Saturday, January 27, 2018

King-01: The Obligation to (Dis)Obey the Law

In April, I will be giving a brief presentation in my Philosophy of Law course concerning civil disobedience, focusing on Martin Luther King's Letter from a Birmingham Jail.

To prepare for my presentation, I wish to spend a few posts setting down some note and thoughts on this work.

Let us assume that you are planning some sort of direct action for some cause that you believe in. The cause could be racial injustice, economic injustice, environmental concerns, or DACA, for example.

King would tell you that, for this civil disobedience to be legitimate, you will need to go through four steps.

Step 1: Gather the relevant facts. You have an obligation, according to King, to determine that you are taking an action that needs to be taken.

Step 2: Negotiate. You present your terms to those who are in a position to take action against the injustice.

Step 3: Purification. What this actually means is determining how you are going to go about a just and fitting direct action. King supported non-violent protest, so "purification" meant (among other things) asking whether you can take a blow and not give a blow in return. If you could not resolve to act in accordance with justice yourself, then you should not participate in the demonstration.

Step 4: Direct action itself.

Notice that "direct action" is the last item on the list. To get here, you have to go through the previous three. You must successfully complete each of the three steps. An inability to get through them means that there will be no direct action.

I want to go over each of these four steps in some detail. First, though, we need to set up some general points.

First, King built his model on the theory of natural law - which is most commonly described using the slogan “unjust law is no law at all.”

In its original form, natural law theory had a religious foundation. We all live under a law given to us by God (though that law lacks precision and requires that we add the details to the law ourselves).

However, natural law does not require a God. It only requires the existence of some sort of moral facts. Those facts could be divine commands, intrinsic values, or the dictates of imaginary people behind a veil of ignorance - or some other way of producing moral facts.

On the model that I defend, the relevant moral facts concern those desires and aversions that people generally have reason to promote universally. These include such things as an aversion to lying, breaking promises, taking property without consent, and the likes. That people generally have many and strong reasons to promote such desires and aversions universally is something that is, at times, objectively true or false. This means that there are moral facts. Those moral facts ultimately determine what we should do.

This brings up the question: What does desirism say about the obligation to obey the law?

Within desirism, we answer this question by asking, "Do people generally have reason to promote, universally, an aversion to breaking the law?"

Of course, this depends on the quality of the law. Good laws are, by definition, laws that tend to fulfill good desires. They are the laws that a person with good desires (and lacking bad desires) would support. If they are good laws, then a desire to obey the law and/or an aversion to breaking the laws are desires or aversions that people generally have reason to promote universally. However, if the laws are unjust - like the Jim Crow laws and the laws of slavery and segregation that we had in this country - then these are not laws that people generally have many and strong reasons to promote universally. This means that people generally do not have many and strong reasons to promote a universal aversion to breaking the law.

Having said this, we do not have the psychological capacity to promote or discourage a desire or aversion to every single law. It would be unreasonable to say, for example, that traffic law is to be best understood as a system where we promote separate aversions applicable to every separate and distinct traffic law. Rather, what we promote is a general aversion to breaking the law, and then we give people the relevant beliefs concerning what "the law" is.

The same applies to playing a game. We do not create in people a separate desire or aversion that corresponds to each of the rules in a game. Instead, we give people an aversion to cheating, then we give them a set of rules that describe to them what "cheating" is. If we change the rules, we do not need to go through the difficult task of causing people to unlearn their prior aversions and acquire new aversions. It is sufficient to simply give them true beliefs about the new rules, and the aversion to breaking the rules will take it from there.

Yet, even where we do speak of an aversion to breaking the law, this is one aversion among many, and may be outweighed by other concerns. In an example I have used many times, a parent in a wilderness whose child is suffering an allergic reaction to a bee sting takes a car when the keys are in the ignition and the owner is not in sight to get his child to the hospital. Assuming that the parent is good person with a proper aversion to taking property without consent. He would have an aversion to taking the car, but it is an aversion outweighed by his interest in saving his child's life.

Along the same lines, if we have basically good laws, people generally many have reason to promote a universal aversion to breaking the laws. However, this does not rule out the possibility that more important concerns might motivate a good person to break the law.

The situation that blacks faced in Birmingham, Alabama in 1963 was a situation that justified breaking the law in service to a greater good - like the father taking the car so he could get his sick child to the hospital.

There will be one significant difference between the King's civil disobedience and the case of taking a car. The case of taking a car violates a just law for a greater good. King broke unjust laws or, as we shall see in a later posting, just laws unjustly enforced. Consequently, the person who stole the car owes some compensation to the victim of his actions for harms done. King and his protesters are under no such obligation.

Another way to say the same thing is that, even if it is the case that human law may be legitimately broken in such a case, moral law cannot be. The breaking of human law must still take place with a proper respect for and refusal to cross the boundaries of moral law. This moral law continues to put constraints both on the father who takes the car (e.g., not running over pedestrians) and the civil rights demonstrator. I will have more to say on this issue in a future posting when I deal with Step 3: Purification. In a case of civil disobedience, this is where one determines the limits that morality places on one's actions and resolves to stay within those limits.

We have to get through Step 1 and Step 2 first. So, in my next posting, I will look at Step 1 for an act of civil disobedience.

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