Civil Disobedience

Author(s): Rex Martin

Source: Ethics , Jan., 1970, Vol. 80, No. 2 (Jan., 1970), pp. 123-139
Published by: The University of Chicago Press

Stable URL: https://www.jstor.org/stable/2379876

JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide
range of content in a trusted digital archive. We use information technology and tools to increase productivity and
facilitate new forms of scholarship. For more information about JSTOR, please contact support@jstor.org.

Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at
https://about.jstor.org/terms

The University of Chicago Press is collaborating with JSTOR to digitize, preserve and extend
access to Ethics

This content downloaded from

213.200.15.113 on Thu, 13 Jan 2022 09:30:10 UTC
All use subject to https://about.jstor.org/terms
 CIVIL DISOBEDIENCE

REX MARTIN

INTRODUCTION detail. In my opinion there are three

In a spirit of opposition to many main types: the revolutionary, the
things in this country-to the Vietnam political, and the moral-religious. In
War and the draft, to laws and court this paper I will not be concerned with
injunctions in support of one racial the general question of type analysis-
policy or another, to the antiabortion beyond suggesting that there are type
statutes of various states, to legal pro- differences. What I do want to do is
hibitions on the use of marijuana and to bring one of these types-the politi-
LSD-citizens have acted in defiance cal into clearer focus. This is pri-
of law and of existing public policy in marily what I mean by "developing a
ways which have been widely, perhaps perspective" on the concept of civil
disobedience.
uncritically, characterized as acts of
"civil disobedience." Although the Second, I shall take up the issue of
practice of civil disobedience has be- the justifiability of civil disobedience.
come relatively widespread and al- I want to indicate how one might go
though there is much discussion of it, about the job of justifying civil dis-
pro and con, there has been no ade- obedience. In particular, I want to try
quate systematic study of the concept to show that civil disobedience is justi-
of civil disobedience. I cannot pretend fiable in a democracy, in a specific
to offer such a study in this essay, but sense and under certain conditions.
I would like to take a few preliminary And, finally, I shall try to map out
steps toward providing a philosophical the concept of civil disobedience by
analysis of that concept. For I do think showing its place in democratic politi-
that civil disobedience, as an issue in cal philosophy relative to other con-
the public forum, presents problems cepts. Specifically, I want to indicate
which can be resolved only by philo- its relationship to the paired concepts
sophical analysis. of political authority and obligation.
In providing this analysis, it is not
DISTINCTIONS
my intention to comment directly on
particular acts of civil disobedience or I would like to begin by drawing
to pass any sort of judgment on them. tain distinctions between civil disob
I want, rather, to develop a perspective ence and other things that have been,
on the concept of civil disobedience. or could be, confused with it. In the
In this essay I shall take up three first place civil disobedience is dis-
issues. First, I shall elucidate the con- obedience to law. But we should recog-
cept of civil disobedience by drawing nize that there are many cases of dis-
some distinctions. It is my aim here (a) obedience to law which are not cases
to provide a formula of definition and of civil disobedience. As an example,
(b) to suggest types or subclasses of we might take the widespread break-
civil disobedience. A systematic study ing of prohibition laws in the 1920s.
would explore this question of types in People broke a law that they did not
123

