Corporate civil disobedience: Be careful what you wish for

I. Corporate civil disobedience: conceptual clarifications

Like many other key political terms, civil disobedience is an essentially contested concept: its politically controversial contours mean that we are unlikely to reach general agreement about how best to interpret its meaning or component elements (Gallie 1956; Scheuerman 2021). Yet, even as CD has been understood in competing (e.g. religious-spiritual, liberal, radical democratic or republican, and anarchist) ways, both theoreticians and practitioners typically speak a common language, with most describing it as depending on civility, conscientiousness, nonviolence, publicity, and respect for or fidelity to law (Scheuerman 2018). In this final vein, King famously described CD as an act of illegality targeting an unjust law, but one which ‘in reality’ expressed ‘the very highest respect for the law’ (King 1991 [1963]: 74), as evinced by the lawbreaker’s willingness to accept legal repercussions. Disagreements among both practitioners and theorists about CD’s justifications and its component parts regularly surface. The pacifist Gandhi, for example, interpreted CD’s commitment to nonviolence quite differently from the liberal Rawls or radical democrat Jürgen Habermas. The idea of legal fidelity has similarly been interpreted along diverging paths. And, yes, some CD proponents drop selective elements (e.g. nonviolence, fidelity to law) from the standard conceptual language altogether (Brownlee & Delmas, 2021). Nonetheless, CD’s shared conceptual language circumscribes possible interpretations: those engaging in sabotage or organized violence against a dictatorship, for example, are generally not characterized as civil disobedients.

Fortunately, we can set aside many longstanding controversies: the literature on CCD taps relatively conventional strands from its rich intellectual and political history, with defenders usually referencing prominent theorists (e.g. Rawls) and trying to show how CD’s standard elements make sense not only for natural persons but also corporations, conceived as collective agents that have been incorporated and possess legal personhood. ² CCD’s exponents insist that a case can be made for viewing the legal persons of corporations as moral agents capable of responsible and perhaps conscientious action, as well as politically motivated nonviolent lawbreaking that, in principle, contributes to the public good. Such acts of CCD, they suggest, potentially contribute to legal reform and are congruent with principled legal commitments: when well-conceived, CCD ‘strengthens the rule of law by bringing about changes in the law that make it worthy or respect’ (Ripken 2024: 254).

Some occasional confusion notwithstanding, CCD’s defenders reproduce standard attempts to delineate CD from conscientious refusal or evasion, characterized as noncompliance with the law based chiefly on grounds of private morality or conscience. While CD and conscientious refusal both rest on appeals to moral conscience, the former has been standardly understood as an identifiably political (and therefore: civil and public) act directed at generating legal change to advance the public good, whereas the latter entails cleaning one’s hands of some moral evil and often remains unannounced or even secret. With many real-life examples straggling the fence there is legitimate disagreement about how best to distinguish them (Smith and Brownlee 2017). Nonetheless, CCD’s most articulate proponents still deem it helpful to do so (Ripken 2024: 263–65). Indeed, it probably makes sense to delineate CCD from incidents, for example, where courts accommodate businesses on grounds relating to religious conscience or liberty. As critics have pointed out, the tendency within recent US jurisprudence to allow religious appeals to serve as the ‘ultimate get-out-of-jail card’ for those seeking exceptions to general laws has been hugely consequential and, from the perspective of the rule of law, worrisome (Wang 2023: 1003). ³ However, that phenomenon diverges from cases where businesses openly flaunt the law to advance desired political reform in opposition to unjust laws they hope to overhaul.

CCD’s most jarring conceptual building block is its counterintuitive association of corporate legal persons with natural persons. As we will see, CCD’s theoreticians acknowledge some differences. But as in recent SCOTUS jurisprudence on corporate free speech or religious liberty, they suggest that the parallels are sufficiently far-reaching to justify viewing corporations as having some right (and perhaps duty) – in this case, to engage in CD (Ripken 2025: 285–86). This remains a controversial claim; we will have to see if it holds. Yet nothing in the existing scholarly literature on CD necessarily precludes viewing corporations as its agents. Many theorists have already defended state or political-institutional CD. While controversial, the claim that CD can be performed by collective institutional agents is by no means novel (Lefkowitz 2021).

