Civil Disobedience, Law and Order, and Active Nonviolent Protest

Throughout our nation we see example after example of Civil Disobedience through Active Nonviolent Protest running head on against cries for and actions promoting Law and Order. One might assume these are two polar opposites, and one must choose one over the other. However, Civil Disobedience, properly understood, is actually in harmony with Law and Order. Thomas Merton puts it succinctly: “The theory of civil disobedience permits only disobedience of a law that has been shown to be unjust and at the same time it affirms respect for law and order as such by accepting punishment for the act of disobedience. This aspect of civil disobedience is often overlooked. “[The Nonviolent Alternative, 227-28]

      

For example, in the Nashville Sit-ins described in my last post, the blacks taking a seat at “white only” lunch counters, when arrested, insisted on being taken to jail. As that happened, more blacks took the seats they had vacated, and were in turn hauled off to jail. In fact, the protests had almost been called off because there was not enough money to pay bail for so many protesters going to jail. However, the students had adopted a “Jail-No-Bail” philosophy, meaning they preferred to be punished by the law rather than be bailed out. Eventually there were so many students in jail that the police decided to simply let them go.

This position of “Jail-No-Bail” had been adopted by Martin Luther King’s organization, the Southern Christian Leadership Conference, as a way of showing that the protests were not against the law as such, but only against laws they believed to be “unjust.”  There are many examples where King himself, John Lewis and other Civil Rights leaders refused bail as a way to draw greater attention to the injustices the movement was trying to bring to the light of day.

The concept of Civil Disobedience was first coined by Henry David Thoreau in his 1848 essay where he described his decision not to pay a state poll tax that had been enacted to prosecute a war in Mexico and support the Fugitives Slave Law that required slaves in free states to be returned to their owners in slave states. This was his way to protest what he felt were unjust laws and causes, and he spent time in jail as a result.

Philosopher John Rawls, in 1971, developed the concept of Civil Disobedience further. “Civil disobedience is a public, non-violent and conscientious breach of law undertaken with the aim of bringing about a change in laws or government policies. On this account, people who engage in civil disobedience are willing to accept the legal consequences of their actions, as this shows their fidelity to the rule of law. Civil disobedience, given its place at the boundary of fidelity to law, is said to fall between legal protest, on the one hand, and conscientious refusal, . . . . on the other hand.” [Stanford University Encyclopedia of Philosophy.]

The first task of Civil Disobedience, then, is to determine which laws are just and unjust. Martin Luther King, Jr. explained this in his famous “Letter from a Birmingham Jail,” where he had landed because the city would not issue his group a permit to demonstrate, and he went ahead and began a march anyway.  The result was spending a week in jail.  King writes: “One may well ask: ‘How can you advocate breaking some laws and obeying others?’ The answer lies in the fact that there are two types of laws: just and unjust. I would be the first to advocate obeying just laws. Conversely, one has a moral responsibility to disobey unjust laws. I would agree with St. Augustine that ‘an unjust law is no law at all.’” [LBJ, 93]

For example, I have been bringing groups to the border between El Paso and Juarez for nearly 20 years to focus on border violence and immigration laws. One time a Border Patrol agent explained that when his father worked for the Border Patrol, there were no barriers between the US in Mexico, except for the Rio Grande River, which can be easily crossed in most places. People freely went across to work in the US, and then returned at night to their homes in Mexico. Though technically illegal, many times, especially when the harvest of a certain crop was near, the agents were actually told to just “look the other way.”

Then began a long process of making the laws stricter. First, it was a misdemeanor to try to cross without papers. Then it was made a felony. Then, if you were caught trying to cross, you had to go back, wait a certain length of time, often years, and reapply for entry. And, by the way, these days it is nearly impossible to get re-entry papers.

Let me give you example of how this might play out. I met a family of a mother, father and daughter who crossed some 20 years ago when it was just a misdemeanor. They settled down, got work, paid taxes and eventually had two more children, who are US citizens. The daughter brought across as an infant applied for the DACA program, and was accepted.

A few years ago, the father went back to Mexico for his mother’s funeral. He had work papers, but there was something not signed properly, and, when he came to the border, he was sent back to Mexico. Now, if you were him, what would you do? He tried to cross, and again was caught. This time he was told he had to go back to Mexico for five years, and then reapply for entry. And the daughter in the DACA program has not known for the last few years what her future will be.

Those of us working for immigration reform are not saying there should be no laws, or no borders. But we are challenging the fairness of laws that have kept changing over the years, and now are tearing hard-working, peaceful families apart, and leaving DACA students, many of whom have completed college or served in the military, unable to know if they will be allowed to stay in the country in which they grew up.

Two days after "Blood Sunday" Protesters tried Again, Confronted Resistance, Knelt and Prayed, and Turned Back. Only on the third try, with Protection from Federal Troops, did they make it to Montgomery.

For the spiritual person, the basis on which one analyzes such laws comes from one’s understanding of what God wants for the world. Thomas Merton explains it this way: “The Christian is and must be by his very adoption as a son of God, in Christ, a peacemaker (Mt. 5:9).  The Christian is one whose life has sprung from a particular spiritual seed: the blood of the martyrs who, without offering forcible resistance, laid down their lives rather than submit to the unjust laws. . .  That is to say, the Christian is bound, like the martyrs, to obey God rather than the state whenever the state tries to usurp powers that do not and cannot belong to it.”  [The Nonviolent Alternative, 13]

When I was growing up, my parents used to regularly say to me, “Now, Brian, don’t get into trouble.” John Lewis’ parents told him the same thing. The difference was that the trouble he was contemplating was far more serious and important than any trouble I might get into. He was trying to overcome segregation laws that he believed were immoral, and opposed to the ways of God. 

John Lewis, on Black Lives Matter Plaza in Washington DC, just days before he died.

In his words: “As a young man I tasted the bitter fruits of segregation and racial discrimination, and I didn’t like it. I used to ask my parents, my grandparents, and my great grandparents, ‘Why segregation? Why racial discrimination?’ And they would say, ‘That’s the way it is. Don’t get in trouble…’ But when I heard the words of Dr. King, I knew then that I could strike a blow against segregation and racial discrimination, and I decided to get in trouble. I decided to get in the way. But it was good trouble, necessary trouble. Democracy is not a state. It is an act.”  

His final words of comfort and direction were printed in the New York Times on July 30, 2020: “Though I may not be here with you, I urge you to answer the highest calling of your heart and stand up for what you truly believe. In my life I have done all I can to demonstrate that the way of peace, the way of love and nonviolence is the more excellent way. Now it is your turn to let freedom ring."