The International Journal
of Not-for-Profit Law

Volume 13, Issue 3, June 2011

Helen James¹

The renowned American lawyer Cass Sunstein, in his splendid book Why Societies Need Dissent,² explicated the view long held amongst exponents of theoretical democracy that dissent is the leaven which propels societies to be productive, innovative, creative, attractive to human beings from diverse cultural backgrounds; that dissent unleashes the regenerative capacities which enable societies to thrive and not atrophy. In fact dissent, defined as the public expression of disagreement with majority-held views, is the essential component of open democratic politics, as it underpins the operations of the various “freedoms” – the freedoms of association, media, religion, speech – to protect which we have been repeatedly told by leaders of the world’s major democracies since 1939 that we must go to war. This imperative itself has produced major eruptions of dissent from those disagreeing with the prescription. Dissent in all organizations, minor and major, whether the local book club or the highest organs of government, is a forum for proposing alternate views, for bringing additional information to bear on decision-making processes which could have far-reaching consequences for those responsible for the administration of government. For example, had the late President John F. Kennedy not listened to dissenting voices, the unimaginable catastrophe of nuclear war with the former Soviet Union could have occurred in 1962 at the time of the Cuban missile crisis.

Sunstein rightly considers that dissent is, however, a much undervalued quality in democratic polities, and of course one that is repressed in non-democratic polities. We are only too well aware of the fate of political dissenters from present-day Syria, Yemen, and Libya to Myanmar, China, Russia, and South America. But we like to fondly believe that dissent is welcomed in democratic societies as an expression of the validating principles of oppositional politics. Outside formal institutional fora, sadly, this is rarely the case. While many democratically elected politicians claim they uphold the fundamental freedoms enshrined in the American Constitution and similar documents or legal frameworks operating in other major Western democracies, in practice those who publicly dissent from majority views or challenge perceived politically correct norms are frequently ostracized, expelled from their places of work, careers destroyed, imprisoned, or even killed. Being a dissenter is not a comfortable career, even in established Western democracies. Despite the much-vaunted freedom of the press, during the widely unpopular Iraq War of 2003 which saw thousands of demonstrators (dissenters) pour onto the streets of major Western capitals, some journalists who challenged the government line of the day, both in the United States and in Australia, were persecuted, threatened with imprisonment and loss of their livelihoods. And not just during the 2003 Iraq War, but also the earlier Vietnam War era (1965-1975), the epitome of dissent being marked by Daniel Ellsberg’s unauthorized leaking of the Pentagon Papers in 1971 and their publication in The New York Times and The Washington Post. Pursued by the administration of the day, Ellsberg has now found his place as a hero of the history of dissent who exposed to the public and the Congress the culture of mendacity within the U.S. Administration.

Yet freedom of the press, that bulwark of democracy as it has been instilled in millions of school children, is a major public institution by which dissenting views are conveyed to the population at large. When the press/media is co-opted by government, that government resiles from the high standards of accountability and transparency which we consider paramount in consolidated and established democracies; and conversely, the lack of “freedom of the press” and associated freedoms are critical measures of dictatorship. Dissent thus has a checkered history both in democratic and non-democratic societies, a principle frequently more recognized in theory than in practice. Indeed, the worldwide decline in freedom of the press and its associated culture of political dissent in recent years has been the subject of the latest survey and freedom index by Freedom House, which notes that 2010 was the fifth consecutive year in which this negative finding has been observed.

The Duty to Dissent

America was born in dissent. Those who sailed on The Mayflower in 1620 and their descendants who fought the War of Independence in 1776 not only sought to establish the primacy of dissent in a modern democratic polity, but also gave credibility to the notion that the principled individual has a duty to dissent in pursuit of a civil society. Their voyage across the ocean, establishment of the “Commonwealth” of Massachusetts, and later repudiation of the authority of the Crown of England, were part of the fabric of dissent in which modern journalism was born. In that era, politics and religion walked the same path, as Anne Hutchinson found out when, in 1636, her dissenting religious views caused the political leaders to expel her from their community. She sought refuge in Rhode Island. Governmental and religious authorities worked closely together, considering that each had the power to dictate the parameters of an individual’s faith, a system of governance which had given rise to the major religious wars of Western Europe, and the relentless persecution from which the Pilgrim Fathers had initially fled.

