Editors’ Note: Erin Pineda continues HistPhil’s forum on ‘Uncivil Civil Society,’ examining the civil dimensions of civil disobedience and their relation to our conceptions of civil society.
The details hardly need rehearsing: on the afternoon of January 6, 2021, hundreds of Trump supporters stormed the US Capitol building, mobilized by the belief that the recent presidential election was fraudulent and that Trump should remain in office. There was some violence, as individuals battled with Capitol police inside the building, who shot and killed one woman; some participants were prepared—it seems—for more protracted violence. There was some property destruction and vandalism, too, as individuals took souvenirs, defaced a memorial to John Lewis, and reportedly defecated in the building. The main point, however, was apparently to interrupt the official certification of Joe Biden’s electoral college victory. And on this front, they were, for a short time, successful: the process was suspended as members of Congress fled, though the representatives returned later that night to complete their work.
It took little time, after the event, for a partisan, discursive battle over what to call it to ensue. Was it a riot, an insurrection, a siege, an insurgency? Or was it simply a chaotic but legitimate protest—perhaps civil disobedience?
Some Republican elites and media figures insisted that we see it as the latter. These were ordinary citizens, who sincerely believed that the election had been stolen, and consequently gathered to take part in a proud American tradition: using direct, disobedient action to disrupt an official but unjust or undemocratic government procedure from proceeding. In positioning the event as civil disobedience, moreover, conservatives identified it as a normal, even laudable, part of civil society—a protest which arose from the real passions and concerns of ordinary citizens, nurtured and organized through civic associational life. At its most grandiose, January 6th was the opening disobedient salvo in a new American Revolution, akin to the Boston Tea Party. “We’re supposed to be horrified by the protesters,” Rush Limbaugh said on his show the day after. “There’s lots of people out there calling for the end of violence, lot of conservatives, social media, who say that any violence or aggression is not at all acceptable, regardless of the circumstances. I am glad that Sam Adams, Thomas Paine, the actual Tea Party guys, the men at Lexington and Concord didn’t feel that way.”
Some Republicans took a different approach—drawing an equivalence between the Capitol siege and the Black Lives Matter protests that unfolded in the wake of George Floyd’s murder at the hands of the Minneapolis police. Speaking on the floor of the House of Representatives on the same day as the insurrection, Representative Matt Gaetz (R-FL) rejected the idea that “political violence may be necessary” in the United States—while referring to the summer’s protests as a moment in which “we saw violence sweep across this nation.” In contrast, he suggested, the violence in the Capitol was minimal—and it was, anyway, probably Antifa’s doing.
Of course, most in the center and on the left did not see it that way, and drew a stark distinction between the Capitol siege and a cherished history of civil disobedience running from Gandhi and Martin Luther King, Jr. to Black Lives Matter. As John Schwartz wrote in the New York Times, paraphrasing the environmentalist Bill McKibben, “central to the idea of peaceful civil disobedience is the willingness to accept a penalty, including arrest.” In contrast, “the storming of the Capitol…involved violence and vandalism, and some members of the mob carried weapons and zip-tie handcuffs.” In short, it may have been disobedient, but it was hardly civil.
This problem—what makes civil disobedience especially civil?—is central to the tradition of theorizing civil disobedience, and key to understanding its place within civil society and associational life more generally. From one perspective, it might seem that disobedience—the violation of the laws produced by legitimate democratic institutions, or the intentional disruption of the civic life of fellow citizens—is inherently uncivil. It is counter-majoritarian, undermining the rightful authority of democratic laws produced by representative institutions; and it violates or breaks the bonds of civic trust that ought to exist between citizens. It may seem like the idea of civil disobedience is simply a contradiction in terms.
Yet theorists of civil disobedience have long maintained that the notion of civil disobedience is not contradictory, but rather contains a productive tension. In line with McKibben’s comments to the Times, political philosophers such as John Rawls, Hugo Bedau, and Michael Walzer have argued that disobedience is necessary, and can be democratic, because we are subject to imperfect institutions that can, and often do, produce injustice that undermines their integrity. Addressing those injustices—helping other citizens to see them as injustices in the first place, and to identify their rectification as a common, democratic good—is, quite simply, citizenly and civic-minded behavior.
But to earn the name civil disobedience, protestors must express through their actions this commitment to maintaining and improving the democratic order: Protestors ought to remain nonviolent; they ought to commit their acts in public; they ought to frame their claims in ways that fellow citizens can recognize and affirm as shared; they ought to willingly accept arrest and legal punishment. By limiting their actions in these ways, they express their sincerity—but more importantly, they maintain the relations of reciprocity, mutual respect, and equality that define citizenly ties and the best of associational life. They may disobey laws or disrupt order, but they do so in a way that affirms the common, public nature of democratic institutions, and demonstrates their earnest desire to reform them in ways that a majority of citizens might accept and support. To do so is to treat one’s non-protesting fellow citizens as full, free, and equal persons—those who deserve reasons for actions that impinge on them (and might harm them); those who are capable of listening to and reflecting on the claims of others. Properly understood, civil disobedience acts within—and enhances—a robust, healthy civil society.
On this reading, this is what allows for something like civil disobedience—deliberate lawbreaking in protest—to be legitimate in a liberal democracy, where laws are presumed to be the product of legitimate (though imperfect, fallible, and sometimes unjust) representative institutions and processes. And, in principle, it gives us a way of distinguishing true civil disobedience from self-serving or pernicious attempts to rebrand unacceptable, destructive, harmful forms of protest as civil disobedience. Within this framework, it is easy to see why the events of January 6th would not qualify.
