|
The syntactically unfortunate statement that “civil disobedience is the legally right answer” requires interpretation. Presumably the statement that Brown is the legally right answer means that the case was rightly decided, and that racial quotas are the legally right answer means that in some circumstances such quotas are not unconstitutional. But what can it mean to say that civil disobedience is the legally right answer? I suppose that it means that it is a good legal defense, in any criminal prosecution, for the defendant to claim that he broke the law out of conscience. Or that civil disobedience does not count as law-breaking at all. Or something similar.
I have written two articles about civil disobedience, and in neither did I say anything even remotely like that. In the first, I discussed a much more specific question: what attitude should citizens, prosecutors and judges take toward those who disobey a law — like the draft laws in the Vietnamese War — that is widely regarded as both immoral and unconstitutional. I offered reasons why, in such circumstances, criminal prosecutors should sometimes exercise a discretion not to prosecute, and why sometimes a court “ought to acquit on the ground that before its decision the validity of the draft was doubtful, and it is unfair to punish men for disobeying a doubtful law.”[xviii][18] (That reason for acquittal has nothing to do with civil disobedience; it appeals to a much more general principle.) I then added that “If acts of dissent continue to occur after the Supreme Court has ruled that the laws are valid, or that the political question doctrine applies, then acquittal on the grounds I have described is no longer appropriate.” In the later article I said, “We must not say that if someone is justified, given what he thinks, in breaking the law, the government must never punish him. There is no contradiction, and often much sense, in deciding that someone should be punished in spite of the fact that he did exactly what we, if we had his beliefs, would and should have done.”[xix][19] This is the set of views Posner reports by saying that over the course of my career I have endorsed civil disobedience and the non-prosecution of draft card burners as the legally right answer.
(7) “Dworkin claims that ‘we have no choice but to ask [judges] to confront issues that, from time to time, are philosophical. The alternative is not avoiding moral theory but keeping its use dark.’ Substitute ‘teachers’ for ‘judges,’ ‘pedagogical’ for ‘philosophical,’ and ‘educational’ for ‘moral,’ and the fatuity of Dworkin’s claims becomes evident.”[xx][20]
|
