Animal Rescue as Civil Disobedience

Animal Rescue as Civil Disobedience1 I. Animal Rescue I want to argue that animal rescue is civil disobedience. Or, more cautiously, that it can be civil disobedience when certain conditions are met. This is not necessarily a justification of the actions in question but it is a defense of the view that even if unjustifiable they still have a special standing. By ‘animal rescue’ I have in mind actions which involve the following: (i) Removal of one or more animals from a situation of harm which has been deliberately brought about by humans. (ii) Removal for the sake of the animal itself. (Although perhaps not only for the sake of the animal.) (iii) Illegality, or at least the appearance of illegality in the form of trespass, breaking and entering and theft. (The animals in question being regarded as someone else’s property.) The third clause focuses attention upon apparently illegal practices as opposed to the legal rescue operations of animal welfare bodies such as the RSPCA. The two dominant forms of animal rescue, in this more militant and challenging sense, are open rescue (with identity 1 Earlier versions of this paper were presented at the 2012 Minding Animals conference at the University of Utrecht and at the 2012 Manchester Centre for Political Theory (MANCEPT) workshop on Animals and Political Theory. Special thanks for improving comments go to Steve Cooke, Kim Stallwood and Siobhan O’Sullivan. 1 disclosure on the part of activists) and covert rescue (with identity concealment). Systematically-organized open rescue dates back to (at least) the later 1970s and has been practiced continuously since 1993 by a variety of Australian animal rights organizations, the best known of which is Animal Liberation Victoria (ALV).2 Open rescue is also practiced, with by varying degrees of success, by animal rights groups in Europe and in the US.3 Covert rescue, in its systematically-organized form, has been practiced since at least the 1970s and is typically associated with the Animal Liberation Front (ALF).4 Open-rescue is quasi-respectable, and has been associated (by activists) with Gandhi’s concept of satyagraha which, for simplicity, we may understand as the struggle for justice and truth. One branch of satyagraha is civil disobedience5. While open rescue has sometimes been comparatively well received, covert rescue has been vilified as a form of animal-rights 2 The homepage for ALV is http://www.alv.org.au [Accessed 15/12/2012]; for the organization’s formation see Patty Mark, ‘Opening Doors and Eyes to Animal Suffering. The Abolitionist Interview with Patty Mark,’ The Abolitionist, 15 (2003) and Mark Hawthorn Striking at the Roots: A Practical Guide to Animal Activism, (Winchester and Washington: O-Books, 2010), pp.185-193. For open rescue by Animal Liberation New South Wales see Siobhan O’Sullivan, Animals, Equality and Democracy, (Basingstoke: Palgrave Macmillan, 2011), pp.92-93. 3 For practitioners of open rescue in Europe and the US see Tony Milligan, Civil Disobedience: Protest, Justification and the Law (London and New York: Bloomsbury, 2013), chapter 11. 4 The homepage of the ALF is at http://animalliberationfront.com/ [accessed 15/12/2012]. There are two insider-studies of the ALF, Ingrid Newkirk’s fictionalized narrative account, Free the Animals: The Amazing True Story of the Animal Liberation Front, (New York: Lantern, 2000) and Keith Mann’s From Dusk ‘til Dawn: An insider’s view of the growth of the Animal Liberation Movement, (Location: Voice of the Voiceless Communications, 2009). 5 For civil disobedience as a branch of satyagraha see Mahatma Gandhi, Selected Political Writings, Denis Dalton (ed.) (Indianapolis: Hackett Publishing Company Inc., 1996), pp.5057. 2 ‘extremism.’ Attempts have been made, in the US, to associate it with domestic terrorism.6 However, this contrast between open and covert only holds up to a point. An open rescue on the ALV model will typically involve some covert information-gathering prior to the similarly covet removal of a relatively small number of easily portable animals (e.g. laying hens). Removal is also, ordinarily, carried out at night in order to avoid the risk of discovery and confrontation. The media and/or police will then be informed and no attempt will be made at concealment of the identity of key activists. However, safety masks are sometimes worn and this does give opportunities for some concealment by some participants. We may, as a result, suspect that the authorities are given the identities of only a sample of activists and not everyone. There are also some issues of concealment with regard to the network of sympathizers who help to relocate and provide homes for rescued animals. Even so, open rescue does involve a strong element of genuine openness. The act of rescue itself is conceived of as both a way of serving the interests of individual creatures and as a way of generating publicity for animal ‘rights’ and/or ‘liberation.’7 The goal of publicity is pivotal to making sense of the action. If the welfare of animals were the sole and driving consideration, 6 The Animal Enterprises Terrorism Act (2006) defines animal removal (i.e. rescue) as property damage and contains the provision that terrorism includes ‘Intentionally damaging or causing the loss of any real or personal property (including animals or records) used by an animal enterprise, or any real or personal property of a person or entity having a connection to, relationship with, or transactions with an animal enterprise.’ For an assessment of the problems of this approach, see John Hadley, ‘Animal Rights Extremism and the Terrorism Question,’ Journal of Social Philosophy, 40.3 (2009). 7 In line with the abolitionist/welfarist distinction associated with the work of Gary Francione, ALV sees itself as an abolitionist grouping committed to a final liberation of animals although they also seem to be motivated to act by particular and immediate welfare issues. On a strict Francione account, which requires rejecting any connection between incremental welfare improvement and abolition, they may not in fact qualify as abolitionist. For an exclusionary formulation of the relevant distinction, see Gary L. Francione, Animals as Persons: Essays on the Abolition of Animal Exploitation, (New York: Columbia University Press, 2008), pp.14-16. 