Law is a wonderful invention. The philosopher Thomas Hobbes once speculated on what life would be like without law. His State of Nature was a horrible place indeed, in which human life was “solitary, poor, nasty, brutish, and short.” Fortunately, because human beings are rational, they form a Commonwealth (republic) that has law and enforcers (police) to ensure that everybody obeys the law.
However, we recognize that occasionally the law is not just. After all, at one time in the United States, slavery was legal, although it has never been moral. What ought we to do when faced with an unjust law? Two philosophers will have an answer to this: Henry David Thoreau (1817-1862), who wrote “On the Duty of Civil Disobedience” (1849), and Martin Luther King, Jr. (1929-1968), who wrote “Letter from Birmingham Jail” (1963).
Henry David Thoreau
First, we will begin with Henry David Thoreau. Thoreau was against both slavery and a war the United States was waging against Mexico. To protest the war against Mexico, he refused to pay a state tax whose proceeds he felt would be used in this unjust war. He was jailed, but he spent only a short time in jail, because someone paid the tax for him.
The story goes that Ralph Waldo Emerson found his friend Thoreau in jail and asked him, “Henry, what are you doing in there?” Thoreau replied, “The question is, what are you doing out there?” Apparently, Emerson was also against the war and Thoreau was therefore asking him why he was not also in prison as a person using civil disobedience to alert fellow citizens to the injustice of the war against Mexico.
(Here is another story about Thoreau: On his deathbed, Thoreau was asked to make his peace with God. Thoreau replied, “We’ve never quarreled.”)
In his essay “On the Duty of Civil Disobedience,” Thoreau writes about the kind of government he would like to have. He believes this: “That government is best which governs least.” In other words, the less government, the better. On this point, Thoreau is in agreement with the conservatives.
However, Thoreau does not ask for no government at once, but for a better government at once. Thoreau seems to realize that the government is necessary for some things; after all, he does not refuse to pay the highway tax — the government is good at providing highways. (I also believe that the government is good at providing public libraries.)
Still, Thoreau believes that the government can on occasion be very bad — as when waging war — and that citizens ought not to resign their conscience to the legislators. Instead, citizens need to cultivate a respect for what is right instead of cultivating a respect for the law. After all, too high a respect for the law can make one do what is immoral — for example, serving in the Army during an unjust war. Let us remember that many Nazi war criminals defended their unjust actions by saying that they were merely following orders.
Fortunately, as the Declaration of Independence states, all men recognize the right of revolution. When a government becomes unjust, its citizens are justified in rising up against it.
So what are we to do when faced with an unjust law? Thoreau says that we are faced with three options:
1) obey it,
2) obey it but try to change it, and
3) disobey it and try to change it.
What we should do depends on the severity of the injustice. If the injustice is “part of the necessary friction of the government,” then we can ignore it. I suppose an example of this may be some taxes. Many people are against governmental taxation, but taxation seems to be the price for civilization: Someone has to pay for highways and for public libraries.
However, when an injustice is severe, as when slavery is legal or when an unjust war is waged, then we should disobey the law. If enough people disobey the law, then the law will be changed. After all, Thoreau says, governments get their power from citizens, and governments must recognize this if there is to be a “really free and enlightened State.”
Martin Luther King, Jr.
When King wrote his “Letter from Birmingham Jail,” he stated his reasons for coming to Birmingham. For one thing, he had organizational ties there. King had helped found the Southern Christian Leadership Conference in 1957. One of the members of the SCLC had asked King to go to Birmingham to help in the civil rights movement there.
But more basically, King went to Birmingham because injustice was there. Birmingham is where Rosa Parks refused to move to the back of a public bus. Eventually, through a bus boycott King and his followers were able to desegregate the public bus system. In addition, King made the point that he was an American, and a citizen of the United States should be able to go to any American state without being called an outsider.
The most important part of King’s letter is his answer to an important question raised by some Alabama clergymen: How can King advocate breaking some laws, yet advocate keeping other laws? After all, King wanted people to disobey the Jim Crow segregation laws of the South, yet he wanted them to obey the desegregation laws that came about because of Brown v. Board of Education — a ruling by the United States Supreme Court which desegregated the public schools.
In answering this question, King makes a distinction between just and unjust laws. A just law is a man-made law that is in accordance with the law of God and the moral law. An unjust law is not. A just law uplifts human personality. An unjust law degrades human personality. A just law is one that the majority imposes on a minority but that the majority is willing to make binding on itself. An unjust law is one that a majority imposes on a minority but that the majority does not make binding on itself. An example of an unjust law is any Jim Crow law; for example, the law saying that black passengers have to sit on the back of a public bus and allow the white passengers to sit in the front.
King does not advocate evading the law, for that would result in anarchy. Instead, he recommends disobeying unjust laws, but the disobedience must be done with the highest respect for the law. This may sound like an oxymoron, but it is not.
When one breaks an unjust law, King writes, one must break it in a certain way. One must break an unjust law “openly, lovingly, and with a willingness to accept the punishment.” One breaks the law openly, in a place where one can be arrested. One breaks the law lovingly, in an attempt to change the law and make it just. And one accepts the penalty, whether it be a fine or a prison sentence.
When one breaks an unjust law in this way, one hopes to arouse public consciousness about the unjust law. When enough people are aware of the unjust law, the unjust law will be changed to make it just.
Of course, many people nowadays have forgotten some of King’s words. They break an unjust law (or one that they regard as unjust) openly and lovingly, but when they are sitting in a courtroom, they argue that because they were acting in accordance with their conscience, they ought not to be punished. However, civil disobedience doesn’t work that way. King went to jail, Ralph David Abernathy went to jail, Bertrand Russell went to jail, St. Paul went to jail, and Jesus went to jail. To engage in civil disobedience, you must be willing to accept the penalty.
King ends his letter with the hope that someday “the radiant stars of love and brotherhood will shine over our great nation with all their scintillating beauty.” By using civil disobedience, he did quite a lot in his life to make his hope a reality.
Copyright by Bruce D. Bruce
This essay appears in my book Philosophy for the Masses: Ethics.
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