i

A DUT Y TO RESIST

ii

iii

A DUT Y TO RESIST

When Disobedience Should Be Uncivil

Candice Delmas

1

iv

3

Oxford University Press is a department of the University of Oxford. It furthers

the University’s objective of excellence in research, scholarship, and education

by publishing worldwide. Oxford is a registered trade mark of Oxford University

Press in the UK and certain other countries.

Published in the United States of America by Oxford University Press

198 Madison Avenue, New York, NY 10016, United States of America.

© Oxford University Press 2018

All rights reserved. No part of this publication may be reproduced, stored in

a retrieval system, or transmitted, in any form or by any means, without the

prior permission in writing of Oxford University Press, or as expressly permitted by law, by license, or under terms agreed with the appropriate reproduction

rights organization. Inquiries concerning reproduction outside the scope of the

above should be sent to the Rights Department, Oxford University Press, at the

address above.

You must not circulate this work in any other form

and you must impose this same condition on any acquirer.

Library of Congress Cataloging-in-Publication Data

Names: Delmas, Candice, author.

Title: A duty to resist : when disobedience should be uncivil /

Candice Delmas.

Description: New York : Oxford University Press, 2018. |

Includes bibliographical references and index.

Identifiers: LCCN 2018000829 (print) | LCCN 2018016706 (ebook) |

ISBN 9780190872229 (online course) | ISBN 9780190872205 (updf) |

ISBN 9780190872212 (epub) | ISBN 9780190872199 (alk. paper)

Subjects: LCSH: Direct action. | Civil disobedience. |

Government, Resistance to.

Classification: LCC JC328.3 (ebook) | LCC JC328.3.D436 2018 (print) |

DDC 303.6/1—dc23

LC record available at https://lccn.loc.gov/2018000829

1 3 5 7 9 8 6 4 2

Printed by Sheridan Books, Inc., United States of America

v

CONTENTS

Acknowledgments

vii

Introduction: Political Obligation(s)

1

1. Principled Disobedience

21

2. In Defense of Uncivil Disobedience

47

3. Justice and Democracy

72

4. Fairness

108

5. Samaritanism

136

6. Political Association and Dignity

168

7. Acting on Political Obligations

198

Conclusion

223

Postscript: Resistance in the Age of Trump

229

Notes

255

Index

285

v

vi

vi

ACKNOWLEDGMENTS

This book would not have seen the light of day without David Lyons,

my graduate advisor and friend. In a little-read article on Henry

David Thoreau, “Political Responsibility and Resistance to Civil

Government,” David deplored philosophers’ neglect of “the idea that

political responsibility can include a duty to disobey” and defended

this duty on the basis of two common arguments for political obligation. His engagement with the subject was brief, just two pages, but

they influenced my own intellectual focus. I cherish the time I spent

studying with David. His generosity and passion for social justice

inspire me.

I thank my colleagues at Northeastern University for their feedback, support, and congeniality. I have the pleasure of working

there with members of the Philosophy and Religion and Political

Science Departments, and gained much from these interdisciplinary

interactions. I wrote large portions of the book while a Dworkin—

Balzan Fellow at the New York University (NYU) School of Law’s

Center for Law and Philosophy in 2016– 2017. I am grateful to NYU

Law and the Balzan Prize Foundation for their generous support.

I thank Liam Murphy, Samuel Scheffler, Jeremy Waldron, Moshe

vii

vi

A c k n o w l e d g m e n t s

Halbertal, and Katharina Stevens for their kindness and stimulating

conversations. I am most indebted to Daniel Viehoff for his constructive feedback.

The book revisits material initially published elsewhere:

“Disobedience, Civil and Otherwise,” Criminal Law and Philosophy

11, 1 (2017): 195– 211; “Civil Disobedience,” Philosophy Compass

11, 1 (2016): 681– 691; “Political Resistance for Hedgehogs,”

in The Legacy of Ronald Dworkin, ed. Will Waluchow and Stefan

Sciaraffa (Oxford: Oxford University Press, 2016), 25– 48; “False

Convictions and True Conscience,” Oxford Journal of Legal Studies

35, 2 (2015): 403– 425; “Samaritanism and Civil Disobedience,” Res

Publica 20, 3 (2014): 295– 313 (Springer); and “Political Resistance: A

Matter of Fairness,” Law and Philosophy 33, 4 (2014): 465– 488. I am

grateful to Wiley, Springer, and Oxford University Press for permission to use parts of this material.

I thank the organizers and attendants of NYU Law’s Global

Fellows Forum, the University of Richmond’s Political Philosophy

Learning Community, and the American Society for Political and

Legal Philosophy Conference at the APSA meeting in San Fransisco,

for their constructive critical engagement with my arguments. For

comments on individual chapters and sections, I thank Sean Aas,

Guy Aitchison, Amna Akbar, Juliet Hooker, Robert Jubb, David

Lyons, Gabriel O’Malley, Avia Pasternak, and Amélie Rorty. I am

most indebted to Wil iam Smith and Robin Celikates for their helpful

reviews of the book and support for my project. I also wish to thank

the third, anonymous reviewer for detailed feedback. I am grateful to

Kimberley Brownlee, whose work I have long admired, for her men—

torship. Thanks to Samantha Hirshland for her research assistance

and to Isaac Shur for indexing the book. To Simon Waxman I owe

viii

ix

A c k n o w l e d g m e n t s

sharper arguments and better flow. I am grateful to Lucy Randall at

Oxford University Press for her editorial work.

Thanks to my family in France—my parents, Stéphane and

Chantal Delmas, and my brother Gregory—and my friends in Boston

(especially Helena de Bres) for their love and support. Thanks to

Rose Mwobobia for giving me the peace of mind I needed to write

the book. I dedicate it to the loves of my life: Gabriel, Marcel, and

Augustin.

ix

x

xi

A DUT Y TO RESIST

xi

1

Introduction

Political Obligation(s)

RIdIng FoR FReedom

The attacks started when the riders reached the bus depot in Rock

Hil , South Carolina. There were thirteen of them, seven Black men

and six White. They had set out from Washington, DC, a few days

earlier— May 4, 1961— on their way to New Orleans. There was

no special reason for their visit to Rock Hil . They had just stopped

to stretch their legs, use the restroom, and get off the road for a

few minutes.

But at the Greyhound station, twenty White men, some of them

members of the Ku Klux Klan (KKK), were waiting for the group. The

bus riders were not some anonymous thirteen. They were Freedom

Riders, dispatched by the Congress of Racial Equality (CORE) to

break the laws of the American South. CORE had organized its first

freedom ride, known as the Journey of Reconciliation, fourteen

years earlier, after the U.S. Supreme Court ruled in Irene Morgan v.

Commonwealth of Virginia (1946) that racial segregation was prohibited in commercial interstate travel. But southern authorities

1

2

I n t R o d u c t I o n

ignored the Court and continued to uphold decades-old Jim Crow

ordinances denying Blacks equal rights on the highways.

That meant integrated buses themselves could be banned from

the roads, and bus stations could bar Blacks from their waiting

rooms. When the Freedom Riders arrived in Rock Hil , they found

a mob with enforcement on its mind. It was there that a young KKK

member, Elwin Wilson, famously and savagely beat John Lewis,

a Black man who, like the other Freedom Riders, was thoroughly

trained in and committed to nonviolence. Many years later, Wilson

would publicly repudiate his actions and apologize to Lewis, who

had become a senior member of the U.S. Congress and a highly

respected elder statesman of the civil rights movement. But that was

a long way off. In 1961, the air was so thick with anti-Black violence

that Martin Luther King Jr., who had drawn national attention by

leading the 1955– 1956 Montgomery bus boycott, refused to support

the Freedom Rides. The activists would “not make it to Alabama,” he

warned.

In spite of King’s wel - earned pessimism, the Freedom Riders and

their two buses, one Greyhound and one Trailways, did make it to

Alabama. Just outside Anniston, a small city in the northeast of the

state, a group of Klansmen pelted the arriving Greyhound with rocks

and slashed its tires. After forcing the driver to stop, the Klansmen

firebombed the bus. As it burned, they held the doors shut to ensure

that no one could get out. For reasons that are not clear, the mob eventually retreated, and the gasping riders escaped— only to be assaulted

on the side of the road. In town, another group of Klansmen boarded

the Trailways bus and beat the Freedom Riders nearly to the point of

unconsciousness.

Bloodied but undaunted, the Freedom Riders continued to

Birmingham, where a large crowd waited with baseball bats, iron

pipes, and bicycle chains. Police Commissioner Bull Connor and his

men participated in the assault. Jim Peck, White and a veteran of the

2

3

I n t R o d u c t I o n

Journey of Reconciliation, was beaten so badly that his head wounds

alone required fifty-three stitches. The first hospital Peck was taken

to refused to provide him with treatment. He nearly died on his way

to another.

Hearing of the violence, U.S. Attorney General Robert Kennedy

dispatched the National Guard to escort the Freedom Riders

safely to Montgomery. But by then, the bus drivers refused to go

on. Determined to make it to New Orleans for a planned rally, the

Freedom Riders decided to continue by air. Their first flight was

canceled due to a bomb threat. Meanwhile, sensing the momentum

of the movement, the Student Nonviolent Coordinating Committee

(SNCC) organized a new set of riders to travel from Nashville to

Birmingham. Connor arrested the activists as soon as they arrived

and placed them in jail under “protective custody.”

On May 20, all of the Freedom Riders headed to Montgomery,

where they were met by yet another mob. Journalists, too, were

waiting, and the attack was nationally televised, shocking the public.

The journey continued to Jackson, Mississippi, where police arrested

nearly a hundred protesters for violating a recently passed breach-of—

the-peace statute. After the protesters refused to pay fines of two hundred dol ars each, a judge sentenced them to ninety days in jail, where

they were beaten and half-starved. By the end of the summer, over

three hundred activists were incarcerated in the state penitentiary.

Though the Freedom Riders never reached their stated goal of

New Orleans, their movement attracted national and international

attention. Attorney General Kennedy petitioned the Interstate

Commerce Commission to enforce the Supreme Court’s ruling.

The commission did so, effectively integrating interstate travel on

November 1, 1961. By engaging in peaceful, nonviolent, public disobedience (disobedience of local law anyway), the Freedom Riders

helped to persuade the government, and at least some portions of

the public, of the Jim Crow system’s brutality and injustice. They

3

4

I n t R o d u c t I o n

demonstrated the need for change and to enforce federal law. They

and likeminded activists inspired many more people to join the

struggle for civil rights.

The Freedom Rides, like the iconic lunch counter sit-ins before

them, depended on the courage of citizens engaged in civil disobedience. Those who flouted the law risked life and liberty. They met

police and civilian terrorism with nonviolence. They stood before

vindictive courts with peaceful resolve. But too much bravery can

be hazardous. The example of the Freedom Riders also suggests that

civil disobedience and other forms of principled lawbreaking are supererogatory, the work of heroes rather than ordinary people and

therefore beyond moral requirement. Who among us is wil ing to

confront armed Klansmen, let alone refuse to defend ourselves from

their blows? Thus a journalist grappled with these questions when he

asked one of the White Freedom Riders why he felt it was his responsibility to take part. “I don’t think it’s just my responsibility,” the young man answered. “I think it’s every American’s responsibility. I just think that some people are more conscious of their responsibilities than

others.”1

But is there any such responsibility? For the most part,

philosophers have not entertained such responsibility. Those concerned with the rights and duties of citizens generally believe that

there is a moral duty to obey the law because it is the law, although

they tend to doubt that a satisfying account of this duty can be

offered and often attach a string of qualifications to their defense.2

Those who criticize the duty to obey the law— chiefly among them

philosophical anarchists— have not discussed alternative duties that

might bind citizens. Even proponents of civil disobedience generally

hold that breaking the law is presumptively wrong and only conceive

of it in terms of permission, not duty. Finally, feminist philosophers,

who have extensively studied the responsibility to resist oppression,

have not systematically addressed principled disobedience.

4

5

I n t R o d u c t I o n

In this book, I defend the existence of moral duties to resist injustice, including through principled— civil and even uncivil—

disobedience. Resistance to injustice is, I will argue, our political

obligation. Traditionally, theorists hold that political obligation is a

matter of obedience: our duty is to follow the law, especially in democratic states, assumed to be nearly just and legitimate. Breaches are

accepted only when injustice is intolerable or disobedience is very

narrowly constrained, or both. But I will show that the opposite is

true— that principled lawbreaking, civil or uncivil, is not only acceptable under most real-world conditions, including those of democratic, nearly just, legitimate states, but that it can also be morally

required for people living under these conditions. Hence, this book

aims to: (1) think beyond civil disobedience to uncivil forms of principled disobedience, (2) apply defenses of civil disobedience to justify uncivil disobedience, (3) use arguments for the duty to obey to

defend duties to disobey, and (4) extend the concept of political obligation to include these duties.

A dutY to ResIst

Faced with injustice, activists have long recognized resistance to injustice, including through disobedience, as more-than- optional.

Henry David Thoreau considered resistance to illegitimate governments a moral duty. His 1848 essay “Resistance to

Civil Government,” posthumously titled “On the Duty of Civil

Disobedience” and now widely known as “Civil Disobedience”

(Thoreau himself did not speak of “civil disobedience,” although

he is commonly credited with coining the term), urged citizens to

withdraw their support from the government of the United States,

given its support of slavery, the war against Mexico, and the atrocious

treatment of Native Americans. Thoreau advocated conscientious

5

6

I n t R o d u c t I o n

refusal to pay the Massachusetts poll tax as one practical means of

noncooperation.3

Inspired by Thoreau, Mohandas K. Gandhi, too, considered noncooperation with unjust governments a citizen’s moral duty. “Every

citizen silently but nevertheless surely sustains the government of the

day in ways of which he has no knowledge,” Gandhi wrote. “And it is

quite proper to support it so long as the actions of the government

are bearable. But when they hurt him or his nation, it becomes his

duty to withdraw his support.”4

King, indebted to both Thoreau and Gandhi, argued in his “Letter

from Birmingham City Jail” that “one has not only a legal but a moral

responsibility to obey just laws. Conversely, one has a moral responsibility to disobey unjust laws.”5 In a lesser-known speech at the eve

of the 1955– 1956 Montgomery bus boycott, King told his audience: “Not only do we have a right to be free, we have a duty to be

free. So when you sit down on a bus, when you sit down in the front,

or you sit down by a White person, you are sitting down because you

have a duty to sit down not merely because you have a right.”6

Contemporary activists embrace this duty-centered discourse,

too. In Indignez-vous! , former member of French Resistance and concentration camp survivor Stéphane Hessel calls for peaceful insurrection against growing socioeconomic inequalities, the corruption of

democracy under financial capitalism, the treatment of sans-papiers

(undocumented migrants), and Israel’s occupation of Palestine.7 The

book became the manifesto for Occupy and Indignados, the anti—

austerity social movements that agitated the United States, Spain,

and other Western states after the 2008 financial crisis and especially

in the early 2010s. Belgian and French human rights organizations,

including Ligue des droits de l’Homme and Collectif contre les

expulsions, have defended a moral “duty of solidarity,” urging people

to disobey laws that prohibit the provision of shelter and assistance

to undocumented immigrants.8 Eric Herrou, a French farmer who is

6

7

I n t R o d u c t I o n

accused of helping undocumented migrants cross the border from

Italy in the Roya Valley, “think[s] it’s [his] duty” to help them.9

Masih Alinejad, founder of the My Stealthy Freedom campaign,

which encourages Iranian women to post pictures of themselves

without headscarf, in violation of the law, called on non-Muslim

women visiting the country to join the fight: “When compulsory

hijab affects all women, then all women should raise their voice.”10

Saudi women have filmed themselves driving, in open defiance of

the law, and posted the videos on YouTube.11 In June of 2011, one

of the drivers, Maha al-Qahtani, told the New York Times, “I woke up

today believing with every part of me that this is my right, I woke up

believing this is my duty, and I was no longer afraid.”12 In September

2017, Saudi Arabia announced it was ending the ban on women

driving; the previously stigmatized, defiant women drivers are now

publicly celebrated.

Edward Snowden, who leaked to the press mil ions of documents

exposing the U.S. National Security Agency (NSA)’s massive and

invasive surveil ance programs, appealed to his duty to blow the

whistle, and affirmed that “every citizen has a duty to resist” unethical and immoral law and “to try to build a better, more fair society.”13

A sense of responsibility to contest injustice permeates the Black

Lives Matter (BLM) movement. As BLM cofounder Opal Tometi

put it, “We think that everybody, no matter where you are, no matter

what your socioeconomic status is, whatever your job is— you have a

duty in this moment in history to take action and stand on the side of

people who have been oppressed for generations.”14

Thoreau, Gandhi, and King form a kind of holy trinity of civil

disobedience— names uttered endlessly and in admiring tones whenever debates over principled lawbreaking arise. As we will see, though,

neither their ideas nor their actions fit the standard conception of

civil disobedience that philosophers— John Rawls chief among

them— began to articulate in response to the civil rights movement.

7

8

I n t R o d u c t I o n

According to that conception, civil disobedience is a conscientious,

public, nonviolent breach of law, undertaken in a near-just state, by

agents who demonstrate their sincere endorsement of the system’s

legitimacy by accepting punishment, and who seek to persuade the

majority to change a law or policy by appealing to widely accepted

principles of political morality. Few disobedient actions, today and

historically, meet these requirements. And some activists openly

flout these for reasons that may nonetheless be worth defending.

Take the English suffragist leader Emmeline Pankhurst, who

called for “deeds, not words.” What she had in mind were spectacular, oft illegal actions to force the public to pay attention to the injustice of women’s oppression. “To be militant in some way or other

is . . . a moral obligation,” she asserted when supporting women who

smashed shop windows, burned golf course grass with acid, and put

their bodies on the line through hunger strikes and suicides in pursuit

of a more just society. “It is a duty which every woman will owe to her

own conscience and self-respect, to other women who are less fortunate than she is herself, and to all those who are to come after her.”15

More recently, the French syndicalist activist and politician José

Bové, who articulates a “duty to disobey” environmental and global

labor injustice, has taken up decidedly uncivil disobedience.16 After

he was convicted of vandalizing a McDonald’s restaurant in Mil au in

1999, Bové became a symbol of the alter-globalization and farmers—

union movements. He is also the leader of Les Faucheurs Volontaires

d’OGM (which could be translated as “The Resolute GMO Reapers”),

a group of over six thousand militants who have vowed to destroy ge—

netically modified crops.17

In this book, I take seriously activists’ appeals to moral duties in

the face of injustice. I do so by also taking seriously the traditional

notion of political obligation— the duty to obey the law in legitimate, nearly just states. On its face, it may seem that I am forcing

the proverbial square peg into a round hole, but I shall argue that the

8

9

I n t R o d u c t I o n

very grounds supporting a duty to obey also impose duties to disobey under conditions of injustice. My argument is based on four

grounds: the natural duty of justice ( chapter 3), the principle of

fairness ( chapter 4), the Samaritan duty ( chapter 5), and political association ( chapter 6).

I have chosen these four grounds because they are well established in ordinary and critical morality. Many philosophers— from

Socrates to Rawls— believe one’s sole or main political obligation

is to obey the law of basically just, legitimate societies. And while

philosophers disagree about what grounds this duty, the four principles upon which I rely represent the main competitors. Because

philosophers typically view the duty to obey the law as liable to be

outweighed by stronger, countervailing reasons (it is “defeasible”),

they agree that civil disobedience may be justified. But they merely

show that disobedience is sometimes permissible, not that it is ever

obligatory, and they do not devote any attention to the circumstances

under which uncivil disobedience might be acceptable.18

For the most part, theorists do not address what citizens may and

ought to do in less-than- nearly-just societies, which fail the test of legitimacy, because they generally believe that disobedience in illegitimate states is not particularly problematic and does not need special

justification. Thus, much hinges on the diagnosis of political legitimacy: If the state is legitimate, subjects ought to comply with its law

and may sometimes disobey it civilly. And if it isn’t, they neither owe

the state anything— they have no “political obligation”— nor are they

bound to only disobey its law civilly; they may well resort to radical

forms of resistance, including, at the extreme, revolution. While this

binary view is broadly accepted, accounts of legitimacy (including

of how injustice affects it) and diagnoses of particular societies are

not. There are deep and intractable disagreements about whether

nonideal societies “like ours” (viz., large, industrialized, liberal democratic Western nation-states) qualify as legitimate or not.

9

10

I n t R o d u c t I o n

Readers will not find an answer to whether such societies are legitimate in this book— I will leave that for others to explore. What

they will find is a unified account of political obligation that focuses

on duties of resistance under conditions of injustice and applies to

all societies, legitimate and illegitimate. This book conceives of resistance as a multidimensional continuum of dissenting acts and

practices, which includes lawful and unlawful acts (or “principled

disobedience”), and expresses, broadly, an opposition and refusal to

conform to the established institutions and norms, including cultural

values, social practices, and laws. It shows that resistance to injustice,

including through principled disobedience, is sometimes a better

avenue to meet the demands of justice, fairness, Samaritanism, and

political membership than legal compliance is, and that uncivil acts

of disobedience may preserve justice and democracy just as well as

civil disobedience. It thus proposes to extend the concept of political

obligation to encompass citizens’ political responsibilities, including

their moral duties to resist injustice and to engage in principled disobedience under certain circumstances.

My account of political obligations engages with champions of

the moral duty to obey the law and philosophical anarchists alike.

Whichever of the four grounds one endorses either as the basis

of the duty to obey the law or more basically as a valid source of

obligations, one is also, wittingly or not, committed to the existence

of a duty to resist injustice and disobey unjust laws. Anarchists are

right to be suspicious of states’ demand for unquestioning obedience on the part of their subjects and of theorists’ efforts to show

that actual societies trigger general duties of compliance. But whereas

anarchists reject nonvoluntarily incurred duties, I show that citizens

of nonideal societies have numerous, stringent political obligations.

Anarchists rarely discuss disobedience, except to say that the absence

of political obligation does not have any radical practical implications

(this is how John Simmons, for instance, distinguishes philosophical

10

1

I n t R o d u c t I o n

anarchism from its “bomb-throwing” relative).19 Because of this

status-quo embracing tendency, philosophical anarchism strikes me

as not only “toothless,” to use Chaim Gans’s epithet, but also conde—

scending in its insistence that what is right is not necessarily what it is

right for “the masses” to believe.20 In articulating instead a defense of

political obligations to resist injustice, including by way of principled

lawbreaking, my account purports to be a radical alternative to philosophical anarchism.

In addition, my account could be seen as either an alternative to or an extension of defenses of the duty to obey the law. On

most established accounts (certainly all current ones), the duty to

obey is pro tanto— ordinarily decisive yet defeasible— and does not

arise in the face of serious injustice. Here, my account answers the

question: What happens when the moral duty to obey the law fails

to obtain, locally or overall? From this perspective, all champions of

political obligation could in principle endorse my account of political obligations as a friendly extension of theirs, as some in fact do.21

However, the duties to resist injustice and disobey the law that I identify may come into conflict with the putative moral duty to obey the

law (at least in cases where it is not clear whether the injustice is so

severe as to cancel the duty to obey), and champions of the duty to

obey and I might disagree over whether the duty to obey should take

precedence.

Although my account of political obligations relies on principles

commonly used to support the duty to obey the law, I do not argue

that all or only such principles ground citizens’ obligations in the

face of injustice. Thus I do not see how, say, gratitude and deference,

which have been invoked in defense of traditional notions of political obligation, could trigger obligations of resistance under unjust

conditions.22 But one might defend political obligations of resistance

on the ground of respect for law, which Joseph Raz uses to support

a semi-voluntary and particular obligation to obey the law. (Wil iam

11

12

I n t R o d u c t I o n

Scheuerman’s defense of Snowden’s whistleblowing through the

lens of respect for the rule of law is a possible illustration of such

argument.23) And Carole Pateman and Nancy Hirschmann, who

advance forceful feminist critiques of liberal contractual theories

of political obligation, entertain the possibility that the demands of

democratic consent, well understood, counsel resistance against, instead of acquiescence to, patriarchal government.24 Still other normative principles that philosophers have not used to support the duty

to obey the law, such as freedom-as- nondomination (the unifying

theme of civic republicanism) and care (the centerpiece of feminist

virtue ethics) may well provoke additional responsibilities.

The sources of political obligation on which I focus are not just

widely accepted but also have radical and broad-ranging implications

under defective sociopolitical conditions. By putting common liberal principles to radical use in this way, I pursue a strategy associated

with Carole Pateman, Iris Marion Young, Lisa Schwartzman, Rae

Langton, and other feminists and critical race theorists, who show

that liberals, by their own lights, should advocate sweeping political

change to combat oppression.25

keY concePts

I use the term injustice broadly, to encompass the overlapping

categories of unjust law and agent and structural injustice. Law, the set of authoritative norms and decisions that form a legal system, is unjust, in whole or in part, when it violates substantive or procedural norms of political morality such as due process and respect

for everyone as equal. The distinction between agent and structural

injustice is useful: agent injustice consists in the direct and deliberate imposition of harms by individuals on other individuals, while

structural injustice designates the unintended but unjust outcome of

12

13

I n t R o d u c t I o n

social processes or structures that are based on morally unacceptable

values or belief systems. The unjust outcomes may range from unfair

distribution of the burdens and benefits of social cooperation (the

focus of chapter 4) to mass human rights violations.

Iris Marion Young uses the concept of structure to denote, broadly,

“the rules and resources brought to actions and interactions,” that

is, what governs, enables, and constrains social interactions, and,

in particular, “the relation of social positions that condition the

opportunities and life prospects of the persons located in those

positions” or the ways in which different social positions determine

individual lives.26 She explains:

Structural injustice exists when social processes put large

categories of persons under a systematic threat of domination or

deprivation of the means to develop and exercise their capacities,

at the same time as these processes enable others to dominate or

have a wide range of opportunities for developing and exercising

their capacities.27

That is, structural injustice occurs where a problematic system of

norms and entitlements hinder the development of some people’s

capacities while benefiting others.

The related concept of oppression, which I will use interchangeably with “injustice” in the book, describes the inhibition of human

abilities as a result of structural injustice. Marilyn Frye defines

oppression as “a network of forces and barriers which are systematically related and which conspire to the immobilization, reduction

and molding” of people and people’s lives, on the basis of their membership in a social group.28 The harms of oppression are inflicted

though disabling structural constraints, including, as Young argues,

exploitation, marginalization, powerlessness, cultural imperialism,

and violence.29 These phenomena— and the structures that produce

13

14

I n t R o d u c t I o n

structural injustice— involve the interplay of law, social institutions,

cultural understandings, and practices.

Although my concern with principled disobedience will lead me

to pay special attention to law, I also examine ideology. Following

Tommie Shelby, I understand ideology as “a widely held set of associated beliefs and implicit judgments that misrepresent significant social realities and that function, through this distortion, to bring about

or perpetuate unjust social relations.”30 Ideology works to conceal

structural injustice, making its harms look necessary (natural, inevitable) or justified. Sally Haslanger has also recently illuminated the

broad cultural factors— the set of “social meanings that shapes and

filters how we think and act”— that need to be tackled in the fight

against ideology and to achieve social justice.31

Oppression and injustice can be found in societies deemed “legitimate.” As I mentioned above, theorists have offered myriad accounts

of state legitimacy. Many, starting with Thomas Hobbes, conceive of

legitimacy as a necessary and sufficient condition for political obligation, so that if the sovereign has a right to govern, its subjects have a

correlative duty to obey. Others, like Leslie Green and Christopher

H. Wellman (whose account I examine in chapter 5), hold that political legitimacy, understood as justified coercion, is necessary but

not sufficient for political obligation.32 On most contemporary

accounts, political legitimacy requires just, effective, and democratic

institutions, as we’ll see in chapter 3. Yet some theorists, like Simmons,

keep justification, legitimacy, and justice distinct. Simmons argues

that while subjects’ consent (and not society’s justice) is a necessary

and sufficient condition for state legitimacy, a state may justifiably exercise coercion even without consent from its subjects (i.e., without

legitimacy).33 So different accounts allow for different degrees of injustice to be present in a legitimate society. My account of political

obligations in the face of injustice does not assume a particular conception of legitimacy.

14

15

I n t R o d u c t I o n

As Amartya Sen argues, it is easier to identify injustice than to

say what justice consists in: “We can have a strong sense of injustice on many different grounds, and yet not agree on one particular

ground as being the dominant reason for the diagnosis of injustice.”34

In this spirit, my account works from notions of injustice that many

(but by no means all) would recognize as such. Different injustices

inflict different harms, from eroding victims’ sense of self-worth

through small but repeated humiliations, to physically annihilating

them through genocide. Slavery, colonialism, and women’s disenfranchisement are all deemed seriously unjust, usually because

they violate individuals’ (or people’s) right to self-determination.

Racism, religious intolerance, sexism, ableism, anti-LGBTQ+ discrimination, and other cases of unequal group treatment are unjust, on most theories of justice, because they manifest society’s

unequal respect for some of its members on the basis of morally

irrelevant categories. On most accounts, failure to recognize and respect people’s dignity, violations of fundamental rights, violent and

abusive treatment, and unequal access to political representation

are sufficient conditions for diagnosing serious injustice. Most existing societies, including liberal democracies— the best real-world

candidates for legitimate societies— are guilty of at least some of

these abuses.

Along with justice and injustice, a core term in this study is resist-

ance. To resist is to withstand, strive against, or oppose. The concept is ambiguous: for centuries it referred to revolution or rebel ion, a sense it

still maintains today. Thus about a fifth of the world’s constitutions, including those of Germany, the Czech Republic, Thailand, and Rwanda,

recognize a right to resist oppression (where oppression designates

nondemocratic power and resistance insurrection).35 The French

Revolution’s Declaration of the Rights of Man and of the Citizen

even affirms citizens’ duty to resist in this sense: “When the government violates the rights of the people, insurrection is for the

15

16

I n t R o d u c t I o n

people and for each portion of the people the most sacred of rights

and the most indispensable of duties.” In turn, political theorists and

social scientists generally define resistance as a form of sustained

collective action involving “widespread activities that challenge a

particular power, regime or policy.”36

The concept of resistance I have in mind is more capacious, aligned

with feminist understandings. Resisting injustice involves refusing to

cooperate with the mechanisms that produce and sustain it. (And

I am mainly interested in resistance against injustice, although resistance can of course target just law that is wrongly perceived as unjust

as wel : witness civilians’ and officials’ active resistance against federally mandated racial integration in Jim Crow states.) Fighting against

injustice requires at least making a stand against it, by vocalizing or silently signifying protest. So one-off individual dissent can be an act of

resistance, although, at best, resisting means organizing collectively

to dismantle systemic injustice and working to set right particular

harms caused by agent injustice.

Resistance can designate a broad range of dissident activities,

which all express an opposition and/ or refusal to conform to a dominant system of values, norms, rules (including law), and practices.

To be clear, the “system” that is the target of resistance is not limited to society’s basic institutions, but encompasses social structures

in Young’s sense, culture and ideology, and individuals’ actions and

attitudes (the latter being problematic in part in virtue of representing

common, problematic norms). Acts of resistance may be legal or illegal; visible or covert; violent or nonviolent; injurious or harmless;

undertaken by officials, citizens, or noncitizens (e.g., visitors,

migrants, or citizens from other countries acting from abroad); and

addressed to the public (government, citizenry) or to a private agent

(e.g., university, corporation). They may be undertaken to pursue a

variety of more or less radical goals, from legal reform to revolution,

as we shall see in chapter 1.

16

17

I n t R o d u c t I o n

I describe illegal acts of resistance that are politically or morally

motivated as instances of principled disobedience. One subset of principled disobedience is civil disobedience: a principled and deliberate

breach of law intended to protest unjust laws, policies, institutions,

or practices, and undertaken by agents broadly committed to basic

norms of civility. This means the action is public, non-evasive, nonviolent, and broadly respectful or civil (in accordance with decorum).

This definition of civil disobedience tracks the ordinary understanding of civil disobedience but jettisons its oft-associated subjective elements (regarding the agent’s attitudes and dispositions). It is

broader than Rawls’s definition but much narrower than recent, inclusive accounts of civil disobedience.

Another subset of principled disobedience is uncivil disobedience.

This category, which theorists so far have neglected, helps us think

about acts of principled disobedience that neither appear nor try to

be civil, as well as controversial cases of civil disobedience.37 Acts of

principled disobedience that are covert, evasive, anonymous, violent,

or deliberately offensive are generally (though not necessarily) uncivil. Examples include guerril a theater (illegal public performances

often designed to shock, in pursuit of revolutionary goals), antifascist

tactics such as “black bloc” (which often involves destruction of

property), riots, leaks, distributed-denial- of-service (DDoS) attacks,

and vigilantism. (Whether some of these acts are criminal or qualify

as principled disobedience depends in part on the agents’ motivations

as well as on the context.)

I defend a duty to resist injustice as a core part of our political

obligations (and I use the terms “duty” and “obligation” interchangeably in this book). To say that something is a duty or obligation is

to say that it ought to be discharged: it is a moral requirement. One

might object that what we ought to do is circumscribed by what we

can do, or, as philosophers are fond of saying, that “ought implies

can.”38 Resistance against injustice requires sacrifices too great to be

17

18

I n t R o d u c t I o n

reasonably expected of most people: Freedom Riders were viciously

beaten by White supremacist mobs; Manal al-Sharif, who filmed herself driving, in violation of Saudi law, was arrested and jailed. And if

resistance comes at too high a price, it cannot be a moral requirement.

This is why we admire resisters’ courage and sacrifices— because they

go well beyond the call of duty.39

In response, it is important to clarify the nature of the duty to resist that I defend in this book. It is not legally enforceable, although its

violation may be socially sanctioned, for instance, through blame.40

Like other duties, it is defeasible, that is, it may come into conflict

with, and be outweighed by, countervailing considerations. It is a general and imperfect duty, meaning that one has discretion as to when

and how to discharge it. It does not demand heroic self-sacrifice, although it prohibits doing nothing (insofar as doing nothing amounts

to supporting the unjust status quo). What one ought to do in a particular situation, then, depends on the particulars of that situation—

especially the nature of the injustice and one’s position relative to it.

But the fact that we admire courageous resisters does not mean that

resistance can only be supererogatory, that is, only the province of

moral saints that we feel we can never measure up to. Rather it means

that resisting injustice is difficult and that many of us fall short of fulfil ing our basic political obligations.

ouR PolItIcAl oBlIgAtIons

The book often takes a historical and theoretical approach to

thinking about our political duties. I will turn again in chapter 4 to

the conditions the young Freedom Rider felt obligated to resist, and

I will argue that his instinct was correct. In 1961, under Jim Crow,

one of citizens’ central political obligations was to fight racial segregation, and one effective way of doing so was to engage in civil

18

19

I n t R o d u c t I o n

disobedience: one wasn’t simply permitted but, depending on one’s

circumstances, may also have been morally bound to join protest

marches, boycotts, lunch counter sit-ins, and other racial-integration

campaigns. In later chapters, I discuss those circumstances—

aggravating and mitigating— in detail.

But while history informs the analysis, my goals have more to

do with the moral obligations citizens face today. I contend that

these obligations demand solidarity with protests against racial injustice, labor injustice, gender inequality, and sexual violence. They

demand that we educate ourselves about the workings of structural racism and implicit bias; listen to the testimonies of victims of

oppression; cultivate moral understanding of and resistance to our

own and our children’s self-deception; demand accountability for

extrajudicial killings by police and others operating under cover of

law; draw attention to, and work to dismantle, mass incarceration;

directly disobey laws that require reporting or prohibit assisting

undocumented migrants; engage in principled disobedience to

highlight and eradicate discrimination against women, LGBTQ+

people, ethnic minorities, and people with disabilities; and force

our governments to reform unjust trade, labor, environmental, and

energy regimes globally. We should challenge and refuse to comply

with sexist; racist; Islamophobic; homo- , trans- , and cis-phobic,

and ableist cultural and social norms. We should boycott morally tainted products and “buycott” in order to support high-road

producers; donate to organizations devoted to social justice and

democracy; document and report wrongdoing when we witness

it, sometimes even when we are legally prohibited from doing so;

partake, as necessary, in workplace strikes; and use our positions,

resources, and talents— whether as officials with access to levers of

power, celebrities in the public eye, or everyday people with our

particular skills and endowments— to relieve suffering and promote justice everywhere we can.

19

20

I n t R o d u c t I o n

This is a tall moral order, but we needn’t let this frighten us

into despair or denial. That morality may impose lofty demands is

nothing new. What is new is this book’s systematic account of citizens’ duty to meet those demands by resisting injustice, including

through principled— civil and uncivil— disobedience. What is also

new is that this account relies on the same grounds commonly used

to support the duty to obey the law. Finally, what is new is the proposal to revisit and radically expand our understanding of political

obligations, but only by asking us to make good on the commitments

we already claim to accept.

20

21

Chapter 1

Principled Disobedience

What do suffragists’ window-smashing, the Catonsville Nine’s na—

palm-soaked draft registries, Snowden’s leaks, and Femen’s topless

heckling have in common? What does Pussy Riot’s “Punk Prayer,” their

guerril a performance in Moscow’s Cathedral of Christ the Savior,

share with covert aid to unauthorized migrants, Sea Shepherd’s anti—

whaling efforts, and Anonymous’s DDoS attacks? Not much at first

glance: these activities involved different targets, sites, methods, and

goals. Some were covert, others public; some violent, others nonviolent; some coercive, others not. Yet all have been severely condemned,

criminally charged, or prosecuted. And all have been described, by

those who approve of them, as instances of civil disobedience.1 And,

in response, opponents have marshaled an idealized understanding of

civil rights– style disobedience to deny that these acts qualify as civil.

This debate might appear to be one of mere semantics. Why

should we care whether leaks or topless heckling qualify as civil disobedience? On this thinking, one may define “civil disobedience” however one wants, in a manner that includes or excludes some or all of

the disobedient acts listed above. What matters is whether and how

the disobedient acts in question can be justified. This is the central

issue, to be sure— and the object of the next chapter. But first, I want

to think about what is at stake in the conceptual question, why the

main approaches to understanding civil disobedience are defective

21

2

A d u t Y to R e s I s t

and limited, and how we should instead conceive of principled disobe-

dience beyond the narrow confines of civil disobedience.2

The term “civil disobedience” is used not only to describe but

also to evaluate. To call a disobedient act civil is to highlight the

agent’s principled motivations and communicative intentions, to

make a disruptive breach of law intel igible as a speech-act— an

address to the community— and, thus, to begin the work of its justification. Especially in the United States, civil disobedience evokes

a venerable tradition associated with the likes of Rosa Parks and

Martin Luther King Jr. The label is coveted, in a way, sought out to

legitimize illegal actions. For instance, social conservatives compared

Kentucky county clerk Kim Davis’s refusal to issue marriage licenses

to same-sex couples to Rosa Parks’s refusal to give up her seat on the

segregated city bus.3 It is in part because civil disobedience is exalted

that so much is at stake in its meaning, that public discourse and the

philosophical literature are hard to revise.

The historical connotations and established meaning of civil disobedience hint at the difficulty of redefining the concept, while its

normative significance and appeal explain the reluctance to steer

away from civil disobedience and the temptation to expand its scope

to encompass any activity with which one is politically aligned. To be

sure, there is something special about civil disobedience. But I will

argue in the next chapter that there is something special about uncivil disobedience, too, and that we should stop associating incivility

with wrongfulness and look to its aptness and potential value under

certain oppressive circumstances.

The acts of principled disobedience listed above may be acceptable, but they are not civil, and there should be no need to modify

our concept of civil disobedience to incorporate them. Instead, I propose to articulate a basically sympathetic approach to principled disobedience, open to the possibility that these acts are justified. Indeed

the next chapter will show that uncivil acts of disobedience can be

22

23

P R I n c I P l e d d I s o B e d I e n c e

justified, in part on the basis of the grounds commonly used to justify

civil disobedience; and chapters 3– 6 will argue that they can even be

required in some circumstances, on the basis of the grounds commonly used to support the moral duty to obey the law. A sympathetic

approach should be phenomenologically accurate— that is, faithful

to practitioners’ self-understanding— and politically useful, which

is to say able to contribute to public debates. This project is broadly

“ameliorative,” to use Haslanger’s terminology, insofar as it puts forward a framework to assess disobedience that supports emancipatory

struggles such as those pursued by the agents mentioned above.4

The ordinary conception of civil disobedience associated with

Rawls tends to undermine emancipatory struggles (despite the

emancipatory potential of an attentive reading of his theory). Shaped

by an idealized theory and an unrealistic reading of the African

American civil rights struggle, civil disobedience as ordinarily understood by the public and by philosophers deters noncompliance and

reinforces the status quo. Kimberley Brownlee and Robin Celikates

have instead offered “inclusive” accounts of civil disobedience. These

are capacious enough to encompass all the acts of principled disobedience mentioned at the outset, and they offer worthwhile counter—

narratives to public censure and states’ punishment. However, they

stretch the concept of civil disobedience beyond recognition and fail

to account for activists’ deliberate departures from the standard template of civil disobedience. The most promising ameliorative route is

not maximal inclusion, I will argue, but a richer repertoire of political

resistance that includes uncivil disobedience.

dIsoBedIence In tHe cIVIl RIgHts stYle

Public understanding of civil disobedience is the product of two

different strands: the broadly Rawlsian philosophical conception

23

24

A d u t Y to R e s I s t

of civil disobedience and the official narrative of the civil rights

movement in the United States. The two have combined into a

commonly held conception of what civil disobedience meant in

the civil rights movement of the 1950s– 1970s— a conception that

functions as a counter-resistance ideology, as I shall argue. Although

the discussion is centered on the American context, it applies across

publics, given the global resonance of the civil rights movement and

its associations with figures from Gandhi to Nelson Mandela, the

Dalai Lama, Liu Xiaobo, and Malala Yousafzai, and movements from

the Palestinian Intifada to the Arab Spring and Spain’s Indignados,

among others. I am not aware of any comparative research on peoples’ understandings of civil disobedience, but one might reasonably

expect many similarities with the American conception, itself inspired in important ways by experiences abroad.

Theory and History

Legal, moral, and political theorists in the Anglo-American tradition began reflecting on civil disobedience in the 1960s, in the midst

of civil rights and anti– Vietnam War protests in the United States,

anti-nuclear protests throughout the West, and decolonization

struggles in the global South. Carl Cohen, Michael Walzer, Ronald

Dworkin, Richard Wasserstrom, and, most prominently, John Rawls,

conceptualized and defended civil disobedience against official and

widespread public accusations that disobedience, even if principled,

sowed lawlessness and invited violence.

Theorists were successful in carving out a space for civil disobedience in liberal democracy. Erin Pineda highlights the significant impact that theorists had in the U.S. context:

What emerged out of this effort has been a remarkably stable set

of ideas about civil disobedience— the forms of action and sets

24

25

P R I n c I P l e d d I s o B e d I e n c e

of attitudes entailed by it— that have remained central to the way

that political theory, and the American political public at large,

reasons about the definition, role, and justification of disobedient protest.5

This stable set of ideas is Rawls’s. In his view, civil disobedience is a

conscientious, public, nonviolent breach of law undertaken to persuade the majority to change a law or policy in a nearly just society.6

Rawls understood publicity to require that agents give authorities fair

notice of their planned disobedient activity, act in public, and appeal

to the community’s shared conception of justice. He thought that

nonviolence excluded the use of force (or coercion, in Rawls’s usage)

and actual or likely infliction of harm against persons. In addition,

agents of civil disobedience are supposed to accept, and even seek

out, the legal consequences of their actions. In doing so they demonstrate their general “fidelity to law,” endorsement of the system’s

legitimacy, and belief that the latter generates a moral duty to obey

the law.

Thus, in Rawls’s vision, civil disobedience contrasts with armed

resistance, rebel ion, and revolution, which use violence and covert tactics, and whose agents reject the system’s legitimacy, lack

respect for established law, seek to evade punishment, and pursue

radical goals. Rawls further sets forth three necessary justificatory

conditions, which purport to minimize the disruptive effects of civil

disobedience: the act must (1) target a serious violation of the first

principle of justice in Rawls’s theory (“the principle of equal basic

liberties”), (2) be undertaken as a last resort, and (3) be coordinated

with other groups with similar grievances.

Rawls did not devise his account out of thin air. It came from, and

refined, some of the ideas articulated by activists themselves. We might

say, though, that he brought these ideas together in a way that “stuck”

and that his concerns about the threat of principled disobedience to

25

26

A d u t Y to R e s I s t

law and order were shared by the dominant majority— that is, people

who viewed their society as democratic and basically just.

What inspired this account was not the radical activism of Thoreau

and Gandhi. Though icons of civil disobedience, their actions do not

fit inside Rawls’s boundaries. Thoreau’s tax refusal lacked the publicity now associated with civil disobedience; it became public only

because he later wrote and lectured about it.7 Tel ingly, his essay

was originally titled “Resistance to Civil Government” and posthumously retitled “On Civil Disobedience.” Gandhi had revolutionary

goals. As David Lyons has argued, neither man deemed, or had

any reason to deem, his state— antebellum United States or British

Raj— legitimate.8

It was the style of King and others involved in the Black civil rights

struggle that most clearly shaped the standard account. Campaigns

such as the Good Friday march in Birmingham (which violated a

court order), lunch counter sit-ins, and Freedom Rides satisfied

many of Rawls’s demanding criteria.9 They appealed to constitutional principles of political morality and pursued modest goals of reform, not revolution. Activists thoroughly trained in and committed

to nonviolence disobeyed the law publicly, often giving authorities

advance notice of their plans. They responded to state and mob violence peacefully and wil ingly submitted to arrest and jail for their

lawbreaking. They displayed the essential marks of civility.

By praising activists’ respect for law and emphasizing their endorsement of the system’s legitimacy, philosophers reassured law-and- order opponents. But this strategy distorted political reality.10

For activists’ outward submission to law did not in fact reflect their

endorsement of the system’s legitimacy or their acceptance of a moral

duty to obey the law. The standard account wrongly— that is, implausibly and objectionably— ascribed these attitudes and beliefs to civil

disobedients whose choices in fact were mainly driven by strategic

rather than moral considerations. For example, the Montgomery bus

26

27

P R I n c I P l e d d I s o B e d I e n c e

boycott demanded the end of segregated seating in public buses—

not the end of racial segregation— because social and legal change

are known to occur in a piecemeal fashion. Indeed, its organizers initially demanded only courtesy and the hiring of Black drivers. But

King’s objective went far beyond buses. “The thing to do,” he wrote,

“is get rid of the system.”11 And Southern authorities’ unyielding response reflected a shared understanding of what was at stake in apparently limited reform.

King denied that the United States of Jim Crow deserved respect and called the caste system “unjust” and “evil.”12 His famous

insistence, in the “Letter from Birmingham City Jail,” that civil disobedience expresses the “highest respect for law,” has been widely

misunderstood. It appears in the context of his discussion of natural

law’s tenet that “an unjust law is no law at all” and can only be properly

understood to enjoin respect for just law, as opposed to deference to

any law at all by virtue of its being a law. In turn, the commitment

to nonviolence was a strategic choice, not a reflection of absolutist

moral principle or fidelity to law. King acknowledged the aptness of

anger, and the legitimacy of violence in self-defense, but argued that

the civil rights movement ought to be steadfastly nonviolent so as

not to risk frightening the White majority (he deemed fear a central

affective component of anti-Black racism).13 He denied the standard

equation between nonviolence and non-coercion, observing that

nonviolent civil disobedience can “create such a crisis and establish

such creative tension that a community that has constantly refused

to negotiate is forced to confront the issue.”14 King also conceived of

submission to arrest and punishment in symbolic terms, as a “powerful and just weapon,” and as a matter of prudence, given that civil

rights activists were outnumbered and outgunned.15

In short, civil rights groups adopted their particular style of civil

disobedience for context-dependent, tactical purposes. Yet theorists

and pundits turned these tactics into deep moral commitments on the

27

28

A d u t Y to R e s I s t

part of agents supposedly eager to demonstrate their endorsement of

the state’s legitimacy, and placed these subjective requirements at the

core of their defense of real-world civil disobedience.

Rawls’s Theory

Let me pause and consider an objection on behalf of Rawls before

turning to the ideological work that the standard conception of civil

rights style civil disobedience does. Rawls’s followers stress his explicit restriction of the account of civil disobedience to the special

context of the nearly just society. Nearly just societies publicly endorse, and are ordered by, principles of justice such as the ones Rawls

defends in A Theory of Justice. They are democratic. They generate a

moral duty to obey the law that is grounded in the duty of justice,

which demands supporting just institutions ( chapter 3 examines

this account). Civil disobedients are to accept the political system as

nearly just only when it is, and the United States of his time could

obviously not be deemed nearly just, according to Rawls’s own

standards of near justice.16

I agree that an attentive reading of Rawls’s theory yields the

conclusion that it shouldn’t be applied to Thoreau’s, Gandhi’s, and

King’s civil disobedience. Nevertheless, it has been so applied, and

it has clearly inspired the standard account of civil disobedience

I just critiqued. Rawls invites the application of his theory to the activism of his day when he characterizes his account of civil disobedience as an incursion into “partial compliance theory,” defined as the

study of “the principles that govern how we are to deal with injustice.” He highlights the importance of such inquiry: “Obviously, the

problems of partial compliance theory are the pressing and urgent

matters. These are the things that we are faced with in everyday life.”17

So one might reasonably find it strange if Rawls’s discussion about

this “pressing and urgent” issue of civil disobedience didn’t apply to

28

29

P R I n c I P l e d d I s o B e d I e n c e

real-world civil disobedience. He also appears to believe that U.S. society was nearly just. In 1964, before the end of de jure racial segregation, he writes, “I shall assume, as requiring no argument, that there

is, at least in society such as ours, a moral obligation to obey the law,”

a condition that could only hold in a nearly just society.18

In any case, Theory of Justice does have emancipatory potential.

In it Rawls is open to the possible justification of forms of principled

disobedience beyond civil disobedience in unjust as well as nearly

just societies. He argues that sometimes, when political systems are

ordered by defective conceptions of justice, “one may have no re—

course but to oppose the prevailing conception and the institutions

it justifies in such ways as promise some success.”19 He also writes

that “sometimes,” if the civil disobedient’s appeal to the majority

“fails in its purpose, forceful resistance may later be entertained.”20

And in Justice as Fairness: A Restatement, Rawls notes the risk that,

even in an apparently wel - ordered, nearly just society, “when the

strains of commitment seem to us excessive . . . we become sullen

and resentful, and we are ready as the occasion arises to take violent

action in protest against our condition.”21 However, Rawls does not

discuss the acceptable escalation path from civil to uncivil disobedience, or the potential justification of the latter. Thus we need fuller

exploration of partial compliance theory.

History and Ideology

The official reading of the civil rights movement is not just inaccurate

in its presentation of agents’ attitudes and ideals. It also functions,

thanks in part to this inaccuracy, as a counter-resistance ideology.

First, the official narrative undercuts political radicals by falsely

equating the civil rights movement with the campaigns led by

King and the Southern Christian Leadership Conference, thereby

ignoring the contributions of ideologies, groups, and campaigns

29

30

A d u t Y to R e s I s t

such as Black nationalism, the Black Panther Party, the Nation of

Islam, pan-Africanism, Black workers’ movements, prisoners’ rights

movements, Black feminism, third-worldism, and assorted Marxist

liberation movements. Adherents of some of these less-recognized

groups resorted to violence and called for an overthrow of the racist,

imperialist system. But official history brushes these activists aside.

It may be that some of them threatened the civil rights movement’s

success, but without these radical movements as foil, King’s

movement would not have looked so moderate, and therefore may

not have gained support from White liberals.22 In his “Letter from

Birmingham City Jail,” King poses his movement of nonviolent direct

action as the only alternative to Black violence. He stressed that “the

streets of the South would be flowing with floods of blood,” but for

his movement.

And I am further convinced that if our white brothers dismiss

as “rabble rousers” and “outside agitators”— those of us working

through the channels of nonviolent direct action . . . mil ions of

Negroes, out of frustration and despair, will seek solace and security in black ideologies, a development that will lead inevitably

to a frightening racial nightmare.23

And so the history we tell is one in which a nonviolent, state—

legitimizing civil disobedience movement single-handedly wins the

struggle for civil rights. The larger, longer, and more pugnacious process of political resistance is ignored, lest anyone get the wrong idea

about how to protect themselves or vindicate their rights.

Second, the accepted narrative overstates the victory of the

civil rights movement, as crystallized in the 1964 Civil Rights Act,

the 1965 Voting Rights Act, and the Federal Housing Act of 1968,

thereby discouraging further activism. Fifty years on, many of the social il s that inspired the movement remain unaddressed: residential

30

31

P R I n c I P l e d d I s o B e d I e n c e

and school segregation continue to divide Americans by race; many

states have counteracted Black voters’ access to representation and

the political franchise through electoral redistricting, voter ID laws,

and felon disenfranchisement; Blacks still suffer disproportionately

from poverty and unequal opportunities in education, work, and

healthcare; racism is pervasive, openly so in a White-supremacist,

nationalist movement rebranded “alt-right”; courts and the public

oppose race-conscious antidiscrimination policies as outdated and

unnecessary; and police profile, abuse, and even kill Blacks with

near impunity. The civil rights movement accomplished important

gains, but in overstating these, we portray American society as having

realized the demands of justice and therefore successfully generated a

moral duty to obey the law.

Third, the emphasis on civil rights activists’ nonviolence counsels

compliance in the face of Black victimization. In Between the World

and Me, Ta-Nehisi Coates writes of Black History Month,

Every February my classmates and I were herded into assemblies

for a ritual review of the civil-rights movement. Our teachers

urged us toward the example of freedom marchers, Freedom

Riders, and Freedom Summers, and it seemed that the month

could not pass without a series of films dedicated to the glories

of being beaten on camera. Why are they showing this to us? Why

were only our heroes nonviolent? Back then all I could do was

measure these freedom-lovers by what I knew. Which is to say,

I measured them against children pulling out [guns] in the

7-Eleven parking lot, against parents wielding extension cords,

and the threatening intonations of armed Black gangs saying,

“Yeah, nigger, what’s up now?” I judged them against the country

I knew, which had acquired the land through murder and tamed

it under slavery, against the country whose armies fanned out

across the world to extend their dominion. The world, the real

31

32

A d u t Y to R e s I s t

one, was civilization secured and ruled by savage means. How

could the schools valorize men and women whose values society

actively scorned? How could they send us out into the streets

of Baltimore, knowing all that they were, and then speak of

nonviolence?24

Coates highlights the hypocrisy and even absurdity of urging nonviolence upon children whose daily lives are dominated by violence, in

a country founded upon, and continually engaged in, the same. Here

and elsewhere in his writings, he shows how the official narrative

valorizes docility and deters the population— especially Blacks—

from unruly kinds of resistance. As he puts it elsewhere, “When

nonviolence is preached by the representatives of the state, while the

state doles out heaps of violence to its citizens, it reveals itself to be

a con.”25

Fourth, the official narrative’s categorical condemnation of violent resistance obscures state-authored and state-condoned violence. Angela Davis stressed this in a 1972 interview with Swedish

reporters who asked whether she approved of the use of guns and

violence. In response, she problematizes the assumptions underlying the question, describing “the violence that exists on the surface everywhere” for Blacks, which she experienced firsthand in Los

Angeles: being eyed with suspicion, constantly stopped and frisked

by police, treated as criminals or agitators. She goes on:

And then you ask me whether I approve of violence. . . That just

doesn’t make any sense at all. Whether I approve of guns? I grew

up in Birmingham, Alabama. Some very, very good friends

of mine were killed by bombs— bombs that were planted by

racists. From the time I was very small I remember the sound

of bombs exploding across the street, our house shaking. I remember my father having to have guns at his disposal at all times

32

3

P R I n c I P l e d d I s o B e d I e n c e

because of the fact that at any moment we might expect to be

attacked. The man who was at that time in complete control of

the city government— his name was Bull Connor— would often

get on the radio and make statements like “Niggers have moved

into a White neighborhood. We’d better expect some bloodshed

tonight!” And sure enough there would be bloodshed.26

In the face of a regime of terror, some Blacks responded by arming

themselves for protection. Davis’s analysis suggests that those who

condemn Black (mostly self-defensive) violence tend to do so in a

vacuum, without regard to, and in ways that obfuscate, the state’s own

encouragement and commitment of violence against Blacks.

Fifth, and related, ubiquitous calls for civility conceal and distract

from what Bernard Harcourt calls “incivility of politics”— the harms

it regularly inflicts on citizens. All too often these demands, implicit in

the official history of civil rights, are wielded disingenuously by those

in power to deter noncompliance and even law-abiding dissent.27

Austin Sarat finds in Walker vs. Birmingham, the 1963 Supreme Court

ruling that upheld the city of Birmingham’s injunction against civil

rights activists, “an instance in which the demand for civility was

taken to a frightening extreme,” to the point of “pathology.”28 The

ruling described activists as “impatient,” and, Sarat finds, implied

that they were “uncivil, disrespectful, and dangerous.”29 The Court

put “respect for judicial process” above all else: it upheld the arrests

of activists, including King and Ralph Abernathy, on the grounds that

they ought not have disobeyed the injunction, even though it would

not have withstood constitutional scrutiny. Civility is equated with

law-abidance and deference— abidance by an unjust and unlawful

court order, and deference to a racist city itself openly noncompliant

with federal law.

Walker vs. Birmingham is not an isolated sickness of the body politic; it is symptomatic of widespread social il s. Recall that the White

33

34

A d u t Y to R e s I s t

clergy called King’s civil rights movement “rabble rousers.” Harcourt

notes in his analysis of the political uses of civility and incivility,

The faculty to define certain speech as uncivil, to castigate a

speaker, to call for, urge, or demand civil discourse— and to get

away with it— is intimately connected to one’s place in the political realm. It is also, unquestionably, a political stratagem. . . .

Calling out incivilities and urging greater civility in political discourse are arrows in the quiver of the political arts. Although

they are presented as neutral, they are not. They represent, instead, a way to seize the political high-ground. As such, they

often redound to the benefit of those who are in stronger political positions. Often, they serve the interests of the more dominant or mainstream political voices.30

The powerful often use calls for civility to control and silence activists,

to cast a negative light on their activities and prejudice the public

against them. Calls for civility ignore and obscure the differentials

of power— the fact that it is easy for those in power, and harder for

entrenched minorities, to speak and be listened to and therefore to

be civil. The former have ready access to the public sphere, while the

latter not only lack such access but are also vulnerable to discrimination, prejudice, and epistemic injustice (which consists in doing

wrong to people in their capacity as knowers, for instance by failing

to really listen to them or by deflating the credibility or sincerity of

their testimony).31

By misrepresenting the historical realities of social change, and

articulating a set of associated beliefs and judgments about civil disobedience, the history and theory of civil disobedience warp public

understanding of liberation struggles. To be clear, what is at stake in

the official narrative of the Black freedom movement is not simply

historical accuracy: this narrative and the theory of civil disobedience

34

35

P R I n c I P l e d d I s o B e d I e n c e

it rationalizes provide the benchmark against which other social and

political movements are judged. Usually they are judged harshly—

for what can live up to an ideal?— and therefore branded uncivil and

dangerous.

In the official narrative of civil rights and the standard theory of

civil disobedience, we thus have something like an ideology, which

includes a defense of the status quo through a series of conformist

moves: affirmation that our society is a nearly just one, erasure of

state-authored violence, and celebration of submission and docility.

Such implicit counter-resistance ideology demands in response an

accurate history of the struggle for civil rights, to replace the sanitized

and distorted official picture, and an ameliorative account of political

resistance.

InclusIVe Accounts oF cIVIl

dIsoBedIence

Theorists dissatisfied with the standard, Rawlsian account have articulated “minimalist” or “inclusive” concepts of civil disobedience that

extend to all sorts of principled lawbreaking.

Brownlee’s is one such account. She problematizes the conceptual distinctions standardly drawn between civil disobedience and

other types of dissent, noting that civil disobedients may intend a

revolution and that conscientious objectors often seek broad reform

and not simply personal exemption. For Brownlee, civil disobedience “must include a deliberate breach of law taken on the basis of

steadfast personal commitment in order to communicate our condemnation of a law or policy to a relevantly placed audience.”32 This

kind of civil disobedience need not be public or nonviolent. What

sets it apart from ordinary crime, radical protests, and private conscientious objection (or “personal disobedience” in her terminology)

35

36

A d u t Y to R e s I s t

are its constrained, communicative, and non-evasive properties,

which mark the agent’s efforts to engage an intended public in dialogue. Thus Brownlee conceives of the suffragist tactics as civil disobedience and she has argued that Snowden’s actions were civilly

disobedient on her account but not on Rawls’s.33

For his part, Celikates, who spearheads the radical democratic

approach, has also been a vocal critique of the standard liberal account

of civil disobedience. He challenges the narrowness and ideological

underpinnings of the criteria of publicity, nonviolence, wil ingness

to accept punishment, appeal to shared principles of justice, and

even conscientiousness. As counterexample to the latter criterion, he

points to cases of self-interested civil disobedience, for instance to

protest a new highway slated to pass through one’s neighborhood.34

Celikates understands civil disobedience as

an intentionally unlawful and principled collective act of protest (in contrast to both legal protest and “ordinary” criminal

offenses or “unmotivated” rioting), with which citizens— in the

broad sense that goes beyond those recognized as citizens by a

particular state— pursue the political aim of changing specific

laws, policies, or institutions (in contrast to conscientious objection, which is protected in some states as a fundamental right

and does not seek such change) in ways that can be seen as civil

(as opposed to military).35

This broad conception imposes no requirement on the agent’s attitude toward the system, her target, or the principles she appeals to.

The civilly disobedient act need not be done publicly. Celikates also

rejects the nonviolence proviso, on the grounds that it reduces civil

disobedience to a merely symbolic protest (a speech-act) and thereby

ignores the confrontation it unavoidably creates.36 Both Celikates’s

and Brownlee’s inclusive conceptions maintain Rawls’s core insight

36

37

P R I n c I P l e d d I s o B e d I e n c e

that civil disobedience is essentially a communicative act aimed at

political change, but they leave much else up for grabs.

Celikates’s and Brownlee’s accounts of civil disobedience are ameliorative in the sense I explained earlier: they are, and present themselves as, efforts to justify emancipatory resistance to injustice. Both

include in the category of civil disobedience controversial acts of resistance performed by suffragists, sanctuary workers, and others. The

thrust of Brownlee’s argument in Conscience and Conviction: The Case

for Civil Disobedience is that civil disobedients have stronger claims to

legal protection than do conscientious objectors— protections that,

in liberal societies, are considerable. She also defends a moral right of

civil disobedients to evade legal punishment. Celikates, meanwhile,

offers a radically democratic understanding of disobedience as a dy—

namic contribution to political processes, contra what he sees as the

“overly constrained, domesticated and sanitized” understanding of

civil disobedience offered by mainstream liberal accounts.37

I am sympathetic to both accounts, but principled disobedience

as I shall articulate it is, I think, more politically useful and phenomenologically accurate than these ameliorative versions of civil

disobedience.

First, Brownlee and Celikates stretch the concept of civil disobedience beyond recognition, encompassing in it some features

previously deemed to be incompatible. For instance, sabotage and

violence can be civilly disobedient on Brownlee’s view.38 And

Celikates, in a co-authored article, dubs Anonymous civilly disobedient even when the group members conceal their identity,

use coerced botnets to launch DDoS attacks, and admit mixed

motivations including just a zeal for pranks.39 These features, the

authors recognize, are usually seen as “other” to, or even “opposites”

of, civil disobedience. Because of this, inclusive accounts of civil disobedience stand little chance of convincing the public and therefore

score low on the political-usefulness quotient.

37

38

A d u t Y to R e s I s t

A second problem with inclusive accounts is that they miss the

point of many disobedient actions, which is to refuse to follow the

standard script of civil disobedience. Emmeline Pankhurst defended

suffragists’ use of “militant methods” (including heckling, window—

smashing, sabotage, and hunger strikes) and characterized herself as

a “soldier” in a “civil war” waged against the state. Ukrainian-French

radical feminist collective Femen brands its disobedience as radical

and provocative, not civil, by calling its tactics— which include “sex

attacks, sex diversions and sex sabotage”— sextremism.40 Cultural

critic Mark Dery conceives of “culture jammers”— such as bil board

bandits, hacktivists, and media hoaxers— as “artistic terrorists”

and “communication guerril a” fighters.41 And Black Lives Matter

activists hint at the rupture between their work and understandings

of civil disobedience with the slogan “Not Your Grandfather’s Civil

Rights Movement.” In short, agents may see themselves, and seek to

be perceived, as radical and provocative rather than civil.42

There may be other good reasons for activists to openly reject civility: incivility can be used as a strategy to publicize a group’s cause.

