The Epistemic Dimensions of Civil Disobedience

Abstract

Throughout the Covid-19 pandemic, protests against the public health measures instituted by governments have become a familiar sight on the streets of major cities across the world. The policies these protests challenge, and the kinds of claims made by protestors, have differed across jurisdiction and have evolved through different stages of the pandemic, with protests across Europe and North America focussing at various times on the supposed injustice of initial lockdown measures, the rollout of vaccines, and the implementation of vaccine mandates. A significant number of these protests have been, in various respects, legally prohibited; many of the earlier protests violated emergency legislation restricting the number of people or households permitted to gather in public, while later actions include occupations of the offices of media companies and refusal to pay taxes.1 At least some participants in these protests have been animated by false claims that the pandemic is a hoax, or that it is in some sense deliberate, or that it is being exploited by politicians and businesses to implement policies of radical social control. Many participants and commentators have described some of these actions as forms of civil disobedience; a placard displayed by one protestor in Bristol in November 2020 stated that ‘civil disobedience becomes a sacred duty when the state has become lawless or corrupt’,2 while a Canadian anti-lockdown campaigner compared his refusal to provide details of his vaccination status in a coffee shop to the actions of Rosa Parks.3 Similar claims have been made regarding the protests in Ottawa in late 2021/early 2022.4 These protests raise important questions regarding the conditions for permissible civil disobedience in a pandemic specifically,5 but also highlight some more general questions for theories of civil disobedience. Some of these relate to the use of civil disobedience in the pursuit of ‘anti-democratic and illiberal goals’, such as whether broadly liberal theories of civil disobedience effectively apply across these cases as well as the justice-promoting paradigm examples.6 In this article I focus on a slightly different issue: is the justification of civil disobedience conditional on dissenters satisfying some epistemic conditions? If so, what kinds of conditions? Perhaps surprisingly, the two most directly relevant philosophical literatures suggest quite different answers to these questions. Within broadly liberal theories of civil disobedience they have received little direct attention. Such accounts generally view the justification of civil disobedience as primarily relating to the conduct of the dissenters during and after disobedience. The justification of an act of civil disobedience just relates to the question of whether agents act in accordance with certain constraints, which may include non-violence, civility, and accepting punishment. However, there are some accounts within this literature, such as those developed by Ronald Dworkin and Kimberley Brownlee, which incorporate explicit epistemic constraints. These identify these constraints as tests by which we can determine whether an agent's claim qualifies as a conviction, and thus as a commitment which deserves a special kind of consideration in liberal democratic societies. As such, the constraints are viewed as relatively minimal tests of coherence rather than as tests of epistemic responsibility. The literature on political epistemology presents a very different picture. Political epistemologists disagree about the nature and scale of the epistemic obligations or responsibilities of citizens in a democratic polity. But they broadly agree that citizens do have some epistemic responsibilities when they act politically in various ways, including voting, engaging in public discussion, and even dissenting. If citizens in a democratic polity have responsibilities to act in epistemically responsible ways when voting in elections or discussing political issues in public, it might seem straightforward that these responsibilities will also constrain their civil disobedience. I argue that the political epistemologists are right that the justification of our political acts is sensitive to our epistemic conduct, and outline a particular way of incorporating epistemic constraints into theories of civil disobedience. This article has three aims. The first of these is to show that even those liberal theories of civil disobedience which incorporate explicit epistemic requirements generate an implausible picture of what is wrong with misguided disobedience. Incorporating epistemic conditions solely within the concept of conviction produces an implausible picture of conviction itself and relies on an untenable view of how claims of conviction relate to a political order. My second aim is to provide a more plausible alternative. I argue that agents have a defeasible epistemic obligation to their fellow citizens to take steps to minimise the risk that the claim under whose name they intend to disobey is mistaken. Like the obligation of dissenters to ensure that their actions inflict as little harm as is compatible with a reasonable chance of success, the obligation to take these steps bears on the justifiability of a civilly disobedient action. I show how this obligation is continuous with the epistemic obligations of ordinary political action, but made stronger by virtue of the different justificatory conditions of the burdens generated by disobedience. Finally, I aim to show that this account does not impose unreasonably stringent restrictions on dissenters. The stringency of this obligation is sensitive to competing considerations: appearing in a stronger form when agents have meaningful and broadly equal political influence under just institutions and in a reasonably healthy epistemic environment, and when the proposed disobedience imposes more severe costs; and in a