The Zinn Reader (48 page)

PART
FOUR

LAW

1

L
AW AND
J
USTICE

I had not thought seriously about the problem of civil disobedience (that is, not seen the real problem as civil obedience) until I became involved in the Southern movement against racial segregation. As black people were arrested again and again for violation of various local laws, the distinction between law and justice became starkly clear. One of the courses I taught at Spelman College was "Constitutional Law." It was soon evident to me that to teach that course in the traditional way—to study what the law said, whether in the Constitution or in statutes, or in Supreme Court interpretations of the law—was to violate the most important principle in education: that all premises must be examined. And here, the unspoken and unexamined premise was that the law was right, and by implication, just, and even moral. I soon changed the name of the course to "Civil Liberties," to enable me to broaden the discussion, to consider the complex relationship between law and justice. What follows is an essay on the subject written after the experience of the civil rights movement and the protests against the war in Vietnam. It appears as a chapter in my book
Declarations of Independence
(HarperCollins,1990).

I n 1978 I was teaching a class called "Law and Justice in America," and I on the first day I handed out the course outline. At the end of the hour one of the students came up to the desk. He was a little older than the others. He said, "I notice in your course outline you will be discussing the case of
U.S. vs. O'Brien.
When we come to that I would like to say something about it."

I was a bit surprised but glad that a student would take such initiative. I said, "Sure. What's your name?"

He said, "O'Brien. David O'Brien."

It was, indeed, his case. On the morning of March 31, 1966, while American troops were pouring into Vietnam and U.S. planes were bombing day and night, David O'Brien and three friends climbed the steps of the courthouse in South Boston where they lived—a mostly Irish, working-class neighborhood—held up their draft registration cards before a crowd that had assembled, and set the cards afire.

According to Chief Justice Earl Warren, who rendered the Supreme Court decision in the case: "Immediately after the burning, members of the crowd began attacking O'Brien," and he was ushered to safety by an FBI agent. As O'Brien told the story to my class, FBI agents pulled him into the courthouse, threw him into a closet, and gave him a few blows as they arrested him.

Chief Justice Warren's decision said, "O'Brien stated to FBI agents that he had burned his registration certificate because of his beliefs, knowing that he was violating federal law." His intention was clear. He wanted to express to the community his strong feelings about the war in Vietnam, trying to call attention, by a dramatic act, to the mass killing our government was engaged in there. The burning of his draft card would get special attention precisely because it was against the law, and so he would risk imprisonment to make his statement.

O'Brien claimed in court that his act, although in violation of the draft law, was protected by the free speech provision of the Constitution. But the Supreme Court decided that the government's need to regulate the draft overcame his right to free expression, and he went to prison.

O'Brien had engaged in an act of civil disobedience—the deliberate violation of a law for a social purpose. To violate a law for individual gain, for a private purpose, is an ordinary criminal act; it is not civil disobedience. Some acts fall in both categories, as in the case of a mother stealing bread to feed her children, or neighbors stopping the eviction of a family that hadn't been able to pay the rent. Although limited to one family's need, they carry a larger message to the society about its failures.

In either instance, the law is being disobeyed, which sets up strong emotional currents in a population that has been taught obedience from childhood.

Obedience and Disobedience

"Obey the law." That is a powerful teaching, often powerful enough to overcome deep feelings of right and wrong, even to override the fundamental instinct for personal survival. We learn very early (it's not in our genes) that we must obey "the law of the land." Tommy Trantino, a poet and artist, sitting on death row in Trenton State Prison, wrote (in his book
Lock the Lock)
a short piece called "The Lore of the Lamb":

i was in prison long ago and it was the first grade and i have to take a shit and...the law says you must first raise your hand and ask the teacher for permission so i obeyer of the lore of the lamb am therefore busy raising my hand to the fuhrer who says yes thomas what is it? and i thomas say I have to take a i mean may i go to the bathroom please? didn't you go to the bathroom yesterday thomas she says and i say yes ma'am mrs parsley sir but i have to go again today but she says NO...And I say eh...I GOTTA TAKE A SHIT DAMMIT and again she says NO but I go anyway except that it was not out but in my pants that is to say right in my corduroy knickers goddamm...

i was about six years old at the time and yet i guess that even then i knew without cerebration that if one obeys and follows orders and adheres to all the rules and regulations of the lore of the lamb one is going to shit in one's pants and one's mother is going to have to clean up afterwards ya see?

Surely not all rules and regulations are wrong. One must have complicated feelings about the obligation to obey the law. Obeying the law when it sends you to war seems wrong. Obeying the law against murder seems absolutely right. To
really
obey that law, you should refuse to obey the law that sends you to war.

But the dominant ideology leaves no room for making intelligent and humane distinctions about the obligation to obey the law. It is stern and absolute. It is the unbending rule of every government, whether Fascist, Communist, or liberal capitalist. Gertrude Scholtz-Klink, chief of the Women's Bureau under Hitler, explained to an interviewer after the war the Jewish policy of the Nazis, "We always obeyed the law. Isn't that what you do in America? Even if you don't agree with a law personally, you still obey it. Otherwise life would be chaos."

"Life would be chaos." If we allow disobedience to law we will have anarchy. That idea is inculcated in the population of every country. The accepted phrase is "law and order." It is a phrase that sends police and the military to break up demonstrations everywhere, whether in Moscow or Chicago. It was behind the killing of four students at Kent State University in 1970 by National Guardsmen. It was the reason given by Chinese authorities in 1989 when they killed hundreds of demonstrating students in Beijing.

