Midterm Flashcards
KING: What are the four steps in a nonviolent campaign?
- Collection of the facts to determine whether injustices are alive.
- Negotiation.
- Self-purification.
- Direct action.
KING: What is the purpose of a direct action program?
Nonviolent direct action seeks to create such a crisis and establish such creative tension that a community that has consistently refused to negotiate is forced to confront the issue. It seeks to dramatize the issue so that it can no longer be ignored. The purpose of direct action is to create a situation so crisis-packed that it will inevitably open the door to negotiation (the call for negotiation).
KING: What is the difference between an unjust law and a just law?
What is the difference between an unjust law and a just law?
A just law is a man-made code that squares with the moral law, or the law of God. Any law that uplifts human personality is just.
An unjust law is a code that is out of harmony with the moral law. To put it in the terms of Aquinas, an unjust law is a human law that is not rooted in eternal and natural law. Any law that degrades human personality is unjust. An unjust law is a code inflected upon a majority which that minority had no part in enacting or creating because it did not have the unhampered right to vote.
KING: Why are segregation statutes unjust?
All segregation statutes are unjust because segregation distorts the soul and damages the personality. It gives the segregator a false sense of superiority and the segregated a false sense of inferiority. To use the words of Martin Buber, segregation substitutes an “I-it” relationship for the “I-thou” relationship and ends up relegating persons to the status of things. So segregation is not only politically, economically, and sociologically unsound, but it is morally wrong and sinful. King urges people to disobey segregation ordinances because they are morally wrong.
KING: What obligations fall on someone who breaks an unjust law?
You must break laws nonviolently and then accept your punishment.
WALDMAN: On p. 108, Waldman describes and responds to two of King’s justifications for civil disobedience. What are King’s justifications and how does Waldman respond to each?
King wanted to comment on the “oft-heard charge that we who urge non-cooperation with evil in the form of civil disobedience are equally lawless…the devotees of nonviolent action…feel a moral responsibility to obey just laws. But they recognize that there are also unjust laws.”
Waldman says that King then performs intellectual acrobatics by jumping from the premise—that he and his “devotees”…“recognize that there are also unjust laws”—to the asserted right to violate such laws “that conscience tells him [are] unjust,” that is, in the sole judgment of the violator. He defines “an unjust law” as “…One in which people are required to obey a code that they had no part in making because they were denied the right to vote” and also as being “…One in which the minority is compelled to observe a code that is not binding on the majority.”
According to this logic, every person under 21 or the millions of non-citizens, all denied the right to vote, have no obligation to obey the law. Now, as to the minority logic. There are thousands of laws throughout the land which apply only to minorities, and are “not binding on” the majorities.
We all know of laws that apply only to bankers, farmers, trade unions, manufacturers, sailors, or electricians, or other trades or groups, but do not apply to the great bulk of the rest of the nation, to the “majority.” May all such laws be ignored by the affected minority because they do not bind the majority?
These glib generalizations in King’s advocacy of civil disobedience are as bad as they are illogical. When literally applied by many of his followers, who do not have the sophistication and training of King, such shibboleths lead to an intellectual, religious, and moral justification for doing illegal acts of which violence and lawlessness are but the extreme expressions.
King was asked whether he thought “there is a right to disobey an unjust law” in those places “where the Negroes actually have the right to vote.” This is King’s answer”
“There may be a community where Negroes have the right to vote, but there are sill unjust laws in that community. There may be unjust laws in a community where people in large numbers are voting, and I think wherever unjust laws exist people on the basis of conscience have a right to disobey those laws.”
If this philosophy were accepted and carried out by the 20 million American Negroes, it would be enough to disorganize our entire society and produce an intolerable chaos and a denial of individual liberty to every other American.
But, note carefully, King does not limit him philosophy to Negroes. He says “whatever unjust laws exists people on the basis of conscience have a right to disobey those laws.” To this I say that we are all fully aware that human beings, being what they are, “conscience” can be, and sometimes is, elastic, conforming to what people want, both overtly and subconsciously. But, as King must know, civil disobedience cannot end with Negroes alone. You cannot build a fence around this kind of program. Other people become involved.
