Bryan Caplan  

Civil Disobedience: King versus Huemer

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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.


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COMMENTS (31 to date)
Fabio Rojas writes:

This is why King is an activist and Huemer is a philosopher. Accepting unjust punishment is clearly illogical, but it can be good politics. If you wanted to rally people to your side, what is more likely to attract attention:

(a) breaking an unjust law and running away

or

(b) breaking an unjust law and accepting a moderate punishment?

I think that (b) can results in more attention to your cause. King and the SCLC leadership excelled in cooking up situations that were designed to make the state look illegitimate by handing out serious punishments for minor infractions of illegitimate laws. If King had stuck to (a) and evaded the law, then he would not have gotten the media to follow him around.

When I read King's originals, I never think of them in isolation. I think of them as statements made in conjunction with a broader civil rights movement that was tailored for combating legal segregation in the South.

Capt. J Parker writes:

King was motivated by a belief that nonviolence was a critical component needed for the success of the civil rights movement. A willingness to accept punishment for violating even an unjust law was a formal part of his strategy of nonviolence. I think he and Gandhi got this right even if they never articulated a logically consistent case for it.

Greg G writes:

It is not hard to make up thought experiments where jury nullification is the best outcome in a specific case. Nevertheless, in real life, if jury nullification becomes popular, it will be more often used to infringe on the rights of unpopular defendants than to advance the cause of justice.

In cases of civil disobedience the goal is to change people's minds about what the law should be. Accepting the punishment is a very effective method of protest because it focusses attention on whether or not that punishment ought to be there while maintaining a respect for non-violence and the rule of law.

Larry writes:

This misses Dr. King's point, which I take to be that in the US, on balance, obeying the law produces better results than otherwise. Therefore, while civil disobedience is warranted against unjust laws, affirming the priority of the law protects everyone better than "hacking", which I define is using the law to achieve aims otehr than what the law intends.

"If the law is unjust, doesn't consenting to punishment simply compound the injustice?"

Yes, locally. I'm worse off if I get punished. But that doesn't defeat the point that "we" are better off if we punish lawbreakers.

Bedarz Iliaci writes:

Lying is usually wrong,

Lying is always wrong but the context of lying is a conversation. where coercion has no part.

That is, one can not lie in a non-conversation. A non-conversation being a situation of coercion.

------------
Regarding laws, we need to distinguish between laws that we find unjust for some reason, and laws that we find intrinsically unjust.

An example of later would be one that criminalized self-defense.

The laws that are not intrinsically unjust must be either obeyed or their disobedience paid for.

The intrinsically unjust law must be disregarded and disobeyed.

Tracy W writes:

I rather think that King's philosophy is more incentive-compatible and thus rather more practical than yours.

Calling for people to "painstakingly investigate the justice of a law before breaking it" is hardly a simple alternative.

John Hawkins writes:

I'm not sure it is activism versus philosophy that explains the difference. Then why would Socrates drink the hemlock?

Kevin V writes:

Bryan, I think you're missing the fact that King was a Christian and that Christians have frequently believed, on the basis of Romans 13 and other passages, that we have a duty *to God* to obey the law, and to suffer the consequences, in part due to our witness to others. This doesn't make the laws just, but rather reflects the sacrificial attitude appropriate to a Christian. I'm not saying I agree with all of this, but I think you're missing the theological angle entirely.

Trevor H writes:

Also note that King was writing a political document, not a philosophical one. To get their support he had to reassure the moderately virtuous and slightly racist multitudes that his example wouldn't lead to blacks running wild in the streets. Insisting on accepting the punishment for disobeying unjust laws also meant that King could easily disavow any such lawlessness should it occur.

Tracy W writes:

On thinking about it, jury nullification is somewhat a different matter. On a jury, you're hopefully not sitting in judge of your own interest, so you have less inherent biases involved in determining what is just and what is unjust.

Although obviously the cases of jury nullification for the murder of black men shows that this is hardly a perfect solution.

Anon writes:

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Joel Aaron Freeman writes:

I'm going to take a crack at inferring King's argument.

1. If a person evades a particular law (whether just or unjust), the sanctity of the Law as a whole is weakened for this person and for those who see the evasion.

2. If many people habitually evade many laws, then the sanctity of the Law as a whole is destroyed for everyone. If the Law as a whole has no sanctity, people don't take it seriously. Political and civil institutions don't function as well, which is bad.

