Refuting the Review: A Defense of Civil Disobedience

Law never made men a whit more just; and, by means of their respect for it, even the well-disposed are daily made the agents of injustice.”

– Henry David Thoreau

The Stanford Review has a problem with civil disobedience. In a recent piece, writer Elliot Kaufman attempted to critique Fossil Free Stanford for pledging direct action to influence the University ahead of the Paris climate talks next month. The criticism, however, goes beyond the case at hand, and seeks to condemn civil disobedience in itself, through a tired series of fallacies and inaccuracies. Most troubling, this misleading argument does much more than tarnish the tactics of a particular activist organization: it regurgitates the same justifications for an anti-democratic form of liberalism that has legitimated injustice for centuries.

For Kaufman, Fossil Free activists have pledged disobedience “in order to satisfy their own morals.” He frets that “casting aside the rule of law has become almost normal.” Of course, the reality of the pledge tells a different story. Students and activists around the world are responding to something far from normalcy: an unprecedented ecological catastrophe that has already begun to unmake life on earth as we know it. Feelings of moral supremacy are far surpassed by the simple desire to breathe easily.

Kaufman also cites the action of the Stanford 68 protesters at the San Mateo Bridge to shore up his claim that illegality is pervasive and reflexive today. He notes that the University declined to punish the students, but curiously omits the fact that the protest was undertaken with the full recognition that it would result in legal punishment. This willingness to suffer the consequences, not some wistful moral self-righteousness, is the essence of civil disobedience. When students stood up against extrajudicial police killings, they showed their resolve by taking on the wrath of the state. Incurring heavy fines, exhausting court proceedings, and a patronizing course on the First Amendment, the Stanford 68 proved that civil disobedience is no laughing matter, and that it comes from a place of critical resistance.

But Kaufman is not interested in understanding the resurgence of civil disobedience in the racial justice movement. Referring to misleading and diversionary reporting on an alleged crime wave following mass mobilizations and closer scrutiny of police misconduct, Kaufman makes the tenuous claim that “a weak rule of law imposes rigidity upon crucial institutions of governance.” The self-contradiction here is obvious. A rigid and democratically unaccountable law is exactly that: unaccountable and rigid.

Another questionable component of Kaufman’s article is its dismissal of the efficacy of fossil fuel divestment and civil disobedience. He writes: “a global agreement remains elusive…because [nations]are genuinely worried that drastically reducing fossil fuel usage will debilitate their economies, raising the spectre of mass suffering and regime change.” This argument relies upon misconceptions concerning both the political and economic aims of Fossil Free. The act of civil disobedience itself is intended as a catalyst for opening up a political space in which the delegitimization of unethical and ultimately unprofitable stranded assets can bloom. Furthermore, “mass suffering and regime change” caused by climate change is no mere “spectre” — it is already reality. By any estimate, it is in every country’s interest to counteract climate change before it wreaks unprecedented social and economic havoc. Indeed, the damage has already begun. For a publication concerned with national security, the Review might do well to consider that none other than the Pentagon describes climate change as a “threat multiplier” that is “already beginning” to worsen perils such as terrorism and pandemics.

The article does have the merit of pointing to recent abuses of executive power in the United States: police brutality, mass surveillance, illegal warmongering in Libya, and the politicization of various regulatory agencies. But to read these as discrediting the practice of civil disobedience is exactly the opposite conclusion one should draw. When the state apparatus becomes increasingly detached from democratic accountability, deliberate, self-sacrificing lawbreaking like that of Fossil Free and the Stanford 68 seeks to exert a popular influence in the only accessible channels.

Kaufman’s argument is grounded on one slippery, slippery slope. He asserts, correctly, that “Fossil Free contends that its actions are necessary because it is operating within an unjust status quo of laws that will lead us to disaster.” Dismissing the reality of that disaster, he then claims that, “of course, therein lies the recipe for the slow disintegration of the rule of law.” Characteristic of the polemical and inflammatory style of argumentation mastered by the Review, Kaufman disregards the substantial issue of our relation to law and state power, and instead seeks to simply discredit those with moral backbone by throwing diversionary wrenches in the case for disobedience.

