Freeman

ARTICLE

Civil Disobedience: A Threat to Our Law Society

DECEMBER 01, 1964 by MORRIS I. LEIBMAN

Mr. Leibman, who practices law in Chicago, is Chairman of the Standing Committee on Education against Communism of the Ameri­can Bar Association. This is from his address before the ABA Annual Meeting, Criminal Law Section, New York City, August 11, 1964.

Woodrow Wilson once said: "A nation which does not remem­ber what it was yesterday, does not know what it is today, nor what it is trying to do. We are trying to do a futile thing if we do not know where we came from or what we have been about."

In seeking to improve tomor­row, it is our duty to remember where we have been and reflect on where we are.

We live in that instant of time when it can be said that never be­fore have 190 million people en­joyed so many material goods, however "imperfect" their dis­tribution. Never before have 190 million people had as much me­chanical, electronic, and scientific equipment with which to subdue the natural obstacles of the uni­verse. But the multiplication of consumer wealth is subordinate to our greatest accomplishment—the fashioning of the law society.

Never in the history of man­kind have so many lived so freely, so rightfully, so humanely. This open democratic republic is man’s highest achievement—not only for what it has already accom­plished, but more importantly be­cause it affords the greatest op­portunity for orderly change and the realization of man’s self-re­newing aspirations. Our goals, as set forth in the Declaration, have been buttressed by a Constitution, a system of checks and balances, a mechanism judicial, legislative, and executive which permits the continuation of Western civiliza­tion’s spirited dialogue. This un­hampered dialogue makes possible the opportunity to continuously approximate, through our legisla­tive and judicial system, our moral and spiritual goals.

The long history of man is one of pain and suffering, blood and tears, to create these parameters for progress. This noble and unique experiment of ours, a hun­dred years ago, lived through the cruelty of a massive civil war to test whether such a unique sys­tem could endure. It did. It has. It will. Let us always remember that the law society is the pin­nacle of man’s struggle to date—the foundation for his future hope.

There is an obligation to that law society. It was stated more than one hundred years ago by Abraham Lincoln in these pas­sionate words:

"Let every American, every lover of liberty, every well-wisher to his posterity swear by the blood of the Revolution never to violate in the least particular the laws of the country…. Let every man remember that to violate the law is to trample on the blood of his father, and to tear the charter of his own and his children’s liberty. Let reverence for the laws be breathed by every American mother to the lisping babe that prattles on her lap; let it be taught in schools, in seminaries, and in colleges; let it be written in primers, spelling-books, and in almanacs; let it be preached from the pulpit, proclaimed in legisla­tive halls and enforced in courts of justice. And in short, let it be­come the political religion of the nation; and let the old and the young, the rich and the poor, the grave and the gay of all sexes and tongues and colors and con­ditions, sacrifice unceasingly upon its altars."

No society whether free or tyrannical can give its citizens the "right" to break the law. There can be no law to which obedience is optional, no command to which the state attaches an "if you please."

What has happened to us? Why is it necessary, at this moment, in this forum to repeat what should be axiomatic and accepted? Many, many words more eloquent than mine have examined from every angle the genesis, the roots, the grievances, the despair, the bitterness, the emotion, the frus­tration that have resulted in the tragedies of these days.

Now what is the responsibility of a citizen—the majestic title bestowed on those of us who cre­ate and share in the values of the law society? Let there be no ques­tion of where we stand on human rights and our rejection of dis­crimination. Surely the continuing social task for the morally sensi­tive citizen is to impart reality to the yet unachieved ideal of full and equal participation by all and in all our values and opportunities.

Yet we must remember that there have been no easy solutions for man’s inhumanity to man. Justice Frankfurter once said:

"Only those lacking responsible humility will have a confident so­lution to problems as intractable as the frictions attributable to differences of color, race, or reli­gion."

Let’s not forget there is noth­ing new in violence. Violence has throughout mankind’s history been too often a way of life. Whole continents have been involved in riot, rebellion, and revolution. Hu­man rights problems exist in In­dia, in Asia, in the Middle East, and in Africa. A large part of the world lives behind the ugly iron and bamboo curtains of commu­nism.

