Civil Disobedience Thomas Ruble The idea of civil disobedience is to go beyond the determinations of the law in order to rejuvenate

e (not reinstate) its s irit for the sa!e of insufficiently recogni"ed rinci les# The normative measure of sufficiency seems as if it would be$ in ractice$ either groundless or in circular relation with the very legitimacy of the dissenting o inion at wor!$ and this dilemma is but another e% ression of a central roblem that runs through the theoretical sections of On Revolution#& 'n that wor!$ (rendt builds a case for her theory that a new act which as ires to determine a shared field of meaning for a community can be saved) from its otential arbitrariness or circularity if it is animated by the very same ins iring rinci le the act manifests during its enactment$ so that the erformance of an act can be an end*in*itself$ and on that ground not unjustified$ only if its actuality maintains its beginning*in*itself (+R ),-)# The illusory vicious circle vanishes with a shift in ers ective that a reciates the difference between the direct intentions of acts$ which reference the se.uence of causes and effects that always situates an intelligent will$ and the indirect manifestation of the meaningful for*the*sa!e*of behind an act$ which$ as (rendt writes elsewhere$ can never be the aim of action and yet$ inevitably$ will rise out of human deeds after the action itself has come to an end (The Conce t of /istory$ 012 cf# 3hat is 4reedom5 6ection ))# The oint here is not that one could not mean to act meaningfully$ but that genuine meaning can neither be fabricated with im lements nor instrumentali"ed for a rivate ur ose2 meaning$ in a way$ recedes and outlasts any actuali"ation and thus can serve as a common ground for a eo le in the sense that when the meaning of an act is a rinci le that a community actively shares$ then the s ecific accidental .ualities of the act are ecli sed by the dee er significance at sta!e$ just as the verbatim content of an oath is less im ortant than whatever it meant to ta!e that oath at that time# Clearly$ if the rinci le that saves an act would be within the direct control of the agent$ then we would live in a state of naturally sovereign individuals who all have an identical and constant claim to legitimacy$ and conse.uently the classic roblem of how to fashion artificial order over autonomous subjects# That this ability to fashion meaning as one might s!illfully cobble a shoe is not a ower humans have leads$ in (rendt7s thought$ to a carefully worded conclusion that deserves re eating8 The way the beginner starts whatever he intends to do lays down the law of action for those who have joined him in order to arta!e in the enter rise and to bring about its accom lishment (+R ),-)# The succinct formula contains in germ (rendt7s contribution to the clustered roblems of consent$ authority$ legality$ dissent$ stability9novelty$ the ground of romise*!ee ing$ and a living sense of citi"enshi $ which will all be ic!ed u and develo ed again in Civil Disobedience$ where (rendt brings the revolutionary s irit$ and with it its two elements$ the concern with stability and the s irit of the new$ into contem orary terrain where the founding is already an accom lished fact and the law already laid down through a constitutive act that had a eared so forcefully in broad daylight to be witnessed by all that one may be tem ted even to redict that the authority of the re ublic will be safe and intact as long as the act itself$ the beginning as such$ is remembered whenever constitutional .uestions in the narrower sense of the word come into lay (+R &1:*10)# The real rotagonist of Civil Disobedience is a conce t of law that roves itself for itself through the ordeal of accounting for the rightness of (merican civil disobedience2 in a way$ it is a coming of age story for the young re ublic who must at last gras its structure of authority and ower in its truth by recogni"ing that it is meant to live with negativity#; <nfortunately$ the conce t of law she
& 4or e%am le$ &-)*-0$ &0-*00$ &1:*1=$ and an allusion to its resolution at ),>*:# ) To save is a s ecial term for (rendt that$ when it is not credited to ?lato (@ABCD in Laws E! F'$ 00-)$ usually a lies to the resistance against the forces of oblivion or ruin (/C )&$ --*-0$ ))-2 The Conce t of /istory 0=*012 Crisis in Gducation &1;2 +R )&))# ; (rendt commences the final section of her essay with her e% lanation that what is basically at state here is not whether$ and to what e%tent$ civil disobedience can be justified by the 4irst (mendment$ but$ rather$ with what conce t of law it is com atible # # # ' shall argue Hthat civil disobedienceI is rimarily (merican in origin and substance # # # and that the (merican re ublic is the only government having at least a chance to co e with itnot$ erha s$ in accordance with the

