I was reminded recently of a post I published – when I was still studying law – about just and unjust laws based on Dr. Martin Luther King’s “letter from Birmingham Jail”. I thought that some of you might find it an interesting read as well, so I will republish it here.

In his “letter from Birmingham jail” Martin Luther King jr. writes about something he calls ‘just’ and ‘unjust’ laws. He makes a clear distinction between both of them.

In his words: A just law is a man made code that squares with the moral law or the law of God. An unjust law is a code that is out of harmony with the moral law.

He makes a distinction, that shares close resemblance to the philosophy of the Romans during their empire, they made a clear distinction between:

* Ius Gentium
* Ius Naturalis

Ius Gentium is ‘ius’ or ‘law’ that is universally practiced. For instance: When someone buys a certain product, one has got to pay for it, stealing is not allowed, nor is murder. In the time of the Romans, however, slavery was universally used and accepted as well.

Ius Naturalis means ‘natural law’ or ‘moral law’ (see resemblance with dr. King: exact same word). Certain things could fall under the Ius Gentium but not under Ius Naturalis. The best way of explaining the difference is slavery: Although slavery was universally used in their time (thus it was Ius Gentium), the Romans themselves condidered it in breach with Ius Naturalis or moral law.

Dr. Martin Luther King goes further to explain the difference between a just and an unjust law:
“Any law that uplifts human personality is just. Any law that degrades human personality is unjust.”

In the Roman empire they lived, mostly, by the Ius Gentium: Although they recognized that Ius Gentium was in breach, now and then, with Ius Naturalis.

Dr. Martin Luther King jr. however thinks different. He wrote in his letter:
“One has not only a legal but a moral responsibility to obey just laws. Conversely one has a moral responsibility to disobey unjust laws”

He is using the example of certain Nazi laws. The Nazis occupied my country (The Netherlands) as well as many other countries. They made and enforced terrible laws here. For instance: It was illegal to hide Jews in one’s home from the Nazis. But, if one hid a Jew dispite it being illegal, one saved a life: Jews that would get caught would be send to and imprisoned in camps. Mostly, of course, death camps.

This law is an example dr. King uses in his letter from Birmingham jail as well.

A law such as that is an unjust law he explains. For different reasons: It downgrades the individual, it makes a distinction between different ‘groups’ of people andsoforth. Thus; he condidered it to be the moral responsibility of people living in Nazi occupied countries during the second world war to ignore any laws like it.

Personally I agree with his entire letter. I also believe we have all got certain ‘natural rights’. In other words, to me there exists something like a ‘moral law’ or a ‘Godly law’. His explanation of what is just and what is unjust are exactly the same as my ideas about them.

Hence: personally I agree with him: This also means I personally agree that we have the moral responsibility to disobey any unjust, just unmoral law.

But as a law student I can not help but to ask certain questions:
* Can we afford such an attitude as law studetns, lawyers, judges, andsoforth?
* Should it not be so that a judge decides what laws are just and what laws are unjust?
* And should it not be politically and legally highly hypocritical if we did not give the same authority to people with a different interpretation of ‘just’ and ‘unjust’?
If we have the authority to decide what laws are just and what laws are unjust and by doing so disobeying certain laws, should not people with a different definition have that ‘right’ as well? If we would reason like that, would we not be opening the door to fascists to break laws they regard as ‘unjust’?
* Does this not polute and destroy our entire democratic / legal system?

I believe, like dr. King, that all of us have got certain unalienable rights. Rights that are detracted from ‘moral law’ or the ‘Law of God’. But I also believe citizens have got the duty in a constitutional democratic society to obey the laws of the country. When we, for instance, were occupied by the Germans, constitutional democracy was destroyed: Because this type of democracy was destroyed I believe every citizen in The Netherlands had the moral responsibility to fight against the Germans every way they possibly could.

But in a constitutional democratic country the situation is different. I believe that in a democratic society judges should decide what is just and what is unjust – better said; in our western constitutional democracies we have all got certain Constitutional rights and / or Human Rights. Our Constitutions are as close as we can get to codifying the moral, natural or Godly law in my opinion. In other words: If a law is unjust a judge should declare it so.