3 the same time, effort and funds might be used more effectively by lending support to an entirely-legal animal sanctuary. In spite of its openness, a claim that action of this sort can be a form of civil disobedience might nonetheless be denied on the basis that civil disobedience always involves protest which, in the words of John Rawls, ‘declares that in one’s considered opinion the principles of social co-operation among free and equal men are not being respected.’8 The operative point here, at least on the most straightforward reading of Rawls, is that injustice towards other humans has to be the target of the protest. And while it is conceivable that an indirect-duties approach could be brought into play as a response (it might be claimed that the mistreatment of animals would constitute or be causally linked to a basic failure to respect other humans) such a move might give too much credit to the Rawlsian restriction. The restriction is objectionable for the more straightforward reason that it is too anthropocentric, too lacking in appropriate concern for the non-human.9 It would not only rule out all animal rights activism but all eco-activism as well, and that looks like an exclusion too far.10 A somewhat more technical objection is that the absence of a full disclosure of the identities of all the activists who engage in open rescue might count as a bar 8 John Rawls A Theory of Justice (Cambridge: Harvard University Press, 1971), p.364. 9 While Rawls was not attempting to strip non-humans of value, his construal of contractarianism does exclude non-humans as party to the contract and his construal of ‘civil disobedience’ is fixed by a concern for the terms of the contract, Rawls (1971), pp.20-22. However, it is not obvious that Rawls’ exclusion is entailed by his broader principles, Mark Rowlands suggests otherwise, ‘Contractarianism and Animal Rights,’ Journal of Applied Philosophy, 14.3 (1997). 10 It is frequently argued that a good deal of eco-activism is not civil disobedience. For example, Michael Martin, ‘Ecosabotage and Civil Disobedience,’ Environmental Ethics, 12 (1990) argues that covert eco-action does not qualify, but this is not because there cannot be civil disobedience over environmental issues, but because of a failure to meet the requirement of being public. 4 to any civil disobedience claim. But this is may seem excessively strict and might, in any case, only exclude some instances of open rescue while allowing others to qualify. According to the most prominent figure associated with the emergence of open rescue, Patty Mark of Animal Liberation Victoria, it was conceived of as a response to two phenomena.11 On the one hand, a path of illegality or of apparent illegality was taken because protracted and legally-sanctioned processes of institutional lobbying were failing to deliver satisfactory results. On the other hand, open rescue was conceived of as an alternative to the covert forms of rescue already practiced by the Animal Liberation Front. After almost 20 years of the latter, it was clear that covert rescue was not impacting significantly upon the use of animals in scientific research and in what we might call the industrial-food complex. While the ALF had allowed itself to become associated (somewhat misleadingly) with political violence, open rescuers such as Patty Mark sought to avoid the use of any threatening imagery or allusions to violence. In the light of this, I will take it that open rescue has a genuine connection to satyagraha and to the civil disobedience tradition. I will also suggest that it has a far greater political potential than covert rescue. The secrecy required for covert rescue does, after all, restrict involvement. Open rescue could, at least in theory, be practiced on a large scale, if there ever happened to be a sufficient critical mass of vegetarians, vegans and animal rights supporters. Open rescue may (at some future point in time) form part of a roadmap to political impact if not necessarily to animal liberation. The former may also be somewhat easier to achieve than the latter. However, at present, this conjectural advantage may seem to be something of a moot point. The critical mass is absent and looks like it will remain absent for some years to come. While vegetarianism (and its vegan extension) are steadily growing, the figures for 11 Patty Mark (2003). 5 vegetarianism are typically around 2.5-3% in the UK, Europe and North America and they sit towards the lower end of this range in Australia.12 For a sustained mass civil disobedience movement to emerge, in even a single county, that figure would need to be closer to 8-10%. (This is a ‘rough ballpark’ estimate drawn from a broad comparison with two other minority law-breaking movements of recent decades: the anti-abortion movement in the US and the pro-hunting lobby in the UK.)13 Partly because open rescue cannot, by dedication or by an effort of will, compensate for the absence of such a critical mass, and given that comparable (and relatively small) numbers of animals which are saved by both open and covert rescue, the option of covert rescue may remain attractive for years to come. (At least some of the most dedicated animal rights activists.) In spite of its longer-term advantages, open rescue has been unable to displace covert rescue and looks unlikely to do so at any time in the near future. Given this, and the continuing likelihood of the ongoing arrest and imprisonment of covert rescuers, the standing of covert rescue remains an important question. I shall suggest that, although it carries less political potential than open rescue, it too can involve a form of civil disobedience, although some instances of covert rescue will still fail to do so. Whether or not a particular instance of covert rescue is also an instance of civil disobedience is something that cannot be decides in advance, by blanket exclusion, but may best be judged on a case by case basis. 12 The least generous estimate puts vegetarianism at somewhere above 1.8million people in the UK. A more generous estimate puts the figure at 10 million in the US. This suggests that a figure of 2.5-3% may be about right. Tony Milligan, Beyond Animal Rights, (New York and London: Continuum, 2010), p.43. For the Australian figure, see http://www.vegetarianvictoria.org.au/going-vegetarian/statistics-onvegetarianism.html [accessed 28 September, 2012]. 13 Milligan (2013), p.122. 6 II. Covert Action and the ALF At this point it may be worthwhile to dwell for a moment upon the way in which covert rescue has been deliberately presented, not by those who are hostile to any and all forms of animal rights activism, but by the network of activists who actually make up the ALF or at least issue publicity under the ALF banner. Their favored mode of presentation may itself give rise to some skepticism about the idea that covert rescue can ever can count as civil disobedience. However, I will suggest that the ALF has been not only the victim of bad tactical judgment (a perennial and unavoidable problem for any group of political activists) it has also been the victim of bad timing. My justification for this claim will take the form of a brief narrative. The ALF emerged in the summer of 1976 at precisely the historical moment when growth of the revolutionary left (Trostkyists, Maoists, and so on) which had been significant around the time of the Vietnam War and the events of May 1968 in France, went clearly, rapidly and permanently