Even if we revisit Rawls’ canonical liberal account of CD, it is not initially clear that he would have categorically precluded institutional or collective agents, including corporations. At some junctures, Theory of Justice infers that the ‘parties’ to justice encompass ‘institutions’ and ‘associations (states, churches, or other corporate body)’ (Rawls 1971 128, 146; see Gerencser 2005). ⁴ In ‘Justice as Reciprocity’, Rawls similarly commented that ‘persons’ could be ‘construed variously depending on the circumstances’, and thus as referring not only to ‘human individuals’ but also ‘nations, provinces, business firms, churches, teams, and so on’ (Rawls 1999 [1971]): 193–94). Consequently, a theory of justice – and, presumably, an account of CD built on it – ‘should not begin by…restricting itself to the case of human persons’ (1999 [1971]: 194). Thus, Rawls’ admission that his use of the term ‘person’ was ‘ambiguous in the manner indicated’ (1999 [1971]; 194).

Later I suggest why Rawls ultimately thematized CD as a political practice primarily involving natural persons; I doubt this was mere conceptual slippage, as some have suggested (French 1979: 207–8). By the same token, he was justified in provisionally acknowledging more expansive ideas of ‘personhood’, whose construal necessarily varied. This usage accords with what modern legal systems do, where legal personhood is interpreted in a variety of competing ways and bestowed on a mindboggling variety of agents and institutions.

One final question: which corporations matter for the discussion to follow? ‘Today, commercial businesses, nonprofit organizations, social clubs, trade unions, political parties, religious organizations, and media companies are all forms of corporations’ (Ripken 2019: 11). Legal incorporation offers benefits to a multiplicity of organizations, including the colleges and universities at which many readers of this article are based. Here the focus is on CCD by for-profit business organizations, which individual legal systems typically disaggregate but, for our purposes, can be provisionally broken down into two main types: closely held (oftentimes family-based) corporations, in which company shares remain in a relatively small number of hands, and publicly traded corporations, where stock is publicly exchanged. Corporations benefit from limited liability, which helps shield stockholders from a variety of potentially negative economic consequences. Despite the commonplace view that shareholders ‘own’ corporations, they lack some rights traditionally associated with private property; they cannot use, exclude others from, lend, borrow on, alienate (or transfer), or profit directly from sales of corporate assets (Ciepley 2013). Some small and medium-sized businesses are corporations, whereas others are not (i.e. partnerships). ⁵ I focus on for-profit business corporations since those advocating CCD chiefly have them in mind. More importantly, they are extraordinarily powerful institutions in contemporary society and therefore deserve careful attention (Bowman 1996; Samuels & Miller 1987).

II. Defending corporate civil disobedience

The idea of CCD has been in the air for decades now, and even if companies have not typically used the term, they seem to have practiced some rendition of it (Dennis et al 1994; Ripken 2024: 251–53, 269–74; Winkler 2018). Recently, political intellectuals and legal scholars have openly debated CCD’s merits (Hing 2018 2023; McGarity 2015; Murray 2015; Ostas 2010; Pollman 2019; Ripken 2024) or, at least, hinted at its prospects (Williams 1998). The most imposing contemporary case for CCD is proffered by the business law professor Susanna Kim Ripken, a major scholar of corporate personhood and author of an insightful recent article devoted to CCD (2019; 2024). Ripken’s defence is illuminating precisely because it responds to what initially appear as insurmountable challenges.

CCD’s most immediate Achilles’ heel is that it seems counterintuitive to assimilate corporations to natural persons (or individual citizens). The latter create and ground the legal order and thus are sensibly viewed as partly prior or superior to it. In contrast, corporations are artificial creations of that order and standardly viewed as strictly bound to its legal contours (Pollman 2019: 751). While natural persons have a right to oppose unjust laws and institutions designed to serve their ends, incorporation laws permit ‘no corporate acts other than those that comply with the law’ (Ripken 2024: 278). The concept of legal incorporation, in sum, appears categorically to prohibit corporate illegality.