There is a problem here, though, and I think it is a significant one. The same New York Times article that quoted McKibben likewise pointed out the disparity between the treatment of the Capitol rioters at the hands of police, and the overwhelming and dramatic exercise of repressive state force that regularly greets movements on the left—climate activists, Black Lives Matter, Indigenous water protectors. If true civil disobedience must clearly communicate its civility, and is easily distinguished from a riot, by its modest, peaceable means and its civic-minded, reformist intent, why do agents of the state meet nonviolent protestors with tear gas, riot shields, mass arrests, and physical brutality? For that matter, why do large shares of the US public tend to view such movements as overstepping the legitimate bounds of protest—as acting, in a word, uncivilly?
This dynamic points to the existence of a polity far less liberal and democratic than the one imagined by political theorists—one defined by entrenched forms of domination and exploitation that mark some as deserving of routine repression and violence, whether at the hands of the state or other citizens. Conceptions of civil behavior emerge out of and are embedded within this same context, and cannot serve as objective standards for comportment freed from the embodied politics of marginalization, domination, and hierarchy. Indeed, the insistence on peaceful, appropriate protest tends to serve a disciplining function—a way of “denying the political (and thus common) quality” of the claims of the marginalized, as Linda Zerilli puts it, and enabling their dismissal as “’merely subjective’ outbursts.” Or worse: facilitating their criminalization as destructive, deviant, and dangerous. The discourse of civility can, and often does, mask relations of domination by presuming an already achieved democracy that does not yet exist. It also legitimates ongoing domination in the service of securing civil order from those who would undermine it.
We can see how this idea, then, troubles the very notion of civil disobedience—destabilizing and eroding the moral meaning of its civil content. Indeed, what we call civil disobedience is always at risk of being seen as dangerously uncivil in precisely the moment that it threatens and disrupts the existing order.
What should we do, then? Is civil disobedience an idea that has outlived its usefulness—or that, ironically, only regains its usefulness once it is no longer needed (i.e., once we really do live in conditions of justice and robust democracy)? Philosopher Candice Delmas contends that, given the landscape of actually existing injustice, we should turn our attention from civil to uncivil disobedience—the latter of which will not hew to the accepted standards of the former (nonviolence, publicity, decorum, accepting arrest, and so forth) but may nevertheless be morally justifiable and materially consequential. Continuing to focus so intently on civil disobedience as a privileged political and philosophical object only serves to delegitimize the uncivil forms of resistance that might be required to prompt climate action, protect undocumented migrants, or uncover government corruption.
Delmas makes a strong case. And I certainly agree that the conversation about resistance needs to be much broader than civil disobedience. Even so, I think there is a different way of understanding the specifically civil nature of civil disobedience—one that does not require either ignoring the relationship between notions of civility and practices of domination, or doubling down on them.
As I have recently argued, thinking with the tradition of civil disobedience developed in and through the Civil Rights Movement suggests such an alternative. Viewed from this perspective, what disobedience disrupts and contests is what Martin Luther King, Jr. described as a “negative peace which is the absence of justice”—and what we might think of as the norms of civility produced and sustained by domination. Domination, for King, inculcates norms of passivity, complacency, apathy, moral blindness, and cruelty—a rejection of shared responsibility for common life, and a rejection of the mutual interdependence that defines civic (and, indeed, human) relations. It produces a civil society that does not nurture democratic habits and capacities, but instead inculcates acquiescence, submission, fear, and violence—and indeed encourages us to view these things as civility—to value and prioritize the maintenance of an order that should not be maintained. Disobedience can unsettle these norms: it intervenes and interrupts; discloses forms of oppression and violence that are ignored or disavowed; and invites citizens to reconsider their commitments and their identities in light of these realities.
Yet disobedience can still be meaningfully civil—albeit in a different sense than what is usually meant by the term. As King conceived of it, civil disobedience could be ethically and politically transformative, enabling subjects and relations defined by domination to be remade and reconstructed. In undertaking civil disobedience, marginalized individuals enliven their own capacities for action, dispelling fear, rejecting quiescence, and participating in their own liberation. In being confronted by civil disobedience and in heeding the call to undertake it themselves, privileged citizens are invited to take on their responsibilities for addressing the forms of oppression that benefit them—materially, politically, or psychologically—and thus remake themselves as well. In this way, civil disobedience seeks to produce new civic relations built on relations of mutuality, reciprocity, and equality—and indeed, to produce new subjects, capable of together constituting a genuine democracy.
This form of civil disobedience will always appear to those invested in the current order as uncivil, because it poses a genuine challenge to it. It will always fail to conform to the existing standards and perceptions of civility. Thus attempts to legitimate collective action, or distinguish “good” from “bad” protestors through recourse to a conventional conception of civility are self-defeating—and do more to undermine movements of liberation and democratic possibility than bolster them.
On my reading, the most important distinction between the Capitol rioters and Black Lives Matter is not so much form (though there is more to say on that front) as substance: not the seemingly objective facts about their actions (was there violence or property destruction, or were they peaceful?) but the meaning of those actions. For within the Capitol that January afternoon, there were militia members, Proud Boys, white nationalists garbed in neo-Nazi and Confederate symbols, and off-duty police—in short, individuals and groups who are organizing to safeguard domination (and, indeed, to demand an intensification of it). Confronted with riot police toward the end of the siege, one woman articulated the stakes quite clearly: “This is not America. They’re shooting at us. They’re supposed to shoot BLM, but they’re shooting patriots.”
The problem is less that the Capitol rioters used “uncivil” means; it’s they are invested in the wrong kind of civility—and the wrong kind of civil society—and their actions are only meant to further shore it up.
-Erin R. Pineda
Erin R. Pineda is Assistant Professor of Government at Smith College. She is a political theorist writing about direct action, civil disobedience, and democracy. Most recently, she is the author of Seeing Like an Activist: Civil Disobedience and the Civil Rights Movement (Oxford University Press 2021).