resents is stranger to our ears than she ma!es e% licit$ and it is easy to mista!e the center of attention for its s ectacular case*study$ and then down lay (rendt7s contention that civil disobedients are nothing but the latest form of voluntary association$ and that they are thus .uite in tune with the oldest traditions of the country whose beginning she e%horts us to remember (CR 1:)# The constant concern over law stems from the redicament that no civili"ationJthe man*made artifact to house successive generationsJwould ever have been ossible without a framewor! of stability to rovide the wherein for the flu% of change$ and while the flu% of change does in fact inevitably affect and alter the com onents of its housing$ it least of all affects the enduring legal systems that regulate our life in the world and our daily affairs with each other (CR 01)# To this she adds the im ortant caveat that in order for the law to house freedom$ it must be e% licitly limited if it were in effect everywhere at all times$ the totali"ed state would be lawless (01*=,)# Kature (and$ of course$ natural self*interest) has its due lace$ but the legal housing is built recisely to !ee reliably those natural forces from contaminating and ruining the s ace for (non*natural) freedom# This redicament combines with the endless internal migration of newborns$ which together issue in a demand that our lawful artifice rovide a double*function8 to hold*out against the eroding forces of change and yet allow for a legitimate and free emergence of change at the right time# The a earance of arado%$ which casts a semblance of arbitrariness or circularity about those nascent acts that beg for validity$ de ends on a flawed sim lification of law that fuses authority of legal decision and ower of e%ecution into one location$ which would serve as the dogmatic soil in which the command*obedience model ta!es root#> (rendt7s retension is to articulate the original s irit of (merican law in order to show that its artifice$ no matter how it may a ear today$ was atently not built on such foundations# On Revolution joined in Cicero7s raise for the founders of new olitical bodies# These were the eo le$ if ' may borrow an allegory from The Human Condition$ who endeavored together to build the original table meant to relate and to se arate those who sit around it (/C -)*-;)# The fated danger of Guro ean revolutions stemmed from how the eo le needed first to destroy a receding table to ma!e room for the new$ and the blessedness of the (merican enter rise resided in the unstoried blan!ness of slate u on which they drafted their lans# Civil disobedience o erates by leaving the table basically intact$ so that when a significant number of those around it have become convinced either that the normal channels of change Hor round*table discussionI no longer function$ and grievances will not be heard or acted u on they can get u from their seat and stand on the table itself$ using it as a stage for s eech*giving$ in order to dis ute the validity of distinct o inions in the room (CR 0>)# The basic roblems with this situation are two$ and$ if ' may ush the allegory a little further$ they are$ first$ that the table was not explicitly meant to withstand this abuse$ so that a s eech from on to of it could only solicit the audience7s res ectful attention if those who are to s ea! and to listen maintain confidence in the table7s ability to shoulder this e%tra weight for a little longer and$ relatedly$ that they do not assume that citi"ens who stand on tables intend to destroy them2 and secondly$ even if its architects secretly had this e%tra durability in mind when they designed its structure$ the act of grandstanding u on a table at discussions would lose its effectiveness the moment it became generally allowable$ for similar reasons to how the law would be lawless if it were not limited# The conce t of law under .uestion refers to more than just the Eoolean categories of legal9illegal# The crucial turn in (rendt7s argument$ which ha ens in ro%imity to a consideration of the accelerated rate of social change$ is that The law can indeed stabili"e and legali"e change once it