Moreover, the idea that corporations possess moral conscience or subjectivity is controversial; attempts to ascribe moral capacities to them have been widely contested (Ripken 2019: 67-83; Rönnegard 2013; Velasquez 2003). Even those theorists willing to attribute normativity to collective corporate agents observe that modern business corporations generate special dilemmas in view of the power inequalities in which they are implicated. Since corporations likely dominate those dependent on them, for example, they do not deserve equal standing with individuals (List and Pettit 2011: 181)

To be sure, businesses prefer to dress up legal violations in the language of the public good and act openly. Yet, for both organizational and broader economic reasons, they chiefly pursue ‘strategic advantage’ and prioritize profitability (Pollman 2019: 759; Greenfield 2018). The public-mindedness associated with CD clashes with the structural incentives of existing for-profit business enterprises. Fidelity to law requires of companies practicing CD that they accept legal sanctions. However, doing so seems problematic in the context of CCD. Corporations cannot be imprisoned, and when illegalities transpire it is often difficult, give the complexities of corporate organization, to identify the relevant decision makers and then hold them responsible (Pollman 2019: 755–56). Sanctioning the collective legal person of the corporation risks punishing those (e.g. lower-level employees, shareholders) who typically had no say in lawbreaking.

Finally, CD is conventionally understood as a political tool of the weak and excluded. But many and perhaps most business organizations are anything but. CD aims to level a political playing field unfairly blocked or even rigged by powerful groups. However, most corporations already possess sizable political advantages. Most likely, CCD will simply invite corporate legal evasion and undermine democratic government’s frequently precarious attempts to engage in necessary regulatory oversight.

To her credit, Ripken openly concedes the existence of morally and politically consequential divergences between natural persons and business corporations. Nonetheless, she argues, it still makes sense to see some of their acts ‘as a form of resistance akin to civil disobedience’ (2024: 279). Those who reject CCD as incoherent rely on a contestable interpretation of corporate personhood as a mere statutory creation; competing models – for example, the corporate person as an aggregate of its individual members – pose fewer difficulties for CCD (2024: 279). One need neither assimilate corporate moral agency to conscientious individuals nor get bogged down in longstanding philosophical disputes about collective responsibility. What counts is the pragmatic observation that ‘the same social values, principles, and goals’ can be achieved in CCD as in CD’s standard versions, and hence that CCD merits ‘similar consideration and treatment’ (2024: 280–81).

On Ripken’s reading of recent SCOTUS jurisprudence on corporate rights, they are denied the intrinsic dignity of natural persons. Nevertheless, they are still viewed as engaging in expressive activity having value in the marketplace of ideas and therefore deserving of First Amendment protections (2024: 249). Analogously, CCD makes potentially vital contributes to political debate even as we acknowledge differences between natural individuals and corporations. To be sure, business enterprises seek profitability. However, the imperatives of profitability sometimes mesh with the public good. CCD, at any rate, guards against narrowly self-interested lawbreaking by insisting that it always take an open, public character (Ripken 2019: 78; also, Ostas 2010). Even if companies cannot be imprisoned and legal sanctioning is more complicated than vis-a-vis natural persons, they potentially ‘face heavy fines and penalties, damage to reputation, loss of market share and goodwill, the revocation of vital licenses and permits, and even involuntary dissolution’ (Ripken 2024: 283). While some corporations are large and powerful, they come in different shapes and sizes. We cannot a priori declare that small, privately held companies, for example, are not disadvantaged or subject to unjust policies. Despite some political perils, Ripken concludes, ‘a form of civil disobedience by corporations might have some value and should not be ruled out entirely’ (2024: 285).

III. Against corporate civil disobedience

Why the occasionally cautious tone of Ripken’s endorsement of CCD, despite what otherwise represents a decidedly robust defence? It probably stems from a tendency to acknowledge differences between and among small businesses, including closely held corporations, and large, publicly traded corporations, while nonetheless eliding the resulting implications. For example, when describing corporations as potentially weak and disadvantaged, Ripken references the example of small business, before quickly insisting that large corporations should also be viewed as potential agents for CD. Why? Even they sometimes effectively support the disadvantaged, precisely because ‘the power and influence of large corporations…make the government more likely to listen and be responsive’ (Ripken 2024: 282). While pragmatically sound, this claim sidelines traits of publicly held corporations that pose some serious problems. ⁶

For example, we cannot discard the criticism that CCD is inconsistent with incorporation by simply jettisoning views of corporate personhood as nothing but artificial and dependent statutory creations for a rival aggregational or associational account. On the competing aggregational view, corporate personality is viewed as intimately linked to some collection of real individuals (Ripken 2019: 29-39). As analyzed by Ripken in Corporate Personhood (2019), even as that aggregational view has been at the core of controversial SCOTUS rulings on corporate rights, it remains disconnected from the realities of large, publicly traded corporations:

As the size of the corporation grows, the aggregate theory loses some of its practicality, and some perplexing questions arise. Which individuals are the relevant ones for the purposes of the aggregation: the original individuals who started the corporation…or the individuals who currently own the corporation’s stock…? [What about] employees, creditors, and suppliers? If the corporation is merely the sum of its individual members, how can the corporation remain the same person when some or all of its individual members change or depart? (Ripken 2019: 33)

In part precisely for this reason the emergence of large-scale, bureaucratically structured corporations in the 20^th century undermined the popularity of aggregational and associational ideas of personhood: they mesh badly with the realities of large, hierarchical publicly traded firms that cannot reasonably be viewed as linked to – or extensions of – some small group of individuals. When SCOTUS grants corporations free expression or religious liberty rights by appealing to the aggregate model, it relies on old-fashioned ideas of corporate personality that distort contemporary material realities (Ripken 2019: 202–3). Unfortunately, Ripken’s defence of CCD depends on a more favourable – but less sound – view of SCOTUS corporate rights jurisprudence (2024: 280–81).

The more sceptical take is superior. Legal scholar Adam Winkler shows how US business corporations have exploited flawed ideas about legal personality to gain the same rights as individuals; to a remarkable extent they have succeeded in doing so. Most infamously perhaps, Citizens United v. Federal Election Commission (2010) opened the door to unchecked corporate money in US electoral campaigns and disturbingly plutocratic political trends. ⁷ Citizens United – characterized by Winkler as ‘the culmination of a two-hundred year struggle for constitutional rights for corporations’ – taps aggregational views of corporate personhood, with the late Justice Anthony Kennedy’s majority opinion going so far as to describe corporations as persecuted or ‘disfavored speakers’, a claim that strongly suggests that he might have been residing in some alternative universe in which large-scale business enterprises had never emerged (Winkler 2018: 369). Citizens United and related recent rulings have dramatically empowered corporations by viewing them as nothing more than small groups of individuals, for example, owners or shareholders. Because corporate persons are structurally akin to actual individuals, SCOTUS has argued, they should enjoy basic rights to free expression, religious liberty, and so on. This conflation of the corporation as a legal entity with natural persons arguably makes some sense with reference to small-scale, closely held incorporated businesses, where core attributes of proprietorship, as traditionally conceived, sometimes remain in place. However, the inference that our complex, transnationally operating corporate-dominated economy consists of little more than a collection of mom-and-pop businesses or small closely held companies remains specious.

CCD’s defenders sideline this and some closely related problems. For example, Ripken concedes that in publicly traded companies shareholders exercise little control over managers, a trend identified many decades ago by Adolf F. Berle and Gardiner C. Means in their landmark The Modern Corporation and Private Property (1967 [1932]). Corporate managers pursuing CCD will likely prove unaccountable even to most shareholders, who typically have little say in corporate decision making, let alone workers and affected local communities. This enigma is brushed over by Ripken’s rejoinder that in many other large organizations, including the Democratic Paty and Catholic Church, decisions are frequently made even when members vehemently disagree (Ripken 2024: 284). That response downplays major differences between and among organizations’ relationships to their constituent members: one need not idealize political parties to recognize that party leaders, in principle, are accountable to members and activists, who usually have opportunities to check leaders in ways that do not obtain within large for-profit corporations. Revealingly, most shareholders are no longer typically individuals but large institutional investors (pension funds, mutual funds, hedge funds) who ‘own’ stocks for fleeting periods of time: ‘most shares change hands at least once a year’ (Ciepley 2013: 148). Those with pension funds invested in large firms, for example, often cannot even name them. The premise that they – or even their fund managers – control or oversee them, too often, is a fairy tale. Consequently, CCD will likely transpire at the behest of corporate managers, whose decisions are made over the heads of a wide range of potentially impacted constituents.