into reverse in both Europe and North America. Between 1975 and1978 (give or take a few months) it became clear that the fragmentary groupings were not going to coalesce into mass organizations.14 Nonetheless, in the far broader leftwing political circles out of which the ALF grew, at first in Britain and then in the States, a continuing aspiration for radical political change beyond anything conceived of by social democratic organizations, was combined with a lack of any serious organizational muscle. What helped to bridge the gap between aspirations and the rather dismal political realities was a widespread idealization of a range of genuinely terrorist organizations such as the IRA, the PLO, the Popular Front for the Liberation of Palestine, the Red Brigades and the BaaderMeinhof Group. Left sympathies for paramilitaryorganizations was at its height. For an unusually candid insider’s view of the onset of crisis among the Trotskyist groupings in the mid-to-late 1970s see Chris Harman, ‘The Crisis of European Revolutionary Left,’ International Socialism, 2.4, (1979), pp.49-87. 14 7 This is a familiar chapter of political history, part of a story about where things went badly wrong. But what can be overlooked is that the ALF emerged in the middle of this situation. And while it has always, from the very outset, been formally opposed to violence, or at least to violence against persons, the ALF did model its public image upon the paramilitaries. Balaclavas and combat fatigues, more familiar from artwork in West Belfast, have figured prominently in ALF publicity photos. Rescued animals are held across the chest like assault rifles. This may have been a plausible political image for 1976 but it is far less so for our own times. But while the world has moved on, the ALF has remained stuck with an image which was seriously out of step with political realities by the 1980s and which has become utterly untenable in the aftermath of the attacks of 9/11. Although, paradoxically, one reason why it has been so difficult for the ALF to change its mode of presentation is that it is not actually a centralistic terrorist organization or, indeed a terrorist organization of any sort. It does not operate under a violently-enforced military discipline and nobody can give the order to change tack. The ALF is a smallish, and these days anarchist-influenced, network which avoids violence against persons and operates within a much larger, and overwhelmingly non-violent, network of animal rights activists. Internal disagreements among ALF personnel are not, and cannot be, settled by command or by ‘enforcement.’ Although there have been a number of executed political turns, including a flirtation with arson and deliberate property damage, disputes about image and overall direction tend to rumble on without end.15 Given this, it is readily understandable why Patty Mark and the early open rescuers should have thought of open rescue as both radically different from ALF action and as an alternative to the overall ineffectiveness of the latter. Perhaps the most prominent, and disastrous, example of a ‘turn’ was the alignment of the ALF with the Earth Liberation Front which sought, at the end of the 1990s to secure political change by economic attrition in the form of arson. Barbara Newkirk has, with some plausibility, called this sort of approach ‘political suicide,’ Newkirk, p.336. 15 8 Even so, in addition to the absence of a critical mass of support for an extensive open rescue movement, there are at least two significant reasons why some animal rights activists continue to find covert rescue an attractive option, and more specifically a more attractive option than open rescue. Firstly, the open rescue model is largely inapplicable in the case of laboratory animals whose special predicament has always formed a lure for animal rights activists.16 The animals rescued in an open manner by Animal Liberation Victoria (and by other open-rescue operations such as Animal Liberation New South Wales) are typically deemed by their owners to have a low monetary value. In UK supermarkets, with a retail mark-up, chickens are typically priced in the region of £2.50-£5.00.17 Subsequent identification of rescued animals is also difficult. To the undiscerning eye of those who encounter thousands of birds every day, one chicken may look much like another. The upshot is that, following a raid upon a large-scale installation, the recovery of animals such as laying hens is generally not an issue. Owners may want compensation or, more simply, revenge. Or they may want action of some unspecified sort. But they are not usually interested in the actual return of rescued animals. Return could, in any case, violate bio-security procedures. By contrast, when lab animals are rescued from research facilities, they can represent several months of work and in the case of primates they may be expensive to acquire and difficult to replace. Individual lab animals are also, typically, tattooed for identification and this facilitates subsequent recovery. Even where efforts are made to conceal tattooing, the presence of scarring and of unusual injuries which have been inflicted upon an animal can 16 Erik Marcus, Meat Market: Animal, Ethics and Money (Boston: Brio, 2005) has questioned the strategic priority of focusing upon experimentation, but it does require distinctive harms that can sometimes be absent from the food chain, Milligan (2010) pp.126-32. Accordingly, there is at least one good ethical reason for according it a high level of attention. 17 Insert actual price for chicken in Tesco’s. 9 facilitate identification. Recovery can be a real concern. Sympathetic vets have to be used by those who wish to prevent it from taking place. Because of this, covertness has a rationale. III. Can civil disobedience be covert? Given that there is a special rationale for covert rescue, particularly where lab animals are concerned, open and covert rescue may begin to look like complimentary activities. And, to some extent, this is not an entirely misleading assessment. But beyond both being instances of rescue, they still do not look like the same sorts of activities. While there is no obvious and good barrier to regarding open rescue as civil disobedience, it may still seem that covert rescue cannot qualify. Its sheer covertness may seem to be an insurmountable obstacle. And one reasons for this is that civil disobedience has typically been regarded (at least in the academic literature of the past couple of decades) as public and, even more strongly, necessarily public. Again, the Rawlsian account has set the tone for a good deal of writing on this theme. For Rawls, ‘civil disobedience is a public act. Not only is it addressed to public principles, it is done in public. It is engaged in openly with fair notice,’ similarly, it is ‘a public, conscientious yet political act contrary to law.’18 But exactly why this must be the case is not clear. I will take it that ‘because Rawls says so’ is not a valid reason. However, none of the more obvious reasons for insisting upon the restriction to public acts look simultaneously strong and sufficiently fine-grained to exclude covert rescue without also excluding non-controversial instances of civil disobedience (such as open rescue where there is a sufficient level of identity disclosure). Below, I will consider what I take to be the three 18 Rawls (1971), p. , p.364. 