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Democratic Disobedience, 114 YALE LAW JOURNAL 1897 (2005)


I seek in these pages to set out a new account of political disobedience that underwrites a sympathetic reconstruction of the prominent contemporary cases of disobedient protest and, moreover, justifies some of them. This theory of disobedience is very different from the traditional liberal view; it in some respects takes an opposite approach. In particular, the view that I propose departs from the liberal project ofjustifying political disobedience from without democracy, by reference to inherent limits on political authority, including even the authority of democratic governments-an idea that renders liberal political disobedience, among other things, democracy-limiting disobedience. My proposal, by contrast, attempts to justify political disobedience from within democratic theory, emphasizing the support that political disobedience can provide for the broader political process by correcting democratic deficits in law and policy that inevitably threaten every democracy. The argument aims to construct a precise account of these deficits and of the contribution that political disobedience can play in overcoming them. Instead of being a theory of democracy-limiting disobedience, this is a theory of democracy-enhancing disobedience or, more simply, democratic disobedience. It aims to render plausible the counterintuitive claim that disobeying the laws of a democratic state can serve democracy. Indeed, the argument casts democratic disobedience as an unavoidable, integral part of a wellfunctioning democratic process.

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