Raising incongruous spectres of the Anscombe Society, anti-abortion fundamentalists, school prayer, and pre-Civil War nullification as examples of legal noncompliance, Kaufman fails to note that civil disobedience is not a rejection of law as such, but the deliberate violation of particular laws. This sleight-of-hand argument is summed up by Kaufman: “Ignoring the rule of law is a two-way street: there is no guarantee that only the ‘bad’ laws will be changed, nullified or ignored once procedural lawlessness has set in.” By tossing together otherwise irrelevant illegal acts under the umbrella of civil disobedience, Kaufmann fundamentally misinterprets the current situation.

It speaks to the inanity of the Review’s pursuit of being needlessly contrarian that we might even have to remind us all that Fossil Free is not a proto-anarchist organization. If Fossil Free called for or even remotely endorsed the total disintegration of law, then perhaps Kaufman’s accusations would deserve serious consideration. However, in his current reductionist reading, there are only two camps: for the law and against it. And while an absolute rejection of law in itself may well lead to the kind of chaos that Kaufman worries about, he forgets that total obedience to the law is also a two-way street: there is no guarantee that only the “good” laws will be enforced.

In the end, it is perhaps the ultimate irony that the self-satisfied complacency underlying Kaufman’s article actually legitimizes the dire sense of urgency that undergirds Fossil Free’s resort to civil disobedience. In a time when we are aware that 100 million people may be pushed by the effects of climate change into poverty by 2030, and that corporations such as Exxon have for decades deliberately misled the public on climate science for the sake of generating capital, the fact that these petty critiques of peaceful protest pass as productive contributions to political thinking is unsettling to say the least. As we continue to be threatened by the self-destructive inertia of our contemporary political order, political thinkers on a campus as esteemed as Stanford who speak so highly of the virtue of rational dialogue manage to spend their dialogue irrationally discussing the niceties of being puritanically law-abiding citizens in a time of unprecedented ecological catastrophe.

To be sure, there is always a risk of losing our democratic values, especially during times of crisis; that is, in our very pursuit of preserving our democratic society there always runs a risk of using undemocratic means, thereby unravelling our entire political project. But if there exists in this moment an existential threat to our democratic institutions and legal order, it surely isn’t a group of students peacefully overstaying their welcome on private property attempting to fully convince others of the urgency of the current ecological situation and the need for sufficient international action.

In the last analysis, it is only fitting that Kaufman uses John Locke as his philosophical champion. Quoting from Locke’s Second Treatise on Government (“Wherever law ends, tyranny begins.”) provides a quick justification for a legalistic ethical orientation which is wholly insufficient for our time. And just as much as it is now, Locke’s philosophy was ethically inadequate in its own time. Locke’s form of liberalism formed the ideological justification for slavery, indentured servitude, and settler colonialism in the Americas. (These views were entirely consistent with his position as a capitalist deeply invested in the transatlantic slave trade.) As climate change begins to hit indigenous peoples, working class families, and communities of color around the world first and hardest, classical liberalism provides, once again, a handy justification for the anti-democratic machinations that recreate this injustice.

Kaufman’s reliance upon John Locke to discuss civil disobedience is, of course, woefully inadequate. Instead of resurrecting the chief apologist for American slavery and colonialism, we conclude with Henry David Thoreau, the practicing proponent of civil disobedience who was arrested for his refusal to contribute to the imperialist Mexican-American War. In his seminal essay on the topic, Thoreau vindicates the citizens who break the law for democracy and justice:

Unjust laws exist: shall we be content to obey them, or shall we endeavor to amend them, and obey them until we have succeeded, or shall we transgress them at once? Men generally, under such a government as this, think that they ought to wait until they have persuaded the majority to alter them. They think that, if they should resist, the remedy would be worse than the evil. But it is the fault of the government itself that the remedy is worse than the evil. It makes it worse… If the injustice is part of the necessary friction of the machine of government, let it go, let it go: perchance it will wear smooth — certainly the machine will wear out. If the injustice has a spring, or a pulley, or a rope, or a crank, exclusively for itself, then perhaps you may consider whether the remedy will not be worse than the evil; but if it is of such a nature that it requires you to be the agent of injustice to another, then, I say, break the law. Let your life be a counter-friction to stop the machine.

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Truman Chen, a junior studying history, is the editor in chief of Stanford Political Journal, and Malachi Dray, a sophomore studying history, is the international editor.