Or, again, agents may not be in a position to claim civility. In his discussion of poor urban Blacks’ acts of spontaneous defiance, Tommie

Shelby notes,

Spontaneous rebel ion reaches its apotheosis in the urban riot,

where looting, mass destruction of property, and brutal violence

are on public display. When legitimate avenues for political

action fail to produce results or are closed off, such public unrest

can seem to be the only power the ghetto poor can wield collectively that has a chance of garnering concessions from the state.43

And Avia Pasternak writes that, in the absence of the political capital needed to organize lawful protests and even civil disobedience

campaigns, “political rioting could be the only accessible form of

38

39

P R I n c I P l e d d I s o B e d I e n c e

political participation for the seriously marginalized members of society, at least in the very initial stages of protest.”44 Recourse to civil

disobedience may be closed off to other marginalized populations.

Prisoners, who are often stripped of their civil and political rights (disenfranchisement is known as “civic death”) and barred from effective

communicative action, cannot take part in civil disobedience even if

they wish to. And some activists may explicitly reject civility in order

to expose the falseness of the presumption of equal standing within

the standard conception of civil disobedience.

As things stand, we are not equipped to analyze and justify these

departures from the template of civil disobedience: the public understanding of civil disobedience excludes uncivil disobedience from

the realm of justifiable disobedient protest, Rawls only discusses civil

disobedience and restricts it to the nearly just society, and inclusive

accounts such as Brownlee’s and Celikates’s erase the distinctiveness

and underlying intentions of uncivil means by encompassing them

within civil disobedience. In my view, most of the ameliorative action

takes place outside civil disobedience: we should expand our repertoire of potentially acceptable modes of principled disobedience

beyond civil disobedience, readily granting the incivility of certain

disobedient acts and opening ourselves to the possibility that some

types of uncivil disobedience can be justified.

A mAtRIX oF ResIstAnce

So, how we understand civil disobedience, how we distinguish it

from other forms of resistance, matters. How should we understand

it? The way forward and out of the deadlocked debates in which

sympathizers affirm, and opponents deny, that a given act of resistance qualifies as civil disobedience, consists in expanding our repertoire of potentially acceptable modes of unlawful resistance beyond

39

40

A d u t Y to R e s I s t

civil disobedience. We should readily grant the incivility of certain

disobedient acts and open up to the possibility that some acts of uncivil disobedience are justified. A matrix of resistance seeks to lead

this way forward. This matrix will not offer necessary and sufficient

conditions for its central concepts— resistance, principled disobedience, civil and uncivil disobedience— but simply highlight some

features of the concepts, like constel ations on the matrix rather than

sharply outlined categories.

I use “resistance” to designate a broad range of dissident activities,

of varying scope and impact, which express opposition, and perhaps

refusal to conform, to a dominant system of values, norms, rules, and

practices. Such rules and practices may be codified in law. Resistance

is, by definition, principled— that is, morally or politically motivated.

Resistors basically share an urge to respond to (if not also to change)

perceived injustice. They may or may not recognize the system’s legitimacy. The principles that ground resistance may or may not be

worthy of public recognition (resistance in pursuit of White nationalism, for instance, is unjustifiable).

Resistors may address private or public actors, at home, abroad,

or at the global level. They may pursue a variety of goals including, but

not limited to, communicating condemnation of an accepted norm,

law, court sentence, police order, or practice; denouncing wrongs

and democratic deficits; alerting the public to a wrong; asserting

rights; protecting oneself and others; protecting animals and the environment; promoting important values such as freedom and transparency; seeking legal reform; seeking cultural changes; asserting

dignity; gaining collective self-determination; expressing solidarity;

frustrating a wrong; calling for secession; refusing to participate in

wrongful activities; protesting historical wrongs; and retaliating

against wrongdoers. This versatile list shatters the traditional di—

chotomy between civil disobedience and resistance-as- rebel ion,

outlining instead a capacious concept of resistance encompassing

40

41

P R I n c I P l e d d I s o B e d I e n c e

lawful dissent, principled disobedience and, at the limit, revolution.

As should be clear, resistors may be wrong in their assessment of

wrongs and injustices, and the goals they pursue may or may not be

justified: the matrix of resistance sketched here does not prejudge the

assessment of particular acts.

Elements of this concept of resistance exist in other theories, but

none are so comprehensive. On the one hand, feminist philosophers

have long advanced a fluid notion of resistance, understanding its

role in denouncing unjust conditions, changing cultural norms

(e.g., through consciousness-raising and everyday resistance), and

asserting self-respect.45 However, they have largely been concerned

with lawful acts and social movements. Theorists of civil disobedience, on the other hand, focus on a particular, narrowly constrained

style of unlawful protest.

I am not aware of any account of resistors seeking revenge for

perceived wrongs. Yet many acts of slave resistance could fall in this

category, from work slowdowns to cheating on the weight of a daily

crop by adding stones or soaking cotton in water.46 Instances of jury

nullification may also fit the bil . For example, some of the jurors in

O. J. Simpson’s murder trial have admitted voting to acquit him as

“payback” for police brutality.47 And “Operation: Avenge Assange”

saw Anonymous conduct a series of DDoS actions in retaliation

against a dozen corporate websites, including Visa and PayPal, for

their decision to freeze donations to WikiLeaks (under government pressure) after it published classified state documents leaked

by Chelsea Manning.48 In short, there are numerous gaps in current

discussions of resistance, which this matrix of resistance aims to fil .

Resisting injustice involves refusing to cooperate with, and trying

to undermine, the mechanisms that produce and sustain it. One may

do so through lawful acts such as marches, denunciations of wrongs,

verbal or symbolic expressions of solidarity, advocacy, human rights

lawyering, silent protests, and online activism. Lawful resistance may

41

42

A d u t Y to R e s I s t

be uncivil: think of the Westboro Baptist Church’s hateful protests

at gay soldiers’ funerals, internet trol s, or politically conscious yet

offensive hip-hop like N.W.A.’s 1988 “Fuck Tha Police,” which Shelby

conceives as a kind of “impure political dissent.”49 Jessica Bulman—

Pozen and David Pozen have recently theorized another kind of lawful

resistance under the banner “uncivil obedience,” which they define

as hyperbolic, literalistic, or otherwise unanticipated adherence to a

legal system’s formal rules.50 Examples include motorcyclists strictly

adhering to the speed limit in order to protest it and the creation of a

political action committee by the TV host Stephen Colbert in order

to ridicule Federal Election Commission rules.

Among unlawful acts of resistance I am interested in “principled

disobedience,” a category that encompasses civil and uncivil disobedience, and other kinds of lawbreaking that may be aptly characterized

as neither (such as terrorism).51 Principled disobedience refers to politically or morally motivated resorts to illegality in the opposition or

refusal to conform to the system’s dominant norms. Illegality raises

special issues given states’ claims to subjects’ obedience, agents’ liability to legal sanction, and the common view that lawbreaking is presumptively wrong. In order to unpack these issues, I have determined

to focus on principled— especially civil and uncivil— disobedience.

Civil disobedience is one subset of principled disobedience. It

designates deliberate breach of law intended to protest unjust laws,

policies, institutions, or practices and undertaken by agents broadly

committed to basic norms of civility. There are four such norms associated with civil disobedience: publicity, non-evasiveness, nonviolence, and decorum.

On the standard account, recall, publicity (the agent’s performance of the act in the open), non-evasiveness (her acceptance

of legal sanctions), and nonviolence (which rules out the use of

force and infliction of harm) are necessary to the disobedient act’s

communicativeness— its nature as a speech-act— and civility. But

42

43

P R I n c I P l e d d I s o B e d I e n c e

there is more to it. Consider Pussy Riot’s “Punk Prayer”: public, non—

evasive, and nonviolent, this guerril a-style protest song in a Russian

Cathedral was nonetheless denied the label of civil disobedience because, detractors argued, it desecrated a religious place and defiled

the state. Members of the group were convicted of “premeditated

hooliganism,” which is defined as “the flagrant violation of public

order expressed by a clear disrespect for society.” Campus protests in

the United States, whether or not they involve illegality, are regularly

deemed “uncivil” even when they meet the three norms of civility.

Many journalists and other members of the public do not view student protests as the nonviolent speech-acts that, for the most part,

they are, focusing instead on what are seen as rude, even “hysterical”

shouting-down tactics. Or again, acts of principled lawbreaking that

are public, non-evasive, and nonviolent, such as road blocks, may be

so disruptive that they are not seen as civil. According to critics, religious sacrilege, refusal to listen to one’s adversary, and grave disruptiveness constitute failures to treat the audience respectfully, and are

therefore incompatible with the civil disobedient’s civility.

These critiques point to a fourth norm of civility, which I conceive as decorum. For liberals, civility-as- decorum is what we need

to get along with people with whom we disagree. It concerns the

ways citizens ought to interact with each other in the public sphere,

when debating political questions. Specifically, citizens ought to

set aside comprehensive (religious and moral) values, appeal to the

values of public reason, and listen to others’ views with respect and

fair-mindedness.52 On the standard liberal picture, citizens who want

to enter the public sphere ought to behave in a dignified and polite

manner and avoid causing offense. Civil disobedients, in particular,

ought to treat their audience respectfully, as people they seek to persuade. Pussy Riot’s attack on religion caused outrage; shouting down

runs afoul of the demand that we listen respectfully to others with

whom we disagree; and even peaceful roadblocks may cause such an

43

4

A d u t Y to R e s I s t

inconvenience to the public that they are seen as reckless and disrespectful. All three may be deemed to be offensive and disrespectful

(though in different ways) and thus to fall short of civility-as- decorum.

This is not to say, however, that any denial of civility should always be taken at face value, as Sarat’s analysis of Walker evinces.

San Francisco 49ers’ quarterback Colin Kaepernick’s silent protest in 2016, as he sat during the national anthem to protest racial oppression, provoked widespread outrage. Kaepernick was

condemned as a “traitor,” disrespectful to the flag.53 But his protest,

and the “take-a- knee” campaign that followed the next year, has been

lawful and respectful. Construing it as a breach of civility-as- decorum

seems exaggerated and disingenuous. Those in power often unjustly

wield accusations of incivility to silence and stigmatize protesters—

especially when these are Black.

The definition of civil disobedience as a public, nonviolent, non—

evasive, respectful principled breach of law intended to persuade the

majority captures well the public’s rather narrow understanding of

the boundaries of acceptable political protest. It constitutes a pared—

down version of the standard Rawlsian account, as it does not include

any subjective requirements such as the agent’s endorsement of the

system’s legitimacy and acceptance of the moral duty to obey the law.

The basic norms of civility at the core of civil disobedience

suggest the following features of uncivil disobedience: covertness,

evasiveness, violence, and offensiveness. We might conceive of uncivil disobedience as a cluster concept, for whose application we

treat any one of the four features— covertness, evasiveness, violence, and offensiveness— as sufficient. But, in recognition of the

complexities of political action and difficulties of drawing clear definitional lines, I prefer to simply say that acts of principled disobedience that are covert, evasive, anonymous, more than minimally

destructive, or deliberately offensive are generally uncivil, especially

if they display more than one of these traits. Some acts of uncivil

44

45

P R I n c I P l e d d I s o B e d I e n c e

disobedience are primarily communicative, but many do not aim

to persuade an audience— seeking instead to prevent or redress

wrongs— though they may still include communicative elements.

Examples include coercive strikes, riots, guerilla street art, DDoS

actions, hunger strikes, covert assistance to undocumented

immigrants, unauthorized whistleblowing, vigilantism, and the

strategies commonly labeled as direct action, such as ecosabotage

and animal rescue operations.

Strikes are coercive and violent when participants deploy force

against employees who choose to work during the strike (“scabs”)

and those hired by the company to keep production running

(“strikebreakers”). Riots involve collective public violence such as

looting, property destruction, and harm against persons. Gueril a

street art is covert and evasive, typically done under cover of night.

DDoS actions are usually anonymous and evasive, and often coercive

insofar as they enroll involuntary computer botnets through mal—

ware. Hunger strikes are evasive and coercive, involving threat of suicide and the deliberate and repeated defiance of official orders, and

imposing serious burdens on the targeted authorities. Unauthorized

whistleblowing poses serious risks of harms to persons, such as un—

dercover agents and informants, and to national security. Vigilantism

usually includes violence against persons. Ecosabotage involves

deliberate and more than minimal destruction of property (e.g.,

monkey-wrenching) and sometimes the endangerment of persons

(e.g., tree spiking).

Acts of conscientious objection, which fall in the category of principled disobedience when they are illegal (much conscientious objection is legally protected in liberal societies), may be civil or uncivil

depending on the form they take. For instance, U.S. draftees could

conscientiously object to the Vietnam War through public protests

and civil disobedience or covertly and evasively— uncivilly—

through draft dodging (e.g., escaping to Canada)— or both.

45

46

A d u t Y to R e s I s t

This concludes our conceptual investigation of resistance and

disobedience. As we saw, the standard understanding of civil disobedience combines the philosophical, broadly Rawlsian conception of civil disobedience and the official narrative of the civil rights

movement in the United States into an unrealistic and problematic

conception of civil rights– style civil disobedience that serves to deter

dissent and resistance. Minimalist accounts of civil disobedience, for

their part, fail to be politically useful or phenomenologically accurate. I proposed instead a broad, multidimensional matrix of political resistance that includes principled disobedience, both civil and

uncivil.

46

47

Chapter 2

In Defense of Uncivil Disobedience

A night like others in the Parisian banlieue (suburb) of Aulnay-sous—

Bois: police stop youths and ask to check their ID, suspecting drug

dealing. Théo L., a twenty-two- year-old Black social worker with no

criminal record is arrested. An onlooker films the arrest, showing

the young man tear-gassed, forced to the ground, and beaten by four

policemen. Later Théo would tell TV interviewers that police hit him

repeatedly, spitting racist insults. At some point, one of the officers

took his telescopic baton and “he drove it into my buttocks . . . I had

no strength left. It was as if my body had left myself. I thought I was

going to die,” Théo said from the hospital where he was treated for a

“deep anal tear.” The officers handcuffed him and took him to a police

car, where he was again insulted, spat at, and beaten “in the private

parts.”

Théo’s brutal arrest and rape in February 2017— which the

French police called “an accident”— triggered protests against pervasive and systemic police brutality in several Parisian banlieues. In

Bobigny, Argenteuil, and Saint-Denis, protesters and the anti-riot police clashed: police tear-gassed protesters, who in turn hurled bottles

and stones at police. One resident described “young people with

their faces hidden behind scarves carrying iron bars. There were bins

filled with smoke overturned on the ground.” Youths burned cars

and buses, ransacked stores, and attacked police patrols. A public bus

47

48

A d u t Y to R e s I s t

driver and a journalist covering the demonstration were injured. The

police arrested dozens of protesters, including minors.

Even when their participants claim to be reacting to social injustice, riots— and the acts of looting, vandalism, property damage,

and violence they comprise— are typically seen as politically counterproductive and morally impermissible. Political riots such as the

French banlieues riots of 2017 and the ones that shook France in

2005 after the death of two teenagers during a police chase are an

archetype of uncivil principled disobedience. I aim to show that

some types of uncivil disobedience, including political riots, vigilante self-defense, whistleblowing, sanctuary assistance, and graffiti

street art, can be justified— not in exceptional circumstances but

systematically, and even in supposedly legitimate, liberal democratic states.

constRAInts

There is, we are told, a moral duty to obey the law in legitimate

states— a duty grounded in widely accepted normative principles. It

is my claim that these same principles can justify and even require

resistance in the face of injustice, including resistance through principled disobedience. In later chapters, I will examine how these four

grounds— the duty of justice, the duty of fairness, the Samaritan duty,

and associative duties— justify and constrain the use of principled

disobedience to resist injustice. For the moment, though, I wish to

address some basic constraints on principled lawbreaking that apply

especially to uncivil disobedience. These constraints allow us to distinguish between, say, the Ku Klux Klan’s vigilante terrorism and the

self-defensive vigilantism of the Deacons for Defense and Justice

under Jim Crow, or between British feminist street artist Bambi’s politically conscious graffiti and swastika vandalism.

48

49

I n d e F e n s e o F u n c I V I l d I s o B e d I e n c e

Resistors must act with respect for other people’s interests, including, but not limited to, their basic interests in life and bodily integrity; their interests in nondomination and in choosing the values

that shape their lives; and their interest in protection by a stable, secure system of rights. That is, these basic human interests constrain

both the legitimate goals and the appropriate means of resistance,

and one should accept and seek to protect these basic interests when

engaging in principled disobedience.

Of course resistors always act for the sake of some interests— the

question is what kind of interests they pursue (Are they basic human

interests or special interests of privileged groups?), and how to weigh

these against other important interests when they come into conflict.

Thus disobedience may affect the majority’s interest in a stable legal

system, but principled lawbreaking may sometimes be necessary to

protect people’s basic interests in life and bodily integrity. One may

have to use force to defend oneself or others. And some violence,

such as wel - targeted destruction of property or the forceful removal

of scabs during a strike, may be justified on balance to secure people’s

fundamental interest in nondomination— say, in having some control over the decisions that affect them.1

Resistors should generally seek the least harmful course of

action feasible to achieve their (legitimate) goal, that is, from among

those courses of action that have a reasonable chance of success.

This constraint does not rise to the level of necessary condition for

the justification of principled disobedience, in part because agents

may sometimes justifiably settle for second or third best if, say, the

least harmful course of action demands too much sacrifice on their

part. That the course of action should have a reasonable chance of

achieving the goal of resistance should not be misunderstood: it does

not require that every act lead directly to reform or directly lessen

oppression. Recall the variety of goals that may motivate resistance.

A small act of everyday resistance, such as confronting a man’s catcall

49

50

A d u t Y to R e s I s t

or misogynist tweet, may only get one harassed; it certainly will not,

in itself, change sexist mores. Yet its aim may simply be to force this

man to reflect on his treatment of women. And it may be that an

aggressive confrontation, likely to further antagonize the man, would

not have a reasonable chance of succeeding at making him think,

but that it would be successful if the goal is simply for the woman to

assert her dignity and express anger at being objectified. In short, the

success of resistance should not be measured solely in terms of the

(good) social consequences it brings about (through direct action or

policy reform): it may instead be measured by whether and how well

it gets its message across to its intended audience (including, at the

limit, oneself).

Note what respect for people’s basic interests does not necessarily

entail: it does not require that disobedients express themselves in a

respectful tone, demonstrate moral seriousness, and exemplify self—

restraint. The latter are demands of civility (they may also be a matter

of political efficiency). One may respect people’s basic interests uncivilly, in an offensive tone, using vulgarity and humor, expressing

anger and even rage. Incivility does not necessarily violate people’s

basic interests.

In deFense oF (un)cIVIl dIsoBedIence

Disobedience— even principled and civil— is generally conceived

as wrongful for at least four reasons. First, disobedients violate

the moral duty to obey the law, which binds citizens in legitimate

states; second, disobedience undermines law and order and thereby

destabilizes society; third, disobedients flout democratic processes;

fourth, disobedients threaten “civic friendship,” the social glue and

ethos that binds people together. Champions of civil disobedience

50

51

I n d e F e n s e o F u n c I V I l d I s o B e d I e n c e

have responded to each objection successfully: today, few deny that

civil disobedience can be justified and has a role to play in liberal democracy. But their justifications apply beyond the boundaries of civility, to justify some types of uncivil disobedience.

The Duty to Obey the Law

Many theorists believe that disobedience violates our political obligation, the moral duty to obey the law. In their view, it is essential

that citizens of pluralist societies, in which people disagree about

matters of justice, recognize this duty. Yet philosophers agree that

the duty to obey the law (if it exists) is defeasible. In particular, it

does not arise where injustice is severe and persistent. Civil disobedience can thus be justified at least where the moral duty to obey is

nonbinding.

But this is not all: many theorists argue that civil disobedience

is compatible with the moral duty to obey. For instance, David

Lefkowitz has articulated a disjunctive account of political obligation

according to which citizens of legitimate liberal democracies have a

moral duty either to obey the law or to disobey it civilly.2 The moral

right to civil disobedience embedded in this account rests on citizens’ basic right to political participation.

Importantly, in some cases, citizens might better respond to

the normative principles that support the duty to obey the law

by engaging in principled disobedience— civil or otherwise—

rather than by complying with the law. This is what I show in

chapters 3– 6: that we should expand the concept of political obligation to include duties to resist injustice and disobey the law,

even in liberal democracies, and that these duties rest on some of

the same grounds commonly used to support the moral duty to

obey the law.

51

52

A d u t Y to R e s I s t

Free-Riding

A second objection to disobedience is that it is a form of moral self—

indulgence akin to free-riding: by according oneself a larger say in

public matters, the agent objectionably allows a personal exception

to prevailing rules.3 The agent claims, in effect, to better understand

what the public good requires than do fellow citizens. Asserting such

privilege amounts to a violation of fairness or mutual reciprocity.

But civil disobedience has been adequately defended against such

claims, and the same defense might be applied to uncivil disobedience: the disobedient agent does not profit from lawbreaking and indeed

bears significant burdens and risks, including social sanctions, arrest,

and punishment.4 Let me add a caveat: the requirement that the agent

not personally gain from disobedience is in fact problematic. People, especially those oppressed, have a lot to gain from the establishment of

justice, including better life prospects, improved material conditions,

and heightened self-respect. There is obviously nothing problematic

with such personal investments in anti-oppression struggles.

In any case, the objection that unlawful resistance involves making

oneself an exception or free-riding on others’ compliance and thereby

failing to treat others as equals does not withstand scrutiny. Agents

often resort to disobedience because they, or those on whose behalf

they act, or with whom they stand in solidarity, are marginalized and

excluded, deprived of a say in the decisions that affect them. The

oppressed are the ones treated as less than equals, and therefore disobedience intended to protest this inferior treatment cannot reasonably be thought of as violating mutual reciprocity.

Noncommunicative uncivil disobedience, such as direct action,

however, calls for a different kind of response to the free-riding objection, since it does not necessarily seek to denounce the marginalization of some members of the community. For instance, agents

52

53

I n d e F e n s e o F u n c I V I l d I s o B e d I e n c e

providing covert assistance to migrants or engaged in vigilante self—

defense aim first and foremost to prevent harms. Their apparent disregard for laws and the outcomes of democratic processes may seem

like an assertion of moral superiority, a way to say, “I know better than

everyone else what is right and wrong.”

But this objection conceals the targets’ own responsibility for the

harms agents seek to prevent. When disobedients are justified, it is

typically because the state endangers or harms some people or unjustly fails to protect them from harm. Thus the Lavender Panthers

existed only because— and so long as— the San Francisco police

did not intervene to protect gays from homophobic violence. The

first sanctuary movement grew in the 1980s to help refugees from

Central America who, although they were fleeing civil conflicts partly

caused and sustained by the United States, were refused asylum in

the country. Judging them as presumptuous and self-righteous seems

misguided and unfounded.

If this is right, then cases of justified uncivil disobedience

do not involve agents’ making exceptions of themselves or free-riding on citizens’ compliance with the law. Indeed, I will argue

in chapter 4 that, under unjust sociopolitical conditions, citizens’

compliance with the law, not disobedience, is akin to free-riding.

The Rule of Law

Another objection is that any disobedience— be it criminal or principled, civil or uncivil— sows anarchy and invites violence. A society

where everyone disobeys all laws they find unjust would be no better

than the state of nature, where everyone individually decides what

is right and wrong.5 States cannot tolerate such exercise of discre—

tionary judgment. If one violates the law each time one thinks it is unjust, one destabilizes society and undermines law and order. Doing

53

54

A d u t Y to R e s I s t

so is wrong because it prevents the legal system from performing its

essential function of protecting rights.

In response, republican and liberal theorists have argued that,

far from undermining the stable system of rights, civil disobedience

can instead strengthen it. For Hannah Arendt, mass civil disobedience always occurs under unstable political circumstances and ultimately stabilizes society by reenacting the horizontal social contract

(whereby the multitude becomes a people) and strengthening civic

bonds.6 Ronald Dworkin conceives of civil disobedients as engaged

in constitutional disputes over the law and contributing in that way to

law’s integrity.7 And Scheuerman argues that, far from undermining

it, “civil disobedience buttresses the rule of law,” as “fidelity to the

law” demands “of conscientious political actors that they push for

dramatic change that might deepen both law’s legitimacy and its efficacy.”8 Beyond the particulars of these arguments, the potential of

civil disobedience to protect rather than undermine the rule of law is

now widely accepted in the literature, and to a lesser extent in public

discourse.

What about uncivil disobedience, though? Can it also exemplify

respect for the rule of law and serve to bolster law’s integrity? I believe it can. Consider one type of uncivil principled disobedience

purporting to preserve the rule of law: government whistleblowing,

defined as unauthorized seizure and disclosure of state-classified

information.

There are many plausible candidates for unauthorized

whistleblowing that strengthened the rule of law: Daniel Ellsberg’s

leaks of the Pentagon Papers, which uncovered the state’s commission

of war crimes in Vietnam, Cambodia, and Laos, as well as deception

at home; Deep Throat’s leaks about the Watergate scandal, which

resulted in punishment for others’ lawbreaking; and Snowden’s

whistleblowing on the NSA’s massive, unconstitutional domestic

surveil ance program.

54

5

I n d e F e n s e o F u n c I V I l d I s o B e d I e n c e

Leaks of this nature, which expose serious wrongdoing and

abuses, promote the rule of law. While many people describe

instances of government whistleblowing they approve of as civil

disobedience, in part because of their common potential to support

the rule of law, it is important not to confuse the two. Government

whistleblowing usually fails to adhere to norms of civility (especially publicity and non-evasiveness) and poses threats to national security by irreversibly undoing the secrecy the state had

determined appropriate or necessary. Through their disclosure,

government whistleblowers thus usurp the power of the state to

determine, and to have exclusive authority over, the boundaries

around state secrets. Government whistleblowing is thus typically

uncivil in some ways, but it can be justified, like civil disobedience,

on the grounds that it strengthens the rule of law. (In chapter 3,

I will base the justification of whistleblowing more broadly on the

duty of justice.)

Democracy

A fourth objection to disobedience is that it erodes democratic authority. By flouting democratic lawmaking processes, and refusing to

comply with their outcomes, disobedients make themselves enemies

of democratic ideals and undermine the conditions for democratic

concord.

Liberal philosophers such as Rawls generally concede this objection: they view civil disobedience as essentially antidemocratic but

highlight its potential to enhance justice, against flawed majoritarian

decisions. These theorists stress that, by disobeying civilly, the agent

communicates that she is neither disobeying lightly nor taking advantage of others’ compliance with the law.

Republican and democratic theorists have articulated their alternative accounts of disobedience largely in response to this objection

55

56

A d u t Y to R e s I s t

concerning democracy. They have shown that, far from threatening democracy, much civil disobedience purports to invigorate

democratic institutions, for instance by combatting the rigidifying

tendencies of state institutions and highlighting democratic

deficits.9 These theorists often use alter-globalization, anti-nuclear,

and Occupy activism to illustrate this potential of civil disobedience. They make two important points. First, civil disobedients

often protest precisely a lack of democracy, such as their exclusion

from collective decision-making processes, and can thus advance

democratic causes. Second, civil disobedience should be conceived

as an exercise in political participation, not as an extra-institutional form of action that is only appropriate when normal political

processes fail.

I reflect later in the chapter on the question of whether some

communicative acts of uncivil disobedience should be conceived as a

form of political participation. But for now, I simply want to show that

the first point about the democratic potential of civil disobedience

can apply to uncivil disobedience, too. To this end, Cornell Clayton

persuasively argues that incivility is a “symptom of division,” not the

source of it. To dismiss incivility as a threat to an otherwise-stable democracy is most likely to assert stability (the kind that stems from a

shared commitment to mutual reciprocity) where it has already been

lost. Clayton further notes that “uncivil behavior has often advanced

democratic causes” in contexts of division.10

A look at historical and current practices of resistance indeed

suggests that agents may choose uncivil forms of disobedience to

the same democratic effects that theorists attribute to civil disobedience. The suffragists escalated from words to deeds— first civil

then uncivil disobedience— to demand the democratic franchise.

Some of their uncivil acts, such as storming legislative assemblies

and electoral precincts, as well as burning with acid the golf course

and bowling greens frequented by Members of Parliament, were

56

57

I n d e F e n s e o F u n c I V I l d I s o B e d I e n c e

clearly intended to assert political agency and protest exclusion.

More recently, hacktivists such as the late Aaron Swartz have used

digital disobedient tactics— mostly uncivil— to protest the illegitimacy of online governance and invite fellow citizens to understand,

care about, and participate in the effort to democratize the internet.

Some guerrilla communication tactics, such as those of ACT UP

(the AIDS Coalition to Unleash Power), may also be framed as uncivil protests against government apathy in the face of the AIDS

crisis and against the public’s wrongful indifference to the fate of

the LGBTQ population (a violation of the democratic imperative

to treat everyone with full concern and as equals). For instance,

a 1989 ACT UP protest against pharmaceutical price-gouging on

the floor of the New York Stock Exchange stopped trading for the

first time in history. Later that year, nearly five thousand protesters

stood outside New York’s St. Patrick’s Cathedral to denounce

the Catholic Church’s opposition to safe sex education, while a

few dozen ACT UP and WHAM! (Women’s Health Action and

Mobilization) activists went inside to interrupt mass, chant slogans,

lay down in the aisles, and even desecrate communion wafers. As

these examples suggest, there may be uncivil pursuits of democratic

inclusiveness, agenda-setting, and other measures to improve democratic legitimacy.

To recap, none of the four objections— from the duty to obey,

free-riding, the rule of law, and democracy— sets a viable moral prohibition against principled disobedience. Meanwhile, the arguments

offered in response by champions of civil disobedience can be extended to justify some uncivil forms of principled lawbreaking.

However, one might object that this extension of the instrumental

value of civil disobedience to uncivil disobedience ignores the moral

significance of civility. In the next section, I respond to arguments for

preferring civil over uncivil disobedience and identify some valuable

uses of incivility.

57

58

A d u t Y to R e s I s t

wHo’s AFRAId oF IncIVIlItY?

Effectiveness

It is almost an article of faith that incivility is counterproductive.

This is clearest in the ordinary (and near-universal) approval of

nonviolent resistance and disapproval of violent resistance. Some

empirical evidence backs up the point. Analyzing 323 twentieth—

century violent and nonviolent civil resistance campaigns, Erica

Chenoweth and Maria Stephan find that nonviolent campaigns

that have reached a significant size are twice as likely to succeed

as violent campaigns. (It is worth noting, however, that most of

the civil resistance movements they classify as nonviolent, from

the anti-apartheid struggle in South Africa to the First Palestinian

Intifada, often in fact include violent flanks. A movement is violent,

in their view, if it rests primarily on armed insurrection.) While

many violent decolonization movements were successful in the

1970s and 1980s, the success of violent resistance campaigns has

since declined. For their part, nonviolent campaigns have become

increasingly successful since the 1950s, and especially since the end

of the Cold War.11

While this statistical argument for nonviolence holds across sociopolitical contexts, political scientists argue that violence is especially counterproductive in liberal societies. Chenoweth has recently

warned against anti-Trump resistance by means of uncivil, “black

block” tactics such as Nazi punching, street fighting, and rioting.12

The main rationale is that the public is turned off by violent protests,

which therefore risk undermining the objectives of an otherwise—

nonviolent movement. She and Stephan estimate that available social scientific and historical evidence supports the “negative radical

flank effect” better than the “positive radical flank effect”: that violence decreases rather than increases the leverage of challengers, by

threatening mass mobilization.13

58

59

I n d e F e n s e o F u n c I V I l d I s o B e d I e n c e

These are important findings. But note that the argument asserts

equivalence between civility and nonviolence. When we keep the

two features distinct, we realize that nonviolent acts of uncivil principled disobedience— such as leaks, which proliferate in Trump’s

White House, and guerril a communication— are not singled out as

problematic and may be useful to civil protests. In addition, not all

principled disobedience is communicative, and that which is nonviolent and covert is unlikely to be detected by the public and to have the

negative effects supposedly associated with failures of civility.

More generally, effectiveness may not be measured solely in terms

of contribution to a mass civil resistance campaign. Individual actions

may be socially beneficial (“effective”) whether or not they lead to reform. Thus the Lavender Panthers’ organized use of self-defensive violence against homophobic aggressors in San Francisco in the 1970s

can be justified, even if violence shouldn’t be used in the larger political struggle for gay rights. Covert (uncivil) disobedience— such as

that undertaken by sanctuary workers as they provide food, shelter,

and legal aid to unauthorized migrants— can directly frustrate injustice and benefit people in dire need in ways that are not available to

civil disobedients.

So the empirical argument for the superior effectiveness of nonviolent resistance and civil disobedience in the context of large

movements does not suffice to establish uncivil disobedience’s ineffectiveness or counterproductivity. In fact, uncivil disobedience may

be effective for other purposes.

Forward-Looking Concerns

Why prefer civil over uncivil disobedience? Another instrumental

or pragmatic rationale points to the socially beneficial consequences

of civil disobedience as compared with uncivil disobedience. It

comes in two versions, which are both grounded in forward-looking

59

60

A d u t Y to R e s I s t

concerns, and boil down to the notion that resistors should choose

courses of action that enact and foster the just society they aspire to.

One version of this pragmatic argument is encapsulated in the

principle “the means should prefigure the end.” According to this

principle, which is generally attributed to political anarchists, the

values guiding resistance in liberation struggles should be those

animating the ideal world. The “should” here is pragmatic or prudential: one simply cannot achieve a just, egalitarian society free

from oppression and state violence through a movement that is hi—

erarchically organized and that uses violence to dominate others. In

the words of James Guil aume, a friend and col aborator of Mikhail

Bakunin, “How could one want an equalitarian and free society to

issue from an authoritarian organization? It is impossible.”14 From

this perspective, prefiguration is a necessary condition for liberation movements’ success (at least where ideals of justice, freedom,

and equality are concerned). More basically, a struggle whose

participants routinely violate its expressed ideals falls prey to charges

of inconsistency and hypocrisy, which are likely to diminish public

support and to affect the movement’s legitimacy. This prefiguration

argument can thus support the superiority of civil over uncivil disobedience, presuming that one seeks a civil future characterized by

democratic concord.

On the other version of the pragmatic argument, even if the

ruling group’s mistreatment of a subordinated group warrants revolutionary activity, and even if revolution could succeed (contrary

to the prefiguration argument), there are still good forward-looking

reasons for resistors to exercise restraint and disobey civilly. Andrew

Sabl develops this argument for civil disobedience in the context of

the “piecewise-just society,” which involves “fair treatment, mutual

cooperation, and a sense of justice by a ruling group with respect

to its own members, simultaneous with a cruel and near-absolute

tyranny towards people outside its own membership.”15 Powerful

60

61

I n d e F e n s e o F u n c I V I l d I s o B e d I e n c e

members of society, by dominating and brutalizing other groups in

society, may well have made themselves liable to violent resistance.

But the fact that they have shown themselves capable of governing

on fair terms of cooperation within their own group offers reasons

to believe in their capacity “to extend this habit to their relations to

other groups,” and thus to disobey civilly, in a way that treats current

oppressors as future equals.16 According to Sabl, “a regard for future

possibilities,” especially “the desire not to foreclose future cooperation,” underpinned King’s civil rights movement, for instance.17 In

short, civil disobedience offers the best (perhaps the only) chance

of fostering the prospects for post-struggle democratic concord, by

displaying equal concern for all and a commitment to fair cooperation in the struggle. I address this second point in the next section,

where I contend that sometimes powerful members have shown

themselves capable of governing fairly among equals, but not wil ing

to extend this capacity beyond their own group.

One strategy to respond to the prefiguration argument for civil

disobedience consists in denying that resistance need be guided

by the values it aims to promote. History casts doubt on the anarchist argument that freedom from oppression is not possible unless

resistors abide by the ideals that motivate their struggle in the first

place, as many successful decolonization movements involved violence (and there is no reason to attribute the extent to which some

of these movements historically failed to establish stable democratic

regimes to their use of violence in the struggle). Norman Geras

defends revolutionary violence on the grounds that the means “reflect their own beginnings”— that is, the oppression and tyranny that

revolutionaries seek to overcome.18 Lisa Tessman has argued that resistance to oppressive circumstances may need to be guided by values

that we would normally condemn— such as rage and hatred— in

order to successfully lead to a just, hate-free society.19 Angela Davis’s

vindication of African Americans’ armed self-defense against racist

61

62

A d u t Y to R e s I s t

violence and Ta-Nehisi Coates’s skepticism toward ubiquitous calls

for nonviolence in a society founded upon and engaged in violence

illustrate this strategy at work.

It is also not clear that activists disposed to use some uncivil, including violent, methods in the struggle for emancipation are thereby

exhibiting inconsistency or betraying their ends. For instance, did

female suffragists who burned golf course turfs with acid and engaged in other acts of sabotage and destruction reveal their unfitness

to cooperate with men in the gender-just society they envisioned?

Opponents thought so, calling the suffragists “unladylike” and “un—

natural” and successfully committing some of them to insane asylums.

These opponents claimed that women’s uncivil disobedience was a

living refutation of their feminist ideal of gender equality. Yet nothing

supported these judgments. Uncivil disobedience neither necessarily

reflects problematic ideals and goals nor necessarily thwarts the possibility for future cooperation with fellow citizens.

(In) civility and Civic Friendship

Civil disobedience is supposed to be better than uncivil disobedience

not just because, as we have seen, it leads to superior outcomes, but

also because civility is a moral duty in liberal democracy. Citizens of

liberal democracies have a special duty to comport themselves in ways

that nurture and preserve civic bonds. Aristotle talked about “civic

friendship” to describe citizens’ bonds in just polities, their concern

for each other’s flourishing (they “wish their fellow citizens wel ”),

and their shared values and sense of justice.20 The modern, liberal

version of civic friendship is thinner but still important: it consists

in citizens’ wil ingness to live together despite their differences and

their common endorsement of mutual reciprocity.21

Law-abidance and civil interpersonal relations cement the ties of

civic friendship in large modern states, while refusal to abide by the

62

63

I n d e F e n s e o F u n c I V I l d I s o B e d I e n c e

law and incivility dissolve these bonds. In Rawls’s words, “[r] esistance

cuts the ties of community.”22 But liberal theorists showed that, by

acting civilly, disobedients still demonstrate their commitment to

mutual reciprocity. The civility of civil disobedience, in short, defuses

its tendency to erode civic bonds and destabilize society. Theorists

thus carved a special niche for civil disobedience as the only form of

unlawful resistance compatible with the demands of life in a liberal

democracy. (Conscientious objection might be viewed as another

form, but to the extent that it is to be not simply tolerated but also

legally protected in liberal societies, it should not count as unlawful

resistance.)

Uncivil disobedience, by definition, violates civility, and so

could potentially damage civic friendship. One might respond by

examining contexts and types of uncivil disobedience that are unlikely to undermine civic friendship, such as covert assistance to undocumented migrants. But let us instead agree that some types of

communicative uncivil disobedience— urban riots and anti-police

rallies, for instance— are in fact likely to undermine civic friendship.

My contention is that this may be a virtue rather than a problem: in

some circumstances, uncivil disobedience may appropriately

highlight— and, yes, undermine— all-too- flimsy or illusory ties of

civic friendship. It may do so in ways that advance the cause of justice

and democracy. But even where there is no hope of sociopolitical reform or moral suasion, uncivil disobedience may still have intrinsic

value insofar as it constitutes a meaningful expression of political solidarity and assertion of agency in the face of injustice.

There is a place for uncivil disobedience in liberal democratic

societies when the following conditions apply: the public is assured of

the state’s commitment to respecting everyone’s full and equal status,

a commitment typically embedded in a constitution or other basic

law that guides institutional design and lawmaking; some citizens

are effectively (de facto but not de jure) denied full and equal status;

63

64

A d u t Y to R e s I s t

and the injustice of this denial is not publicly recognized, perhaps because that injustice is not deliberate but results from the interplay of

social practices and institutional structures, as in cases of structural

injustice. Under these circumstances, the majority may be bound by

civic friendship, but for oppressed minorities, it is an illusion.

In this case, the oppressed minority might fruitfully resort to

civil disobedience, and no doubt observers will counsel that doing

so provides the best chance of winning over the majority, based on

the forward-looking concerns previously articulated. But uncivil disobedience might be more effective because of its ability to radically

disrupt the status quo. Uncivil disobedients force the community to

confront the disconnect between its reality and its professed ideals.

Put another way, by appearing to question civic friendship, they

question the authenticity of the community’s commitment to that

friendship. Incivility calls civility’s bluff.

Uncivil disobedience also questions the rules of public engagement, the standards and boundaries of civility and public reason: who

gets to speak, as well as where, when, and how. In doing so, uncivil

disobedience helps to isolate the deceptions of civic friendship. Pussy

Riot and Femen model this powerfully. Their sensational “sextremist”

acts reveal the patriarchy that actual civic friendship accommodates

and present that evil as an adversary to confront and offend. By not

playing by the rules, uncivil disobedients point to the exclusionary

effects of established rules and invite their rethinking. They contest

and disrupt the moral and political consensus.

Some democratic theorists like Celikates insist that civil disobedience, broadly conceived to include what is on my view uncivil

disobedience, can achieve this sort of disruption. But I think it is important to distinguish civil from uncivil disobedience, in order to denounce disingenuous brandings of incivility and explore the distinct

potential of acts of uncivil disobedience. BLM protesters marching

with their hands raised in surrender and chanting “Hands up, don’t

64

65

I n d e F e n s e o F u n c I V I l d I s o B e d I e n c e

shoot!” have been called “troublemakers” and deemed uncivil.

The lie of civic friendship is clear in the refusal to grant civility to

opponents of the status quo. What ties of community are there if the

majority cannot bring itself to hear oppressed minorities even when

they follow all of the strictures of civility?

Compare these civil protests to uncivil events loosely associated

with, but not organized by, the Movement for Black Lives: rock—

throwing, looting, and rioting, as in Ferguson, Baltimore, Charlotte,

and Milwaukee in the aftermath of fatal instances of police violence against Blacks. Avia Pasternak refers to the unrest in these US

cities, as well as the uprisings in the Paris banlieues in 2005, as “political rioting,” defined as “a form of political protest against injustice, which involves the public and illegal use of collective violence,

and which aims to express outrage, frustration and defiance of the

law.”23 Pasternak argues that political riots can be partially justified

in the face of serious and persistent injustice, in light of the valuable

goals they can serve: democratic inclusion, expression of collective

defiance and disrespect, and legal reform. The riots in Ferguson,

Baltimore, and the French banlieues may be seen as aiming at all

three goals: inclusion of poor Black and Brown urban youth in the

public sphere, popular expression of frustration at and distrust of

the state, and direct democratic community control of law enforcement agencies.

The rioters issued their demand to end police brutality by putting

into question the society’s professed commitment to mutual reciprocity and forcing the wider population to examine who exactly is

tied together by the bonds of civic friendship. The only honest response, these riots suggest, is not everyone. Those left outside the

bonds must use means that civic friendship abhors because they are

not allowed to participate on civil terms. The civil protests of BLM

may well have articulated the same claim, but political riots were

more successful in projecting the seriousness of the problem, in part

65

6

A d u t Y to R e s I s t

by threatening further disruption. Civil disobedients cannot vex the

status quo in the same way. As Susan Bickford has argued, civility

(or “niceness”) “can make people less likely to perceive actual injustice and oppression”24— and, I shall add, less likely to perceive the

urgency of certain rights claims.

That society took notice of the riots does not mean they achieved

their goals. The frustration expressed in rioting has not induced any

recognition and shame in White Americans’ (or Frenchmen’s) consciousness. In fact the public now views protests against police violence even more negatively than in 2014, at the start of the BLM

movement. According to a HarvardHarris survey conducted in July

2017, a majority of Americans (57 percent) “feels unfavorable towards

Black Lives Matter protests.” Only 35 percent of Whites feel favorably

toward the movement.25 The problem is not simply that most people

remain unmoved; it is that they don’t hear the rioters’ speech— don’t

take the riots to be conveying anything but violence. This lack of re—

ception— often the result of moral and epistemic deafness to Black

suffering, which Charles Mil s calls “White ignorance”— helps to

clarify why we should not prioritize civic friendship: the inability

to recognize struggle even when it is declared straightforwardly is

symptomatic of the divisions within the polity.26 Civic friendship is

dead long before rioters come to bury it.

Hence my defense of uncivil disobedience— including of some

political riots— does not rest on the larger community’s successful

uptake of, let alone political or moral conversion in response to,

messages conveyed uncivilly. Uncivil disobedients may have no hope

of bringing about any changes anyway. They may have no reason to

believe in the dominant group’s wil ingness to include marginalized

and powerless groups into the social cooperative venture. Recall that

the forward-looking argument for civil disobedience is based on

the oppressors’ demonstrated capacity to govern as full and equals

66

67

I n d e F e n s e o F u n c I V I l d I s o B e d I e n c e

among themselves, and expected capacity to extend this kind of government to everyone. But this capacity to govern fairly, without the

willingness to do so, hinders rather than hints at future concord. Yet it

is worthwhile for uncivil disobedients to express their indignation at

the inauthenticity of the public commitment to mutual reciprocity,

even if it turns out to be counterproductive to the goal of persuading

the public.

Protesters’ central goal is often to grow the movement’s base

rather than to garner public support. “The most likely audience to

join the cause,” Amna A. Akbar notes about the protests associated with the Movement for Black Lives, “is not White people, but

other Black folks.”27 It is easy to overlook this “internal audience” of

protests while focusing on messages to the larger public. Political

riots too have an internal audience: fellow oppressed people. It is to

the latter that rioters address themselves, when they highlight illusory ties of civic friendship and repudiate society’s unfair treatment

of certain groups. By pointing to a shared landscape of oppression,

uncivil disobedients further express solidarity with fellow oppressed

people. Finally, their expressions of disrespect and anger may be

seen as assertions of agency and dignity in the face of threats to

both. Certain kinds of uncivil disobedience are thus non-instrumentally valuable— as warranted judgments about society’s failures, as

expressions of solidarity, and as affirmations of agency.

To recap, acts of uncivil disobedience do not necessarily erode

civic friendship, but even when they do, they may be justified on

the (broadly liberal and democratic) grounds that they contribute

to advancing justice and democracy, by jolting the public into

recognizing pressing claims of oppression. And even if acts of uncivil

disobedience are counterproductive to the broader goal of affecting

sociopolitical change, they may still constitute intrinsically valuable expressions of dissent, solidarity, and agency. Acts of uncivil

67

68

A d u t Y to R e s I s t

disobedience that threaten a concord that wrongly excludes some

people can thus be justified, under certain circumstances.

Traditional liberal theorists are not wrong to understand civility

as a good thing. We should not underestimate the importance of respect for others as equals or of a commitment to mutual reciprocity.

The trouble is that we, even those of us in democratic societies, do not

live in a world of equals. The constraints civility imposes on subjects

of pluralist modern societies are reasonable under conditions of

basic equality, such as among privileged and powerful populations

(although the latter sometimes may elect, and even ought, to join

uncivil protests in solidarity with those oppressed). Indeed civility

reasonably constrains the behavior of members of society who are

secure in their position of privilege or power, especially as they relate to disadvantaged members of society. But those who shoulder

the burdens of oppression cannot reasonably be expected to satisfy

the demands of civility, since these demands aim to preserve civic

bonds that do not extend to them and even serve to maintain their

oppression (recall the ideological function of the widespread calls

for civility which I described in chapter 1). Incivility may therefore

be appropriate— and uncivil disobedience may be justified— where

agents are oppressed, silenced, and otherwise marginalized.

ImPlIcAtIons

What follows from this defense of uncivil disobedience? Agents engaged in justified acts of uncivil disobedience are doing the right thing.

They may be doing something presumptively wrongful (breaking the

law, offending, resorting to force or coercion), but they are not doing

wrong on balance, under the circumstances. One might be tempted

to say that they have an excuse for what they did. But excuses are

68

69

I n d e F e n s e o F u n c I V I l d I s o B e d I e n c e

inseparable from admissions of wrongdoing. To excuse someone is

to explain why they had reason to believe they were doing the right

thing even though they didn’t. Justifications are different: they point

to the reasons for acting the way the agent in fact acted. The next four

chapters are devoted to identifying these reasons: they show that the

duty of justice, the duty of fair play, the Samaritan duty, and political

associative duties, which are commonly used to ground obedience,

provide weighty, binding reasons for resisting injustice, including

through principled— civil and uncivil— disobedience.

Agents who engage in justified acts of uncivil disobedience deserve praise in recognition of the difficulties of fulfil ing one’s political obligations under unjust conditions ( chapter 7 is devoted to

these difficulties). What does this imply for how the state should

treat them? I will not say much about this important question, mainly

because I think we need to change hearts and minds about uncivil

disobedience before having any chance of changing the law. That is

why the book is devoted to political ethics, not legal issues.

But, to speak to the matter only briefly, I believe the state should

treat uncivil disobedience differently from civil disobedience. Recent

theorists defend a moral right to engage in civil disobedience, on the

basis of which civil disobedients deserve special treatment from the

state. Lefkowitz, who derives the moral right to civil disobedience

from the more general right of political participation, contends that

civil disobedients have a moral claim against punishment (i.e., condemnation) but not penalty, which states impose for the purpose of

deterring conduct.28 Wil iam Smith likewise conceives of the moral

right to civil disobedience as an “important component of the bundle

of rights to political participation that would be affirmed by a reasonable conception of justice,” and argues that it protects citizens

from the imposition of punishment but is compatible with moderate penalties.29 For Brownlee, who bases the moral right to civil

69

70

A d u t Y to R e s I s t

disobedience on a humanistic principle of respect for agency and

dignity, this right implies a claim right against both punishment and

penalty. She defends two criminal defenses for principled disobedience, one exculpatory— the “demands-of- conviction defense”— and

one justificatory— the “necessity defense.”30

The moral right to civil disobedience, whatever its basis, implies

the permissibility of civil disobedient acts, independently of their

justification. I do not defend such right to uncivil disobedience, since

when uncivil disobedience is not justified, it is often also morally impermissible. But when uncivil disobedience is morally justified, in

my view, agents ought not to be punished by the state. This does not

mean that agents should have a legal right to disobey. What it does

mean is that law enforcement officers should choose not to arrest

agents, prosecutors should decide to drop criminal charges against

defendants, judges should exercise leniency in sentencing, and juries

should choose not to convict defendants (jury nullification).

This is unlikely to happen as a matter of course, especially in

regimes regulated by defective principles of political morality. But

at the very least, liberal democratic societies must provide all principled disobedients with the opportunity to defend their actions in

trial. They do not always have this opportunity. For instance, should

Snowden return to the United States to face justice for his leaks of

classified information, the terms of the Espionage Act would bar him

from attempting to justify his actions. Even where disobedients have

the opportunity to defend their actions, the chances of succeeding

are slim given that the injustice agents were responding to in the first

place probably infect the courtroom, too, typically in the form of

prejudice and its attending testimonial injustice.31

In any case, the reasons for action identified in the following

chapters could ground justificatory defenses for principled

disobedients of all kinds, whether civil or uncivil: a public-interest

70

71

I n d e F e n s e o F u n c I V I l d I s o B e d I e n c e

defense on the basis of the duty of justice, a necessity defense similar to Brownlee’s on the basis of the Samaritan duty, a fairness-based

defense invoking the duty of fair play, and a dignitary defense on the

basis of political association. Although I shall not further discuss

these, they are all possible legal implications of this account of political duties to resist.

71

72

Chapter 3

Justice and Democracy

In 2016 and 2017, two huge troves of documents threw light on

the shady world of offshore finance. The first, known as the Panama

Papers, exposed the Panama-based law firm Mossack Fonseca’s creation of secret offshore havens to facilitate tax evasion for “politicians,

fraudsters and drug traffickers as well as bil ionaires, celebrities and

sports stars.”1 The second, known as the Paradise Papers— its name

evokes both the French term for offshore haven, paradis fiscal, and the

beautiful islands where offshore finance firms tend to be located—

leaked from Bermuda-based Appleby, the world’s most prestigious

offshore law firm. The Paradise Papers confirmed how widespread

and easy tax evasion is for the super wealthy.

These leaked documents show that bil ionaires, corporations,

universities, oligarchs, criminals, artists, top officials, and at least one

head of state conceal their assets behind offshore shell companies,

evade taxes and scrutiny, and invest in industries that the public finds

objectionable. For instance, Britain’s Queen Elizabeth’s private estate invests mil ions of pounds offshore, including in Brighthouse,

a financial lender accused of irresponsible practices. Northeastern

University, which ranks fourth in the GreenMetric Ranking of

World Universities for its sustainable campus (and first in the United

States), invests part of its endowment in fossil fuels. And some of the

72

73

J u s t I c e A n d d e m o c R A c Y

politicians who set the laws governing offshore funds were identified

as major clients of offshore firms.

Appleby argues that it does nothing illegal in providing banking

and tax services to its clients. But offshore financial secrecy is nonetheless a threat to justice and democracy. Systematic tax evasion by

the rich flouts the spirit of the law, undermines democratic equality,

and demoralizes ordinary citizens. The editorial writers at Le Monde

understood this, characterizing the underworld revealed by the

Paradise Papers as “democratic hel .”2

The Panama and Paradise Papers were leaked illegally and anonymously. Could the whistleblowers have been fulfil ing their duty of

justice? I believe so. The natural duty of justice is a common basis

for the moral duty to obey the law. In this chapter I argue that it also

grounds political obligations to resist injustice, including through

principled, uncivil, and covert disobedience such as leaking.

To say that the duty of justice is natural is to say that it is grounded

in our nature as moral beings and binds us all equally, regardless of

our relations or voluntary undertakings. According to Rawls, the

duty of justice has two components: “First, we are to comply with and

to do our share in just institutions when they exist and apply to us;

and second we are to assist in the establishment of just arrangements

when they do not exist, at least when this can be done with little cost

to ourselves.”3 The first part of the duty of justice implies a moral duty

to obey the law of one’s just or nearly just state. Where institutions are

unjust, the second part of the duty of justice implies a duty to help

repair or replace them.

Since Rawls, inspired by Kant, made the case for this duty in A

Theory of Justice, it has been the most widely embraced source of political obligation. Jeremy Waldron, Thomas Christiano, Anna Stilz,

Wil iam Smith, and Daniel Viehoff, among others, have defended

their own accounts.4 Although these theorists’ accounts of political

obligation differ, the structures of their arguments are similar. Each

73

74

A d u t Y to R e s I s t

contends that the natural duty of justice requires submitting to the

state and each places a limit on the duty to obey the law at the border

of legitimate (liberal, democratic) states. That is, the duty of justice both grounds and limits the duty to obey the law. It addresses

individuals as free and equal citizens and therefore cannot obligate

them to maintain legal and sociopolitical conditions that deny people

that free and equal status.

conteXts oF InJustIce

If the duty to obey is dissolved by serious injustice, we need to know

what constitutes that sort of injustice. Existing theories give us a

number of boundary conditions to work with. Rawls stressed that the

moral duty to obey extends to unjust laws, unless they are grave and

entrenched. Stilz argues that citizens are morally bound to obey laws

they consider unjust, “as long as these laws do not violate core aspects

of external freedom,” which she conceives of as the sphere of basic

rights that constitutes persons’ independence or self-determination.5

According to Smith, the duty binds citizens so long as an unjust law

“can be defended in terms that are reasonable”— that is, so long as

the law is not blatantly unjustifiable.6 Beyond these limits, however

one might draw them, injustice defeats the duty to obey. Within these

limits, the duty to obey obtains.

How do we know which side of the limit we are on? There will

of course be disagreements over whether particular laws are unjust,

and to what degree they are. But we can try to achieve greater clarity

on the content of injustice. Doing so enables us to specify the target

of resistance, which is in turn essential to assessing particular acts of

principled disobedience. A typology of injustice is thus an important

tool in our examination of political obligations within broadly legitimate societies.

74

75

J u s t I c e A n d d e m o c R A c Y

Smith provides one in Civil Disobedience and Deliberative

Democracy. He distinguishes three kinds of injustice that can be

appropriate objects of civil disobedience in legitimate democratic

states. Deliberative disrespect occurs “where a democratic majority

tolerates or enacts blatant injustices,” publicly denying some of citizens free and equal status. Deliberative disagreement designates unjust outcomes neither “blatant” nor “obvious.” Deliberative inertia

arises when certain issues or discourses are blocked from the public

sphere.7 According to Smith, Rawls considers only deliberative disrespect, thus overlooking the possibility of justifiable civil disobedience

whose object is not obvious and egregious injustice. Civil disobedience undertaken against the first two kinds of injustice guards and

enhances justice, while disobedience against the third kind of injustice can promote democracy.

However, the inevitability of disagreements about the severity of

injustice makes Smith’s distinction between deliberative disrespect

and disagreement less helpful than it might otherwise be. I shall propose merging these two categories under the simple label disrespect,

and carving out another category, wrongs to nonmembers, to designate states’ commission of injustice against noncitizens at home or

abroad. Smith’s typology is also incomplete because it emphasizes

the democratic assembly and neglects other institutions of government. We must keep in mind another context of injustice, official mis-

conduct, cognizant of state officials’ conduct, which I will describe.

Finally, I will identify a fifth context of injustice, public ignorance, to mark cognitive deficits in the public sphere distinct from those of deliberative inertia.

Disrespect

Deliberative disrespect, according to Smith, consists of democratic

majorities’ enactment or toleration of laws that publicly and blatantly

75

76

A d u t Y to R e s I s t

deny some citizens free and equal status. This category is meant to

capture both isolated iniquitous laws and systematic injustice that

impedes citizens’ participation in public life. Smith’s examples of deliberative disrespect are denial of the right to vote or stand for office

and failures to secure the law’s equal protection. These injustices—

such as slavery, racial segregation, and women’s disenfranchisement—

are unjustifiable and thus cancel the duty to comply.8

Smith’s second context of injustice— deliberative disagreement—

designates outcomes of democratic debate that are unjust, even seriously unjust, but not clearly and obviously so. Therefore, they do

not override the duty to comply.9 Gender inequalities, institutionalized homophobia, and inadequate protections for workers and

immigrants exemplify deliberative disagreement. These injustices are

permissible and appropriate targets of civil disobedience, but they

are unlikely to strike everyone as blatant and they can be defended

in reasonable terms. Deliberative disrespect, in contrast, produces

clear-cut cases of oppression in the form of indefensible laws.

But history suggests the inadequacy of this criterion. Even as

slavery, women’s disenfranchisement, and racial segregation were

being scrapped, they had plenty of articulate, reasonable proponents.

The Supreme Court defended racial segregation in publicly reasonable terms in Plessy v. Ferguson. Jim Crow laws stood for decades

precisely because they were facially race-neutral and therefore arguably not unconstitutional under the Fourteenth Amendment. Today

we see these injustices as blatant and egregious, but they may well

have exemplified deliberative disagreement in their time. Of course,

the test of time is not a useful standard, since we want to assess the

gravity of current injustices.

For this reason, we should fold the category of deliberative disagreement into that of disrespect, and understand disrespect as public

denial of citizens’ free and equal status. We should also drop the “deliberative,” which wrongly suggests that these injustices result from

76

7

J u s t I c e A n d d e m o c R A c Y

a process of free deliberation among equals committed to advance

the common good. Respecting citizens’ free and equal status means

treating them as full moral agents, with equal standing in the social

institutions and political processes, and endowed with dignity (more

on this in chapter 6, which develops a dignitarian account of associative political obligations to resist injustice).

Some cases of disrespect are more serious and more obvious

than others, although obviousness does not necessarily track seriousness. Recent examples of disrespect in the more encompassing

sense I propose include the U.S. Defense of Marriage Act (1996),

which denied same-sex couples the right to marry (struck down by

the Supreme Court in Obergefell v. Hodges 10); anti-trans bathroom

policies such as North Carolina’s HB2, which conditions bathroom

access to sex assigned at birth; the French Riviera’s “burkini bans”

prohibiting the full-body swimwear some Muslim women wear at

the beach11; solitary confinement of prisoners (including juveniles);

and exploitation of prison labor. Grave economic injustices, including low or nonexistent minimum wages, efforts to debilitate

labor unions, and laws facilitating the concentration of wealth and

power can also fall in the category of disrespect, if citizens can claim

that their free and equal status is threatened or violated by economic

injustice.

Wrongs to Nonmembers

We also need to carve out another category involving grave injustice but not public denial of citizens’ free and equal status. We

need such a category because states may commit or tolerate egregious injustices against noncitizens. Policies that disregard the basic

interests of authorized or unauthorized migrants, impose lengthy detention without charges, deport people for minor crimes, and break

up nuclear families are contemptuous of the integrity of persons and

77

78

A d u t Y to R e s I s t

appear seriously wrong.12 Developed countries’ recent refusals to

take in more than very small numbers of asylum seekers displaced by

conflict in the Middle East may provide another example.13 I call the

democratic enactment or toleration of violations of the basic rights

and dignity of noncitizens, at home or abroad, wrongs to nonmembers.

Such indignities may also be inflicted on nonhuman animals such

as whales and dolphins held captive in water parks. Democratic

states that license these practices may be found to be wronging

nonmembers.

One might argue that what matters for political legitimacy and

the moral duty to obey the law is how the state treats its own citizens,

not how it treats migrants and animals in its midst or other people

abroad. But this is debatable. Thoreau’s case for the moral duty not

to comply with U.S. law rested on the state’s brutal domination of

noncitizens— Native Americans and slaves. Justice did not demand

full U.S. citizenship for indigenous people in Thoreau’s time; instead

it prohibited colonizing, displacing, and massacring them. In short,

the gravity of wrongs to nonmembers and the extent to which they

undermine political legitimacy is not necessarily tied to democratic

exclusion. It relates to the harms inflicted on certain groups.

Deliberative Inertia

Deliberative inertia, a concept I borrow from Smith, designates

breakdowns of public deliberation that occur when certain agendas

and discussions are blocked from or fail to surface in the public

sphere.14 Such inertia inspired early environmental, animal rights,

and alter-globalization activism, as well as the Occupy movement,

which protested the lack of public attention to economic inequality

while calling for democratic deliberation about the issue. According

to Smith, deliberative inertia does not defeat the duty to comply with

the law, but it is an appropriate target of civil disobedience.

78

79

J u s t I c e A n d d e m o c R A c Y

Among other things, digital rights provide a significant current

example of deliberative inertia. Increasingly, disobedient activism has

targeted copyright laws, digital surveil ance, and privacy violations

enabled by companies and governments that structure the internet

with little democratic input (and flawed input at that, since issues that

do come up for democratic deliberation are poorly tackled due to representatives’ basic lack of understanding of the issues15). Lawrence

Lessig has shown how the United States shaped the digital world into

a surveil ance-and commerce-friendly space by exporting, through

technology product sales, an “architecture that facilitates control.”16

Bernard Harcourt has recently argued that the internet is governed

by a “tentacular oligarchy” that ties private and public institutions in

state-like “knots of power” and engages in increasingly sophisticated

surveil ance of people’s on-and offline behavior.17

Freedom of speech does not extend to the online world

since speech is constrained by the decision-making of corporate

intermediaries, including internet service providers; web hosting

providers; and social network operators such as Facebook, Amazon,

PayPal, and Apple. Ethan Zuckerman dubs this phenomenon the

“threat of intermediary censorship”: the ability to speak online is

always mediated by commercial entities, whose terms of service

generally give a great deal of discretion to the content host and few

protections to the end user.18 In Consent of the Networked, Rebecca

MacKinnon makes a persuasive case for the democratic deficiencies

of laws governing cyberspace, all the while expressing faith in the

internet’s potential to invigorate democracy, and come itself under

democratic control.19

Official Misconduct

To Smith’s typology, I believe we should add another form of injustice: official misconduct. This occurs when state authorities routinely

79

80

A d u t Y to R e s I s t

violate the duties associated with their office. Official misconduct

was one of the central pil ars of Jim Crow, as local authorities—

including police, prosecutors, and courts— failed to apply the law

for the protection and benefit of African Americans. Police brutality was essential to the systematic production of terror. Bombing,

assault, and murder were more or less officially sanctioned and often

encouraged. Many state officials, judges and police, as members of

the Ku Klux Klan, engaged in lynching. That and other forms of violence against Blacks were outlawed under Jim Crow, but they were

rarely prosecuted. Blacks were prevented from serving on juries, and

when Whites were prosecuted for crimes against Blacks, they could

be confident that White jurors would vote to acquit them. These illegal practices were routine and occurred in the open. Officials who

did not conform were intimidated, harassed, or worse. Efforts were

made, sometimes successfully, to turn such illegal practices into

law.20 David Lyons dubs this “the legal entrenchment of illegality.”21

I simply call these wrongful executive and judicial practices “official

misconduct.”

One might object that official misconduct is but a facet of disrespect, since the latter, on Smith’s account, includes the toleration, not

just the enactment, of blatant injustice and encompasses the failure

to secure protections of the rule of law. But the illegal or extralegal

nature of official misconduct goes beyond majority enactment or

toleration of blatant injustices. Its inclusion in a separate category

thus underscores the different loci and mechanisms of injustice in

contexts such as Jim Crow. Of course, carving out this category does

not prevent us considering ways in which these distinct mechanisms

of injustice can work in tandem.

