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It is strongly recommended that you include your outline in the body of your essay by using the outline as section titles. The headings below are there to remind you how section and subsection titles are formatted. | | | We the People as the rule of recognition | |
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< | In his treatise on legal positivism, The Concept of Law, H.L.A. Hart argued the validity of laws regulating human conduct could be identified by a generally accepted "rule of recognition." According to Kent Greenawalt, the rule of recognition "expresses society's ultimate criteria for what counts as law." In the United States, this standard is largely rooted in but not limited to the U.S. Constitution. If the mid-nineteenth century rule of recognition were to afford legality to Thoreau's actions in 1849 or Brown's in 1859, a first step might be to find a mechanism through which to place contemporary notions of equality within the pre-Reconstruction Constitution, beyond the narrow interpretations then provided by the Supreme Court. | >
> | In his treatise on legal positivism, The Concept of Law, H.L.A. Hart argued the validity of laws regulating human conduct could be identified by a generally accepted "rule of recognition." According to Kent Greenawalt, "in the United States, the rule of recognition is largely rooted in the U.S. Constitution." If the mid-nineteenth century rule of recognition were to afford legality to Thoreau's actions in 1849 or Brown's in 1859, a first step might be to find a mechanism through which to place contemporary notions of equality within the pre-Reconstruction Constitution, beyond the narrow interpretations then provided by the Supreme Court. | | | | |
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< | Bruce Ackerman suggests the reference to "We the People" in the preamble of the Constitution provides an implicit means of constitutional amendment preceding the formal processes spelled out in Article V. Ackerman cites "constitutional moments," defined by a sharp rise in political consciousness and mobilization among a normally passive citizenry, as periods where a sea change in the popular will paves the way for formal constitutional amendment. The events leading up to and through the Civil War, in Ackerman's opinion, were the second of three such moments since the Constitution's inception. Thus, if we accept the "We the People" scheme within the Constitution and, thus, the rule of recognition, it is possible that slavery may have been deemed unconstitutional through the preeminent will of the people well before it was recognized by the Reconstruction amendments. | >
> | Bruce Ackerman suggests the reference to "We the People" in the preamble of the Constitution provides an implicit means of constitutional amendment preceding the formal processes spelled out in Article V. Ackerman cites "constitutional moments," defined by a sharp rise in political consciousness and mobilization among a normally passive citizenry, as periods where a sea change in the popular will pave the way for formal constitutional amendment. The events leading up to and through the Civil War, in Ackerman's opinion, were the second of three such moments since the Constitution's inception. Thus, if we accept the "We the People" scheme, it is possible that slavery may have been deemed unconstitutional through the preeminent will of the people well before it was recognized by the Reconstruction amendments. | | | We the People as the justification for resisting an unjust government
It seems reasonable to conclude that the popular will regarding slavery did not change overnight; there was, if anything, an escalating public opposition that coalesced in the 1830s and peaked during the Civil War. Notably, the relative calm of Thoreau's call to civil disobedience compared to Brown's more aggressive armed attack ten years later seems to trace a rising arc of anti-slavery sentiment. However, even if one assumes the popular will reached a critical mass for informal amendment at some point prior to the Civil War, how does one justify John Brown's more violent efforts to free slaves? | |
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< | The public fallout of Brown's attack on Harper's Ferry eclipsed that of Thoreau's call for tax resistance. Aside from Thoreau's A Plea for Captain John Brown, little editorial sympathy could be found in the press. Brown's attack was largely depicted as a misguided, wild, and apparently insane effort. However, a lack of editorial support for civil disobedience in 1859 does not mean public support was not altogether present. Rather, perhaps the popular will was aligned with the ends sought by these protests, but could not yet accept the more extreme means chosen. This important distinction between the means and the ends of civil disobedience did not go unrecognized by Martin Luther King Jr. a century later. Inspired by Gandhi's nonviolent approach to dismantling British rule in India, King emphasized that non-violent (though often illegal) protest could tip the popular will in favor of civil rights, which it ultimately did. Thus, it seems that any legality afforded to extra-judicial resistance depends on many factors, not the least of which include the form of the resistance sought, and the seriousness of the oppression met. | >
> | The public fallout of Brown's attack on Harpers Ferry eclipsed that of Thoreau's call for tax resistance. Aside from Thoreau's A Plea for Captain John Brown, little editorial sympathy could be found in the press. Brown's attack was largely depicted as a misguided, wild, and apparently insane effort. Perhaps the popular will was aligned with the ends sought by these protests, but could not yet accept the more extreme means chosen. This important distinction between the means and the ends of civil disobedience did not go unrecognized by Martin Luther King Jr. a century later. Inspired by Gandhi's nonviolent approach to dismantling British rule in India, King emphasized that non-violent (though often illegal) protest could tip the popular will in favor of civil rights, which it ultimately did. Thus, it seems that any legality afforded to extra-judicial resistance depends on many factors, not the least of which include the form of the resistance sought, and the seriousness of the oppression met. | | | Would Thoreau agree with this attempt? | |