The consequences of King’s program, if allowed to continue, would be disastrous to our nation. What if in the last 18 years the Labor Movement had proceeded with a program of civil disobedience as outlined by King, and had used its organizational power to stage marches, “non-violent marches” of course, sit-ins, “non-violent sit-ins” of course, and other activities—would not such actions tend to disorient our politically organized society?
Whatever the group, if they decide in the name of religion, morality or personal conscience that certain laws are unjust, then, according to King’s program, they would be justified in carrying out civil disobedience.
Again I ask: If this be so, where would our nation be? Where would our freedom be? Where would our civil rights be?
WALDMAN: What does Waldman think of those who violate the law openly? Why does Waldman think better of secret violators?
The open violation of law is an open invitation to others to join in such violation. Disobedience to law is bad enough when done secretly, but it is far worse when done openly, especially when accompanied by clothing such acts in the mantle of virtue and organizing well-advertised and financed plans to carry out such violations. The secret violator of law recognizes his act for what it is: an antisocial act; he may even be ashamed of what he is doing and seek to avoid disapprobation of his neighbors. But the open violator, the agitating violator, acts shamelessly, in defiance of his neighbor’s judgment and his fellow man’s disapproval.
WALDMAN: King says that civil disobedience applies in the North as well as the South. The reason is that the North is guilty of broad injustice in three areas: unemployment, housing and education. How does Waldman respond? That is, what is patently obvious to Waldman?
The reason why the North is to be included in the civil disobedience program, according to King, is that the North is guilty of broad injustice in 3 areas: unemployment, housing and education. Yet, it is patently obvious, that these three problems involve broad social and economic policies, on the justice or injustice of which thousands of laws, touching on these questions, honest men may in good conscience differ.
WALDMAN: King says that non-violent direct action is supposed to create the kind of crisis-packed situation that will lead to negotiation. Waldman responds that creating crisis-packed situations and tension is the very opposite of non-violence. Who is right?
King says, “Actually, we who engage in nonviolent direct action are not the creators of tension. We merely bring to the surface the hidden tension that is already alive. We bring it out in the open, where it can be seen and dealt with…”
Waldman: Thus, we have the philosophy and purpose of King’s program. It is to produce “crisis-packed” situations and “tensions.” Such a purpose is the very opposite of non-violence, for the atmosphere-of-crisis policy leads to violence by provoking violence. And the provocation of violence is violence. To describe such provocations as “non-violent” is to trifle with the plain meaning of words.
The perpetual crisis technique has been used by the Communist movement throughout the world. Both Communist governments and parties follow it. It was used by Hitler in Germany, both on his road to power and after power came to him, as a means of justifying his arbitrary, brutal and barbarous policy. It has been used by every Fascist country we learned to know and abhor in this century. It is disruptive of democratic society and institutions.
The policy of perpetual crisis, of provoking “tensions,” as he calls it, and of civil disobedience, are disastrous to the Negro people themselves, to civil liberties and to constitutional government. Such a policy flies in the teeth of the very purpose of our Constitution, which is clearly stated in the preamble to be, among other things, “to insure domestic tranquility.”
TAYLOR: According to Taylor, the willingness to accept the penalty is based on a principle important to civil disobedience. What is this principle?
The willingness to accept the penalty of law is based on the principle that the violation of pernicious laws is justified by the fact that these laws themselves violate a higher law.
TAYLOR: According to Taylor, almost all major forms of direct community action—sit-ins, freedom rides, demonstrations, picketing, and rent strikes—are not properly understood as civil disobedience. Explain Taylor’s reasoning for two forms of action listed above.
In the case of sit-ins, many of the people arrested have not pleaded guilty. They have acted under the pretense of their legal right. In the case of freedom rides, the violators were not the riders themselves, who were exercising their federal rights, but the bus companies and police who were denying them the rights.
