… under ordinary circumstances, obedience to law is a virtue. … This is … acceptable when the law is morally neutral–requiring payment of taxes, the obtaining of an occupational license, or compliance with traffic rules which involve no question of safety. This principle, however, raises difficult questions when compliance with law seems to the citizens to foster some evil. …
An important consideration is that the principle of obedience to law is entitled to a strong presumption. This is true of bad laws as well as good laws. … This is consistent with our acceptance, in the United States, of government by representatives and by majority vote. Acceptance involves a willingness to abide by decisions with which one disagrees, in the belief that in the long run the majority will is preferable to the will of any elite. We dare reject the law only when it is so basically destructive that obedience is intolerable.
Before one undertakes to commit unlawful acts, he ought to be clear about the facts. The difficulty of knowing what the real facts are, and the real consequences of alternate courses of action, can be overwhelming. The question, for example, as to what we should do in Viet Nam depends on the facts. If the withdrawal of American troops would lead to the fall of South Viet Nam, the slaughter of its citizens, the collapse of free nations in Southeast Asia and Communist dictatorship over millions of unwilling subjects, then we might conclude that we should fight on, however difficult and costly it might seem.
On the other hand, it it can be said that with American withdrawal these alleged consequences would not occur or that in any event they would occur ultimately, we might well conclude that we are merely squandering lives and resources to no good end. Much of the debate over Viet Nam is futile because it proceeds upon factual assumptions on which the debating parties disagree.
As basic as is the need for accurate factual information, it is important that we not hide behind our own ignorance. It would be too easy to say that we must support American policy because we are ignorant of the merits of the dispute. If information is to be had, we have an obligation to seek it out. On the other hand, when information is unobtainable, the presumption against civil disobedience should surely govern. One is free to use lawful means of influencing policy or protesting, even on the basis of partial information; but when he chooses to transcend the law he ought to be very sure of his ground.
We have need of humility; we need a healthy skepticism of our own views. We are all in the wrong on occasions, and before we set ourselves above the law it is incumbent upon us to consider how likely it is this is one of those occasions. When a jury is unable to agree on a verdict because of one or two dissenters, the judge will instruct them that while they need not give up their conscientious feelings, they should consider whether, in light of the fact that all the other jurors feel differently, their view may be in error.
The strength of one’s feelings is not a fair test of its accuracy; his feeling of sureness does not make him right.
Part of that humility should be awareness that we may be influenced, perhaps subconsciously, by self-interest. The fact that self-interest is involved does not invalidate in itself the decision, but it needs to be included in the calculus.
Still another aspect of the need for caution in engaging in civil disobedience is the tremendous destructive power of the individual. A small number of dedicated men can often bring a major institution to a halt. It is so much easier to tear down than to build that the power to obstruct or destroy must be used with greatest reluctance.
The man who considers civil disobedience must weigh not only the immediate consequences of his act, but how it may affect the decisions of others. The precedent for violation of the law is easily extended by others to use of force and even to terrorism. Ghandi once terminated a campaign of passive resistance because some of his followers turned to violence. The arguments are so similar that refined distinctions among them may be lost upon others. And it is also essential to predict the reaction of persons in opposition. If the response of others to one’s disobedience to law is harshly repressive, much more may be lost than gained. The law is the ultimate safeguard of the dissenter who is not prepared for revolution. There is a great pool of irrationality in the community, which is largely restrained by a general commitment in the society to the ideal of adherence to law. If disobedience leads either to anarchy on the one hand, or dictatorial control on the other, it will have destroyed the very structure which gives broad protections to minority viewpoints.
If, as Herbert Marcuse has urged, the American system is hopelessly corrupted through control by vested interest of the minds of the people then perhaps any means to destroy that tyranny is proper. The question is again one of fact. If there is still considerable opportunity for dissenting views to be heard and for policy to be changed, then the subversion of the existing system is wastefully destructive. It is often difficutl for the young to understand that to be heard is not the same as to be obeyed. Their great certainty and impatience lead them readily to civil disobedience. On the other hand, their elders may be so sunk in complacency that they do not seriously consider that the factors mentioned above, for all their caution against disobedience, may nonetheless lead to the conclusion that the presumption is overcome and the violation of civil law is justified.
… We are faced with the possibility of error on both sides–relying placidly on our ignorance as a basis for doing nothing or acting upon well-intentioned impulse without having considered well enough the fundamental social value and … obligation to live within the law.