Unjust Laws and Civil Disobedience

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Civil disobedience is a form of protest in which protestors deliberately violate a law. Classically, they violate the law they are protesting, such as segregation or draft laws, but sometimes they violate other laws which they find unobjectionable, such as trespass or traffic laws. Most activists who perform civil disobedience are scrupulously non-violent, and willingly accept legal penalties. The purpose of civil disobedience can be to publicize an unjust law or a just cause; to appeal to the conscience of the public; to force negotiation with recalcitrant officials; to "clog the machine" (in Thoreau's phrase) with political prisoners; to get into court where one can challenge the constitutionality of a law; to exculpate oneself, or to put an end to one's personal complicity in the injustice which flows from obedience to unjust law —or some combination of these. While civil disobedience in a broad sense is as old as the Hebrew midwives' defiance of Pharaoh, most of the moral and legal theory surrounding it, as well as most of the instances in the street, have been inspired by Thoreau, Gandhi, and King. In this article we will focus on the moral arguments for and against its use in a democracy. Objection: Civil disobedience cannot be justified in a democracy. Unjust laws made by a democratic legislature can be changed by a democratic legislature. The existence of lawful channels of change makes civil disobedience unnecessary. Reply: Thoreau, who performed civil disobedience in a democracy, argued that sometimes the constitution is the problem, not the solution. Moreover, legal channels can take too long, he argued, for he was born to live, not to lobby. His individualism gave him another answer: individuals are sovereign, especially in a democracy, and the government only holds its power by delegation from free individuals. Any individual may, then, elect to stand apart from the domain of law. Martin Luther King, Jr., who also performed civil disobedience in a democracy, asks us to look more closely at the legal channels of change. If they are open in theory, but closed or unfairly obstructed in practice, then the system is not democratic in the way needed to make civil disobedience unnecessary. Other activists have pointed out that if judicial review is one of the features of American democracy which is supposed to make civil disobedience unnecessary, then it ironically subverts this goal; for to obtain standing to bring an unjust statute to court for review, often a plaintiff must be arrested for violating it. Finally, the Nuremberg principles require disobedience to national laws or orders which violate international law, an overriding duty even in (perhaps especially in) a democracy. Objection: Even if civil disobedience is sometimes justified in a democracy, activists must first exhaust the legal channels of change and turn to disobedience only as a last resort. Reply: Legal channels can never be "exhausted". Activists can always write another letter to their congressional delegation or to newspapers; they can always wait for another election and cast another vote. But justice delayed, King proclaimed, is justice denied. After a point, he argued, patience in fighting an injustice perpetuates the injustice, and this point had long since been passed in the 340 year struggle against segregation in America. In the tradition which justifies civil disobedience by appeal to higher law, legal niceties count for relatively little. If God trumps Caesar to justify disobedience to unjust law, then God can trump Caesar to permit this disobedience sooner rather than later. In this tradition, A.J. Muste argued that to use legal channels to fight unjust laws is to participate in an evil machine, and to disguise dissent as conformity; this in turn corrupts the activist and discourages others by leading them to underestimate the numbers of their congeners. Objection: We must obey the law under a contract with other members of...
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