One’s relationship to laws, under which societies function, in an abstract sense is built upon the notion of social contract. Be it an implied or explicit social contract, one’s physical existence within a certain geopolitical territory and existential dependence on a certain set of systems and structures that allow a society to operate establishes some type of relationship between the individual and the state within which they live. The laws of a state are more often than not created, enforced, and changed by members of a small group of policy makers and legislators. Even more often than not, that small group of policy makers and legislators are composed of a nearly demographically homogenous collection of individuals with complementary ideas of a particular sociopolitical telos. In addition to the demographic homogeneity, however, is ideological tension that affects decision-making and legislative processes in various ways. An historic example is the first recorded debate about the death penalty 2500 years ago in Greek antiquity between Kleon and Diodotos whose stances are detailed in Thucydides’ Histories. The debate centers on the question of what to do with the rebellious Mytilenians during the time of the Peloponnesian Wars in response to their revolt against Athenian power that threatened the possibility of enslavement and limit freedoms under the strength of Athenian government. The Mytilenian debate included claims, by Kleon in the Athenian assembly, that alleged that the Athenian government was “more like an audience for the sophists than an assembly deliberating for the good of the city,” (Thucydides 3.37-8). In addition, he claims that “if [the rebels] were right in rebelling, [the Athenian government] must be wrong in ruling.” This critique of the Athenian government calls into question the “rightness” of the government itself which, ultimately, ties into the question of whether or not there is an obligation to obey the law. Is there a litmus test to assess the “rightness” of a governing body? If so, where would one locate it and how would one determine if one’s means of assessing are necessary and universal? The question of “rightness” is key to resolving the issue as to whether or not there are justifications for disobeying laws. From Kleon to the drafters of the US Constitution to the global decision makers of this contemporary moment in political history, the ideological buttresses that support the public policies of people in positions of legislative power can render social contracts (footnote: between the individual and the state within which they live) null and void and allow for the justification of the disobeying of laws.
INSTITUTIONAL DISCRIMINATION AND SOCIAL CONTRACT THEORY
In Plato’s Crito Socrates explains to the titular character why he refuses to flee prison; an act that would represent an injustice. The final passages of the text, in fact, offer Socrates’ nationalistic defense of social contract theory that reveals how strong he finds the connection between citizen and state. Having chosen to remain in Athens his whole life, go through the Athenian education system, and raise his children in Athens he felt himself bound to the laws of the state. One could argue that Socrates’ nationalistic loyalty to the laws of the state was the right thing for him to do; he himself, in detail, made clear the importance of the social contract of citizenship. His clarity and commitment to the alleged terms of citizenship, however, are not necessarily right in regards to justice.
Socrates places his relationship to the state above his commitment to justice qua justice and his opposition to carefully critiquing the state itself represents a tragic flaw in his arguments to Crito. Abstractly, the relationship between justice, rights, and laws is complex and affected by the embodied exemplars of justice-related operations of the state. Given the fallibility and implicit biases of the legislators and law enforcement agents of the state, ideas of what’s best or good for a society can lead to the implementation of discriminatory laws. In some societies human flourishing is limited due to the presence of lingering dehumanization rhetoric and discriminatory ideologies that permeate legislation and public opinion. When human flourishing is limited in societies dominated by oppressive structures and discriminatory systems, those limits are often drawn by legislative measures set in place to perpetuate cultures of domination. In Socrates’ case there lacked an adequate questioning of the laws themselves that is an apathetic but normative way to view the laws of one’s society. The propensity for laws to directly infringe on humans rights, civil liberties, and personal freedoms remains as pervasive in the present day as it was in antiquity. Socrates’ commitment to that society given his loyalty to the social contract of citizenship rendered him incapable of examining the laws in as through and critical of a way as was necessary for him to recognize the injustices of the state.
BROKEN PROMISE, BROKEN LAW
In Martin Luther King Jr.’s Letter from a Birmingham Jail he outlines his reasons for engaging in civil disobedience. Amongst those reasons, the key to his argument is what he explains is a “broken promise” at the expense of the marginalized that complicates the social contract between civil rights activists and the United States government. To King, “the law’s content should be compatible with the conditions necessary for moral agency to flourish” and given that those conditions were not met to all individuals living under the jurisdiction of the state, he found his actions necessary for the sake of justice.
His commitment to justice qua justice as opposed to his relationship to the state is representative of his commitment to critically analyzing the state itself. He knew that the ever-evolving racist laws of the United States directly infringed on human rights, civil liberties, and personal freedoms and those injustices, to King, took precedence over any form of social contract theory of citizenship that could have committed him to an anti-civil disobedience stance on the matter.
The contention between King and Socrates ultimately reveal an underlying question that drives their respective behaviors in the face of alleged injustice: in regards either justice or the law, to what ought a citizen be committed? Since justice and the law are often thought of as inextricably linked components of government, it could be difficult for some to accept the fact that justice qua justice takes precedence over the laws. Consequently, any obligation to justice is of greater importance than moral or contractual obligation to the law. Only in an ideal society unplagued by institutional discrimination and bias-ridden legislation could an obligation to obey the law be remotely permissible since human rights, civil liberties, and personal freedoms would be less subject to infringement by the state.