As a legal academic I have often been asked when it becomes legally possible to disobey unjust laws. This appears to be an important question, especially in these days of arbitrary government and constant violations of fundamental rights.
So, when does it become legally valid to disobey unjust laws?
Perhaps I could start with Dr. Martin Luther King Jr., the legendary leader of the American Civil Rights Movement in the 1960s. When King decided with his colleagues at the Southern Christian Leadership Conference (SCLC) to peacefully march on Good Friday 1963 in Birmingham City, a judge issued a prohibition order on behalf of city authorities.
King ended up being arrested for refusing to comply with that judicial order. Since he was asking supporters to obey laws that outlawed racial segregation, at first glance it may seem paradoxical for him to consciously break laws.
One may ask: “How can you advocate breaking some laws and obeying others?”
In answer to this, King replied:
The answer lies in the fact that there are two types of laws: just and unjust. One has not only a legal but a moral responsibility to obey 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. Now, what is the difference between the two? A just law is a man-made code that squares with the moral law or the law of God. An unjust law is out of harmony with the moral law. To put it in the terms of St Thomas Aquinas, an unjust law is a human law that is not rooted in eternal and natural law.
Laws Can Be Illegal
By appealing to St Augustine and St Aquinas, King was faithful to the spirit of the American Republic and convinced that some laws are illegal in a more profound sense: they violate the law as they fail to accord some people the same benefits and prerogatives that pertain to them precisely as human beings.
Augustine of Hippo insisted that “a law that is unjust is not seen to be law at all.” When devoid of justice, he argued, a government is no better that a mere system of organised banditry: “For what are robberies themselves, but little kingdoms?”
St Thomas Aquinas is also mentioned by King. Like St Augustine, St Thomas considered that “if in any point [a law] deflects from this law of nature, it is no longer a law but a perversion of the law.”
An American legal scholar, the late Charles E. Rice, once commented that “[St Thomas’s] insistence that the power of the human law be limited implies a right of the person not to be subjected to an unjust law.”
Whatever one makes of these arguments, this form of “higher law” jurisprudence has been firmly enshrined in some of the most important documents in Western legal history, including the English Magna Carta (1215), the UK Bill of Rights (1689), and the American Declaration of Independence (1776).
Accordingly, when the legitimate government is constitutionally established, such government “hath no other end but the preservation of these rights, and therefore can never have a right to destroy, enslave, or designedly to impoverish the subjects.” These were the famous words of John Locke, the English philosopher who played an enormously important role in the development of modern constitutionalism.
As Locke put it:
“Whenever the legislators endeavour to take away and destroy the rights of the people, or to reduce them to slavery under arbitrary power, they put themselves into a state of war with the people, who are thereupon absolved from any further obedience, and are left to the common refuge which God hath provided for all men against force and violence.”
Standing Up to Unjust Laws
The American Founding Fathers relied very heavily on Locke’s phraseology to draft their 1776 Declaration of Independence.
First, a “long train of abuses” and the “consent of the governed” are evoked as the primary basis for resisting an arbitrary government.
Thus, the document concludes by declaring that “whenever any form of government becomes destructive of [the preservation of inalienable rights], it is the right of the people to alter or to abolish it, and to institute new government.”
As such, the option of disobeying unjust legislation falls within the Western legal tradition of resistance against political tyranny.
The notion that public officers must enforce every legal command of the state, regardless of how abusive, unjust, or unconstitutional; this might be, is dangerously destructive to the principles of constitutional government.
First detailed in the Magdeburg Confession of 1550, the doctrine of interposition by public officers holds that “when a ruler violates his oath of office, he is in a state of rebellion and forfeits his lawful authority. Other (perhaps lesser) magistrates may then raise their standard against him to restore constitutional rule.”
Accordingly, public officers have a lawful duty to protect basic individual rights, and not to mindlessly follow the positive law.
Even when the “lesser” magistrate disobeys unjust laws, they benefit those in superior authority because their disobedience gives such authorities the opportunity to turn from their unjust deeds.
Of course, people working in the government are not mere machines for an all-powerful state. They are human beings, and they have consciences.
Therefore, the doctrine of interposition by public officers communicates that when the higher authority issues an unjust or immoral law, the lower authority has both the right and duty to refuse obedience.
For example, on May 21, 2020, a Michigan judge allowed a barber to keep his business open despite a licence suspension, a cease-and-desist order, and a temporary restraining order from the state’s attorney general.
When this happened, the state attorney general dared to say she had no plans to arrest a plaintiff who was being “selfish” for trying to keep his business open so he could financially provide for his spouse and children.
About a year ago, the authorities in New York City fired more than 1,700 employees for being unvaccinated after the city adopted compulsory vaccination under former Mayor Bill de Blasio.
On Oct. 24, 2022, a Justice of the New York State Supreme Court (pdf) exercised his duty of interposition by ordering all NYC employees who were fired for not being vaccinated to be immediately reinstated with back pay because such a mandate was “arbitrary and capricious” as it violated “equal protection rights.”
Arguably, higher authorities bent on arbitrary government will never want to recognise the legitimate right of lesser public officers to disobey their unjust laws. Of course, when “lesser magistrates” interpose against these unjust commands, there will be a fight.
The role of the people is to rally behind these brave public authorities when they finally take a stand against arbitrariness. Although they certainly have jurisprudential and constitutional precedent on their side, these conscientious authorities often will not act until we can plead their case, and they are entirely assured of our uncompromising support.
Views expressed in this article are the opinions of the author and do not necessarily reflect the views of The Epoch Times.