Monday, January 16, 2006

Martin Luther King and Civil Disobedience

Today the nation celebrates Martin Luther King Jr. I studied Martin Luther King extensively prior to law school and have always admired him greatly. One of the most important legal questions King raised in his struggle for civil rights was the appropriate means to secure just ends. In particular, King was more than willing to defy laws if he deemed them to be unjust. He was sharply criticized for this and defended his tactics in his famous Letter from a Birmingham Jail. Here is an excerpt:

You express a great deal of anxiety over our willingness to break laws. This is certainly a legitimate concern. Since we so diligently urge people to obey the Supreme Court's decision of 1954 outlawing segregation in the public schools, at first glance it may seem rather paradoxical for us consciously to break laws. One may won ask: "How can you advocate breaking some laws and obeying others?" The answer lies in the fact that there fire two types of laws: just and unjust. I would be the first to advocate obeying just laws. One has not only a legal but a moral responsibility to obey just laws. Conversely, one has a moral responsibility to disobey unjust laws. I would agree with St. Augustine that "an unjust law is no law at all."

Now, what is the difference between the two? How does one determine whether a law is just or unjust? A just law is a man-made code that squares with the moral law or the law of God. An unjust law is a code that is out of harmony with the moral law. To put it in the terms of St. Thomas Aquinas: An unjust law is a human law that is not rooted in eternal law and natural law. Any law that uplifts human personality is just. Any law that degrades human personality is unjust. All segregation statutes are unjust because segregation distort the soul and damages the personality. It gives the segregator a false sense of superiority and the segregated a false sense of inferiority.... Hence segregation is not only politically, economically and sociologically unsound, it is morally wrong and awful. Paul Tillich said that sin is separation. Is not segregation an existential expression 'of man's tragic separation, his awful estrangement, his terrible sinfulness? Thus it is that I can urge men to obey the 1954 decision of the Supreme Court, for it is morally right; and I can urge them to disobey segregation ordinances, for they are morally wrong.

Let us consider a more concrete example of just and unjust laws. An unjust law is a code that a numerical or power majority group compels a minority group to obey but does not make binding on itself. This is difference made legal. By the same token, a just law is a code that a majority compels a minority to follow and that it is willing to follow itself. This is sameness made legal.

Let me give another explanation. A law is unjust if it is inflicted on a minority that, as a result of being denied the right to vote, had no part in enacting or devising the law. Who can say that the legislature of Alabama which set up that state's segregation laws was democratically elected? Throughout Alabama all sorts of devious methods are used to prevent Negroes from becoming registered voters, and there are some counties in which, even though Negroes constitute a majority of the population, not a single Negro is registered. Can any law enacted under such circumstances be considered democratically structured?

Sometimes a law is just on its face and unjust in its application. For instance, I have been arrested on a charge of parading without a permit. Now, there is nothing wrong in having an ordinance which requires a permit for a parade. But such an ordinance becomes unjust when it is used to maintain segregation and to deny citizens the First Amendment privilege of peaceful assembly and protest.

I hope you are able to see the distinction I am trying to point out. In no sense do I advocate evading or defying the law, as would the rabid segregationist. That would lead to anarchy. One who breaks an unjust law must do so openly, lovingly, and with a willingness to accept the penalty. I submit that an individual who breaks a law that conscience tells him is unjust and who willingly accepts the penalty of imprisonment in order to arouse the conscience of the community over its injustice, is in reality expressing the highest respect for law.

What is most interesting about King's defense is that he places all laws below a "higher law" of morality. He then defines that higher law based on his theology of separation, and concludes that segregation is a manifestation of separation, and therefore must be unjust. Notably, he does not say what we would typically say today: "That all laws are unjust if they violate constitutional rights." We would subject laws to a constitutional order. He subjects it to a higher moral order. Indeed, King refers to the Constitution only three times in this letter, all in passing.

Nor does King address how you determine what is higher law. I doubt many will be willing to read Paul Tillich, Karl Barth, or Reinhold Niebuhr and subject all laws to their theology. To suggest that unjust laws may be disobeyed if they do not accord with "higher law" places a premium on determining what is the higher law. For example if sanctity of life is a higher law you may well oppose the death penalty as unjust, but if another principle is the higher law you might well defend it.

