The basic argument against civil disobedience — refusing to obey government's rules that we consider bad — is that this form of protest threatens to undermine respect for law and produce anarchy. Anarchy, the absence of government, makes decent life impossible by setting off a "war of all against all" where life is "nasty, brutish and short," as Thomas Hobbes described it.
Since nobody benefits from anarchy, this is an extremely strong argument when we speak of civil disobedience to genuine laws. But with one caveat, the argument does not apply to civil disobedience to pseudolaws.
In his famous 1963 "Letter From A Birmingham Jail," the Rev. Dr. Martin Luther King, Jr. proclaimed that "An unjust law is a code that a majority inflicts on a minority that is not binding on itself. This is difference made legal. On the other hand a just law is a code that a majority compels a minority to follow that it is willing to follow itself." I differ from Dr. King only in that I do not concede that the unjust codes he refers to rise to the dignity of law at all.
A genuine law must be a general rule of action enforceable by sanctions. To be a general rule, it must apply to everybody with no exceptions whatever. It must take the form "anybody who . . . ."
Thus a genuine law cannot require African Americans to ride in the back of the bus. It cannot authorize the extermination of Jews. It cannot prohibit women from working as a bartender unless the bar is owned by her husband or father.
In my book, such abominations are pseudolaws, not laws.
Human societies have progressed by moving from class societies, governed largely by pseudolaws, to legitimate governments which generally respect the rule of genuine law.
With the except of putting down large-scale rebellions — which requires military force — there is no legitimate government objective which cannot be achieved either by use of genuine laws, or by government's powers of purse and pen.
Within certain broad limits, civil disobedience to pseudolaws can be a legitimate and valuable tool in the hands of reformers and will not create disorder.
No disrespect for genuine law is implied by a widespread refusal to obey pseudolaw. On the contrary! If a legislature enacts a pseudolaw, the courts should strike it down, since in legitimate governments legislatures only have authority to enact genuine laws.
If the courts abdicate their responsibility, then the body politic, the people, becomes the court of final appeal. A general understanding of the difference between law and pseudolaw, and an unwillingness to obey any pseudolaw, could be a powerful force for progress as well as a brake protecting against any danger that the society will move backwards.
As the great F.A. Hayek noted in his book, "Rules and Order," "There is no contradiction in the existence of a state of opinion which commands implicit obedience to the legislator so long as he commits himself to a general rule, but refuses obedience when he orders particular actions."
As I indicated earlier, civil disobedience to pseudolaws can be a very good idea, but only within certain broad limits. Although it can be a very useful tool for improving society or preventing it from getting worse, civil disobedience may not be such a good idea in the very bad societies in which progress is most needed.
In these very bad conditions, most legislation may consist of pseudolaws, and to refuse to obey most legislation would threaten to make these highly imperfect societies even more imperfect. In such societies, civil disobedience even to pseudolaws may very well create the anarchy — the "war of all against all" — that Thomas Hobbes quite properly feared.
But in countries that are closer to having fully legitimate regimes, general refusal to obey pseudolaws could be a powerful bulwark against arbitrary government. Of course this technique would require a general understanding of the distinction between pseudolaws and genuine laws.
Unfortunately this distinction is not yet widely understood, but it is not difficult to understand.
Educating everyone to understand the distinction between genuine laws and pseudolaws should therefore be a high priority of people seeking to prevent bad political changes and to promote progress.
Paul F. deLespinasse is Professor Emeritus of Political Science and Computer Science at Adrian College. He received his Ph.D. from Johns Hopkins University in 1966, and has been a National Merit Scholar, an NDEA Fellow, a Woodrow Wilson Fellow, and a Fellow in Law and Political Science at the Harvard Law School. His college textbook, "Thinking About Politics: American Government in Associational Perspective," was published in 1981 and his most recent book is "Beyond Capitalism: A Classless Society With (Mostly) Free Markets." His columns have appeared in newspapers in Michigan, Oregon, and a number of other states. To read more of his reports — Click Here Now.
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