liberty-right to do wrong.7 This is a permission to act sincerely and reasonably on a mistaken conception of what justice requires. In this section, I show that both parts of Lefkowitz’s account of the right to civil disobedience are mistaken. Let’s begin with the liberty-right.
Lefkowitz says that we enjoy a liberty or permission to engage in civil disobedience because other people have no claim on us not to do so. To make this argument, Lefkowitz revises the traditional conception of what it means to ‘have a claim on someone’s action’. He argues that there are limits to what we plausibly may demand of each other as persons making decisions in light of the ‘burdens of judgment’.8
If we accept that ‘ought’ implies ‘can’ and that the most that creatures like us can do, in circumstances characterized by the burdens of judgment, is to make reasonable judgments as to what justice, or morality, requires, then this fact ought to be reflected in the content of our claims against one another.9
Therefore, although we ought to act as morality truly requires, the most that we may demand of each other is that we all act reasonably, Lefkowitz argues. To say that someone has a liberty-right to act is not to say that she acts rightly. It is to say that she acts reasonably.10 The right to civil disobedience may be construed as a liberty-right in this sense, Lefkowitz says, because when a person champions through civil (p.242) disobedience a reasonable but erroneous conception of justice, she satisfies all claims that others plausibly can make of her, but nonetheless, in some sense, acts ‘wrongly’ since the policy she defends is less just or moral than existing policy.
I have three criticisms of this view. First, the difficulties, which Lefkowitz notes, in applying traditional deontological terminology to this account might be alleviated if he relinquishes the idea that the realm of duty is exhausted by the realm of rights-claims.11 His suggestion that these two realms are co-extensive is problematic for him because he also says that, for the purposes of his discussion, he limits the terms ‘wrong’ and ‘immoral’ to violations of moral duty.12 If wrong actions are actions that breach moral duty, and if moral duties are exhausted by rights-claims, then it cannot follow that we act wrongly when we act sincerely and reasonably in defence of an unjust cause where no one has a rights-claim on us to do otherwise.
By contrast, if we can have moral duties to act in certain ways even when others have no rights-claim on us that we do so, and thus we act wrongly when we breach those duties, then a person who reasonably endorses an unjust policy can be said to act wrongly (even though no one may demand that she act otherwise) since she breaches a duty, and thus fails to act as morality truly requires. Adopting this view of duty would prevent Lefkowitz from having to assert that the conduct of the reasonable person involves some special and rather obscure sort of wrongness.
Second, related to this, it is unclear that ‘ought implies can’ actually supports Lefkowitz’s position. Suppose I have to give a lecture this morning, but my train to the university is delayed so that I am unable to give the lecture this morning. In some sense, I still ought to give the lecture, but the fact that I am unable to do so is a constraint on this. I have reason to give my lecture even though I cannot do so; and it is because I have reason to give the lecture that it would be appropriate for me to feel distressed at being unable to do so. But, since I cannot give the lecture, I have no reason to try to give the lecture since this would be fruitless.13 This characterization of the relation between ought and can (ie that ought to try implies can succeed (broadly (p.243) construed), but ought does not necessarily imply can) is more compatible with Lefkowitz’s position than ‘ought implies can’ since Lefkowitz seeks to highlight that what we ought to do according to morality lies beyond what we may demand of each other given the burdens of judgement; therefore, what we ought to try to do is to act reasonably.
Third, I assume that Lefkowitz intends the liberty-right to civil disobedience to apply to the same set of actions as the claim-right to civil disobedience. But, if the correct way to conceive of the claim-right to civil disobedience is, as I noted at the outset of this chapter, as a right of conduct that protects a certain sphere of action from all coercive interference irrespective of the legitimacy of the disobedient’s cause, then necessarily there will be acts of civil disobedience, namely those advocating highly objectionable or unreasonable causes such as neo-Nazism, that are protected by the claim-right but not by Lefkowitz’s liberty-right. The implication is that there can be no liberty-right to civil disobedience as such because only the civil disobedience that is just or reasonable could fall within the parameters of such a liberty-right. Therefore, we may reject the idea of a liberty-right to civil disobedience and turn to the claim-right to civil disobedience.