This content downloaded from

213.200.15.113 on Thu, 13 Jan 2022 09:30:10 UTC
All use subject to https://about.jstor.org/terms
 124 ETHICS
like, but that was not normally their
"motive"-they liked gin. In fact, most
cases of lawbreaking are not cases of
civil disobedience.
More important to my point is the
observation that there are cases in
which laws are not disobeyed, yet they
are called cases of civil disobedience.
This, in my opinion, is simply an error
in classification. But it is a common
error. For instance, let us take the case
of the CORE demonstrators at the
1964 Republican Convention. Radio-
TV announcers insisted on calling them
civil disobedients. I do not think they
broke any laws; indeed, they were sit-
ting down-more or less quietly-in
an area which the police had roped off
for that purpose. Hence I would not
call what they did civil disobedience.
In fact, much of the picketing and
mass assembly-demonstration or con-
frontation, as we call it-does not,
contrary to popular conventions in
naming, involve direct and deliberate
disobedience to law.
A classic case in point here is the
famous Montgomery bus boycott of
1955-56 led by the late Dr. Martin
Luther King, Jr. The tactic of the
Negro bus riders was not to break the
local segregated-bus ordinances but to
boycott the buses by walking and by
organizing car pools. The issue of
breaking the law was avoided by this
tactic; in intention the boycott did not
involve disobedience to law, any law.
At a later point, local authorities dis-
covered on the books an antiboycott
statute, which they thought might be
applicable to the Negro car pools and
"taxi" services. It so happened, next,
that Dr. King was indicted and con-
victed under this statute. He became
de facto and technically a law violator,
although he had not set out to violate
This content downloaded from
213.200.15.113 on Thu, 13 Jan 2022 09:30:10 UTC
All use subject to https://about.jstor.org/terms
any law. Indeed, he did not even know,
when he set out to defy the system of
bus segregation and to organize the
boycott, of the existence of the law
under which he was later convicted. He
can hardly be said, then, to have
broken the law intentionally. That the
blacks continued in a course of action
which had been judged illegal in one
case has to be assessed in the light of
a further salient fact in the history of
this boycott.
In November of that same year, a
court hearing was held to determine
whether an injunction should be issued
to stop the car pool and to grant com-
pensation for damages to the city. Dr.
King attended these hearings, fearful
that the injunction would be issued.
But when the injunction was issued it
had no effect because, before the hear-
ing could be concluded, the U.S.
Supreme Court declared unconstitu-
tional the Alabama and local statutes
in support of bus segregation, and the
need for the bus boycott disappeared.'
The existence of the injunction was an
academic matter; it was issued but it
was neither contested nor defied. It
should be clear from this recital that
Dr. King and his followers, although
protesting a public policy of municipal
bus segregation, were not engaged in
civil disobedience. If they did break
a law, it was done unwittingly and
incidentally. And the crucial injunc-
tion, when issued, was never disobeyed.
It is apparent, indeed, that Dr. King
was willing to abide by the injunction.2
I would say in summary that there was
no deliberate breaking of law and, by
definition, no civil disobedience.
Many such confrontations do not in-
volve disobedience to law, deliberate
or otherwise; hence they are not classi-
fiable as civil disobedience. Even when
 CIVIL
they involve incidental violation of law
(breach of peace, walking on the grass,
parade without permit) I would hesi-
tate to call them civil disobedience on
the basis of that kind of law violation.
In the second place, civil disobedi-
ence is not to be confused with revolu-
tionary political action. There are
many acts of revolution that are not
acts of civil disobedience. And it should
be clear that an act can be one of
civil disobedience without being a revo-
lutionary act. For civil disobedience can
have the more modest goal of frustrat-
ing specific laws of existing govern-
ments rather than of replacing one sys-
tem of government with another.
Of course, some acts of civil dis-
obedience are revolutionary (e.g.,
Gandhi in India). I think it is impor-
tant, both from the point of view of
philosophy and from the point of view
of a rational classification scheme for
political actions, to distinguish two
classes: revolutionary civil disobedi-
ence and nonrevolutionary civil dis-
obedience.
It is curious that the traditional dis-
cussion of civil disobedience by philos-
ophers, divines, and statesmen has not
made a clear distinction between rev-
olutionary action per se and civil dis-
obedience per se, or, within the concept
of civil disobedience, between the revo-
lutionary and nonrevolutionary types;
rather, it has tended to tie in civil dis-
obedience with revolution rather close-
ly. Those who hold the traditional posi-
tion see, or claim to see, some necessary
connection between civil disobedience
and subversion of government, revolu-
tion, even anarchy. This linking of the
two notions is a mistake. I would say
that it is the single greatest mistake in
the traditional analysis of civil disobe-
dience. It really amounts to a failure to
This content downloaded from
213.200.15.113 on Thu, 13 Jan 2022 09:30:10 UTC
All use subject to https://about.jstor.org/terms
DISOBEDIENCE 125
clarify the concept of civil disobedi-
ence; it represents a conceptual con-
fusion.
Third, civil disobedience should be
distinguished from certain acts of dis-
obedience to law which one can claim
to be both nonrevolutionary and justi-
fiable. An instance of what I mean is
supplied by Brandt. He says: "Con-
sider the following real-life example.
In the Commonwealth of Pennsylvania
it is unlawful to operate a motor vehi-
cle that has not been inspected. The
penalty is not high-perhaps $25, more
or less, depending on the whims of the
magistrate. But the action is unlawful.
Now suppose an uninspected car is the
only vehicle available for transporting
an ill person to a hospital for urgently
needed care."3
Although the act of disobedience in
question was nonrevolutionary and ap-
parently justifiable, I am disinclined to
call any such act a case of civil dis-
obedience. My reason is that the law
violated was admittedly "innocent";
there was no claim against the law dis-
obeyed to the effect that the law itself
was unjust, contrary to good morals,
or against good policy. In fact there
was no claim against the law at all,
nor was the law violated to frustrate
some undesirable public policy.
Finally, I want to make a distinction
based on one further stipulation: that
the civilly disobedient person is not act-
ing in any public capacity-as, for ex-
ample, a governor defying a Supreme
Court decision or the United States
House defying a Supreme Court ruling
about the constitutionality of exclud-
ing Adam Clayton Powell (a now hypo-
thetical example). I make this stipula-
tion because I find it difficult to say
that the one public agent is disobeying
the other; the relationship here might
 126 ETHICS
better be described as "constitutional
impasse" rather than as civil disobedi-
ence. Thus, I suggest that we have
regard only to the case where the civilly
disobedient agent is acting solely as a
private citizen.
Before I turn to the question of
what civil disobedience is, let me sum-
marize briefly the distinctions I have
made up to this point: (a) Civil dis-
obedience is to be distinguished from
"demonstrations" or confrontations in
which laws are not violated. (b) Civil
disobedience is not necessarily tied in
with revolutionary action. (c) There
are some cases of justifiable, nonrevolu-
tionary disobedience to law which are
not cases of civil disobedience. (d)
Civil disobedience, which refers to the
citizen's relation to the state and its
laws, can be distinguished from consti-
tutional impasse, a relation between
two public agencies.
A FORMULA OF DEFINITION
What then is civil disobedience?
Civil disobedience is the deliberate and
public violation of the command of an
authorized and accepted political su-
perior on the ground that this decree
is unjust, immoral, unconstitional, con-
trary to good public policy, etc. Some-
times the objection is lodged not against
a specific command (law, decree) but
against some policy of the government
with which the law is connected. And
sometimes the connection between the
law violated and the policy protested
is remote, and the act of protest or
defiance becomes largely symbolic. In
any case, the law is broken as a way
of "getting at" the policy-to some-
how frustrate the government through
disobedience in order to get it to modify
its policies. We should be able to count
such acts of lawbreaking as civil dis-
This content downloaded from
213.200.15.113 on Thu, 13 Jan 2022 09:30:10 UTC
All use subject to https://about.jstor.org/terms
obedience so long as the ground of ac-
tion is the claim that the government's
policy is unwise, unjust, immoral, or
unconstitutional. And, in either case,
there is a claim, explicit or implicit, that
the act of disobedience is justifiable.
There is an oddity of the political
system of the United States which
should be noted. In this country, as in
certain others, there is a form of dis-
obedience known as "testing a law."
Such a test is performed in order to
find out what the standards of judicial
enforcement are going to be. In the
United States there is the additional
factor that the Supreme Court has the
power of judicial review, i.e., of declar-
ing laws unconstitutional. However, the
Court will "review" a law only if the
"petitioners" have standing before the
Court, and this normally requires that
they be in violation of the law. Hence,
persons do sometimes violate laws
either to "test" them or to attempt to
get them judicially annulled. Are such
persons committing acts of civil dis-
obedience? In answering I would apply
the following criterion: if they seek
judicial remedy and, after taking it to
the highest court, accept that ruling,
then they are not civil disobedients;
but if, after exhausting judicial remedy
and finding the law still intact, they
still disobey, they are acting in a civilly
disobedient manner. But whether one
accepts my criterion or not, I do want
to leave aside, as a highly peculiar case,
disobedience to law when it is an inci-
dental feature of seeking judicial clari-
fication or remedy.
THE ISSUE OF JUSTIFIABILITY
One might feel, upon reflection, that
very little remains of the notion of
civil disobedience. For it could be al-
leged that accepting a political agency
 CIVIL DISOBEDIENCE 127

