Civil Disobedience in a Business Context: Examining the Social Obligation to Obey Inane Laws

• Date: 01 June 2010
• DOI: http://doi.org/10.1111/j.1744-1714.2010.01095.x
• Author: Daniel T. Ostas
• Published date: 01 June 2010

Civil Disobedience in a Business

Context: Examining the Social

Obligation to Obey Inane Laws

Daniel T. Ostas

n

INTRODUCTION

Folklore recounts a rather amusing exchange between Ralph Waldo Em-

erson and Henry David Thoreau. Emerson spoke first, ‘‘Why, Henry, why

are you in jail?’’ To which the younger Thoreau replied, ‘‘My dear Waldo,

the question is why are you not!’’ The conversation reportedly took place

as Thoreau spent a night in a Massachusetts jail for failure to pay his poll

tax. Thoreau conscientiously refused to pay a tax that would support both

slavery and a war with Mexico that he deemed unjust. The night in jail

would prompt Thoreau’s classic essay on civil disobedience,

1

broadly de-

fined as the deliberate violation of law for reasons of conscience and moral

principle.

2

r2010, Copyright the Author

Journal compilation r2010, Academy of Legal Studies in Business

291

American Business Law Journal

Volume 47, Issue 2, 291–312, Summer 2010

n

Professor of Legal Studies and Harlow Chair in Business Ethics, Michael F. Price College of

Business, University of Oklahoma. B.S., Purdue University; J.D., Indiana University of School

of Law; Ph.D. (Business Economics), Indiana University of School of Business.

I thank Professor Laura Hartman for helpful comments on an earlier draft. All errors re-

main my own.

1

See generally HENRY DAVID THOREAU,On the Duty of Civil Disobedience,in WALDEN AND CIVIL

DISOBEDIENCE 241 (2003) (originally published in 1849 and titled Resistance to Civil Government).

2

Philosopher John Rawls notes that it has become ‘‘customary’’ to define civil disobedience as

‘‘any noncompliance with law for conscientious reasons.’’ JOHN RAWLS,ATHEORY OF JUSTICE

368 (1971). Rawls attributes this customary understanding to Thoreau’s classic nineteenth-

century essay.Id. The present analysis employs this meaning as well. See infra notes 15–39 and

accompanying text (distinguishing the various forms of civil disobedience, including political

civil disobedience, conscientious objection, conscientious evasion, and justified civil resis-

tance).

Perhaps the earliest literary expression of civil disobedience comes

from Sophocles’ Antigone, penned in the fifth century B.C.

3

As the play

opens, Creon, King of Thebes, has declared Antigone’s brother, Polyne-

ices, guilty of treason and ordered that his body lay unburied for the ‘‘birds

and scavenging dogs’’ to do with as they will.

4

Motivated by an urgent

sense of familial duty and abhorred by the injustice of Creon’s decree,

5

Antigone deliberately defies the king, spreading dust on her brother’s

body while offering burial rites.

6

A trial ensues in which Antigone ex-

presses her contempt for any manmade law that defies the divine.

7

Her

appeal to divine law fails, and Creon condemns her to death.

8

Though the acts of Thoreau and Antigone were illegal, they typically

are viewed in a positive light. Slavery posed an abomination, and anyone

brave enough to resist did so justly. Though Antigone defied the king’s

decree, her motives were pure, and Sophocles portrayed the fiery sister as

the protagonist, not the villain. Other acts of civil disobedience, including

Harriet Tubman’s Underground Railroad, Martin Luther King, Jr.’s illegal

marches and sit-ins, and Mahatma Gandhi’s organized incitements to dis-

obey a host of British laws, are unabashedly held up as exemplars to follow.

Popular culture views Tubman, King, and Gandhi not as criminals, but as

heroes.

9

3

See generally Sophocles, Antigone,in THE OEDIPUS CYCLE 183 (Dudley Fitts & Robert Fitzgerald

trans., 1949).

4

Id. at 193.

5

Explaining Antigone’s choice, Theodore Ziolkowski notes that ‘‘few of the unwritten laws of

Greek antiquity match in urgency the sacred command to bury the dead.’’ THEODORE

ZIOLKOWSKI,THE MIRROR OF JUSTICE 146 (1997).

6

Sophocles, supra note 3, at 197–98.

7

See RICHARD A. POSNER,LAW AND LITERATURE:AMISUNDERSTOOD RELATION 111–12 (1988) (using

the debate between Creon and Antigone to illustrate the distinctions between legal positivism

and natural law).

8

See generally Robert P. Lawry, Ethics in the Shadow of Law: The Political Obligation of a Citizen,52

CASE W. RES.L.REV.655, 681–98 (2002) (examining Antigone’s choice to defy law); Susan W.

Tiefenbrun, On Civil Disobedience, Jurisprudence, Feminismand Law in the Antigones of Sophocles and

Anouilh, 11CARDOZO STUD.L.&LIT. 35 (1999) (comparing and contrasting Sophocles’ version of

Antigone with one crafted in 1944 by French playwright Jean Anouilh).

9

See generally William P. Quigley, The Necessity Defense in Civil DisobedienceCases: Bring in the Jury,

38 NEW ENG.L.REV.3, 19–26 (2003) (reciting with implicit approval a lengthy list of historical

instances of civil disobedience).

292 Vol. 47 / American Business Law Journal