The obligation to obey the law – the normative
The obligation to obey the law – the normative phenomenon in jurisprudence.
Introduction:
This dissertation aims to provide a general discourse into the normative jurisprudential phenomenon of political obligation. The debate surrounding the issue of whether or not there exists a general obligation to obey the law shall be defined and described, and the arguments of the different positions within this debate shall then be summarised at length, and critically analysed. The author shall then engage with this debate and provide his own opinions as to the correct approach to take when tackling the important question of whether or not there is an obligation to obey the law.
Defining the scope of the debate:
Before we attempt to define the scope of this debate, it is important to first understand the nature of the obligation in question, and also the characteristics of the duty arising from that obligation.
The nature of the obligation: A moral or legal obligation?
Jurists are not often concerned with the legal duty to obey the law, after all, such a notion is circular and meaningless; of course the law imposes a legal duty on its citizens to obey it. As Alexy[1] notes, “… in the praxis of any system of dominion there is an implicit claim to correctness, which must be redeemed to anybody. A normative system which does not raise a claim to correctness explicitly or implicitly is not a legal system.”
Neither can the law provide ultimate reasons for action, just as a parent will be unable to explain to their perpetually inquisitive child why they must not steal without recourse to the underlying morality of the actions involved in such a crime. As Nino[2] notes, “Legal norms do not by themselves constitutive reasons for justifying actions and decisions (like those of judges), unless they are conceived as deriving from moral judgments; normative propositions that exhibit the distinctive traits of autonomy, justificatory finality, universalisability, generality, supervinience and finality”.
Therefore, rather than an assessment of the legal obligations to obey the law, most[3] jurists are instead concerned with the moral aspect of this obligation; are we always morally obliged to obey the law, and if not, in which situations may such a moral duty be deemed non-existent?
The characteristics of the duty arising from this obligation: An absolute duty, or merely a prima facie one?
To argue that there is an absolute duty to obey the law is to simultaneously suggest that in the case of every law, the moral reasons for obeying such law could never be outweighed by moral reasons pointing to disobedience. Such a position seems to pay no regard to notions of individual autonomy. As Menendez[4] writes, “if we consider it as providing an absolute reason, then we cannot any longer see it as part and parcel of the exercise of our practical reason, but as an alternative to it.”
On the other hand, if we are to argue that the only duty that exists is a prima facie one, i.e. that a duty can be said to exist until it is rebutted by an assessment of the moral content of the law, then we are in essence suggesting that the law will only impose an obligation upon us where we as individuals are able to agree with the morality underlying the law in question. Such a position seems to pay little regard to the need of a legal system to be generally obeyed in order for it to successfully perform its roles of conflict solving and social co-ordination. As Raz[5] writes: “legal norms are reasons for acting, and not merely statements to the effect that there are reasons for acting.”
The actual characteristics of the duty in question must lie somewhere between these two positions; the law must respect the processes of individual reasoning, but at the same time must impose obligations upon its citizens, at least to the extent that the system is able to retain social order and manage social conflict. As we shall observe later in this essay, different jurists have their own opinions of where the balance should be perceived to lie, although as we shall also see, this position tends to be nearer a notion of a prima facie duty, than that of an absolute duty.
With these considerations in mind, let us now briefly attempt to define the scope of this jurisprudential debate.
Defining the scope of the debate
There is a divide amongst legal philosophers over the fundamental question of whether or not there is an obligation to obey the law.
Some jurists, such as Rawls[6], Finnis[7] and Honore[8], argue that the law always has prima facie authority over its citizens, i.e. that before the content of a law is assessed, it is morally right to comply- albeit that it may later be qualified. For the sake of later discussion, let us refer to this position as position 1. Other legal philosophers such as Smith[9], have rejected this position arguing that whether or not there is such a duty to obey the law depends entirely upon which law in question is being obeyed/disobeyed i.e. that only sometimes will there be a prima facie moral obligation to obey the law [Position 2]. Between these two positions lie the opinions of jurists such as Raz[10], who argues for a more or less general prima facie obligation to obey the law, and Greenawalt[11], who, as mentioned earlier, offers an interesting alternative view which tries to show how there could be legitimate authority without a moral obligation to obey the law, a theory which is contrary to the working assumption of this paper that the nature of the obligation in question must be a moral one.
At this point in my dissertation I would like to make some more general points about the issue of whether or not there is a duty to obey the law, in particular to make some remarks about the irreconcilability of this question with the basic tenets of legal positivism.