Also: The ‘people’ or perhaps I should say the majority decide what laws are ‘just’ and what laws are ‘unjust’. If a citizen disagrees with the existence of a certain law there are different ways of fighting that law legally. One could hold rallies against its existence, one could file petitions against its existence, one could run ‘for office’, the list continues.

In other words: In a constitutional democratic system, are there not enough legal ways of fighting an unjust law?

Well; yes. There are many ways of fighting them in our Western constitutional democratic societies but democracy also simply means the majority rules. In other words: The majority decides about what laws come to existence. Well: If the majority wants to make a law that is ‘unjust’ that law will probably pass, in the US for instance, Congress, but… it will not pass the Supreme Court. The Supreme Courts tests laws on the Constitution: are they constitutional? Like I explained; our Western Constitutions are as close as we can get to codifying moral law. Therefore; they are not only testing a law on its constitutionality, but also on its morality.

This would be the normal way of ‘checks and balances’.

But, in the time of Martin Luther King jr. (especially before that time though) the Supreme Court did not fully fulfil its duties. It did not fulfil its responsibility. The laws, for instance, that were in favor of segregation were clearly unconstitutional and thus unmoral and thus unjust. However; segregation existed for decades and decades.

In other words: In this constitutional democracy every branch who should defend the ‘constitutional’ part of the expression failed in the responsibility.

To take this even further; the ‘constitutional’ part of ‘constitutional democracy’ did not exist. It was a democracy, but no a constitutional one.

This post is getting way too long, so I will skip certain steps in the thinking process: One has got the duty to obey every law in a constitutional democracy, but when the constitutional part is taken out of it, or even the ‘democracy’ part of it as well, this duty does not exist anymore. Actually; in a society that is not a constitutional democracy anymore one has got the duty, or the responsibility as dr. Martin Luther King jr. calls it to re-install the constitutional part of a ‘constitutional democracy’.

What does this mean for me, other law students and those who work with / for the law? This simply means we should fight every unjust law legally at first. When a law is made that is unjust, thus unconstitutional, we should fight it: politically and legally; legally meaning in the courtroom.

Once that does not succeed, thus once every branch acts in breach of the Constitution, thus unjust, thus unmoral, it can only mean the constitutional part of a ‘constitutional democracy’ is under attack, or does not exist anymore. At that moment we, not just the ‘average citizen’ but legal scholars andsoforth as well, have the responsibility to disobey these unjust / unmoral laws any way we can.

I do not know whether this point of view makes me an outcast, so to speak, in legal circles. What I do know however, is that if I live like this, I will be protecting our Constitution, I will be defending (our) justice (system) and that I will always have a good and healthy conscience. Is not that what life is all about?

And if you all agree with this, what does this mean in the present day? What are the consequences of it now?

Michael van der Galien
Leave a replyComments (20)
  1. pqrynl October 9, 2006 at 5:19 pm

    My understanding is that the JURY is supposed to evaluate the law and the accused. These days, juries are instructed to be robots in service to the state. However, juries should also be evaluating the justness of the law and the associated punishment. Judges and lawyers have hiijacked and perverted this final check on the state. A juror is an agent of the people, not and agent of the state. Nullification IS a just reason for a jury fail to convict.

    Check out the Fully Informed Jury Association.

  2. Mikkel October 9, 2006 at 5:24 pm

    pqrynl I disagree (and MLK and Gandhi have explicitly stated this as well) about jurors deciding their verdict outside of the law. Their point is that if you have an unjust law, then each person charged under it must have a just jury for justice to be done. Bad laws are rarely changed when they don’t result in injust punishment. Thus, in order for true justice, the non-violent resistance movement will demand they are convicted for the laws which they have broken, so their suffering will compel change in the system and spare the weak and disorganized from suffering in the future.

