and to deny ideological purpose.10
Equal Justice Under Law is the slogan one sees on the marble pil ars of the courthouse. And
there is nothing in the words of the Constitution or the laws to indicate that anyone gets
special treatment. They look as if they apply to everyone. But in the actual administration of
the laws are rich and poor treated equal y? Blacks and whites? Foreign born and natives?
Conservatives and radicals? Private citizens and government officials?
There is a mountain of evidence on this: a CIA official (Richard Helms) commits perjury and
gets off with a fine (AIger Hiss spent four years in jail for perjury), a president (Nixon) is
pardoned in advance of prosecution for acts against the law, and Oliver North and other
Reagan administration officials are found guilty of violating the law in the Iran-Contra affair,
but none go to prison.
Stil , the system of laws, to maintain its standing in the eyes of the citizenry and to provide
safety valves by which the discontented can let off steam, must keep up the appearance of
fairness. And so the law itself provides for change. When the pressure of discontentment
becomes great, laws are passed to satisfy some part of the grievance. Presidents, when
pushed by social movements, may enforce good laws. Judges, observing a changing temper
in the society, may come forth with humane decisions.
Thus we have alternating currents of progress and paralysis. Periods of war alternate with
periods of peace. There are times of witch-hunts for dissenters and times of apologies for
the witch-hunts. We have "conservative" presidents giving way to liberal presidents and
back again. The Supreme Court makes decisions one week on behalf of civil liberties and the
next week curtails them. No one can get a clear fix on the system that way.
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The modern system of the rule of law is something like roulette. Sometimes you win and sometimes you lose. No one can predict in any one instance whether the little bal wil fal
into the red or the black, and no one is real y responsible. You win, you lose. But as in
roulette, in the end you almost always lose. In roulette the results are fixed by the structure
of the wheel, the laws of mathematical probability, and the rules of "the house." In society, the rich and strong get what they want by the law of contract, the rules of the market, and
the power of the authorities to change the rules or violate them at wil .
What is the structure of society's roulette wheel that ensures you wil , in the end, lose? It is,
first of al , the great disparities in wealth that give a tremendous advantage to those who
can buy and sel industries, buy and sel people's labor and services, buy and sel the means
of communication, subsidize the educational system, and buy and sel the political
candidates themselves. Second, it is the system of "checks and balances," in which bold
new reforms (try free medical care for al or sweeping protections of the environment) can
be buried in committee, vetoed by one legislative chamber or by the president, interpreted
to death by the Supreme Court, or passed by Congress and unenforced by the president.
In this system, the occasional victories may ease some of the pain of economic injustice.
They also reveal the usefulness of protest and pressure, suggest even greater possibilities
for the future. And they keep you in the game, giving you the feeling of fairness, preventing
you from getting angry and upsetting the wheel. It is a system ingeniously devised for
maintaining things as they are, while al owing for limited reform.
Obligation to the State
Despite al I have said about the gap between law and justice and despite the fact that this
gap is visible to many people in the society, the idea of obligation to law, obligation to
government, remains powerful. President Jimmy Carter reinstated the draft of young men
for military service in 1979, and when television reporters asked the men why they were
complying with the law (about 10 percent were not), the most common answer was "I owe
it to my country."
The obligation that people feel to one another goes back to the very beginning of human
history, as a natural, spontaneous act in human relations.11 Obligation to government,
however, is not natural. It must be taught to every generation.
long been one of the gods of modern culture, his reputation that of an awesome mind and a
bril iant writer of dialogue, his work the greatest of the Great Books. Shrewdly, Plato puts
his ideas about obligation in the mouth of Socrates. Socrates left no writings that we know
of, so he can be used to say whatever Plato wants. And Plato could have no better
spokesman than a wise, gentle old man who was put to death by the government of Athens
in 399 BC for speaking his mind. Any words coming from such a man wil be especial y
persuasive.
But they are Plato's words, Plato's ideas. Al we know of Socrates is what Plato tel s us. Or,
what we read in the recol ections of another contemporary, Xenophon. Or what we can
believe about him from reading Aristophanes's spoof on his friend Socrates, in his play The
Clouds.
