Socrates's position - that he must accept death for his disobedience - has become one of the cardinal principles in the liberal philosophy of civil disobedience and part of the dominant American orthodoxy in the United States, for both conservatives and liberals. It is usually stated this way: it's your right to break the law when your conscience is offended; but then you must accept your punishment.
Why? Why agree to be punished when you think you have acted rightly and the law, punishing you for that, has acted wrongly? Why is it all right to disobey the law in the first instance, but then, when you are sentenced to prison, start obeying it?"
Some people, to support the idea of accepting punishment, like to quote Martin Luther King, Jr., one of the great apostles of civil disobedience in this century. In his "Letter from Birmingham City Jail," written in the spring of 1963, in the midst of tumultuous demonstrations against racial segregation, he said, "I submit that an individual who breaks a law that conscience tells him is unjust, and willingly accepts the penalty by staying in jail to arouse the conscience of the community over its injustices is in reality expressing the very highest respect for law."
King was writing in answer to pleas by some white church leaders that he stop the demonstrations. They urged him to take his cause to the courts but "not in the streets." I believe King's reply has been seriously misinterpreted. It was an impassioned defense of nonviolent direct action, but it is obvious that he wanted to persuade those conservative church leaders of his moderation. He was anxious to show that, while committing civil disobedience he was "expressing the very highest respect for law."
The "law" that King respected, we know unquestionably from his life, his work, and his philosophy, was not man-made law, neither segregation laws nor even laws approved by the Supreme Court nor decisions of the courts nor sentences meted out by judges. He meant respect for the higher law, the law of morality, of justice.
To be "one who willingly accepts" punishment is not the same as thinking it right to be punished for an act of conscience. If this were so, why would King agree to be released from jail by behind-the-scenes pressure, as he did in 1960 when a mysterious benefactor in a high position (someone close to President-elect Kennedy) pulled strings to get him out of prison? The meaning of "willingly accepts" is that you know you are risking jail and are willing to take that risk, but it doesn't mean it is morally right for you to be punished.
King talks about "staying in jail to arouse the conscience of the community over its injustice." He does not speak of staying in jail because he owes that to the government and that (as Plato argues) he has a duty to obey whatever the government tells him to do. Not at all. He remains in jail not for philosophical or moral reasons, but for a practical purpose, to continue his struggle "to arouse the conscience of the community over its injustice."
Knowing King's life and thought, we can safely say that if the circumstances had been different, he might well have agreed (unlike Socrates) to escape from jail. What if he had been sentenced, not to six months in a Georgia prison, but to death? Would he have "accepted" this?
Would King have condemned those black slaves who were tried under the Fugitive Slave Act of I850 and ordered to return to slavery, but who refused to give themselves up? Would he have criticized Angela Davis, the black militant who, accused of abetting the escape of a black prisoner from a courtroom, and fearing a police attempt on her life, refused to stand trial and went underground?
We can imagine another test of King's attitude toward "accepting" punishment. During the Vietnam War, which King powerfully opposed ("The long night of war must be stopped," he said in I965), the Catholic priest-poet Daniel Berrigan committed an act of civil disobedience. He and other men and women of the "Catonsville Nine," entered a draft board in Catonsville, Maryland, removed draft records, and set them afire in a public "ceremony." Father Berrigan delivered a meditation:
Our apologies, good friends, for the fracture of good order, the burning of paper instead of children. . . . We could not, so help us God, do otherwise. . . . We say: killing is disorder, life and gentleness and community and unselfishness is the only order we recognize. For the sake of that order we risk our liberty, our good name. The time is past when good men can remain silent, when obedience can segregate men from public risk, when the poor can die without defense.'
Although he used the term men, one of the Catonsville Nine was a woman, Mary Moylan. When the Nine were found guilty, sentenced to jail terms, and lost their appeals, she and Daniel Berrigan refused to turn themselves in, going "underground." Berrigan was found after four months, Mary Moylan was never apprehended. She wrote from underground: "I don't want to see people marching off to jail with smiles on their faces. I just don't want them going. . . . I don't want to waste the sisters and brothers we have by marching them off to jail."
Berrigan and Moylan thought the war was wrong and thought their going to jail for opposing it was wrong. If, like King, they felt it would serve some practical use, they probably would have "accepted it." Going to jail can make a certain kind of statement to the public: "Yes, I feel so strongly about what is happening in the world that I am willing to risk jail to express my feelings."
Refusing to go to jail makes a different kind of statement: "The system that sentenced me is the same foul system that is carrying on this war. I will defy it to the end. It does not deserve my allegiance." As Daniel Berrigan said, yes, we respect the order of "gentleness and community" but not the "order" of making war on children.
