Modern theories of democracy are very numerous and each of them interprets the approaches of minorities in defending their rights in the political arena in their own way, so that the democratic system strives for a consensus state. Due to the diversity of such approaches, circumstances may arise in which certain legislation becomes unacceptable for certain minority groups and a revision of the structure of the political system becomes a legitimate request of these groups. At the same time, under the conditions of the current military dictatorship in Russia, the opportunities for active civic participation and resistance to the undemocratic regime are reduced inexorably, given that in modern Russia there are no such things as an independent judiciary, political representation through the (true) opposition parties, autonomous civil society, which is in “tight grip” of Russian law enforcement agencies and seems strongly isolated from global civil society. So the question arises how Russian citizens can defend their rights, demand a revision of the political system’s structure and act in a legal field at the same time? The following article pays attention to some aspects of civil disobedience that can shed light on such a problem.
In the academic and scientific literature civil disobedience finds a great variety of definitions based on a variety of contexts. In order to reveal some of them, this section contains such a political and legal aspect of civil disobedience as the dysfunctions of the institution of law, which are briefly summarized below:
- dysfunction of implementation of the rights and obligations of citizens, carried out by legal norms – the biased nature of legal sanctions, when objectionable, and not true violators of the constitutional rights and freedoms of citizens are punished;
- dysfunction of overcoming the tension between the systems of society and the state – the fact that the judicial system is fully or partially subordinate to power structures;
- dysfunction of compliance with legal laws for the purposes of public order – the protection of systemic law in relation to the state, but not the rights and freedoms of man and society;
- dysfunction of a set of imperatives implying the obligatory nature of the obedience of all people to the law – is a crisis of legitimacy, in which the binding nature of justice, equality and freedom is lost;
- dysfunction of support for the compliance of real legal relations with legal norms – the bureaucratization of litigation;
- with dysfunction of the use of laws and regulations emanating from public authorities to prevent intra-system stresses the entire system is affected, the law as a whole practically does not function;
- dysfunction of minimization of tensions between interest groups is accompanied by a lack of connection between rational orientation and the behavior of individuals and groups;
- the most important dysfunction of the development of legal culture and legal consciousness of citizens is the reorientation of information about legal relations regarding the interests of society to the interest of the state.
These distortions of the legal and, after it, the political system of the state can be observed for decades in non-democratic regimes like the modern Russian one. In relation to citizens, such distortions are unfair. In this context, it is appropriate to define civil disobedience as an act of a person’s (society’s) reaction to the imperfections in the functioning of the political system in the field of observance of human and individual rights and freedoms in order to restore justice.
When it comes to justice, then a reference to a justice theory by J. Rawls suggests itself. Rawls there defines [p.320] civil disobedience as “a public, nonviolent, conscientious yet political act contrary to law usually done with the aim of bringing about a change in the law or policies of the government.” And although Rawls clarifies [p. 319] that he considers civil disobedience in (more or less) just democratic regimes, this does not prevent us from using the axiom he proposes to determine the content of civil disobedience in such dictatorships as Putin’s Russia e.g., since even these days its regime uses some democratic institutions, albeit not in favor of citizens. In addition to publicity (i.e., openness of action), non-violence (i.e., sincere adherence to the rule of law), conscientiousness (i.e., conscious non-evasion of responsibility), political (i.e., advocating not personal interests but the interests of groups), Rawls highlights [p.327] such a condition of admissibility as an extreme measure, implying that all previous legal instances have been passed and are not able to effectively solve the problem of injustice for one reason or another:
…for example, the existing political parties have shown themselves indifferent to the claims of the minority or have proved unwilling to accommodate them. Attempts to have the laws repealed have been ignored and legal protests and demonstrations have had no success. Since civil disobedience is a last resort, we should be sure that it is necessary.
Based on the criteria, conditions and factors that determine the essence of civil disobedience, we may dwell a little more on the fact that its acts are permissible in relation to laws that violate one or more fundamental human rights. So, let’s consider the following example. Ilya Yashin, the former head of the Krasnoselsky municipal district of the city of Moscow (the population of the district is comparable to a small Russian city), one of the most prominent oppositional politicians of Russian modernity, is currently in a Russian prison as a political prisoner. He was sentenced to 8 years and 6 months in prison under paragraph “e” of Part 2 of Art. 207.3 of the Criminal Code (“Public dissemination of deliberately false information about the use of the Armed Forces of the Russian Federation…”). “According to the investigation, in April , during a live broadcast on YouTube, a politician disseminated “deliberately false information about the killings of civilians by the Armed Forces of the Russian Federation in the city of Bucha” (Kyiv region of Ukraine).”.