  3. Ryan H. October 9, 2006 at 5:35 pm

    Addressing the question about whether judges (or juries) should be arbiters of moral law, I would emphatically say no, because everyone has a different opinion about what is moral and what is not. If someone agrees to be a judge, or agrees to be a jury, they are agreeing to uphold the laws that are on the books. You can of course refuse to serve as judge and jury if you disagree with a law, and face the ramifications. That’s called having the courage of your convictions, and is one of the reasons why people like Marin Luther King are so respected. Society functions because we have codified standards of what is right and wrong; challenging those standards and being willing to face the consequences of your stance is how movements begin and how opinions are changed. If laws are not followed, what would have been the lasting success of the Civil Rights movement? What would stop society in the future from deciding that segregation really isn’t such a bad thing? The fact that written law is followed despite the personal belief of the judge or jury ensures that the legacy of the Civil Rights movement is a successful one. The written law should be followed, but in those cases where one’s convictions run contrary to the law it should be challenged with a full understanding of the consequences to be faced.

  4. Mikkel October 9, 2006 at 5:45 pm

    Michael I think the Declaration of Independence is the best summation of loyalty to the rule of law but that ultimate authority is in natural law. It explicitly claims unalienable rights, addresses the grievances against the Crown, points out how the Colonies attempted to resolve their concerns peacefully and then declares independence because the system is broken. The twinning of the Constitution and Declaration is fascinating in my mind because the Constitution is the attempt to have a real world system that obeys the natural laws set out in the Declaration, while the Founders acknowledged that it would eventually fail. Many of them understood the importance of the rule of law to society but that Patriots were those that could walk along the tightrope and break the law (and face the consequences) when required by their Consciences. What I find most alarming about current events is the pathology displayed where the Administration insists on making its actions legal. If they feel their actions are truly necessary to save the public, they should have the courage to break the law and possibly face consequences; instead there is a moral cowardice where the rule of law is (implictly) held above moral law. If the Supreme Court does as well, then I personally feel it is the duty of people to resist; until that point though I remain cautiously hopeful and am concerned entirely with legal means. However, the vast majority of the populace is completely legalistic in their morality and will act against their own conscience (or twist it to get rid of the dissonance and not have to feel guilty). Again the idea of a peaceful resistance movement is that it is illegal but does not violate any one else’s natural rights and as such remains morally legal, so the general populace will be more open to supporting it. That’s the main difference between it and revolution; the end goal is a change in laws instead of destroying them.

  5. pqrynl October 9, 2006 at 5:47 pm

    From Quotes and Cases on Jury Authority

    It is admitted to be the duty of the court to direct the jury as to the law, and it is advisable for the jury in most cases, to receive the law from the court; and in all cases, they ought to pay respectful attention to the opinion of the court. But, it is also their duty to exercise their judgments upon the law, as well as the fact; and if they have a clear conviction that the law is different from what is stated to be by the court, the jury are bound, in such cases, by the superior obligations of conscience, to follow their own convictions. It is essential to the security of personal rights and public liberty, that the jury should have and exercise the power to judge both of the law and of the criminal intent.
    –Alexander Hamilton, from his argument in People v. Croswell, 3 Johns. Cas. 336 (1804)

  6. Darleen Click October 9, 2006 at 8:11 pm


    Juries are triers of FACT, not the law. Law is the province of judges and legislatures.

    It leads to all sorts of injustice when jurors put themselves above those that have passed and signed laws.

    Just last week I watched a jury bring back a “not guilty” in a murder case involving two gangbangers. Did the police have the wrong person? Did the DDA not prove his case?

    Not at all. The jurors outside the courtroom were quite forthright in saying they did believe that defendant, had indeed murdered the victim. But they believed his time served in jail w/o bail awaiting trial was “punishment enough” for merely murdering another gangbanger.

    They totally ignored the jury instructions of the judge.

    THAT is the kind of injustice you get when you think jurors are right to stand in the stead of judges, legislators and The People.

  7. nicrivera October 9, 2006 at 8:45 pm

    If a citizen disagrees with the existence of a certain law there are different ways of fighting that law legally. One could hold rallies against its existence, one could file petitions against its existence, one could run ‘for office’, the list continues.

    Unfortunately, resorting to the democratic process to overturn unjust laws rarely works in this country. As an example, consider the War on Drugs.

    During the 70s, President Nixon and a Democratic Congress passed the Controlled Substance Act, which initiated the federal government’s War on Drugs. Nothing in the Constitution gives the federal government the power to prohibit illicit substances, a fact the congress acknowledged circa 1920 when a constitutional amendment was required before congress could outlaw alcohol.

