¹ Dickinson, John, “A Working Theory of Sovereignty”, Political Science Quarterly, Vol. 43, pp. 32–63, at p. 50 (Mar., 1928)CrossRefGoogle Scholar. Taken by itself, the argument of the Crito (50–51) does, I think, support Dickinson's interpretation. But there are strong grounds for holding a contrary view of what Socrates actually believed. It is clearly the teaching of the Apology (and other Socratic dialogues of Plato) that it is never right to do wrong, regardless of personal consequences. For this reason Socrates refused to obey the command of the Thirty to bring Leon the Salaminian to Athens to be put to death by the oligarchy; and he refused to remain silent when, “as I conceive and imagine, the god orders me to fulfill the philosopher's mission of searching into myself and other men” (Apology, 32, 28). Plainly, Socrates would disobey a law that required him to do an unjust thing. Prom this standpoint, the argument in the aforesaid passage of the Crito can be read as no more than a demonstration to Crito that none of his arguments is sufficient to persuade Socrates to flee prison. This leaves open the question whether Socrates might not have been persuaded by other reasons—e.g., by a refutation of his own implicit thesis that death was really preferable to him than exile, in view of all the circumstances. Such a refutation might have been convincing if there were a different set of circumstances surrounding such factors as his age, the suffering he might cause his friends in Athens, the treatment he might expect in the place or places of his exile, and above all the effect that escape would have had upon Socrates' life-work, his philosophic mission, the thing which was more precious to him. than life.

For another argument in support of the thesis that Socrates would have approved Antigone's action, see Cross, R. N., Socrates: The Man and His Mission (Chicago, no date), pp. 168–72Google Scholar. Aspects of the general problem are discussed in Jaffa, Harry V., Thomism and Aristotelianism (Chicago, 1952), pp. 29–30, 199Google Scholar, and Hall, Jerome, Living Law of Democratic Society (Indianapolis, 1949), pp. 21–22Google Scholar.

² Dickinson, op. cit., p. 50.

³ Aristotle, , Politics, trans. Ellis, William, Everyman's, ed. (London, 1912), 1281aGoogle Scholar.

⁴ It seems hardly necessary to add that while the analysis of this problem is motivated by certain consequences which have ensued from the intense activities of congressional investigating committees in recent years, I am concerned not with the specific conduct of individuals who have appeared before such committees or with the behavior of the committee members themselves, but with the principles of political obligation that are relevant to such conduct.

⁵ For a contemporary view, see the argument by Viereck, Peter in Conservatism Revisited (New York, 1949), pp. 10–11Google Scholar; but note his argument for the reverse position, pp. 20–21.

⁶ Thoreau, Henry David, “Civil Disobedience”, in Walden and Other Writings, ed. Atkinson, Brooks, Library, Modern ed. (New York, 1937), p. 646Google Scholar.

⁷ “Antigone”, in Sophocles, , The Theban Plays, trans. Watling, E. F., Penguin, ed. (London, 1947), pp. 142–43Google Scholar.

⁸ But if in such an instance the state cannot prevent moral disapprobation, and even perhaps the imposition of social and economic sanctions, by those whose sentiments may have been outraged, it can at least assume the obligation not to leave the acquitted man impoverished if in establishing his innocence he has been compelled to exhaust his funds.

⁹ See, for example, Cohen, Morris R., Law and the Social Order (New York, 1933), especially pp. 41–68, 102–11Google Scholar; Bodenheimer, Edgar, “Power and Law: A Study of the Concept of Law”, Ethics, Vol. 50, pp. 127–43, at pp. 133–35 (Jan., 1940)Google Scholar; Pekelis, Alexander H., Law and Social Action, ed. Konvitz, Milton R. (Ithaca, N. Y., 1950), pp. 91–127Google Scholar; and Hale, Robert L., Freedom through Law (New York, 1952)Google Scholar. On the mutual dependence of legal and non-legal social controls, there is, of course, a vast literature—e.g., the writings of Ihering and Gierke, Edward A. Ross and Max Weber, Robert M. MacIver and Bertrand Russell. Some of the juristic thinkers are considered in Stone, Julius, The Province and Function of Law, 2d printing (Sydney, Australia, 1950)Google Scholar, Chs. 11 and 24.