We cannot sanction terror in New York or in Mississippi. Re­taliation is not justified by bitter­ness or past disillusionment. No individual or group at any time, for any reason, has a right to ex­act self-determined retribution. All too often, retaliation injures the innocent at random and pro­vokes counter retaliation against those equally innocent. Our im­perfections do not justify tearing down the structures which have given us our progress. The only solution is the free and open law society. In times when man’s prog­ress seems painfully slow on any one issue, we might also consider how well we are doing on all is­sues compared to most areas of the world over most of the world’s history.

In this frame of reference let us identify certain current forces whose aim is to destroy the law society.

Exploiting Man’s Troubles

The inexorable requirement of communism to exploit every dif­ference between men should now be clearly understood. Commu­nism constantly exploits man­kind’s troubles ideologically, phil­osophically, and psychologically. Yet we seem to be surprised, con­fused, even bitter about commu­nist intervention in our civil rights problems. What could be a more natural target for commu­nist usage? The Communist Party USA has a long history of at­tempting to infiltrate every seg­ment of our society. The Negroes of America have a long history of resisting this subversion, but it would be foolish—yes—dan­gerous to believe the communists would not seek to insert them­selves where there is unreasoning and extreme militancy in any troubled area. This is no reflec­tion on any segment of our soci­ety—it is a recognition of the constant threat of trained troublemakers and rabble rousers aimed at all times against our entire society. The communists know they can profit by stimulat­ing agitation and disrespect for law and order. They would be neglectful of their own sinister doctrines if they did not use these instruments of subversion and violence.

Ethnological warfare, the incit­ing of dissension and conflict be­tween nationalities and races, is a widely exploited revolutionary tactic. Communists have long been instructed to change passive at­titudes to "activist" attitudes, to intensify the struggle at all levels at all times. To the communist, all means are justified by the end, the basic concept that we of the law society reject. These commu­nists have their imitators, who mimic, under many "theories" and many labels, doctrines which re­ject law and order. The Nazis, the Malcolm X’s, the Ku Klux Klanners have repeatedly and directly challenged our principles and insisted on taking "law" in their own hands. Those who re­ject our legal methods and choose terror, force, violence, hate, and bigotry only play into the hands of the international communist con­spiracy.

The jungle lawlessness of the frontier demonstrated to the pio­neers that law was essential to the establishment of civilization. It was not the destruction of the buffalo, or the rise of fences, or fast-draw gunmen that tamed the wilderness. It was the installation of American juridical proceedings that enabled our people to weld together the disparate territories destined to become an organic nation.

Semantic Traps

I am also deeply troubled by cer­tain concepts which have sought acceptability: the idea of "Free­dom Now" and the idea of "Right­eous Civil Disobedience." In my opinion both terms are semantic traps and only add heat to the problems of freedom and justice for all. It is a further semantic trap to divide the discourse on civil disobedience into a stereo­type of liberalism vs. conserva­tism.

"Freedom Now" is an illusion. The desire for self-expression can be satisfied only in an atmosphere of freedom, and freedom is not absolute. It exists only within the confines of the necessary restrain­ing measures of society.

I wish it were possible to have heaven on earth. I wish it were possible to have the ideals of jus­tice and freedom in all their per­fect form at this moment. The cry for immediacy is the cry for im­possibility. It is a cry without memory or perspective. Immedi­acy is impossible in a society of human beings. What is possible is to continue patiently to build the structures that permit the devel­opment of better justice.

Let us also beware of pat phrases such as "justice delayed is justice denied." Justice delayed is no excuse for antijustice or the destruction of the law system. The fact that particular reforms have not been completely achieved does not justify rejecting legal means—the only hope for lasting achievement.

The demand for equality can­not be converted into a fight for superiority. We must be for equality under the rule of law. We are for freedom under law, not freedom against the law.

Let us also avoid unreal ques­tions such as whether justice is more important than order or vice versa. Order is the sine qua non of the constitutional system if there is to be any possibility for long-term justice based on public consensus.

Flaunting the Law

What about the concept of "righteous civil disobedience"? I take it that all men now accept the fact that there can be no justifi­cation for violent disobedience under our constitutional system. Is the concept validated when the disobedience is nonviolent? In my opinion this idea has no place in our law society.

Parenthetically, I would sug­gest that you experts in criminal law consider whether there can be "civil" disobedience where there is a specific intent to disobey the law. Such a specific state of mind is ordinarily treated as the es­sence of criminality, hence not "civil." Therefore, it seems to me that there is an inherent contra­diction in the concept of premedi­tated, "righteous" civil disobedi­ence.

