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January 12, 1964
Section SM, Page
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DURING recent months, public events have repeatedly dramatized an old and troublesome problem. A group of students defies the State Department’s ban on travel to Cuba; a teachers’ union threatens a strike even though a state law prohibits strikes by public employes; advocates of civil rights employ mass demonstrations of disobedience to the law to advance their cause; the Governor of a Southern state deliberately obstructs the enforcement of Federal laws, and declares himself thoroughly within his rights in doing so.
An observer can approve the motives that lead to some of these actions and disapprove others. All, nevertheless, raise the same fundamental question: Does the individual have the right—or perhaps the duty—to disobey the law when his mind, his conscience or his religious faith tells him that the law is unjust?
The question is as old as Socrates. lt has regularly propelled men into radical examination of the premises of personal morality and civic obligation and, indeed, of government itself. And it is an interesting question not only for its philosophical implications but because it has always been a painfully practical question as well, and never more so than today.
OUR period in history is frequently described as “materialistic” and “conformist,” an age in which governments have enormous powers to crush the bodies and anesthetize the minds of their subjects, and in which the great masses of men and women—presumably in contrast with men and women of other times—prefer to play it safe rather than raise questions of basic moral principle. It is to the point to note, however, that massive resistance to law, justified in the name of higher moral principles like “freedom,” “equality” and “national independence,” has been a conspicuous feature of our period, and one of its most effective techniques of social action. Millions of ordinary people with no pretensions to being either heroes or saints have employed it in India, in South Africa, in the resistance movements against the Nazis and in the struggle for equality for Negroes in the United States.
Moreover, such massive resistance to law is by no means confined only to supremely glorious or dangerous causes; nor is it used only by revolutionaries, underdogs or outsiders. During Prohibition, a large number of respectable, conservative Americans dutifully broke the law in defense of what they regarded as an inalienable human right. In this case, doing one’s duty happened also to be agreeable and even fashionable, but this does not change the fact that many right‐thinking citizens, who today condemn pacifists or integrationists for using illegal methods to advance their cause, have themselves used such methods happily and tmashamedly.
WHEN is it justified, then, for the citizen to act as his own legislator, and to decide that he will or will not obey a given law?
An answer that covers all the issues this question raises cannot be given here, nor can a set of principles be proposed that will allow anyone to make automatic and infallible judgments concerning the legitimacy or illegitimacy of specific acts of civil disobedience. Such judgments require detailed knowledge of the facts of specific cases, and such knowledge is often unavailable to the outsider. Nevertheless, it is possible to indicate some of the principal issues that are raised by civil disobedience, some of the more common mistakes that are made in thinking about these issues, and, at least in outline, the approach that one man would take toward such issues.
We can begin, it seems to me, by rejecting one extreme position. This is the view that disobedience to the law can never be justified in any circumstances. To take this position is to say one of two things: either every law that exists is a just law, or a greater wrong is always done by breaking the law. The first statement is plainly false. The second is highly doubtful. If it is true, then the signers of the Declaration of Independence, and those Germans who refused to carry out Hitler’s orders, committed acts of injustice.
IT is possible, however, to take a mucn more moderate and plausible version of this position, and many quite reasonable people do. Such people concede that disobedience to the law can sometimes be legitimate and necessary under a despotic regime. They argue, however, that civil disobedience can never be justified in a democratic society, because such a society provides its members with legal instruments for the redress of their grievances.
This is one of the standard arguments that is made, often quite sincerely, against the activities of people like supporters of the Congress of Racial Equality, who set about changing laws they find objectionable by dramatically breaking them. Such groups are often condemned for risking disorder and for spreading disrespect for the law when, so it is maintained, they could accomplish their goals a great deal more fairly and patriotically by staying within the law, and confining themselves to the courts and to methods of peaceful persuasion.
Now it is perfectly true, I believe, that there is a stronger case for obedience to the law, including bad law, in a democracy than in a dictatorship. The people who must abide by the law have presumably been consulted, and they have legal channels through which to express their protests and to work for reform. One way to define democracy is to say that it is a system whose aim is to provide alternatives to civil disobedience. Nevertheless, when applied to the kind of situation faced, say, by CORE, these generalizations, it seems to me, become cruelly abstract.
