- While divine command and legal positivist justifications for law can provide no standard for just civil disobedience, contractarian government can instill protections, though these must always be civil rather than human rights.
- When we investigate the most famous of such protections, the U.S. Bill of Rights, we find a arbitrariness about their number and extent that is explored in The Federalist Papers; the tentativeness of such protections and the jurisdictional relativism of their justification as rooted in conventional association only clarifies the deficiencies of contractarian views of rights.
- The first exposition of civil disobedience by Thoreau confirms this suspicion and the consequential resentment of government’s restrictions of liberty that contractarianism nourishes.
- But a careful reading of Thoreau’s essay calls this libertarian conclusion into serious doubt.
- Because he defended an actual state of nature as opposed to the theoretical one used by contractarians to justify the power of states, Thoreau’s objection to government was with the social contract itself, not that initial contracts had surrendered too much individual power but rather than the contract had occurred at all.
- In this position, Thoreau exploited a gaping hole in contract theory concerning whether its theoretical basis was historical or allegorical; Thoreau considered it historical.
- His objection to government was precisely that contractarian surrender had emasculated individual autonomy by surrendering natural rights that individuals ought to retain, so Thoreau properly ought to be seen as rejecting contractarianism itself, and specifically contract theorists’ dismissal of pre-existing natural rights that no contract could abrogate.
- But if Thoreau in the essay condemns contractarianism as a means to social order and justice, can the reader find in the essay what form of civil order Thoreau would approve of?
- To understand how Thoreau produced his answer, two moral revolutions need to be reviewed: Kant’s and the Romantics Kant inspired.
- Kant’s defense of individual rational and moral autonomy required a radical respect for individual agency that cannot be reconciled to majoritarian contract theory, and the Romantic pantheism that considered intuition and emotion as being inerrant moral guidance appropriated Kant’s argument to produce a radical individualism confident in its autonomy and sensitive to a divine voice speaking to intuition.
- It was this hybrid of radical individualism and inerrant moral conviction that powered Thoreau’s notions of social order, which were utterly utopian and unworkable, yet his conception of civil disobedience inspired real political change by twentieth century icons who transformed an impossible rationale for civil rebellion into a natural rights methodology that is equally theoretical, yet eminently applicable to civil life.
- It is deeply ironic that an a posteriori, fictive theory of civil law, social contract, inspired a second and an a priori fiction to oppose it, inerrant intuition, which in turn inspired a methodology of civil resistance that has popularized a rights theory that is still in formation.
- Twentieth century heroes of civil protest attempted to clarify a consensual source legitimizing both government and protest by the same warrant, but this effort failed for Gandhi and King.
- Gandhi’s protests in South Africa and India were eclectic, drawing upon sources as varied as Hindu tradition, “The Apology of Socrates,” and “The Sermon on the Mount,” but he only read Thoreau after he began his campaign of nonviolent protest.
- Gandhi carefully walked the line between private virtue and public order, between divine authority and private agency, finding consensus in Hindu anti-imperialism as well as virtue ethics, but in the end, his willingness to embrace the legitimacy of divine command was responsible for his assassination by a religious extremist.
- Gandhi’s popularity in the West tapped a maturing anti-authoritarianism that was shaped by French theorists into postmodernism, but he is admired more as antihero than for articulating a standard for just and unjust law.
- King’s “Letter from a Birmingham Jail” shows a similar confusion of warrants for his call to civil protest; he mixes legal positivist, contractarian, and divine command justifications indiscriminately while providing those who oppose his analysis plenty of reason to disregard it using the same warrants.
- He offers an undeveloped appeal to natural rights near the end of his letter, but it is framed as a corollary to a divine command argument, which is a fairly traditional approach, yet the examples Dr. King cites are all illustrative of logical inconsistency that might free a natural law argument from a divine command framework and fully justify his protest without regard to any other warrant.
- Unfortunately, he could hardly accuse his opposition of inconsistency when his own appeal is so blatantly composited of conflicting warrants and axioms of legality.
- Functional Natural Law theory begins with a rational examination of human needs as the basis for inalienable human rights; it establishes a boundary between private duties to love and public duties to justice determined by universal reasoning.
- Needs are identified by four criteria: they are necessary for all human flourishing; they are satisfied for their own sake rather than for the utility of other desires; they are incommensurable; and their expression has historically been universal, timeless, and transcultural.
- Functional natural law begins with individual responsibility to satisfy one’s own needs, that then expands into a larger private morality involving the duties of love, drawing a sharp distinction at this point of introduction to public morality toward strangers, and finally recognizes a subset of needs dependent on civil government as the warrant for all governments’ pursuit of justice, defined as “to each his due.”
