Justification and The Capitol Riots
On January 6th, 2021, the Capitol building in Washington D.C. was stormed by a group of protestors motivated by the idea that their democratic election system had failed them. They intended to overturn what they believed was a fraudulent election by disrupting the democratic process of Congress’ counting of electoral votes to certify the election of President Joe Biden. In this paper, I will examine this event through the criteria as laid out in Jonathon Havercroft’s just riot theory and show the rioters’ actions and the riot itself was unjustified. I will also show how the pretenses for the riot begged the question, which also contributed to their riot being unjustified. Had these pretenses been different, it may have created circumstances that, in principle, would have justified their actions. I argue that had the motivations for rioting been different, their actions may have been justified and that because the Capitol riot did not satisfy such principles, it was unjustified. I will begin by providing a quick overview of the events on January 6th, 2021, which led to a protest to a riot. In part two, I will look at what defines civil disobedience, protests, and riots. Part three will look at the criteria that make up a justified riot and how these criteria apply to the capitol riots. In part four, I will discuss the conditions that could justify the capitol riots in light of the conditions discussed in part three. Part five will address what I feel is the biggest objection to my argument, and part six will be my concluding thoughts.
Part 1 — Overview of the event
On January 6th, 2021, the protest at the Capitol began as a gathering of supporters of then-President Trump to hear him give a speech and to protest what they were claiming was a fraudulent election process. This day also coincided with the meeting of congress to certify the election and officially proclaim President Joe Biden the winner. The protest then transitioned into a riot when a portion of the protesters stormed the Capitol building and attempted to thwart the democratic process of certifying the electoral results. Though they failed in their attempts to disrupt the certifying of the electoral results that day, the rioters did shed light on the impact a group of individuals can have when they are motivated by a united cause and belief in such. However, is there any way in which this situation can be viewed as justified? Could their actions, despite being illegal, somehow be viewed as necessary? First, I must address the group’s escalation, how their actions initially were considered a protest and how this protest became what I will call a riot.
Part 2 — Civil Disobedience, Protests, and Riots
Within a constitutional system, the idea is that the citizens under such a constitution will abide by its laws and receive the benefits provided by the institutions that also adhere to the guidelines of such constitution. Such a constitution will, in principle, provide for a more democratic style of governing by the institutions in which the considerations of the majority will make up both the rules of the land and the legislators who manage them. However, there will be times when communities within this democratic constitutional system may share a sense of injustice that the principles of social cooperation among free individuals are not being respected (Rawls 320). From these feelings within these communities follows a model of protest within a free society called civil disobedience. In John Rawls’ A Theory of Justice, he defines civil disobedience as a “public, non-violent, 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” (Rawls 320). From this definition, we can derive that the Capitol riots initiated as a form of civil disobedience called a protest. The event was an open public gathering in Washington, D.C, which was initially non-violent, with the political goal of bringing attention to the thought that there were flaws in the accepted democratic election process. The change they were seeking to bring about was to delay the certification of President Biden’s victory and further investigation into possible instances of fraud. It further followed Rawl’s requirements for acts of civil disobedience in that it addressed the majority who held power and was guided by the principles of justice that regulate the constitution and social institutions (Rawls 321). However, once the protest violated Rawls’s justifications for civil disobedience, including non-violence and legitimate ends with fair arrangements, it evolved into another sort of civil disobedience, a riot.
Jonathan Havercroft, in his article, Why is there no Just riot Theory? Says a riot must be a mass public demonstration and must be violent, against either people or property (Havercroft 19). He further adds that it typically targets local problems and specific grievances, and when political, expresses a distinct grievance that is typically dealt with through parliamentary procedures (Havercroft 28). Based on this definition, it is clear to see how I now classify the protest as a riot. It began as a mass public demonstration, a protest. The protest became violent against both people and property when certain protesters stormed the capitol building, shifting it into the classification of a riot. The riot targeted a specific grievance, the believed infringement of members of a democratic government’s constitutional guarantees of free and fair elections as per section four article one of the United States Constitution (“Constitution of the United States,” Art. I, Sec. 4). It targeted the parliamentary procedure that usually deals with the issue at hand, certifying the election. Given this classification of a riot, it is now essential to address when or if there are conditions under which a riot can be justified and under which conditions, if any, the Capitol riots would be justified.
