#3520 - Civil Disobedience - Jurisprudence

Obedience & Law- always makes claims to our allegiance; i.e. unrestricted authority legitimate? Does it have it?

Robert Paul Wolff: should reject law’s claim to authority on liberal grounds – since one should always maintain his personal autonomy, he should never submit to directives of any authority.

• Authority = right to command & be obeyed. Power = ability to compel by use/threat of force. Nowadays authority is normally taken by virtue of holding official positions. Having legitimate authority depends on grounds of moral obligation. In states w/de facto authority (contrasted w/de jure legit authority) men believe in legit authority.

• Taking resp. for one’s actions = taking the final decision what to do about something. A person who determines for himself the extent to which he’ll take resp. for his actions & gives rules to himself is an autonomous man. The only laws which he submits to are those made for/by himself.

• Resp. for one’s actions is the consequence of having free choice. If a person ignores that resp. & submits to laws of state, he gives up his autonomy. Many degrees of sacrificing autonomy...

• If authority is the right to be ruled & autonomy refusal to do so, then the two clearly can’t be reconciled. In so far as the man takes resp. for his actions, he’ll resist the state’s claim to do so for him; i.e. deny duty to obey the law just b/c it’s the law law, whilst practical reality, won’t have a binding moral force or legitimacy.

• Challenges Mill, Hart, Raz who are committed to value of personal autonomy but believe in possibility of at least some legitimate state authority.

Finnis: should take law as a seamless web – treat it in its entirety, even if it’s inconvenient to us, as long as it’s good generally (benefit & burden).

• Generic & presumptive obligation to obey the law, arising b/c it is the law, not b/c of its content. But it’sprima facie only – can be defeated by countervailing considerations (e.g. a man speeding past the red light b/c his wife is giving birth in the car).

• But is it possible for law to ask us to obey at all times b/c of some benefit which we may or may not derive? Or are benefits so wide that obeying is really a small ask? Yes:law’s coordination ability provides benefits which massively outweigh the burden

• So we presuppose the existence of such obligation... when it doesn’t exist, we don’t need to mount special moral defences in violating the law.

• Claim emanates from his general natural law theory7 basic goods (knowledge, friendship, practical reasoning etc.) which have self evident value for every human being. Every community seeks to achieve its common good – this causes coordination problems (through our practical reasoning, we come across a variety of different & conflicting results) which can be solved only by unanimity(rejected b/c impractical) or authority solutions to coordination problems can only be found through authoritative selections from amongst competing schemes for the common good.

• To treat a person or institution as authoritative = to act acc to its stipulations for the reason that this person/body has so stipulated and, as such, regardless of the existence of at least some other reasons to act in this way. So we need an arrangement whereby each individual adopts the schemes selected merely by reason of their being authoritatively selected, notwithstanding their preference for other schemes/no additional reasons for following it. Law offers a way of solving this by devising & making available to society a system of rules for everyone to follow. Law is not only instrumental to achieving common good b/c of its unique virtues like clarity & predictability, but it’s superior to any other form of social order.

• B/c the law is required to maintain that which is needed to secure the morally obligatory goal, we have a moral obligation to uphold it...

Raz:no gen. obligation to obey but may have a practical attitude of respect giving us reason to obey

• No general reason (obligation) to obey the law, even in good & moral systems. Instead, assess on case by case basis in light of the laws in question...

  • Obligation to obey implies the reason to do that which is required by law is the very fact that it’s so required. At the very least this should be part of the reason. Concept of obligation imports practical necessity more stringent than a prima facie reason.

• Action is obligatory if required by a protected reason which doesn’t derive merely from the fact that adherence to it facilitates realisation of agent’s goals.

1. moral reasons to obey – some have it by their position of eminence or e.g. a promise of a reformed thief to his girlfriend. Philosophers have argued everyone is bound by similar considerations; e.g. disobedience sets a bad example – at best establishes a prima facie obligation...

2. prudential reasons to obey – most people have good (primary) prudential reasons most of the time; e.g. fear of sanction, public & social + may have secondary prudential reasons.

• Saying that there can be a good legal system w/out obligation to obey creates a paradox which makes us reluctant to abandon the obligation thesis. We think of a good & moral citizen as one who obeys the law and good legal system as one whose laws ought to be obeyed. To escape it, consider 2 basic legal techniques w/which law serves its function: provision of reasons for compliance through stipulating sanctions (here, law creates reasons for compliance) + marking, in a publicly ascertainable way, standards required by organised society (here, law relies on reasons independent of its existence). Neither gives rise to obligation to obey.

• A legal system whose laws are all moral provides extra reason for compliance (b/c these are morals people would want to adopt anyway) but this doesn’t explain why laws themselves, by virtue of being laws, create an obligation on subjects to obey. Having a reason to obey doesn’t equate w/duty to do so (reasons can be completely unconnected w/status of the law; e.g. we don’t murder b/c think murder is wrong). Butattitude of respect for the law is possible, creating a reason for people to obey:

1. cognitive respect – appropriate cognitions concerning moral value of the law;

2. practical respect – a disposition towards obeying the law

• Possible, though unusual, to have one but not the other; e.g. believe that, although law is completely immoral, should always obey it – respect for the law obliges one to obey.

• In all but uniquitous societies it’s possible for people to have practical respect for the law & obey it out of loyalty (aspect of one’s identification w/society). However, it’s not mandatory to respect or obey – no moral problem if I never develop an attitude of respect for the law but remain under less extensive moral obligations than someone who identifies w/it & respects it, giving them a source of genuine moral obligation to obey.

• Wrong to argue that law’s claim to authority & to making decisions on behalf of a subject is incompatible w/autonomy. It’s the govt. duty to govern interests of its citizens, issuing directives calculated to make them act in a way they ideally would anyway; i.e. to comply w/particular reason for action (like parent directing a child) but law has authority only if its directives satisfy condition of legitimacy – must make subjects better conform to reasons for action which would have applied to them anyway. Can only be satisfied by authorities that have established the best/right way for subjects to behave. Condition of legitimacy sustains authority. Sometimes the wisest way to manage one’s autonomy is to allow others better qualified to take decisions for you. When we allow others to take decisions for us, we are consenting to it = don’t need to go against autonomy by allowing people to consent to others deciding, we give them more opportunity, thus enhancing their autonomy (they now have the use of someone’s expertise etc.) Autonomy & authority can be reconciled if authority rests on consent.

• The fact that submission may not be in subject’s best interests is irrelevant to value of consent b/c it rests on value of autonomy (possible to exercise autonomy in self detrimental way). But forcing people to the choice may decrease autonomy consider qualified autonomy: need condition of legitimacy + that for govt. to act acc to right reason be more important than being capable of deciding for ourselves a govt., bound w/condition of legitimacy, which issues directives only where it’s more important to find the correct answer than to arrive at one’s down decision, has legitimate authority. Increasing people’s opportunities enhances their...