In his Guerrilla Open Access Manifesto, Aaron Swartz writes “There is no justice in following unjust laws.” In the context he argues that there has been a private theft of public culture. In effect, copyright enriches the few at the expense of the many. If information were made free then all would benefit. We would return to a state where knowledge was not privatized. The goal sounds laudable and well meaning, but what does it mean?
Is knowledge ever public?
On the surface, Swartz makes sense. Copyright appears to privatize knowledge. However, the copyright only applies to the documents not the ideas. The deeper issue, though, is whether knowledge has ever been public. Certainly, we can say that we want access to materials that are held in libraries. However, that has always been a challenge. One could argue that it is only in recent years, the last 100 that public libraries were built and maintained on a scale that would indicate that they were truly public. It was only in the 19th century that the modern idea of the public library, the type of institution we see today, emerged. In the US, the first public library emerged in 1835. Yet, the public library does not make knowledge public. It makes information available, but it does not make knowledge or wisdom public. To gain knowledge, one must study. One must become educated. Neither of these occurs in public places. They occur in private spaces far away from the public domain. The exception that proves the rule is that Socrates often met in the market place to philosophize. Most dialogues occur in a private setting. However, this takes us away from the central issue, which is obedience to the law.
What is the standard for judging the laws?
The question of access is about the legal control of such material. One can argue that the control should be lessened or even removed, however that does not make the laws surrounding the access unjust. Herein, we see the problem. Mr Swartz wants us to disobey unjust laws. However, he provides us no standard or basis by which to judge the law or laws as unjust. To the extent that he does provide a standard, it appears that it is his personal preference or what he perceives to be an injustice.
In his use of the phrase “There is no justice in following unjust laws”, and calling for civil disobedience it would appear he is echoing, either consciously or unconsciously, the work of Martin Luther King. Dr King, quoted Augustine in his Letter from Birmingham Jail “An unjust law is no law at all”, Like Dr King, Mr Swartz calls upon us to engage in civil disobedience. However, unlike Dr King Mr Swartz offered no standard to judge the laws. Dr King argued that unjust laws are those out of harmony with the moral law or the natural law because they degrade the human personality.
How does one determine when a law is just or unjust? A just law is a man-made code that squares with the moral law, or the law of God. An unjust law is a code that is out of harmony with the moral law. To put it in the terms of St. Thomas Aquinas, an unjust law is a human law that is not rooted in eternal and natural law. Any law that uplifts human personality is just. Any law that degrades human personality is unjust.
If this is an acceptable standard by which to judge the laws that are unjust and thus require disobedience, then we need to consider Mr Swartz’s concern with the law of copyright. Does the law of copyright degrade the human personality? In his manifesto Mr Swartz does not address this point. He argues instead that the common good has been harmed by the “privatisation of knowledge” through copyright. Yet, there is no discussion or thought as to how the common good has been harmed or whether it has been harmed. Mr Swartz assumes or asserts that it has. He argues that the use of copyright to limit access through legal means harms the common good. However, laudable his goal, we have to consider whether his claim is worthy of civil disobedience given its potential impact on obedience to the laws.
Obedience to bad laws is not unjust when the alternative is worse.
Civil disobedience, especially when it suggests that the laws are unjust, can lead to a general disobedience of the laws or mob rule. In such a situation, people only follow the laws they like and disobey the ones they dislike or do not agree with. Lincoln warned that disobedience to the laws, particularly in the United States, can lead political institutions being destroyed. One could argue that the laws America’s most important political institution. In his Address before the Young Men’s Lyceum of Springfield, Illinois, Abraham Lincoln argued that unjust laws were still laws and still worthy of respect and obedience. 
When I so pressingly urge a strict observance of all the laws, let me not be understood as saying there are no bad laws, or that grievances may not arise for the redress of which no legal provisions have been made. I mean to say no such thing. But I do mean to say that although bad laws, if they exist, should be repealed as soon as possible, still, while they continue in force, for the sake of example they should be religiously observed. So also in unprovided cases. If such arise, let proper legal provisions be made for them with the least possible delay, but till then let them, if not too intolerable, be borne with.
Perhaps Mr Swartz had not read Lincoln or considered his concern. America’s most famous example of civil disobedience, Martin Luther King, had. In his Letter from the Birmingham Jail, he explained the steps necessary before civil disobedience could be engaged as it contained a threat to the political institution, which is the laws and obedience to the laws.
In any nonviolent campaign there are four basic steps: collection of the facts to determine whether injustices are alive, negotiation, self-purification, and direct action.
In this letter it would appear there is a harmony between Lincoln and King because they see the second step, negotiation, as the way to change laws. They do not advocate direct action or conflict as a first an immediate step. Moreover, they both seem to accept that self-purification or putting up with the bad laws, until such time that they can be changed, needs to be considered before direct action. In Mr Swartz’s manifesto we do not see these steps. Instead, we are called to take direct action that breaks the laws. This is not civil disobedience, this is theft.
We need to take information, wherever it is stored, make our copies and share them with the world. We need to take stuff that’s out of copyright and add it to the archive. We need to buy secret databases and put them on the Web. We need to download scientific journals and upload them to file sharing networks.
This is not civil disobedience. This is theft. Leaving aside the possibility that Mr Swartz read and was influenced by Proudhon, “All property is theft”, his proposal is dangerous, irresponsible with a touch of youthful naiveté. Disobedience to the laws in this manner, using civil disobedience to justify theft, encourages a spirit of lawless and it encourages a view that the government is corrupt because it enforces the law. Lincoln saw this danger, and he lived through its consequences which he could not have foreseen, when he wrote.
By such examples, by instances of the perpetrators of such acts going unpunished, the lawless in spirit are encouraged to become lawless in practice; and having been used to no restraint but dread of punishment, they thus become absolutely unrestrained. Having ever regarded government as their deadliest bane, they make a jubilee of the suspension of its operations, and pray for nothing so much as its total annihilation. [Emphasis added]
I cannot follow Mr Swartz’s example. I do not see his proposal as one that merits support. Instead of imitating him, we would do well to encourage others to learn from what he proposed and the consequences of what he proposed.
 The parallels between Mr. Swartz and Mr Snowden on this issue is noteworthy. A possible way to understand it could be found in my blog on Mr. Snowden and his political acts. https://lawrenceserewicz.wordpress.com/2013/12/26/snowden-manning-and-tsarnaev-is-the-only-difference-a-pressure-cooker/ (part 1) and
https://lawrenceserewicz.wordpress.com/2014/03/02/snowden-manning-and-tsarnaev-is-the-only-difference-a-pressure-cooker-part-2/ (part 2).