[In the following review of Disobedience and Democracy, Davis describes Zinn's reasoning as “intricate and sometimes contorted.”]

One would not look to Supreme Court justice Abe Fortas for guidance on civil disobedience, nor to author and teacher Howard Zinn, a passionate advocate of disobedience, for direction on how to preserve the American system of law. But let each one define his position and then lean toward the other, and the occasion is instructive. It is also going to make partisan readers on each side more uncomfortable. This is not a bland subject at a time when it has been argued out on the streets for five tumultuous years with the result, in the Nixon years ahead, still acutely uncertain.

In Disobedience and Democracy Mr. Zinn presents “nine fallacies on law and order” which he finds in the recent Fortas booklet “Concerning Dissent and Civil Disobedience.”

As the two books pass by each other, connecting only at points, the citizen is at a disadvantage. The law is a sophisticated subject, and Mr. Fortas, defending the existing order in a period of sometimes heroic and nonviolent challenge which he approves, and of sometimes violent or ugly challenge which he does not approve, sounds extremely plausible. Disobedience and its allied question of violence against the state make a disturbing topic, and at first glance Mr. Zinn sounds like a troublemaker. A second look confirms it; he is a professional. When he presents intricate and sometimes contorted reasoning as well as the strong opinions that usually come from a protester, it is easy to close the book, rule Mr. Zinn out of order, and conclude that his argument is too complex to bother with. He does not have the skills of a Zachariah Chaffee, who ministered dissent to an earlier period.

The exercise is still a useful one. Mr. Fortas candidly says he would have disobeyed the racist laws of Hitler and the Southern segregation laws. He supports the “great tradition” of civil disobedience when laws are “invalid and unconstitutional.” He writes of the “need … to disobey profoundly immoral or unconstitutional laws.”

Mr. Zinn admits that “violence is in itself an evil, and so can only be justified in those circumstances where it is a last resort in eliminating a greater evil. …” He proposes that disobedience should be “measured to the size of the evil it is intended to eliminate,” that it “would have to be guarded, limited, aimed carefully at the source of injustice, and preferably directed against property rather than people.”

These are substantial modifications offered by Messrs. Fortas and Zinn to the arguments by extreme partisans on both sides. But it is in the center area that the really complex questions arise:

Who decides when laws are “profoundly” immoral, in the Fortas phrase, and by what set of values?

How are the limits to be fixed for Mr. Zinn's “measured” disobedience when he includes poverty and the Vietnam war in his category of deep wrongs? These, he says, result in “enormous violence.” Are we then to measure out maximum disobedience all the time?

The black community is not given the same protection or enforcement of laws as the white in either North or South. Mr. Fortas concedes to the blacks that “even their riots—much as we dislike to acknowledge it—produced some satisfaction of their demands … but the reaction to repeated acts of violence may be repression instead of remedy.” Repression produces more violence, humans being what they are in a democratic society. How deal with this vicious cycle?

If there is any accommodation between the approaches of the Supreme Court justice and the spokesman for dissent, it might be in the anguished statement continually made by Martin Luther King Jr. toward the end: that, unless American society paid far more attention to nonviolent protests, large segments of the community would turn to violence.

Another possible accommodation is this reviewer's conviction that the good sense of the public throws the balance toward or away from dissent, in ways that are not always perfect or even conscious. But enough people either support the dissent or refrain from supporting it when the issue is forced on their attention. This has been the balance wheel in the past and is likely to be so in the future.