- Functional Natural Law explicitly rejects other warrants for law because each violates some human need and therefore some human right: divine command denies individuals’ participation in their own government; legal positivism secures no protections whatsoever for human rights superseding positive law; and social contract enshrines majoritarian rule and provides no theoretical safeguards for minority or individual rights other than those enshrined in civil codes.
The Riddle of Equality
A recent news article has prompted me to examine the problem of warranting civil disobedience over the force of law.
The issue is becoming familiar. According to the local newspaper, a twenty-nine-year old man was arrested on multiple counts for threatening a municipal water company employee who wished to read his meter. The suspect was “wearing full body armor with a knife strapped to his chest, a Kevlar helmet with a face mask and armed with pepper spray.” After a brief standoff he was physically subdued by a law officer and arrested. Questioning revealed he was a member of Sovereign Citizens movement and had had multiple previous scrapes with the law. Followers of the movement think “they can decide which laws to obey and which to ignore” according to the Southern Poverty Law Center. He also told arresting officers he hoped to “go to Pakistan in two years so he could fight and maybe die for something ‘that was good and true.’” But he had been found psychologically unfit for military service by the U.S. government.
I begin with this rather absurd case because most persons would find it easy to make sense of. We think this homeowner too extreme, that his cause goes too far, is too outlandish a defense of liberty. But that implies a clarity I think lacking about admirable civil disobedience versus civic responsibility. In any conflict between rights and law, where are the boundaries and where is the sweet spot that balances the interests of some against the interests of others? Is that even a valid phrasing of the issue? More to the point, are interests synonymous with rights? It is troubling to suppose that the ideal is always in the middle — that some fulcrum exists that finds the balance point — for in a totalitarian state that point might be far too close to the interests of the state while in a libertarian dream world, it might celebrate all the chaos of a gold rush boomtown. The notion that we can’t pick and choose which laws to obey rings true, yet we erect monuments to our Founding Fathers, whose picking and choosing spurned one government and spawned a new one. So what force does positive law exert simply by its declarative force, and if something counterbalances it, what could it be that allows us to regard some criminals as heroes and others as worthy of the slammer? This kind of question drives home one point: we cannot say what parents say to their children, that a good citizen always obeys the law.
I have examined some alternatives warranted by other justifications for legal power, rejecting divine command and legal positivism on the grounds that these warrants provide no means of ensuring minority rights or respecting any sort of expression of civil disobedience (see “Preliminary Thoughts on Civil Disobedience: Natural Rights Issues“). That cannot be said of social contract theory. As the U.S. Constitution exemplifies, defined rights can be specified in written or tradition-bound compacts, though they would of necessity be civil rights rather than human rights and thus open to a charge of cultural relativism that would do little to arbitrate disagreements between polities that define rights differently. We see that kind of conflict frequently on today’s international scene and in the cowboy libertarianism that defends circumstantial freedom as the greatest good in the U.S. And this excess devotion to liberty brings us right back to our Sovereign CItizen’s notion that he is the arbiter of justice. Yet again, the question cannot be avoided: is “excess devotion to liberty” a concept that can be justified? Excess? Don’t we have courts to align these issues with the Constitution? Yes, but. Didn’t these same courts repeatedly reverse themselves in Dred Scott, in Brown v Board? And for that matter, didn’t the Constitution reverse itself in the 15th, 19th, and 21st Amendments? And didn’t South Carolina advance the doctrine of nullification that allowed state laws to supersede federal law? And didn’t Jim Crow laws nullify in fact what the 14th and 15th Amendments established in law? Isn’t it reasonable to assume that some larger system of value in each of these cases explicitly rejects contractarianism in the U.S. and doesn’t all that airy talk about human rights implicitly reject the necessary cultural relativism implied in social contract more generally?
But these conflicts in themselves are hardly sufficient to condemn in its entirety a social contract that builds in protections for minorities and allows adequate mechanisms for redress. But we might ask of the framers of such a constitution the same question raised by our Sovereign Citizen and our founding fathers: forget about what endows the law with legal authority, and ask quite a different question: what properly limits state power vis a vis individual citizens? It is good to have a Bill of Rights, but why these and not others and why ten and not a hundred? It is all very fine to make free speech a guaranteed civil right, but why should it be, other than that our revered founders decided to add it to our compact of government (but only after a bruising debate and with serious dissent as revealed in The Federalist Papers? The kernel of social contract is that government is a purely conventional invention resulting from a voluntary association of like-minded individuals in pursuit of common interests, so it seems reasonable that had their interests been different, their contract might have taken an entirely different form. Viewed in this light, there is nothing sacred about the rights enshrined in the U.S. charter, and so long as we embrace the fiction of the social contract as justification for government, we’ll have to look elsewhere for some foundation for our rights and some reason to violate positive law when we think they have been abrogated (see ”Where Do Rights Originate?“).
