Reflections on Illegality — the Baltimore Riots

Source: www.stripes.com

As a recent graduate of Marquette University (I was able to graduate a semester early in December), I have had a lot of time on my hands to think about certain philosophical topics I did not have time to ponder in-depth during my student-years. Thankfully, recent events have given me ample opportunity to do so.

I’ve never been one of those people that likes to instigate things on social media, but I do find it interesting to engage on at least a superficial level with my friends and colleagues on a medium such as Facebook to see where they stand on certain issues and how their viewpoints mesh with my own. One friend of mine (habitually, a rather moderate, liberally-leaning individual) discussed his reflections on the recent riots in Baltimore over the death of Freddie Gray. In his post, he discussed his dissatisfaction with the explicit violence of many of the participants, a sentiment I share. However, what struck me the most about his stance was a comment he made in response to my own comment on this post where he stated that:

Regardless of their reason for the violence, they are committing crimes and it is wrong

This made me think: is violence, or committing a crime, wrong per se, i.e. are they wrong by virtue of the fact that they are violent or that they break the law? My quick, feckless answer might be that yes, violence and law-breaking are wrong, but that answer is not very philosophically sound. Literary critic and philosopher Terry Eagleton on the topic of violence in social reform states that:

Other people’s revolutions, like other people’s food in restaurants, are usually more attractive than one’s own.

And in discussion of the common tool of revolution and social upheaval, violence, he makes the startling claim that:

In any strict sense of the word, pacifism is grossly immoral. Almost everybody agrees on the need to use violence in extreme and exceptional circumstances … it is just that such aggression has to be hedged round with some severe qualifications.

To be fair, I take issue with the absolute rejection of pacifism (though I do not think this is what Eagleton meant by this statement) as this runs the risk of degrading into a sort of moral relativism (e.g. the ends justify the means, violence is permissible when achieving a worthy goal, etc.). But from a strictly descriptive sense, I do believe it is the case that when it comes to common-sense morality, violence does factor in some way into the purview of acceptable responses to particular situations. And in a similar sense, so does law-breaking since, in effect, they are both extra-judicial (or at least extra-social, i.e. go outside the bounds of what is imposed on the individual by society regardless of actual legal affirmation or condemnation) actions.

After all, our narrative of the struggle for peace and justice is speckled with instances of ‘justified criminals.’ Jesus Christ was a criminal; the New Testament is full of instances of him breaking Jewish law. The Founding Fathers were criminals; they evaded taxes just like Al Copone (I am not trying to equate the two any further than that — I mostly just brought his name in for the shock value since I have a strange sense of humor like that). And Martin Luther King, Jr., the great civil rights leader, was also a great criminal in the strictest sense of the word; after all, he was arrested over twenty times (http://www.historynet.com/martin-luther-king-jr). And surely the common individual would not say that the actions these individuals undertook were wrong simply by virtue of their ‘illegality.’

All this got me wondering: so, if illegality is not ‘wrong’ in and of itself, when is it permissible, i.e. what are the “severe qualifications” mentioned above by Eagleton? Though it’s not as simple as I pose it, breaking a particular law that is unjust or oppressive seems to be alright; abolitionists violated the Fugitive Slave Act when they harbored runaway slaves, Henry David Thoreau refused to pay taxes that went towards funding a war he saw as unjust (though this might not be the greatest example since I am unclear if he resisted a specific tax meant to fund a specific war or if he resisted taxation itself and thus lacked the specificity I am aimed for), a Tea Party-er would likely resist a specific, hypothetical federal firearm ban that he or she viewed as a violation of his or her rights, etc. In these circumstances, the target of resistance is clear; one can literally point to a piece of paper, i.e. the law itself, as the culprit.

In many ways, the civil rights movement of the mid-twentieth century followed similar lines; while this might be a gross simplification, the basic notion of resistance to segregation was resistance to concrete “Jim Crow” laws and the legal precedent of Plessy v. Ferguson that gave these laws teeth. But where things get more fuzzy is when you examine the project of civil disobedience, which typically entails a general lack of submission to the laws that govern our everyday lives. In this sense, one could not directly oppose “Jim Crow” since there was never an actual law called “The Jim Crow Statute.” Instead, segregation was opposed by sit-ins, marches, ‘illegal’ gatherings, etc., all of which were violations of laws and regulations against loitering, holding protests without permits, disorderly conduct, etc. And while those who participated in these movements were certainly justified in doing what they did when it came to peaceful civil disobedience, it seems absurd to suggest that because they were cited as breaking certain specific laws that they were protesting those specific laws.

I doubt MLK had any issue with loitering; if one owns a business and somebody is lingering in their establishment or bothering customers, they ought to be dealt with by the law. I doubt he took issue with disorderly conduct; if a man is drunk to kingdom come and singing at the top of his lungs in a residential place, he ought to be dealt with by law enforcement. I even doubt he had issues with prohibitions against assembling without a permit per se; one could see the social utility in knowing in advance when a protest will occur so proper preparations can be made with respect to giving citizens notice, arranging for police to be present, making accommodations for traffic flow, etc. The issue with these laws comes into play when they are abused, when they are used by the establishment to cover for other abuses and maintain the existence of an oppressive institution. This seems obvious, but I just wanted to stress the notion that many reform movements seek not to address (and thus violate according to the tenets of civil disobedience) unjust laws so much as seek to demonstrate against unjust socio-political or legal institutions.

