SOURCE: Cohen, Carl. “Civil Disobedience: Moral or Not?” Nation 207, no. 19 (2 December 1968): 597, 599-600.

[In the following review, Cohen praises Zinn's Disobedience and Democracy as an insightful book that should be widely read and discussed, although he challenges the bases for many of Zinn's arguments.]

Civil disobedience has become one of the most puzzling and provocative issues of the times. There are two kinds of reasons for this. First, those who have recently been engaging in disobedient demonstrations have done so, most usually, to register vehement protest against laws, acts and conditions that cry out for remedy, while remedy continues to elude us. The barbarity of the war in Vietnam; the cruelty of racism at home; the maldistribution of wealth and power; and, above all, the apparent unwillingness or inability of our national institutions—Congress, the courts, private enterprise—to deal effectively with injustice, frustrates and angers all decent citizens, and forces us to ask ourselves how changes we know to be essential can be brought about. Those who practice civil disobedience seek to provide at least a partial answer to this question, often breaking new ground at considerable risk to themselves. Most often we find ourselves in strong sympathy with such disobedients, knowing their intentions honorable and their cause just. Even so, many remain in genuine doubt about the moral justifiability of deliberately unlawful protest. To be sure, the end may be entirely worthy; but that, as we have been so long saying to ourselves and others, does not justify any means to its accomplishment. The wrong protested may be a thousand times more harmful than the wrong of illegal protest; is that justification enough? How should we decide, in practice, upon the rightness of certain methods—even methods deliberately disobedient and intrinsically unhappy—intended to further worthy social goals? This is one side, the practical side, of the puzzle.

As soon as we seek to resolve this practical question in any given case, we find ourselves facing a maze of difficult philosophical questions—questions with which we are all familiar, but that we had never before been forced to resolve in some conclusive way. This is the second, deeper aspect of the puzzle. Civil disobedience, its nature and justification, takes us directly to the core of some of the hardest and most important philosophical questions regarding social life. What are the limits of state authority? When, if ever, is a man justified in defying that authority, and on what grounds must such justification be based? What do we mean by the “rule of law” and how high in our catalogue of values must it remain? Nothing presses these questions upon us so quickly and so clearly as the practice of civil disobedience in a democracy, and the need to appraise it.

In this sphere Howard Zinn has written a most extraordinary book. I do not think his views entirely correct or even consistent; I find the frame within which they are put to be restrictive and disjointed; I am convinced that he is deeply mistaken on certain central issues. Yet the book is splendid—crisp and biting, reflective and insightful, sympathetic and humane. It deserves to be very widely read and very thoughtfully discussed.

The complexity of the issues with which this book deals renders it difficult to do it full justice briefly. It ranges over a great host of problems—the obligations of the citizen, the protection of the freedom of speech, the adequacy of our judicial and representative machinery, the need to devise new techniques of change—and there is hardly a page on which the reader is not impelled to register strong objection, or further observation, or (most often) a cheer. Let me register here two strong objections, one observation and three cheers.

First, objections: The inadequacy of the standard “liberal” view of civil disobedience (of which Justice Fortas' pamphlet Concerning Dissent and Civil Disobedience is taken as the archetype) is Zinn's principal target.

His attack takes the form of identifying a series of fundamental but (allegedly) mistaken propositions upon which the liberal view (more accurately, Fortas' view) is founded. These fallacies, as he calls them, in being widely and uncritically accepted, distort a realistic and healthy view both of the country itself and of civil disobedience as an instrument for change within it. Zinn argues that such disobedience offers rich possibilities for social reform, and ought to be more generously conceived and more liberally practiced. He is careful to say that civil disobedience is not all good, but he is sure that it most often is. Thus, he is obliged to deal with a number of the philosophical issues mentioned earlier, and at such critical points his argument is sometimes very weak.

The first great fallacy attacked is “that the rule of law has an intrinsic value apart from moral ends,” where by moral ends Zinn means only real human needs. It is important for him that this be shown false, because so many (including Justice Fortas) have insisted that there is a universal duty to obey the law, and that this is a moral as well as a legal imperative. On the basis of this belief (Zinn argues), liberals mistakenly conclude that civil disobedience is always unjustifiable unless the law disobeyed is itself clearly and profoundly immoral.