weaker form, and in some cases no longer applying, in contrary circumstances. Exploring the factors which can mitigate this obligation in different circumstances has the additional benefit of illuminating the imperfect epistemic conditions in which most dissenters act and the relevance of such conditions to questions of the justification of civil disobedience. Before proceeding, a note on my use of the concept of ‘civil disobedience’. This concept, especially in its most influential articulations, has been subject to a range of important critiques from political theorists and philosophers in recent years, including that it functions as a ‘counter-resistance ideology’ in assuming the basic legitimacy of the constitutional order and repackaging the strategic commitments made by those engaged in paradigmatic disobedience campaigns (such as the Civil Rights struggle in the US) as necessary features of permissible disobedience.7 Although I find aspects of these critiques compelling, I am more optimistic that a conception of civil disobedience which retains some of the central dimensions of the liberal conception can, when revised to include a wider range of disobedient actions and a broader range of complaints, and conceived as just one, rather than the sole, form of permissible disobedient action, continue to be a useful category. In lieu of a full defence of the concept here, I note two reasons for sticking with a broadly conventional use of it in this article. The first is that my focus is on the kind of action which is the precise target domain of the concept–that is, ‘principled and deliberate breach[es] of law intended to protest unjust laws, policies, institutions, or practices, and undertaken by agents broadly committed to basic norms of civility’, with ‘civility’ in this context interpreted variously in terms of conditions such as nonviolence, publicity, and the willingness to accept punishment or other forms of public accountability.8 I think there is good reason to think that some of the arguments presented apply to some other ‘uncivil’ forms of principled disobedience, but I do not argue for that here. Second, the prominence of calls for civil disobedience and the use of the term itself by those engaged in the kinds of protests I outlined at the start of the article, as well as many others, indicates that scholarly disputes regarding the coherence and application of the concept have not undermined the normative standing it is granted in the public sphere. Many of these protestors take themselves to be engaged in permissible civil disobedience; whether this claim is true or false, and why, has important implications for democratic theory and practice.9 Few philosophical theories of civil disobedience incorporate explicit, substantive epistemic components. No meaningful epistemic requirements feature in the influential liberal accounts developed in the 1960s and early 1970s by Hugo Bedau and John Rawls. These theories claim that agents engaged in civil disobedience must act conscientiously (that is, with a demonstrated recognition of the authority and legitimacy of the legal and political institutions of the state) and in support of a claim which is their ‘sincere and considered opinion’, but clearly do not intend these requirements to have epistemic content. The former can be satisfied simply by acting in a way which indicates ‘fidelity to law’, such as accepting punishment for one's act of dissent, while the latter is most plausibly interpreted as a requirement of good faith which rules out merely opportunistic or strategic disobedience.10 Those working within (and, indeed, against) this tradition have by and large maintained this focus on the conduct of dissenting agents and the justice of their cause. Our acts of civil disobedience can go wrong in many ways, according to these accounts, but not by virtue of our epistemic conduct. Some liberal accounts, though, have incorporated resources which enable them to say otherwise. These build epistemic constraints into the familiar component of conviction. The most influential contemporary account of this kind is developed by Kimberley Brownlee, who constructs an unusually rich and expansive account of the epistemic conditions internal to the concept of moral conviction. On her account, the moral right to engage in civil disobedience is correlative to the duty that society holds to respect the facts that persons have capacities for reasoning and for developing deep moral convictions and that coercing agents to follow the law instead of expressing those convictions is deeply burdensome.11 Respecting our capacity for deep moral conviction generates ‘a limited moral right of conscientious action as our expression of our conscientious convictions’, and a further right protecting the cognitive and psychological pre-conditions for the development of these convictions.12 The ‘communicative principle of conscientiousness’ lies at the heart of Brownlee's account of deep moral conviction, and generates limits as to the kind of action which can properly be termed ‘civil disobedience’.13 There are four elements of this principle: (a) a consistency condition; (b) a universality condition; (c) a non-evasion condition; and (d) a dialogic condition. As Brownlee notes, both (a) and (d) have ‘cognitive elements’. The consistency condition requires a level of consistency between our judgements, motivations, and conduct. If agents are not sufficiently consistent in the application of their stated convictions–say, if an agent launches a campaign against blood sports, but regularly participates in fox hunts–their claim to hold that conviction will itself appear to be dubious. What is important to note for our purposes is the pre-conditions for such consistency noted by Brownlee: that convictions ‘must meet minimal standards of intelligibility, internal coherence, and evidential satisfactoriness’.14 Although she does not provide a comprehensive account of these standards