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.