Official misconduct similar to that of the Jim Crow era

continues in the United States. Police brutality is common

and might plausibly be deemed officially tolerated, as police

departments tend to protect their own, and courts are reluctant to

80

81

J u s t I c e A n d d e m o c R A c Y

prosecute police officers. The Bureau of Justice Statistics estimates

that between June 2015 and May 2016 police killed approximately

1,200 people.22 Mapping Police Violence found 1,167 known police killings in 2014 (including 1,067 arrest-related deaths and 100

unintentional, off-duty and/ or inmate deaths) and 1,123 police

killings in 2013.23 In 2015, which has since been deemed the year

of reckoning for police, more than a dozen officers were charged

with murder or manslaughter in fatal on-duty shootings, up from

an average of five a year in the previous decade. Since 2005, however, only thirteen officers have been convicted of murder or

manslaughter. No officers were convicted in 2014 or 2015: in the

overwhelming majority of cases, police killings are ultimately determined to involve the lawful use of deadly force.

This low rate of convictions is not surprising given that the law

requires adopting the subjective perspective of the officer on the

scene to determine whether their use of lethal force was justified.24

The legal standard invites (White) people to put themselves in the

officer’s shoes and imagine their “reasonable” fear when faced with

criminal-and dangerous-looking (Black or Brown) people. A one—

sided exercise of empathetic imagination that is firmly rooted in

oppressive stereotypes is thus deployed to justify homicides. The

problem is structural and compounded: official misconduct works

in tandem with disrespect— from stop-and- frisk policies, which disproportionately target Black and Brown people, to the set of laws that

govern police accountability— and is (ideologically) justified and

sustained by racist cultural stereotypes that inform police officers,

their superiors and peers, and the judges and juries asked to evaluate

their actions.

We see another example of official misconduct when states violate international law in the conduct of war. The routine, illegal use of

torture, and efforts to legalize it during the “war on terror,” especially

under President George W. Bush, are cases in point.25

81

82

A d u t Y to R e s I s t

Lastly, corruption presents an archetype of official misconduct.

In Joseph Nye’s influential conception, corruption is “behavior that

deviates from the formal duties of a public role (elective or appointive) because of private-regarding (personal, close family, private

clique) wealth or status gains.”26 For our purposes, though, it is important that corruption be widespread. While individual acts of

corruption, such as former Illinois governor Rob Blagojevich’s solic—

itation of bribes in exchange for political appointments, are wrong,

contexts of official misconduct arise only when that sort of behavior

is publicly perceived as common and more or less tolerated.27

Different contexts of official misconduct involve different

wrongs: official illegality sometimes conspires to deny citizens free

and equal status, as in the case of Jim Crow; endemic corruption

assaults the integrity of the legal system, thereby harming everyone’s

fundamental interest in being governed by just institutions; states’

human rights violations abroad implicate citizens of the perpetrator

state in these wrongs. Official misconduct stains political legitimacy

and weakens, perhaps even dissolves, the duty to obey the law.

Public Ignorance

The final type of injustice concerns governments’ concealing from

the public certain facts about their programs and policies and trying

to cover up officials’ misconduct. Calling this injustice public ignorance emphasizes the democratic wrong involved in such secrecy: the public ought to know what the government does in its

name. What it keeps hidden may be clearly wrong and/ or illegal, or

there may be disagreement about its wrongfulness and/ or illegality.

Examples of government programs objectionably concealed from the

public, whether they were illegal or not, include the Federal Bureau

of Investigation’s elaborate program of spying on dissident groups,

known as COINTELPRO; the Central Intel igence Agency’s use of

82

83

J u s t I c e A n d d e m o c R A c Y

“Black sites” to torture detainees in the war on terror; and the NSA’s

dragnet surveil ance programs. Official misconduct was covered up at

Abu Ghraib and in postwar Bosnia, where American personnel were

revealed as perpetrators in an international human trafficking ring.

Public ignorance differs from deliberative inertia with respect to

the cause of the cognitive deficit in the public sphere. While inertial breakdowns are typically the result of many factors affecting the

deliberative environment, public ignorance is a result of intentional

government secrecy and/ or cover-up: it is induced and cultivated

by state officials. Although assessing contexts of public ignorance is

tricky given the government’s real and weighty interest in secrecy, as

we’ll see shortly, genuine cases of public ignorance seriously weaken

the putative moral duty to obey the law by undermining democratic

authority.28 In other words, citizens have less trust in and respect for

the state when they feel— and have to reason to believe— they are

being deliberately kept in the dark while the state perpetrates injustice. Intuitively, we might say that the graver the informational deficit,

the more serious the injustice of public ignorance, and the less trustworthy and legitimate the state.

The revelations from the Panama and Paradise Papers straddle

deliberative inertia and public ignorance: thanks to offshore finance,

the rich and powerful, including government officials and heads of

state, are able to withdraw their wealth from national and fiscal scrutiny, while concealing the conflicts of interest that the public should

know about. These conflicts of interest arise at multiple levels and

hinder democratic governance. At a basic level, offshore finance

benefits the rich and powerful; the rich are able to buy influence and

power, in the United States and elsewhere; and those in power tend

to be rich (44 percent of US Congresspersons have a net worth of

more than $1 mil ion). There is therefore little legislative interest

in regulating that sector; indeed President Donald Trump’s administration has determined to further deregulate banking. From this

83

84

A d u t Y to R e s I s t

perspective, we might describe the situation exposed by the leaked

financial documents from Mossack Fonseca and Appleby as deliberative inertia sustained by public ignorance. In addition, officeholders

shroud in secrecy the particular conflicts of interest they have, and

which the public should know about. For instance, the Paradise

Papers revealed that Wilbur Ross, the commerce secretary under

Trump, has extensive business ties with the Putin family, which he

should have severed before taking office, in compliance with government ethics standards.29 Conflicts of interest of the sort are a form of

corruption that one may categorize under public ignorance.

To recap, disrespect consists of the public denial of citizens’ free

and equal status; wrongs to nonmembers involve democratically

sanctioned violations of the basic rights and dignity of noncitizens

at home and abroad; deliberative inertia occurs when issues and

discourses are blocked from the deliberative agenda; official misconduct consists in routine illegal practices by officials acting on their

authority; and public ignorance occurs when the state prevents the

people from learning about conduct, programs, and policies they

should know and deliberate about. These types of injustice can and

often do arise in legitimate, democratic states. The typology is broad—

stroked and by no means exhaustive. It could have included historical

injustice for instance. But it is sufficient to help us examine several

implications of the duty of justice in unjust contexts within broadly

legitimate societies.

(dIs)oBedIence And democRAtIc

AutHoRItY

Before examining these implications, I need to address a particular

objection against my project, one that denies the very possibility of

political obligations to disobey based on the natural duty of justice.

84

85

J u s t I c e A n d d e m o c R A c Y

When we talk about political obligations, we are talking about the

duties of individuals. But the natural duty of justice, as envisioned by

most theorists, applies to public institutions, not personal conduct. If

this is right, then the duty of justice makes no demands on citizens

themselves.

This objection rests on an understanding of the duty of justice

tailored for theories such as Rawls’s, which focuses on the importance of society’s basic structure: institutions with significant impact

on citizens’ life prospects. But while this stance may be warranted

for the purpose of ideal-theorizing about justice, it does not follow

that institutions alone are what matters for justice. To argue as much

would be to set arbitrary restrictions on the pursuit of justice, excluding in particular non-institutional courses of citizen action. As

Liam Murphy notes:

The overwhelming practical importance of institutions in

achieving the aims of justice in the typical case should not blind

us to the fact that what matters to us, ultimately, is not whether

our institutions are just, in the sense that they achieve our aims,

but rather simply the extent to which those aims are achieved,

however that might be done.30

While institutions are crucial, perhaps indispensable, vehicles of justice, social movements and conscientious individuals can act, too.

But well understood, the objection from institutional mediation

is not that the duty of justice makes no demands on citizens: it does,

and what it requires is their obedience to the law. Proponents of the

duty of justice argue that justice cannot be achieved if individuals

decide privately what its achievement requires, that they must set

aside their own judgment of the matter and follow the state’s determination, taking its directives as providing what philosophers call

“content-independent” and “preemptive” reasons. The law provides

85

86

A d u t Y to R e s I s t

content-independent reasons for action insofar as it is its source

or pedigree (how it came about, the fact that it is issued by the authority) and not what it directs that gives a reason for action. That

it provides a preemptive reason for action means that it purports to

exclude from deliberation other reasons for action.

The argument is not simply that people’s compliance with a single

set of authoritative rules is needed for justice and stability. People

deeply care how these rules are achieved. On many accounts, what

gives people a reason to take the law as binding in these ways— that

is, as providing content-independent and preemptive reasons for

action— is the fact that it is the outcome of a democratic procedure

that gives everyone an equal say in the decision. Political equality

gives democratic procedures their authority. This is why the duty of

justice requires the establishment of just democratic institutions, and

grounds citizens’ moral duty to obey democratically made law, even

when they find it unjust.

However, modern liberal democracies fail to generate a comprehensive moral duty to obey the law insofar as they are affected by

the kinds of injustice and democratic deficits outlined above. Few

decision-making procedures in democratic states may be deemed to

produce morally authoritative outcomes. Viehoff’s account of democratic authority is especially well suited to understanding why.31

On his view, it is the egalitarian character of democratic procedures

and institutions— the fact that they are not shaped by unequal

power advantages— that gives us a reason to treat their outcomes

as authoritative. Democratic equality requires not only that parties

have equal rights and that they accept that their respective interests

are equally significant— as is standard in accounts of democratic

authority— but also that parties have, and be committed to having,

equal control over the relationship, and that they exclude the influence of unequal power advantages (Viehoff calls this the requirement of nonsubjection).32 But many democratic states’ institutions

86

87

J u s t I c e A n d d e m o c R A c Y

and procedures are insufficiently egalitarian, and shaped by unequal power, thereby giving citizens reason to scrutinize the content

of these procedures’ outcomes (rather than accepting blindly their

supposed content-independence), and to include consideration of

other reasons for action besides the one provided by the law (thereby

challenging their preemptiveness).

Stil , this does not mean that anything goes so long as institutions

lack political authority. We often have reason to follow imperfect

institutions’ directives rather than acting on our own judgment in

order to come closer to the ideal of democratic equality. For Viehoff

this is so in part because actual or threatened disobedience menaces

democratic equality by signifying wil ingness to defy it. Yet, as he

recognizes, principled disobedience may sometimes better advance

justice, too.33

Indeed, as we will see later on, principled disobedience can not

only advance justice but can also promote democratic equality itself. Viehoff conceives of democratic equality in light of an ideal he

calls “relational equality,” and which requires us to “set aside and

not act on unequal power advantages in shaping our interactions

and the norms and expectations governing them.”34 Precisely: principled disobedience can shed light on and alert the public to the

power differentials that threaten relational equality. This aim has

been central to the Occupy and BLM movements, for instance.

Principled disobedience of this sort is then justified on the basis of

the duty of justice itself and as an expression of respect for democratic authority.

For acts of principled disobedience to be justified on the basis

of the duty of justice, it is not enough that they seek to promote the

realization of democratic values; they must further be constrained in

ways consonant with democratic equality. Agents must show concern for the interests of the parties potentially affected by the disobedient acts and not seek to dominate or intimidate them. In particular,

87

8

A d u t Y to R e s I s t

attempts to retaliate against those on the winning end of power

differentials cannot be explained away by the duty of justice, and

nonviolence should be favored. But the targeted and selective use of

coercion is compatible with the imperative of nonsubjection: for instance, organized workers can justifiably deploy some force in their

effort to balance out the unequal power advantage, in the context of

labor strikes. And as we shall see, uncivil types of principled disobedience such as vigilantism and government whistleblowing, though

they appear to threaten relational equality, may be wholly justified

under certain unjust conditions.

With these goals and constraints in mind, let us turn to the inquiry into our duty of justice-based political obligations in the face of

injustice and democratic deficits.

PolItIcAl oBlIgAtIons

So then, bound by the natural duty of justice, how can and, in some

cases, how should citizens resist injustices of the type I’ve just laid

out? Through the following methods: education; protest, including

civil disobedience; covert disobedience; vigilantism; and government whistleblowing.

Education

Citizens can promote justice by working to improve the community’s

understanding of its demands. This is especially the case in contexts

of deliberative inertia, which can produce an uninformed or

misinformed public. Consider anthropogenic climate change and

rising economic inequality. In neither case is the injustice obvious.

For citizens to be able to sense injustice, they must have a basic understanding of complex scientific and social-scientific issues, especially

88

89

J u s t I c e A n d d e m o c R A c Y

to rule out alternative explanations (e.g., that climate change is not

happening or that it is not man-made). To achieve that basic understanding, the public must know certain factual information. Al Gore’s

2006 documentary An Inconvenient Truth and Leonardo DiCaprio’s

2016 Before the Flood, for instance, are important popular sources

with respect to climate change. But facts alone are not dispositive.

The social-scientific and economic facts summoned to explain the

injustice of economic inequality are neither value-neutral nor un—

disputed among experts, and even wel - informed citizens disagree

sharply about whether inequality is unjust. Furthermore, people

often only hear what they want to hear: we tend to surround ourselves

with likeminded people who share our worldviews. This tendency

is amplified online, as our social media feeds and news sources confirm our convictions and biases, and as search engines like Google are

designed to direct us to material that is most likely to reinforce our

preexisting beliefs.35

Internet governance is another context of injustice in which

education is both valuable and challenging. The complexity of

the issues involved— combined with the relative digital il iteracy

of most members of the community, including their political

representatives— significantly impairs both democratic deliberation on internet governance and the struggle for digital rights. The

Electronic Frontier Foundation—

a nonprofit organization devoted to defending free speech online, fighting illegal surveil ance,

and advocating for users and innovators— spearheads this struggle.

The Wiki Media Foundation, which operates Wikipedia, is also out

front. It has blacked out Wikipedia in protest against the Stop Online

Piracy Act (SOPA) and PROTECT IP Act (PIPA) and posted

messages explaining how these laws threaten to restrict computer

and information access.36 Such educational initiatives are crucial to

improving the community’s conception of the demands of justice in

the digital world.

89

90

A d u t Y to R e s I s t

Although educational efforts are often entirely lawful, the duty of

justice does not rule out unlawful activities that relate to educating

and informing citizens. Thus hacktivists— whom Celikates has

dubbed “the avant-garde of the digital publics”— can acceptably resort to principled disobedience in this domain, including digital

trespass and DDoS actions, to protest and educate the public about

digital rights.37 And they have done so. Aaron Swartz condemned the

paywall surrounding publicly funded scholarship by downloading

mil ions of academic articles from JSTOR. Anonymous launched

a DDoS attack against the Motion Picture Association of America

and other organizations that advocate and depend on stringent copyright laws. One can appeal to the duty of justice to justify Swartz’s

and Anonymous’s actions, even if these actions constituted acts of

uncivil disobedience.38

In some contexts of injustice, what is lacking and what education

needs to remedy is not so much, or not only, information but also

empathetic imagination. The wrongs involved in anti-immigration

policies are arguably such a case. One may plausibly contend that

false beliefs about how immigration undermines local and national

community—

and negative stereotypes about immigrants and

refugees as parasites, criminals, and terrorists— prevent citizens from

imagining themselves in immigrants’ shoes. This epistemic condition facilitates the wrongs to nonmembers. A number of people have

“come out” as undocumented immigrants to raise awareness about

their plight and invite empathy. For instance, Jose Antonio Vargas, a

Pulitzer-winning journalist, told his story in the New York Times and

described his predicament in poignant terms: “Even though I think

of myself as an American and consider America my country, my

country doesn’t think of me as one of its own.”39

A final example of justice-based political obligation to educate concerns the “burkini ban” in the French Riviera, which I have

described as a case of disrespect. Though the Council of State

90

91

J u s t I c e A n d d e m o c R A c Y

eventually struck down municipal prohibitions as unconstitutional,

a majority of French people support them and hope that the bans

will be reenacted. Public support for the bans suggests that resistance to them ought to focus on illuminating their assault on justice.

This requires both information and empathetic imagination. Muslim

women offer powerful voices of protest, as they explain why they

choose to wear modest clothing and speak to the injustice of laws

denying them the right to do so.40 This particular case also reveals the

importance of educating the public about the values associated with

the rule of law and necessary features of legality, including the necessity of laws’ generality and applicability, which the burkini ban blatantly violated (insofar as rash guards and bodysuits were effectively

exempt from the law’s enforcement, for instance).

Protest

Because the duty of justice binds people in their capacity as free

and equal moral agents, it cannot demand complying with laws,

policies, practices, and institutions that flout this status in oneself

or others. Compliance would amount to endorsing disrespect and

violations of democratic equality, which is forbidden by the duty of

justice. Beyond noncompliance, one might speak up against injustice and seek legal and structural reforms. Protest and civil disobedience are often critical ways to register opposition to unjust laws,

express respect for one’s and others’ dignity, denounce the unequal

power advantages that distort the production of law, and call for

reform. The duty of justice thus provides grounds for the duty to

protest and sometimes civilly disobey, on the basis of these acts’

communicative nature and potential to bring about reform (I present in the next chapter some social-scientific evidence supporting

the effectiveness of protest and civil disobedience campaigns to

usher in reform).

91

92

A d u t Y to R e s I s t

King’s branch of the civil rights movement embodies a

commitment to the duty of justice, which vindicates both its institutional demands and its affirmation of Blacks’ dignity in the face of

egregious violations of democratic equality. But let us look to anti—

trans bathroom bil s for a current and more controversial example.

Regardless of the true motivation behind them— proponents cite

the safety of women and children— these bil s disrespect trans and

gender-nonconforming people and leave them more vulnerable to

trans-and homophobic violence. The duty of justice demands that

citizens respond through protest, and, indeed, a significant movement

now denounces such laws as discriminatory and hateful and calls for

their abolition. While cisgender people are likely to unreflectively

comply with bathroom laws, they may be bound to disobey them if a

large campaign urged them to do so. In any case, speaking up, signing

petitions, partaking in hashtag activism, and demonstrating offer citizens the means to discharge the duty of justice in this case.

Empirical factors matter to determine how the duty to resist and

protest injustice should be discharged. Boycotts can be tricky in this

way. Some powerful corporations such as Google are boycotting

North Carolina, refusing to set up shop or host events there in response to the passage of HB2. In addition to their direct economic

effects, these boycotts attract media attention, raising awareness about

transphobia and serving to condemn anti-trans laws. But consumer

boycotts, which encourage people to cancel trips to North Carolina

or refrain from spending money there, may be less successful. This

boycott has had adverse effects on small businesses, including

LGBTQ-owned and LGBTQ-friendly shops.41 These adverse effects

seem remote from the goal of denouncing HB2. In this respect, the

consumer boycott does a poor job of realizing the demands of justice, though it may contribute in important ways to improving the

community’s conception of justice. Such impacts must be weighed

against each other in deciding the best course of action.

92

93

J u s t I c e A n d d e m o c R A c Y

Covert Disobedience

The goal of protest is legal and structural reform to correct democratic

deficits and bring about justice. But what is one to do before unjust

arrangements are rectified, while they continue to wrong people?

Think of slavery. Countless people of African descent were enslaved,

brutalized, worked to death, and murdered even as activists devoted

their lives to abolition. The duty of justice did not merely require opposition and protest. One also had a moral duty to rescue enslaved

people, when one could, even if that meant disobeying egregious

laws, such as the Fugitive Slave Law. Many abolitionists understood

this and fulfilled their duty by assisting Blacks fleeing to the North

and to Canada via the Underground Railroad. Note the difference

between the enterprises of rescue and protest: the purpose of the

Underground Railroad was to ensure the freedom of individuals, not

to abolish slavery. Rescue fulfilled a non-institutional demand of the

duty of justice. And it did so covertly, not communicatively, thereby

violating civil disobedience’s norm of publicity.

The sanctuary movement offers a contemporary example of

principled disobedience designed to satisfy the demands of justice outside institutions, again covertly. This large political and

religious campaign, active in the United States in the 1980s and

1990s, violated federal immigration law by providing safe haven for

Central American refugees fleeing civil conflict. Sanctuary members

secured shelter, material goods, and legal advice for refugees refused

asylum under restrictive immigration policies.42 Similar sanctuary

movements have emerged in Europe in response to the global refugee crisis. For instance, French inhabitants of Breil-sur- Roya, near

the Italian border, assist undocumented migrants by helping them

cross the border into France, and providing them with food and

shelter. Threats to unauthorized migrants, as well as escaped slaves,

also require us to fulfill our Samaritan duty to aid people in dire need,

93

94

A d u t Y to R e s I s t

as we’ll see in chapter 5. French courts draw a line between Samaritan

assistance and justice-based activism, excusing the former but firmly

outlawing the latter: Eric Herrou was swiftly released in August 2016,

soon after his arrest, when a judge ruled that he had acted on humanitarian grounds by helping a group of Eritreans into France. But when

he was arrested again in mid-October for opening a shelter in a dis—

used holiday camp to house fifty migrants, prosecutors insisted that

his actions should be treated as a form of activism, and not as a humanitarian endeavor.

At the very least, the duty of justice prohibits complying with

laws that make us agents of wrongdoing. Arizona, Alabama, and

other U.S. states increasingly conscript citizens to enforce immigration laws by imposing legal duties on them to monitor, report,

and refrain from employing, transporting, or aiding unauthorized

immigrants, including children.43 If these laws are unjust and violate migrants’ rights, as some have argued, then citizens who comply

with them contribute to violating the rights of migrants. And since

the duty of justice prohibits contributing to rights violations, it

prohibits citizens from obeying immigration laws, demanding disobedience instead.44

Disobeying immigration laws is a principled act, but not a civil

one. It must be covert in order to succeed. Public disobedience would

not serve to protect unauthorized migrants from the harms of arrest,

detention, and deportation. Although the principled disobedients

can also be outspoken critics of unjust immigration laws, they disobey covertly and their primary aim is not to condemn the law (such

communicative aim would require publicity). Instead they defy the

law because they wish to attend to vulnerable people’s needs and express respect for the dignity and freedom of those whose equal moral

standing is denied. This what the duty of justice requires; it is a duty

that calls, when necessary, for uncivil disobedience to frustrate disrespect and wrongs to nonmembers of the state.

94

95

J u s t I c e A n d d e m o c R A c Y

Vigilantism

When faced with official misconduct, as in contexts of disrespect

and wrongs to nonmembers, protest and civil disobedience may be

effective tools of reform. And some forms of uncivil (including covert) disobedience may be appropriate in the meanwhile, to frustrate

ongoing wrongs. Vigilantism numbers among the types of uncivil disobedience that can be justified by the duty of justice in some contexts

of official misconduct. It consists of the use of force or threat of force

by nonstate agents for the purpose of control ing (preventing and/

or punishing) conduct perceived as criminal or immoral. Vigilantes

usurp law-enforcement functions. They wrongfully hold on to the

natural right to punish, which John Locke insisted one must surrender upon entering civil society and transfer to the sovereign. In

doing so, they wrongfully transgress the state’s monopoly on violence, which makes this form of action a particularly subversive one.

Most vigilantism cannot be justified. The Ku Klux Klan’s vigilante activities were egregiously immoral. They involved unjustifiable

means— murder, torture, and terrorism— in the service of unjustifiable ends— the maintenance of White power. The vigilante kil ings

perpetrated in San Francisco, California, in the 1970s, by a group of

Black Muslims who called themselves the “Death Angels” cannot

be justified either. They murdered at least fifteen people, perhaps

closer to one hundred, simply because they were White.45 But those

vigilante groups, such as the Deacons for Defense and Justice, that

arose to defend African Americans against White supremacist violence under Jim Crow— illegally and with force— could be justified

in the context of grave official misconduct, as the state deployed its

force against some of its people and failed to protect them from lethal

violence inflicted by other subjects.46 The Deacons exercised their

fundamental right of self-defense and protective defense of others.

The group, which grew to several hundred members in the 1960s

95

96

A d u t Y to R e s I s t

and had twenty-one chapters in the South, protected members of the

Congress of Racial Equality, Blacks registering to vote, and White

and Black civil rights workers. They also provided security for King at

speaking events all over the United States.

Malcolm X also defended Black vigilantism as a form of justified

self-defensive force in the context of authorities’ failure to protect

Blacks:

[I] n areas where the government has proven itself either unwil ing or unable to defend the lives and the property of Negroes,

it’s time for Negroes to defend themselves . . . If the White man

doesn’t want the Black man buying rifles and shotguns, then let

the government do its job.47

Thus a certain kind of vigilantism— the organized use of self—

defensive force such as that practiced by the Deacons for Defense

and Justice and the Black Panthers under racial segregation, and the

Lavender Panthers in San Francisco— may be justified in contexts

of entrenched institutional inefficacy that leaves some people vulnerable to grave harm, so long as it involves the justified use of force

in defense of self or others. That is, the harm inflicted by the vigilante must be a proportional (necessary and fitting) response to an

immediate threat. Wounding or kil ing a Klansman about to lynch

someone is justified rather than, say, fleeing and calling the police;

parading with weapons to publicly demonstrate one’s wil ingness and

capacity to respond to violence with violence can be justified too; but

the use of deadly force cannot be used preemptively or indiscriminately or in response to future probable threats. Nor can it be used as

a form of payback after an attack.

Vigilantism is often associated with retaliation and vengeance: Batman not only protects innocents from criminals but

punishes the latter, under the guise of both retribution and

96

97

J u s t I c e A n d d e m o c R A c Y

deterrence. The Ku Klux Klan presented its lynchings of Blacks as

punishment for alleged (invented) crimes. Quentin Tarantino’s

Revenge Trilogy, which includes Inglorious Basterds (2009), Django

Unchained (2012), and The Hateful Eight (2015), represent retaliatory vigilante missions against sadistic wrongdoers from the ranks of

Nazi officials, slaveholders, and Confederate army generals, respectively. The duty of justice cannot support vigilantes’ use of deadly violence as punishment or vengeance. But consider the case of digital

vigilantism. In Operation: Payback, Anonymous launched a series of

retaliatory DDoS attacks against various entities they saw as inimical

to digital rights, to alert the public to some of the unjust constraints

on the free flow of information online.

As a protest seeking to raise awareness, the campaign could be justified by the duty of justice. However, hacktivist participants intended

to inflict serious economic damage to pro-copyright and anti-piracy

organizations as retaliation to previous cyberattacks against torrent

sites. The British Recorded Music Industry (BPI), the International

Federation of the Phonographic Industry (IFPI), and the Ministry of

Sound estimated the financial impact of the attacks to total £33,000.48

Whether the duty of justice can justify Operation: Payback depends

on the legitimacy of the campaign’s goal— it can be justified as a protest but not as a punishment— and on the justification of its means.

In particular, one ought to take a close look at the costs inflicted: Did

the companies overestimate the financial impact of the attacks? Did

they unfairly include indirect costs such as those related to security systems’ updates? Were the costs reasonable— small enough to

be easily absorbed but large enough to garner publicity? Justifying

Operation: Payback would require a positive answer to all three

questions— the case can be made, in short, though making it requires

a thorough investigation, which I won’t undertake here.

However, the duty of justice cannot be used to support Operation

Ferguson, in which Anonymous threatened and then hacked into

97

98

A d u t Y to R e s I s t

the Saint Louis Police Department to release (what they incorrectly

thought was) the identity of the officer who had shot Michael Brown

in August 2014. They exposed the wrong officer and his family to

death threats and mob violence— an expected but unacceptable result of Anonymous’s doxxing (stealing and release of private confidential information), which would have been wrong even if it had

targeted the right person. The duty of justice cannot justify exposing

someone’s family to such severe threat of harm.

Government Whistleblowing

In cases of public ignorance, when the government hides from the

public some official misconduct or a particular program or policy

about which the public should know, the duty of justice generates

special obligations on the part of witnesses or participants. Public ignorance is a serious impediment to democratic deliberation. Those

who have access to the wrongfully concealed information ought to

alert the public about it. Agents who are in a position to diagnose

public ignorance and its attending injustice are usually, though not

necessarily, participants in the concealed programs or activities, in

their professional or official capacities.

Reporting wrongdoing and corruption within one’s organization

is already employees’ duty according to many professional codes of

ethics— especially that of civil servants. But I want to argue something

stronger, namely, that where the information in question is in the

public interest, and when officials repress agents’ attempts to blow

the whistle through designated channels, agents may incur a moral

duty to blow the whistle illegally, through unauthorized disclosures

to the public. And this duty derives from the duty of justice.

Denouncing and reporting corruption and other abuses is indeed critical to the promotion of just democratic institutions, as

public denunciation can serve several of the purposes we have

98

9

J u s t I c e A n d d e m o c R A c Y

focused on: improving the community’s conception of justice and

understanding of democratic equality, communicating protest, and

frustrating wrongs through exposure that may lead to cessation. The

duty of justice can thus support special obligations to blow the whistle

against public ignorance, even if doing so involves breaking the law

by disclosing state secrets. Snowden’s leaks educated the public

about digital rights infringed upon by government surveil ance, and

the Panama and Paradise Papers exposed systematic tax evasion

by the wealthy and politicians’ conflicts of interest. Government

whistleblowing can remedy significant cognitive deficits in the public

sphere, thereby enabling a deliberative environment. It can also frustrate injustice by halting or diminishing the wrongdoing in question

as soon as it is exposed. These functions make it a particularly powerful way of addressing democratic deficits (in the form of public ignorance) and enhancing justice and the rule of law (when the state

uses secrecy in order to conceal its own wrongdoing). Government

whistleblowers can thus appeal to the duty of justice to justify their

actions.

Of course only justified, suitably constrained government

whistleblowing is mandatory: agents ought to seek to expose serious

government wrongdoing or programs and policies that ought to be

known and deliberated about; they ought first to undertake lawful,

internal attempts to alert the public; and they ought to take serious

precautions in the disclosure so as to minimize the harms that could

potentially ensue, including by carefully choosing the leaks’ recipients

and editing the information disclosed.49 Examples of whistleblowers

whose unauthorized disclosures successfully combated public ignorance, were suitably constrained, and plausibly fulfilled the duty of

justice include Ellsberg, whose leaks of the Pentagon Papers to the

New York Times, as I mentioned earlier, revealed that the United

States committed war crimes in Vietnam and lied at home; the

Citizens Commission to Investigate the FBI, who exposed the illegal

99

10

A d u t Y to R e s I s t

program of spying on dissident groups known as COINTELPRO;

and Snowden’s NSA leaks. While the Iraq and Afghanistan War Logs

leaked by Chelsea Manning exposed war crimes— a clear subject

of public ignorance— WikiLeaks’s decision to publish the classified

documents without editing them arguably sapped the justification of

Manning’s whistleblowing.

Ellsberg and Snowden are often praised as civil disobedients.

The framing of government whistleblowing as civil disobedience

rightly points to agents’ principled motivations and communicative

intent: whistleblowers, like civil disobedients, address themselves

to the public. However, it is a mistake to conceive of government

whistleblowing as a form of civil disobedience. Whistleblowers

obtain classified documents covertly and without authorization.

They often disclose the information they have gained access to

anonymously, though some whistleblowers like Snowden make

a point of publicizing their findings. Many whistleblowers seek

to evade punishment. Government whistleblowers transgress

the boundaries of state secrets for the purpose of challenging

the state’s use of secrecy. Unauthorized disclosures do not only

challenge executive decisions to keep certain information out of

the public realm, but they also unilaterally reverse these decisions.

Civil disobedients do no such thing: their lawbreaking challenges

but does not undo unjust laws.

oBJectIons

I have argued that the duty of justice does not simply ground a duty

to comply with the outcomes of just democratic institutions but that

it also supports a duty to resist injustice, by civil and potentially uncivil means, when the law violates justice or undermines democratic

equality.

100

10

J u s t I c e A n d d e m o c R A c Y

Two sets of objections arise from what I’ve argued, which I will

examine in the pages ahead. First, one may wonder if political

obligations based on the duty of justice are too demanding, difficult to

satisfy, and generally undesirable. Do we really want ordinary people

to undertake such obligations, when they might be mistaken about

what justice requires? Likewise, one may object that only lawful protest and, at the limit, civil disobedience can be morally required in a

basically legitimate society. Uncivil types of principled disobedience

like the ones I defended above should be excluded.

Demanding, Difficult, and Undesirable

It is difficult to satisfy political obligations based on the duty of justice because these obligations are, I admit, demanding in nature.

Indeed it is daunting to consider the extent of the deeds we might

be required to do, especially if the duty of justice does not stop at the

merely legal. How is it realistic to ask so much of ordinary citizens?

Making matters worse, it can be confusing to tell exactly what the

duty of justice requires us to do. Rawls qualified the duty of justice,

arguing that it need be fulfilled only at “little cost to ourselves.” But

action requires time and energy and, in some cases, significant sacrifice. And while the duty to obey the law is straightforward— laws

themselves more or less clearly specify the content of our duty—

political obligations to resist injustice can be taxing. To fulfill such

obligations, one must assess the moral merits of laws, evaluate their

effects on people’s standing and on the integrity of the legal system,

and choose among methods of resistance.

There are hazards at each stage. We may err in assessing the

merits of laws, their effects, the injustice of these effects, and the

available and appropriate responses. We also may fail to perceive

injustices. Our mistakes may reflect mistaken convictions about

justice. But even when we understand the injustice of situations

101

102

A d u t Y to R e s I s t

properly, our solutions may be misguided. In short, agents must

be wise and virtuous in order to satisfy political obligations in the

face of injustice, whereas the moral duty to obey the law supposedly

can be met by anyone. Given that people could easily miscalculate

and end up causing more harm than good, perhaps they shouldn’t

make judgments about the existence of, and solutions to, injustice

on their own.

These objections, which also apply to political obligations based

on other normative principles defended in this book, seem to strike

a serious blow to the project. Chapter 7 tackles these issues. For now,

let me briefly address each in turn.

First, are political obligations in the face of injustice too demanding? It is true that we possess limited time and cognitive and

financial resources and may have many other valuable projects to

pursue. But this just means we cannot be expected to devote ourselves

entirely to struggles for justice and democracy. It does not mean we

can shrug off all political obligations as excessively demanding and

therefore do nothing. The duty to obey the law makes burdensome

demands on citizens— to pay taxes, sit on juries, and, if conscripted,

serve in the military. There is no reason political obligations in the

face of injustice cannot be equally demanding. And just as one can

reasonably be blamed for refusing the burdens of obedience to law

(when it is morally required), one can be blamed for refusing the

burdens of addressing injustice.

Second, can and should these political obligations— and the

duty of justice from which they derive— guide action? Yes, assuming

certain conditions prevail. Agents must be able to perceive injustice before they can assess the situation properly and take action.

This presupposes good information, some intellectual capacity, and

moral dispositions. In chapter 7 I propose that we supplement the

account of political obligations in the face of injustice with two additional responsibilities: one, to form one’s beliefs responsibly and

102

103

J u s t I c e A n d d e m o c R A c Y

exercise the civic virtue of vigilance; two, to engage with others in dialogue and foster the civic virtue of open-mindedness. But this does

not mean that nothing is to be done until all the conditions for the

possibility of satisfying one’s political obligations are in place. In particular, those agents who are able to help improve others’ conception

of justice and aptitude for assessing injustices have a weighty responsibility to educate and inform others.

I also want to stress that I do not defend the view that all citizens

should try to work out for themselves what the duty of justice— or

any other important normative principle— demands in the face of

injustice. My argument is that it is wrong to presume that the duty

of justice solely requires compliance with the law in states like ours.

Instead it demands resisting injustice so as to respect people’s rights

and make institutions more democratic. Satisfying the demands of

the duty of justice unquestionably is complicated and difficult, but

that does not mean we don’t have to try to do so.

Against Uncivil Disobedience

One might see no problem with the resort to lawful protest and civil

disobedience in the effort to advance justice and democratic equality,

but point to the potentially destabilizing effects of uncivil disobedience. Covert disobedience can habituate citizens to illegality, thereby

undermining the rule of law. Vigilantism usurps one of the state’s

most crucial prerogatives: its monopoly on the threat or use of violence in order to protect people. Government whistleblowing can

put national security at risk. Each of these actions may manifest disrespect for democratic institutions and is likely to scare and antagonize the majority, erode the civic bonds, and compromise future

social cooperation. We therefore must think carefully about whether

the duty to support just institutions can be realized through uncivil

disobedience.

103

104

A d u t Y to R e s I s t

But as I argued in the previous chapter, uncivil disobedience does

not necessarily undermine or express contempt for democratic authority. As a form of self-defensive action in contexts of widespread

state-sanctioned violence, justified vigilantism affirms the full and

equal status of those under attack and thereby promotes democratic

equality. What of the concern that covert disobedience habituates

people to illegal behavior, potentially spil ing over to totally unjustifiable, unprincipled criminality, thereby disserving the duty of justice? This is an empirical matter, and there is no evidence to support

such fears. Consider drug and alcohol prohibition, a constant arena

for covert disobedience. Between 1919 and 1933, Americans routinely and covertly disobeyed statutes banning alcohol use without

suddenly turning to criminality. Today, many people in the United

States and elsewhere quietly disobey legal prohibitions against mari—

juana use with no further effect on disobedience. Drug prohibitions

do breed serious wrongdoing, but only because they encourage

black markets and organized crime— not because of some disobedience contagion.

Noting his evasion of punishment, Snowden’s critics suspect that

he was disloyal to the United States and reject the claim that he was

motivated by respect for the rule of law and democratic authority.50

But this condemnation does not withstand scrutiny. Against

journalists’ advice to remain anonymous and thereby evade the possibility of punishment, he chose publicity. Since coming forward, he

has been a relentless and eloquent advocate for electronic freedom

and privacy, demonstrating his sincere commitment to the public interest. He has worked to strengthen democratic ideals by emphasizing

their role in online governance. Not every whistleblower is as conscientious as Snowden, but his example shows that whistleblowing

need not be disrespectful of democratic institutions, antagonize the

public, or disrupt civic concord. All in all, we cannot discount the

role of principled disobedience in realizing the duty of justice.

104

105

J u s t I c e A n d d e m o c R A c Y

tRAnsnAtIonAl oBlIgAtIons

I focused in this chapter on how the duty of justice affects political

obligations in nonideal legitimate, democratic states, which present a harder case for principled disobedience. We should also reflect on obligations with respect to illegitimate states. The central

political obligation of citizens in such states is to resist illegitimate

authority— be it autocratic or colonial— and establish in its place a

government based on self-determination. Fulfil ing this obligation

typically requires mass struggle and coordination internally. But outside forces, including citizens of legitimate states, can help. Are they

obligated to do so?

According to Rawls, the duty of justice binds us to help establish

just institutions where they don’t exist. Allen Buchanan has defended

a “robust natural duty of justice,” which specifies that obligations extend universally.51 On this version of the duty, people living under

just institutions must help those subject to unjust institutions, wher—

ever these are. I want to suggest three main sites of action.

The first, and by far the most important, is supranational: international organizations such as the United Nations have a crucial role in

helping war-torn and developing countries end conflicts and establish wel - functioning institutions. Methods of assistance may include

humanitarian intervention, financial aid, consulting, election—

monitoring, and criminal prosecutions under international law.

Second, individual states can do their part in international humanitarian efforts. For better or worse, the United States is leading

the international effort to fight transnational corruption by applying

its anti-bribery law— the Foreign Corrupt Practices Act of 1977—

internationally.52 Insofar as corruption undermines the integrity of

legal systems and thus constitutes an indirect assault on people’s dignity and vital interests, one may plausibly argue that the United States

is upholding its duty to support just institutions everywhere.53

105

106

A d u t Y to R e s I s t

Third, individuals themselves may also be bound by the duty of

justice to help establish just institutions in other countries. One central transnational political obligation is to express solidarity with and,

to the extent possible, contribute to, other people’s pro-democracy

movements. Examples of solidarity include demonstrations against

global labor injustice and consumer boycotts of low-road producers

in foreign countries. Financial and technical support can also help

activists’ and rebels’ freedom struggles in illegitimate states. For instance, the hacktivist group Telecomix develops and provides Digital

Care Packages, including anti-censorship, anti-surveil ance, and

internet-backup software, to pro-democracy groups the world over.

Telecomix recently “mapped” Syria (i.e., scanned the state’s networks

and servers for surveil ance equipment) and established encrypted

connections to help local activists make their online activity harder

to monitor.

Why should people obey the law? Champions of the duty of justice answer that citizens’ compliance with the law is necessary for the

state to uphold its peace-keeping and rights-preserving mission and

that the duty of justice morally binds citizens to obey the outcomes

of democratic decision-making procedures. But as we saw, the duty

of justice can also support political obligations to resist injustice, institutionally and non-institutionally, at home and abroad. Even in legitimate democratic states, the duty of justice cannot bind people to

comply with the law when doing so would contribute to denial of

fellow citizens’ free and equal status or support corrupt institutions.

Instead, the duty of justice demands resisting injustice, bettering

institutions, and frustrating wrongs, and it supports principled disobedience in the process. Given our less-than- ideal polities, obeying

the law is neither the sole, nor necessarily the most important, of our

political obligations.

Because the natural duty of justice is such a wel - established source

of justification for the standard understanding of political obligation,

106

107

J u s t I c e A n d d e m o c R A c Y

it serves as exhibit A in the case for revisiting that standard. But we

can draw on other “evidence.” In the next chapter, I turn to fairness.

Like the duty of justice, the duty of fair play is frequently adduced

as a ground for a political obligation to obey the law. But it, too, can

ground an obligation to resist when systemic injustice arises.

107

108

Chapter 4

Fairness

Imagine you are an adult White man in Mississippi in the 1950s,

under Jim Crow. You are deeply rooted there, and racial segregation

is all you have ever known. You consider yourself a patriot and believe you are morally bound to respect the government and obey its

law. By all accounts, you are a good person— you are generous and

kind, beloved by your family and friends, respected in the community. Nonetheless, you are part of a profoundly unjust system that

brutalizes and discriminates against Black people.

You go through your day benefiting in myriad ways from discrimination and witnessing its injustice. On your way to work, you comfortably sit at the front of the bus while Black passengers are crowded

in the back. You have an interesting and lucrative job that roughly half

of your fellow Mississippians cannot apply for or stand no chance of

getting. Wherever you go, you are served before Black people are, no

matter who got there first. You are always treated with respect and

called “sir,” while Black men your age are called “boy.” Your children

go to a good public school; have access to a good public library;

play in a big, clean swimming pool in the summer; and can sit wher—

ever they want in the cinema. You are well aware that Black children

attend poorly funded schools and have limited access to the library,

swimming pool, and theater.

108

109

FA I R n e s s

What are your obligations under these profoundly unfair

circumstances? H. L. A. Hart, George Klosko, and the early Rawls,

among others, used the principle of fairness to ground the moral

duty to obey the law in cooperative social schemes.1 I will show

that, under nonideal conditions such as those of Jim Crow, fairness

demands something else. For our hypothetical Mississippian, and

for others similarly situated, the principle of fairness imposes a political obligation to resist injustice, even when doing so means flouting

the law.

Fairness imposes different demands, depending on context: fair

judges are supposed to treat like cases alike; in fairly splitting a

bounty, equal partners take equal rewards. When applied to mutually beneficial cooperative schemes, such as labor unions, neighborhood associations, and states, the principle of fairness yields a

duty of fair play, which demands reciprocity. Through cooperation,

which typically involves following the same set of rules, participants

assume equitable shares of the burden associated with producing

benefits. The duty of fair play (or principle of fairness— I use these

interchangeably) proscribes taking advantage of other people’s wil -

ingness to comply with the rules of the scheme for the benefit of

all— a kind of foul play known as free-riding. Fairness guards against

participants’ noncompliance with the rules, because free-riding

could affect the supply of benefits and increase other members’

burden. Imagine shipwrecked sailors who have to row their lifeboat

to shore: one free-rider on the boat increases other sailors’ efforts.

But the duty of fair play is supposed to hold even when noncompliance on the part of some of the participants would neither affect

overall benefits nor require more sacrifice to offset. For instance,

the subway goer who jumps the turnstile to avoid paying the fare

does not affect other passengers, so long as this kind of free-riding

is relatively rare.

109

10

A d u t Y to R e s I s t

FAIR PlAY And InJustIce

Fair-Play Arguments for the Duty to Obey

Fair-play theorists of political obligation understand citizens of a

good— near-just, legitimate— society as participants in a mutually

beneficial cooperative scheme. Society provides stability, peace, rights

protection, safe roads, clean water, military security, and other public

goods (understood as collectively produced goods that are available

to all), but only if enough citizens comply with laws requiring that

they pay their share of taxes, refrain from committing crimes and report those they witness, drive on the appropriate side of the road,

serve on juries, vote, serve in the military, and so on. (The particular list of duties varies from state to state and need not worry us.)

Because (and to the extent that) the benefits of political authority are

indispensable public goods, secured at a reasonable cost that is fairly

distributed among the population, everyone is morally bound to do

their part in sustaining the state. This moral duty is owed to fellow

citizens— not to oneself, the state, or some other entity— and met

through obedience to the law.

This argument for political obligation has its critics, who object

that one must be a wil ing, knowing, and acknowledged cooperator

in a given scheme before one can be bound to contribute one’s fair

share. Citizens do not generally satisfy this condition, critics argue,

unless they take an oath of allegiance to the state, as naturalized citizens and state officials do. According to this “voluntarist” critique—

posed by philosophical anarchists Robert Nozick and A. John

Simmons, among others— participation in the scheme requires

consent, and only then do individuals incur a duty of fair play. But

because citizens cannot reject certain state benefits even if they wish

to, their acceptance of benefits does not imply consent. Or so the

voluntarists argue, against “nonvoluntarist” fair-play champions like

Klosko.

110

1

FA I R n e s s

Theorists also disagree about how the duty of fair play works in

unjust societies. Some theorists, usually nonvoluntarists like Rawls

and Klosko, argue that citizens cannot be bound to obey the law in

a society fraught with pervasive, grave injustice, even if that society

provides some important public goods such as security and order.

I share this view (which I call the disjunctive view) but not the further, widely shared implication that citizens in unjust societies are relieved of any fairness-based political obligations. Others, voluntarists

and nonvoluntarists alike, maintain that unjust schemes may still

impose fair-play obligations on their participants, to the extent that

they consent to the scheme (in Simmons’s view) or enjoy benefits (in

Garrett Cullity’s). Call this the unified view.

Each of these views is supported by different, plausible

intuitions: proponents of the disjunctive view (“disjunctivists,” for

short) stress that there cannot be any moral obligation to do wrong,

while proponents of the unified view (or “unifiers”) insist that there

is such a thing as honor among thieves and that whoever wil ingly

cooperates with others in a mutually beneficial scheme— even an immoral one— incurs fair-play obligations to do their share. However,

unifiers add, such fair-play obligations are weak and typically, or always, overridden by countervailing moral considerations. Against

disjunctivists, I intend to show that fairness demands resisting an unjust scheme, even (indeed, especially) if one benefits from it. Against

unifiers, I will argue that fairness generates obligations to resist and

reform unjust schemes, even if one has agreed to cooperate in them.

Injustice

Two kinds of unjust cooperative social schemes will be important

in understanding the role of fairness in one’s duty to resist: exploit-

ative and harmful schemes. Exploitative schemes distribute burdens and benefits in a systematically objectionable way, as one group toils

111

12

A d u t Y to R e s I s t

more than another that nonetheless benefits from the fruits of the

first’s labor. Iris Marion Young conceives of exploitation as an inherently wrongful set of structures sustaining “the transfer of the results

of the labor of one social group to benefit another.”2 The capitalist

economy, in Marx’s analysis, is a stark example, as the bourgeois class,

which owns the means of production, exploits the workers, who must

sell their labor power to survive.

Harmful social schemes of coordination distribute benefits and

burdens justly among their participants, all the while imposing negative externalities or harms on nonmembers. The harms I am especially concerned with here are those of oppression. In Young’s

analysis, they include marginalization (basically, social exclusion),

powerlessness (inhibition of the development of one’s capacities for

autonomy), cultural imperialism (universalization of a dominant

group’s experience and culture), and violence (which is systemic

and institutionalized when directed at members of a particular group

specifically because of that membership). Colonial domination is a

strong example of a harmful social scheme: the colonizer imposes

powerlessness, marginalization, cultural imperialism, violence, and

exploitation on the colonized. Cisgender heterosexist prejudice is another such scheme. Though typically less lethal than colonialism, heterosexism also tends to involve all four oppressive harms considered

here: marginalization via exclusion of LGBTQ people; imposition of

powerlessness via the inhibition of opportunities for development;

cultural imperialism via universalizing of the cisgender heterosexual

experience; and violence, including sexual assault.

Although the distinction between exploitation and harm is helpful

in highlighting certain defects of social schemes, the two forms of

oppression in fact overlap to a large extent. For instance, exploited

groups are often at the same time discriminated against, powerless,

and vulnerable to violence. As I conceive of it here, whether a given

social arrangement is exploitative or harmful depends in part on

112

13

FA I R n e s s

how one assigns membership in the scheme. So one might describe

workers in the capitalist economy as participants in an exploitative

scheme, insofar as they consent, and are not forced, to work for particular employers, or instead as victims of that scheme, to the extent

that they are forced to sell their labor to survive.3

But I do not mean to say that membership in the scheme merely

depends on its description. It may well be obvious where one stands.

For instance, victims of human trafficking are victims, not members

or participants in the human trafficking ring. Ann Cudd describes

women in Western labor markets who decide to opt out of the

workforce (for rational reasons as far as their households are concerned) as willing participants in exploitative, sexist schemes, who

perpetuate women’s oppression “by choice.”4 Since the schemes of

coordination we are considering here involve social groups, it may

be the case that some individual members of these groups are appropriately described as willing and knowing participants where

others are not. The point is that the framework’s porous line between exploitation and harm is a desirable asset rather than a defect, I think.

Jim Crow, the racial caste system prevailing in the American South

from the 1880s to the 1970s, in which Whites were beneficiaries and

Blacks systematically oppressed, was both exploitative and harmful.

How could it be both? Jim Crow was exploitative because it distributed burdens and benefits unjustly among Whites and Blacks. It was

harmful, if one draws membership narrowly, because it subjected

nonmembers— Blacks— to domination, humiliation, objectification, and violence. These two facets of the scheme based on two ways

of delineating membership aligns with Robert Dahl’s description of

Jim Crow as a “dual system” in which White members cooperated on

fair terms (so the scheme was internally fair but harmful), while Black

nonmembers were forced to acquiesce to unfair terms (making the

scheme exploitative or internally unfair, from another perspective).5

113

14

A d u t Y to R e s I s t

In this way, Jim Crow allows us to analyze two kinds of unfairness in

one picture.

Free-Riding

Free-riders choose to receive or accept certain goods without paying

the costs of producing these goods. Examples include going to a pot—

luck picnic empty-handed, driving one’s car on the bus lane to avoid a

traffic jam, and regularly listening to public radio shows without ever

donating any money. (Further details must be fleshed out for these

cases to illustrate free-riding, such as that one is able but choosing

not to bring something or contribute in some other way to the pot—

luck picnic, one isn’t facing an emergency justifying the decision to

bypass the traffic jam, and one can afford to donate some money to

one’s favorite radio programs.)

Free-riding is generally considered wrong. In seeking benefits,

the free-rider depends upon the wil ingness of others to subject

themselves to a contribution requirement she is herself unwil ing to

accept. As Garrett Cullity observes, “If a person receives a net benefit

from a scheme, then her unpreparedness to meet its requirements,

when she depends for the benefits she receives on others’ meeting

them, is unfair.”6 The unfairness derives from giving oneself “objectionably preferential treatment”— putting one’s own interest above

others’, making oneself an exception.7 This is a form of wrongful

(“reverse”) discrimination: the imposition of an arbitrary and illegitimate advantage at others’ expense.

Additionally, free-riding is conceived as wrong because it is a

form of exploitation.8 There are many accounts of exploitation, not

all of which conceive of exploitation as inherently wrongful: some

argue that exploitation is wrong, when it is, because it is coercive,

or degrading, or fails to protect the vulnerable. According to Robert

Mayer, to exploit is to unfairly take advantage of someone else, to

114

15

FA I R n e s s

gain at another’s expense.9 Again, gaining at another’s expense is

not always wrong— for instance, athletes take advantage of their

opponents’ vulnerabilities in order to win competitions— but exploitation, along with theft and cheating, are species of wrongful gain.

I favor Cullity’s account over Mayer’s for two reasons. One is

that not all forms of free-riding appear necessarily exploitative in

the sense of wrongfully gaining at another’s expense. In many cases,

free-riding is unnoticed by other participants and will not affect their

share of burdens (think of my boarding the bus through the back to

avoid paying the fare and suppose no one notices). In those cases the

wrongful gain does not disadvantage others. However, such forms

of free-riding would still constitute cases of objectionable preferential discrimination. Another reason to prefer Cullity’s account is that

one could plausibly argue that what is wrong with wrongfully gaining

at another’s expense is that one gives oneself an unfair advantage,

so that the conception of free-riding as wrongful exploitation boils

down to objectionable arrogation of privileges.

But whether or not Mayer’s account is ultimately reducible to

Cullity’s, they both help illuminate what makes free-riding reprehensible. The free-riders objectionably grant themselves special

privileges they are not entitled to and exploit others’ cooperation to

the scheme while shirking their duty to cooperate. With this basic

outline of the wrongfulness of free-riding in hand, let us turn to the

case for fairness-based political obligations of resistance.

tHe negAtIVe ARgument

Can fairness require cooperating with an exploitative or harmful

scheme of coordination? As we have seen, disjunctivists answer

no, while unifiers answer a qualified yes. Either way, fairness allows

all participants to refuse cooperation with exploitative or harmful

115

16

A d u t Y to R e s I s t

schemes— on the disjunctive view, because the scheme does not

distribute burdens and benefits justly, thereby violating one of the

conditions necessary for fair-play obligations to arise; on the unified

view, because the fair-play obligations to cooperate generated are

weak and typically defeated by other moral demands (e.g., based on

justice).

But I go further, arguing that, under certain circumstances,

fairness not only allows all participants to refuse cooperation with

exploitative or harmful schemes but also prohibits beneficiaries of

such schemes to cooperate. The Negative Argument thus targets

beneficiaries in particular (some and not all beneficiaries as we’ll

see shortly), while I will address victims’ fair-play obligations later.

This prohibition is compatible with the unified view that holds there

are fair-play obligations to cooperate in unjust social schemes: if we

accept the unified view, then we can say that the principle of fairness

may sometimes be the source of conflicting sources of obligations—

cooperation and noncooperation— which should be weighed against

each other.

Here are the Negative Argument’s barebones:

(1) Fairness prohibits free-riding, given the deontic wrong it

involves.

(2) Benefiting from an exploitative or harmful scheme, under

certain conditions, involves the same deontic wrong as

free-riding.

(3) Therefore, under these conditions, fairness prohibits

benefiting from an exploitative or harmful scheme.

We just saw that the wrong of free-riding may be understood as

a form of objectionable preferential discrimination or exploitation and wrongful gain. Unsurprisingly, this is also how we can

describe certain sociopolitical injustices, such as exploitation

116

17

FA I R n e s s

and discrimination, which epitomize unfairness. The idea is that

benefiting from unfair social schemes, on the one hand, and free-riding, on the other, share a common deontic wrong. By definition,

to benefit from wrongful exploitation or harms is to wrongfully

gain at another’s expense. But, as voluntarists point out, this is not

sufficient to make beneficiaries morally like free-riders: they must

further intend to take advantage of others’ oppression. Intent is

demonstrated by consenting to participate and through awareness

of the injustice attending benefits or by occupying a position where

one ought, reasonably, to be aware of that injustice. To accept

a benefit in a consent-implying way typically requires receiving

and enjoying the benefit and having the opportunity to refuse it

at reasonable cost to oneself. Voluntarist critics stress that since

the putative benefits of life under political authority are free and

nonexcludable, states don’t satisfy the latter condition— they don’t

offer benefits that agents can refuse.

But the voluntarist test— call it the “excludability test”— stacks

the deck against the state by, in effect, stipulating that one cannot

genuinely accept free and nonexcludable benefits. Pasternak has recently proposed a fine-grained framework to think about wrongful

beneficiaries, which shows, against the excludability test, that

consent-implying acceptance of free and nonexcludable goods is

possible. She offers a fivefold categorization of wrongful beneficiaries

ranging from involuntary to voluntary depending on four factors:

(1) Knowledge: does the beneficiary know, or could and

should she have known, that she is enjoying the fruits of

wrongdoing? (2) Desire: does the beneficiary welcome the

benefit? (3) Activity: has the beneficiary deliberately put herself in a position where she stands to profit from wrongdoing?

(4) Freedom: can the beneficiary avoid receiving the benefit

without incurring unreasonable costs?10

117

18

A d u t Y to R e s I s t

On one end of the spectrum are “involuntary beneficiaries” who

score negative on all questions; then come involuntary beneficiaries

who know that they are enjoying the fruits of wrongdoing yet do

not desire, did not seek, and cannot avoid receiving the benefits.

“Welcoming beneficiaries” know the source of their benefits and

welcome them. And at the other end of the spectrum, “voluntary

beneficiaries” exhibit all the relevant factors, or all but activity. In

sum, there are two sorts of involuntary beneficiaries, one sort of

welcoming beneficiaries, and two sorts of voluntary beneficiaries.

Both welcoming and voluntary beneficiaries accept the fruits of

wrongdoing in the relevant, consent-implying sense, whether the

goods were excludable or not: they desire or welcome the benefits,

all the while knowing that they were produced by wrongdoing. In

some cases they actively seek them. One can reasonably say about

these agents that they would not have refused the benefits even if

they could have, would have sought them even if they were not free,

and would gladly do their part to ensure that these benefits continue

to be produced. Welcoming and voluntary beneficiaries, insofar as

they accept the benefits produced by social schemes that they know

to be wrongfully exploitative or harmful, take intentional advantage

of others’ disadvantage. Thus they may be deemed morally on par

with free-riders and criticized for violating fair play.11 On the other

hand, involuntarily benefiting from injustice does not produce the

deontic wrongs involved in free-riding. Whether agents are voluntary,

welcoming, or involuntary beneficiaries of exploitative and harmful

schemes, and thus whether they are morally akin to free-riders, can

only be determined through a case-by- case examination of particular

unjust schemes and participants’ positions within. But as the case of

Jim Crow shows, many citizens may be implicated.

Let us conceive of southern Whites as the beneficiaries of racial domination, and African Americans as its victims. (By drawing

this simple line, I set aside many moral complexities of the

118

19

FA I R n e s s

situation, including the intersecting nature of classist, sexist, and racist

oppression, the benefits to northern Whites, and the moral and psychic harms suffered by those implicated in wrongdoing.) Southern

Whites’ wrongful gains were numerous and multifaceted: econom-ically, Whites gained in the form of better work and higher wages;

psychologically, through heightened sense of self-worth; socially,

through their higher status; and politically, by having full and equal

capacity to participate in public decision-making.

The benefits of racial segregation— White privilege chief among

them— were fundamentally free and nonexcludable for White

people: they could not avoid benefiting from the better treatment

and opportunities afforded by the color of their skin and the texture

of their hair. Stil , many Whites could be categorized as voluntary or

welcoming beneficiaries of Jim Crow, as they supported the system

with their actions and words: they voted for White-supremacist

representatives and officials; expressed racist beliefs; mistreated

Black people with whom they interacted; were active members or

friends of the Ku Klux Klan, which counted four mil ion members

by 1925; perpetrated lynchings or attended public lynchings, which

were often advertised in newspapers prior to the event (the public

burning of Black teenage farmhand Jesse Washington in Waco, Texas,

in 1916 attracted a crowd of fifteen thousand); refused, while serving

on juries, to convict White defendants clearly guilty of crimes against

Blacks; and so on. In the 1950s and 1960s, as the civil rights movement

turned to direct action, some Whites condemned the Montgomery

bus boycott, joined the mobs that attacked the Freedom Riders in

South Carolina and Alabama, spat on student activists who sat at

Whites-only restaurant counters, and demonstrated against school

integration. They were clearly endorsing the benefits of racial segregation, and wil ing to take action to preserve it. Therefore, it is clear

that they (i.e., some or many southern Whites) genuinely accepted

its benefits, even though these were nonexcludable.

119

120

A d u t Y to R e s I s t

However, one may object that southern Whites, by and large,

could not be reasonably expected to have known that the benefits

they enjoyed resulted from serious injustice. Indifference, naivety,

and moral blindness, encouraged by prevailing ideas of the time, including racist stereotypes and White-supremacist ideology, could

explain their ignorance. Like privileged people in general, Whites

under Jim Crow were prone to deceive themselves into thinking that

they deserved their status and had earned their gains through personal talent and effort. In turn, seeing Blacks’ lower socioeconomic

position seemed to demonstrate the natural superiority of Whites.

Simone de Beauvoir quotes George Bernard Shaw on the mechanics

of this ideology: “The American White relegates the Black to the rank

of shoeshine boy; and he concludes from this that the Black is good

for nothing but shining shoes.”12 The injustice of subordination remains unseen as long as the privileges of the dominant group and

the lot of the subordinated appear deserved. What is more, the privileged are often ill informed about the experiences of deprivation and

oppression and little motivated to learn about them. (I return to this

phenomenology of injustice in chapter 7, where I discuss the major

obstacles to recognizing our political obligations of resistance.)

These mechanisms were undoubtedly at play in the Jim Crow

South, at least for some people. However, identifying the psychological and ideological obstacles to understanding, compassion, and

attention to social reality does not amount to absolving anyone of

responsibility. Southern Whites who supported the system in the

face of federal law demanding the end of racial segregation and vocal

opposition from civil rights activists were well aware of what was at

stake for them in abolishing the system. It is especially clear at that

point, when opposition and dissent was widespread. However, the

same could plausibly be said about the period before the federal government began ordering desegregation. Insofar as southern Whites

chose and implemented racial segregation in the 1870s, deviating

120

12

FA I R n e s s

from the path toward racial equality that Reconstruction had set

them on, they understood the rationales against Jim Crow. To the extent that Whites remained (fully or somewhat) sympathetic to White

supremacy and contributed to maintaining the system, they were

thus morally analogous to free-riders. They deliberately took advantage of Blacks’ subjugation, in violation of the demands of fairness.

Does this conclusion extend to southern Whites who opposed

Jim Crow and realized that the benefits they collected as Whites

were unearned and wrong? Nonvoluntarist fair-play theorists, who

do not consider acceptance of or desire for the goods necessary for

fairness to generate obligations, would extend this conclusion to

White opponents of Jim Crow, while proponents of the voluntarist

view would categorize White opponents as involuntary beneficiaries,

and thus deny their free-rider- like status. It is worth noting that the

nonvoluntarist view aligns with how White opponents of Jim Crow

felt and spoke, as they affirmed that their benefiting from an unjust system violated fairness, and that they had a moral duty not to

support the system.13 They could not always refuse these benefits, but

they could highlight their unearned nature, extend some basic goods

to Blacks (show respect, pay a fair wage, etc.), and speak up and act

against racial segregation. Indeed, as I shall argue shortly, fairness

demanded that they do so.

What about those beneficiaries who neither supported nor

opposed the Jim Crow regime? One could reasonably expect them

to be aware of the unjust mechanisms producing benefits they received, yet they did not exactly endorse these benefits. Think back

on the White father we opened the chapter with. What is his reaction to the federally mandated integration of his children’s school?

Many White parents vehemently protested against racial integration,

carrying signs that read, for instance, “Integration is a Mortal Sin,”

“Race Mixing is Communism,” “Keep Our School White,” and “Go

Back to Africa Negroes.” But let us say that, even if he is aware of the

121

12

A d u t Y to R e s I s t

numerous injustices Blacks suffer under Jim Crow, our Mississippian

may not have deplored or protested against the federal order to integrate his children’s school— and this ought to make a difference, one

might think. Perhaps he just went on living his life. What should we

make of him and other “passive” White folks like him?

Fair-play theorists with nonvoluntarist commitments should

conceive of the passive receipt of wrongful benefits as a violation of

fairness, to the extent that compliance with the law indicates something like acquiescence to, if not endorsement of, these benefits.

Southern Whites who neither supported nor opposed Jim Crow still

cooperated with racial segregation and routinely enjoyed undeserved

benefits, often blatantly at the expense of Blacks. Throughout the

day, southern Whites saw Blacks waiting in long lines, crowding at

the back of the bus, being called by their first names or as “boy” into

old age, refused access to shops, theaters, hospitals, cemeteries, and

entertainment parks (King speaks of the time “when you suddenly

find your tongue twisted and your speech stammering as you seek to

explain to your six year old daughter why she can’t go to the public

amusement park that has just been advertised on television, and see

tears wel ing up in her eyes when she is told that Funtown is closed

to colored children”14), and so on. Whites saw these humiliations and

could imagine what they felt like. Passivity in the face of such obvious

deprivation amounts to support.