or what it means to meet them, it is notable that in this discussion Brownlee remarks that ‘conscientiousness is not about the correctness of moral judgements, but about the consistency of moral judgements and the credibility of factual assumptions that have moral implications’.15 The dialogic condition also directly concerns the nature of the beliefs of the dissenter, and the processes by which those beliefs are tested. Conscientiousness not only requires us to hold our beliefs sincerely, but to engage in discussion of them with others and defend them against certain kinds of criticism.16 Civil disobedience cannot be communicative unless we are willing to engage in this kind of dialogue. Nor can others be reasonably expected to regard our views as sincerely and seriously held if we are not willing to defend them publicly and rationally.17 But the dialogic condition is not satisfied if we merely defend our claim automatically, without due regard for our interlocutors as reasoning moral agents or the willingness to take their claims and criticisms seriously; this would be a crude performance of dialogue rather the real thing. As Brownlee puts it, ‘having a sincere intention to engage others in a dialogue means that we do not wilfully immunize ourselves from their communicative efforts.18 Our readiness to heed and interpret them correctly is necessary for communication to occur’. In at least some cases, satisfying the communicative principle requires dissenters to both have a particular stance towards the object of their conviction, and to be willing to sincerely subject their beliefs to criticism and, if such criticisms are sufficiently powerful, revision. beliefs that fail to meet the logical and evidentiary standards for conviction cannot claim the degree of toleration or respect that genuine convictions might claim because they lack both the determinate content and reflection that confirm our psychological and emotional investment. Without determinate content and reflection, our declared convictions are flighty, capricious, incoherent things that warrant neither respect nor toleration from others. Brownlee's account is unusual in being explicit about the epistemic conditions it relies on, and in the resultant richness with which those conditions are drawn. Nevertheless, it fails to provide a plausible explanation of what kinds of epistemic considerations should influence our determinations of the permissibility of an act of civil disobedience, and why. It is implausible to claim that all the epistemic requirements bearing on the moral right to civil disobedience are internal conditions of serious moral conviction. Doing so mischaracterises agents who fail to meet these conditions of intelligibility, evidential satisfactoriness, and so on. On Brownlee's account, agents who so fail are simply doing something other than civil disobedience. But it seems very strange to view those who make claims which fail to meet these standards in their protests against COVID-19 public health measures – which they themselves regard as civil disobedience, and which appear to fit into most definitions of the category fairly easily – not as launching unjustified civil disobedience, or civil disobedience which they do not have a right to perform, but as simply doing something else. Brownlee's account then misdescribes the epistemic wrong involved in these cases. The flip side of this is that Brownlee's account also gives too much weight to conviction, granting a moral right to engage in civil disobedience on the basis of any genuine conviction without any reference to the broader political context or the competing values that might bear on the case. There must, though, be some considerations which bear on the question of whether an agent has this right which go beyond an analysis of the conviction of the dissenter. If not, this seems to leave the very establishment of political authority in a precarious position.20 Brownlee herself seems to regard this as a question of justification rather than right, and places faith in the constraints of conscientiousness to ensure that dissenters act responsibly.21 Locating the epistemic requirements of civil disobedience exclusively in the concept of conviction leads us to identify the epistemic considerations bearing on civil disobedience as solely introspective. But acts of civil disobedience do not only involve deep moral conviction. They also rely on moral and non-moral beliefs about the world–about the structure of social reality, the kinds of claims being made by other agents, the nature of the political and legal system–which, though always contested, cannot be regarded as a matter of deep and intractable disagreement in the way that religious or political conviction can. We should then reject the idea that limiting the moral right to civil disobedience according to the interests of other agents or society at large is in all cases insufficiently respectful of conscientious conviction. It is therefore implausible to identify the concept of conviction as the site of all of the epistemic constraints bearing on the justification of civil disobedience. Freeing the epistemic demands of a theory of civil disobedience from the inside of a conception of moral conviction enables a more plausible process of determining whether an act of civil disobedience is justified. Viewing these as one of a number of elements bearing on that question, alongside others such as the nature of the political regime, the character of the epistemic environment, the extent to which disobedient agents are able to make their claims through other means, and the weight of competing claims and interests enables us to recognise the epistemic constraints as an independent criterion which can generate different requirements in varying circumstances. What, though, might the epistemic conditions bearing on these determinations actually be? In the next section I advance an alternative to the conviction-based account, in