3. However, if I accept the penalty for breaking an unjust law, I might draw public attention it.

4. If public attention is drawn to the law, it is more likely that it will be changed. If I am also perceived as an upright and moral individual, the chances of the law being changed are even higher.


Massimo writes:

[Comment removed for rudeness.--Econlib Ed.]

Jeff writes:
Perhaps King's underlying story is a variant of the Noble Lie.

For someone who understands signalling behavior as well as you do, I think you're really missing the boat here. I suspect that by accepting punishment for violating an unjust law, King is attempting to signal to people who may disagree with him or are on the fence that he respects the rule of law and believes it to be very important in general, but that he considers a particular law to be unjust and so he has chosen to break it willingly in spite of the consequences. He is trying to signal to others that he is not a common scofflaw, but a conscientious objector.

Think of it like this: a libertarian might cheat on his taxes because he believes taxation to be theft and thus he feels no compunction about breaking an unjust law. On the other hand, plenty of other people cheat on their taxes because they like free-riding: they love the public goods that taxes finance, but they illegally avoid paying taxes themselves because its in their interest to do so. How does a principled libertarian really distinguish himself from these other kinds of people? With some kind of credible demonstration of commitment to principle (ie, signalling). Renouncing his citizenship, maybe. Moving to Costa Rica. Some personal sacrifice on behalf of his/her personal principles. King is doing the same thing.

Jordan writes:

Chapter 3 of Sowell's A Conflict of Visions is very relevant here.

RohanV writes:

I've noticed a pattern here on this site.

Caplan sees a behaviour he does not understand. He constructs a convoluted and baroque "explanation" for this behavior. He then proceeds to knock holes in his explanation, which is fairly easy because it is so complicated. Then, since his explanation has been showed to have flaws, Caplan concludes that the original behaviour is irrational.

Meanwhile, the comments to the post do their best to point out that there are much simpler and more consistent explanations. Caplan will ignore these and in future discussions will pretend that his explanation is the only possible one that could exist.

Jim writes:

Well, I suspect there's a better answer than mere political calculation (though that has some resonance) or the Noble Lie theory. It's simply a matter of humility.

If I observe that I believe a law is unjust, to the point where I'm willing to break it, I must also be concerned that I do not have perfect information, understanding or moral rectitude. My own flaws, weaknesses and failings should caution me that simply relying on my own judgement of the law's injustice is insufficient. i might be moderately virtuous, but my definition of justice might nevertheless differ from society's. I might therefore not "mistakenly" view a law as unjust, but genuinely reflect upon and investigate the law before concluding that it it indeed unjust, though my personal moral lens. However, humility compels me to acknowledge that I have done nothing to deserve the right to decide, unilaterally, to evade the law, and therefore I must accept that if I can't comply with the law, I must accept the consequence of that action, lest I exalt myself undeservedly and compound the injustice in that way. It's a perfectly reasonable ethical understanding of our limitations as human beings.

Bob Knaus writes:

Kevin V. gets the essence. King's statement springs from deep Christian tradition and teaching.

One should not expect Christian theology to be reducible to logic. How logical would members of a cult be which symbolically eats human flesh and drinks human blood? Whose most widely recognized logo is a device for capital punishment? Only a fool would be a Christian... and by the grace of God I am one.

RPLong writes:

I'm not sure this is about a "noble lie" so much as it is about respect for the rule of law.

I am under the impression that Bryan Caplan is at least mildly fond of Ayn Rand. If this is true, then I am surprised that he didn't point out that MLK was clearly articulating Rand's position on civil disobedience:

Such an action involves respect for legality and a protest directed only at a particular law which the individual seeks an opportunity to prove to be unjust.
(from Capitalism: The Unknown Ideal)

I think the key insight is that neither King nor Rand was an anarchist. They had a deep respect for civil society and thought that disregard for the rule of law would lead to problems. In at least Rand's view, the purpose of civil disobedience was to force the system to confront the issue. It was a means of working within the system to achieve a given end.

Jeff writes:

I think Fabio really hits the nail on the head with the activism vs. philosophy distinction. There is a reason that MLK and his followers wore their Sunday best when they went to march, knowing full well they would be met with water cannons and dogs (but also television cameras).

Related, I think the Rosa Parks story should be taught as effective civil disobedience. It was not some fluke nor accident, and there was a reason it was Rosa Parks and not a black man instead. Parks said "the only tired I was, was tired of giving in."

The civil rights movement was very effective at drawing attention to injustice. It was also effective at convincing many Americans who beforehand weren't very troubled by segregation in the South, that segregation is a grave injustice. Evading punishment would not have had this effect.