10 most common reasons for insisting that civil disobedience must nonetheless be public rather than covert. Reason-1: Civil disobedience cannot take the form of action which is intrinsically suspect and there is always something intrinsically suspect about covertness. This idea about covertness has quite a history, it goes back at least to Pericles and his account of why Athenian state operates out in the open. Understood as a requirement for civil disobedience, it can be found in Gandhi and in Hugo Bedau’s account of civil disobedience at the time of the Civil Rights Movement, in the early 1960s. For Gandhi, ‘Disobedience to be civil has to be open and non-violent.’19 For Bedau, ‘Any one commits an act of civil disobedience if and only if he acts illegally, publicly, non-violently, and conscientiously with the intent to frustrate (one of) the laws, policies, or decisions of his government.’20 While there is something attractive about this option it does, nonetheless, seem to rest upon an overgeneralization. Covertness, at least in the form of identity concealment, can be sinister but it need not be so. There is, for example, nothing particularly suspect about the actions of the street artist Banksy, yet he acts in a covert manner, with his identity concealed, partly as a rejection of celebrity culture (suggestions of a similarity to Andy Warhol are, in this respect, weak).21 A comparable point may be made about those who wore V-masks at Occupy Movement sites during the popular protests of 2011. (Masks with the face of a Guy Fawkes- 19 Mohandas Gandhi, An Autobiography: The Story of My Experiments with Truth, Mahadev Desai (trans.) (London: Penguin, 2007), p.319. 20 Hugo A. Bedau, ‘On Civil Disobedience,’ The Journal of Philosophy, 58 (1961), p.661. 21 Banksy Wall and Peace, (London: Century, 2005); Will Elsworth-Jones, Banksy: The Man Behind the Wall (London: Aurum Press, 2012), pp.97-8 on reasons for anonymity. 11 type character, referred to by one journalist as a ‘symbol of festive citizenship.’)22 Identity concealment was bound up with the carnavalesque component of the protest, with a critique of existing political institutions, and with a rejection of charismatic leadership which was symbolized by many of the protestors presenting themselves as part of the anonymous mass or ‘the 99%.’23 Similarly, there is a longstanding, but somewhat rare, practice of identity concealment that we might call ‘Jane Doe refusal.’ This involves a refusal to disclose identity following arrest in order to continue to disrupt the legal process, even at the expense of being incarcerated rather than bailed. Instances of Jane Doe refusal can be found in accounts of both the anti-abortion movement of the 1980s and the anti-capitalist movement of the early 2000s.24 Against the idea that covertness is intrinsically suspect there is a case for saying that whether or not acting in a covert manner is sinister, suspect, or both, depends at least in part upon the reason for the covertness and upon the lengths to which agents will go in order to preserve it. Will they engage in assault, in threats, or worse, in order to do so? But in the case of animal rescue, there need be nothing suspect about the reasons for covertness. A degree of covertness by both open and covert rescuers at the point of rescue may readily be explained by appeal to a desire to avoid any violent physical confrontation with security personal. The continuing refusal of more strictly covert ALF rescuers to disclose their identities after a Jonathan Jones, ‘Occupy’s V for Vendetta protest mask is a symbol of festive citizenship.’ The Guardian 04/11/2011, http://www.guardian.co.uk/commentisfree/2011/nov/04/occupymovement-guy-fawkes-mask [accessed on 20/12/2012]. 22 23 Sarah van Gelder and the staff of Yes! Magazine, This Changes Everything: Occupy Wall Street and the 99% Movement, (San Francisco: Berrett Koehler, 2011), vii, p.1. For Jane Doe refusal by anti-abortionists, see Bernard Nathanson, ‘Operation Rescue: Domestic Terrorism of Legitimate Civil Rights Protest?’ Hastings Centre Report, 19 (1989), pp.31-2; for Jane Doe refusal by anti-capitalists, see A.K.Thompson, Black Bloc, White Riot, Edinburgh, Oakland and Baltimore: AK Press (2010), pp.59-60. 24 12 rescue, may also be explained, at least in part, by a desire to minimize the (all too genuine) risk of animal recovery. Neither of these motives seems at all sinister and both are at least consistent with a refusal to protect anonymity by violence or by threats rather than guile. However, a reformulation of the objection might be run by drawing from the idea of an avoidance of face-to-face confrontation (violent or otherwise). Perhaps there is something ethically privileged in the facial encounter. (An idea which appears in a figurative form in the writings of Emannuel Levinas but which can be found in a more literal and literary form in Iris Murdoch and indeed Herman Melville.)25 But a good deal of what seems noncontroversially civil disobedience (including open rescue) does not involve any such face-toface confrontation. A civilly-disobedient crowd can be comparatively and still up to a point anonymous, especially so if they are not arrested. Added to which, police personnel can also have their faces concealed behind masks, ruling out any direct, two-way facial encounter. If such an encounter, or even something rather more one-sided, is required for civil disobedience then we are likely to exclude a great deal of open and peaceful activity. Reason-2: It may be suggested that civil disobedients are protestors who accept the consequences of their actions and this requires that they must act publicly and must disclose their identities.26 Indeed in the case of covert rescue it may be charged that identity 25 Emmanuel Levinas Ethics and Infinity: Conversations with Philippe Nemo. trans. Richard A. Cohen, (Pittsburgh, PA: Duquesne University Press, 1985), pp.95-98; Iris Murdoch tells the tale of an artist dishonestly painting the face of another, The Sandcastle (London: Chatto and Windus, 1957). The facial encounter with the whale and with the other human is a persistent theme in Melville’s Moby Dick (1851). Even Ahab acknowledges there is that in the poor mad cabin boy which is ‘too curing’ to his malady and might divert him from his quest. Towards the end he cannot bear to encounter the boy face to face. 26 Dave Foreman uses this as a way to distinguish