It seems to me that you’re taking the position opposite MLK’s, and my position is pretty much MLK’s.
MLK never equivocated about whether he was disobedient towards US law. He just asked people to accept the legitimacy of the justice over that of US law. As he wrote in Letter from a Birmingham Jail:
You express a great deal of anxiety over our willingness to break laws. This is certainly a legitimate concern. Since we so diligently urge people to obey the Supreme Court’s decision of 1954 outlawing segregation in the public schools, it is rather strange and paradoxical to find us consciously breaking laws. One may well ask, “How can you advocate breaking some laws and obeying others?” The answer is found in the fact that there are two types of laws: there are just laws, and there are unjust laws. I would agree with St. Augustine that “An unjust law is no law at all.” Now, what is the difference between the two? How does one determine when a law is just or unjust? A just law is a man-made code that squares with the moral law, or the law of God. An unjust law is a code that is out of harmony with the moral law. To put it in the terms of St. Thomas Aquinas, an unjust law is a human law that is not rooted in eternal and natural law. Any law that uplifts human personality is just. Any law that degrades human personality is unjust. All segregation statutes are unjust because segregation distorts the soul and damages the personality. It gives the segregator a false sense of superiority and the segregated a false sense of inferiority. To use the words of Martin Buber, the great Jewish philosopher, segregation substitutes an “I—it” relationship for the “I—thou” relationship and ends up relegating persons to the status of things. So segregation is not only politically, economically, and sociologically unsound, but it is morally wrong and sinful. Paul Tillich has said that sin is separation. Isn’t segregation an existential expression of man’s tragic separation, an expression of his awful estrangement, his terrible sinfulness? So I can urge men to obey the 1954 decision of the Supreme Court because it is morally right, and I can urge them to disobey segregation ordinances because they are morally wrong. Let us turn to a more concrete example of just and unjust laws. An unjust law is a code that a majority inflicts on a minority that is not binding on itself. This is difference made legal. On the other hand, a just law is a code that a majority compels a minority to follow, and that it is willing to follow itself. This is sameness made legal. Let me give another explanation. An unjust law is a code inflicted upon a minority which that minority had no part in enacting or creating because it did not have the unhampered right to vote. Who can say that the legislature of Alabama which set up the segregation laws was democratically elected? Throughout the state of Alabama all types of conniving methods are used to prevent Negroes from becoming registered voters, and there are some counties without a single Negro registered to vote, despite the fact that the Negroes constitute a majority of the population. Can any law set up in such a state be considered democratically structured? These are just a few examples of unjust and just laws. There are some instances when a law is just on its face and unjust in its application. For instance, I was arrested Friday on a charge of parading without a permit. Now, there is nothing wrong with an ordinance which requires a permit for a parade, but when the ordinance is used to preserve segregation and to deny citizens the First Amendment privilege of peaceful assembly and peaceful protest, then it becomes unjust. Of course, there is nothing new about this kind of civil disobedience. It was seen sublimely in the refusal of Shadrach, Meshach, and Abednego to obey the laws of Nebuchadnezzar because a higher moral law was involved. It was practiced superbly by the early Christians, who were willing to face hungry lions and the excruciating pain of chopping blocks before submitting to certain unjust laws of the Roman Empire. To a degree, academic freedom is a reality today because Socrates practiced civil disobedience. We can never forget that everything Hitler did in Germany was “legal” and everything the Hungarian freedom fighters did in Hungary was “illegal.” It was “illegal” to aid and comfort a Jew in Hitler’s Germany. But I am sure that if I had lived in Germany during that time, I would have aided and comforted my Jewish brothers even though it was illegal. If I lived in a Communist country today where certain principles dear to the Christian faith are suppressed, I believe I would openly advocate disobeying these anti-religious laws.
This is an attempt at a principled, conceptual distinction between just and unjust laws. The idea that criminality becomes noncentral—and therefore the idea becomes not worth applying—because it’s approved of by the majority is what King describes above as “difference made legal,” and as such, the basic paradigm of injustice.
If someone disapproves of MLK because he was a criminal, they disapprove of him because he was disobedient to the US Government at the time, so they’re taking a position in favor of unjust laws approved by the majority. Invoking the noncentral fallacy is effectively an appeal to democracy, favoring the current majority against the past one. This can look like justice if you focus attention on particular issues where the majority opinion has become more just, but is still fundamentally opposed to *principled* distinctions, which King stood for:
I must confess that over the last few years I have been gravely disappointed with the white moderate. I have almost reached the regrettable conclusion that the Negro’s great stumbling block in the stride toward freedom is not the White Citizens Councillor or the Ku Klux Klanner but the white moderate who is more devoted to order than to justice; who prefers a negative peace which is the absence of tension to a positive peace which is the presence of justice; who constantly says, “I agree with you in the goal you seek, but I can’t agree with your methods of direct action”; who paternalistically feels that he can set the timetable for another man’s freedom; who lives by the myth of time; and who constantly advises the Negro to wait until a “more convenient season.” Shallow understanding from people of good will is more frustrating than absolute misunderstanding from people of ill will. Lukewarm acceptance is much more bewildering than outright rejection.
in hindsight I think it was pretty disrespectful of you to use King as the example in the Noncentral Fallacy post.
The idea that criminality becomes noncentral—and therefore the idea becomes not worth applying—because it’s approved of by the majority is what King describes above as “difference made legal,” and as such, the basic paradigm of injustice.
