On the Moral Obligation to Obey the Law

 

One of the most intriguing current questions arising from a philosophical analysis of legal systems is whether we are morally obligated to follow the law. Many theorists have written about it, though no undisputable conclusion has been reached. The purpose of this article is to analyze John Rawls’s view of the matter, that is, basing the moral obligation to obey the law on the duty of fair play.

 

First, it should be clear that this obligation admits to being overridden, “by other more stringent obligations;”[1] those exceptions are going to be talked about further on. For better comprehension, Rawls assumes we are studying a constitutional democracy, with granted individual freedoms and just constitutional procedures. That assumption being made, he sets a major problem of a confrontation between one’s personal political beliefs and societal and constitutional rules – does someone have the obligation to follow a law that they believe is unjust? Let’s take the example of a pro-life pharmacist asked to sell abortifacients: is he morally obligated, if the law so requires? Rawls’s answer would be yes, due to our moral duty of fair play.

 

To explain the principle of fair play, Rawls supposes there is a scheme of cooperation that (1) only works if nearly everyone cooperates and (2) requires sacrifice or restriction of each one’s liberty. If anyone in the scheme knows that the others will continue cooperating, he will still benefit even if he doesn’t do his part. A person involved in this scheme is then bound by a duty of fair play to not take advantage of the free benefit by not cooperating. This benefit is “the result of everyone’s effort,”[2] and therefore belongs to no one specifically. Taking into consideration that a constitutional procedure does not produce a statement to be believed, but a rule to be followed[3], if a citizen has accepted the benefits of a constitution, but a particular rule seems unjust to him, he must still follow it when his turn comes: taking part in a democratic society demands every citizen give up a little part of their liberties in order to receive greater benefits as a social body.

 

A second situation brought up is whether this obligation persists, even if greater good comes from not following a certain law. The mentioned case would not fit this analysis, in my point of view. Nevertheless, Rawls’s idea is that the principle of utility cannot override the principle of fair play, although some other duty of justice may do so. His priority in any situation that may arise is to seek justice first.

 

As the theory of fair play spread, consistent critiques were made. Robert Nozick’s perspective, for instance, is more complex and takes into account different aspects of social life. To the aforementioned pharmacist case he would argue that one should only be duty-bound to follow a law if the benefits brought by it are greater than the burden for him to do his share[4]. He understands that doing one’s share is not equally participating on a democratic scheme, but rather participating proportionally to the benefits received. A. John Simmons interestingly suggests that one is only bound to fair play if one is a participant in the scheme. By that he means either agreeing (tacitly or explicitly) with the scheme’s rules, or playing an active role in the scheme. In his view, Rawls did not mean for the theory to include bystanders, but only active participants. He then makes a distinction between accepting the benefits and merely receiving them – one is not morally bound to follow a scheme in the latter case. Even so, Simmons partly agrees with Nozick’s critical review of the original fair play theory.

 

I argue that although Simmons and Nozick make good points and justify their theories, Rawls’s approach seems more adequate to engender a democratic society. The main aspect under discussion is whether a citizen can accept some parts of the social rules, refraining from participating in some other parts. Based on social and political theorists from both the Common Law and Civil Law legal traditions, I propose there is a moral obligation to obey the law – and here I shall make an addendum like Rawls, opening exceptions in extreme cases – based on a cooperative agreement to maintain order and benefit from a democratic and just social life.

 

To strengthen my argument I shall resort first to J.J. Rousseau’s ideas in The Social Contract[5]. In this opus Rousseau explains how we are part of a fictitious social contract – based on popular sovereignty – and, as a social body, we need to give up some individual rights in order to maintain social order. Rousseau’s idea is that one is “forced to be free” because, since the indivisible and inalienable popular sovereignty decides what is good for the whole, if an individual lapses back into his ordinary egoism, he shall be forced to obey the decision of the collectivity. The essence of the social contract and the duty of fair play, then, are connected.

