A Constitutional Niche for Civil Disobedience? Reflections on Arendt


A Constitutional Niche for Civil Disobedience?
Reflections on Arendt


IN HIS INSIGHTFUL critique of Hannah Arendt’s political philosophy, George Kateb expresses surprise at her inclination to affirm, even celebrate, the phenomenon of civil disobedience.1 Arendt’s inclination to commend this form of political protest can be explained only in part by her enthusiasm for its then most prominent practitioners, the civil rights and student movements. As Kateb reminds us, ‘not all student activism was civilly disobedient; thus to take satisfaction in activism need not have extended to celebrating civil disobedience’.2 Although her admiration for these movements doubtless influenced her judgement, Arendt appears to have discerned merit in the specific modus operandi of the civilly disobedient citizen. Hence her startling claim that ‘it would be an event of great significance to find a constitutional niche for civil disobedience—of no less significance, perhaps, than the event of the founding of the constitutio libertatis, nearly two hundred years ago’.3

The fact that Arendt’s enthusiasm for civil disobedience extends to a recommendation that it be accorded a ‘constitutional niche’ is indeed surprising. To be sure, several writers—notably John Rawls and Jürgen Habermas—have argued that civil disobedience is compatible with constitutional government. On the issue of how the State should respond to civilly disobedient minorities, however, these authors are content to advocate tolerant attitudes and a reduction or suspension of legal sanctions.4 Arendt, by contrast, argues that civilly disobedient citizens should be given access to the very heart of law-making. In the context of the United States, she recommends that representatives of civilly disobedient minorities be invited to ‘influence and assist Congress by means of persuasion, qualified opinion, and the numbers of their constituents’ (CD 101). This proposal effectively to institutionalise civil disobedience—to take it off the streets and into government—is unprecedented within political theory. For this reason, it arguably deserves more attention than it has hitherto received in either the contemporary literature on civil disobedience or the extensive critical literature on Arendt’s political philosophy.5

The aim of this essay is to explore and ultimately to defend Arendt’s admittedly strange claim that the constitutional State should institutionalise civil disobedience. In the first section, I argue that the proposal to institutionalise civil disobedience follows from Arendt’s peculiar interpretation of this mode of protest. She sees it as an unexpected yet welcome echo of the ‘revolutionary spirit’ that accompanied the foundation of the American republic. By embedding civil disobedience within the institutional fabric of the republic, Arendt hopes to remedy the historical tragedy of a revolution that, notwithstanding its other triumphs, failed to nourish and sustain the spirit that drove it. In the second section, I move from a reconstruction of Arendt’s argument to a critical appraisal of the proposal itself. The principal value of the proposal, I suggest, is that it improves upon more familiar liberal and democratic arguments about how the constitutional State should respond to civilly disobedient citizens. At the same time, I argue that the proposal can be presented as compatible with liberal and democratic theories, provided that the grounds for it are detached from the more controversial aspects of Arendt’s conception of political action. In the third section, I draw the discussion to a close by addressing several objections that might be raised against the claim that civil disobedience should be accorded a constitutional niche.


Given her diagnosis of civil disobedience as a resolutely political phenomenon, it is unsurprising that Arendt enjoins her readers to pursue a ‘political approach to the problem’ (CD 99). The fact that her preferred approach involves institutionalising civil disobedience, however, is more surprising. This section reconstructs the reasons behind her proposal by, first, showing how she understands civil disobedience as a political mode of action, secondly, examining how she associates civil disobedience with a particular interpretation of the spirit of American law and thirdly, placing her proposal within her broader reconstruction of the revolutionary tradition.

A. Civil Disobedience, Conscience and Law

A theme that runs throughout Arendt’s essay on civil disobedience is that lawyers typically fail to grasp its true meaning: ‘whenever the jurists attempt to justify the civil disobedient on moral and legal grounds, they construe his case in the image of either the conscientious objector or the man who tests the constitutionality of statute’ (CD 55). She rejects these characterisations of civil disobedience as ‘moral’ (conscientious objection) or ‘legal’ (constitutional testing) in favour of a more political portrayal.

