In April 1993, a group of California motorists hit the road to challenge the fifty-five-miles-per-hour freeway speed limit. The motorists did not violate any laws, or even test any legal bounds. But their actions caused significant disruption and enraged people around them. What did they do? “[J]ust about the worst thing you can do to your fellow freeway drivers: They stayed within the speed limit.”
To subvert the fifty-five-miles-per-hour rule and encourage its repeal, the National Motorists Association members devised a peculiar form of protest: meticulous compliance with the very law they opposed.
Scholars and activists have long been interested in conscientious and communicative breaches of law as an instrument of dissent. The civil disobedient violates a legal command in a bid to register opposition and motivate reform. Yet as the freeway protest underscores, people may also seek to disrupt an existing legal regime by adhering—in a hyperbolic, literalistic, or otherwise unanticipated manner—to its formal rules.
This Article begins to theorize these more paradoxical challenges to legal authority. We seek to identify, define, and elucidate the phenomenon of uncivil obedience.
In important respects, uncivil obedience is the mirror image of civil disobedience. On most accounts, civil disobedience consists of an open violation of law and a willingness to submit to punishment. Uncivil obedience inverts these terms. Instead of explicit law-breaking, it involves subversive law-following.
If civil disobedience is unusually deferential to legal protocol, relative to ordinary unlawful conduct, uncivil obedience is unusually defiant of established social practice, relative to ordinary lawful conduct. And it carries no clear legal consequences. As the California Highway Patrol spokesman said of the speed-limit protesters, “If they’re going on the freeway at 55, there’s not much we can do to them.”
Uncivil obedience is a recurring feature of public and private law contestation. Unlike civil disobedience, however, it is an obscure feature, a neglected category.
An appreciation of its workings, this Article aims to show, offers conceptual and practical rewards for scholars, protesters, and policymakers alike. Investigating this phenomenon can help us to think through not only relatively minor examples such as the speed-limit demonstration but also more significant institutional conflicts, ranging from Senate obstructionism to state anti-abortion measures to employee work-to-rule actions. Moreover, it can refract some light back on debates over civil disobedience.
Part I sets the stage by reviewing the concept of civil disobedience. Part II introduces civil disobedience’s legalistic counterpart, uncivil obedience. After developing a working definition, we explore a range of examples, variations, and complications. Part III considers how legal systems respond to uncivil obedience. Private law, we explain, is better equipped to curtail uncivil obedience than is public law, especially in civil-law jurisdictions. Regardless of whether uncivil obedience is a frequent—or even a viable—practice in any given setting, this analysis illustrates that the topic warrants serious academic and policy consideration. Part IV brings civil disobedience back into the picture to organize and inform critique. The basic dilemma that uncivil obedience poses for public law values, we argue, is no less substantial than the dilemma posed by civil disobedience. At the same time, uncivil obedience plays a distinct role within the operations of government that demands critical engagement on its own terms.
I. Civil Disobedience
Because civil disobedience is a touchstone for understanding uncivil obedience, we begin with a brief discussion of the former. Our aim in this discussion is not to break any new ground. This Part frames our inquiry into uncivil obedience by highlighting key aspects of civil disobedience recognized in the literature, along with some attendant complications and controversies.
A pared-down definition of civil disobedience, limited to elements that have attained near-universal agreement among theorists, might be the following: “a conscientious and communicative breach of law designed to demonstrate condemnation of a law or policy and to contribute to a change in that law or policy.”
Beyond these elements, one might further require that the breach be nonviolent and undertaken with a willingness to accept the legal consequences. These narrowing features are disputed; for some, they characterize the phenomenon more precisely, while for others they smuggle a normative defense of civil disobedience into a purportedly neutral definition.
On all accounts, civil disobedience is marked by a breach of positive law. The civil disobedient does not simply speak out, march, or otherwise lawfully raise objections. Instead, she distinguishes her protest by violating an official legal norm. Even this seemingly straightforward proposition gives rise to complications, two of which merit attention here. First, must the civil disobedient violate the same law she is protesting? Although a few commentators have suggested limiting the category to such direct action,
the weight of authority recognizes indirect civil disobedience as well.
People may violate a law they do not oppose (such as a traffic or trespass law) in order to challenge another law or policy (such as military policy). Indeed, in many instances, civil disobedients will be able to register their dissent only by violating a law or policy distinct from the one they are challenging.
And the conceptual line between direct and indirect civil disobedience can itself be a blurry one.
A second complication arises in legal orders with multiple sources of law. In the United States, challenges to state policies are routinely framed as attempts to vindicate federal statutory or constitutional guarantees, which enjoy the status of “the supreme Law of the Land.”
The iconic examples of civil disobedience in recent American history—actions taken by Martin Luther King, Jr., Rosa Parks, and many others as part of the civil rights movement—arose in response to state laws now understood to be incompatible with the federal Constitution. As Charles Black noted at the time, one might therefore deny that any law-breaking occurred, even without recourse to natural law arguments: “The fact that we are a federal union changes much that would be civil disobedience into a mere claim of legal right, asserted against what only seems to be law.”
Does this mean that our paradigm cases of civil disobedience actually involved no disobedience? Theorists have largely resisted this conclusion on the logic that the civil disobedient is “not simply presenting a test case for a constitutional decision,” but also or instead seeks to communicate her condemnation to an extrajudicial audience and is “prepared to oppose” the condemned measure “even if it should be upheld.”
While breach of law is a necessary aspect of civil disobedience, so too is a constraining commitment to state authority. Civil disobedience is more preservative than revolutionary. It demonstrates respect for the legal system as a whole even as it defies one piece of the system. In John Rawls’s formulation, civil disobedience “expresses disobedience to law within the limits of fidelity to law, although it is at the outer edge thereof.”
At the heart of most every conception of civil disobedience, then, is the paradox of law-breaking that is, at the same time, law-respecting. The law-respecting aspect of civil disobedience is indicated by several interrelated features.
As an initial matter, civil disobedience must be conscientious—it must be serious, sincere, and based on conviction.
An unscrupulous or impulsive act does not merit the label. While the civil disobedient need not be correct in her judgments, she must have an earnest belief both that the measure she is targeting ought to be changed and that the need for change is sufficiently weighty, as a matter of justice or morality,
to require her to break the law.
She must also communicate that sentiment to an audience. Her audience will almost certainly include government officials, and it will likely include victims of the targeted law, other dissenters, or society as a whole. As Kimberley Brownlee observes, the civil disobedient typically has both backward-looking and forward-looking communicative aims. In expressing her “disavowal of, and dissociation from, the protested law or policy,” she simultaneously seeks “to draw attention to the reasons for the protest so as to persuade the relevant audience to accept [her] position.”
Because an open breach of law may itself be powerfully expressive, the communicative element of civil disobedience will often be satisfied by the very act of law-breaking. Canonical examples have transpired in plain view and with advance notice to authorities, and some theorists have ascribed definitional significance to these attributes.
“[T]here is nothing evasive about civil disobedience,” Michael Walzer asserts; “a public claim against the state is publicly acted out.”
Yet contemporaneous openness and advance notice may not be strictly necessary. In some cases—for instance, the release of animals from research laboratories or the vandalizing of nuclear power plants—such publicity would furnish legal enforcers the opportunity to thwart the endeavor. In these cases, subsequent acknowledgement and explanation of the act may fulfill the requirement of communicativeness, along with many of the social values this requirement is thought to serve.
In breaking the law, furthermore, the civil disobedient must aim to advance a reform agenda of some sort.
It is, in substantial part, this reformist intent that distinguishes civil disobedience from conscientious objection as each has been traditionally understood. The latter is “essentially a private action by a person who wishes to avoid committing moral wrong by obeying a . . . morally bad law.”
The conscientious objector wishes to opt out. The civil disobedient, in contrast, is more interested in changing the law to which she objects than in exempting herself from participation.
While the core of civil disobedience therefore consists of a conscientious, communicative breach of law undertaken with reformist intent, two additional criteria figure prominently—though not universally—in the literature. First, numerous theorists contend, the means of resistance must be nonviolent. Nonviolence, on these accounts, is not just a hallmark of morally legitimate civil disobedience but a definitional requirement insofar as it makes “civility” possible.
Others respond that even if nonviolence is generally to be preferred, it is a category error to view any particular mode of conduct as a necessary aspect of civil disobedience.
A violent act, some writers further emphasize, may in certain cases produce less harm than a nonviolent act.
Or the evil that the civil disobedient is protesting may be so great as to justify some amount of force.
Second, classic accounts of civil disobedience envision the breach of law being paired with submission to punishment.
Martin Luther King, Jr.’s Letter from Birmingham City Jail famously focuses on this feature: “One who breaks an unjust law must do it openly, lovingly . . . and with a willingness to accept the penalty.”
The civil disobedient’s willingness to accept legal consequences evinces her commitment to the polis and humility before fellow citizens, notwithstanding her momentary turn away from the law. It is thus, for many theorists, a critical way of negotiating the paradox of law-breaking that is nonetheless law-respecting.
II. Uncivil Obedience
Certain acts of protest do not involve “disobedience” in the sense of a breach of law, and yet neither are they easily accommodated within familiar models of lawful dissent. Recall the speed-limit protesters discussed in the Introduction. They were not civil disobedients. By driving fifty-five miles per hour (without occupying the breakdown lane, obstructing emergency vehicles, or violating any other relevant directives
), they deliberately stayed within the limits of the law. And while abiding by the law is itself nothing special, the conspicuous law-abidingness of the motorists’ action was a striking feature; they displayed an extraordinary attentiveness to the rules on the books, as against common practice and widely shared sense of desirable practice. Demonstrations, boycotts, pickets, and other traditional types of protest may conform to the law as well, but the manner in which they do so is not likewise an ironic or constitutive aspect of their resistance.
Canvassing other areas of law, we find many more examples of actors engaging in a practice that seems to be a looking-glass version of civil disobedience: challenging a legal or policy scheme by adhering, in methodical yet unexpected ways, to its formal provisions. Like the speed-limit protest, some of these examples involve hyperbolic compliance with authoritative commands. Employees with grievances occasionally use a tactic that has nearly the opposite character of walking out on the job. “Working to rule,” they do exactly what they are told to do, adhere exactly to safety protocols, or report to and depart from the premises exactly on time.
After collective bargaining between American Airlines and its pilots failed in 2012, for instance, the pilots began to file incessant—and technically mandatory—maintenance requests. Rather than violate company policies or industry regulations to make a point about their value to the airline, they complied in a rigid and highly disruptive manner.
If you ran your car like American Airlines has been running for the last two weeks[,] if your car was leaking oil on the drive, write it up. Windshield wipers streaking, write it up. Shocks squeaking, write it up. Car pulls slightly to the left, write it up . . . . A lot of systems in the morning sometimes just don’t come on line in the correct sequence. You’ll get a light or the thing won’t test so the fix is to power it down and then power it back up. Is a pilot authorized to do this[?] [N]o but we all used to do it so the flight could depart on time. Now if the same problem occurs guys are putting it in the log book and taking the delay.
