In class today, I was reminded of Dr. King's "Letter from Birmingham Jail" (available here for those who have not read it before: http://www.africa.upenn.edu/Articles_Gen/Letter_Birmingham.html), which I read at the beginning of last semester in conjunction with Walker v. City of Birmingham for the first assignment for Civil Procedure. In Walker, the Supreme Court upheld contempt charges against protesters who disregarded an injunction preventing them from gathering to march or conduct civil rights demonstrations without a permit. The protesters, believing that the injunction was unconstitutional, disregarded it so that they could hold long-planned demonstrations on Good Friday. The court's holding evinces the concern for stability and order that some were alluding to in class today. It suggested that individuals who seek to challenge a law they believe to be unjust must do through the procedure of the courts; challenging an unjust law by disobeying it is not socially acceptable.

King's letter takes a pointedly different view. I would encourage everyone to read it who has not already done so because I would do a disservice in trying to paraphrase, but the main premise is that there is a difference between unjust laws (any law that degrades human personality, any law that the numerical majority compels the minority to follow but does not follow itself, a law out of harmony with moral, natural, or eternal law, any law that is inflicted on a group denied political representation) and just laws (any law that uplifts human personality, that the majority follows, that is in harmony with moral, natural or eternal law). One has a "moral responsibility," King says, to disobey unjust laws. He further states that "one who breaks an unjust law must do so openly, lovingly, and with a willingness to accept the penalty...an individual who breaks a law that conscience tells him is unjust, and who willingly accepts the penalty of imprisonment in order to arouse the conscience of the community over its injustice, is in reality expressing the highest respect for law."

Both Dr. King and John Brown openly challenged the unjust law and accepted the penalty. Whether Brown did so "lovingly" is perhaps question I can't answer based on the limited reading that we had, but it seems a plausible inference given that he gave up that which was most dear to him (his children, followed by his life) for the principle that the law of slavery was wrong. Whether a purported social change agent operates from a place of love is, to me, the fundamental distinction between an abortion clinic bomber, those who hijack airplanes and fly airplanes into office buildings, my neighbors in Southern Arizona who take potshots at the border crossers in the desert in the name of defending this country against "illegals," and the John Browns and Dr. Kings. This is a troubling difference though, because the law doesn't appear to make room for such flimsy matters.

Please note that I wrote this concurrently with Joseph's post "Deciding in the Present" (http://emoglen.law.columbia.edu/twiki/bin/view/LawContempSoc/DecidingInThePresent). I think both ideas could be merged under one topic because this post represents a potential answer to the questions Joe raises at the end of his post, but I'm not sure how to do that. Thanks to anyone who can help.

-- JessicaWirth - 28 Feb 2012,

I was also reminded of Dr. King's letter, and thought it was interesting compare King's achievement of his goal through civil disobedience and Brown's achievement of his goal through whatever force he deemed necessary. The full discussion of their comparative methods would probably be lengthy, but I couldn't help thinking that King had technology on his side. Brown had no system of instantaneous communication with those he might consider his allies, so for him to gather the 2-3 people that might support him in each village probably made less sense than gathering a small contingent of vetted soldiers and fighting to free slaves by force. Still, if the speed and capacity of communication in Brown's day were comparable to at least the telephonic capacities that King had at his disposal, I would entertain the idea that he might have been able to gather up enough supporters to at least overcome the label of insanity that the press placed upon him; I think the press would have a harder time labeling a thousand men insane than nineteen. Then again, perhaps speed of communication was not a crucial element, since Thoreau didn't seem to indicate that the 2-3 people in each village were in any hurry to put their lives in danger for a principle.

I had some trouble extending this idea of a John Brown to modern day. With the advent of the internet and cheap communication, everybody who has a strong belief in anything can get their ideas out to the public, and perhaps even gather a small contingent. If the (relative) anonymity of the internet allows people to discuss and develop ideas, to get beyond the superficiality of the daily routine, then aren't the wheels of justice greased by this, so that if an idea or action will promote justice, it will have the capacity to go viral? I had some trouble extending this idea of a John Brown to modern day. With the advent of the internet and cheap communication, everybody who has a strong belief in anything can get their ideas out to the public, and perhaps even gather a small contingent. If the (relative) anonymity of the internet allows people to discuss and develop ideas, to get beyond the superficiality of the daily routine, then aren't the wheels of justice greased by this, so that if an idea or action will promote justice, it will have the capacity go go viral? Or is that just hopeful thinking, and the more likely course of events is that the world-changing ideas poured out into cyberspace will be drowned out by people trolling the internet for laughs?

