ELDERS : Well, perhaps it would be interesting to delve a little deeper into this problem of strategy. I suppose that what you call civil disobedience is probably the same as what we call extraparliamentary action?

CHOMSKY: No, I think it goes beyond that. Extraparliamentary action would include, let's say, a mass legal demonstration, but civil disobedience is narrower than all extraparliamentary action, in that it means direct defiance of what is alleged, incorrectly in my view, by the state to be law.

ELDERS: So, for example, in the case of Holland, we had something like a population census. One was obliged to answer questions on official forms. You would call it civil disobedience if one refused to fill in the forms?

CHOMSKY: Right. I would be a little bit careful about that, because, going back to a very important point that Mr. Foucault made, one does not necessarily allow the state to define what is legal. Now the state has the power to enforce a certain concept of what is legal, but power doesn't imply justice or even correctness; so that the state may define something as civil disobedience and may be wrong in doing so.
For example, in the United States the state defines it as civil disobedience to, let's say, derail an ammunition train that's going to Vietnam; and the state is wrong in defining that as civil disobedience, because it's legal and proper and should be done. It's proper to carry out actions that will prevent the criminal acts of the state, just as it is proper to violate a traffic ordinance in order to prevent a murder.
If I had stopped my car in front of a traffic light which was red, and then I drove through the red traffic light to prevent somebody from, let's say, machine-gunning a group of people, of course that's not an illegal act, it's an appropriate and proper action; no sane judge would convict you for such an action.
Similarly, a good deal of what the state authorities define as civil disobedience is not really civil disobedience: in fact, it's legal, obligatory behavior in violation of the commands of the state, which may or may not be legal commands.
So one has to be rather careful about calling things illegal, I think.

FOUCAULT: Yes, but I would like to ask you a question. When, in the United States, you commit an illegal act, do you justify it in terms of justice or of a superior legality, or do you justify it by the necessity of the class struggle, which is at the present time essential for the proletariat in their struggle against the ruling class?

CHOMSKY: Well, here I would like to take the point of view which is taken by the American Supreme Court and probably other courts in such circumstances; that is, to try to settle the issue on the narrowest possible grounds. I would think that ultimately it would make very good sense, in many cases, to act against the legal institutions of a given society, if in so doing you're striking at the sources of power and oppression in that society.
However, to a very large extent existing law represents certain human values, which are decent human values; and existing law, correctly interpreted, permits much of what the state commands you not to do. And I think it's important to exploit the fact ...

FOUCAULT: Yeah.

CHOMSKY: ... it's important to exploit the areas of law which are properly formulated and then perhaps to act directly against those areas of law which simply ratify some system of power.

FOUCAULT: But, but, I, I ...

CHOMSKY: Let me get ...

FOUCAULT: My question, my question was this: when you commit a clearly illegal act ...

CHOMSKY: ... which I regard as illegal, not just the state.

FOUCAULT: No, no, well, the state's ...

CHOMSKY: ... that the state regards as illegal ...

FOUCAULT: ... that the state considers as illegal.

CHOMSKY: Yeah.

FOUCAULT: Are you committing this act in virtue of an ideal justice, or because the class struggle makes it useful and necessary? Do you refer to ideal justice, that's my problem.

CHOMSKY: Again, very often when I do something which the state regards as illegal, I regard it as legal: that is, I regard the state as criminal. But in some instances that's not true. Let me be quite concrete about it and move from the area of class war to imperialist war, where the situation is somewhat clearer and easier. Take international law, a very weak instrument as we know, but nevertheless one that incorporates some very interesting principles. Well, international law is, in many respects, the instrument of the powerful: it is a creation of states and their representatives. In developing the presently existing body of international law, there was no participation by mass movements of peasants.
The structure of international law reflects that fact; that is, international law permits much too wide a range of forceful intervention in support of existing power structures that define themselves as states against the interests of masses of people who happen to be organized in opposition to states.
Now that's a fundamental defect of international law and I think one is justified in opposing that aspect of international law as having no validity, as having no more validity than the divine right of kings. It's simply an instrument of the powerful to retain their power.
But, in fact, international law is not solely of that kind. And in fact there are interesting elements of international law, for example, embedded in the Nuremberg principles and the United Nations Charter, which permit, in fact, I believe, require the citizen to act against his own state in ways which the state will falsely regard as criminal. Nevertheless, he's acting legally, because international law also happens to prohibit the threat or use of force in international affairs, except under some very narrow circumstances, of which, for example, the war in Vietnam is not one. This means that in the particular case of the Vietnam war, which interests me most, the American state is acting in a criminal capacity. And the people have the right to stop criminals from committing murder. Just because the criminal happens to call your action illegal when you try to stop him, it doesn't mean it is illegal.
A perfectly clear case of that is the present case of the Pentagon Papers in the United States, which, I suppose, you know about.
Reduced to its essentials and forgetting legalisms, what is happening is that the state is trying to prosecute people for exposing its crimes. That's what it amounts to. Now, obviously that's absurd, and one must pay no attention whatsoever to that distortion of any reasonable judicial process. Furthermore, I think that the existing system of law even explains why it is absurd. But if it didn't, we would then have to oppose that system of law.

FOUCAULT: So it is in the name of a purer justice that you criticize the functioning of justice?
There is an important question for us here. It is true that in all social struggles, there is a question of "justice." To put it more precisely, the fight against class justice, against its injustice, is always part of the social struggle: to dismiss the judges, to change the tribunals, to amnesty the condemned, to open the prisons, has always been part of social transformations as soon as they become slightly violent. At the present time in France the function of justice and the police is the target of many attacks from those whom we call the "gauchistes." But if justice is at stake in a struggle, then it is as an instrument of power; it is not in the hope that finally one day, in this or another society, people will be rewarded according to their merits, or punished according to their faults. Rather than thinking of the social struggle in terms of "justice," one has to emphasize justice in terms of the social struggle.

moderated by fons elders, foucault and his interlocutors (university of chicago press, 1996)
www.uchicago.edu/research/jnl-crit-inq/foucault/foucault.chomsky.html