According to Lefkowitz, the claim constitutive of the moral right to civil disobedience is a claim against punishment, but not a claim against either state penalization or ex ante interference. This distinction between punishment and penalization turns on the observation that ordinary penalties such as parking tickets, offside penalties, and disqualifications have a miscellaneous character, but largely lack the symbolic, condemnatory significance of punishment.14 Trading on this distinction, Lefkowitz argues that the non-instrumental value of individual autonomy gives the state a rights-based duty not to condemn/punish civil disobedience, but no rights-based duty not to penalize it. He argues that, granting the state the liberty to penalize (p.244) civil 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 civil disobedience unless they believe a law and policy is significantly unjust:15
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 [civil] disobedient will have on the stability and effectiveness of the legal order.16
Additionally, accepting harsh penalties allows disobedients symbolically to affirm citizens’ collective authority to settle reasonable disagreements about morally necessary collective action schemes.17 In particular, paying fines allows disobedients symbolically to recognize the costs that they impose on others when they civilly disobey. And, accepting temporary incarceration allows them to show that they do not intend to usurp the authority of the state, but rather act (just) within the boundaries of political debate.18
I have five objections to this account of the scope of the moral claim‐right to civil disobedience. The first is a conceptual objection about the nature of rights of conduct. The second and third are Kantian objections based on respect for persons as persons. The fourth concerns effective participation. The fifth concerns legitimate participation.
First, as noted above, in the liberal view of rights, which I think Lefkowitz endorses as I do, rights of conduct provide defeasible normative protection of a sphere of autonomy against all forms of coercive interference by others, and not just against particular forms of interference such as punishment. Therefore, Lefkowitz cannot argue that the claim-right to civil disobedience protects a person against condemnation or punishment, but not against ex ante interference or penalization.
(p.245) A partial reply for Lefkowitz might be that the state is not interfering when it penalizes civil disobedients because the boundaries of the right are drawn at the point where disobedients’ action would encourage, incite, or inspire others to engage in non-conscientious disobedience.
In response, first, this reply speaks only to penalization and not to ex ante interference, against which Lefkowitz also says the right does not protect. Second, to let the parameters of our rights of conscientious action be set by others’ decision to act rashly is to hold those rights hostage to the heckler and the zealot, especially since, by definition, civil disobedients do not intend to incite radical protest. Third, the reply misses its mark. The point is not about the permissibility of penalizing some civil disobedience, but about the permissibility of penalizing any civil disobedience. Lefkowitz thinks that penalizing civil disobedience that is not itself likely to incite others does not intrude on the right to civil disobedience.
Second, the claim that disobedients have no moral right against penalization conflicts with what is required to respect them as autonomous, reasoning agents. This objection takes two forms. The first form challenges the legitimacy of individual deterrence as a ground for penalization. If the non-instrumental value of individual autonomy makes it impermissible for the state to punish civil disobedients, then it equally makes it impermissible for the state to penalize civil disobedients. Indeed, penalization taken on instrumental grounds is more problematic than punishment is since it disregards both the conscientious nature of civil disobedients’ conduct and their status as equal members of the community. When a judge penalizes a disobedient primarily to deter her from engaging in undesired behaviour he disregards her status as a reasoning, autonomous agent and treats her as a mere brute responsive to a threatened stick. Judge Taite did exactly this when he ordered Megan Lewis to stay away from animal rights protests so that she won’t ‘be back doing the same things again’.19 He gave no weight to the conscientiousness of her convictions or the merits of her position or the constrained, non-coercive nature of her chosen conduct. He simply issued an order to deter undesired behaviour.