Confusion develops quickly here. Zinn is quite right in maintaining that those who elevate the rule of law to an absolute, and who find every case of civil disobedience unjustifiable simply because it does break the law, and because breaking the law is always wrong, must suffer from serious moral blindness, and must have a cramped and distorted view of history and their own times. Obedience to law, and the order it promotes, is only one great value, after all, and must sometimes be measured against others with which it may come into conflict—economic justice, human liberty, international peace. To accomplish these, or others, the laws may be good instruments; but they may, on occasion, be obstacles instead. A rational citizen must make that judgment. In attacking those who are slavish in their submission to law, Zinn is wise and right.

He is not right or wise, however, when he concludes from this that, apart from the benefits achieved by specific good laws, there is no general moral obligation to obey the law. There is. It is a universal and, I submit, a very weighty obligation upon every citizen stemming from the universal human need to live in a society in which one can have reasonable expectations concerning the conduct (and the limitations upon the conduct) of one's fellow human beings. In that sense the rule of the law is both noble and-practical, and it is a value of high moral import, quite apart from the particular content of individual laws. It is for this reason that one does have an obligation—a moral as well as a legal obligation—to obey a law even if he is quite convinced the law is bad. This, I think, is the force of the claim made by Fortas as well as the man in the street, that the laws always ought to be obeyed. However confusedly expressed, there is deep truth in the proposition that there is something morally wrong in breaking duly constituted laws. Indeed, Zinn exhibits a similar feeling himself when, later in the book, he expresses his distress at the willful disregard, on the part of the American Government as a whole, for the rule of international law to which it is committed. He argues there that nations are bound by the same larger moral principles that bind individual men, and he is right. Among these is the principle that the laws ought to be obeyed.

Of course this principle cannot be absolutely compelling in every circumstance. The assumption that it is absolute, and the careless invocation of this principle whenever the disobedient protest in question happens to offend, are common errors against which Zinn might properly bridle. He goes much further than this, however, even to the extreme of rejecting the intrinsic moral value of government by law.

That is an unhappy turn. I have considerable confidence in Zinn's practical wisdom: but we are not governed by men such as he, nor are we likely to be. Individual judgments of what is right are often essential, but they are never sufficient for good human government. We must have laws, even if they are less good than they might be. In a healthy democratic community the laws will be respected and honored, although they are imperfect, because they are the laws. There is, therefore, a standing presumption against civil disobedience although that presumption may, in exceptional cases, be countered. This is what the standard liberal view is fumbling for; the cheap purposes to which the words of this principle are sometimes put do not in the least detract from its truth.

Of course our national community is, at present, far from healthy. The laws are often disregarded by officials sworn to obey them, and obeyed by citizens who have a higher obligation not to obey them. For it does not follow from the fact that there is a moral obligation to obey the law that such an obligation can never be overridden. It can. It is in such circumstances precisely that civil disobedience may prove justifiable or even obligatory. But what kinds of circumstances these might be, Zinn—partly because of the looseness of his argument—never finds it necessary to make clear.

The second fallacy under attack is that “the person who commits civil disobedience must accept his punishment as right.” Zinn's argument comes to this: if the law is grossly unjust, any punishment for deliberately breaking it is unjust, and therefore the disobedient need not accept any such punishment administered by the state. Here again the position is weak, and the conclusion partly wrong, due to insufficient care and refinement in the analysis. The matter is complicated; Zinn tries to make it appear simple.

At an earlier point Zinn had introduced (less sharply than he might have) the distinction between what I have (elsewhere) called direct disobedience, in which the law broken is the very law protested, and indirect disobedience, in which the law broken is in some other way—symbolically or conventionally—relevant to the issue of the rightness of protest. What needs to be seen here is that this distinction is also importantly relevant to the issue of the rightness of punishment.

