the imaginative conservative logo

MLKIn acknowledgement of MLK day, I wanted to raise the question, based on Martin Luther King Jr.’s, “Letter from Birmingham Jail,” as to when, if ever, as well as to what extent, it is appropriate to defy the rule of law.

On The Imaginative Conservative Winston Elliott raised the question “When is a Change in Government a Duty”, asking whether the Declaration of Independence’s statement that society has a right, under certain circumstances, to abolish its form of government, would ever apply, despite the Constitution’s amendment provision. In response, Stephen Masty appropriately suggested that preserving the rule of law may limit us to using the amendment provision in bringing about any changes in the form of our government. MLK’s “Letter from Birmingham Jail” is relevant here because his letter, in part, was meant to allay the fears of his fellow Christian ministers who were concerned about MLK’s and his followers willingness to break laws. Relying on St. Augustine and Aquinas, MLK makes a natural law argument to the effect that there are times when it is appropriate to break the laws.

In his letter, MLK asserts that while one has a legal and moral duty to obey just laws, “one has a moral responsibility to disobey unjust laws,” for, referencing St. Augustine, “an unjust law is no law at all.” MLK refers to Aquinas for the principle that allows one to distinguish between an unjust law and a just one. An unjust law is “a human law that is not rooted in eternal law and natural law,” but a just law is a “man-made code that squares with the moral law or the law of God.” Therefore, to the extent our civil law does not conform to the eternal and natural law, MLK appears to conclude that not only may one disobey the law, but even has a duty to do so.

If MKL is correct, then it would appear that there are situations in which we may depart from the rule of law. If so, are we always and forever bound to altering our Constitution through the amendment process itself, or is there a situation in which society may alter or abolish the present form of government in a manner that does not follow the procedures of our Constitution? After all, it seems we have done this before. Although the Articles of Confederation had an amendment provision, we did not merely amend the Articles but replaced them with our current Constitution.

The Imaginative Conservative applies the principle of appreciation to the discussion of culture and politics—we approach dialogue with magnanimity rather than with mere civility. Will you help us remain a refreshing oasis in the increasingly contentious arena of modern discourse? Please consider donating now.

Print Friendly, PDF & Email
"All comments are subject to moderation. We welcome the comments of those who disagree, but not those who are disagreeable."
9 replies to this post
  1. Mr. Creech doesn't duck the tough questions! With no qualifications to answer this, I'd have to concur with Dr King on an unjust law: if a law says I have to put Jews into cattle-cars, I'm not going to obey. But what about an entire system that is vastly unjust? Few of us would argue that von Stauffenberg should have postponed his attempted assassination of Hitler in order to build some kind of 'goo-goo' (a Ralph de Toledano word disparaging 'good governance' reformers) democratic effort to lobby and hug and cuddle and share the Nazis out of power. By then (1943-1944) there was no German mechanism for democratic reform so revolution or assassination was more clearly justified.

    So, we go into the gray areas again. Assume a working democratic system permitting the wholesale restructuring of government but no consensus to change: for example, most voters like the idea of slaughtering some innocent minority, or cannot be bothered to do anything to oppose it, or even to hold an opinion because there's something entertaining on television. What then? Guessing wildly, I'd imagine that some values are of higher moral importance than protecting a man-made legal or electoral system however well-designed it is for ordinary circumstances. Jesus cast the loan-sharks, money-grubbers and junk-bond-dealers out of the temple: had they operated under the US Constitution, one doubts if the Lord could have successfully circulated petitions, gone onto the equivalent of Oprah and martialed a democratic consensus for reforming or even replacing the entire system. He took the matter into His own hands. But it got Him crucified, and anyone so resolved to take on a majority for higher principle had better not be surprised by martyrdom: John Brown's soul may go marching on, but his body lies a-mouldering in his grave. Of course, Brown knew that beforehand and did not mind.

    Stephen Masty

  2. Thanks for this, John. You bring up a lot of important issues, all of which need to be addressed by conservatives and others. I saw so much praise of Martin Luther King by conservatives yesterday that I had to bite my tongue over and over again. This man should NOT be revered by a republican society. He plagiarized much of his dissertation. I know of few things worse (outside of capital crimes) than stealing another's work for one's own. I have a very hard time taking him seriously.
    The issues raised are important, John, but they're NOT important because Martin Luther King had anything to do with them. They're important in spite of King's involvement.

