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Uncivil Disobedience in Hong Kong

By Avia Pasternak

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The protests that have stalled normal life in Hong Kong for the past eleven weeks started as a peaceful affair. Millions of Hong-Kongers marched in the streets, to protest against their government’s plan to allow extraditions from Hong Kong to Mainland China. Many Hong-Kongers view this change as a further encroachment upon the territory’s relative legal autonomy, and as a further curtailment of the civil liberties of pro-democracy activists. In response to the wave of protests, the Hong Kong Government temporarily suspended the extradition bill, but it also used a heavy hand against the marchers. The government’s refusal to withdraw the bill entirely, or to open an inquiry into police brutality, angered many protestors and sparked their turn to less civil, and more violent, tactics. In recent weeks protestors have blocked roads and train stations. They have occupied the Legislative Council chambers and defaced Chinese emblems. They have blocked air traffic in the busy Hong Kong Airport, clashing with frustrated passengers, and a police officer and a Mainland Chinese reporter were attacked. In the streets, they confronted riot police, throwing bricks and lighting fires.

By turning to these tactics, Hong Kong protestors broke from a long and widely-respected tradition of civil disobedience: non-violent protest that, although illegal, avoids confrontation with the authorities, and does not resist legal arrest. It is a common view that when citizens face serious political injustices, they may resort to illegal protest in order to affect a policy change. But many think that for both principled and tactical reasons such protest must remain civil and non-violent.

One principled reason to opt for civil disobedience is that it communicates respect of the political authorities and the law. According to the political philosopher John Rawls (A Theory of Justice, 1971), when overall just states make laws that clearly violate the basic rights of their citizens, their citizens may need to resort to illegal protest. But in doing so they should still publicly communicate their basic respect of the legal authority of the state, and their willingness to accept punishment when they break its laws. Many Hong-Kongers have violated these requirements: they have turned to confrontational means, publicly communicated disrespect of the Chinese authorities, and evaded arrest and punishment.

But it is far from clear that in using these tactics the protestors are violating a pre-existing duty to communicate respect to the authorities. After all, Rawls’ restrictions on the use of permissible illegal disobedience were designed for nearly just and democratic states, whose citizens have a general obligation to respect the law. Hong-Kongers do not live in such a state. They do not enjoy universal suffrage and many of their civil and political liberties are curtailed, or under threat of being curtailed, by the Mainland Chinese authorities. Under these circumstances it is doubtful that Hong-Kongers have a principled obligation to demonstrate respect of the authorities and to willingly submit themselves to arrest and punishment.

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But there is a different principled objection to the use of uncivil disobedience, which concerns the harm it inflicts on others. The recent protests disrupt the daily lives of many in Hong Kong, prevent air passengers from boarding their planes, cause damage to public and private properties, and even bodily harm to police officers.

So can actions that impose such harms ever be justified? When we consider this question, it’s worth bearing in mind two preliminaries. First, we should not exaggerate the level of violence deployed by the protestors (at least up to the current point in time). It is true that the radical protests inconvenienced the lives of many, but their participants have not yet deployed seriously violent means, and with the exception of very few instances, have largely avoided causing serious bodily harm.

Second, it is important to remember that these protests are not exhibits of senseless, opportunistic violence. The Chinese Government has argued that the disruptions are carried out by ‘unscrupulous and violent criminals’. But this depiction is surely wrong. All evidence suggests that the protestors are motivated by clear political goals, including the withdrawal of the extradition bill, an independent investigation into police violence, and the implementation of universal suffrage in Hong Kong.

Many would agree that these are important and worthy political causes. The core question then is whether the use of disruptive and even violent tactics in the service of these goals and under these political circumstances is justified. This is a thorny question. To begin to answer it, we can turn to the rich philosophical literature on the ethics of self-defense. This literature suggests that imposing harm on others can sometimes be justified if it is done in the service of, or in defense of, valuable enough causes (such as the protection of one’s life against an unjustified attack, or the protection of basic political rights). But it also places important constraints on use of harmful means, even in defence of such valuable causes.

The first is necessity, which requires that there are no other less harmful ways of achieving the same goal. Second is the success constraint, which requires that the resort to defensive harm will have a reasonable chance of achieving its aim. Third is proportionality, which requires that the defensive harm inflicted is of the same order of magnitude as the harm that it aims to avert. Applying these three constraints to the case of the Hong Kong protests can help to determine the appropriate response to their tactics.