(p.246) Third, general deterrence is a questionable ground for penalizing civil disobedience. The deterrence argument is that, since civil disobedience can encourage frivolous, opportunistic, or radical disobedience, civil disobedients should accept significant penalties as a means of restoring the general levels of deterrence that their actions have undermined. This argument not only misattributes blame for the decline in general deterrence, because copycats are responsible for their own decisions to breach the law, but also uses civil disobedients as a means to deterring undesired, frivolous disobedience. When a judge penalizes a civil disobedient primarily to deter other people from engaging in undesired behaviour he uses her as a means to achieve some future good. Unless further arguments are offered, such use ignores that she has certain rights as an autonomous agent that proscribe her being treated that way.20 Penalizing civil disobedients in order to restore deterrence levels may be, at best, a necessary evil that the state must impose in order to avoid having to prohibit and 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 disobedients as autonomous persons who contribute to collective decision-making in constrained and legitimate ways.
This Kantian objection applies most vividly to incarceration. Lefkowitz compares penalizing civil disobedients through incarceration to quarantining potential disease carriers. This parallel shows, he says, that there is no necessary connection between the state’s confining a person and its communicating censure (punishment). However, what Lefkowitz overlooks are, first, whether the unpleasantness of the incarceration in each context is an essential and intended feature of what is done to the person, even if done ostensibly without condemnatory significance, and second, whether the reasons for imposing that unpleasantness are at odds with respect for individual rights. Incarceration imposed as a penalty cannot be compared to quarantine because the deprivations of quarantine are an unintended and highly regrettable side-effect of isolating persons who are potential disease carriers. By contrast, the deprivations imposed by incarcerating civil disobedients are an essential and intended part of what is done to them. The incarceration is meant to be burdensome on disobedients so that it deters them or other people from engaging in excessive or frivolous (p.247) disobedience. And this disregards their rights to be respected both as ends and as full members of the community who may contribute to the resolution of collective disputes. It also shows how shaky is the supposed distinction between penalization and punishment.
These Kantian objections do not imply that the moral right to civil disobedience is absolute. The right may be overridden if the benefits of penalization are sufficiently great (as I discuss in Section 3). The point is that the right provides defeasible normative protection against all forms of coercive interference including instrumentally useful penalization.
Fourth, related to the Kantian objections is what I call the effective participation objection. Lefkowitz’s willingness to let the state penalize civil disobedients through means sufficient to impose a genuine sacrifice on them conflicts with his claim that it is important 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 engaging in civil 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 civil disobedience.
Fifth, there is the legitimacy objection. Lefkowitz’s defence of penalization and ex ante interference would be more credible if civil disobedience were, in his view, a deviant form of political engagement beyond what can be tolerated in a liberal democracy. But, in his view, it is not beyond what can be tolerated. Rather, it offers one of two ways to satisfy the demands of our obligations to the law because it respects other citizens as persons who have equal authority to determine what the law ought to be.21 This undermines the putative symbolic grounds for penalization. If suitably constrained civil disobedience respects the equal authority of all to determine what the (p.248) law ought to be, as Lefkowitz claims it does, then there could be no real costs of the relevant kind for disobedients symbolically to acknowledge.
2. Symbolic Punishment
The take-away message of the last section is that the moral right to civil disobedience protects against all forms of interference including prevention, penalization, and punitive hard treatment. However, as I noted in the introduction, this conclusion gives rise to a further question which is: Does the protection of this right hold against purely formal or symbolic censure, such as verbal reprimands or formal convictions? There are at least two reasons to think at first glance that it does not.
First, formal moral censure and symbolic censure are usually distinguished from punitive hard treatment on the grounds that only the latter inflicts something normally regarded as detrimental to our genuine interests ‘quite independently of its use as a vehicle of censure’.22 Formal or symbolic censure is non-interfering, so the argument goes, and hence does not overstep the bounds of the moral right to civil disobedience.