Whilst in modern times it is generally acknowledged in most Western democracies that a person’s religious views are a private matter, not the purview of the state, this development in public policy has been a hard-won perspective over which much blood has been spilt. Resistance to religious persecution has been the crucible for the public expression of dissent across numerous societies, leading to concomitant political activism, either through pursuit of arms or through the medium of print, as may be seen in the journalistic forays of a kindred spirit, the English Presbyterian dissenter Daniel De Foe. He published the 1703 satiric pamphlet, The Shortest Way with the Dissenters, which pilloried the established Church of England. It earned him some time in the stocks and set him on the path to being acknowledged as the father of modern journalism. The less fortunate English bookseller John Smith in 1791 published a similar pamphlet, “A Summary of the Duties of Citizenship,”³ an attack on the abuses of the Church of England, for which he was put on trial in 1796. His wife had, unknown to him, sold a single copy of the pamphlet. He earned a harsher punishment, being sentenced to having his hand struck off and to serving time in prison, which so impacted his health that he died. The fury of the English Establishment may be gauged by the introduction to his indictment, which reads:

Indictment [for libel and sedition, inciting disaffection towards King, Clergy, and Government]: That John Smith, being a wicked, malicious and ill-disposed person and greatly disaffected to our Lord the King and the Government of this kingdom, and wickedly, seditiously, and maliciously contriving and intending to scandalize and deface, and bring into hatred and contempt, our said Lord the King, and the established Government, Religion, and Law of this Kingdom, and the Clergy of the Church of England as by law established, and the Army of our said Lord the King: and to insinuate and cause it to be believed that the Government of this kingdom as by law established is an usurped, unjust and tyrannical government, and that the Army of our said Lord the King is used and employed by the Government of this Kingdom as an instrument of tyranny and oppression over the people thereof, and thereby to raise and excite sedition, discontent, and irreligion in the minds of the liege subjects of our said Lord the King, on the 17th day of 1795, in the county of Middleses, that is to say, in the parish of St Giles’s in the Fields and St. George’s, Bloomsbury, wickedly, seditiously, and maliciously did publish, and cause and procure to be published, a certain Libel, containing therein, amongst other things, divers wicked, scandalous, and seditious matters and things of and concerning of our said Lord the King and the established Government, Religion, and Laws of this kingdom, and of and concerning the Clergy of the Church of England as by law established, and the Army of our said Lord the King.⁴

If one detects something of the fury of Shakespeare’s King Lear when Cordelia refuses to state publicly how much she loves him, and thereby declines to acknowledge his authority by playing the game, then perhaps one is simply recognizing the Rumpelstiltskin type of fury which seems to characterize authoritarian presumptions of compliance. This has nothing to do with the theory of consent or its withdrawal, but everything to do with the capacity or otherwise of governmental authority to accept criticism in an appropriate manner. While John Stuart Mill in his 1859 essay, On Liberty, took the stance that the time had passed when it would be thought necessary to defend the principle of ‘liberty of the press’ as what he identifies as ‘one of the securities against corrupt or tyrannical government,’⁵ sadly this is not the case. The politico-religious reverberations of the ‘War on Terror’ have produced governmental authorities which only too readily revert to the coercive practices of earlier historical eras. The problem of suppression of dissenting opinion lies with us today as much as it did in John Smith’s or Daniel De Foe’s time, for how frequently do we hear legitimately elected governments not only indignantly refuting even mild criticism and relentlessly pursuing the criticizer, but then also putting in place expensive bureaucracies to deflect and criminalize any future criticism?

