Zach Broderick 4 October 2007

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Zach Broderick

4 October 2007

PHIL 20A - Teuber

Paper #1

Democracy and Disobedience: Friends of Foes?

If one were to travel back in time to 1856 in Massachusetts, to the front yard of the Rowlandson house, they would likely see me blocking the door, front and center, or being hauled off to jail by the police, depending on their timing. For I feel that my disobedience is in fact justified, and that a democracy can tolerate such behavior, although only in a sense of the word. In fact, I would be so bold as to say it is a very important aspect of democracy itself.

Each of the quotes in the paper topic corresponds to one of the questions, and present two fundamental problems. First, is civil disobedience in a democracy justified, ever? Does it not undermine the very nature of democracy itself, by circumventing the duty of citizens to obey their own laws? Secondly, how can a democracy tolerate civil disobedience, if it is largely subject to one’s own idea of what higher law is? In the two parts of this paper I will assert that civil disobedience is not only justified in most cases, it is part of a healthy democracy, despite its subjective nature.

Democracy is governance by the people, for the people—it is a consent based system. This is acknowledged in the Constitution itself with the opening phrase “We the people…establish.” There is an agreement to be governed by and obey the law, and thus arises the citizen’s responsibility and duty to keep his promise. This is widely accepted and not something I am going to debate in this paper.

However, there is a fundamental flaw in the system of democracy, as in most forms of government. A democratic society functions by majority rule, and therefore the majority of its citizens can oppress the minority in the most horrible ways, and it would be perfectly legal. Few rational citizens would agree to be governed with such a possibility, and thus we establish a higher form of law, a contract if you will, to protect the minority from such oppression. This higher law spells out intrinsic rights that cannot be violated by the law. In some societies, this higher law is a religious document; in others such as ours, it is a constitution. We agree to be governed, and thereby to obey the law, as long as those laws do not violate the higher law of the Constitution; such is the social contract.

If a law made by the society violates a higher law in the Constitution, the contract has been broken, and the citizen no longer has a duty to obey the law. He may still be punished, but his inner morality will not be compromised. This is the rule of contracts and agreements—if one party violates their side of the terms, the other is no longer morally required to uphold theirs.

We find examples of this in our readings. Thoreau especially was a proponent of the social contract. He felt that slavery and the Mexican War violated the Constitution, even though it did not directly affect him. Therefore he felt justified in not paying his taxes to the state, with the added moral force that obeying the tax law was enabling the injustice.

Martin Luther King Jr. used legal means of protest, until an injunction was ordered for him to stop. King was wary of breaking the law but felt that his Constitutional right to assemble was being subverted, not to mention his right to be treated equally as a human being. The same could be said for Socrates and Antigone, though their higher law arose from a different source than a constitution.

The obvious objection here is this: what if the law is part of the constitution? In our particular case, the Fugitive Slave Laws were built into the Constitution. In fact, from the beginning, slavery itself was part of it. If this then is the higher law that was agreed to, how can disobeying it be justified? We may say that the slaves would be justified in disobeying it, as they did not consent to it, and King may have a case as well, as he never agreed to such provisions either. But what about us white, voting citizens who did? How can we justify breaking our own higher law?

The answer is that even the Constitution can be polluted by the majority, as it is subject to the democratic process as well—you just need a larger majority. We then must appeal to an even higher law, such as the spirit of the Constitution, which asserts that men are equal, have rights to freedom and liberty, etc. The slave-owning founding fathers may not have considered that as part of the spirit of the Constitution; however, as our ignorance melts away and the meaning of the phrase “all men” comes to include blacks, women, and someday finally gays, we see that the spirit has always been there, our understanding of it has just evolved. The Bible itself seems to sanction slavery; however, few Christians would agree that it is in the spirit of their religion, but rather that it was a corruption of man.

This does not combat the logical next objection though: that the spirit of the Constitution and other such ‘higher law’ is open to interpretation, and essentially subjective. I will address this very important argument in the second section of the paper when I deal with society’s tolerance of civil disobedience.

I think I have made my case fairly clear, but in direct answer to Green’s quote, legal means of change within a democracy are not always feasible. The Constitution can be ‘legally’ violated by the tyranny of the majority; and in that case, how do we enforce the Constitution, or its spirit? We must go outside the law, and use civil disobedience, or revolution if necessary, but that is a different topic. I will reinforce what I have stated: if one feels their contract with the state has been broken, they no longer have a moral duty to obey the laws, though they may seek to change them.

There is another objection that arises to my argument. One may say that it is all very well and good that a person does not obey a law in order to avoid committing an injustice, or does not because the law bestows an injustice upon themselves. But what about you? You are not required to haul Jim back to his master. You yourself are certainly not a slave either. This is not even an issue of paying the taxes that support this unjust law. Certainly too you are not morally obligated to obstruct every injustice occurring on the face of the Earth either. All you need to do is go home and mind your business.

