[In the following review of Disobedience and Democracy, Lazarus charges Zinn with romanticizing the politics of civil disobedience and confrontation.]

In his widely distributed pamphlet, Concerning Dissent and Civil Disobedience, Mr. Justice Fortas condemned civil disobedience on the ground that America's formally democratic political system makes social change possible through legal means. This version of law-and-order liberalism is not invulnerable. Unfortunately, Howard Zinn's reply to Fortas succeeds mostly in inverting Fortas's principal difficulties.

Zinn agrees with Fortas that the propriety of civil disobedience depends on its relationship to the democratic principle. But whereas Fortas assumed, with little discussion, that American government offers adequate popular choice as well as social progress, Zinn considers it axiomatic that government can be treated as analytically separate from the people and hostile to their interests. He shares Fortas's tendency to confound the Law with the Right; but whereas Fortas asserted that virtually all that is not legal is ipso facto immoral, Zinn makes the more implausible suggestion that all acts intended to do Right should be considered lawful and receive full judicial protection. Fortas contends that defiance of the law is politically imprudent as well as immoral; Zinn dismisses fears of a repressive counter reaction as “academic and far from reality.”

Whether or not these absolutist approaches are useful as propaganda, they are less than successful as ventures in philosophy or even strategy. The pertinent question is not whether deliberate refusal to obey a law is always moral or immoral, or always prudent or otherwise. The question has to be whether, in a given set of circumstances—in this case, the circumstances of contemporary America—particular disobedient acts should receive moral, legal, or tactical condemnation or condonation—or a measure of both.

In answering this question, one can begin by following out the logic of the Fortas-Zinn premise that civil disobedience as we have seen it has been primarily a political tactic (rather than primarily a private assertion of personal conviction). Sit-ins, draft-card burnings, even occupation of campus and municipal buildings, have in fact largely been bids for publicity, methods of explaining and dramatizing points of view, attempts to mobilize and test public support. The civil disobedience of the American 1960's is in large measure a way of adapting the democratic principle to contemporary conditions—the growing power of bureaucracies to initiate and execute policy with no meaningful popular consent or even notification, the passivity of the affluent electorate, the urgency of the need for change felt by groups deprived of the means of political power or social advance or both. Given these circumstances, tactical acts of law-defiance must be seen for what they are—ingenious ways of forcing consideration of new issues, sorting out relevant constituencies, and then measuring the scope and intensity of support.

Campus revolts, for example, invariably stand or fall on the degree to which rebels are capable of mustering majority support from the students and the faculty; after the confrontation has occurred, the affair becomes a contest for popular favor between the dissidents and the administration. Sit-ins and acts aimed at dramatizing race and poverty issues, similarly try to focus public support. Often such acts are intended to enforce existing laws, when bureaucrats and legislatures are uninterested and court procedures are too cumbersome to be effective. The hope is that exposure itself will embarrass officials into changing things.

Disobedient acts such as these are certainly, by definition, against the law. When prosecutions occur, courts must convict. Indeed, they do convict, and in the normal case, no one cares very deeply. For charges are usually light, and sentences generally token, whenever disobedient acts are aimed at vindicating prevailing values. The affair is, then, a symbolic event, and is treated as such by everyone involved.

But light sentences cannot be counted on in other instances—draft-card burnings, and other acts aimed at the war and the draft, including simple refusals to accept induction. Such acts are not attempts to appeal to existing community standards but to assert a new morality, one which is understood to be out of touch with and even offensive to prevailing values. These classes of acts inevitably not only result in prosecutions, but excite draconic reactions from legislatures and juries. It is here that a judge ought to play a mediating role between the law and justice. He cannot simply refuse to enforce laws, as Zinn seems to recommend, nor can he declare a statute unconstitutional simply because it conflicts with some individual's method of expressing his discontent with things as they are. But a judge should view such cases—like that of David O'Brien, in which the Supreme Court permitted Congress to impose a six-year sentence on young men who “mutilate or destroy” draft cards—in their true light. They are political obscenity cases. They involve no challenge to the public safety or security or even to its convenience—only to the public morality. Under such circumstances, punishment must be viewed with suspicion, and harsh punishment must be regarded as incompatible with standards of tolerance in a civilized society.

There is, however, another side of this coin. When one is in the business of offending majority values, such enterprises sometimes become exercises in nose-thumbing. There is nothing necessarily immoral about nose-thumbing. Nor can anyone seriously interested in change afford to be intimidated by violence at the hands of an outraged crowd, legislature or police force. But symbolic attacks on prevailing moral standards can have unfortunate strategic effects, especially if the offended public gets the impression that the motivation for a strategy of disobedience is mainly to insult.

The increasing tendency of the politics of confrontation to become a battle of hate between upper-class youths and lower-class cops does not bode well for the future of the new radicalism. Nor does the romanticism of enthusiasts like Mr. Zinn about the virtues of confrontation for its own sake. Ultimately, hopes for worthwhile social change lie in formulating a more widely intelligible critique of the status quo and in attracting new constituencies for change. Disobedience as a political technique has made things happen—things that were beyond the reach of the NAACP Legal Defense Fund or the Senate Foreign Relations Committee. But the very success of disobedience has perhaps extended a fascination with pseudo-events to a point where it begins to monopolize the attention and affections of radicals like Mr. Zinn.