We consider it very obvious that Ilya is in prison for having publicly spread the truth about the war in Russia, seeking justice. Here again, Rawls, speaking of the struggle for justice as a motive for acts of civil disobedience, wrote [p.320]: “…if the government enacts a vague and harsh statute against treason, it would not be appropriate to commit treason as a way of objecting to it, and in any event, the penalty might be far more than one should reasonably be ready to accept.”. In addition, it is noteworthy that Yashin, publicly speaking about the crimes of the Russian Army on the territory of Ukraine, did not obey the law on “dissemination of deliberately false information” precisely in order to comply with this law – this is a rather thin line (seemingly paradoxical), which Rawls also mentions [p.322], discussing the publicity and non-violence features of disobedience, which is expressed “to law within the limits of fidelity to law, although it is at the outer edge thereof.”.
With it we should look at the main Russian law – the Constitution of the Russian Federation, which in its Article No. 29 guarantees every citizen of the country the right to freedom of speech and thought, the right to freely seek, receive, produce and disseminate information in any legal way, guarantees freedom of the mass media, prohibits censorship. Thus, it is considered possible to interpret actions of Ilya Yashin as acts of civil disobedience aimed at non-compliance with the law that violates human rights and contradicts the Constitution of the Russian Federation.
While fundamental aspects of civil disobedience from the point of view of law and understanding that a citizen deprived of certain guarantees in the field of his fundamental rights by a repressive law feels the need to challenge such a law are both considered as circumstances external to a person let’s now take a look at one of the circumstances that are internal to a person as to a subject of civil disobedience – the dimension of freedom. Strictly speaking, the craving for freedom as such is so natural for a person that in some states the escape of prisoners from places of deprivation of liberty is not punished with an additional term precisely because the desire of a prisoner to escape from prison is considered natural and it is pointless to fight against it (for example, in in legal terms, this is reflected in paragraph 5 of Article 258 of the Criminal Code of the Federal Republic of Germany).
It would seem, what does it have to do with people who are not in a formal prison? From the point of view of a citizen, following certain laws, which guarantees him freedom from the state, can deprive him of his inner freedom. In other words, in order to avoid the need to legally negotiate with the state on certain issues, a person is forced to negotiate with himself, with his conscience, honor, and dignity. In this regard, Henry Thoreau described [p.557] the situation extremely precisely in the middle of the 19th century in an essay on the topic of civil disobedience: “It costs me less in every sense to incur the penalty of disobedience to the State than it would to obey. I should feel as if I were worth less in that case.”. He reflects [p.561] on the topic of why he refused to pay the poll tax to the state government for six years, because he was opposed to financing the war of the North American United States with Mexico, including from his taxes:
I do not care to trace the course of my dollar, if I could, till it buys a man or a musket to shoot one with – the dollar is innocent – but I am concerned to trace the effects of my allegiance. In fact, I quietly declare war with the State, after my fashion, though I will still make what use and get what advantage of her I can, as is usual in such cases.
Thus, by expressing civil disobedience by refusing to pay taxes, Thoreau internally freed himself from the responsibility that the state had placed on him without his consent. At the same time, outwardly, for such an act, he was deprived of his freedom – he was kept in custody for one night, (after which someone paid the same tax for him, and Thoreau himself was released from the cell). What is particularly important in this case is his conclusions regarding freedom. While deprivation of his freedom was perceived as is by law enforcement officers (and, consequently, by the state), from his point of view [p.558] at that moment, it allowed him to gain internal freedom, unique in comparison with the “silent majority” of his fellow citizens:
…if there was a wall of stone between me and my townsmen, there was a still more difficult one to climb or break through before they could get to be as free as I was […] I could not but smile to see how industriously they [law enforcement officers] locked the door on my meditations, which followed them out again without let or hindrance, and they were really all that was dangerous. As they could not reach me, they had resolved to punish my body…
While Thoreau’s lines of thought regarding defiance and freedom may not seem so obvious in some ways, they are pretty accurate to the striking similarity in the context of aggressive wars with neighboring states waged by the North American United States in the mid-19th century and present time Russia. In connection with such analogies regarding the actual freedom that can be achieved through the expression of civil disobedience, the patterns formulated by Thoreau only fit more strongly into today’s Russian context. At the moment there are at least 587 political prisoners in Russia confirmed, who are locked up in concrete boxes (like Henry Thoreau 150 years ago), yet publicly they oppose the war unleashed by Russian regime, the repressive laws directed against the population of the country, the injustice of the system as a whole, louder than those Russians who are not formally imprisoned on the territory of Russia. It is in the optics of the implementation of acts of civil disobedience that such people are now more free than the majority of the country’s population. Moreover, employees of state structures, being executors of police arbitrariness of higher authorities (that is, denying themselves the expression of civil disobedience) are real prisoners of their prisons and state institutions.
In general, the most crucial point of this article is that in non-democratic regimes, where there is no place for peaceful protests and decisions in the legal field, civil disobedience to non-legal legislation should be considered not from the point of view of right, but from the point of view of the duty of a person who upholds justice in society and thirsts for freedom of his personality.