Some will say that the flag-salute dissenters should have obeyed the Court’s first decision, while they worked in the legislatures to have the law repealed, and tried in the courts to find some way to challenge the law again without actually violating it. That would be, perhaps, a plausible recommendation if conscience were not involved, because it would then be arguable that the gain in orderly procedure was worth the personal sacrifice of patience. But conscience was involved, and if the dissenters had obeyed the law while biding their time, they would have suffered the irreparable injury of having done what their conscience forbade them to do. It is one thing to say that an individual must sometimes violate his conscience when he knows that the law commands him to do it. It is quite another to say that he must violate his conscience even when he reasonably believes that the law does not require it, because it would inconvenience his fellow citizens if he took the most direct, and perhaps the only, method of attempting to show that he is right and they are wrong.
Since a court may overrule itself, the same reasons we listed for rejecting the first model count against the second as well. If we did not have the pressure of dissent, we would not have a dramatic statement of the degree to which a court decision against the dissenter is felt to be wrong, a demonstration that is surely pertinent to the question of whether it was right. We would increase the chance of being governed by rules that offend the principles we claim to serve.
These considerations force us, I think, from the second model, but some will want to substitute a variation of it. They will argue that once the Supreme Court has decided that a criminal law is valid, then citizens have a duty to abide by that decision until they have a reasonable belief, not merely that the decision is bad law, but that the Supreme Court is likely to overrule it. Under this view the West Virginia dissenters who refused to salute the Flag in 1942 were acting properly, because they might reasonably have anticipated that the Court would change its mind. But if the Court were to hold the draft laws constitutional, it would be improper to continue to challenge these laws, because there would be no great likelihood that the Court would soon change its mind. This suggestion must also be rejected, however. For once we say that a citizen may properly follow his own judgment of the law, in spite of his judgment that the courts will probably find against him, there is no plausible reason why he should act differently because a contrary decision is already on the books.
THUS THE THIRD MODEL, or something close to it, seems to be the fairest statement of a man’s social duty in our community. A citizen’s allegiance is to the law, not to any particular person’s view of what the law is, and he does not behave improperly or unfairly so long as he proceeds on his own considered and reasonable view of what the law requires. Let me repeat (because it is crucial) that this is not the same as saying that an individual may disregard what the courts have said. The doctrine of precedent lies near the core of our legal system, and no one can make a reasonable effort to follow the law unless he grants the courts the general power to alter it by their decisions. But if the issue is one touching fundamental personal or political rights, and it is arguable that the Supreme Court has made a mistake, a man is within his social rights in refusing to accept that decision as conclusive.
One large question remains before we can apply these observations to the problems of draft resistance. I have been talking about the case of a man who believes that the law is not what other people think, or what the courts have held. This description may fit some of those who disobey the draft laws out of conscience, but it does not fit most of them. Most of the dissenters are not lawyers or political philosophers; they believe that the laws on the books are immoral, and inconsistent with their country’s legal ideals, but they have not considered the question of whether they may be invalid as well. Of what relevance to their situation, then, is the proposition that one may properly follow one’s own view of the law?
To answer this, I shall have to return to the point I made earlier. The Constitution, through the due process clause, the equal protection clause, the First Amendment, and the other provisions I mentioned, injects an extraordinary amount of our political morality into the issue of whether a law is valid. The statement that most draft dissenters are unaware that the law is invalid therefore needs qualification. They hold beliefs that, if true, strongly support the view that the law is on their side; the fact that they have not reached that further conclusion can be traced, in at least most cases, to their lack of legal sophistication. If we believe that when the law is doubtful people who follow their own judgment of the law may be acting properly, it would seem wrong not to extend that view to those dissenters whose judgments come to the same thing. No part of the case that I made for the third model would entitle us to distinguish them from their more knowledgeable colleagues.
We can draw several tentative conclusions from the argument so far: When the law is uncertain, in the sense that a plausible case can be made on both sides, then a citizen who follows his own judgment is not behaving unfairly. Our practices permit and encourage him to follow his own judgment in such cases. For that reason, our government has a special responsibility to try to protect him, and soften his predicament, whenever it can do so without great damage to other policies. It does not follow that the government can guarantee him immunityâ€”it cannot adopt the rule that it will prosecute no one who acts out of conscience, or convict no one who reasonably disagrees with the courts. That would paralyze the government’s ability to carry out its policies; it would, moreover, throw away the most important benefit of following the third model. If the state never prosecuted, then the courts could not act on the experience and the arguments the dissent has generated. But it does follow from the government’s responsibility that when the practical reasons for prosecuting are relatively weak in a particular case, or can be met in other ways, the path of fairness may lie in tolerance. The popular view that the law is the law and must always be enforced refuses to distinguish the man who acts on his own judgment of a doubtful law, and thus behaves as our practices provide, from the common criminal. I know of no reason, short of moral blindness, for not drawing a distinction in principle between the two cases.
I ANTICIPATE a philosophical objection to these conclusions: that I am treating law as a “brooding omnipresence in the sky.” I have spoken of people making judgments about what the law requires, even in cases in which the law is unclear and undemonstrable. I have spoken of cases in which a man might think that the law requires one thing, even though the Supreme Court has said that it requires another, and even when it was not likely that the Supreme Court would soon change its mind. I will therefore be charged with the view that there is always a “right answer” to a legal problem to be found in natural law or locked up in some transcendental strongbox.
The strongbox theory of law is, of course, nonsense. When I say that people hold views on the law when the law is doubtful, and that these views are not merely predictions of what the courts will hold, I intend no such metaphysics. I mean only to summarize as accurately as I can many of the practices that are part of our legal process.
Lawyers and judges make statements of legal right and duty, even when they know these are not demonstrable, and support them with arguments even when they know that these arguments will not appeal to everyone. They make these arguments to one another, in the professional journals, in the classroom, and in the courts. They respond to these arguments, when others make them, by judging them good or bad or mediocre. In so doing they assume that some arguments for a given doubtful position are better than others. They also assume that the case on one side of a doubtful proposition may be stronger than the case on the other, which is what I take a claim of law in a doubtful case to mean. They distinguish, without too much difficulty, these arguments from predictions of what the courts will decide.
These practices are poorly represented by the theory that judgments of law on doubtful issues are nonsense, or are merely predictions of what the courts will do. Those who hold such theories cannot deny the fact of these practices; perhaps these theorists mean that the practices are not sensible, because they are based on suppositions that do not hold, or for some other reason. But this makes their objection mysterious, because they never specify what they take the purposes underlying these practices to be; and unless these goals are specified, one cannot decide whether the practices are sensible. I understand these underlying purposes to be those I described earlier: the development and testing of the law through experimentation by citizens and through the adversary process.
Our legal system pursues these goals by inviting citizens to decide the strengths and weaknesses of legal arguments for themselves, or through their own counsel, and to act on these judgments, although that permission is qualified by the limited threat that they may suffer if the courts do not agree. Success in this strategy depends on whether there is sufficient agreement within the community on what counts as a good or bad argument, so that, although different people will reach different judgments, these differences will be neither so profound nor so frequent as to make the system unworkable, or dangerous for those who act by their own lights. I believe there is sufficient agreement on the criteria of the argument to avoid these traps, although one of the main tasks of legal philosophy is to exhibit and clarify these criteria. In any event, the practices I have described have not yet been shown to be misguided; they therefore must count in determining whether it is just and fair to be lenient to those who break what others think is the law.