Editing Civil disobedience (section)

== Legal theory ==
Governments have generally not recognized the legitimacy of civil disobedience or viewed political objectives as an excuse for breaking the law. Specifically, the law usually distinguishes between [[criminal motive]] and [[intention (criminal law)|criminal intent]]; the offender's motives or purposes may be admirable and praiseworthy, but his intent may still be criminal.<ref>{{citation|title=Reconstructing the Criminal Defenses: The Significance of Justification|author=Thomas Morawetz|publisher=The Journal of Criminal Law and Criminology|volume=77|issue=2|date=Summer 1986|pages=277–307}}</ref> For example, a protester may be ''motivated by'' a desire to increase awareness about an injustice and ''intend'' to block traffic on a street, and it is the intention, rather than the motivation, that is criminally significant. Hence the saying that "if there is any possible justification of civil disobedience, it must come from outside the legal system."<ref>{{citation|author=Arthur W. Munk|title=Civil Disobedience: Conscience, Tactics, and the Law|publisher=Annals of the American Academy of Political and Social Science|volume=397|date=Sep 1971|pages=211–212}}</ref>

One theory is that, while disobedience may be helpful, any great amount of it undermines the law by encouraging general disobedience which is neither conscientious nor of social benefit. Therefore, conscientious lawbreakers must be punished.<ref>{{citation|title=Legal Toleration of Civil Disobedience|author=Robert T. Hall|publisher=Ethics|volume=81|issue=2|date=Jan 1971|pages=128–142}}</ref> 

Courts have distinguished between two types of civil disobedience: "Indirect civil disobedience involves violating a law which is not, itself, the object of protest, whereas direct civil disobedience involves protesting the existence of a particular law by breaking that law."<ref>{{cite court|litigants=U.S.  v. Schoon|vol=939|reporter=F2d|opinion=826|date=29 July 1991|url=http://openjurist.org/939/f2d/826/united-states-v-d-schoon}}</ref> 

During the [[Vietnam War]], courts typically refused to excuse the perpetrators of illegal protests from punishment on the basis of their challenging the [[legality of the Vietnam War]]; the courts ruled it was a [[political question]].<ref>{{citation |author=Hughes, Graham |title=Civil Disobedience and the Political Question Doctrine |volume=43 |page=1 |year=1968 |url=http://heinonlinebackup.com/hol-cgi-bin/get_pdf.cgi?handle=hein.journals/nylr43&section=11 |access-date=30 May 2020 |archive-url=https://web.archive.org/web/20180705063043/https://heinonlinebackup.com/hol-cgi-bin/get_pdf.cgi?handle=hein.journals%2Fnylr43&section=11 |archive-date=5 July 2018 |url-status=dead |publisher=N.Y.U. L. Rev.}}</ref> The [[necessity (criminal law)|necessity]] defence has sometimes been used as a [[shadow defence]] by civil disobedients to deny guilt without denouncing their politically motivated acts, and to present their political beliefs in the courtroom.<ref>{{citation |author=Steven M. Bauer and Peter J. Eckerstrom |title=The State Made Me Do It: The Applicability of the Necessity Defense to Civil Disobedience |date=May 1987 |volume=39 |issue=5 |pages=1173–1200 |publisher=Stanford Law Review}}</ref> Court cases such as ''[[United States v. Schoon]]'' have greatly curtailed the availability of the political necessity defence.<ref>{{citation |author=James L. Cavallaro Jr. |title=The Demise of the Political Necessity Defense: Indirect Civil Disobedience and United States v. Schoon |date=Jan 1993 |volume=81 |issue=1 |pages=351–385 |publisher=California Law Review}}</ref> Likewise, when Carter Wentworth was charged for his role in the [[Clamshell Alliance]]'s 1977 illegal occupation of the [[Seabrook Station Nuclear Power Plant]], the judge instructed the jury to disregard his [[competing harms]] defence, and he was found guilty.<ref>{{Citation |author=Robert Surbrug |title=Beyond Vietnam: The Politics of Protest in Massachusetts, 1974–1990}}</ref> [[Fully Informed Jury Association]] activists have sometimes handed out educational leaflets inside courthouses despite admonitions not to; according to the association, many of them have escaped prosecution because "prosecutors have reasoned (correctly) that if they arrest fully informed jury leafleters, the leaflets will have to be given to the leafleter's own jury as evidence."<ref>{{Cite web |title=If You are Facing Charges |url=http://www.fija.org/docs/JG_If_You_are_Facing_Charges.pdf |url-status=dead |archive-url=https://web.archive.org/web/20100820202006/http://www.fija.org/docs/JG_If_You_are_Facing_Charges.pdf |archive-date=20 August 2010 |access-date=19 July 2010}}</ref>

Along with giving the offender his [[just deserts]], achieving [[crime control]] via [[incapacitation (law)|incapacitation]] and [[deterrence (law)|deterrence]] is a major goal of [[criminal punishment]].<ref>{{usc|18|3553}}</ref><ref>{{citation |title=3. The Basic Approach (Policy Statement) |url=http://www.ussc.gov/2009guid/1a1.htm |archive-url=https://web.archive.org/web/20100619095931/http://www.ussc.gov/2009guid/1a1.htm |archive-date=19 June 2010 |url-status=dead |publisher=2009 Federal Sentencing Guidelines Manual}}</ref> Brownlee says "Bringing in deterrence at the level of justification detracts from the law's engagement in a moral dialogue with the offender as a rational person because it focuses attention on the threat of punishment and not the moral reasons to follow this law."<ref name="Brownlee" />