Terry Maxon, Another American Airlines Pilot Explains Why AA Is Having So Many Delays, Dall. Morning News: Aviation Biz Blog (Sept. 30, 2012, 6:22 pm), http://
aviationblog.dallasnews.com/2012/09/another-american-airlines-pilot-explains-why-aa-is-having-so-many-delays.html (on file with the Columbia Law Review).
Other examples involve maximalist uses of codified rights to “crash” or “flood” a system. In 1966, Columbia University sociologists Richard Cloward and Frances Fox Piven wrote a famous article in The Nation that called for “a massive drive to recruit the poor onto the welfare rolls” in order to “precipitate a profound financial and political crisis” that would lead to a replacement of welfare with “a guaranteed annual income and thus an end to poverty.”
Cloward and Piven’s plan eschewed legal fraud or trickery. Instead, it sought to exploit the “vast discrepancy . . . between the benefits to which people are entitled under public welfare programs and the sums which they actually receive.”
If millions of eligible poor people could be mobilized to claim their statutory due, Cloward and Piven thought, the welfare system would collapse, its moral and material inadequacies laid bare.
Still other examples involve the actions of government officials, including their creation of new laws.
In recent years, several states have enacted legislation mandating that all medication-induced abortions adhere strictly to a regimen approved (but not required) by the Food and Drug Administration (FDA) in 2000.
Evidence-based medicine generated a less onerous alternative protocol after 2000, and the vast majority of abortion providers have not followed the FDA-approved regimen for more than a decade.
Although the challenge to abortion rights is clear, proponents of this legislation feign obsequiousness to federal authority, insisting that they are merely hewing to the health and safety standards established by the U.S. government.
Each of these examples of subversive legalism is a type of “uncivil obedience.” This Part first defines uncivil obedience and defends our choice of label in Part II.A, and then probes some nuances and complications in Part II.B. To better illustrate the phenomenon and to underscore its potential significance, Part II.B also offers a variety of additional examples.
A. A Definition
Drawing on standard accounts of civil disobedience, we define uncivil obedience to consist of the following elements:
1) Conscientiousness—a deliberate, normatively motivated act or coordinated set of acts;
2) Communicativeness—that communicates criticism of a law or policy;
3) Reformist intent—with a significant purpose of changing or disrupting that law or policy;
4) Legality—in conformity with all applicable positive law; and
5) Legal provocation—in a manner that calls attention to its own formal legality, while departing from prevailing expectations about how the law will be followed or applied.
Uncivil obedience, as we conceive of it, is thus both a foil for and partial mirror of civil disobedience. It parallels the latter in its conscientiousness, communicativeness, and reformist intent, even as it reverses the central choice to violate the law. And while each type of action is meant to provoke, civil disobedience does so through unvarnished law-breaking, whereas uncivil obedience does so through unorthodox law-following.
Before developing these points, we stress that, while we set forth necessary and sufficient criteria in an effort to characterize uncivil obedience as clearly as possible, we cannot eliminate hard questions about the specification of the various elements. As explained in Part I, scholars of civil disobedience continue to spar about not only normative questions but also definitional ones, ranging from the place of nonviolence to the status of indirect action to the significance of an individual’s willingness to suffer punishment. Comparable disagreements are to be expected for uncivil obedience. If the definition we offer generates further elaboration and contestation, so much the better.
Conscientiousness requires that the act be subjectively serious, calculated, and grounded in sincere conviction. It does not require that the act be morally attractive or guided by fundamental principles of justice. Nor does it require that the effort be devoid of self-interest—a condition even classic examples of civil disobedience could not meet. The bar to clear here is low.
The conscientiousness criterion weeds out narrowly commercial or competitive behaviors (a lawsuit brought for pecuniary gain, a sports ploy) and instinctive or whimsical behaviors (a blurted-out remark, a mischievous improvisation) that lack entirely the depth of purpose associated with civil disobedience.
It follows that the same act can fall inside or outside the category of uncivil obedience depending on the actor’s motivations.
If driven by little more than a desire for private benefit, work-to-rule protests of the sort noted above would not satisfy the conscientiousness criterion. In contrast, work-to-rule protests animated to any significant degree by a broader normative critique—for instance, about the relationship between management and labor or the distrust of workers implied by the rules themselves—may be said to be conscientious.
The conscientiousness criterion does not rule out instrumental behavior as such. Uncivil obedience is a tactic for challenging the prevailing order. But it must be a tactic that is rooted in genuine belief about right and wrong and, as we discuss below, that is deployed to achieve lasting reform.
Communicativeness requires that the act convey disapproval of a law or policy. This message may be conveyed performatively, through the act itself, or it may be conveyed verbally, through commentary about the act. If a handful of protesters drove fifty-five miles per hour on the freeway one morning and never announced why, their behavior might elicit some honking but it would not register as a critique of the speed limit—and so would not satisfy the communicativeness criterion. If hundreds of motorists drove fifty-five at the same time, their critical message might become sufficiently self-evident. If the motorists affixed explanatory stickers to their rear windows, the message would become more apparent still.
This criterion generally implies contemporaneous publicity as to an act of uncivil obedience’s occurrence and intended significance.
Communicativeness, however, does not necessarily require candor. If it is well understood that a certain act represents a conscientious effort to disrupt a law or policy, then the act may count as uncivil obedience even if the actor herself denies any disruptive ambition. What matters is the social meaning of her words and deeds, not the semantic content of her rationalizations.
Employees who engage in work to rule and state legislators who limit medication abortion may claim that they are “just” looking out for workplace safety or women’s health, but their actions may disclose a distinct critical agenda concerning labor relations or the availability of abortion.
Reformist intent requires that the actor not only convey disapproval of some law or policy but also aspire to reshape it in an enduring manner, one that transcends her individual circumstances.
In some instances, as in the speed-limit protest and the Cloward–Piven welfare proposal, the uncivil obedient may aspire to change the law or policy with which she is conspicuously complying. Following the civil disobedience literature, we will call this direct uncivil obedience. In other instances, as in the work-to-rule and medication-abortion examples, she may utilize one law or policy to challenge another law or policy, just as a civil disobedient might utilize trespass laws (in her case, by violating them) to protest nuclear power. We will call this indirect uncivil obedience and will return to the direct–indirect distinction below.
The reform that the uncivil obedient seeks may be more or less explicit. The National Motorists Association members who protested the fifty-five-miles-per-hour speed limit wanted Congress to repeal the relevant statute (a permanent conditional spending restriction enacted in 1974).
As a second-best or substitute goal, however, uncivil obedients may aim to reshape the “law in action,”
without necessarily revising the law on the books, so that the sociolegal environment better accommodates their beliefs. It would still be uncivil obedience if the freeway protesters addressed their complaint to the state police, rather than a legislature, and asked for an unwritten practice of nonenforcement against drivers going under seventy.
As a tactic for pursuing reform, uncivil obedience may be useful in a variety of ways, which are not independent of each other and may overlap in any given case. Most basically, uncivil obedience can enhance the salience of a regulation or highlight its objectionable nature. By adhering to the freeway speed limit, the National Motorists Association protesters sought to “‘demonstrate how ridiculous driving 55 is, and how frustrated drivers get at that speed.’”
Uncivil obedience can also exert pressure more directly by undermining the efficacy or efficiency of a particular law, policy, or institution. Through work to rule, employees make it exceedingly difficult for management to run a successful business; they suppress the initiative and discretion needed to translate any set of formal directives into a productive, cooperative scheme. In many cases, uncivil obedience aims to raise the social as well as the private cost of maintaining the condemned law or policy. By maximizing welfare rolls, the Cloward–Piven plan openly sought to “precipitate a profound financial and political crisis.”
Legality is the major point of divergence from civil disobedience. This criterion requires that authoritative directives be followed rather than flouted, obeyed rather than disobeyed. More specifically, it requires that the uncivil obedient reasonably and genuinely believe it to be clear that she is violating no positive law or regulation of an applicable jurisdiction.
These laws and regulations may be public in nature, as in the case of a statute or a constitution, or they may be more private, as in the case of a contract or a code of conduct.
We say “laws” and “regulations,” plural, because the uncivil obedient’s conduct will often be governed by an array of legal norms. As we elaborate in Part III, the mere fact of scrupulous conformity with one targeted norm (for example, a speed limit) does not necessarily ensure conformity with other relevant norms (for example, an emergency vehicle right of way). Legality, as we are using it, requires that there be no evident law-breaking of any sort.
Legality is a function of both the actor’s subjective understanding and the prevailing view of what counts as lawful in a given setting. It cannot always be ruled out that an official enforcer or adjudicator will ultimately deem an act of uncivil obedience to be proscribed—for example, on the view that it excessively frustrates the spirit or purpose of a statute—just as it cannot always be ruled out that a judge will ultimately deem an act of civil disobedience to be permitted.
The critical thing is that, at the time the act is taken, it must not be apparent to the uncivil obedient or to informed observers that her behavior is proscribed. Mere evasion does not qualify. The uncivil obedient must believe that her behavior truly conforms to relevant legal norms, not just that she is unlikely to be caught or punished.
By the same token, conduct taken to facilitate a test case, on the hope that a court will recognize a new legal theory or resolve a lingering legal uncertainty, does not qualify as uncivil obedience inasmuch as the decision to bring such a case reflects significant doubt about the conduct’s lawfulness.
An important implication of the legality criterion is that the uncivil obedient need not evince any willingness to submit to punishment by the authorities, for no formal sanction is anticipated. Any number of informal sanctions may follow an episode of uncivil obedience.
Motorists who drive fifty-five on the freeway can expect to be honked at or tailgated.
Employees who engage in work to rule may be ridiculed, harassed, or worse. But because the uncivil obedient must genuinely and reasonably believe that her actions violate no laws, she will not expect to be penalized through an official fine, forfeiture, prison sentence, or the like.
Given the legal system’s broad prohibitions on premeditated violence, it further follows from the legality criterion that uncivil obedience will almost always have a nonviolent character. Whereas the nonviolence usually attending civil disobedience mitigates the breach of law, the nonviolence associated with uncivil obedience reflects the fact that no breach has occurred.
Finally, legal provocation requires that the act, although believed to be lawful, strike others as jarring or subversive—and strike others as jarring or subversive at least in part because of its very attentiveness to law. In one sense, the National Motorists Association members behaved in an utterly unexceptional manner when they drove fifty-five on the freeway. They simply followed the rules as written. But as a matter of local practice, their decision to hew to the posted speed limit was highly unconventional, outrageous even, which is why it attracted so much attention and functioned as protest. Uncivil obedience thus has a significant conventional as well as intentional aspect. Identifying its existence requires some familiarity with (or inferences about) not only the actor’s motivations but also the norms of the sociolegal environment in which she is operating.
We will have more to say in Part II.B about provocation. Here, we emphasize simply that the uncivil obedient’s use of an authoritative directive must itself provoke.