Critiques of elected government and exposure of the self-interested fallacies at its very heart inform that most famous of political essays, Henry David Thoreau’s 1849 work, “Civil Disobedience: or Resistance to Civil Government.” Where, in contemporary times, we hear democratic governments effusing about the obligations and duty of citizens to protect the security of the state, Thoreau would have countered with his views on the obligations of citizens to resist the tyranny of the majority and the duty of citizens to obey their conscience. One of Thoreau’s many contributions to social and political theory and what constitutes a “civil society” was his capacity to fuse rights and obligations, not to place them in dichotomous categories but to see them as twin entities. Thus, in pursuit of individual rights such as those set out in the U.S. Constitution, and subsequent manifestations in the 1948 U.N. Declaration of Human Rights and related 1966 Covenants on Economic and Social Rights and on Civil and Political Rights, Thoreau argued that the individual has both a right and an obligation to follow his or her conscience in resistance to (un)civil government and the tyranny of the majority. His profound influence is attested to not only in the writings of J. S. Mill,⁶ but also in those of M. K. Gandhi and Martin Luther King Jr., who openly acknowledged their debt to Thoreau.

Journalists, writers, and intellectuals are of course the backbone of a culture of dissent, the parameters of which have evolved from at least the time of the 15th-century printing press. Many have given their lives for their profession and their principles. In the major Western democracies, journalists, writers, and intellectuals are a reasonably protected species, safeguarded, at least in theory, by the framework of the First Amendment in the United States and similar legal entities in other Western democracies. How then should one regard the current vehement pursuit of Julian Assange by the U.S. administration for publishing on his website, Wikileaks, sensitive, hitherto classified material relating to U.S. government diplomatic cables and state secrets? Assange, no matter what his personal attributes, is after all clearly a member of the Fourth Estate, a journalist whose right to publish material can hardly be questioned. That he publishes electronically rather than in conventional hard copy should be irrelevant. One should note also that similar vehement pursuit does not apply to the other media outlets, newspapers, to which Assange forwarded copies of the material he had published on his website. This set of activities should be disaggregated from that of the person or persons who provided him with the classified material, and there is clearly no doubt that the act of providing him with the material infringed the law which applies to governmental employees not to divulge classified documents. However, it is highly doubtful that Assange, by publishing, has infringed any law. What he has done is the Rumpelstiltskin type of action which has tweaked the nose of the sleeping giant of the U.S. administration. But this, whilst understandably infuriating for the administration, is not illegal, unless causing embarrassment to government has suddenly become a crime. Nor was publishing the Pentagon Papers by the New York Times and The Washington Post. Assange’s opposite number is not Daniel Ellsberg who provided the material to those newspapers. The U.S. administration believes that it has in custody the person who provided the classified materials to Assange, and, given the reports of the conditions in which the accused person, Private Bradley Manning, is held, one can only sympathize with the young man. Perhaps he will become the object of an Amnesty International investigation. Daniel Ellsberg’s opposite number is Bradley Manning; Assange’s is The New York Times and other newspapers.

Has Assange followed Thoreau’s dictum, the obligation to follow his conscience? Undoubtedly so. From time to time he has made clear that he sought to erase the identities of those mentioned in some of the documents; he sought to protect their identities, especially where those persons had worked closely with U.S. forces in theatres of war. Assange is clearly persona non grata in several Western democracies, but it is highly doubtful that he has done anything other than what any other journalist would have done if those documents had come into his or her possession. Would the reaction from governmental circles have been different had Bradley Manning or others provided the secret materials directly to the mainstream media?

