The Power of Perspectives

The Canadian Bar Association

Léonid Sirota

Civil disobedience in the Age of Uber

August 6 2015 6 August 2015

“Law never made men a whit more just; and, by means of their respect for it, even the well-disposed are daily made the agents of injustice.” – Henry David Thoreau

The champions of the “sharing economy” ― and in particular Uber, which is the lightning rod for such attacks ―, are frequently criticized for not abiding by the laws that regulate the economic activities which they seek to disrupt. The critics, such as Frank Pasquale and Siva Vaidhyanathan, the authors of a vituperative op-ed in the Guardian, can concede that the laws are obsolete or otherwise bad, but Uber and its fellows ought, they say, seek to have them overturned by the normal democratic procedures. They see Uber’s attempt to put politicians before the fait accompli of its popularity, and so to force their hand, as a sort of undemocratic dirty trick.

The critics are wrong. The Uber method is not, contrary to what they might think, new. More importantly, it is not reprehensible. To the extent that it is flouting the law (although, as we know, that extent is contested, and sometimes not as substantial as authorities like to think), Uber is effectively engaged in a civil disobedience campaign. There is nothing inherently illegitimate about such a tactic ― even if it is pursued by a corporation looking to make money for its shareholders.

What profs. Pasquale and Vaidhyanathan describe as corporations’ “attempt[s] to establish their services” ― or, in other cases, products ― “as popular well before regulators can get around to confronting them [so that], when officials push back, they can appeal to their consumer-following to push regulators to surrender” is not an innovation. As they note, Google has been using it for a long time. But the creators of many other innovative products and services have relied on it too. The first carmakers did not wait around for legislatures to decide what to do to prevent their products from frightening horses ― the source of most early automobile-related litigation. The makers of the first VCRs did not wait for legislation settling one way or another the issue of their product’s potential copyright infringement. They simply put their inventions on the market ― and created constituencies of users in the process.

And there is nothing wrong with acting in this way. There would, surely, be nothing wrong with a corporation launching an advertising campaign asking people to tell their legislators to enact regulations favourable to their products or services. What’s wrong then with letting people use these products or services, instead of just talking up their virtues? People cannot know whether they care about a technological innovation until they have started using it. Getting them to do so is the sensible thing to do.

But what of the cases where putting a product or a service on the market is not only an attempt to cut through the regulatory uncertainty, but actually goes against the existing rules? There is a name for the “public, non-violent and conscientious breach of law undertaken with the aim of bringing about a change in laws or government policies” ― it’s called civil disobedience.

The law is, generally, a rough approximation of a community’s judgment about what morality requires us to do for or to refrain from doing to each other. Of course, members of the community disagree about the requirements of morality, and the law is only a temporary settlement of that disagreement. But, precisely because we disagree, we normally prefer having our conduct judged for its compliance with the common standard of the law, and not with the individual standards of our fellow citizens’ moral views. The law is a protection against the judgment of people who disagree with us about right and wrong. A person who engages in civil disobedience chooses to renounce that protection. “The law,” such a person says, “is unjust, and I will be better off relying on my fellow citizens’ moral judgment instead of the legal judgment of their courts.”

This is what the sharing economy firms, including Uber, do. They act on the principle that the laws that prevent them from operating by prohibiting consensual transactions that harm no one are unjust. In the case of Uber, the taxi regulations which it is flouting are restrictions on the liberty both of would-be drivers and of would-be passengers. These restrictions serve no public interest. They only protect the private benefits of the existing taxi service providers. They are indefensible in a free society. Uber can, not unreasonably, hope that most citizens will see its actions in this light.

Profs. Pasquale and Vaidhyanathan are furious at comparisons between Uber’s campaign of disobedience and the civil rights movement. Such comparisons are, indeed, preposterous. The infringements on people’s liberty that result from taxi regulations, noxious and senseless though they are, cannot be weighed on the same scale as the systematic exclusion of millions of people from virtually all aspects of political, social, and economic life. But this is not what attracts profs. Pasquale and Vaidhyanathan’s ire. Rather, they can’t stomach the thought of “[c]ompanies acting out of self-interest comparing themselves with the noble heroes of civil rights movements.”

Yet there is no contradiction between acting out of self-interest and opposing injustice. Most of those who fought for civil rights stood to benefit from the success of their movement. Being able to vote, being able to go to decent schools, and not being turned away from jobs was going, they hoped, make them better off. So what? Some of the benefits they hoped to reap were of an economic nature. Martin Luther King complained of African Americans “liv[ing] on a lonely island of poverty in the midst of a vast ocean of material prosperity.” So what again? That does not make the injustices that he opposed less ignominious, or his cause less noble.

Again, my point is not that the situation of Uber, its drivers, or its customers (of whom I am one) is at all comparable to that which the civil rights movement was facing. It is that our complaint, though it has of course to be judged on its own terms and not by association with the noble heroes of the past, cannot be dismissed simply by impugning its motivations. Self-interest, as Adam Smith observed long ago, feeds the world. It can also make the world freer, and more just.

In a society committed to the Rule of Law, it is always disquieting to see the law broken, and especially deliberately broken. We generally benefit tremendously from resolving our disagreements about justice through the legal system. But we must not forget that law is not justice. We must also not forget that the law is susceptible of being deliberately manipulated by persons, organizations, and groups who seek to advance their interest at the expense of the community. As a result, some laws, far from being even approximations of justice, however imperfect, are nothing better than the tools of greed or prejudice. Furthermore, the democratic process can fail spectacularly at correcting these injustices, not least because those who are not directly, or visibly, affected by them simply fail to realize that they are taking place. When people break such laws in order to attract attention to the issue, and ask us to suspend our normal belief in the rough correspondence between law and justice to exercise our faculty of moral judgment, we should not sneer at them because they would benefit if we agree with them. We owe it to them and to ourselves to take their claims seriously, albeit critically, because they are alerting us to the fact that an injustice might be taking place ― that an injustice might be being done in our names. As Henry David Thoreau pointed out, by deferring unthinkingly to an unjust law’s authority, we only perpetuate and make ourselves complicit in the injustice. That is no less true in 2015 than it was in 1848.

National Magazine covers legal trends and issues. Any opinions expressed are the author’s own.

Photo licensed under Creative Commons by Koala Yummies

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Léonid Sirota teaches constitutional law at the AUT Law School in Auckland, New Zealand. He blogs at doubleaspectblog.wordpress.com / Léonid Sirota enseigne le droit constitutionnel à la AUT Law School à Auckland, en Nouvelle-Zélande. Il est l’auteur du blogue doubleaspectblog.wordpress.com.

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