Soapbox speakers and consumer boycotters deliver countless orations and give up countless products in ways that are conscientious, communicative, reform-minded, and law-abiding. Their efforts typically will not qualify as uncivil obedience, however, because there is nothing about their obedience to authority that distinguishes their intervention. They act legally but not legalistically.
Uncivil obedience, in contrast, seeks to highlight, and exploit, the peculiar character of its compliance. Just as the civil disobedient flaunts her law-breaking, the uncivil obedient flaunts her law-following.
It is the provocative aspect of uncivil obedience that underwrites its “incivility.” The behaviors at issue defy widely held norms about how people in a given environment relate to the law, and in so doing pose a threat to social courtesy and order.
Like civil disobedience, uncivil obedience is a relative concept. Just as civil disobedience is notably more civil than ordinary law-breaking, uncivil obedience is notably less civil than ordinary law-following. Civil disobedience is civil in that it displays uncommon regard for law and decorum, considering that it partakes of illegality. Uncivil obedience is uncivil in that it displays uncommon disregard for principles of custom and moderation, even as it clings to formal legality. The oxymoronic labels capture these internal tensions.
Uncivil obedience may therefore be defined as a conscientious, communicative, and reform-minded act that expresses criticism, ironically, through law-following rather than law-breaking. As with civil disobedience, however, any attempt to unite such a wide range of behaviors under one heading raises classificatory complications. In this Part, we explore a few additional questions about the boundaries of uncivil obedience, and we offer more examples of the phenomenon to flesh out the account offered above. Again, our aim is not so much to provide an exhaustive guide to uncivil obedience as it is to provide a useful guide—and, in so doing, to put the subject on the intellectual map.
1. Legal Provocation. — Legal provocation—the requirement that the act strike others as jarring or subversive in its attentiveness to law—is the most distinctive element of uncivil obedience as we have defined the concept. This element does much the same work for uncivil obedience as breach of law does for civil disobedience. It is law-breaking above all else that distinguishes civil disobedience from more conventional forms of protest; legal provocation is what sets uncivil obedience apart. Yet while law-breaking is generally taken to be a straightforward proposition in the civil disobedience literature,
legal provocation admits of degrees and assumes quite different guises that are worth pulling apart.
How does adherence to law ever manage to provoke? The superficial paradox dissolves as soon as one considers the informal social norms that shape expectations as to how any directive will be followed and applied. These norms can be breached even when the directive itself is not. Provocation inheres in the gap between the official rules and the unofficial customs that coexist in a given area,
or between the letter of the law and its perceived purpose or spirit, and in the attention that is called to this gap. Just as some types of law-breaking (jaywalking with no cars around, driving fifty-seven miles per hour on the freeway) may not register as unusual or uncooperative on account of this gap, some types of law-following can trigger the opposite reaction.
Legal provocation may be especially legible when the act of uncivil obedience departs not only from social norms and regulatory goals but also from the actor’s immediate interests. Americans by and large assume that motorists do not wish to drive fifty-five on the freeway and that employees do not wish to work robotically to orders. When these behaviors occur, it may therefore be all the more apparent that their law-abidingness has a critical cast. Even when provocation does not entail such self-denial, however, it is always marked by the actor’s unusually intensive, ostentatious, and self-conscious engagement with the technical legality of her protest.
Legal provocation tends to take one of several basic forms. The simplest cases involve a legal command addressed to members of the public. In some (relatively rare) instances, the very fact of compliance with the command may be provocative. The speed-limit protest is an example. The National Motorists Association members drove just as fast as the law allows. Their action nonetheless grabbed headlines because, on the Southern California freeways, the “law-as-behaved” diverged so dramatically from the “law-on-the-books” that abiding by the latter was perceived as a deviant act.
In other cases, the degree of compliance with an official directive can provoke. Work to rule exploits this possibility. Managers assume that employees will be responsive to orders and will respect the terms of their contracts—but not exactly and exclusively, not woodenly. Full compliance is so inconsistent with workplace norms and management desires that it is experienced as a kind of nonviolent sabotage, the equivalent of “striking on the job.”
Unusual methods of compliance, as well as workarounds that avoid the obligation to comply, can similarly provoke.
Angela and David Boyter’s protest against the federal marriage tax “penalty” offers a colorful illustration. Realizing that their tax burden would be significantly lower if they filed as single people, and further realizing that the tax code provides that marital status for a given year depends only on whether one is married on December 31, the Boyters began to divorce each December and remarry each January.
Spending the money they saved on a lavish trip, the Boyters used their annual vacation-divorces to ridicule and raise awareness of the marriage penalty. With the apparent aim of tightening rather than loosening federal regulation, satirist Stephen Colbert recently mocked the Federal Election Commission rules prohibiting political action committee (PAC) “coordination” with electoral candidates by creating a Super PAC, turning over the reins to Jon Stewart so that Colbert could run for President, and going on Stewart’s television show to “not coordinate” with him about how the Super PAC’s money would be spent.
More colorful still is the story of the female philosopher who protested an establishment’s “no pants” rule for women by dropping her trousers and demanding to be seated.
Less ingenious examples of subversive compliance appear in the news with some regularity. Many taxpayers and toll-payers, for instance, have communicated criticism by paying the required sum in low-denomination coins.
Whereas work to rule provokes by fixating on the precise terms of an instruction, this tactic takes advantage of the fact that official directives invariably fail to address various details and contingencies. Under certain conditions, the resulting silences can be filled in antagonistic yet lawful ways.
While the core case of uncivil obedience involves hyperbolic compliance with laws that tell people what they must do, legal provocation can also occur through unorthodox uses of rights and privileges that give people the option to do certain things. Here our label is less felicitous: It may sound odd to speak of “obedience” with regard to a right or privilege that is framed in discretionary terms. But there is nothing odd about envisioning a gap between what is technically permitted by such laws and what prevailing customs or understandings would allow. When dissenters target this gap, they too may provoke through their attentiveness to, and perverse respect for, legal language. The Cloward–Piven plan, which aimed to take down the welfare system by achieving full participation of eligible individuals, provides an example.
Cloward and Piven’s basic insight—that the welfare system might be overwhelmed by a strategic shift in the number or type of legal claims made on it, even when those claims were entirely valid—has broader application.
In recent years, for instance, civil-rights activists have proposed organizing thousands of criminal defendants to refuse to plea bargain and insist upon trials. Forgoing pleas would likely disserve the immediate interests of not only prosecutors and judges but also many defendants themselves. The broader goal, however, is to “crash the justice system.”
“If everyone charged with crimes suddenly exercised his constitutional rights,” Michelle Alexander argues, “there would not be enough judges, lawyers or prison cells to deal with the ensuing tsunami of litigation,” and the resulting chaos would force a sharp decline in criminal cases and an end to mass incarceration.
Although such uncivil obedience has not occurred on a national scale,
Alexander’s premise is an old one,
and variants of her proposal have been put into practice. Public defender offices have engaged in “general strikes,” insisting on trials for all of their clients in order to change the way judges and prosecutors apply criminal laws.
In Los Angeles, for example, public defenders at one point reportedly refused to enter guilty pleas for individuals charged with prostitution until sentencing policies for the offense were amended.
2. Government Actors. — Legal provocation is not limited to actions taken by lay citizens or their lawyers. Government officials and entities can engage in it too. One virtue of the concept of uncivil obedience, in our view, is that it helps illuminate methodological continuities across public and private dissent.
We will consider the special case of subnational legislation shortly.
But the most easily recognizable form of legal provocation in government may be the maximalist enforcement tactics that have been adopted by certain chief executives. Just as full compliance is not common or desirable in many areas of law, neither is full enforcement.
Without a specific legislative instruction to do so, there is little reason to expect that an executive will implement any given authority or prosecute any given prohibition to a T, at the inevitable cost of depleting resources available for other responsibilities. Full enforcement, consequently, may be seen as upending rather than perfecting the existing sociolegal order.
For example, when Theodore Roosevelt became head of the New York Police Commission in the 1890s, he began to strictly enforce laws that required saloons to close on Sundays. Previously, the laws had been rarely and selectively enforced, according to Roosevelt, “to blackmail and browbeat the saloon keepers who were not the slaves of Tammany Hall.”
Roosevelt contended that his approach might precipitate repeal of the Sunday closing law and furthermore “prevent the Legislature from passing laws which are not meant to be enforced.”
[Roosevelt’s] reasoning had all the simplicity of originality. He was appointed to enforce the laws as they appeared on the statute books. He enforced them. That was originality; it rarely had been done before . . . . When prominent citizens and influential newspapers protested, he answered: “I am placed here to enforce the law as I find it. I shall enforce it. If you don’t like the law, repeal it.”
Ray Stannard Baker, Theodore Roosevelt: A Character Sketch, McClure’s Mag., Nov. 1898, at 23, 30, available at http://www.unz.org/Pub/McClures-1898nov-00023 (on file with the Columbia Law Review).
He thus instantiated President Ulysses Grant’s dictum: “I know no method to secure the repeal of bad or obnoxious laws so effective as their stringent execution.”
Executive nonenforcement of the law, in contrast, will not as a general matter qualify as legal provocation. In the American constitutional system, a policy of presidential nonenforcement runs straight into the Take Care Clause and its requirement “that the Laws be faithfully executed.”
Some believe that nonenforcement can be justified when the law at issue is clearly unconstitutional or in other circumstances.
But if a policy of nonenforcement provokes, it is not because it flaunts its formal legality but rather because it flirts so brazenly with illegality. Jury nullification is similar in this regard, at least in the many jurisdictions where its lawfulness is denied by judges and other authorities.
(In those jurisdictions where the jury’s power to nullify is recognized in the constitution or otherwise clearly established,
an explicit and reform-minded scheme of nullification—such as Paul Butler’s proposal to remedy the racial impact of our drug laws
—could count as uncivil obedience.)
While nonenforcement usually will not provoke in the necessary manner, practices that are similar in effect, but different in their legal posture, may do so. Consider the case of “big waiver.” In recent years, the executive branch has seized on broad waiver provisions in federal statutes to dramatically alter the regulatory landscape.
The No Child Left Behind Act of 2001, for instance, authorizes the Secretary of Education to “waive any statutory or regulatory requirement” of the Act, with limited exceptions.
The Obama Administration has used this authority to grant more than forty states waivers from the Act’s onerous requirements—and, in so doing, has required this supermajority of states to conform to its vision of sound educational policy.
Frustrated by Congress’s failure to amend No Child Left Behind, the executive has effected “nearly wholesale administrative revision” of the statute, all pursuant to the express terms of the statute.
Judicial application of the law is unlikely to qualify as uncivil obedience for a distinct set of reasons. In contemporary American practice, judges in particular are expected to attend carefully to the letter of the law.