Part 3 — Conditions under which a riot may be justified
To justify a riot, it is crucial to understand the rational thought processes that would lead to civil disobedience and its violent counterpart, the riot. It is argued that people have an obligation to resist their own perceived oppression and that this obligation is rooted in a commitment to protect their rational nature (Hay 21). If this sense of perceived oppression appeals to the senses of justice of a larger community within a society, which is regulated to some considerable degree by a sense of justice (Rawls 339), then it follows that this group would band together, and through some form of civil disobedience, make their dissatisfaction known. A Kantian account of obligation provides us with the justification that this obligation to resist is rational as protecting our rational nature from harm is of fundamental moral importance (Hay 40). It follows that any form of civil disobedience that originates from protecting the rational nature of a community within a society governed by a sense of justice is rational. Since we have established how particular civil disobedience is rational, we must now examine how some forms of civil disobedience, specifically riots, may be justified.
Given the above justification for civil disobedience’s rational nature, we need to examine, first, what it is that makes riots viewed as unjustified. Havercroft’s just riot theory provides us with four extra-institutional categories that provide us with the reasons for there being no just riot. In short, riots are groups of people who are not formal, institutionalized groups (extra-public), e.g., social movements or political parties, that disrupt the state’s monopoly on violence (extra-state) while breaking laws regarding public assembly (extra-legal) to express grievances outside of the normal political process (extra-parliamentary) (Havercroft 5–6). Riots are also distinct in that they are typically localized events regarding specific grievances with participants attempting to avoid arrest (Havercroft 5). While much literature does not provide for justification regarding riots (Rawls, Aquinas, Van Dusen), by those who do (Friedersdorf, Kreps, Lopez, Coates), it is widely accepted that riots are justified only due to their effectiveness, not that they are legitimate, and they are not defended on normative grounds (Havercroft 3).
So how is it then that riots can be justified? Havercroft provides a list of criteria for which we can seek justification. First, how do we justify the spontaneous gathering of a crowd with the intent to riot? We must see if the crowd’s actions are done in such a manner as to preserve freedom, promote equality, give voice to a marginalized group’s grievances, and are orderly and self-policing (Havercroft 12). Since their actions inhibited a justified and legitimate democratic process, making sure to distinguish between the goals of the justified Capitol protestors versus the Capitol rioters, it can be said that their actions did not preserve freedom. Their actions intended to stop a widely accepted procedure of our legitimate, democratic government of certifying an election. By inhibiting this, they are not because, as per the voting process, over fifty percent of voters in America voted for the President-elect. Preliminary investigations provided no evidence for widespread voter fraud; thus, it cannot be said that their actions aimed to promote equality. However, their actions did give voice to a marginalized group’s grievances as Trump supporters were not part of the majority of votes cast in the election, and it was a grievance specific to their beliefs. Finally, due to a large amount of damage caused and items stolen by looters and rioters, it is sufficient to say that their actions were neither orderly nor self-policing. Thus, since the crowds’ actions did not positively follow all four criteria to be considered, the rioting crowd was behaving unjustly in that their actions promoted tyranny while attempting to bring about a political end.