 

Further discussion might be better by taking another example to explain the objections to the fair play theory: is a taxpayer who opposes military action in Iraq morally obligated to pay federal income taxes that finance the military? Robert Nozick would argue that he is not obligated, for the taxpayer clearly disagrees with this particular military action. The benefit that others receive is, for his standards, no benefit at all; he ought not to shoulder the burden of paying taxes if his reward for doing so is against his moral standards. My understanding to Nozick’s take is that one has the discretion to decide whether a scheme is profitable. John Simmons would reach the same conclusion, though approaching it differently: he would say that those kinds of (questionable) benefits are “commonly regarded as purchased from a central authority, rather than as accepted from the cooperative efforts of our fellow citizens.”[6] There is no such conscience of acceptance of the benefits among the population, which would exclude the moral obligation to pay federal income taxes. Rawls’s theory would make him dissent from these aforesaid conclusions. He understands that no scheme can “ensure against our ever being in the minority in a vote,”[7] though withal we are morally bound, for we have accepted the benefits of a democratic institution – meaning that, even if one’s ideas oppose a certain action, it was justly and democratically voted for, and, thus, one has to accept the outcome – and intend to continue to accept it.

 

Another important question is: to precisely what extent does Rawls’s theory support obedience, and to what extent do Simmons’s and Nozick’s? To better understand this issue, we have to differentiate prima facie duties from all-things-considered duties. The former are obligations that can be overridden by conflicting, stronger obligations; the latter are duties that are not overridden by any other obligations – obligations, in this sense, are like vectors: whichever vector is the strongest will determine the final course of events. Rawls enumerates matters on which possible disobedience depends, such as the justice of the constitution, the depth of the injustice and whether the political sociology of the situation is such as to allow for hope that the law may be repealed[8]. His example is of a social or religious group that supposes – and to the correct comprehension he assumes it is a correct suspicion – it is getting its basis undercut by a majority. If there is no possibility of righteous and lawful resistance, the obligation then ceases. The stability of that cultural group, then, overrides the prima facie obligation to obey the law. His exceptions are few and never trivial; they usually involve whole social groups threatened to extinction and other strong injustices.

 

Robert Nozick has a more individualistic take. He would advocate, as has been mentioned, that one should obey the law when the benefits are greater than the cost for him. Simmons’s opinion, to a great degree, matches Nozick’s, though his analysis is somewhat more complex. His ideas about accepting and merely receiving benefits would play out, though the result would still be of not having a moral obligation to follow laws with which one doesn’t agree. It seems to me that the balance between personal benefits and costs applies to particular schemes, one being responsible for deciding whether to obey them. If one doesn’t want to take part in the system as a whole, one would simply be a bystander to all of society; my opinion is that neither Simmons nor Nozick extend their theories so far.

 

There is, now, need to slur over the subjects to whom the obligation might apply. I have elucidated John Simmons’s argument that the duty of fair play was not meant for outsiders, but only for active participants in the scheme. Nozick doesn’t tell us much, which leads to the conclusion that he would apply the theory to everyone – including receivers and citizens barely involved with the scheme. It is my opinion that one becomes duty-bound by accepting being part of a democratic institution – Rousseau’s social contract – and has, then, the moral obligation to follow enactments that have undergone a constitutional democratic procedure.

 

John Rawls seeks, by putting out such theories, to fulfill his concept of justice, which consists of two principles: the first requires that “everyone have an equal right to the most extensive liberty compatible with a like liberty for all” and the second states that “inequalities are arbitrary unless it is reasonable to expect that they will work out for everyone’s advantages and provided that the positions and offices to which they attach or from which they may be gained are open to all.”[9] He believes in just institutions and, thus, the commitment to these institutions would bring justice to society. His ideals conflict with Simmons’s to a grand extent, for the latter doesn’t accept as plausible the idea of participating, as there is no real choice about whether one wants to engage in the just scheme or not. It is complicated to counter some of his arguments, especially when he proposes situations such as when someone would rather not receive benefits at all, than receive them and have to cooperate with the scheme. I shall argue that, assuming – as Rawls did – all of the participants have similar concepts of morality and justice, one would prefer to accept the benefits of a cooperative scheme, defined by a constitution, than to not be an active part at all and free-ride. If a large amount of society decided that way, it would probably get close to collectivist anarchism as Mikhail Bakunin would describe it.[10] I go in the same direction as Rawls, relying on a just government. It is not a matter of joining or not, but of trying to make the institution as just as possible. As American development critic Henry David Thoreau has brilliantly put it, the state has no power other than what individuals cede to it[11]; when individuals form a State, it is their duty to make it a just one.