TAYLOR: According to Taylor, the Triborough-Bridge demonstration was not an act of civil disobedience. Why not?
The Triborough-Bridge demonstration was not civil disobedience because they were breaking just laws and preventing those who had nothing to do with the atrocities in the South from moving around freely. They were breaking laws in the North, a place that had been trying to itself from unjust racial laws. Gandhi would allow for just laws to be broken in an unjust system, but the North had been trying to improve—not so in the South.
TAYLOR: Why does Taylor worry about “a philosophy which says that each man must decide for himself which laws he will obey”?
Taylor’s worry about “a philosophy which says that each man must decide for himself which laws to obey” is justice. There is a difference between breaking a law by appealing to higher law or logic then just arbitrarily saying that you do not want to obey it.
COHEN: How does Cohen define civil disobedience?
An act of civil disobedience is an act of illegal, public protest, nonviolent in character. That is to say: the civilly disobedient act must be a knowing violation of the law, else it will not be disobedient; the act must be performed openly, being one of general community concern of which the agent is not ashamed; and the act must be intended as an object to some law or administrative policy or public act.
COHEN: What is the difference between direct and indirect civil disobedience?
The distinction of the two centers on the relation between the disobedient act and the object of protest. An act of direct civil disobedience is one in which the law broken is the law protested (for example: tearing up one’s draft card in protest against the law which specifically forbids one to do so); an act of indirect disobedience is one in which the law broken is other than the object of protest (for example: deliberately blocking traffic in front of a construction site). Clearly, the problems encountered in justifying cases of civil disobedience will vary greatly depending upon (among other things) whether that disobedience were direct or indirect.
COHEN: What are the two general strategies for justifying civil disobedience?
Two patterns of justification are commonly employed, and may be roughly described as follows: on the one hand, it may be claimed that disobedience is justified by some higher law or principle imposing an obligation so compelling as to override the obligation to obey any civil or positive law. The higher law may or may not be claimed to have divine origin, but it will normally be held to have universal force, and to have a source outside of, and superior to, the system of positive law. On the other hand, it may be claimed that, without resort to divine or supernatural authority, deliberate disobedience may sometimes be justified on some utilitarian grounds. Very different utilitarian calculi may be proposed; “utilitarianism” here must be interpreted very generously. These two patterns are often mutually consistent, and in a given case both might be applicable; but it is likely that each disobedient, depending upon his more fundamental philosophical beliefs, will rely ultimately upon one or the other pattern.
COHEN: What is the first argument against civil disobedience? How does Cohen respond to this argument?
1st Argument → The resort to a higher law, in the effort to justify civil disobedience, fails because it leads to social chaos. Effective law and social order are undermined by such appeals, and what destroys effective law and order cannot justify civil disobedience.
There are several things wrong with this argument:
- It does not seem to be the case, in fact, that the appeal to some higher law leads to chaos. The Western political tradition is greatly indebted to philosophers who advocated just such an appeal, and to their followers who relied upon such appeals to support their battles for a juster society. In theory and in practice the appeal to higher law, although sometimes badly abused, has most often been the instrument of persons with noble, socially desirable objectives, and its use has generally brought not chaos, but a better political order.
- It is not even true that the reliance upon a higher law has any natural tendency to result in social chaos, for the higher law is usually held to require obedience to the legally constituted authorities save under the most extraordinary circumstances. it is only when the offense of the legally constituted authorities against that higher law is perfectly clear, perfectly wrongful, and morally intolerable that such law is likely to be used as a defense of deliberate disobedience to the positive law.
- The fact that the appeal to a higher law may be misused, whether by mistake or by design, and thereby disrupt the social order, does not prove such an appeal always inappropriate or insufficient. The possibility of mistaken use, and even of occasional deliberate misuse, of the “higher law” appeal does not show that such law does not bind a man, or all men, to disobey some positive laws under some circumstances. Higher laws may offer only shaky support for political conduct, but proof of their universal insufficiency is hard to come by.
