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Did Thoreau and John Brown Violate the Law?

-- By WenweiLai - 17 Apr 2010

The Declaration of Independence unequivocally stated, "All men are created equal." Yet, the early Constitution permitted slave importation for 20 years after its ratification. Further, domestic slave trade did not become a constitutionally barred practice until the 1865 passing of the 13th Amendment. While the intervening years were largely marked by moral ambiguity regarding the rights of men, rare men like Henry David Thoreau and John Brown took to civil disobedience in protest. For Thoreau, it meant tax resistance with the penalty of imprisonment. For Brown, it meant armed insurrection with the penalty of death. In Thoreau’s words, "Law never made men a whit more just; and, by means of their respect for it, even the well-disposed are daily made the agents of injustice." Thoreau and Brown knowingly partook in demonstrative violations of the law, yet each did so having a zealous and wholehearted belief that his position was the moral high ground. Embracing the views of legal positivism, this essay searches for legal justifications to their transgressions prior to the Reconstruction Amendments engendered by the Civil War.

We the People as the rule of recognition

In his treatise on legal positivism The Concept of Law, H.L.A. Hart posited that the validity of laws regulating human conduct can 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 based on but not limited to the U.S. Constitution. Thus, to find legality in Thoreau's cause in 1849 or Brown's in 1859, a first step might be to foreclose the notion that the Constitution of their day did not embody a broader concept of equality.

Bruce Ackerman has suggested that the reference in the preamble of the Constitution to “We the People” provides a means for amendment other than Article V: when a “Constitutional moment” arises, the people are highly mobilized and paying much more attention to the Constitution than usual, and the Constitution can be amended implicitly. The Civil War, in Ackerman’s opinion, was exactly such a moment. Even without the enactment of the Reconstruction Amendments, slavery was declared unconstitutional by the people’s will. If the “We the People” scheme can be accepted as part of the rule of recognition, then positivists may agree there was a possibility that the acts done by Thoreau were legal. (I say “possibility” because it is far from clear that “the People” as a whole in 1849 would accept Thoreau’s civil disobedience.)

We the People as the justification for resisting an unjust government

My use of the word “possibility” shows the first problem with this approach: how can we identify the will of “We the People?” According to Hart, the rule of recognition is a legal standard that judges and other government officials can apply. A clear standard to identify the people’s will must be developed before “We the People” can become part of the rule of recognition. Secondly, even when we assume that there was a will outlawing slavery, it did not necessarily mean every act done against slavery was legal. For instance, property rights do not always include the right of self-help. Since Ackerman’s book has plenty of discussion about determining when the mobilized “We the People” warrants implicit amendment, I will focus this essay on the second question: after we recognize the unconstitutionality of slavery even before Civil War, how can we justify Thoreau’s resistance, or even John Brown’s more violent efforts to save slaves?

Slavery was not constitutional, and then? The model answer from a positivist would be: they should go to court, which is the route identified by the rule of recognition. Dred Scott v. Sanford (1857) told us, this was not plausible. Since “We the People” can be part of the rule of recognition, it might also recognize some extra-judicial means as legitimate. Did the people in 1849 agree with the extra-judicial means? Probably not. From Thoreau’s plea for John Brown, we see nothing but indifference from the people. Even in the North, where people generally thought there was something wrong about slavery,” not a single expression of sympathy for John Brown could be found in the newspaper.” The idea was, it was a misguided, wild, and apparently insane effort. However, a lack of general support for civil disobedience in 1849 does not necessarily mean it is theoretically impossible. There have been various examples succeeding in mobilizing the people across the world, the most famous of which was the one led by Gandhi. Therefore, “We the People” as the rule of recognition might recognize the legality of resistance, but it depends on many factors, such as the form of the resistance (had Gandhi adopted more violent measures, he would not have so broad a support from all walks of life), and the seriousness of the oppression.

Would Thoreau agree with this attempt?

It is theoretically possible to justify resistance, but many practical difficulties must be overcome: 1) It must be proved that the three words “We the People” in the preamble of the Constitution can be part of the rule of recognition of the country. 2) A workable standard to identify the will of “We the People” must be found. 3) “We the People” must support the extra-judicial means to change the illegal status quo. In fact, these difficulties all stem from the inherent difficulty of legal positivism: it is based on a formalistic scheme and is lacking in a substantive moral value. Thoreau’s main appeal was that people had an obligation not to give support to injustice, which is not an obligation that can be found in my attempt to justify his acts from the positivist perspective. If he were still alive today, chances are he would tell me to stop writing and start to do something.

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