The third aspect of his letter that is so fascinating is that he openly admits that in defying the law he should be punished. Disobedience and punishment are the vehicle to social change. By going to jail, he hopes to arouse the conscience of the community. Here is King's cycle of justice: (1) unjust laws are disobeyed, (2) punishment is imposed in respect for the law, (3) our consciences are pricked, (4) legislative corrections are proposed, (5) the laws are changed, (6) society is transformed.

Of course, in King's case the conscience of society was pricked and laws were quickly enacted to create a better society. But today many who engage in civil disobedience to protest what they, in good faith, understand to be unjust practices will disobey a law and be subject to punishment. But as they languish in jail, their behavior does not significantly impact our collective conscience. Those who use themselves as "human shields" to protest the Iraq war are an example.

The other aspect of King's tactics is that they are not for everyone. The cycle of justice makes sense for a "prophet" like Martin Luther King. But it is not the way a lawyer, judge, or politician should or would try to create a more just society. We would work within the system, near the end of King's justice cycle, focusing on legislative change or judicial challenge. It is hard to imagine a lower court judge saying, "sentencing guidelines are wrong and unjust and therefore I will disobey them." We all agree that a judge should not do that, just as a judge in Alabama or a politician in San Francisco should not openly defy the law. So we recognize that there is a role in society for some people, sometimes to engage in civil disobedience. But we also recognize that those who are sworn to uphold the Constitution and the laws of this country do not enjoy that privilege. King was right. But King's tactics are not right for everyone.

12 Comments:

Blogger Shar said...

This comment has been removed by the author.

3/10/2009 7:14 PM  
Blogger poston said...

There are ed hardy shirts
,pretty ed hardy shirt for men,

ed hardy womens in the ed hardy online store

designed by ed hardy ,
many cheap ed hardy shirt ,glasses,caps,trouers ed hardy shirts on sale ,

You can go to edhardyshirts.com to have a look ,you may find one of ed hardy clothing fit for you
Top qualitymen's jacket,
These cheap jacket are on sale now,you can find
north face jackets inmage on our web
Ralph Lauren Polo Shirtsbuberry polo shirts

Authentic chaussure puma
chaussure sport
And chaussure nike shoes
Come here to have a look of our Wholesale Jeans
Many fashionMens Jeans ,eye-catching
Womens Jeans ,and special out standing
Blue Jeans ,you can spend less money on our
Discount Jeans but gain really fine jeans, absolutely a great bargain.
http://www.weddingdressseason.com

http://CLOTHES-WHOLESALE.US

7/08/2009 4:51 AM  
Blogger huyuni said...

if you or your friend want to China Wholesaleplease cheack you can buy buy products wholesale here from wholesale from china ,the China Wholesalers on China Wholesale wholesale from china buy products wholesale China Wholesalers

7/09/2009 11:27 PM  
Blogger huyuni said...

nike shoes & Puma Shoes Online- tn nike,puma shoes,puma cat, baskets cheap nike shox, air max.cheap nike shox r4 torch, cheap nike air, nike running shoes air max, puma speed and more. Paypal payment.nike running shoes Enjoy your shopping experience on Nike & Puma Shoes Online Store.

7/09/2009 11:27 PM  
Blogger theprophet said...