-- KirillLevashov - 28 Feb 2012

I'm struggling to reconcile Brown's violent means and just ends. What are we, as aspiring creative lawyers, supposed to learn from Brown's actions? That violence is one of the tools we can (and/or should) use to do justice in the world? I think I agree that violence is sometimes necessary, but who gets to decide when violence is warranted? Brown seemed to have decided on his own. I don't think people should individually be able to play judge and executor--this seems antithetical to justice altogether.

-- DanielChung - 28 Feb 2012

It's also worth comparing Brown's ideology to that of Malcolm X. In response to what Kirill wrote, while King's access to technology was a reason why his nonviolent strategy was successful, there were still many figures within the black community who rejected his approach. Unlike MLK, Malcolm X (at least for the majority of his career) advocated a more aggressive and confrontational strategy to fight against racial discrimination. While he did not explicitly advocate violence against his adversaries, he emphasized the need for African-Americans to arm themselves and be prepared to fight back in self-defense. Similarly to Brown, he had an unfaltering belief in his cause and was willing to achieve his goals even though his tactics were not embraced by the majority of Americans. Both him and Brown viewed violence as an unfortunate, but at times necessary means to accomplish their objective. The importance of Brown today is for us to maintain a set of core values and beliefs that we would feel strongly enough to defend even if we are faced with strong opposition and public backlash. Lawyers are often criticized in society for altering their morals and perspectives to fit the needs of their clients. Brown's actions should encourage us to stand on our own in situations in which it is unpopular and difficult to do so.

-- ManuelLorenzo - 29 Feb 2012

Like Daniel, I have a little bit of trouble figuring out how to think about John Brown's violence and means to his ends. Ultimately, there are some things (like slavery) that it's easy for us to call extremely morally wrong. And so looking at Brown's actions as struggle for a moral and objectively right cause, where there was no effective internal political process to make changes in a nonviolent way, I agree with Thoreau's speech and find Brown to be inspiring and valiant. However, there are things that are less objectively moral, and means that are going to be less objectively reasonable. Can we really let one man be the judge and jury of what morality in our society is? As brave and inspiring as we can call Brown's actions now, I still have a hard time saying that we shouldn't still punish someone in his position. He can be judged through the court of public opinion and history, and through that medium his message can be heard and the social change he sought can be effected. It seems to me any "radical" operating outside the confines of the system to such an extreme extent (involving killing) still needs to be dealt with through the system and that the positive effects of their actions occur after/separate from these system-specific consequences. I admire Mr. Brown a great deal and support his actions completely. But I can't justify giving so much power to one man, and so in such circumstances I don't think punishment should be withheld just because the actor is in the right.

--Main.JohnBarker - 29 Feb 2012

I wanted to revisit this thread to add Sandra Fluke into the mix and see how the conversation in class today might have influenced people's ideas about acceptable and effective types of social action. My reading of the posts over the past week and class discussion is that two initial issues that arise if you accept the premise that we, as people and as aspiring lawyers, have a moral obligation to act against injustice: the first issue is whether there is a universal understanding of what makes a law or social regime unjust such that action is warranted; the second is how then we ought to act to do justice. Assume that Dr. King's definition of an unjust law (I referenced it in the first post) is sufficient as an answer to the first issue. I recognize that it probably is not and that we would want to work toward a more comprehensive or clearer understanding of what he means. This is a conversation I would be interested in having but I am trying to avoid here for brevity's sake. The more interesting question to me presently is the "then what," or what it then means to do act to do justice.

I am frustrated because I don't feel like I understand what doing justice actually means in a tangible way (I have been fixating on this to avoid the thornier question of courage, but I doubt I can avoid that for much longer). Like Daniel and John, I'm broadly uncomfortable with the concept of violent action to counter injustice, but I recognize it has a place where the state is marshaling violence as part of policy to keep its people in a state of oppression. Slavery is obvious example, but so are present conditions in Syria, and, I would argue, China's actions in Tibet. A hundred or so "Free Tibet" concerts have not, in fact, served to do so. But violence is probably not an acceptable response to a particular act of legislative injustice - for example, Arizona's SB 1070, which sanctions racism and which I feel strongly is an unjust law by any definition, or a piece of legislation that allows a group of employers to systematically deny women access to contraceptives (getting around another piece of legislation which would have required all employers to include it in their coverage), which is what Ms. Fluke was testifying about that led Limbaugh to call her a "slut" and a "prostitute." I'm skeptical about the responsiveness of the political system to those of us without SuperPACs? and I'm skeptical that politicians care about what is right when they have reelection, fundraising, and the party line to be concerned about. Another option is organizing a social uprising, like an Occupy Wall Street or a Tahrir Square. Those types movements can be successful, particularly if they leverage new platforms to communicate information about goals and strategy as Kirill mentioned, but they require sustained energy and street-level passion. They also fail, it seems, more frequently than not: they loose focus or aren't focused enough; they get co-opted and branded; they fall prey to city zoning and a populace that wants fewer bongo-playing sessions at 3 a.m. or is content with stability at whatever cost or is scared of retribution. Then there are the courts. I would be redundant of Holmes and Cohen to spend time evaluating their shortcomings. You can also go after the money, which is what the people who are trying to get advertisers to pull out of Limbaugh's show are working at. That might eventually limit the potential audience of a misogynistic megalomaniac and would strike a moral tone of correctness (the evildoer getting his comeuppance), but it doesn't clearly translate to getting women access to health necessities - to the justice need.