as authorized and a certain law as duly rather limited sense which I have just
enacted effectively rules out disobedi- presented. I will not attempt to recount
ence as a possible course of action. But these arguments fully, but I will iden-
this would be a mistake; it is not the tify them and briefly discuss them. One
case that the formula removes all possi- could argue that civil disobedience is
ble grounds for disobeying a law, or not allowable on the ground that it
even that it removes all justifiable violates a principle of morality or
grounds. justice, that it violates the principle of
It is important not to confuse the authority, or that it violates the princi-
question of grounds for disobeying law ple of democracy. We have, then, three
with that of criteria for deciding when counterclaims against the justifiability
disobedience to law is civil disobedi- of civil disobedience: the arguments
ence. What the formula of definition from morality, from authority, and
provides is a set of criteria for using from democracy.
the term "civil disobedience." It does First let us consider the claim that
not remove (as unjustifiable) any pos- civil disobedience is morally wrong. It
sible ground of disobedience to law; it is not clear that it is always morally
does, however, rule out some grounds wrong to violate a law. One could not
as being incompatible with the practice conclude that it is wrong simply by
of civil disobedience. The formula nar- inspecting the terms "disobedience to
rows the field regarding the grounds law" and "morally wrong." For the
that could be included in a description separability of morals and politics is
of an act of civil disobedience, but it accepted to the extent that it is not
allows scope for disobeying many laws. self-contradictory to say, "Disobedi-
The criterion that the political agent ence to law is sometimes morally
is authorized and accepted as such is right." To conclude that it is morally
meant to serve as the principal feature wrong one would have to construct an
in characterizing acts of disobedience argument.
to law as acts of civil disobedience. And Let us consider -the argument that
it is by reference to this standard, in civil disobedience represents the vio-
particular, that we should pose the lation of a tacit "agreement" with the
issue, Is civil disobedience justifiable? state and is morally wrong (since it is
Under the condition that the citizen morally wrong to break one's agree-
perceives the decree of a recognized ment). This is the unambiguous argu-
public authority to be lawful, the ques- ment of Socrates in the Crito. (It is
tion is whether it is ever right for the also, possibly, found in John Locke's
citizen to disobey the law on the ground Second Treatise and, in a curious way,
that the law is intrinsically defective, in Hobbes's Leviathan.)
in his opinion, with respect to some con- What, specifically, is the agreement
ception of morality, justice, or good to which Socrates referred in his argu-
public policy. ment? It is that, upon reaching man-
hood, a citizen by the very fact of
ARGUMENTS AGAINST
staying in a country agrees to abide by
CIVIL DISOBEDIENCE
the following rule: If one cannot dis-
Many arguments have been leveled suade the authorities from an unjust
against civil disobedience-even in the law then one obeys. Now it should be

This content downloaded from

213.200.15.113 on Thu, 13 Jan 2022 09:30:10 UTC
All use subject to https://about.jstor.org/terms
 128 ETHICS
evident why Socrates' position dis-
allows morally justifiable disobedience
to unjust laws. The reason is that one
has agreed, barring the removal of the
law through dissuasion, to obey any
and all laws, just or unjust. Hence, the
unjust character of a law can never
be a justifiable ground for disobedience
-given the agreement in question.
There is, in terms of the agreement, no
such thing as justifiable disobedience;
rather, any disobedience to law is a
breaking of the fundamental agreement
and, hence, ipso facto unjust.4
But I am a little troubled by the
contention that this is an argument
from morality. We might grant that if
one has made such an agreement, then
it is morally right to abide by it; but
we need not grant that it is morally
right to make such an agreement. I
find it paradoxical to say that making
such an agreement is morally right.
We can do something with Socrates'
argument; we can shift his point. For
we might regard Socrates' "agreement"
as satisfying, not the idea of morality,
but the idea of "good citizenship."
Thus we could say: the good citizen is
one who abides by his country's laws;
if he cannot dissuade the authorities
from a law then he obeys it. Such a
rule of action is part of what we mean
by good citizenship, even though it is
not part of what we mean by morality.
Of course, it is always possible to re-
treat one step and say that being a
good citizen is a moral matter. But I
doubt that this would bring any ad-
vantage, since there are surely oc-
casions when the claims of citizenship
and the claims of morality could con-
flict.
A second claim has been lodged
against civil disobedience. Some have
contended that civil disobedience, as
This content downloaded from
213.200.15.113 on Thu, 13 Jan 2022 09:30:10 UTC
All use subject to https://about.jstor.org/terms
specified, violates the principle of con-
stituted authority. Thomas Hobbes
makes this point. We can paraphrase
his contention as follows: Although
resistance to government in certain
carefully specified cases is allowable, a
private citizen should not set up his
personal and subjective opinion of what
is moral, or just, or politic against that
of the sovereign. To conduct oneself
according to these private standards
and in defiance of the public ones is
incompatible with the very notion of a
public authority. We are going to have
either anarchy or authority; to have
authority we must let the sovereign set
the standards to which we all adhere.5
Finally, we have the claim that civil
disobedience is contrary to the princi-
ple of democracy. The contention here
is that the principles and procedures of
democracy constitute a special case
against civil disobedience. Thus, we
find the English philosopher T. H.
Green saying: "Supposing then the in-
dividual to have decided that some
command of a 'political superior' is
not for the common good, how ought he
to act in regard to it? In a country
like ours, with a popular government
and settled methods of enacting and re-
pealing laws, the answer of common
sense is simple and sufficient. He
should do all he can by legal methods
to get the command cancelled, but till
it is cancelled he should conform to
it.",6
A COMPOSITE CLAIM
I will not attempt to assess these
claims individually. Rather I will con-
struct, from these diverse claims, a
single composite claim. And it is this
composite claim that strikes me as
having a peculiar merit. This is how
I would put it: part of being a good
 CIVIL DISOBEDIENCE 129

citizen in a democracy requires the the political. We can ask: Is it ever

citizen to adhere to the principle of right-"right" meaning here that which
democratic authority, that all decisions is in accord with the principles of
are made by elected representatives, democracy-for the citizen to disobey
and ultimately by majority vote, in ac- a democratically derived law on the
cordance with established procedural ground that the law is intrinsically de-
rules, and that all persons are bound by fective, in his opinion, with respect to
such decisions. And as long as we leave some conception of morality, justice, or
the situation open for free discussion, good public policy? I would answer
further scheduled votes, and the forma- that even here the answer is yes.
tion of new majorities, we have a con- You will note here a shift in my
tinuing democracy. It would seem that argument "from the moral dimension
a good citizen in a continuing democ- to the political," corresponding to my
racy will not disobey a democratically earlier restatement of the issue in po-
derived law; if he does, he is not acting litical terms (i.e., with respect to the
like a good democrat. "good citizen" in a democracy). I have
already granted that the justification of
THE JUSTIFIABILITY OF
civil disobedience can be (logically)
CIVIL DISOBEDIENCE
carried through solely on the grounds
The issue has been drawn, and a of moral considerations and by refer-
persuasive claim against civil disobedi- ence to moral standards. But civil dis-
ence has been entered. What counter- obedience is, also, a political-legal con-
claim for civil disobedience could be cept and any consideration of its justi-
developed? fiability should take account of that
Let us begin by observing that im- fact. This is, I think, sufficient ground
moral, unjust, impolitic laws are possi- for regarding the moral issue of justi-
ble in a democracy. As long as we fication-however it is decided-as in-
allow the possibility of unjust laws conclusive with respect to the political
here, we implicitly recognize standards issue. In other words, I have indicated
of justice external to the democratic that there is a sense in which the issue
political process. It follows that these of justification is apparently not a
external standards may be grounds for moral matter.
disobedience to law; we might answer What I want to contend, with respect
that it could be morally right to disobey the political justifiability of civil dis-
to
the law. obedience, is that civil disobedience is
I would put the case for disobedience not necessarily an act of bad citizen-
here rather strongly: as long as one ship; it is not necessarily subversive of
asks whether it is ever morally right the principle of democratic authority.
to disobey morally unjust laws, I think Civil disobedience by a democrat
he is logically committed to say yes. against a democratically derived law is
If it is a moral matter, the answer is neither logically impossible nor even
entailed by the question. undemocratic. My thesis is that civil
But we can vary the question to disobedience is not conceptually in-
make its answer more problematical- compatible with the demands of good
and more interesting. This involves citizenship in a democracy-as long
moving from the moral dimension to as the citizen observes certain princi-