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< | In order to fully justify Thoreau and Brown, many practical difficulties must be overcome: 1) It must be accepted that "We the People" in the preamble of the Constitution is a part of the rule of recognition, 2) A workable standard to identify the will of the people must be found, and 3) "We the People" must be capable of providing an extra-judicial method to challenge the status quo. In fact, these difficulties all stem from an inherent difficulty of legal positivism: it is based on a formalistic scheme lacking in substantive moral value. Thoreau's main appeal was that people had an moral obligation to reject injustice, which is not an obligation that can be found within the positivist perspective. Rather, for Thoreau, that obligation may come at the cost of legality: "[i]t is not desirable to cultivate a respect for the law, so much as for the right. The only obligation which I have a right to assume is to do at any time what I think right." If he were alive today, chances are he would tell me to stop writing and do something instead. | >
> | In order to fully justify Thoreau and Brown, many practical difficulties must be overcome: 1) It must be accepted that "We the People" in the preamble of the Constitution is a part of the rule of recognition, 2) A workable standard to identify the will of the people must be found, and 3) "We the People" must be capable of providing an extra-judicial method to challenge the status quo. In fact, these difficulties all stem from an inherent difficulty of legal positivism: it is based on a formalistic scheme lacking in substantive moral value. The concept of "We the People" may create some room for manipulation, but it has its limits. For one thing, "We the People" is not always right. At least when the rights of a discrete and insular minority are involved, a simple majority rule may not be trustworthy. For another, human rights protection should not be limited to "Constitutional moments." For example, the Supreme Court's most important decision on Equal Protection, Brown v. Board of Education, did not come at any Constitutional moment. | | | | |
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> | Thoreau's main appeal was that people had a moral obligation to reject injustice, which is not an obligation that can be found within the positivist perspective. Rather, for Thoreau, that obligation may come at the cost of legality: "[i]t is not desirable to cultivate a respect for the law, so much as for the right. The only obligation which I have a right to assume is to do at any time what I think right." If he were alive today, chances are he would tell me to stop writing and do something instead. | | | | |
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< | Wenwei- | | | | |
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< | I liked the ambitious goal of your essay. There are a few key changes I focused on during revisions: | >
> | Michael- | | | | |
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< | 1) I think the more interesting point of discussion is the contrast between positivist and moral justifications for an act, rather than engineering a positivist justification alone. I tried to provide a groundwork for engaging in that discussion given the context (Thoreau & Brown) provided. | >
> | Your revision made this essay tighter but preserved the main idea of it. Thank you very much!(Hope you are still reading the website and find my thankfulness.) | | | | |
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< | 2) You argue that it is very difficult to accept extra-judicial protests under the positivist mode of thought, because of the complexity of the assumptions required. But then you conclude by saying none of that really matters because there is an underlying flaw in positivism -- its ignorance of moral value. I imagine you intended to demonstrate the weakness of the positivist argument to show why a moralist conclusion is inevitable. But, I think this technique leaves the reader wondering why they bothered reading the preceding 900 or so words. Instead, I tried to allude to moral bases during the positivist portion of the argument so as to better foreshadow the conclusion you ultimately reached. | >
> | I agree with you that it is more interesting to discuss the contrast between a positivist approach and a substantive moral value, so I added a few words in the last paragraph about the fact that moral values may not be embodied in the "We the People" scheme. Other than that, I didn't make any major revision because my ideas in the original essay were largely kept by your revision. However, I'd like to share some of my latest thoughts on this topic. | | | | |
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< | 3) Though citations aren't required, I think it is important to provide as many direct links to online resources as you can, so that the reader can refer to the materials you rely on in making your argument. Links make the reading experience more dynamic, and help clarify the complex ideas addressed. Take full advantage of the html medium. | >
> | I visited Paris the past weekend and acquired some more knowledge about the French Revolution. Before the insurgents stormed the Bastille, they at first invaded the Hotel des Invalides to gather arms. Wasn't it similar to John Brown's plan? Brown's attack had exactly the same purpose: the 100,000 rifles and muskets in Harpers Ferry. In our class discussion, it can be seen clearly even today some people still think Brown's act could not be justified, because several people got killed in the course; he should have resorted to a more peaceful means. However, many more people died in the storming of the Bastille, and I don't see anyone in France doubting the legitimacy of the French Revolution. Is there any inherent difference between the two struggles for equality? I can only find one: the French revolution was for the equality of the majority, while Brown's attack had a narrower focus to help an exploited minority. | | | | |
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< | That all said, you can use the history function to compare this edit to your original copy. I'm happy to answer any questions you may have. | >
> | That's exactly the reason why I said in the paragraph added that "We the People" may not be trustworthy. There is no reason why a struggle between an exploited majority and the nobles is acceptable, but one between an exploited minority and the majority is not. | | | | |
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< | -Michael | >
> | -Wen-Wei | | |
You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable. |
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