Second, our rights do not protect us from criticism of how we exercise them. In guaranteeing us a protected sphere in which to act, our right does not bind other people to approve of how we make use of that protected sphere. My right to free speech does not bind you to approve of everything I say. This is because there is an important distinction between protecting autonomous choices and assessing or guiding those choices.23 Therefore, although a moral right to civil disobedience defeasibly protects us from coercive interference and may indeed give us certain claims to positive assistance,24 it does not (p.249) immunize us from other people’s judgements about how we exercise this right.
Although seemingly forceful, these two points are ultimately not compelling. First, with regard to this last point about others’ judgements, when we look at the details it is difficult to sustain a distinction between others’ judgements about how we use our rights and others’ interference with our rights since others’ judgements can affect our opportunities to exercise our rights. Although the formal safeguards of a ‘right’ should be in place, others’ judgements can have cumulative effects in practice on the parameters of our protected conduct. This is especially true when the people expressing critical judgements have power over us. Does the boss who says in a formal meeting ‘I don’t approve of what you’re saying’ differ so much from the boss who covers your mouth or shuts off your email? Ostensibly, you have a choice in the first case to continue to speak as you wish, and should be protected in doing so, but the boss’s coercive power is such that the censure makes that option highly unattractive. It poses risks for your relations with your co-workers, for your prospects at work, and for your personal security and psychological comfort. Thus, instead of a division between judgements and interference, there is more likely a continuum of degrees of interference in others’ communication of censure.
This conclusion bears on the first point that formal or symbolic censure is non-interfering. There are two related reasons to conclude that formal or symbolic censure does interfere with our conduct. The first is a conceptual point that the distinction between formal or symbolic censure, on the one hand, and hard treatment, on the other, cannot be sustained because the former, like the latter, involves the imposition of a genuine burden, namely, the burden of public censure. As John Tasioulas rightly notes, ‘some predominantly symbolic forms of condemnation shade over into hard treatment insofar as they subject the offender to certain painful forms of public humiliation or ridicule’.25 Indeed, he continues, the stark distinction between censure and hard treatment can be rejected because ‘Even purely formal censure constitutes hard treatment, since condemnation is meant to be experienced as unwelcome, a bringing up short of the (p.250) wrongdoer, a drawing attention to, and denunciation of, his moral wrong-doing.’
Indeed, it may even turn out on occasion that certain relatively anonymous and formal modes of material deprivation, such as monetary fines, constitute appreciably lighter treatment than some purely symbolic forms of condemnation, such as the naval institution of the ‘captain’s mast’.26
Therefore, there is a spectrum of harshness in punitive hard treatments, and formal or symbolic censure falls somewhere along that spectrum, and not necessarily at the lightest end of it in all cases.
Second, even if a rough distinction between formal or symbolic censure and hard treatment could be sustained, both are expressions of condemnation by the state whose authoritative censure can be status changing (see Chapter 7). In one sense, such demotion of status would be less radical in cases of formal or symbolic censure because offenders subject to it would not be forced to undergo rituals of apology and repentance, which offenders are required to go through when sentenced to more concrete forms of hard treatment. However, in another sense, the demotion of status flowing from symbolic censure could be equal to or greater than material hard treatment because symbolic censure can be shaming and shameful. The burdens of embarrassment, public exposure, and loss of social standing can be not just more burdensome, but more status-affecting than a monetary fine or other anonymous punishment. They can render us even less able to respond to the censure.27
All that said, even if symbolic censure as well as concrete punishment proves to be inescapably intrusive, it does not end the debate about the moral right to civil disobedience. There are at least two possible ways forward.
3. Some Ways Forward
One way forward is to note that the moral right to civil disobedience is not absolute. It is defeasible. In principle, the grounds for punishment (p.251) could justifiably override the moral right to civil disobedience. If they did, it would be appropriate for judges to acknowledge that punishment is a necessary evil and that an apology is due to the civil disobedients whom they censure. It would be appropriate to signal that ‘we appreciate the value of what you do, and regret that we have to censure you for your breach of law, but this is the necessary price of allowing any illegal protest to occur’. The apology signals an awareness that, however mild it is, the punishment is disrespectful of the civil disobedient’s agency.