This content downloaded from

213.200.15.113 on Thu, 13 Jan 2022 09:30:10 UTC
All use subject to https://about.jstor.org/terms
 130 ETHICS
ples. There are, in other words, prin-
ciples of allowable civil disobedience in
a democracy.
The sense I intend when I speak of
"justifiable" civil disobedience in a
democracy is quite attenuated. I want
only to suggest that, under certain con-
ditions, civil disobedience is allowable
in a democracy. The sense in which it
is justifiable, according to my argu-
ment, is that it is not inconsistent per
se with democratic procedures and
principles; I want to claim simply that
civil disobedience can be internally
justified in a democracy, that is, al-
lowed on principles compatible with
democratic authority.
There are other senses of "allow-
able" which I do not intend my claim
to cover. (a) I am not making any sort
of procedural claim to the effect that
civil disobedience is allowable only
after all or certain of the "normal"
channels (e.g., petition, electioneering,
recourse to courts and commissions,
etc.) have been tried unsuccessfully.
When I say that civil disobedience is
allowable I am claiming only that it
is basically compatible, if restricted by
certain principles, with democratic
obligation and authority. (If it were
not, it would not be allowable at all.)
But I am not saying that civil disobedi-
ence has some particular rank in a list
of procedural priorities. (b) I am not
making any sort of prediction that
civil disobedience will be effective (i.e.,
effective in getting policy or law re-
vised) or that it will ultimately be of
benefit to democratic institutions them-
selves (e.g., by strengthening a general
attitude of respect for the constitu-
tional process of lawmaking).
Indeed, the sense in which I speak of
civil disobedience as allowable is con-
sistent even with a calculable weaken-
This content downloaded from
213.200.15.113 on Thu, 13 Jan 2022 09:30:10 UTC
All use subject to https://about.jstor.org/terms
ing of those institutions, although not
with their destruction. But the charac-
ter of this paradoxical consistency
should be noted. It is a point of con-
ceptual analysis to say that civil dis-
obedience is allowable (in my special
sense) in a democracy. It is an empiri-
cal hypothesis, to be confirmed or
denied by reference to the facts of the
matter, to say that civil disobedience
in a given case will have a particular
effect. If the effect is demonstrably bad,
as an effect on democratic practices and
attitudes, this might be a reason not to
engage in civil disobedience, and a de-
cisive reason from the viewpoint of
good citizenship in a democracy. But
this is quite a different question from
whether, on grounds of internal consis-
tency, it is allowable in a democracy at
all. This latter question can be asked
and answered without prejudice to the
question of effect. It is possible that
civil disobedience is compatible with
democratic principles and, at the same
time, unjustifiable in some other sense
(from the point of view, say, either of
procedural priorities or of effects). One
might conclude, then, that it was al-
lowable (in my attenuated sense) but
ought not to be done, upon having due
regard to its antidemocratic effects.
This would be a political argument
against the practice of civil disobedi-
ence in a democracy. There might still
be political arguments that would tell
in its favor (e.g., those that would be
persuasive to an antidemocrat) or
moral ones.
For the most part, arguments against
civil disobedience mix up these senses
of "allowable" rather indiscriminately.
For example, when it is alleged that
civil disobedience is incompatible with
democracy, is this a logical claim (like
the composite claim stated earlier and,
 CIVIL DISOBEDIENCE 131

hence, one that would tell against my on the ground that he opposes the
conceptual sense of "allowable civil governmental authority behind the law,
disobedience in a democracy"), a or that he denies the fundamental legit-
causal claim, or a procedural one? imacy of the law, that is, its general
Let me specify, then, an attenuated process of formulation and decree.
sense in which I will talk of the justi- Here, as is required, civil disobedience
fiability of civil disobedience in a is directed against a specific law, not
democracy. First, let us begin by re- against the whole system of authority
calling that we are operating on the or the process of enactment of law in
assumption that the principle of author- that system.
ity is a democratic one (e.g., majority 2. The citizen perceives the decree in
-or plurality-rule by means of repre- question to be democratically derived.
sentative institutions and established It is a law, in the sense that it is not
procedures), that the law in question is defective from the point of view of
democratically derived, that the de- legality. The decree or command is
mocracy is a continuing one-there will regarded as part of the "law of the
be regular elections, freedom to cam- land."
paign and to vote-and that the citizen 3. The citizen does not intend that his
is prodemocratic. Second, let us stipu- action cause the replacement of demo-
late that the effect of civil disobedience, cratic political procedures with nondem-
under certain specified conditions, on ocratic ones. Nor does he intend that
the particular democratic political sys- the authorized and existing govern-
tem is incalculable and, hence, set at mental system and mode of enacting
zero. Finally, rather than decide when,laws be substantially altered in struc-
on a list of procedural priorities, civil ture as a direct result of actions in
disobedience is allowable, let us simplydefiance of law. And it is reasonable to
say that, if it is on the list at all, it is suppose that these intentions will be
allowable. The question would then be: sustained by events. I will summarize
In accordance with what principles, if this principle by calling it the condition
any, is civil disobedience allowable in of nonrevolutionary intent and con-
a democracy? sequence.
This is not so much an attempt to 4. The citizen in disobeying the law
restrict the matter as an attempt to does not act merely out of self-interest
build up one possible paradigm case or merely out of some conception of
of allowable civil disobedience in a non- what he personally should do as a
defective democracy. moral agent; rather his action is done
In my opinion, there are six main from some conception of political jus-
principles of justifiable civil disobedi- tice, the public good, social utility, or
ence in a democracy. Together they human rights. This is not to say that
form a picture of how one could in- he cannot also act out of self-interest
ternally justify civil disobedience in or the deliverances of conscience-
a democracy (i.e., allow it on principles moral or religious. It is specified merely
compatible with democratic authority).that these are not enough; he must
include some civic-regarding principle,
PRINCIPLES
some conception of civil good, among
1. The citizen does not violate histhe -law
reasons for action.