Yet I prefer to base the case on broader grounds. The concept of righteous civil disobedience, I think, is incompatible with the concept of the American legal sys­tem. This is particularly axio­matic where this society provides more than any other for orderly change; where every minority—including the minority of one—has been protected by a system of law which provides for orderly process for development and change. I cannot accept the right to disobey where, as here, the law is not static and where, if it is claimed to be oppressive or coer­cive, many effective channels for change are constantly available. Our courts do not have to apolo­gize for their continued dedica­tion to the liberty of all men. Our legislatures have regularly met the changing times and changing needs of the society with con­sideration for the unalienable rights of all. Even the Federal and state constitutions have been amended. Our law has not only been a guardian of freedom, but the affirmative agent for freedom.

While the idea of civil disobedi­ence may evoke sympathy where the claim is made that the cause is just, once we accept such a doubtful doctrine we legitimatize it for other causes which we might reject. We must be even more careful in the sympathetic case be­cause, in effect, that sets the standard of conduct which then becomes acceptable for cases not as appealing or for groups not as responsible. Thus, we substitute pressure for persuasion and squander the carefully nurtured value of self-restraint and jeop­ardize the system of law.

If Exceptions Prevail, What Is the Rule?

Let us not restrict our thinking to the area of civil rights. Think of the persons who feel they have the right to interfere with the launching of a Polaris submarine; think of the people who demand the right to sail into an area re­stricted for military testing; think of the people who feel, as some have in England, that they have the right to publicize their government’s military secrets to the detriment of national security and survival.

The plain fact of human nature is that the organized disobedience of masses stirs up the primitive. This has been true of a soccer crowd and a lynch mob. Psycho­logically and psychiatrically it is very clear that no man—no mat­ter how well intentioned—can keep group passions in control.

Civil disobedience is an ad hoc device at best, and ad hoc meas­ures in a law society are danger­ous. Civil disobedience under these circumstances is at best de­plorable and at worst destructive.

Specific disobedience breeds dis­respect and promotes general dis­obedience. Our grievances must be settled in the courts and not in the streets. Muscle is no substitute for morality. Civil disobedience is negative, where we require affir­mative processes. We must insist that men use their minds and not their biceps. But, while the em­phasis must be on the three R’s of reason, responsibility, and re­spect, we cannot accept self-righteousness, complacency, and noninvolvement. We reject hypo­critical tokenism. We have an af­firmative and daily duty to elimi­nate discrimination and provide opportunity—full opportunity and meaningful equal justice for all our people.

The Lawyer’s Obligations

Obedience and not disobedience is the requirement of law, and the law must be obeyed by laborers and governors and especially lawyers.

I often think of J. Edgar Hoover as a symbol of the law­yers’ obligation. His has been the difficult task to protect the law so­ciety, in accordance with its strict rules, against enemies within and without—the spy and the gang­ster, the saboteur and the kidnap­per, the violators in New York and in Mississippi. Let his con­duct remind us that the lawyer must serve in the tough, hard areas where our society rubs against complexity and contro­versy, and where prejudice, big­otry, and the emotions are the sharpest; where criticism and per­sonal attack are certain from both sides. That is where we of the law have our primary obligation.

It is most appropriate here and now to re-emphasize our profes­sional calling as lawyers. We must insist on the integrity of the means. We must support and protect the laws whether we agree with the particular statute or we don’t. Freedom is not some easy gift of nature. The plant of liberty has not grown in profusion in the wilderness of human history. Lib­erty under law is a fragile flower. It must be nurtured anew by each generation of responsible citi­zenry. Let but a year of neglect be sanctioned, even celebrated, and the jungle of force threatens to re­capture the untended garden. The lawyer must be in the forefront of this citizenry. We cannot settle for lip service to legality. We can­not be "sometime" lawyers.

In an era of social, political, and scientific revolutions—and at a time of accelerating and com­plex change—we of the law must particularly renew our under­standing and improve our articu­lation of the basic issue of free­dom under law and the continuing need to strive for equality and meaningful liberty and justice for all. Our will and determination are being tested as never before.

We must not tire of the chal­lenge to extend freedom abroad or the challenge to make freedom a still greater reality at home.

 

***

Rule by Law

They saw that to live by one man’s will became the cause of all men’s misery. This constrained them to come unto laws, wherein all men might see their duties beforehand, and know the penal­ties of transgressing them.

RICHARD HOOKER, The Laws of Ecclesiastical Polity

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December 1964

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