Violence, Nonviolence, Occupy LA and the Law

A very long time ago, at the eastern end of the Roman Empire, in the Land of Israel, two Rabbis were having a political conversation. It was actually more like an argument. We are able to eavesdrop on the conversation because it was recorded (centuries later) in the Babylonian Talmud (Berachot 61b). The Empire had decreed that teaching Torah in public was forbidden. One of the Rabbis, Pappus ben Yehudah, came across the other Rabbi, Akiva ben Yosef, while the latter was doing exactly that which the government had forbidden. Rabbi Akiva was gathering folks together and teaching them Torah. Pappus was fearful for Akiva’s life. He confronted Akiva, saying: “Akiva, are you not afraid of the government?”

Akiva responded with a longish parable whose essence was: what can the Romans do to me? They can put me in jail and/or they can kill me. However, if I am not studying Torah it is as if I am dead already. I will not imprison myself. If the Romans want to imprison me that is a choice that they will make and be responsible for.

The end of the story is known. Akiva was killed as a martyr. However, there was one more scene before the end. After the Romans arrested Akiva, as he was sitting in jail, Pappus was also arrested and jailed together with Akiva. Pappus, apparently, had not been arrested for teaching Torah and when he saw Akiva he said: “Happy are you, Akiva, that you have been seized for teaching and studying Torah! Alas for Pappus who has been seized for busying himself with idle things!”

I have been thinking of nonviolent civil disobedience a lot over the last week or so, specifically in regard to the encampment and eviction of Occupy LA and this story continues to hold my imagination.

The essence of nonviolent civil disobedience is that is poses a challenge to the government or to other institutions. Those who are engaged in civil disobedience are saying that they are following the dictates of their conscience, they are sitting at the lunch counter with everybody else and demanding to be served, they are coming together to voice their concerns to their government. The choice is then placed on the government (which is, of course, supposed to be “of the people”) whether or not to abide that choice. That moment of choice is very clarifying. On the one hand, the government argues that there are laws and those laws need to be followed (e.g. no overnight camping in city parks; no teaching Torah in public spaces). On the other hand, a person or a group of people break that law not violently but by performing an activity which they understand should not be illegal, or an activity whose aim is to focus the attention of the state to a situation which is untenable to their mind. It is at this moment that the government has to decide whether or not to pull back the curtain and reveal the subtext to “the law”: the violence or threat of violence that undergirds the law.

Robert Cover (1943-1986), one of the country’s most influential legal theorists, wrote the following about the violence of the law:

The violence of judges and officials of a posited constitutional order is generally understood to be implicit in the practice of law and government. Violence is so intrinsic to this activity, so taken for granted, that it need not be mentioned. For instance, read the Constitution. Nowhere does it state, as a general principle, the obvious—that the government thereby ordained and established has the power to practice violence over its people. That, as a general proposition, need not be stated for it is understood in the very idea of government. (