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Lecture #20
Just & Unjust Laws
• To be just [good] a law must be good in all respects
– i.e., it must meet all the criteria of the definition.
– This is an application of the Dionysian Principle.
St. Thomas Aquinas
Summa Theologiæ
• St Thomas on what laws need in order to be just:
– the right end—they have to be for the common good
– the right author—they have to be within power of the law-giver
– the right form—they have to put burdens fairly on all
Treatise on Law:
Obedience to Human Law
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The Connection between the Criteria of a Just Law
& the Definition of Law
Unjust Laws
• St. Thomas distinguishes two types of unjust laws:
– Some laws merely fail to meet one of the essential criteria of a just law
• The points that constitute the criteria of a just law
• but do not actually command anyone to do something wrong or forbid someone to do something
required
– “for the common good” corresponds to “from the end”
– “made by him who …” corresponds to “from their author”
– E.g., an tax law might set an unjust tax liability
– “dictate of reason” corresponds to “from their form”
– But it is not wrong to pay more than one’s share of taxes
• the least clear of the correspondences
• St Thomas refers to these as laws “contrary to some human good.”
• but “burdens fairly laid on all” is what reason would require
– Other laws actually require one to do something wrong or forbid someone to do something required.
– since reason would recognize and respect what is due
• E.g., a law requiring someone to kill innocent people
• The point that is not among the criteria
– St Thomas refers to these as laws “contrary to the divine good,”
– promulgated
– but they are not all cases that refer directly to God.
• St Thomas does not mention this because he is concerned with the practical problem
—how does one decide whether a law [which one knows about, and hence which has
been promulgated, else how could one be asking the question] is just?
– His example, laws requiring idolatry, does;
– but a law requiring the killing of innocent people is also an example & has nothing directly to do
with God or religion.
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St. Thomas on Law & Obligation
• One is bound in conscience to obey all just laws
– (except for truly unusual cases which don’t conform to the intent (or, spirit) of the law)
– since just laws are grounded in the natural law, one’s natural law obligation carries over to the human
law
• One is not bound in conscience to obey unjust laws as laws.
– One might still be obliged to obey an unjust law if
(1) obedience does not mean doing what it is wrong to do, and
(2) disobedience would violate one’s duty not to cause
(a) scandal (i.e., not to set a bad example for others), or
(b) a major disturbance
– One would be obliged to disobey an unjust law in which
(1) obedience does mean doing what it is wrong to do
– One would be at liberty to obey or disobey a law in which
(1) obedience does not mean doing what it is wrong to do, and
(2) disobedience does not involve scandal or causing a disturbance.
Scandal
• popular sense
– something that is likely to cause outrage or indignation
• technical sense (in philosophy & theology)
– word or deed that leads to the spiritual downfall [or, philosophically, to the wrongdoing]
of another (2a2æ, 43.1)
• especially relevant here is “scandal of the weak”
– innocent acts that would lead the weak & ignorant astray
– cf. St Paul: “if food scandalizes my brother, I will eat flesh no more forever, lest I
scandalize my brother” (1 Cor 8.9, 13).
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St. Thomas on Law & Obligation
Conscientious Objection
• Definition
– refusal to obey the law as a matter of conscience
• Standard Usage
– Pacifist refusal to perform military service
– Refusal to perform military service in an unjust war
• Franz Jägerstätter (1907-1943), an Austrian farmer,
refused induction into the Wehrmacht during WWII.
He was beheaded on 9 Aug 1943.
• Extended Usage
– Refusal to worship false gods (St. Thomas’ case)
• When the soldiers of Rome’s XII Legion were ordered
to make a sacrifice to false gods, thirty-nine Christians
refused and were martyred by Roman authorities.
Situations &
Obligations
Just Law
Unjust Law
Commanding a
Good or Neutral Act
Obligation to Obey
Where
Disobedience
Would Cause
Scandal or
Disturbance
Where
Disobedience
Would not Cause
Scandal or
Disturbance
Obligation to Obey
Liberty
Commanding a
Bad Act
Obligation to
Disobey
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Civil Disobedience:
Henry David Thoreau (1817-1862)
Civil Disobedience
• Definition
– “a public, non-violent, conscientious yet political act contrary to law usually done with the
aim of bringing about a change in the law or policies of the government.”—John Rawls
– Notes
• There is a difference from conscientious objection in the reason, though an act might be
done for both reasons.
• Sometimes the term is used carelessly, but not all forms of non-violent resistance are civil
disobedience.
– Non-violent resistance (or protest) could be seen as the genus
» civil disobedience would be one species, boycotts another, &c.
• Sometimes other criteria are added
– Usually, that the protest be non-violent.
– Frequently, willingness to accept punishment
– Precision in definition does not resolve the question of which forms of protest are permissible
& which forbidden.