It is true that, in practice, a direct apology could well threaten the values that overrode the right, such as the value of signalling our unwillingness to tolerate too much dissent, or the value of condemning risks posed to other people, or the (putative) value of seeking to deter non-conscientious dissent. The state’s censure probably won’t be very effective when the state follows it with an apology for imposing that censure.
That said, there are other ways for judges to signal that they regret having to make a public show of censure. They can opt for non-custodial sentences, which Judge Teare did in the Ratcliffe power station case (Chapter 6) after the jury found the campaigners guilty. He imposed lenient sentences ranging from 18 months of conditional discharge to 90 hours of unpaid work. Judges can also praise disobedients’ characters, which Judge Teare also did. In his comments, he observed that, although the public might consider his sentencing ‘impossibly lenient’, he had been put in a highly unique position given the moral standing of the campaigners, whom he praised as decent men and women with a genuine concern for others and for the survival of the planet. Finally, judges can make comments about the value of the practice of civil disobedience itself, which Judge Hunter did in the sentencing of Galland and Stander (Chapter 5). Like Judge Teare, he avoided custodial sentences. And, in his comments, he said: ‘I remember that in the 1960s there were actions of civil disobedience that, eventually, made our life better…We all have derived benefits from acts of civil disobedience like the Boston Tea Party. That act of civil disobedience has played an extremely important and vital political role in our history.’
A second way forward is to look to non-punitive, restorative ways for society to engage with civil disobedients.28 In essence, the aim (p.252) would be to ‘civilize’ state responses to civil disobedience by taking civil law dispute resolutions as the model, and seeing civil disobedience not as a crime to be censured, but as a conflict to be resolved. This way forward does not commit us to rejecting the legitimacy of state punishment for any offence. Nor does it commit us to rejecting the very notion of crime. Rather, it puts the communicative emphasis on reconciliation, compensation, and constructive collective deliberation even though the communication of censure might be appropriate for any harm done. This approach chooses to see any such harm in terms of tort rather than crime, that is, as a wrong, but not a wrong to be dealt with through punishment. There are several reasons to favour this non-punitive restorative approach.
First, paradigmatically, civil disobedients breach the law in constrained, conscientiously communicative ways (even when their acts lack full legal defensibility). In doing so, they enter into a conflict with authorities at the level of deeply held conviction. As such, it seems a more fitting objective for the state to promote a reconciliation of antagonistic perspectives than to seek to condemn such constrained disobedience. Of course, not all conflicts between civil disobedients and authorities merit a ‘reconciliation of perspectives’ as opposed to a revision in perspective on the part of disobedients. But, such a revision need not be achieved through punitive restoration.
Second, a non-punitive restorative approach does not represent civil disobedients as criminals. In our current practice and theorizing, for better or worse, criminals make up a special, stigmatized category of persons. Inclusion in that category is something that personal objectors are increasingly able to avoid given the growing number of legal exemptions for personal refusals of performance. No comparable legal exemption can be given for civil disobedience, despite its conscientiousness, since it is a deliberate breach of law. This gives us a reason to consider other ways of responding to civil disobedience that do not require us to represent disobedients as criminals.
Third, by privileging reconciliation and deliberation, a non-punitive restorative approach affirms society’s commitment to its own (p.253) betterment through constructive, democratic, egalitarian means, which is an appropriate commitment to reaffirm in response to civil disobedients. A non-punitive response honours the double-harmony between our individual interests in having a moral right to civil disobedience and society’s interests in the deliberative and communicative contributions of disobedients (see Chapter 4).