According to the necessity condition, the resort to uncivil and costly protest is permissible only if protestors can reasonably assume, based on the evidence available to them, that there are no less harmful avenues of protest available to them. Many Hong Kong protestors appear to believe that uncivil protest is necessary, as there are no less harmful avenues open to them.  For example, those who occupied the Hong Kong Airport handed out flyers to the stranded passengers apologizing for the inconvenience caused, but suggesting that they were left with no other means. They may have a point. Hong-Kongers do not enjoy the same avenues of political influence as citizens of democratic states. And the previous wave of pro-democracy non-violent mass demonstrations in 2014 (the ‘Umbrella Movement Protests’) did not yield tangible policy change. The leaders of that earlier protest faced harsh legal penalties. Given this past experience it is not surprising that many protestors question whether the resort to more confrontational and less civilized means is necessary in order to garner the attention of the world and to put pressure on the government in Hong Kong and in Mainland China. Protestors might also reasonably argue that if riot police respond with excessive force to peaceful demonstrations in the service of valuable causes, a confrontational defensive response is necessary to prevent unjustified attacks on fellow demonstrators.

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The ethical case for confrontational tactics must also take into account the related question of their likely success. Here there are reasons to be cautious. The Chinese Government’s response to the escalating protest has been far from accommodating, and in the short term it seems unlikely that the shift to confrontational tactics will yield policy changes. But on the other hand, it is important to also consider longer-term goals. For example, by resorting to confrontational means protestors effectively communicate the depth of their commitment to their cause, and the scope of resistance the government would have to face if it continues on its current course. In the long run such pressure could prevent further encroachments of civil and political rights in Hong Kong. The resort to more confrontational and less civil means could also catch the imagination of the population at large and fuel further support. That said, protestors must take into account the impact of their actions on public opinion, both in Hong Kong and in China. The direct physical attacks by groups of protestors on a police officer and a Mainland Chinese reporter at the airport were more likely to support the portrayal of the protestors as a criminal mob, and undermine their cause. Such direct violent harms (which were not even incidents of self-defense) are not compatible with the success criterion.

Finally, there is the question of the proportionality of the harm that protestors impose when they resort to non-peaceful tactics. Here protestors need to balance the magnitude of the benefits their protest is expected to bring about against the expected harm it will inflict on its targets and on third parties. When taking this constraint into account, we should keep in mind that the level of harm that the Hong Kong protests have inflicted on both riot police and bystanders has been relatively low. As we saw, the protests so far resulted in some damage to public property, some limited bodily harm, and mostly disrupted the routine lives of thousands of Hong-Kongers and air passengers passing through Hong Kong. We should not trivialize these costs, which can be quite burdensome to specific individuals. But on the other hand, we should also not underestimate the weight of the liberties which Hong Kong citizens are fighting for. As ethicists of self-defense agree (e.g. Cecile Fabre, Helen Frowe and Jeff McMahan), even uninvolved parties can sometimes be expected to incur some of the costs of defensive harm, if its expected benefits are likely to be sufficiently substantial.

These brief reflections suggest, I think, that the resort to uncivil modes of protest in Hong Kong could be defended in light of the familiar constraints on the use of defensive harm. But it is important to note that the argument I made here is context sensitive. Given the fluidity of the situation in Hong Kong – including the Chinese Government’s response – it may well be that further escalation of the protest, or the continuous use of disruptive means, should be deserted in light of necessity, success and proportionality considerations. Indeed, at the time of writing the protestors have returned to mass peaceful demonstrations. Given the Chinese Government’s threatening response, this may well have been a wise move. But it does not imply that future short-term bursts of constrained confrontational protest would necessarily be impermissible.

 

Disclaimer: Any views or opinions expressed on The Ethical War Blog are solely those of the post author(s) and not The Stockholm Centre for the Ethics of War and Peace, Stockholm University, the Wallenberg Foundation, or the staff of those organisations.

Published 29th August 2019

Avia Pasternak

Associate Professor in Political Theory at University College London

Avia Pasternak is an Associate Professor in Political Theory at University College London. Her current research examines the ethics of violent protest in democracies, and the appropriate legal and moral responses to riots. She is also working on the question of citizens’ collective responsibility for their state policies in democratic and non-democratic states. She published papers on the ethics of international economic sanctions, on the moral duties of agents who benefit from others’ wrongdoings, and on holding states responsible for their actions. She is a graduate of The Hebrew University of Jerusalem and The University of Oxford, and in 2019-20 will be a visiting faculty at the Princeton Center for Human Values.

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