This content downloaded from

213.200.15.113 on Thu, 13 Jan 2022 09:30:10 UTC
All use subject to https://about.jstor.org/terms
 132 ETHICS
5. In disobeying the law, the citizen
does not intend nor does he bring
about, in a way that could be reason-
ably foreseen, physical harm to other
persons or their property. This princi-
ple might be called the condition of
nonviolence.
6. Finally, the citizen should disobey
the law publicly and on the condition
that he is willing to take the conse-
quences as regards punishment.7
The reason behind two of my six
conditions should be brought out ex-
plicitly. Why nonviolence and willing-
ness to accept punishment? For ex-
ample, one might favor nonviolence be-
cause he was a pacifist or for tactical
reasons; one might be willing to accept
punishment to keep his motives pure
or even to demonstrate his moral su-
periority over or his contempt for the
punishing authority. But the demo-
crat's reasons are that he is unwilling
to use violence against or in violation
of democratic law and that, as a good
citizen, he has an obligation to uphold
democratic law and, hence, authority.
Even so, one might question why it
is undemocratic to use violence as a
weapon against or as a mode of violat-
ing an admittedly democratically de-
rived law. If it is allowable to violate
the law, why draw the line at violence?
Why is violence unjustifiable in this
context? An answer to this question
actually involves two considerations.
First, there is the question of exactly
where the line is to be drawn. I have
drawn it by specifying that the action
not cause physical harm and that this
prohibition of violence include violence
against property. Either or both of
these stipulations can be challenged as
arbitrary. I will readily concede this;
I will also grant that my criterion is
vague. But it seems to me that a
This content downloaded from
213.200.15.113 on Thu, 13 Jan 2022 09:30:10 UTC
All use subject to https://about.jstor.org/terms
criterion against violence, even if much
more precise than the one I have of-
fered, will draw the line somewhere.
And this leads to a second and more
basic consideration: Why should any
line be drawn against violence at all?
The answer to this question is not
an easy one; certainly, in an essay of
this length it can only be indicated. I
would suggest the following points as
an approach to an answer: (a) One of
the primary features of the rationale
of the modern state is the control of
violence; this is the teaching of both
Hobbes and Locke. (b) The sover-
eignty of the state resides largely in its
ability to proscribe individual violence
by law, on the one hand, and to mo-
nopolize coercive force, at least in
principle, on the other. (c) A demo-
cratic state can claim to be sovereign
in this sense.
It seems to me that if each of these
points is accepted not only as an ac-
curate description of certain claims but
also as what justifiably ought to be the
case (and I do not see how a political
democrat can easily avoid these ac-
ceptances), then it follows that the
democrat qua democrat ought not to
use violence, however it might be de-
fined ultimately, against the institu-
tions of democratic law-giving or in
violation of democratic law.
It would seem, moreover, that the
democratic man would accord a pre-
sumptive validity to the democratic
tradition as it bears on the issue of
violence: the state exists to protect life,
liberty, and property from violence.
Hence, both the tradition of democratic
thought and government and the laws
enacted under that tradition serve to
define proscribed violence and to pro-
vide a reason for drawing the line
 CIVIL DISOBEDIENCE 133

against violence so as to include both
persons and property.
TYPES OF CIVIL DISOBEDIENCE
It should be noted that my principles
of allowable civil disobedience in a
democracy could, if reworded, also
cover the case of nonrevolutionary civil
disobedience in a nondemocratic state.
I would suggest that this is the proper
way to "unpack" the concept of civil
disobedience. We could, I would argue,
restate certain of the conditions, replac-
ing any special reference to democracy
with neutral terms, to delineate what I
earlier called the "political" type of
civil disobedience. This systems-inde-
pendent profile would not offer a justi-
fication of the political form of civil
disobedience in any system but, rather,
a definition of that particular type of
civil disobedience, with general appli-
cation.
Whether the political form of civil
disobedience is allowable in a particu-
lar political system or by reference to
particular political principles cannot be
answered in the abstract. One would
have to do a system-located analysis,
to provide an internal justification for
the political form of civil disobedience
in that system. I have attempted to jus-
tify, in an admittedly attenuated sense, if this standard is rejected, an act of
only the political form of civil disobedi- disobedience to law can conform to the
ence in a democracy.
But what about the justifiability of
the other types of civil disobedience-
the revolutionary and the moral; can
these be justified in a democracy? Let
me deal with this question by first
indicating the logical relationship that
exists between the political form and
the two other types of civil disobedi-
ence. I would suggest that once we
have suitably stated the six conditions,
for purposes of defining the political
type, we could generate the other main
types-the revolutionary and the mor-
al-religious-from this list by eliminat-
ing or by further amending some of
these conditions.
The purely moral form of civil dis-
obedience is apolitical. We can construe
it as indifferent with respect to the
first three conditions, indifferent in the
sense that an act of civil disobedience
can go either way with respect to such
conditions as revolutionary intent and
still be classified as an instance of the
moral-religious type. On the other
hand, I think that the latter three con-
ditions are not a matter of indifference.
Indeed, this type of civilly disobedi-
ent person can act strictly out of moral
or religious considerations, contrary to
condition (4) as it stands (i.e., where
condition [4] is a defining standard for
a contrasting type, the political form
of civil disobedience). Again, most
people can provide moral reasons for
or against violence; hence, the matter
of nonviolence does not appear to be
morally indifferent.
Finally, the issue of whether the per-
son who acts for narrowly moral or
religious reasons is civilly disobedient
turns largely on his willingness to ac-
cept penalty. It is difficult to see how,
generic criterion of civil disobedience,
the criterion that there is some sense in
which the political superior who issues
the violated law be "authorized and ac-
cepted."
In saying this I am not trying to
rule out disobedience on moral grounds,
or saying that such disobedience is
justified only where there is a willing-
ness to take the penalty; I am saying
that there can be a civil disobedience
of the moral-religious type only if cer-

