Obeying the Law
Published 13 Feb 2017
An obligation to obey the law involves a reason to do that which the law needs. However the converse does not hold. Numerous reasons to do that which the law needs have nothing to do with an obligation to obey the law. One has reasons not to kill, assault, rape, or imprison other people which have no association with the law and depend completely on the fact that such acts are against the will or interests or (moral) rights of others. Thus far such reasons are reasons to do that which the law requires, for the law requires abstaining from murder, assault, rape, and imprisonment. The obligation to obey the law entails that the reason to do that which is required by law is the very fact that it is so required. At the very least this must be part of the reason to obey. (Kent Greenawalt, 1989)
It is easy to find numerous examples where the fact that the law requires an act is a reason to perform it. A person possibly expelled from school or loses his job if rumours that he broke the law become known to his headmaster or employer. His criminal act(s) may to a great extent afflict his much-loved parents or spouse, etc. Such thoughts do not even tend to demonstrate that there is an obligation to obey the law. For even though in these cases the law is a reason for conforming behavior it is an incidental reason existing for a particular person, applying under definite special circumstances. The obligation to obey the law is a general obligation applying to all the law’s subjects and to all the laws on all the occasions to which they apply. To look for an obligation to obey the law of a definite country is to look for grounds which make it enviable, further things being equal, that one must always do as the law requires. These grounds require not be the same for everyone or for every occasion, however they must be of adequate generality in order that a few general sets of considerations will apply to all on all occasions. The hunt for an obligation to obey the law of a certain country is an inquiry into whether there is a set of true premises which involve that everyone should always to do as those laws require and which comprise the fact that those actions are required by law as a non-redundant premises.
Liberal political theory generally assumes that an obligation to obey the law implies nothing more than a prima facie reason to obey. The notion of an obligation, however, imports a practical requirement more stringent than that of a prima facie reason. An action is obligatory merely if it is required by a protected reason which does not derive only from the fact that adherence to it eases realization of the agent’s goals. No doubt one may be satisfied with inquiring whether or not there is a prima facie reason to obey the law which applies to all the law’s subjects on all occasions to which the law applies. It is recommended that even in this ‘modest’ sense there is no obligation to obey the law. However it is of interest to note that for the majority people an obligation to obey the law means something far more demanding than a prima facie reason. It means a peremptory reason best explained consistent with general analysis of obligation, as a categorical protected reason. The occurrence of this ‘strong’ view of an obligation to obey, far from resting on naïive and unreflective political attitudes, reflects a logical and sober understanding of necessary features of the political situation which has long been expediently overlooked by most political theorists.
The query of the proper attitude to the law is a central preoccupation of political philosophy. One facet of it is the inquiry whether there is an obligation to fulfill with the claims of the law for obedience, whether one has a duty to obey the law as it that is the law, demands to be obeyed. It is this obligation which is usually thought of by the general public as the obligation to obey the law. Quite apart from this terminological point there can be little doubt of the significance of an inquiry into whether it is justified to comply with the claims of the law for obedience.
The law’s claims for obedience are very diverse from the current philosophical conception of the obligation to obey the law as a prima facie reason to obey. The majority of the current philosophical writings assume that the obligation to obey the law is not violated when an offence is committed in circumstances where there are strong moral reasons for committing it although its commission is accountable to lead to a conviction in a court of law. One can imagine, for instance, unlawfully obtaining or stealing a medicine essential to cure a patient and which for a variety of reasons cannot be lawfully obtained. Clearly such an act is a violation of an obligation to obey the law if that is understood as an obligation to obey the law as it requires to be obeyed. On that understanding any act which is a breach of law is as well a violation of the obligation to obey the law.
Two points are involved here. The first is that through its rules and its adjudicative machinery the law supposes the right to find out in what conditions legal requirements are defeated by other considerations. The courts apply various doctrines for instance conscientious objection, self-defence, necessity, etc., to pardon people from blame for breach of law. Moderately prosecutorial discretion is designed, in certain countries, to serve the same purpose. So that at the same time as it is true that legal requirements are not, in law, absolute, the law itself claims to determine their proper import, to fix the conditions in which they are overridden. Consequently, an obligation to obey the law interpreted as a ‘strong’ obligation, i.e. to obey it as it requires to be obeyed, comprises acknowledging more than a prima facie reason to obey the law. It includes admission that the reasons to obey have the weight and implications which the law determines for them. In other words it involves a reason to obey in all situation defeated only by considerations which are legally documented as excusing from prosecution or conviction. (Kent Greenawalt, 1989)
This may sound like claiming that the obligation to obey the law is absolute. Although, and here is the second point, this is a mistake. The essay on ‘The Claims of Law’ provided arguments for holding that the law claims not absolute however exclusionary status. Courts need not refute the weight of moral reasons which sometimes argue for breaking the law but which are not provided for by the law and are not permitted to count as excuses or justifications. But the courts do maintain that neither they nor the individual are entitled to break the law on such occasions. They assert that one should disregard those countervailing considerations, however weighty. The legislator or the executive may have to take some action. Although so long as they have not done so the individual should disregard those countervailing considerations. In other words the law asserts that its rules and rulings are authoritative. To found an obligation (in the strong sense) to obey the law, as commonly understood, is to institute that its claim is justified, that the law indeed has the legitimate authority it claims to have.
