Civil Disobedience And Law - Essay Example

Civil Disobedience And Law This paper will consider the basis of law in the United s, itscharacteristics and function. In doing so the paper will consider legal philosophy including naturalist, positivist and sociological theory. Furthermore it will consider the options citizens have in the United States when they consider a law to be unjust or when they consider a just law to be enforced unjustly. Foremost of these options is civil disobedience. This paper will put forward the argument that in modern time’s civil disobedience has played an important role in shaping the law in the United States and will even focus on whether civil disobedience is justified or unjust in compliance with the positive, natural and sociological theory of law. Natural Law And Civil Disobedience The legal system in the United States was originally founded on the principle of natural law (Walstron-Dunham 9). The term natural law is used to refer to those rules and regulations that have been set by the nature and are said to exist throughout the universe (Bill of Rights Institute 1). The natural laws are based on the premise that there are certain rights that have been awarded to human beings by God or by nature since the time of their birth. The rights may not be recognized by the constitution or the legal system of a particular region but they do exist and it is implied that all human beings have these rights. This even means that those laws and regulations that may be created by a particular nation and its policy makers cannot be considered as just laws if these laws result in the infringement of the natural rights of a human being. Even the constitution of the United States of America protects certain natural rights of every human being in an explicit manner under the document of Bill Of Rights. These natural rights include the individual’s right to freedom of speech as well as freedom to practice religion and use press (Bill of Rights Institute 1). Dr. King set out in his letter from Birmingham Jail how disappointed he was in the white moderate and their lack of activism “I have almost reached the regrettable conclusion that the Negro’s great stumbling block in the stride towards freedom is…the white moderate who is more devoted to order than to justice; who prefers a negative peace which is the absence of tension to a positive peace which is the presence of justice” (King 1). Dr. King makes the distinction between just and unjust laws, a just law being a “man-made code that squares with the moral law” (King 1). Given his commitment to abolishing segregation it is clear that for him natural laws take precedence over positive law and furthermore that there is a duty to challenge laws you believe to be unjust, “human progress never rolls in on the wheels of inevitability. It comes through the tireless efforts and persistent work of men willing to be co-workers with God” (King 1). In his thinking Dr. King is very much aligned to Locke, who set out in his paper Two Treatises of Government that “Whosoever in authority exceeds the power given him by the Law, and makes use of the force he has under his command…ceases to be acting as magistrate, and acting without authority, may be opposed, as any other man who by force invades the right of another” (Locke 1). Locke then also believed that where the legal framework was tyrannical or where it acts without authority it could be righteously opposed. Positive Law And Civil Disobedience As time passed a more sophisticated system was required and in response the United States Constitution was signed along with the Bill of Rights (Walstron-Dunham 9). As a more defined government was introduced positivist theory had greater influence in the country (Walstron-Dunham 9). We can note a distinction between these two types of laws: positive and natural. Positive law is the law made by man (Duhaime, 2014). Distinguished from this, natural law is rather a set of fundamental truths set by justice and morality (Duhaime, 2014). Behind the Constitution and the Bill of Rights was the desire to protect fundamental human rights and freedoms, for example, freedom of speech, the right to bear arms and freedom from self-incrimination. As such, I believe that these two mechanisms (the United States Constitution and the Bill of Rights) were physically setting out what was already believed to exist in natural law. In the Stanford Encyclopedia of Philosophy Leslie Greene states, “Whether a society has a legal system depends on the presence of certain structures of governance, not on the extent to which it satisfies ideals of justice, democracy, or the rule of law.” (Greene 1). I believe this summarizes what underpins positive law, the view of law as a social construct. Furthermore, in theory, in a democracy the majority elect a legislature which passes laws that represent the view and social norms of that majority. According to Austin, positive laws are those laws that are not necessarily based on moral foundations and these laws are created by human beings themselves (Stone 80). Furthermore positive laws exist because of the existence of a particular system that has been created for the enforcement of these laws. Hart states that in order for positive laws to prevail there should be a social structure that is legal in nature and these legal structures have rules that can be categorized as primary rules which are rules that ensure that the positive laws are followed by citizens of the society (Hart 79). The second category of these rules are subordinate rules which include the adjunction rule which means that judges or other authorities such as the police officials and jury have the authority of punishing those who have worked against the primary rules. In other words