But a voluntarist might be more ambivalent. Passive participants

of Jim Crow did not seek the benefits of the system and thus never

demonstrated intent to gain at someone else’s expense. Whether one

should extend the Negative Argument to these passive beneficiaries,

then, depends on one’s basic intuitions or meta-ethical commitments

about what acceptance really involves. In my view, though, doing

nothing is often blameworthy.

This illustration of the Negative Argument by means of Jim Crow

should give a sense of how it might be applied to other unjust social

122

123

FA I R n e s s

schemes, including within legitimate societies. For instance, it can

be applied to patriarchal societies, to show that men unjustly benefit from exploitative practices that diminish the opportunities and

capacities of women at work, at home, and in the public sphere. If it

can be shown that men’s cooperation with sexist structures involves

the kind of wrongs that make free-riding reprehensible, then an argument can be made that they are thereby prohibited by fairness to

comply with these sexist structures.

A case-by- case approach must be taken to the question of whether

agents accept benefits in the robust sense— whether, per Pasternak’s

framework, they know the source of the benefits, welcome them, deliberately sought them out, and could avoid receiving them at reasonable cost. And, in each instance, we must assess citizens’ particular

social situations, attitudes, and opportunities, and their level of cooperation with and support of the system.

tHe RAdIcAl ReFoRm ARgument

How does one cease benefiting from an unjust— exploitative or

harmful— scheme of coordination? The answer is simple but demanding. One has no choice but to pursue radical reform. It is in

effect the sole way to cease benefiting from an exploitative or harmful

scheme of coordination, and resistance is crucial to bringing about

radical reform. In brief:

(1) Under certain conditions, fairness prohibits benefiting from

unjust (exploitative or harmful) schemes of coordination.

(2) There are three possible ways of not benefiting from an unjust scheme: exit, restitution, and radical reform.

(3) Exit is often excessively difficult and is generally undesirable.

(4) Restitution is complicated and insufficient.

123

124

A d u t Y to R e s I s t

(5) Radical reform offers the most straightforward way to cease

benefiting from an exploitative scheme of coordination.

(6) Resistance is often crucial to bringing about radical reform.

(7) Therefore, under certain conditions, one ought to resist the

unjust scheme of coordination from which one benefits.

Premises (1) through (5) form the Radical Reform Argument, and

claims (5) through (7) the Resistance Argument. Let me examine

the Radical Reform Argument and the Resistance Argument in turn.

The Radical Reform Argument is an argument by elimination.

By examining and rejecting other candidates, it establishes radical

reform as the most straightforward way of discharging one’s fairness—

based obligation not to benefit from an unjust scheme of coordination. Premise (1) is the conclusion of the Negative Argument;

premises (2), (3), and (4) are descriptive claims in need of empirical

support.

Premise (2) seems straightforward, although I may have

overlooked other options. As far as I am aware, the only ways to cease

receiving benefits from a scheme are to withdraw from the scheme,

refuse ongoing benefits and return past ones, and transform the

scheme so that it ceases producing benefits unjustly. I refer to the

transformation in the latter option as “radical reform” to underscore

the magnitude and scope of change required to eliminate the unfair

privileges and wrongful gains of unjust social coordination.

In political cases, exit or withdrawal generally involves emigration. Blacks or White opponents of the unjust practices in the Jim

Crow South at that time had the option to relocate to the North,

Midwest, or West of the United States, but this is not strictly speaking

emigration. For the sake of this discussion, let us assume that Jim

Crow was a self-contained, independent system. As a matter of fact,

some White opponents of Jim Crow, and many victims, found it impossible to stay in the South and chose to leave. More than six mil ion

124

125

FA I R n e s s

African Americans and thirteen mil ion Whites left during the Great

Migration, between 1916 and 1970.15 However, the price of emigration may be too high to be required by fairness alone. As David Hume

pointed out in response to John Locke’s claim that continued residence in a state’s territory amounts to tacit consent to its law, emigration carries enormous transition and adjustment costs.16 These costs

are not only financial and practical, as Hume emphasized, but also

psychic, insofar as most people have strong feelings of attachment to

their geographical roots and birthplace.

But, setting aside the cost and disruptiveness of relocating, one

cannot enact change from within if one opts to exit. In this sense,

even if leaving a place because of unjust practices taking place there

were a viable and reasonably costly option, it would not be a desirable

one from a practical and moral standpoint, since it leaves intact the

scheme’s arrangements. White beneficiaries, if they are from a privileged background, may be well situated to influence the scheme. In

addition, since those who would seek to escape it are probably most

critical of it, it is better that they stay within the scheme and work toward changing it. Hence premise (3), exit from an unjust scheme, is

often not only excessively difficult but undesirable.

People can also choose to seek restitution, reparation, and

compensation for victims in order to cease benefiting from unjust

schemes. As recent work in reparative justice indicates, beneficiaries

of injustice owe special duties to return il - gotten goods and remedy

the disadvantage suffered by victims. Robert Goodin argues that

even where recipients and victims can no longer be identified, the

holders of unjust gains have a duty to “disgorge” (expel or return)

the unjust benefits they currently control, to be used for the public

good.17 Theorists recognize the complications of tracing, calculating,

and returning benefits from injustice but usually consider cash

payments and taxes decent ways of giving back. Affirmative action

can be another method of restitution. (Exactly who should receive

125

126

A d u t Y to R e s I s t

how much and in what form is controversial, and I will not focus on

these issues here.)

The notion of a duty to give back seems implicit in fairness, whose

root is reciprocity. But this appeal to restitution faces challenges, and

not just practical ones. For one thing, establishing restitution rules

doesn’t ensure that anyone ceases benefiting from unjust schemes.

Such rules do not address the scheme’s system of entitlements but

simply try to alleviate some of its adverse impact. In fact, restitution rules may even reinforce structural injustice by giving the

scheme a more “humane” appearance while further entrenching and

stabilizing privileges and wrongs. (This is the gist of Marx’s critique

of liberal reformists, and of the “pre-distribution” critique of welfare

states, according to which welfare states attempt to equalize distribution of goods post facto but do not reorganize social and economic

relations to ensure equal standing in the first place.18) Jim Crow plus

reparations plus affirmative action may be better than Jim Crow tout

court (or not), but it is still structurally unjust. If, however, restitution occurs alongside termination of the scheme’s wrongs, then we

have moved beyond restitution to radical reform (and indeed some

theorists prefer classifying affirmative action under reform rather

than restitution).

The champion of restitution may finally appeal to the communicative function of affirmative action rather than its impact on

the distribution of burdens and benefits. According to Thomas

E. Hill Jr., the moral justifications put forth in defense of affirmative action— the messages it sends— matter just as much as

whether it successfully gives back.19 In his view, both exclusively

forward-looking (utilitarian) arguments and exclusively backward—

looking (reparation-oriented) arguments tend to express the wrong

message, while a defense of affirmative action focused on “cross—

temporal narrative values,” such as mutual respect, expresses the

right message.20

126

127

FA I R n e s s

However, even this more sophisticated argument for restitution is

unsuccessful. For affirmative action cannot express the right message

unless it realizes, or at least shows a sincere commitment to realizing,

the cross-temporal values appealed to in its justification. Simply

adding a program of affirmative action to a racist scheme cannot really express mutual respect.

The defects of the argument for restitution speak to the necessity of eliminating the source of wrongful gains, which brings us to

premise (5), the conclusion of the Radical Reform Argument. In the

case of Jim Crow, fairness does not demand adding restitution rules

to a regime of racial stratification but instead obliges terminating the

regime. The only practical way of not benefiting from an exploitative

scheme is to transform the structures and institutions of that scheme

so that it ceases wrongfully privileging some at the expense of others.

The necessary reform is radical because it addresses the root ( radix,

in Latin) of the unfair allocation of burdens and benefits, including

the system of norms and entitlements that underlie the scheme’s

practices.

tHe ResIstAnce ARgument

Premise (6) is an empirical claim: resistance is often crucial to

bringing about radical reform. There may be other ways of bringing

about radical reform, besides resistance. It is possible to radically

reform an unjust scheme through outside intervention— think of

Germany after World War II— or by executive fiat. But it is reasonable to argue that resistance is a critical, if neither necessary nor sufficient, cause of extensive political change.

Recall that by “resistance” I mean a multidimensional continuum

of dissenting acts and practices, all of which express condemnation of and/ or refusal to conform to the dominant system’s norms.

127

128

A d u t Y to R e s I s t

Resistance thus applies to a broad range of activities, including

petitions, demonstrations, strikes, slowdowns, boycotts, and efforts

to work within appropriate legal and political channels (and I will

not focus on principled disobedience in this chapter). Although it is

possible to correct an oppressive scheme without resisting it, this is

highly improbable.

One of the goals of resistance is to communicate condemnation

of a wrong. As we saw in the previous chapter, it is difficult to see

how radical reform could be achieved without first raising awareness

about the injustice to be corrected, especially in cases of structural

injustice, since privilege tends to be invisible to the privileged. Jean

Harvey thus insists that educational initiatives such as consciousness—

raising workshops and teachins, in which the privileged listen to

victims speak about their oppression, qualify as acts of resistance.21

Everyday resistance in the household and the workplace, such as

challenging racist jokes and stereotypes, also falls in this category of

educational resistance, as do information campaigns designed to improve the community’s conception of justice, which we discussed in

the previous chapter. As we’ll see in chapter 7, one also has a duty to

resist self-deception, by educating oneself against unconscious biases

and exercising due care in reasoning.

In addition to seeking and spreading awareness, resistance

highlights the wrongfulness of a scheme’s system of entitlements.

The resistor communicates disavowal of the scheme’s values and

rules, draws attention to the structural roots of injustice, and conveys

the urgent need for a radical reform. Educational initiatives and

expressions of dissent help pave the way for sustained collective

action, which is critical to instigating reform. Indeed history suggests,

and social and political scientists have recently demonstrated, that

civil resistance campaigns— especially when they involve mass and

persistent participation— help to overcome an unjust status quo and

usher in peaceful democracies.22

128

129

FA I R n e s s

To the extent that resistance— ranging from individual everyday

resistance to organized collective action— contributes to, and is often

critical for, reform, we can reasonably infer the conclusion stated in

(7): under certain conditions, people ought to resist unjust schemes

from which they wrongfully benefit, in order to reform the scheme

and dismantle the production of benefits. The political obligation

of resistance identified here is imperfect: it leaves individuals to decide how to discharge it. This does not mean that any act of resistance, however small, is sufficient to meet it. How much resistance is

enough is of course a difficult question. People (including “allies”)

are prone to underestimate how much they should do and overestimate how much they do. They tend to feel contented with small

acts, without bothering doing the more meaningful work they could

be doing. For instance, Whites under Jim Crow wouldn’t meet their

duty to resist racial injustice simply by voting for equal civil rights.

They also ought to contribute their money, time, and energy to the

political efforts. They ought to treat Black people with respect; call

out other Whites on their overt racism; and raise unprejudiced,

nonracist children: their interpersonal and even familial relations

should be transformed by their recognition of their duty to resist. In

truth, only persistent action can demonstrate a commitment to cease

benefiting from, and work to reform, an unjust scheme.

two ARguments FoR solIdARItY

What is solidarity? A good definition is this: meaningful cooperation and collective action to advance shared goals and values. The

term seems best suited to describe bonds among the oppressed.

Solidarity with the oppressed is sometimes referred to as “allyship”

(or “allyhood”), to mark the different sociopolitical and epistemic

situation of members of the dominant group— the fact that they can

129

130

A d u t Y to R e s I s t

help but cannot identify with the oppressed and do not share their

experiences. I explain in chapter 6 my concerns with the concept of

“ally,” and why I prefer that of “solidarity” to describe both in-group

and out-group bonds, but I also identify significant differences between the two kinds of solidarity (within and toward oppressed

groups).

There is, first, an empirical argument for solidarity in resistance,

grounded in the need for sustained collective action to achieve radical reform. Indeed, organizing resistance increases the likelihood

that volunteers’ resources will be put to good use. Al iances and

coalitions allow the sharing of resources and advantages and increase

the chances of publicity. And once organized movements are in place,

joining them is often relatively easy, as they simplify the individual’s

choice of how to discharge her moral obligations by presenting her

with a specific agenda of activities.

In addition, numbers matter. For many or most forms of protest, such as civil resistance campaigns and labor strikes, the more

participants the better. A thousand people rallying for a cause are

more impressive than a hundred, and tens of thousands can turn

a demonstration into a real “event” in the public’s eye. Chenoweth

and Stephan found that no civil resistance campaign failed that had

achieved the sustained participation of just 3.5 percent of the population. They also stress that mass mobilization is especially effective

when participation is diverse. The Montgomery bus boycott offers

a powerful example of mass mobilization, while the Freedom Rides

embody interracial solidarity.

Alongside this empirical argument for political solidarity, we

can also make such an argument on the basis of fairness. Insofar

as fairness prohibits free-riding and requires mutual cooperation,

it can be understood to imply a requirement to do one’s share in

bringing about radical reform by joining efforts on its behalf.

The activist social movement is itself a scheme of cooperation

130

13

FA I R n e s s

in which resistance is the cost and justice the main benefit. Who

benefits from a successful resistance campaign? Both the victims

and beneficiaries of the unjust scheme do: victims of the displaced scheme gain their freedom from oppression, and wrongful

beneficiaries of the displaced scheme gain in moral terms, as they

are no longer implicated in injustice and violating the demands of

fairness. Both victims and beneficiaries may be tempted to free-ride

on others’ efforts to reform the scheme, since resistance is risky and

costly in terms of time and resources. But fairness requires joining

these efforts and grounds a demand for political solidarity both

among and with the oppressed.

Victims of injustice, that is, exploited participants or harmed

nonmembers of a social scheme, have a fairness-based duty to join existent resistance efforts that have a reasonable chance of success. Idle

bystanders of such efforts would be free-riding on others’ activism,

in violation of fair play. Black residents of Montgomery, Alabama,

for instance, had a fair-play obligation to join the organized boycott

of the city’s segregated buses in 1955– 1956, despite the sacrifices it

involved, insofar as the boycott represented a promising collective

effort toward radical reform (75 percent of the buses’ passengers

were Black). Black taxi drivers, in their own show of solidarity with

Black customers, charged the same fare as a bus ride.

For another example of collective resistance to exploitative

schemes that demands solidarity on the basis of fair play, consider strikes. “An enormously disruptive form of collective action,”

according to Alex Gourevitch, strikes often involve unlawful actions,

threats to and violations of owners’ property rights (including property damage), and the use of coercive force (e.g., in confrontation

with security forces and to prevent other workers from going to

work). They impose economic costs and serious inconveniences

to the wider community. Yet these risks, costs, and harms may be

justified when the strike’s goals are legitimate and, in Gourevitch’s

131

132

A d u t Y to R e s I s t

analysis, when it “looks like a credible attempt at reducing injustice.”23 Thus some strikes are justified while involving various dimension of uncivil disobedience (violence and coercion), as the textile

workers’ strikes did in Lawrence, Massachusetts, in 1912. Crucially,

fairness can ground a duty of solidarity to join these strikes and share

the burdens of cooperation.

In addition, fairness demands political solidarity with the

oppressed, as a way to express the beneficiaries’ commitment to

fairness— to cease gaining from the unjust scheme and share in the

burdens of reforming it. To put it in Hil ’s terms, political solidarity

sends the right message. Avery Kolers has also recently argued that

solidarity is a principal means for wrongful beneficiaries to affirm

and act on the equal status of the victims, and an intrinsically valuable way to atone for having benefited from injustice and wrongfully

gained at someone else’s expense, whether they did so voluntarily or

not.24 In fact, these appeals to the expressive function and intrinsic

value of solidarity suggest that solidarity may be appraised independently from its causal contribution to reforming the scheme, just as

the wrongfulness of free-riding is independent of its effects on the

production of goods.

Not just any act of solidaristic resistance is sufficient or appropriate to discharge this fair-play obligation. Activist and blogger

Mia McKenzie notes that allies often wrongly assume that “one act

of solidarity makes you an ally forever,”25 or, in our case, is sufficient

to discharge one’s duty of solidarity: it isn’t. As we’ll see in further

details in chapter 6, there are wrong and right ways of acting in solidarity with the oppressed. Kolers identifies the right way when he

argues: “Solidarity demands that we [wrongful beneficiaries] join

in collective action for justice by organized out-groups”— it is important that intended beneficiaries ( viz., the victims of injustice)

be the ones organizing this effort— and “that we do so in a way that

defers to their best judgment about our role in supporting them.”26

132

13

FA I R n e s s

Beneficiaries ought to follow the lead of oppressed people and offer

solidarity and support on the terms defined by the latter.

In this way, fairness demands and constrains political solidarity. To

take the example of the Montgomery bus boycott again, Whites had

an obligation to act in solidarity with Blacks— all Whites (or at least,

on voluntarist grounds, all welcoming and voluntary beneficiaries

of Jim Crow), and not just beneficiaries of that city’s segregated bus

system, because racial segregationists everywhere (knew they) had

to lose, and civil rights activists everywhere (knew they) had to gain,

from Montgomery’s desegregated public transportation. This obligation could be discharged through various acts of resistance. White

residents of Montgomery could join the bus boycott, offer to carpool,

and intervene when Black boycotters were assaulted in the streets.

Whites across the country could publicly support the boycott, send

money to the Montgomery Improvement Association (MIA) that

guided the boycott under King’s leadership, and donate shoes to replace the worn footwear of those who walked for miles rather than

board a bus.

costs oF ResIstAnce

One might object that the fair-play duty to reform and resist unjust social schemes is too demanding of beneficiaries. Unjust social schemes typically attach heavy costs to noncompliance, even

(sometimes, especially) for their beneficiaries. In the United States,

many if not most of the 1,300 Whites lynched by White-supremacist

mobs between 1882 and 1959 were seen as threats to the racial caste

system, often in their capacity as civil rights activists.27

I concede that dangerous courses of action are not morally required. But when fairness is used to ground the moral duty to obey

the law, it is understood to require substantial sacrifices, such as

133

134

A d u t Y to R e s I s t

paying taxes or fighting in a conscript army. If discharging the duty of

fair play can involve substantial sacrifices, the same may be presumed

about the fairness-based duty to resist.

Nevertheless, the fair—

play duty to resist cannot demand

sacrificing one’s life or exposing other people to significant risks. This

is not to say that fair-play obligations are morally weak. In particular,

a person cannot reject a promising (from the standpoint of effectiveness) and morally justifiable course of action on the grounds that it

jeopardizes some of the benefits that he or she wrongfully gained in

the first place, such as social status or a cushy job. The duty to resist

demands taking positive steps, such as engaging in everyday resistance against cultural practices, learning about oppression from the

scheme’s victims, joining protest marches, and boycotting certain

social events. Although the individual has discretion when it comes

to discharging the demands of fairness, he or she can be blamed for

failing to take any positive measures. Moreover, beneficiaries often

have special access to the workings of the unjust scheme, which can

improve the effectiveness of their resistance efforts.

Fair-play theorists argue that citizens of legitimate states are

participants in mutually beneficial cooperative schemes, and they

owe fellow participants to do their part in sustaining the scheme by

complying with its rules. Failing to do so is then morally wrong— an

instance of free-riding. Voluntarist critics object that citizens rarely

count as wil ing and knowing cooperators, so that they cannot in general be morally bound to comply with the state. At the same time,

some theorists submit and others deny that consenting participants

can be bound by fairness to cooperate with unjust social schemes.

Both camps only think of the demands of fairness in terms of cooperation, so that where fairness does not require cooperation, it does not

demand anything, in their view.

This chapter argued instead that under certain conditions,

fairness prohibits benefiting from, and requires reforming and

134

135

FA I R n e s s

resisting, exploitative or harmful schemes of coordination. This

means that fairness can ground both obligations to cooperate with

a social scheme (just or unjust, depending on one’s meta-ethical

commitments) and obligations to reform and resist unjust social

schemes from which one benefits. In addition, victims of exploitative and harmful schemes are also bound by fairness to join resistance

efforts, under certain conditions. These political obligations of resistance can be met by undertaking various types of action, including

principled— civil and uncivil— disobedience.

In conclusion, the principle of fairness, which is one of the

grounds most commonly used to support the moral duty to obey

the law, also supports political obligations to resist injustice. This important finding constitutes the second pil ar of the case for revisiting

our concept of political obligation and paying greater attention to

the ways in which living under and participating in unjust conditions

affects our political obligations. Under nonideal, all-too- often unjust

conditions, obeying the law is neither the sole, nor the most important, of our political obligations.

135

136

Chapter 5

Samaritanism

Cubbon Park is a large, lovely public garden in the heart of the southern

Indian city of Bangalore. It hosts a library, museums, an aquarium, a

tennis academy, and several pavilions. In November the park explodes

with the purplish-pink, trumpet-shaped blooms of the Tabebuia tree.

On a Saturday afternoon, Vira Mistry, twenty-four years old, strol s

through the park and settles on a shady, grassy area. She tries to take a

nap: “I lay there and couldn’t sleep,” she later recalled.

I realized that there is a learned subconscious fear of being so

exposed and vulnerable. You wonder who’s looking at you, what

they are thinking, are they taking pictures? When you’re so used

to walking around and having men stare at you all day, it is hard

to let go of that anxiety of being in a public space.

Mistry was attending her first Meet To Sleep event. Blank Noise, the

Indian activist group that organized the event, protests widespread

sexual violence against women in an effort to “shift the fear based relationship we have been taught to have with our cities” and to “initiate

a dialogue on trust.” On their Facebook page, Blank Noise writes:

We will Meet To Sleep for our will to be fearless.

We will Meet To Sleep for our right to be unwarned.

We will Meet To Sleep to build new memory with our very own

public parks.1

136

137

s A m A R I tA n I s m

One evening, two weeks before Mistry lay down on the grass, a

thirty-year- old woman who was on her way to play tennis was

raped by two of the park’s security guards. Blank Noise reported

the reaction of the head of the Ministry of Home Affairs, or Home

Minister, who is responsible for India’s internal security: “Why

should a woman go play tennis at 9:30pm?” In response, the group

denounced ubiquitous victim-blaming with the slogan, “I Never

Ask For It.”

Hundreds of women have participated in sleepins around

India, in a collective effort to reclaim public spaces. “I want to ‘Meet

To Sleep’ because in three years, I’ve never been in a public space

without being afraid for my safety,” one participant explained.

“I want to reclaim this city and the places that are as much mine as

they are anybody else’s.” Women do not nap in India’s public parks.

They avoid them, or pass through them hurriedly, on guard. India’s

streets, buses, trains, workplaces, prisons, and homes are dangerous for women, too. Rape is rampant, if still underreported.2

As Blank Noise founder Jasmeen Patheja put it, the project aims

to revise these conditions, to make India’s public places safe for

“women who are relaxed, asleep, defenseless, not hurried, and

not rushed.”3

Meet To Sleep participants call themselves Action Heroes.

I contend that they are good Samaritans. They may not sound

much like the “original” Samaritan who, according to the biblical

parable, stopped in his tracks to help a man left nearly dead beside the road after being attacked by robbers. Mistry and her fellow

activists also don’t cut the figure popularized by Peter Singer— the

Samaritan who steps in a shallow pond to save a drowning child.

Yet Samaritans these activists are, in the sense that matters to our

duties to each other.

137

138

A d u t Y to R e s I s t

tHe sAmARItAn dutY And tHe dutY

to oBeY tHe lAw

The Samaritan duty requires us to aid persons in peril or dire need

when we can do so at no unreasonable cost to ourselves.4 Although

scholars disagree on the nature or source of the duty of easy rescue (is

it a duty to prevent harm or a duty of beneficence?), and on questions

surrounding its legal enforcement (e.g., regarding liability, sanctions,

clumsy Samaritans, and potentially unintended consequences),

nearly everyone accepts its existence and stringency.5 Like the duty

of justice, the Samaritan duty is a natural duty, which means that it

is grounded in our nature as moral beings and binds us all equally,

regardless of our relations or voluntary undertakings. The Samaritan

duty is generally deemed among the most stringent requirements

of ordinary and critical morality. According to Joel Feinberg, it is

“virtually as stringent” as the duty not to harm or put someone in

harm’s way.6 Feinberg casts the duty as a duty to prevent harm, while

others, like Peter Unger and Liam Murphy, conceive of it as a duty of

beneficence.7

The Samaritan duty arises in situations in which (1) some fundamental human interest or noncontingent basic need— including,

minimally, life, security, and bodily integrity— is threatened; (2) the

threat is immediate, imminent, or probable; and (3) someone else—

typically an innocent passerby or bystander— is able to help at no

unreasonable cost to herself and others.8 The severity of Samaritan

perils depends on the magnitude of the harm threatened or inflicted,

as well as the probability that a threat will be realized.

Per condition (3), one unable to help, or unable to help at a

reasonable cost to herself and others, is not a potential Samaritan

rescuer. But the cost qualification attached to the Samaritan duty

shouldn’t be misunderstood. “Reasonable” does not mean “trivial,”

and rescue need not be easy. I follow Cécile Fabre’s illuminating

138

139

s A m A R I tA n I s m

account, in which a potential rescuer has a duty to help “only if

the following three conditions obtain: (a) they are physically able

to help; (b) the cost of doing so is not such as to jeopardize their

prospects for a flourishing life; and (c) giving the required assistance

would not put them at a high risk of incurring those costs.”9 Fabre

notes that although individuals cannot be duty-bound to incur a high

risk of dying for the sake of another, they can be duty-bound to incur

some life-threatening risk.

So, if a toddler is drowning in a shallow pond as I walk by, I am

morally bound to step in and rescue her. Pointing out that I am not

the one who imperiled the child, that I am in a hurry, or that someone

else will surely pass by the pond soon won’t let me off the hook. I may

be in a wheelchair, and unable to go the toddler’s rescue myself, and

I will still be duty-bound to assist her, by calling 911 and crying for

help. Only if I am unaware of the child’s dire straits, say, because

of very poor eyesight or hearing, do I not have a duty to help her.

Missing my classes and having mud on my shoes because I stopped

to rescue the child are very reasonable costs. But suppose the pond

is an ocean or a large river: could I be required to swim to the child’s

rescue? It depends on the particulars of the situation: perhaps I have

a heart condition, or it is dark, the water is choppy and I am likely

to drown, too. Presumably, lesser Samaritan perils demand lesser

sacrifices: the cost of assistance in cases that involve less probable

and/ or less serious harm could be, let us say, far from jeopardizing

one’s prospects for a flourishing life.

The Samaritan duty grounds an influential account of legitimacy

and political obligation propounded by Christopher H. Wellman.10

The state has the unique capacity to protect everyone from the violence and chaos of the state of nature: it is legitimate when and to the

extent that it rescues others from dire need and peril and achieves

political stability. In Wellman’s view, “my state may justifiably coerce

me only because this coercion is a necessary and not unreasonably

139

140

A d u t Y to R e s I s t

burdensome means of securing crucial benefits for others.”11 The

move from the state’s right to coerce me (state legitimacy) to my

duty to obey appears straightforward: if my compliance with the

law is necessary to the success of the state’s Samaritan mission, then

I have a Samaritan duty to comply with the law. The problem is that

my compliance is not necessary for the state to achieve its Samaritan

goal. In fact it makes virtually no difference whether I comply with

the law or not: a wel - functioning state requires only general, not

universal, conformity and indeed tolerates a certain amount of

noncompliance.

Wellman therefore supplements the Samaritan account of the

duty to obey the law with nonconsequentialist considerations of

fairness. “We understand our political obligations as our fair share

of the communal Samaritan chore of rescuing others from the perils

of the state of nature,” he writes.12 And this fair contribution to the

Samaritan rescue can come only in the form of obedience to the law

because political instability, which is fertile ground for violence, is

fundamentally a coordination problem that cannot be solved without

forcing everyone within a given territory to defer to the same authority and play by the same rules.

But what happens when the law itself is oppressive, even though

the state is stable? Wellman recognizes that there can be reasons for

disobeying the law and resisting injustice in otherwise-legitimate

states. These reasons, in his view, stem from the injustice of particular laws. For instance, though the state imposes a Samaritan duty

to obey the law, he argues that Martin Luther King “was morally at

liberty to break the particular laws he disobeyed simply because they

were unjust.”13

But I go further. Many reasons for resisting injustice are Samaritan

in nature, grounded in the duty to rescue people from peril. Indeed

the Samaritan duty may obligate one to protest injustice or break unjust laws, under certain conditions, when unjust laws, institutions,

140

14

s A m A R I tA n I s m

and practices endanger people, by prohibiting Samaritan rescues or

facilitating the incidence of violence on members of a social group.

IllegAl sAmARItAn Rescues

States sometimes subvert fulfillment of citizens’ Samaritan duties,

either directly by outlawing performance of the duty itself, or incidentally, through unrelated laws that burden the Samaritan. My contention is that, under either circumstance, disobedience is required

of those capable of it. If Samaritan duty holds at all, then it does so

even if fulfil ing it forces an agent to break the law.

Lawbreaking is incidental to the Samaritan rescue when the

connection between the law broken and the endangerment of the

person is accidental. For instance, a hiker may break into a cabin in

the mountains, thus trespassing on private property, in order to find

resources to take care of an injured companion. Per the so-called necessity defense, the law recognizes that a technical breach in an emergency situation sometimes averts a great evil or furthers some greater

good, and that, in these cases, strict adherence to the law cannot be

required.14 I shall not address incidental Samaritan disobedience,

as I am primarily interested in cases where the peril that calls for

Samaritan rescue is causally connected to the law being broken.

Lawbreaking occurs directly when the law explicitly prohibits

Samaritan rescue. An infamous example is the Fugitive Slave Act of

1850, which forbade aiding runaway slaves and instead demanded

that people assist law officers in slaves’ capture. Frederick Douglass

describes the law as one that “makes mercy to [Blacks] a crime.”15

Yet any able resident of the antebellum United States was morally

required to take care of wounded escaped slaves knocking at their

doors, even though such assistance directly violated the law, unless

they could be sure that they would be found out. For a recent example,

141

142

A d u t Y to R e s I s t

take Alabama’s 2011 HB 56, which criminalized “certain behavior

relating to concealing, harboring, shielding, or attempting to conceal,

harbor, or shield unauthorized aliens” (this provision was blocked in

court months after the law went into effect), and France’s immigration law L622-1, which punishes anyone who “facilitates or attempts

to facilitate the illegal entry, movement or residence of a foreigner

in France . . . by imprisonment for five years and a fine of €30,000

(over $32,000).” U.S. or French citizens who help undocumented

immigrants— say, by serving them food at a soup kitchen, providing

them shelter, or driving them to the hospital— could be charged with

a felony. Yet such Samaritan assistance may be morally required.

Laws banning Samaritan rescues appear inherently unjust: they

prohibit the exercise of basic moral duties and violate the fundamental dignity of individuals as agents capable of engaging in practical deliberation, pursuing moral ends, and taking responsibility for

their actions. In France, a grassroots campaign seeking to repeal restrictive anti-immigration laws stresses that sans-papiers (unauthorized aliens) are human beings in dire need— “isolated and destitute

men, women, and children.”16 It is citizens’ duty to help them. The law,

in their view, violates the dignity of immigrants by erasing them and

that of citizens by prohibiting them from fulfil ing their Samaritan

duty. The campaign included a spectacular incident of civil disobedience, with 5,500 Samaritans turning themselves in to the police

for their lawbreaking (“délit de solidarité” in French): “If solidarity

is a crime,” they proclaimed, “then we demand to be arrested for this

crime!” Though they framed their campaign in terms of solidarity,

they could as well have chanted: “If rescuing those in need is a crime,

then we demand to be arrested for this crime!”

But unlike this particular public campaign of civil disobedience,

note that Samaritan disobedience in the case of illegal rescues is

not and cannot be public: to be effective, the Samaritan agent must

break the law covertly, or else risk being arrested and putting the

142

143

s A m A R I tA n I s m

undocumented migrant at risk of being arrested and deported. Thus

the Roya Valley citizens in the French Alps (mentioned in chapter 3)

and other sanctuary groups, who assist unauthorized refugees with

food, shelter, clothing, basic healthcare needs, transportation, and

legal advice— all in violation of the law— are forced to act covertly in

order to protect those they seek to aid.

sAmARItAn dIsoBedIence

The Samaritan duty may thus demand breaking the law covertly

in the course of a rescue. I want to go farther and argue that the

Samaritan duty also supports resisting injustice through protest and

civil disobedience in some cases. The case for Samaritan civil disobedience extends the above reasoning, regarding cases of illegal

Samaritan rescues, to more complex situations in which social and

political conditions produce not just laws that prevent rescue but

what we might call persistent Samaritan perils. In such cases, injustice

generates, enables, or aggravates Samaritan perils, making them pervasive. Under these circumstances, citizens themselves are passers-by.

They can best, perhaps only, fulfill the duty to rescue by promoting

reform: rescuing people from persistent Samaritan perils involves

eliminating or righting the injustice at the root of the peril— that is,

reforming unjust laws, policies, or institutions. Finally, principled disobedience may be an effective tool against persistent Samaritan peril

because it can signal to the public that such peril exists and because it

can stimulate the reform necessary for rescue.

Persistent Samaritan Perils

What makes a Samaritan peril “persistent”? It is so because an

interrelated system of norms, practices, and institutions repeatedly

143

14

A d u t Y to R e s I s t

subjects members of given social groups to injustice. As we saw in the

previous chapter, Jim Crow is a strong example: the racial caste system

induced persistent Samaritan peril by excluding African Americans

from political participation and subjecting them to conditions of

extreme material deprivation. The system was maintained through

coercion, intimidation, and terror, enabled and aggravated by police

and officials.

Today’s system of mass incarceration presents another such example that demands our attention urgently.17 In 2017, there were

more than 2.3 mil ion prisoners held in the United States, with an additional 5 mil ion on probation or parole.18 How are prison inmates in

peril? Prisons are overcrowded. The Supreme Court declared in 2011

that overcrowding in California penitentiaries had become so severe

that it violated a prisoner’s Eighth Amendment right to freedom from

cruel and unusual punishment.19 There is also a great deal of violence

in prisons, whether routine physical assault by inmates and staff or

endemic rape. The Justice Department estimates that, in 2008, nearly

a quarter mil ion people were sexually abused in prisons and jails,

often repeatedly.20 In “supermax” prison facilities— of which there are

350 in the United States, and none in the European Union— nearly

all inmates are placed in solitary confinement for extended periods

of time, sometimes decades. Prisoners in less secure penitentiaries

may be held in solitary for lengthy terms as wel . Many psychologists

believe such treatment is a form of torture and precursor to insanity.21

American urban ghettos may also be described as sources of persistent Samaritan perils, perhaps especially for young men, whose

interests in life and bodily integrity are under constant threat. First—

person testimonies, such as Geoffrey Canada’s description of growing

up on the South Side of Chicago and Ta-Nehisi Coates’s Baltimore

memoirs, as well as social scientific research about life in poor,

crime-ridden neighborhoods, portray a Hobbesian society of inse—

curity, violence, and stress.22 Favelas and other types of low-income,

144

145

s A m A R I tA n I s m

crime-ridden, densely populated neighborhoods in Latin America,

Southeast Asia, and Africa present similar climates.

Many of the Black and Brown residents of these neighborhoods

and beyond suffer police brutality, sufficiently rampant in the United

States to qualify as a persistent Samaritan peril. Scholars have generally concentrated on police brutality and patrol tactics in the urban

ghetto. But, as BLM activists have emphasized, police methods

threaten the basic interests of every Black and Brown person, regardless of socioeconomic status and sex.23 A recent Justice Department

report goes beyond race to expose the special vulnerability of women,

sex workers, and LGBTQ people to assault and sexual harassment by

Baltimore Police. Although the report focuses on one city, its authors

expect that police departments across the country exhibit similar misogynistic and transphobic prejudices.24

Girls and women are under persistent Samaritan peril in many

parts of the world, subject to gender-selective kil ing, male violence, sexual trafficking, rape, and enslavement. Even in the United

States, women commonly fear for their safety. The Bureau of Justice

Statistics estimates that a rape occurs every 6.2 minutes in the United

States.25 At least some female populations experience such a high

incidence of violence that they ought to be considered in persistent

Samaritan peril. The situation of American Indian women is so dire

that President Barack Obama called it “an assault on our national

conscience . . . an affront to our shared humanity.”26 It is estimated

that one in three indigenous women is the victim of completed rape

in her lifetime.27

Refugees and LGBTQ people also experience persistent

Samaritan perils. Migrants’ journeys are fraught with dangers.28

Refugee camps are unsanitary, disease-ridden, depressing places with

alarmingly high levels of violence and suicide.29 Refugees’ condition

constitutes persistent Samaritan peril insofar as it is the result of injustice, and not mere misfortune. For their part, LGBTQ people are

145

146

A d u t Y to R e s I s t

particularly vulnerable to hate crimes, sexual assault, violence, and

suicidal ideation, especially in deeply homophobic and transphobic

societies where such ill treatment is enabled or aggravated by anti-gay

and anti-trans law.30

Identifying persistent Samaritan perils, as these examples

suggest, requires some empirical knowledge about the incidence

of violence and intimidation with respect to particular groups, its

effects on members’ wel - being, and the social etiology of threats—

that is, their correlation to injustice. Not all groups whose fundamental interests are under grave threat may be deemed in persistent

Samaritan peril— it depends on whether an injustice gives rise to the

enduring dangers. For instance, although wealthy Mexicans suffer a

high rate of kidnapping-for- ransom, I don’t think that they are in persistent Samaritan peril, because their vulnerability is not the result of

injustice but instead of their wealth and status.31

Once we identify persistent Samaritan peril, what are we to do?

We turn now to the passers-by who observe peril underway. They owe

certain duties in light of threats that they may not themselves face,

duties that may demand intervention and principled disobedience.

Citizens as Passers-by

Typical Samaritans, like the man in the biblical story from which the

term takes its name, stop in their tracks when they see an injustice,

and lend a helping hand. In modern life, we encounter strangers in

need in a wide range of situations. Active bystander intervention

constitutes one form of Samaritan assistance. When we (literally)

pass by someone in Samaritan peril, or in a situation that could escalate into one, we can and ought to intervene as active bystanders

to de-escalate the situation. Basic strategies for safe intervention include the “three D’s.” A Samaritan ought to (1) direct: confront the

perpetrator or ask the victim if they are okay, (2) distract: defuse

146

147

s A m A R I tA n I s m

the situation by distracting either party, and (3) delegate: bring in

another person to help.32 Suppose you are in the bus and witness

someone being harassed, insulted, and threatened, on the basis of

their perceived Muslim identity: depending on your particular situation (sex, perceived social identity, physical attributes, company,

etc.) you can tell the harassers to leave the victim alone or you can

simply go sit by the person, pretend you know them, and start a

conversation. If the situation continues to escalate, you can alert

the bus driver, call on others to come help, ring the alarm, or call

the police.

Active bystander intervention is very often called for in contexts

of persistent Samaritan perils, where violence is common. Citizens

ought to be informed about and trained in active bystander strategies

in order to safely help victims. So there are Samaritan political

obligations to be responsible bystanders, aware of our surroundings

and ready to intervene and de-escalate threatening situations.

I want to go further here and examine a second, more abstract

and more critical level of Samaritan assistance, which is citizens’ responsibility in the face of persistent Samaritan perils. Citizens may

be viewed as passers-by to persistent Samaritan perils anywhere in

their (local, national, or global) societies where they encounter them,

and they constitute potential rescuers insofar as they are capable

of assisting the current and potential victims of Samaritan perils

through political action.

But how does one “pass by” a persistent Samaritan peril (rather

than one of its discrete occurrences)? Persistent Samaritan perils are

structural and, as the student protesters famously put it on the black—

board of a Sorbonne classroom in May 1968, “structures don’t go

down into the streets.” One can encounter particular, actual people

in peril, but how does one encounter a persistent Samaritan peril?

What makes one a potential rescuer? What kind of political action

could rescue people from persistent Samaritan perils?

147

148

A d u t Y to R e s I s t

Let me first defend the claim that citizens could be deemed

passers-by to persistent Samaritan perils, not just their discrete

occurrence. Not every citizen is properly described as a potential rescuer, for some might not be aware of the peril or might be unable

to help. But, I want to say, many— or most— citizens, including the

potential victims themselves, are passers-by capable of assistance.

Could this be? After all, there are at least three grounds of objection.

First, it is widely assumed that passers-by must be close to the peril,

yet many citizens will be far away. Second, passers-by must also be

aware of the peril, which is not assured. Finally it may seem that even

if citizens are generally deemed passers-by they are largely unable to

help the imperiled. I’ll respond to these objections in the following

sections.

PROXIMITY

Classically, potential rescuers are innocent bystanders, who

happen to be spatially near the imperiled person— they “stumble”

into Samaritan situations, in Joel Feinberg’s phrase.33 Indeed, spatial proximity is often critical in standard cases of rescue. It makes

plain the perilous situation and allows immediate assistance. One

may therefore deny that citizens in general are Samaritan “material,” as John Simmons does in his critique of Wellman, to which

I return below.

If we accept this physical-spatial requirement, then citizens’

Samaritan duties will be considerably constrained. Some will not

escape their duties. Men live with women; Whites live close to

and under the same social structures as Blacks. But while men and

women share family ties and loving relationships, the same cannot

often be said of Blacks and Whites in the “racial polity” (Charles

Mills’s term for the state established by the Racial Contract for

the purpose of maintaining White privilege and non-White

148

149

s A m A R I tA n I s m

subordination).34 There, Blacks and Whites share little: often,

they are neither friends nor colleagues, neither kin nor neighbors.

Interracial friendship and love is discouraged, workplaces lack racial diversity, and people live in different zip codes under de facto

residential segregation.35 At the extreme, persistent Samaritan

perils may occur in isolated spaces, such as prisons and ghettos,

not only distancing most citizens but also hiding the ills in need

of repair.

That being said, in an age of safe, rapid travel and the seamless

transfer of money and information, physical nearness is hardly

critical to Samaritan potential. As Simmons notes, “The moral

burdens of the rescue fall . . . on those who happen to be present

at the emergencies . . . or have the knowledge that allows them to

make themselves present.”36 Consider transnational cases of aid and

rescue, such as disaster relief. The needy may be thousands of miles

from potential rescuers, but electronic media have short-circuited

the connection between spatial proximity and knowledge of the

need for rescue, expanding the body of bystanders to vast numbers

worldwide. For instance, international aid poured in Puerto Rico

after Hurricane Maria in 2017, as the Trump administration failed

to set up a speedy and adequate disaster relief plan (contrasting

with the government’s response to Hurricane Harvey in Texas and

Hurricane Irma in Florida in the previous months). What matters

here is knowledge of the problem and the ability to help solve it,

placing many people in a position to provide Samaritan assistance

to distant others as well as neighbors. This is the gist of Singer’s

case for transnational Samaritan duties in “Famine, Affluence, and

Morality.”37 A similar logic may apply at home, even in nearly just

societies. Citizens fall somewhere between Feinberg’s literal passerby and Singer’s distant bystander, depending on their relation to

the unjust institutions, practices, and laws inducing persistent

Samaritan perils.

149

150

A d u t Y to R e s I s t

AWARENESS

Members of an imperiled group are likely to have suffered or witnessed

Samaritan perils firsthand. They are probably aware of the problems

and understand that their persistence results from injustice. However,

it is sadly plausible to argue that the majority of those outside the

group are not so aware. Much of the world follows a standard sort of

imbalance, within nations and among them: wealthy people; White,

male, cisgender, and heterosexual people; and members of dominant

religious groups tend to be less aware of the persistent, structural endangerment of ghetto dwellers, Black and Brown people, LGBTQ

people, indigenous women, undocumented migrants, and minority

believers, among others.

Two factors may explain citizens’ lack of awareness. One is citizens’— especially privileged citizens’— lack of basic information

about the persistent imperilment, which can thus go unnoticed. The

other is a failure to recognize the injustice that allows Samaritan perils

to emerge, again and again. In this case, one recognizes the fact of imperilment but does not recognize it as persistent or unjust. The first

factor presents an issue of visibility, the second of moral blindness or

indifference.

Persistent Samaritan perils can go especially unnoticed when

they occur in closed-off spaces such as prisons and ghettos (the

next chapter further examines political obligations in the face of

prisoner rights abuses). Authorities’ failure to take victims’ reports

seriously, or to classify them properly as, say, rape or hate crime, as

well as victims’ failure to report (which could be in reaction to official misconduct— the kind of institutional inefficacy and untrustworthiness I identified in chapter 3); or the media’s failure to inform

the public about the high rate of peril, leading citizens to assume its

coincidence rather than persistence all help to conceal these perils.

Moral blindness may also be at issue when a culture’s prevailing ideas

150

15

s A m A R I tA n I s m

encourage people to see pervasive perils as anomalies. And, even

when peril is recognized as persistent, those ideas may motivate the

belief that the peril is justified by the traits of the targeted group. For

instance, because so many in the United States view Blacks as inherently criminal and menacing and police as wel - trained community

servants, police brutality against Black suspects is too often seen as

justified.

Do invisibility and moral blindness get citizens off the Samaritan

hook? Lack of awareness might, but its origin matters. If citizens

truly cannot see— and cannot reasonably be expected to see— the

persistent perils surrounding them, then they have no Samaritan

duty to help. If, however, awareness can reasonably be expected,

then citizens may have a Samaritan duty, whether they recognize

it or not.

What about citizens who lack awareness because they fail to see

injustice as the source of peril? Even where culture and ideology legitimize injustice, citizens may be blamed for their moral blindness

and indifference. Jim Crow, again, offers a case in point. Under Jim

Crow, there was no lack of visibility. The Ku Klux Klan regularly

bombed homes and churches. Police officers failed to protect, and

actively assaulted Blacks in public. Alongside countless lesser-known

acts of violence intended to intimidate Blacks and draw bright lines

of social division, researchers have documented more than four thousand “racial terror lynchings” in twelve southern states between 1877

and 1950.38 Terror lynchings were major public events; White citizens knew about them and many attended. It would be implausible to

argue that adult, mentally competent White southerners didn’t know

that African Americans were persistently imperiled and living in fear.

Nevertheless, most White southerners supported racial segregation

and failed to see Blacks’ persistent imperilment as unjust. Prevailing

ideas of the era made for a potent mix of self-deception, indifference,

and denial.

151

152

A d u t Y to R e s I s t

But while the White-supremacist culture and ideology buttressing

Jim Crow may explain people’s ignorance, it cannot excuse it. This

is partly because, as I will argue in chapter 7, people face “second—

order” duties: we are obligated to do what we can to understand and

implement our primary moral obligations, which are especially salient in contexts of oppression. These secondary duties include, for

instance, duties to seek information, revise one’s beliefs based on evidence, show due care in moral deliberation, exercise self-scrutiny,

resist self-deception, and develop empathetic understanding. Many

White citizens under Jim Crow could be blamed for failing to satisfy

these duties. It is also difficult to claim lack of awareness amid widespread protest. Once demonstrators and others draw attention to

injustice, awareness spreads. In this way, Samaritan duties may grad—

ually bind more and more people: as more and more people become

conscious of persistent Samaritan perils, those who continue to deny

those perils become increasingly blameworthy.

Even when persistent perils are well known, Samaritan burdens

do not fall equally on everyone. People are differently situated relative to the perils: among knowledgeable people, some are better

positioned to help, owing to the resources they possess and the influence they exercise. Many citizens are well positioned to assist at

no unreasonable cost to themselves or others. Most should do much

more than they realize.

One may be concerned that those already oppressed are more

likely to be Samaritan “material,” and thus more strained by Samaritan

political obligations, than privileged people. Not only are they closer

to and more aware of the perils, but they have less to lose (in terms of

prospects for a flourishing life) than privileged people. These undue

burdens would be unfair. However, what I am arguing here does not

imply such a thing. Being able to help— which is crucial to Samaritan

potential— is not the same as having nothing to lose. One’s ability

to help is a function of one’s opportunities and position in society,

152

153

s A m A R I tA n I s m

and the greater the ability to help, the weightier the duty to do so.

This means that the privileged, not the oppressed, face the heaviest

burden of Samaritan rescue.

Rescue through Reform

Samaritan perils generate duties of rescue. But when these perils

are persistent, effecting rescue in every instance when it is needed

is daunting, unending, and insufficient. It was certainly helpful and

noble to assist assault victims under Jim Crow, but one-off rescue

couldn’t undermine White-supremacist norms and systematic

failure to enforce the equal protection of the law. The same goes

with police brutality today: aiding assault victims one by one does

not change the institutional and cultural conditions of policing

in minority communities where brutality is common. Instead citizens need to push for reform. Unjust laws and institutions must

be scrapped or revised in order to correct or impede systematic

endangerment.

This is a novel idea. No one questions whether the Samaritan

duty demands physical assistance, but structural reform is another

matter. Indeed, in the biblical parable, the Samaritan need only help

the wounded man. The Samaritan does not concern himself with the

injustice that allows the assailant to go free and perhaps recidivate.

That is all right so long as the victim rescued by the Samaritan is not

a member of a persistently imperiled group. But when he or she is,

the Samaritan duty demands more than a one-off rescue: it demands

structural reform of the law or institution that generates persistent

Samaritan peril, in order to reduce the latter.

In cases of humanitarian intervention, we are used to associating

Samaritan rescue with serious, sometimes prolonged, intervention, for the basic purpose of preventing atrocities (and not, say,

establishing just institutions). The same reasoning is at play in the

153

154

A d u t Y to R e s I s t

present case of persistent Samaritan peril, but it concerns rescuing

groups of people from dangerous situations enabled by unjust sociopolitical conditions, and so it demands rectifying those. The

Samaritan duty can thus also support reforming laws or institutions

that entrench persistent Samaritan perils.

So what does this look like in practice? I noted earlier that

Native American women face structural Samaritan perils, given the

staggering rate of sexual violence they are victims of. Eradicating

these perils entails extensive legal, social, and moral reforms, some

of which are underway. Some nongovernmental organizations such

as Anishinabe Legal Services and Indian Law Resource Center exemplify Samaritan assistance, as they work to ensure safety and

freedom from fear for Native women, through the establishment of

rape crisis centers and the provision of legal resources for victims.39

One key issue is that 86 percent of rapes and sexual assaults upon

Native women are perpetrated by non-Native men, and very few

are prosecuted.40 In her novel The Round House, Louise Erdrich

draws a vivid picture of the tangle of laws that hinder investigation

and prosecution of rape cases on many reservations in the United

States.41

In 2011, President Obama enacted the Tribal Law and Order Act

(TLOA), a comprehensive law designed to fill key gaps in the criminal justice system and improve the federal government’s ability to

work with Indian tribes in the investigation and prosecution of crime

impacting tribal communities.42 The TLOA marked a crucial effort

in the Samaritan rescue. But inadequate laws and failures of enforcement are not the only structural factors enabling the imperilment

of American Indian women. The issue is also one of norms and culture as Native women suffer from stereotypes that dehumanize and

objectify them.43 This demands radical reform, too— a change of

mentality and perception— which involves fighting the relative invisibility of Native Americans in the media, exposing and debunking

154

15

s A m A R I tA n I s m

stereotypes, teaching about Native American cultures, and providing rich portrayals of American Indian identity in the media and

cinema.44

Principled Disobedience

There are many ways of bringing about reform, and the etiology of

political change is too complex to allow us to ascertain all of the necessary and sufficient conditions for it. But one step that surely is necessary, which I focus on here, is the call for reform, which names the

peril and the injustice sustaining it.

Calls for reform come from social movements and can be relayed

by wel - situated individuals, who need break no laws in order to

address the public or pursue legal change. For instance, public

officials, journalists, and lawyers, because of their access to the political arena and the courts, are well positioned in this way, with

ample opportunities for publicity and the tools to pursue systemic

change through, for instance, impact litigation and smaller-scale

cases that can highlight widespread problems. But most people lack

such access to levers of power. For them, public protest and civil disobedience may be effective ways to reach the political forum. Blank

Noise’s Meet To Sleep events are a case in point as they raise awareness about women’s fear for their safety in public spaces and purport

to help women unlearn this fear. Action Heroes, as the participants

call themselves, deploy lawful yet onerous tactics, whose power rests

on women’s visible vulnerability. Activist projects like these have

abounded in the aftermath of Jyoti Singh’s brutal gang rape in a public

bus in Delhi, in December 2012. The harrowing details of Singh’s

hour-long ordeal, which she recounted before dying in the hospital

where she was treated for her injuries, shocked the world. Responding

to national and global outrage, and to activists’ pleas, India has since

enacted stronger laws and policies against sexual violence. However,

155

156

A d u t Y to R e s I s t

human rights groups have shown that rape survivors continue to

face significant barriers to obtaining justice and critical support services, largely because of the stigmatization of rape victims by police

officers, physicians, and judges in particular.45 This issue is not unique

to India. Around the world, hundreds of protest marches and rallies

such as Take Back the Night and SlutWalks have called for an end to

rape culture and victim-blaming. Marches are not necessarily illegal,

but they might be: once a police officer orders protesters to leave or

disperse, a lawful protest can become civil disobedience.

The next chapter examines associative political obligations to inform and educate the public about injustices, and thus pave the way

for reform; I detailed in the previous chapter some of the empirical

evidence supporting the effectiveness of civil resistance campaigns.

In this section I want to focus on principled lawbreaking, including

civil and uncivil disobedience, and defend its viability and even

necessity (within constraints) for drawing attention to persistent

Samaritan peril.

History demonstrates that civil disobedience is often a method

of drawing attention to injustices. In the United States, the civil

rights movement’s marches (in violation of court orders), sit-ins, and

Freedom Rides exposed the persistent Samaritan perils of Jim Crow

and thereby highlighted the need for reform. BLM activists have organized public protests, vigils, die-ins, singins, and traffic disruptions

across the country, demanding structural reforms and police accountability in the kil ings of unarmed Blacks. In July 2016, for instance,

a BLM-affiliated group called the Let Us Breathe Collective organized a march in Chicago to demand police reforms. Some protesters

marched down residential blocks (without a permit) and joined

others who were chained together in front of the police station. After

singing songs, chanting, and reciting poems, the crowd was asked to

leave by police. The group, which was chained together, refused to

move, and police took them into custody.46

156

157

s A m A R I tA n I s m

We saw that Samaritan interventions must be reasonably devised

to protect the interests under threat. How can civil disobedience

qualify as a reasonable intervention to rescue members of persistently

imperiled groups? Civil disobedience need not achieve immediate

reform to be justified. Rather, the idea is that it can effectively contribute to the Samaritan mission, insofar as it sheds light on the injustice that generates or aggravates the repeated incidence of Samaritan

perils and calls for structural reform. Succeeding at this basic level

generally requires civil disobedients put forward a clear and salient

message, and also, following the guidelines identified in chapter 4,

that they strive to spur political change by forming coalitions and

exerting pressure on politicians.

But I want to go further and argue that other forms of principled

lawbreaking besides civil disobedience can also contribute to the

Samaritan mission with respect to persistent Samaritan perils. For

instance, prisoners in the United States undertook hunger strikes,

against prison policy, in order to denounce the inhumanity and

dangers of solitary confinement (more on this in the next chapter).

Gueril a street art can also draw attention to persistent Samaritan

perils: British artist Banksy, for instance, painted a series of graffiti to alert the public to the United States’ appalling and degrading

treatment of suspected terrorists. Banksy also installed an inflatable

doll in an orange jumpsuit, on its knees, hooded, and hands cuffed

behind its back, inside the Big Thunder Mountain Railroad ride in

Disneyland to expose Guantanamo Bay.

For a last example, in September 2015, asylum seekers stranded

in a makeshift refugee camp outside Budapest in Hungary decided to

march toward the Hungarian border with Austria, ninety miles away,

in protest against the camp’s conditions and European states’ inadequate response to the refugee crisis. Forcibly displaced people are

undoubtedly suffering from persistent Samaritan peril. The march

violated the direct orders of Hungarian authorities as well as various

157

158

A d u t Y to R e s I s t

European Union regulations regarding asylum-seeking. Although it

was public, as the marchers invited media coverage, and nonviolent,

it arguably did not qualify as civil disobedience given asylum seekers’

lack of standing (since they are not members of the Hungarian political community).

Principled disobedience— be it civil or not— can thus contribute to the Samaritan mission of rescuing people from persistent

Samaritan peril by shedding light on the injustice that enables the frequent occurrence of Samaritan perils for particular groups, and demanding the reform of such injustice. Citizens, as passers-by to these

persistent Samaritan perils, may thus be required to do their part in

the rescue by engaging in principled disobedience.

oBJectIons

Samaritans’ Judgments

The first objection to the foregoing account of Samaritan political

obligations contends that even if the Samaritan duty requires lawbreaking in the course of a rescue, the duty to obey the law always

outweighs such Samaritan political obligation. The duty to obey the

law should always prevail because judgments about the Samaritan

duty are too controversial to be left to individuals. Insofar as

disagreements about Samaritan perils are inevitable, it should not be

up to individuals to decide whether they are bound by the Samaritan

duty. Take anti-abortion activism. Whether engaged in protests or

bombings and assault on providers, anti-abortion activists claim to

be acting on the basis of a Samaritan duty to rescue fetuses. Some

opponents of abortion believe that fetuses have the same moral rights,

and should be granted the same legal rights, as people. Therefore,

in their view, the Samaritan duty requires resisting abortions by all

means necessary. They insist that the Samaritan duty outweighs all

158

159

s A m A R I tA n I s m

other considerations, including the rights of pregnant women and

clinic staff to be free from harassment and harm. They often use the

necessity defense in court, to underscore that the situation involves

an emergency or threat of death.47 In some cases, they even claim that

the Samaritan duty requires the use of deadly force against abortion

providers.48 This case suggests the dangers of allowing individuals

discretion to judge Samaritan perils.

In response, I noted that coercive courses of action must pass a

higher bar of justification than non-coercive ones. Illegal Samaritan

rescues of undocumented immigrants often do not involve any coercion or interfere with anyone’s rights. In contrast, militant anti—

abortion activities interfere with or violate the rights of women and

abortion providers. Good Samaritans may sometimes resort to coercion or violence in a rescue, but they must show that the course

of action reasonably seems necessary for the rescue, is well designed

to protect the interest under threat, and is suitably constrained (proportionate to the threat, among other things). Anti-abortion protests

that do not involve harassment or intimidation of patients and staff

could pass the bar of Samaritan justification, if we granted, for the

sake of argument, that fetuses have interests in being born. But if

Judith Jarvis Thomson’s argument in defense of abortion is correct,

unborn fetuses’ putative right to life does not entail a right to use the

mother’s body, so that resorting to violence against women seeking

abortions and physicians providing them could not be justified on

Samaritan grounds.49

I do not intend to weigh in on the abortion debate here. Suffice

it to say that Samaritanism alone does not tell us how to identify

Samaritan perils: other facts and values regarding who counts as a

person having a fundamental interest or noncontingent basic need

must come into play when identifying Samaritan perils. But that

people make mistaken judgments about what the Samaritan duty

requires does not entail that illegal Samaritan rescues can never be

159

160

A d u t Y to R e s I s t

morally obligatory. All it shows is that people disagree about what

constitutes Samaritan peril and can make mistakes about the content

of their moral duties.

Another version of this objection seeks to reconcile Samaritan

political obligations of illegal rescues with the moral duty to obey

the law: the idea is that the good Samaritan would assist the person

in need and then report him or her to the authorities, as the law

demands, thereby satisfying both the Samaritan duty and the duty

to obey the law. Dudley Knowles argued that, being a law-abiding citizen, the good Samaritan would always seek legal ways to assist people

in peril.50 For instance, a law-abiding Samaritan in Alabama could

rescue an undocumented immigrant from grave peril by driving him

to the hospital, and then report the immigrant to authorities. In this

way she would fulfill her Samaritan duty without flouting the law,

assuming that one who reports after helping cannot be charged with

a felony.

I am skeptical of this proposition’s appeal. Note that no one

would press this objection in the case of the Fugitive Slave Law,

where reporting the runaway slave would return him to terrible

Samaritan peril— slavery— or death. Similarly, if the detention and

deportation of undocumented immigrants amount to peril, then

the Samaritan duty to assist would prohibit reporting the undocumented migrant after the rescue, as the law requires. There is in

fact evidence of serious abuse in U.S. detention centers.51 And it

is plausible to argue that forcing undocumented immigrants to return to the situation of extreme violence they were fleeing in the

first place amounts to endangering them anew. A 2015 Guardian investigation and Amnesty International report found that dozens of

U.S. deportees from Central America have been murdered days or

weeks after their return to El Salvador, Guatemala, and Honduras.52

Thus in cases like these, Samaritan illegal rescues must be covert—

and thus uncivil.

160

16

s A m A R I tA n I s m

Unreasonable Costs

A second objection focuses on the costs associated with Samaritan

disobedience. Even if one agrees that laws criminalizing the exercise

of moral duties or enabling persistent Samaritan perils are unjust, one

might still worry that fulfil ing our Samaritan political obligations

jeopardizes or risks jeopardizing our prospects for a flourishing life.

Recall the earlier example of aiding a fugitive slave in the antebellum

United States. Colson Whitehead depicts in his historical novel The

Underground Railroad the lynching of a North Carolina White couple

who had given refuge to a young fugitive slave girl.53 Punishments

such as this were common— and very public— to deter people

from helping slaves toward freedom. Today, helping undocumented

immigrants is a felony in Alabama and elsewhere. One may recognize the Samaritan duty to aid an undocumented immigrant, but if

a felony conviction jeopardizes one’s prospects for a flourishing life,

then one cannot be morally bound by that duty.

It is true, of course, that Samaritan rescues are sometimes too

costly to be morally required. A state that harshly and systematically punishes disobedience appears to ensure that illegal Samaritan

rescues cannot come at a reasonable cost. This suggests the limiting

possibility that, in tyrannical regimes, there may never be a Samaritan

duty to rescue people from persistent perils, given the costs of noncompliance with the oppressive system. This is tragic, since Samaritan

perils are presumably most frequent— and Samaritan rescues most

urgently needed— in tyrannical states. The Nazi regime offers a stark

example, having routinely executed subjects for Judenbeherbergung

(harboring Jews).

And yet, interviewed after the war, hundreds of rescuers in Nazi—

occupied Poland reported simply fulfil ing their Samaritan duty.54

What made them feel this sense of duty, despite the hazards of

opposing the Nazis? For one thing, even in tyrannical regimes, illegal

161

162

A d u t Y to R e s I s t

Samaritan rescues may sometimes involve a vanishing risk of being

detected and good Samaritans of being caught. Furthermore, the

weight of the Samaritan duty is proportional to the gravity and imminence of the peril, so that prudential considerations cannot always

take precedence. Recall that, as Fabre argues, individuals can be duty—

bound to incur some life-threatening risk. Hence one may assume

that Samaritan duties to rescue people from peril in tyrannical states

carry significant weight.

Individuals’ Inefficacy

A third objection to principled disobedience is that individual acts

make no difference to address persistent Samaritan perils. The

Samaritan intervention must be reasonably calculated to protect

the interest under threat, yet no one person’s participation, in social

movements and contexts of collective action, is necessary or sufficient to ensure the rescue’s success. If there is no reason to think that

one’s efforts can make a difference, then why bother?

While it may be true that the actions of most individuals have no

effect on persistent Samaritan perils, the actions of people do.55 That

is, mass actions can have significant impact, but there is no mass if

individuals do not, on their own, participate. That the effect of mass

action is not traceable to one person doesn’t mean that individual

decisions to participate are irrelevant. And, in this respect, particular acts of protest can make a difference by serving as examples. If

an otherwise unremarkable community member engages in protest,

she may inspire others, equally unremarkable, to join. This is one way

movements grow to the point where they can have impact.

But while individuals do matter to collective rescue missions,

their efficacy is not the only factor weighing against passivity. One

might also appeal to fairness, as Wellman does in his account of

political obligation, and as I did in the previous chapter. The fact

162

163

s A m A R I tA n I s m

that the rescue mission can be accomplished without everyone’s

participation enables free-riding— a tempting option, given the

costs of Samaritan assistance. But fairness preempts free-riding

on other people’s Samaritan efforts. Every citizen may thus have a

duty to contribute to the Samaritan mission, as their talents and

opportunities allow.

Stretching the Samaritan Duty

RESCUE, CHARITY, OR JUSTICE?

One might object that my account stretches the Samaritan duty

beyond recognition. This is one of Simmons’s main objections to

Wellman’s theory: his Samaritan argument rests on conflating the

duty of rescue with the duty of charity. Duties of rescue, Simmons

insists, arise in response to one-off emergencies that occur nearby,

typically in face-to- face situations. However, he writes, “The moral

task to which Wellman thinks the [Samaritan] duty is addressed is an

ongoing problem (of providing security for all), not the kind of local,

occasional task to which duties of rescue seem to be addressed.”56 This

objection might apply to my account of Samaritan principled disobedience, too, since I propose that the Samaritan duty is addressed to

an “ongoing problem” of injustice at the root of persistent Samaritan

perils. The moral task of reforming the system, for Simmons, would

be a matter of charity or beneficence, not of rescue.