Second, how is violence justified in a riot? It must be understood that states reserve the privilege to use violence to maintain order, and without this, we face the possibility that anyone can use violence to achieve their political ends (Havercroft 14). Havercroft gives two instances under which violence is justified. First, the government violates the rights and or welfare of the citizens, e.g., violations of constitutional rights, human rights, or the rule of law (Havercroft 16). Second, a government system fails to provide for conditions of equal opportunity, even to its most disadvantaged members (Havercroft 17). Considering these two instances in which violence is justified, the type of violence also needs to be considered. Violence in a riot is unjust if it is not proportionate to the oppression the rioters were confronting, or it did not target those responsible for their grievances, while violence in a riot is justified when it is used in self-defense (Havercroft 18). If, at any point, innocents are targeted, or those whom there is no grievance against, then the violence is unjust (Havercroft 18). Applying these criteria to our examination of the capitol riots would show that, based on the information that there was widespread election fraud and the election was “stolen,” the rioters felt that their government had violated their constitutional rights. However, by conducting a recount of votes and legal investigations into voter fraud, the polity system did not fail to guarantee them the conditions of addressing their complaints as per the constitution. Therefore, if it were the case that their premise of widespread voter fraud and corruption was true, then they would have met both grievance criteria justifying their move to use violence in the riot.
Nevertheless, due to formal investigations finding no instances of prevalent voter fraud, their argument for rioting was both invalid and unsound. In so far as their actual implementation of violence, by storming the Capitol, the rioters used an unproportionate amount of violence in relation to their oppression and directed a portion of it towards those not responsible, who may be considered innocent, e.g., police or security guards. Consequently, it appears that both the reasons for using violence and the type of violence used were unjust as per Havercrofts just riot theory.
Third, riots typically break the laws regarding public assembly and rioting. However, there may be instances when states use laws regarding riots to restrict legal protests, and as such, we need to be careful not to assign the label of “riot” before thoroughly assessing any given situation. Havercroft provides us with two criteria to determine whether there is justification in breaking any anti-riot law. First, we need to examine whether the riot is protesting a fundamentally unjust action or unjust law by the state (Havercroft 25). Second, ask whether authorities are using riot laws to disperse a lawful and peaceful assembly (Havercroft 26). The capitol riots were a reaction to the belief that the laws of vote counting, vote security, and the voting process were violated. Based on this premise, it could be said that the rioters were justified. However, a closer examination of the evidence regarding violations of these laws proved they were frivolous. This conclusion implies that, regarding criteria one, they were not justified.
Regarding point two, the rioters had broken off from a group of protesters that were lawfully protesting, having obtained all necessary licenses and permits required for their protest, and at no time did authorities use riot laws to disperse them. It was only after certain protestors broke off from the group and began rioting that riot laws were enacted. Since these individuals were unjustified in their actions, it follows that any use of anti-riot laws at this point would not be infringing upon their rights to assemble.
The fourth and final area of extra-institutionality is to examine the groups’ goal of expressing grievances outside of the normal political process, their extra-parliamentarianism. The criteria Havercroft suggests using to explore the justification of this area is to see whether parliament has systematically ignored or blocked a group from receiving redress for their grievances through standard parliamentary procedure. He lists three forms of permissible riots under parliamentary means; one that enables a community whose grievances are ignored through the accepted political channels, ones that conform to the democratic standards of using self-governance of the people through inclusive reason and public discussion and in the advent of failure in these discussions, confrontational protest (Havercroft 29). The third is the giving of a blocked group’s redress for a grievance (29). Looking at the Capitol rioters, it can be argued that the government did provide them with redress for their grievances before the riot in the form of formal investigations and a recount in certain states, which produced the result of finding no widespread voter fraud or violations of their constitutional rights. It follows that their community’s voice was not ignored in the standard political mechanisms, and they were provided an adequate response that has satisfied the aforementioned democratic standard. Therefore, it can be argued that they failed to meet the criteria for the justification of rioting under extra-parliamentarianism, and their actions were unjustified.