which agents hold (defeasible) epistemic obligations to others which constrain their epistemic conduct prior to engaging in civil disobedience. The idea that agents have epistemic obligations is widely held. On Richard Feldman's definition, these are ‘duties that one must carry out in order to be successful from an intellectual (or epistemological) perspective’.22 My argument does not rely on accepting any general account of these duties, such as that these are duties to believe propositions supported by the evidence available to us, or to behave in ways which maximise true belief. I am concerned only with a relatively minimal subset of these obligations; those obligations agents have to take reasonable steps to avoid holding false beliefs.23 Note that these concern only the process of belief formation and verification rather than the content of those beliefs. It is important to distinguish between purely epistemic obligations and the kinds of obligations with which I am concerned. An example of the former would be a (prima facie) obligation on an agent to believe P if and only if P is supported by the available evidence at the time.24 This is not a moral obligation, but an obligation which is conditional on the pursuit of something like epistemic excellence. Often, though, we have moral or political obligations (as, say, members of a jury) which have epistemic elements, or which impose on us obligations to seek out certain kinds of information, to alter or reflect on our epistemic practices, or to discount certain kinds of information from our reasoning. Sometimes, we come to hold these obligations because we take on particular roles or offices or engage in particular actions or practices. My claim is that we have an obligation of this kind when we seek to engage in civil disobedience. Agents have an obligation to be epistemically responsible–that is, to seek to become informed about important topics, to take steps to avoid forming false beliefs, to be careful in their reasoning, to participate in processes which promote these goals–when voting,25 participating in democratic deliberation,26 or advocating a political view.27 As Candice Delmas has argued, ‘since citizens of a democracy make decisions on the basis of their beliefs, they ought to form their beliefs responsibly’.28 If we don't, we fail to give due weight to the interests of our fellow citizens. Both Delmas and Eric Beerbohm have articulated compelling accounts of this kind of epistemic care as a practice which citizens must engage in to identify and discharge their political obligations more effectively (including, for Delmas, their obligations to engage in various forms of disobedience against injustice).29 There are any number of ways in which we can fail to meet these standards in our regular interactions with our fellow citizens.30 But there are reasons to think that this obligation is especially weighty when citizens are considering engaging in acts of civil disobedience. Those who engage in civil disobedience impose burdens on other citizens by doing so, and imposing these burdens without institutional authorization may, without further justification, be interpreted as a rejection of mutual cooperation between agents as the basis of shared citizenship. I will defend this characterisation before outlining the content of the epistemic obligations I posit in more detail. There are burdens involved in making space for civil disobedience.31 Some of these burdens are financial, based on the initial costs of making space for civil disobedience and the economic consequences of protests.32 Others might involve the obstruction of an agent's capacity to advance important interests or exercise their rights. In either form, the lives of other citizens are often seriously disrupted by such action. Whereas fair-play accounts of political obligation lead us to think of these costs in terms of undeserved advantage or free-riding, no such step is needed to recognise the significance of this distribution of costs. Instead, I suggest simply that those who involuntarily assume these burdens are owed a justification. Burdens distributed through political institutions can be justified by reference to the value and legitimacy of those institutions (though such justifications will generally fall short when provided in support of unjust policies; in such cases, even the burdens levied by legitimate institutions may count as unjust). An answer of this kind cannot provide a justification for acts of civil disobedience, which are extra-institutional and thus attempt to override or challenge the way in which burdens would ordinarily be assigned. In such circumstances, a justification must be attached to the token of civil disobedience itself, and must be of such a kind that no agent could reasonably object to being forced to carry the burdens the disobedience loads on to them. In the absence of such a justification, a dissenter may reasonably be viewed as indifferent to the claims that others have on her as a member of the community. In many cases, such a justification will be provided through the kinds of claims made in the act of civil disobedience. However any given agent might respond, the burdens taken on by those who are stuck in traffic as a result of civil disobedience aimed at highlighting the urgent need to reduce emissions can be justified by reference to the severity of the injustice being protested and the insensitivity of the democratic process to such claims; similarly, those whose property was damaged in the protests against racial injustice across the US in the summer of 2020 following the murder of George Floyd did not have a reasonable complaint against the protestors.33 In speaking of a ‘justification’ offered to those who take on the burdens generated by civil disobedience, we are not then speaking of agreement between actual persons, but rather invoke the contractualist sense of the term whereby acts or principles may be justified on