I agree that Simmons’s objection threatens Wellman’s theory, insofar as the perils of the state of nature constitute hypothetical or

potential, rather than imminent, threats. Even Knowles, who aims to

defend Wellman’s Samaritan account, recognizes that “Wellman’s talk

of rescue” from the dangers of lawlessness “is hyperbolic.”57 However,

the persistent Samaritan perils I address are appropriately and non—

metaphorically described as emergencies. The perils described here

163

164

A d u t Y to R e s I s t

may not always, or even often, be visible in face-to- face circumstances,

but they are hardly theoretical. They arise when fundamental human

interests or noncontingent basic needs— including minimally the

interests in life, security, and bodily integrity— are immediately, imminently, or probably threatened.

In addition, I fail to see how eliminating the injustice sustaining persistent peril would be a matter of charity, though I see how it could be

deemed a matter of justice. Insofar as Samaritan obligations and duties

of justice are not mutually exclusive, claiming that eliminating persistent Samaritan perils through structural reform is a matter of justice does

not undermine my account. At the outset of this chapter, I set aside

the question of whether Samaritan rights exist— that is, whether the

imperiled have a right to be rescued. An affirmative answer to this question

would entail that Samaritan assistance is a matter of protecting people’s

rights— hence a duty of justice. According to Fabre, the duty to rescue

is a duty of justice, owed to the imperiled and enforceable by the state.58

PERFECT OR IMPERFECT?

Another way of understanding the objection that Wellman, and perhaps I, conflate rescue and charity rests on the distinction between

perfect and imperfect duties. Whereas the duty of rescue as standardly conceived is a perfect duty, owed immediately by those who

can help to those in danger, the duty I describe in cases of Samaritan

principled disobedience looks more like an imperfect duty, such as

the duty of charity. If I encounter a child drowning in shallow water

that poses little risk to me, then I cannot both leave the child and

satisfy the Samaritan duty. The duty in this scenario is perfect. In

contrast, I may refrain from participating in a die-in to highlight persistent Samaritan perils and still satisfy the Samaritan duty in other

ways. Here, the duty is imperfect. The duty to engage in principled

disobedience to rescue people from persistent Samaritan perils is

164

165

s A m A R I tA n I s m

therefore imperfect as wel . But it does not follow that it is thereby

less weighty, only that it can be discharged in many ways.

IDENTIFIED V. POTENTIAL VICTIMS

In standard Samaritan cases, the party in peril is an actual, identifiable person, whereas persistent Samaritan perils concern “statistical

people” or potential victims. Though this is an important difference

in some circumstances, I do not think it is relevant in determining

our moral obligations.

Note first that persistent Samaritan perils engender a feeling of inse—

curity in all members of the targeted group, such as African Americans

under Jim Crow. The situation of oppressed people is characterized by

a climate of fear, which thwarts the possibility for a meaningful life.

In any case, let us assume that when it comes to intervention,

the Samaritan is concerned only with whomever will predictably

be assaulted, that is, statistical people. Research shows that people

will pay an amount much greater to save an identified victim who

faces a high risk of death than they will to save an equivalent number

of statistical lives spread over a broader population.59 But for many

philosophers, this disposition to favor the interests of identified

victims is a bias, not a justified moral judgment.60

Some philosophers have defended moral actualism, the view that

only the interests of actual people are relevant for determining the

moral status of an action, while those of merely possible people are

morally irrelevant.61 But Caspar Hare rebutted this view.62 Hare has

also recently scrutinized the problem of statistical people, arguing

that the fact that we cannot identify the particular people who will

be harmed or benefited by our actions is not particularly relevant to

determining the strength of our obligations. If identifiability “does

matter, it does not matter very much,” Hare argues. “Our moral

obligations are not significantly weakened by the absence of a person

165

16

A d u t Y to R e s I s t

to whom we are obliged.”63 Careful thinking about the issue doesn’t

much support favoring the interests of actual people in peril over

those of statistical people similarly imperiled.

Particularity

If there is a duty to obey the law, philosophers agree that it must

bind us specially to our state. But, as Simmons shows, theories based

on natural duties, such as the Samaritan duty or the duty of justice, cannot explain this special connection, since they bind people

equally, regardless of their voluntary undertakings or relationships.

Indeed, persistent Samaritan perils can arise anywhere, thus potentially binding us to help everywhere, not especially at home. This

may be overwhelming for privileged people who could in principle

be bound to rescue not only fellow countrymen who are imperiled

but also people far away. But that is in fact the situation, and there

is no reason to exclude transnational duties from our political

obligations in the face of injustice. So numerous Samaritan duties

may bind us at home and abroad. The interesting question, I think, is

whether there may exist transnational duties to engage in principled

disobedience.

I believe there are. There are situations in which one ought to

engage in principled disobedience at home in order to highlight

per sistent Samaritan perils abroad, assuming this will help draw

attention to the issue. Banksy did this in his London-based gueril a

street art denouncing U.S. foreign policy. Another example came

after the April 2013 factory col apse in Bangladesh, which killed

more than 1,100 people. Protesters gathered in solidarity with factory

workers to denounce the dangerous and unfair labor conditions in

Bangladesh’s booming garment sector. Though most of the protests

were legal, some involved acts of civil disobedience, for instance,

166

167

s A m A R I tA n I s m

when protesters refused to comply with police orders to disperse or

when activists violated restraining orders. For a last example, South

Asian and Black women’s organizations throughout the West, including the Freedom Without Feat Platform (FWFP) in the UK,

have built solidarity with the protests against sexual violence in India

and sought to counter Western media’s racist vilification of Indian

men (as “uncivilized,” “murderous,” and “hyena-like,” among other

epithets) and obfuscation of gender-based violence at home.64 FWFP

illustrates well the reality of transnational Samaritan duties.

If you believe there is a Samaritan duty to obey the law, then

you should further affirm that this duty can require disobeying laws

against Samaritan rescue and that it can require engaging in civil disobedience to protest injustices that imperil people. However, not all

injustices trigger Samaritan duties. Thus there is a Samaritan duty

to rescue undocumented migrants insofar as they are imperiled, but

not simply in virtue of their being exploited. There is a Samaritan

duty to rescue women from the perils of male violence, but not to

fix the wage gap or increase political representation. To articulate a

complete account of our obligations in the face of injustice, one that

can ground citizens’ responsibilities to address injustice beyond

Samaritan endangerment, we need to look elsewhere. To this end,

I now turn to political association.

167

168

Chapter 6

Political Association and Dignity

The sound of guards’ footsteps in the corridor. “Bheith réidh anois,”

says one cellmate. “What?” the other asks. “Get ready.” The guards

open another cell and take a man out. He is Bobby Sands, wearing

nothing but a blanket wrapped around his waist. The guards slam

him against the wall and on the floor, beat him, and drag him through

the corridor. They hold both his arms; Sands kicks back. He spits at

a third guard, who punches him in the face. Sands ducks the second,

more forceful blow, which lands on the wall. “Fuck,” the guard

screams in pain and anger.

Soon the other two have dragged Sands into the bathroom and

are holding his head to the floor, while the third chops off his long

brown hair and beard with scissors. His head and face are bruised

and covered in blood, as are the guards’ latex-gloved hands. Guards

force him into a bathtub and hold his head and body under the water,

which quickly turns red. A third guard frantically scrubs Sands’ body

and face with a deck brush. Eventually he is carried away unconscious.

This is not a scene from real life, but it might have been. The

moment plays out in Steve McQueen’s 2008 film Hunger, which stars

Michael Fassbender as Bobby Sands, a member of the Provisional

Irish Republican Army (IRA) and informal leader of the IRA

inmates held at the Maze Prison in Northern Ireland, where the film

takes place.1 The events of the film follow the British government

168

169

P o l I t I c A l A s s o c I At I o n A n d d I g n I t Y

revocation of IRA inmates’ prisoner-of- war-like status in 1976. In response, Sands and other IRA inmates engaged in the “blanket protest”; they went naked or dressed only in blankets rather than wear

the uniform of an ordinary convict. In 1978, after particularly brutal

attacks by guards, the IRA prisoners launched the “no-wash” or “dirty

protest.” They refused to leave their cel s or to wash, instead smearing

the cell walls with excrement and slopping their pots of urine under

their doors and into the prison corridors. Hunger shows these horrendous conditions in great detail: the quarters fouled with a hand—

mixed paste of garbage and fecal matter; guards mopping up the

urine; guards clad in protective gear fit for radioactive waste disposal,

pressure-hosing the cell walls.

In 1981, Sands— in real life and in the movie— organized a

hunger strike. “There is no such thing as political murder, political

bombing or political violence,” British Prime Minister Margaret

Thatcher said in response to the hunger strikers’ demand of political status. “There is only criminal murder, criminal bombing and

criminal violence. We will not compromise on this.” Sands died after

sixty-six days.

By most accounts, the grisly protests and hunger strikes accomplished nothing— and were even counterproductive. The prisoners

debased themselves with grotesquery; the hunger strikes epitomized

self-inflicted violence. Yet, I will argue, these protests were not

wasted. There were uncivil efforts to realize the demands that dignity

makes on political associates.

AssocIAtIVe PolItIcAl oBlIgAtIon

In previous chapters, we saw that the natural duty of justice, the

principle of fairness, and the Samaritan duty, all of which have been

used to support the moral duty to obey the law, ground political

169

170

A d u t Y to R e s I s t

obligations to resist injustice— including by way of principled disobedience within decent, legitimate states. I now turn to another possible source of political obligation: association. Associativist theorists

ground the moral duty to obey the law in political membership. Just

as parents ought to raise and nurture their children, and friends

ought to support each other, so citizens ought to support their political institutions and obey the state’s law: what matters is fostering the

good of the group with which one is associated, whether that is one’s

family, informal community, or polity.

Associative obligations are special, not universal, differing

according to one’s role relative to others. We owe these obligations to

people with whom we have special relationships, such as our family

members, colleagues, coreligionists, and business partners— and our

fellow citizens. Associative obligations constitute a third genus of

moral requirements, besides natural duties and voluntarily incurred

obligations. Unlike natural duties, owed to all of humankind, associative obligations obtain only among members of communities or

groups. And unlike promissory or contractual obligations, they are

in general neither voluntarily undertaken nor explicitly consented

to. This is not to say that associative obligations never follow some

consenting action. For instance, we typically take on professional

obligations by choosing certain occupations, although we might not

directly consent to the particular obligations associated with them.

But even associative obligations that are not voluntarily incurred

bind us, within limits.

Associativist accounts of political obligation have two main

appeals. One is their conformity with ordinary moral thinking, especially our experience as socially embedded beings. Associativist

accounts recognize that membership in nonvoluntary groups is an

integral part of who we are, as we identify with at least some of the

roles we inhabit, feel bound by the responsibilities accompanying

them, and value the relationships inherent in membership. Whereas

170

17

P o l I t I c A l A s s o c I At I o n A n d d I g n I t Y

the natural duty of justice, the principle of fairness, and the Samaritan

duty ignore the feeling of being specially bound to one’s country and

compatriots, associativist accounts begin with the specialness of

one’s relationship to the political community.

The other appeal, as I see it, lies in associativist theorists’ recognition of deficits within the traditional equation of political obligation

and the moral duty to obey the law. Associativist theories also take

seriously the possibility of political obligation s— plural. Margaret

Gilbert argues that political membership minimally entails acceptance of political institutions’ authority but doubts that associative

political obligations necessarily include, and are exhausted by, the

duty to obey the law.2 For Andrew Mason, political obligation mainly

involves two types of special obligation: an obligation to give priority to the needs of fellow citizens and an obligation to participate

fully in public life.3 Hence at least some associativist theorists pave

the way for thinking about types of political obligation beyond the

moral duty to obey the law. The bulk of the associativist literature,

however, strives to defend the thesis that citizens are bound to obey

their polity’s law.

Theorists offer different accounts of how political association (or

membership; I will use the terms interchangeably) works to ground

the obligation to obey the law. Some theorists hold that membership in a political community itself entails political obligation.4

According to these conceptual arguments, following the law just is

an institutional requirement. Others argue that political obligation

grows out of not only membership full stop, but from the feeling

of belonging and sense of identity that membership in the state

provides.5 Proponents of identity arguments hold that members

who identify with the group they belong to are bound by its rules,

regardless of what these rules require. Still others claim that associative political obligation is grounded in the value of political membership.6 Arguments of this sort locate the source of associative

171

172

A d u t Y to R e s I s t

obligations in the character, usefulness, or purpose of the relationship members share.

These three types of accounts, and the particular version

each defends, are sufficiently different from one another that the

arguments set forth in this chapter will not appeal to all associativist

theorists. This is an inescapable difference from chapters 3– 5,

where my arguments could (sought to) compel any proponent of

the duty of justice, principle of fairness, and Samaritan duty, respectively. In this chapter, I focus on one particular value-driven

associativist account: that of the late Ronald Dworkin. It offers an

attractive account of associative political obligation and has the

additional advantage of drawing on dignity— a particularly powerful concept with great currency in politics and law. I thus hope

that my arguments will appeal to both associativist theorists and

champions of dignity.

dwoRkIn’s lIBeRAl-AssocIAtIVIst

Account

According to Dworkin, if people have a moral duty to obey the law,

they are subject to a special case of associative, not performative (i.e.,

voluntarily incurred), obligation, since we are usually born into political membership. The scope, content, and limits of special obligations

are determined by contingent conventions, including what is cus—

tomary in a certain social milieu. Dworkin denies that conventions

and social practices are independent sources of moral duties, but

he argues that they play an important role in clarifying and fixing

the obligations that people standing in special relationships have.

For instance, Western family practices assign the responsibilities of

childcare and childrearing to children’s parents, but in many kib—

butzim, childcare is a collective endeavor. Social practices such as

172

173

P o l I t I c A l A s s o c I At I o n A n d d I g n I t Y

these are thus “parasitic” on underlying and independent moral facts,

including children’s needs.

Dworkin argues that special obligations, like other moral

requirements, are grounded in the overarching interpretative value of

dignity. As he explains in Justice for Hedgehogs, dignity requires both

self-respect and authenticity. These principles govern and unify ethics

(“living wel ,” centered on the self) and morality (“being good,”

what we owe others). From the ethical perspective, the principle of

self-respect demands accepting that how one’s life goes is a matter

of importance. From the moral perspective, self-respect demands

recognizing the objective importance of other people’s lives and

showing respect for humanity in all its forms, thereby granting others

the opportunity to satisfy the demands of self-respect. The principle

of authenticity entails what Dworkin calls “ethical responsibility”

and “ethical independence.” According to the former, “Each person

has a special, personal responsibility for identifying what counts as

success in his own life; he has a personal responsibility to create that

life through a coherent narrative or style that he himself endorses.”7

The latter forbids us from acting according to decisions and values

that are not of our own making. Morally, authenticity demands we

recognize and respect the responsibility of other people to design a

life for themselves.

Dworkin deduces political obligation from the internal character of the political relationship, examined in conjunction with the

demands of dignity. Although the principle of authenticity forbids

subordination, it does not entail a blanket prohibition against deference to authority in decisions that affect us, including in the political realm. Dignity permits us to share our responsibility for our

own lives with others— as we do in democracies— so long as the deference is in some ways reciprocal. Political association, especially in

democracy, both contributes to the success of our lives and makes

us vulnerable to a special kind of harm— namely, subservience, the

173

174

A d u t Y to R e s I s t

indignity arising from unilateral deference. This “risky” relationship

thus entails a special responsibility not to dominate the other party

or parties. Political association, in short, must be structured by reciprocal concern so as not to compromise dignity.

Is political obligation a justified— that is, genuine— obligation?

According to Dworkin, defective instances of valuable practices (e.g.,

family) and defective conventions such as honor among thieves impose no genuine obligation on those they purport to oblige. In the

same way, not all political communities impose genuine obligations

to obey the law. Only those that are legitimate— that respect the dignity of all parties involved— do. Thus, for Dworkin, state legitimacy

entails political obligation: citizens are morally bound to obey the

laws of their community when, and to the extent that, these emanate

from a legitimate government.

Dworkin distinguishes legitimacy from justice, noting that

governments may fall short of justice and still be legitimate, so long as

their laws and policies can nevertheless be interpreted as

recognizing that the fate of each citizen is of equal importance

and that each has a responsibility to create his own life. A government may be legitimate, that is, if it strives for its citizens’

full dignity even if it follows a defective conception of what that

requires.8

Whether the community cares about its members’ dignity and shows

equal concern for them are thus matters of interpretation. According

to Dworkin, “The interpretive judgment must be sensitive to time

and place: it must take into account prevailing ideas within the political community.”9 In particular, legitimacy should be assessed on

the basis of two criteria: first, the community’s good-faith efforts to

respect the dignity of its members; second, its amenability to change

through politics. Assessing a community’s legitimacy therefore

174

175

P o l I t I c A l A s s o c I At I o n A n d d I g n I t Y

involves determining whether it is generally structured in a way that

expresses— or strives to express— equal and reciprocal concern;

whether it contains particular laws, policies, or practices that threaten

(some) members’ dignity; and whether there are political channels

for reform.

Where states contain the stain of domination and make political

and legal processes of correction available, they maintain legitimacy

and claims to political obligation. Where the stain is dark and widespread, political obligation may lapse entirely and revolution may be

called for. Most historical and current polities fall somewhere between the two extremes. Slavery, colonialism, imperialism, and racial

segregation, which characterize entire systems, generally constitute

lapses of legitimacy. Particular laws and practices that threaten dignity, such as anti-immigration policies and the use of solitary confinement, express unconcern for members of certain social groups and

thus stain legitimacy.

dIgnItARY AssocIAtIVe PolItIcAl

oBlIgAtIons

There are various ways in which political associations can threaten

their members’ self—

respect and/

or authenticity. Paradigmatic

violations include denial of self-determination, which consists in

depriving an individual or a people of decision-making powers in

their lives; humiliation, that is, demeaning physical or verbal treatment that undermines or denies a person’s self-respect;10 objectification,

which reduces a person to her body or body parts or treats a person

as a tool for the objectifier’s purposes;11 discrimination, that is, the

wrongful imposition of disadvantage based on people’s (perceived)

membership in a particular social group;12 exploitation, or unfairly

taking advantage of individuals or groups;13 marginalization, that is,

175

176

A d u t Y to R e s I s t

exclusion from participation in major social activities;14 and violence

or the violation of a person’s bodily or mental integrity, through,

for example, assault and sexual abuse.15 The list is not exhaustive.

Having previously discussed discrimination and exploitation in

some detail, I focus here on violations of dignity that involve denial

of self-determination, humiliation, and violence— as Irish people in

Northern Ireland suffered.

Both self-respect and authenticity forbid subservience, and an

affront to one tends to be an affront to the other. To deprive someone

of the background conditions for living authentically also violates her

self-respect, and vice versa. Since the implications of the principles

are practically interchangeable, I shall treat them together.

What does a person owe herself in the face of a polity’s failure to

treat her as an equal and valuable member? What does a person owe

those in her polity who are not treated as equal and valuable members?

Dignity demands recognizing one’s and others’ basic moral worth,

taking one’s own life seriously, and respecting others’ ethical independence: it forbids dominating and unilaterally deferring to fellow

citizens.

My contention is that political membership, in conjunction with

the demands of dignity, also supports a general obligation to resist

one’s and others’ violations of dignity. People who are not treated

as equal and valuable members of their community— who are socially or politically subservient— have an ethical and moral obligation to themselves and others similarly situated to resist their own

mistreatment. And members of a polity that violates some of its

members’ dignity have a moral obligation, owed to others, to resist

such mistreatment.

The scope and content of the general obligation of resistance—

what it requires in specific circumstances— depends on the kind

and magnitude of indignity threatened and on the agent’s abilities,

opportunities, and particular position relative to the indignity.

176

17

P o l I t I c A l A s s o c I At I o n A n d d I g n I t Y

I propose to distinguish and examine four related purposes of resistance, which can be deduced from the internal logic of dignity—

threatening political relationships:

1.

Rectification: fixing the flawed law, policy, institution, or

system through reform or revolution;

2.

Communication: publicly condemning a law, policy, institution, or system;

3.

Assertion: affirming one’s dignity; and

4.

Solidarity: acting in and expressing solidarity with or among

the oppressed.

These four goals of resistance are interrelated and not clearly

demarcated: asserting one’s dignity and expressing solidarity are

communicative acts, and communication is the first step toward rectification. Citizens are bound to engage in resistance in order both

to rectify dignity-threatening political conditions and communicate

opposition to them. Asserting one’s dignity is an ethical obligation

that specifically arises in the face of subordination; and acting in and

expressing solidarity with the oppressed is a moral obligation that

can bind both the oppressed and the privileged members of society.

These obligations to resist, which may be deemed “semi-general” in

relation to the general obligation of resistance, are defeasible and imperfect. This means that they may be overridden by countervailing

prudential and moral considerations, and that one has broad leeway

in deciding how to fulfill them, within the constraints imposed by

dignitary political membership.

In general, agents cannot insult or violate their own or other persons’ dignity in order to resist illegitimate political associations. To

do otherwise, by humiliating, objectifying, or brutalizing others,

would be to wrongfully seek to dominate them. Dignitary political

membership seems to require dignified— that is, public, non-evasive,

177

178

A d u t Y to R e s I s t

nonviolent, and civil— resistance, and to prohibit, or at least place

a presumption against, uncivil and undignified— that is, violent, offensive, and self-demeaning— conduct. But rather than trying to

reinforce this presumption for civil (nonviolent, etc.) disobedience, I contend that dignitary political membership, under certain

circumstances, justifies uncivil, violent and undignified, resistance.

Rectification

Dworkin’s understanding of dignity demands that, when laws,

policies, and institutions fail to express equal and reciprocal concern for all, they must be fixed or replaced. If the law’s failure to respect everyone’s dignity is sufficiently threatening or destructive, all

people, not just those affected by indignity, may demand reform or

revolution. Citizens can discharge the associative political obligation

of rectification through nonviolent resistance or civil disobedience.

However, I shall examine the range of uncivil, violent acts of resistance that dignitary political membership might permit and even require in efforts to rectify illegitimate associations.

Dignitary political membership does not demand that people ignore or react nonviolently to threats to their lives. In fact, a compelling argument can be made that self-respect demands standing up for

oneself and others, as in Claude McKay’s 1919 anti-lynching poem,

“If We Must Die”: “Like men we’ll face the murderous, cowardly

pack, / Pressed to the wall, dying, but fighting back!” Here, “men”

can plausibly be construed to mean self-respecting agents. Frederick

Douglass asserted his dignity— “manhood,” “self-confidence,” “determination”— when he resisted a slave-breaker’s attack:

It rekindled the few expiring embers of freedom, and revived

within me a sense of my own manhood. It recalled the departed

self-confidence, and inspired me again with a determination to

178

179

P o l I t I c A l A s s o c I At I o n A n d d I g n I t Y

be free. He only can understand the deep satisfaction which I experienced, who has himself repelled by force the bloody arm of

slavery.16

Frantz Fanon also argued that dignity prohibits passively absorbing

oppressive violence and that, among the natives, responding to

colonizers’ violence with violence “restores self-respect.”17 Violence

in self-defense, for these thinkers, is a moral right, a political obligation, and a therapeutic force, constitutive of political agency itself.

It is not an exception to dignified conduct but, rather, what dignity

demands.

The individual case for self-defensive violence can extend to the

collective. A violent slave uprising can certainly be construed as a

justified and dignified response to slavery, given the immediate and

grave threats to slaves’ lives, freedom, and bodily integrity. But disproportionate or retaliatory violence could not be justified as an exercise of collective self-defense.

The presumption in favor of nonviolence also is weakened when

illegitimacy shows itself through the community’s failure to respond

to good-faith claims on behalf of the oppressed. This opens the door

for justifying, on the basis of dignitary political membership, violent

resistance to unjust and oppressive regimes. Consider the experience

of the African National Congress (ANC), which struggled against

Apartheid in South Africa. As Nelson Mandela recounts it, that effort

began with serious and sustained attempts to bring about change

through existing legal and political processes. Later, the movement

pursued peaceful protests and civil disobedience. It took five decades

for the ANC to decide that something more drastic than nonviolent

resistance was needed, resulting in the formation of a military arm,

Umkhonto we Sizwe (The Spear of the Nation), which organized

sabotage actions and prepared for gueril a warfare.18 The branch’s

manifesto read:

179

180

A d u t Y to R e s I s t

The time comes in the life of any nation where there remain only

two choices— submit or fight. That time has now come to South

Africa. We shall not submit and we have no choice but to hit back

by all means in our power in defense of our people, our future

and our freedom.19

The ANC’s turn to violence can be cast in associativist and dignitary

terms: submission would violate the ethical demand of dignity, so

that the only acceptable course of action was to fight back in hopes of

securing sociopolitical conditions expressing equal concern and respect for all. Appropriately directed and suitably constrained revolutionary violence was the last resort— a necessary and justified means

to rectify oppressive political associations.

Could dignitary political membership justify violent resistance to

rectify unjust political relations within an otherwise-tolerable regime

(which South Africa wasn’t)? What should we say, for instance, about

the Attica uprising, from the associativist and dignitary perspective?

In 1971, inmates at Attica Correctional Facility in New York held

thirty-nine prison guards and employees hostage during a four-day—

long standoff.20 The inmates were armed exclusively with knives and

makeshift weapons, and, contra state allegations, they did not kill

any hostages. (One hostage, Wil iam Quinn, died in the hospital as

a result of injuries he sustained during the takeover. Prisoners had

released him so he could get medical care.) This is not to assert that

the uprising satisfied the principles of necessity and proportionality,

but at least the violence wasn’t unbound. Many scholars further estimate that, in the vibrant activist climate of the time, the uprising

stood some chance of success, at least in informing the public of

prison conditions.

The uprising was spontaneous but quickly accrued leaders from

grassroots organizations operating in the prison. These leaders

called for thirty-three outsiders, including the New York Times’s Tom

180

18

P o l I t I c A l A s s o c I At I o n A n d d I g n I t Y

Wicker (who went on to write his account of the uprising in the 1975

A Time To Die: The Attica Prison Revolt) and radical attorney Wil iam

Kunstler, to visit the prison, and they demanded an end to unpaid and

underpaid labor, prolonged solitary confinement, corporal punishment, extreme overcrowding, and racial hierarchy within the prison.

They asked for educational programs, books, adequate healthcare,

decent food, religious freedom, and amnesty for the takeover. They

contested their exclusion from the political community and sought

an institutional process through which to air grievances. Bespeaking

illegitimate circumstances, prison conditions were not amenable to

change through politics. But the prisoners seem to have presumed

that local authorities would be wil ing to hear them out. All of their

demands were reasonable.

Even so, on Governor Nelson Rockefeller’s orders, the standoff

ended in carnage. Twenty-nine inmates and ten guards were killed

and eighty-three inmates were wounded. The state blatantly failed to

respect inmates’ dignity before the uprising, establishing miserable

and degrading prison conditions; during, by refusing to meet any of

the prisoners’ reasonable demands and retaking the prison in a blood

bath; and after, by torturing inmates and then publicly blaming the

violence on the prisoners and, for decades, refusing to acknowledge

wrongdoing. The prison can plausibly be treated as an isolated, illegitimate microcosm within the larger community— thereby weakening

the presumption in favor of nonviolence— allowing us to conceive of

the Attica uprising as a justified attempt to establish bonds of political membership against the civic death and egregious violations of

dignity prisoners suffered. The uprising, in other words, flowed from,

and sought to rectify, the perverse logic of the brutal and degrading

treatment of prisoners.

The Attica uprising is instructive in another way. The state’s cover—

up of the massacre was successful because it comported with public

expectations about criminals’ animal nature and with the widespread

181

182

A d u t Y to R e s I s t

belief that criminals forfeit all their rights by breaking the social contract. These expectations and beliefs ensure that the general population largely does not care to find out how badly prisoners are treated.

Today, the two great challenges for prisoner-rights activists in the

United States are people’s ignorance about systematic human rights

violations— from slavery-like labor to solitary confinement— that

plague prisons and their indifference to prisoners’ fates. We should

thus take a step back and think about how to facilitate and bring

about rectification. A prerequisite, which the Attica uprising could

not fulfill thanks to the cover-up, is communication.

Communication

If we are to protect dignity in Dworkin’s terms— by ensuring that

laws, policies, and institutions express equal and reciprocal concern for all— we will have to make sure people know that it is at risk.

But mistreatment may not be self-evident. In the case of structural

oppression, for instance, injustice hides within the normal workings

of the system. Resistance to it should aim in part to educate the

public. Whether we are talking about justice-based, fairness-based,

Samaritan, or dignity-based arguments for resistance, education is

essential. Dignity-threatening political relationships call for information and advocacy campaigns to improve the community’s conception of what respect for dignity requires, highlight particular threats

to or violations of dignity, and communicate the need for reform.

The issue of prisoners’ rights, again, offers a valuable case in point.

Successfully resisting mass incarceration and its allied abuses involves

not only informing people but also helping them to recognize

prisoners’ dignity, instead of dehumanizing and demonizing them.

People need to have some respect for prisoners’ dignity in order to

appreciate that it has been violated— with the active approval and

passive complicity of the polity at large. Journalists, scholars, lawyers,

182

183

P o l I t I c A l A s s o c I At I o n A n d d I g n I t Y

prisoner-rights activists, nongovernmental organizations such as

the Center for Constitutional Rights and the Vera Institute, and in—

tergovernmental organizations such as the United Nations pursue

this communicative mission lawfully every day, documenting and

highlighting abuses, contesting their legality, encouraging critical

debate and reflection, and proposing concrete policy reforms. For

instance, historian Heather Ann Thompson not only uncovered in—

controvertible evidence of the government’s cover-up of the Attica

uprising in Blood in the Water, but has also prompted people to realize

that prison conditions have not improved since the 1960s, and in

some ways have worsened thanks to privatization, increased incarceration rates, and even greater use of prolonged solitary confinement.

But efforts to expose and condemn dignity-violating relationships

need not be lawful. They may also rely on principled, including

uncivil, disobedience. This may be appropriate, within dignitary

constraints, to the extent that it can capture public attention more

readily than can a legal course of action, and especially when agents

lack opportunities for lawful resistance. This tends to be the case

for prisoners themselves. Certainly some can speak for themselves

using regular publishing channels, as in the recent anthology Hell

Is a Very Small Place, in which sixteen former and current prisoners

give firsthand accounts of the devastating effects of solitary confinement.21 (The book has been hailed as a catalyst for prison reform, an

“ax for the frozen sea within us”— an apt metaphor, borrowed from

Franz Kafka, for public indifference to prisoners’ fates).22 But most

prisoners are not talented writers or do not have access to publishing

platforms.

Given the challenges of reaching the outside world, many

prisoners have turned to hunger strikes in the struggle for respect

and recognition. Dozens have shaken U.S. prisons in recent years,

especially to protest solitary confinement’s inhumanity. During the

2013 California prisoner hunger strike, which began at the Pelican

183

184

A d u t Y to R e s I s t

Bay State Prison’s Security Housing Unit and quickly spread through

the state, thirty thousand inmates starved themselves.23 Prisoners

also coordinated a nationwide work stoppage in September 2016 to

protest prison slavery; prisoners are paid between zero and $0.93 for

twelve hours of work per day, and, even where they are paid, their

wages are typically confiscated for “room and board.”24 An estimated

twenty-four thousand prisoners in twenty-nine prisons across at least

twenty-three U.S. states refused to work. The strike ended after three

weeks, under threats of lockdowns and punishments, its demands

unmet. But it succeeded in raising awareness about prison slavery.

Hunger strikes and work stoppages, though not illegal, are against

prison policy and thus qualify as principled disobedience (whereas

civilians’ political fasts generally don’t). I do not think they fall under

the umbrel a of civil disobedience, despite being often labeled as

such, because of the kind of coercion they involve (threat of suicide

in one case, significant economic pressure in the other).25 They might

be deemed uncivil, yet dignified acts of principled disobedience in

the face of agents’ civic death— justified to discharge one’s political

obligation of communicative resistance.

I want to go further and argue that dignity can justify undigni-

fied conduct to communicate opposition to dignity-threatening

relationships. The argument for dignity in conduct and against undignified resistance typically rests on the notion that oppressed

people ought to demonstrate, and convince the public of, the moral

standing they are denied. People whose dignity is violated by political associations are to perform dignity in their demands for it. But

while I am sympathetic to the idea that undignified conduct might

sometimes be counterproductive, this does not mean that dignity

prohibits it. I broadly accept the presumption against undignified resistance, but there is reason to think dignity does not rule it out.

Let us return to the protests organized by IRA fighters at the Maze

Prison. The no-wash protest involved disgusting and self-demeaning

184

185

P o l I t I c A l A s s o c I At I o n A n d d I g n I t Y

conduct. It was clearly— quintessentially, even— undignified. It was

at the same time an effective symbol of the dehumanizing British

treatment of IRA prisoners and so could be justified within the

associativist dignitary framework. The protest was powerful because

it dramatized Britain’s failure to recognize the dignity of Irish freedom

fighters and underscored the lack of dignified channels to express

their grievances. The point was not to demonstrate their equal social standing and the fact that they deserved the respect they were

denied. Instead, it was to represent the fact that they were treated

without regard for their dignity. They demanded dignified treatment

by sensationalizing its deprivation. The dirty protest illustrates undignified resistance justified by dignitary political membership, for

the sake of communicating opposition to oppression. Ultimately, the

prisoners can be admired for putting themselves through horrendous

conditions out of respect for their dignity.

Assertion

The Maze protests are particularly interesting insofar as they slid

from a demand for dignity to an assertion of it, in a way that could still satisfy the associative obligations of resistance. Padraig O’Malley

carefully describes this transition in Biting at the Grave: The Irish

Hunger Strikes and the Politics of Despair.26 In 1980, after the blanket

and dirty protests were harshly repressed, the prisoners organized a

first hunger strike, which lasted fifty-three days. The British government refused to restore their political status and to meet any of their

demands (including the right to wear their own clothes and not to do

prison work).

When Bobby Sands began refusing food on March 1, 1981, the

chances of accomplishing anything through a second hunger strike

appeared nil. Or so the Belfast priest played by Liam Cunningham

in Hunger tries to convince Sands (Fassbender) in a breathtaking

185

186

A d u t Y to R e s I s t

unbroken seventeen-minute shot. But Sands knows the strike is

unlikely to yield political concessions; he is nonetheless determined: “Putting my life on the line, it’s the right thing.” The protesters’

demands for dignity had not been, and would not be, met— even

though Sands was elected a member of Parliament during his fast,

which culminated in his death at age twenty-seven. O’Malley shows

that the second hunger strike did nothing but assert dignity. The

prisoners had already communicated their grievances, and they had

virtually no hope of achieving anything, reform-wise. Stil , dignitary

political membership makes sense of the urge to assert one’s dignity

in the face of its public denial, and even when one has no hope of

righting the situation.

Bernard Boxill has argued for a Kantian duty to oneself to protest one’s own subordination, even if there is no hope of rectifying

it.27 By protesting under these conditions, a self-respecting person

manifests her conviction that she has worth, thereby reinforcing

the conviction. She fends off the fear of losing her self-respect. “The

self-respecting person wants to know that he is self-respecting,”

Boxill writes.28 Unopposed injustice invites its victims to believe

they have no value or rights, and therefore the self-respecting

person is compelled to protest, over and above the hope that it

will bring relief. Boxill’s argument, made from Kantian premises,

can be framed in associativist terms and support an ethical obligation to assert one’s dignity in the face of political relationships that

threaten or violate it.

These sorts of protests, asserting one’s dignity to oneself, may be

silent, internal, and invisible. They are failures from the standpoint

of interpersonal communication and rectification. But this does not

necessarily make them failures with respect to the assertion itself.

Carol Hay has developed a Kantian account of duties to oneself to

resist one’s oppression, which is based on the recognition of the fundamental value of our rational nature and of oppression’s damaging

186

187

P o l I t I c A l A s s o c I At I o n A n d d I g n I t Y

effects on our rational and agential capacities. Exploring ways to fulfill these duties, she notes:

In some cases, there might be nothing an oppressed person can

do to resist her oppression other than simply recognizing that

something is wrong with her situation. This is, in a profound sense,

better than nothing. It means she has not acquiesced to the in—

numerable forces that are conspiring to convince her that she is

the sort of person who has no right to expect better. It means she

recognizes that her lot in life is neither justified nor inevitable.29

Dworkinian dignity has much in common with Kantian rationality.

Dworkin dubs the moral dimension of self-respect “Kant’s principle,”

and his conception of authenticity is close to Kantian autonomy.

Recent Kantian accounts of duties to oneself to resist oppression,

such as Boxil ’s and Hay’s, thus illuminate the present associativist

account. Asserting one’s dignity, by itself, is an important way to meet

the demands of dignity when rectifying mistreatment seems impossible. And it can play an important role in thwarting some of the corrosive effects of oppression on one’s dignity.

Solidarity

The ethical associative obligation to assert one’s dignity has a moral

analogue in solidarity. I discussed in previous chapters consequentialist and nonconsequentialist (fairness-based) arguments for solidarity in action. Dignity can also support a political obligation of

solidarity among and with the oppressed. Recall Pankhurst’s words

about the suffragist movement: “To be militant in some way or other

is . . . a duty which every woman will owe to her own conscience and

self-respect, to other women who are less fortunate than she herself

is, and to all those who are to come after her.”30 For the same reasons

187

18

A d u t Y to R e s I s t

that the oppressed owe it to themselves to protest their mistreatment

and assert their dignity, they owe as much to others similarly situated.

The realization of common struggle gives rise to and constitutes solidarity among the oppressed.

Dignitary political membership also supports an obligation of

solidarity on the part of privileged members of society. On Dworkin’s

account, the reasons you have to care about how your life goes are

also reasons for you to care about other people’s lives. Dignity’s

moral requirements thus mirror its ethical demands. If, for instance,

prisoners are obligated to protest their degradation, then so are all

of their fellow citizens. Even if I am not responsible for my fellow

citizens’ mistreatment, I have responsibilities to them in virtue of

our co-membership in the polity; I must do what I can to correct the

dignity-threatening relationship.

Dignitary political membership thus requires everyone to resist

violations of some members’ dignity. It further provides the rationale

for the powerful notion that the demands of dignity cannot be fulfilled for anyone unless the community actually treats everyone with equal concern and respect. This is so because a citizen cannot be

morally bound to abide by rules that systematically violate the dignity of her fellow citizens. If she were to accept an obligation to obey

laws that denigrate certain groups, she would fail to recognize the objective importance of other people’s lives, as authenticity demands.

Solidarity in resistance is, then, a crucial way of expressing proper

concern for everyone, undermining support for dignity-threatening

political associations, and hopefully rectifying them.

Solidarity should thus be viewed as a moral obligation of both

subordinated and privileged members of society. As I noted in

chapter 4, where I also defended fair play obligations of solidarity,

the term “solidarity,” understood as meaningful cooperation and

collective action to advance shared goals and values, seems best suited

to describe bonds among the oppressed. “Allyship” is sometimes

188

189

P o l I t I c A l A s s o c I At I o n A n d d I g n I t Y

used to refer to members of the dominant group’s solidarity with

the oppressed. In Kendrick T. Brown and Joan Ostrove’s definition,

“Al ies are generally conceived as dominant group members who

work to end prejudice in their personal and professional lives, and

relinquish social privileges conferred by their group status through

their support of nondominant groups.”31 So men can be allies to

women in denouncing rape culture, cisgender people can be allies to

trans people in promoting trans rights and visibility, and so on. Talk

of allyship is so widespread, especially in activist settings, that it has

spawned recognition, and critique, of “ally culture.”

Although allying with marginalized groups is an important way

of acting in solidarity with them, I want to register some concerns

with ally culture, which explain my choice to retain the concept of

solidarity to describe both in-group and out-group bonds. These

concerns also help frame some wrong ways of acting in solidarity

with the oppressed.

For one thing, allyship can be disingenuous. The activist and

writer Princess Harmony Rodriguez coined the term “ally theater”

to criticize the way some allies perform on and off social media in

order to reap the benefits of being seen as supporters of the cause—

to get “kudos, likes, faves, shares, and even career opportunities”—

without showing any actual concern for the marginalized people

they are supposed to be allying with.32 Rachel McKinnon has recently identified allies’ bad epistemic behaviors, through the lens of

trans women’s experiences. One bad epistemic behavior consists in

using one’s self-identification as an ally as a defense against charges

of bad behavior. This can reinforce gaslighting— an epistemic injustice in which “the hearer of testimony raises doubts about the

speaker’s reliability at perceiving events accurately” and “doubts that

the harm or injustice the speaker is testifying to really happened as

the speaker claims.”33 In her example, a trans woman reports to a

self-described ally that her colleague repeatedly misidentifies her

189

190

A d u t Y to R e s I s t

using a masculine pronoun, but the “ally” nonetheless doubts her

testimony.

This testimonial injustice produces a special kind of harm, insofar

as allies present themselves as trustworthy and invite victims’ confidence: gaslighting is a betrayal of the marginalized person’s trust. It

can lead to loss of critical support and feelings of isolation and exclusion. Given these considerations, McKinnon contends that the

epistemic and emotional harm of being gaslit by allies “can often be

worse than the original harm that the person wishes to share.”34 In

light of the observed tendency of allies to behave badly and the screen

that allyship allows them to hide behind, she urges abandoning allies

and allyship and instead focusing on “cultivating active bystanders.”

I am sympathetic to this proposal, as I underscored in chapter 5 the

importance of active bystanders to Samaritan perils.

However, I believe that solidarity remains a valuable and compel ing concept in establishing our associative political obligations

toward oppressed people. The active bystander discharges

responsibilities to intercede when a disadvantaged person is in harm’s

way. But the active bystander helps to remedy violations of dignity

one by one, whereas solidarity points to the need for collective action

to fix political relationships that systematically threaten people’s dignity. Solidarity is thus a distinctive and worthy associative political

obligation in the dignitary framework: it crystallizes the idea that

violations of dignity are everyone’s concern and that everyone ought

to express their commitment to respecting everyone’s dignity and

join organized movements of resistance against oppression.

In the previous section, we saw that there can be an obligation to

assert one’s dignity even when the assertion will only be apparent to

the agent doing the assertion. Can there be an obligation to act in solidarity with or among the oppressed when there is no hope of rectifying

indignities? Perhaps. Even if there is no hope of rectification, it is not

the case that solidarity would accomplish nothing: communication

190

19

P o l I t I c A l A s s o c I At I o n A n d d I g n I t Y

and assertion would still constitute significant goals of resistance. But

what about cases that would achieve none of these things? I have in

mind symbolic acts of private solidarity. They do not aim to bring

about social change and may not be seen by anyone— exactly like

certain invisible assertions of dignity. For instance, upon finding out

that sugar was not available to French soldiers during the First World

War, six-year- old Simone Weil gave up sugar in private solidarity with

the troops. Nicolas Bommarito argues that acts such as Weil’s “are

themselves morally virtuous and can play an important role in moral

development.”35 Private solidarity has clear expressive value from the

dignitary-associativist perspective: it expresses, if only to the speaker,

a commitment to dignity. Because there is usually some other act of

resistance one can do that would contribute to achieving something,

there is no associative political obligation to act in private solidarity.

However, it may be that if and where there really is nothing productive one can do, private solidarity becomes obligatory, for the same

reason that the oppressed agent ought at least to realize that there is

something wrong with his situation and thereby assert his dignity.

To recap, dignitary political membership supports a general obligation to resist one’s and others’ violations of dignity. People who are

not treated as equal and valuable members of their community— who

are socially or politically subservient— have an associative political

obligation to themselves and others to resist their own mistreatment.

And members of a polity that violates some of its members’ dignity

have an associative political obligation to resist such mistreatment.

This general obligation entails, depending on the agent and situation,

specific obligations to protest in order to communicate opposition to

the source of violation, to try to rectify the defects in question, assert

one’s dignity, and express solidarity through collective and individual

action.

Let us now examine some objections to the foregoing associativist

account of political resistance.

191

192

A d u t Y to R e s I s t

oBJectIons

Too Demanding

First, the account may be deemed to require too much sacrifice, since

it binds every member of society to resist any dignity-threatening political relationship. Given the inevitability and ubiquity of threats to

dignity in large political communities, the demands of Dworkinian

dignity would constantly weigh on citizens and seriously impede

their day-to- day activities and life plans. Some readers may consider

this problem so serious as to constitute a reductio ad absurdum of

my argument.

We have already examined versions of this objection. My response is basically that we shouldn’t expect morality to be anything

other than demanding in the nonideal, often-unjust circumstances

in which we live. But, from within the dignitary-associativist perspective, the worry is a bit different: that the demands of political resistance would objectionably obstruct people’s authentic

self-realization.

This sets up a false dilemma. Authenticity demands that each

person exercise independence in and responsibility for designing

their own life. Political resistance often enacts values by which

one lives and may even be central to the pursuit of responsibility.

Daniel Silvermint argues that resisting one’s own oppression can be

an important component of wel - being when living in oppressive

circumstances.36 The same should be said about privileged members

of society, given the harmful effects of oppression on privileged

people and bystanders, not just the oppressed— about which I’ll

say more in the next chapter. So political resistance does not have

to impede my authentic self-realization. If attending to my associative political obligations to resist injustice would crowd out my life

projects, then I have a choice to make. I may have much value to add

to the world as an artist, for instance, but there is no reason to think

192

193

P o l I t I c A l A s s o c I At I o n A n d d I g n I t Y

that because my choice is aesthetically good I do not in fact have demanding political obligations.

Burdening and Blaming the Victim

The second objection contests the idea that those who are politically subordinated ought to resist their own oppression. Tel ing

people whose dignity is threatened that they ought to resist and may

be blamed for failing to do so amounts to objectionably burdening

the victim as well as blaming her for failing to resist. These are two,

tightly connected objections: that my account burdens victims with

obligations and that it assigns them blame if they fail to carry out

those obligations. As Marilyn Frye asks,

Can we hold ourselves, and is it proper to hold each other, re-

sponsible for resistance? Or is it necessarily both stupid cruelty

and a case of “blaming the victim” to add yet one more pressure

in our lives, in each others’ lives, by expecting, demanding,

requiring, encouraging, inviting acts and patterns of resistance

and reconstruction which are not spontaneously forthcoming?37

In response to the burdening-the- victim objection, I fail to see what

is problematic with the claim that people whose dignity is violated

incur special responsibilities to protect and assert that dignity. Our

relations with others make us responsible and vulnerable in all sorts

of ways, few of which we voluntarily take on. Recall this is part of

the appeal of associativist accounts: where, for liberal contractualist

theorists, what we owe others is mostly a matter of what we voluntarily undertake, associativists can account for the variety of involuntary and semi-voluntary obligations we incur in the course of forming

bonds with others. The point is that victimhood and subjugation,

even if entirely involuntary, may generate some responsibilities.

193

194

A d u t Y to R e s I s t

It is further noteworthy that the defense of ethical obligations of

resistance accords well with the self-understanding of participants in

many liberation struggles. W. E. B. Du Bois argued that self-respect

was incompatible with silent submission to racial subjugation and

required protest.38 The Black Power movement encouraged racial

pride and heightened self-esteem. This casts doubt on the implausi—

bility, or unpalatability, of the idea of ethical obligations to resist one’s

mistreatment.

With respect to the objection of victim-blaming, it is important

to keep in mind that even if we agree that subordinated people could

be blamed for passively going along with their own oppression, this

does not entail that it would be appropriate for anyone to blame

them. Privileged people clearly lack the moral authority to do so and

would be engaged in immoral victim-blaming if they were to chastise

passivity. Only some people within the subordinated group can perhaps appropriately apply social sanctions to those who fail to resist,

depending on their knowledge of others’ particular circumstances

and opportunities to resist.

Letting the Oppressed Fight

A third objection pushes in the opposite direction, stressing that

dignity commands self-sufficiency and weighs against letting other

people fight one’s struggle. It demands that the oppressed resist

alone. Assistance would be patronizing. This idea resonates with the

third goal of resistance— asserting dignity— and has been prominent

in liberation movements. For instance, Stokely Carmichael, former

chairman of the Student Nonviolent Coordinating Committee

(SNCC) and honorary prime minister of the Black Panther Party,

refused the presence of Whites in the Black Power movement and

insisted that SNCC “be Black-staffed, Black-controlled, and Black—

financed.” The demand for exclusively Black financing was especially

194

195

P o l I t I c A l A s s o c I At I o n A n d d I g n I t Y

burdensome given African Americans’ relative lack of resources,

but Carmichael insisted, “If we continue to rely upon White financial support we will find ourselves entwined in the tentacles of the

White power complex that controls this country.”39 He thought that

Whites could not relate to the Black experience, intimidated Blacks,

and behaved paternalistically. “The charge may be made that we are

‘racists,’ ” he wrote, “but Whites who are sensitive to our problems

will realize that we must determine our own destiny.”40

But while there is indeed great dignity in liberation by the

oppressed themselves, it does not follow that others— oppressors,

privileged, or bystanders— are not morally obligated to rectify

oppressive arrangements. The slave rebel ion led by Spartacus was

certainly dignity affirming and awe inspiring. But it does not show

that the abolition of slavery was the slaves’ task. On the contrary,

abolishing an unjust system such as slavery was everyone’s moral

duty— and, as I argued in chapter 4, those who benefit even involuntarily from injustice have an especially compel ing duty to resist.

So ethical obligations to resist one’s own mistreatment are perfectly

compatible with the moral obligations of the privileged to resist

oppression, too, and with the latter obligations being weightier than

the former. From this perspective, Carmichael’s point should not be

taken to exclude White resistance against racism but instead should

be understood as emphasizing the importance of the composition

and organization of oppressed people’s own liberation movement.

Delineating Political Relationships

A fourth objection concerns the scope of political relationships.

The dignity-threatening political relationships I focus on are laws,

policies, practices, and institutions (including the government) that

express contempt, or fail to express concern, for certain groups in

the political community. But political relationships may not always

195

196

A d u t Y to R e s I s t

be clearly delineated. There can be disagreements about whether a

given power relationship is also a political one. For instance, most

people deny that nonhuman animals are members of the moral

community and therefore do not believe that considerations of justice apply to our treatment of them. The mistreatment of animals is

not usually perceived as violation of their dignity, nor do people see

their relations to animals as political. As another example, consider

Americans’ relationship to people in developing countries where the

goods we consume are manufactured. Economic decisions made in

the United States profoundly affect these countries, yet we are usually

blind to the political nature of our relationship with, say, Bangladeshi

garment workers.

It is appropriate to worry about all the power relationships left out

of the liberal-associativist account. But I am not convinced that these

observations actually amount to an objection against it. Instead, they

suggest extending the account of special responsibilities and associative obligations of resistance beyond political membership and across

borders. Dworkin’s framework may accommodate such an extension.

He explains how the obligation to obey the law flows from political

membership, but this is premised on particular features of political

membership that conceivably could expand beyond national and

species borders. Namely, what makes political membership valuable

is that it reduces vulnerability to subservience. There is no reason we

could not extend the principles of dignity to account for associative

obligations flowing from relationships that do not take place within

the boundaries of a political community.

In conclusion, dignitary political membership grounds a general

obligation to resist one’s and others’ violations of dignity, including

by way of rectification, communication, assertion, and solidarity.

I argued that dignitary political membership can justify violent, undignified, and hopeless resistance, and that it supports a political obligation of solidarity among and with the oppressed. One important

196

197

P o l I t I c A l A s s o c I At I o n A n d d I g n I t Y

point to infer from the foregoing account, as in the previous chapters,

is that citizens’ political obligations are plural. Under nonideal

conditions, the obligations of resistance that flow from the responsibility neither to dominate nor to unilaterally defer to others are more

central to the role of citizen than the obligation to obey the law— or

abide by prison rules.

197

198

Chapter 7

Acting on Political Obligations

Perhaps you now feel overwhelmed by the number and extent of our

political obligations, if not also skeptical of their demands and feasi—

bility. It is difficult to act on them, to judge what they require us to

do, and even to recognize them in the first place. Individuals are left

to decide for themselves when they have an obligation to resist injustice, how they ought to discharge that obligation, and whether they

are still bound by the obligation to obey the law. Given cognitive limitations and unconscious biases, citizens may make mistakes in good

faith. They may feel the weight of an obligation that does not in fact

exist and, in so doing, reject what is just and legitimate. They may destabilize and divide society by engaging in unnecessary acts of resistance. As I’ve noted before, that one may be wrong about one’s duties

and may fulfill them inadequately or irresponsibly does not rebut my

arguments. But the problem of discretion does speak to an important

general concern about the complicated demands of morality under

nonideal conditions.

In this final chapter, I want to examine in more detail this concern. Simply put, correctly identifying and being motivated by

our political obligations in the face of injustice presupposes many

conditions unlikely to prevail. These include good civic and moral

education; unbiased, readily accessible information; and strong

civil-society institutions. Too often, these conditions don’t obtain.

198

19

A c t I n g o n P o l I t I c A l o B l I g At I o n s

What are some of the major obstacles that hinder citizens’ recognition of their political obligations? Are they insurmountable?

How can individuals respond to their defective environments? My

answers will point inward to individuals’ responsibilities to exercise

due epistemic care and outward to the collective: together we think;

together we resist.

oBstAcles

Authoritarian regimes and liberal democracies raise different

worries for an account of duties to resist. The main difference between the two lies in the visibility of injustice. In autocratic states,

injustice tends to be either glaring or intentionally hidden. In liberal

democracies, it tends to be concealed behind the normal workings of

social structures, divorced from agents’ intentions.

In many cases, autocratic subjects may be barred from publicly

naming an injustice, but it is nonetheless there for all to see. Think

of public executions in Iran and kangaroo courts in Apartheid South

Africa. Often, however, the wrongdoing that takes place in authoritarian regimes is concealed. When the injustice is not clearly

discernable, it is likely a result of the government’s lies, deception,

and propaganda, not of the inherent difficulty of grasping that injustice. Either way, overt or covert, the harms of “agent oppression,” to

use Sally Haslanger’s terminology, are intentional.1

In contrast, subjects of liberal democracies really may be unaware

of injustices affecting fellow citizens, compromising and staining

state legitimacy. In cases of “structural oppression,” the harms are the

unintended results of structures that work systematically— but not

intentionally— to impede some groups’ capacities for self-realization.

Each kind of injustice generates different obstacles to citizens’

recognition of their political obligations.

199

20

A d u t Y to R e s I s t

Seeing and Denying

A routine aspect of life in tyrannical states is fear for one’s safety and

the safety of loved ones. Historical examples unfortunately abound.

Imagine being Jewish, Roma, gay, or disabled under the Nazis; or

living in Cambodia under Pol Pot’s communist rule, when 1.5 mil ion

Cambodians— a fifth of the population— died of starvation, execution, disease, or overwork. Closer to the United States, it is estimated

that thirteen thousand people disappeared in Argentina during the

1976– 1983 military dictatorship.

Totalitarian regimes reinforce this basic fear for one’s life by

encouraging distrust among subjects. For example, denunciation

flourished in police states such as Nazi Germany and the Soviet

Union. Robert Gel ately’s study has shown that the Gestapo numbered only about 7,500 at its peak, while the real instruments of

surveil ance were the citizenry, who reported everything from Jews

holding hands with non-Jews to Germans listening to foreign radio.2

Gel ately found that denunciations enabled individuals to draw on

the state’s coercive power to settle private, often petty, grievances

and advance their own interests. The same sort of thing happened in

the Soviet Union, where denunciations aimed at securing a larger or

better living space were so common that they spawned the coinage

“apartment denunciation.” What these phenomena show is the

corrosive effects of injustice on our moral capacities: some people

wrongfully and even deceptively expose others to grave harms for

their own petty benefit. Pervasive grave injustice can habituate and

desensitize us to itself. The Grimké sisters, who grew up on a slave—

owning plantation in South Carolina, suggested that slavery, insofar

as it left people morally estranged from one another and thwarted

compassion, eroded everyone’s moral capacities.3

Along with desensitization and advantage-seeking, denial is

a common reaction to and coping mechanism for grave injustice.

200

201

A c t I n g o n P o l I t I c A l o B l I g At I o n s

It offers a psychological “solution” to the horrors of witnessing or

participating in state atrocities. In his sociological study of denial,

Stanley Cohen speculates of the ordinary Reichsbahn employees in

charge of transporting Jews to their final destination: “These booking

clerks and train drivers must have recognized that something abnormal, if not morally wrong, was going on. They must have eventually slipped into a state of dulled routinization— as if this was more or

less business as usual.”4 This slippage, he suggests, could come from

an unconscious defense mechanism, or from a conscious decision to

proceed as if everything were normal.

Despotic governments facilitate subjects’ denial by denying the

facts (e.g., that a massacre has taken place), denying their proper interpretation (that certain actions are grave human rights violations),

denying their value (that the actions are morally abhorrent), or

denying responsibility for the truth of these facts.5 Officials themselves often engage in denial, despite the cognitive dissonance involved. Albert Speer, a high-ranking SS officer in Nazi Germany,

famously denied knowing about the Final Solution until his death in

1981, all the while accepting some responsibility owing to his senior

position. Speer’s wife later explained her husband’s denial as a kind of

wil ful ignorance: “If one had known, one would have had to question

it, one would have had to face the reality of it and . . . one would have

had to question one’s own attitude toward it.”6

This conundrum applies to perpetrators, accomplices,

beneficiaries, and bystanders, and the lines between these categories

can be porous. Just witnessing acts of injustice may leave a stain on

the spectator’s moral conscience because bearing witness inevitably

raises the question of what one could have done to prevent the acts

and, as Speer’s wife suggests, can foster a sense of guilt for having

done nothing. This is a crucial reason why people shut their eyes to

injustice around them. Visual metaphors are tel ing: they pretend

they just don’t see, as Bob Dylan sang.7 This is pretense more than

201

20

A d u t Y to R e s I s t

blindness, and it arguably involves both deception— of oneself and

others— and moral cowardice. Yet it may also be that people close

their eyes because they feel helpless or endangered, or because what

is in front of them is too horrible to be watched. And all of these

possibilities may be tied up together, such that we pretend not to see

injustice because it is unbearable to do so, because we fear for our

lives, and because we think there is nothing we can do.

Claude Lanzmann masterfully represents these complexities and

tensions in Shoah, which recreates the life of the concentration camps

through nearly ten hours of interviews with Jewish survivors; German

executioners; and Poles from the vil ages of Chelmno, Malkinia, and

Auschwitz.8 While the film’s main subject is the extermination process, it also offers a powerful examination of responsibility and blame.

The Polish vil agers present themselves as victims of the Nazi occupation, helpless witnesses to the mass murder of Jews. In some respects,

this defense is plausible. What could ordinary Poles have done? The

Nazis conquered and occupied Poland, and routinely executed Polish

subjects for sheltering Jews. Poles were by and large powerless.

As the movie unfolds, however, some of the vil agers demonstrate

callousness so appalling that they appear as complacent spectators

rather than as helpless would-be Samaritans. For instance, Lanzmann

asks one farmer whether the vil agers weren’t afraid for the Jews. The

farmer replies, “Wel , it’s like this: if I cut my finger, it doesn’t hurt

you, does it?” A number of vil agers laugh as they recall drawing a

finger across their throats at the sight of passing cattle cars full of Jews

unaware of the fate before them. Pervasive anti-Semitism coexists

with heartbreaking testimonies from those left horrified by what they

saw and by their inability to prevent it.

This is the case even among those who causally contributed to

the evil, such as the Treblinka locomotive driver who transported

Jews to their deaths. He appears irreparably broken by what he saw

and especially by what he heard, which cannot be ignored with a turn

202

203

A c t I n g o n P o l I t I c A l o B l I g At I o n s

of the head: the screams, followed by total silence, which Lanzmann

makes him describe meticulously. In this way, the film illustrates

the range of subjective experiences between witnesses, bystanders,

spectators, and contributors, and suggests that evaluating witnesses’

moral roles— determining when observer becomes accomplice—

can be complicated. Shoah also shatters the myth that people didn’t

know about the genocide until after the war. Many people knew but

felt it wasn’t their concern, or that there was nothing they could do

about it.

One takes from the film a disturbing lesson: no one living amid

grave injustice comes out unscathed. Denunciation makes one an

agent of or direct contributor to wrongdoing; moral integrity is diminished by denial, however understandable as a coping strategy;

helpless bystanders must live with traumatic memories and the guilt

of having done nothing; victims’ sense of their own worth is diminished and their trust in others broken, leaving grief, suffering, and

sometimes survivor’s guilt. The effects of injustice, reactions to it,

and obstacles to recognizing it are thus intertwined in the phenomenology of injustice. This is important as it suggests that precisely

where resistance is the most needed, some forces hinder recognition

and attribution of political obligations of resistance, by facilitating

mechanisms of denial and rendering difficult the determination of

people’s moral role in atrocities.

Not Seeing and Justifying

In contexts of agent injustice, the horror afoot is noticeable because

it is abnormal. In cases of structural injustice, the problem is the opposite: nothing unusual happens. The harms of structural injustice

are primarily consequences of the normal interplay between social

institutions, processes, and norms. By default, these harms are harder

to detect than those resulting from the intentional, egregious actions

203

204

A d u t Y to R e s I s t

of individuals. Of course one can hardly resist injustices one does not

perceive.

The harms of structural injustice consist in hindering people’s

capacities for self-realization by virtue of their perceived membership in a social group. As it diminishes some people’s capacities,

structural injustice benefits others through privilege. On Alison

Bailey’s conception, privileges are “unearned assets conferred

systematically.”9 They are unearned because the members of the

privileged group enjoy them as a result of sheer luck— the luck of

belonging to a social group whose race, sexuality, gender, or class

confers privilege. One of the functions of privilege, according to

Bailey, is to “structure the world so that mechanisms of privilege are

invisible— in the sense that they are unexamined— to those who

benefit from them.”10 Privilege thus breeds blindness and blindness

reinforces privilege, since being privileged is being able, even

encouraged, to fail to see the oppressive system and the privileges

it grants. The privileged are prone to deceiving themselves into

thinking that they deserve their status and benefits, that they earned

their gains through talent and effort.

As privilege is invisible to the privileged person, so is oppression

in general invisible to him or her, and sometimes to the oppressed

themselves. The unjust situation of those who occupy a subordinated position in the social structure remains unseen as long as the

privileges of the dominant group appear deserved. Bailey describes

this phenomenon:

The maintenance of heterosexual, White, or male privilege as positions of structural advantage lies largely in the silence surrounding the mechanisms of privilege. . . . Whites

are not encouraged to recognize or acknowledge the effects

of racialization on White lives, men have difficulty seeing the

effects of sexism on women’s lives, and heterosexuals rarely

204

205

A c t I n g o n P o l I t I c A l o B l I g At I o n s

understand the impact of homophobia on gay, bisexual, and les—

bian communities.11

The privileged often lack basic understanding of the experience of

deprivation and oppression, and further lack the motivation to learn

about it.

Marxist notions of ideology and false consciousness help explain how decent people can deny the existence of structural

injustice without necessarily being credulous or ill willed. Ideology—

understood here as a widely shared worldview that stabilizes sociopolitical conditions by representing them as just— and its arsenal of

stereotypes and biases assure that structural injustice remains concealed by providing simple, alternative explanations for disparities.

For instance, the stereotype of African Americans as drug users and

criminals is taken as an explanation of their disproportionate representation behind bars, thereby concealing racist criminal justice

policies and practices.12

Ideology in turn produces false consciousness. According

to Tommie Shelby, “To hold a belief with a false consciousness

is to hold it while being ignorant of, or self-deceived about, the

real motives for why one holds it.”13 The individual who suffers

from false consciousness believes that she accepts a belief solely

because it is epistemically justified, when in reality noncognitive

motives influence her belief without her awareness. Shelby gives

the following examples of noncognitive motives for embracing

certain beliefs:

Though presumably we do not do so consciously, we sometimes believe things because to do so would, say, bolster our

self-esteem, give us consolation, lessen anxiety, reduce cognitive dissonance, increase our self-confidence, provide cathartic

relief, give us hope, or silence a guilty conscience. When these

205

206

A d u t Y to R e s I s t

and other noncognitive motives are psychologically operative,

we easily fall into epistemic error.14

So not only are members of the privileged group encouraged to

think that they earned their higher status, but members of the

subordinated group, too, can find (unconscious) solace in the

dominant ideology, for instance by believing that it is in their

power to climb the social ladder in a capitalist meritocratic society. Denying structural injustice with false consciousness can

also serve as an anxiolytic against the uncomfortable feeling that

one ought, but is not willing, to fulfill one’s responsibilities in the

face of injustice.

