II
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.
