Letter from a Birmingham Jail, Part IV: On Civil Disobedience
January 26, 2009
Here is part four of the letter, again abridged to keep focus:
You express a great deal of anxiety over our willingness to break laws. This is certainly a legitimate concern. . . . One may well ask: “How can you advocate breaking some laws and obeying others?” The answer lies in the fact that there are 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 distorts the soul and damages the personality. . . .
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. . . . 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. . . .
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.
. . . .
We should never forget that everything Adolf Hitler did in Germany was “legal” and everything the Hungarian freedom fighters did in Hungary was “illegal.” It was “illegal” to aid and comfort a Jew in Hitler’s Germany. Even so, I am sure that, had I lived in Germany at the time, I would have aided and comforted my Jewish brothers. If today I lived in a Communist country where certain principles dear to the Christian faith are suppressed, I would openly advocate disobeying that country’s antireligious laws.
This is the real heart of MLK’s defense of his actions. Here, MLK sets forth a philosophical justification for violating human law and the social customs of his day. In short, he was a reformer.
What is the justification of this behavior? MLK says that his justification comes from God, who has instituted a higher law than the human law. Thus, a law that violates this higher law is not a law in the fullest sense, and may be violated.
This raises an interesting question: if morality comes solely from society, and not “from above”, then does that make MLK immoral for violating the human law applicable in his day? What justification would he otherwise have for violating human laws?
On the other hand, if one believes that there is a higher, transcendent source of law, to which all human laws owe homage, then one has ample justification for holding human law to that standard. When the Nazi asks, “who are you to tell me my actions were immoral or illegal? Are you German?”, the answer may be, “you violated a higher, universal standard that applies to you whether you acknowledge it or not.”
The second-to-last paragraph quoted above is my favorite. One who violates a law “openly, lovingly, and with a willingness to accept the penalty. . . is in reality expressing the highest respect for law.” That is how you make a statement on social policy.
In that vein, it is particularly troubling when someone violates a law from a position of privilege, immune to “a willingness to accept the penalty.” We see this when judges “twist” the law to fit their own ends, contrary to the intent and meaning of the words they interpret. This is a form of flouting the law, but it comes from behind the protection of the robe, with immunity from any penalty. In other words, it’s the most cowardly form of civil disobedience.