"The assumption inherent in the phrasing of the question–and I believe it is deliberate, because this is what you are testing for–is that the law exists as an inalienable authority. We treat it as an inalienable authority, because we needit to provide that ground of being for the functioning of society. It is the codification of the social contract.
"But in point of fact, because society and its contracts are continually changing, the law must be adaptable. It must be an evolving body. The law cannot function as an instrument of justice unless it is also a pragmatic system, adjusting to the circumstances of a mutable society–the same way as you expand a house to meet the growing needs of a family, the law is the house in which the social contract lives.
"As an instrument of justice, however, the law requires specificity–a vague law is unenforceable because it cannot be enforced equally, and if a law is enforced unequally, then such enforcement is inherently unfair and therefore such a law is fatally flawed. As a society changes, the fit between circumstance and law continues to shift and erode, creating more and more situations of inappropriate or unequal enforcement.
"Therefore, it is the responsibility of those entrusted with the maintenance of the justice system to be aware of these legal slide zones as they occur, addressing them with appropriate modifications of the body of the law. Thus, the law cannot be a constant and cannot be held as one, not even by those who must enforce and interpret its applications.
"It is specifically in situations where the fit between law and circumstance is uneven that the law will be tested most aggressively. Unfortunately, the burden of such testing almost always falls on the person who is caught in the sliding gap between law and circumstance. In those situations, Your Honor, where the law cannot adequately be brought to address the circumstances, it may be necessary for the individual to challenge the law itself by resisting it. Henry David Tho‑reau identified one specific form of resistance to the law as civil disobedience."
"So–" I had the feeling Judge Cavanaugh was about to close a trap on the monkey. "You're saying that it's all right to break the law, if the law is unjust … ?"
"Your Honor–" The monkey bowed graciously. "I have not concluded my presentation. Any individual who resists the law must be prepared to suffer the consequences of his or her resistance. He should be prepared to endure incarceration or worse.
"The nature of civil disobedience is not that one is entitled to a 'Get Out of Jail Free' card because the law is wrong. The purposeof an act of civil disobedience is to go to jail and by remaining in jail, cause embarrassment to the law and those entrusted with the structure of it. By going to jail, one calls attention to the unjust law and creates the impetus for change–and that is the intention of civil disobedience, to cause change. So, by its strictest possible interpretation, civil disobedience honorsthe law. The willingness of the individual to suffer incarceration demonstrates his or her recognition of the law's authority–civil disobedience serves as a petition for change. Civil disobedience does not disregard the entire body of law, it challenges only a specific application of the law as unjust with the intention of removing it from the body of the law, because the function of the law must be to provide access to justice.
"But there is anotherassumption in your question that has to be addressed, Your Honor. You used the word breakinstead of challenge.It is always appropriate to challenge the law– in court–for how else can we test the law as an instrument of justice. But the term 'breaking the law' presumes a state of lawlessness on the part of the individual committing the action. It presumes that the individual is challenging the entire body of lawand the society it defines. This is a vastly different domain of behavior than civil disobedience.
"When an individual disregards the body of law, he is setting it aside as irrelevant to his own behavior, or worse, he is setting himself abovethe law. This is a behavior that is intolerable to the society that has authorized the law, because it challenges the entire social contract. The inherent agreement in the social contract is that society will preserve the social contract for the mutual benefit of all participants. If a person does not meet his obligations to the society in which he lives, he has no right to expect the benefits or protections of that society, least of all recognition of his rights as a member of it."
Judge Cavanaugh was fascinated. He leaned forward on the bench with his blubbery chin resting in one enormous hand.
"So," continued the monkey, "the relationship to the law implied by the word breakis one in which the authority of the law is disregarded by the individual. This is a relationship that a society cannot tolerate and still maintain the social contract. Therefore, Your Honor, it is neverappropriate to break the law. It is, however, appropriate to challenge it responsibly." The monkey stopped and looked expectantly to the bench.
"Go on," prompted Cavanaugh.
"To speak directly to your question, it is up to the individual to choose the best avenue of challenge–and the individual must be prepared to accept the consequences of that challenge. A person who argues that he or she should escape the consequences is arguing that participation in the social contract is voluntary, mutable, and arbitrary. Such an argument not only disempowers the underlying ground of being on which the entire legal system stands, it also disempowers the whole concept of civil disobedience as we know it. History has demonstrated more than once why society should grant little weight to this argument. But I digress–the philosophical aspects of the individual's responsibility to the society from which he takes benefit is not the subject of this discussion, is it?" The monkey faced the judge. "Have I resolved your doubts, Your Honor?"
Judge Cavanaugh's expression was halfway between bemusement and awe. He folded his hands in front of himself and leaned forward across the bench. "You give me no choice, but to accept you at face value. No practical joker ever argues the law like that. In fact, damn few lawyers on Luna–or anywhere else–can argue that well. The court recognizes HARLIE as the sole legal counsel for the Dingillian family."
"Your Honor?" That was the monkey.
"Yes?"
"For the record, would you please specify that my role here is notprocedural assistance, but full representation with all the rights and privileges associated with such?"
"So noted," Cavanaugh said, scribbling something on his scratch pad. For a moment, I thought we'd gotten away with it, but Cavanaugh was paying much closer attention than was obvious. Without looking up from what he was writing, he said, "I know what you're doing. I'm going to allow it for two reasons. One, I'm bored. And two, it may very well elevate this case above the level of lunatic asylum. That is, if the lunatics don't figure it out first." I wasn't sure which meaning he intended for the word lunatic,probably both.