Even when they construe a directive in a literalistic manner, it will therefore rarely come across as an ironic or inflammatory intervention; it is more likely to be seen as ordinary judicial fare. Judges are also believed by many to be authoritative interpreters of legal texts, so that their rulings are seen as elaborating the underlying law rather than changing or challenging it in some reformist fashion. While we can imagine hypothetical examples of judges communicating a reformist intent through subversive attention to legal language (for instance, a judge sentencing at the very top of the guidelines range in order to protest draconian criminal penalties
), and while our categories might be extended to embrace more judicial behavior, we are skeptical about the prevalence of judicial uncivil obedience as we have defined the concept.
Finally, it bears mention that legal provocation may occur within, and not just by, institutions of government. We can see this vividly in the modern U.S. Senate. In recent years, minority-party senators have relied on a host of procedural privileges to undermine measures that have already become law or are on course to doing so. These senators have demanded that the entire text of lengthy bills be read aloud on the Senate floor.
They have made “seemingly endless quorum calls and motions to reconsider previous votes.”
They have used the filibuster in a routine manner, rather than in its traditional and, in the view of many, intended capacity as “the tool of last resort.”
They have likewise used “holds” to stymie nominations and bills on an unprecedented scale.
Together with allies in the House of Representatives, several of them have deployed still more unorthodox maneuvers in a campaign to defund “Obamacare.”
Although their criticisms are pitched in the language of conscience and crisis and their tactics defy longstanding conventions,
the Senators who engage in these behaviors have emphasized the formal legality of their obstructionism. They have waged their campaign to undermine the majority agenda not as law-breakers but as legal mavens, devotees and defenders of the procedural rulebook.
3. Direct, Indirect, and Comprehensive Variants. — Of course, minority-party senators have not been using procedural privileges in novel ways to challenge those privileges themselves. Rather, they are engaging in what we have called indirect uncivil obedience.
On a micro level, these senators have turned to legalism to challenge specific laws such as Obamacare. On a macro level, they have fastened on the rules of procedure as a means to subvert the other party’s entire political program.
The direct version of uncivil obedience can be an especially elegant mode of advocacy. Adherence to law is leveraged to challenge the very law that is being followed. By sticking to the speed limit, the National Motorists Association members enacted their critique of it. The arguments they offered were largely superfluous; the deed spoke for itself. The Cloward–Piven plan and Roosevelt’s enforcement of Sunday saloon laws were not quite so self-explanatory, but they too sought to catalyze reform simply by demonstrating what the laws on the books, if taken seriously, were capable of.
A somewhat more complicated example of direct uncivil obedience is the Great American Boycott of 2006, during which more than a million people took to the streets demanding reform of U.S. immigration laws.
Responding most immediately to a House bill targeting undocumented aliens, protesters skipped work to show what the economy would look like without their labor (hence another name for the event: “A Day Without Immigrants”). Meat processing plants, vineyards, and farms were forced to close for the day.
By following the laws that bar them from employment, undocumented immigrants sought to demonstrate the laws’ intolerable implications.
Indirect uncivil obedience is almost certainly more common than direct uncivil obedience. The indirect uncivil obedient has greater degrees of freedom. She may make her point by conspicuously applying or adhering to any number of laws or policies that relate to the object of her condemnation, not just the condemned law or policy itself. Under work to rule, for instance, employees may hyper-comply with dozens of safety rules, contract terms, or industry regulations in the effort to reform the employment relationship.
Although it is useful and intuitive to distinguish these two types of uncivil obedience, “direct” and “indirect” are best understood as reflecting ranges along a continuum rather than a sharp dichotomy—just as with civil disobedience.
Moreover, depending on how broadly or narrowly one defines the law or policy that is being challenged, the same act of uncivil obedience may be described as more or less direct or indirect. Consider the recurring proposals for criminal defendants to refuse to plea bargain.
The defendants involved would not, of course, be exercising their constitutional trial rights in order to undermine those rights. The point is to undermine a cluster of laws and policies contributing to mass incarceration and racial injustice, evils that may seem remote from the Sixth Amendment. Yet if we were to characterize the object of reform at a higher level of generality—as, say, the American criminal justice system—then these schemes begin to look more direct.
Some episodes of uncivil obedience may be especially hard to place on the direct–indirect continuum not because the fit between means and ends is so loose, but because they do not have any specific law or policy as their intended target. Most uncivil obedience, like most civil disobedience, has relatively “focused and limited objectives.”
Certain cases, however, reflect a more diffuse ambition. Their aim is to challenge an entire mode of governance, political structure, or similarly capacious construct.
On one reading, the obstructionist tactics of recent Senate minorities fit this description. The Republican senators who leaned so heavily on the filibuster, the hold, the quorum call, and the like arguably were not out to derail any particular Democratic initiative as much as to repudiate the entire worldview for which the Democratic Party has come to stand.
It is understandable that so many different tools of resistance would be enlisted in this campaign, as the campaign itself is so broad and encompassing. The systematic resort to legalistic obstructionism, within this context, seems better understood as a comprehensive program of uncivil obedience than as a series of discrete dissents.
We find it difficult to envision uncivil obedience operating on such a model, if for no other reason than its painstaking concern for legal detail. Uncivil obedience’s strategic adherence to and reliance on the formal legal system implies that its rejection of existing political structures will never be quite so profound or so radical. Political disobedience “refuses to play the game.” Id. at 59. Uncivil obedience, even on a comprehensive scale, plays it with extreme dexterity.
4. Federalism: Lawmaking as Dissent. — The examples of uncivil obedience we have discussed so far exploit laws or policies that are already on the books. In some cases, however, we might also conceptualize the promulgation of new laws as uncivil obedience vis-à-vis a superior legal authority. This is a necessarily indirect form of uncivil obedience—the legislation that is drafted will not be a challenge to itself but to some other law or policy. It is also a form that falls at the outer bounds of uncivil obedience and puts pressure on the definition offered above.
In the United States, federalism is the most fecund source of legislative uncivil obedience.
While traditional accounts cast the states and the federal government as separate sovereigns, recent work has emphasized that the two occupy largely overlapping and intertwined policymaking spaces.
States generate national policy together with the federal government, and they frequently push back against the vision of national policy articulated by the federal government.
Occasionally they do so through overt resistance, engaging in something analogous to civil disobedience.
But they may also find uncivil obedience to be a powerful tool: States not infrequently adopt measures that trumpet their technical consistency with federal law while at a deeper level subverting it.
States may, for example, enact laws that expressly incorporate federal law or policy in order to challenge a related body of federal law or policy, thereby disrupting its operation locally if not also nationally. Recall the medication-abortion example from the introduction to this Part.
Arizona, North Dakota, Ohio, Oklahoma, and Texas have each passed laws requiring that abortions performed using the drug combination Mifeprex adhere strictly to a protocol specified by the FDA more than a decade ago.
The FDA protocol is not itself binding—the FDA generally anticipates and welcomes evidence-based departures from on-label use of approved drugs—and in the years since it was adopted, practitioners have widely shifted to an alternative regimen that involves lower doses of the drug, fewer visits to the doctor, and a greater period of availability.
Certain state legislatures have, nonetheless, elevated the FDA protocol to the status of a legal requirement. Despite the implications for abortion access protected by the federal Constitution, these legislatures contend that they are ensuring abortion is safe for women by mandating compliance with federal health and safety standards.
States have similarly incorporated federal law into restrictive immigration measures. Arizona’s controversial S.B. 1070, for instance, hewed closely to federal immigration statutes.
Among other things, S.B. 1070 made failure to comply with federal alien-registration requirements a state misdemeanor; authorized officers to make warrantless arrests of individuals they believed to be removable under federal law; and required officers to verify with the federal government the immigration status of individuals stopped or arrested and reasonably believed to be unlawfully present.
State sponsors were not shy about presenting S.B. 1070 as a challenge to the federal government. And yet they insisted that they were adhering to federal law, properly understood, and that their grievance lay with the federal executive branch’s lack of enforcement.
On what legal basis, they asked, could they be barred from adopting a law that “mirrors” the terms of federal law, often word for word?
Like the states in the Mifeprex example, Arizona took a federal policy that leaves ample space for discretion (in this case by government enforcers rather than private actors) and challenged the policy by demanding strict adherence to it as a matter of state law.
States may also engage in a subtler legislative variant of uncivil obedience by imposing regulations that purport to be focused on discrete state responsibilities even as they affect the implementation of federal law. For instance, state legislatures and agencies have recently targeted the federally paid “navigators” who help individuals sign up for health insurance under Obamacare. Many Republican-controlled states require that navigators undergo background checks and restrict them from offering advice about the features of particular health plans.
In contrast to more overtly oppositional efforts to thwart Obamacare, proponents of these measures stress their consistency with states’ established role in regulating the insurance industry.
They contend that such measures are necessary to protect privacy and safeguard consumers, and they trade on traditional understandings of separate state and federal spheres—arguing that consumer protection is a state responsibility in our constitutional system—even as they exploit the overlap of state and federal spheres to undermine federal policy.
While we believe each of these examples can be analyzed as uncivil obedience, they are difficult cases. Most importantly, they might be dismissed as law-evasion on the view that their state sponsors are—and appreciate that they are—violating federal mandates, just in shrewd ways that complicate detection or sanction.
This objection is clearest, perhaps, with respect to the state abortion measures. U.S. Supreme Court doctrine provides that regulations with the purpose or effect of placing substantial obstacles in the path of women seeking abortions are unconstitutional.
As several federal courts have recognized, the above-mentioned laws seem designed to curtail abortion rights.
And the Supreme Court invalidated most of the challenged provisions of Arizona’s S.B. 1070 on preemption grounds, finding that the provisions were inconsistent with federal law notwithstanding their textual mimicry thereof.
Yet dismissing these examples as mere attempts at evasion may be too easy; it fails to capture the legal bravado of their approach as well as at least some of their proponents’ self-understanding. Uncivil obedience, recall, does not lose its status as such solely because the behavior in question is ultimately deemed unlawful, just as civil disobedience does not lose its status as such solely because the behavior is ultimately deemed lawful.
The critical question is whether, at the time the act is taken (here, at the time the state law is passed), those responsible for the act genuinely and reasonably believe it accords with all positive law. This is a close question in each of the examples presented above, especially given that we are dealing with collective agents that may lack any shared understanding of the law. But it seems plausible that many, if not all, of the responsible state legislators believed themselves to be acting in conformity with federal law, even as they conscientiously sought to challenge a particular piece of it, on account of the care they took to model their measures on traditional state regulations or federal government texts. Through their unusual attention to legal detail, these lawmakers have been disrupting and defying federal legal policy from a posture of obedience.
III. Capacitating and Constraining Uncivil Obedience
Having defined uncivil obedience and limned its basic mechanisms and variants, we now broaden the lens to explore regulatory and jurisprudential implications. This Part considers the circumstances under which laws prove more or less susceptible to uncivil obedience, as well as some of the legal responses that its practice elicits. As the discussion so far has detailed, uncivil obedience manages to provoke through and within the law by exploiting gaps between the letter of legal directives and the customs or purposes associated with them. By attending to these predicates, it becomes easier to see how the availability and efficacy of uncivil obedience may be conditioned by the surrounding doctrinal, institutional, and cultural context.