¹⁰ 313 U.S. 299 (1940). See further the cases and discussion in Carr, Robert K., Federal Protection of Civil Rights (Ithaca, N. Y., 1947)Google Scholar, Ch. 4.

¹¹ It is not without interest that even a near-absolutist like Hobbes would in the immediate circumstances seem to sanction a man's refusal to obey. “No man,” Hobbes declared, “is tied by any compacts whatsoever to accuse himself, or any other, by whose damage he is like to procure himself a bitter life … yet in a public trial he may, by torture, be forced to make answer. But such answers are no testimony of the fact, but helps for the searching out of truth; insomuch that whether the party tortured answer true or false, or whether he answer not at all, whatsoever he doth, he doth it by right.” De Cive, II, 19Google Scholar.

¹² Cf. Green, T. H., Lectures on the Principles of Political Obligation (London, 1924 ed.)Google Scholar; Plamenatz, J. P., Consent, Freedom and Political Obligation (London, 1938)Google Scholar, Chs. 1–4; Weber, Max, The Theory of Social and Economic Organization, trans. Henderson, A. M. and Parsons, Talcott (New York, 1947), pp. 324–73, 382–92Google Scholar; and Barker, Ernest, Principles of Social and Political Theory (Oxford, 1951)Google Scholar, Bk. V.

¹³ Crito (trans. Jowett, Benjamin), 50–51Google Scholar.

¹⁴ The fact that Socrates was in prison at the very moment he was thus arguing against Crito's plea that he disobey the law, reinforces the contention in note 1 above that Socrates did not actually accept this position; that he was in fact prepared to yield only a qualified obedience to the laws.

¹⁵ For this reason skeptics have put the argument for social order not in terms of right but in terms of convenience. The difficulty here, of course, is that it then becomes “right” to disobey whenever the social order ceases to be convenient.

¹⁶ I do not mean to imply that Mr. Dennis accepts the logic of his own position. See my Patterns of Anti-Democratic Thought (New York, 1949)Google Scholar, Ch. 3. For the absurdity of the “principle” that might makes right see the classic argument in Rousseau, The Social Contract, Book I, Ch. 3. Compare, however, Spinoza, Tractatus Theologico-Politicus, Ch. 16, and Tractatus Politicus, Chs. 2–4.

¹⁷ Some writers have sought in intuition or in natural law an “objective” criterion in terms of which they could show that democracy is intrinsically and not merely instrumentally best—e.g., Stace, Walter T., The Destiny of Western Man (New York, 1942)Google Scholar and Adler, Mortimer J. and Farrell, Walter, “The Theory of Democracy”, The Thomist, Vols. 3–7 (July, 1941–Jan., 1944)Google Scholar—but all such efforts rest ultimately on certain assumptions which cannot be proved. See further my “Power, Law, and Freedom of Inquiry”, in Educational Freedom in an Age of Anxiety, ed. Hullfish, H. Gordon (New York, 1953), pp. 52–69Google Scholar, at pp. 59–65.

¹⁸ For a recent (though qualified) restatement of this position, see Dorsey, Gray L., “The Necessity of Authority to Freedom”, in Freedom and Authority in Our Time, ed. Bryson, Lyman et al. (New York, 1953), pp. 317–33Google Scholar, at pp. 329–31.

¹⁹ See her autobiography, Living My Life, 2 vols. (New York, 1931), Vol. 2, pp. 726–927Google Scholar.

²⁰ This was clearly perceived by Justice Holmes, who with typical frankness wrote to Frederick Pollock: “I do think that man at present is a predatory animal. I think that the sacredness of human life is a purely municipal ideal of no validity outside the jurisdiction. I believe that force, mitigated so far as may be by good manners, is the ultima ratio, and between two groups that want to make inconsistent kinds of worlds I see no remedy except force.” Holmes-Pollock Letters, ed. Howe, Mark DeWolfe, 2 vols. (Cambridge, 1942), Vol. 2, p. 36Google Scholar. And again, in letters to Harold J. Laski: “… all law means I will kill you if necessary to make you conform to my requirements.” “… there is no superior arbiter—it is one of taste—but when men differ in taste as to the kind of world they want the only thing to do is to go to work killing.” Holmes-Laski Letters, ed. Howe, Mark DeWolfe, 2 vols. (Cambridge, 1953), Vol. 1, pp. 16, 116Google Scholar.