 

This sought-after justice has an interesting relation to the ideas of Rudolph Von Ihering in his Kampf ums Recht (The Struggle for Law). He argues that there is a social obligation, as well as an individual one, to seek justice.[12] In Rawls’s words: “it is an obligation owed to our fellow citizens generally . . . It is not an obligation owed to public officials.”[13] My take on this is that the best way to deliver justice is to try and maintain a just institution, and make citizens part of it. The question, again, is not whether one should participate, but how can the system be implemented and made better, more just. I shall join, then, Ihering and Rawls by putting justice as a priority, and establishing means to seek it. Legal systems are a living institutional body, and their mobility is to be used by jurists and everyone involved with the judiciary. They are important tools provided to a society, in order to reach justice.

 

After discussing these diverging arguments concerning the moral obligation to obey the law, I argue that Rawls’s ideas are the ones that best suit a harmonic society. His commitment to the inexorable concept of justice and to everyone’s obligation based on fair play may face some strong counter-arguments, but are plausible, strong theoretical bases supporting a civilized society built upon mutual trust. Some questions might arise regarding John Simmons’s ideas of accepting the benefits or merely receiving them: how is mutual trust going to play a role if the participants didn’t chose to be a part of a particular scheme? My interpretation of Rawls’s idea is that it is assumed that each individual in a society has agreed to take part on just schemes; not doing so would lead to a situation of quasi-chaos – or, at least, to a worst situation than if everyone accepts the scheme.

 

Many other principles and theories other than the duty of fair play may justify obedience to the law; this article focused solely on one of them. I shall not go further on the matter of our legal obligation to follow the law, for it is simple and clear that the restraining power of law binds citizens to obey it. The extensive and rich discussion on the moral obligations is far from ending, and it tends to change as society evolves; the composition of ideas brings us closer to a satisfactory conclusion that would lead to a peaceful and just society.



[1] Frederick Schauer and Walter Sinnott-Armstrong, The Philosophy of Law (Oxford University Press, 2002), p. 231.

[2] (Schauer and Sinnott-Armstrong 2002, 235).

[3] (Schauer and Sinnott-Armstrong 2002, 234).

[4] (Schauer and Sinnott-Armstrong 2002, 241).

[5] Rousseau, Jean-Jacques. The Social Contract. Harmondsworth, England: Penguin Books, 1968.

 

[6]  (Schauer and Sinnott-Armstrong 2002, 247).

[7]  (Schauer and Sinnott-Armstrong 2002, 239).

[8] (Schauer and Sinnott-Armstrong 2002, 237).

 

[9] (Schauer and Sinnott-Armstrong 2002, 247).

[10] Bakunin, Mikhail. Revolutionary Catechism, Bakunin on Anarchy, translated and edited by Sam Dolgoff, 1971.

[11] Johnson, Ellwood. The Goodly Word: The Puritan Influence in America Literature, Clements Publishing, 2005, p. 138

[12] von Ihering, Rudolf. The Struggle for Law, trans. J.J. Lalor, 2nd ed., Chicago, 1915.

[13] (Schauer and Sinnott-Armstrong 2002, 235).


 

Como referenciar este conteúdo

SCHMITZ, Leonard. On the Moral Obligation to Obey the Law. Portal Jurídico Investidura, Florianópolis/SC, 31 Ago. 2010. Disponível em: www.investidura.com.br/biblioteca-juridica/internacionalinternational/inglesenglish/168470-on-the-moral-obligation-to-obey-the-law. Acesso em: 14 Jul. 2018

 

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