Several variables offer regulatory leverage. Here, we focus on whether a given directive assumes the form of a standard or a rule, and on whether and how a jurisdiction employs doctrines such as abuse of right and preemption. Private law, we explain, has developed more robust doctrines for disciplining uncivil obedience than has public law. We also consider the role of decentralized dynamics such as group “knittedness,” extralegal sanctions, and the prevalence of positivism and formalism versus alternative understandings of law. We do not take up the issue of when legislators, bureaucrats, and other officials will seek to curtail uncivil obedience. Although it will often be intuitive why they might wish to do so, the motivations of these actors are too diverse and contingent to treat in a general fashion. For purposes of this discussion, one need only accept that at least some officials will want to curtail uncivil obedience at least some of the time.
A. Rules and Standards
In the legal literature on rules versus standards, a rule is generally taken to be a directive that “binds a decisionmaker to respond in a determinate way to the presence of delimited triggering facts.”
Rules are precise. They constrain the discretion of enforcers and interpreters through crisp ex ante instructions. “The speed limit is fifty-five miles per hour” is a classic rule. A standard, in contrast, “tends to collapse decisionmaking back into the direct application of the background principle or policy to a fact situation.”
Standards are imprecise. They leave much of their content to be worked out by enforcers and interpreters on a case-by-case basis. “Drive at a reasonable speed” is a classic standard.
Although rules and standards do not reflect sharply delineated categories so much as ranges along “a continuum of greater or lesser ‘ruleness,’”
the basic distinction between the two is useful and ubiquitous.
Uncivil obedience thrives on rules. Rules are by nature both over- and under-inclusive. In the pursuit of clarity and certainty, they invariably “produce arbitrariness and errors in particular cases” that come within their ambit but do not fit well with the reasons for establishing the rule.
The rigidity of rules often means that they can be implemented in ways that are consistent with their terms—and therefore presumptively lawful—yet insensitive to their underlying purposes and presuppositions or to the customs of compliance and enforcement that have developed in a given context. If the one law that governs driving on the freeway is “Speed Limit 55,” then driving fifty-five miles per hour will always and unquestionably be legal (and driving fifty-six will always be illegal), no matter how deviant or disruptive any case is perceived to be. Uncivil obedience trades on this possibility of defying norms through legal exactitude.
Standards contain built-in safeguards against such manipulation, insofar as they “incorporate [their underlying] norms directly”
and allow enforcers and adjudicators to consider a wider range of facts and factors. A law that says “Drive at a reasonable speed” does not similarly immunize all motorists traveling fifty-five miles per hour from a finding of illegality. Any driving that comes across as bizarre or inflammatory is at risk of being construed as unreasonable.
One way to limit the incidence of uncivil obedience, then, is for authorities to employ standards instead of rules (or, more precisely, to employ directives that are more standard-like and less rule-like). Conversely, one way for activists to take advantage of uncivil obedience is to identify rules that by their plain terms insulate certain “incivilities”—abnormal, antisocial, expressive behaviors—from official sanction. If employees are asked to carry out their duties in a “timely and efficient manner” rather than to follow a detailed list of instructions, then they will have little prospect of engaging in work to rule.
If the tax code determined marital status through a totality-of-the-circumstances test rather than a December 31 snapshot, then the Boyters would have been blocked from carrying out their divorce-and-remarry scheme.
If senators’ option to use read-a-thons and holds were tied to an explicit requirement of “necessity,” “exceptional circumstances,” or the like, then critics would have an easier time casting repeat users as lawbreakers (whether or not the requirement could ever be enforced in court).
In some cases, the switch from a rule to a standard may go further and eliminate the substantive basis for uncivil obedience. If Congress had told freeway motorists to drive at a safe speed rather than at fifty-five miles per hour or less, then the National Motorists Association presumably never would have staged its protest.
The turn to standards can undermine uncivil obedience at the level of legitimacy as well as legality, not only by increasing the protester’s odds of punishment but also by foregrounding the subversive aspect of her behavior. Standards moralize the practice of compliance. “Rather than applying a rule by rote, citizens must ask themselves, for example, whether they are treating one another fairly, whether they are acting in good faith, whether they are taking due care, whether they are behaving reasonably, and the like.”
The very framing of these questions invites normative deliberation
and suggests the appeal of established custom.
Importantly, the standard that forecloses uncivil obedience need not be adopted in lieu of a rule, but may be adopted in addition to a rule. In some cases, that is, practices may be governed by both a rule and a standard
—often, a standard that applies to a wider swath of behavior than the rule—and the standard may provide a backstop against certain forms of rule-conforming incivility. This is most likely to occur when the standard targets disruptive or pretextual activity. For instance, if the relevant rule instructs motorists to pay posted tolls, a would-be uncivil obedient who pays in pennies with the intent of obstructing traffic might, in some jurisdictions, be vulnerable to a charge of disorderly conduct or public nuisance.
(A large group of penny-payers may be especially vulnerable, given the likely correlation between the protest’s scale and the level of disruption.) At a significant potential cost to legal certainty and civil liberties,
broadly framed prohibitions of this sort can effectively reduce the overinclusiveness of permissive rules and the underinclusiveness of restrictive rules in regulating unanticipated, uncooperative behaviors.
If the specter of uncivil obedience can push lawmakers to frame directives as standards, so too may it push interpreters and implementers to construe rules in more standard-like terms. A formal revision to the governing law is not always necessary. Through “rule-avoidance strategies” such as the creation of ad hoc exceptions, resort to reasonableness qualifications, and broad forms of purposive analysis, interpreters and implementers may be able to functionally convert a seemingly stringent rule into a more open-ended standard.
In this vein, for example, some work-to-rule campaigns have been deemed inconsistent with the employment contracts to which they strictly adhered (and thus tantamount to unprotected partial strikes).
And one federal appellate panel suggested that the Boyters’ divorces might not be recognized under the tax code because they were “shams.”
Consistent with Frederick Schauer’s “convergence hypothesis,” the desire to avert uncivil obedience thus provides an additional basis for predicting the evolution of rules into standards in the face of legalistic behavior.
What begins as uncivil obedience ex ante may emerge from adjudication as law-breaking ex post.
In some cases, it is unnecessary to shift to a standard, through any means, to foreclose uncivil obedience. A diametrically opposed response is for lawmakers to counter instances of uncivil obedience with still more specific rules. To deal with the problem of protesters who pay their taxes and tolls in low-denomination coins, several countries have declined to enlist expansive notions of disorderly conduct, public nuisance, or the like. Rather, they have simply decreed that their smallest units of currency cease to count as legal tender when aggregated above a certain amount. In the United Kingdom, for example, “coins of bronze” are not legal tender “for payment of any amount . . . exceeding 20 pence.”
Attempting to discharge a £200 tax debt with pence is not a provocative method of complying with the law in London. It is an underpayment of £199.80.
By putting pressure on the existing rules in these various ways, uncivil obedience dynamically refines but also complicates the project of regulation. Rules are often preferred to standards because they are thought to generate greater certainty, predictability, and uniformity.
Uncivil obedience recasts these features as liabilities: The rigidity and clarity they generate are what allow dissenters to unsettle the status quo from a secure legal perch. To the extent that citizens and officials wish to stave off uncivil obedience, then, they may have to forfeit some of the benefits of rules and accept the higher levels of indeterminacy, enforcement discretion, and administrative costs associated with standards; or else they may have to undergo the trouble of supplementing the current rules with more severe rules, which will in turn come with their own negative externalities.
In either event, they will be pushed away from their initial choice as to the appropriate mix of rules and standards and the desired level of specificity at which to frame directives in a given domain. Uncivil obedience reveals the latent subversive potential of regulatory precision, and in so doing both catalyzes legal change and raises the cost of lawmaking.
B. Transsubstantive Doctrines
Legal designers may also seek to constrain uncivil obedience in a more comprehensive fashion, through general principles or “interstitial norms” that condition all uses of law by certain subjects.
In contemporary practice, the doctrines of abuse of right, equity, and preemption, in particular, have come to serve this function.
1. Abuse of Right, Equity, and Related Doctrines. — A version of the doctrine of abuse of right (abus de droit) appears in many civil-law and mixed jurisdictions, as well as in international law.
The basic idea is that conduct that adheres to the plain terms of the law may nonetheless be treated as unlawful when sufficiently unreasonable or antisocial—abusive—in some respect. “In international law,” for example, “abuse of rights refers to a State exercising a right either in a way which impedes the enjoyment by other States of their own rights or for an end different from that for which the right was created, to the injury of another State.”
In the domestic context, the doctrine acts as a safeguard against legalistic assertions of rights, powers, privileges, claims, or immunities by private parties that are seen to reflect bad faith or to impose unwarranted social costs.
Abuse of right “soften[s] the harshness of the positive law and of contractual provisions in light of society’s concerns that transcend individual interests.”
The narrowest formulations of abuse of right are unlikely to check uncivil obedience. Focused on the right holder’s subjective intent, these formulations ask whether causing harm to another was her only or predominant purpose in acting as she did.
The classic example is the landowner who erects a tall fence on her property for the sole, spiteful end of depriving her neighbor of light.
A somewhat looser and more objective version of the doctrine proscribes otherwise lawful conduct that lacks any “legitimate interest,” as when a landowner “pump[s] from her land the groundwater feeding her neighbor’s mill only to end up wasting it.”
Uncivil obedience, as we have defined it, is all but certain to evade these understandings of abuse of right. The limited class of malicious and arbitrary acts they condemn is readily distinguishable from the uncivil obedient’s conscientious and communicative attempt to effect lasting change to law or policy.
Broader formulations of abuse of right, however, can pose a significant challenge to uncivil obedience. Some of these formulations ask if the right holder’s conduct is contrary to the “normal function” of the right or its “socio-economic purpose,”
while others ask if her conduct is unreasonable “in the light of the prevailing social conscience”
or in light of “the disproportion between [her] interest to exercise the right and the harm caused thereby.”
All of these broader variants focus, in one way or another, on “the act itself” and whether it is “abnormal or excessive” or “its consequences unacceptable.”
Often a form of teleological reasoning underwrites these inquiries. Abuse is taken to occur when the right holder’s behavior is facially consistent with formal law but “inconsistent with the aim of the institution, its spirit and its ultimate purpose.”
It is not hard to imagine how these notions of abuse of right could be applied to stifle uncivil obedience. Employees who engage in work to rule could be (and have been) accused of undermining the “normal function” of the workplace.
Taxpayers who pay in pennies could be accused of acting in an unreasonable or antisocial manner. Critics who advocate maxing out the welfare system could be accused of subverting the socioeconomic purpose of public benefits laws. And so on. Even the National Motorists Association members who drove at the speed limit might have been charged with abusing the freeway laws’ “ultimate purpose” of ensuring the smooth and safe flow of traffic. If this logic were extended to domestic public law, abuse of right could provide a powerful basis for attacking behaviors such as Senate minorities’ relentless use of the hold and other procedural privileges.