This is fine and dandy, but what does a socio-political or legal institution even mean? If illegality is justified when utilized as a concerted movement against what a group of protesters views as a corrupt or unjust system, such a system needs actually to be defined. When it comes to de jure racism, this is not terribly challenging; a nuanced understanding of, for example, the civil rights movement shows that a movement can propagate ‘lawlessness’ not as a reaction to specific laws but more as a reaction to a framework in which over-arching laws, i.e. laws that codified segregation in this instance, were unjust. But what happens when you do not have such obvious injustice in a given socio-political arrangement? If you live in a country where racism is technically illegal yet society is still dominated by a particular group which systematically oppresses another (even if it is not willing to admit it is doing so), does this justify breaking the law?

Take the present state of affairs; racism and discrimination are technically prohibited in our country and yet it would be absurd to suggest that they do not exist. There may no longer be a legal doctrine that justifies racial injustice, but the fact remains that minorities are often relegated to poorer socio-economic areas of the country, face profiling and targeting by police, experience discrimination in everything from finding a job to walking down the street, etc. And yet this injustice is de facto, it exists but its origin is more challenging for one to put their finger on, at least as compared to past struggles for civil rights and opposition to explicitly oppressive laws such as those pertaining to Jim Crow. Thus, one must ask the question of whether or not the existence of injustice in and of itself, not exclusive to the existence of actual laws that codify injustice, permits illegality?

Again, one would still probably be inclined to say yes to the above question, but imagine this hypothetical: I am a thoroughbred libertarian and, consistent with my philosophical views, I believe that central government is bad. Instead, in my ideal world I would see a very small, administrative-style local and limited government instead of an national, interventionist one. Thus, I object to the notion of taxation on a federal level since I don’t believe in the core function that it performs; since I don’t believe there should be a central government, there is no need for me to pay for it. And, based on the existence of this systematic injustice, I refuse to pay any further taxes. Many people would object to this refusal, but perhaps for the sake of discourse it can be permitted that, based on this authentic statement grounded in authentic and considered belief, this hypothetical individual should be freed from the burden of taxation. But to see where the above conception of illegality based solely on the existence of an unjust system runs into problems, I will take the example one step further; it’s simple enough that I oppose taxation and thus do not pay taxes, but just as civil rights participants likely did not oppose prohibitions against loitering or disorderly conduct yet violated these laws in the name of a more overarching critcism of the system itself, I also refuse to follow the speed limit. After all, the government is unnecessary (which is the basis for my objection to taxes) and it also should not be meddling in my business of how fast I can drive. I am also not going to [fill in the blank] because my illegality is permitted due to the sheer existence of an unjust system and thus a permissible facet of my program of civil disobedience.

The picture I paint is an extreme one and could reasonably be contested on many levels (and I invite criticism as such). But the point I seek to make is this: when you are not opposing a specific law or specific injustice but rather an unjust system or set of circumstances that breed injustice, it is difficult to use this as a basis for illegal actions since injustice is such a subjective and vague term. In my hypothetical, I am not opposed to a specific tax but rather to taxation itself. I am not opposed to a given law, I am opposed to the very notion that a law exists that comes from a particular source, i.e. a centralized government. And I display my opposition by the violation of laws that I may or may not directly oppose; to use the above example, I could feasibly violate the speed limit not because I have an issue with posted speed limits but because I don’t think it is the function of a central authority to set them. Perhaps I feel it’s something an individual community should do (this example is not the greatest since municipal authorities rather than central governments typically set speed limits, but the principle remains).

The same principle could apply if I were a religious advocate who opposed government-mandated healthcare coverage of contraceptives, so I decide that the system is unjust and am thusly permitted to act illegally and, for example, vandalize signs or knock ice cream cones out of the hands of babies. The basic idea is that when you conceptualize civil disobedience in this way, a sufficient condition for illegality is the simple presence of injustice and this illegality does not have to necessarily pertain to direct violation of laws that were crafted for the sole purpose of oppression and injustice. These examples are purposefully hyperbolic but they do demonstrate a logical flaw that could be applied to a theory of civil disobedience in the abstract.

All of these issues make me question the utility of positive law theory when it comes to trying to write morality into the law, something that seems necessary if one wants to subsequently resist a law due to its injustice (since ‘justice’ seems to have a moral component to it). It makes me more inclined towards a natural law understanding of activism, despite the theistic historical connotations of such a theory which, on their surface, lack applicability in a pluralistic society. But even setting aside divinity for a moment, there seems to be an inherent sense of human justice and while we may not be able to put our fingers on it (as demonstrated above), humans often have a good sense of when something is wrong in society and when it is appropriate to fight against it.

This article probably makes things more confusing, but if I learned anything working with philosophers in my undergraduate career, it would be that it is sometimes just as useful to say what something is not than what it necessarily is. Silly academics.

(Caveat: There are a number of possible objections I could raise to the various premises in my argument, but I figured I had spoken enough. Please feel free to point out the flaws in my argument since, admittedly, these are moreso my incomplete ramblings and musing than anything else. Thanks!)

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