the basis of meeting certain standards of reasonableness.34 It is striking that discussions of the burdens imposed and taken on by those engaged in civil disobedience rarely engage with the epistemic dimensions of civil disobedience. We may reasonably displace burdens (especially, but not exclusively, when they have been unjustly distributed in the first place) on to others if we engage in civil disobedience which is in support of a just cause, in which we do not impose excessive costs on others, and following which we take responsibility.35 My suggestion is that the justification of these acts rests not only on the justness of the cause and the insensitivity of political institutions to the claims being made, but also on protestors' epistemic conduct. We can easily imagine civil disobedience which serves good causes or is undertaken in conditions which permit such action but which other agents may have legitimate complaints against because of the conduct of dissenters; if, without sufficient reason, considerably more harm than necessary is inflicted to achieve a good chance of success, or if those burdens fall disproportionately on the least advantaged.36 In the same way, legitimate complaints may be made against agents who do not take sufficient epistemic care in advance of participating in civil disobedience.37 We are now in a position to identify the nature of this obligation more precisely. My claim is that the legitimate interest of agents in not being subject to significant unjustified burdens gives rise to an obligation held by those seeking to engage in civil disobedience to take reasonable steps to minimise the risks that they are mistaken about the claims under whose name they disobey. It is prima facie wrong for an agent to foreseeably inflict significant burdens on others through disobedience if that agent has not taken reasonable steps to ensure that the cause which they aim to promote in their actions is in fact truthful and just.38 It would indicate disrespect for those agents who involuntarily take on the burdens generated by those actions. How might agents operating in a reasonably healthy epistemic context satisfy this obligation? They will seek to corroborate and check the factual claims on which their case relies through trustworthy media sources, eyewitness reports, or experts in the relevant field. They may engage in dialogue with others (ideally including a diverse range of perspectives) to come to a considered analysis of a policy or institutional arrangement. This might include public debate or questioning of public officials or others. On topics which require technical expertise that agents cannot be expected to acquire, they will try and identify experts who are respected within that field and trust in their guidance, though not to the exclusion of other dissenting views within the field (especially on highly contentious issues). They will recognise to some extent those inferences and claims which can and cannot be supported by the relevant forms of evidence, and seek a sound logical basis for their claims. They will respect and recognise others as knowers and treat their relevant personal testimony accordingly. As these examples show, this obligation is not especially onerous even for advantaged agents operating in contexts where information is widely accessible and there is a wealth of independent sources of expertise and experience one can draw on in verifying one's claims. Of course, dissenters generally operate in less healthy epistemic contexts. Even those relatively epistemically advantaged actors can be faced with circumstances in which some of the above ways of acting become unduly onerous, or even impossible. As Boyd Millar has put it, ‘for a belief-influencing action to constitute an epistemic obligation it must be the case that a given individual could reasonably have been expected to perform or omit that action under the relevant circumstances’.39 What epistemic obligations, if any, do agents bear in hostile epistemic circumstances? The obligation I have outlined is, as I show in the next section, sensitive to epistemic barriers that dissenters may face. It is a defeasible obligation which may be weakened or obviated when dissenters are subject to certain kinds of epistemic or pragmatic barriers. Agents who engage in any kind of political action, including civil disobedience, always face some epistemic constraints, such as limited time and resources and incomplete information. Not all such constraints alter the epistemic political obligations of agents. Some, however, do. In hostile epistemic environments, the ‘reasonable steps’ agents can be expected to take will be more modest than those that would apply in better circumstances. In some instances, agents may be released from any such obligation at all. There are (at least) two kinds of epistemic obstacle which can have this effect: oppression and urgency. Oppression can make epistemic checking too difficult or costly for agents to be expected to engage in it to the extent expected in better conditions. The claims that other agents have on dissenters to take epistemic care will in these cases be dissolved by the weightier claims of all individuals in being able to resist severe injustice. My fellow citizen can have no reasonable complaint if I launch an act of civil disobedience without engaging in epistemic checking or corroboration when the public distribution of information is tightly controlled, or I have been prevented from accessing what information is available, or public discussion of political topics is prohibited. Any attempt to act in accordance with the requirements that apply in better circumstances would be supererogatory in these conditions. There are a number of ways in which oppression can have this effect. Firstly, it can make epistemic checking overly costly, or restrict the means by which we might more or less reliably verify claims. This is most obviously the case when the state imposes