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Dictionary of the History of Ideas

Studies of Selected Pivotal Ideas
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Assuming that the notion of civil disobedience is
reasonably clear, the question immediately arises why
anyone should be civilly disobedient. Is it ever legiti-
mate? If so, under what conditions? The two most
important justifications of civil disobedience tradi-
tionally have been the Higher Law doctrine and some
version of Natural or Human Rights.

1. The Higher Law doctrine asserts that God's law
takes precedence over civil law whenever it can be
shown that the two come into conflict. Man is ordinar-
ily duty bound to obey the civil law and magistrates
since the benefits of orderly government are large
indeed; on the other hand, man cannot, out of higher
duty, obey the civil law or magistrates if they command
him to break the word of God.

While the Higher Law doctrine was never wholly
absent from thought and practice during most of the
career of Western civilization, it was usually sporadic
and individual in nature. For the most part, people


were happy to accept the Higher Law concept without
drawing its painful corollary of civil disobedience. The
most sustained development of the concept and its most
thorough application was the work of those nine-
teenth-century American abolitionists who owed their
inspiration either to transcendentalism or to the pietis-
tic, free-will Trinitarianism that came to dominate
many branches of Protestantism early in the century.

According to the transcendentalists, the Law of God
says that men are morally equal, while certain aspects
of civil law in the United States either deny this or
prevent its recognition. In view of this conflict, it
becomes the duty of an honest man to follow God's
law and defy Fugitive Slave Laws and other aspects
of the civil law (the extent of violation depending upon
whether or not one countenances violence, and to what
extent). Not to do so is to be a “practical atheist”—that
is, one who says he believes in God but does not follow
his commands.

The transcendentalists, while united on the principle
of Higher Law, certainly did not agree on how far to
extend the commitment to civil disobedience. Emerson
was reluctant to extend it very far because he felt that
the only permanent solution to the evils of the world
is a regeneration of men's souls. While he spoke sharply
against slavery, it remained for transcendentalists like
Theodore Parker and George William Curtis to be
civilly disobedient and to answer effectively the critics
of this activist policy.

The critic is wrong, Parker and Curtis said, in think-
ing that civil disobedience will lead to chaos or under-
mine the benefits of orderly government. Proponents
of the Higher Law recognize the importance of stabil-
ity and so are willing to obey many questionable laws;
they claim only that some laws and policies are so
thoroughly immoral that they must be publicly dis-
obeyed as well as denounced else one renounces his
own humanity. Moreover, the man of principle who
will not obey a vicious law is that sort of person who
can be counted upon as the strongest upholder of law
in general since he will not break laws for selfish rea-
sons or obey the law only when the constable is watch-
ing. Finally, a person who would obey any law just
because it is a law is utterly immoral, for the vilest
crimes are often committed on the excuse of following
orders of a legally constituted superior. If the colonials
had obeyed the law, they would never have thrown
the tea into Boston Harbor and there would not have
been a United States of America.

Henry David Thoreau is, no doubt, the most famous
advocate of civil disobedience among the transcenden-
talists. It is well known that he refused to pay his poll
tax by way of protest against the Mexican War and
the expansion of slavery, and that he was turned out
of jail when friends paid it in his stead. The protest
itself accomplished nothing, but for many people his
act became highly significant as a symbol of passive
resistance to injustice. There is little doubt that it can
be so construed and that Thoreau so intended it. But
the truly radical nature of his political beliefs is by
no means adequately suggested by this standard inter-
pretation, for Thoreau was essentially an idealistic
anarchist who believed that all civil law that touched
moral matters was an unacceptable encroachment on
the rights of an individual. A majority vote, he thought,
does not establish what is true or right. In the ideal
state all individuals would act according to their own
insights into Universal Truth and there would thus be
no need of civil government at all, except for the
exercise of practical affairs like garbage collection,
road building, and other matters where decisions of
conscience are not involved. Thoreau stated his an-
archism succinctly by saying that if that government
is best which governs least, then that government is
absolutely best which does not govern at all.

The majority of antislavery activists owed their
Higher Law inspiration to the pietistic, free-will Trini-
tarianism that flourished in the first half of the nine-
teenth century as a protest against both the theological
and social conservatism of Calvinism. Although there
were many differences, this “New Light” theology
shared with the transcendentalists the notion of indi-
vidual inner light that provides direct communication
with God. When the law of God so obtained is violated
by civil law, as in the case of slavery, the duty of the
Christian is to be disobedient. The most interesting of
this group, because they were the most radical and
effective, were the Oberlinities, both the College and
community, led by Asa Mahan, Charles Finney, John
Keep, James H. Fairchild, and others. They ran a
fabulously successful Underground Railway and par-
ticipated in the famous Wellington Rescue Case that
provided much important propaganda for the young
Republican Party.

