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Civil Disobedience and Nuclear Protest

Civil Disobedience and
Nuclear Protest: A Reply to
Dworkin
Richard Norman
Philosophical writing about civil disobedience tends to
reach only the vaguest of conclusions: that it is normal1y
wrong to disobey the law in a democratic society, but that
in some circumstances civil disobedience may be justified,
provided the issue is sufficiently serious and weighty and
alternative methods have been tried without success. That
of course leaves al1 the important practical questions
untouched. Having myself found it difficult to see where
one goes from there, I am much in sympathy with the stated
aim of Dworkin’s paper “Civil Disobedience and Nuclear
Protest” [1]. That aim is to develop “a working theory”
which, by distinguishing between different kinds of civil
disobedience, might enable us to base decisions about the
rightness of civil disobedience on a recognition of the
kinds of convictions involved, rather than on our
particular views about the substantive issues at stake.

welcome the philosophical enterprise, then, but I find
myself at odds with Dworkin’s political conclusion: that
whatever one thinks about the issue of nuclear deterrence
and disarmanent, and in particular about the decision to
station new American nuclear missiles in Western Europe,
it is very difficult to justify civil disobedience as a way of
protesting about an issue of this kind. Dworkin offers his
argument as a “chal1enge” to “those who advocate this
form of disobedience” and who “now have the burden of
showing how a working theory could accept it” (p. 1l3).

should like to take up that chal1enge.

Dworkin distinguishes three kinds of civil disobedience:

integr i ty-based, justice-based, and policy-based.

Integrity-based civil disobedience consists in refusing, on
grounds of conscience, to do something which the law
requires you to do. He gives the example of the many
inhabitants of the northern states of the USA before the
civil war who, disobeying the Fugitive Slave Act, gave
help to escaped slaves from the south. Examples of
justice-based civil disobedience are the actions of the
civil rights movement, and those civilian protests against
the Vietnam war which involved breaking the law. In
contrast to both these kinds, recent acts of civil
disobedience at Greenham Common and elsewhere in
protest against the stationing of new American nuclear
missiles in Europe are examples of policy-based
disobedience.

Dworkin then introduces a further distinction between
persuasive and non-persuasive strategies of civil
disobedience. A persuasive strategy “hopes to force the
majority to listen to arguments against its program, in the
expectation that the majority will then change its mind
and disapprove that program” (p. 109). A non-persuasive
strategy “aims not to change the majority’s mind, but to
increase the cost of pursuing the program the majority
still favors, in the hope that the majority wil1 find the
new cost unacceptably high” (ibid.). For reasons which
will consider shortly, Dworkin thinks that civil
disobedience directed against the new missiles is likely to
24

involve a non-persuasive strategy. But a non-persuasive
strategy which is also an instance of policy-based
disobedience is, says, Dworkin, “the least likely to be
justified in any general working theory” (p. Ill). This is
because it violates the principle of majority rule which is
“essential to democracy, ••• the principle that once the
law is settled, by the verdict of the majorit.Y’s
representatives, it must be obeyed by the minority as
wel1” (p. 110). Persuasive strategies of civil
disobedience, though at one level they seem to go against
this principle, accept it at a deeper level since they are
addressed to the majority as a way of asking it to change
its decision. Non-persuasive strategies are more difficult
to justify, but if they are justice-based they can at least
appeal to the principle that the majority has no right to
abuse its power at the expense of a minority’s rights. Nonpersuasive policy-based civil disobedience fails on both
counts. It is, in effect, an attempt to thwart the
democratic process. According to Dworkin, civH
disobedience against the new missiles falls Into this
category, and that is why he thinks it difficult to justify.

Is he right? Is this a case where civil disobedience is
policy-based? And does it involve a non-persuasive
strategy? I will try to answer the two questions, in that
order, but in doing so I also hope to show that the
questions themselves are problematic in ways which raise
doubts about Dworkin’s classification.