    Politicians in both major parties at the federal level have refused to do anything to address these unjust federal laws, and thus, voters in California and several western states have passed referendums to make Medical Marijuana legal.

    The result has been that justice department under both presidents Clinton and Bush have prosecuted citizens in California for using medical marijuana despite the fact that medical marijuana is LEGAL in California.

    So when people tell me “Well, if you don’t agree with the law, use the democratic process to change it,” I can only laugh. The referendum process is about as democratic as you can get. I think this just goes to show that politicians in Washington work to subvert not only basic freedoms but also the democratic process itself.

  8. pqrynl October 9, 2006 at 9:03 pm

    Darleen Click,

    It is the sacred right of juries to use their own discretion in rendering a verdict. The whole point of the Fully Informed Jury Association is to educate jurors: That the Judge IS NOT FULLY INFORMING YOU of your rights as a juror. The motivations of a jury ARE NOT SUBJECT TO REVIEW, and the jury room is as sacred as the voting booth.

    The current instruction given to the jury ARE BIASED TO GIVE MORE POWER TO THE JUDGE.

    I would rather have those gangbangers back on the street, than have someone issued a life sentance for a petty felony due to the third strike B.S. (third-strike status is not current revealed to juries, in my understanding.)

    By your logic, we should just try everone with a three judge panel, as they would probably be better able to discern facts.

  9. Mikkel October 9, 2006 at 9:17 pm

    pqrynl you haven’t addressed the concerns that juries thwarting judicial instructions can actually hurt the cause of overturning unjust laws.

  10. pqrynl October 9, 2006 at 9:28 pm

    Mikkel, good point. Are you asking: is it better to throw out laws on a case by case basis (as is a jury’s right), or to let an unjust law meter out a critical mass of unjust punishment where (hopfully) public awarness forces legislatures to change the laws?

  11. Mikkel October 9, 2006 at 9:41 pm

    Exactly. The latter is one of the core tactics behind the non-violent resistance movements. Several times the authorities tried to cut Gandhi or MLK a deal and they turned them down, saying that as long as the laws were on the books they must be applied. The idea is that many unjust laws are rarely enforced, but when they are they are often used as political weapons (and often against those that are too unpopular or vulnerable to defend themselves) and also that when you put the responsibility on individual juries then it puts immense amounts of pressure on them and they normally don’t have any support groups to give them strength, so the chance they will go against authority isn’t that large.

  12. Darleen Click October 9, 2006 at 9:45 pm


    You know, I bet you never have any experience with gangs, do you?

    Hey…look up California Penal Code 187 and then get back to me about that “bullshit* crack.

    Juries are TRIERS OF FACTS. Period. Not people who become tin-pot dictators. They are NOT to consider the sentence, they are NOT to consider the law.

    Thank GOD for “three strikes”. I’ll fight any effort to get rid of it. Prop 66 went down to defeat and I’ll campaign against any “son of 66″ that comes along.

    Have YOUR daughter threatened by gangbangers (my eldest is a paramedic) to kill her if she doesn’t save their homie and lets see how cavalier you are with the families of murder victims.


  13. Darleen Click October 9, 2006 at 9:55 pm


    Not to consider the law as in “should this even BE a law” Jurors are not in a court of law to render decisions that are the province of legislators.

  14. pqrynl October 9, 2006 at 10:07 pm

    Ghandi and MLK had big PR machines associated with their movements and agendas. I’m not sure this approach can work without it. When the injustice is metered here and there to the holy anonymous, where we (the public) only hear about an occasional transgression, I don’t think that enough public outrage will ever be generated to put pressure on legislatures.

    I feel, it is OK for me to take my burden to the cross (in the manner of Ghandi or MLK), but morally, just I can’t expect others to endure unjust punishment for the larger movements of justice.

    I would suggest, if juries were fully informed (including sentencing guidelines), a critical mass of not-guilty verdicts would force prosecutors to down regulate prosecutions and legislatures to align the law to a natural law until juries feel a conviction is just.