Critics of positivism have often voiced their concerns over this very point; they argue that if the claims which positivism makes are correct about the separation of laws and morals, then there can never be a moral obligation to obey the law which arises because of the law. In other words, they cannot suggest that the law must be obeyed without resorting to some other authority other than the law itself. Lon Fuller, a natural lawyer, is one of these critics, as is Feinberg[12], who argues that: “The positivist account of legal validity is hard to reconcile with the claim that valid law as such, no matter what its content, deserves our respect and general fidelity. Even if valid law is bad law, we have some obligation to obey it simply because it is law. But how can this be so if a law’s validity has nothing to do with its content?”
In many respects this is an argument that is hard to dispel. Certain contemporary positivists have even accepted, such as Himma[13], that positivism is irreconcilable with a notion of a duty to obey the law arising from the mere fact that it is the law. He argues that a citizen has a moral obligation to obey laws which contain norms worthy of moral obedience, such as those law prohibiting theft, murder, and even laws which are necessary to retain certain levels of human control, such as driving offences, but admits that a law creates no moral duty of obedience simply on the basis that it is the law.
The result of this admission is as follows; positivists have been forced to seek out justifications for a prima facie obligation to obey the law, and have done so, quite unsuccessfully [as we shall now see], through reference to arguments based on gratitude, fairness, social contract via implied consent and utilitarian arguments pertaining to the common good.
Let us now discuss the intricacies of these position 1 arguments in more detail, and critically analyse some of the justifications that have been offered by these leading jurists in support of their position.
Defending position [1]: there is a general prima facie moral duty to obey the law.
Four concepts have been advanced as giving rise to this duty[14]; 1] Gratitude; 2] Promise-Keeping; 3] Fairness, and; 4] Promotion of the Common Good. Let us assess each of these concepts in turn:
Gratitude:
The basic concept underlying this justification for a general prima facie moral duty to obey the law is as follows: In light of the great benefits which the law has conferred upon its citizens, those citizens should obey those laws, unless there is a good reason not to in a particular case.
Promise-Keeping:
This concept suggests that any citizen who enjoys the benefits and protections of the law commits him or herself to a social contract, which states that in return for such benefits they will obey the law. In this way a citizen is morally obliged to obey the law unless they have good reasons to the contrary.
John Rawls[15] was a strong proponent of this thesis, although his formulation was somewhat more sophisticated than the reasoning above: He asserted that a society is just if it is governed by principles which people would have agreed to in a state of ignorance about their own particular position in society. He went on to argue that a natural consequence of this ‘veil of ignorance’ is a natural duty to obey the law; where the society is just (or nearly just), then there is a ‘natural duty’ of all citizens to support and further just institutions, because they would be collectively labelled right by the very people that are governed by them. Under Rawls’ theory, the duty exists independently from the promise to obey that which is required of them by an institution in a just society, because behind their ‘veil of ignorance,’ people would have agreed to it. In this way Rawls manages to justify the existence of a duty to obey, even where a particular law is not particularly just, provided the basic structure of the society is reasonably just. Rawls does not advocate an absolute duty however; he argues that where a particular law exceeds certain limits of injustice, conscientious refusal is warranted, or even civil disobedience, should the injustice reach blatant levels.
3] Fairness
This argument is twofold; firstly, in light of all the benefits that the law confers on its citizens, it would be unfair for a citizen not to obey them, and; secondly, a citizen has a duty to obey the law, not because that citizen owes anything to the government, but because he or she owes something to his or her fellow citizens; if everyone else complies with the law, then it is not fair for one citizen not to, whilst at the same time still receiving the benefit which that law confers.
In essence therefore, under this concept, there are two tests that must be satisfied before it can be said that a prima facie moral obligation to obey the law has been established on the grounds of fairness. Firstly, the law must have generally beneficial effects; and secondly, most citizens must obey the law, so that a citizen would be taking an unfair advantage should he or she decide not to.
The latter part of this test is identical to the argument offered by Dworkin[16] in justification of his general moral duty to obey the law; Dworkin asserts that a man is under a moral duty to obey the law for reasons of fairness, as outlined above, but at the same time, that same man may also be under conflicting duties other than those he owes to the state, such as to God and his own conscience; if these further duties conflict with his duties to the state, then Dworkin argues that such a man is entitled to do what he judges to be right.
4] Promotion of the Common Good:
This ground for the existence of a prima facie duty is grounded in the ideals of utilitarianism; if citizens break the law then the collective welfare of society will diminish: therefore citizens are morally obliged to obey the law. The disadvantage suffered by one citizen through giving to obey the law should, under this reasoning, be balanced against the benefit conferred to society as a whole by his compliance.
