Social protest and the use of force

Juan Francisco Lobo

Juan Francisco Lobo

Academic Coordinator at MOOC Chile
Lawyer, Universidad de Chile. Professor, Legal Theory, Universidad Diego Portales. Professor, International Criminal Law, Universidad Adolfo Ibáñez.
Juan Francisco Lobo

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    The unrest expressed through social protest in Chile has been on the rise during the year 2015, following up on the domestic and international trend started in 2011. In particular, I would like to refer to the acceptability of the recourse to force by actors of the student’s movement for a better education, a recourse known as “seizures” or “occupations” of educational quarters.

    When a person is asked about these measures, if the speaker disagrees with the occupation of educational quarters he or she will tend to express the question referring to a general practice: “Do you agree with occupations?” On the contrary, he or she who supports this kind of measures will try and present them as exceptional and of last resort: “Do you agree with the occupation?” As it is usually the case, the utterance of political concepts rarely is a neutral one.

    Indeed, asking about measures of force in social protest resembles the question for the action of killing someone. He or she who asks: “Do you agree with murder?” is implying that he or she disapproves the act of killing. Instead, he or she who asks “Do you agree with legitimate self-defense?” reveals his or her positive assessment of the fact, characterizing it from the start as “legitimate”. A third way would be to neutrally ask this question, which cannot be answered without additional information: “Do you agree with killing?” (The answer probably will be: “I generally disapprove it, but I admit there are some cases when it is necessary to do it, in light of the circumstances”). I think the question on measures of force in social protest should always be thus neutrally asked: “Do you agree with the use of measures of force in the exercise of social protest?” This proposition does not suggest in its own terms whether it approves or disapproves such measures, just as one cannot answer generally if killing is categorically good or bad.

    A few years ago I held that measures of force in social protest, particularly occupations (plural), were per se illegitimate. Today I have reached a “reflective equilibrium”: my original intuitions have been refined. If, as I believe, the most extreme form of violence in human interaction, war, is not mere bruit fact but an institutional fact that can and must be regulated, then an activity which – as suggested by Clausewitz – is intimately related to war, politics, may also be assessed under the light of similar principles.

    In this vein, I remember that Chilean professor José Zalaquett proposed to revisit John Rawls’ doctrine on civil disobedience by analogically applying the criteria for the use of force advanced by the just war tradition. Thus, faced with the question on the use of force in social protest (particularly the occupation of buildings), the criteria of just cause, legitimate authority, rightful intention, last resort and proportionality may help our good judgment in trying to answer whether this or that occupation can be qualified as legitimate or not in each case.

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