the positive law theory states that the government is a legitimate structure and has the legitimate authority to enforce laws. These three theories: naturalist, positivist and sociological combine to underpin the foundations of government and law in the United States today. When citizens believe a law is unjust, or is being unjustly applied their main point of recourse is to lobby their congressional representative to have it changed (Walstron-Dunham 9). Furthermore, where they believe a law violates the constitution they can bring a challenge in the Supreme Court (Walstron-Dunham 9). The case of Korematsu v. United States is one such example. Here the petitioner was an American citizen of Japanese descent who was convicted for remaining in a “military area” contrary to a civilian exclusion order. His appeal was rejected by the court who held that the actions taken by the government were proportionate and necessary to prevent espionage and sabotage. In this instance it is interesting to consider what further action such a person may take. For example, when Socrates was punished and sentenced to death he accepted his fate even though those around him agreed that was unjust. Socrates believed that by living in society he formed a social contract to be bound by the rules of that society (Plato, Crito). In contrast, others, such as Martin Luther King, have organized demonstrations of civil disobedience in response to laws they believe are unjust. Sociological Theory Of Law And Civil Disobedience In addition to naturalist and positivist legal theory we also have sociological theory. The sociological theory of law is based on the principle of the consciousness of the people of a particular society. The theory asserts that law is an element that keeps on changing with changes in time and these laws change with the changes in the needs of human beings (Dunham 9). The theory states that one single individuals or the minority cannot decide whether a particular law is justified or unjust. The theory argues that the majority of the population or the entire population need to combine together in order to decide whether a particular law or regulation is justified or unjust. The theory even postulates that those laws are just that are in favor of the entire society or a major percentage of the society and not just a few individuals or the minority. One theorist of civil disobedience is Henry David Thoreau who has taken support from the sociological theory to prove the point that civil disobedience is mandatory and justified. The theorist states that if the people of the society believe that a particular law is unjust and is not serving their needs, then such laws and regulations should be repealed (Thoreau 5). He even states that the government has the jobs to repeal these laws, but if the government is not doing so, then the people should unite together in order to protest against these laws and force the government to repeal them. Is Civil Disobedience Justified? It is difficult to speculate what position the United States would be in now with regard to Civil rights and racial equality if it hadn’t been for the civil disobedience of those that believed it was their moral duty to challenge laws they felt were unjust. It is especially hard to fault this course of action when it is non-violent, as promoted by Dr. King. As noted, in his letter he differentiates between ‘just’ and ‘unjust’ laws. A similar distinction between just and unjust laws was illustrated by Sophocles in his play Antigone. In Antigone a central theme is the contrast between two types of law, those that are divine on the one hand (‘natural’) and of the state (‘positive’) on the other. In disobeying the order of Creon to bury her brother, Antigone’s standards of justice clash with the state’s (Creon’s). “Creon: And yet you dared to disobey the law?”(Sophocles 16). “Antigone: Yes, I did because it’s your law, not the law of God. Natural Justice which is of all times and places, numinous, not material, a quality of Zeus, not of kings, recognizes no such law. You are merely a man, mortal, like me, ad laws that you enact cannot overturn ancient moralities or common human decency.”(Sophocles 16). Like Antigone, King compares the laws of the state to universal morals and refuses to abide by laws that he finds morally reprehensible, such as the Jim Crow laws. For him these laws have no authority as they are unjust, not only because they are damaging to the soul and personality and morally unjustifiable but also because they were not lawfully legislated in that African-Americans were not able to vote upon them “An unjust law is a code inflicted upon a minority which the minority had no part in enacting or creating because it did not have the unhampered right to vote” (King 1). For King, like Antigone, justice means laws that are just, being moral in nature. In addition, these laws must be justly applied because for him “injustice anywhere is a threat to justice everywhere” (King 1). This leads to the question, what can a person do if they do not agree with a law to which society binds them. Should they accept the consequences like Socrates or instead should they break the law, like Antigone and Martin Luther King, committing acts of civil disobedience? Freeman, in his article ‘The Right of Protest and Civil Disobedience’ created a spectrum of behaviors that can be performed in response by people who believe they are subject to injustice under the label of civil disobedience (Freeman 228). He believed these behaviors should be protected by the US Constitution and that even when people were committing violence as acts of civil disobedience the punishment should be nominal (Freeman 228). Currently there is no constitutional right to commit civil disobedience in