24/1/08

Philosophy of Law ( 3rd Part )

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Philosophy of Law ( 3rd Part)

The Obligation to Obey Law

Natural law critics of positivism (e.g., Fuller 1958) frequently complain that if positivism is correct, there cannot be a moral obligation to obey the law qua law. As Feinberg (1979) puts the point:
The positivist account of legal validity Ö is hard to reconcile with the [claim] Ö 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?

The idea is this: if what is essential to law is just that there exist specified recipes for making law, then there cannot be a moral obligation to obey a rule simply because it is the law.
Contemporary positivists, for the most part, accept the idea that positivism is inconsistent with an obligation to obey law qua law (cf. Himma 1998), but argue that the mere status of a norm as law cannot give rise to any moral obligation to obey that norm. While there might be a moral obligation to obey a particular law because of its moral content (e.g., laws prohibiting murder) or because it solves a coordination problem (e.g., laws requiring people to drive on the right side of the road), the mere fact that a rule is law does not provide a moral reason for doing what the law requires.

Indeed, arguments for the existence of even a prima facie obligation to obey law (i.e., an obligation that can be outweighed by competing obligations) have largely been unsuccessful. Arguments in favor of an obligation to obey the law roughly fall into four categories: (1) arguments from gratitude; (2) arguments from fair play; (3) arguments from implied consent; and (4) arguments from general utility.
The argument from gratitude begins with the observation that all persons, even those who are worst off, derive some benefit from the state's enforcement of the law. On this view, a person who accepts benefits from another person thereby incurs a duty of gratitude towards the benefactor. And the only plausible way to discharge this duty towards the government is to obey its laws. Nevertheless, as M.B.E. Smith points out (1973, p. 953), "if someone confers benefits on me without any consideration of whether I want them, and if he does this in order to advance some purpose other than promotion of my particular welfare, I have no obligation to be grateful towards him." Since the state does not give citizens a choice with respect to such benefits, the mere enjoyment of them cannot give rise to a duty of gratitude.
John Rawls (1964) argues that there is a moral obligation to obey law qua law in societies in which there is a mutually beneficial and just scheme of social cooperation. What gives rise to a moral obligation to obey law qua law in such societies is a duty of fair play: fairness requires obedience of persons who intentionally accept the benefits made available in a society organized around a just scheme of mutually beneficial cooperation. There are a couple of problems here. First, Rawls's argument does not establish the existence of a content-independent obligation to obey law; the obligation arises only in those societies that institutionalize a just scheme of social cooperation. Second, even in such societies, citizens are not presented with a genuine option to refuse those benefits. For example, I cannot avoid the benefits of laws ensuring clean air. But accepting benefits one is not in a position to refuse cannot give rise to an obligation of fair play.
The argument from consent grounds an obligation to obey law on some sort of implied promise. As is readily evident, we can voluntarily assume obligations by consenting to them or making a promise. Of course, most citizens never explicitly promise or consent to obey the laws; for this reason, proponents of this argument attempt to infer consent from such considerations as continued residence and acceptance of benefits from the state. Nevertheless, acceptance of benefits one cannot decline no more implies consent to obey law than it does duties of fair play or gratitude. Moreover, the prohibitive difficulties associated with emigration preclude an inference of consent from continued residence.
Finally, the argument from general utility grounds the duty to obey the law in the consequences of universal disobedience. Since, according to this argument, the consequences of general disobedience would be catastrophic, it is wrong for any individual to disobey the law; for no person may disobey the law unless everyone may do so. In response, Smith points out that this strategy of argument leads to absurdities: "We will have to maintain, for example, that there is a prima facie obligation not to eat dinner at five o'clock, for if everyone did so, certain essential services could not be maintained" (Smith 1973, p. 966).

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