It is, of course, quite possible to take seriously the notion that we are not at all bound to law except by our own consent as the example cited at the beginning of this essay argues. This, after all, underlies the myth of the original social contract — and recall that Locke also argued that each of us renegotiates that contract as soon as we decide to accept the law’s dictates — so what was good for our ancestors should be good enough for us. But that notion quickly produces the dyspeptic realization that any government may be thought by any citizen as an impingement on freedom. This certainly seems the position of the originator of the term “civil disobedience.” Thoreau’s famous line about that government being best that governs least vivifies the libertarian position that any path out of the state of nature involves reluctant sacrifice of freedom in exchange for security. I think the widespread acceptance of this view explains a big chunk of today’s resentment of government. That seems an inevitable outcome of taking social contract seriously as is the brute libertarianism that follows. But a careful reading of Civil Disobedience raises doubts about whether civil libertarians should make Thoreau their patron saint. And if we reject the warrant Thoreau used to derive his view of government, what befalls the argument for civil disobedience that flows from it?
It is certainly true that his resistance to government constitutes an embrace of the state of nature, one literally demonstrated by his years at Walden Pond. But I argue that the state of nature Thoreau embraces is as far from that envisioned by the inventors of contractarianism as can be conceived. So though Thoreau stands with those who resist government, his argument is less against government per se than against government justified by the social contract whose rationale required a much more hostile natural condition. Libertarians think he desires anarchy, a return to that condition, a rejection of the compromise that created government. He does not. He could not because the state of nature he envisions calls for no compromise and no surrender of individual agency whatsoever. What is more, he clearly thinks societies can live amicably without the contract and cannot live amicably with it. Writing in his home-built cabin in the Massachusetts winter of 1847, Thoreau was not merely objecting to government overreach; he was objecting to government by majority, by consensus, by contract, and by convention. He argues, “Any man more right than his neighbors constitutes a majority of one already.” Recall that in his original framing of the state of nature, Hobbes had dismissed the notion of “right” as a subjective delusion (see “Why Invent a Social Contract?) . Everyone acts to secure what she thinks right, said Hobbes, and it is this pursuit that she inevitably comes into conflict with her neighbor, such war of all against all producing the need for the leviathan of government power. Thoreau is clearly not imagining that kind of natural condition, nor does he envision that kind of barbaric outcome. His conception of the state of nature more resembles the lost Eden of Rousseau than the hellish dystopia that Hobbes had envisioned, yet he differs from Rousseau in rejecting a general will that conforms individual will to common consent. His opposition is the defining quality of his understanding of persons’ relationship with the state. He is adamant in denying majoritarian rule: “[The state] can have no pure right over my person and property than what I concede to it.” He can only adopt this position because he imagines the demands of social order to be far more dangerous than disagreements among individuals that might compel social order. Why should he have come to a conclusion so different from the social contract theorists and his own country’s founders?
The answer can be found in the sixty-one years separating him from them. Specifically, two moral revolutions changed the theoretical field, the first advanced by Immanuel Kant and the second by the Romantic revolution he inspired.
It was Kant who argued for moral autonomy as the antithesis and antidote to the tyranny of authority that had dominated political theory during the millennia of divine command. It was specifically religious authority seeking trust that had utterly demolished trust in the Protestant Reformation (see “The Fragility of Religious Authority”). Kant may be seen as the final spokesman of the chain of critics who had ushered in new moral axioms prizing individual experience and universal reasoning (see “Modernism’s Midwives”). In Critique of Practical Reason, Kant argued that each of us constitutes a moral universe whose laws we must actively engage and accept and for which we may be held responsible. Even should we attempt to abdicate that responsibility and surrender our agency by granting trust to authority, he reminds us that it is our own reason that judges the authority worthy of our trust (see “Authority, Trust, and Knowledge”). For Kant, it is this preferential freedom that marks us as moral agents worthy of radical respect (see “Our Freedom Fetish“). We see the echo of Kant’s argument in Thoreau’s.
