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Is Civil Disobedience justified in the case of morally controversial laws?
Definition and Purpose of Civil Disobedience
Civil disobedience is an “illegal activity undertaken to protest laws that are regarded as unjust.”[1] The act is public, conscientious, and non-violent.[2] The purpose of civil disobedience is to call public attention to the claimed injustice, by creating the kind of tension or crisis in the community that is conducive to the desired change.[3]
The people who were closely related to the concept of civil disobedience
Henry Thoreau, Mahatma Gandhi, and Dr. Martin Luther King Jr are closely related to the concept of civil disobedience — they strongly believed that their governments were unjust and required fundamental changes. They did not think that they were morally obligated to follow unjust laws. They put themselves in harm’s way — ready to face the consequences of their violations. For instance, Thoreau refused to pay the Massachusetts poll tax in protest of the government’s support of chattel slavery, its invasion of Mexico, and the treatment of Native Americans.[4] Gandhi called for acts of peaceful civil disobedience against the British colonial rule in India. In the USA, the Jim Crow laws were a system of white supremacy, aimed at racial segregation and secured by terror. As a result of that, civil activist, King Jr. engaged other African Americans in various campaigns of civil disobedience for the end of racism and segregation.[5] Civil disobedience was necessary for the cases above; they speak volumes of injustice, moral depravity, and unjust laws, (segregation, racism, slavery, exploitation). Saint Augustine once wrote: “an unjust law is no law at all.”[6] And as such, people have the moral right to disobey unjust laws and engage in civil disobedience if necessary. Moreover, rulers who enact unjust ‘law’ cease to be authorities in the rightful sense.
Is Civil Disobedience justified in the case of morally controversial laws?
Morally controversial laws are racial discrimination, homosexual couples, euthanasia, abortion, cloning, pornography, prostitution, etc. Taking, for example, in 1967, the Abortion Act in the UK legalised abortion. This was a very controversial law at the time and there are still people who oppose it today through engagement in civil disobedience. Is civil disobedience justified in this case? well for the “conservatives,” civil disobedience is justified; in their eyes, abortion is immoral — they cannot fathom how such a law be passed to kill an innocent child in the womb. It is also in line with what St. Thomas Aquinas once mentioned: life both in the womb and life outside of it holds the same value. Hence, the right to civil disobedience in the abortion case for “conservatives” is “moral” as it is necessary to express one’s protest against an unjust law and dissociate from it.[7] For them, it is imperatively important and necessary to bring about change in the law or policies of the government.[8]
Second, Lord Devlin (a British judge) who was opposed to homosexuality (after its legalisation in the UK in 1967) mentioned that the law should set the basic standard of morality and that society should aim for higher standards.[9] But can every person truly reach the “higher standards” Lord Devlin mentioned? in the UK (in the West), we live in a pluralist society, thus, this means that Parliament finds it difficult to pass laws that reflect the morals and beliefs of every person — people seem to have different morals based on ethnicity, religion, social status, etc. Hence, if people are not in tune with the “higher standards of God,” conscience, maybe a treacherous guide (as Rawls mentioned), alas. I can agree with Lord Devlin when he mentioned that “society may disintegrate if morals are not upheld.”[10]
Civil disobedience is necessary to oppose unjust laws or morally controversial laws. There cannot be a complete separation between law and morals as they are intertwined. William Blackstone (1723–1780)[11] once declared that no human law is valid if it contradicts God’s higher laws, which maintain and regulate natural human rights to life, liberty, and property.[12]
[1] Steven R Schlesinger, ‘Civil Disobedience: The Problem of Selective Obedience in Law.’p.947 Civil Disobedience: The Problem of Selective Obedience to Law (uchastings.edu) (assessed May 11, 2021).
[2] John Rawls, A Theory of Justice, (Cambridge: Belknap Press of Harvard University Press, 1999), 364.
[3] Schlesinger, ‘Civil Disobedience: The Problem of Selective Obedience in Law.’
[4] David Lyons, “Moral Judgment, Historical Reality, and Civild Disobedience,” Oxford Scholarship online, Moral Judgment, Historical Reality, and Civil Disobedience 1 — Oxford Scholarship (universitypressscholarship.com)
[5] Tibbot and Richardson Attorneys at Law, “Martin Luther King Jr and the End of Jim Crows Law,” Tibbot and Richardson Attorneys at law, Martin Luther King, Jr. and the End of Jim Crow Laws — Tibbott and Richardson Attorneys at Law (tibbottrichardson.com) (assessed May 11, 2021).
[6] Wikipedia, “Lex Iniusta non est lex,” https://en.wikipedia.org/wiki/Lex_iniusta_non_est_lex (assessed May 12, 2021).
[7] Joseph Raz, The Authority of the Law: Essays on Law and Morality, (Oxford: Oxford University Press, 1979), 263.
[8] John Rawls, A Theory of Justice, (Cambridge: Belknap Press of Harvard University Press, 1999), 364.
[9] Wikipedia, “Patrick Devlin,” https://en.wikipedia.org/wiki/Patrick_Devlin,_Baron_Devlin (assessed May 13, 2021).
[10] Wikipedia, Patrick Devlin.
[11] William Blackstone was an English jurist, Judge, and politician of the eighteenth century.
[12] William Blackstone, The Sovereignty of the Law — Selections from Blackstone’s Commentaries on the Laws of England, (London: McMillan Publishers, 1973), 58–59.
