moral obligation to obey the law

who argues that there is a moral obligation to obey the law?

Rawls

Smith: although those subject to a gov often have a prima facie obligation to obey particular laws, they ________________________________________________________

have no prima facie obligation to obey all its laws

what is the argument from gratitude?

the gov confers benefits on people, and so each person incurs a debt of gratitude and so should obey the law

why does Smith contend that the argument from gratitude is unconvincing?

• gov may confer benefits regardless of whether citizens want them

• gov may confer benefits due to motivation other than promoting citizens’ welfare e.g. advancing some purpose of its own

• even if each citizen does have an obligation to be grateful towards his gov, he is not nec required to display his gratitude in the most convincing manner (by obeying the law)

what is the argument concerning fair play?

an obligation to obey the law is owed not to one’s gov but to one’s fellow citizens

Hart: when a number of persons conduct any joint enterprise according to rules and thus restrict their liberty, ________________________________________________________

those who have submitted to these restrictions when required have a right to similar submission from those who have benefitted by their submission

according to Rawls, which requirements on the kind of cooperate enterprises that give rise to an obligation to obey the law are needed?

(i) success of the enterprise depends on nearly universal obedience to its rules, but not on universal cooperation

(ii) obedience to its rules involves some sacrifice

(iii) the enterprise conforms to the principles of justice

Smith: when cooperation is perfect and each member has benefitted from the submission of every other, each member of an enterprise _______________________________________________________________________

DOES have a prima facie obligation to obey its rules when obedience benefits some other member or when disobedience harms the enterprise

according to Smith, when would there NOT be a prima facie obligation to obey the law?

if a member disobeys when his obedience would not have benefitted from any other member, or when his disobedience causes no harm

Smith: legal systems are designed to ___________________________________________

cope with some disobedience, so individual acts of disobedience rarely have adverse effect

Smith: since laws are designed to cover large numbers of cases, __________________________________________________

obedience to the law often does not benefit anyone - e.g. when you stop at a red light

Smith: most legal systems have laws which are ____________________________________

pointless or even harmful - e.g. prohibiting homosexuality

what do Locke, Plato and Ross argue?

residence in a country/appeal to the protection of its laws constitutes an implicit promise to obey

what are the 2 kinds of consent according to Plamenatz?

• direct consent - few citizens directly consent to their gov

• indirect consent - occurs whenever a person freely votes or abstains from voting

Smith: if those who are eligible to vote have a prima facie obligation to obey, then _________________________________________________________________

the eligible have a stronger obligation than the ineligible - but we do not ordinarily think this is true

how can we reach the conclusion that there is a moral obligation to obey the law from the idea that there is a prima facie obligation to perform acts which have good consequences?

gov is nec for securing the general good, and can only do so as long as its laws are obeyed (as it cannot function in disobedience). therefore, obedience to the law supports the continued existence of government and hence always has good consequences

why does Smith argue that we cannot have an obligation to perform acts which have any good consequences?

this would have undesirable consequences e.g. would result in an obligation to kill people to reduce overpopulation

how does Smith counter the argument that no government can survive if everyone broke the law (and gov is nec for the general good)?

• generalisation can lead to absurdities - e.g. there must be a prima facie obligation not to eat dinner at 4 o’clock because if everyone did so then certain essential services could not be maintained

• counter: this is because the absurdities are caused by applications that are ‘too general’ or ‘morally irrelevant’

> but ‘breaking the law’ is too general

what does Smith argue is the only plausible argument that there is a moral obligation to obey the law?

Rawls’ argument that there is a natural duty to obey the laws of reasonably just govs

• HOWEVER, even if such an obligation exists, it is of trivial weight

who argues that there is no obligation to obey the law?

Raz

Raz: it is generally agreed that there is not absolute obligation to obey the law, but ___________________________________________________

• there is not even a prima facie obligation to obey

• there is no obligation to obey the law even in a good society whose legal system is just

Raz: it is sometimes argued that disobedience, even to a bad law ____________________________________________________________________

sets an example and inclines other people to disobey - those people may then disobey good laws as well as bad ones

• BUT this is not sufficient to establish a general obligation to obey the law

why does Robert Paul Wolff argue that there is no obligation to obey the law?

because no state can be just

how does Raz counter the idea that there is an obligation to obey a reasonably just state, and the greater the justice, the stricter the obligation?

• the morality of a gov’s laws measures its justice; its laws are only moral if there is a moral obligation to perform the actions which they impose a legal obligation to perform

• to establish an obligation to obey the law one has to establish that it is relatively just; it is relatively just only if there is a moral obligation

• so the moral obligations on which the claim that the law is just is founded are prior to and independent of the moral obligation to obey the law

• but this means that the obligation to obey the law is at best redundant

why does Raz argue that it would be a moral perversion if an obligation to obey the law existed?

we expect people to avoid actions e.g. murder and rape whether or not they are illegal - it is immoral to only refrain from such acts because they are against the law

• can there be a moral obligation to perform an action if to take the existence of the obligation as one’s reason for the action would be wrong?

According to Raz, what are 3 typical situations in which ordinary citizens have an obligation to obey?