statutes$ but in accordance with the spirit of its laws (=;)# That (merica is said to have a chance to cope with civil disobedience in s ite of re ressive statutes shows clearly that wor! at an institutional level is to be done# Kear the end$ her summary remar!s assert$ (lthough civil disobedience is com atible with the spirit of (merican laws$ the difficulties of incor orating it into the (merican legal system and justifying it on urely legal grounds seem to be rohibitive# Eut these difficulties follow from the nature of law in general$ not from the s ecial s irit of the (merican legal system (11)# > 6ee +n Fiolence # &;1 where (rendt contrasts the command*obedience model with other conce ts of law that led into (thenian isonomy or Roman civitas#

has occurred$ but the change itself is always the result of e%tra*legal action$ and even though the 6u reme Court has the right to choose among the cases brought before it # # # this choice is inevitably influenced by ublic o inion (=,)# ' believe (rendt means to show that the 6u reme Court is not wholly sealed off from the e%tra*legal action in the ublic s ace$ and thus the living s irit of (merican law is in art re!indled by a ( otentially clandestine) com lementary e%tra*legal action in the judge7s chambers$ but an action that is none the less of a very s ecial sort# +ne shortcoming with (rendt7s brief resentation of argument is that she does not clear u an ambiguity with the term e%tra*legal# There is$ firstly$ an e%tra*legal realm which goes about its business indifferently to the law$ for e%am le in our !itchens and among our intimates# 3ith regard to the ublic law$ this realm may best be called a*legal# Eetween the a*legal rivate doings and the second sense of e%tra*legal lies the genuinely intra*legal$ within which there are the categories of legal and illegal action# 4inally$ the e%tra*legal realm (rendt charts in her essay is what ' wish to characteri"e as beyond the law a realm of virtuosic activity within recogni"able forms$ where romises must be actively renewed if they are to be !e t$ or a lace where acts are neither innocent nor rovably guilty$ but always uni.uely meaningful# (n act accesses the realm beyond the law when it bears an e% licit negative reference to the determinations of the intra*legal$ in that the act explicitly brea!s a set of them$ but this reference is manifestly e%terior and$ im ortantly$ manifest as e%terior to an interior relation with the law7s interior essence or s irit# The 4reedom Riders e% licitly violated traffic laws$ but the very superficiality of this assessment oints to the internal$ or essential$ im ort of their deeds8 to reveal dramatically an insufficiently recogni"ed principle which would have remained in oblivion beneath a dominant unanimous ublic ignorance had the 4reedom Riders not forced u on the nation the recognition of the enormity of the crime at sta!e (CR =&)# 3e can recogni"e and judge the true meaning and validity of their deed because we have common sense$ and because their act was not obviously motivated by self*interest$ which would have countered the a eal to generali"able norms of judgment by a ealing to rivate desires (cf# :> on conscientious objection)# There was a virtuosity to the 4reedom Riders7 determinate negation of the statutes of law for the sa!e of manifesting its s irit# (rendt corroborates her twofold conce tion of (merican law (s irit L statute) with a reference to /ans Morgenthau7s distinction between consensus and consent of the governed (==)# 't goes8 Consensus is the general recondition for any civili"ed government2 the consent of the governed is the recondition for a articular democratic government# The consent of the governed does not concern itself with the fundamentals of the democratic olity$ which it ta!es for granted as vouchsafed by the consensus$ but with the s ecifics of a articular democratic government at a articular oint in time#The (merican re ublic enters into crisis when this distinction is not recogni"ed to the e%tent that dissent from statutes is e.uated with treason# This e.uation results in a double confusion where$ on the one hand$ genuine olitical deeds are criminali"ed$ and$ on the other$ criminal deeds a ear olitici"ed# The re ublic is in this crisis$ (rendt claims$ artly because it has lost$ in the course of time$ all institutions that ermitted the citi"ens7 actual artici ation$ and artly because it is now gravely affected by the disease from which the arty system suffers8 bureaucrati"ation and the two arties7 tendency to re resent nobody e%ce t the arty machines (=1)# The issue is that a living government re.uires active consent$ and