This content downloaded from

213.200.15.113 on Thu, 13 Jan 2022 09:30:10 UTC
All use subject to https://about.jstor.org/terms
 134 ETHICS

tain definitional standards are ob-
served. I am saying that the willingness
of the disobedient person to accept
penalty, because he regards himself in
some sense under law, is not a matter
of indifference regarding the classifica-
tion of some morally motivated acts of
disobedience to law as cases of civil
disobedience.
It would seem, then, that disobedi-
ence to law out of strictly moral or
religious considerations could be made
to approximate the political form of
civil disobedience. To the extent that
this is so, the moral type of civil dis-
obedience is compatible with demo-
cratic principles and, in an extended
sense, is politically justifiable in a
democracy.
The revolutionary form of civil dis-
obedience, unlike the moral, is of a-
political nature. We can construe it as
indifferent with respect to the condition tween 1774 and 1776, another gray
of nonviolence; by this I mean that
violence can be used or not used in an
act of civil disobedience of the revolu- pendence.
tionary type. On the other hand, I do
not think that the first three conditions,is happening today. One feels that the
in particular, are a matter of indiffer- political form of civil disobedience has
ence. Certainly, a person whose acts
are of the revolutionary type intends
political revolution. Moreover, we can
assume that he is motivated by opposi-
tion to the existing governmental sys-
tem and, hence, that he would be
inclined to deny the fundamental legit-
imacy of the law in that society. How
can a man hold such attitudes and per-
form such actions and still be regarded
as a civil disobedient?
I would suggest that it is possible
for a man to hold the attitudes de-
scribed, on the one hand, and for him
to accept the existing government as
in a sense "authorized," on the other.
His acceptance is provisional; he wants
the existing government to "give way"
but, until it does, he accepts its author-
ity. Such an attitude is required if there
is to be any such thing as a revolution-
ary form of civil disobedience. I would
concede that the attitude described,
although possible, is rare. It has, I
think, been found in recent movements
(e.g., perhaps Gandhi and, possibly,
King). But the attitude seems to be
unstable.
Indeed, it is easy to imagine a man,
or, if not a man, a movement, migrating
from the political to the revolutionary
form of civil disobedience and thence
to revolution per se. I imagine that
something of this sort happened in
American political experience and con-
sciousness at the time of the Revolu-
tion; a political attitude was replaced
by a revolutionary attitude of civil dis-
obedience, and then, somewhere be-
zone was passed over into revolution
proper with the Declaration of Inde-
Perhaps something of the same sort
given way, for many persons at least,
to a revolutionary type. And even the
further line of demarcation, between
civil disobedience and revolution itself,
has been allegedly passed by some,
with what consequence I do not know.
There are no sharp lines except those
which can be drawn conceptually. My
argument here, which is conceptual and
deals in definitions and justifications,
is not affected by the relative rarity of
certain attitudes, or the complexity of
concrete human motivation, or the
instability of political positions.
I do not think that any of the points
I have raised would suggest the un-
justifiability either of revolutions per

This content downloaded from

213.200.15.113 on Thu, 13 Jan 2022 09:30:10 UTC
All use subject to https://about.jstor.org/terms
 CIVIL
se or of civil disobedience of the rev-
olutionary type. Indeed, my remarks
have been directed principally to de-
lineating the revolutionary type of civil
disobedience, in contrast to the other
two forms, and have not really dealt
with the issue of justification at all.
On the point of justification, I think
this much can profitably be said: no
revolution against democratic institu-
tions or principles is ever allowable for
the democrat. If political system D is a
democratic one, then civil disobedience
of the revolutionary sort, and a fortiori
revolution per se, can never be com-
patible with democratic principles.
From the perspective of an existing
democracy, revolutionary civil dis-
obedience cannot be justified. This con-
clusion still leaves open, however, the
possible justifiability of an antidemo-
cratic revolution against a democracy,
and of a democratic revolution against
a nondemocratic system.
CONCLUSION
In concluding, I would have us look
at certain advantages of the perspective
on civil disobedience which I have de-
veloped. First, it draws a clear dis-
tinction between the political form of
civil disobedience and revolutionary
action. The failure to do this is the
greatest defect in the traditional analy-
sis of civil disobedience.
Second, my analysis indicates that
civil disobedience has an indispensable
political dimension; it must be per-
ceived as a political act. Whatever
other dimensions it has (e.g., the mor-
al) it does have a political dimension.
Determinations of the "rightness" or
"justifiability" of civil disobedience
must take account of political stan-
dards and of principles of political obli-
gation. And the recognition of this
This content downloaded from
213.200.15.113 on Thu, 13 Jan 2022 09:30:10 UTC
All use subject to https://about.jstor.org/terms
DISOBEDIENCE 135
political dimension imposes certain
limits or conditions on the civilly dis-
obedient person.
In fact, I would argue that the politi-
cal dimension is not only a necessary
complement to the moral dimension but
could even be more important in our
evaluation of the act of civil disobedi-
ence. The moral argument for civil dis-
obedience-stemming from Thoreau-
is weakened, I think, by the failure to
see the political dimension. In denying
the political, it has tended to absolutize
the individual and his moral con-
8
science.
If we view civil disobedience as a
moral and a political act, we can say
that the civilly disobedient citizen acts
according to conscience but does not
put his individual judgment above
society-he puts it against society. He
remains within the body politic, in
particular through his willingness to
accept punishment. If disobedience to
law were simply a moral matter, then
it could be argued that the citizen
could make his judgments absolute: he
would not consider himself subject to
punishment, and the state could not
justifiably punish him. Without the
political dimension, the moral claim is
absolutized; the result is anarchy and
moral fanaticism.
The main virtue I claim for my
political analysis of civil disobedience
is that it recognizes the fallibility of
men, whether rulers or ruled. The
majority, the minority, and the
"Athanasian individual" (the man who
stands alone against the world) can
make mistakes in matters of substance.
To say that civil disobedience should
not be allowed in a democracy suggests
that democrats have solved the prob-
lem of human finitude.
Civil disobedience, politically con-
 136 ETHICS
ceived, puts the dissident man or group
in opposition to society but not above
it; he remains, the group remains, with-
in the boundaries of acceptable civic
conduct. Such civil disobedient action
has as its goal the clarification and im-
provement of civil life, in its standards
and in its practices.
If my point about the acceptability
of civil disobedience is granted, then
it follows that certain civic principles
will require a new and different elabo-
ration or, at least, a different emphasis.
First, we should continue to expect a
government to uphold the value of
obedience to law and to defend in
public forums the laws that it has
decreed; at the same time we should
respect the principle of civil disobedi-
ence to the extent that we do not
equate civil disobedience per se with
revolution, anarchy, immorality, bad
citizenship, or opposition to democratic
authority.
In effect, civil disobedience can
observe, or follow, lines of political
"due process," even though there is a
sense in which it must always be re-
garded as illegal. We should not, of
course, expect or want a government
to endorse the breaking of its laws-
either in general or in a particular case.
The proper move for a government to
make (in such a strait) is not to
endorse disobedience to its laws but
to change those laws. And this, I would
suppose, is the essential goal of any
act of civil disobedience of the political
sort: to effect through legal means the
change of bad laws.
Second, we shall probably need to
rethink our philosophy of political
authority and obligation in a democ-
racy. We might begin by noting that
it is consistent, on the one hand, to
recognize democratic authority and
This content downloaded from
213.200.15.113 on Thu, 13 Jan 2022 09:30:10 UTC
All use subject to https://about.jstor.org/terms
one's obligations to that authority and,
on the other hand, to disobey a demo-
cratically derived law. There is nothing
in the notion of authority, or obliga-
tion, that requires absolute obedience.
Even for Hobbes, propositions respect-
ing one's obligation to obey or respect-
ing obedience to authoritative laws
were not analytic but had to be vali-
dated by argument. The same could be
said for Saint Paul's injunctions to "be
subject."
To have authority is to be entitled
to issue laws. Subjection is being under
laws duly issued, recognizing them as
the law that one is under. Political
obligation is the obligation to conform
to law, including the penalty clauses,
and to the standards of acceptable
political conduct in the political system
that one adheres to. Neither the nature
of political authority per se nor the
character of that authority in a democ-
racy requires obedience to law as a
strict principle and without exception.
Rather than treat civil disobedience
as an exception to the notions of
authority and obligation, as something
essentially contrary, we might consider
building into the very idea of authority
and obligation in a democracy some
conception of allowable civil disobedi-
ence, along the lines specified in this
paper. On conceptual grounds, there
is much to commend this move.
Finally, we might consider the notion
of political authority as having several
dimensions. For example, authority in
a democracy is usually conceived along
such lines as constitutional roles, the
procedures for the passage of laws, the
binding character of such laws. But
there is good reason to consider author-
ity, as well, along such lines as the
ability to establish consensus on public
policy (an educational as much as a
 CIVIL DISOBEDIENCE 137