The view that there is no obligation to obey the law in a country with a good and just legal system has the air of inconsistency. Its inconsistent appearance is accountable to a large degree for our reluctance to abandon the belief in the existence of such an obligation. The appearance of paradox is deceptive. It stems from two intimately connected sources: we think of a decent or a moral citizen as one who among other things obeys the laws of a just legal system and we think of the good legal system as the one whose laws ought to be obeyed.
A couple of preliminary points first. It goes without saying that one has more often independent ethical reasons for conforming to the laws of a good legal system than to those of a bad legal system. If a legal system is ethically good then it holds morally good laws and those are often laws prescribing behavior which is morally obligatory independently of the law. One has moral reasons to act in conformity with the laws of a good system more often than with those of a bad system even if there is no special moral obligation to obey the laws of a just legal system.
It is as well true that the fact that a legal system is in general good and just is a reason to trust its law-making and judicial institutions. If one knows that generally the laws are such that one has independent moral reasons to do as they require, then with respect to any individual law one has, other things being equal, motive to believe that there is independent moral reason to conform to it too. Consequently the general moral quality of the system heartens conformity by being a reason to believe and trust the moral value of each individual law. Again no particular obligation to obey the law is involved.
These two points, though, do not touch on the essence of the apparent paradox: how is it that the fact that a legal system is just is not a reason to obey it. To dispel the appearance of paradox one has to believe the necessary role of the law in society.
It is true that sometimes it is quite appropriately said that a law which is usually disregarded should be repealed. And if it is recognized in advance that a law, if made, will be generally disregarded, then it must not be made. But such arguments depend on existing or predictable disregard for the law ensuing from the failure of any kind of consideration to secure conformity. They cannot be cited as evidence that it is usually thought that where legal sanctions are unproductive or improbable to be effective then there should not be law. however if this is not a common belief then though lawfully provided sanctions are beyond doubt an important legal technique, they are not usually thought to be the only one.
There are in actual fact two fundamental legal techniques, two ways in which the law serves its functions. One is the provision of reasons for compliance through the stipulation of sanctions. The other is the marking, in a publicly ascertainable way, of standards required by the organized society. In the first technique the law makes reasons for conformity, in the second it relies on independent reasons and invokes and directs them by openly declaring definite standards as the proper ones to be followed by all who are aggravated by those invoked reasons. The independence of the second technique is often overlooked. It appears that the fact that legal standards are publicly ascertainable is readily explained by the need to provide a publicly ascertainable standard for the sanction technique to be efficient and fair. It has, however, to be pointed out that this is not the merely role of publicly ascertainable standards. Consider the law regulating the activities of courts and other high-ranking state officers. Admittedly these officers are generally directly or indirectly connected with the application of legal sanctions. But the legal standards addressed to such officials are not there merely to allow others to predict how the officials will act but chiefly to guide the officials themselves. But while it is proposed that the officials will conform to the law, it is not expected that they should do so through desire to avoid the sanctions, but for the reason that they are predisposed by independent considerations to obey the law. The law’s role here is only to mark clearly the standards to which that independent motivation then attaches itself.
This difference between the two legal techniques can be viewed as a reinterpretation of the traditional distinction between mala per se and mala prohibita. One role the law has is to forbid and punish the performance of acts which must not be performed for independent reasons which neither depend on the existence of law nor are concerned with preserving further social practices. Since some people fail to be motivated by those independent reasons as they must be, the law provides them through its sanctions with alternative reasons. A second role belonging to the law concerns participation in schemes of social co-operation.
Thus the law is good if it offers prudential reasons for action where and when this is advisable and if it marks out certain standards as socially required where it is suitable to do so. If the law does so correctly then it reinforces protection of ethically valuable possibilities and interests and encourages and supports worthwhile forms of social co-operation. But neither of these legal techniques even when estimably used gives rise to an obligation to obey the law. It makes sense to judge the law as a helpful and significant social institution and to judge a legal system good or even just right while denying that there is an obligation to obey its laws.
- Kent Greenawalt, Conflicts of Law and Morality; Oxford University Press, 1989