Finnis[17] is one of the main proponents of this theory, although his reasoning does go somewhat further than the simple utilitarian approaches offered above. Finnis argues that fulfilling legal obligations is necessary for the common good, simply because the common good is the good of individuals.
Having described and understood all of the possible justifications promoted for the existence of a general prima facie moral duty to obey the law [position 1], let us now return to each of them and offer some critical analysis:
Defeating Position [1]: no prima facie moral duty to obey the law can be justified via the concepts of gratitude, promise-keeping, fairness or the promotion of the common good:
1] Gratitude:
Whilst gratitude in its normal everyday meaning might indeed lead to certain moral obligations, never has it been suggested that as a direct result of gratitude one should do everything that is asked of you. It is for this reason that this ground is weak, and does not adequately justify a general prima facie moral duty to obey the law.
2] Promise-Keeping:
It is instantly obvious that no general prima facie duty could ever be said to exist by virtue of the basic promise-keeping rationale; unlike a party to a contract, a citizen has no real choice as to which country he or she belongs, and therefore even though that citizen may indeed receive benefits, be given the chance to vote, and be subjected to a just social structure, there is nothing embedded in the process of receiving these benefits which would lead one to automatically assume the imposition of a promise to obey. Therefore, I do not agree that a general prima facie obligation to obey the law can be derived by way of this rationale.
3] Fairness:
This justification for a prima facie moral obligation to obey the law relies heavily upon an idea that all law confers benefits; an anarchist however may argue that the state produces no such benefits.
Also, it is difficult to the concept of ‘fairness’ to a legal constraint which actually does no-one any good: if this type of case is frequently occurring, then the analysis of fairness as day to day co-operative transactions will break down.
4] Promotion of the Common Good:
Whichever brand of utilitarianism one chooses to apply to this concept, the same conclusion results; ‘promotion of the common good’ cannot be used to justify the existence of a prima facie duty to obey the law:
Act-Utilitarianism:
The very mechanics of act-utilitarianism require a balancing act of all the positive and negative attributes of a certain action before deciding which course would be in the interests of the common good; to decide whether or not a duty to obey the law exists will therefore depend upon which particular law is in question. As such, there can be no prima facie obligation to obey the law via this concept.
Rule-Utilitarianism:
The very mechanics of rule-utilitarianism suggest that an action is right if it is required by a rule where general observance of that rule would have the best consequences. Following on from this, it makes sense that a rule requiring one to obey (with certain exceptions) would probably have better consequences than a rule requiring one always to obey. The process of formulating a comprehensive list of such exceptions would in effect require an assessment using the same mechanisms as relevant to act-utilitarianism, and as such, the same criticisms to a prima facie duty will apply.
It should be noted that these criticisms do no necessarily serve to destroy the arguments of Finnis; Finnis argues that that fulfilling legal obligations is necessary for the common good, simply because the common good is the good of individuals. This is a theory that I will address in more detail at a later point in this dissertation. For now, we should simply be satisfied that any justifications based upon act- or rule- utilitarianism cannot be successful in establishing the existence of a general prima facie duty to obey the law.
In essence, the criticisms of act-utilitarianism and rule-utilitarianism do not preclude there ever being a duty to obey the law, merely that the existence of such a duty can only be determined with reference to each particular law. This leads us back to our earlier discussion of ‘position 2’ jurists, those such as Smith[18], who argue that whether or not there is such a duty to obey the law depends entirely upon which law in question is being obeyed/disobeyed i.e. that only sometimes will there be a prima facie moral obligation to obey the law. Before we go on to discuss the rationales that have been offered in support of position 2, let us first take a brief look at the work of George Klosko[19], and his multiple principle theory of political obligation:
George Klosko’s multiple principle theory of political obligation; combining the failing justifications of Natural Duty, Fairness and the Promotion of the Common Good, into a comprehensive justification for the existence of a general moral obligation to obey the law:
George Klosko employs three concepts in order to combine the principles of Natural Duty, fairness and the promotion of the common good into a single comprehensive unifying theory. He labels these three concepts as cumulation, mutual support and overlap. He describes these three principles in the following way:
‘First is what we call cumulation. Different principles can cover different services provided by the state, and so by combining principles, a larger range of state services can be accounted for. Second is what can be referred to as mutual support. In regard to certain state functions, if a given principle on its own cannot justify compliance, the problem might possibly be overcome by more than one principle working in tandem. The third way is simple overlap. The intuition here is that, while requirements to obey given laws could be relatively weak, these can be strengthened by support of additional principles.[20]’
These three concepts admit that individually arguments of Natural duty, fairness and those argument pertaining to the common good must fail in their task of explaining and identifying a general moral duty to obey the law, but using these three principles as described above, he purports to show how these failing arguments can be combined to successfully address those limitations. The principle of culmination serves to suggest that the main limitation of these theories is their applicability to a limited area of state function, i.e. the services that the state provides to its citizens. Mutual support deals with the limitations of these individual arguments in relation to their attempt to justify a general moral obligation to obey the law, and the overlap principle deals with the respective weaknesses of each of these individual arguments, very much in the same way as we have done earlier in this essay.