- Even were the premise of the argument granted (that resort to higher laws does destroy, or tend to destroy, an effective system of laws) the conclusion (that such a resort cannot justify civil disobedience) does not follow. For there may well be cases in which the injustice of the positive laws is so great, and the acts they command so wrongful, that one has, even in the face of that fearful consequence, an absolute duty to disobey.
From my class notes: Resort to higher law; undermines law/order and leads to chaos, and what leads to chaos cannot be justified. So you should never engage in civil disobedience because of higher law and the utilitarian common good.
Cohen agrees but only sometimes. It is often a noble act and only when authority goes badly wrong is civil disobedience justified. Maybe the law is so unjust that chaos is protestable.
COHEN: What is the fourth argument against civil disobedience? How does Cohen respond?
4th Argument → Persons who engage in civil disobedience deliberately flout the law; they are contemptuous of the law, making light of it in a way that cannot be justified in a law-governed community.
This is the most frequently heard criticism of civil disobedients; and it is among the weakest. Although the manner of civil disobedients is sometimes defiant, their conduct is more often a manifestation of respect for law than of contempt for it. Recognizing that a given law applies to him, the civil disobedient breaks it knowingly, in the effort to correct what he believes is a serious injustice, and thereby to improve the system of laws. He understands (or should understand) that such deliberate violation of law will be met with legal punishment. He may expect that the punishment meted out to him will be (rightly or not) more severe than the inflicted upon less principled offenders against the same law. The civil disobedient generally undertakes his act with the intention of public self-sacrifice; he breaks the law and is punished. His suffering public punishment, his humiliation and probable maltreatment, is an essential part of his protest; it is his manner of declaring, in what he believes to be the clearest and most effective way he can, his deep concern and distress over a community wrong infinitely worse (as he believes) than that he commits. In accepting punishment he also demonstrates his respect for the system of laws, a system he seeks to improve, not subvert or destroy. Many recent civil disobedients in this country have been very clear about this, pleading guilty (or “no contest”) when charged, and insisting upon their own punishment as the public culmination of their protest. Such conduct cannot deserve the criticism that it demonstrates contempt for law, or makes light of the law. Some disobedients, it is true, have sought acquittal for their alleged crime, either on the ground that the object of their protest was a criminal act by their government which it was their legal duty to protest, or on the ground that their act was a form of speech protected by the 1st Amendment of the Constitution. Such claims, which are not common, are mistaken, and are inconsistent with civilly disobedient protest as usually conceived. In general, criticism of civil disobedients for “making light of the law” badly misapprehends the nature of their act, and ignores their publicly stated intentions.
COHEN: What is the ninth argument against civil disobedience? How does Cohen respond?
9th Argument → Although civil disobedience might sometimes prove justifiable under arbitrary and dictatorial rule, it can never be justifiable under governments within which there are lawful channels for the registering of protest, and lawful means for the correction of the wrong protested.
This is a bad argument, although it is often heard. Its plausibility arises from the conviction that where there are two ways of achieving the same objective, one lawful and the other not, the unlawful procedure (other things being equal) would not be justifiable. This principle is reasonable enough, but it does not really support the argument at hand. Even if there are lawful channels for the registering of protest, it does not follow that such protest will accomplish the same objectives, that it will (or could) be as effective as the self-sacrificial protest of the civil disobedient. Showing that lawful protest is possible, therefore, cannot by itself prove that disobedient protest is unjustifiable; what would have to be shown is that (assuming the object of a protest a wrong in need of remedy) some form of legal protest is equally (or almost equally) effective in achieving the protester’s social goals. Clearly, however, there are at least some cases in which lawful protest is not as effective as disobedient protest.