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So we can't know for sure what Socrates real y said to his friend Crito, who visited him in jail, after he had been condemned to death. But we do know what Plato has him say in the
dialogue Crito" (written many years after Socrates's execution), which has been impressed on the minds of countless generations, down to the present day, with deadly effect. Plato's
ideas have become part of the orthodoxy of the nation, absorbed into the national
bloodstream and reproduced in ordinary conversations and on bumper stickers. ("Love it or
leave it"—summing up Plato's idea of obligation.)
Plato's message is presented appealingly by a man calmly facing death, whose courage
disarms any possible skepticism. It is made even more appealing by the fact that it fol ows
another dialogue, the Apology, in which (according to Plato), Socrates addresses the jury in an eloquent defense of free speech, saying those famous words: "The unexamined life is not
worth living."
Plato then unashamedly (lesson one in intel ectual bul ying: speak with utter confidence)
presents us with some unexamined ideas. Having established Socrates's credentials as a
martyr for independent thought, he proceeds in the Crito to put on Socrates's tongue an
argument for blind obedience to government.
It is hardly a dialogue, although Plato is famous for dialogue and the "Socratic method" is based on teaching through dialogue. Poor Crito, who visits Socrates in prison to persuade
him to let his friends plan his escape, is virtual y tongue-tied. He is reduced to saying, to
every one of Socrates's little speeches: "Yes … of course … clearly … I agree… . Yes … I
think that you are right … . True." And Socrates is going on and on, like the good trouper
that he is, saying Plato's lines, making Plato's argument. We know the ideas are Plato's
because in his wel -known and much bigger dialogue the Republic he makes an even more
extended case for a totalitarian state.
To Crito's offer of escape, Socrates replies: I must obey the law. True, he says, Athens has
committed an injustice by ordering him to die for speaking his mind (he seems slightly
annoyed at this!), but if he complained about this injustice, Athens could rightly say: "We
brought you into the world, we raised you, we educated you, we gave you and every other
citizen a share of al the good things we could."
Socrates accepts this argument of the state. He tel s Crito that by not leaving Athens he
agreed to obey its laws. So he must go to his death. Yes, it is Plato's own bumper sticker:
"Love it or leave it."
If Plato had lived another 2,000 years or so he would have encountered the argument of
Henry David Thoreau, the quiet hermit of Walden Pond who wrote a famous essay on civil
disobedience. Thoreau said that whatever good things we have were not given us by the
state, but by the energies and talents of the people of the country. And he would be
damned if he would pay taxes to support a war against Mexico based on such a paltry
argument.
Plato, the Western world's star intel ectual, makes a number of paltry arguments in this so-
cal ed dialogue. He has Socrates imagining the authorities addressing him: "What complaint
have you against us and the state, that you are trying to destroy us? Are we not, first of al ,
your parents? Through us your father took your mother and brought you into the world."12
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What complaint? Only that they are putting him to death! The state as parents? Now we understand those words: the Motherland, the Fatherland, the Founding Fathers, Uncle Sam.
What neat spades for planting the idea of obligation. It's not some little junta of military
men and politicians who are sending you to die in some muddy field in Asia or Central
America, it's your mother, your father, or your father's favorite brother. How can you say
no? "Through us your father took your mother and brought you into the world." What
stately arrogance! To give the state credit for marriage and children, as if without
government men and women would remain apart and celibate. Socrates listens meekly to
the words of the law:
Are you too wise to see your country is worthier, more to be revered, more
sacred, and held in higher honor both by the gods and by al men of
understanding, than your father and your mother and al your other
ancestors; that you ought to reverence it and to submit to it … and to obey in
silence if it orders you to endure flogging or imprisonment or if it sends you to
battle to be wounded or to die?13
In the face of this seductive argument, Crito is virtual y mute, a sad sack of a debater. You
would think that Plato, just to maintain his reputation for good dialogue, would give Crito
some better lines. But he took no chances.
