Desobediencia civil y participación política. Unas cuestiones abiertas para las democracias constitucionales (y la teoría del derecho)

In this article I try to show some problems of the interpretation of civil disobedience as a practice that aims to maintain democratic principles against discriminative legal patterns or oligarchic forces. I will present two doctrines, the Rawlsian (followed by Habermas) and the one proposed recently by supporters of a radical constitutional change through the exercise of “constituent power”. The Rawlsian account a) offers a too stringent model of justification of this type of practice and b) does not recognize the plurality of subjects to which civil disobedience appeal. The supporters of radical constitutional change fall into a form of heterogony of ends. They reject liberal accounts of separation of power and pride popular control of judiciary power. But thus, the possibility of escaping sanctions for those who practice civil disobedience is dramatically reduced. Moreover it increases the risk of concentration of power.