But we see something else as well: Thoreau’s confidence in his own moral rectitude was more absolute than Kant with all his admiration for practical reasoning could have imagined. Throughout Thoreau’s writings, and especially in Walden and Civil Disobedience, we see a disdain for convention coupled with an almost strutting confidence in his own moral superiority to those mass of men living in quiet desperation. The former fuels Thoreau’s contempt for social contract theory, which at its center regards political arrangements as conveniences invented to procure the desires of the majority without regard to moral judgment. Thoreau even goes so far as explicitly to condemn William Paley’s The Principles of Moral and Political Philosophy (1785) precisely because it, like social contract theory, bases government on grounds of practical convenience rather than pure liberty (though Paley also skewers social contract theory for its other falsities, among them the myth of the state of nature). But echoing through Thoreau’s writing is the deeper appeal to justice, to right, and to divine providence combined with an absolute confidence that he and not that mass of men might decide which laws satisfy justice and which offend it. Whatever grounded such outsized confidence also gave our Sovereign Citizen his sense that his rectitude was absolute. We have to ask what allows it.
For Thoreau, it came from the same confidence that sees anarchy as avoidable and wisdom as universally available if not universally embraced. Thoreau could reject the contractarian argument that conflict among citizens is inevitable for the same reason he could reject Kant’s careful constructions about the limits of reason: Thoreau embraced the Romantic pantheism that was flooding Western culture in the first half of the nineteenth century (see “The Victorian Rift”). Therefore, he could assert with confidence, “What I think is right is right; the heart’s emphasis is always right.” The receptive heart in tune with nature could hardly avoid knowing the good and adhering to it as well. With such ready access to indubitability, who could blame him for his disgust with those who would put their self-interest above his freedom? To divine bad laws, one must ignore compacts and courts, crowds and opinions, in favor of a higher and more intuitive knowledge that the god-in-nature provides, so long as she could clear away the delusionary and conflicting propaganda advanced by the majority. This is Thoreau’s answer to the thorny question of when one is entitled to practice civil disobedience. Its level of trust echoes the power of pre-Reformation authority without the bothersome need to forfeit moral agency but promising the same infallibility (see “Premodern Authority”). It is indubitable belief, an epistemological absurdity (see “Knowledge, Trust, and Belief”). As a temptation to moral clarity, it is a snare and a delusion, but as a foundation for law, it is a disaster (see “Belief in the Public Square”).
In Thoreau’s lifetime, contractarian governments were considered a triumph of liberalism, and utilitarianism gave a gloss of morality to a strict majoritarian rule. Thoreau’s pantheist rejection of contractarianism was ironic, for he appealed to an imaginary a priori capacity to know truth and goodness to reject an equally imaginary a posteriori creation of civil government. No state of nature ever existed for Thoreau to return to and no original contract ever was consented to for him to withdraw consent from. Humans have never lived outside of law, certainly never lived in isolation while pursuing a riot of desires, so they could never come together in some conventional agreement for mutual restraint (see ‘Why Invent a Social Contract?”). The return to a state of nature that Thoreau advocated was ahistorical as well as impossible, though his overriding critique of contractarian models for law was a valuable reminder of the same tradition that gave us natural rights to begin with (see “Where Do Rights Originate?”).
Seen in the cynical light of a postmodern age, Thoreau’s emphasis on individual moral autonomy seems so attractive as to make him a prophet (as were Dewey in epistemology and Nietzsche in morality for much the same reason). But his Romantic warrant now seems quaint and pitiable, which explains why it is less celebrated today. Facing it prompts a Tooth Fairy kind of moment. If we can’t trust god-in-nature to reveal to our intuitions when laws are unjust and we also can’t trust a social contract rooted in a fiction, founded on convention, and moored to no fixed conception of rights, and if positivist and divine command theories make no provision whatsoever for retention of rights, what capacity can litigate the defensibility of any act of civil disobedience (see “Foundations of the Law: an Appetizer”)? If our Sovereign Citizen did not believe in a Spinozan kind of divine guidance, what fed his conviction? The answer reveals the dregs of Romantic enthusiasm shorn of divine guidance yet every bit as stubborn in its worldview. Where Thoreau saw a web of nature cradling human will and guiding it to the good, our Sovereign Citizen likely saw a tangle of conflicting passions, none more trustworthy than any other, or rather none more worthy of his sanction. Kant had argued for human dignity and radical respect, but also for an intersubjective operating system that tapped a universal reasoning faculty to impart rationality and moral responsibility to citizens. But postmodernists see all that as hypocritical abuse of power by authority bent on exploitation (see “Postmodernism Is Its Discontents”). They think experience molds reasoning and private constructions of value allow every person to exercise autonomy in moral decisions, including those involving law (see ‘What Is the Virtual Circle?”). This is Thoreau’s confidence without his cause, moved less by a transcendental vision of ultimate value than by a cynical calculation that there is no value greater than whatever each citizen subscribes to. It argues that civil disobedience is an unfettered right, perhaps the only right necessary, that is permissible to every citizen whenever her interests are crossed by positive law, regulated only by her degree of courage and tolerance for hypocrisy.