The question whether anti-nuclear civil disobedience is
integrity-based, justice-based or policy-based is one which
I find perplexing, since it seems to be me to be none of
these. In some few cases it might be integrity-based:

members of the armed forces might refuse to engage in
preparations for nuclear war, and I suppose that the
refusal to pay that proportion of one’s income tax which
could be thought of as helping to pay for nuclear weapons
might also come into this category. Most anti-nuclear
civil disobedience, however, is not like that. It is not a
refusal to perform acts against one’s conscience which the
law requires. It is a matter of deliberately setting out to
break the law in ways which could perfectly well have
been avoided. The issues which underlie that decision do
not, indeed, seem to be matters of justice, but they do not
seem to be mere matters of policy either. Must they be
one or the other?

Consider Dworkin’s own examples of justice-based civil
disobedience. The civil rights moverpent is an obvious
example to put into this category, but why should protests
against the Vietnam war be described as justice-based? It
seems to me that they can be so called only if the term
“justice” is being used in a very broad sense, defined by
reference to an equally broad notion of “rights” such that
any profound wrong done to others is seen as a violation of
their rights. We can, I suppose, talk in that way, but only
at the risk of over-extending the concept of justice. At
any rate, protest against the Vietnam war was not justice-

,
I

based in the more precise sense of appealing to the
community’s sense of justice and condemning, from that
standpoint, the treatment of a certain section of the
community. Nevertheless, even though not concerned with
questions of justice in any strong sense, such protest was
certainly concerned with issues of principle. It was not
just an expression of technical disagreements about the
effectiveness of alternative policies. This suggests to me
that what we need is a more fundamental distinction than
Dworkin’s, a distinction between “principle-based” and
“policy-based” civil disobedience. Dworkin himself says
that integrity-based and justice-based civil disobedience
both involve “convictions of principle” in contrast to
“judgments of policy” (p. 107). There are, however, other
kinds of principle which do not necessarily involve
considerations either of integrity or of justice. I do not
know exactly how one should describe the principles
which underlay protests against the Vietnam war, but I
imagine that it would be more appropriate to call them, in
a broad sense, humanitarian principles rather than
principles of justice.

What now of nuclear protest? Dworkin recognises, in a
footnote, that
•.• some people have made arguments of principle
against deploying nuclear weapons. Certain
religious groups argue, for example, that because it
would be wrong actuaHy to use atomic weapons,
even defensively, it is also wrong to threaten to use
them, even if that threat would in itself make
nuclear war much less likely. That is rather rigid,
even counter intuitive argument of principle ••• (p.

404, n. 2).

That, however, is a statement of the argument in its least
plausible form. I agree that a simple argument from the
wrongness of using nuclear weapons to the wrongness of
threatening to use them is too simple, and as such could
perhaps be called “rather rigid, even counter intuitive”. If
one could be morally certain that the threat of nuclear
retaliation would prevent nuclear weapons from being
used, my own view is that deterrence could then be
acceptable. The fact is, however, that such threats carry
with them the real possibility that, by accident or through
miscalculation or as a result of the irrational reactions of
politicians in a crisis, the weapons will actually bt:! used.

It may be claimed that deterrence makes nuclear war less
likely, but this can be contested, and the most that can be
asserted on either side is a judgment of probability: a
judgment about how likely it is that nuclear weapons, if
they continue to be deployed in this country, will be used,
and about how likely it is that other countries would use
them if all nuclear weapons were removed from this
country. Those, therefore, who accept a policy of nuclear
deterrence on the part of this country must recognise the
real possibility that the weapons may be used, and so must
regard it as morally permissible to use them. It is then
reasonable for us to maintain a strong objection of
principle to a policy which makes the defence of this
country rest on a willingness to commit an unspeakable
evil.

However, even if nuclear protests did not appeal to
principle in this particular way, it would still seem quite
inappropriate to regard them as merely policy-based. In
support of such a categorisation, Dworkin says:

If we tried to reconstruct the beliefs and attitudes of
the women of Greenham Common in England, or of
the people who occupied military bases in Germany,
we would find that most – not all but most – did not
believe that their government’s decision to accept
the missiles was an act of a majority seeking its own
interest in violation of the rights of a minority or of
another nation. They thought, rather, that the
majority had made a tragically wrong choice from
the common standpoint, from the standpoint of its
own interests as much as those of anyone else
(p.I07).