Klosko argues that a theory that only purports to account for one type of state function cannot be said to lead to a general duty to obey the law. He argues that state functions are social facts, and as such the failure of theorists to account for the variety of these functions in their theories is a factual failure in their arguments, a factual failure which must therefore lead to conclusions which are non-comprehensive and cannot therefore be said to give rise to the general moral duty to obey the law which they purport to do.
Whilst prima facie I can see the point that Klosko is making; each of these theories do work to a certain extent, the problem being that we are always able to find many situations which exist where the theories fail to hold up to scrutiny. What Klosko has therefore tried to do is to incorporate these theories together, so that when one of them fails, another justification can step in to uphold our position of there being a general moral duty to obey the law. Whilst at first this may seem somewhat artificial, at least Klosko has tried to justify the fusion of these very different arguments by reference to state function.
One cant help however feeling that some of the failures of the very individual justifications that he is using, rather than being simply due to their limited scope [by virtue of differing state functions], are so fundamental as to render any fusion of them inappropriate. By the end of this essay I shall hopefully have demonstrated that the best analysis of the question of whether or not there is a general moral duty to obey the law does not result from any of these individual arguments, neither from the fusion of them, but rather from a wholly new conceptualization of the character of the obligation and duty itself.
Let us now turn to the position 2 theorists, and see if we can find some compelling arguments amongst their writing:
Defending Position [2]; there may be a prima facie obligation to obey some laws, but such a duty cannot be a general one:
M.B.E. Smith is commonly known as an advocate of this position. In his earlier work, ‘Is There a Prima Facie Obligation to Obey the Law?’ he performs an analysis of all the arguments which purport to support the existence of a ‘position [1]’ duty to obey the law, providing successful counter arguments for each, and finally concluding as a result these analyses that the true answer to the question of whether or not there is a general prima facie moral duty to obey the law must reside at ‘position [2];’ whether or not there is such a duty to obey the law depends entirely upon which law in question is being obeyed/disobeyed i.e. there will only sometimes be a prima facie moral obligation to obey the law.
Defeating Position [2]; Simply because we cannot find adequate justification for the existence of a general prima facie moral duty to obey the law does not mean that we must, by default, resort to the conclusion that the most accurate description of this normative phenomenon is that of there only sometimes being a prima facie moral obligation to obey the law:
Simply because we cannot find adequate justification for the existence of a general prima facie moral duty to obey the law does not mean that we must, by default, resort to the simplistic conclusion that the most accurate description of this normative phenomenon is that of there only sometimes being a prima facie moral obligation to obey the law.
Joseph Raz, in his ‘Theory of Justice’ (1971) argues this point exactly. He does not understand why theorists have not ventured to reach a compromise between position [1] and position [2], especially in light of the fact that it seems so clear that the true answer must lie somewhere between these two extreme positions. Raz therefore proposed such a theory.
The compromise between position [1] and position [2]; J. Raz, in search of a new characterisation:
Earlier in this essay we discussed the character of the duty in question. We argued that whilst the duty will never be an absolute one, neither is it realistic to suggest that such a duty will be generally prima facie in character.
