Resisting punishment as a rights-claiming activity
Grounded normative theory, civil disobedience, and the right to protest
Bibliographic Data
| ID | 19224937 |
|---|---|
| Authors | Daniel Edler Duarte (0000-0002-0138-2982, State University of Rio de Janeiro), Jonathan Havercroft (0000-0003-0995-8912, University of Glasgow), Susan Kang (0000-0003-3793-6681, John Jay College of Criminal Justice, corresponding author), Susan L Kang (John Jay College of Criminal Justice) |
| Year | 2026 |
| Pages | 1-19 |
| Publication date | 2026-06-05 |
| Peer Reviewed | Yes |
| Open Access | Yes |
| Type | ARTICLE |
| Venue | Journal of Human Rights (JOURNAL) |
| Journal identifiers | ISSN: 1475-4835 • E-ISSN: 1475-4843 |
| Publisher | Taylor & Francis (PUBLISHER • GB) |
| DOI | 10.1080/14754835.2026.2664208 |
| OpenAlex | W7163637649 |
| Language | EN |
| References cited | 32 |
International human rights norms protect the right to freedom of assembly, yet states increasingly use the legal system to criminalize dissent. A key philosophical idea used to distinguish “legitimate” from “illegitimate” acts of civil disobedience is the punishment proviso, which insists activists must willingly accept the resulting legal consequences of their actions. Building on grounded normative theory (GNT), we assess whether and when this proviso is consistent with contemporary protest rights. Drawing on 57 semistructured interviews with experienced protesters in Rio de Janeiro, London, and New York, we show that activists understand civil disobedience as extending into the legal process—through plea decisions, defenses, and refusals of sanction—rather than ending at arrest. We developed a rights-compatible refusal test (RCRT) that specifies conditions under which declining to accept punishment can be justified as part of rights-respecting civil disobedience: when procedures are unfair or discriminatory, legal sanctions are disproportionate or chilling of public assembly and freedom of expression rights, and defenders face reprisals, among others. Acceptance of punishment is neither necessary nor presumptively desirable as a criterion of legitimacy. Courts and prosecutors should evaluate protest cases through necessity, proportionality, and nondiscrimination rather than treating acceptance of punishment as a litmus test
Civil disobedience · Human rights · Litmus · Normative · Plea · Sanctions · Criminal Justice and Corrections Analysis · Law in Society and Culture · Political Conflict and Governance
The authority of lawEssays on law and morality
Contestation and Constitution of Norms in Global International Relations
Just Responsibility
The Practice of Global Citizenship
A Duty to Resist
A Theory of Justice
Civil Disobedience, Costly Signals, and Leveraging Injustice
Seeing Like an Activist
The Fight For Time
The Power of Nonviolence
Conscience and Conviction
Civil Disobedience and Deliberative Democracy
My body, my territory
Grounded normative theory and moral justification
Unearthing grounded normative theory
In Defense of Penalizing (but not Punishing) Civil Disobedience
Looking Forward to Justice
Recent Theories of Civil Disobedience
Whistleblowing as civil disobedience
Black Lives Matter and the Paradoxes of U.S. Black Politics
When Suicide Is Unjust Violence
Grounded normative theory and intellectual humility
Fieldwork in Political Theory
On (Not) Accepting the Punishment for Civil Disobedience
Political Theory in an Ethnographic Key
Another Realism
Why Political Philosophy Should Be Robust
Grounded Normativity / Place-Based Solidarity
| Citation velocity | historical |
|---|---|
| Highly cited | No |