That way of putting it presupposes the dichotomy: either

“justice-based” or “policy-based”. But as one who does not
have to engage in any “reconstruction” here, I have to say
tht the last sentence does not seem to me to capture the
nature of such protests. How then are we to put it? What
is the nature of the disagreement between those of us who
engage in anti-nuclear protest and the government against
whom we protest?

I do not pretend to understand the psychology of our
rulers, but my impression is that, like most ruling groups
in history, their decisions involve a good deal of hypocrisy
and self-deception. This seems to be true, at any rate, in
the case of the nuclear issue. Everyone recognises that
nuclear deterrence cannot be relied on for ever, that
there is a need for measures of nuclear disarmament of
some kind of another (multilateral or unilateral or some
combination of the two), and that the need is urgent. We
may disagree about how urgent it is, but I think it would be
generally agreed that we must aim to achieve nuclear
disarmament within the foreseeable future, that is, in a
matter of decades rather than centuries, and given the size
of the nuclear arsenals, this means that the process must
start soon. But though the governments of all the nuclear
powers profess to accept this, they have signally failed to
act on it. They have taken no effective steps of nuclear
disarmament. They have lacked the courage to confront
the relevant economic interest-groups (the so-called
“military-industrial complex”, etc.), they have lacked the
courage to challenge the enemy-stereotypes and the
chauvinistic attitudes which they find so politically

expedient in the short term. While claiming to recognise
the need for reductions, they have pressed ahead with the
deployment of new weapons. Britain and America,
specifically, have refused to move to agreements on such
matters as a verifiable freeze on new deployments, a
verifiable comprehensive test ban, and a “no first use”
treaty, even though such agreements could now be
concluded. In the light of all this, although their
profession of concern on the nuclear issue may at one
level be genuine – after all, no sane person actually
wants a nuclear war – we have to judge that, at the level
that counts, our rulers are insincere.

I know that all of this can be contested, and I will
come back to the significance of that in a moment, but if
what I have said is true (or indeed if it is merely thought
to be true by those who protest) it means that matters of
principle are involved here. They are matters not of
justice buTOf humanitarian principle. Anti-nuclear
protest is motivated by the simple principle that it is
wrong to pursue policies which risk massive death and
destruction for the sake of short-term political advantage,
and by the belief that governments which profess to
accept this principle have failed to live up to it. If the
government in power was genuinely and resolutely
commi tted to such a principle and to the goal of nuclear
disarmament by some route or other, then the remaining
disagreements, for instance between “unilateralists” and
“multilateralists”, would be much more straightforwardly
policy-based, disagreements about means to an agreed end,
and civil disobedience would, for the reasons Dworkin

25

indicates, be that much more difficult to justify. That,
however, is not the situation we are in.

The existing situation is in fact precisely analogous to
that which Dworkin describes when he considers the case
of the civil rights movement. He says of it:

The rhetoric of American politics had for some
decades been freighted with the vocabulary of
equality, and the Second World War had heightened
the community’s sense of the injustice of racial
persecution. I do not deny that there was and
remains much hypocrisy in that rhetoric and alleged
commitment. But the hypocrisy itself provides a
lever for persuasive strategies. The majority, even
in the South, blushed when it was forced to look at
its own laws. There was no possibility of a political
majority saying, “Yes, that is what we’re doing.

We’re treating one section of the community as
inferior to ourselves.” And then turning aside from
that with equanimity (p. I09f.).

In the case both of the civil rights movement and of antinuclear protest, then, the grounds of the protest are that
people in positions of power who profess to accept certain
principles have, through their own hypocrisy, failed to
live up to them.

I noted just now that such judgments could be
contested. That too is significant. It shows that the two
sides which disagree about the issues may well also
disagree about whether the protest is principle-based or
policy-based. I suspect that this was the case with the
civil rights movement. I do not know what the opponents
of the movement actually said, and I expect that many of
them did not formulate their opposition in any clear terms
at all, but, to judge from Dworkin’s own account which I
have just quoted, it would seem that those who did
articulate their opposition might have said something like
this: “Yes, of course blacks must be treated decently, they
must be given their rights, but there are different ways of
achiev ing this, it is bound to be a long and slow process
and we must try not to rush it.” In other words, they
would have claimed that they accepted the principles and
disagreed only on the policies. The same claim is made by
the opponents of anti-nuclear protest, and it is a claim
which the protesters themselves would dispute. Thus one
side to the disagrement is likely to see the protest as
policy-based and the other side is likely to see it as
principle-based. It turns out to be difficult, then, to
separate judgments about what kinds of convictions are
involved from judgments about the substantive issues – yet
that is precisely the separation which Dworkin’s “working
theory” was intended to achieve.