the United States. The right to free speech is protected (first amendment) and so is the right peaceable assembly (first amendment), (Walstron-Dunham 6) however the right to break the law, even for the greater good is not. There is however a necessity defense which enables a defendant who has violated a law to be acquitted if they act for the greater good (Cavallaro, 351). Current Protests And Civil Disobedience In Relation To Theories Of Law Currently in the United States, protests and riots are taking place in response to racial antagonism. For example, in Missouri, in response to the shooting of in Ferguson widespread looting and violence is taking place (Swaine 1). Many of the people taking part in these protests believe that laws in the United States are being applied in such a way as to unfairly prejudice people of color (Swaine 1). This violence is reminiscent of the call to protest that King made and similarly the protest organizers in Ferguson have criticized “the “intellectual set” who analyzed race relations but “didn’t show up and didn’t want to get shot when the teargas came out”” (Swaine 1). Natural law provides clear justification of why civil disobedience and protests are correct. When an individual is involved in civil disobedience, he/she is exercising his protected right of freedom of speech that is protected by the Bill of Rights. In case of Ferguson, the people are revolting against the latest ruling provided by the jury of the case in which Michael Brown was killed by a police official. The ruling suggests that black Americans do not have a natural right to life and their life can be taken on the basis of discrimination. Therefore, since people of Ferguson are revolting against laws that are infringing on their natural rights, their protests are justified under the scope of natural law. Positive laws reject the notion of natural rights since these laws are against natural law. Protests that are taking place because people perceive that their right to life is being infringed by the judge of Michael Brown are unjust because the ruling provided by the jury is based on the positive laws of United States of America. The positive law or the primary law that allowed the police official to shoot Michael Brown is that the police officers can only shoot if they perceive that the suspect poses a danger to other individuals. Stopping the civil disobedience act being carried out by the citizens of Ferguson and black Americans is even justified under the positive theory of law because the theory has provided the government and its officials to ensure that citizens do not operate against the law. The protests that are being carried out in Ferguson and United States are against the court’s ruling that the police official who killed the black teenager was not to be held guilty for his actions. These protests are justified by the sociological theory of law because the people of the United States have joined hands together against this decision of the court. These individuals believe that the law which allows police officials to shoot a suspect if they percieve that the suspect is a danger is not serving their need. They are protesting because such laws are against their need to have a right to life. Conclusion Civil disobedience has played an important role in creating the laws that people take for granted today in the United States. Some of the most well-known causes that have been pushed through by civil disobedience are the abolishment of slavery, the women’s suffrage movement and the civil rights movement (Starr 1). As such, there is ample evidence to suggest that even though civil disobedience is generally condemned by the majority at the time it is being committed it is responsible for a great deal of social reform in the United States. Works Cited Bill of Rights Institute,. Natural Rights | Bill Of Rights Institute. N.p., 2014. Web. 3 Dec. 2014. Cavallaro, James L. The Demise Of The Political Necessity Defense: Indirect Civil Disobedience And United States V. Schoon. California Law Review 81.1 (1993): 351. Web. Freeman, H. The Right Of Protest And Civil Disobedience. Indiana Law Journal 41.2 (1966): 228. Print. Green, Leslie. Legal Positivism (Stanford Encyclopedia Of Philosophy/Fall 2009 Edition). Plato.stanford.edu. N.p., 2009. Web. 4 Dec. 2014. http://plato.stanford.edu/archives/fall2009/entries/legal-positivism/ Hart, H L. A. The Concept of Law. , 2012. Print. King, M.L. Letter From Birmingham Jail. Letter From Birmingham Jail. uscrossier. N.p., 1963. Web. 4 Dec. 2014. < http://www.uscrossier.org/pullias/wp-content/uploads/2012/06/king.pdf> Locke , John. Locke: Two Treatises - LONANG Institute. LONANG Institute. N.p., 1690. Web. 4 Dec. 2014. < http://lonang.com/library/reference/locke-two-treatises-government/> Plato,. The Internet Classics Archive | Crito By Plato. Classics.mit.edu. N.p., 2014. Web. 4 Dec. 2014.< http://classics.mit.edu/Plato/crito.html> Sophocles., Humphrey D. F Kitto, and Edith Hall. Antigone. Oxford: Oxford Univ. Press, 1998. Print. Starr, Kayla. The Role Of Civil Disobedience In Democracy. Civilliberties.org. N.p., 1998. Web. 4 Dec. 2014.< http://www.civilliberties.org/sum98role.html> Stone, Julius. Legal System and Lawyers Reasoning. Stanford (Calif.: Stanford university press, 1968. Print. Swaine, Jon. Ferguson Protest Leaders: Well Take Our Anger Out On People Who Failed Us. the Guardian. N.p., 2014. Web. 4 Dec. 2014.< http://www.theguardian.com/us-news/2014/oct/08/ferguson-protest-leaders-rally-new-york-michael-brown-shooting> Thoreau, Henry David, Owen Paul Thomas, and Henry David Thoreau. Walden And Civil Disobedience. New York: W.W. Norton, 1966. Print. Walston-Dunham, Beth. Introduction to Law. Clifton Park, NY: Delmar Cengage Learning, 2012. Print. Read More