Assange, whilst exercising dissent in the service of what he perceives as a civil society, has observed Thoreau’s dictum to follow his conscience by making information on governmental activities available to the public. He has also provoked considerable dissent on his behalf. In Australia, the Prime Minister, Julia Gillard, adopted a conservative, pro-U.S. administration line. She stated that whilst some agreed with Assange’s action, she did not. Initially, her government had raised the specter of prosecuting Assange, an Australian citizen. Her stance provoked howls of outrage not only from her own backbench but amongst civil libertarians in Australia generally. Dissent was clearly on the march. Amidst loud cries that Assange had not broken any Australian law, the government backbenchers succeeded in embarrassing their Prime Minister considerably. The Australian Federal Police, pursuant to an official directive, confirmed on December 17, 2010, that their inquiries had “not established the existence of any criminal offences where Australia would have jurisdiction.”⁷ The wider populace adopted its typically cynical, skeptical stance towards anything that politicians initiate and openly scoffed at the inept attempt to discredit Assange through means of the Swedish allegations of sexual assault. The Sydney Peace Institute awarded him the Sydney Peace Prize for his endeavors to bring to public attention materials which he believes it is the public’s right to know. The Australian National University convened open forums on Assange and Wikileaks, a measure of the interest in the affair from the perspective of upholding the principles of freedom of speech, the press, and the public interest in holding government accountable. Conversely, conservative voices maintained that the release of secret documents does not serve the public interest; but, on the whole, Assange is perceived as a journalist simply doing a journalist’s job of holding government accountable and subjecting its actions to the concept of transparency.

Have I read the documents that Assange placed on Wikileaks? No, although some were sent to me via intermediaries. I do not need to read Wikileaks to know that Gaddafi likes (until recently) to have his blonde Rumanian nurse close by, or that Berlusconi is lascivious. Other material I have read about, in the major newspapers, is fairly pedestrian. I am too busy to spend large amounts of time looking at Wikileaks. Had less attention been paid to this, fewer people would have even been aware of it and it might all have passed like a storm in a teacup. But outraged claims of infringing national security and putting national security in danger merely draw attention to the material, thereby serving Assange’s objectives. Dissent is a public act; it is never meant to be consumed in private, but to be effective needs to take on a collective supra-individual identity, as Michael Walzer recognized.⁸ The duty to dissent arises out of the individual conscience but is expressed as a collective action with a public objective. To revert to J. S. Mill again: “The peculiar evil of silencing the expression of an opinion is, that it is robbing the human race; posterity as well as the existing generation; those who dissent from the opinion, still more than those who hold it. If the opinion is right, they are deprived of the opportunity of exchanging error for truth: if wrong, they lose, what is almost as great a benefit, the clearer perception and livelier impression of truth, produced by its collision with error.”

The Duty to Disobey

Since the Nuremburg Trials at the end of World War II and the International Military Tribunal for the Far East, the formulation of a duty to disobey an inherently immoral order or law has been incorporated in the Crimes Against Humanity formulation of international law, which has seen the establishment of the International Criminal Court and the International Court of Justice. In theory, and with hindsight and reference to attributes of “natural law,” the crimes of the Nazis and the Japanese were most reprehensible, correctly subject to established criminal law procedures and duly punished. The inference in all cases was that those who committed these crimes, under orders perhaps from higher authority, had a duty to disobey those orders even at the cost of their own lives, because the orders were inherently immoral. The recent arrest of the Bosnian Serb General, Ratko Mladic, is but the latest in a long line of military murderers who seek to escape retribution for their deeds by invoking the defense of “acting under orders.” International Law since World War II has firmly rejected this defense, thereby reifying the duty to disobey an immoral law as an international norm. By inferring that the individual has an active conscience which can and should distinguish a moral law from an immoral one, international law has succeeded in giving firm, legal foundation to the concept of the duty to disobey. Whistleblowers like Bradley Manning or his associates are not in the same league as the Nazis at Nuremburg or the Japanese during World War II. But whistleblowers do feel that they have an obligation to disobey what they may feel is a morally unjustified law in pursuit of a higher, more moral outcome: that of making available to the public information which the whistleblower feels the public has a right to know and a need to know. At heart here is the citizen’s relation with the modern state: does the state exist to serve the citizen or the citizen to serve the state? In Walzer’s words, the state “will always be confronted by citizens who believe themselves to be, and may actually be, obligated to disobey.”⁹

