When Does One Become a Criminal by Obeying the Law?

Henry David Thoreau presented several radical ideas in his mid-nineteenth century writing “Civil Disobedience”. The work, published under the title “Resistance to Civil Government” puts forth several profound assertions and questions concerning the law, man and the government. One key subject that Thoreau focused on was whether just men should continue to support the government by complacency with no regard to moral reason? Should laws that are unjust be adhered to, or should they be viewed as moot? His ideas seem like common sense to me, yet his clear and practical ideas would be considered a capital offense in some oppressive nations. I believe that Henry David Thoreau’s ideas are sound in theory. Society has been conditioned to accept ever-increasing taxation without contest except for superficial discourse—how far can we, as a society, be pushed, pulled, punched and sucked while remaining complacent? At what point does one become a co-conspirator of oppression by passive acceptance?

Thoreau gave three general responses one may choose from when faced with the question of whether or not to follow unjust laws. He asks if we should blindly follow all that the government asks of us without question, should voice contempt for the law yet still remain within its bounds, or “Shall we transgress them at once” (Thoreau, 144). I believe it is always within the rights of the individual to subvert authority on the matter of adherence to unjust laws. While I do not share Thoreau’s contempt for those who passively oppose, I find that once the scope of injustices instilled by a government as law becomes brutal, all-encompassing, and deaf to reason and redress, by following the law, one becomes a criminal of the higher laws of morality, reason, and nature.

Thoreau holds contempt for those who voice concern for unjust laws yet comply with them. Thoreau reasons that these people view law violators as hurting their cause resulting in their motivation for adherence (Thoreau, 144). When the severity of the injustice merely extends to the fringes of our freedoms and prosperity, I find that it is the fear of repercussions for breaking the law that causes compliance with moderates.

Unjust laws with far-reaching encroachments should be actively challenged. I share a source of inspiration that Thoreau experienced—spending the night in jail. Few things can so rapidly and thoroughly change one’s pace and train of thought. Also sharing in this experience and views concerning laws against reason and parity is Dr. Martin Luther King. In his renowned writing “Letter from a Birmingham Jail,” Dr. King elaborates on the philosophy of compliance to unjust laws. King holds that freedoms are never voluntarily surrendered by the ruling and will only come by insistence. Relating to the horrors that oppressed African-Americans suffered, King proclaims, “There comes a time when the cup of endurance runs over, and men are no longer willing to be plunged into the abyss of despair” (King). Dr. King lends support to Thoreau’s frustration with the resenting conformer; the practice seems to clearly strike a nerve in both men. On this matter King says,

“I must make two honest confessions to you, my Christian and Jewish brothers. First, I must confess that over the past 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 his stride toward freedom is not the White Citizen’s Councilor 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 cannot agree with your methods of direct action’; who paternalistically believes he can set the timetable for another man’s freedom; who lives by a mythical concept of time and who constantly advises the Negro to wait for a ‘more convenient season.’ Shallow understanding from people of good will is more frustrating than absolute misunderstanding from people of ill will”. (King)

It has been incorporated into American law for the ability of the people to invalidate unjust laws through the process of jury nullification. This philosophy is deep-rooted in American policy and by its practice has done more to arrest the development of tyranny than any other American policy. The United States Supreme Court’s first Chief Justice said, “The Jury has a right to judge both the law as well as the fact in controversy” (Jay). The power of the people to void unjust laws is suppressed by the government in its struggle for control.

In the infamous case, U.S. v Dougherty, 473 F.2d 1113, 1139 (1972), the United States Court of Appeals for the District of Columbia Circuit upheld the district court’s ruling forbidding the mentioning to the jury that “moral compulsion” or “choice of the lesser evil” “constituted a legal defense” (US v. Dougherty). In Vin Suprynowicz’s “The Undisputed Power of the Jury to Acquit” he quotes AP writer David Kravets who says that under a 1998 California “snitch” policy “judges routinely order jurors to inform the court if a juror is not applying the law during deliberations” (Suprynowicz). Jurors found by the court not to be basing their opinions on the literal interpretation of the law are often replaced by alternates. If this policy becomes suppressed to a level that completely prevents jury nullification then the final barrier to stop unjust laws with ordered legal procedure is lost. The less one has to lose, the less one has to fear. And when one is stepped on, to the point of breaking, along the way, most will come to point where compliance’s benefits yield less than resistance’s.

Once the law becomes brutal and barbaric in its policy or enforcement, enforcers, and those who live within its bounds, become criminals in the eyes of God, moral reason, natural law, and international treaty. “The Justice Trial”, United States of America v. Alstötter et al, one of “The Nuremberg Trials”, highlights this point in the prosecution of judges who issued orders of murderous oppressions in compliance with directives of law issued by Adolph Hitler. The majority of the Nazi judges were found guilty at this trial including Franz Schlegelberger who provided lengthy rationalizations at his trial for his continued service as a Nazi judge even after it became apparent to him the abhorrent reality of Nazi law. Despite Schlegelberger’s somewhat rational pleas, the Military Tribunal found that by deciding his rulings in accordance to Nazi law, despite his preference against Nazi atrocities against humanity, these favorable rulings for the Nazi party in prior court rulings lent credence and support to the resulting depravity that lead the torture and deaths of political dissidents. Consequently, Schlegelberger was found guilty of war crimes and crimes against humanity (Nuremberg).

Henry David Thoreau chose to separate himself from the state. He reasoned that it was improper for him to wait for change and to patiently pay homage to unjust laws. He found breaking the most unjust laws were necessary endeavors, resulting in his refusing to comply with the law forbidding assisting fugitive slaves and in his refusal to pay a mandatory tax used to support what he viewed as an unjust war against Mexico. When an unjust law’s effects lead to tyranny and wanton treatment of human rights, it is the duty of just people to actively resist all efforts of such tyranny. The more atrocious a regime, the less compliance it takes for one to become criminal by adhering to the law of such a regime.

© 2005 – David Oppenheimer –Performance Impressions

Works Cited

Jay, John. Jury Rights. 1789. Fully Informed Jury Association of South Carolina. 6 Nov. 2005
Jury Rights – PatriotNetwork.info

King Jr., Dr. Martin Luther. Letter from a Birmingham Jail. 16 Apr. 1963. University of Pennslyvania. 6 Nov. 2005 www.africa.upen.edu

The Nuremberg Trials: The Justice Trial. Ed. Doug
Linder. 1948. University of Missouri-Kansas City
School of Law. 6 Nov. 2005

Suprynowicz, Vin. The Undisputed Power of the Jury to Acquit. 2002. Loompanics. 6 Nov. 2005


Thoreau, Henry David. “Civil Disobedience” Resistance to Civil Government . 1849. A World of Ideas. Ed. Lee A. Jacobus. Boston:Bedford/St. Martins, 2006.

United States v. Dougherty. 1972. Maxwell School of
Syracuse University. 6 Nov. 2005.
U.S. v. Dougherty