Civil Disobedience: King versus Huemer By Bryan Caplan

Martin Luther King’s “Letter from a Birmingham Jail” defends an odd position: You may morally break an unjust law IF you make no effort to evade the legal punishment for the unjust law you break.

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.

The obvious question: If the law is unjust, doesn’t consenting to punishment simply compound the injustice? The subtler challenge: “Evading” or “defying” just laws could easily lead to “anarchy” in a pejorative sense. But why on earth is King so pessimistic about the social effects of “evasion” or “defiance” of unjust laws? Indeed, if the laws are really so awful, you’d expect every violation to make the world a little bit better.

Perhaps King’s underlying story is a variant of the Noble Lie. Something along the lines of:

1. People often mistakenly think that a law is unjust.

2. If people feel free to evade or defy laws they think are unjust, they will break many just laws, with awful consequences.

3. However, if people feel obliged to accept the legal punishments for breaking all laws regardless of their justice, they will reflect seriously on the justice of the law, drastically reducing their chance of mistakenly breaking an unjust law.

4. Therefore, it is good if people don’t feel free to evade or defy laws they deem unjust.

Assuming I have successfully reverse engineered King’s underlying position, it has two major flaws.

First, it neglects a simple alternative to promoting the Noble Lie that evading or defying unjust laws is wrong. Namely: Promoting the Noble Truth that people should painstakingly investigate the justice of a law before breaking it.

Second, this story neglects the very existence of moderately virtuous people who are willing to resist unjust laws if and only if the personal cost is low. If such people feel free to evade or defy unjust laws, they’ll break them, making the world more just. However, if they don’t feel free to evade or defy unjust laws, they’ll obey them, preserving the injustice of the status quo.

Philosopher Michael Huemer’s new essay on jury nullification presents a more compelling position on civil disobedience: Don’t merely feel free to break unjust laws; strive to prevent their enforcement. He begins with one of his trademark hypotheticals.

Imagine that you are walking down a public street with flamboyantly-dressed friend, when you are accosted by a gang of gaybashing hoodlums. The leader of the gang asks you whether your friend is gay. You have three alternatives: you may answer yes, refuse to answer, or answer no. You are convinced that either of the first two choices will result in a beating for your friend. However, you also know that your friend is in fact gay. Therefore, how should you respond? This is hardly an ethical dilemma. Clearly, you should answer no. No person with a reasonable and mature moral sense will have difficulty with this case. Granted, it is usually wrong to lie, but the importance of avoiding inaccurate statements pales in comparison to the importance of avoiding serious and unjust injury for your friend. The case illustrates a simple and uncontroversial ethical principle: it is prima facie wrong to cause another person to suffer serious undeserved harms. This is true even when the harm would be directly inflicted not by oneself but by a third party.

Huemer’s point obviously still applies if the hoodlums directly interrogate the gay man. Lying is usually wrong, but not when your audience plans to savagely beat you for telling the truth. Even a juror who explicitly promises to enforce the letter of the law can rightfully renege:

Three ethical principles governing the obligation of promises seem relevant here. To begin with, it is normally permissible to break a promise when necessary to prevent serious and undeserved harms to another person. For instance, suppose you have promised to pick a friend up from the airport, but on the way, you encounter an injured accident victim in need of medical assistance. It would be permissible, if not obligatory, to assist the accident victim, even though doing so will prevent you from picking up your friend. And this is true regardless of whether your friend will be understanding about your failure to pick him up. Second, a promise prompted by a threat of unjust coercion is typically not ethically binding. If a gunman threatens to shoot you unless you promise to pay him $1,000, that promise will have no moral force. Thus, if you escape the gunman after making the promise, you have no moral obligation at all to deliver $1000 to him. The same goes for unjust threats against third parties: if a gunman threatens to shoot your neighbor unless you promise to pay $1,000 to the gunman, that promise, too, is invalid. If the neighbor escapes after you have made the promise, you have no obligation at all to hand over the money. Third, even when a promise is initially valid, it is permissible to break the promise if doing so is necessary to forestall a threat of unjust harm from the person to whom the promise was made. The promisee in such a case has no valid complaint, since it is his own threatened unjust behavior that makes it necessary to break the promise. For example,

suppose I have voluntarily promised to lend you my rifle next weekend. Before the week-end arrives, you credibly inform me that you intend to use the rifle to murder several people. In this case, I should not still lend you the rifle. It is not merely that my prima facie

obligation to keep the promise is outweighed by the need to prevent several murders. Rather, your threat of unjust harm completely cancels any obligation I would have had to keep my promise to you.

Returning to the gaybashing hypothetical:

Imagine that the gang leader not only asks whether your friend is gay but also asks you to swear that your answer on this point will be truthful. You reasonably believe that refusal to swear will result in a beating for your friend. This case is scarcely more difficult than the original case. Clearly, you should swear to tell the truth and then immediately lie to the gang. In doing so, you do not wrong the gaybashing gang or anyone else. The gang would have no valid complaint against you for your breaking of your promise, since it is their own unjust coercive threat that forced you both to make the promise and to break it.

What about the specter of “anarchy” – the fear that people will cavalierly dismiss as “unjust” any law that frustrates their desires? Huemer finds this a poor argument against jury nullification.

Suppose you are on a jury in a trial in which the defendant is accused of violating an unjust law, and you are considering a nullification vote. Your motivation is not racist, and you know that it isn’t. You know that your motivation is the injustice of the law. It is difficult to see how the fact that some racist juries have voted to acquit defendants who should have been punished negates the very strong reason that you have, in this case, to acquit the defendant. The fact that others have done A for bad reasons does not make it wrong for one to do A for good reasons. Consider again the example of the gang of hoodlums. Suppose that you are just about to lie to the gang, when it occurs to you that many people have lied for bad reasons. In fact, surely there have been more cases of corrupt lying in human history than there have of morally justified lying. It would be absurd to suggest that this historical fact somehow negates the reason that you have for lying in this case, or that you are morally bound to always tell the truth merely because more lies have been harmful than have been beneficial.

Huemer’s critique readily extends to civil disobedience more generally. The fact that people often break just laws is a lame argument for obeying unjust laws. The proper remedy for abuse is greater investment in moral reasoning, not blind obedience to unjust laws or masochistic submission to unwarranted legal punishment. King was right to oppose blind obedience. But his advocacy of masochistic submission to unjust punishment is barely better.