Structural injustice thus corrodes our moral capacities in the

following respects: the dominant ideology, buttressed by stereotypes,

infects us with bias and obstructs our reading of social reality and of

our own and others’ conduct. Hay argues that it even damages our

rational capacities.15 It makes us prone to various kinds of conative,

cognitive, and affective errors when assessing complex situations.16

By encouraging self-deceit, then, privilege and false consciousness

further hinder the development of moral conscience and critical

thinking, which are crucial to perceiving injustice and recognizing

our political obligations.

Some Caveats

So various cognitive, conative, and moral capacities are essential

to countering injustice. But pervasive injustice compromises these

faculties. Prejudice and propaganda infect perceptions of social reality and moral conscience, and they corrode our abilities to see, and

our emotional responses to, injustice. Moral conscience cannot always be relied on as a guide to right action. Think of Mark Twain’s

206

207

A c t I n g o n P o l I t I c A l o B l I g At I o n s

story, in which Huckleberry Finn experiences a kind of agony when

he frees Jim from slavery:

Jim said it made him all over trembly and feverish to be so close

to freedom. Wel , I can tell you it made me all over trembly and

feverish, too, to hear him, because I begun to get it through

my head that he was most free— and who was to blame for it?

Why, me. I couldn’t get that out of my conscience, no how nor

no way.17

Huckleberry sincerely believes he is acting against his conscience.

The drollness of the passage lies in part in the tension between

Huckleberry’s objectively right action and his feelings of guilt

born from the conviction that he is doing wrong. Yet, while Twain

recognizes the corrosive influence of pro-slavery ideology, morality prevails thanks to Huckleberry’s natural feelings of shared

humanity. Twain thereby suggests that the point about injustice’s

corrosive effects— indeed, the general notion that moral conscience is a product of society’s ethos, cultural norms, or economic

superstructures— should not be exaggerated.

In “What to the Slave Is the Fourth of July?” Frederick Douglass

derides the very idea that abolitionists need to argue the point that

Blacks are fully rational humans, and that White slaveholders really

believed otherwise.

Must I undertake to prove that the slave is a man? That point

is conceded already. Nobody doubts it. The slaveholders themselves acknowledge it in the enactment of laws for their government. They acknowledge it when they punish disobedience on

the part of the slave. There are seventy-two crimes in the State

of Virginia, which, if committed by a black man, (no matter

207

208

A d u t Y to R e s I s t

how ignorant he be), subject him to the punishment of death;

while only two of the same crimes will subject a white man to

the like punishment. What is this but the acknowledgement

that the slave is a moral, intellectual and responsible being? The

manhood of the slave is conceded. It is admitted in the fact that

Southern statute books are covered with enactments forbidding,

under severe fines and penalties, the teaching of the slave to read

or to write.18

Douglass denounces slavery’s apologists’ hypocrisies and

contradictions and shows that slave laws were predicated on the

guilty knowledge of slaves’ full humanity.

Similarly problematic is the common, relativist idea that people

don’t know and have no way of knowing that an immoral practice

is wrong when it is widely established and buttressed by ideology.

Kwame Anthony Appiah debunks this idea in The Honor Code, as he

shows that immoral practices are deplored and seen as immoral from

their inception, though it often takes a very long time before they

are reformed or abolished.19 His case studies are dueling, Chinese

foot-binding, and British chattel slavery. Contradicting a common

understanding of moral revolutions, Appiah shows that arguments

about the wrongfulness of these practices circulated widely from

the start. In each moral revolution, according to Appiah, “It wasn’t

the moral arguments that were new; it was the wil ingness to live by

them.”20 Recognizing the injustice of a state of affairs is often insufficient to redressing it. For Appiah, moving people to action is a greater

challenge than getting them to recognize injustice.

All of this is to say that we should be wary of arguments

emphasizing the obstacles to recognizing injustice. Failure to act on

the basis of our best-considered moral judgment is a familiar problem.

How many of us eat meat all the while believing the carnivore diet to

be morally wrong? But even if recognition of the manifold obstacles

208

209

A c t I n g o n P o l I t I c A l o B l I g At I o n s

to satisfying our political obligations of resistance does not necessarily weigh against my account, it does underscore the need for additional, second-order responsibilities.

ImPlIcAtIons

We must cultivate in ourselves the civic virtues of vigilance and open—

mindedness. These matter especially for privileged citizens— indeed,

while vigilance is often second nature for oppressed subjects, demanding them to be open-minded would be unreasonable and con—

descending; rather, they should be the recipients and beneficiaries of

privileged persons’ open-mindedness. At the same time, the intersec—

tional nature of oppression suggests that most people have to practice

vigilance and open-mindedness on some level, say, as White, middle

class, educated, native-accented, cisgender, male, heterosexual, or

able-bodied. Vigilance and open-mindedness, as I understand them,

are generic virtues: they implicate a host of capacities, dispositions,

and habits, such as critical thinking for the former and empathetic imagination for the latter. Through these civic virtues, citizens can form

correct beliefs and engage in critical dialog about justice, practices

necessary to discharging the obligation to resist injustice. Dialog is

essential in no small part because our thinking and motivation are

developed with, and political obligations owed to, others.

Belief

“It is a task to come to see the world as it is,” Iris Murdoch wrote.21

This chapter has discussed several obstacles to fulfil ing duties to resist. But these are only part of the story: other obstacles derive from

the complexity of our world. Assessing the merits of a particular

tax policy or international trade agreement, for instance, requires

209

210

A d u t Y to R e s I s t

understanding politics and economics. Our limited cognitive resources generate further challenges. We commonly make mistakes

in reasoning, as we use heuristic devices and shortcuts that generally serve us well but that also lead us to make gross errors, including

some that impede realization of our own interests.22 In addition to

these cognitive biases, our perception of social reality is tainted by

implicit biases that produce, among other things, unconscious prejudice against certain social groups.23

Citizens make decisions that significantly affect others, especially

in democratic contexts where they are the authors of the law. Jean—

Jacques Rousseau highlights the implication of this authorship in his

opening to The Social Contract: “Born a citizen of a free State, and

a member of the Sovereign, the right to vote in it is enough to impose on me the duty to learn about public affairs, regardless of how

weak might be the influence on them.”24 Since citizens of a democracy make decisions on the basis of their beliefs, they ought to form

their beliefs responsibly. They ought to recognize their own fallibility

and biases and resist self-deception. They ought to be accurately informed, in particular about the state’s laws and policies, society’s

institutions, and their effects on people. They ought to exercise due

care in reasoning. It is essential that citizens seek trustworthy sources

of information; think critically about that information; question received wisdom; listen to others, especially those situated differently

from themselves; and adjust their beliefs according to solid evidence

and reliable testimony. The responsibility to exercise due care in

reasoning is especially weighty when one considers principled disobedience, but this does not mean that law-abiding citizens can just

“cruise” along. Indeed injustice typically endures thanks to compliance. The choice to uphold the law, too, should therefore be given

thoughtful consideration.

To fully grasp what is required of us, we need to expand how we

understand vigilance as wel . Vigilance exemplifies the right exercise

210

21

A c t I n g o n P o l I t I c A l o B l I g At I o n s

of this responsibility and is a civic virtue. In political discourse,

the idea of vigilance has been coopted to some extent by the right.

Entertainer and conservative commentator Rush Limbaugh, whose

radio talk show garners more listeners than any other in the United

States, frequently urges vigilance against the media, Democrats, and

elites, and has described conservatism as “an active intellectual pursuit” that “requires a constant vigilance.”25 Neighborhood watches

and other vigilante groups identify their raison d’être in vigilance

against criminals and illegal immigrants, often smokescreens for

racism and xenophobia.

The left— and any movement concerned with liberation—

should reclaim the term. Vigilance evokes dispositions, skills, and

habits that make us attentive to self-deception and propaganda,

much needed under nonideal conditions such as those presented

by the presidency of Donald Trump. I am not the first to say so.

Obama administration attorney general Loretta Lynch urged vigilance against Trump’s potential abuses of the Justice Department as

a weapon against his personal and political enemies.26 John Oliver,

host of the satirical TV show Last Week Tonight, also called for vigilance against Trump, whom he called a “Klan-backed misogynist

Internet troll.”27

One might object that generalized vigilance would sow distrust

among people and thereby corrode civic bonds and increase society’s

divisions. But the attentiveness and alertness I defend entail nothing

of the sort. For one, virtuous vigilance would be turned not against

fellow citizens and residents, but inward, leading us to recognize our

fallibility, tendency toward self-deception, and susceptibility to false

consciousness. In addition, citizens who exercise virtuous vigilance

scrutinize officials, which leads them to hold accountable people

entrusted with state power. Institutional mechanisms of citizen vigilance, such as oversight committees, can further these goals. It may

be perfectly appropriate for citizens to distrust officials or institutions

211

21

A d u t Y to R e s I s t

when they have shown themselves to be untrustworthy, but distrust

need not be the default attitude.

Some background elements are crucial for the flourishing of vigilance as a civic virtue. First, there should be good universal education,

so that all citizens possess critical-thinking skil s and basic knowledge

of history and of the workings of government. People need free time

as wel — time that is not committed to meeting life’s necessities— to

develop their intellectual capacities, acquire knowledge, and generally pursue their chosen ends.28 People living in abject poverty or

working very long hours under strenuous and exploitative conditions

are deprived of the time and energy necessary for the exercise of civic

vigilance. They lack any sort of leisure— skole, in Greek, the root of the English word “school.” Education and free time are tightly connected.

Some form of welfare state may be a prerequisite to ensuring access

to both, and both are prerequisites to virtuous civic vigilance. Third,

because virtuous civic vigilance is impossible without reliable information, we cannot do without able, independent, trustworthy media

organizations.

So the generic civic virtue of vigilance encompasses many sub—

traits— not only the duty to form one’s beliefs responsibly, which itself

implies the disposition to self-reflect and think critically, but also certain affective capacities and habits that are implicated in an attentive

approach to our social world and alertness to its dangers. However,

vigilance carries the risk of hypersensitivity, to wit, an excessive alertness to dangers and tendency to be quickly irritated by, and intol—

erant of, differences. We sometimes need to overlook differences that

irritate us or to try hard to understand them. Vigilance needs to be

selective and moderate: in particular, it should not target people in a

way that denies their full and equal standing in the political or moral

community (think of the way hyper-vigilance to terrorist threats can

lead to Islamophobia). And Melissa Schwartzberg argues that liberals

and democrats are committed to respecting fellow citizens’ epistemic

212

213

A c t I n g o n P o l I t I c A l o B l I g At I o n s

equality, that is, their standing as knowers and bearers of judgment.29

In short, vigilance needs to be balanced by a certain kind of openness

and epistemic respect for others I dub open-mindedness.30

Dialog and Ambivalence

Being informed and vigilant does not guarantee one will “see the

world as it is.” The right kind of perception is suffused with empathy

and a yearning to understand others. One must be disposed to imagine others’ experiences, to listen to their testimonies, and engage

with them. Elizabeth Spelman argues that the privileged must exercise their imaginative capacities to put themselves in the shoes of

the oppressed.31 As with the previous responsibility, it is important

to be aware of self-deception in this process. Recall marginalized

people’s critique of so-called allies discussed in chapter 6: when

allies fail to believe a marginalized person’s testimony, they not only

inflict a serious kind of epistemic harm on her, but they also betray her trust. Proper moral learning about oppression requires that

we exercise and cultivate imaginative self-projection, and listen to

others.

Mindful introspection and imagination can only do so

much; moral learning also requires empathy, as research in cognitive

science has shown and as feminists have long argued through their

defense of care ethics.32 Moral learning is also an interactive enterprise, which we undertake with others. Laurence Thomas argues

that the privileged must listen to the oppressed with an attitude he

calls “moral deference,” which counsels openness and attentiveness.33

Engaging with others in dialog and col aborative projects, with empathy and an open mind, is crucial to perceiving oppression and developing the motivation to fight it. Many forums may promote this

type of empathetic and open-minded moral learning, including interactive environments such as college campuses and community

213

214

A d u t Y to R e s I s t

centers, projects committed to diversity and inclusion, and active—

bystander training programs.34

The goals of practical and dialogical engagement go well beyond

learning about oppression. These are practical endeavors that enrich

our lives, stimulate creativity, and make us better decision-makers.35

I submit that those who take up this sort of engagement practice the

civic virtue of open-mindedness. This civic virtue combines a host of

attitudes and dispositions, including moral deference to others, desire to engage in dialog and col aboration, and openness to one’s own

transformation in the process. Open-mindedness facilitates mutual

understanding, which is vital to recognizing and resisting oppression.

The civic virtue of open-mindedness flourishes only amid social integration. There must be a range of environments favorable to

meaningful interaction. When people regularly interact with others

who look or act differently from them, they may shed their fears and

prejudices about these “others” and stop thinking in terms of “us

versus them.” This phenomenon has been well documented in soci—

ology and discussed in philosophy.36 Instead of expanding on this,

I shall examine an attitude that may appear at first glance pernicious

but which in fact invites open-minded engagement: ambivalence.

Ambivalence is usually seen as a mark of a troubled or confused

conscience whose inner conflicts undermine steadfast, responsible

action. However, Amélie Rorty has recently pleaded in favor of ambivalence, arguing that ambivalence is inevitable given the multiple

roles we inhabit, each with its distinct values and priorities, and

further that ambivalence can be epistemologically grounded and

responsible. Rorty distinguishes ambivalence from indecisiveness

and vacil ation. When we are indecisive, we are “in a maybe this/

maybe that epistemic condition, with multiple distinctively ranked

preferences among their various desirable options.”37 We vacil—

late when we are “in a now this/ now that epistemic condition that

expresses erratic and shifting preferences between distinctive and

214

215

A c t I n g o n P o l I t I c A l o B l I g At I o n s

apparently incompatible options.”38 To be ambivalent is to be “in a

both/ and epistemic and motivational condition, endorsing all one’s

options while thinking them incompatible.”39

Whereas indecision and vacil ation call for stable guiding criteria,

which we can arrive at by reflection, the best policy in the face of ambivalence, according to Rorty, involves first trying to identify and

assess the sources and grounds of our ambivalence. When we have

reasons to favor each alternative, so that our ambivalence is a fitting

response to circumstances, Rorty deems our ambivalence “internally

appropriate.”40 The framework illuminates the situation of citizens

under nonideal conditions. Ambivalence will often be an appropriate

attitude for those who sense conflict between their professional and

political obligations or between the obligation to obey the law and

the obligation to resist injustice. Ambivalence might also be appropriate for those uncertain about which course of action is best.

If we reflectively attempt to integrate the grounds for our appropriate ambivalence with our other commitments, Rorty submits, we

are “responsibly” ambivalent.41 We can also imaginatively reframe

our choices in order to preserve the terms and rationales of seemingly

conflicting commitments, thereby exercising “constructive ambivalence.”42 Thus the soldier who refuses to obey an order he perceives

as immoral may come to see the order as illegal— as are orders to

participate in war crimes— and realize that his professional, political,

and moral obligations in fact align. The best strategy for constructive ambivalence is to expand the scope of our partners in deliberation and enlist their empathic cooperation in a shared deliberative

effort. “Col aborative ambivalence,” as Rorty calls this, enables us to

envision different resolutions to our conflicts as well as to deepen our

understanding of ourselves and our partners through practical and

dialogic engagement.

Citizens trying to resolve their appropriate ambivalence about

certain policies or practices therefore should get together in town hall

215

216

A d u t Y to R e s I s t

meetings and social movements. In these contexts, they might work

out sources of ambivalence and resolve conflicts by prioritizing and

organizing the values at stake, choosing together courses of action,

and following them through. Such dialogical engagement is also a

propitious environment for responsible belief formation and a powerful countermeasure against the wide circulation of “fake news” and

discrediting of true stories as “fake.”

Thinking and Resisting Together

In Rorty’s analysis, “The sources, the structures and resolutions of ambivalence reveal how much of our thinking— and so also how much

of our motivational structure— emerges from the details of our collaborative and dialogical engagements.”43 We come to think what we

think, and are moved to act on the basis of what we think, as a result

of our interactions. Rorty is not saying that our beliefs are influenced

by what everyone else thinks, as reflected in the dominant culture

and accepted worldview. She is saying that we think together: that

thinking is a col aborative activity. When we talk with each other

and act together, we reassess what we think, compel others to do the

same, and further reflect and deliberate together. There is obvious

normative significance here. It is a good thing to talk to others, and

to really listen to them, as I argue in my defense of open-minded engagement. But Rorty’s point is first and foremost descriptive: this is

how we think.

There are at least two reasons why we may not recognize the collaborative nature of our thinking. One is the tendency to think about

conscience and responsibility as individualistic processes. Another is

the apparent lack of genuine practical and dialogical engagement all

around us. The latter is obvious in democratic societies, where deliberation often lacks in open-mindedness, inclusiveness, empathy, and

mutual respect. But this does not entail that people “think alone” the

216

217

A c t I n g o n P o l I t I c A l o B l I g At I o n s

way they “bowl alone,” in Robert Putnam’s phrase. Interaction is constant in the home; among friends; at school; in places of worship,

voluntary associations, and workplaces; and online. Rorty’s insight

further suggests that deprivation of opportunities to practically and

dialogically engage with others constitutes a special kind of injustice, one that affects the development of our rational capacities and

self-realization.

Rorty submits that the notion of “thinking as an individualistic

process” pervades “our folk-psychological and philosophical models

of thoughtful deliberation.”44 Images of thinking— from Auguste

Rodin’s famed sculpture, The Thinker, to the archetype of the monk

meditating in isolation— are deeply individualistic. This individualistic slant has warped discussion of political struggles in particular. Thus Hannah Arendt denounced as “the greatest fallacy” in

the debates about anti-Vietnam war and Civil Rights activists “the

assumption that we are dealing with individuals, who pit themselves

subjectively and conscientiously against the laws and customs of

the community,” when “the fact is that we are dealing with organized minorities” formed “with the same spirit that has informed voluntary associations.”45 Michael Walzer also insisted, going against

common thinking about the matter, that the basic unit of analysis

for theorists interested in political struggles had to be the group,

not the individual. As Walzer saw it, philosophers will never grasp

what rebels and civil disobedients do and why they do it until they

realize that “individual responsibility is always to someone else, and

learned with someone else.”46 It is a matter of mutual commitments

and undertakings. Rorty, Arendt, and Walzer show that together is

how we think and resist.

But aren’t there many individual exemplars of conscientious

objection? And isn’t the distinction between conscientious objection and civil disobedience so blurry that civil-disobedient

groups may well amount to aggregates of conscientious objectors?

217

218

A d u t Y to R e s I s t

Indeed, the line is blurry. Thoreau’s tax refusal, for instance, which

is better described as conscientious refusal, became public when

he later wrote and lectured about it, and is now seen as a paradig—

matic method of civil disobedience. Whistleblowers also appear

as obvious counterexamples to the essentially collective nature of

thoughtful resistance, as they seem to stand alone against their peers

and superiors. Thus Oliver Stone’s Snowden and Sidney Lumet’s

Serpico represent their protagonists— the NSA whistleblower and

the officer who exposed endemic corruption in the New York Police

Department, respectively— as lonely men compelled and burdened

by their consciences.47

In response, I would argue that this objection rests on a problematic contrast between conscientious objection and civil disobedience, with the former deemed an essentially subjective, internally

compelled, individual decision. We should extend Rorty’s insights to

conscientious objection: agents do not undertake their principled,

conscientious disobedience out of the blue. Even if they act alone,

conscientious objectors often practically and dialogically engage

with others similarly situated and rarely limit their activism to a single

act of conscientious refusal. Thus Christian pharmacists opposed to

prescribing plan-B contraceptive pil s discuss, organize, and protest.

When they refuse to honor their clients’ prescriptions, it is generally

with the encouragement and approbation of their fellow religionists

and some of their professional peers. Emanuela Ceva has recently

detailed the col aborative engagements of conscientious objectors

and vindicated its role as a form not of recusal but of political participation.48 In the final analysis, there is little reason to contrast civil

disobedience and conscientious objection along the dimension of

col aboration.

Nor is whistleblowing inherently individualistic. Consider the debate among government lawyers about whether to serve the Trump

administration. The human rights lawyer David Kaye writes:

218

219

A c t I n g o n P o l I t I c A l o B l I g At I o n s

Ultimately, when serious illegality is taking place, who will blow

the whistle but the lawyers and other civil servants who have the

ability or wil ingness to resist?

You should also know that you have a network of lawyers

outside who would support you, whether our professional

networks like the American Society of International Law and the

American Bar Association, academics from around the country,

or the research and advocacy organizations from across the spectrum of issue areas.49

I venture that a close look at seemingly solitary whistleblowers

will also reveal a multitude of engagements, small and large.

Though viewed by many as a loner, Snowden collaborated

with journalists Laura Poitras, Glenn Greenwald, and Ewen

MacAskill. As soon as he stepped forward, the American Civil

Liberties Union (ACLU) offered him pro bono legal assistance,

and Daniel Ellsberg praised him. Ellsberg and Snowden now

work side by side on the Board of Directors of the Freedom of

the Press Foundation. And, far from presenting himself as a mav—

erick, Snowden often places his actions among those of previous

NSA whistleblowers, so that his leaks appear as the culmination

of others’ work. In short, subjective, individualistic resistance is

not the norm— collaboration is.

Civic Virtues

Throughout this book, I have reconceived political obligation as

encompassing resistance against injustice. I have sought to extend

philosophical thinking beyond civil disobedience to other forms of

principled disobedience, including uncivil ones. But it is not enough

to show that principled disobedience is theoretically grounded. It

must also be within our power. Thus, in this chapter, I have identified

219

20

A d u t Y to R e s I s t

key obstacles to perceiving and satisfying our political obligations in

the face of injustice and described second-order responsibilities to

develop the dispositions necessary to face these obstacles. Through

responsible belief formation and engagement with others, I believe

these dispositions can be developed and these obstacles overcome.

If we understand citizens’ political obligations as learned with and

owed to others, in line with philosophical insights about the collaborative structure of our thinking and motivation, then we overcome also the atomizing tendencies of individualist perspectives that

would undercut solidarity.

Developing our capacities requires a commitment to civic virtue,

cultivated by education (understood not merely in terms of schooling

but in the widest sense of socialization of shared civic life). This can

seem a bit old-fashioned. Civic virtue was a major concern of the

founders of modern nation-states, but it seems far from public debate

these days. Yet, civic virtues remain important. Prominent candidates

today are patriotism and law-abidance, though only the former is typically framed as a virtue, while the latter is expected of citizens as a

matter of course, rather than praised.

Many citizens and politicians, as well as some philosophers, argue

that good citizens are patriots, loyal to their country. These same

voices argue that patriotism should be inculcated in children.50 As

one of his first official acts, President Trump declared his inauguration day to be a “National Day of Patriotic Devotion.”51

But Simon Keller has shown that patriotism entails bad faith and

blindness toward the shortcomings of one’s country.52 He has argued

that not patriotism but cosmopolitanism— or “worldly citizenship,” which involves attachments within one’s country and to other

countries— should be deemed a civic virtue.53 I agree: patriotism is

a suspicious candidate for civic virtue, no matter how harmless, and

even intrinsically good, feelings of belonging to and love of one’s

country might otherwise be.

220

21

A c t I n g o n P o l I t I c A l o B l I g At I o n s

Patriotism does not necessarily exclude political obligations of

resistance— and many dissenters and their supporters in fact appeal

to patriotism to justify their actions. Daniel Ellsberg and Oliver

Stone call Snowden a patriot. Protesters at the Women’s March in

Washington, DC, and sister cities on the day following the inauguration of President Trump held signs that read “Dissent is patriotic”

(the ACLU slogan). The kind of patriotism that makes room for

dissent and resistance is different from that which entails bad faith

and blindness. The latter reduces, while the former increases, the likelihood that one will satisfy one’s political obligations of resistance responsibly. Yet I am skeptical of even the former kind of patriotism,

on the grounds that it too can blind people to the dark tendencies

of their community. Patriotic dissidents in the United States, for instance, tend to conceive of racial injustice as flawed implementation

of the polity’s principle of democratic equality, rather than as what

it might in fact be: the natural manifestation of deeply entrenched

racist principles. Ta-Nehisi Coates derides this tendency and the selective reading of history that sustains it: “To celebrate freedom and

democracy while forgetting America’s origins in a slavery economy is

patriotism à la carte.”54 That being said, I consider patriotism a powerful tool in many liberatory struggles, especially in the U.S. context

where characterizing a policy or position as “un-American” (not just

illegal, immoral, and harmful) is often a very effective way to combat

it. In short, I think that patriotism has a potentially crucial role to

play in resistance movements, although it should not be counted as

among our civic virtues.

Especially as far as governments are concerned, law-abidance

may be an even more important candidate for civic virtue than is

patriotism. Philosophers have generally paid little attention to law—

abidance as a civic virtue, but Wil iam Edmundson is an exception.

According to Edmundson, law-abidance always involves respect

for authority and the rule of law. Configuring law-abidance as civic

221

2

A d u t Y to R e s I s t

virtue means endorsing a moral duty to obey “retail” orders— issued

personally by an authority.55 This is a civic virtue, in his view, because

it makes for good citizens, who support the legal order. Law-abidance

and compliance in general are taught in school and tend to be praised

in children and adults alike. But I am skeptical that law-abidance is

in fact a civic virtue under nonideal conditions. As I have argued,

disobeying direct orders may be called for in some cases, yet virtuous

law-abidance would prohibit such disobedience.

In place of these dubious civic virtues, I have recommended vigilance and open-mindedness. These by no means exhaust the civic

virtues, and they do not, on their own, suffice to constitute good citizenship. But they are uniquely important in helping us to responsibly identify our political obligations. Where strong tendencies

toward loyalty and law-abidance can result in credulity, laziness, self—

deception, and close-mindedness, vigilance and open-mindedness

nurture informed and empathetic understanding.

222

23

Conclusion

The Freedom Riders took enormous risks to denounce the injustice

of racial segregation. They were insulted, tear-gassed, beaten, and

arrested. The buses they rode were burned down. Yet they felt it was

their political obligation to protest and hinder the racial caste system.

They put their bodies on the line, in Thoreau’s evocative description

of civil resistance, to serve as “counter-friction” to the machine of

the state. So did, in their own ways, the militant suffragists, Bobby

Sands and other IRA inmates, Saudi female drivers, government

whistleblowers like Snowden, Meet To Sleep’s Action Heroes, and

sanctuary workers like the French olive farmer Eric Herrou. A Duty to

Resist sought to ground the political obligations they all felt they had,

by providing a multi-principle account of political obligations in response to injustice, expanding in the process the concept of political

obligation to include duties to resist injustice and disobey unjust law.

It also sought to make conceptual and normative space for thinking

beyond civil disobedience to other forms of principled, including uncivil, disobedience that may be called for even in near-just legitimate

societies.

Although the arguments for political obligations to resist injustice based on the natural duty of justice, the principle of fairness,

the Samaritan duty, and dignitary political membership stand alone,

it is important to note the logical connections between them and

223

24

c o n c l u s I o n

within the general account. First, a number of the arguments overlap.

For instance, the duty of justice, the principle of fairness, and political membership support a general obligation to resist oppression.

Fairness and political membership imply an obligation of solidarity.

That different principles separately generate the same obligations in

the face of injustice reinforces the case that these are, in fact, political

obligations. Second, because each principle can account for different

kinds of situations (e.g., fairness illuminates our thinking about exploitation, and the Samaritan duty helps us decide what to do for

people in peril), the four collectively cover a wide range of contexts.

Third, some principles appear outside the chapters devoted to them,

suggesting internal connections. For instance, I use the duty of fair

play in order to solve collective action problems in the context of

Samaritan rescues. Democratic authority is central to the duty of justice but also does some work in the associativist account. In these

ways, each central chapter’s single-principle arguments are best seen

as working in tandem with the others to render the overall, multi—

principle account more compel ing.

If my arguments are right, it should be clear that citizens’ political obligations are manifold. The obligation to obey the law is just

one among many, and, in the real world, it is not the principal one. It

is time, then, that philosophers forsake the equation of political obligation and the duty to obey the law. The problem is not mere semantics: it permeates what is discussed and how it is discussed. The

duty to obey has long had the lion’s share of philosophical attention,

at the expense of other political obligations binding people, especially those binding them under injustice. And by and large, both

camps in the literature on political obligation concentrate on the in—

ferential logic of the arguments pro and con, without questioning the

equation of political obligation with, or the exclusive focus on, the

duty to obey the law. Framing the discussion this way has the effect

224

25

c o n c l u s I o n

of obscuring the role of noncompliance in impeding injustice and

promoting democracy. In a way, the philosophical centrality of political obligation-as- obedience and relegation of principled disobedience to other corners (e.g., the question of whether liberal states

should exempt conscientious objectors or be lenient toward civil

disobedients) takes for granted and thus validates states’ demand for

compliance. This book sought to upend this framing and revisit political obligation, articulating a richer account that is attuned to real—

world injustices.

The pressing political obligations I identify in the book often align

with activists and dissidents’ self-understandings and calls to others,

whom they urge to join the resistance against injustice. To paraphrase

King, the arc of the moral universe needs some pressure to bend toward justice. Undisturbed by resisters’ and reformers’ efforts, it does

not run its course but is warped by those in power for their own advantage, and turned into ideology to sustain the status quo.

What may be surprising is that these manifold political obligations

of resistance derive from wel - established norms of liberal political

morality, which radical activists such as socialists, anarchists, and

Black feminists, tend to view as barriers to resistance. But basic liberal

commitments can and do have far-reaching and radical implications

for how we ought to respond to injustice around us.

History shows us that principled disobedience— from popular

uprisings to draft dodging and from ordinary American citizens covertly aiding runaway slaves to Iranian women’s posting photos and

videos of themselves sans veil, in violation of the compulsory hijab

law— is a force for good and a powerful check against authoritarianism and oppression. A Duty to Resist further argues that citizens,

even in democracy, can and sometimes ought to engage in principled

disobedience to fulfill their political obligations. Disobedience can

obstruct, or signal opposition to, injustice, and, when done in large

225

26

c o n c l u s I o n

numbers, can assert the popular will against the state. Remember

that Hannah Arendt viewed mass civil disobedience as an authentic

political act— something people do together, ushering in new

beginnings.1

Arendt’s conception of political action as essentially an unex—

pected, free, and spontaneous creative rupture with the established

order motivates the following general concern. From an Arendtian

perspective, the instrumental thinking I deployed throughout the

book (of the form: disobey, join movement, blow the whistle, etc.,

in order to resist injustice and further democracy) misrepresents

political action, wrongly turning the praxis that it is (an event, a

doing) into poiesis (a product, an artifact). This quasi-metaphysical

objection can be reformulated a little more modestly: my account

misrepresents political agency, assuming it involves agents’ rationally

weighing different courses of action against each other on the basis of

their expected consequences. Laid bare, the problem is epistemological: I assume that we can know what effects our action will have in

the world— which we can’t.

Although most readers might not share Arendt’s metaphysics of

political action, her theory puts in stark relief the potential problems

with my reliance on instrumental reasoning. For if authentic political action is a brute expression of freedom and togetherness; if it is

spontaneous, unpremeditated, and unpredictable, as Arendt claims,

then instrumental thinking is maladapted to it— it risks distorting

and betraying it, stripping it from the elements that make it authentically political.2

To be sure, my account assumes agents’ deliberation or premeditation and actions’ relative predictability. It assumes that agents are

self-reflective individuals who carefully assess their surroundings,

identify injustice, and deliberate with others as to the most effective

way to combat it. And it assumes that they can make reasonable

226

27

c o n c l u s I o n

efforts to anticipate the likely consequences of their actions. But

I do not find these assumptions problematic. This picture of political

action reflects activists’ actual practices, as they deliberate, organize,

and plan; write and distribute pamphlets; raise funds; give interviews

and publish press releases; anticipate reactions to their actions; secure bail money in case of arrests; and so on. The need to deliberate

about the right courses of political action is evident; it is the mirror

image of critical reflection at the level of public argumentation. And

strategic calculations are compatible with an Arendtian view of political action as channeling the spirit of the social contract (of disruption, creation, and new beginnings). Indeed they are necessary for

successful political action.

Of course there are many spheres of uncertainty, many imponder—

able elements that affect an action’s trajectory: an unforeseen denial

of permit may derail a march, an eruption of violence in a demonstration can backfire on a movement’s peaceful message, cold weather

can decrease participation in a sit-in, a last-minute endorsement by

a celebrity can boost a cause, an iconic photo can help a protest, international news can divert attention away from an important protest

at home, and so on. It does not follow from any of this that practical

deliberation is inappropriate in the realm of authentic politics— only

that it is limited and fallible. Thus political theorists’ use of statistical

methods in their study of social movements reflects the uncertainty,

but not utter unpredictability of political action.

So while I share Arendt’s appreciation for the democratic spirit

that suffuses civil disobedience and its power to reorder the world,

I disagree with her stress on the boundlessness, spontaneity, and unpredictability of political action. To be sure, acting is very different

from making, but it does not mean that the agent has no control

over the former. What the uncertainty of political action implies is

the need for caution as well as foresight, of a certain set of skil s and

227

28

c o n c l u s I o n

dispositions such as Aristotelian phronesis or Machiavel ian virtù, of genuine col aborative engagements, to navigate well the fraught

terrain of politics. It also calls for courage, the wil ingness to take

risks. None of this, in short, weighs against our political obligations

to act in the face of injustice or against theoretical efforts to investigate these. On the contrary, it brings us back to the young Freedom Rider’s observation that it is “everyone’s responsibility.”

228

29

Postscript

Resistance in the Age of Trump

I write these lines in the first year of Donald Trump’s presidency.

The United States under Trump is an exemplary case study, an opportunity to consider how my philosophical arguments apply to

actors embedded within nonideal political contexts. What political

obligations bind Americans today?

Trump talked about the presidency for a long time before

he pursued it seriously. In the years leading up to 2016, he gained

traction peddling “birtherism,” the racist myth that his predecessor,

President Barack Obama, was not a native-born U.S. citizen. He

then announced his candidacy with a speech describing Mexican

immigrants as “rapists” and soon talked of “rounding . . . up” anyone without papers. “In a very humane way, in a very nice way,”

of course. He promised to ban Muslims from entering the country

and to create a registry for those already in it. He insulted women,

veterans, and disabled people, and regularly countenanced violence

at his campaign rallies, even offering several times to pay legal fees

for fans who might be convicted of assaulting protesters. A month

before the election, the Washington Post released off-screen footage

from the TV program Access Hollywood in which Trump brags about

229

230

P o s t s c R I P t

groping women and kissing them whenever he feels like it. “When

you’re a star, they let you do it,” Trump says. “You can do anything. . . .

Grab them by the pussy. . . . You can do anything.” More than twenty

women allege that Trump has sexually harassed or assaulted them.

He denies any wrongdoing.

The show of misogyny, racism, and demagoguery has continued in office. Trump praised Fox News anchor Bill O’Reilly as “a

good person” and publicly declared “I don’t think Bill did anything

wrong” after the New York Times reported that five women who

had made harassment claims against him had settled for payouts

totaling about $13 mil ion.1 Trump endorsed Alabama Republican

Roy Moore’s candidacy for the Senate, despite multiple allegations

of sexual misconduct, including molestation of a fourteen-year- old

girl. At a Black History Month event, Trump revealed his utter ignorance of Black history, referring to the African American statesman

and abolitionist Frederick Douglass as “an example of somebody

who’s done an amazing job and is getting recognized more and

more, I notice.”2 Trump called Massachusetts Senator Elizabeth

Warren “Pocahontas” at an event honoring Native American veterans. Having lost the popular vote by nearly three mil ion ballots,

a larger margin than any president in history, Trump falsely claimed

that he has been a victim of systematic voter fraud, thereby encouraging states to further restrict voting rights and cultivating a conspiratorial narrative that undermines trust in the electoral process.

He has questioned the independence of the judiciary by describing

appeals courts as “so political.”

The president’s incendiary and divisive language is realized in

policy. Characterizing Muslims and refugees as terrorists, Trump

wasted no time issuing executive orders aimed at barring them from

the country, drawing judicial rebuke. Following up on campaign

promises, he has made deporting immigrants a top priority of his

administration, expanding the range of undocumented immigrants

230

231

P o s t s c R I P t

considered criminals and therefore targeted for removal. An executive order aimed at withholding federal funding from sanctuary cities

has been halted by a federal judge.

Whether or not Trump’s policies are illegal, many are unjust. And

people have responded in due course with protests and organizing.

The day after the inauguration, mil ions participated in the Women’s

March in Washington, DC, and other places across the country.

When Trump announced his first Muslim ban, protesters and legal—

aid workers gathered spontaneously at airports. The American Civil

Liberties Union (ACLU), which immediately challenged Trump’s

travel ban, reported $24.1 mil ion in donations in one weekend. Civil

servants, intel igence officials, government lawyers, police chiefs, city

mayors, corporate CEOs, university presidents and professors, and

scientists have spoken against Trump’s policies. Faced by an administration that routinely lies, and a president who has dubbed the press

“the opposition party” and “the enemy of the people,” journalists

have redoubled their investigative efforts.

Meanwhile, acclaimed novelist Chimamanda Ngozi Adichie

stresses the rational and dialogical parts of our political responsibilities. “Now is the time to counter lies with facts,” she writes.

“Every precious ideal must be reiterated, every obvious argument

made.”3 The Center for Constitutional Rights proclaims on its

website, “Resistance is our civic duty.”4 After Acting Attorney

General Sally Yates was fired for instructing the Justice Department

attorneys not to try to justify the Muslim ban, many civil servants

defended their duty to disobey illegal, unconstitutional, or otherwise unconscionable orders. Scientists have argued that they are

duty-bound to resist Trump’s false beliefs that vaccines cause autism

and that global warming is a hoax, and some have proposed acts

of resistance to protect the work of the Environmental Protection

Agency (EPA) from Trump’s budget cuts. Claiming a professional

and moral obligation to care for the sick, health and social workers

231

23

P o s t s c R I P t

have been at the front lines of protest against the administration’s

attempts to undermine laws improving access to health insurance

and medical attention.

This is the stuff of resistance— indeed, of the resistance, as the opposition movement born in the first days of the Trump presidency

has been called. Guides on how to resist Trump abound in the media,

from Newsweek’s “Twelve Ways to Resist the Trump Presidency”

to Politico’s “6 Ways Not to Resist Donald Trump.”5 Indivisible, the

anti-Trump movement led by former congressional staffers, offers “a

practical guide for resisting the Trump agenda” that aims to replicate

the Tea Party’s success.6 The despair and anxiety of the election’s immediate aftermath turned to energetic activism. The resistance didn’t

form on the basis of instrumental logic; the issue is not, “If you want

to resist Trump, you need to do x and y.” The logic is deontological,

articulating a duty. Speakers appeal directly to a duty to resist, and

indirectly via their grammar. The imperative mood and modal must

are everywhere.

But what exactly must we do? What does good democratic citizenship demand of us in the age of Trump? American citizens now

face the political obligations I have discussed throughout this book,

those based on the duty of justice, the principle of fairness, the

Samaritan duty, and political membership. After examining those, I’ll

outline some of the special responsibilities binding civil servants and

officials.

cItIZens’ PolItIcAl oBlIgAtIons

As we consider a real-life decision-making context, it is important

to keep in mind that we need not diagnose complete failure of the

duty to obey the law in order to defend obligations to resist injustice. At the same time, even if one believes Trump’s presidency is

232

23

P o s t s c R I P t

illegitimate— because of Russian meddling in the election, his popular-vote loss, or voter disenfranchisement— the rule-governed political institutions preceding him may still generate a moral duty to

obey the law. What we must recognize is that, whether or not the

moral duty to obey the law holds, other political obligations require

us to support just democratic institutions. And these obligations may

demand we disobey the law.

Justice and Democracy

In chapter 3 I developed a typology to help clarify which forms of injustice demand resistance: disrespect (public denial of equal status),

wrongs against nonmembers, deliberative inertia, official misconduct, and public ignorance. The new administration has already

aggravated or caused these five types of injustice. Trump’s policies

and rhetoric publicly deny the equal status of Latinos, Muslims, and

Blacks, who are stereotyped as inferior and dangerous. The White

House disrespects all trans people by attempting to bar them from

serving in any capacity in the military. (As of December 2017, a federal judge has temporarily blocked this policy, ruling that it was based

on “disapproval of transgender people generally.”)

The administration commits wrongs against nonmembers

through unjust anti-immigration policies. After federal appeals

courts stayed two versions of the Muslim travel ban, the Supreme

Court allowed the third version to take into effect while legal

challenges continue. Most citizens from eight nations, six of them

predominantly inhabited by Muslims, are now barred from entering

the United States. Trump has called for massive Immigration and

Customs Enforcement (ICE) raids to sweep up, detain, and deport undocumented immigrants, including parents of U.S. citizens.

Though he argues that “criminals” among the immigrant population

must be removed, he makes no distinction between criminality and

233

234

P o s t s c R I P t

daily life without proper documents: just being in the country illegally or using a fake social security number to work makes one a

priority mark.

The administration commits wrongs against nonmembers

through reckless environmental and foreign policies that threaten

people all over the world. The White House has formally with—

drawn from the 2015 Paris climate accord and instead seeks to repeal

fracking regulations, has approved oil dril ing in the Gulf of Mexico

and the Arctic, and has dramatically shrank national monuments that

designated Western lands off-limits to commercial exploitation. These

policies endanger animals and the environment, increasing the risk

of climate-related harms such as displacement of U.S. persons and

people abroad. Trump’s face-off with North Korea’s leader Kim Jong—

Un escalates the risk of nuclear war. The administration seeks symbolic wins at the cost of global instability, as when Trump announced

that the U.S. embassy in Israel would move from Tel Aviv to Jerusalem.

Trump’s possible breach of the Constitution’s emoluments

clause, and the many lawsuits against him, speak to official misconduct. And while Trump shares his “unfiltered” thoughts on Twitter,

he and his administration keep the public in the dark about what

really matters. For instance, by refusing to release his tax returns,

Trump maintains public ignorance of his possible conflicts of interest. An ongoing special counsel investigation led by former FBI

director Robert Mueller seeks to determine whether Trump’s pres—

idential campaign team colluded with the Russian government to

interfere with the 2016 elections and to identify links between

Trump associates and Russian officials, as well as potential obstruc—

tion of justice and financial crimes. To date (February 2018), five

people connected to the Trump campaign and thirteen Russian

nationals have been charged as part of the Mueller investigation.

Americans face pressing political obligations in response to these

injustices and suspicious activities that have provoked investigation.

234

235

P o s t s c R I P t

They have an obligation to protest by joining rallies, spreading the word

on social media, and volunteering with or donating to organizations

that oppose the administration. They have an obligation to learn about

new and prospective policies and how they affect people and the environment, and about how the administration exploits implicit biases

and explicit prejudices against ethnic minorities. They have an obligation to educate themselves and each other about how disinformation

campaigns work, the better to spot propaganda efforts, such as the

administration’s attempts to undermine the credibility of the special

counsel investigation. Experts and journalists are obligated to inform

the public and denounce lies.

Americans may be bound to disobey certain unjust laws, too. In

chapter 3, I defended a justice-based political obligation to disobey

certain unjustified anti-immigration laws that would make us agents

of wrongdoing, such as those that require citizens, civil servants, and

government officials to question undocumented immigrants, surveil

them, and report their activities to federal authorities. Such disobedience must be covert in order to protect unauthorized immigrants

from the harms of detention and deportation.

However, such disobedience could also usefully take a public

form. Institutional leaders— in city and university administrations,

police departments, corporate environments, and elsewhere— can

also take a visible stand by embracing sanctuary status and refusing

to report undocumented immigrants. Thus dozens of U.S. cities from

Seattle to Miami have declared themselves sanctuaries; and Oakland

Mayor Libby Schaaf recently has come under the Justice Department’s

scrutiny after she publicly warned the immigrant community

about an imminent ICE enforcement operation.7 At a minimum,

sanctuary cities’ police departments have been ordered to ignore

ICE detainer requests, which ask local law enforcement agencies

to hold detainees longer than they would otherwise be allowed

to, so that ICE can determine whether to take the detainees into

235

236

P o s t s c R I P t

federal custody. Some cities have done more, shielding their undocumented population from federal immigration authorities. Oakland,

California, has trained school teachers and administrators on what

to do if ICE agents approach school grounds. Schools there educate

parents on resources such as legal assistance and bail bond funds and

provide students with safe spaces to voice their anxieties about the

immigration regime. Preventing local complicity in deportations is an

important step, though not a sufficient one if we seek to protect undocumented persons’ safety.

Since the duty of justice is natural— that is, universal— it doesn’t

bind only U.S. citizens against their government. It extends to temporary and permanent residents as well as undocumented immigrants

(insofar as U.S. institutions apply to them, to use Waldron’s crite—

rion8). However, the current risks of lawbreaking are so high that

we cannot reasonably expect noncitizens to take on the burden of

disobedience.9 Stil , noncitizens have been wil ing to speak out. For

instance, undocumented youth known as DREAMers— after the

Development, Relief, and Education for Alien Minors Act— have engaged in visible protests.

Cristina Beltrán has analyzed the ways in which DREAMers

have “queered” democratic politics, as they defy their forced invisibility and silence using public-facing strategies developed by the

gay rights movement.10 Thus the DREAMers’ National Coming

Out of the Shadows Day organized in 2010 and held repeatedly

since evoked the first LGBTQ community’s National Coming Out

Day organized in 1988. DREAMers have also used social media to

publicize and multiply their narratives, beyond, say, the sanitized,

xenophilic story of the valedictorian student eager but unable to

join the army. On YouTube one finds hundreds of videos of undocumented youth declaring themselves “unapologetic and unafraid” and

recounting their and their parents’ stories. Many start with the ominous, “If you’re watching this video, I’ve been arrested.” U.S. citizens

236

237

P o s t s c R I P t

have a duty to help migrant youth activists by joining their protests,

publicizing their cause, protesting their arrests, and donating to organizations such as DreamActivist.org. All of these obligations are

that much easier to fulfill when large numbers of people protest and

disobey unjust laws.

Fairness

In chapter 4 I showed that, under certain circumstances, benefiting

from exploitative and harmful social schemes involves the same

kinds of deontic wrongs that make free riding reprehensible, so that

fairness prohibits both. We can identify many negative externalities

and harms in Trump’s America, some currently embryonic and

others more fully formed. They must be contested and repaired if

fairness is to prevail. Our obligation is to ensure that this is precisely

what happens.

Many potential harms are economic. As a staunch capitalist,

Trump takes a dim view of welfare protections, which he sees an unfair benefit distributed to those who fail to contribute to society. This

is why Trump attempted to eradicate the Obama-era Affordable Care

Act, a legislative change that would also have undermined Medicare

and Medicaid benefits. Having failed to pass this healthcare reform plan despite holding a congressional majority, the Republican

Party devised a tax plan that would slash Medicare and Medicaid

programs— adding thirteen mil ion people to the ranks of the un—

insured and driving up healthcare premiums— while passing along

gains to corporations and the wealthiest Americans, for instance, by

eliminating entirely the estate tax. The administration also seeks to

weaken labor and financial regulations, further distributing burdens

toward workers and away from managers and investors. It is a recipe

for aggravating the deficiencies and economic disparities of a social

scheme that is already one of the world’s most unequal.

237

238

P o s t s c R I P t

Fair play, I have argued, requires the beneficiaries of such schemes

to renounce their il - gotten gains. Per the Negative Argument,

benefiting from exploitative and harmful social schemes, under certain circumstances, involves the same kinds of deontic wrongs that

make free-riding reprehensible, so that fairness prohibits cooperating

with such schemes. Who are the wrongful beneficiaries of Trump’s

America? His family, his acolytes, big businesses, lobbying organizations, wealthy financiers, and unscrupulous companies seeking federal contracts to implement his agenda. All are required by fair play

to cease cooperating with, and seek to reform, a system from which

they wrongfully benefit. Ordinary citizens, and especially the worst—

off in society, are victims of the unfairness of Trump’s America: the

Negative Argument does not apply to them in this regard.

However, citizens as a group incur fair-play political obligations

of solidarity. Recall the empirical argument for solidarity: successful

resistance is possible, but it requires collective action. Chenoweth

and Stephan found that sustained participation of just 3.5 percent

of the population nearly guarantees movements’ success. So if citizens have a general obligation to resist Trump’s agenda— say, on the

basis of the duty of justice— then we can appeal to fairness to further

ground an obligation of solidarity in resistance.

Samaritan Duty

Before Trump, the United States was hardly immune to the Samaritan

perils I identified in chapter 5. But his administration exacerbates

two in particular: hate crimes and the targeting of undocumented

immigrants and prospective migrants seeking asylum. Many U.S. citizens can be viewed as passers-by to these perils.

It is not hard to see how Trump’s rhetoric has emboldened extreme—

right elements, including White nationalists operating under the “alt—

right” label.11 The Southern Poverty Law Center (SPLC) collected

238

239

P o s t s c R I P t

reports of 867 cases of “hateful harassment or intimidation” in just

the first ten days after the election.12 Most involved expressions of

anti-immigrant, anti-Black, anti-Muslim, anti-LGBTQ, anti-woman,

or anti-Semitic views. The SPLC also observed dramatic growth in

U.S. hate groups, with anti-Muslim groups nearly tripling in number

between 2015 and 2016. South Asians in the United States have experienced a wave of violence, creating a climate of fear.13

A Samaritan intervention designed to reduce the persistent

occurrence of hate crimes would thus involve serious cultural change,

through everyday resistance. The SPLC counsels ten ways to fight

hate: (1) act, because perpetrators will interpret apathy as acceptance; (2) join forces: reach out to allies, open dialogue; (3) support

victims; (4) speak up; (5) educate yourself about hatred and implicit

bias; (6) create an alternative: fight hatred with love and kindness;

(7) press leaders for change; (8) stay engaged; (9) teach acceptance,

because bias is learned early; (10) dig deeper: look inside yourself

and commit to disrupting hate and intolerance.14 SPLC’s advice aptly

combines the short-term intervention tactics of bystanders with the

long-term strategies of social movement building.

Undocumented immigrants in particular live in a fearful climate: they may not only be targeted by the public for hate

crimes— insofar as they are, overwhelmingly, non-White, accented

speakers— but also arrested and deported by official authorities.

Noncriminal arrests of undocumented immigrants rose 42 percent

in 2017; these immigrants are taken into custody on administrative grounds only. And they increasingly are being rounded up at

schools, hospitals, churches, and courthouses, expanding the range

of places where it is unsafe to be undocumented. In 2017, ICE courthouse arrests increased by 900 percent in New York City. As César

Cuauhtémoc García Hernández has argued, courthouse arrests “don’t

just derail the lives of the unsuspecting people who are detained,

they threaten the very operation of our judicial system.”15 When

239

240

P o s t s c R I P t

the government scares people away from the courts, it undermines

these people’s trust in the judiciary and at the same time the courts’

effective operation. In 2017, the number of Latinas reporting rapes

in Houston fell more than 40 percent from the previous year. The

chief of the Houston Police Department sees in this “the beginnings

of people not reporting crime” because they fear that they will be

detained and deported. When crime victims and witnesses fear

testifying to police and courts, communities are less safe.

Samaritan interventions to protect people’s basic freedom from

fear would, at a minimum, require ICE to adopt a formal policy of

avoiding arrests in sensitive locations such as schools, hospitals,

churches, and courthouses. (Under the Obama administration, ICE

was committed to avoid churches and schools.) In addition, cities

and counties ought to establish sanctuary provisions to prohibit local

police from questioning victims and witnesses of crimes about their

immigration status. The persistent Samaritan perils undocumented

immigrants face cannot be addressed without sweeping immigration

reform. The Samaritan duty thus further supports the argument for

sanctuary protections and pro-immigration political action articulated on the basis of the duty of justice.

As for the most vulnerable migrants, the United States was only

committed to accepting 110,000 refugees per year before Trump took

office. But he cut even that number to 50,000. Displaced people—

including many children from Syria, Afghanistan, Somalia, and other

countries plagued by violence— experience persistent Samaritan

perils at home, in refugee camps, and in their journey as they seek

asylum.

The Trump administration recognizes that refugees are imperiled

and in need of aid but denies that Samaritan assistance can be offered

at reasonable cost. The White House claims that taking in refugees

not only strains U.S. financial resources but also threatens national

security. Some refugees are terrorists in disguise, the administration

240

241

P o s t s c R I P t

asserts. During the campaign and in office, Trump and his team

decried compassion for refugees as mere “political correctness,” at

odds with the supposed reality of danger.16

It behooves the rest of us to combat such appeals to fear and

denials of basic moral duties with informed arguments. One way is

through education. Americans should learn about xenophobic and

anti-Muslim prejudice and about the domestic origins of most crime,

including terrorism. Citizens can also discharge their Samaritan political obligations by pressuring their government to take action,

sponsoring resettlement of migrant families, donating money

to NGOs working with refugees, and by volunteering with and

advocating for sanctuary movements.

Dignitary Political Membership

The Trump administration’s treatment of immigrants and trans people;

its insulting and divisive language; its slow response to hate crimes; its

rol backs of environmental protections, financial regulations, women’s

access to healthcare, and reproductive justice; and its contemptuous

treatment of the worst-off in society all pose threats to the dignitary

political membership grounding my associativist account for political

obligation. In response, much of the anti-Trump resistance has cast

itself in a dignitary associativist light, stressing demands for dignity

and inclusion. For instance, the artist Shepard Fairey produced a set of

protest signs featuring Muslim, Latina, and African American women

under the banner “Defend Dignity.” And faith groups all over the

country condemned Trump’s Muslim ban while affirming their belief

in the inherent dignity of every person.

In solidarity with racially oppressed groups, National Football

League (NFL) players have knelt, stayed in their locker rooms, or

locked arms during the national anthem. In particular, the players have

sought to protest anti-Black racism and police brutality. Some— such

241

24

P o s t s c R I P t

as Trump, who called the protesters “sons of bitches,” ungrateful, and

unpatriotic17— view athletes’ protests as uncivil and disrespectful. It

is illuminating, though, to conceive of the protests precisely in terms

of their dignity. They not only denounce injustice but engage in the

dignitary political membership Trump and his backers seek to deny

through accusations of incivility.

Athletes who take a knee may be silent on the field, yet they also

gain a voice. They go on to explain to the media why they engage in

such protest. They affirm their epistemic authority— their personal

knowledge of racism and police brutality; 70 percent of NFL players

are Black. They also affirm their political agency, their determination

to “stand for equality and kneel for justice,” as the BLM slogan puts it.

They not only assert dignity in the face of the president’s rebuke, but

also, as Dave Zirin has argued, “their humanity in a dehumanizing

sport” that exploits Black labor.18 Zirin analogizes the NFL protests

with those of Black sanitation laborers in Memphis, who in 1968

rallied around the slogan “I Am a Man.”

Finally the protests offer players a way to confront the United

States with its failure to make good on its professed ideals of equality

and liberty for all. The players thus redefine patriotism in the process

of protest. As a Seattle Seahawks team statement put it:

We have decided we will not participate in the national anthem.

We will not stand for the injustice that has plagued people of

color in this country. Out of love for our country and in honor of

the sacrifices made on our behalf, we unite to oppose those who

would deny our basic freedoms. We remain committed in continuing to work towards equality and justice for all.19

The NFL protests may in this sense be conceived through the prism of

Dworkin’s account. They respond to defective political relationships

stained by indignities. In the framework developed in chapter 6,

242

243

P o s t s c R I P t

the protesters communicate condemnation of racial injustice to the

broader community; they express solidarity among and with the

oppressed; and they assert dignity to themselves.

Taking a knee is entirely lawful, but the duty to discharge dignitary associativist political obligations has also inspired civil and even

uncivil disobedience. Dozens were arrested for protesting Trump’s

termination of the Deferred Action for Childhood Arrivals (DACA)

program, a decision to place young undocumented immigrants

at risk. Protesters illegally obstructed traffic in major U.S. cities in

September 2017. Undocumented immigrants detained by ICE have

also engaged in hunger strikes to protest their indefinite detention

without charges and the denial of access to lawyers— both violations

of the right to due process guaranteed in the U.S. Constitution.

The recent mobilization of antifascist groups (antifa for short) in

the United States is a clear example of uncivil resistance in the era

of Trump. A masked man punched the neo-Nazi Trump supporter

Richard Spencer in front of a TV camera on inauguration day in

2017. Antifa activists broke windows, lit fires, and threw fireworks

at police on the University of California, Berkeley, campus before a

talk by alt-right YouTube personality Milo Yiannopoulos. At another

event, activists chased, pepper-sprayed, and beat White-supremacist

Trump supporters. Antifa clashed with White nationalists and police in Charlottesville, Virginia, during a large “Unite the Right”

rally in August 2017. By the end of the day, dozens were injured

and one killed when a White nationalist drove his car in a crowd of

counterprotesters.

Cornel West was to give a sermon at St. Paul’s Church in

Charlottesville on that day. West described the White nationalist

demonstrators laying siege to the church:

The neofascists had their own ammunition. And this is very

important to keep in mind, because the police, for the most

243

24

P o s t s c R I P t

part, pulled back. The next day, for example, those twenty of us

who were standing, many of them clergy, we would have been

crushed like cockroaches if it were not for the anarchists and

the antifascists who approached, over 300, 350 antifascists.

We just had twenty. . . . The antifascists, and then, crucial, the

anarchists, . . . they saved our lives, actually. We would have been

completely crushed, and I’ll never forget that.20

Given that these antifa activists provided security when the police

would not, one may argue that their use of force was justified. But

what about the antifa activist who punched Spencer and those who

destroyed Berkeley campus property or assaulted White nationalist

Trump supporters? Opponents condemn violence categorically

and reject antifa as “no better than the fascists,” for their attempts

to silence fellow citizens.21 But if we believe that the end sometimes

justifies the means, then equating all acts of violence without distinguishing their aims is morally dubious. Many people felt similarly

when President Trump blamed both sides for the deadly violence in

Charlottesville.22

Antifa claim their use of violence is justified as a form of

collective self-defense.23 In their view, fascists (neo-Nazis and

White supremacists) seriously threaten the safety of Jews, Blacks,

immigrants, Muslims, LGBTQ people, and others held in contempt.

This threat is direct, insofar as fascists perpetrate hate crimes. The

threat also is indirect, insofar as fascist speeches and writings support

and incite violence against despised groups. And fascists’ objective

is to establish a White-supremacist state that excludes or subjugates

despised minorities. To deal with the latter two threats, antifa aim to

deprive neo-Nazis of opportunities to speak and be heard and thus

to develop the structural conditions for “normalization”— their acceptance in the political mainstream. The strategies are sometimes

uncivil and include outing neo-Nazis to their family and employers,

244

245

P o s t s c R I P t

disrupting their meetings, preventing speakers from accessing venues

through blockades and property destruction, shouting speakers

down, and physically confronting them and their supporters.

It might be possible to justify this collective self-defense argument on the basis of the natural duty of justice, the Samaritan duty,

or dignitary political membership, depending on how one frames the

targeted injustice: as disrespect, per chapter 3; looming danger, per

chapter 5; or humiliation, objectification, and violence per chapter 6.

However, these justificatory grounds also impose significant

constraints on agents, which would exclude a number of antifa tactics. For instance, Dworkinian dignity’s requirement to respect other

people’s dignity in defending one’s own and others’ cannot justify

intimidating and assaulting people. I used dignitary political membership to defend the possible justification of violence as collective

self-defense in chapter 6, with the examples of slave uprisings and the

ANC’s turn to armed resistance in South Africa under Apartheid. In

both cases, the threats to persons’ lives, freedom, and bodily integrity

were grave and immediate. In contrast, antifa use violence as a pro—

phylactic, to prevent fascist hateful speech from being normalized,

endorsed, and realized politically. It is thus more difficult to justify

their use of violence as an exercise of collective self-defense— except

when it plausibly is, as in Charlottesville.

Activists can, and should, avoid violence without abdicating

their obligations. Throwing flour and eggs— or, as PETA activists do,

tofu cream pie— is preferable to throwing punches, and it can work

as well to impose social risks on neo-Nazis and dissuade them from

publicly defending their views. Antifa’s communicative intent—

loud, unwavering condemnation of racist and fascist rhetoric— does

not demand violence, and much can be accomplished with nonviolent, if uncivil, activism. The bottom line, though, is that, amid a surge

of hate groups, we shouldn’t wholesale reject antifa tactics. Instead

we need to think carefully about their justifications and whether the

245

246

P o s t s c R I P t

combination of justification and action passes the test of political

obligation.

oFFIcIAls’ ResIstAnce FRom wItHIn

Civil servants have debated, and agonized over, whether to serve

under Trump. For some, resigning from office or refusing to sign

up are the only responsible options. What undergirds this view is

the belief that to obey or serve the state is to support it. This position— shared by many classical political thinkers, from Thoreau to

Arendt— implies that it is unconscionable to serve seriously unjust

governments. Étienne de La Boétie, in his 1553 Discourse on Voluntary

Servitude, further believed that withdrawing one’s cooperation was all

it takes, so to speak, to free a people from the reins of illegitimate

and abusive authority. Thus, from this perspective, refusal to serve

is an act of dissent, disassociation, and resistance, that is especially

effective when carried out in large numbers. As of February 2018,

there are still hundreds of unfilled positions in Trump’s administration, vacancies that may hamper the White House’s ability to advance

its policies.

However, some argue that these vacancies further the

administration’s goals of “deconstructing the administrative state,”

as former White House chief strategist Steve Bannon put it, and

centralizing authority among Trump’s most loyal inner circle. If

the government is staffed only by wholehearted supporters of the

president’s unethical agenda, the damage will be considerable. In

light of these concerns, perhaps civil servants should promote the

public good from within the administration. They have a number of

strategies at their disposal, such as conscientious refusal of particular

orders or covert foot dragging. Gene Sharp outlines various tactics of

bureaucratic noncooperation in his From Dictatorship to Democracy

246

247

P o s t s c R I P t

and 198 Methods of Nonviolent Action. On this view, whether Trump

is a textbook autocrat threatening the demise of American democracy or the legitimate though unfit president of a decent liberal state

(or both), civil servants can promote the public good and do damage

control from within his administration.

Shortly after Trump took office, Maria Stephan published a short

essay in the Washington Post entitled “Staying True to Yourself in

the Age of Trump: A How-to Guide for Federal Employees.”24 In it

she argues that “vigilance and, if necessary, dissent are needed now

more than ever to defend American democratic norms, values and

institutions.” She urges “bureaucratic resistance from below” to

challenge unethical or unconstitutional policies and promote the

public good. She doesn’t discard resignation as a form of resistance,

but she considers other methods more responsible and desirable,

including foot dragging, leaking internal documents, creating paper

trails that enable accountability and may dissuade bad behavior, and

suing officials.

A week into Trump’s presidency, former State Department adviser Laura Rosenberg offered government lawyers similar advice:

In many ways, you are the last line of defense against illegal,

unethical, or reckless actions— which the first week of this administration confirms will abound. History has shown us that

implementation of such policies depends on a compliant bureaucracy of obedient individuals who look the other way and

do as they are told. Do what bureaucracy does wel : slow-rol ,

obstruct, and constrain. Resist. Refuse to implement anything

illegal, unethical, or unconstitutional.25

This pragmatic, lesser-evil view is currently the more popular one,

but it too comes with difficulties. David Luban illustrates one such

problem using the story of the German lawyer Bernhard Lösener,

247

248

P o s t s c R I P t

who persuaded Hitler to choose the more moderate, less sweeping

draft of the Nuremberg race laws.26 Lösener took pride in his

tempering influence, even though these laws still sent mil ions of Jews

to their deaths. As Luban notes, this is an odious attempt to rationalize and excuse participation in the Holocaust. Luban thus agrees

with Arendt’s insightful 1964 essay “Personal Responsibility under

Dictatorship,” which argues that, under a dictatorship, the only moral

course of action is to shun positions of responsibility and refuse to

participate.27

I find this line of reasoning pursued by Arendt and Luban

convincing, but it only purports to apply to dictatorships and authoritarian regimes. As Luban himself recognizes, if there is no

“nightmare scenario”— an authoritarian regime intent on crushing

opposition and chocking democracy— “then the argument for service becomes compel ing.” Although Trump’s policies are already

hurting Americans and eroding democracy, few people think that

the current political situation rises to the level of this nightmare scenario, and so many support resistance from within. However, Masha

Gessen has warned against this dichotomous thinking, which

inflates “small signs of normality” and holds onto the belief that robust institutions will save the day.28 Confidence that Trump is not

dealing a serious blow to American democracy would be misplaced.

Vigilance is required.

Upon reflection, the disagreement between the two camps is

genuine, not simply a function of the gravity of the political situation. On the one hand, Arendt, Luban, and Gessen stress that bureaucratic participation in small-scale, not-quite disasters habituates

civil servants to compromise on their principles and facilitates the

advent of full-throated authoritarianism by helping to lubricate the

machine of government. For Luban, government lawyers thus ought

to refuse to participate not only in large-scale nightmare scenarios

248

249

P o s t s c R I P t

but also in “one-off nightmare issues,” such as rounding up Mexicans

and bringing back torture, which would force them to make “rotten

compromises.” (Luban concedes that this can be done from within,

however.)