It is a phrase that has appeal for most citizens, who, unless they themselves have a powerful grievance against authority, are afraid of disorder. In the 1960s, a student at Harvard Law School addressed parents and alumni with these words:

The streets of our country are in turmoil. The universities are filled with students rebelling and rioting. Communists are seeking to destroy our country. Russia is threatening us with her might. And the republic is in danger. Yes! danger from within and without. We need law and order! Without law and order our nation cannot survive.

There was prolonged applause. When the applause died down, the student quietly told his listeners: "These words were spoken in 1932 by Adolph Hitler."

Surely, peace, stability, and order are desirable. Chaos and violence are not. But stability and order are not the only desirable conditions of social life. There is also justice, meaning the fair treatment of all human beings, the equal right of all people to freedom and prosperity. Absolute obedience to law may bring order temporarily, but it may not bring justice. And when it does not, those treated unjustly may protest, may rebel, may cause disorder, as the American revolutionaries did in the eighteenth century, as antislavery people did in the nineteenth century, as Chinese students did in this century, and as working people going on strike have done in every country, across the centuries.

Are we not more obligated to achieve justice than to obey the law? The law may serve justice, as when it forbids rape and murder or requires a school to admit all students regardless of race or nationality. But when it sends young men to war, when it protects the rich and punishes the poor, then law and justice are opposed to one another. In that case, where is our greater obligation: to law or to justice?

The answer is given in democratic theory at its best, in the words of Jefferson and his colleagues in the Declaration of Independence. Law is only a means. Government is only a means. "Life, Liberty, and the pursuit of Happiness"—these are the ends. And "whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new government."

True, the disorder itself may become unjust if it involves indiscriminate violence against people, as the Cultural Revolution in China in the period 1966-1976 started out with the aim of equality but became vengeful and murderous. But that danger should not lead us back to the old injustices to have stability. It should only lead us to seek methods of achieving justice that, although disorderly and upsetting, avoid massive violence to human rights.

Should we worry that disobedience to law will lead to anarchy? The answer is best given by historical experience. Did the mass demonstrations of the black movement in the American South, in the early Sixties, lead to anarchy? True, they disrupted the order of racial segregation. They created scenes of disorder in hundreds of towns and cities in the country (although it might be argued that the police, responding to nonviolent protest, were the chief creators of that disorder). But the result of all that tumult was not general lawlessness. Rather the result was a healthy reconstitution of the social order toward greater justice and a healthy new understanding among Americans (not all, of course) about the need for racial equality.

The orthodox notion is that law and order are inseparable. However, absolute obedience to all laws will violate justice and sooner or later lead to enormous disorder. Hitler, calling for law and order, threw Europe into the hellish disorder of war. Every nation uses the power of law to keep its population obedient and to mobilize acquiescent armies, threatening punishment for those who refuse. Thus the law that inside each nation creates conscript armies leads to the unspeakable disorder of war, to the bloody chaos of the battlefield, and to international turmoil.

If law and order are only ways of making injustice legitimate, then the "order" on the surface of everyday life may conceal deep mental and emotional disorder among the victims of injustice. This is also true for the powerful beneficiaries of the system, in the way that slavery distorts the psyches of both slave and master. In such a case, the order will only be temporary; when it is broken, it may be accompanied by a bloodbath of disorder—as in the United States, when the tightly controlled order of slavery ended in civil war and 600,000 men died in a country of 35 million people.

The Modern Era of Law

We take much pride in the phrase of John Adams, second president of the United States, when he spoke of the "rule of law" replacing the "rule of men." In ancient societies, in feudal society, there were no clear rules, written in statute books, accompanied by constitutions. Everyone was subject to the whims of powerful men, whether the feudal lord, the tribal chief, or the king.

But, as societies evolved, modern times brought big cities, international trade, widespread literacy, and parliamentary government. With all that came the rule of law, no longer personal and arbitrary, but written down. It claimed to be impersonal, neutral, apply equally to all, and, therefore, democratic.

We profess great reverence for certain symbols of the modern rule of law: the Magna Carta, which set forth what are men's rights as against the king; the American Constitution, which is supposed to limit the powers of government and provide a Bill of Rights; the Napoleonic Code, which introduced uniformity into the French legal system. But we might get uneasy about the connection between law and democracy when we read the comment of two historians (Robert Palmer and Joel Colton) on Napoleon: "Man on horseback though he was, he believed firmly in the rule of law."

I don't want to deny the benefits of the modern era: the advance of science, the improvements in health, the spread of literacy and art beyond tiny elites, and the value of even an imperfect representative system over a monarchy. But those advantages lead us to overlook the fact that the modern era, replacing the arbitrary rule of men with the impartial rule of law, has not brought any fundamental change in the facts of unequal wealth and unequal power. What was done before—exploiting the poor, sending the young to war, and putting troublesome people in dungeons—is still done, except that this no longer seems to be the arbitrary action of the feudal lord or the king; it now has the authority of neutral, impersonal law.

The law appears impersonal. It is on paper, and who can trace it back to what men? And because it has the look of neutrality, its injustices are made legitimate. It was not easy to hold onto the "divine right" of kings—everyone could see that kings and queens were human beings. A code of law is more easily deified than a flesh-and-blood ruler.

Under the rule of men, the oppressor was identifiable, and so peasant rebels hunted down the lords, slaves killed plantation owners, and revolutionaries assassinated monarchs. In the era of a corporate bureaucracies, representative assemblies, and the rule of law, the enemy is elusive and unidentifiable. In John Steinbeck's depression-era novel
The Grapes of Wrath
a farmer having his land taken away from him confronts the tractor driver who is knocking down his house. He aims a gun at him, but is confused when the driver tells him that he takes his orders from a banker in Oklahoma City, who takes his orders from a banker in New York. The farmer cries out: "Then who can I shoot?"