between low-level eco-sabotage, i.e. ‘monkeywrenching’ and civil disobedience in the tradition of Gandhi, the Civil Rights Movement and the peace movement. According to Foreman, only civil disobedience requires that credit be taken for the action while monkeywrenching is simply more effective if 13 concealment is not motivated solely by reflection upon the interests of the rescued animals but by a refusal to stand up and be counted. However, this criticism may not fare well upon closer examination. Covert rescue depends upon a cadre of experienced activists who are well aware that sooner or later they are liable to be arrested. Keith Mann’s recent insider account of the ALF, From Dusk ‘til Dawn (2009) is, in part, a history of arrests and imprisonments partly written while Mann was in jail.27 Ingrid Newkirk’s somewhat earlier narrative account of the making of an ALF activist, Free the Animals (1992 revised in 2000), although a little dated, contains a description of an introductory skills camp where activists were warned about the strong likelihood of both arrest and imprisonment, ‘”We’re not building flash-inthe-pan heroes here,” M continued, “but a long-term army of committed people who accept that they may end up in the clink. Don’t think for one moment that you’re too smart to be caught.’”28 Given recognition of this sort, that arrest is more a matter of when than if, it is not at all obvious that overt and covert rescue do differ in term of the readiness of activists to accept arrest as the price of their dissent. It is, perhaps, more accurate to say that open rescue has an association with regarding arrest as itself a useful political act. At least sometimes, open rescue can involve an invitation to arrest, an offering of oneself as a sacrifice. But it is not obvious that civil disobedients must act in such a way. Rather than a basic pre-requisite for civil disobedience, this looks rather like some form of imitatio Christi. As such, it may better capture the outlook and practice of the leaders of civil disobedience movements (such as King and Gandhi) rather than the approach of ordinary participants. practiced covertly, Dave Foreman Confessions of an Eco-Warrior (New York: Crown Trade, 1991), pp.130-31. 27 Mann (2009), pp.16-19. 28 Newkirk (2000), p.50. 14 Reason-3: What this leaves us with is a third and different sort of objection to the idea that some instances of covert action can qualify as civil disobedience, the objection that civil disobedience is primarily a form of address, a form of communication which is, by its nature, a public act. Henceforth, this claim shall be referred to as the communication thesis.29 On such a view, civil disobedience is a way of saying something and, where the cause is just, it may be warranted when other, legally-sanctioned, opportunities for communicating in a timely manner, have been cut off.30 However, as a cautionary note about endorsing the communication thesis too readily, it may be pointed out that both its provenance and initial rationalization are debatable. With regard to provenance, the thesis goes back to John Rawls and, with qualification, to Carl Cohen but there is no explicit requirement for communication in the single most influential academic account of civil disobedience to have been set down prior to Cohen and Rawls, the account advanced by Hugo Bedau in the early 1960s and referred to above. Nor is it explicitly and consistently present in the writings of Thoreau, Tolstoy, Gandhi or King. What there is, by way of earlier precedent, is a commitment on the part of Thoreau to regard civil disobedience as conscientious action, a commitment on the part of Tolstoy to regard it as a conscientious act of love, and a (problematic) extension of this view by Gandhi and King which turns civil disobedience into a loving appeal to the conscience of the political opponent. I say ‘problematic’ because this does not obviously match up particularly well with the actual practice of either the Civil Rights Movement or the Indian independence 29 For the communication thesis see Milligan (2013), pp.18-21. 30 The temporal clause is included in order to allow for cases where a threatened harm will not be forestalled by the available opportunities for discourse. A similar point is made about direct action in the environmental case, by Matthew Humphrey, ‘Democratic legitimacy, public justification and environmental direct action’, Political Studies, 54.2 (2006). 15 movement. Even so, it is a view of civil disobedience which arguably presupposes communication of a sort, even if it does not explicitly appeal to the latter. However, it also requires us to regard civil disobedience as a special kind of spiritual practice. As such it is a rather awkward precedent for those who wish to present a strictly secular theory (and this is precisely what advocates of the communication thesis, from Rawls through to Jürgen Habermas have striven to do).31 But even if a stronger precedent for a restrictive, communicative, understanding of civil disobedience could be found, such a precedent alone might not be enough to warrant our continuing to regard civil disobedience in this way. (And to say this is perhaps to acknowledge that there never has been a single, stable and unchanging concept of civil disobedience but a concept which has been modified over time to accommodate a changing world.)32 With regard to its initial rationalization, matters do not improve. On the (more consistent) Rawlsian account the communicative standing of civil disobedience allows us to understand why it has to be non-violent. Violence cuts across communication and so, insofar as the action is genuinely communicative it will also be non-violent. However, this move involves a false generalization and is, in any case redundant. It is a false generalization because violence can be communicative, and communicative in more than the loose sense in which all actions may be said to communicate something. Violence often sends a message. Jürgen Habermas, ‘Civil disobedience: litmus test for the democratic constitutional state,’ Berkeley Journal of Sociology, 30 (1985). For both Rawls and Habermas, while agents might appeal to religious principles in order to justify civil disobedience, such claims must permit translation into the shared language of what the latter refers to as ‘the public sphere.’ For the significance of the latter in this context see William Smith ‘Civil Disobedience and the Public Sphere,’ The Journal of Political Philosophy, 19.2 (2011). 31 32 The line between conceptual change and the development of a concept may be hard to draw. But all that I am seeking to presuppose by speaking of the latter rather than the former is an element of strong continuity between successive construals of ‘civil disobedience.’ 