This does not vitiate Dworkin’s philosophical
enterprise. I agree that it is important for the advocates
of civil disobedience to ask themselves whether the
actions they propose are principle-based or policy-based,
and to recognise that if they are policy-based they are
that much more difficult to justify. But even if they are
principle-based, I suspect that those who engage in them
cannot with any confidence “expect honor or opportunity”
from their opponents [2]. The latter, disagreeing about the
issues, are likely also to deny that the actions are
pr inciple-based.

I turn now to the distinction between persuasive and
non-persuasive strategies, and to the claim that antinuclear civil disobedience must involve a non-persuasive
strategy. I must admit that this is the point on which the
movement is most vulnerable to criticism. There is a good
deal of confusion about whether the civil disobedience is
meant to be persuasive or non-persuasive. Most people, I
think, would say the former, but I have heard loose talk to
the effect that “if there were enough of us, they couldn’t
find room in the prisons for all of us,” the implication
being that the government would have to make concessions
in order to deal with the consequent disruption. Prior to
the arrival of cruise missiles at Greenham, there were
some (but not many) who thought that this could be
physically prevented. Experience has brought with it a

healthier realism, and I think it is now generally agreed
that actions such as the blockade of Molesworth are
symbolic disruptions intended to draw attention to what is
going on, to express our deep-rooted rejection of what is
being done in our name, and to invite others similarly to
reject it.

Why then does Dworkin think that these activities
cannot amount to a persuasive strategy? Again he offers a
contrast with the civil rights movement. The latter could
appeal to a shared conception of justice, and
•.• it was only necessary to force enough people to
look who would be ashamed to turn away. The
questions of policy at the bottom of the nuclear
controversy are, by contrast, signally complex. It is
plainly not obvious, one way or the other, whether
deployment of missiles in Europe is more likely to
deter or provoke aggression, for example, or even
what kind of an argument would be a good argument
for either view. It is hard to see in these
circumstances how discussion could be illuminated
or debate strengthened by illegal acts. On the
contrary, such acts seem likely to make the public
at large pay less attention to the complex issues on
which any intelligent view must be based, because it
will think it has at least one simple and easy-tounderstand reason for sticking with the policy its
leaders have adopted: that any Change in that policy
would mean giving way to civil blackmail (p. 112).

It is apparent that Dworkin’s reasons for thinking that the
strategy of anti-nuclear civil disobedience cannot be a
persuasive one are tied to the claim that it is policy-based
rather than principle-based. Consequently, in disputing
his claim that it is policy-based, we can also dispute his
claim that it is bound to involve a non-persuasive
strategy. If the point of the protest is to declare that we
cannot consent to having these weapons used in our name,
then we can reasonably hope to persuade others to share in
that declaration. If we are calling on the government to
take seriously its own professed recognition of the need
for nuclear disarmament, and to act on it io good faith, we
can reasonably hope to persuade others that such
government action is urgently needed.

Having said that, I must also say that I find it odd to be
arguing that anti-nuclear civil disobedience is an attempt
to persuade the majority. The fact is that we have
persuaded the majority. At least on the issue of cruise
missiles – which is the focus of Dworkin’s discussion, and
also, of course, the focus of civil disobedience at
Greenham and Molesworth – majority opinion is clear.

Polls have shown a steady 60% opposition to the new
missiles.

Why does this fact not feature in Dworkin’s discussion?

Partly, perhaps, because he was addressing himself to a
German audience, but, more fundamentally, because of his
technical use of the term “majority”. He explains this in a
footnote:

I use the word “majority” in a perhaps special sense:

to name those who have control for the time being of
the political machinery of an adequately democratic
political system. They may not be the numerical
majority, but they have secured their power through
elections under procedures that are, at least roughly
speaking, democratic (p. 404, n. 1).