the activity of consensual artici ation withers to un.uestioned tacitness in a climate where dissent is treason and consent is automatic (cf# =-)# Kot only would a right to dissent to statutes im ly a consent in those who do not freely dissent$ but an active dissent that ultimately draws from the same well of basic rinci les shared by a consenting society at large would energi"e ublic discourse by soliciting its o osed o inions to become also active if they are not to become im otent# ?arty machines (or ideologies)$ li!e all machines$ only hold sway by a subjunctive necessity that is$ if no one acts# Civil disobedience$ in (rendt7s theory$ is the res onse to the crisis when the avenues to action are bloc!ed off for minority voluntary associations that are too im ortant$ not
- 3here Consent Erea!s Down$ The ew Republic$ Nan# ))$ &1::$ # &0

merely in numbers$ but in !uality of opinion$ to be safely disregarded (0:)# The roblem of mass society is not that ublic o inion influences legal statutes$ but that a large section of ublic o inion can hold a mono oly of influence on legal statutes# 3hat ha ens then is that romises are made but without being actively "ept # arty machinery renders romise*!ee ing (not em ty romise ma!ing) su erfluous$ since Ko*+ne is res onsible# The main thrust of Civil Disobedience culminates with a ro osal to revent legali$ing politics$ and this is where the e%tra* legal ca acity for change ma!es its a earance within the Nudicial Eranch# +nly if citi"ens commonly understand that the Court not always strictly inter rets the constitution$ but that it is influenced by ublic o inion$ can its refusal to grant certiorari be ta!en as not tantamount to finding that there is a legal liberty # # # to erform the challenged act#: 'f Court decisions were only ever in !ee ing with the letter of Constitution$ then the refusal to rule on the case of the legality of$ say$ the Fietnam war would im ly that the issue is intra*legal$ and thus a not illegal ruling would become the only alternative8 a legal endorsement about which more can be said only at grave ris! of degrading confidence in authority# The logic of law$ however$ is not bivalent# The 6u reme Court guards the constitution of the re ublic$ in both senses of the word$ by not only staying its hand with that loo hole which lets a moment of sovereignty into the governmental o erations (&,,)$ but also when in the very same sovereign gesture it forces open a s ace for the sa!e of owerfully free s eech belonging by right to the eo le# (rendt critici"es the ultimate failure of judicial review (&,&) for having not com limented its negative abstention from e%ercising authority with a positive rotection of civil disobedience as the form of voluntary association fit to res ond to an unlistening majority in our mass society a rotection that would have granted the dissenters an o ortunity for free non*illegal movement beyond the determinations of the law so that they may dis lay a rinci le visibly enough for ublic recognition# The constitutional niche for civil disobedience (=;) is not meant to eliminate the agony of dissent$ but instead to agoni"e the otherwise tacit consent held by the majority and thus to free u and ma!e mobile the joints in a society which would otherwise tend toward im otent self* er etuating bureaucracy#0 (ccording to the .uantity of disobedients and their !uality of opinion the authoritative positive denial of certiorari draws from the adage inter arma silent leges which$ returning to the allegory above$ im lies that the table neither crea!s nor s ea!s as it rovides of itself the e%tra*legal foundation on which the disobedient can ma!e a stand#

: This .uote is ta!en from Oraham /ughes7s article$ Civil Disobedience and the ?olitical Puestion Doctrine$ which (rendt credits in her conclusion# 'n it$ /ughes ma!es more e% licit than (rendt the conce t of law that sounds$ in his words$ strange to (merican ears# Ey his analysis of constitutional law$ certain assages of the Constitution have a urely hortatory im ort$ which enable the G%ecutive and Qegislative branches to commit acts that are at once unconstitutional but not illegal% 6ee Civil Disobedience and the ?olitical Puestion Doctrine$ in ew &or" 'niversity Law Review$ >;8) (March$ &1:=)$ es ecially # &-*&1# 0 Call this the tendency toward totalitarian tyranny the rule of no one built into every modern$ large*scale bureaucratic institution# Eureaucratic rationali"ation is the Rnatural7 way modern institutions fail# (Eernstein$ ?olitical Modernism$ in (rendt and (dorno$ # 0))