For pragmatists, on the other hand, whether the disaster is here

or near, much can be done in overt and covert ways to resist the government. Indeed, resistance from within is seen as a critical tool to

hinder authoritarianism. I tend toward the pragmatic camp (with

some ambivalence, which I’ll explain). But my position is stronger

than the pragmatic one many authors have advanced. It is one thing

to say that civil servants can minimize damage and therefore should

try to do so. It is another to argue, as I do, that they have political ob-

ligation to do so.

The case for bureaucrats’ political obligation to resist rests on two

contentions. First, the duty of justice binds civil servants to uphold

democratic institutions, including by educating the public, protesting

against and/ or refusing to follow unethical orders, thwarting wrongdoing, and blowing the whistle on government abuses. Many are

following the call of duty. EPA employees have protested Trump’s

gag orders and archived the agency’s climate change research on

a publicly accessible website, lest the White House try to hide it

from view. Employees of other agencies engaged in environmental

protection and scientific research— including the National Parks,

NASA, and the Department of Agriculture— have undertaken similar efforts. Trump’s White House has been called “the leakiest” of all

time.29 The proliferation of leaks, whose cumulative effect has been to

show Trump’s unfitness for the office, can be viewed as a swarm-like,

collective effort to uphold just democratic institutions.

Second, fulfil ing the duty of justice and upholding democratic

institutions requires bureaucrats to resist from within collectively. And as resistance involves some risks, tends to be costly, and can succeed

249

250

P o s t s c R I P t

without everyone’s participation, free-riding becomes tempting: that

is, individuals might decide not to take on the risks and burdens

of the resistance. What are the benefits of a successful resistance

movement? One might argue that federal workers have their own

material interests at stake (roughly, they get to keep their jobs, in

spite of Trump’s plan to purge the administrative state). But in my

view, the principal benefits are deontic: they consist in the fulfillment

of workers’ political obligations, including the duty of justice. Here

the principle of fairness prohibits bureaucrats and civil servants from

riding freely on their colleagues’ efforts and demands that each do

their fair share of the resistance effort. In this way, civil servants may

be bound by a duty of solidarity with each other.

These political obligations are compatible with civil servants’

professional code of ethics. Although civil servants are ordinarily

supposed to take the orders they receive as preemptive reasons for

action (that is, excluding any independent deliberation), they may

refuse to comply with a given order that undermines the public

good. Indeed, their code of conduct prohibits compliance with unconstitutional and unethical orders and thereby leaves room for the

exercise of individual judgment and critique. For instance, a civil

servant is not professionally obligated to follow orders to cover up

official wrongdoing or obstruct investigations into suspected wrongdoing. Federal and state laws further shield conscientious objectors

and whistleblowers from employer retaliation, implying that civil

servants do have a right to independent judgment and may choose to

resist as a function of their professional responsibility.

Resistance from within, however, should not be considered

lightly. It should generate feelings of ambivalence among civil

servants. On the one hand, as David Kaye notes, even conscientious participation leaves a civil servant at risk of being “roped into

complicity.”30 He or she ought not play into the hands of those who

250

251

P o s t s c R I P t

seek to de-legitimize democratic government for their own ends.

On the other hand, resistance from within could be, and could be

perceived as, antidemocratic. This is principled alternative to the

White House’s sensational, conspiratorial attacks on the “deep state.”

Setting aside the inappropriateness of the label to the American context, the idea that bureaucratic resistance may be antidemocratic is

not unfounded. Bureaucrats, after all, are not representatives of the

people. Their job is not to make policy but to carry out those policies

designed by elected officials.

The proliferation of leaks at every level of government during

Trump’s first year in office crystallizes the issue: the leaks justifiably

reveal the Trump administration’s conflicts of interests and disregard

for democratic norms, but they have intensified the administration’s

paranoia and sown distrust among segments of the public. The leaks

look like a threat to democracy even as they seek to expose one. To

see why, it is important to distinguish the different kinds of leaks

at play and the issues they raise. Among other things, leaks may be

indiscretions, breaches of confidentiality, or disclosures of classified

information. The persistent leaks from the executive branch have included indiscretions (gossip or “loose lips”) and behind-the- scenes

glimpses into an impulsive president prone to “tantrums” (a recurrent phrase to describe Trump’s moods). Staff have spoken of their

dismay at his television and Twitter habits. But not all is palace in—

trigue. There have also been disclosures of confidential information. For instance an official leaked a memo from National Security

Adviser H. R. McMaster urging senior officials to clamp down

on leaks. Transcripts of Americans’ conversations, intercepted by

the NSA, have leaked. And, relying on vetted anonymous sources,

Reuters revealed that Trump campaign officials had numerous undisclosed contacts with Russian government agents, before and after

the November election.31

251

25

P o s t s c R I P t

As of December 2017, the Justice Department is conducting

twenty-seven investigations into classified leaks of information. These

are the most worrisome kind of leaks, because classified information

is necessary to national security. Such leaks are presumptively wrong,

as I suggested in chapter 3, insofar as they transgress the boundaries

around state secrets. Leakers not only challenge executive decisions

to keep certain information out of the public realm but also usurp

the power of the state and unilaterally reverse these decisions. This

is why, in democratic states, disclosing classified information appears

antidemocratic. Leaks of classified information can nonetheless be

justified when they contribute to the prevention or cessation of government wrongdoing or strengthen the rule of law. But even when

justified, they consist of a problematic, apparently antidemocratic,

breach of the executive right to secrecy, with the potential to threaten

national security.

Civil servants are thus bound to weigh these issues very seriously

in their deliberation. Civil servants should feel ambivalent. The best

way to handle this ambivalence, as I argued in chapter 7, is to work

together, engage dialogically with fellow civil servants and other relevant professionals, and, as much as possible, be open with the public

about one’s ambivalence and process. For civil servants, responsibly

dispensing duties to resist is not so much a matter of acting on private

judgment as it is thinking and acting together.

Other democratic countries face similar challenges as the United

States under Trump. Nationalist fervor dragged the United Kingdom

out of the European Union, destabilizing the lives of immigrants

there and emboldening forces of xenophobia. Poland’s Law and

Justice government has dismantled the liberal progresses made after

the fall of the Soviet Union, seeking to return the country to its past

Catholic glory. Extreme-right parties are in power or gaining popularity throughout Europe, from Hungary to France to Scandinavia,

252

253

P o s t s c R I P t

threatening the lives, livelihood, and freedom of immigrants and racial and religious minorities.

In all of these places, citizens are expected to obey the law. But

they are also bound to resist injustice and uphold just democratic

institutions, even, in some cases, if that means breaking the law.

Good citizens reflect on their political obligations, in community and

on the basis of reliable information. They value public inquiry and

speaking out, sometimes uncivilly, on behalf of mutual respect. They

take democracy as their responsibility.

253

254

25

notes

Introduction

1. Freedom Riders, directed by Stanley Nelson (Firelight, 2011), http:// www.pbs.

org/ wgbh/ americanexperience/ freedomriders/ watch. Emphasis is apparent in tone.

2. A satisfying account would show that the duty to obey the law applies to everyone, covers all laws, and binds citizens to their particular state. See, e.g.,

Richard Dagger and David Lefkowitz, “Political Obligation,” The Stanford

Encyclopedia of Philosophy, ed. Edward N. Zalta (Fall 2014), https:// plato.

stanford.edu/ archives/ fall2014/ entries/ political-obligation/ ; Wil iam A.

Edmundson, “State of the Art: The Duty to Obey the Law,” Legal Theory 10, 4

(2004): 215– 259. For a recent, qualified defense of the duty to obey the law, see Samuel Scheffler, “Membership and Political Obligation,” The Journal of Political Philosophy 26, 1 (2018), 3– 23. Scheffler prefaces his associativist argument for political obligation by recognizing that “[t] here may be no duty to obey a seriously unjust law, or the laws of an oppressive state, and even when the state and its laws are reasonably just, duties of obedience may sometimes be overridden

by other considerations, and there may be some people who lack any such duty.”

3. Henry D. Thoreau, “Resistance to Civil Government,” The Writings of Henry David Thoreau: Reform Papers, ed. Wendell Glick (Princeton, NJ: Princeton University Press, 1973), 63– 90.

4. Mohandas Ghandi, Young India, July 22, 1920.

5. Martin Luther King Jr., “Letter from Birmingham City Jail,” 1963.

6. Speech featured in I Am Not Your Negro, directed by Raoul Peck (Velvet Film, 2016).

255

256

n o t e s

7. Stéphane Hessel, Indignez-vous! (Montpel ier, France: Indigène editions, 2010). The English translation, Time for Outrage! , misses the imperative form of the French title— the exhortation to be outraged— and its second-personal

address ( vous).

8. See, e.g., http:// ccle.collectifs.net/ and http:// www.liguedh.be/ images/

PDF/ documentation/ documents_ thematiques/ delit-solidarite.pdf

(accessed August 20, 2016).

9. Adam Nossiter, “A French Underground Railroad, Moving African

Immigrants,” New York Times (October 4, 2016), http:// www.nytimes.com/

2016/ 10/ 05/ world/ europe/ france-italy- migrants-smuggling.html?_ r=0

(accessed March 21, 2017).

10. Lizzie Dearden, “Iranian Women Call on Western Tourists to Violate Hijab

Law to Fight against Oppression,” The Independent, April 22, 2016, http://

www.independent.co.uk/ news/ world/ middleeast/ iranian-women- in-my-

stealthy-freedom- campaign-call- on-western- tourists-to- violate-headscarf-

law-to- a6996136.html (accessed July 5, 2017). See #NoForcedHijab on Twitter and @StealthyFreedom on Facebook and Twitter.

11. The first YouTube video to go viral and inspire others was Manal al-Sharif’s, on May 19, 2011: https:// www.youtube.com/ watch?v=sowNSH_ W2r0

(accessed July 5, 2017). Al-Sharif recently published a memoir: Manal

al-Sharif, Daring to Drive: A Saudi Woman’s Awakening (New York: Simon

and Schuster, 2017).

12. Cited in Neil MacFarquhar and Robert Mackey, “Saudi Women Defy Driving

Ban,” New York Times (June 17, 2011), http:// thelede.blogs.nytimes.com/

2011/ 06/ 17/ saudi-women- protest-driving- ban (accessed August 20, 2016).

13. Edward Snowden and Laura Poitras, “‘Nation’ Exclusive: Edward Snowden

and Laura Poitras Take on America’s Runaway Surveil ance State,” The Nation

(May 7, 2014), https:// www.thenation.com/ article/ nation-exclusive-

edward-snowden- and-laura- poitras-take- americas-runaway- surveillance/

(accessed July 7, 2017).

14. Cited in Megan Garber, “The Revolutionary Aims of Black Lives Matter,”

The Atlantic (September 30, 2015), http:// www.theatlantic.com/ politics/

archive/ 2015/ 09/ Black-lives- matter-revolution/ 408160/ .

15. Emmeline Pankhurst to members of The Women’s Social and Political Union,

“Votes for Women” (January 10, 1913), http:// www.nationalarchives.gov.uk/

documents/ education/ suffragettes.pdf.

16. José Bové, Erri de Luca, and Gilles Luneau, Du sentiment de justice et du devoir de désobéir (Montpel ier, France: Indigène Editions, 2016).

17. See http:// www.faucheurs-volontaires.fr/ (accessed July 6, 2017).

18. Exceptions include Michael Walzer, Obligations: Essays on War, Disobedience, and Citizenship (Cambridge, MA: Harvard University Press, 1970); Carole

Pateman, The Problem of Political Obligation: A Critique of Liberal Theory

(Berkeley: University of California Press, 1985); Chaim Gans, Philosophical

256

257

n o t e s

Anarchism and Political Disobedience (Cambridge: Cambridge University

Press, 1992); Nancy Hirschmann, Rethinking Obligation: A Feminist Method

for Political Theory (Ithaca, NY: Cornell University Press, 1992); Kimberley Brownlee, Conscience and Conviction: The Case for Civil Disobedience

(Oxford: Oxford University Press, 2012); David Lyons, Confronting

Injustice: Moral History and Political Theory (Oxford: Oxford University Press, 2013); and Tommie Shelby, Dark Ghettos: Injustice, Dissent, and Reform (Cambridge, MA: Belknap Press of Harvard University Press, 2016).

19. See A. John Simmons, “The Duty to Obey and Our Natural Moral Duties,” in

Is There a Duty to Obey the Law? , eds. Christopher H. Wellman and A. John Simmons (Cambridge: Cambridge University Press, 2005), 191–193.

20. Gans, Philosophical Anarchism and Political Disobedience, 90.

21. Kit Wellman, who champions a Samaritan account of the duty to obey the

law, confirmed this in conversation. Ronald Dworkin revised his manuscript

of Justice for Hedgehogs to acknowledge the possibility that dignity in political association (the basis for his definitive account of the duty to obey the law)

could sometimes require civil disobedience and even revolution, rather than

legal compliance. See Ronald Dworkin, Justice for Hedgehogs (Cambridge,

MA: Harvard University Press, 2010), 322– 323, responding to Susanne

Sreedhar and Candice Delmas, “State Legitimacy and Political Obligation in

Justice for Hedgehogs: The Radical Potential of Dworkinian Dignity,” Boston University Law Review 90, 2 (2010): 737– 758.

22. See, e.g., Margaret Gilbert, A Theory of Political Obligation (Oxford: Oxford University Press, 2006); Philip Soper, The Ethics of Deference

(Cambridge: Cambridge University Press, 2002).

23. Joseph Raz, The Authority of Law: Essays on Law and Morality (Oxford: Oxford University Press, 1979), chaps. 12– 13; Wil iam E. Scheuerman,

“Whistleblowing as Civil Disobedience: The Case of Edward Snowden,”

Philosophy and Social Criticism, 40, 7 (2014): 609– 628.

24. Pateman, The Problem of Political Obligation; Hirschmann, Rethinking Obligation.

25. Carole Pateman, The Sexual Contract (Stanford, CA: Stanford University Press, 1988); Iris Marion Young, Justice and the Politics of Difference (Princeton, NJ: Princeton University Press, 1990); Lisa Schwartzman, Challenging Liberalism: Feminism as Political Critique (University Park: Penn State Press, 2006); Rae Langton, Sexual Solipsism: Philosophical Essays on Pornography and Objectification (New York: Oxford University Press, 2009).

26. Iris Marion Young, “Political Responsibility and Structural Injustice,” The

Lindley Lecture (University of Kansas, 2003), 3– 7.

27. Ibid.

28. Marilyn Frye, The Politics of Reality (Freedom, CA: Crossing Press, 1983), 4– 5.

29. Young, Justice and the Politics of Difference, 39– 65.

30. Shelby, Dark Ghettos, 22.

257

258

n o t e s

31. Haslanger, “Culture and Critique,” Proceedings of the Aristotelian Society, Supplementary Volume XCI (2017): 149– 173.

32. Leslie Green, The Authority of the State (Oxford: Oxford University Press, 1988); and Christopher H. Wellman, “Liberalism, Samaritanism, and Political

Legitimacy,” Philosophy and Public Affairs 25, 3 (1996): 211– 237.

33. A. John Simmons, Justification and Legitimacy: Essays on Rights and Obligations (Cambridge: Cambridge University Press, 2001), chap. 7.

34. Amartya Sen, The Idea of Justice (Cambridge, MA: Belknap Press of Harvard University Press, 2011), 2.

35. See Tom Ginsburg, Daniel Lansberg—

Rodriguez, and Mila Versteeg,

“When to Overthrow Your Government: The Right to Resist in the World’s

Constitutions,” UCLA Law Review 60 (2013): 1184– 1260.

36. Kurt Schock, Civil Resistance Today (New York: Polity, 2015), 2.

37. A notable exception is Jennet Kirkpatrick, Uncivil Disobedience: Studies in Violence and Democratic Politics (Princeton, NJ: Princeton University Press, 2008). But Kirkpatrick uses the term “uncivil disobedience” to designate violence and terrorism deployed in defense of democratic ideals. She studies

four instances of uncivil disobedience in American history, which she uses to

highlight the importance of the rule of law to limit popular sovereignty: the

contemporary militia movement ( chapter 1), frontier vigilantism ( chapter 2),

Southern lynch mobs ( chapter 3), and militant abolitionism ( chapter 4).

38. Note that experimental research has recently shown that commonsense morality in fact rejects the “ought implies can” principle, as most people formulate judgments about moral obligation independently of considerations about

ability. See Wesley Buckwalter and John Turri, “Inability and Obligation in

Moral Judgment,” PLoS ONE 10, 8 (2015): e0136589.

39. I thank Robin Celikates for pressing me on this issue.

40. Indeed as Wil iam Edmundson stresses, a moral requirement entails the permissibility of some enforcement measure, though the social enforcement of

morality is itself limited by moral constraints. See Wil iam A. Edmundson,

“Civility as Political Constraint,” Res Publica 8, 3 (2002): 217– 229.

Chapter 1

1. See, e.g., Linda Ford, “Alice Paul and the Politics of Nonviolent Protest,”

in Votes for Women: The Struggle for Suffrage Revisited, ed. Jean H. Baker (New York: Oxford University Press, 2002), 176; Daniel Schwartz, “Searching

for a New Sanctuary Movement,” Dissent Magazine (June 25, 2010); Tom

Watson, “Why #PussyRiot Is the Future of Civil Disobedience (and Not

Just in Putin’s Russia),” Forbes.com (August 17, 2012); Jennifer Welchman on ELF in “Is Ecosabotage Civil Disobedience?,” Philosophy & Geography

4, 1 (2001): 97– 107; Wil iam A. Scheuerman, “Whistleblowing as Civil

258

259

n o t e s

Disobedience: The Case of Edward Snowden,” Philosophy and Social Criticism

40, 7 (2014): 609– 628; Peter Ludlow, “Hacktivists on Trial,” The Nation

(December 4, 2013).

2. I thank Liam Murphy for pushing me to clarify the stakes of the conceptual

inquiry.

3. See, e.g., Patrick J. Buchanan, “Kim Davis and the Rise of Right-Wing Civil

Disobedience,” The American Conservative (September 11, 2015), http://

www.theamericanconservative.com/ buchanan/ kim-davis- and-the- rise-of-

conservative-civil- disobedience/ (accessed January 25, 2017).

4. Haslanger distinguishes three approaches to questions about “What is x?”

In the first, “conceptual” approach, we investigate our ordinary concept of x

using traditional a priori methods. In the second, “descriptive” or “natural—

istic” approach, we investigate x’s extension, i.e., what people refer to when

they use x. In the third, “ameliorative” or “analytic” approach, we inquire into

the purpose of having x and see if we can put the concept of x to good use in

a liberatory project. Sally Haslanger, Resisting Reality: Social Construction and Social Critique (Oxford: Oxford University Press, 2012), chap. 13.

5. Erin Pineda, The Awful Roar: Civil Disobedience in the Wake of the Civil Rights Movement (manuscript in progress), chap. 1.

6. John Rawls, A Theory of Justice, rev. ed. (Cambridge, MA: Harvard University Press, 1999), 320.

7. Brownlee notes this in Brownlee, “Civil Disobedience,” The Stanford

Encyclopedia of Philosophy, ed. Edward N. Zalta (Fall 2017 Edition), https://

plato.stanford.edu/ archives/ fall2017/ entries/ civil-disobedience/

8. David Lyons, “Moral Judgment, Historical Reality, and Civil Disobedience,”

Philosophy and Public Affairs 27, 1 (1998): 31– 49. My thinking in this chapter is very much indebted to David Lyons’s work.

9. It is worth noting that the Good Friday march is the only campaign in this

list that King organized, although he is often credited for these other iconic

campaigns. The Congress for Racial Equality (CORE) organized the Freedom

Rides and the Student Nonviolent Coordinating Committee (SNCC) organized most lunch counter sit-ins. This is part of the misrepresentation of

the Black freedom struggle detailed below. King’s most famous civil rights

campaign, the 1955– 1956 Birmingham Bus Boycott, did not involve any

lawbreaking.

10. Again, I am following: Lyons, “Moral Judgment, Historical Reality, and Civil Disobedience.”

11. Martin Luther King Jr., Testament of Hope: The Essential Writings and Speeches of Martin Luther King, Jr. , ed. James M. Washington (New York: HarperCol ins, 2003 [1986]), 47.

12. Ibid., 47, 360, 429.

13. See, e.g., Martha Nussbaum, Anger and Forgiveness: Resentment, Generosity, Justice (New York: Oxford University Press, 2016), chap. 7; and Brandon M.

259

260

n o t e s

Terry, “MLK Now,” in Fifty Years Since MLK, ed. Brandon M. Terry (Boston

Review Forum 5, 43.1, 2017).

14. King, Testament of Hope, 291. Rawls understands coercion as basically synon-ymous with use of force: coercion is what the state does, and has monopoly over. But if one defines coercion as the use of cost-levying tactics to exert

pressure, it can be compatible with civil disobedience.

15. King, Testament of Hope, 348.

16. I am grateful to Wil iam Smith for pointing me to Rawls’s comments that invite a more charitable (and perhaps radical) understanding of Rawls’s view on

this issue, and to Robert Jubb for illuminating the problematic implications of

Rawls’s narrow approach.

17. Rawls, Theory, 8.

18. John Rawls, “Legal Obligation and the Duty of Fair Play,” in John Rawls: Collected Papers, ed. Samuel Freeman (Cambridge, MA: Harvard University

Press, 2001), 117–129. Drawing from Rawls’s personal correspondence, Erin

Pineda provides further support that this was his belief and underscores how

mainstream this view was among philosophers (as among other privileged

White men). See Pineda, The Awful Roar.

19. Rawls, Theory, 310.

20. Rawls, Theory, 321– 322.

21. John Rawls, Justice as Fairness: A Restatement, ed. Erin Kelly (Cambridge, MA: Belknap Press of Harvard University Press, 2001), 128.

22. Social scientists refer to it as the “positive radical flank effect.” Radical flank effects can be negative too. See, e.g., Herbert H. Haines, “Radical Flank Effects,”

The Wiley-Blackwell Encyclopedia of Social and Political Movements (Blackwel , 2013); and Kurt Schock, Civil Resistance Today, chap. 1: esp. 27–29.

23. King, “Letter from Birmingham City Jail.”

24. Ta-Nehisi Coates, Between the World and Me (New York: Spiegel and Grau, 2015), 30– 32. Emphasis in text.

25. Ta-Nehisi Coates, “Nonviolence as Compliance,” The Atlantic (April 27, 2015), http:// www.theatlantic.com/ politics/ archive/ 2015/ 04/ nonviolence-

as-compliance/ 391640/ (accessed September 23, 2016).

26. Interview featured in The Black Power Mixtape 1967– 1975, directed by Göran Olsson (IFC Films, 2011).

27. Bernard Harcourt, “The Politics of Incivility,” Arizona Law Review 54, 2

(2012): 345– 373.

28. 388 U.S. 307 (1967). Austin Sarat, “Keeping Civility in Its Place: Dissent, Injustice, and the Lessons of History,” in Law, Society, and Community: Socio-Legal Essays in Honour of Roger Cotterrell, eds. Richard Nobes and David Schiff (New York: Routledge, 2016), 293– 308, 294.

29. Sarat, “Keeping Civility in Its Place,” 304.

30. Harcourt, “Politics of Incivility,” 348.

260

261

n o t e s

31. See, in particular, Miranda Fricker, Epistemic Injustice: Power and the Ethics of Knowing (Oxford: Oxford University Press, 2007).

32. Brownlee, Conscience and Conviction, chap. 1.

33. Brownlee, “Civil Disobedience”; Brownlee, “The Civil Disobedience of

Edward Snowden: A Reply to Wil iam Scheuerman,” Philosophy and Social

Criticism 42, 10 (2016): 965– 970.

34. His objection assumes, problematically in some ways, an equation between

conscientiousness and selflessness. See Robin Celikates, “Civil Disobedience

as Practice of Civic Freedom,” in On Global Citizenship James Tully in Dialogue, ed. David Owen (London: Bloomsbury Press, 2014), 207– 228.

35. Robin Celikates, “Democratizing Civil Disobedience,” Philosophy and Social Criticism 42, 10 (2016): 982– 994, esp. 985.

36. Robin Celikates, “La désobéissance civile: entre nonviolence et violence,” Rue Descartes 77, 1 (2013): 35– 51.

37. Brownlee, Conscience and Conviction; Celikates, “Democratizing Civil Disobedience.”

38. Brownlee, Conscience and Conviction, 20.

39. Robin Celikates and Daniel De Zeeuw, “Botnet Politics, Algorithmic

Resistance and Hacking Society,” Hacking Habitat (Rotterdam: nai010,

2016): 209– 217, 213. I examine some other arguments for conceiving of

DDoS actions and related hacktivist acts as electronic civil disobedience in “Is

Hacktivism the New Civil Disobedience?” Raisons Politiques 69, 1 (2018):

63–81.

40. Femen, “About Us,” Femen blog, http:// femen.org/ about-us (accessed December 10, 2016).

41. Mark Dery, “Culture Jamming: Hacking, Slashing and Sniping in the Empire

of Signs,” Open Magazine Pamphlet Series (Unknown, 1993).

42. Tony Mil igan discusses various more or less radical movements that refuse

to describe their methods as “civil disobedience” because of their deliberate departure from the standard conception. See Tony Mil igan, Civil

Disobedience: Protest, Justification and the Law (New York: Bloomsbury 2013).

43. Shelby, Dark Ghettos, 223.

44. Avia Pasternak, “Political Rioting: A Moral Assessment” (unpublished

manuscript)

45. See, e.g., Young, Justice and the Politics of Difference; Jean Harvey, Civilized Oppression (Lanham, MD: Rowman and Littlefield, 1999); Ann Cudd, Analyzing Oppression (Oxford: Oxford University Press, 2006); Carol Hay,

Kantian, Liberalism, and Feminism: Resisting Oppression (New York: Palgrave Macmil an, 2013).

46. See, e.g., Edward E. Baptist, The Half Has Never Been Told: Slavery and the Making of American Capitalism (New York: Basic Books, 2014).

47. See O.J. Simpson: Made in America, directed by Ezra Edelman (ESPN, 2016).

261

26

n o t e s

48. In case the retaliatory motive is not clear enough, “Operation: Avenge Assange”

was one of a series of DDoS attacks called “Operation: Payback.” See Gabriel a

Coleman, Hacker, Hoaxer, Whistleblower, Spy: The Many Faces of Anonymous

(London: Verso, 2014).

49. Shelby, Dark Ghettos, chap. 9.

50. See Jessica Bulman-Pozen and David Pozen, “Uncivil Obedience,” Columbia Law Review 115 (2015): 809– 872. For a critique of the category of “uncivil obedience,” see Daniel Markovits, “Civility, Rule-Following, and the Authority

of Law,” Columbia Law Review 116 (2016): 32– 43.

51. I take terrorism to lie at the outer edge of uncivil (as well as of principled) disobedience. Other categories of unlawful resistance besides principled disobedience include revolution and criminal disobedience (among others).

For instance, Shelby argues that criminal activity under conditions of material deprivation and institutional racism constitutes an intel igible response

to the ghetto plight— a kind of defiance that does not necessarily express

flawed character or disregard for the authority of morality. See Shelby, Dark Ghettos, chap. 7. On revolution in colonial contexts, see, e.g., Frantz Fanon, The Wretched of the Earth, trans. Richard Philcox (New York: Grove Press, 2004

[1963]). I thank Alex Gourevitch for drawing my attention to this space within

resistance and besides principled disobedience.

52. John Rawls, Political Liberalism (New York: Columbia University Press, 1993), 217. Linda Zeril i dubs the liberal conception of civility “the method of avoid—

ance”: I prefer to call it “decorum” to emphasize the way some of its demands

boil down to a matter of manners. See Linda M. G. Zeril i, “Against Civility: A

Feminist Perspective,” Civility, Legality, and Justice in America, ed. Austin Sarat (Cambridge: Cambridge University Press, 2014), 107– 131.

53. See, e.g., “Colin Kaepernick Branded a ‘Traitor’ by NFL Executives over

Anthem Protest,” The Guardian (August 31, 2016), https:// www.theguardian.

com/ sport/ 2016/ aug/ 31/ colin-kaepernick- traitor-national- anthem-protest-

nfl (accessed October 6, 2017).

Chapter 2

1. See Alex Gourevitch, “The Right to Strike: A Radical View” (unpublished

manuscript). Elizabeth Anderson’s work on the tyrannical aspects of many

workplaces is especially relevant here. See Elizabeth Anderson, Private

Government: How Employers Rule Our Lives (and Why We Don’t Talk about It)

(Princeton, NJ: Princeton University Press, 2017).

2. David Lefkowitz, “On a Moral Right to Civil Disobedience,” Ethics 117, 2

(2007): 202– 233.

262

263

n o t e s

3. See, e.g., Daniel Weinstock, “How Democratic Is Civil Disobedience?,”

Criminal Law and Philosophy 10, 4 (2016): 707– 720.

4. See, e.g., Carl Cohen, Civil Disobedience: Conscience, Tactics, and the Law (New York: Columbia University, 1971), chap. 6.

5. See Jeremy Waldron, The Dignity of Legislation (Cambridge: Cambridge University Press, 1999), 59–62.

6. Hannah Arendt, “Reflections on Civil Disobedience,” The New Yorker

(September 12, 1970), 70–105.

7. Ronald Dworkin, “On Not Prosecuting Civil Disobedience,” The New York

Review of Books (June 6, 1968).

8. Wil iam E. Scheuerman, “Recent Theories of Civil disobedience: An Anti—

Legalistic Turn?,” The Journal of Political Philosophy 23, 4 (2015): 427– 449, 431.

9. See Daniel Markovits, “Democratic Disobedience,” The Yale Law Review 114, 8 (2005): 1897– 1952; Celikates, “Civil Disobedience as Practice of Civic

Freedom”; Wil iam Smith, Civil Disobedience and Deliberative Democracy

(Abingdon, UK: Routledge, 2013), chap. 3.

10. Cornell Clayton, “Incivility Crisis of Politics Is Just a Symptom of Division,”

The Seattle Times (October 27, 2012), http:// old.seattletimes.com/ html/

opinion/ 2019534569_ cornellclaytonopedxml.html.

11. Erica Chenoweth and Maria Stephan, Why Civil Resistance Works: The Strategic Logic of Nonviolent Conflict (New York: Columbia University Press, 2011).

12. Erica Chenoweth, “Violence Will Only Hurt the Trump Resistance,”

New Republic (February 7, 2017); Erica Chenoweth and Kurt Schock,

“Do Contemporaneous Armed Challenges Affect the Outcomes of Mass

Nonviolent Campaigns?,” Mobilization: An International Quarterly 2, 4

(2015): 427– 451.

13. Chenoweth and Stephan, Why Civil Resistance Works, 42– 46.

14. Quoted in K. J. Kenafick’s 1950 “Foreword” to Mikhail Bakunin, Marxism, Freedom, and The State (Whitefish, MT: Kessinger, 2010), 4.

15. Sabl conceives of the piecewise-just society as the best way to understand Rawls’s “nearly just” society. Andrew Sabl, “Looking Forward to

Justice: Rawlsian Civil Disobedience and Its Non-Rawlsian Lessons,” The

Journal of Political Philosophy 9, 3 (2001): 307– 330, 311.

16. Ibid., 310.

17. Ibid. I freely substituted King’s civil rights movement to Sabl’s talk of American Blacks in general in my reconstruction of his argument, since many Black

activists in fact favored revolution.

18. Norman Geras, “Our Morals: The Ethics of Revolution,” The Socialist Register 25 (1989): 185– 211, 188.

19. Lisa Tessman, Burdened Virtues: Virtue Ethics for Liberatory Struggles (New York: Oxford University Press, 2005).

263

264

n o t e s

20. Aristotle, Nicomachean Ethics, Terence Irwin (trans.), second edition, Indianapolis, IN: Hackett Publishing, 1999.

21. Rawls, Theory of Justice, 5, and Political Liberalism (New York: Columbia University Press, 1993), xlix and 253.

22. Rawls, Theory of Justice, 337.

23. Pasternak, “Political Rioting.”

24. Susan Bickford, “Emotion Talk and Political Judgment,” Journal of Politics 73, 4

(2011): 1025– 1037, 1032.

25. See National Pol , July 2017, available at: http:// harvardharrispol .com/

(accessed September 5, 2017). For comparison, note that in a 1966 Gallup

survey, 63 percent of Americans gave Martin Luther King Jr. a negative rating.

26. I am grateful to Juliet Hooker for pushing this objection. Charles Mil s, “White Ignorance,” in Race and Epistemologies of Ignorance, eds. N. Tuana and S.

Sullivan (Albany: State University of New York Press, 2007), 21.

27. Amna A. Akbar, “On the Memory, Mechanics, and Imagination of Protest,”

(presentation at the APSA meeting, San Francisco, August 2017).

28. Lefkowitz, “On a Moral Right to Civil Disobedience.”

29. Smith, Civil Disobedience and Deliberative Democracy, 85.

30. Brownlee, Conscience and Conviction, chaps. 5– 6.

31. See Miranda Fricker, Epistemic Injustice: Power and the Ethics of Knowing (Oxford: Oxford University Press, 2007), 23– 29 (illustrating testimonial injustice with the trial of Tom Robinson, the Black defendant in Harper Lee’s To Kill a Mockingbird). In Fricker’s view, testimonial injustice occurs when prejudice causes a hearer to give a deflated level of credibility to a speaker’s word.

Chapter 3

1. The International Consortium of Investigative Journalists (ICCJ), The Panama Papers (April 3, 2016), https:// panamapapers.icij.org/ 20160403-panama-

papers-global- overview.html.

2. Le Monde, “ ‘Paradise Papers’: paradis fiscal, enfer démocratique” (November 10, 2017), http:// www.lemonde.fr/ evasion-fiscale/ article/ 2017/ 11/ 10/ paradise-

papers-l- egalite-devant- l-impot- pilier-essentiel- du-contrat- democratique_

5213081_ 4862750.html#u74WBQjMkzh91mJT.99.

3. Rawls, Theory of Justice, 308.

4. Jeremy Waldron, “Special Ties and Natural Duties,” Philosophy and Public

Affairs 22 (1993): 3– 30; Smith, Civil Disobedience and Deliberative Democracy, chap. 1; Thomas Christiano, The Constitution of Equality:Democratic Authority and Its Limits (Oxford: Oxford University Press, 2008); Anna Stilz, Liberal Loyalty: Freedom, Obligation, and the State (Princeton, NJ: Princeton University Press, 2009); Anna Stilz, “Why Does the State Matter Morally? Political

Obligation and Particularity,” in Varieties of Sovereignty and Citizenship, eds.

264

265

n o t e s

S. R. Ben-Porath and R. M. Smith (Philadelphia: University of Pennsylvania

Press, 2013), 244– 264; Daniel Viehoff, “Democratic Equality and Political

Authority,” Philosophy and Public Affairs 42, 4 (2014): 337– 375.

5. Stilz, “Why Does the State Matter Morally?,” 257.

6. Smith, Civil Disobedience and Deliberative Democracy, 29.

7. Ibid., chap. 2.

8. Ibid., 39– 41.

9. Ibid., 41– 43.

10. Obergefell v. Hodges, 135 S. Ct. 2071 (2015).

11. The Council of State, France’s highest administrative court soon struck down these municipal bans as unconstitutional, though they remained in effect

through the summer. See Conseil d’Etat statuant au contentieux, ordonnance

du 26 août 2016, Ligue des droits de l’homme et autres— association de

défense des droits de l’homme collectif contre l’islamophobie en France, Nos

402742, 402777.

12. One could make an indirect case against immigration policies by showing

that it violates the rights of citizens, for instance, when parents, children, and spouses are broken up by deportation orders. But the point is that immigration

policies involve serious wrongs even where they do not concern citizens.

13. See Serena Parekh, Refugees and the Ethics of Forced Displacement (New York: Routledge, 2016).

14. Smith, Civil Disobedience and Deliberative Democracy, 68– 70. This target of civil disobedience was previously conceptualized in Markovits, “Democratic

Disobedience.”

15. See Sheheryar T. Sardar and Benish A. Shah, “Social Media, Censorship, and

Control: Beyond SOPA, PIPA, and the Arab Spring,” University of Pennsylvania

Journal of Law and Social Change 15, 4 (2012): 577– 585. Available at http://

scholarship.law.upenn.edu/ jlasc/ vol15/ iss4/ 10.

16. Lawrence Lessig, Code and Other Laws of Cyberspace (New York: Basic Books, 1999).

17. Bernard Harcourt, Exposed: Desire and Disobedience in the Digital Age

(Cambridge, MA: Harvard University Press, 2015).

18. Ethan Zuckerman, “Intermediary Censorship,” in Access Controlled: The

Shaping of Power, Rights, and Rule in Cyberspace, eds. R. J. Deibert, J. G. Palfrey, R. Rohozinski, and J. Zittrain (Cambridge, MA: MIT Press, 2009), 71– 85.

19. Rebecca MacKinnon, Consent of the Networked: The Worldwide Struggle for Internet Freedom (New York: Basic Books, 2009).

20. U.S. v. Cruikshank (92 U.S. 542, 1875) is a case in point. The Cruikshank Court overturned the convictions of two White defendants in the 1873

Colfax massacre (around 105 Blacks were killed), and put an end to the Ku

Klux Klan prosecutions. Legal scholars have argued that this decision judicially constrained the Fourteenth Amendment’s equal protection principle

in a manner that has not been undone. See Charles Lane, The Day Freedom

265

26

n o t e s

Died: The Colfax Massacre, the Supreme Court, and the Betrayal of Reconstruction (New York: Henry Holt, 2008); Wil iam J. Stuntz, The Collapse of American

Criminal Justice (Cambridge, MA: Belknap Press of Harvard University

Press, 2011).

21. David Lyons, “The Legal Entrenchment of Illegality,” in The Legacy of H. L.

A. Hart: Legal, Political, and Moral Philosophy, eds. Matthew H. Kramer, Claire Grant, Ben Colburn, and Antony Hatzistavrou (Oxford: Oxford University

Press, 2008), 29– 43.

22. Bureau of Justice Statistics, Arrest-Related Deaths Program Redesign Study, 2015– 16: Preliminary Findings (December 15, 2016), NCJ 250112: https://  www.bjs.gov/ index.cfm?ty=pbdetail&iid=5864.

23. Mapping Police Violence, https:// mappingpoliceviolence.org/ aboutthedata/

(accessed November 21, 2017).

24. Graham v. Connor, 490 U.S. 386 (1989).

25. See, e.g., John Yoo, “Memorandum for Department of Defense Re: Application

of Treaties and Laws to al Qaeda and Taliban Detainees” (January 9, 2002).

Draft available at http:// nsarchive.gwu.edu/ NSAEBB/ NSAEBB127/

02.01.09.pdf.

26. Joseph Nye, “Corruption and Political Development: A Cost-Benefit Analysis,”

American Political Science Review 61, 2 (1967): 417– 427.

27. See Transparency International’s Corruption Perceptions Index at http://

www.transparency.org/ cpi2015.

28. Indeed I do not mean to champion transparency in all domains of government

and at all costs. For a nuanced, empirically informed discussion of the issues of secrecy, transparency, and democratic accountability, see Rahul Sagar, Secrets and Leaks: The Dilemma of State Secrecy (Princeton, NJ: Princeton University Press, 2013); and Michael P. Colaresi, Democracy Declassified: The Secrecy

Dilemma in National Security (Oxford: Oxford University Press, 2014).

29. Jon Swaine and Luke Harding, “Trump Commerce Secretary’s Business Links

with Putin Family Laid Out in Leaked Files,” The Guardian (November 5,

2017), https:// www.theguardian.com/ news/ 2017/ nov/ 05/ trump-commerce-

secretary-wilbur- ross-business- links-putin- family-paradise- papers (accessed November 24, 2017).

30. Liam Murphy, “The Case of Required Rescue: Beneficence, Law and Liberty,”

Georgetown Law Review (2001): 647.

31. Viehoff, “Democratic Equality and Political Authority.” The article first shows why common duty of justice-based arguments for the duty to obey democratically made law fail.

32. Ibid., 352– 359.

33. He proposes the following test: “To determine whether disobedience is justifiable, we must, in the first instance, ask not how disobeying in any particular instance will advance justice, but rather whether a general moral rule of

266

267

n o t e s

disobeying under certain circumstances will advance justice sufficiently to

make up for the threat this poses to relational equality.” Ibid., 374.

34. Ibid. 352.

35. See, e.g., Eli Pariser, The Filter Bubble: What the Internet Is Hiding from You (New York: Penguin, 2011); and Jessica Clark and Tracy Van Slyke, Beyond

the Echo Chamber: Reshaping Politics through Networked Progressive Media

(New York: The New Press, 2010).

36. Wikipedia contributors, “Protests against SOPA and PIPA,” Wikipedia, The Free Encyclopedia,https:// en.wikipedia.org/ w/ index.php?title=Protests_

against_ SOPA_ and_ PIPA&oldid=760306719 (accessed February 12, 2017).

37. Robin Celikates, “Digital Publics, Digital Contestations,” in Transformations of Democracy, eds. R. Celikates, R. Kreide, and T. Wesche (Lanham,

MD: Rowman and Littlefield, 2015), chap. 8.

38. As a caveat, note that Swartz’s lawyers, MIT itself, and prominent intellectuals like Lawrence Lessig, have argued that Swartz did not in fact violate any law. See, e.g., Lawrence Lessig, “Aaron’s Laws— Law and Justice in a Digital Age,” public

talk (2013), available at http:// www.youtube.com/ watch?v=9HAw1i4gOU4.

39. Jose Antonio Vargas, “My Life as an Undocumented Immigrant,” New York

Times online (June 22, 2011), http:// www.nytimes.com/ 2011/ 06/ 26/ mag-

azine/ my-life- as-an- undocumented-immigrant.html?ref=magazine. A version of this article appeared in print in the Sunday Times Magazine on June 26, 2011.

40. See, e.g., Carmen Fishwick, “Why We Wear the Burkini: Five Women on

Dressing Modestly at the Beach,” The Guardian (August 31, 2016); Margaux

Mazel ier, “Interdiction du burkini: paroles de musulmanes” RFI (August

19, 2016, last modified August 24, 2016); Asma Fares, “Touche pas à

mon burkini!” (August 5, 2016), available at https:// www.youtube.com/

watch?v=lpjSZJDY8Pw (accessed February 13, 2017).

41. See economic effects on small businesses, including LGBTQ shops, in

Asheville, North Carolina: https:// www.washingtonpost.com/ lifestyle/ style/

how-north- carolinas-idyllic- hipster-haven- is-being- hurt-by- the-bathroom-

bil - boycott/ 2016/ 06/ 28/ 28fc707a-33d4- 11e6-8758- d58e76e11b12_ story.

html.

42. On the movement, see Susan Bibler Coutin, The Culture of Protest: Religious Activism and the U.S. Sanctuary Movement (Boulder, CO: Westview

Press, 1993).

43. See especially Arizona SB 1070 (2010) and Alabama’s HB 56 (AL Act 2011—

535). The Department of Justice and a coalition of groups including the

American Civil Liberties Union filed successful legal challenges to the most

pernicious provisions of these laws, such as the criminalization of assisting,

caring for, or renting to undocumented people. However, the laws have

remained on the books, with key provisions still in effect. For instance, the

“Papers, Please” provision makes it a crime to fail to carry registration papers

267

268

n o t e s

and compels officers to question the immigration status of, and arrest without

a warrant, those they suspect are in the country illegally. HB 56 even includes

a provision empowering citizens to sue individual officers shirking their enforcement duties.

44. Javier Hidalgo, who has recently propounded an argument of this form, though without appealing to the duty of justice, greatly influenced my thinking here.

Javier S. Hidalgo, “The Duty to Disobey Immigration Law,” Moral Philosophy

& Politics 3, 2 (2016): 165– 186.

45. See Prentice Earl Sanders and Ben Cohen, The Zebra Murders: A Season

of Killing, Racial Madness and Civil Rights (New York: Arcade Publishing, 2011).

46. On the movement, see Lance Hil , The Deacons for Defense: Armed Resistance and the Civil Rights Movement (Chapel Hil : University of North Carolina

Press, 2006).

47. Malcolm X, “The Ballot or the Bullet,” speech delivered on April 3, 1964, at Cory Methodist Church in Cleveland, Ohio. Part of Malcolm X’s point here is

also to defend Blacks’ access to guns under the Second Amendment of the U.S.

Constitution.

48. One participant boasted on an internet relay chat, “We have probably done

some mil ion pound of dmg (damage) to mc (MasterCard).” PayPal alleged

that the attack cost the company £3.5 mil ion. The Ministry of Sound estimated

the cost of the attack on the four sites they operate that were targeted as being £9,000, while the IFPI’s costs were more than £20,000 and the BPI’s more than

£4,000. MasterCard and Visa did not disclose the financial impact. Lauren

Turner, “Anonymous Hackers Jailed for DDoS Attacks on Visa, MasterCard,

and Paypal,” The Independent (January 24, 2013), http:// www.independent.

co.uk/ news/ uk/ crime/ anonymous-hackers- jailed-for- ddos-attacks- on-visa-

mastercard-and- paypal-8465791.html.

49. I articulate an account of the presumptive wrongfulness of government

whistleblowing and the conditions under which it can be justified in: Candice

Delmas, “The Ethics of Government Whistleblowing,” Social Theory and

Practice 41, 1 (2015): 77– 105.

50. Hil ary Clinton, among many other politicians and pundits, suggested

Snowden was disloyal. See https:// www.theatlantic.com/ politics/ archive/

2014/ 04/ hil ary-clinton- edward-snowdens- leaks-helped- terrorists/ 455586/ .

American investigative journalist Edward Jay Epstein lays out the case that

Snowden was a spy for Russia in his How America Lost Its Secrets: Edward

Snowden, the Man and the Theft (New York: Alfred A. Knopf, 2017).

51. In fact, Buchanan even shows that promoting the cause of justice does not require giving priority to domestic law. Allen Buchanan, Justice, Legitimacy, and Self-Determination: Moral Foundations for International Law (Oxford: Oxford University Press, 2004), 85– 98.

268

269

n o t e s

52. See, e.g., Kevin Davis and Stephen Choi, “Foreign Affairs and Enforcement

of the Foreign Corrupt Practices Act,” Journal of Empirical Legal Studies 11, 3

(2014) 409– 445

53. Jeremy Waldron, in conversation with Kevin Davis, New York University

Colloquium in Social, Legal, and Political Philosophy, October 8, 2016.

Chapter 4

1. H. L. A. Hart, “Are There Any Natural Rights?,” Philosophical Review 64, 2 (1955): 175– 191; George Klosko, The Principle of Fairness and Political

Obligation (Lanham, MD: Rowman and Littlefield, 1992); and John Rawls,

“Legal Obligation and the Duty of Fair Play,” in John Rawls: Collected Papers, ed. Samuel Freeman (Cambridge, MA: Harvard University Press, 2001): 117– 129. The fair play defense of political obligations also appears in Garrett Cullity, “Moral Free Riding,” Philosophy and Public Affairs 24, 1 (1995): 3– 34; Richard Dagger, “Membership, Fair Play and Political Obligation,” Political Studies 48, 1 (2000): 104– 117; Norman Davis, “Nozick’s Argument for the Legitimacy

of the Welfare State,” Ethics 97, 3 (1987): 576– 594; David Lefkowitz, “The Nature of Fairness and Political Obligation: A Response to Carr,” Social Theory and Practice 30, 1 (2004): 1– 31; and Massimo Renzo, “Fairness, Self-Deception and Political Obligation,” Philosophical Studies 169, 3 (2013): 467– 488.

2. Young, Justice and the Politics of Difference, 49.

3. For an analysis of these dual facets, see G. A. Cohen, “The Structure of

Proletarian Unfreedom,” Philosophy and Public Affairs 12, 1 (1983): 3– 33.

4. Ann E. Cudd, “Wanting Freedom,” Journal of Social Philosophy 43, 4

(2012): 367– 385.

5. Robert Dahl, Polyarchy (New Haven, CT: Yale University Press, 1971), 28– 29, 93– 94.

6. Cullity, “Moral Free Riding,” 28.

7. Ibid., 22.

8. See, e.g., Marc Fleurbaey, “The Facets of Exploitation,” Journal of Theoretical Politics 26, 4 (2014): 653– 676.

9. Robert Mayer, “What’s Wrong with Exploitation?,” Journal of Applied

Philosophy 24, 2 (2007): 137– 150.

10. Avia Pasternak, “Voluntary Benefits from Wrongdoing,” Journal of Applied Philosophy 31, 4 (2014): 377– 391, 379.

11. Axel Gosseries characterizes beneficiaries of wrongdoing as “morally objectionable free riders”: they enjoy the fruits of an activity that imposed costs

on others, without themselves sharing in these costs. See Axel Gosseries,

“Historical Emissions,” Ethical Perspectives 11, 1 (2004): 36– 60, 43. I think it is more apt to characterize beneficiaries of injustice as morally analogous 269

270

n o t e s

to free-riders, than as free-riders simpliciter, though nothing hinges on the distinction.

12. Simone de Beauvoir, The Second Sex, trans. H. M. Parshley (New York: Random House, [1952] 1972), xxx.

13. See, e.g., Mab Segrest, Memoir of a Race Traitor (Cambridge, MA: South End Press, 1999).

14. King, “Letter.”

15. See Isabel Wilkerson, The Warmth of Other Suns (New York: Random House, 2010); and James N. Gregory, The Southern Diaspora: How the Great Migrations

of Black and White Southerners Transformed America (Chapel Hil : University of North Carolina Press, 2005). Whites’ motives for emigrating were mainly

economic and not related to the injustice of Jim Crow.

16. See John Locke, Second Treatise of Government, ed. C. B. Macpherson

(Indianapolis, IN: Hackett, 1980 [1690]), § 119; David Hume, “Of the

Original Contract,” in Essays: Moral Political, and Literary, Vol. 1, ed. E. F.

Miller (Indianapolis, IN: Liberty Classics: 1985 [1752]), 443– 460.

17. Robert Goodin, “Disgorging the Fruits of Historical Wrongdoing,” American Political Science Review 107, 3 (2013): 478– 491.

18. See Karl Marx and Friederich Engels, “Manifesto of the Communist Party,”

in The Marx-Engels Reader, ed. Robert C. Tucker (New York: W. W. Norton, 1978 [1848]), 473– 500. For a recent, liberal version of this argument, see

Liam D. Murphy and Thomas Nagel, The Myth of Ownership: Taxes and Justice

(New York: Oxford University Press, 2002).

19. Thomas Hill Jr., “The Message of Affirmative Action,” Social Philosophy and Policy 8, 2 (1991): 108– 129.

20. Ibid., 108.

21. See Jean Harvey, “Victims, Resistance, and Civilized Oppression,” Journal of Social Philosophy 41, 1 (2010): 13– 27, 15– 16.

22. See especially Chenoweth and Stephan, Why Civil Resistance Works; Daniel Q. Gil ion. The Political Power of Protest: Minority Activism and Shifts in Public Policy (Cambridge: Cambridge University Press, 2013).

23. Alex Gourevitch, “Strikes, Force, and Resistance to Oppression”

(unpublished ms.).

24. Avery Kolers, “The Priority of Solidarity to Justice,” Journal of Applied Philosophy 31, 4 (2014): 420– 433, 426– 427.

25. Mia McKenzie, “8 Ways Not to Be an ‘Ally’: A Non-Comprehensive List,”

BGD blog (June 17, 2013), http:// www.Blackgirldangerous.org/ 2013/ 06/

20136178-ways- not-to- be-an- ally/ (accessed January 15, 2017).

26. Kolers, “The Priority of Solidarity to Justice,” 429.

27. These estimates are from the Tuskegee Institute and err on the conservative

side. See “1959 Tuskegee Institute Lynch Report,” Montgomery Advertiser

(April 26, 1959).

270

271

n o t e s

Chapter 5

1. https:// www.facebook.com/ events/ 1640071269598406 (accessed December 5, 2017).

2. See, e.g., Human Rights Watch Report, “Everyone Blames Me”: Barriers to

Justice and Support Services for Sexual Assault Survivors in India (November 8, 2017), available at https:// www.hrw.org/ report/ 2017/ 11/ 08/ everyone-

blames-me/ barriers-justice- and-support- services-sexual- assault-survivors

(accessed December 5, 2017).

3. BuzzFeed, https:// www.buzzfeed.com/ andreborges/ hundreds-of- women-

around-india- are-sleeping- in-parks- to-recl?utm_ term=.tgLdRgXdr#.

tf1B1l4BL (accessed December 5, 2017).

4. We can distinguish two Samaritan duties: the duty to rescue and the duty to

aid people in dire need. The distinction is a matter of degree: it is the difference between being caught in a house on fire and being left without a home after the

fire has been put down. I refer to the Samaritan duty throughout the chapter.

5. For the issue of legal enforcement, which I will not address, see Ernest J. Weinrib, “The Case for a Duty of Rescue,” The Yale Law Journal 90, 2 (1980): 247– 293; Robert J. Lipkin, “Beyond Good Samaritans and Moral Monsters: An

Individualistic Justification of the General Legal Duty to Rescue,” UCLA Law

Review 31 (1983): 252– 290; Liam Murphy, “Beneficence, Law, and Liberty: The Case of Required Rescue,” Georgetown Law Journal 89, 3 (2001): 605– 665.

6. Joel Feinberg, Harm to Others (New York: Oxford University Press, 1984), 171.

7. Peter Unger, Living High and Letting Die: Our Illusion of Innocence

(Oxford: Oxford University Press, 1996), chap. 2. Feinberg thinks that, cast as

a duty of beneficence, the case for the legal enforcement of the duty of rescue

would be harder to make. Murphy shows that this assumption is misguided.

See Murphy, “Beneficence, Law, and Liberty.” I do not need to take a side

in the debate, since I do not defend the enforceability of Samaritan political

obligations in the face of injustice.

8. This basic account synthesizes the following sources: Maimonides, Mishneh torah— The book of torts, ed. H. Klein (New Haven, CT: Yale University Press, 1954 [1180]), 1:14; Luke 10:30– 37; Christopher Heath Wellman and A.

John Simmons, eds., Is There a Duty to Obey the Law? Joel Feinberg, “Offense to Others: The Moral Limits of the Criminal Law,” Philosophical Review 98, 2 (1989): 239– 242; Cécile Fabre, “Mandatory Rescue Kil ings,” Journal of

Political Philosophy 15, 4 (2007): 363– 384.

9. Cécile Fabre, “Good Samaritanism: A Matter of Justice,” Critical Review of International Social and Political Philosophy 5, 4 (2002): 128– 144.

10. See Christopher H. Wellman, “Liberalism, Samaritanism, and Political

Legitimacy,” Philosophy and Public Affairs 25, 3 (1996): 211– 237; “Toward a Liberal Theory of Political Obligation,” Ethics 111, 4 (2001): 735– 759; 271

27

n o t e s

Christopher H. Wellman, “Samaritanism and the Duty to Obey the Law,”

in Is There a Duty to Obey the Law? , 3– 90. Other champions include Dudley Knowles, “Good Samaritans and Good Government,” Proceedings of the

Aristotelian Society 112, 2 (2012): 161– 178.

11. Wellman, Is There a Duty to Obey the Law? , 19, emphases in the original.

Wellman denies the paternalistic claim that the state is justified in coercing its constituents because it ultimately benefits each of them.

12. Ibid., 33.

13. Ibid., 86.

14. The defense is recognized in the United States as part of common law and most states’ statutory law. For an overview of the necessity defense, see, e.g., Laurie Levenson, “Criminal Law: The Necessity Defense,” National Law Journal

(1999). For a discussion of the rationales behind the necessity defense, see

Brownlee, Conscience and Conviction, 181– 184.

15. Douglass adds that the law “bribes the judge who tries them,” since judges

would get $10 for every victim they consigned to slavery and $5 for those

they set free. Frederick Douglass, “What to the Slave Is the Fourth of July?,”

in Frederick Douglass: Selected Speeches and Writings, ed. Philip S. Foner (Chicago: Lawrence Hil , 1999), 188– 206.

16. Groupe d’Information et de soutien des immigré·e·s, “Si la solidarité devient un délit, nous demandons à être poursuivis pour ce délit!, ” http:// www.gisti.

org/ spip.php?article1404 (accessed November 20, 2016).

17. Michelle Alexander has famously dubbed it the “new Jim Crow.” She

attributes increased incarceration rates, and its adverse impact on Black

and Brown people, to the failed War on Drugs, draconian sentencing laws,

racist profiling, and increasing reliance on private prisons. See Michelle

Alexander, The New Jim Crow: Mass Incarceration in the Age of Color Blindness (New York: The New Press, 2010). Theorists have recently pushed back

against Alexander’s account. According to Marie Gottschalk, drug laws and

law enforcement practices by themselves are insufficient to explain mass

incarceration, since drug offenders comprise only 20 percent of offenders

in state prisons, while violent offenders comprise about half. See Marie

Gottschalk, Caught: The Prison State and the Lockdown of American Politics

(Princeton, NJ: Princeton University Press, 2015). According to John Pfaff,

the single most important factor that explains mass incarceration is the

major shift in prosecutor behavior that occurred in the mid-1990s, when

prosecutors began bringing felony charges against arrestees about twice

as often as they had before. See John Pfaff, Locked In: The True Causes of

Mass Incarceration— and How to Achieve Real Reform (New York: Basic

Books, 2017).

18. Peter Wagner and Bernadette Rabuy, “Mass Incarceration: The Whole Pie

2017,” Prison Policy Initiative, March 14, 2017, https:// www.prisonpolicy.

org/ reports/ pie2017.html (accessed September 14, 2017).

272

273

n o t e s

19. Brown v. Plata 131 S. Ct. 1910 (2011). See also Wil iam J. Newman and Charles L. Scott, “Brown v. Plata: Prison Overcrowding in California,” Journal of the American Academy of Psychiatry and the Law 40, 4 (2012): 547– 552.

20. See David Kaiser and Lovisa Stannow, “Prison Rape and the Government,”

The New York Review of Books (March 24, 2011).

21. See Bruce Arrigo and Jennifer Bullock, “The Psychological Effects of

Confinement on Prisoners in Supermax Units: Reviewing What We Know

and Recommending What Should Change,” International Journal of Offender

Therapy and Comparative Criminology 52, 6 (2008): 622– 640.

22. Geoffrey Canada, Fist Stick Knife Gun: A Personal History of Violence

(Boston: Beacon Press, 1995); Coates, Between the World and Me; see also Carolyn E. Cutrona, Gail Wallace, and Kristin A. Wesner, “Neighborhood

Characteristics and Depression: An Examination of Stress Processes,” Current

Directions in Psychological Science 15, 4 (2006): 188– 192.

23. See Kimberlé Wil iams Crenshaw and Andrea J. Ritchie, “Say Her Name:

Resisting Police Brutality against Black Women” (July 2015). An interactive website, Mapping Police Violence, displays the photographs, stories, and

legal disposition of the Black people killed by police since 2015: https://

mappingpoliceviolence.org/ . Another site, The Counted, maintained by The Guardian, counts the number of people killed by police and other law enforcement agencies in the United States throughout 2015 and 2016, monitors their demographics, and tel s the stories of how they died. See https:// www.

theguardian.com/ us-news/ ng-interactive/ 2015/ jun/ 01/ the-counted- police-

kil ings-us- database (last accessed February 14, 2017).

24. Report of the U.S. Department of Justice Civil Rights Division, “Investigation of the Baltimore City Police Department” (August 10, 2016), available at

https:// www.justice.gov/ opa/ file/ 883366/ download.

25. This is a conservative estimate, cited in https:// www.rainn.org/ statistics/

scope-problem. Others find that a rape occurs every two minutes: http://

www.wcsap.org/ how-often- does-it- happen.

26. See http:// www.whitehouse.gov/ the-press- office/ remarks-president- signing-

tribal-law- and-order- act.

27. That figure is probably underestimated given the low rates of report. See

Amnesty International’s report “Maze of Injustice: The Failure to Protect

Indigenous Women from Violence,” available at http:// www.amnesty.org/

en/ library/ asset/ AMR51/ 035/ 2007/ en/ ce2336a3-d3ad- 11dd-a329-

2f46302a8cc6/ amr510352007en.html.

28. See, e.g., Tuesday Reitano, Laura Adal, and Mark Shaw, “Smuggled Futures: The Dangerous Path of the Migrant from Africa to Europe,” The Global Initiative

Against Transnational Organized Crime, Geneva, last modified May 7, 2014,

http:// globalinitiative.net/ smuggled-futures/ (accessed June 22, 2016).

29. See, e.g., Paul Dourgnon and Kassene Kassar,“Refugees In and Out of North

Africa: A Study of the Choucha Refugee Camp in Tunisia,” European Journal

273

274

n o t e s

of Public Health 24, Supplement 1 (2014): 6– 10; Thomas M. Crea, Rocio

Calvo, and Maryanne Loughry, “Refugee Health and Wel being: Differences

between Urban and Camp-Based Environments in Sub-Saharan Africa,”

Journal of Refugee Studies 28, 3 (2015): 319–330. See also Phoebe Weston,

“Inside Zaatari Refugee Camp: The Fourth Largest City in Jordan,” The

Telegraph (August 5, 2015), http:// www.telegraph.co.uk/ news/ worldnews/

middleeast/ jordan/ 11782770/ What-is- life-like- inside-the- largest-Syrian- ref-

ugee-camp- Zaatari-in- Jordan.html (accessed January 5, 2017); and Abu Amar, “Our Life in the Zaatari Refugee Camp: No Electricity, No Space to Sleep,

No Escape,” The Guardian (September 14, 2015), https:// www.theguardian.

com/ commentisfree/ 2015/ sep/ 14/ life-refugee- camp-syrian- family-jordan-

escape (accessed January 5, 2017).

30. See, e.g., Amnesty International’s reports on Uganda: https:// www.am-

nesty.org/ en/ latest/ news/ 2016/ 08/ uganda-minister- remarks-against- lgbti-

people-amount- to-advocacy- of-hatred/ , and Jamaica: https:// www.amnesty.

org/ en/ countries/ americas/ jamaica/ report-jamaica/ (accessed December 15, 2016).

31. Kidnapping statistics are unreliable, with an estimated 80 percent of cases never officially reported, due to police corruption. However, it is estimated

that, in absolute numbers, Mexico has been the world’s kidnapping capital since

2005, followed closely by Nigeria and Colombia. See Simeon Tegel, “Wealthy

Mexicans Turn to Tracking Devices as Kidnap Rate Soars,” The Independent

(August 22, 2011), http:// www.independent.co.uk/ news/ world/ americas/

wealthy-mexicans- turn-to- tracking-devices- as-kidnap- rate-soars- 2342174.

html (accessed November 1, 2016). One may object to my characterization that their vulnerability results from an unjust war on drugs, and so that they are in fact in persistent Samaritan peril.

32. See, e.g., http:// www.interventionanddeescalation.com/ resources.html;

https:// watt.cashmusic.org/ writing/ deescalation; and Alyssa Hernandez, “Bystander Intervention,” online video, https:// www.youtube.com/ channel/

UC69feU1j6NL5eTXyxRV0v8w (accessed February 5, 2017).

33. Feinberg, Harm to Others, 171.

34. Charles Mil s, The Racial Contract (Ithaca, NY: Cornell University Press, 1997).

35. Elizabeth Anderson, The Imperative of Integration (Princeton, NJ: Princeton University Press, 2010).

36. Simmons, “The Duty to Obey and Our Natural Moral Duties,” 184.

37. Peter Singer, “Famine, Affluence, and Morality,” Philosophy & Public Affairs 1, 1 (1972): 229– 243.

38. Equal Justice Initiative, “Lynching in America: Confronting the Legacy

of Racial Terror,” 2nd ed., (2015), http:// eji.org/ sites/ default/ files/

lynching-in- america-second- edition-summary.pdf (accessed November 15, 2016).

274

275

n o t e s

39. See http:// www.alslegal.org and http:// www.indianlaw.org.

40. See Amnesty, “Maze of Injustice.”

41. Louise Erdrich, The Round House (New York: HarperCol ins, 2012).

42. See http:// www.whitehouse.gov/ the-press- office/ remarks-president- signing-

tribal-law- and-order- act.

43. For a discussion of the negative and dehumanizing stereotypes of Native

Americans in general, and indigenous women in particular, see Amnesty,

“Maze of Injustice.”

44. Peter A. Leavitt, Rebecca Covarrubias, Yvonne A. Perez, and Stephanie

A. Fryberg, “‘Frozen in Time’: The Impact of Native American Media

Representations on Identity and Self-Understanding,” Journal of Social Issues 71, 1 (2015): 39– 53.

