Incivility as Dissent
| Date | 01 February 2020 |
| DOI | 10.1177/0032321719831983 |
| Author | Derek Edyvane |
| Published date | 01 February 2020 |
| Subject Matter | Articles |
831983PSX0010.1177/0032321719831983Political StudiesEdyvane
research-article2019
Article
Political Studies
2020, Vol. 68(1) 93 –109
Incivility as Dissent
© The Author(s) 2019
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DOI: 10.1177/0032321719831983
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Derek Edyvane
Abstract
State attempts to legislate for civility, such as the UK’s Injunctions to Prevent Nuisance and
Annoyance, are usually challenged on libertarian grounds. This article develops a novel democratic
challenge to such legislation, arguing that un-civil behaviours sometimes constitute masked
expressions of dissent. It first elaborates a conceptual analysis, linking the forms of annoying
behaviour targeted by legislation with the practice of incivility. It then articulates a structural
association between incivility and dissent and develops on that basis a substantive normative case
for the democratic value of incivility. In this way, the article highlights the role of bad behaviour in
sustaining liberal democratic institutions and the ways in which the tradition of political thought
about civil disobedience can obscure the possibilities of democratic dissent. It thereby informs
public debates about the ‘crisis of civility’ in modern society and offers a new perspective on
scholarly debates about the ethics of resistance.
Keywords
incivility, dissent, resistance, civil disobedience, civility
Accepted: 29 January 2019
In 2014, the British government tried to ban being annoying. The Anti-Social Behaviour
Crime and Policing Bill 2013-14 proposed the introduction of new Injunctions to Prevent
Nuisance and Annoyance (IPNAs) to replace the notorious Anti-Social Behaviour Orders
(ASBOs). In the original draft of the Bill, IPNAs broadened the range of prohibited
behaviour to include ‘conduct capable of causing nuisance and annoyance to any person’
(Anti-Social Behaviour, Crime and Policing Bill HC Bill, 2013-14), where ASBOs had
prohibited only that behaviour ‘that caused or was likely to cause harassment, alarm or
distress’ (Anti-Social Behaviour Act, 2003). Moreover, IPNAs lowered the evidential
threshold, requiring only a civil standard of proof that on ‘the balance of probabilities’ a
person had practised or threatened to practice conduct capable of causing nuisance and
annoyance, whereas ASBOs demanded a criminal standard of proof–‘beyond reasonable
doubt’.
School of Politics and International Studies, University of Leeds, Leeds, UK
Corresponding author:
Derek Edyvane, School of Politics and International Studies, University of Leeds, Leeds LS2 9JT, UK.
Email: d.j.edyvane@leeds.ac.uk
94
Political Studies 68(1)
The Bill provoked widespread opposition and the plans were roundly defeated in the
House of Lords.1 Opposition turned primarily on concerns that the Bill unacceptably
curtailed individual liberty. As Lord MacDonald QC put it:
the pressing question is whether state interference in the context of behaviour that is merely
potentially annoying could ever be justifiable or amount to a proportionate interference in those
critical rights to freedom of speech, assembly and religion, or indeed to private life (MacDonald,
2013: 8).
Call this the libertarian argument: in a free society, there will always be behaviour that
annoys us, but as long as it does not actually harm anyone, then we must tolerate it – such
is the price of freedom.
The libertarian argument is probably all that is needed to lay IPNAs to rest, but it is
incomplete. The argument points to the unwelcome consequences of prohibiting annoy-
ing behaviour but admits its undesirability. In this article, I argue that there are also posi-
tive democratic reasons to resist IPNAs that buttress the libertarian argument. While
banning annoying behaviour is clearly an infringement of liberty, it is also an infringe-
ment of access to procedural justice. This is because the characterisation of behaviour as
‘annoying’ or ‘rude’ can often work to mask and marginalise democratically significant
attempts to communicate a sense of injustice. And so, by banning ‘nuisance and annoy-
ance’, we risk stifling the democratic voice of citizens. More affirmatively, I suggest that
‘annoying’ behaviour of the kind targeted by the IPNAs could potentially constitute an
important and neglected mode of democratic activism.