Uncivil obedience, once again, provokes by exploiting gaps between the letter of legal directives and the customs or purposes associated with them. The broadest versions of the abuse-of-right doctrine close these gaps as a matter of law. They effectively impose a requirement of civility on all legal transactions. If prohibitions on disorderly conduct, public nuisance, and the like can curb uncivil obedience through a mix of discrete rules and standards, abuse of right may amount to a roving super-standard—with super-sized implications for the typical costs and benefits associated with the regulatory form. As compared to a patchwork of directives that target incivility in specific domains, a broad doctrine of abuse of right is significantly easier to develop and adapt to new circumstances. It is also significantly more likely to generate confusion, chilling effects, and executive and judicial discretion.
Outside the civil-law enclave of Louisiana,
the doctrine of abuse of right has played little explicit role in the Anglo-American legal system. Late-nineteenth-century English cases arguably reject the doctrine’s subjective formulations altogether, as in Lord Halsbury’s famous statement in Mayor of Bradford v. Pickles that “[i]f it was a lawful act, however ill the motive might be, he had a right to do it.”
Yet as several scholars have documented, the United States and other common-law jurisdictions nevertheless employ a number of concepts that serve a comparable function in private law “under such labels as nuisance, duress, good faith, economic waste, public policy, misuse of copyright and patent rights, lack of business purpose in tax law, extortion, and others.”
Where these concepts apply, they may similarly serve to constrain uncivil obedience. An unanticipated, mechanistic application of a contract term, for example, might be construed to violate the implied duty of good faith.
Historically, equity has played an especially important role in common-law systems in policing conduct that adheres to a law’s formalistic requirements but clashes with the purposes or values the law was meant to serve. Many of the concepts discussed just above “are themselves largely . . . the result of the gravitational pull of the equitable doctrines that provide the judicial recourse of last resort to invalidate facially legal conduct when the available interpretive strategies would strain credulity and undermine legal meaning generally.”
According to Henry Smith’s “safety valve” theory of equity, its principal function has been to prevent opportunistic behavior that would be too costly to define and deter ex ante.
Like abuse of right in civil systems, equity supplies common lawyers with a highly adaptable “anti-opportunism device.”
It is important to see, however, that the success of equity and its offshoots in preventing uncivil obedience has been incomplete. This is so for at least two main reasons. First, as Smith notes, equity intervenes “in a limited domain.”
Even if the “distinctive traditions of equity now pervade the legal system” in some sense following the merger of law and equity in most U.S. courts,
formalism, clear rules, and other limits on judicial discretion continue to cabin equity’s reach,
especially in public law.
Second, uncivil obedience does not necessarily involve opportunism, either in the economists’ sense of “self-interest seeking with guile”
or in Smith’s preferred formulation of behavior “that would be contracted away if ex ante transaction costs were lower” and that “often violates moral norms.”
Given its conscientiousness and reformist ambition, uncivil obedience is a more morally ambiguous category. Even where equitable principles do hold sway, they may not condemn uncivil obedience.
This Article’s examples reflect as much. Senators who have made “uncivil” use of their procedural privileges have suffered no legal sanction. Neither did the National Motorists Association members who drove at the speed limit; nor did Stephen Colbert when he strategized with the head of his Super PAC on television without technically “coordinating”; nor did any number of lawyers and activists who have tried to “crash” the criminal justice and public benefits systems. Not coincidentally, the examples that come closest to ordinary opportunism—the Boyters’ divorce-and-remarry scheme and work to rule—have encountered greater legal resistance. Yet even these cases reveal the limits of that resistance. Although one appeals court eventually suggested that the Boyters’ divorces might be treated as “sham” transactions, it never ruled on the issue.
And while some work-to-rule campaigns have been treated as unprotected partial strikes, others have fared much better in court,
and the National Labor Relations Board “has not directly addressed the legal status of work-to-rule or delineated when it crosses the line into unprotected partial strike activity.”
In sum, both the spirit of equity and its specific doctrinal manifestations in American contract law, tort law, and elsewhere may be enlisted to rein in uncivil obedience, especially when it comes across as deceptive or self-serving. But they have not foreclosed this mode of dissent. In contemporary practice, abuse of right appears to offer a more powerful tool for disciplining and deterring uncivil obedience.
These observations raise the interesting—and potentially testable
—question whether uncivil obedience tends to flourish in common-law jurisdictions relative to civil-law jurisdictions (thus making the “uncivil” label all the more appropriate). The lack of a standalone doctrine of abuse of right would seem to put uncivil obedience on a firmer legal footing in the United States than, say, in France; all else equal, Americans who exercise their rights in unconventional and disruptive ways ought to face lower odds of formal sanction across various areas of law. They may also face lower odds of informal condemnation, inasmuch as the very existence of an abuse-of-right doctrine makes it easier for people in civil-law countries to recognize hyperbolic adherence to law as a form of incivility, as a potential “abuse” of the system rather than an unusually restrained mode of dissent. The absence of this doctrine in the United States, moreover, may reflect features of our legal culture that facilitate uncivil obedience in a deeper sense, such as comparatively low levels of comfort with teleology and balancing as interpretive methods, or comparatively high levels of reverence for text-based reasoning and liberal individualism.
2. Preemption. — Abuse of right and related doctrines can thus serve as a check against the uncivil obedience of private parties, as well as nation-states, by stripping legal protection from a more or less open-ended set of legalistic incivilities. These doctrines, however, remain on the margins of domestic public law in general and American public law in particular. And as we have noted, a federal system such as the United States’ is ripe for an especially vexing type of uncivil obedience—when states enact measures that flaunt their superficial attentiveness to federal law or policy while at the same time attempting to subvert it.
Beyond any of the constitutional principles that limit state legislative authority in specific domains, the transsubstantive doctrine of preemption offers the most significant safeguard against this legislative variant of uncivil obedience.
Obstacle preemption is the key. As currently configured, U.S. preemption doctrine reaches not only state laws that are expressly displaced by federal law or that occupy a regulatory field understood to belong exclusively to the federal government, but also state laws that impliedly conflict with federal law. Such a conflict may arise either when “compliance with both federal and state regulations is a physical impossibility”
or, more broadly, when state law “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.”
This broader strand of implied preemption doctrine parallels the broader strands of abuse-of-right doctrine in its privileging of functional and purposive considerations, and in the discretion that is consequently afforded to judges.
Like abuse of right, obstacle preemption refuses to accept that technical compatibility with legal language ensures substantive legality.
Arizona v. United States provides a notable recent example of how obstacle preemption can thwart uncivil obedience.
As explained in Part II, the legal architects of Arizona’s S.B. 1070 sought to insulate themselves from a preemption challenge, even as they railed against the federal government’s immigration policy, by “mirroring” the terms of federal immigration law: A state statute can hardly be said to conflict with a federal statute, they argued, when the two use the same words.
In dissent, Justice Scalia credited this approach with ensuring “complete compliance” with federal law.
A majority of the Justices, however, rejected the mirror-image theory on the ground that key provisions of S.B. 1070 were designed to “undermine federal law” rather than reinforce it,
creating “an obstacle to the full purposes and objectives of Congress” in regulating immigration.
Meticulously reprising the terms of federal law, the Court reasoned, can be just as disruptive as openly rejecting them. Although the facts of Arizona may be peculiar, this reasoning is broadly generalizable. A concern with uncivil obedience could lead judges to look warily at state efforts at self-insulation far beyond the preemption-heavy realms of immigration and foreign affairs.
Arizona v. United States is instructive in another respect as well. To thwart state uncivil obedience, preemption doctrine may need to cast the executive branch’s delegated discretion as part of the federal law that has preemptive effect. The State of Arizona argued that to the extent S.B. 1070 differed from federal immigration policy, it departed only from the federal executive branch’s lax enforcement, not from the underlying congressional mandate.
But the Court declined to parse legislative and executive power in this way. Instead, it conceived of the executive’s enforcement discretion as an integral component of Congress’s design.
The Justices in the majority were not troubled by the alleged gap that had opened up between the relatively rigid law on the books and the more flexible law in action. By construing such gaps as a feature rather than a bug of a federal statutory scheme, courts make it much more difficult for states to challenge federal policy as the ostensible agents of Congress.
Obstacle preemption and, especially, the assigning of preemptive effect to executive-branch actions are both controversial propositions.
We take no position in this Article on whether they should be extended or curtailed in light of the phenomenon of legalistic state dissent.
Our claims here are that these doctrines are well-suited to identifying and checking such dissent; that they already play this regulatory role; and that it is impossible to assess them without considering the varieties of uncivil obedience to which they may respond.
C. Decentralized Dynamics
Thus far, this Part has focused on governmental responses to uncivil obedience, involving the adoption and implementation of official doctrines and directives. In many contexts, however, informal dynamics may play a large role in regulating these acts of dissent. Uncivil obedience manages to be uncivil and obedient at the same time by defying unwritten norms concerning how the law is to be followed or applied. Where these norms exert stronger disciplinary force, then, we should tend to see less uncivil obedience. Three broad sets of variables are especially relevant.
First, uncivil obedience may be subject to more intensive nonlegal regulation in close-knit environments with high degrees of interaction, information flow, and trust among the participants.
In these environments, a substantial literature has shown, norms of reciprocity and decency often emerge and suppress antisocial behavior.
Once established, moreover, these cooperation-promoting norms may operate independently from, and even in the teeth of, formal legal entitlements.
Compared to a driver or a taxpayer considering whether to comply with the freeway speed limit or the federal tax code in a formally lawful yet unconventional manner, a homeowner in a close-knit neighborhood considering whether to register her dissent by taking advantage of a technicality in the zoning code is more likely to have internalized social norms that hold her back (at least, assuming her neighbors are not already known to support her goals and methods). She is more likely to resist the turn to legalism. To the extent that private law tends to regulate more closely knit settings than does public law, these points suggest that uncivil obedience should have a firmer foothold in the latter—above all in the anomic space where ordinary citizens confront the regulatory state. This Article’s examples of challenges to the welfare system, the criminal justice system, and the Internal Revenue Service, among other public bureaucracies, provide some anecdotal support for this speculation.
These points may also bear on the incidence of uncivil obedience within certain governmental settings. The United States Senate was known throughout the mid-twentieth century as a “gentleman’s club,”
a “communitarian” institution “in which norms of restraint and reciprocity governed senators’ behavior.”
By the late 1980s, however, the Senate had become a very different body, characterized by individualism, mutual mistrust, and a deep and widening partisan divide.
The Senate, in other words, became less close-knit (in the Ellicksonian sense) even though its size stayed the same. This transformation, in turn, facilitated an erosion of unwritten norms of comity and solidarity that had previously curbed the use of uncivil obedience with respect to the chamber’s procedural rules.
Second, and relatedly, uncivil obedience is less likely to flourish in settings where cooperation-promoting norms are backed by effective informal sanctions. As discussed in Part II, while acts of uncivil obedience are believed to be lawful, this hardly guarantees they will escape punishment.
Informal sanctions such as retaliation, ridicule, and ostracism can substitute for formal sanctions as correctives and deterrents to perceived incivilities.