Certainly in this sense we have not persuaded the
“majority”. What we are about is indeed, in part, an
attempt to persuade the “majority” in this technical sense
to pay heed to the views of those who are in the normal
sense the majority. In this context it also becomes more
possible to make a case for a non-persuasive strategy as
well. If the government is trying to ride roughshod over
the wishes of the majority, there may, on democratic
grounds, be a case for trying (non-persuasively) to
frustrate their attempt to do so.

It emerges, then, that if we are assessing civil
disobedience in the terms Dworkin proposes, a great deal
will hinge on the interpretation of his phrase “adequately

26

J

democratic”. How democratic does a political system have
to be in order to count as “adequately democratic”. One
may take the view that the present political system,
though it has its imperfections and does not always
function as it should, is democratic enough to merit that
label. One may consider that institutions of this kind,
thou.gh they do not guarantee that government decisions
always reflect majority opinion, are the most practical
and effective way of grounding the one in the other. If so,
one will be that much more inclined to see at least some
kinds of civil disobedience as attempts to frustrate the
democratic process. Alternatively one may take the view
that, since these institutions give most people little or no
say on matters which affect their lives in fundamental
ways, the decision-making process could and should be
quite substantially more democratic. One will then be
that much more inclined to support civil disobedience
which reflects majority opinion in opposition to
~overnment decisions.

This is not the place to discuss the relative desirability
and feasibility of the different versions of democracy. We
can, however, ask the more limited question: how
“adequately democratic” is the decision-making process
which has brought the new missiles to Europe? I suggest
that one does not have to be an advocate of extreme
plebisci te-democracy to take the view that the process has
been very undemocratic indeed. The decision was taken at
a meeting of NATO ministers in December 1979, without
any debate in parliament. Subsequent par liamentary
debates have simply been about whether to endorse or
reverse a decision which had already been taken. There
has been no willingness to encourage a national debate on
the issues, despite the extremely widespread strength of
feeling, in this country as in all the other countries
scheduled to take the missiles. On the contrary, those
who have questioned the decision and have sought to open
up the debate have been ridiculed and dismissed as either
naive or seditious. Such a mode of proceeding is entirely
alien to the spirit of democracy.

SUBSCRIBE
‘/

I

This, then, is the major gap in Dworkin’s “working
theory”. It fails to give an adequate account of civil
disobedience which is undertaken in the name of
democracy, which is aimed at exhibiting the deficiencies of
a purportedly democratic system and at challenging
government decision-making when it is insufficiently
democratic. If we look at anti-nuclear civil disobedience
in those terms, and if we can recognise also that it can in
fact be principle-based, we can make a much stronger case
for it than Dworkin allows.

I should add, in conclusion, that those who engage in
such actions would not, I think, normally put the point in
quite those terms. I have presented it as a cautious and
primarily negative conclusion of a rather abstract logical
argument. Most advocates of civil disobedience would not
arrive at their justification by such a route. They would
nevertheless appeal to the kinds of considerations I have
mentioned. They would, I think, present the justification
in something like the following terms: Civil disobedience
is the only way in which we can say what needs to be said.

It is the way of expressing our sense of alienation from the
political system. That means two things. It means that
the voice of dissent has been entirely excluded from the
decision-making process, a purportedly democratic system
has shown itself to be insufficiently democratic, and the
resort to unconstitutional means draws attention to this
failure of democracy. At the same time, by breaking the
law, we deliberately distance ourselves from a political
system which is prepared to defend itself with a
willingness to commit genocide.

Notes
[1] In Ronald Dworkin, ~ Matter ~ Principle (Harvard University Press,

Cambridge, Massachusetts and London, England, 1985). The paper was
originally presented to a conference of the German Social Democratic
Party in Bonn in 1983.

[2] “But once we abandon the project of this essay, once we make the
rightness of what we do turn entirely on the soundness of what we think,
we cannot expect honor or opportunity from those who think it is we who
are naive and stupid.” (Dworkin, p. 113).

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