• E.g., the question of civil disobedience is distinct from the questions of
– whether armed revolution is ever justified
– whether there are ways of resisting injustice between civil disobedience & armed
revolution
• In 1846, his refusal to pay his poll tax
(because of his opposition to slavery & to
the Mexican war) resulted in his arrest. He
was released the next day when his aunt
(despite his objections) paid the tax for
him.
• This sounds more like conscientious
objection.
• His
essay
“Resistance
to
Civil
Government,” now generally called “Civil
Disobedience,” was central to the
development of the concept.
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Civil Disobedience:
Martin Luther King (1929-1968)
Civil Disobedience:
Mohandas Gandhi (1869-1948)
• Gandhi developed the concept of satyāgraha (grasping the truth), a form of
civil disobedience, in two major campaigns:
– The South African Civil Rights Campaign of 1893-1914
– The Indian Independence Movement of 1916-1945
• An example—The Salt March to the Sea
– In spring 1930, Gandhi led his followers on a 241-mile march to Dandi, on the
Indian coast, to manufacture salt in defiance of a British monopoly on the
product.
• His principles included the following:
– A civil resister will harbor no anger; he will suffer the anger of the
opponent.
– When any person in authority seeks to arrest a civil resister, he will
voluntarily submit to the arrest ….
– A civil resister will never insult his opponent ….
– In the course of the struggle if anyone insults an official or commits an assault
upon him, a civil resister will protect such official or officials from the insult or
attack even at the risk of his life.
• King emphasized non-violent resistance to segregation
laws during the Civil Rights Movement.
• Often, he was able to achieve his ends without civil
disobedience:
– The Montgomery Bus Boycott of 1955-56
– The March on Washington in 1963
• Many of the efforts that constituted the Civil Rights
Movement were an attempt to act on rights explicitly
recognized by the Federal government in the face of state or
local authorities’ refusal to obey or enforce those laws.
– The Freedom Rides
• But King was willing to use civil disobedience when
necessary & he defended it in his Letter from Birmingham
Jail (12 June 1963):
“One has not only a legal, but a moral
responsibility to obey just laws. Conversely, one
has a moral responsibility to disobey unjust laws.”
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Civil Disobedience:
4. The Sit-Ins
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St. Thomas & Civil Disobedience
• A good example of the Civil Rights Movement’s use of civil
disobedience was the sit-in campaign, in which Blacks sought service
in segregated lunchrooms, &c.
– On 1 February 1960, four freshmen at North Carolina A&T College
went to to the lunch counter at Woolworth’s in Greensboro. Refused
service, they continued to sit at the counter until closing (above).
– The sit-in tactic spread to Raleigh, Nashville (below) & other cities.
Some 3000 people were arrested in various protests— sometimes
for “disorderly conduct;” other times for trespassing.
– There was no disorderly conduct by the protesters, so no
disobedience to law there. But when asked to leave the counters, the
sit-ins became, in the strict sense, civil disobedience.
• Students were trained in the techniques of non-violence.
– Rules included: “Do show yourself friendly on the counter at all
times. Do sit straight and always face the counter. Don't strike back,
or curse back if attacked. Don't block entrances.”
– James J. Kilpatrick, a pro-segregation journalist, wrote: “Here were
the colored students, in coats, white shirts, ties, and one of them was
reading Goethe and one was taking notes from a biology text. And
here, on the sidewalk outside was a gang of white boys come to
heckle, a ragtail rabble, slack-jawed, black-jacketed, [&] grinning fit
to kill. … It gives one pause.”
• St. Thomas does not address this question directly.
– He does not consider the question of protest.
– He does not anticipate the problem of just laws applied in a systematically unjust way (e.g., the use of
trespass laws in segregation).
• But Martin Luther King, Jr. refers explicitly to St. Thomas in his “Letter from Birmingham Jail,” justifying
his actions against critics who said that he should never disobey the law.
• The practice of both Gandhi & the leaders of the sit-in campaign seem to respond to St. Thomas’ concerns
about disobedience causing “disturbance.”
– Civility in disobedience minimizes confrontation & promotes reconciliation.
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A Different Kind of “Civil Disobedience”
• Much current practice that goes under the name of “civil disobedience” deviates from the
practice of Gandhi & King in this respect.
– In the practice of Gandhi & King, disobedients violated unjust laws or laws unjustly applied
& were careful to avoid aggravating the confrontation.
– The term “civil disobedience” is frequently used for any deliberately illegal protest.
• Sometimes the whole point of the protest is to break the law.
• Sometimes the protest is conducted in a way aimed at aggravation of the confrontation
& in ways that violate the rules emphasized by Gandhi & King.
– On Mayday 1971 antiwar protesters attempted to block key bridges in Washington
to shutdown the government in protest against the Viet Nam War.
• More confrontational (or violent protest) may not always be wrong; but it differs from the
model of civil disobedience proposed by Gandhi & King.
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