The situation looks somewhat different in closely held, oftentimes family corporations, in which a limited group of stockholders may be more involved in decision making. But even there, employees, consumers, and other impacted groups can be negatively impacted without opportunities for redress. In contrast to small mom-and-pop businesses (some of which remain legal partnerships and never incorporate to begin with), many closely held corporations are large scale, bureaucratic, hierarchical organizations. Despite Hobby Lobby’s 46,000 employees and 100 stores, for example, in Burwell v. Hobby Lobby (2014), SCOTUS granted it religious exemptions to Obamacare contraception regulations, highlighting the sectarian views of its evangelical Christian owners and ignoring workers’ own religious views and preferences. ⁸ Denied labour union protections, Hobby Lobby employees had no voice in management’s decision to aggressively take on Obamacare. Although Hobby Lobby owners never claimed to be pursuing CD, the Hobby Lobby case highlights the very real prospect that CCD, even when pursued by privately held companies, entails politically motivated lawbreaking at the behest of a handful of privileged, typically wealthy owners, acting in the name of a corporate legal person whose own constituents may be badly impacted.

None of this will come as a surprise to scholars who view modern business corporations as private governments exercising wide-ranging authority over workers, consumers, and local communities. Unfortunately, CCD’s defenders make short shrift of that venerable line of inquiry (Ripken 2019: 125). Corporations are, of course, economic institutions preoccupied with efficiency and profit-making. They also constitute micro-level private governments or sovereigns that systematically accumulate and exercise power, both internally and externally. Some of them control more resources and consequentially impact more people than national governments. Modern corporations possess apparatuses ‘for ratifying and making legitimate the basis choices of the collectivity’, and thus identifiably internal legislative powers, bureaucracies, and rewards and punishments to induce obedience (Latham 1959: 223; also, Lakoff 1973; McConnell 1966). They ‘issue orders, backed by sanctions’, with those subjected to them frequently having no voice in their operation (Anderson 2017: 45). Although in principle only states possess a monopoly on violence, many companies – including some closely held businesses – have ‘command of forces that commit violence when this ultimate resort seems necessary’ (Latham 1959: 253). When push comes to shove, they may be able to deploy private security forces when fearing property harms or occupations by labour militants or others. Even if corporate sanctioning mechanisms are not equivalent to state violence, they remain imposing and frequently decisive: ‘Because it controls all the income in the society, [the corporation] pays more to people who follow orders particularly well and promotes them to a higher rank’ (Anderson 2017: 39).

In principle, dissatisfied corporate constituents can exit any given private government whenever they desire. However, especially for employees, exit options are ‘often so costly, in every sense, that membership is for all practical purposes compulsory’, and thus ‘not significantly more voluntary or less compulsory than citizenship in a municipality or perhaps even in a country’ (Dahl 1985: 114–15). ⁹ Even when such options exist, ‘immigration’ usually involves little more than ‘moving’ to another similarly autocratic corporate private government (Anderson 2017: 38). Local communities directly impacted by corporate private governments have even fewer options: not they, but many corporations, have the option to ‘exit’ when the relationship goes sour.

Where strong labour unions restrain management, or the law protects workers’ rights and mandates participation in decision making, private government is reined in and potentially serves a wider range of constituents and interests. In the US, however, unions now represent a paltry 10% of US employees. The result is too many workplaces that take the form of what Elizabeth Anderson calls ‘dictatorships, in which bosses govern in ways that are largely unaccountable to the governed’ (Anderson 2017: xxii). Basic civil and political rights are only protected to a limited degree for employees within private businesses. Absent robust labour unions, or the protections (e.g. codetermination) workers elsewhere may enjoy, most US workers are at the whims of management. Many and probably most for-profit business enterprises, including many closely held corporations, remain coercive private governments. What this means is that any decision to pursue CCD will effectively be made by relatively unaccountable corporate managers or a small group of stockholders.

These realities also challenge any view of CCD as strictly nonviolent. Many standard interpretations of CD identify more-or-less close links between coercion and violence. Corporate leaders, at any rate, exercise substantial coercion vis-à-vis employees and even many stockholders. In relation to broader communities as well, they possess impressive power advantages: they can effectively force local communities and state governments, for example, into providing tax breaks by threatening to move elsewhere. It would be naive to idealize CD’s standard carriers – for example, nonviolent social movements. They, too, sometimes exercise coercion; leaders may be insufficiently accountable to the rank-and-file. But only in a night in which all cows are black could we possibly ignore structural divergences: large-scale, bureaucratically organized corporate private governments and relatively loose, nonbureaucratic nonviolent political movements remain different creatures.