So my question remains - even if you have the courage, then what?

-- JessicaWirth - 06 Mar 2012

This is a really interesting thread. During the week we were reading about John Brown, I kept asking myself whether I could relate to what John Brown did and whether I could do something like that for a cause I truly believed in. I had a hard time accepting comments made in class that because there was massive and systemic violence being perpetrated by the slave-owning classes on the slaves the lives lost through the actions of John Brown were somehow justified or inevitable. This Hammurabi-style argument is, I think, not only ineffective but also inhumane. Killing 10 people in order to save 1000 is in no way justified or heroic no matter how important the cause. The value of life is not quantitative and the innocent that were killed should not be deprived of life in order to save others without choosing to do so. I feel like a lot of what I learn from this class tells me to be rebellious and radical- fight the system from the outside. I think the problem is not that people are not rebellious/radical but that they complain without doing anything. I feel like there is plenty of fighting to be done inside the system. Politicians never truly listen to the poor but they listen to the well-educated experts on poverty, who ostensibly have better knowledge of poverty than the poor. I decided to come to law school to learn to change the system from the inside so that people do not have to engage in acts of violence in desperation.

-- SoYeonKim - 17 Mar 2012

Jessica, I’m not providing an answer to your last question as much as I’ll just add more to think about, but I think you should recognize that your question of “even if you have courage, then what?” is a good one because I think this is where Eben want us to be. In my view, he wants us to feel uncomfortable, frustrated, and maybe even guilty about where we are now and where we should be headed.

But, like you, I also wonder what it is to meaningfully contribute to social justice. What does that look like, particularly for folks who are working two jobs, or are working parents, or have sick relatives to take care of at home? The simple reality is that these are serious obstacles for many people in deciding whether to take it to the street. When there are legitimate hardships that prevent us from taking that extra step, I wonder how those of us in that position can still incorporate even just a little piece of John Brown in our lives.

I thought the Kony 2012 Campaign by Invisible Children offered an innovative and accessible channel to do justice. I really identified with the way the movement recognizes that a vast majority of Americans want to make some sort of social impact but just don’t know how or where to start. The campaign also culminates with supporters actually going to the streets, putting up posters and signs about the cause. But then the NYT has this really provocative debate the questions whether it can be really said that supporters are fighting for a cause “without leaving the couch?” Are supporters getting a “false sense of accomplishment” that they are taking real action from putting up posters and wearing “Kony 2012” bracelets? TMS Ruge, a Ugandan social entrepreneur, thinks so and argues that “[t]he world isn’t that simple or easy to fix. The campaign missed a huge opportunity to instill agency in Uganda’s civil society, to encourage citizens to act on their own behalf. That would have been hugely transformative. But instead, Ugandans are left wondering, ‘What is this?’” In response, Lisa Shannon, a social activist, has one basic message: “Awareness can inspire action.” She points out that one of the greatest obstacles for bringing down Kony and other problems in Africa has been the silence. Aren’t supporters taking action by making Kony “famous,” as the campaign calls it? Then again it’s easy to raise your voice against a war criminal when you live in another continent. On balance, I sympathize with Ruge’s position and critics like him because they’ve challenged me to look into the crimes in Uganda that are much more complicated than what the 30 minute video that Invisible Children presented; however, I tend to agree with the “awareness inspires action” view. I wonder if it’s because of my own guilt for not being able to do something more. But for the most part, I agree with Shannon's view because it recognizes that becoming an advocate and activist for social justice sometimes takes a step in the right direction. It can start with putting up a poster or two and seeing where that takes you and what that inspires you do to going forward.

-- LizzieGomez - 18 Mar 2012