This level of anarchy is obviously unsustainable, but that does not prevent it from adding persistent fuel to the fire of civil discontent that periodically sets polities ablaze. Because it is personalized, it need not submit itself to anybody else’s standards of reason (see “One Postmodern Sentence”). Our Sovereign Citizen exemplifies the contemporary acceptance of uncompromising civil disobedience, a nihilistic strain that moves civil protest to expremes , that often ends in violence. The challenge for wiser thought leaders has always been to counter this extremism while still seeking good reasons why some positive law must be opposed. This implies an appeal to moral autonomy that regulates moral freedom by some standard that citizens can find consensus for. When we investigate twentieth century heroes of civil disobedience, we see them struggling to articulate just what that standard might be.
Mahatma Gandhi’s efforts in South Africa and India sixty years after Thoreau are well-documented, but it is worthwhile to examine his program from the perspective of the justifications for law that must be commonly embraced by government and by resistance to it. He read Thoreau, of course, but only after studying Plato’s “Apology of Socrates,” which he paraphrased in 1908, and Tolstoy’s explication of “The Sermon on the Mount.” Obviously, these sources inclined him to finding warrant for law in divine command, but there is also no doubt that he was deeply influenced by notions of individual responsibility and dharma (duty) as presented in the Bhagavad Gita. Gandhi’s program was organic and even fluid, for the practice of satyagraha, devotion to truth, evolved through his protests in South Africa and were not fully articulated until just before his assassination in 1948. The Hindu religious tradition was aggressively syncretist and personal, so it is unsurprising that Gandhi drew inspiration from many sources both religious and secular. Perhaps only Hinduism could allow divine command to translate into a personally derived commitment to moral fitness that the autonomous agent might regard as sourced in her own conviction, but there is no doubt that Gandhi’s appeal to individual responsibility and moral agency resonated with the cultural climate that also nourished anti-imperialism. If Gandhi trusted religious authority, it was quite different from the arrogant self-righteousness that motivated Thoreau. In the best Hindu tradition, it imposed moral responsibility on his followers, and Gandhi carefully walked the line between private virtue and public order, between divine authority and private agency. He was willing to find public consensus wherever it could be found even at the expense of rational consistency. “I want Khudai raj, which is the same thing as the kingdom of God on earth,” he said. Perhaps Gandhi is best remembered for his rigorous rejection of violence and respect for extant institutional authority in the tradition of Socrates and Jesus. This was meant as counterweight to the growing postmodern alienism of Western societies but also as inducement in the strongly conservative environments where he sought change. His program had a deep appeal both to conservative religious tradition in India and the militant secularism of Western societies in the twentieth century. Still, the oil-and-water emulsion of trust in religious authority and jealous retention of moral sanction, of divine command and moral autonomy, could never be either thoroughly mixed or entirely separated in Gandhi’s own thinking, and in the end it killed him. He was assassinated by a Hindu nationalist who thought Gandhi too sympathetic to the moral universalism implicit in permitting the secession of Muslims from the newly independent Indian state. It is tempting in the West to think Gandhi’s error was to bow to religious authority in his model of nonviolent protest, but it is doubtful that he could have been successful in his quest for Indian independence if he had fully clarified his view of the proper source of legal authority because India found its religious identity a profound source of unity in its anti-imperialist crusade against the British Empire.
We can admire Gandhi’s courage and moral power even if contractarians in the West cannot quite trace its source to a legal justification consistent with their own axioms of civil commitment. Surely, the emerging French theorists who were formulating postmodernism shared Gandhi’s contempt for imperialism, consumerism, and the other grand hypocrisies of twentieth century progress. They could admire his anti-authoritarianism as pure rebellion, which was not Gandhi’s aim at all. The ambiguities and incongruities in his program widened its appeal even as it dulled its source of warrant. Gandhi’s reputation today, like Thoreau’s, is more as antihero than as a arbiter of just and unjust laws (see “Freedom, Antihero and Zeitgeist”).
