Two dead brothers. Only one will receive the honoured burial. The other will be left without proper sepulture. His body will be abandoned, to be feasted on by birds and dogs.
It is the king who decided so. His edict was published. The entire city knows of his hapless decision. Yet, one woman defies it. In full will, she transgresses her father’s order, buries her brother and crowns his body with every funeral rite.
Summoned before her father, she openly questions his decisions and calls his law unjust. When told that she wickedly “[sought] to make the crime a glory”, she answers that everyone in the city agrees with her actions, but they hold their tongues in fear of reprisal.
That is the setting for Antigone, a play written by Sophocles, one of the ancient Greek tragedians, and named after its transgressive heroine. To this day, the text remains required reading for many university-level humanities classes. In political theory studies, it is considered one of the earliest accounts of civil disobedience.
Antigone’s conduct, when she decides to forgo the king’s edict, is indeed an act of civil disobedience. She breaks the law, she does so to protest a law she deems unjust, and she openly acknowledges her actions in order to stress that obedience to authority should never be absolute.
These three features—an act illegal, acknowledged publicly, and done in protest—are present in all modern definitions of civil disobedience. Most notably, they are recuperated by John Rawls, a legal theorist, in his influential 1971 work A Theory of Justice.
Rawls further adds that civil disobedience is “done with the aim of bringing about a change in the law of policies of the government” and that it addresses the “sense of justice of the majority”.
Rawls therefore presents civil disobedience as a practice for change. It is about defying the law in order to change the law. And because of this aim to change a situation for the better, it harnesses popular support.
A crime for a change
Civil disobedience implies an illegal act. Regardless of its objectives, it breaks the law. To carry out an act of civil disobedience means to deliberately carry out a specific infraction.
In turn, the legal system responds with a punishment. For example, if a protestor refuses to leave the vicinity of an illegal protest, declared as such by a municipal by-law, she will receive a ticket and will be required to pay a fine.
In this response, the legal system is faced with two difficulties. Firstly, the law cannot punish civil disobedience. Rather, it punishes the illegal act carried out in civil disobedience. Civil disobedience itself cannot be criminalized because it does not exist without that specific infraction.
Secondly, those who deliberately break the law in acts of civil disobedience expect the legal repercussions. The protestor knows that she will be fined or that she will spend one night in jail. She understands this and she accepts it.
The result is a discomfiting cul-de-sac. Faced with civil disobedience, the law can only keep punishing the illegal act. Yet, the punishment doesn’t deter the protestors from repeatedly disobeying. They will keep carrying out that illegal act until the law changes.
Court it out
This stalemate in the streets, with cycles of infractions and punishment, does little to bring about any legislative change. Indeed, any change to the law is usually provoked by the courts. It often happens when a citizen decides to ask the judges to declare a specific piece of legislation unconstitutional, therefore inapplicable.
It seems then that the authority of the courts is used to question the authority of a law. Those who engage in civil disobedience move to obtain judicial approval of their contestation. One side of the legal system is used against the other, in an effort to improve the overall system.
Those who engage in civil disobedience therefore do not entirely reject the legal system. In fact, they use it by using the courts. And they do so not to seek a major structural change, but to simply improve a situation. The short-term goal of civil disobedience is to fix a specific glitch in the legal system by having an unjust law removed.
The idea that civil disobedience does not question the actual legitimacy of the legal system is further confirmed by the way it is carried out. Indeed, it usually targets specific pieces of legislation, be it a law or a few articles within a law. Modern acts of civil disobedience do not call for a general overhaul of the legal system, or even of a particular legal field.
It would be mistaken then to argue that those who engage in acts of civil disobedience hold the legal institutions in contempt. In fact, the contrary is more plausible. Those who are willing to endure legal repercussions in order to speak out against a problematic law must have some faith in the rest of the legislative body. To a certain extent, they must accept, if not internalize, the reasons for its existence and the structures it creates.
Conversely, it would be just as mistaken to argue that civil disobedience poses a credible threat to the authority of the legal system. Instead, it seems to play a role in shaping that authority. Those who deliberately break the law to initiate a political dialogue then ask the courts to validate their contestation. The courts may not explicitly approve of illegal actions, but they may very well declare the law unconstitutional.
As a form of protest, civil disobedience is a complementary alternative to traditional and institutional methods of political actions, such as voting or writing to members of parliament. Historically, it has brought about legislative changes. However, it remains a tool to be used by those sufficiently satisfied with the current legal institutions to concern themselves with specific laws or articles.
Civil disobedience is therefore a practice of contestation, but not of confrontation. It challenges a situation, but safeguards the system’s orientations. Antigone did not question why the king was king, why his will is law. She just wanted to bury her dead brother.