Fourth, civil disobedients are, almost by definition, members of minorities, and, they are typically members of persistent, vulnerable minorities. By opting for a civil response over a criminal response, there is the prospect that disobedients’ rights and others’ rights will be better respected as the rights of full and equal members of society.
Fifth, all else being equal, in general, non-punitive responses are to be preferred to punitive ones. The onus lies with those who would oppose non-punitive restoration to explain why a punitive response should be preferred in the case of civil disobedience.
In this final chapter, I have argued that the moral right to civil disobedience includes a right against state punishment. This right protects against not only concretely burdensome hard treatment but also formal or symbolic censure. As a moral right, this right puts a negative moral gloss on any lawful imposition of state punishment for civil disobedience. Such punishment wrongs the person as one who has a moral right to conscientious action that includes civil disobedience. However, this moral right is not absolute. In some cases, there could be moral grounds for overriding the right to civil disobedience and communicating censure for this breach of law. But, given the constrained, conscientious, and communicative nature of civil disobedience, there are good reasons to favour a non-punitive restorative response to it. (p.254)
(1) We saw in Chapter 4 that there exists a moral right to engage in civil disobedience. First, this right acknowledges the communicative dimension of conscientious conviction. To require us always either to respect a law that we oppose or to engage only in private, surreptitious disobedience of that law (where possible) is to deny us appropriate space to act in keeping with our conscientiously held beliefs. And although legal protest, like civil disobedience, offers a vehicle through which to communicate conviction, legal protest lacks the conscientious and performative dissociation that civil disobedience has as a constrained breach of law. In essence, to make rights of conscientious action real and meaningful, some space must be made for civil disobedience. Second, to some extent, this right can redress the participatory-power imbalance between majorities and minorities by reducing the impact that luck, time, and limited resources can have on the effectiveness of our participation. Third, the right serves the double harmony between dissenters’ interests and society’s interests in the stabilizing, democracy-promoting collision of opinions to which civil disobedience contributes.
(2) Cf Raz, Joseph (1979) The Authority of Law. Oxford: Oxford University Press, ch. 14.
(3) In taking this view, I depart from a position I have advanced in previous writings where I suggested that the right to civil disobedience did not extend to protection against formal condemnation.
(4) Some of the material in the current chapter elaborates themes in Brownlee, Kimberley (2008) ‘Penalizing Public Disobedience’ in Ethics 118: 4, 711–16.
(5) Lefkowitz speaks about a right to public disobedience, not a right to civil disobedience. Since his conception of public disobedience broadly aligns with my conception of civil disobedience, I shall speak of a right to civil disobedience.
(6) Feinberg, Joel (1994b) ‘The Expressive Function of Punishment’ in A Reader on Punishment. Antony Duff and David Garland (eds.), Oxford: Oxford University Press, 73–4.
(7) Lefkowitz, David (2007) ‘On a Moral Right to Civil Disobedience’ in Ethics 117, 202–33. For a brief defence of the coherence of the notion of a liberty-right to do wrong, see Jones, Peter (1994) Rights. New York: Palgrave, 204–7.
(8) Lefkowitz specifies two senses of ‘reasonable’. A person is morally reasonable if, and only if, she is committed to limiting her pursuit of the good life appropriately to accommodate others who are also rational and reasonable. A person’s belief or action is cognitively reasonable when it is ‘a judgment made under conditions of less than full information, and/or awareness of the full range of reasons that apply to someone in that situation, and/or with less than perfect reasoning’. Cognitively reasonable judgements are ones made in circumstances characterized by the burdens of judgement. Cf Lefkowitz, David (2005) ‘A Contractualist Defense of Democratic Authority’ in Ratio Juris 18: 3, 346–64.
(13) Gardner, John (2004) ‘The Wrongdoing that Gets Results’ in Philosophical Perspectives 18, 53–88.