16 And it is redundant because the centrality of non-violence to our understanding of civil disobedience simply does not need to be underpinned by appeal to something which is far more open to dispute.33 IV. Challenging the Communication Thesis In the light of this third reason for requiring that civil disobedience must be public, those who wish to defend the possibility that covert rescue can nonetheless be civil disobedience have two options: an argument can be made that some instances of covert rescue may be sufficiently communicative to qualify and secondly the communication thesis may itself be directly challenged. Both options have something going for them. It can, for example, be argued that covert rescue genuinely is communicative albeit up to a point. In the case of the rescue of lab animals, it does send a message to practitioners of experimentation that their actions are deemed indefensible, and when it is accompanied by subsequent publicity, it sends a message to the experimentation establishment as a whole that the most publicitysensitive practices may be exposed to public view. Given this, what may be required for a comprehensive exclusion of civil disobedience claims is some stronger version of the communication thesis such that civil disobedience is not just action with a communicative dimension but is essentially or primarily communicative action. And one way to make this 33 This is not, however, to endorse an absolute exclusion of everything that might be construed as violence. Gandhi, in his commentary upon the Gita claims that breathing and thinking involve violence. When his political writings uphold non-violence it is not absolute non-violence that he has in mind. The Bhagavad Gita According to Gandhi, (New Dehli: Orient Publishing, 2011), p.266, p.309. Carl Cohen was, again, more cautious than Rawls about this matter and suggested that it was ‘arbitrary’ to entirely rule out violence of every sort in every context, Carl Cohen, Civil Disobedience: Conscience, Tactics, and the Law (New York: Columbia University Press, 1971), pp.22-36. 17 shift would be to say that the primary intention of the agents involved has to be the communication of a message. This would, admittedly, count against a good deal of covert rescue. While rescues are sometimes filmed, it would be odd for a rescue, in full flow, to be called off because a camera had ceased to function. No doubt it is hard to disentangle the multiple intentions of agents, there is ambiguity and indeterminacy in what any of us may be trying to accomplish at any given point in time. Even so, there does seem to be at least some sense in which the immediate and primary aim of covert rescue tends to be the rescue of the animals themselves. However, even in the face of such a strongly formulated version of the communication thesis it may still be pointed out that at least some rescues, and particular some of the earliest ALF actions, may well have been carried out with something close to a primarily communicative intent, as a signal that the ALF were alive and well and growing. In spite of covertness, such rescues would still seem to qualify as communicative acts and hence would still be candidates for civil disobedience. To absolutely guarantee their exclusion, recourse might have to be made to a simpliciter insistence upon public-ness without any special underpinning by appeal to communication; or else there might be a return to the anthropocentric exclusion of all actions other than those which concern basic issues of inter-human justice; or, alternatively, an even more stringent and perhaps less attractive version of the communication thesis may be required. None of these look like particularly strong options. If the communication thesis is construed in a sufficiently open manner it may be unobjectionable but will not exclude covert rescue. If it is construed strictly, the second option, of challenging the thesis, will then be a plausible response. As part of a softening-up exercise prior to its rejection, it may be pointed out that, like the anthropocentric restriction of civil disobedience to actions which defend of human liberties, it may exclude too much. 18 Public actions which do not involve any form of identity concealment, but which are ways of frustrating, obstructing or preventing will be ruled out, unless they too are regarded as, simultaneously, ways of communicating or (on a strong account, primarily forms of communication). Eco-actions such as the blockading of roads, the occupation of endangered woodland sites, and instances of ‘locking-on’ by activists who chain themselves in situ in order to cause non-violent inconvenience, will all fail to quality. We may, of course, attempt to play-up their communicative dimension, but this could distort our understanding of activist intent. Nonetheless, these do look suspiciously like precisely the sorts of action that we might ordinarily regard as civil disobedience. What is, perhaps, curious here is that while many other features of the Rawlsian account have steadily been chipped away over time, the communication thesis has continued to be accepted with relatively few dissenting voices. The most notable of the latter has come from Jennifer Welchman.34 In 2001, in the light of the rise of the ecology and animal rights movements, and against the backdrop of the first big anti-capitalist protests over debt and world trade, Welchman mounted a brief but well-cited attack which was based around three claims: (a) the communication thesis was little more than an ad hoc response to vocal opponents of civil disobedience, a way of placating hostile critics rather than generalizing upon the experience of protesters; (b) it excludes, for no sufficiently good reason, at least one previously accepted paradigm instance of civil disobedience: the Underground Railroad in the ante-bellum South; and (c) it requires an arbitrary prioritization of indirect protest (which is essentially communicative) over instances of direct action. Welchman embedded these points in a persuasive narrative that runs as follows: Rawls and Cohen were defending civil Jennifer Welchman, ‘Is Ecosabotage Civil Disobedience?’ Philosophy and Geography 4.1 (2001). 