The facts of corporate governance also clash with the traditional view of CD as an instrument of the weak and disadvantaged, and thus a means to level an otherwise unequal playing field. To be sure: politically motivated lawbreaking by some small businesses, in principle, can be credibly interpreted along such lines. Their resources are limited and economic status sometimes precarious. A mom-and-pop store, for instance, represents a relatively immediate extension of its proprietors and their life-plans. I cannot explore the pertinent property theories, but they sometimes delineate small businesses from large-scale corporations, on both solid normative and organizational grounds (Scheuerman 2026: 146–66). Some small businesses, crucially, are not legally incorporated and thus do not benefit from limited liability. When pursuing CD, owners will suffer direct economic repercussions and may be forced to pay a steep price. Unlike CCD by large businesses, it will be relatively easy to identify and sanction key agents. Their lawbreaking might more plausibly fall under the rubric of moral responsibility and perhaps conscientiousness.

For example, during the US Civil Rights Movement, the Americana and Peachtree Manor hotels in Atlanta, as well as the Green Frog restaurant, refused to respect segregation laws. Though their acts are now widely admired, these relatively small, family businesses paid a high price at the time: they faced picketing and boycotts from white supremacists as well as significant economic losses. Yet, their owners recoiled at segregation and viewed their acts as morally and politically necessary (Ripken 2024: 269). Civil rights activists rightly viewed them as crucial political allies.

Such cases raise complicated questions. When does potentially legitimate lawbreaking by a small business, for example, shade into a more worrisome version of CCD by a coercive private government? It will sometimes be difficult to draw clear lines; attention will have to be paid to the economic and organizational specifics of the business enterprise at hand. Messy empirical and prudential judgements are likely to be part of the equation. Nonetheless, political lawbreaking initiated by corporate managers or privileged capitalists typically represents a very different creature: under ordinary liberal democratic conditions, they are rarely disfavored or disadvantaged political players.

More fundamentally perhaps, organizational realities counter any claim by most corporations to possess moral conscientiousness. Business leaders and investors often take moral and political positions and pursue socially responsible policies in ways that many of us may find appealing. However, since the idea of corporate moral identity presupposes some, however limited, ‘deliberative process and reason-responsiveness’, private government generates deep problems: this is a ‘deliberative process’ in which key constituents voices (e.g. shareholders, employees) may be systematically excluded and probably never heard (Ripken 2019: 79). Give its limited and exclusionary nature, deliberation is unlikely to culminate in a general or common interest. Corporate legal personality, too often, masks the fact that those engaging in the requisite moral (and political) deliberation constitute a small, relatively unchecked, economically privileged elite; its results are likely to be correspondingly narrow-minded.

Parties and mass political movements frequently fail to pass basic democratic tests as well: since Robert Michels, we know they suffer from autocratic tendencies (Michels 1966 [1911]). But there nonetheless remain differences between corporations structurally organized in basically autocratic ways, and those institutions or movements that aspire for popular control but fail to realize it sufficiently. Even if some real-life cases blur the divide, most probably will not: whatever its flaws, the Georgia NAACP or Michigan Democratic Party, for example, remain more accountable to key constituents than General Motors.

This hard-headed view of corporate realities also suggests why it seems dubious to interpret business corporations as having a sufficient capacity for civility and public-minded CCD: ‘Under current law and norm, executives are obligated to look after the interests of shareholders first and foremost’ and privilege the quest for profitability (Greenfield 2018: 26). Historically, CCD has generally aimed at advancing private corporate interests, not the common good (Winkler 2018). Corporate interests may, at times, overlap with a credible view of the public good, but their pursuit is hemmed in by careful attention to the economic and financial ‘bottom line’. Revealingly perhaps, during President Trump’s first term, some corporate leaders spoke eloquently in opposition to some policies (on immigration, for example), and some toyed with the idea of pursuing CCD. Under his second term, however, many of the same players have sought favour with Trump, or at least tried to stay below the radar to avoid being targeted (Jones 2025). Under Trump 1.0, bold public statements – and, potentially, CCD – were viewed as consistent with corporate profitability, whereas under Trump 2.0 corporate managers and proprietors fear that doing so will come at an excessively high price.

