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?