What makes a law unjust? Possible answers might entail that the law would violate another law of greater authority, or it would exercise a power it did not legally have, or it would violate a principle of law.
How does one oppose an unjust law? Unfortunately there are unjust laws and laws that are executed unjustly. If one is to oppose them how is one to behave when one breaks an unjust law? Historical figures like Thoreau, Gandhi, Martin Luther King, and Socrates were individuals who broke unjust laws and behaved in a particular way, namely, that they endured the consequences of their actions.
So what is our responsibility as we confront unjust laws? Do we challenge them and then hide or do we challenge unjust laws and accept the consequences of our decisions, like the notable figures above. In the case of Gandhi and King it was precisely their moral civil resistance that led to eventual non-violent change. They embodied what Socrates advised, i.e. do not return an injustice for an injustice. High ideals, no doubt. The American writer and philosopher Henry David Thoreau wrote passionately of liberty, individualism and conscience claimed, “I have paid no poll-tax for six years. I was put into a jail once on this account,”
Do people today, among those who oppose unjust laws, accept the consequences of their actions? Or do they want to oppose what they consider unjust laws and avoid the consequences of their actions? Their sense of moral righteousness entitles them to the proclaim the former, but not accept the latter. Socrates, Gandhi and Martin Luther King were inspired by Thoreau’s essay and its ideals. They opposed, in their lifetimes, what they considered unjust laws and went to prison. They accepted the consequences of their actions. So while it is important what you do in life, it is equally important, if not more important, how it is done.
On the legitimacy of the America government
It has been asked “What is the legitimacy of the American government when it prides itself on certain ideals, but acts otherwise?” Does this mean that if American constitutional ideals are not enacted in its policies, then America is illegitimate? Well, it would mean that the policies are problematic, even hypocritical, but not that the American government is illegitimate. However, what would make the US government illegitimate would be if the functions of government, as articulated in the Preamble to the US Constitution, are not enacted then the government is illegitimate? It would mean that if the tenets of American constitutional democracy are not manifested in the institutions of the American political system then it would be illegitimate. But the functions of government are enacted and the tenets of American constitutional democracy are exhibited all through American culture, society and government.
Do they have to be perfectly enacted and manifested to be legitimate? Aren’t they mostly well enacted and exhibited? Aren’t laws passed and others sometimes repealed depending on the responses of citizens and particular interests? Aren’t policies implemented to address problems and situations that affect the people? Isn’t there an attempt to balance liberty and security? The Declaration of Independence is explicit for what makes a government legitimate. It says a “just” government is one that “secures these rights”, i.e. natural rights and governs by “consent of the governed”. Thus if the policies of the American government fail to live up to its ideals it is not illegitimate, it is however, problematic. In life there are many ideals that are considered good and laudable. But the Declaration speaks of unalienable rights of life, liberty, and the pursuit of happiness. This is the ideal that is to be protected in order for government to be considered legitimate. Isn’t this accomplished? It also shows how government can usurp power and abuse the people.
It has been remarked that war can endanger democracies. Yes, war can destroy the liberties of a democratic nation. But remember, “just” governments seek to balance liberty and security. War may lean a nation more toward security and during the war itself, liberties are curtailed. But can war permanently destroy a country’s liberties? Possibly. In some countries it has. Has it done this in America’s case? America fought its Civil war. Did it destroy the liberties of the republic? Well, during the war the privilege of habeas corpus was suspended in the Border States. However, right after the Civil War the 13th, 14th, and 15th amendments were passed. Aren’t they considered expansions of liberty?
During WWI some liberties were curtailed, but shortly after in 1925 the Supreme Court expanded the right to free speech (Gitlow v. NY). What about the desegregation of the military in 1948 right after WW II? What about desegregation of schools in Brown v. Board of Ed., (1954) at the height of the Cold War? What about the many court cases expanding liberty and protections to defendants in the 1960’s at the height of the Vietnam War? So while war can be dangerous to liberty, its effect depends on the nature of the country’s government and the political understanding of the people. May these not serve as examples of American exceptionalism?
On US policy and principles
Does American policy, however well meaning, sometimes go astray in its implementation? If so, does this mean that the United States policies and laws that are misguided? If civilizations and nations are made up of men, and men are flawed, then there certainly will be imperfections in the implementation of any laws, foreign or domestic. Yes, the principles of Western civilization in general and the US in particular are to be evaluated. But, aren’t these policies, generally, informed by those very principles? It can be argued that the policies of the US, in individual cases, are misguided. But as President Clinton said, “There is nothing wrong in America that can’t be fixed with what is right in America.”
Moreover, one of the chief characteristics of the US and Western civilization, in general, is its concern and respect for human life, a quality not exclusive to the West, but nonetheless, can be borne out by comparison to other civilizations, cultures and periods in history. Moreover, if one were to juxtapose liberal democracy with totalitarian communism wouldn’t history show a preference for the former over the latter?
For a civilization to aspire to greatness it must not only think itself to be exceptional it must in fact demonstrate that quality. The judgment of history is usually the true test of this quality. It is not necessary to enumerate the benefits of this way of life. It is plain to see that liberal democracy’s pluralistic character offers the widest scope for the enrichment of human flourishing. Indeed, not so long ago this liberal democratic notion was only a romantic ideal, but now, after 200 years, has been realized in many nations around the world. This expansion of electoral democracies is revealed in recent reports from the Freedom House organization.
It must be understood that the very nature of international politics frequently requires choosing between the lesser of two evils. In the case of the United States, for example, the US allied itself with the Soviet Union during WWII to deal with the more immediate menace of Nazi Germany. Yet, this did not mean the US acted falsely or hypocritically since after the war the US and USSR became enemies. It means only that the situation at that time of the beginning of WWII required a politically expedient solution because the Nazi Germany was the greater danger. This is the nature of the international political arena. And it must be wrestled with every day. But, it is in the wrestling that the quality of a nation is demonstrated. America wrestles, other nations have given up the effort. That is the quality and distinction to be noted.
© Lawrence S. Harris