  15. pqrynl October 9, 2006 at 10:10 pm

    My take is that three strikes is unjust unless juries are informed and consider it in their deliberation. I’m reading your comments and will post more in a few.

  16. interested October 9, 2006 at 10:17 pm

    I would think that a judge that does not quote the full law to jurists renders the trial ready for an appeal by the loosing side.

    As such – Jurists are not supposed to legislate, they are there – a jury of the accused peers – to give the merits and facts of the case consideration and see if the charge(s) are met. Later you have sentencing which the jurists can also apply a sentence within a given range based on what the law allows for.

    Where the Supreme Court tests a law against the Constitution – the Jury tests the crime against the law (not the other way around).

    Although one point is correct – the Jury room should be as sacred as the voting booth. Equally right, we have to place confidence in our Jury of Peers to correctly decide if the merits of the case has been proven as no judge can tell a jury if the merits have been proven or not.

  17. pqrynl October 9, 2006 at 10:46 pm

    interested: Only convictions can be appealed, acquittals cannot. I’m not suggesting that juries “make up their own laws”, I’m saying that they do have the right to label the accused as “not guilty” for reasons other than “they do not meet the criteria for conviction.”

    darleen: I’m sorry your family had a frightening experience with a severely distressed urban black man who was watching his “homie” die in front of him. However, I do not see how this extends to justifying life imprisonment for a third-strike criminal on a petty felony (unarmed stealing, etc…).

    A primary beauty of the jury system, to me, is that the jury is endowed with the right, and therefore the power, to subvert the injustices of the legal machine. Yes, this system will err, but I rather it meter out undeserved freedom on occasion than immoral incarceration with regularity.

  18. Mikkel October 9, 2006 at 10:46 pm

    I would suggest, if juries were fully informed (including sentencing guidelines), a critical mass of not-guilty verdicts would force prosecutors to down regulate prosecutions and legislatures to align the law to a natural law until juries feel a conviction is just.

    The thing is that the vast majority of people aren’t at that level of moral reasoning, they are on stage four of Kohlberg’s moral reasoning scale. Combine this with the many studies done on the propensity to submit to authority (even at the expense of a stranger that the person feels neutrally about) and I am unconvinced that a critical mass is likely to form.

    It is definitely a fair assertion to say that you can’t expect individuals to endure unjust punishment for the larger movements, and also fair to point out that not all issues will have civil rights era movements behind them. Balancing individual fairness with universal justice is definitely tricky and I have no answer to it, but even your suggested ideal method requires a large spontaneous movement that creates a large PR machine and would lead to the conviction of many people unjustly. I’d also like to point out that laws can only be reviewed by the courts when someone is convicted, and many social movements have gotten lots of power from a successful appeal (even if it was for a technical issue).

  19. C Stanley October 10, 2006 at 8:15 am

    A very interesting post, and the comments took a different turn than I would have expected. I never would have anticipated the view that juries should take matters in their own hands in regard to unjust laws. While I guess I can understand that view, it seems a bit like vigilante justice to me, and I also agree with Mikkel in that a more unified reform can better come about through juries upholding the law and then letting the appeal process point out the discrepencies of morality in the law. The entire discussion is very enlightening, though, in terms of the degree to which we can fight unjust laws; does the populace really have enough power to injustice through the system of legal checks and balances? Maybe not, or at least not until the system tilts so far toward injustice that it creates a groundswell of popular opposition to unjust laws.

  20. C.Prez October 10, 2006 at 9:56 am


    Your point is moot. *I* have been robbed at gunpoint in the hood. For EIGHT DOLLARS, mind you. Am I mad at them? Somewhat, but not really. Do I want to throw the book at them? Not really, it’s a lot of broke people where I’m at in the hood. I don’t condone it, but people need to eat, and it’s a lot of tension living day to day struggling to make it in a place where society doesn’t want the people living there to make it. THAT is the hood, Darleen. I live here in the hood. I see this every day. Whereas you don’t. Who are YOU to say “Let’s throw the book, I can’t stand those ghetto negro pieces of trash.” I’d love to take you for a tour around the hood. Maybe it’d change your opinion instead of using probably exaggerated (sp?) second-hand knowledge of the hood. Get your mind right, lady.