While the Oberlinites were thoroughly radical, they
completely rejected the views of William Lloyd Garri-
son. Garrison was radical, they felt, in a completely
useless way. He rejected both the Christian Church
and the United States Constitution because they pro-
vided a framework that tolerated slavery. He believed
that the only thing to do was for the North to secede
and start over. The Oberlinites felt that this plan might
help the consciences of some Northerners but would
not help the slaves in the slightest. It was better, they
felt, to make the Church militant (they helped organize
the American Missionary Association); to work through
the courts (they effectively nullified the Ohio Anti-
Slave Law); to help create new political channels (they


worked for the Free-Soil and Republican Parties); and,
finally, to be civilly disobedient in an effective fashion
(they never lost a slave to federal authorities).

2. The notions of “natural rights” and “human
rights” are by no means identical since the former
usually involves an absolutistic and rationalistic outlook
in moral philosophy and is usually based on a theolog-
ical foundation such as “God-given rights,” while the
latter does not usually entail such conceptions but
leaves open the possibility, at least, of relativistic,
voluntaristic, and humanistic foundations for man's
basic rights. The concept of human rights is the one
usually used these days, not simply because ours is a
more voluntaristic and humanistic era but because this
concept includes many social and economic freedoms
which seem important to our age, along with the more
traditional concept of freedom as “freedom from”
various restraints. For example, the Universal Declara-
tion of Human Rights, adopted by the United Nations
in 1948, recognizes, among others, the rights to life,
liberty, personal security, and equal protection of the
law; freedom from slavery and degrading punishment;
freedom of thought, conscience, speech, religion, and
peaceful assembly; and the right to an education,
choice of one's own employment, favorable working
conditions, and protection against unemployment.

The concepts of natural and human rights, with all
their differences, still have a core of common meaning,
namely, that there are certain rights which belong to
a man independent of his position in a civil society.
Since society does not bestow these rights, it cannot
justifiably take them away. This is the point in saying
that such rights are inalienable. The function of society,
far from interfering with these rights, is to sustain and
protect them and to adjudicate conflicts that arise in
the common pursuit of these rights. If a civil govern-
ment subverts these rights in a wholesale fashion, it
is not fulfilling its proper role and hence the people
are justified in overthrowing that spurious government
(with the least violence possible) and erecting a legiti-
mate one in its place. It follows as a corollary of this
general principle that if a government which on the
whole respects its proper role nevertheless infringes
or denies some specific rights, either to a majority or
minority of people, then they have the right to civilly
disobey the offending laws, policies, or commands
(either nonviolently or violently, depending upon fur-
ther arguments).

The notion of natural or human rights, it should be
noted, strongly supports Thoreau's contention that a
majority vote cannot decide what is right or wrong,
and helps put the concept of democracy in its proper
perspective. The notion of Popular Sovereignty es-
poused by Stephen Douglas in pre-Civil War days was
supposedly the democratic answer to the problem of
slavery in the territories. Let the settlers in each terri-
tory vote on whether or not to have slaves! This con-
cept of democracy, of course, subverts the whole notion
of human rights and is the rule of the majority to which
Thoreau so strongly objected. The democratic princi-
ple envisioned by most of the architects of the Bill
of Rights of the United States Constitution and of the
Declaration of Human Rights of the United Nations
is that the rule of the majority is the best way known
to man of adjudicating the conflicts which inevitably
arise in the common pursuit of their human rights by
millions of people. It would have been shocking indeed
to these people to have envisioned the democratic
principle as deciding who is going to be allowed to
have human rights.

The concept of human rights provides, no doubt,
the most prominent justification of civil disobedience
in the humanistically oriented modern world, and yet
prudential considerations are sometimes offered by
believers in the concept to soften the commitment to
civil disobedience. These prudential considerations
have always been with us (Bay [1968], p. 476). Thomas
Hobbes represented the extreme position, of accepting
the concept of natural rights and yet, out of fear of
anarchy, rejecting not only civil disobedience but even
dissent. David Hume provided a teleological, utilitarian
approach to the relative limits of obedience and diso-
bedience to civil magistrates and adopted “with con-
siderable vehemence” a libertarian position in his
Treatise of Human Nature (1739-40). Later, out of fear
of anarchy again, he recommended “exact obedience”
to the law of the land and the authority of its adminis-
trators. Jeremy Bentham saw no more point in these
sweeping generalizations and anxieties about civil dis-
obedience and anarchy than he did about generaliza-
tions in any other part of moral philosophy. On his
view, each situation and political context should be
carefully studied in its own right and the likely conse-
quences predicted. If the prediction is for fewer overall
mischievous consequences by disobedience than by
submission, then it is the duty, not simply the right,
of the conscientious citizen to resist the government.

To Bentham's counsel, the modern proponent of
human rights who takes civil disobedience seriously
adds that the cry of anarchy and civil disintegration
is all too often unintentionally and at times even inten-
tionally the mask of vested interests. There are, to be
sure, genuine dangers in civil disobedience, well un-
derstood by its intelligent agents, but the dangers are
to be weighed by a believer in human rights and not
used as a rationalization for doing nothing when he
has the security and someone else suffers the infringe-
ment of human rights. The point is simply this: if a


person is so concerned about civil stability that he
cannot conceive any conditions that would justify dis-
obedience, then he really has abandoned any tenable
concept of human rights.