Leibman's Civil Disobedience

The Law is many things: absolute, necessary, unyielding. The Law should be many things: fair, moral, for the common good. There exists, however, a disconnect between what The Law is and what The Law should be. Every law is absolute. Not every law is moral. As Henry David Thoreau points out in his Civil Disobedience, without making moral distinctions when following the state, citizens “are as likely to serve the devil, without intending it, as God”. Throughout the history of the United States, there has existed plenty of laws that stood alone, supported by neither fairness nor morality, upright and singular; judicatory in its most tyrannical form. The Fugitive Slave Act, Jim Crow Laws, The Chinese Exclusion Act, Executive Order 9066 of Japanese

Internment, these judicial actions can hardly be said to be either moral or fair.
One thing The Law is not is conscientious. The Law does not have a moral compass. Lawmakers and citizens are the ones with moral compasses. When lawmakers fail in maintaining morality, as they have proven to do time and time again throughout history, immoral laws will forever exist unless challenged by citizens. Slavery would not have ended without abolitionists. Jim Crow laws would not have been repealed if not for civil rights activists. The act of opposing a law one considers unjust and peacefully disobeying it while accepting the consequences, or civil disobedience, then not only positively impacts a free-society, but is also an act of patriotism. The first step in purging a government of unethical jurisdiction many times has been civil disobedience by citizens; courageous citizens who care enough to demand morality at their own personal expense from their administration. This was the case with Rosa Parks and the Civil Rights Movement, this was the case with Draft Dodgers and the Vietnam War, this was the case with Strikers and the Labor Movement. A free-society could not be truly free without a just and moral government, and a just and moral government would not remain just and moral for long without maintenance by its citizens, constantly righting their government’s moral compass.
Civil disobedience is far from the only method of righting the moral compass of government. As Morris I. Leibman correctly observes in his American Bar Association address in August of 1964, “the law is not static...many effective channels for change [not including civil disobedience] are constantly available”. Indeed, examples of change accomplished from acting within the legal system do exist. Such was the case with the U.S Supreme Court case Obergefell v. Hodges, which legalized same sex marriage nationally in 2015. Although Leibman’s observation of the existence of options within the law to combat immoral laws is fact, the point he derives from this fact—civil disobedience is “at best de­plorable and at worst destructive” and actually “jeop­ardize[s] the system of law” because it undermines the existing within-the-system legal options—is erroneous.
Civil disobedience is opposing a law one considers unjust and peacefully disobeying it while accepting the consequences.

By definition, it cannot jeopardize the legal system because by accepting the consequences of dissent, one is complying with the law. How can one comply with the system and jeopardize it at the same time? If by complying with the system, a citizen jeopardizes it, that is no fault on behalf of the citizen, that is the system toppling itself. Leibman’s labeling of civil disobedience as at best deplorable and at worst destructive is also false. He derives these adjectives from his fear that “organized disobedience of masses stirs up the primitive”, comparing the possible passion that civil disobedience could stir up to that of lynch mobs. Sure, there are examples of cases of civil disobedience gone awry, a recent case being the protest against Milo Yiannopoulos at Berkeley turning violent despite initiating peacefully. Is that enough to label civil disobedience deplorable/destructive? Considering that in any occasion, the cause for civil disobedience would be an unjust law, wouldn’t it be shortsighted to blame all of the “stirring up of the primitive” on disobedience instead of the actual unjust law? That would be akin to crediting the rise of Malcolm X’s sometimes violent ideologies to Dr. King’s encouragement of peaceful disobedience. Malcolm X’s radical ideas didn’t gain traction because of Dr. King; they climbed because of

injustice.
Although civil disobedience is just one tool in the kit provided to every citizen for the maintenance of free-society, and not always the tool for the occasion, it nevertheless has the ability to positively impact society. Civil laws should never trump moral laws, and civil laws should always affirm moral laws. When this principle is violated, a free-society is compromised. Citizens must work to always assure that their government is in accordance with moral laws—using whatever tools from their kit they must.