« One may ask, `How can one advocate breaking certain laws and obeying others?` The answer lies in the fact that there are two types of laws: just and unjust. I would be the first to advocate for fair laws. One has not only a legal but also a moral responsibility to obey just laws. Conversely, one has a moral responsibility not to obey unjust laws. I agree with St. Augustine that « an unjust law is not a law at all. » King asserts that his commandments showed respect for an acceptable right that was well understood: a person « who breaks a law which conscience says is unjust, and who willingly accepts the sentence of imprisonment in order to awaken the conscience of the community about its injustice, in fact expresses the greatest respect for the law. » In Civil Disobedience, Henry David Thoreau also questioned the legitimacy of any unjust law. He says: Unjust laws are laws that violate some kind of higher law or ethical system. In general, unjust laws are understood as laws that violate natural law or any other system superior to the law of a particular society. When laymen speak of unjust laws, the term is sometimes used to refer to laws with which the speaker disagrees. Determining which laws are unjust is a process that involves philosophy, ethics, and human reasoning, but in a practical sense, unjust laws are situational and refer primarily to the time the designation is made. In « Bürgerrechte – Ja; Civil Disobedience – No (a response to Dr. Martin Luther King), » Louis Waldman, a liberal lawyer, argues that those who turn to the legal system to crack down on abuse « cannot say they will abide by the laws they think are right and refuse to abide by the laws they consider unjust.
The same applies to decisions taken in accordance with the principles of the rule of law. The contrary doctrine, Waldman explains, not only moves toward illegality, but is also « immoral, destructive to the principles of democratic government, and threatens the very civil rights that Dr. Wald. King is trying to promote. » According to Waldman, it was time for the organized bar association to « tell Dr. King and his supporters of civil disobedience that the rule of law will prevail and must prevail, that offenders, no matter how noble, can be. are not above the law. Throughout history, philosophical and religious writers have often opposed unjust laws. For example, in Isaiah 10: Despite King`s efforts, however, he was unable to achieve what dozens of philosophers and theologians failed to do—create a consensus metric that can distinguish moral laws from immoral laws in a vast, diverse, and polarized society. King could not escape the reality that his distinction between just and unjust laws was inevitably challenged.
Powell was right to note the danger posed by King`s certainty: Governor Ross Barnett, a devout Christian segregationist, was also filled with certainty. Eight years later, when he wrote « Letter from Birmingham Prison, » King avoided basing his case on the Federal Constitution as interpreted by the Supreme Court. Although he had generally confined himself to what lawyers postulated as the legal limits within which he could act, in Birmingham (as on several other occasions) he ignored lawyers and was prepared to violate injunctions in accordance with what he regarded as a « higher moral law ». In prison, with the time and solitude necessary to produce his defense of civil disobedience, King was careful to distinguish what constitutes a superior law and why the character of his protest differs from that of white supremacists. He did not repeat his earlier suggestion that the Constitution was touched by divinity. On the contrary, he based his case directly on the declaration that he had a moral right to disregard immoral laws, to act against a law that « conscience tells him » is unjust. In fact, in his first major speech as a civil rights activist, the magisterial sermon of December 5, 1955, in which he announced the Montgomery bus boycott, King appealed to the Constitution to understand the difference between just and unjust acts. He noted: One question many citizens ask is whether an unjust law is an actual law that must be followed. People who feel called to what they see as a higher law, as a religious law, may not feel compelled to follow the laws of society. On the other hand, people who believe in the value of democratic society understand that the way to change an unjust law is not always to break the law, but to change public opinion about the law. Nevertheless, actions that violate a very unjust law that has serious moral consequences for an individual must be evaluated personally so that a person can act ethically according to their beliefs.
However, King rightly recognized the universal need for an appeal to authority that goes beyond established government norms. As he noted, Hitler`s atrocities were « legal » under the laws of the Third Reich. King had moral superiority, but he and Powell had clung to different horns of an unresolved and unsolvable dilemma. We need your help. Meeting the many challenges of COVID-19 – from medical to economic, social to political – requires all the moral and deliberative clarity we can muster. In Thinking in a Pandemic, we have compiled the latest arguments from doctors and epidemiologists, philosophers and economists, lawyers and historians, activists, and citizens who are thinking not only through this moment, but beyond. While much remains uncertain, the Boston Review`s responsibility to public reason is certain. That`s why you`ll never see a paywall or advertising.
It also means that we depend on you, our readers, for your support. If you like what you`re reading here, commit your contribution to keeping it free for everyone by making a tax-deductible donation. Determining which laws are unjust is not perfect science, as the evaluation of past laws is also done through a cultural lens. What one group of people may seem unfair will seem completely right to another group. A culture may try to create laws that are as fair as possible, but because ethics evolve with societies, there is no way to ensure that all laws always reflect the morality of the society they regulate. Thinking about applicable laws, citizen participation, and willingness to change laws that are considered unfair can be a good way to keep a legal system up-to-date and healthy. An unjust law is not a law at all, the Latin Lex iniusta non est lex, is an expression of natural law that recognizes that authority is not legitimate if it is not good and just. This has become a standard legal maxim around the world.
« A Lawyer Looks at Civil Disobedience » reflects King`s success in convincing, at least in part, Powell that the Jim Crow regime was morally rotten and that rot was deeply within the bar ranks. Powell, however, draws the line on thoughts and behaviors that reject important principles of a legal regime that was imperfect for him but essentially good. Powell never questions the ability of American courts, laws, and political institutions to serve the judicial system, arguing that « due process and the democratic process, though painfully slow, are a far more reliable and certainly less dangerous way to correct injustice and solve social problems » than to comply with ad hoc demands backed by threats of civil disobedience.