political matter) and the ability to
provide laws and policies which com-
mend themselves to the reflective judg-
ment of citizens. It is, perhaps, the
breakdown of authority in this latter
sense that has made disobedience to
law seem plausible in our time.
The fact that authority can fail in
these respects is, I think, good reason
to provide suitable procedural safe-
guards: not just to safeguard the judg-
ment and conscience of the individual
in matters of substance, but also to
safeguard democratic authority itself.
UNIVERSITY oF KANSAS

NOTES

1. The particulars of the Montgomery, Alabama,
bus boycott of 1955-56 are given in the book by
Martin Luther King, Jr., Stride toward Freedom
(New York: Harper & Row, 1964; originally pub-
lished by Harper & Brothers, 1958). King's indict-
ment under the antiboycott law is described on p.
122, his trial and conviction (March 19-22, 1956)
on pp. 126-29. The injunction hearing is described
on pp. 138-40. The Supreme Court decision in
question was issued on November 13, 1956; it
affirmed the two-to-one decision of a special three-
judge U.S. District Court that Alabama's laws,
both state and local, requiring segregation on buses
were unconstitutional. The District Court deci-
sion was issued on June 4, 1956, i.e., after King's
conviction under the antiboycott law (see pp. 131-
33). This decision, the fact that King's conviction
was under appeal, and the fact that no injunction
had been issued to stop the car pools must all be
taken into account; what they point to, I think,
is that the car pool system had not definitively been
declared or made illegal.
2. King has pointed out the effectiveness of court judgments" of the representative and sovereign
injunctions in stopping direct-action civil rights
demonstrations. But he notes that he did not face
up to disobeying such an injunction until Birming-(p. 113). It follows from this, Hobbes argued,
ham (1963). It was here, really, that King's civil
rights demonstration movement of nonviolent op-
position became a civil disobedience movement.
The importance of this step, and its novelty, is
indicated by the following remark King made in
an interview (Playboy [January 1965]): "We did
not take this step hastily or rashly. We gave the
matter intense thought and prayer before deciding
that the right thing was being done. And when we
made our decision, I announced our plan to the
press, making it clear that we were not anarchists
advocating lawlessness, but that in good conscience
we could not comply with a misuse of the judicial
process in order to perpetuate injustice and segre-
gation. When our plan was made known, it be-
wildered and immobilized our segregationist op-
ponents. We felt that our decision had been moral-
ly as well as tactically right-in keeping with God's
law as well as with the spirit of our nonviolent
direct-action program." For some time after Political
it was a point of pride with King that he never
disobeyed a federal court injunction.
3. R. B. Brandt, "Utility and the Obligation to
Obey the Law," Law and Philosophy, ed. S. Hook
(New York: New York University Press, 1964),
p. 51.
4. For those interested in the details of Socrates'
arguments against civil disobedience, I would sug-
gest a reading of that part of the Crito which deals
with "Socrates' Dialogue with the Personified Laws
of Athens" (see Plato, Euthyphro, Apology, Crito,
trans. F. S. Church, 2d ed. [New York: Library of
Liberal Arts, 1956], pp. 60-65).
5. See T. Hobbes, Leviathan, ed. M. Oakeshott
(Oxford: Basil Blackwell, 1957), chap. 20, p. 136;
chap. 21, p. 138. Hobbes's doctrine of authority is
firmed up by certain legalistic features of his anal-
ysis. I have in mind his discussion of "representa-
tion" (chap. 18, esp. p. 113). The essential point,
bearing on the nature of authority, which emerges
in this discussion is that each member of a com-
monwealth must authorize "all the actions and
agent "in the same manner, as if they were his
own" and authorize them, as it were, in advance
(a) that "every particular man is author of all the
sovereign doth: and consequently he that com-
plaineth of injury from his sovereign, complaineth
of that whereof he himself is author" (chap. 18,
pp. 115-16), and (b) that "nothing the sovereign
representative can do to a subject ... can properly
be called injustice, or injury; because every sub-
ject is author of every act the sovereign doth"
(chap. 21, p. 139). The sovereign's acts are always
authorized; we can never urge, as a ground for dis-
obedience, that laws are unjust. In this sense,
Hobbes ruled out the idea of a justifiable civil
disobedience. At the same time, he did allow for
a narrow range of cases in which, even though the
law was not unjust, it was "right" to disobey the
law, the "right" in question being neither political
nor moral but a "right of nature," the right of
self-preservation (see chap. 21, pp. 141-43).
6. T. H. Green, Lectures on the Principles of
this, Obligation (London: Longmans, Green