(14) The distinction between punishment and penalization is less clear-cut than Feinberg and Lefkowitz suppose, but I shall accept the distinction for the purposes of this discussion because my challenge to Lefkowitz focuses on the reasons for which he says penalization may be imposed. As an aside, assuming that the distinction is sustainable, it is a mistake to suppose, as Lefkowitz does, that ceteris paribus punishment is inevitably worse, and thereby harder to justify, than penalization. The reasons for which some act of penalization or punishment is imposed and the particular type of penalization or punishment imposed cannot be neglected in the determination of whether it is justifiable.
(16) Lefkowitz (2007), 223n. 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, Rawls would argue that (justified) civil disobedience can serve to inhibit departures from justice and to correct departures when they occur; and thus can act as a stabilizing force in society. Rawls, John (1971) A Theory of Justice. Cambridge: Harvard University Press, 383.
(19) Judge Ralph Taite maintained that sentencing an activist to stay away from protests is no different than sentencing a drunk driver to stay away from bars, or sentencing a paedophile to stay 100 feet away from schoolyards, ignoring the fact that neither of the latter are protected under the US Constitution. Potter, Will (2001) ‘The New Backlash: From the Streets to the Courthouse, the New Activists Find Themselves under Attack’ in Texas Observer, 14 September 2001.
(20) Cf Murphy, J. G. (1994) ‘Marxism and Retribution’ in A Reader on Punishment. Antony Duff and David Garland (eds.), Oxford: Oxford University Press, 44.
(21) A state, Lefkowitz says, has a justified claim to political authority when it is both minimally democratic and liberal in the sense of manifesting a principled commitment to individual rights. When a state has such legitimacy, citizens have a duty to follow the law. But, in contrast with traditional accounts of legal obligation, Lefkowitz maintains that this duty to the law is disjunctive. Citizens either must follow the law or they must engage in suitably constrained civil disobedience. If they oppose a policy, they may not choose, for example, simply to disregard it; they either must follow it (using legal means of protest if they wish) or use suitably constrained civil disobedience against it. Lefkowitz’s explanation for why legal obligation is disjunctive is that both adherence to the law and suitably constrained civil 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.
(22) Tasioulas, John (2006) ‘Punishment and Repentance’ in Philosophy 81, 288.
(24) For our rights to be meaningful, we require an effective system of provision and protection within society’s accepted morality and (in certain senses) its legal system. Effective recognition of the moral right to civil disobedience requires, for example, that the state, where possible, allow the disobedience to occur, and neither sabotage the disobedience nor respond with excessive force. Additionally, it requires that the state take civil disobedients seriously as a distinct category of offender, and thus, exercise discretion when deciding whether to arrest, charge, go to trial, convict, or sentence. Although the strength of these duties depends partly on the strategies that civil disobedients employ and their immediate effects, these duties will be in play for any suitably constrained, rights-protected disobedience. At all stages in the legal process, authorities have opportunities to show their tolerance of a little disobedience.
(27) Given the dialogic ambitions of civil disobedience, symbolic punishments can sometimes make martyrs of campaigners and bring others to their cause. But, they can also delegitimize that cause in others’ eyes through association with public shame.
(28) For discussions of abolitionism, see Bianchi, H. (1994) ‘Abolition: Assensus and Sanctuary’ in A Reader on Punishment. Antony Duff and David Garland (eds.), Oxford: Oxford University Press; van Ness, Daniel (1993a) ‘New Wine and Old Wineskins: Four Challenges to Restorative Justice’ in Criminal Law Forum 4: 2, 251–76; Ashworth, Andrew (1993) ‘Some Doubts about Restorative Justice’ in Criminal Law Forum 4: 2, 277–99; van Ness, Daniel (1993b) ‘A Reply to Andrew Ashworth’ in Criminal Law Forum 4: 2, 301–6; Christie, N. (1981) Limits to Pain. London: Martin Robertson; Hulsman, L. (1991) ‘The Abolitionist Case: Alternative Crime Policies’ in Israel Law Review 25, 681–709.