²¹ I am not unaware of the objection that the state cannot regard as irrelevant the effects of such disobedience on others. There is an immense difference, it is said, between disobeying the law when it conflicts with my principles or preferences if such disobedience does not injure others, and disobeying the law at the cost of injury to others. This argument has great force, and in general I think it proper that men should obey even unjust laws when disobedience has the effect of worsening, rather than improving, the situation. But the argument seems to me also to beg two of the very questions at issue: whether the law (and more important the system itself) does in fact injure others, and whether the numerical calculus is a proper principle of justice. In disobeying the law under the circumstances cited here, the dissident takes the position that it is the law (and the system of order as well) which inflicts the injury, and that by disobeying the law he is calling the attention of the people to the injustice of the state. Moreover, if justice involves injury to others, then it is “just” that such injury be inflicted upon them. (In this event, of course, the dissident might well contend that the injury is apparent rather than real.) In any case, the objection does little more than return us to the fundamental issue at stake: which of the conflicting value systems is truly best or just?

²² Politics, 1292b.

²³ There is substantial though not complete truth in Aristotle's dictum that “a well formed government will have good laws, a bad one, bad ones.” Ibid., 1282b.

²⁴ See MacIver, R. M., The Modern State (London, 1926), p. 154Google Scholar. This is not to argue that reason is the only, or the decisive, factor in leading men to obey laws which they regard as unjust. Habit, indolence, deference, fear, and the like, are in most cases the crucial determinants of obedience. See Bryce, James, Studies in History and Jurisprudence (New York, 1901), pp. 467 ff.Google Scholar, and MacIver, R. M., The Web of Government (New York, 1947), pp. 73–81Google Scholar.

²⁵ “My problem,” Laski wrote to Holmes, “is to take away from the state the superior morality with which we have invested its activities and give them [sic] back to the individual conscience.” Holmes-Laski Letters (cited in note 20), Vol. 1, p. 23Google Scholar. See further his Authority in the Modern State (New Haven, 1919), Ch. 1, especially pp. 43, 46, 55Google Scholar; A Grammar of Politics, 4th ed. (London, 1938)Google Scholar, Part I; and Studies in Law and Politics (New Haven, 1932)Google Scholar, Ch. 11. So also Thoreau: “Must the citizen ever for a moment, or in the least degree, resign his conscience to the legislator? Why has every man a conscience, then? I think that we should be men first, and subjects afterward. It is not desirable to cultivate a respect for the law, as much as for the right. The only obligation which I have a right to assume is to do at any time what I think right.” Thoreau, , “Civil Disobedience” (cited in note 6), pp. 636–37Google Scholar.

²⁶ This is convincingly demonstrated in Cohen, Felix S., Ethical Systems and Legal Ideals (New York, 1933), pp. 62–65Google Scholar.

²⁷ There is, however, a certain ambiguity in Hegel's absolutism, stemming from his apparent insistence that Antigone in refusing to obey the law of the state was both right and wrong. Cf. Hegel, Georg W. F., The Phenomenology of Mind, trans. Baillie, J. B., 2 vols. (New York, 1910), Vol. 2, pp. 453 ff.Google Scholar, and Hegel, Georg W. F., Philosophy of Right, trans. Knox, T. M. (Oxford, 1942), pp. 3–10, 100, 114–15, 165–73Google Scholar, and the relevant translator's notes on pp. 299, 301, and 351. Hegel's subordination of the state (the highest reality within the realm of right) to philosophical truth (the highest reality within the whole system) is emphasized in Marcuse, Herbert, Reason and Revolution (New York, 1941), p. 178Google Scholar.

²⁸ For Hobbes' denial that political obligation requires an absolute obedience to all laws, see for example De Cive, VI, 13Google Scholar; VIII, 1; and XV, 18.

²⁹ “A Working Theory of Sovereignty” (cited in note 1), pp. 50–51.

³⁰ See also Elijah Jordan, Theory of Legislation; An Essay on the Dynamics of Public Mind (Chicago, 1952)Google Scholar.

³¹ Cf. MacIver, , The Modern State, p. 482Google Scholar; Fosdick, Dorothy, What is Liberty? (New York, 1939), p. 128Google Scholar; and the writer's Patterns of Anti-Democratic Thought, pp. 204–6, 247–48.