45. See Human Rights Watch Report, “Everyone Blames Me.”

46. See Lolly Bowean, “Protesters Chain Themselves Together in Front of Chicago

Police Station,” Chicago Tribune (July 21, 2016): http:// www.chicagotribune.

com/ news/ local/ breaking/ ct-Black- lives-matter- march-lawndale- police-

strategies-20160720- story.html (accessed February 15, 2017).

47. See, e.g., United States v. Hill, 893 F Supp 1044, 1048 (ND Fla 1994), Zal v. Steppe, 968 F2d 924, 929 (9th Cir. 1992), and Northeast Women’s Center v. McMonagle, 868 F2d 1342, 1350– 52 (3d Cir. 1989). Courts generally emphasize the legal alternatives available to abortion protesters. 971 F.2d 193

(9th Cir.) cert. denied, 112 S. Ct. 2980 (1992).

48. See Jennifer Jefferis, Armed for Life: The Army of God and Anti-Abortion Terror in the United States (Westport, CT: Praeger, 2011).

49. Judith Jarvis Thomson, “A Defense of Abortion,” Philosophy and Public Affairs 1, 1 (1971): 47– 66.

50. Knowles, “Good Samaritans and Good Government.”

51. See “Lives in Peril: How Ineffective Inspections Make ICE Complicit in

Detention Center Abuse,” Immigration Detention Transparency and Human Rights

Project, http:// immigrantjustice.org/ lives-peril- how-ineffective- inspections-

make-ice- complicit-detention- center-abuse- 0 Proceedings of the Aristotelian Society 112, 2 (2012): 161– 178. (accessed September 25, 2016).

52. Ibid.; Sibyl a Brodzinsky and Ed Pilkington, “US Government Deporting

Central American Migrants to Their Deaths,” The Guardian (October 12,

2015),

https:// www.theguardian.com/ us-news/ 2015/ oct/ 12/ obama-

immigration-deportations- central-america (accessed September 18, 2017); and Amnesty International, “Home Sweet Home? Honduras, Guatemala, and El Salvador’s Role in a Deepening Refugee Crisis” (2016), https:// www.

amnestyusa.org/ files/ central_ american_ refugees_ - report eng_ 1-min.pdf

(accessed September 18, 2017).

53. Colson Whitehead, The Underground Railroad (New York: Random House, 2016).

275

276

n o t e s

54. Samuel P. Oliner and Pearl M. Oliner, The Altruistic Personality: Rescuers of Jews in Nazi Europe (New York: Macmil an, 1988).

55. See Julia Nefsky, “How You Can Help, without Making a Difference,”

Philosophical Studies 174, 11 (2016): 2743– 2767.

56. Simmons, “The Duty to Obey and Our Natural Moral Duties,” 184.

57. Knowles, “Good Samaritans and Good Government,” 168.

58. Fabre, “Good Samaritanism: A Matter of Justice.”

59. Deborah Small and George Loewenstein, “Helping a Victim or Helping the Victim: Altruism and Identifiability,” Journal of Risk and Uncertainty 26, 1

(2003): 5– 16.

60. See, e.g., Norman Daniels, “Reasonable Disagreement about Identified vs.

Statistical Victims,” Hastings Center Report 42 (2012): 35– 45.

61. See, e.g., Jan Narveson, “Intentional Behavior and Social Science,” Journal for the Theory of Social Behavior 6 (1976): 267– 270; John Broome, Ethics Out of Economics (Cambridge: Cambridge University Press, 1999).

62. Caspar Hare, “Voices from Another World: Must We Respect the Interests

of People Who Do Not, and Will Never, Exist?,” Ethics 117, 3 (2007):

498– 523.

63. Caspar Hare, “Obligations to Merely Statistical People,” Journal of Philosophy 109, 5/ 6 (2012): 378– 390, p. 379.

64. See Hasan Suroor, “From ‘incredible India’ to ‘area of darkness’,” The Hindu (January 12, 2013), http:// www.thehindu.com/ todays-paper/ tp-opinion/ from-

incredible-india- to-area- of-darkness/ article4300421.ece Amrit Wilson, “India’s anti-rape movement: redefining solidarity outside the colonial frame” Open Democracy (April 8, 2013), https://www.opendemocracy.net/5050/amrit—

wilson/ indias-anti- rape-movement- redefining-solidarity- outside-colonial- frame

Chapter 6

1. Hunger, directed by Steve McQueen (Film4, 2008).

2. Margaret Gilbert, “Group Membership and Political obligation,” Monist 76, 1

(1993): 119– 131, 128.

3. Andrew Mason, “Special Obligations to Compatriots,” Ethics 107, 3 (1997): 427– 447.

4. See Thomas McPherson, Political Obligation (London: Routledge and Kegan Paul, 1967); Hans Kelsen, “Why Should the Law Be Obeyed?,” in What is

Justice? (Berkeley and Los Angeles: University of California Press, 1960), 262; Hanna Pitkin, “Obligation and Consent— I,” American Political Science Review

59 (1965): 990– 999, esp. 990– 991; Margaret Macdonald, “The Language

of Political Theory,” in Logic and Language, ed. A. G. N. Flew (Garden City, NY: Doubleday, 1965). For a brief and illuminating discussion of the institutional model, see Richard Dagger, “What Is Political Obligation?,” American

276

27

n o t e s

Political Science Review 71, 1 (1977): 86– 94, esp. 86, 90– 92. The most prominent contemporary champion of such accounts is Margaret Gilbert, On Social Facts (Princeton, NJ: Princeton University Press, 1992 [1989]). Gilbert calls hers a conceptual account of “analytical membership.”

5. See, e.g., Alasdair MacIntyre, After Virtue, 2d ed. (Notre Dame: University of Notre Dame Press, 1984); Yael Tamir, Liberal Nationalism (Princeton,

NJ: Princeton University Press, 1993).

6. See, e.g., John Horton, “In Defense of Associative Political Obligations. Part Two,” Political Studies 55 (2007): 1– 19; William Kymlicka, Multicultural Citizenship (Oxford: Oxford University Press, 1995); Michael Walzer,

Spheres of Justice: A Defense of Pluralism and Equality (New York: Basic Books, 1983).

7. Dworkin, Justice for Hedgehogs, 204.

8. Ibid., 321– 322.

9. Ibid.

10. See Avishai Margalit, The Decent Society, trans. N. Goldblum (Cambridge, MA: Harvard University Press, 1996).

11. See Martha Nussbaum, “Objectification,” Philosophy and Public Affairs 24

(1995): 249– 291.

12. See Andrew Altman, “Discrimination,” The Stanford Encyclopedia of Philosophy, ed. Edward N. Zalta (Winter 2016 Edition), https:// plato.stanford.edu/

archives/ win2016/ entries/ discrimination/ .

13. See Allen Wood, “Exploitation,” Social Philosophy and Policy 12 (1995): 150– 151.

14. See Young, Politics of Difference, 53– 58.

15. Ibid., 61– 63.

16. Frederick Douglass, Narrative of the Life of Frederick Douglass: An American Slave, Written by Himself (Minneapolis, MN: Filiquarian Publishing, 2007), 85.

17. Frantz Fanon, The Wretched of the Earth, trans. Richard Philcox

(New York: Grove Press, 2004 [1963]), 147.

18. I am here following Nelson Mandela’s political narrative as set out in his au-tobiography, Long Walk to Freedom: The Autobiography of Nelson Mandela (New York: Little, Brown, 2008). But the point is a matter of controversy.

David Dyzenhaus and others argue that the turn to the armed struggle was

not a popular decision in the ANC and actually set back the cause. See David

Dyzenhaus, “‘With the Benefit of Hindsight’: Dilemmas of Legality,” in Lethe’s Law: Justice, Law, and Ethics in Reconciliation, ed. Emilios Christodoulidis and Scott Veitch (Oxford: Hart, 2001), 65.

19. Available at http:// www.anc.org.za/ show.php?id=77.

20. Heather Ann Thompson, Blood in the Water: The Attica Prison Uprising of 1971

and Its Legacy (New York: Pantheon, 2016).

21. Jean Casel a, James Ridgeway, and Sarah Shourd, eds., Hell Is a Very Small Place: Voices from Solitary Confinement (New York: The New Press, 2016).

277

278

n o t e s

22. Martin Garbus, “America’s Invisible Inferno,” The New York Review of Books (December 8, 2016).

23. Victoria Law, “We Are Not the Worst of the Worst,” Solitary Watch (July 7, 2014), http:// solitarywatch.com/ 2014/ 07/ 07/ worst-worst- one-year- later-

whats-changed- pelican-bays- hunger-strikers/ .

24. See Incarcerated Workers Coalition, https:// iwoc.noblogs.org/ about/

(accessed January 17, 2017).

25. It seems to me that stressing these methods’ nonviolence, as Keramet Reiter

and Lisa Guenther do, hides from view their distinctive coerciveness, especially in the prison context (I further think that prisoners’ hunger strikes and

civilians’ political fasts invite different normative analyses). See Keramet Reiter, “The Pelican Bay Hunger Strike: Resistance within the Structural Constraints

of a US Supermax Prison,” The South Atlantic Quarterly 113, 3 (2014):

579– 611; Lisa Guenther, “Political Action at the End of the World: Hannah

Arendt and the California Prison Hunger Strikes,” Canadian Journal of Human

Rights 4, 1 (2015): 33– 56.

26. Padraig O’Malley, Biting at the Grave: The Irish Hunger Strikes and the Politics of Despair (Boston: Beacon, 1990).

27. Bernard Boxil , “Self-Respect and Protest,” Philosophy and Public Affairs 6, 1

(1976): 58– 69.

28. Ibid., 67.

29. Hay, Kantian, Liberalism, and Feminism, 141.

30. Letter to the members of the Women’s Social and Political Union dated

January 10, 1913. Available online at http:// www.nationalarchives.gov.uk/

documents/ education/ suffragettes.pdf.

31. Kendrick T. Brown and Joan M. Ostrove, “What Does It Mean to Be an

Ally?: The Perception of Al ies from the Perspective of People of Color,”

Journal of Applied Social Psychology 43 (2013): 2211– 2222, esp. 2211.

32. Princess Harmony Rodriguez, “Caitlyn Jenner, Social Media and Violent

‘Solidarity’: Why Calling Out Abusive Material by Sharing It Is Harmful,”

BDG blog (June 8, 2015), http:// www.Blackgirldangerous.org/ 2015/ 06/

caitlyn-jenner- social-media- and-violent- solidarity-calling- out-abusive-

material-sharing- it/ (accessed February 1, 2017).

33. Rachel McKinnon, “Al ies Behaving Badly: Gaslighting as Epistemic Injustice,”

in Routledge Handbook to Epistemic Injustice, ed. Gaile PolhausJr., Ian James Kidd, and José Medina (New York: Routledge, 2017), 167– 174.

34. Ibid., 172.

35. Nicolas Bommarito, “Private Solidarity,” Ethical Theory and Moral Practice 19, 2 (2016): 445– 455.

36. Daniel Silvermint, “Resistance and Wel - Being,” Journal of Political Philosophy 21 (2013): 405– 425.

37. Marilyn Frye, “History and Responsibility,” Hypatia 8, 3 (1985): 215– 217.

278

279

n o t e s

38. W. E. B. Du Bois, Darkwater: Voices from within the Veil (Mineola, NY: Dover, 1999), chap. 6.

39. Stokely Carmichael, The Basis of Black Power (USA History Archive: marxists.

org, 2001).

40. Ibid.

Chapter 7

1. Haslanger, Resisting Reality, 312– 317.

2. Robert Gel ately, “Denunciations in Twentieth-Century Germany: Aspects

of Self-Policing in the Third Reich and the German Democratic Republic,”

in Accusatory Practices: Denunciation in Modern European History, 1789– 1989, eds. Sheila Fitzpatrick and Robert Gel ately (Chicago: University of Chicago

Press, 1997), 185– 221; Robert Gel ately, Backing Hitler. Consent and Coercion in Nazi Germany (Oxford: Oxford University Press, 2001).

3. See Angelina Grimké, Walking by Faith: The Diary of Angelina Grimké 1828– 1835, ed. Charles Wilbanks (Columbia: University of South Carolina, 2003).

4. Stanley Cohen, States of Denial: Knowing about Atrocities and Suffering

(Cambridge, MA: Polity, 2001), 82.

5. This follows Cohen, States of Denial, 7– 9.

6. Gitta Sereny, Albert Speer: His Battle with Truth (London: Picador, 1996), 200.

7. Bob Dylan, “Blowin’ in the Wind” (1963).

8. Shoah, directed by Claude Lanzmann (BBC, 1985).

9. Alison Bailey, “Privilege: Expanding on Marilyn Frye’s Oppression,” Journal of Social Philosophy 29, 3 (1998): 104–119, 110. Bailey’s definition is stipulative, distinct from the legal concept of privilege as “legal benefit that is not a right.”

The advantages she is interested in are the flipside of the harms of structural

injustice (which are also systemic and unjustified). I use the term “privilege”

in Bailey’s sense.

10. Bailey, “Privilege,” 112.

11. Ibid.

12. See Alexander, The New Jim Crow.

13. Tommie Shelby, “Ideology, Racism, and Critical Social Theory,” The

Philosophical Forum 34, 2 (2003): 153– 188, 170. Shelby notes that both true and false beliefs can be held with a false consciousness, so that detecting false consciousness is not sufficient for rejecting a form of social consciousness, but further requires showing the illusory content of that form of consciousness.

14. Ibid., 171.

15. Hay, Kantianism, Liberalism, and Feminism, chap. 2.

16. Brownlee, Conscience and Conviction, 66– 70.

17. Mark Twain, The Adventures of Huckleberry Finn (New York: Bantam Classic, 2003 [1884]).

279

280

n o t e s

18. Douglass, Frederick Douglass: Selected Speeches and Writings, 188– 206.

19. Kwame Anthony Appiah, The Honor Code: How Moral Revolutions Happen

(New York: W. W. Norton, 2010).

20. Ibid., 161.

21. Irish Murdoch, The Sovereignty of the Good (London: Routledge and Kegan Paul, 1985), 91.

22. Daniel Kahneman and Amos Tversky, “Judgment under Uncertainty: Heuristics

and Biases,” Science (September 1974): 1124– 1131, explores three heuristics and biases. More recently, Daniel Kahneman, Thinking Fast and Slow

(New York: Farrar, Strauss and Giroux, 2011) analyzes dozens of these.

Wikipedia lists and illustrates over a hundred cognitive biases. See https://

en.wikipedia.org/ wiki/ List_ of_ cognitive_ biases (accessed December 20, 2016).

23. For a review of the research conducted by psychologists and cognitive

scientists, see Cheryl Staats, Kelly Capatosto, Robin A. Wright, and Danya

Contractor, State of the Science: Implicit Bias Review 2015, Kirwan Institute for the Study of Race and Science, available at http:// kirwaninstitute.osu.

edu/ wp-content/ uploads/ 2015/ 05/ 2015-kirwan- implicit-bias.pdf. For philosophical work on implicit bias, see Implicit Bias and Philosophy, Volume 2: Moral Responsibility, Structural Injustice, and Ethics, eds. Michael Brownstein and Jennifer Saul (Oxford: Oxford University Press, 2016).

24. Jean-Jacques Rousseau, The Social Contract in The Social Contract and Other Later Political Writings, ed. Victor Gourevitch (Cambridge: Cambridge University Press, 1997), 41.

25. Rush Limbaugh, The Rush Limbaugh Show, September 12, 2008. Transcript available at http:// www.rushlimbaugh.com/ daily/ 2008/ 09/ 12/ media_

and_ democrats_ will_ try_ everything_ to_ destroy_ sarah_ palin (accessed December 21, 2016).

26. See Rachel Maddow Show (December 13, 2016), http:// www.msnbc.com/

rachel-maddow/ watch/ attorney-general- lynch-calls- for-vigilance- on-abuse-

of-power- 832507459842 (accessed December 21, 2016).

27. Last Week Tonight with John Oliver (November 13, 2016), http:// www.hbo.

com/ last-week- tonight-with- john-oliver (accessed December 16, 2016).

28. Julie L. Rose defends citizens’ entitlement to free time on the basis of widely held liberal egalitarian principles in Julie L. Rose, Free Time (Princeton, NJ: Princeton University Press, 2017).

29. Melissa Schwartzberg, Counting the Many: The Origins and Limits of

Supermajority Rule (Cambridge: Cambridge University Press, 2013).

30. I thank Amélie Rorty for alerting me to civic virtues’ complex make-up and

paired contraries.

31. Elizabeth Spelman, Inessential Woman: Problems of Exclusion in Feminist Thought (Boston: Beacon, 1988), 179.

280

281

n o t e s

32. See Carol Gil igan, In a Different Voice: Psychological Theory and Women’s Development (Cambridge, MA: Harvard University Press, 1982). In psy—

chology and neuroscience, see also Jean Decety and Wil iam Ickes, eds.,

The Social Neuroscience of Empathy (Cambridge, MA: MIT Press, 2009);

David Howe, Empathy: What It Is and Why It Matters (New York: Palgrave

Macmil an, 2012). In feminist philosophy, see, e.g., Jean Harvey, Civilized

Oppression (Lanham, MD: Rowman and Littlefield, 1999); Michael Slote, The Ethics of Care and Empathy (New York: Routledge, 2007).

33. Laurence Thomas, “Moral Deference,” in Theorizing Multiculturalism: A Guide to the Current Debate, ed. Cynthia Willet (Oxford: Blackwell Publishers, 1998), 359– 381.

34. See, e.g., The National SEED Project on Inclusive CurriculumSM, http:// www.

nationalseedproject.org/ about-us. SEED (Seeking Educational Equity & Diversity) aims to create “gender fair, multiculturally equitable, socioeconom-ically aware, and globally informed education” by engaging educators, parents, and community leaders. It is the nation’s largest peer-led leadership development project.

35. See Cass Sunstein, Why Societies Need Dissent (Cambridge, MA: Harvard University Press, 2003).

36. For a review of this literature and philosophical analysis of integration, see Anderson, The Imperative of Integration.

37. Amélie Oksenberg Rorty, “The Ethics of Col aborative Ambivalence,” Journal of Ethics 18, 4 (2014): 391– 403, 394.

38. Ibid.

39. Ibid.

40. Ibid., 395.

41. Ibid., 396– 397.

42. Ibid., 399.

43. Ibid., 392.

44. Ibid.

45. Arendt, “Reflections on Civil Disobedience,” 104.

46. Walzer, Obligations, 22.

47. Snowden, directed by Oliver Stone (Wild Bunch, 2016); Serpico, directed by Sidney Lumet (Artists Entertainment Complex, 1973).

48. Emanuela Ceva, “Political Justification through Democratic Participation: The Case for Conscientious Objection,” Social Theory and Practice 41, 1 (2015): 26– 50.

49. David Kaye, “Anticipating Trump: Should Government Lawyers Stay or Go?,”

JustSecurity.org,

https:// www.justsecurity.org/ 34373/ anticipating-trump-

government-lawyers- stay-go/ (accessed November 20, 2016).

50. The Polish legislature is currently considering curriculum changes that would add hours of patriotic history lessons. See Anthony Faiola, “In Poland, a

281

28

n o t e s

Window on What Happens When Populists Take Over,” Washington Post

(December 18, 2016). For philosophical defenses of patriotism, see Alasdair

MacIntyre, “Is Patriotism a Virtue?,” E. H. Lindley Lecture (University of

Kansas, 1984), reprinted in Patriotism, ed. Igor Primoratz (Amherst, NY:

Humanity Books, 2002), 43– 58; Andrew Oldenquist, “Loyalties,” Journal of

Philosophy 79, 4 (1982): 173– 193.

51. Abby Phil ip, “Trump Names His Inauguration Day a ‘National Day of

Patriotic Devotion,’ ” Washington Post (January 23, 2017).

52. Simon Keller, “Patriotism as Bad Faith,” Ethics 115, 3 (2005): 563– 592.

53. Simon Keller, “Worldly Citizens: Civic Virtue without Patriotism,”

in Cosmopolitanism versus Non-

Cosmopolitanism: Critiques, Defenses,

Reconceptualizations, ed. Gil ian Brock (Oxford: Oxford University

Press, 2013).

54. Ta-Nehisi Coates, We Were Eight Years in Power: An American Tragedy

(New York: One World, Random House, 2017), 200.

55. Wil iam A. Edmundson, “The Virtue of Law-Abidance,” Philosophers’ Imprint 6, 4 (2006): 1–21.

Conclusion

1. Arendt, “Reflections on Civil Disobedience.”

2. See George Kateb, “Political Action,” in The Cambridge Companion to Hannah Arendt, ed. D. Vil a (Cambridge: Cambridge University Press, 2000), 130– 148.

Postscript

1. Michael Grynbaum and Jim Rutenberg, “Trump, Asked about Accusations

against Bill O’Reilly, Calls Him a ‘Good Person,’” New York Times (April 5, 2017), https:// www.nytimes.com/ 2017/ 04/ 05/ business/ media/ trump-

oreilly-fox- murdochs.html. Fox News ousted O’Reilly shortly after the sexual harassment claims became public in April 2017.

2. “Remarks by President Trump in African American History Month

Listening Session” (February 1, 2017), https:// www.whitehouse.

gov/ the-press- office/ 2017/ 02/ 01/ remarks-president- trump-african-

american-history- month-listening- session.

3. Chimamanda Ngozi Adichie, “Now Is the Time to Talk about What We

Are Actually Talking about,” New Yorker (December 2, 2016), http:// www.

newyorker.com/ culture/ cultural-comment/ now-is- the-time- to-talk- about-

what-we- are-actually- talking-about.

4. Center for Constitutional Rights, “Resistance Is Our Civic Duty,” https://

ccrjustice.org/ home/ press-center/ press-releases/ resistance-our- civic-duty-

ccr-responds- trump-election (last accessed September 22, 2017).

282

283

n o t e s

5. Robert Reich, “Twelve Ways to Resist the Trump Presidency,” Newsweek

(January 6, 2017), http:// www.newsweek.com/ robert-reich- twelve-ways-

resist-trump- presidency-539411; Bill Scher, “6 Ways Not to Resist Donald Trump,” Politico Magazine (January 25, 2017), http:// www.politico.com/

magazine/ story/ 2017/ 01/ 6-ways- not-to- resist-donald- trump-214689.

6. Indivisible: A Practical Guide for Resisting the Trump Agenda is licensed under the Creative Commons Attribution-NonCommercial- ShareAlike 4.0

International License. Available at https:// www.indivisibleguide.com/ guide/ .

7. Meagan Flynn, “Oakland mayor who tipped off immigrants to ICE raid draws

Justice Department scrutiny,” Washington Post (March 2, 2018), https:// www.

washingtonpost.com/ news/ morning-mix/ wp/ 2018/ 03/ 02/ justice-depart-

ment-reviewing- actions-of- oakland-mayor- who-tipped- off-immigrants- of-

ice-raid- whitehouse- says/ ?utm_ term=.36f57c49ff76.

8. Jeremy Waldron, “Special Ties and Natural Duties,” Philosophy and Public

Affairs 22 (1993): 3– 30.

9. See Juliet Stumpf, “The Crimmigration Crisis: Immigrants, Crime, and

Sovereign Power,” American University Law Review 56, 2 (2006): 367– 419;

César Cuauhtémoc García Hernández, Crimmigration Law (Chicago, Illinois:

American Bar Association, 2017).

10. Cristina Beltrán, “‘Undocumented, Unafraid and Unapologetic’: DREAM

Activists, Immigrant Politics, and the Queering of Democracy,” in From Voice

to Influence: Understanding Citizenship in a Digital Age, eds. Danielle Allen and Jennifer S. Light (Chicago: University of Chicago Press, 2015), 80– 104.

11. Southern Poverty Law Center, “Hate Groups Increase for Second Consecutive

Year as Trump Electrifies Radical Right” (February 15, 2017), https:// www.

splcenter.org/ news/ 2017/ 02/ 15/ hate-groups- increase-second- consecutive-

year-trump- electrifies-radical- right.

12. SPLC Hate Watch, https:// www.splcenter.org/ hatewatch/ 2016/ 12/ 16/

update-1094- bias-related- incidents-month- following-election, last update December 16, 2016. In my view, hate crimes, like hate speech, stem from prejudice without necessarily being motivated by emotions, feelings, or attitudes of hatred per se. See Alexander Brown, “What Is Hate Speech? Part 1: The

Myth of Hate,” Law and Philosophy 36, 4 (2017): 419– 468.

13. Anna North, “After Kansas Shooting, a Community in Fear,” New York Times

(March 3, 2017), https:// www.nytimes.com/ 2017/ 03/ 03/ opinion/ after-

kansas-shooting- a-community- in-fear.html.

14. SPLC, “Ten Ways to Fight Hate: A Community Response Guide” (August 14,

2017), https:// www.splcenter.org/ 20170814/ ten-ways- fight-hate- community-

response-guide.

15. César Cuauhtémoc García Hernández, “ICE’s Courthouse Arrests Undercut

Democracy,” New York Times (November 26, 2017).

16. For instance, Donald Trump, Jr., alleged that terrorists effectively poisoned the crop of refugees and that failing to recognize this constituted a “politically 283

284

n o t e s

correct agenda.” See Leo Kelion, “Trump Jr’s Skittles Graphic Deleted From

Twitter,” BBC (September 28, 2016), http:// www.bbc.com/ news/

technology-37495094.

17. Bryan Armen Graham, “Donald Trump blasts NFL anthem protesters: ‘Get

that son of a bitch off the field’,” The Guardian (September 23, 2017), https://

www.theguardian.com/ sport/ 2017/ sep/ 22/ donald-trump- nfl-national-

anthem-protests.

18. Dave Zirin, “The Houston Texans Showed the Power and Dignity of Black

Labor,” The Nation (October 30, 2017), https:// www.thenation.com/ article/

the-houston- texans-showed- the-power- and-dignity- of-black- labor/ .

19. Seattle Seahawks (@seahawksPR), (September 24, 2017 at 2:39 p.m.).

20. Cornel West, interviewed on Democracy Now! (August 14, 2017).

21. Amitai Etzioni recently defended a thoughtful version of this argument in

“Notes for Antifa from a Former ‘Terrorist,’ ” Boston Review (November 29, 2017), http:// bostonreview.net/ forum/ etzioni-notes- antifa-former- terrorist

(accessed December 13, 2017).

22. Transcript of Trump’s August 15, 2017 press conference available at https://

www.cnbc.com/ 2017/ 08/ 15/ read-the- transcript-of- donald-trumps- jaw-

dropping-press- conference.html (accessed December 13, 2017).

23. My articulation of their argument is based on Mark Bray, Antifa: The AntiFascist Handbook (New York: Melville Books, 2017).

24. Maria Stephan, “Staying True to Yourself in the Age of Trump: A How—

To Guide for Federal Employees,” Washington Post (February 10, 2017),

https:// www.washingtonpost.com/ news/ democracy-post/ wp/ 2017/ 02/

10/ staying-true- to-yourself- in-the- age-of- trump-a- how-to- guide-for- federal-

employees/ .

25. Laura Rosenberg, “Career Officials: You Are the Last Line of Defense against Trump,” Foreign Policy (January 30, 2017), http:// foreignpolicy.com/ 2017/

01/ 30/ career-officials- you-are- the-last- line-of- defense-against- trump/ .

26. David Luban, “The Case against Serving,” Just Security (November 14, 2016), https:// www.justsecurity.org/ 34404/ case-serving- trump/ .

27. Arendt, Responsibility and Judgment (New York : Schocken Books 2003), 17– 48.

28. Masha Gessen, “Autocracy: Rules for Survival,” The New York Review of Books (November 10, 2016).

29. New York Times senior editor Carolyn Ryan interview: “The Leakiest White

House in Decades,” CNN (February 5, 2017), http:// www.cnn.com/ videos/

tv/ 2017/ 02/ 05/ leaks-already- plaguing-trump- administration.cnn.

30. Kaye, “Anticipating Trump.”

31. See “Trump Campaign Had at Least 18 Undisclosed Contacts with Russians,”

Reuters (May 18, 2017), https:// www.reuters.com/ article/ us-usa- trump-russia-

contacts/ exclusive-trump- campaign-had- at-least- 18-undisclosed- contacts-

with-russians- sources-idUSKCN18E106 (accessed December 15, 2017).

284

285

INDEX

Abernathy, Ralph 33

Arab Spring 24

Action Heroes 137, 155, 223

Arendt, Hannah 54, 217, 226– 227,

Adichie, Chimamanda Ngozi 231

246– 248

affirmative action 125– 127

Aristotle 62, 228

African National Congress (ANC) 179– 180,

Attica prison uprising 180– 184

245, 277n18

authenticity 173, 175– 176, 187– 188, 192

agency 57, 63, 67, 70, 77, 179, 187,

demands of 173, 192

226– 227, 242

violations of 175– 191

AIDS Coalition to Unleash Power

(ACT UP) 57

Bailey, Alison 204, 279n9

Akbar, Amna 67

Bakunin, Mikhail 60

allyship 129– 130, 188– 190, 213. See also

Baltimore, Maryland 32, 65, 144– 145

solidarity

Bambi 48

alt-right 31, 238, 243. See also white

Banksy 157, 166

supremacy

Bannon, Steve 246

ambivalence 213– 216, 249– 252.

Batman 96

See also dialog

Beauvoir, Simone de 120

ameliorative 23, 35, 37, 39, 259n4

Beltrán, Cristina 236

American Civil Liberties Union

Bickford, Susan 66

(ACLU) 219, 221, 231, 267n43

Birmingham, Alabama 2– 3, 6, 26– 27,

anarchism 4, 10– 11, 60, 110, 225

30, 32– 33

animal rights 40, 45, 78, 196, 234

Black bloc 17, 58

anonymity 17, 44– 45, 73, 100, 104. See also

Black History Month 31, 230

covertness

Black Lives Matter (BLM) 7, 38, 64– 67, 87,

Anonymous 21, 37, 41, 90, 97– 98, 262n48

145, 156, 242

antifascist (antifa) 17, 243– 245, 284n21

Black Panther Party 30, 96, 194

apartheid 58, 179– 180, 199, 245

Black workers’ movements 30, 242

Appiah, Kwame Anthony 208

Blagojevich, Rob 82

Appleby 72– 73, 84

Blank Noise 136– 137, 155

285

286

I N D E X

Boétie, Étienne de La 246

deliberate deviations

Bommarito, Nicolas 191

from 38– 39, 261n42

Bové, José 8

distinction with other kinds of

Boxil , Bernard 186– 187

lawbreaking 40– 41, 218

boycott 19, 92, 106, 128, 131– 133. See also

democratic potential of 55– 57

civil rights movement

effectiveness of 58– 62, 91– 92, 155– 157

Brown, Michael 98

inclusive accounts of 17, 23, 35– 39

Brownlee, Kimberley 23, 35– 39, 69– 71,

moral right of 37, 51, 69– 70

257n18, 259n7, 272n14

norms of 42– 46 ( see also civility)

Buchanan, Allen 105, 268n51

standard conception of 8, 21– 35

Bulman-Pozen, Jessica 42

targets of 75– 78, 265n14

Bureau of Justice Statistics 81, 145

civil rights movement 1– 7, 21– 35, 61, 92,

burkini ban 77, 90– 91

96, 119– 120, 263n17. See also boycott;

Bush, George W. 81

Freedom Rides; marches

bystander 131, 138, 192, 195, 201– 203.

lunch counter sit-ins 4, 19, 26, 259n9

See also Samaritan

Montgomery bus boycott 2, 6, 26– 27,

active bystander intervention 146– 148,

119, 130, 133, 259n9

190, 214, 239– 240

and other radical groups 29– 30

civility 17, 26, 33– 34, 38– 39, 42– 46, 50,

Canada, Geoffrey 144

51, 55, 57, 59, 62– 68, 262n52. See also

Carmichael, Stokely 194– 195

nonviolence; publicity;

Catonsville Nine 21

non-evasiveness; decorum

Celikates, Robin 23, 36– 39, 64, 90, 261n34

Clayton, Cornel 56

Center for Constitutional Rights 183, 231

climate change 88– 89, 231, 234, 249

Central Intel igence Agency (CIA) 82

Coates, Ta-Nehisi 31– 32, 62, 144, 221

Ceva, Emanuela 218

coercion 14, 25, 27, 68, 88, 114, 131– 132,

change 4, 8, 27, 34, 54, 124– 125, 239.

139, 144, 159, 184, 200, 260n14,

See also reform

278n25

amenability to 174– 175, 181

Cohen, Carl 24, 263n3

as political aim 12, 25, 36– 37, 40– 41, 67,

Cohen, Stanley 201

127, 155– 158

Colbert, Stephen 42

systemic 155– 158

Collectif contre les expulsions 6

without hope of 66, 190– 191

colonialism 15, 105, 112, 175, 262n51.

Chenoweth, Erica 58, 130, 238, 270n22

See also decolonization

Christiano, Thomas 73

communication 126, 128, 242– 243

cisgender 92, 112, 150, 189, 209

and civil disobedience 35– 39, 42, 91

civic bonds 50, 54, 62– 68, 103, 211

communicative intentions 22,

civic death 39, 181, 184. See also

99– 100, 245

prisoner’s rights

and resistance 50, 91, 128, 177, 182– 185,

civic friendship. See civic bonds

186, 190– 191

civic virtue 209– 222

through guerril a tactics 38, 57, 59

civil disobedience 4– 10, 17– 20, 21– 46,

and uncivil disobedience 44– 45, 52,

50– 57, 62– 68, 75– 78, 142– 143,

56– 59, 63, 93– 94

177– 191, 217– 218

conflicts of interest 83– 84, 99, 234, 251

ameliorative account of 39, 42– 44

Congress of Racial Equality (CORE) 1,

compared to conscientious

96, 259n9

objection 217– 218

Connor, Bull 2– 3, 33

286

287

I N D E X

conscience 8, 25, 85, 145, 187, 201,

decorum 17, 42– 44, 262n52. See also

205– 207, 214, 216– 219

civility; offensiveness

consciousness-raising 41, 128 ( see also

Deep Throat 54

resistance, everyday)

democracy

and false consciousness 205– 206, 211,

American 221, 246– 252

279n13 ( see also ideology)

corruption of 6, 55

conscientious 8, 25, 35– 36, 54, 85, 104,

democratic authority 54– 55, 83– 88, 104,

217, 261n34

221, 224 ( see also justice)

objection 35– 37, 45, 63, 217– 218,

democratic concord 55, 60– 61, 67

225, 250

( see also civic friendship)

refusal 5– 6, 218, 246

democratic consent 12, 14

cooperative social schemes 109– 135

( see also social contract)

as exploitative and harmful 111– 114, 115– 118,

democratic control 57, 65, 79, 266n28

123– 127, 135, 237– 238

democratic deficit 40, 56, 79, 86, 99

exit from 123– 125

(see also public ignorance)

corruption 82– 84, 98– 100, 105– 106,

democratic deliberation 76– 79, 83– 84,

218, 274n31

89, 98– 99, 142, 216

cosmopolitanism 220

democratic equality 57, 61, 63, 73– 77,

covertness 16– 17, 21, 44– 45, 53, 59, 63,

82, 86– 88, 91– 92, 99, 103, 221

73, 82– 83, 93– 94, 99– 100, 142– 143,

democratic inclusion/ exclusion 40, 56– 57,

160, 186, 199, 225, 235, 246, 249, 252,

64– 65, 78– 79

266n28. See also anonymity

democratic institutions 14, 56, 86, 98,

crime 35, 77, 80, 97, 104, 110, 119,

100– 104, 173, 249

141– 142, 144– 145, 154, 207– 208, 234,

democratic processes 50, 53, 210

240– 241, 262n51, 267n43. See also

disobedience as threat to 55– 57

hate crime; corruption; vigilantism;

and justice 10, 19, 26, 28, 63, 67, 72– 107

war crimes

liberal 9, 15, 24, 48, 51, 62– 63, 70, 74, 86, 199

distinct from principled disobedience 17,

and legitimacy 14– 15, 57

36, 104, 262n51

promotion of 106, 128, 225– 226,

criminal 21, 47, 53, 72, 105, 142, 154, 161,

232– 237

169, 181– 182, 233, 239

radical democratic approach 36– 37, 64

defenses 70

Dery, Mark 38

groups stereotyped as 90, 205, 211,

dialog 103, 136, 209, 213– 219, 231, 239,

230– 231

252. See also ambivalence

resistance treated as 32, 81, 151, 169,

DiCaprio, Leonardo 89

205, 211

digital. See also internet

vigilantism against conduct perceived

Care Packages 106

as 95– 96, 211

disobedience 7, 57, 90, 97– 100, 236,

Cudd, Ann 113, 261n45

256n11, 261n39 (see also distributed

Cullity, Garrett 111, 114– 115

denial-of- service; hacktivism)

privacy 79

Dahl, Robert 113

rights 79, 89– 90, 97– 99

Dalai Lama 24

surveil ance 79, 82– 83, 89, 99– 100, 106

Davis, Angela 32– 33, 61

vigilantism 97– 98, 103

Davis, Kim 22

dignity 15, 40, 50, 67, 70– 71, 77– 78, 84, 91,

Deacons for Defense and Justice 48, 95– 96

92, 142, 168– 197, 241– 245. See also

decolonization 24, 58– 59, 61

authenticity; self-respect

287

28

I N D E X

discrimination 15, 31– 32, 76– 77, 81, 92,

fairness 10, 29, 60– 61, 69, 108– 135, 140,

108, 112– 114, 175– 176

162– 163, 182, 187, 223– 224, 237– 238

disrespect

Fanon, Frantz 179, 262n51

for authority 65, 67, 103– 104

Fassbender, Michael 168, 185

as breach of decorum 33, 43– 44

Favela 144– 145. See also ghetto

as context of injustice 75– 77, 81, 84,

Federal Bureau of Investigation (FBI) 82,

90– 92, 95, 233

99– 100, 234

dissent 10, 16, 33, 35, 40– 42, 46, 67, 120,

Feinberg, Joel 138, 148– 149, 271n7

127– 128, 221, 246– 247

Femen 21, 38, 64

distributed-denial- of-service (DDoS) 17,

feminism 4, 7– 8, 12, 16, 30, 38, 41, 48,

21, 37, 41, 45, 97– 98, 261n39,

213, 225

262n48. See also Anonymous; digital,

Finn, Huckleberry 207

disobedience

freedom 40, 60, 74, 79, 94, 221, 226

distrust 65, 200, 211– 213, 251

from cruel and unusual punishment 144

Douglass, Frederick 141, 178– 179, 207– 208,

electronic 104

230, 272n15

external 74

doxxing 98. See also digital, vigilantism

from fear 154, 167, 240

DREAMers 236– 237

from oppression 61, 106, 131, 180, 185,

Du Bois, W.E.B. 194

242, 245, 253

duty of justice 9, 28, 48, 69, 72– 107, 164,

from slavery 93, 161, 178– 179, 207

249– 250, 268n44

religious 181

duty to disobey the law 5– 11, 51, 78, 85– 88,

of speech 79, 89

92, 94, 98– 100, 164– 165, 231, 233, 235.

and wrongful benefits 117– 118

See also political obligations; resistance

Freedom Rides 1– 4, 18, 26, 31, 119, 130,

duty to obey the law 4– 12, 14, 20, 23, 25– 26,

223, 228, 259n9. See also civil rights

28– 29, 44, 48, 50– 51, 73– 78, 82– 83,

movement

101– 104, 106, 110– 114, 138– 141,

Journey of Reconciliation 1– 3

158– 160, 166– 167, 170– 175, 198, 233,

free-riding 52– 53, 109, 114– 118, 121, 163,

255n2, 257n21. See also anarchism

237– 238, 250, 269– 270n11

Dworkin, Ronald 24, 54, 172– 175, 178,

Frye, Marilyn 13, 193

187– 188, 192, 196, 242, 245, 257n21

Dylan, Bob 201

Gandhi, Mohandas K. 6– 7, 24, 26, 28

Dyzenhaus, David 277n18

Gans, Chaim 11, 256n18

Gel ately, Robert 200

ecosabotage 45

gender inequality 19, 62, 76, 113

Edmundson, Wil iam A. 221, 258n40

Geras, Norman 61

Electronic Frontier Foundation 89

Gessen, Masha 248

Ellsberg, Daniel 54, 99– 100, 219, 221

ghetto 38, 144– 145, 149– 150, 262n51

Environmental Protection Agency

Gilbert, Margaret 171, 277n4

(EPA) 231, 249

Goodin, Robert 125

Erdrich, Louise 154

Google 89, 92

excuse 68– 69

Gore, Al 89

exploitation. See cooperative social schemes,

Gourevitch, Alex 131– 132

as exploitative

graffiti 48, 157. See also guerril a, street art;

vandalism

Fabre, Cécile 138– 139, 162, 164

Green, Leslie 14

Fairey, Shepard 241

Greenwald, Glenn 219

288

289

I N D E X

Grimké sisters 200

as a cause of persistent Samaritan

guerrilla

perils 143, 150– 151

performance 17, 21, 43

and economic inequality 77, 88– 89,

street art 38, 45, 48, 157, 166

237– 238

warfare 179

effect on moral capacities 199– 200,

205– 206

hacktivism 57, 90, 97– 98, 106, 261n39

epistemic 34, 189– 190

Harcourt, Bernard 33– 34, 79

and fairness 110– 115

Hare, Caspar 165

labor 19, 76– 77, 88, 106, 166, 237– 238, 242

Hart, H.L.A. 109

obstacles to perceiving 150– 152,

Harvey, Jean 128, 261n45

199– 206

Haslanger, Sally 14, 23, 199– 200, 259n4

racial 19, 129, 151, 221, 223, 243

hate crime 146, 150, 238– 239, 241,

( see also Jim Crow)

244, 283n12

structural 12– 14, 16, 18, 64, 76, 80– 81,

Hay, Carol 186– 187, 261n45

126– 128, 153, 182, 199– 206, 279n9

Hernández, César Cuauhtémoc García 239

testimonial 70, 190, 264n31

Herrou, Eric 6, 94, 223

typology of 12– 16, 19, 74– 84, 89

Hessel, Stéphane 6

under President Trump 233– 237

heterosexism 112, 150, 204, 209

interests 34, 49– 50, 77, 86– 87, 105, 144– 146,

Hidalgo, Javier 268n44

157– 159, 164– 166, 200, 210, 250– 251

hijab 7, 225. See also cban

internet 42, 57, 79, 106, 211. See also digital

Hil , Thomas E. Jr. 126, 132

governance 79, 89, 104

Hirschmann, Nancy 12, 257n18

Intifada 24, 58

Hobbes, Thomas 14, 144

Irene Morgan v. Commonwealth of

human rights 6, 13, 41, 82– 83, 94, 155– 156,

Virginia 1– 2

183, 201, 271n2

IRA. See Provisional Irish Republican Army

human trafficking 83, 113, 145

Islam 7, 77, 90– 91, 95, 147, 212, 229– 231,

humanitarian intervention 105, 153– 154

233, 241, 244

Hume, David 125

hunger strikes 8, 38, 45, 157, 169, 183,

Jim Crow 2– 3, 16, 18, 27, 48, 76, 80, 82, 95,

185– 186, 243, 278n25

108– 109, 113– 114, 118– 122, 124– 129,

144, 151– 153, 156, 165, 270n15,

ideology 14, 16, 24, 35, 151– 152,

272n17. See also racial segregation

205– 209, 225. See also conscience: false

jury nullification 41, 70

consciousness

justice

Immigration and Customs Enforcement

and democracy 72– 107, 233– 237

(ICE) 233, 235– 236, 239– 240, 243

( see also duty of justice)

imperialism 30, 175

enhancing 55– 57, 63, 67

cultural 13, 112

facing 70

incivility 22, 33, 38– 46, 50, 56. See also

and injustice 15

uncivil disobedience

and legitimacy 14

political uses of 34– 35, 38– 39, 44, 242

Rawls’s theory of 25, 28– 29, 36

potential value of 58– 68

reparative 125– 126 ( see also

Indignados 6, 24

restitution)

injustice 3, 12– 15, 63– 65, 70. See also

sense of 60, 62

oppression; resistance

shared conception of 25, 69

agent 12, 16– 17, 199– 206

social 14, 19

289

290

I N D E X

Justice Department 144– 145, 211, 231,

Let Us Breathe Collective 156

235, 252, 267n43

Lewis, John 2

LGBTQ+ 15, 19, 53, 57, 92, 112, 145, 150,

Kaepernick, Colin 44

189, 233, 236, 241, 244, 267n41. See also

Kant, Immanuel 73, 186– 187

same-sex couples

Kaye, David 218– 219, 250

Ligue des droits de l’Homme 6

Keller, Simon 220

Limbaugh, Rush 211

Kennedy, Robert 3

Locke, John 95, 125

King, Martin Luther Jr. 2, 6– 7, 22, 26– 30,

Lösener, Bernhard 247– 248

33– 34, 61, 92, 96, 122, 133, 140, 225,

Luban, David 247– 249

259n9, 263n17, 264n25

Lumet, Sidney 218

Kirkpatrick, Jennet 258n37

Lynch, Loretta 211

Klosko, George 109– 111

lynching 80, 96– 97, 119, 133, 151, 161,

Koler, Avery 132

178, 258n37

Knowles, Dudley 160, 163

Lyons, David 26, 80, 259n8

Ku Klux Klan (KKK) 1– 4, 48, 80, 95– 97,

119, 151, 211, 265n20

MacKinnon, Rebecca 79

Kunstler, Wil iam 181

Malcolm X 96, 268n47

Mandela, Nelson 24, 179, 277n18

Langton, Rae 12

Manning, Chelsea 41, 100

Lanzmann, Claude 202– 203

marches 19, 26, 31, 41, 156– 157, 221,

Lavender Panthers 53, 59, 96

231, 259n9

law 12, 25, 53– 55

Marx, Karl 30, 112, 126, 205

abidance 33, 62, 105– 106, 210– 211,

Mason, Andrew 171

221– 222

mass incarceration 19, 144, 149– 150, 182,

breaches of ( see principled disobedience)

272n17. See also prisoner’s rights

compliance with ( see duty to obey the law)

Mayer, Robert 114– 115

fidelity to 25, 27, 54

Maze Prison 168, 184– 185

integrity of 54, 82, 101, 105

McKenzie, Mia 132

respect for 11– 12, 26– 27

McKinnon, Rachel 189– 190

rule of 12, 53– 55, 80, 91, 99, 221,

McMaster, H.R. 251

252, 258n37

McQueen, Steve 168

leaks 7, 17, 21, 41, 54– 55, 59, 70, 72– 73, 84,

Meet To Sleep 136– 137, 155, 223

98– 100, 218– 219, 247, 249, 251– 252.

Mil igan, Tony 261n42

See also whistleblowing; WikiLeaks

Mil s, Charles 66, 148

Lefkowitz, David 51, 69, 255n2

Mistry, Vira 136– 137

legitimacy 5– 10, 25– 27, 30, 35, 38, 40, 44,

Mossack Fonseca 72, 84

50– 51, 78, 82– 84

Murdoch, Iris 209

assessment of 174– 175

Murphy, Liam 85, 138, 270n18,

failures of 175, 199, 203– 206

271n5, 271n7

as justified coercion 14, 139– 140,

Muslim. See Islam

272n11 ( see also justice)

My Stealthy Freedom campaign 7

of movements 60

and political obligation 174, 232– 233

National Football League (NFL) 241– 242

( see also duty to obey the law)

National Security Agency (NSA) 7, 54,

Les Faucheurs Volontaires d’OGM 8

100, 218, 251

Lessig, Lawrence 79, 267n38

Native Americans 5, 78, 154– 155, 230, 275n43

290

291

I N D E X

Nazi regime 161, 200– 203, 248

penalty 69– 70. See also punishment

necessity defense 70, 141, 159, 272n14

Pentagon Papers 54, 99– 100

noncompliance 23, 33, 91, 109, 133, 140,

persistent Samaritan perils 143– 166,

161, 225

238– 241, 274n31

noncooperation 5, 16, 238, 246

Pineda, Erin 24, 260n18

non-evasiveness 17, 36, 42– 43, 55, 177.

Poitras, Laura 219

See also punishment, acceptance of

police 2– 4, 19, 30– 32, 40– 42, 47– 48, 53,

nonsubjection 86– 88

63– 66, 80– 81, 97– 98, 144, 151, 156,

nonviolence 2– 4, 6, 25– 27, 30– 32, 42– 46,

218, 240, 244

58– 59, 178– 179, 181, 245

accountability 81, 156

calls for 30– 32, 36, 42, 62, 88

brutality 2– 4, 19, 30, 41, 47– 48, 80– 81,

and civil disobedience 4, 8, 25– 27, 30– 33,

145, 151, 153, 241– 242, 273n23 ( see also

42– 46 ( see also civility)

violenceby the state)

commitment to 2, 26– 27

political association 9– 10, 69, 71, 168– 197,

effectiveness of 58– 59

223– 224, 232, 241– 245, 257n21

nonvoluntarism 110– 111, 117– 119, 121– 122,

political community 171, 174

134, 193– 194

political membership. See political

Nozick, Robert 110

association

N.W.A. 42

political obligation. See duty to obey the law

Nye, Joseph 82

extending the concept of 8– 12, 17– 20,

223– 228

Obama, Barack 145, 154, 211, 229,

political obligations. See also duty to

237, 240

disobey; resistance

Occupy Wall Street 6, 56, 78, 87

acting on 198– 222

offensiveness 17, 42– 44, 50, 64, 68, 178.

associative 169– 197

See also decorum

based on fairness 127– 135

official misconduct 79– 84, 95, 98– 100, 150,

based on justice 88– 104

234, 250, 252. See also police brutality

of citizens under Trump 232– 245

Oliver, John 211

and democracy 84– 88

O’Malley, Padraig 185– 186

of officials in the Trump

open-mindedness 209, 213– 216

administration 246– 253

oppression 13– 15, 19, 49, 52, 61, 64– 68,

Samaritan 147– 167

76, 80– 81, 112– 113, 117– 123, 128,

transnational 105– 106

152– 153, 165, 177– 179, 182, 184– 190,

political participation 38– 39, 51, 56, 69,

192– 195, 204– 206, 209, 213– 214.

144, 218

See also injustice

civil disobedience as 38– 39, 56

exclusion from 144, 176, 181

Panama Papers 72– 73, 83, 99

moral right to 51, 69

Pankhurst, Emmeline 8, 38, 187

riot as 38– 39

Paradise Papers 72– 73, 83– 84, 99

uncivil disobedience as 56

Parks, Rosa 22

Pozen, David 42

partial compliance theory 28– 29

principled disobedience 3– 7, 10– 11, 14,

Pasternak, Avia 38, 65, 117, 123

17– 20, 21– 46, 48– 59, 69– 70, 73– 74,

Pateman, Carole 12, 256n18

87– 88, 90– 94, 101– 104, 128, 141– 143,

patriarchy 12, 64, 123

146, 155– 158, 162– 167, 183– 184,

patriotism 220– 221, 242, 282n50

223– 228, 262n51

Peck, Jim 2– 3

beyond civil disobedience 5, 18– 20

291

29

I N D E X

principled disobedience ( cont. )

publicity 16– 17, 21– 26, 34– 36, 42– 46, 54,

defenses for 70– 71, 266– 267n33

67, 75– 78, 82– 84, 93, 104

definition of 10, 17

and education 88– 89

moral duty to engage in ( see duty to

and Samaritanism 142, 155

disobey; political obligations)

punishment 23, 25, 27, 52, 54, 69– 70, 144,

objections to 50– 57, 100– 104

161, 207– 208

principled lawbreaking. See principled

acceptance of 8, 27, 36, 42, 104 ( see also

disobedience

non-evasiveness)

prisoner’s rights 30, 39, 77, 144, 157,

evasion of 25, 37, 100, 104

168– 169, 180– 186, 278n25. See also;

moral right against 37, 69– 70, 100

civic death; mass incarceration

and vigilantism 96– 97

privilege 49, 68, 115, 119– 120, 124– 128,

Pussy Riot 21, 43, 64

148, 150, 152, 166, 177, 188– 189,

Putnam, Robert 217

192– 195, 204– 206

209, 213, 279n9

Qahtani, Maha al-7

protests 1– 4, 16– 19, 24– 25, 29, 35– 45,

47– 68, 88– 103, 121– 122, 130, 134,

racial segregation 1– 4, 16, 18, 22, 27, 29– 31,

155– 167, 169– 194, 221, 227– 237,

76, 96, 118– 122, 133, 149, 151, 175,

241– 243, 249. See also boycott; Black

223. See also Jim Crow

Lives Matter; marches

radical flank effect 58, 260n22

anti-abortion 158– 159, 275n47

rallies 63, 156, 229, 235, 242

anti-nuclear 24, 56

rape 47, 137, 144– 145, 150, 154– 156, 189,

anti-war 21, 24, 45

240, 273n25

audience of 67

Rawls, John 7, 9, 17, 23– 26, 28– 29, 35– 36,

“blanket” and “dirty” 169, 183– 186

39, 44, 46, 55, 63, 73– 75, 85, 101, 105,

on campus 43, 147

109, 111, 260n14, 260n18, 263n15

civil 59, 65

Raz, Joseph 11

disobedient 25, 39, 41

rebel ion 15, 25, 38, 40. See also revolution

guerril a-style 43

reciprocity 52, 56, 60– 68, 109, 126, 174– 175,

hateful 42

178, 182

lawful 38, 101, 103, 156

reform 91, 93, 123– 127, 143, 153– 158, 164,

online 57, 89,

175, 177– 178, 183, 238. See also change

public 45, 155– 156

refugees 53, 78, 90, 93– 94, 157– 158, 230,

radical 35

240– 241. See also undocumented

silent 16, 41, 44, 186, 242

migrants

“take-a- knee” 44, 242– 243

resistance 5, 7, 9– 11, 15– 20, 39– 46, 48– 51,

uncivil 42, 57, 68

56, 61, 63, 127– 129

and vigilantism 97– 98

armed 245

violent 29, 58

to bring about radical reform 123– 129

Provisional Irish Republican Army

civil 58– 59, 128, 130

(IRA) 168– 169, 184– 185, 223

constitutional right to 15

public ignorance 75, 82– 84, 98– 100,

costs of 133– 135

233– 234

as duty 5– 12, 15, 17– 20, 40, 51, 57, 71,

distinct from deliberative inertia 83– 84

98– 100, 105– 107, 138– 142, 176– 191,

government whistleblowing in response

199– 203, 223– 253

to 98– 100

everyday 41, 128– 129, 239

public reason 8, 19, 22– 24, 37, 64, 70– 72, 76

goals of 40– 41, 49– 50, 128, 177– 191

292

293

I N D E X

matrix of 39– 46

sanctuary 37, 48, 53, 59, 93– 94, 143,

nonviolent 58– 59, 178– 179

223, 231, 235, 240– 241. See also

radical forms of 9, 38, 58– 59

undocumented migrants

undignified 184– 185

Sands, Bobby 168– 169, 185– 186, 223

unlawful 42, 52, 63, 183, 262n51

Sarat, Austin 33, 44

violent 25, 29, 32, 58– 59, 61,

scabs 45, 49

178– 180

Schaaf, Libby 235

respect 12, 15, 43– 44, 49– 50, 54, 60, 63,

Scheffler, Samuel 255n2

68– 70, 77, 83, 91, 94, 103, 108, 121,

Scheuerman, Wil iam 11– 12, 54

129, 173– 191, 245. See also disrespect;

Schwartzberg, Melissa 212

self-respect

Schwartzman, Lisa 12

for authority 87, 104, 108, 221

second-order duties 152, 209– 222

epistemic 212– 213

self-deception 19, 128, 151– 152, 202,

for law 11– 12, 25– 27, 33, 54, 104, 221

210– 211, 213, 222

mutual 126– 127, 216, 253

self-defense 27, 48, 53, 59, 61– 62

respectfulness 17, 33, 43– 44, 50. See also

armed 27, 61– 62

decorum

collective 179– 180, 244– 245

restitution 123– 127. See also justice,

violent 27, 32, 48– 49, 53, 59,

reparative

61– 62, 95– 97, 244– 245 ( see also

retaliation 40– 41, 88, 96– 97, 179,

vigilantism)

250, 262n48

self-determination 15, 40, 74, 105

revolution 9, 15– 17, 25– 26, 35, 41,

denial of 175– 176

60, 177– 178, 208, 257n21,

self-respect 8, 41, 52

262n51, 263n17

as principle of dignity 173, 175– 179,

riots 17, 38– 39, 45, 47– 48, 58, 63– 67

186– 187, 194

Rockefeller, Nelson 181

Sen, Amartya 14

Rodin, Auguste 217

sextremism 38, 64

Rodriguez, Harmony 189

Sharif, Manal al 18, 256n11

Rorty, Amélie 214– 218, 280n30

Sharp, Gene 246

Rose, Julie L. 280n28

Shelby, Tommie 14, 38, 42, 205, 257n18,

Rosenberg, Laura 247

262n51, 279n13

Ross, Wilbur 84

shouting down 43, 245

Rousseau, Jean-Jacques 210

Silvermint, Daniel 192

Simmons, John A. 10, 14, 110– 111,

Sabl, Andrew 60– 61, 263n15, 263n17

148– 149, 163, 166

sabotage 37– 38, 45, 56, 62, 179

Simpson, O.J. 41

Sagar, Rahul 266n28

Singer, Peter 137, 149

Samaritan

Singh, Jyoti 155

assistance 94, 142, 146– 158, 238– 241

sit-ins 4, 19, 26, 156, 227, 259n9

disobedience 141– 158

slavery 5, 15, 31, 41, 76, 78, 93, 160– 161,

duty 9, 48, 69, 71, 138– 167,

175, 200, 207– 208, 221, 225, 272n15

238– 241, 271n4

Fugitive Slave Law 93, 141, 160– 161

passerby ( see bystander)

and prison 182– 184

perils 138– 139 ( see also persistent

slave rebel ion 41, 178– 179, 195, 245

Samaritan perils)

sleepins 137

rescues 141– 158, 160, 271n7

SlutWalks 156

same-sex relations 22, 77. See also LGBTQ+

Smith, Wil iam 69, 73– 76, 78– 80, 260n16

293

294

I N D E X

Snowden, Edward 7, 12, 21, 36, 54, 70, 99– 100,

Thatcher, Margaret 169

104, 218– 219, 221, 223, 268n50

Théo L. 47– 48

social contract 54, 210, 227

Thomas, Laurence 213

solidarity 6, 19, 40– 41, 52, 63, 67– 68, 106,

Thompson, Heather Ann 183

129– 132, 142– 143, 188– 189, 238, 241

Thomson, Judith Jarvis 159

and allyship 129– 130, 188– 190

Thoreau, Henry David 5– 7, 26, 28, 78, 218,

definition of 129

223, 246

duty of 6, 19, 68, 129– 133, 187– 191,

Tometi, Opal 7

238, 250

torture 81– 83, 95, 144, 181, 249

interracial 130

Trump, Donald 58– 59, 83– 84, 149, 211,

private 190– 191

218– 221, 229– 253

symbolic expression of 40– 41, 63, 67– 68,

Twain, Mark 206– 207

106, 241– 243

solitary confinement 77, 144, 157, 175,

Unauthorized migrants. See undocumented

181– 183

migrants

Southern Leadership Conference 29

uncivil disobedience 5, 8– 10, 17, 20, 22– 23,

Southern Poverty Law Center

29, 38– 40, 42, 44– 46, 47– 71, 177– 191,

(SPLC) 238– 239

258n37, 262n51

Spartacus 195

account of 17, 44– 46

Speer, Albert 201

and civic friendship 62– 68

Spelman, Elizabeth 213

as communicative 63

Spencer, Richard 243– 244

constraints on 48– 50

state of nature 53, 139– 140, 163

covert acts of 59, 73, 93– 94, 142– 143

Stephan, Maria 58, 238, 247, 270n22

democratic potential of 55– 57

Stilz, Anna 73– 74

forward-looking concerns of 59– 62

Stone, Oliver 218, 221

implications 68– 71

strikes 8, 19, 38, 45, 49, 88, 128,

justification 8– 10, 22– 23, 29, 50– 57, 178

131– 132, 184

and the law 69– 70

Student Nonviolent Coordinating

as noncommunicative 52– 53, 59

Committee (SNCC) 3, 194

and nonviolence 59

subservience 173, 176. See also oppression

objections to 50– 57, 100– 104, 262n50

suffrage 8, 15, 21, 36– 38, 56, 62, 76,

as political participation 56

187, 223

theoretical neglect of 17– 18, 22– 23

Surveil ance 7, 54, 79, 83, 89, 99– 100, 106,

uncivil obedience 42

200, 235

Underground Railroad 93

Swartz, Aaron 57, 90, 267n38

undocumented migrants 6– 7, 19, 21,

37, 45, 48, 53, 59, 63, 76, 90, 93– 94,

Take Back the Night 156

142– 143, 145, 150, 159– 161, 167, 211,

Tarantino, Quentin 97

229– 231, 233, 235– 236, 238– 241, 243,

tax evasion 72– 73, 99

252, 265n12, 267n43. See also refugees;

Telecomix 106

sanctuary

terror 151, 157, 258n37, 262n51, 283n16

Unger, Peter 138

and Islamophobia 212, 230, 240– 241

regime of 33, 80, 144, 157

vandalism 8, 48

terrorism 4, 38, 42, 48, 90, 95, 230

Vargas, Jose Antonio 90

war on 81– 83

victim blaming 137, 156, 193– 194

Tessman, Lisa 61

Viehoff, Daniel 73, 85– 87

294

295

I N D E X

Vietnam War 24, 45, 54, 99, 217

Warren, Elizabeth 230

vigilance 103, 209– 213, 222, 247– 248

Washington, Jesse 119

vigilantism 17, 45, 48, 88, 95– 98,

Wasserstrom, Richard 24

179, 258n37

Watergate 54

violence 2– 3, 30– 35, 37– 38, 47– 49, 58– 62,

Weil, Simone 191

66, 140– 141, 158– 159, 169

Wellman, Christopher H. 14, 139– 140, 148,

authored or condoned by the state 32– 33,

162– 164, 257n21, 272n11

35, 53– 54, 66, 80– 81 ( see also official

West, Cornel 243

misconduct)

Westboro Baptist Church 42

Black 30, 95– 97

whistleblowing 7, 11– 12, 45, 48, 54– 55, 73,

and civil disobedience 25, 27

88, 98– 100, 104, 218– 219, 223, 226,

effectiveness 58– 59, 227

249– 250, 268n49. See also leaks

and force 49, 81, 88, 95, 244

White nationalism 40, 238, 243– 244

and harm 49, 53, 95– 98, 112– 113

white supremacy 18, 31, 95, 119– 121, 133,

homophobic 53, 59, 92, 95– 96

152– 153, 243– 244. See also alt-right

liability to 61

Whitehead, Colson 161

as property destruction 38, 45, 48– 49,

Wicker, Tom 180– 181

62, 131, 244– 245

WikiLeaks 41, 100

revolutionary 61, 179– 180

Wikipedia 89

in self-defense 27, 32, 48– 49, 53, 59,

Women’s Health Action and Mobilization

95– 97, 179, 244– 245

(WHAM!) 57

self-inflicted 169

Women’s March 221, 231

sexual 19, 112, 136, 144– 146, 154– 155,

wrongful beneficiaries 117– 127, 131– 133,

167, 176, 229– 230

238, 269– 270n11

and vigilantism 95– 98

wrongs to nonmembers 75, 77– 78, 84, 90,

and uncivil disobedience 44,

94– 95, 233– 234

95– 98, 258n37

voluntarism 110– 111, 117– 119, 122, 134,

Xiaobo, Liu 24

193– 194. See also fairness

Yates, Sally 231

Waldron, Jeremy 73, 236

Young, Iris Marion 12– 13, 16, 112

Walker vs. Birmingham 33, 44

Yousafzai, Malala 24

Walzer, Michael 24, 217, 256n18

war crimes 54, 99– 100, 215. See also crime;

Zirin, Dave 242

corruption

Zuckerman, Ethan 79

295

296

297

298

29

30

Document Outline

- Cover

- A Duty to Resist

- Copyright

- Contents

- Acknowledgments

- Introduction: Political Obligation(s

- 1. Principled Disobedience

- 2. In Defense of Uncivil Disobedience

- 3. Justice and Democracy

- 4. Fairness

- 5. Samaritanism

- 6. Political Association and Dignity

- 7. Acting on Political Obligations

- Conclusion

- Postscript: Resistance in the Age of Trump

- Notes

- Index

Table of Contents

Cover

A Duty to Resist

Copyright

Contents

Acknowledgments

Introduction: Political Obligation(s

1. Principled Disobedience

2. In Defense of Uncivil Disobedience

3. Justice and Democracy

4. Fairness

5. Samaritanism

6. Political Association and Dignity

7. Acting on Political Obligations

Conclusion

Postscript: Resistance in the Age of Trump

Notes

Index