Part 4 — Conditions that could justify the Capitol riots
We have seen how the capitol riots failed to meet the standards of justification as laid out by Havercroft’s just riot theory. However, I do believe there are conditions in which this form of opposition could be justified. The major underlying flaw to the actions of the capitol rioters lies in the premises for their argument to riot. Many participants in the Capitol riot were there initially to participate in a protest at the Capitol. During a speech given to them by then President Trump, it was reiterated, despite legal findings otherwise, that the election results were fraudulent, and the election had been “stolen” from them. It is in this statement that we find the motivator for the participants to riot. They had been told by their democratically elected Commander in Chief that the democratic process of electing a new president was flawed and that legislators were allowing these fraudulent results to pass and moving forward with the certifying of the winner of the election, President Joe Biden. It was at this point that many members moved forward and began the action of rioting. The problem lies in the fact that the pretenses for the riot begged the question, which, ipso facto, led to their riot being unjustified. In argument form, it would look like:
P1 — President Trump claimed it was true that there was widespread voter fraud in his election
CON — Therefore, there was widespread voter fraud in the election
Because the argument justifying their rioting at the Capitol was invalid and unsound, it was unjustified before it even started. However, if it were the case that there had been widespread voter fraud and the elected legislators choose to do nothing about it and move on with the certifying of President Biden, then their actions would have been justified in line with the aforementioned just riot theory and Rawls duty of justice.
Part 5 — Possible objection
The strongest objection to my argument that the Capitol riots were not a justified instance of opposition would be the assumption that the voting process is illegitimate. It could be argued that the claims of voter fraud arose from issues in an already flawed system and that it is these intrinsic flaws that the group was objecting to. However, this objection fails because if the system is flawed, then it would have been our obligation as per the duty of justice to create just institutions. Based on the evidence of no protest following, at least, the previous five presidents coupled with the fact that there have been no significant changes regarding the process of voting, it would follow that it was not the system that was flawed in the 2020 election, but dissatisfaction with the results that created the situation and led to the claims for which the capitol riots occurred. Claims of voter fraud following elections are not rare (Litt); however, founded evidence of such is scarce.
Part 6 — Conclusion
In this paper, I have argued that based on the criteria laid out in Havercroft’s just riot theory, Rawls’ Theory of justice, and Hay’s obligations to resist oppression, I believe that the Capitol riots that took place on January 6th, 2021, were unjustified. They failed to meet any of the justifying criteria that fall under the four categories of extra-institutionality. In addition to these, the argument which the rioters used to motivate their actions begs the question and is thus invalid and unsound. It follows that the actions driven by this argument would inherently be invalid and unsound. Had this argument been different, i.e., had the accusations surrounding the claims of voter fraud been accurate, then the rioters would have been justified in their actions as per both Havercroft and Rawls.
Some may object that the system is illegitimate and unjust. If this was the case, then protest surrounding the elections of presidents would be prevalent. As they are not, it follows that the results of elections and the constitutional processes that allow these elections to take place are widely accepted and satisfy the majority of citizens. This procedure and outcome fall in line with Rawls’ theory of political duty and obligation in that “constitutions are not perfect and operate on majority rules…” (Rawls 311). I believe that there are instances in which rioting is justified. It is also my belief that there are circumstances in which institutions may move to impede groups whose rioting is justified. However, I believe that both the rioters and their actions were unjustified and illegitimate in the instance of the Capitol riots.
Havercroft, Jonathan. “Why Is There No Just Riot Theory?” APSA Preprints (2020). Print. This content is a preprint and has not been peer-reviewed.
Hay, Carol. “The Obligation to Resist Oppression.” Journal of Social Philosophy, vol. 42, no. 1, 2011, pp. 21–45. Crossref, doi:10.1111/j.1467–9833.2010.01518.x.
Litt, David. “Claims of ‘voter Fraud’ Have a Long History in America. And They Are False.” The Guardian, December 15th 2020, www.theguardian.com/commentisfree/2020/dec/04/trump-voter-fraud-america-false.
Rawls, John. “Duty and Obligation.” A Theory of Justice, 2nd ed., Belknap Press: An Imprint of Harvard University Press, 1999, pp. 293–243.
“The Constitution of the United States: A Transcription.” National Archives, https://www.archives.gov/founding-docs/constitution-transcript. Accessed April 21st. 2021.