The caveat in Walzer’s argument is that the action can be tolerated, so long as it does not endanger or harm other citizens. So, have the actions of Assange or Manning, or whoever else provided the classified documents, endangered the state or other citizens? Walzer’s formulation would suggest that it may be unlikely. He writes: “Indeed, there is very little evidence which suggests that carefully limited, morally serious civil disobedience undermines the legal system or endangers physical security.”¹⁰ This of course is different from the perceptions of the guardians of the state, who may wish to ensure that heavy, exemplary punishment is meted out as a form of deterrence to anyone planning similar activities. Undoubtedly, also, the guardians of the state will put in place additional measures to seek to ensure that the security of their secret documents is unable to be breached in future. That such deterrence rarely works with those who are quite determined to break the law in the interests of what they perceive to be the public good is not likely to be considered. Bradley Manning, his associates, or yet unknown others perceived that they had a duty to make the secret documents available to the world of journalism in the interests of upholding the principles of a civil society, just as John Smith did in publicly excoriating the perceived abuses of power within the established Church in his time. Whistleblowers are the archetypal dissenters, driven by the need to address perceptions of wrongdoing by those in positions of power. Often their actions contribute to upholding the principles of a civil society; sometimes they do not. Emotive voices on both sides, supporting or denouncing their actions, seek to untangle the motivations by which their actions are judged. On the purity or otherwise of their motivations often turns public judgment as to whether their dissenting activities are in the public interest or not. The dividing line will frequently turn on whether harm arises either to other citizens, or to the state as a consequence of their actions; and conflicting views on this aspect will be unable to be reconciled.

Conclusion

A distinguished professor of political theory, my colleague Robert E. Goodin, articulated the corrosive consequences for democratic states which arise from terrorism, or more precisely the responses which democratic states feel impelled to take to protect their institutions, their citizens, and their ways of life from terrorist violence. In What’s Wrong with Terrorism,¹¹ he argues that the real, long-term problem for democratic states is that terrorism inveigles them to resile from the humanitarian political principles on which democratic states are based and which have taken centuries to evolve. In effect, by unleashing the catalytic consequences of irrational fear, terrorism lures democratic states to abrogate all the principles which distinguish them from authoritarian or totalitarian states; the distinction between the two types of polities and societies becomes blurred as democracies slide towards authoritarian social and political mores, curtailing the right to dissent, the right to habeas corpus, the right to trial by one’s peers in an open court, the rights to freedom of the press, speech, and association. It is a perspective with which I profoundly agree. The spectacle of British police shooting an innocent Brazilian seven times in the head in a case of mistaken identity, not even pausing to check the accuracy of their information, is evidence of the corrosive effect the culture of fear unleashed in one of the oldest established democracies. Other incidents abound. I do not even wish to mention the obscenity which is Guantanamo, or the policy of “rendition” of prisoners in the so-called War on Terror. Over the past fifty years, we had become inured to the concept that torture had been outlawed by the 1948 Universal Declaration of Human Rights. We were mistaken; torture is currently the weapon of first resort across both democratic and non-democratic polities. Those who seek to justify torture under the guise of saving lives through obtaining information by these execrable means should remember the old adage: two wrongs do not make one right, but they do reduce the moral authority of democratic governments.

Assange, Bradley Manning, or any of their associates who exercised their obligation and right to dissent in the interests of protecting the civil society which we have come to expect to be provided by a democratic political and social framework, are surely working in the best tradition of whistleblowers. They seek to protect civil society from the depredations of those who have resiled from its principles. The legacy of Galileo and Copernicus, Sulak Sivaraksa and Liu Xiabao adheres to them, and to all who recognize the moral obligation to dissent from unjust laws in the interests of strengthening our civil society. The narrative of human history is the history of dissent, as dissenters challenge the received “wisdom” of their age in the interests of truth. Truth, however, is an uncomfortable bedfellow, both for democratic and non-democratic governments, and how each type of government responds to those who expose inconvenient truths distinguishes one from the other.

Notes