Conscientious objection is, for Arendt, an ‘unpolitical’ act, a potentially commendable but ultimately subjective and, in a sense, self-interested protest (CD 62).6 This assessment stems from her analysis of conscience as an internal voice—a party to a ‘soundless dialogue between me and myself ’—whose counsels we must heed in order to achieve inner harmony (CD 63). She claims that our counsels of conscience ‘are always expressed in purely subjective statements’, which resist inclusion in the give and take of opinions in the public realm (CD 62). Our conscientious convictions ‘cannot be generalized’ because ‘what I cannot live with may not bother another man’s conscience’ (CD 64). Conscience is more interested in the self than the world; it calls on us to disassociate ourselves from injustice, rather than to turn all our attention towards the removal of injustice from the world (CD 60–61).

Civil disobedience differs from conscientious objection because it is orientated towards the public realm. Its political character is illustrated by its mode of organisation. Civilly disobedient citizens are ‘organized minorities, bound together by common opinion, rather than by common interest, and the decision to take a stand against the government’s policies’ (CD 56). As a member of a group, the dissenting citizen no longer relies on conscience but on a ‘common opinion’ forged through deliberation with her comrades: ‘their concerted action springs from an agreement with each other, and it is this agreement that lends credence and conviction to their opinion’ (CD 56). Such common opinions can be supported through beliefs that may, in principle, be debated, shared or criticised by others. Civil disobedience is also political in terms of its agenda. It is, in Arendt’s account, a worldly mode of protest, driven by a heightened feeling or care for the world.7 Its practitioners have an active interest in what goes on within the world and, crucially, a willingness to safeguard its durability and integrity. Civilly disobedient minorities aim to defend and develop the stable worldly structures that house political life. This ethos of worldliness resonates with Arendt’s more general conception of political activity. As her many interpreters have pointed out, political activity is, for her, essentially ‘self-contained’, orientated towards the ‘creation and preservation of the public sphere’.8 In the civil disobedience carried out by civil rights and student activists, Arendt discerned an underlying commitment to ‘protect’ and ‘perfect’ the American republic.9 Its associative nature, coupled with its ethos of worldliness, renders civil disobedience a political activity far removed from the individual acts of non-compliance carried out by conscientious objectors.

Constitutional testing, by contrast, is less self-interested than conscientious objection, but is still categorised by Arendt as unpolitical. The constitutional tester appeals to the legal system to rule on the validity of a particular law or policy. The legal system, according to Arendt, is part of the ‘framework of stability’ that allows mankind to survive ‘the flux of change’ (CD 79). The ‘stabilizing’ function of law means that it takes on a restraining and conservative character, particularly in times of turmoil and change. Although law can ‘influence’ ways of living, it cannot itself ‘effect’ or initiate change: ‘the law can indeed stabilize and legalize change once it has occurred, but the change itself is always the result of extralegal action’ (CD 80). Such ‘extralegal action’ takes place not in the judicial sphere, the site of constitutional testing, but in the political realm.