Normally, the civil disobedient does expect to be punished for his deliberately unlawful act. This is true because the disobedient is usually not a rebel (contrary to the suggestion of Zinn's language at some points) but a dedicated reformer within a larger system he is determined both to accept and to improve. Should he accept his punishment, then, as right? That depends on what he did, on what kind of law he broke. If he deliberately disobeyed a law he thought immoral in itself he is justified, of course, in fighting punishment in every reasonable way at his command, chiefly through the courts. He will seek to have the bad law struck down, or at least to have it declared inapplicable in his case. If he loses in the end, he is likely, as a citizen who is generally law-abiding, to accept the punishment, not as right but as a painful price he helps to pay for a law-governed community. If the law he broke really was in itself immoral (and we may be in some doubt about that), the legal system will have done an injustice; but we cannot allow every man to sit as the judge in his own case. Of course justice is not always done, and the fight against bad laws must never stop, but miscarriages of justice do not, in themselves, justify the abandonment of a legal system.

If, on the other hand, the disobedient has deliberately broken what he knows to be itself a good law (a traffic or trespass law, or the like) to protest some other evil, say, the war in Vietnam, or oppression in the cities, it is right for him to be punished, not because he is a bad man but because punishment in such cases of indirect disobedience is a part—an essential part—of the act of protest itself. Indirect civil disobedience, if it is to be an effective tactic, must do more than disrupt; it must exhibit the depth and intensity of the commitment of the protester. To be a successful political act within the system, it must be a genuinely moral act within that system. It cannot be that if the system is entirely disregarded. The beauty of this kind of protest lies in the fact that, though the law is broken, the system of laws is respected. Accepting the punishment, when one has deliberately broken a good law, is the only way to show that respect. To evade the punishment, therefore, is to emasculate the protest. The matter is more complex than Zinn's treatment of it would lead us to suppose.

Enough of criticism. One could raise similar objections to others among the arguments Zinn presents. But his work is so effective in opening our eyes and our minds that we profit more from considering his mistakes than from the muddy and superficial truths often encountered elsewhere.

Next, one observation: Disobedience and Democracy is a creative book, rich in insight and suggestion, but its positive impact is less than it could and should have been, largely because of the disjointed form in which it appears. That form is one of rebuttal; everything is framed as a response to Fortas' pamphlet (Concerning Dissent and Civil Disobedience) in which the several fallacies are alleged to appear.

But Fortas' work is itself poorly organized and loosely written, so that in providing a needed blow-by-blow response to it, Zinn is unhappily obliged to share some of its structural weakness. In fact, Zinn's nine fallacies are strung together with little in the way of unifying order; the consequence is that much of the constructive value of his argument is lost in the noise of battle. He has many important things to say about the need for imaginative techniques of social change and the forms they might take; but the force of what he says is partly obscured by the contest in which he is eager to score (and generally does) against a weaker opponent. In fairness it should be added that, treating these two small books as an intellectual confrontation, they present a highly absorbing spectacle, in which the Supreme Court Justice, a man of generous inclinations and considerable mental power, is bested again and again—shown to have been inconsistent, careless, occasionally shallow or unfair. A justice ought to write with greater depth and care than Fortas did, considering the gravity of the matter, Zinn is right in not going easy on him. But the upshot is, in both cases, that the threads which hang the whole together are thin and tangled.

Finally, three cheers, briefly put. One cheer for a short, punchy book, written in a prose that is plain and beautiful. Zinn writes with a directness and candor rare among scholarly men. Just reading the book is a pleasure.

A second cheer for Zinn as a perceptive critic of the American scene. He is a merciless enemy of hypocrisy and cruelty, and he makes us bite our collective lip. He is bitter, but not without hope. The largest thrust of his argument is that of a search for the instruments through which the radical reforms our condition demands can be effected with a minimum of violence and misery. He is good for us.

A third and final cheer for an author who comes through to his reader as a compassionate and gentle man, deeply anguished by the wrongs our nation does in his and all our names. Anguish cannot, by itself, justify civil disobedience as an instrument of change; but the compassion that underlies this book is desperately needed if the wrongs provoking disobedient protest are ever to be righted.