THE basic fallacy in the proposition that, in a democracy, civil disobedience can never be justified, is that it confuses the ideals or aims of democracy with the inevitably less than perfect accomplishments of democracy at any given moment. In accordance with democratic ideals, the laws of a democracy may give rights and powers to individuals which, in theory, enable them to work legally for the elimination of injustices.
In actual fact, however, these rights and powers may be empty. The police may be hostile, the courts biased, the elections rigged—and the legal remedies available to the individual may be unavailing against these evils.
Worse still, the majority may have demonstrated, in a series of free and honest elections, that it is unwavering in its support of what the minority regards as an unspeakable evil. This is obviously the case today in many parts of the South, where the white majority is either opposed to desegregation or not so impatient to get on with it as is the Negro minority. Are we prepared to say that majorities never err? If not, there is no absolutely conclusive reason why we must invariably give the results of an election greater weight than considerations of elementary justice.
IT is true, of course, that one swallow does not make a summer, and that the test of legal democratic processes is not this or that particular success or failure, but rather the general direction in which these processes move over the long run. Still, the position that violation of the law is never justifiable so long as there are legal alternatives overstates this important truth. It fails to face at least three important exceptions to it.
In the first place, dramatic disobedience to the law by a minority may be the only effective way of catching the attention or winning the support of the majority Most classic cases of civil disobedience, from the early Christians to Gandhi and his supporters, exemplify this truth. Civil disobedience, like almost no other technique, can shame a majority and make it ask itself just how far it is willing to go, just how seriously it really is committed to defending the status quo.
SECOND, there is the simple but painful factor of time. If a man is holding you down on a bed of nails, it is all very well for a bystander to say that you live in a great country in which there are legal remedies for your condition, and that you ought, therefore, to be patient and wait for these remedies to take effect. But your willingness to listen to this counsel will depend, quite properly, on the nature of the injury you are suffering.
Third, it is baseless prejudice to assume that observance of the law is always conducive to strengthening a democratic system while disobedience to the law can never have a salutary effect. A majority’s complacent acquiescence in bad laws can undermine the faith of a minority in the power of democratic methods to rectify manifest evils; yet a vigorous democracy depends on the existence of minorities holding just such a faith.
Disobedience to bad laws can sometimes jolt democratic processes into motion. Which strengthens one’s hope for democracy more — the behavior of the Negroes in Birmingham who broke municipal ordinances when they staged their protest marches, or the behavior of the police, using dogs and fire hoses to assert their legal authority?
ANOTHER factor should also be taken into account. In our Federal system, there are often legitimate doubts concerning the legal validity, under our Constitution, of various state or local ordinances. Disobedience to these laws is in many cases simply a practical, though painful, way of testing their legality. But even where no thought of such a test is involved, there is often present a moral issue which no one can easily dodge—least of all the man whose personal dignity and self‐respect are caught up in the issue.
A citizen caught in a conflict between local laws and what he thinks will be upheld as the superior Federal law can sometimes afford to wait until the courts have determined the issue for him. But often he cannot afford to wait, or must take a stand in order to force a decision. This is the situation of many Negro citizens in Southern states as they confront the conflict between local and Federal laws.
Yet there is another side to the story. It would be a mistake to conclude from what has been said that civil disobedience is justified, provided only that it is disobedience in the name of higher principles. Strong moral conviction is not all that is required to turn breaking the law into service to society.
Civil disobedience is not simply like other acts in which men stand up courageously for their principles. It involves violation of the law. And the law can make no provision for its violation except to hold the offender liable to punishment. This is why President Kennedy was in such a delicate position last spring at the time of the Negro demonstrations in Birmingham. He gave many signs that, as an individual, he was in sympathy with the goals of the demonstrators. As a political leader, he probably realized that these goals could not be attained without dramatic actions that crossed the line into illegality. But as Chief Executive he could not give permission or approval to such actions.