Civil disobedience can share a superficial similarity with constitutional testing, insofar as both may be employed as part of an orchestrated campaign against allegedly unconstitutional statutes (CD 74). Civil disobedience differs from constitutional testing, though, because it typically involves the violation of valid laws, such as ‘traffic regulations’, symbolically to contest other acts of government (CD 56). They also differ in their respective functions; while civil disobedience may be employed to uphold established constitutional norms, it can also adopt a more proactive complexion by initiating ‘necessary and desirable change’ (CD 75). This instigation of change, in the sense of promoting innovations in law and policy and, more importantly for Arendt, changing the nature and complexion of public opinion, reveals the political character of civil disobedience against the essentially juridical nature of constitutional testing. The intended audience of an act of civil disobedience is not primarily, or at least not solely, the legal system, but the political community as a whole. Through initiating changes in public opinion, civil disobedience creates the climate within which legal institutions decide whether to hear cases against the constitutionality of statute (CD 80). The initiatory function of civil disobedience perhaps explains why Arendt is unwilling to follow the convention of assuming a hard-and-fast distinction between it and revolution: ‘the civil disobedient shares with the revolutionary the wish “to change the world”, and the changes he wishes to accomplish can be drastic indeed’ (CD 77). Civilly disobedient citizens, with their capacity to instigate change, enjoy an affinity with the revolutionary spirit that undermines any attempt at neat conceptual separations.10

B. Civil Disobedience, Consent and the Republic

Although she does not wish to sever the tie between civil disobedience and the revolutionary spirit, Arendt clearly believes that the former can be compatible with established institutions of government. She pursues this insight in the context of the United States through arguing that civil disobedience, despite its illegality, is compatible with the ‘spirit’ of the laws (CD 83). And on the basis of this compatibility, she argues that the republic should find ‘a recognized niche for civil disobedience in [its] institutions of government’ (CD 99).

According to Arendt, ‘consent, not in the very old sense of mere acquiescence, with its distinction between rule over willing subjects and rule over unwilling ones, but in the sense of active support and continuing participation in all matters of public interest, is the spirit of American law’ (CD 85). Consent is identified as the outcome of a social contract; the contract is not ‘vertical’, as one between rulers and ruled, but ‘horizontal’, as one between ‘all individual members’ of society (CD 86). The ‘moral content’ of this contract is the ‘promise’ of all parties to abide by its terms; in so doing, each party gives a ‘reliable assurance as to his future conduct’ (CD 92).11 Arendt concedes that the idea of consent may be dismissed as a ‘fiction’ both ‘legally and historically’, but not, she insists, ‘existentially and theoretically’ (CD 87). The familiar thought here is that ‘tacit consent’ is a presupposition of our survival in the world: ‘a kind of consent is implied in every newborn’s factual situation; namely, a kind of conformity to the rules under which the great game of the world is played in the particular group to which he belongs by birth’ (CD 88). This consent can be voluntary only if dissent is a ‘legal and de facto possibility’. As she puts it, ‘dissent implies consent, and is the hallmark of free government; one who knows that he may dissent knows also that he somehow consents when he does not dissent’ (CD 88).

Civil disobedience is compatible with this interpretation of consent as ‘active participation’. Although a general agreement to abide by the law is an outcome of the social contract, any ‘promise’ to do so is not immutable. According to Arendt, ‘we are bound to keep our promises provided that no unexpected circumstances arise and provided that the mutuality inherent in all promises is not broken’ (CD 93). This formulation suggests that any promise or obligation to obey may, at least in certain circumstances, cease to be binding. In fact, there appear to be two such circumstances. First, civil disobedience may be a legitimate response to illegal or unconstitutional acts of government; this ‘failure of the established authorities to keep to the original conditions’ violates the ‘inherent mutuality of promises’ and so releases citizens from their obligation to obey the law (CD 93). Secondly, civil disobedience may be a legitimate response to the gradual erosion of meaningful opportunities for citizens actively to participate in public affairs. Arendt tells us that civil disobedience occurs ‘when a significant number of citizens have become convinced … that the normal channels of change no longer function and grievances will not be heard or acted upon’ (CD 74). It is a response to a ‘crisis’ in a representative government that has ‘lost, in the course of time, all institutions that permitted the citizens’ actual participation’ (CD 89). In such circumstances, civil disobedients appeal to the principles of ‘consent and the right to dissent’ that were the original inspiration behind the ‘art of associating together’ in America (CD 94).