³² As Mr.Jackson, Justice so aptly put it in West Virginia State Board of Education v. Barnette, 319 U.S. 624, 642 (1943)Google Scholar. See also the interesting argument of Nixon, Charles R., “Freedom vs. Unity: A Problem in the Theory of Civil Liberty”, Political Science Quarterly, Vol. 68, pp. 70–88 (March, 1953)CrossRefGoogle Scholar.

³³ This, indeed, is what Lincoln frankly urged in his address in 1838 on “The Perpetuation of Our Political Institutions”: “Let every American, every lover of liberty, every well wisher to his prosperity, swear by the blood of the Revolution, never to violate in the least particular, the laws of the country; and never to tolerate their violation by others. … let every man remember that to violate the law, is to trample on the blood of his father, and to tear the character of his own, and his children's liberty. Let reverence for the laws, be breathed by every American mother, to the lisping babe, that prattles on her lap—let it be taught in schools, in seminaries, and in colleges; let it be written in primers, spelling books, and in Almanacs;—let it be preached from the pulpit, proclaimed in legislative halls, and enforced in courts of justice. And, in short, let it become the political religion of the nation; and let the old and the young, the rich and the poor, the grave and the gay, of all sexes and tongues, and colors and conditions, sacrifice unceasingly upon its altars.” Abraham Lincoln: His Speeches and Writings, ed. Basler, Roy P. (Cleveland, 1946), pp. 80–81Google Scholar.

³⁴ In employing here a modified phrase from ProfessorStone, , The Province and Function of Law (cited in note 9), p. 228Google Scholar, I do not mean to associate him with the doctrine in the text.

³⁵ Voegelin, Eric, “The Oxford Political Philosophers”, The Philosophical Quarterly, Vol. 3, pp. 97–114, at p. 100 (April, 1953)CrossRefGoogle Scholar.

³⁶ This is not, perhaps, inconsistent with Aristotle who, while he defines a citizen as “one who obeys the magistrate” (Politics, 1277a), also affirms that the one care common to all the citizens—that which describes a citizen—is “the safety of the community” (ibid., 1276b).

³⁷ Despite certain phrases in which Professor Barker seems to argue that obedience to the law is the highest political obligation (op. cit., p. 194), I take his general position to be in accord with the proposition affirmed here: that it is the state, not the law, which merits that obedience. Clearly, he concurs with the further judgment that since the state is less than society, obedience to law must be subordinate to obedience to right, the highest moral obligation. Ibid., pp. 193, 221 ff.

³⁸ So Lincoln in the address cited earlier (note 33, above, Basler, p. 81: “… bad laws, if they exist, should be replaced as soon as possible, still while they continue in force, for the sake of example, they should be religiously observed.”

³⁹ It is well to recall the insight of Spinoza: “All men are born ignorant, and before they can learn the right way of life and acquire the habit of virtue, the greater part of their life — has passed away.” Spinoza, , Tractatus Theologico-Politicus, trans. Elwes, R. H. M.CrossRefGoogle Scholar, Ch. 16.

⁴⁰ “Slavery in Massachusetts,” in op. cit., p. 669. Compare the principles and grounds of justifiable disobedience in Neumann, Franz L., “On the Limits of Justifiable Disobedience”, in Conflict of Loyalties, ed. MacIver, R. M. (New York, 1952), pp. 49–56Google Scholar.

⁴¹ Apart, of course, from the submission that looks to God. So Hobbes argued (De Cive, XVIII, 13Google Scholar): “Must we resist princes, when we cannot obey them? Truly, no; for this is contrary to our civil covenant. What must we do then? Go to Christ by martyrdom. …” And so the author of the Vindiciae contra tyrannos (trans. as Languet, Hubert, A Defence of Liberty against Tyrants, ed. Laski, Harold J. [London, 1924], p. 210Google Scholar), who, in the silence of the magistrates and the failure of men to run away, insisted that “there are no other weapons to be used, but bended knees and humble hearts.”

⁴² Cohen, M. R., The Meaning of Human History (La Salle, Ill., 1947), p. 296Google Scholar.

⁴³ To rely on conscience, integrity, and the capacity of man to judge rationally the probable consequences of his act of disobedience is insufficient, perhaps, to meet the objection of those who demand proof both of moral inescapability and of intellectual adequacy. But in the absence of an ethical absolutism and of a determinate aristocracy that embodies this alleged moral and intellectual superiority—and clearly democracy cannot in principle admit either alternative—I see no way to escape this trust.