Employees who engage in work to rule, for example, may face any manner of unofficial reprisal from their managers, even in situations where the labor laws appear to protect the employees’ conduct.
Because close-knit groups typically find it easier to impose sanctions based on reputation or reciprocity,
they are better equipped to enforce as well as to develop extralegal prohibitions on legalistic dissent. More generally, all of the factors thought to enhance the efficacy of social sanctions against deviant behaviors in a given setting—from repeat play to monitoring to in-group homogeneity—may tend to correlate with lower levels of uncivil obedience.
Third, and more generally still, prospects for uncivil obedience will invariably be shaped by the surrounding legal culture and the criteria of legal validity that it recognizes. To take a stylized illustration: In Society A where most officials subscribe to a version of formalism conjoined with “exclusive” or “hard” legal positivism, it will be widely agreed that determining the existence and content of law depends exclusively on social facts concerning the source of relevant norms, not on moral principles, and that decisionmaking should be constrained by the specific linguistic formulation of those norms.
There is nothing inherently odd, in such a society, about the notion of a protester complying with a statute in a hyper-technical manner that others find offensive. So long as the statute is properly “pedigreed” and the protester’s actions seem consistent with its terms, even critics will have little choice but to concede the legality of her tactics. If uncivil obedience reveals that a law’s text may be wielded in troubling ways, that is a basis for revising the law, not for casting legal doubt on the troublemaker’s conduct.
By contrast, in Society B where most everyone eschews formalism and subscribes to a version of natural law, Dworkinian law-as-integrity, or another strongly “substantive” understanding of law,
the idea that a statute could be used to such subversive effect will be more jarring. Confronted with the taxpayer who pays in pennies or the executive who prosecutes an offense with unprecedented zeal, people would ask themselves whether this behavior is consonant with legislative purposes, established customs, principles of justice and fairness, or the like. And if they came to the conclusion that the answer was “no,” then they might have cause to challenge the behavior’s lawfulness, notwithstanding its technical conformity to the language of a duly enacted statute. Questions about a tactic’s political morality would be inextricably bound up (to various degrees and in various ways, depending on the operative theory of law) with the question of its legality. Even if these two societies share the exact same laws on the books, then, the would-be uncivil obedient who contemplates “exploiting” the letter of the rules in some disruptive fashion can have less confidence in B that she would actually be operating within the law.
Of course, there may be little that anyone can do to precipitate a societal shift away from positivism or formalism, or to recalibrate the informal norms and sanctions that obtain in a given setting. Unlike preemption doctrine or the choice between rules and standards, the decentralized dynamics sketched here are not necessarily amenable to social engineering. It is at least conceivable, however, that greater awareness of uncivil obedience would influence relevant attitudes or interpretive approaches at the margins. And whatever their prescriptive potential, these dynamics may go a long way toward shaping local experiences of uncivil obedience.
IV. Contextualizing and Critiquing Uncivil Obedience
The practice of civil disobedience raises urgent and obvious questions of justification. Insofar as people in a reasonably well-functioning liberal democracy have a prima facie obligation to obey the law,
acts of law-breaking come with a taint of illegitimacy. Theorists of civil disobedience, accordingly, have devoted substantial attention to the issue of when it may be morally justified, proposing conditions such as the existence of extreme injustice, willingness to submit to punishment, and exhaustion of lawful channels of dissent.
Acts of uncivil obedience, in contrast, would appear to require no such special defense given that they are understood to abide by the positive law of the jurisdiction. It is the skeptic of uncivil obedience, on this view, who bears the burden of establishing conditions under which its use is not legitimate.
In this Part, we offer reasons to doubt the utility of this view for capturing the two practices’ relationship to public values, especially where governmental uncivil obedience is concerned. This brief discussion is meant to be suggestive rather than conclusive. We do not offer any general theory of uncivil obedience, nor do we wade into broader debates in analytic jurisprudence and political philosophy over the nature of legal obligation or the justifiability of resistance to authority. Rather, we highlight several features of uncivil obedience that bear on normative assessment, with special reference to the ways in which they compare to corresponding features of civil disobedience. We also consider the interaction of uncivil obedience with ideology and partisanship. In these ways, we hope to demonstrate further the practical and philosophical significance of uncivil obedience and to lay groundwork for future research.
Examples of uncivil obedience such as the ones collected in this Article—and we are surely missing many—can both motivate and inform this research. Morally compelling acts of civil disobedience by American civil-rights protesters in the 1960s inspired searching inquiry into the place of law-breaking in a free society. Perhaps certain contemporary or future cases of uncivil obedience might spark a parallel conversation on the problematics of law-following as a mode of dissent.
A. Public Law Values
In assessing a phenomenon as rich and multifarious as uncivil obedience or civil disobedience, “[p]recise principles that straightaway decide actual cases are clearly out of the question.”
As with dissent in general,
uncivil obedience has the capacity to advance social welfare and social justice in a wide range of contexts. This is most likely to occur when the tactics employed are minimally disruptive or coercive, especially as to third parties; when the critical message is broadly appealing or neglected in public debate; and when the targeted law or policy is itself welfare- or justice-reducing. The optimal amount of uncivil obedience in any society, it bears emphasis, is greater than zero. Yet if the potential public benefits of uncivil obedience seem fairly straightforward—because continuous in kind with the benefits associated with other forms of dissent, including civil disobedience—the potential costs of uncivil obedience are somewhat subtler.
As an initial matter, those who ascribe normative significance to the effectuation of legislative purposes or to local customs of law-following have pro tanto reason to disapprove of uncivil obedience. Uncivil obedience manages to provoke from within the law’s four corners by defying expectations and traditions as to how a directive will or should be acted on. It is not hard to see, for example, how a Burkean who believes those expectations and traditions are a repository of collective wisdom
might be concerned by recent transformations in the way Senate minorities wield their procedural privileges.
Or consider the civil-law doctrine of abuse of right, which seeks, in one common formulation, to strip legal protection from otherwise lawful conduct because it flouts the perceived purpose or spirit of a law.
This is precisely what makes the conduct “abusive.”
The point here is simple but important: The very manner in which uncivil obedience “works” is by going against certain behavioral regularities or social understandings in which some commentators see considerable intrinsic or instrumental merit. Just as those who believe there is a prima facie moral obligation to obey the law have presumptive reason to disapprove of civil disobedience, those who have a principled commitment to purposivism or Burkeanism in the implementation of law have presumptive reason to disapprove of uncivil obedience.
Others may be more concerned about uncivil obedience’s implications for various public law values.
Although it conforms to the letter of applicable directives, and in that narrow sense upholds the rule of law, the practice of uncivil obedience can threaten related ideals such as social comity, accountability, and regularity. Meanwhile, uncivil obedience’s law-breaking counterpart, civil disobedience, may better serve some of these same ideals. We do not mean to condemn uncivil obedience (or to celebrate civil disobedience) by calling attention to these points. We do mean to build on the civil disobedience literature in further complicating the intuitive association of law-abidingness with the substantive goals of law.
Perhaps most obviously, acts of uncivil obedience may undermine honesty and transparency. Because civil disobedience involves overt law-breaking, disclosures about the actor’s true, reformist intentions will tend to mitigate her legal and reputational exposure, by casting her transgressive conduct in a more sympathetic light. In contrast, because uncivil obedience involves ostentatious law-following, such disclosures may not mollify but instead inflame critics—and invite hostile revisions or reinterpretations of the enabling rules
—by clarifying or confirming a subversive agenda. The typical civil disobedient has greater incentive to be forthcoming about the nature of her protest; candor holds strategic as well as ethical appeal for her. The overall practice of civil disobedience is consequently more intelligible to the world at large, its rhetoric rawer and more earnest. Whereas one never hears of a law-breaker who is widely seen as an activist or dissident yet insists she is an ordinary criminal, one finds quite a few law-followers who are widely seen as agents of change yet insist they are no such thing.
The direct version of uncivil obedience is closer to civil disobedience in this regard.
The National Motorists Association members who protested the freeway speed limit by driving at the speed limit; the undocumented aliens who protested the prohibition on their working by not working; the young Teddy Roosevelt who protested the Sunday-saloon-closure law by closing all saloons open on Sundays—in each of these examples, the uncivil obedients did not fear reconsideration of the laws they were exploiting, for this was exactly the type of legal change they were seeking. Direct uncivil obedience has “all the simplicity” of attacking the very law to which it adheres.
The protest performs its own critique.
The more prevalent, indirect version of uncivil obedience is not “simple” in this way; it has no such built-in guarantor of intelligibility. Employees who work to rule will not necessarily acknowledge the sense in which they are defying their employers’ wishes. State legislators who regulate abortion clinics or procedures will not necessarily acknowledge their desire to limit access to abortion. A measure of opacity may better serve the reformist project. By attending so conspicuously to the letter of the law, uncivil obedience can obscure its own novelty and normativity—a sleight of hand that civil disobedience can never perform. For those who prize honesty and transparency in the utilization of law, then, the indirect variant of uncivil obedience ought to elicit particular worries.
These worries, in turn, contribute to a broader set of concerns about values such as accountability, deliberation, civic virtue, and the constraining function of law, insofar as those values depend upon honesty or transparency for their realization.
A loose analogy might be drawn to what David Dyzenhaus calls grey holes, or situations where “there are some legal constraints . . . but the constraints are so insubstantial that they pretty well permit [an actor] to do as it pleases.”
A black hole, in contrast, does not even pretend to constrain. It is “a lawless void.”
Like a grey hole, uncivil obedience may allow those who use it to have their “cake and eat it too”—to give the appearance of constraint while in fact exercising extraordinary discretion, using the “cloak” of formal legality to neutralize critique.
Dyzenhaus argues that grey holes may be more corrosive than black holes to the rule of law, understood in substantive or “thick” terms, because while black holes provoke consternation when perceived, grey holes breed quiescence.
The dearth of critical commentary on uncivil obedience, as compared to the regular hand-wringing over civil disobedience, mirrors this asymmetry. Civil disobedience presents as lawless and therefore invites rather than evades correction.
Civil disobedience also demands personal sacrifice. The civil disobedient commits an open breach of law and thereby courts punishment by the state; on many accounts, she goes further and willingly submits to that punishment.
The sincerity and strength of conviction needed to motivate such behavior will generally be substantial. Uncivil obedience involves a relatively minimal risk of formal sanction. This risk cannot be eliminated, as explained above,
and in certain settings informal sanctions may provide a meaningful substitute.
But the uncivil obedient will not expect prosecution, imprisonment, or the like, and she may well anticipate no negative repercussions whatever. The comparative cheapness of uncivil obedience lowers the likelihood that it will be undertaken only after conventional means of persuasion have been exhausted. Along with uncivil obedience’s capacity to conceal aspects of its agenda, this feature exerts downward pressure on the conscientiousness criterion, if not on civic virtue more broadly.