  3. Mr King was a noted reader of Henry David Thoreau. His beliefs and multiple speeches and wrtings concur consistently with Thoreau. As a young man of 20 ,while serving in The US Air Force I first read Thoreaus " Civil Disobedience ". With a publication close to 100 years old he had more aptly summed up public sentiment for the immediate post Vietnam era than any current writer I had found . Serving in the first all volunter military after Vietnam had its twisted ironies in and of itself. Yet MLK, HDT, and Thomas Jefferson wrote of the Responsibilities of freedom as opposed to the rights of freedom. The collectve views ; each of different centuries forever shaped my perceptions. One of which is not to bow to tyrannical and unjust rule. Unjust rule is ruling. Just leadership is rare and treasured

  4. John, Thanks for bringing up questions that need bringing up. Aside from the fact that I don't believe that Dr. King wrote the Letter while he was languishing in jail over the Easter weekend, I also think that his was not a natural law argument. He says, "Any law that uplifts human personality is just. Any law that degrades human personality is unjust." "Human personality?" What can that possibly mean? He later says that the problem with law and order failing to establish "justice" is that in so doing they "block the flow of social progress." If the purpose of law is to further "social progress," it hasn't much to do with the natural law, which is reflective of the order of creation, not put there by God to ensure "social progress." That MLK Jr. was a man of great courage I would never deny. As a thinker he was third-rate, and as a moral example he was, well, not much of one.

  5. I don't believe that justified civil disobedience is departing from the rule of law, just from the unauthorized acts of the governing body. Among the charges against King George in the Declaration is found: "He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation…." The Declaration then lists some those acts, such as quartering troops and taxation without consent. To the extent that the colonists resisted these "laws" years before they felt forced to rebel, they were exercising appropriate civil disobedience.

    From the time of our founding, honoring civil disobedience has been an important part of our tradition and our character as a people. Civil disobedience is not the same as rebellion, for it is an act against "pretended legislation", that is, unauthorized legislation, but within a continued obedience to legitimate legislation. The colonists hoped that their manly disobedience would call King George to his senses; it did not, and so they rebelled, that is, rejected him completely as the legitimate ruler.

    Civil disobedience also differs from rebellion because it can and often is an act of individuals, while rebellion can only rightly be the act of the whole people.

    So civil disobedience does not justify acting outside of the law.

    Let me suggest a few more ideas, which I have been mulling over as a result of some of the secessionist discussions.

    A people can act outside of the law, if by law we mean what arise from conventionally established structures. Here, too, the Declaration has something to say, when it charges King George with dissolving the assemblies which exercised civil disobedience "with manly firmness":

    "He has refused for a long time, after such dissolutions, to cause others to be elected, whereby the Legislative Powers, incapable of Annihilation, have returned to the People at large for their exercise; the State remaining in the mean time exposed to all the dangers of invasion from without, and convulsions within."

    As long as the People exists, the Legislative Powers exist. So any legitimate act of the People is still within the bounds of law, even if they have no formally established structures of government.

    If we want to change our form of government, we either do it through an act formally recognized by the existing Constitution, or through revolution, acting outside of structures that have been agreed to. A revolution can be peaceful or violent, depending on whether the government accepts the will of the people or not. I think the Articles were established through violent revolution, while the Constitution was established through a peaceful revolution of sorts. The government established by the Articles effectively abdicated, since it could not fulfill its function. The People then were forced to come up with a new form of government. In either case, the People were acting as the immediate legislators, and so within the rule of law.

  6. Just a passing comment: I think it's good to see conservatives saying words of praise for Martin Luther King, despite what we know of some personal failures of his. As a movement leader, King was admirable, and that's why he is celebrated, not because he plagiarized (there is no perfect "hero", see Thomas Jefferson). But I say that it's good to see this posture now, because in the eighties, when it was proposed to create the MLK day, the usual conservative position was to deny any public recognition of his; and when he was alive, National Review, for one, usually trounced his ideas of civil disobedience as well as any legislative or judicial support of the civil rights cause, in the fashion of Brown v. Board or the Civil Rights Acts. By the same time, flattering articles and reviews on books and authors suggesting the genetic intellectual inferiority of the "Negro race" could be found in the magazine without much oppositon, if any. As Ramesh Ponnuru admitted in 2010, this is a thorny point in the history of conservatism, and it's yet to be seen how a political philosophy, so to say, that lacked the vision to understand the issues so clearly involved in the civil rights challenge — and at a time when all of the "philosophical founders" were alive and well, and writing as ever on a vast range of issues –, and was so prone to fight it in the name of the iniquities of a bad status quo, is to deal with analogous problems today.

  7. Look at Birmingham today. That it has experienced "progress" is undeniable, but which direction did it go? Up….or down?

    Visit sometime and find out the answer.

  8. Good comment, I have often noted the ease with which certain Conservatives overlook some pretty significant flaws within the members of the founding generation ( standing poised to criticize those who do no) while remaining transfixed on the flaws of King. As we see from some of the comments this tendency remains in practice even to this day. That along with the realities you describe about the early days of the Conservative movement should be taken into consideration when some Conservatives of today descend so heavily into their regular consternation over why American Blacks are not more receptive to us as a group.

Leave a Reply

%d bloggers like this: