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Daniel Markovits [View as PDF]
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114 Yale L.J. 1897 (2005)
Traditional justifications for civil disobedience emphasize the limits of legitimate political authority and defend civil disobedience as a just response when governments overstep these limits. Such liberal justifications are well suited to certain classes of civil disobedience--in particular, to disobedience in protest of laws or policies that violate basic rights. Moreover, these classes include the historical cases of civil disobedience (for example, in the American civil rights movement) to which the traditional treatments of civil disobedience responded. But the traditional liberal theory fits less well when civil disobedience is directed against laws or policies that fall within the scope of democratic political authority. Such cases figure increasingly prominently in the political landscape. The traditional theory of liberal disobedience is therefore increasingly inadequate to the practice of disobedience on the ground.
This Essay develops an alternative approach to civil disobedience--a theory of democratic disobedience--that can explain such cases. According to this theory, civil disobedience may be justified when there is a democratic deficit in the processes that have produced the laws against which the disobedience protests. Even if such laws could be legitimate, because they fall within the scope of democratic political authority, the democratic deficits that they suffer deprive them of actual authority. Civil disobedience functions, in such cases, not to limit but rather to enhance democracy.
The argument presents an account of democratic politics that highlights the possibility of democratic deficits as a necessary side effect of the basic mechanisms of democratic political authority, which democratic disobedience might correct. Along the way, the argument develops an analogy between civil disobedience and another seemingly antidemocratic political practice: judicial review. This analogy emphasizes the costs of approaching democratic disobedience on the traditional, liberal model. It also helps the argument structure the forms and limits of democratic disobedience. The argument concludes by speculating about the rising prominence of democratic disobedience and connects this phenomenon to broader trends in democratic politics.
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