My answer to this is that, while I may not be morally obligated to block Jim’s return, I do find the whole situation morally repugnant, and since my civil disobedience is justified based on the arguments above, I ought to partake in it for practical reasons. Civil disobedience is an effective tool of change, of righting injustice in a democracy. While it cannot directly change things, as I will explain later, it can incite the sympathy and passions of those around me, and thus inspire change in a legal manner. I will expound upon this more in the second section.

One last question needs addressing in this section of the paper, and that is, when is civil disobedience not justified? I would say that, as the appeal to higher law is subjective, it is almost always justified for a citizen. There is the particular case of the judge brother, however, and it brings up a rather clear instance of when it is not justified, and when a society can not tolerate it. The brother is part of the workings of the democracy itself; if he subverts his duties, he is leading to its demise. His duty is to uphold the higher law of the Constitution. If that can be ignored, than all sorts of Constitutional violations can be allowed to occur based on the whim of a judge. Judges are our society’s means of enforcing our higher law, our Constitution; but in this situation, the unjust law is the Constitution, and to rule otherwise would be irresponsible. He cannot appeal to the spirit of the Constitution either, as it is far too subjective. If it were absolutely against his moral conscience to make a ruling on the case, he should resign his post in the machine and no longer be a part of it.

This leads me to the second major question addressed by this paper: can and should a democratic society tolerate civil disobedience? Puner, I believe, answers with a resounding NO. The appeal to higher law is too subjective, he claims, and I agree with him, on both counts. However, as we will see shortly, our views are actually in essence quite opposed; this is the result of the multiple meanings of the word tolerate. What does it mean to “tolerate” civil disobedience? Apparently, as I will show, it can mean several different things.

If we take the word tolerate to mean “punishing people who engage in civil disobedience less or not at all”, than I am in full agreement with Puner. I think it is an obvious point that participants cannot be let off the hook totally, as there would then be no reason to obey the law at all. Giving them a lighter sentence is not doing them any favors; in fact, it dilutes the efficacy of civil disobedience. The practice is meant to garner sympathy and impassion your fellow citizens, by way of willingly taking punishment. As Ghandi points out, self-punishment is an essential part of civil disobedience. Witnessing protesters being punished willingly helps demonstrate the absurdity and injustice of the law in question.

Punishment also helps to solve the subjectivity problem regarding higher law, which I will address next. It is perhaps one of the most powerful claims against the legitimacy of civil disobedience: that because higher law is often personal, anyone can supposedly disobey any law they take issue with, and thus democracy breaks down. For example, the Virginia slave owner in our example may stage an act of civil disobedience by blocking the entrance to the courthouse, claiming that his Constitutional right to his property is being violated. Also, he says, the Fugitive Slave Act is in the Constitution, and it is higher law; this appeal then should not even be taking place, and is unjust. Therefore, he feels he is justified in his civil disobedience.

And who’s to say he isn’t? He seems to have a very valid point that fits the principles for disobedience described earlier. So how do we reconcile this in a democracy? Are we left with chaos? I would maintain that we are not, and for a very simple reason: civil disobedience, by itself, does not change anything. That may seem contradictory to what I have been saying, but in fact it is not. Consider the question: Do the protesters in front of Jim’s house honestly believe that the police are just going to throw up their hands in defeat and say, ‘well, there’s nothing we can do now, looks like Jim is staying here’? Do they think that, to get them to move, Congress will repeal the Act? Did Thoreau believe that, because he didn’t pay his taxes, the US government would end slavery and the Mexican War?

Of course not. Everyone outside that house knows that they will be taken to jail, and that Jim will be returned to his owner. Because of the peaceful, public nature of civil disobedience, the act itself cannot change anything. The minority cannot overturn an unjust law by themselves simply by engaging in it. The efficacy of civil disobedience is in inspiring the majority, so that the law may be changed by legal, democratic means. In the end, it is simply a more potent form of protest in that it involves self sacrifice. If the participants fail to garner any support, then they are just some people breaking the law; they go to jail, the law is enforced, society moves on. Thus democracy can take the weight of civil disobedience.

The problem of subjectivity is also alleviated by the punishment aspect of civil disobedience. Such self sacrifice has the effect of filtering purity of intent. In order to take such punishment as jail or having a fire hose turned on oneself, a person would have to firmly believe in their cause, that it is just and legitimate. This has the effect of filtering out impure motivations such as greed and bigotry, for which people are less likely to sacrifice themselves. Therefore, while the slave owner blocking the courthouse door may feel justified in his response, in the end his motivations are largely economic, and less likely to stand up to punishment than the Northerners’ desire to see their neighbor and fellow man free from bondage. This has the effect of smoothing out a lot of the subjectivity, which most other forms of expression in a democratic society do not do.

I will end with a short discussion of the word tolerate. I have already made clear that democratic societies cannot tolerate civil disobedience in the sense of treating it differently, with a lighter sentence for instance. However, I do believe society can tolerate it in the second sense: that is, a society can tolerate civil disobedience in that it considers the act to be a fundamental part of being a democracy, and that the rational citizens of that society would view it as an important and sacred tool of justice rather than an undermining force in their civilization.

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