We may admire a man like Martin Luther King, who is prepared to defy the authorities in the name of a principle, and we may think that he is entirely in the right; just the same, his right to break the law cannot be officially recognized. No society, whether free or tyrannical, can give its citizens the right to break its laws: To ask it to do so is to ask it to proclaim, as a matter of law, that its laws are not laws.
In short, if anybody ever has a right to break the law, this cannot be a legal right under the law. It has to be a moral right against the law. And this moral right is not an unlimited right to disobey any law which one regards as unjust. It is a right that is hedged about, it seems to me, with important restrictions.
FIRST of all, the exercise of this right is subject to standards of just and fair behavior. I may be correct, for example, in thinking that an ordinance against jaywalking is an unnecessary infringement of my rights. This does not make it reasonable, however, for me to organize a giant sit‐down strike in the streets which holds up traffic for a week. Conformity to the concept of justice requires that there be some proportion between the importance of the end one desires to attain and the power of the means one employs to attain it.
When applied to civil disobedience, this principle constitutes a very large restriction. Civil disobedience is an effort to change the law by making it impossible to enforce the law, or by making the price of such enforcement extremely high. It is a case, as it were, of holding the legal system to ransom. It can arouse extreme passions on one side or the other, excite and provoke the unbalanced, and make disrespect for the law a commonplace and popular attitude.
Although violence may be no part of the intention of those who practice civil disobedience, the risks of violence are present, and are part of what must be taken into account when a program of civil disobedience is being contemplated.
In short, civil disobedience is a grave entefprise. It may sometimes be justified, but the provocation for it has to be equally grave. Basic principles have to be at issue. The evils being combated have to be serious evils that are likely to endure unless they are fought. There should be reasonable grounds to believe that legal methods of fighting them are likely to be insufficient by themselves.
NOR is this the only limitation on the individual’s moral right to disobey the law. The most important limitation is that his cause must be a just one. It was right for General de Gaulle to disobey Marshal Pétain; it was wrong for the commanders of the French Army in Algeria, 20 years later, to disobey General de Gaulle.
Similarly, if it is absolutely necessary, and if the consequences have been properly weighed, then it is right to break the law in order to eliminate inequalities based on race. But it can never be necessary, and no weighing of consequences can ever make it right, to break the law in the name of Nazi principles.
In sum, the goals of those who disobey the law have to lie at the very heart of what we regard as morality before we can say that they have a moral right to do what they are doing.
BUT who is to make these difficult decisions? Who is to say that onE man’s moral principles are right and another man’s wrong? We come here to the special function that civil disobedience serves in a society. The man who breaks the law on the ground that the law is immoral asks the rest of us, in effect, to trust him, or to trust those he trusts, in preference to the established conventions and authorities of our society.
He has taken a large and visible chance, and implicitly asked us to join him in taking that chance, on the probity of his personal moral judgment. In doing so, he has put it to us whether we are willing to take a similar chance on the probity of our own judgment.
Thomas Hobbes, who knew the trouble that rebels and dissenters convinced of their rectitude can cause, once remarked that a man may be convinced that God has commanded him to act as he has, but that God, after all, does not command other men to believe that this is so. The man who chooses to disobey the law on grounds of principle may be a saint, but he may also be a madman. He may be a courageous and lonely individualist, but he may also merely be taking orders and following his own crowd. Whatever, he may be, however, his existence tends to make us painfully aware that we too are implicitly making choices, and must bear responsibility for the ones we make.
THIS, indeed, may be the most important function of those who practice civil disobedience. They remind us that the man who obeys the law has as much of an obligation to look into the morality of his acts and the rationality of his society as does the man who breaks the law. The occurrence of civil disobedience can never be a happy phenomenon; when it is justified, something is seriously wrong with the society in which it takes place.
But the man who puts his conscience above the law, though he may be right or he may be wrong, does take personal moral responsibility for the social arrangements under which he lives. And so he dramatizes the fascinating and fearful possibility that those who obey the law might do the same. They might obey the law and support what exists, not out of habit or fear, but because they have freely chosen to do so, and are prepared to live with their consciences after having made that choice.
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