The article is divided into four sections. First, I clarify some of the central concepts in
the debate. Specifically, I link the forms of annoying behaviour targeted by IPNAs with
the practice of incivility. The idea of civility is regularly invoked in contemporary public
discussion, but it typically functions as a rather hazy civic ideal and aspiration. Meanwhile,
the oft-lamented ‘crisis of civility’ in modern life is understood as a falling away from that
hazy ideal. I argue that we need to think much more carefully about the different forms
that un-civil behaviour can take. In this connection, I elaborate a novel distinction between
two styles of un-civility: incivility and anti-sociality. In the second section, I develop my
central thesis by identifying a structural association between incivility and dissent. I fur-
ther defend that association in the third section by explaining in more substantive terms
why incivility is an intelligible mode of democratic dissent. And then, in conclusion, I
briefly consider the wider legitimacy of incivility-as-dissent by setting the argument
within the larger context of the tradition of political thought about civil disobedience.
Annoyance, Incivility and Anti-Sociality
IPNAs sit among a class of government initiatives intended to use legislation to promote
civility in everyday life.2 In this sense, their emphasis on ‘annoyance’ is misleading.
IPNAs were never really intended to target annoying behaviour just as such. As George
Monbiot wrote for The Guardian:
The new injunctions … create a system in which the authorities can prevent anyone from doing
more or less anything. But they won’t be deployed against anyone. Advertisers, who cause
plenty of nuisance and annoyance, have nothing to fear; nor do opera lovers hogging the
pavements of Covent Garden. Annoyance and nuisance are what young people cause; they are
inflicted by oddballs, the underclass, those who dispute the claims of power (Monbiot, 2014).
Edyvane
95
Monbiot’s interpretation is supported by the Government’s own presentation of its
intentions. In a review of ASBOs that heralded the introduction of the new IPNAs, then
Home Secretary Theresa May wrote that her primary aim was not to target annoying
behaviour as such, but a particular class of un-civil ‘yobbish’ behaviours (Home Office,
2012: 3).
We face a direct problem in the characterisation of civility, because the term itself is ‘a
member of two kindred conceptual families’ (Meyer, 2000: 71).3 Specifically, we can
distinguish between civility as an ethical concept and civility as a political concept
(Johnson, 2007. See also Boyd, 2006; Calhoun, 2000). As an ethical concept, civility is
bound up with the idea of what it means to be civilised, well-mannered or polite; it focuses
on standards of decency in everyday life. As a political concept, civility is bound up with
the idea of an association of citizens; it concerns one’s status and obligations as a member
of a political community, as a citizen with certain rights and responsibilities. Clearly, the
two meanings are not the same, and this is crucial to my larger argument: being polite is
not the same as being a good citizen.
Viewed as a clumsy attempt to foster everyday politeness, it makes sense to associate
IPNAs with ethical civility and not political civility. But this does not mean that the forms
of conduct that IPNAs are meant to regulate are apolitical. On the contrary, we do better
to think of ethical civility as part of what Nancy Rosenblum terms ‘the democracy of
everyday life’ – ‘after we take account of organised political life, work, membership
groups, social circles, friends, and family, there is this “remainder”’ (Rosenblum, 2016:
171) – a domain not entirely discontinuous with the political, but which has ‘independent
meaning and value’ (Rosenblum, 2016: 74; see also Shklar, 1984). As Richard Boyd
(2006: 864–865) suggests, a flourishing culture of everyday manners and courtesy may
be a necessary condition for the development of robust practices of good citizenship.
Ethical civility is not the same as good citizenship, but it often impinges directly on the
quality of civic life.
We can think of ethical civility as denoting a set of social norms. Elizabeth Anderson
(2000: 170) defines a social norm as ‘a standard of behavior shared by a social group,
commonly understood by its members as authoritative or obligatory for them’. In the case
of civility norms, the relevant social group is that constituted by the joint commitment of
its members to their society as a shared problem. I follow Margaret Gilbert (2006) in put-
ting the notion of joint commitment at the heart of the idea of a social group and holding
that those who are parties to the commitment enjoy a special standing in relation to the
activity of (in this case) their sociation that is not enjoyed by those who are not parties to
the commitment. To be clear, the joint commitment to society I have in mind is intended
to be distinct from joint commitment to any particular civic order. And the sense of ‘soci-
ety’ is intended to be thin....
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