In sum, CCD seems most likely to provide many already well positioned business corporations with a new weapon to evade the law and shape public opinion, in ways that should worry anyone committed to political equality. ¹⁰ For reasons I will shortly explore, it cannot be recommended for a more-or-less well-functioning democratic polity.

The case of small business, as already noted, is more complicated. Moreover, some of CCD’s flaws might be attenuated if corporations were structured, legally and organizationally, very differently than at present. If, for example, they were legally mandated to guarantee effective participation in decision making by employees, affected consumers, and communities, their internal deliberations might better meet some basic moral and political tests. Under those circumstances, they might not be as single-mindedly focused on profitability and increasing shareholder value, for example. If, as Kent Greenfield has suggested, corporations were more like ‘real people’ capable of practicing citizenship and deserving of basic political liberties, their possession of such right might make more sense (Greenfield 2018: 209). Perhaps then CCD might also gain the normative basis it presently lacks.

That, however, is not the economic universe in which we find ourselves. We should be careful what we wish for: CCD risks inviting the powerful and privileged selfishly to evade the law. Even worse, it allows them to do so while appropriating the venerable legacy of Gandhi and Dr. King.

IV. Corporate civil disobedience and democratic backsliding

Rawls, as previously noted, sometimes appeared in principle open to the prospect of CD by a multiplicity of legal persons, including ‘nations, provinces, business firms, churches, teams, and so on’ (1999 [1971]: 193–94; also, French 1979; Gerencser 2005). Yet he ultimately rejected it. Theory of Justice describes CD as ‘designed only for the special case of a nearly just society’, that is, one that is basically liberal democratic, ‘although serious injustices may nonetheless exist’ (1971 363, 382). CD represents a practice for free and equal citizens, in which a political minority relies on a common sense of justice to appeal to a powerful majority to recognize its errors and correct for some egregious injustice (1971: 363). The standard reading of Rawls’ theory of CD as concerning natural persons – and, indeed, liberal democratic citizens – is easily buttressed by his choice of terms, for example, his general tendency to equate free and equal persons with human individuals, and many of his examples, none suggesting anything along the lines of institutional or corporate CD.

Why did Rawls move away from more inclusive notions of personhood? Undoubtedly, his reasons derive from his deeply rooted humanism and individualism (Pogge 1989: 112–14). But even ‘Justice as Reciprocity’ (1999 [1971]), despite the caveat that ‘persons’ potentially encompass institutions and collective agents, succinctly hints at one of them. There Rawls describes ‘a certain logical priority to the case of human individuals: it may be possible to analyze the actions of so-called artificial persons as logical constructions of the actions of human persons, and it is plausible to maintain that the worth of institutions is derived solely from the benefits they bring to human individuals’ (1999 [1971]: 194). Stated bluntly, even if we endorse an agnostic view of ‘persons’, artificial persons (e.g. corporations) lack the normative primacy enjoyed by human individuals. As human artifices or constructs, their worth depends on possible benefits accruing to human beings. They serve those they create and should be evaluated accordingly.

Of course, Rawls never addressed the thoughtful arguments now being made for CCD; his influential reflections about CD emerged before an increasingly conservative SCOTUS granted wide-ranging political rights to corporations. But there are good for suspecting that he would have been sceptical of moves to assimilate corporate persons to citizens and other individuals, given his association of ‘moral persons…entitled to equal justice’ with individual human beings, along with his sensible intuition that artificial persons are to be judged solely with reference to benefits that may – or may not – accrue to their human creators (Rawls 1999 [1971]: 19, 505–6).

In fairness, CCD’s proponents acknowledge differences between natural persons and corporations. Yet the general thrust of their exposition blurs them in ways that threaten citizens and other natural persons. Large corporations already marshal massive resources allowing them to exercise disproportionate political influence; CCD risks aggrandizing political inequality. Private government gives managers and privileged proprietors direct and sometimes autocratic power over employees and others. That authority extends well beyond the workplace. In the US, for example, employers ‘have the legal authority to regulate workers’ off-hour lives as well – their political activities, speech, choice of sexual partner, use of recreational drugs, alcohol, smoking, and exercise’ in ways inconsistent with basic commitments to equal freedom (Anderson 2017: 39). CCD is most likely to provide new opportunities for these privileged, well positioned micro-sovereigns to evade general laws. By attributing moral conscientiousness and responsibility to large-scale business corporations, we whitewash messy, less morally appealing organizational realities that arguably do not benefit everyone impacted.