sneakers shoes She continued,
"Why...? Don't you need someone to pose as your girlfriend this year?" Then he answered, "No, there is no need for that anymore......"
Before he can continue, he was interrupted, discount nike shoes"Oh yes! Must have found a girlfriend! nike shox r4 You haven't been searching for one for the past years, right?" The man looked up, as if he has struck gold, his face beamed and looked directly at the drunken girl. tn dollarHe replied, "Yes......you are right! I haven't been looking for anyone for the past years."
With that, the man darted across the floor and out the door, cheap nike shoesleaving the lady in much bewilderment. He finally realized that he has already found his dream girl, and she was.....the Vancouver girl all along! The drunken lady has said something that awoken him.
All along he has found his girl.nike tennis shoes That was why he did not bother to look further when he realized she was not coming back. It was not any specific girl he was seeking! cheap nike shoxIt was perfection that he wanted, and yes.....perfection!!
Relationship is something both parties should work on. Realizing that he had let away someone so important in his life, he decided to call her immediately. His whole mind was flooded with fear.free shipping shoes He was afraid that she might have found someone new or no longer had the same feelings anymore..... For once, he felt the fear of losing someone.
As it was Christmas eve, the line was quite hard to get through, especially an overseas call. He tried again and again, never giving up. Finally, he got through......precisely at 1200 midnight. He confessed his love for her and the girl was moved to tears. nike shoes It seemed that she never got over him! Even after so long, she was still waiting for him, never giving up.
He was so excited to meet her and to begin his new chapter of their lives. He decided to fly to Vancouver to join her. It was the happiest time of their lives! nike discount shoes But their happy time was short-lived. Two days before he was supposed to fly to Vancouver,cheap puma shoes he received a call from her father. She had a head-on car collision with a drunken driver. nike shox shoes She passed away after 6 hours in a coma.
The guy was devastated, as it was a complete loss. Why did fate played such cruel games with him? He cursed the heaven for taking her away from him, denying even one last look at her! How cruel he cursed! How he damned the Gods...!!nike free shoes How he hated himself....for taking so long to realize his mistake!! That was in 1996.
The moral of this story is :
Treasure what you have...
Time is too slow for those who wait;
Too swift for those who fear;
Too long for those who grief;
Too short for those who rejoice;
But for those who love...
Time is Eternity.
For all you out there with someone special in your heart, cherish that person, cherish every moment that you spend together that special someone, for in life, anything can happen anytime. buy shoes onlineYou may painfully regret, only to realise that it is too late.

9/26/2009 11:35 PM  
Blogger Houstonlaw said...

I totally agre with you that the king was right but his rules was not.

Personal Injury Attorney Houston

5/23/2010 7:05 AM  
Blogger bizandlegis said...

Super blog and nice writings

Thanks for all posts

Thanks in advance for coming posts...

Keep writing...............

By

Biz and Legis
Patent Registration legal service providers

9/06/2011 2:52 AM  
Blogger wowgold said...

The post is very nicely written and yes it contains many useful facts. We are pleased to find your distinguished way of writing the post. So you allow me to learn and implement. Thank you sharing with us.
Buy Runescape Gold Cheap RS Gold

12/21/2011 4:35 AM  
Blogger beautifuls said...

your likelihood of successful a lot of Cheap Hermes Cambridge SatchelsNevertheless, it just helps you pick wiser numbers as well as improve your likelihood of successful a lot of money. This was the machine Larry utilized when he received Fluro Cambridge Satchel the actual lottery for Fluro Cambridge Satchels. Their clients Hermes Lindy Handbag are also stating Hermes Constance Bag same thing once they attempted Hermes Kelly Handbag Price technique out Birkin Hermes Bag Price.

2/22/2012 12:05 AM  
Blogger London Crumpet said...

London escorts directory London Crumpet is created to expose Independent escorts and escort agencies in London. Everybody can post their advert on this directory for FREE.

7/25/2012 11:01 AM  
Blogger Rainman Mark said...

I liked your article, I will share your article to everyone!!




RS gold|Diablo 3 Gold|GW2 gold|WoW Gold

3/02/2013 6:06 AM  
Blogger GuildWars2Items said...

Suppose someone gave you a pen — a sealed, solid-colored pen.You could not see how much ink it had D3 Gold, think Positive Thoughts Every Day Buy D3 Gold, the brightest future will always be based on a forgotten past, you can't go on well in life until you let go of your past failures and heartaches Cheap D3 Gold.

gw2 gold Life is too short to wake up in the morning with regrets. So, love the people who treat you right and forget about the ones who do not gw2 gold, people who are serious about the relation are moody as they have devoted a lot that makes them worry about gains and losses guild wars 2 gold.

4/18/2013 11:10 PM  

Post a Comment

<< Home