34 19 disobedience against those who held that even conscientious law-breaking is not permissible in a democratic society. They wanted to explain how conscientious lawbreaking could contribute positively to the practice of politics. This was a difficult task in the case of protest over the Vietnam War which, unlike a good deal of action by the Civil Rights Movement, did not involve breaking the actual laws or obstructing the actual policies which were disapproved of. Rather, it involved ‘indirect’ action, deliberate attempts to disrupt the day to day activities of third parties such as motorists, shoppers and academics, people who were not in charge of US military policy. Opponents argued that actions of this sort were misdirected, pointless or infantile. And in the face of such hostile criticism, the Rawls/Cohen account made sense of such actions by pointing out that they were a special form of address, a way of forcing the authorities who were in charge of government policy, to listen under conditions where more direct forms of address had failed. Such actions could be not only mature, fully grown-up, instances of dissent. They could also be, in some cases, justified. As a rider to this narrative, Welchman conceded a level of consistency to Rawls which was absent from Cohen. While Rawls was comparatively open about the normative and revisionary nature of his account (as an account of what we ought to think of as civil disobedience) Cohen was more cautious. He recognized, from the outset, and was uncomfortable with the fact that the communication thesis did create problems for the longstanding classification of slave rescue by Underground Railroad activists as civil disobedience. (Biographies of Harriet Tubman still use this classification, routinely, as a way of drawing a connection between her activities and the Civil Rights Movement.)35 Unwilling to entirely abandon this paradigm case, Cohen retained it as a marginal instance, thereby 35 C.Clinton, Harriet Tubman: The Road to Freedom, (New York and Boston: Black Bay Books, 2005), p.56. 20 ruling out the stricter account of the communication thesis towards which Rawls inclined. If this move were to be endorsed, it would be all but impossible to exclude some instances of covert animal rescue unless the (normally rejected) anthropocentric restriction happened to be reinstated.36 If the Underground Railroad was a marginal case of civil disobedience so too are some instances of covert animal rescue. More generally, while the Rawls/Cohen appeal to communication was, as Welchman accepted, a good way to make sense of indirect civil disobedience, it was and is far from obvious that our understanding of civil disobedience as a whole ought to be modeled upon the latter. (Again, the point is Welchman’s.) Why not, for example, embrace a disjunctive account such that civil disobedience can be either a certain kind of communication or a certain kind of direct action? Such an account might at least have the merit of a good fit with all the paradigm historical instances which are partly constitutive of our understanding of civil disobedience. While CND and the Vietnam protests involved indirect action, the Civil Rights Movement primarily involved, what King openly referred to as direct action (not lovingly addressed to the conscience of the opponent but aimed instead at embarrassing the Federal government into enforcing its laws). Finally, the Indian independence movement involved both indirect protest (e.g. non-cooperation with the state educational system) as well as direct action (e.g. the violation of the restriction upon private individuals producing and selling salt). A disjunctive approach looks promising. 36 The relevance of this example to the covert rescue of animals, need not be made contingent upon the quite different claim, associated with the ‘liberationist’ tradition of animal rights, that the standing of animals today is strongly analogous to that of slaves. For the latter, compare Francione (2008), pp.46-53, with Yi-Fu Tuan Dominance and Affection, (New Haven: Yale University Press, 1984) which stresses the more ambivalent position of animals as property. 21 Its attractiveness may lead us to wonder why the communication thesis, modeled as it was upon indirect dissent, ever become quite so embedded. But here we may reflect not only upon Welchman’s narrative (which I take to be, up to a point, plausible) but also upon the deliberative turn in political theory which was already gaining momentum in the 1970s. If democracy was not just about procedures, but about effective, informed, communication, then why not regard civil disobedience in much the same light? But if it fits so well with such a respectable trend in political theory we may wonder whether the price of sticking with the communication thesis in spite of its problematic features, is particularly high? I will suggest that it is, that the retention of the thesis risks turning civil disobedience into an endangered concept. More specifically, it leaves civil disobedience vulnerable to what I will call the ‘argument from below’ the argument that civil disobedience is overly deferential to authority and aims to persuade political elites who stand in need of coercion rather than persuasion and therefore activists ought to be in the direct action business rather than the civil disobedience business. Variant formulations of this argument have gained widespread currency among a variety of political activists, such as environmental activists (Dave Forman advanced it during his Earth First! days) animal rights activists (Paul Watson of the Sea Shepherds has appealed to version of it) and the activists involved in the recent Occupy Movement (which was extremely cautious about adopting the ‘civil disobedience’ label).37 37 For reticence about advancing a claim of civil disobedience in relation to the Occupy Movement, see Bernard Harcourt, ‘Occupy Wall Street’s “Political Disobedience,” New York Times online, 13 November 2011, “Occupy Wall Street’s ‘Political Disobedience,’ ” online at http://opinionator.blogs.nytimes.com/2011/10/13/occupy-wall-streets-politicaldisobedience/ [accessed 20 December 2012]. For Paul Watson advancing what I have called the argument from below see http://www.seashepherd.de/news-and-media/editorial–060313–1.html [accessed 28 September, 2012]; and for Dave Foreman advancing this position, see Foreman (1991), pp.130-31. 22 The presupposition of such an argument from below may well be an example of the more general phenomenon highlighted by Iris Marion Young just over a decade ago, the emergence of a gulf between those who are attempting to construct a radical political theory based around a deliberative account of democracy, and a generation of political activists who defend popular deliberation but have been strongly influenced by anti-capitalist skepticism about the value of conversing with political elites.38 A recent instance of skepticism of this sort can be seen in the Occupy Movement’s reluctance to adopt leaders who might be worked upon and compromised by fruitless negotiations.39 In the face of this, I want to assert that we continue to need a concept of protest that has special standing; and that the concept of civil disobedience, because of its normativity, is best placed to play this role. We can, in turn, make sense of its normativity by pointing out that it is plausible to say that civil disobedience ought to have special legal standing (indeed some judicial figures believe that it already does, albeit at the level of background principles rather than explicit legal codification) or that it has special moral standing (and hence is due a certain kind of tolerant response) but the same is not true with regard to instances of direct action. (The latter is, in a sense, content neutral.)40 Moreover, this idea of special standing can be captured without appeal to an account which is based around the idea of communication. We can, instead, cut to the chase and construct an account which makes sense of what it is that is ‘civil’ about civil disobedience. This approach can claim a strong precedent in Iris Marion Young, ‘Activist challenges to deliberative democracy,’ Political Theory, 29.5 (2001). 