1. use tools which are dangerous to others as part of my job

2. preserve countryside

3. I disagree with gov’s policy of allowing construction of nuclear powerplants

why does Raz argue that I have an obligation to obey if a use tools which are dangerous to others as part of my job?

gov has issued safety regulations - the people who laid down these regs are experts and so I am duty-bound to obey them

(BUT no general obligation - e.g. if I were the best expert in pharmaceuticals, the law has no authority over me)

how does Raz argue that I have an obligation to obey in relation to preserving the countryside?

• everyone had BBQs anyway and the damage is done so I might as well also have one because it will make no difference

• but then gov finally bans BBQs in the area

• because the regulation might reverse the trend, I have an obligation to obey this law

how does Raz argue that I have an obligation to obey the law if I disagree with gov’s policy of allowing construction of nuclear powerplants?

• i can try to block roads to stop the building

• this encourages others to take the law into their own hands when they think they can force to gov to change its policies

• so I have an obligation to obey the law

(my obligation does not result from the law knowing best, but because otherwise I will undermine the gov’s ability to do good)

what does Scheffler argue are qualifications to duties to obey the law?

• no duty to obey a seriously unjust law, or the laws of an oppressive state

• even when laws are reasonably just, other considerations may override duties of obedience

• also there may be people who don’t have a duty

Scheffler: to value one’s relationship with another person non-instrumentally is to ____________________________________________________________________________________

see that person’s needs, interests and desires as providing one with reasons for action that one would not otherwise have

Scheffler: if I have a non-instrumental relationship with you, I see myself as________________________________________________________

having reasons to do things on your behalf that i have no comparable reason to do for others, and as having reason to give your interest priority over others

Scheffler: to value one’s membership in a group non-instrumentally is to _________________________________________________________

see the group’s norms as providing one with reasons for action

how does Scheffler use relationship-dependent reasons to respond to the needs of a friend to argue that membership-dependent reasons give rise to a moral obligation to obey the law?

• if I fail to act on compelling relationship-dependent reasons to respond to the needs of a friend, then I have wronged him and he is entitled to complain and to hold me to account

• same is true for membership-dependent reasons: if one fails to act on these reasons, then other members of the group are entitled to complain

• thus, membership-dependent reasons amount to obligations insofar as one lacks the authority unilaterally to disregard them

what 3 assumptions does Scheffler identify his membership-dependent argument to rely on?

1. membership in a political society can be non-instrumental

2. the laws of a society are among its norms of individual contact

3. these reasons amount to duties

what qualifications does Scheffler concede to his membership-dependent argument?

• does not apply to people who have no non-instrumental reason to value their membership in a particular society e.g. because their society is corrupt

• even for those who have such reasons, the conc isn’t that they have an absolute duty to obey their soceity’s laws, only a prima facie duty

• no prima facie duty at all in the case of a gravely unjust law

what does Scheffler argue are non-instrumental reasons to value one’s membership in a political society?

• value in being a fully-fledged member of a complex cooperative undertaking that sustains a common framework of life for its participants, even when they are politically unacquainted with each other

• political society plays a constitutive role in structuring many valuable types of activity to members e.g. political advocacy

• under favourable conditions, membership in a political society makes available goods of trust and solidarity and mutual understanding - patriotism

what do consent based accounts say?

that we have agreed or accepted or consented to be bound by our gov and the laws it makes

what does Raz argue about consent?

consent or agreement requires a deliberate, performative action, and to be binding it has to be voluntarily undertaken

• many people have never performed anything remotely like such an action

• only time he did was during national military service, in circs where failure to take the oath would have led to being court-marshalled - would not have ever made the oath but for these circs, and he does not think he was ever bound to observe this coerced undertaking

when was the idea of continued residence as tacit consent floated?

by Plato in Crito

how does David Hume counter the idea that we might have given tacit consent by continued residence?

‘we may as well assert that a man, by remaining in a vessel, freely consents to the dominion of the master; though he was carried on board while asleep, and must leap into the ocean and perish the moment he leaves her’

there is an idea that when large numbers of citizens obey laws, accept burdens, and restrict liberty for a cooperative enterprise, ______________________________________

e.g. paying taxes, using public services, refraining from theft - do so in order to generate social benefits. those who continue to enjoy those benefits without sharing in those burdens commit a form of free-rider, violating a norm of reciprocity

what do recent philosophers such as Justin Tosi clarify?

that fair play obligations arise only under strict conditions:

• the cooperative scheme must be just

• benefits must be accepted knowingly or at least non-resisted

• the recipient must incur some cost or restriction

• the rules should be known

Tosi argues that the principle of fair play is more like ____________________________________

consent in its structure, because acceptance and awareness matter

what justificatory gap does Jiafeng Zhu identify?

even when fairness obligations exist, they do not necessarily imply obedience to all laws

• they might imply some duty to contribute or reciprocate, but not always full compliance or obedience

• moreover, many citizens may not satisfy the ‘acceptance’ or ‘knowledge’ requirement: legal benefits are often inescapable, passive, or non-excludable, so cannot reasonably be ‘accepted’ in the sense required

• distributive injustice can also weaken or invalidate fair play obligations

when does Raz argue that the argument that it is unfair to enjoy benefits derived from the law without contributing one’s share to the production of those benefits is dubious?

when one has no choice but to accept the benefits, or when the benefits are given to one who does not request them, and in circs which do not imply understanding concerning the conditions attached to their donation and receipt