Civil disobedience The Limits of Protest

Protest at all costs? Climate change mitigation organisations such as “Last Generation”, “Extinction Rebellion” and “Ende Gelände” use campaigns with high media exposure to cause provocation across Europe – some of which fall outside the confines of the law. Is this type of activism still a legitimate element of a democratic system?
 

Many action alliances are of the opinion that politicians are still not taking the threat of climate collapse seriously enough, and they are bringing their discontent onto the streets to demonstrate against fossil energy sources. But demonstrations and rallies are no longer enough for them: they are gluing themselves to motorways, and blocking excavators or pipelines.

These – mostly young – activists encounter a lot of resistance, because their actions of civil disobedience have a polarising effect. The environmental conservation movement divides society once again. The crucial question is: do their concerns justify roadblocks, syrup in fuel tanks of construction machinery, loosened screws and valves on excavators, flattened fences around building sites?

Unlawful or Legitimised by the Basic Law?

“Yes,” according to activist Tadzio Müller in the political magazine “Panorama”. All of this happens “within the scope of a justified state of emergency”, which the EU parliament declared on 28th November 2019. The Federal Constitutional Court also said in April 2021 that the climate crisis threatened to destroy the freedom rights of future generations. “These campaigns are legitimate defence, as I see it.”

Some environmental groups invoke the right of resistance in Article 20 Section 4 of the Basic Law, which is about attacks on the constitution, the order of parliamentary democracy and of the constitutional state: “All Germans shall have the right to resist any person seeking to abolish this constitutional order, if no other remedy is available.”

Minister of Justice Marco Buschmann (FDP) sees it differently: “Civil disobedience constitutes neither justification nor defence in German law. Unannounced demos on motorways are illegal and remain so,” he tweeted after a roadblock campaign. So far, the courts have generally taken a similar view and in most cases the activists have been ordered to pay fines or given custodial sentences. However this very judgment is currently being discussed intensively among experts. Some judges are drawing different conclusions too: in November 2022 Flensburg District Court accepted the argument of the “justified state of emergency” and acquitted a tree occupier who had been charged with trespass.

In short: the legal situation remains complex.

This is due in part to the nature of civil disobedience: by definition it means (minor) infringements against legal norms and laws, which are deliberately committed by the protesters. Does that not therefore make the protest form per se illegitimate? It’s not quite that simple.

“Acid Test for Mature Democracies”

After a glue roadblock in Berlin in October 2022, Olaf Scholz (SPD) did appeal to Last Generation not to cause danger to others with their actions. But at the same time he emphasised “that we have to accept a critical stance, a critical protest”. In the Süddeutsche Zeitung, author Jagoda Marinić passes judgment on the “generation of civil disobedience”: “Rebellion today means taking the world seriously.” Young people around Greta Thunberg, Rezo and Billie Eilish want to rouse the older generation “out of their democracy coma”. The handling of civil disobedience becomes the calling card of democracy, she claims: “While protesters in China are being brutally slain in full view of the world, the founder of Fridays for Future delivers her tirade before the United Nations.” Anyone who thinks today’s climate activists are too radical needs to remember the campaigns of the past – such as the occupation of the Brent Spar oil platform by Greenpeace in 1995. | Photo (detail): © picture-alliance/dpa/epa/AFP Disobedience as a sign of functioning democracy? “The way justified civil disobedience is handled is the acid test for mature democracies and must be viewed as a necessary element of their political culture,” is a view likewise held by Bernward Gesang, Professor of ­Philosophy and Business Ethics in Mannheim. In an essay for taz, the book author reflects on matters such as the extent to which civil disobedience can be justified. “Philosophers have been thinking about this at least since the time of John Locke (1632–1704).” According to Locke, “civil disobedience is essential as a motor for changing the law” and justified if one “could not invoke the law to avoid injustice”. In short: if lawful attempts have failed, civil disobedience might be necessary. Gesang himself points out that many social changes – from the abolition of apartheid in the USA to the fossil fuel phase-out in Germany – would not have happened without civil disobedience.

With this notion, Locke anticipates what many philosophers after him would view in a similar way. However according to their definitions, civil disobedience is also only justified for goals that apply to society as a whole rather than to individuals – for instance when the constitutional state fails to respect human rights or the common good, as Gesang explains. In this context, philosopher and sociologist Jürgen Habermas defines civil disobedience as a morally justified protest “which may not solely be justified by private religious convictions or self-interests. It is a public act that is generally announced […]; it includes the deliberate violation of individual legal norms without affecting obedience towards the legal system as a whole; it demands willingness to uphold the legal consequences of violating the norm; the rule violation in which civil disobedience is expressed has an exclusively symbolic character – it is from this premise that the protest’s limitation to non-violent means arises.”

So evaluation of protest campaigns is not just about the methods, continues Gesang: if civil disobedience – which includes breaking laws – does not serve the common good, then it is also not justified. Furthermore civil disobedience must also be as non-violent as possible, and the goal must not be unachievable. So according to him, the question of whether the climate protest campaigns are justified depends on this consideration: how great is the damage caused compared with the likelihood of success? Or expressed another way: how great is the necessity and how much intimidation can be justified because of it?

It’s All Happened Before

Meanwhile Last Generation has announced that they will be intensifying their protests. So discussions on the subject of necessity versus intimidation are entering the next phase. Several hundred criminal prosecutions are ongoing against the group. “A fine line,” says protest researcher and political scientist Anna Nora Freier in the ZDF science show “nano” about campaigns that include criminally relevant activities such as intimidation, criminal damage or sabotage. It’s true that they received a lot of media attention. But if forms are chosen that “overstep the boundaries of peaceful protest and become relevant in terms of criminal law, then it might be that the population no longer feels able to express solidarity with them.” The discussion about civil disobedience isn’t new either – it flared up repeatedly, in particular at the protests against interim nuclear waste storage facilities as shown here in Gorleben in March 1979. | Photo (detail): © picture-alliance/Sven Simon Incidentally, neither this form of climate protest nor the public debate associated with it are new. The Greenpeace flagship “Rainbow Warrior” started things moving in the 1970s and 80s by instigating risky campaigns with a high media profile against atomic testing and seal slaughter. Peace, environmental and anti-nuclear movements organised sit-ins and blockade campaigns across Europe, boarded oil rigs, and chained themselves to train tracks in front of nuclear waste shipments. Many politicians today, including Habeck, who is 53, experienced these protest movements first-hand, when they were themselves the same age as today’s protesters. They fought fiercely in those days as well, and not much about the debate has changed since then.