This content downloaded from

213.200.15.113 on Thu, 13 Jan 2022 09:30:10 UTC
All use subject to https://about.jstor.org/terms
 138 ETHICS
& Co., 1960), sec. 100, p. 111. It appears, at a later
point in his lectures, that Green did not find the
"answer of common sense" to be "simple and suffi-
cient." For we find him developing a principle of
justifiable civil disobedience along the following
lines: "There can be no right to disobey the law
of the state except in the interest of the state; i.e.
for the purpose of making the state in respect of its
actual laws more completely correspond to what
it is in tendency or idea, viz. the reconciler and
sustainer of the rights that arise out of the social
relations of men" (sec. 142, p. 147). It should be
obvious that this principle could justify civil dis-
obedience in a democracy. Indeed, it is interesting
to note that the example of justifiable civil dis-
obedience which he did cite was opposition to
legalized slavery in the United States (e.g., Fugi-
tive Slave Laws); yet he believed that the United
States was the paramount political democracy of
the nineteenth century (see secs. 144-47, pp. 149-
53). It would be difficult to save Green from a
charge of inconsistency about civil disobedience in
a democracy.
7. On the basis of my analysis up to this point,
I think a somewhat stronger sense of justification
could be constructed. I would argue that civil dis-
obedience in a democracy is justified in this
stronger sense if (a) it is allowable in the at-
tenuated sense I have been specifying and, further,
if (b) it does not have the effect of weakening
democratic political practices and attitudes, and if
(c) it is effective to the end of getting a law or
a policy changed, and if (d) it is the most effec-
tive device vis-a-vis its procedural alternatives,
in the sense that such alternatives alone cannot
achieve the change at all, or cannot achieve it as
quickly.
8. I am talking here about the rhetoric of such
arguments. The rhetoric of Thoreau's famous es-
say "On the Duty of Civil Disobedience," reprinted
in Walden and On the Duty of Civil Disobedience
(New York: New American Library, 1964) is im-
bued with the spirit of moral absolutism, as these
examples demonstrate: "the only obligation which
I have a right to assume, is to do at any time
what I think right" (p. 223); "any man more right
than his neighbors, constitutes a majority of one
already" (p. 230). Behind this absolutism lies a
sort of radical individualism: "There will never be
a really free and enlightened State, until the State
comes to recognize the individual as a higher and
independent power, from which all its power and
authority are derived, and treats him accordingly"
(p. 240). Thoreau's individualism was tinged with
perfectionism; it could also be described as an-
archistic or, perhaps more accurately, as anti-
political. When he said, "That government is best
which governs not at all" (p. 222), he was not so
much enunciating an anarchist principle as he was
indicating the moral inadequacy of any govern-
ment's claims on what might be called "con-
science" (see p. 223). It was government's failure,
This content downloaded from
213.200.15.113 on Thu, 13 Jan 2022 09:30:10 UTC
All use subject to https://about.jstor.org/terms
any government's failure, to put him or any other
man under moral obligation that Thoreau had in
mind when he said, "I simply wish to refuse alle-
giance to the State. . . . In fact, I quietly declare
war with the State, after my fashion" (p. 236; see
also p. 240). Thoreau's civil disobedience (refusal
to pay a head tax) was partly symbolic of his
personal repudiation of the federal union and of
the U.S. Constitution (both of which allowed
slavery), and of his personal repugnance toward
the war with Mexico (1846-48), but it was in large
part simply a rejection of the State (the political
condition) in principle (see pp. 224-25, 228).
It is quite consistent with this position on gov-
ernment that Thoreau would be antidemocratic.
He alleged that "a government in which the ma-
jority rule in all cases cannot be based on justice"
(p. 223). He meant by this that majority rule per
se is incapable of moral discrimination and should
be used only to decide on matters of expediency;
majority rule has established itself, he alleged,
solely because the majority are "physically the
strongest" (pp. 223, 234). This explains, at least
in part, Thoreau's indifference to voting (p. 226)
and to the use of political channels for the remedy
of evils-even when they are the evils of a policy.
Thoreau says, "They take too much time, and a
man's life will be gone." He adds, "It is not my
business to be petitioning the governor or the legis-
lator any more than it is theirs to petition me" (p.
229). Thus, the sort of situation I envision, the
dilemma of the prodemocratic citizen standing in
opposition to a democratically derived law, did
not arise for Thoreau; it could not become a prob-
lem, either for him personally or for anyone who
subscribes to his antipolitical individualism-in
particular, to his doctrine of the absolute author-
ity of individual moral consciences.
At the same time, Thoreau was willing to con-
cede to Massachusetts that, even though it could
not command his conscience (the only ground of
subjection he could conceive), it could jail him.
As he said to his Concord audience, "I have paid
no poll-tax for six years. I was put into jail once
on this account, for one night" (p. 233; see also
p. 234). But he took the penalty for his civil dis-
obedience, not in order to maintain democratic
law, but in order to demonstrate his indifference
to it and his moral contempt for it. In any case,
Thoreau's practice was more concessionary to-
ward democratic political authority than was his
rhetoric.
Thoreau did what was right, in his eyes, despite
the incidental cost; indeed, he argues that one
should do what is right regardless of personal cost.
If you are forced by law and policy to be the agent
of injustice to another or if your support of law
implicates you as a party to injustice, then he
says you must break the law: "Let your life be a
counter friction to stop the machine" (p. 229).
The sort of attitudinal and behavioral syndrome
I am discussing here (civil disobedience on the
 CIVIL DISOBEDIENCE 139

principle of the moral deliverances of individual
conscience) is best symbolized in Sophocles' An-
tigone. Thoreau's contribution to this syndrome
is that he sets the idea of conscience outside reli-
gion and tradition by pitting the individual, not
the laws of God and piety, against "the System."
It is interesting to speculate whether Thoreau's
modern-day disciples have not replaced the in-
dividual with the mob. In any case Thoreau's posi-
tion raises the interesting question whether the
moral individual can afford to smash "the System."
After all, it was the hated constitutional govern-
ment of the United States that ended slavery, first
as a system of property-holding and then as a sys-
tem of indignities visited on men; it is difficult to
see that anarchists of good will could have suc-
ceeded in the absence of "the System."
Perry Miller, in an "Afterword" to this edition,
provides several facts worth noting with respect to
Thoreau's essay (see pp. 249-55, esp. p. 255). The
essay was originally delivered as an oration to
the Concord Lyceum (on January 26, 1848); it
was published with some revisions-in particular,
a rather long passage was added at the end-in
1849 (in a journal called Aesthetic Papers, which
had only one issue). In this journal, the title given
to the essay was "Resistance to Civil Government."
I would suggest the appropriateness of this title to
the theme of Thoreau's essay. For further details,
as to titles and publication history, see H. A.
Bedau, ed., Civil Disobedience: Theory and Prac-
tice (New York: Pegasus, 1969), pp. 15-16, 269;
and Walter Harding, ed., The Variorum Civil Dis-
obedience (New York: Twayne Publishers, 1967).

This content downloaded from

213.200.15.113 on Thu, 13 Jan 2022 09:30:10 UTC
All use subject to https://about.jstor.org/terms