Martin Luther King and Civil Disobedience

by Roger Alford

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.

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