Even if we move forward in time for another fifteen years and to an entirely different cultural climate, it seems clear that Western models of civil disobedience also seemed boxed in by the need to find some deeper source of moral suasion than positive law and private agency. And so we see the kind of hybrid and disjointed effort typified by Martin Luther King’s Letter from a Birmingham Jail. This is an inspiring appeal to civil disobedience in the tradition both of Thoreau’s solitary protest against extending slavery and Gandhi’s call for mass protest. It was obviously in Dr. King’s interest to challenge the dictates of positivist law as unjust and to defend a theory of justice that would confront it, but again the mix of appeals to divine command, positive law, social contract, and moral agency diffused and depowered King’s standard for discriminating just from unjust law.
He references “justice” and “injustice” a total of thirty-eight times in his famous argument for nonviolent civil disobedience, yet he seems unable to provide a clear warrant for his judgment that Alabama’s actions have been unjust to black Americans. He baldly claims, “I am in Birmingham because there is injustice here.” One might expect him to follow that assertion with some evidence or analysis, but what follows are a series of allusions to historic heroes of resistance: Amos, Paul, Socrates, Jesus, and Luther. He claims Birmingham to be the most unjust city in the nation because of its segregation laws, and so assaults positivist law directly. He continues to accuse its courts of injustice as well, a second attack. He reminds us that “Everything Hitler did…was legal…” But he quickly avers, “We have waited for more than 340 years for our constitutional and God-given rights.” This appeal to positive law is confusing since until 1954 the courts had justified segregation and, of course, Alabama’s laws still did, both sets of laws constitutionally authorized. The reader at this point expects a pivot to divine command, the traditional alternative to positivist warrants, one foreshadowed by Dr. King’s background, his earlier admiration for religious rebels, and his brief mention of “God-given rights.” So may we assume his partial rejection of positivist law moved Reverend King to a clear absolutist warrant, one built upon the traditional foundation of authority? Not really.
So often the contemporary church is a weak, ineffectual voice with an uncertain sound. So often it is an archdefender of the status quo. Far from being disturbed by the presence of the church, the power structure of the average community is consoled by the church’s silent — and often even vocal — sanction of things as they are. But the judgment of God is upon the church as never before.
At this point in the letter Dr. King’s charge of injustice seems justified by neither positivist law including social contract nor religious authority as exemplified by his co-religionists. To his credit, he recognizes the difficulty.
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 well ask: ‘How can you advocate breaking some laws and obeying others?’ The answer lies in the fact that there are two types of laws: just and unjust” (see “Facts are Fluxy Things”). 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?”
Having laid out his premise, Dr. King now offers the nut of his argument. “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.” He continues to defend his position by referencing the thinking of Martin Buber and Paul Tillich, two postwar theologians who rooted morality in relational terms.
We see in this, Dr. King’s only explicit foray into warrant, the disconnect between the tectonic shift in value he advocates and the justifications he offers to validate it. Without doubt, the majority of white citizens of Alabama opposed not only the changes Dr. King’s letter advocates but also the means by which he sought to procure them. Almost without exception, the segregationists, political moderates, and clergy he disparages in his famous letter considered themselves devout religionists whose opposition could be validated by Biblical authority, long tradition, current culture, and settled law. Yet here Dr. King seems to be disputing the morality of some laws while upholding others, respecting one source of religious authority while rejecting others. As beautifully phrased and poetic as his argument is, it fails as a rational case for civil disobedience, producing in his reader a confusion about its moral foundations that allows his enemies an easy escape from the charge of injustice that inspires his protest. We are forced to ask why.
To a religionist like Dr. King, arguing that God created man to be thus and so and created law to do this and such is a corollary to the axiom that God wills the world and that his will is good. But as the authority for Dr. King’s claims is disputable by those who interpret God’s will differently, as Birmingham’s white citizenry undoubtedly did, the corollary could be easily disputed without doubting the axiom from which it was derived, meaning segregationists could consider themselves good Christians as they dismissed Dr. King’s definition of injustice and its implicit demand for redress, particularly when his condemnation of fellow pastors explicitly raised the question of why their religion is wrong and his right. Here we see an old, old blind spot for defenders of religious authority, the very issue that demolished it as a consensual foundation for law in the Reformation (see “Religion and Truth”). It is irrational to presume that the same authority can justify two opposed positions, yet authority in itself is incapable of resolving the conflict and must appeal to some other means of resolution. Historically, that means was social contract theory, but it is that very cultural consensus that has produced the injustice that Dr. King is protesting in Birmingham. He champions a minority against a majority in a polity that has given the majority the power to define justice as it sees fit. He champions an interpretation of religious authority clearly at odds with other religious authorities, that disagreement properly dissolving any warrant on that score. His argument at his point may be inspiring to his allies, but it must remain opaque to the opponents he wishes to convince. He seems unable to find the warrant to make any charge of injustice stick.