LD Bottorff writes:

I mean no disrespect Professor Caplan, but I must ask you who had more influence in getting laws changed? Dr. King, who was willing to go to jail for his belief in the injustice of the segregation laws? Or Dr. Caplan who believes that our immigration laws are unjust, but is content to complain about them in his blog?

Rest assured, if I am on the jury, and Bryan Caplan is accused of harboring an illegal immigrant, I will vote for acquittal; a trial without the possibility of jury nullification is not really a trial by jury.

Sieben writes:

I'm really surprised by the comments. Prima facie it seems very plausible that King, who is not a philosopher, would articulate an incoherent position in advance of his political goals. Nonetheless, many people apparently give King the benefit of the doubt...

Re the people who bring up King's (Christian) nonviolence: Evading punishment is not necessarily violent. You just like, take steps to avoid it. Wear a mask, try to escape, appeal to jury nullification, etc.

It seems extremely obvious that evading punishment for violating an unjust law is morally and philosophically sound. Whether resisting punishment would hinder a political cause is beside the point. Caplan is right that King is either telling a noble lie or is advocating an incoherent theory of civil disobedience.

KLO writes:

I am somewhat humored by the claim that King is articulating an incoherent position. No less than Socrates himself articulated essentially the same position as King in the Crito. Is Socrates not a philosopher? Is he incoherent?

Tracy W writes:

Sieben:

It seems extremely obvious that evading punishment for violating an unjust law is morally and philosophically sound.

Years of studying mathematics makes me sceptical of any claim that is dressed up with the word "obvious". If it needs an "extremely obvious", that indicates an even more implausible assertion.

If you are aware that you personally are a biased judge in your own cause, the moral case for only violating an unjust law if you also take the punishment is morally much stronger than the moral argument that you should break the law and avoid all punishment. (There may be a side issue over the likely result of openly breaking the law, if the authorities will just shoot you and bury you in an unmarked grave, as opposed to putting you on trial).

Sieben writes:

"If it needs an "extremely obvious", that indicates an even more implausible assertion."

Is this extremely obvious to you? :)

"the moral case for only violating an unjust law if you also take the punishment is morally much stronger than the moral argument that you should break the law and avoid all punishment"

Why?

Let's say I want to stop the state from executing an innocent person. Am I more ethical if I accept the state's retaliation? I think submitting myself to punishment would be merely stupid.

Your argument can only hold water when we're not really sure whether the law is right or wrong. But the morality of an action is ambiguous, then you don't know if you're acting morally. You're just expressing your personal preference, which is irrelevant to the Caplan/King topic. They both begin their hypothetical assuming that they know the law is unjust.

"There may be a side issue over the likely result of openly breaking the law, if the authorities will just shoot you and bury you in an unmarked grave, as opposed to putting you on trial"

Since when was a trial necessary for justice?

Pajser writes:

Huemer doesn't pay proper attention to question whether accused person accepted the law which he broke.

King did right thing - if he doesn't avoid punishment, he show that he has altruist and not selfish motives for breaking laws. It makes people think.

B.B. writes:

I think Kant would say, never lie, regardless of consequences. Kant did not think morality flowed from consequences but from fundamental principles.

I am not a Kantian. But we must recognize that refusing to lie is a legitimate ethical position.

As for the gang, there is also a view, perhaps a Christian view, that the gang must be confronted with the truth. When the two men lie about one man being gay, they are accepting the mob rule dominance. By refusing to lie, the two men are asserting not only truth but dignity and freedom. It is a legitimate choice, even aknowledging that speaking truth to mob rule may be fatal.

Tracy W writes:

Sieben: No, not so. It took me years of reading maths textbooks to realise just how deeply the word "obvious" could be abused. Before I started, I thought I was cynical enough about people, but mathematicians make used-car salesmen look good.

Let's say I want to stop the state from executing an innocent person. Am I more ethical if I accept the state's retaliation?

It depends on context, in particular, how public the state's retaliation will be. To repeat the extreme again, I agree that if the state's response will be to shoot you and bury your body in an unmarked grave, then accepting the state's retaliation is stupid.

Your argument can only hold water when we're not really sure whether the law is right or wrong. But the morality of an action is ambiguous, then you don't know if you're acting morally. You're just expressing your personal preference, which is irrelevant to the Caplan/King topic. They both begin their hypothetical assuming that they know the law is unjust.