Civil disobedience, as explained in Part I, paradoxically expresses fidelity to the legal system as a whole even as it violates a certain legal norm. Uncivil obedience paradoxically expresses insolence toward law even as it conforms to all formal requirements. The practice of uncivil obedience not only frustrates some of law’s substantive goals but also denies its claim to moral authority, mocks its aspiration to guide behavior in a principled fashion. If one common anxiety about civil disobedience is that overt law-breaking may breed disrespect for the law as such,
uncivil obedience pushes us to ask about the externalities of extreme law-following. By showcasing the manipulation of legal rules for unintended ends, uncivil obedience may breed disrespect for the project of self-governance through law.
Governmental uncivil obedience exacerbates the foregoing concerns.
It affects the regulatory process, and through it regulated subjects, in a more immediate manner given its location within that process. Whereas private uncivil obedients typically must persuade a higher authority that the reforms they seek are worthwhile, their governmental counterparts may be able to effect legal change directly, without assuming a similar burden of persuasion. And while private citizenship may demand some amount of extralegal civic responsibility, government office-holding, on almost any conception, demands a greater amount. The viability of democratic politics arguably depends on officials’ comporting themselves with a certain civility—a respect for principles of tradition, moderation, and cooperation that both fosters good governance and sets a salutary example for the community at large. Inasmuch as uncivil obedience jeopardizes the efficacy or integrity of, say, the U.S. Senate, the health of the American polity, not just a particular institution, is at stake.
Governmental uncivil obedience also affects deliberation and accountability in a distinctly troubling manner. To the extent that federal or state legislators have used the cloak of legal obedience to mask the full measure of their challenge to established authorities, they have not only engaged in a kind of parliamentary sabotage but also deprived citizens of a valuable input into public debate and the electoral mechanism. They have eroded the representative process.
These points should not be overstated: As with all types of uncivil obedience, governmental uncivil obedience cannot be ruled out as a matter of principle and may be morally as well as legally justified under certain conditions. A great deal depends on context. It is important to be clear about the stakes, however. When public officials resort to legalistic dissent, the fear is not just abuse of right but abuse of power.
Moral evaluations of civil disobedience often ask whether those involved could have achieved their aims through normal, lawful channels. Rawls, for instance, argues that civil disobedience should be used only as a “last resort,” when a “minority” group has already “appeal[ed] to the political majority” and found it to be immovable.
As this language suggests, civil disobedience is commonly associated with actors who lack social and governmental power, those who are liable to lose in the political process notwithstanding the intensity of their convictions. Our paradigm cases of civil disobedience involve minoritarian bids for the recognition of rights to equal treatment or basic liberties.
Any comprehensive normative assessment of uncivil obedience must grapple with its utilization by the powerless and powerful alike. Of particular note, we have suggested, is the fact that government agents and entities—society’s most democratically empowered actors—frequently engage in this form of legalistic dissent. The contrast with civil disobedience is stark. Whereas government service neither selects for nor rewards a taste for reform-minded law-breaking, uncivil obedience allows officeholders to press dissenting positions from within the stance of legality that the public expects of them.
They may do this as individuals (as in the case of Senate holds
) or as collectives (as in the case of state legislatures challenging abortion rights and the Affordable Care Act
). They may do it within a single branch of government, between branches or levels of government, or across national boundaries.
Attending to uncivil obedience therefore complicates the popular association of dissidence with private parties who lack public power.
At the same time, other important examples of uncivil obedience conform closely to that model. We find criminal defendants and welfare recipients exercising their formal entitlements in unexpectedly maximalist ways, just as we find senators engaging in these behaviors. There are good reasons why uncivil obedience might appeal to the most vulnerable members of a community. For those who cannot afford to lose a job or spend time in jail, the potential downsides of overt resistance, and especially overt law-breaking, may seem too severe. Because it operates through and within the law, uncivil obedience will in many cases offer a less risky form of protest.
To push the point further, uncivil obedience might be understood as a peculiarly legalistic variant of what anthropologist James Scott calls “critiques within the hegemony.”
Across cultures, Scott demonstrates, exaggerated compliance with authoritative norms has long been a critical source of resistance for subordinate groups.
Because it adopts the ideological terms of the dominant group, such resistance is difficult to punish and to deflect: “Having formulated the very terms of the argument and propagated them, the ruling stratum can hardly decline to defend itself on this terrain of its own choosing.”
A version of this tension characterizes uncivil obedience. In a society like the contemporary United States, committed in principle and in rhetoric to a norm of legality, meticulous adherence to the letter of the law presents an especially awkward problem, as it feigns obsequiousness to one of the ruling stratum’s most cherished ideals. Some of the least powerful members of society may embrace this mode of protest precisely because it disrupts the status quo without disclosing the full measure of its subversiveness.
If civil disobedience and uncivil obedience are each tools of resistance for marginalized groups, however, they may serve largely distinct roles. Civil disobedience has proven a compelling strategy in campaigns for the recognition of what international lawyers call first-generation rights, basic “civil and political rights that typically take the form of negative protections against government action.”
While there is nothing that precludes uncivil obedience from being enlisted for these ends, both its dependence on formal law and the examples we have collected suggest that uncivil obedience more readily lends itself to “second-generation”
struggles for social and economic gains: A layer of liberal guarantees having been conferred and administrative regulations laid down, subordinate groups may then turn to provocative modes of compliance or utilization to leverage such laws for more encompassing reforms. The Cloward–Piven plan and countless work-to-rule campaigns, for instance, have sought to leverage existing welfare-benefit and employee-protection laws to advance such groups’ actual material circumstances.
Insofar as uncivil obedience differs from the classic paradigm of civil disobedience in this respect, it might find more common ground with the phenomenon that Daniel Markovits calls “democratic disobedience.”
Instead of seeking to protect liberal rights against the majoritarian excesses of democracy, democratic disobedience seeks to improve democracy itself—understood in republican terms to demand robust political engagement and “a widespread sense of authorship of collective decisions”
—by overcoming the inertial forces “that prevent a democratic sovereign from taking up an issue.”
Under the right conditions, ambitious projects of uncivil obedience could similarly trigger processes of “sovereign reengagement”
with the issues that motivate them. The Cloward–Piven plan, for example, might be understood in these terms given its explicit—and at least partially realized—aim not to fend off an overreaching state but rather to stimulate new lines of policy debate, new political coalitions, and a new popular consciousness around welfare poverty.
Much more work would need to be done to confidently characterize, let alone justify, any particular act of uncivil obedience as democracy-enhancing in a republican (or any other) sense. The point here is simply that the same basic moves made by Markovits to reconceptualize certain forms of broadly framed, politically destabilizing disobedience as an ally rather than a threat to democracy could be deployed, mutatis mutandis, in defense of comparably ambitious forms of uncivil obedience.
If uncivil obedience complicates the association of dissent with extralegal channels and with private actors who lack public power, so too may the phenomenon complicate its association with the political left.
Incorporating uncivil obedience into a richer typology of dissent would likely reveal that acts of protest are more evenly distributed across the political and ideological spectrum.
Recent work in social psychology indicates that political conservatives value deference to established authority, as such, more than political liberals do.
Whereas psychological foundations of fairness and care are paramount for self-identified liberals, Jonathan Haidt argues, “intuitions about authority and the importance of respect and obedience” critically inform the moral systems of self-identified conservatives.
The current triggers of the Authority/subversion foundation . . . include anything that is construed as an act of obedience, disobedience, respect, disrespect, submission, or rebellion, with regard to authorities perceived to be legitimate . . . . [I]t is much easier for the political right to build on this foundation than it is for the left, which often defines itself in part by its opposition to hierarchy, inequality, and power.
Jonathan Haidt, The Righteous Mind: Why Good People Are Divided by Politics and Religion 168 (2013) [hereinafter Haidt, Righteous Mind].
Because dissent, generally, marks a challenge to authority, it is therefore unsurprising that dissent has been more strongly associated with liberals than with conservatives. And because civil disobedience is a particularly acute form of dissent, it is especially unsurprising that civil disobedience has this reputation.
Civil disobedience pairs a dissenting message with conduct—law-breaking—that is itself a provocative mode of dissent. Form and content alike challenge the extant legal order, making civil disobedience at best an uncomfortable practice for those who base their moral systems on foundations of respect for and obedience to authority.
Uncivil obedience disconnects form from content. It cloaks dissent in behavior that is, at least superficially, respectful of established authority. As we have explained, the uncivil obedient emphasizes the formal legality of her action. Like the civil disobedient, she is out to change the system, but she does so by mastering the system’s rules. She does so from the inside.
That alone may render uncivil obedience a more comfortable practice for conservatives in light of the social-psychological evidence noted above—perhaps all the more so if combined with a growing body of research finding that in the moral domain “people care a great deal more about appearance and reputation than about reality.”
The foregoing discussion suggests the following hypothesis: We may expect to witness a systematic skew in the distribution of conservative dissent in the direction of uncivil obedience and away from civil disobedience.
And indeed, as Part II indicates, uncivil obedience has emerged in recent years at both the state and national levels as a leading strategy of Republican
opposition to a Democratic Administration and, more broadly, to condemned laws and policies emanating from federal sources. Challenges to the legal availability of abortion, federal immigration policy, Obamacare, and Obama’s presidency itself have all assumed this hyper-legalistic form.
To be clear, this hypothesis does not imply that uncivil obedience is an exclusively or predominantly Republican tactic. Our examples show that Democrats and Republicans, liberals and conservatives, engage in the practice. If uncivil obedience regarding Obamacare, abortion, and (perceived) immigration-law underenforcement bears a conservative-Republican stamp, uncivil obedience regarding welfare policy, criminal justice, and (perceived) immigration-law overenforcement has aligned with a liberal-Democratic agenda.
The point is not that uncivil obedience is a distinctively Republican practice, but rather that the Republican practice of dissent may in this era distinctively assume the form of uncivil obedience.
The subject of civil disobedience has inspired a remarkably rich body of work by legal and political theorists. The actual practice of civil disobedience, according to some of these same theorists, has become increasingly irrelevant.
As guarantees of fundamental freedoms and equal treatment have been extended to more and more members of the world’s democracies, classic forms of civil disobedience that seek to vindicate basic rights have lost some of their urgency.
The whole liberal model of carefully circumscribed law-breaking may seem an awkward fit for many of the most pressing moral concerns of today.
Whatever the fate of civil disobedience, this Article has suggested that its legalistic doppelganger is alive and well—and an increasingly prominent element in American politics. Moreover, uncivil obedience may be thriving in part because of the very developments that have marginalized civil disobedience. Even as the proliferation of rights language in statutes, constitutions, and judicial decisions has limited opportunities for conscientious law-breaking in the service of basic liberties, it has simultaneously expanded opportunities for disruptive modes of adherence and implementation. The denser and more detailed the law on the books, the more rules there will be for protesters to exploit in technically valid yet subversive ways. This Article is a first pass at investigating the phenomenon. Scholars, activists, and regulators alike will need to continue the study of uncivil obedience if they wish to reckon with the full possibilities and problems of dissent in the years to come.