But as tied to religious absolutism as his rhetoric is, we see an embryonic argument for a different kind of justification, though sketchy and inconsistently framed. His religiosity considered it a complement to a more powerful divine command, but for those who read divine will differently or reject our ability to know it, this position makes an independent kind of argument, one impossible to tease out of a religious claim unless its adherent explicitly denies divine command as a warrant, something Dr. King was certainly unwilling to do.
When he says, “A just law is a man-made code that squares with the moral law or the law of God,” his religious convictions lead him to think the moral law most powerfully warranted by the law of God. In this, he has august precedent, for all of the religious luminaries he cites as authority for his position thought the same. But his own argument undercuts the relationship between what God wills and what justice demands because other authorities doubt his understanding of what God wills, though Dr. King seems not to appreciate that. On the contrary, his deep disappointment with Christian moderates and clergy critical of his position reveals his inability to separate the moral law from religious authority and either from the positive law that should reflect them. But this position has been challenged since the Protestant Reformation that inspired both Dr. King’s denomination and the profound distrust of religious authority that allowed it to flourish. In truth, the paragons of civil disobedience he references, the “creative extremists” he admires, universally violated both positive law and established religious authority, upholding a “higher law” in their place. And Dr. King makes repeated if inconsistent appeals to that same higher law and urges his readers to do the same, though his effort is muddied by his confusion over its source and its locus of power. He very briefly mentions it as “natural law.” And this is the fourth justification for law that might have allowed Dr. King to fight City Hall, only he was unable to disentangle it from the divine command, contractarian, and positivist legal justifications that he as well as many of his segregationist enemies regarded as absolute and superior.
What he at least intuited as a root of law is a common reasoning power that should bridle at the inequity of treating some as less than human. This argument may be inconsistently supported in Scripture and so may be veiled to divine command adherents. The Bible frequently reiterates the danger of subjecting God’s will to human reason and conceptions of justice (see “A Problem with Sacred Texts”). It may be (and was) ignored by the social contract theorists who enshrined the three-fifths rule in the Constitution as a majoritarian compromise in violation of plain reason. It may be (and was) ignored by well-meaning moderates who warned Dr. King against violating positive law. But despite being disputed by religious tradition, majority will, and written law, it is a conclusion indisputably dictated by universal reason. Tribalism had made the argument difficult to advance, and at least a part of that difficulty may be laid at the feet of religionists who found other persons’ gods motive enough to question their humanity. Though Dr. King makes no sustained appeal to it, he repeatedly and implicitly reminds his readers that they too must see the illogic of those who preach equity while enforcing inequity, who allow a majority to impose laws on a minority that they would never allow to be imposed on themselves, who beat children in defense of community, who break contracts without repercussions, and who act contrary to religious beliefs they profess to hold. These are justifiable rational arguments rooted in a value system appealing to a logical consistency noticeable in Dr. King’s letter most clearly by its absence. Its basis is the principle of non-contradiction, the most basic test of rationality we know of (see “The Tyranny of Rationality“). Sadly, Dr. King could hardly appeal to that principle while the inconsistency of his argument for justice was violating it.
Only functional natural law theory provides a solid grounding for answering such a question because it is the only justification for law that begins with individual rights based on identifiable needs and sees civil participation as one such need (see “Functional Natural Law and the Legality of Human Rights”). It is the political wing of a private ethical structure whose morality is guided by the development of the habitual disposition to satisfy needs, virtue ethics (see “A Virtue Ethics Primer.”). Like the modernist tradition itself, virtue ethics focuses upon individuals’ moral agency, their duties to self and to those they love. Beyond the limits of self, family, and friends, the moral agent enters into reciprocal relationships with strangers as individuals and as political entity. The correct gauge of that reciprocity must be not love but justice, what is due (see “The Moral Bullseye“). And that is what our Sovereign Citizen, Thoreau, and every citizen in every state has to negotiate with other citizens and with strangers-writ-large in a democracy. The justice they are entitled to, what they are due, can only be negotiated on the basis of universal human needs, which are inalienable (see “Justice Is Almost Everything“).