The civil disobedient is often moved to his protest just because, with these channels present and acknowledged, the remedies do not come, and do not even appear likely. Civil disobedience is a tactic resorted to when the normal processes of politics fail to meet the most pressing needs of some segment of the community, needs that could and should be met. It is a form of protest designed to do what normal political activities have not done, and do not appear likely to succeed in doing. It is true that real costs, both personal and social, are imposed by this disobedience. But that these coasts, because they include deliberate infractions of the law, must outweigh the gains in long-term social justice is precisely what the civil disobedient, after careful reflection, denies. His assessment of the pros and cons may be mistaken in any given case; but to assume that the mere presence of the possibility of lawful remedy necessarily refutes the case of the civil disobedient is to bed the central question.
From class notes: Civil disobedience may be ok under dictorial rule, but it is never justified when lawful channels of protest and lawful means of changing law exist.
Cohen responds that unlawful acts might accomplish things lawful acts cannot. Unlawful might be more effective than lawful. Even with lawful channels, change sometimes doesn’t come – sometimes it takes a long time.
FULLER: What happened to the Speluncean explorers?
They were exploring a cave when a landslide occurred and blocked them inside the cave. They were unable to get out on their own. Eventually help came for them, but it took so long that they ran out of food. They decided that they would have to kill one of them so that the rest could survive. This was initially Whetmore’s idea. They were going to roll dice to determine which person would be killed. Whetmore then decided that he no longer wanted to participate and refused to roll the dice. The others rolled the dice for him and asked whether he agreed that the dice were rolled fairly. He agreed that they were. He was the one that was chosen to die so the others killed him. They were then put on trial for murder.
They were trapped for 32 days. On day 20 they established communication with rescuers. On day 23, Whetmore was killed. Day 30 would have been the earliest day they could have been rescued. When communication was first made, they attempted to ask various people (police, doctors, etc.) if killing another would be wrong but no one that could have provided them with the answers wanted to answer them, so they made their own decisions based on their needs while being trapped.
FULLER: How does each judge rule?
Truepenny → He affirmed the conviction.
Foster → He voted to overturn the conviction.
Tatting → He withdrew from the decision.
Keen → He affirmed the conviction.
Handy → He voted to overturn the conviction.
FULLER: What is (are) the main reason(s) each judge offers for deciding as he does?
Truepenny → The laws and statutes should be interpreted by their plain meanings. Extra-legal means available for dealing with “rigor” of the law – executive clemency.
Foster → To him, positive law presupposes the possibility of coexistence and every possible law has to be interpreted reasonably (in terms of its evident purpose: evident; coexistence; what society needs today; legislators’ purpose). He believes the law should be interpreted by the letter of the law but in context of its purpose. The law is our (the People’s) tool. Its purpose is to solve our problems. The law should do what we want it to do. Laws are preconditions of society. Foster wants to agree with Keen about not interpreting the law and that judges only apply the law, but he says that the law must be intelligently applied.
Tatting → There are many purposes for the law: (1) deterrence; (2) orderly retribution; (3) rehabilitation; etc.
Keen → There are 4 ways people are let off: (1) Judge decides there was no crime. (2) Prosecutor decides not to indict. (3) Acquittal by jury. (4) Pardon by CE (What does CE mean?) (Extra: (5) Police did not arrest.) ← These are all fuzzy and allow for judgment. As judges, interpreting the law is not our problem. We apply the law; a legislature makes the law. Our only question is whether the law has been broken.
Handy → The law is our (the People’s) tool. Its purpose is to solve our problems. The law should do what we want it to do. Laws are preconditions of society. He believes the law should be interpreted by the letter of the law but in context of its purpose. He believes that their acts were outside the normal boundaries of society and that societal norms were not applicable to them.
FULLER: Which judge offers the best defense of his view, in your opinion? Why?
Foster, because he believes that the law should be applied by the letter of the law, but that it must be applied intelligently based on the context of the law’s purpose.
LEVI: What is the pretense that has long been under attack (and the Levi seeks to dismiss)? What is the alternative?
The pretense under attack is that law is a system of known rules applied by a judge. Levi says that it is the participation of the community in interpreting law that makes it valid.
