The laws you must follow

In a 1961 address before the Fellowship of the Concerned, Martin Luther King, Jr., sought to answer concerns from an interracial group about taking a more gradual approach to fighting segregation and racism.  As part of the address, he acknowledged that the movement posed a question, “[H]ow can you be logically consistent when you advocate obeying some laws and disobeying other laws”?  He sought to distinguish between “a moral obligation to obey just and right laws,” but an obligation to also see that some laws are unjust and to resist them.

How do you tell the difference?  King posed that a just law “squares with a moral right” and “uplifts human personality,” while an unjust law “degrades the human personality” and “does not square with the law of God.”  But King himself seemed uncomfortable with the subjectivity of this test, so he went further.  “[A]n unjust law is a code that the majority inflicts on the minority that is not binding on itself” and so is “difference made legal.”

I’ve struggled with this passage.  There is no doubt that some laws are just, and some are not.  King’s attempt to distinguish between them is as good as any, but still leaves me pondering if there isn’t more to it.  Many laws may be just in some or even most applications, but terribly unjust in another.   And I suspect we all–and perhaps particularly lawyers and judges–trust our instincts to tell the difference.  But can our own instincts be trusted?  Unjust laws have been rationalized throughout time.

How do we create just laws, and avoid the unjust ones?  Or how do we ensure that the just law is not unjustly applied?  As legal professionals–lawyers and judges–how do we react to laws that we may be required to follow or enforce, but that we know to be unjust either in general or in a specific application?

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