The determination of needs and the rights that entitle us to their satisfaction are relatively simple to determine by interrogating what we choose to call a need. Is the achievement of this desire clearly necessary for our flourishing? Is it necessary for everyone’s? If we answer affirmatively, we then ask further: is this desire instrumental to some other and more fundamental desire or is its satisfaction pursued at least in part for its own sake? Does this more basic desire meet the criteria of all human needs: universal and transcultural (both temporally and geographically)? Does the satisfaction of this desire make impossible the satisfaction of some other need? One of the central tenets of virtue ethics is that the requirements for a fully human life are mutually supportive rather than in conflict, accumulating to the summum bonum, the totality of goods necessary for living a complete human life. Needs are thus incommensurable. They can be neither ranked nor ordered, though the order of their satisfaction in real time may be. While they cannot all be satisfied simultaneously and indeed for much of human history may not have been capable of satisfaction at all — consider sanitary or medical needs throughout most of history — their fulfillment remains an unmet need in each generation until finally sated for each citizen.
The self-questioning that accompanies our attempt to recognize and fulfill needs anchors the intellectual virtue component of the moral system. It is no small thing to negotiate our desires since persons as choice-making machines exist in a perpetual pursuit of the good, regardless of how they might define it. Plato was certainly correct when he said we always choose what we consider good at the moment of choosing; otherwise, we would choose an alternative. Virtue ethics makes a point of identifying the truly good so that our desires might reflect our actual needs rather than degenerate into a mad scramble of conflicting wants or manufactured materialist desires. The moral virtue component of virtue ethics recognizes both the radical respect our preferential freedom confers and the responsibility for correct choosing it imposes as the core human duty (see “Needs and Rights“). Functional natural law widens that recognition to the political sphere, defining justice as the procurement of these needs as inalienable human rights whose violation requires citizens to disobey positive law .
By now it should be obvious that functional natural law theory champions human needs as human rights: we are entitled to try to meet our needs. They are our due and their satisfaction our moral duty. And since justice may be defined as “to each her due,” we are entitled to a political system that facilitates rather than impedes their satisfaction (see “Natural and Political Rights”). This explains why the other three justifications for law violate the human needs that are also human rights. Divine right warrants disenfranchise citizens in participation in their own common welfare. Legal positivism makes no provision for protection of human rights whatsoever and regards law as fixed, thereby disallowing even just civil disobedience. And the third option, the contractarian view of political organization, could not be more wrong because it considers all rights to be civil only and enshrines a tyranny of the majority that provides no fixed protections for human rights that give law its legitimacy to begin with.
Government is neither conventional nor built from expedience. It is not an invention at all, but has always formed a buttress to human happiness. It is a crucial component of the quest for persons’ satisfaction of their needs, operating impartially to arbitrate conflicts among citizens’ desires and actively meeting those that citizens can satisfy only through collective action. That ideal can be summarized thus: government’s sole function is to deliver justice to each citizen. A perfectly moral government would manage its retributive, contributive, and distributive roles so assiduously that any failure to meet any citizen’s needs, meaning any failure to secure rights, would be the result of that citizen’s own moral failings. Anything less would be unjust. Anything different would justify civil disobedience by individuals or minorities.
There is more to it, of course. It goes without saying that no government satisfies such a lofty function all that well, whether from its own incompetencies or from the failure of citizens either to understand or accede to its purpose. It faces thorny issues of distributive justice for citizens unable to satisfy their own needs, leading to impossible attempts to calculate fairness, often in defiance of justice (see “Economic Justice“). It must balance the just demands of liberty and equality (see “The Riddle of Equality“). And even when it is able to handle such delicacies, it finds itself trying to identify and balance citizens’ real needs in such a way that they both get what they need and are satisfied with the process. Even if government acted in accord with a true theory of its proper function, it would so frequently fail in its duty to justice that we might expect more civil disobedience from a clear articulation of its role in citizens’ lives rather than less, but as it now operates out of a specious conception of its duty, we will continue to require a clear-eyed understanding of what allows civil disobedience to challenge its authority and our sanction of it.
The example that began this essay typifies aspects of the task. The Sovereign Citizen who viewed his liberty as synonymous with a private sense of justice exemplifies a rationally determinable unjust act of civil disobedience. His needs, and therefore his rights, were untrammeled by the governmental agents he opposed and even had they been, he could not have justified threatening the life of another person to defend such a slender transgression. He had a civic duty to exhaust available legal remedies before breaking the law in any case. Applying the needs-based justification of functional natural rights theory not only alerts us to when civil disobedience is a moral duty but also when — and why — it is unwarranted.