Caplan doesn't begin his hypothetical assuming that they know that the law is unjust. Instead, he hypotheses that King's reasoning starts with the idea that "People often mistakenly think that a law is unjust." Which is quite different to assuming that the law is unjust as a starting point.

Caplan answers that starting point by claiming that the solution is "Promoting the Noble Truth that people should painstakingly investigate the justice of a law before breaking it.". He calls this a "simple" alternative, which is giving me flashbacks to my maths textbooks again in its abuse of language. Doing something painstakingly is not simple, and it's very hard to lay aside your cognitive biases.

You also introduce a false dilemma. There's a lot of other options between being sure and "just expressing your personal preferences."

Since when was a trial necessary for justice?

That depends on the context and on your definition of justice. A trial may well be an effective way of making the case for justice to the public - see for example Martin Luther King or Mandela's speeches.

libertarian jerry writes:

Unfortunately we do not live in a nation of laws but a nation of men. Powerful men that get away with breaking or flaunting the laws that normally apply to the average citizen. We also have corrupt courts,judges,prosecutors and law enforcement who either bend the law or direct juries to convict. This situation is especially rampant in cases where citizens challenge the power of government and those,behind the scenes,that control government. Anyone in America who challenges the tax system's laws,the legal tender laws,the banking system and the regulatory system is subject to "special" prosecution to the point of kangaroo courts. In essence, the powers that be will fight both legally and illegally to retain their power. The only chance the average citizen has in the courts today is to stay out of those same courts. Yes,jury nullification does work to a certain extent,as it did help to do away with prohibition during the 1930s. But in today's world to really try and win in the courts when you challenge state power is,sad to say,almost impossible.

Pajser writes:

Tracy W, what's that story about math textbooks? Why do you read these and how mathematicians are worse than used-car salesmen?

T.C. Durant writes:

An interesting thread here, Bryan. Thanks for the willingness to be provocative.

I don't think you've successfully understood the problems Dr. King was trying to address, at least as I understand them. :) There is a political aspect and a spiritual aspect that deserve consideration.

The spiritual aspect of the problem was living in *terror* of arbitrary abuse by white men. Dr. King's great insight was that fear and anxiety of being abused were as much a burden as the abuse itself, and that it was *tremendously psychologically liberating* to learn to take a beating in the company of your brothers and come out the other side. I didn't get this point until I read this essay and some of the threads around it.

I am going to quote it because it's more powerful than anything I can say:

[Dr. King and James Farmer] taught black people how to take a beating—from the southern cops, from police dogs, from fire department hoses. They actually coached young people how to crouch, cover their heads with their arms and take the beating. They taught people how to go to jail, which terrified most decent people. "And you know what? The worst of the worst, wasn't that bad.

Once people had been beaten, had dogs sicced on them, had fire hoses sprayed on them, and been thrown in jail, you know what happened?

These magnificent young black people began singing freedom songs in jail.

That, my friends, is what ended the terrorism of the south. Confronting your worst fears, living through it, and breaking out in a deep throated freedom song. The jailers knew they had lost when they beat the crap out of these young Negroes and the jailed, beaten young people began to sing joyously, first in one town then in another. This is what the writer, James Baldwin, captured like no other writer of the era.

Please let this sink in. It wasn't marches or speeches. It was taking a severe beating, surviving and realizing that our fears were mostly illusory and that we were free.

So that would be a reason why you need to accept the unjust punishment. To conquer your fear of it.

We can layer the political problem on top of that. To build the coalition he needed, Dr. King had to persuade those on the sidelines to step in decisively. And then the next layer behind them, and so on. To achieve this, the emotion he was attempting to trigger was the righteous indignation of by-standers / impartial spectators. To convince black moderates, he had to put himself in harms way. To convince white moderates, black moderates would have to put themselves in harms way. To convince a majority, white moderates would have to put themselves in harms way.

And that's how it played out. When Jimmie Lee Jackson was shot to death while defending his mother from a beating at the hands of state trooper during a peace march, it did not make the national news. But it led Dr. King to invite white preachers to come to Selma for another march, and among them was James Reeb, the minister of All Souls Unitarian in Washington, DC. When James Reeb was beaten to death the night of the march by klansmen, it made national news. The broader public was outraged that a white priest would be beaten to death, though few had cared when a black deacon (i.e. Jimmie Lee Jackson) was killed weeks before. LBJ cited Reeb's death when he send the Voting Rights Act to Congress...

So those are two good reasons (one spiritual, one political) to recommend that your fellows suffer through unjust enforcement rather than attempt to avoid it.

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