To reiterate those arguments, for the duty to be absolute is to deny a place for individual reasoning and autonomy in a society; if every law must be obeyed regardless of any extraneous personal beliefs or opinions, then personal practical morality is denied. Likewise, if the duty was prima facie in character, the ability of the law to retain social order and manage social conflicts may come into question;
Raz therefore decided that an alternative characterisation of the obligation was required, and so was born the notion of an ‘absolute reason’, or, as it has become known by certain other jurists[21], ‘the exclusionary reason.’ Let us now consider exactly what Raz understands by it:
Raz’s new characterisation of the obligation to obey the law:
Raz introduces the idea of there being two orders of practical reason; first-order reasons and second order reasons. These reasons are ‘practical’ in that they are the kind of reasons that may feature in an individual’s decision process when that individual is attempting to decide upon a particular course of action, i.e. reasons to act or to refrain from acting for a reason. Second order reasons are higher in priority that first-order reasons, and as such, if two such reasons should come into conflict, it will be the second-order reason that shall prevail. Second-order reasons however might themselves be trumped by what Raz describes as ‘cancelling-reasons’, reasons which might exist within the context of the particular decision process at hand which could render the secondary-reasons void. The jurisdiction of a ‘cancelling-reason’, i.e. its scope within the context of a particular decision, will be affected by what Raz calls ‘scope-affecting reasons.’ Exclusionary reasons are second-order reasons of a special kind; whereas all the other types of reasons may be distinguished by their ground, exclusionary reasons have a special normative role to play in the whole practical deliberative process, and it is this normative role by which exclusionary reasons should be distinguished. In effect therefore, ‘A second-order reason is any reason to act or to refrain from acting for a reason, whereas an exclusionary reason is a second-order reason to refrain from acting for some reason.[22]’ Exclusionary reasons exclude other secondary reasons from playing their normal role in the deliberative process, in effect cancelling these otherwise valid reasons from the decision making process. To best understand the nature of these exclusionary reasons, and how they operate within the practical decision making process, let us follow through Raz’s very argument for the existence of these special secondary reasons:
Raz commences his argument with an analysis of a couple of examples of the decision-making process. The first example scenario involves an agent who refuses to accept a business deal on the basis that he is too tired to think about whether or not the deal could be advantageous to him. Raz explains how the decision making process in this example did not involve the processing of the actual fact pertaining to the deal in question, but rather on the basis that she realised that she was too tired to perform a thorough assessment, and as such decided to play safe and decline. In this case, the first order reasons would be the facts relating to the deal, and these are trumped by the second-order reason of tiredness. Raz then proposes the situation where a colleague of the agent, another like-minded agent of similar financial status, decides to accept an identical deal; this may prove to be an adequate reason for the agent, despite her tiredness and inability to assess all the intricacies of the deal, to accept the deal. In such a case, we could say that the fact that the other agent accepted the deal serves as a reason for her to accept it herself. This reason does not outweigh the tiredness reason, nor does it undermine it, but it does result in a different outcome to her decision-making process.
The second example scenario offered by Raz is as follows: ‘While serving in the army Jeremy is ordered by his commanding officer to appropriate and use a van belonging to a certain tradesman. Therefore he has reason to appropriate the van. His friend urges him to disobey the order pointing to weighty reasons for doing so. Jeremy does not deny that his friend may have a case. But, he claims, it does not matter whether he is right or not. Orders are orders and should be obeyed even if wrong, even if no harm will come from disobeying them. That is what it means to be a subordinate’[23]. According to Raz, the order given to Jeremy by his commanding officer should be regarded as an exclusionary reason in that it excludes the reasons offered to him by his friend, from featuring in his practical deliberative process, despite the fact that these reasons were sound in nature. This is what Raz means by ‘exclusionary reasons.’ As stated above, these reasons are distinguishable by virtue of their normative role, a role which Raz describes as “…reasons for performing certain actions, and, other things being equal, the fact that they are excluded by an exclusionary reason merely means that they should not be complied with, not that they should not be conformed to. The best course is if they are indirectly obeyed, i.e. if the action they indicate is performed for some other, independent, reason.[24]’
Let us now apply this characterization to our general duty to obey the law. The first thing which becomes evident is that the duty to obey the law can itself be described as an exclusionary reason; when we state that someone is under a duty to obey the law, we are effectively stating that in the decision process of that person, reliance on extra-legal considerations in the formulation of the decision of whether or not to act in such a way has no actual place in that process. Such extra-legal considerations are thus excluded from the practical decision making process by the very existence of a duty to obey the law.
One might argue here that an analysis of the duty in this way yields no different results to that of the characterization of the duty as an absolute one. In fact, whilst the result may very well be the same, the description of the duty as an exclusionary reason does give respect to the existence of a balancing decision making process, in a way which an absolute conception would not; as Menendez[25] writes, “the duty to obey the law, when conceptualized as an exclusionary reason, precludes direct weighting and balancing, but it does not rule out a margin of exercise of practical reason. This is enough to render compatible the obligation with individual autonomy.”
Raz’s picture of the duty to obey the law is certainly the most convincing to date; although somewhat contrived, it does manage to reconcile legal and moral duty in a way which allows the law to retain a legitimate authority, whilst respecting the fact that human beings are essentially autonomous in their decision making.
Let us now see if we can find any criticisms of Raz’s