Plato says (again, through Socrates bul ying Crito): "In war, and in the court of justice, and everywhere, you must do whatever your state and your country tel you to do, or you must
persuade them that their commands are unjust."
Why not insist that the state persuade us to do its bidding? There is no equality in Plato's scheme: the citizen may use persuasion, but no more; the state may use force.
It is curious that Socrates (according to Plato) was wil ing to disobey the authorities by
preaching as he chose, by tel ing the young what he saw as the truth, even if that meant
going against the laws of Athens. Yet, when he was sentenced to death, and by a divided
jury (the vote was 281 to 220), he meekly accepted the verdict, saying he owed Athens
obedience to its laws, giving that puny 56 percent majority vote an absolute right to take
his life.
And so it is that the admirable obligation human beings feel to one's neighbors, one's loved
ones, even to a stranger needing water or shelter, becomes confused with blind obedience
to that deadly artifact cal ed government. And in that confusion, young men, going off to
war in some part of the world they never heard of, for some cause that cannot be rational y
explained, then say: "I owe it to my country."
It seems that the idea of owing, of obligation, is strongly felt by almost everyone. But what does one owe the government? Granted, the government may do useful things for its
citizens: help farmers, administer old-age pensions and health benefits, regulate the use of
drugs, apprehend criminals, etc. But because the government administers these programs
(for which the citizens pay taxes, and for which the government officials draw salaries),
does this mean that you owe the government your life?
Plato is enticing us to confuse the country with the government. The Declaration of Independence tried to make clear that the people of the country set up the government, to
achieve the aims of equality and justice, and when a government no longer pursues those
aims it loses its legitimacy, it has violated its obligation to the citizens, and deserves no more respect or obedience.
We are intimidated by the word patriotism, afraid to be cal ed unpatriotic. Early in the
twentieth century, the Russian-American anarchist and feminist Emma Goldman lectured on
patriotism. She said,
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Conceit, arrogance and egotism are the essentials of patriotism… . Patriotism
assumes that our globe is divided into little spots, each one surrounded by an
iron gate. Those who had the fortune of being born on some particular spot,
consider themselves better, nobler, grander, more intel igent than the living
beings inhabiting any other spot. It is, therefore, the duty of everyone living
on that chosen spot to fight, kil , and die in the attempt to impose his
superiority upon al the others.14
Even the symbols of patriotism—the flag, the national anthem—become objects of worship,
and those who refuse to worship are treated as heretics. When in 1989 the U.S. Supreme
Court decided that a citizen has a right to express himself or herself by burning the
American flag, there was an uproar in the White House and in Congress. President Bush,
almost in tears, began speaking of a Constitutional amendment to make flag burning a
crime. Congress, with its customary sheepishness, rushed to pass a law providing a year in
prison for anyone hurting the flag.
The humorist Garrison Keil or responded to the president with some seriousness:
Flag-burning is a minor insult compared to George Bush's cynical use of the
flag for political advantage. Any decent law to protect the flag ought to
prohibit politicians from wrapping it around themselves! Flag-burning is an
impulsive act by a powerless individual—but the cool pinstripe demagoguery
of this powerful preppie is a real and present threat to freedom.15
If patriotism were defined, not as blind obedience to government, not as submissive
worship to flags and anthems, but rather as love of one's country, one's fel ow citizens (al
over the world), as loyalty to the principles of justice and democracy, then patriotism would
require us to disobey our government, when it violated those principles.
Accept Your Punishment!
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 usual y
stated this way: it's your right to break the law when your conscience is offended; but then
you must accept your punishment.16
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 al right to disobey the law in the first
instance, but then, when you are sentenced to prison, start obeying it?17
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 tel s him is unjust, and wil ingly 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."18
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."
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The "law" that King respected, we know unquestionably from his life, his work, and his philosophy, was not manmade 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 wil ingly 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) pul ed strings to get him out of
prison? The meaning of "wil ingly accepts" is that you know you are risking jail and are
wil ing to take that risk, but it doesn't mean it is moral y 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 tel s him to do. Not