38 39 Nathan Schneider, ‘No Leaders, No Violence,’ in van Gelder (ed.) (2011). 40 For an example of judicial recognition of the special standing of civil disobedience see P.Thornton, R.Brander, R.Thomas, D.Rhodes, M.Schwarz and E.Rees, The Law of Public Order and Protest, Oxford: Oxford University Press, (2010), pp.333–4. 23 Gandhi’s writings and it need not exclude all instances of covert animal rescue or covert ecoprotest. On the strongest version of Gandhi’s account of civil disobedience, agents who engage in the latter are required to act out of a virtue of civility.41 Here, I will suggest (as Gandhi does seem to have recognized on other occasions) that this requirement was and remains too strong if the relevant kind of action is to be available to ordinary flawed agents, to people like us, who have no special claim upon saintliness or exemplary virtue.42 If we hold otherwise we will face the difficult task of defending the account of civility against a charge of elitism. (The perennial problem for civility theory.) Rather than introduce a requirement that civilly-disobedient action must be express some underlying state of virtue, we can adopt the less-demanding requirement that it must be in conformity with various minimal civil norms. What we will then have is an account of civil disobedience which is underpinned by minimalist account of civility. But it is one thing to suggest that such an account can be set up as a rival to communication-based account, and quite another to actually set it out and to do so in a plausible manner. The latter task is somewhat too large a project for a single article. However the outlines of such a civility-focused account can readily be given. Political action in line with the following norms will go some way towards capturing the idea of protest with a special standing that has always been at the heart of claims of civil disobedience. 41 For the importance of the civility of civil disobedience see Gandhi (2007), p.319; pp.31819; and Gandhi (1996), pp.47-9, pp.70-71. 42 For Gandhi’s position see Milligan (2013) pp.89-92. 24 (i) Respect for others or, if we have no fondness for the language of respect, the recognition that other humans are fellow humans i.e. members of the same moral community. (ii) The rejection of hate-speech. (Where communication is involved it too must be civil.) (iii)The avoidance of acts which are driven by hatred. (A more minimal commitment than the King/Gandhi/Tolstoy requirement that we love our enemies.) (iv) The largely successful commitment to try to avoid violence and threats of violence. (v) The avoidance of cruelty, which has a special place in liberal discourse and a special connection to the idea of humanity. Acts will lose their special standing it they are cruel. (vi) The recognition of a duty of care or an avoidance of the reckless endangerment of others. (Although recklessness and its avoidance may turn out to be a matter of degree.) There will, no doubt, be certain actions that superficially look like civil disobedience but fail to comply with the above minimal norms. Neo-nazis blockading a synagogue as a celebration of the Holocaust, while singing ‘We Shall Overcome,’ would not be engaging in civil disobedience for a plausible and non-arbitrary reason. While they might be non-violent and polite, theirs would be a false civility because their action would be inconsistent with (i) above. They would not be complying with a basic level of acceptance of all others (Jews included) as members of the same moral community. However, some instances of reactionary protest (however defined) might well quality as civil disobedience. (An example I explore elsewhere is lawbreaking protest in support of hunting, which might qualify just so long as the protest does not itself take the form of hunting.) Gandhi would not have liked this inclusion of reactionary instances of civil disobedience, given that he saw civil disobedience 25 as a branch of satyagraha, condisdered as the force of truth, but it is difficult to see how an account can be civility-based account can be norm-based rather than virtue-based while avoiding this concession. Virtue requires insight that a basic level of civility does not. Moreover, from an activist standpoint, this inclusiveness has an obvious advantage: if various ‘reactionary’ instances of dissent are allowed to quality then it may be harder to deny the standing of instances of dissent such as animal rescue (of whatever sort). A different sort of worry is that the proposed account will be too inclusive, that it may not be sufficiently constraining. Again this concern it may be pointed out that it will allow for the most plausible exclusions to be made. For example, while some non-violent but primarily disruptive eco-actions might qualify, others would not do so. Covertly putting spikes into trees as a way to disrupt felling might not itself be violent but it would involve reckless endangerment and so would conflict with (vi) above. However, this failure to qualify has nothing to do with the covertness of such ‘tree spiking.’ Other eco-actions such as shifting boundary markers on sites scheduled for destruction, might well qualify while remaining just as covert. Similarly, there are instances of covert animal rescue which will fail to qualify for some or other reason. The scrawling of threats of violence upon lab walls by animal rescuers, whether justified would fail to do so and might undermine any claim of civil disobedience for the associated rescue. The latter need not be communicative, but where communication is involved it cannot take the form of threats while at the same time retaining a plausible claim to be civil. There may also be other kinds of animal rescue which would, hypothetically, fail to qualify. For example, the rescuing of animals from any laboratory engaged in work with an exceptionally dangerous virus could well involve reckless endangerment (although such a situation has yet to arise). But while plausible exclusions may be made, and imitations of civil disobedience may be ruled out, nothing in the above cluster of basic civil norms will 26 automatically exclude all instances of covert animal rescue. And so, while covert rescue may lack the political potential of open rescue it may also, in some instances, count as civil disobedience. Or rather, it may do so just as long as a shift is made from a communicationbased account to a civility-focused account of the above sort. 27