One key feature of Rawls’ influential account, however, may provide more room for CCD. He identified, as noted, an intimate link between CD and ‘nearly just’ liberal democracies. 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’, operating ‘within the limits of fidelity to law, CD rested on fundamental respect for the rule of law, which Rawls sensibly viewed as essential to liberal democracy’ (Rawls 1971: 235-42; 366). CD is primarily political and therefore public since it represents a ‘mode of address’ akin to political speech, by means of which political minorities make a public appeal. Violence, ‘especially against persons’, is incongruent with civility and the basic respect owed political equals and therefore prohibited (Rawls 1971: 366). Civil disobedients are expected to act publicly, nonviolently, and face legal repercussions: only then do their acts accord with liberal and democratic ideals of free and equal political membership, decision making as based on reasonable exchange, public accountability, and the rule of law.

Because Rawls envisioned what we might describe as an elective affinity between liberal democracy and CD, he underscored that his account was ‘designed only for the special case’ of a basically well-ordered liberal polity (1971: 363). ¹¹ The flip side of this view, however, is that outside liberal democracy, militant, potentially violent resistance becomes in principle acceptable. In unjust and undemocratic contexts, violent, legally evasive ‘acts of disruption and resistance’, some of which might pave ‘the way for radical or even revolutionary change’, are allowed (Rawls 1971: 367–68). Moral as well as prudential grounds might understandably discourage political actors from embracing secrecy, legal evasion, or violence. Yet on grounds of political justice, no principled reasons for doing so exist. Under autocratic conditions, militants can pursue a wide variety of otherwise impermissible protest acts, many likely falling under the rubric of what Candice Delmas dubs ‘uncivil disobedience’ (Delmas 2018). For Rawls, after all, ‘unjust social arrangements are themselves a kind of extortion, even violence, and consent to them does not bind’ (Rawls 1971: 343).

Rawls’ view of CD remains controversial; it has been widely – and sometimes legitimately – criticized. Nonetheless, it astutely highlights a problem many people are now facing. Some erstwhile liberal democracies (e.g. Hungary, India) occupy something like a halfway house on the road to full-scale autocracy. If President Trump and his allies succeed in obliterating longstanding democratic norms and institutions, the US will likely join their ranks. There are differences, to be sure, between regimes undergoing democratic decay and those, along the lines Rawls likely had in mind when describing militant protest, that are already essentially authoritarian. This is not the place to explore the many tough questions raised by democratic backsliding and looming authoritarianism (Schedler 2024). Nonetheless, on Rawls’ sensible logic, dramatic cases of backsliding might suggest that some familiar restrictions on legitimate political lawbreaking no longer fully apply: activists become free to pursue CD, but they can also rightfully opt for more militant modes of protest.

This would also mean that my reservations about CCD potentially lose some of their force. For many reasons, CCD – unless pursued by small business – remains both theoretically untenable and normatively suspect. Since looming authoritarianism likely calls for relaxing CD’s strict conditions, however, CCD’s failures to live up to demanding notions of civility, conscientiousness, publicity, nonviolence, and legal fidelity become less worrisome. If we no longer find ourselves in a basically democratic order, for example, we have less reason to worry about CCD’s incompatibility with political equality, so long as its practitioners make a good faith effort to resist authoritarianism. Autocratic corporate private government would remain a concern. On pragmatic and strategic grounds, however, we might see it as provisionally unavoidable and instead focus on encouraging corporate managers and owners to aid the prodemocracy cause. We might not have the time or privilege to criticize misleading appeals to so-called corporate conscientiousness or moral responsibility; we would be satisfied if big businesses just did the right thing in the battle for democracy.

Of course, large-scale corporations often thrive under (right-wing) dictatorships. It is naïve to expect them to lead the political battle. By the same token, under increasingly authoritarian conditions democracy’s friends need to make use of a wide range of otherwise unpalatable political weapons. In principle, CCD might prove less morally troublesome than some possible alternatives – for example, destructive sabotage or organized violence targeting regime supporters.

In dark political times, democracy’s allies need all the help they can get. Let’s hope that democratic backsliding can be successfully disrupted and reversed, and citizens not forced to face these and many other difficult and probably tragic choices.