Daniel Berrigan and I had traveled together in early I968 to Hanoi to pick up three American pilots released from prison by the Nonh Vietnamese. We became good friends, and I was soon in close contact with the extraordinary Catholic resistance movement against the Vietnam War.
In early I970 his last appeal was turned down; facing several years in prison, he "disappeared," sending the FBI into a frantic effort to find him. They had caught sight of him at a huge student rally in the Cornell University gymnasium, then the lights went out and before they could make their way through the crowd he was spirited away inside a huge puppet, to a nearby farmhouse.
A few days after his disappearance, I received a phone call at my home in Boston. I was being invited to speak at a Catholic church on the Upper West Side of Manhattan, on the issues of the war and the Berrigans. Philip Berrigan, Daniel's brother, a priest and one of the Catonsville Nine, was also living underground and had just been found by the FBI in the tiny apartment of the church's pastor.
The church was packed with perhaps 500 people. FBI agents mingled with the crowd, alerted that Daniel Berrigan might show up. I made a brief speech. Another friend of Daniel's spoke. As the two of us sat on the platform, a note was passed to us, to meet two nuns at a Spanish-Chinese restaurant farther up Broadway, near Columbia University. There we were given directions to New Jersey, to the house where Daniel was hiding out.
The next morning we rented a car, drove to New Jersey, and met him. The house he was staying in was not secure (in fact, an FBI agent lived across the street!). We arranged a trip to Boston, a car, a driver, and a destination. From that point on, for the next four months, he eluded and exasperated the FBI, staying underground, but surfacing from time to time, to deliver a sermon at a church in Philadelphia, to be interviewed on national television, to make public statements about the war, to make a film (The Holy Outlaw) about his actions against the war, both overt and underground.
During those four months, while helping take care of Dan Berrigan, I was teaching my course at Boston University in political theory. My students were reading the Crito, and I asked them to analyze reasons for not escaping punishment and also to consider Daniel Berrigan's reasons for going underground. They did not know, of course, that Berrigan was right there in Boston, living out his ideas.
I think it is a good guess, despite those often-quoted words of his on "accepting" punishment, that Martin Luther King, Jr., would have supported Berrigan's actions. The principle is clear. If it is right to disobey unjust laws, it is right to disobey unjust punishment for breaking those laws.
The idea behind "accept your punishment" (advanced often by "liberals" sympathetic with dissent) is that whatever your disagreement with some specific law or some particular policy, you should not spread disrespect for the law in general, because we need respect for the law to keep society intact.'
This is like saying because apples are good for children, we must insist that they not refuse the rotten ones, because that might lead them to reject all apples. Well, good apples are good for your health, and rotten apples are bad. Bad laws and bad policies endanger our lives and our freedoms. Why can't we trust human intelligence to make the proper distinctions - among laws as among apples?
The domino theory is in people's minds: Let one domino fall and they will all go. It is a psychology of absolute control, in which the need for total security brings an end to freedom. Let anyone evade punishment and the whole social structure will come down.
We must ask, however: Can a decent society exist (that is our concern, not the state ), if people humbly obey all laws, even those that violate human rights? And when unjust laws and unjust policies become the rule, should not the state (in Plato's words) "be overthrown"?
Most people quickly accept the idea of disobedience in a totalitarian society or in a blatantly undemocratic situation as in the American South with its racial segregation. But they look differently on breaking the law in a liberal society, where parties compete for the votes of citizens, where laws are passed by bodies of elected representatives, and where people have some opportunities for free expression of their ideas.
What this argument misses is that civil disobedience gives an intensity to expression by its dramatic violation of law, which other means - voting, speaking, and writing - do not possess. If we are to avoid majority tyranny over oppressed minorities, we must give a dissident minority a way of expressing the fullness of its grievance.
The fiery editor of the abolitionist newspaper in Boston, William Lloyd Garrison, understood the need. Criticized by another antislavery person for his strong language ("I will not hesitate, I will not equivocate, will not retreat a single inch, and I will be heard") and his dramatic actions (he set a copy of the United States Constitution afire at a public gathering, to call attention to the Constitution's support of slavery), Garrison replied, "Sir, slavery will not be overthrown without excitement, a most tremendous excitement."
Several of Garrison's contemporaries understood his role. One said that Garrison had roused the country from a sleep so deep "nothing but a rude and almost ruffian - like shake could rouse her." Another said, "he will shake our nation to its center, but he will shake slavery out of it "
Protest beyond the law is not a departure from democracy; it is absolutely essential to it. It is a corrective to the sluggishness of "the proper channels," a way of breaking through passages blocked by tradition and prejudice. It is disruptive and troublesome, but it is a necessary disruption, a health troublesomeness.