Given this continuity between civil disobedience and the spirit of its laws, Arendt insists that the republic should make every effort to accommodate it. She quickly rejects the idea that civil disobedience could be legalised, arguing that the conceptual and practical difficulties involved in attempting to offer legal justifications for illegal acts are ‘prohibitive’. Instead she articulates ‘a political approach’, by comparing the situation of civilly disobedient minorities with that of ‘special interest’ and ‘pressure’ groups. These groups are similar to civilly disobedient citizens in that they are organised minorities; they differ, though, in that special interest and pressure groups enjoy a more entrenched and vocal place in public life. Through their representatives, ‘registered lobbyists’, these groups ‘are permitted to influence and “assist” Congress by means of persuasion, qualified opinion, and the numbers of their constituents’ (CD 101). Arendt’s proposal is that civilly disobedient minorities should be treated in the same way:

These minorities of opinion would thus be able to establish themselves as a power that is not only ‘seen from afar’ during demonstrations and other dramatizations of their viewpoint, but is always present and to be reckoned with in the daily business of government. (CD 101)

The proposal depends entirely on her understanding of civil disobedience as a group activity. Her assumption is that citizens who engage in public protest will be affiliated to a larger group or organisation. The idea is that representatives of these groups be given access to decision makers and hence gain a foothold in the institutions of government.12 Arendt also calls for a new constitutional amendment to take account of the fact that, in her view, the First Amendment ‘neither in language nor in spirit covers the right of association as it is actually practiced in this country’ (CD 101).

C. Reclaiming the Revolutionary Spirit

The conclusion of Arendt’s analysis—that the republic should find a ‘recognised niche’ for civil disobedience in its institutions—is bold and provocative. At first glance it is difficult to see why she would recommend institutionalising an activity that appears to flourish outside of existing mechanisms of government. In order to understand the thinking behind Arendt’s proposal, I suggest, it is necessary to situate her analysis of civil disobedience within her broader analysis of the revolutionary tradition and the decline of the American republic.

In On Revolution, Arendt sets out to reconstruct what she identifies as the ‘lost treasure’ of the revolutionary tradition.13 This lost treasure is identified by Arendt as ‘the revolutionary spirit … the principles which, on both sides of the Atlantic, originally inspired the men of revolutions … public freedom, public happiness, public spirit’.14 Public freedom is identified with our ‘participation in public affairs’ and our ‘faculty to begin something new’.15 The essence of freedom involves a two-fold dynamic of entering the public world and, in so doing, adding something new to it. As James Miller puts it, freedom is ‘the ability of a human being, through action, to reach out and attain, in deed, gesture, and word, realms, feelings, and thoughts heretofore unimagined’.16 In Arendt’s reconstruction, the aim of revolution is to create a permanent space within which public freedom can be enjoyed.17 Public happiness is the peculiar sensation that accompanies active participation in public life; it reveals itself in ‘the joys of discourse, of legislation, of transacting business, of persuading and being persuaded’.18 The joy to be derived from public participation stems in part from the experience of acting in public; as has been noted by Dana Villa, Arendt often alludes to the ‘theatricality’ of public life and the virtues of ‘playacting’.19 Public spirit describes a heightened care or feeling for the public realm. It is displayed by those who ‘have demonstrated that they care for more than their private happiness and are concerned about the state of the world’.20 These citizens combine an appreciation for the delights of public happiness with an acute sense of responsibility for the maintenance of the polity.

Arendt’s unwillingness to sever the tie between the revolutionary spirit and civil disobedience has been alluded to above. There are, in fact, striking affinities between her reconstruction of the revolutionary spirit and her interpretation of civil disobedience. Each of the three principles associated with the revolutionary spirit manifests itself in her analysis of the latter. Civil disobedience is described by Arendt as a means by which citizens assert their public freedom—their right to participate in public affairs—in the face of failings in established political institutions. Civil disobedience affords citizens the opportunity to add something new to the world. As we have seen, civil disobedience can preserve or