I don’t quite follow this. As I understand, MLK says that a “difference made legal” is when a majority enforces laws on a minority that it won’t enforce on itself. The part about enforcing the law on the minority seems critical to that definition.
Whereas, disparate enforcement doesn’t seem like it would necessarily be part of “non-central criminality”. The majority might approve of something that’s technically illegal for anyone, regardless of whether they’re a member of the majority group. In particular, people who approve of MLK’s civil disobedience may approve of the same style of civil disobedience, no matter who does it. Or they may not. It would depend on the person. But disparate enforcement certainly doesn’t seem baked into the idea.
in hindsight I think it was pretty disrespectful of you to use King as the example in the Noncentral Fallacy post.
I think you have some valid points in your comment, but it seems a bit harsh to say that it was disrespectful for Scott not to think of them (if indeed he didn’t) when he made his post. If you only thought of this in hindsight, was it disrespectful of you not to think of it before either? (Sure, we should hold the author of a post to a higher standard than the reader, but still, I think the point you’re making here is actually relatively subtle, in the scheme of things, so it strikes me as an overstatement to call out someone as disrespectful for not thinking of it.)
If you only thought of this in hindsight, was it disrespectful of you not to think of it before either? (Sure, we should hold the author of a post to a higher standard than the reader, but still, I think the point you’re making here is actually relatively subtle, in the scheme of things, so it strikes me as an overstatement to call out someone as disrespectful for not thinking of it.)
I’m not claiming to have been morally pure at the time. I’m just claiming that this was disrespectful to King. I’m not calling for anyone to be punished or shamed here, just trying to describe an unfortunate aspect of the post worth avoiding in the future, because it seems relevant to the point under discussion.
There was probably some unfortunate element of point-scoring in the way I brought it up, for which I am sorry.
What do you think the point of prosecutorial discretion (and other sorts of institutionalized hypocrisy) is, if not disparate enforcement? Does the majority have a coherent agenda that it’s afraid to inform itself about?
I’m not claiming that disparate enforcement does not exist. Just that it doesn’t seem central (heh) to the idea of non-central criminality.
One can have a conception of crime that typically includes theft, assault, etc, and also be in favor of civil disobedience in some cases, while also not being in favor of disparate enforcement. In fact, I would expect that to be the common case.
I guess your last line about the majority’s agenda suggests you think that’s not the common case. Is that right? Perhaps that’s the core of our disagreement.
It seems to me that you’re taking the position opposite MLK’s, and my position is pretty much MLK’s.
MLK never equivocated about whether he was disobedient towards US law. He just asked people to accept the legitimacy of the justice over that of US law. As he wrote in Letter from a Birmingham Jail:
This is an attempt at a principled, conceptual distinction between just and unjust laws. The idea that criminality becomes noncentral—and therefore the idea becomes not worth applying—because it’s approved of by the majority is what King describes above as “difference made legal,” and as such, the basic paradigm of injustice.
If someone disapproves of MLK because he was a criminal, they disapprove of him because he was disobedient to the US Government at the time, so they’re taking a position in favor of unjust laws approved by the majority. Invoking the noncentral fallacy is effectively an appeal to democracy, favoring the current majority against the past one. This can look like justice if you focus attention on particular issues where the majority opinion has become more just, but is still fundamentally opposed to *principled* distinctions, which King stood for:
in hindsight I think it was pretty disrespectful of you to use King as the example in the Noncentral Fallacy post.
I don’t quite follow this. As I understand, MLK says that a “difference made legal” is when a majority enforces laws on a minority that it won’t enforce on itself. The part about enforcing the law on the minority seems critical to that definition.
Whereas, disparate enforcement doesn’t seem like it would necessarily be part of “non-central criminality”. The majority might approve of something that’s technically illegal for anyone, regardless of whether they’re a member of the majority group. In particular, people who approve of MLK’s civil disobedience may approve of the same style of civil disobedience, no matter who does it. Or they may not. It would depend on the person. But disparate enforcement certainly doesn’t seem baked into the idea.
I think you have some valid points in your comment, but it seems a bit harsh to say that it was disrespectful for Scott not to think of them (if indeed he didn’t) when he made his post. If you only thought of this in hindsight, was it disrespectful of you not to think of it before either? (Sure, we should hold the author of a post to a higher standard than the reader, but still, I think the point you’re making here is actually relatively subtle, in the scheme of things, so it strikes me as an overstatement to call out someone as disrespectful for not thinking of it.)
I’m not claiming to have been morally pure at the time. I’m just claiming that this was disrespectful to King. I’m not calling for anyone to be punished or shamed here, just trying to describe an unfortunate aspect of the post worth avoiding in the future, because it seems relevant to the point under discussion.
There was probably some unfortunate element of point-scoring in the way I brought it up, for which I am sorry.
Fair enough. Thanks for the reply.
What do you think the point of prosecutorial discretion (and other sorts of institutionalized hypocrisy) is, if not disparate enforcement? Does the majority have a coherent agenda that it’s afraid to inform itself about?
I’m not claiming that disparate enforcement does not exist. Just that it doesn’t seem central (heh) to the idea of non-central criminality.
One can have a conception of crime that typically includes theft, assault, etc, and also be in favor of civil disobedience in some cases, while also not being in favor of disparate enforcement. In fact, I would expect that to be the common case.
I guess your last line about the majority’s agenda suggests you think that’s not the common case. Is that right? Perhaps that’s the core of our disagreement.