Someone recently bought our

students are currently browsing our notes.

X

The Source Of Legal Obligation Moral Obligation To Obey The Law Notes

Law Notes > Jurisprudence Notes

This is an extract of our The Source Of Legal Obligation Moral Obligation To Obey The Law document, which we sell as part of our Jurisprudence Notes collection written by the top tier of Oxford students.

The following is a more accessble plain text extract of the PDF sample above, taken from our Jurisprudence Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:

FHS JURISPRUDENCE - LAW AND (GENERAL) OBLIGATIONS

TABLE OF CONTENTS

Introduction................................................................................................. 3
Background Reading....................................................................................3
R. Wolff, In Defense of Anarchism (1970) ch 1: "The Conflict between Authority and
Autonomy"....................................................................................................................... 3

Textbook..................................................................................................... 4
Bix, Jurisprudence: Theory and Context......................................................................... 4
Penner, Textbook on Jurisprudence............................................................................... 6
I - A necessary prima facie moral obligation to obey the law.....................................6
A - Plato/Socrates (Classical Greco-Roman natural law).......................................................................6
B - Finnis (Natural Law Revival)............................................................................................................ 7
C - Theories justifying a general moral obligation................................................................................7 1 - Consent....................................................................................................................................... 7 2 - Fair play/benefit and burden........................................................................................................ 7 3 - Violation sets an example to others (Finnis)................................................................................7
D - Denying a general moral obligation................................................................................................ 7

Read............................................................................................................ 8
*Green, 'Legal Obligation and Authority' in The Stanford Encyclopedia of
Philosophy....................................................................................................................8
Terminology:........................................................................................................................................ 8
Notes.................................................................................................................................................... 9
I. OBLIGATIONS IN THE LAW.............................................................................................................. 9
II. AUTHORITY, OBLIGATION AND LEGITIMACY.................................................................................10
III. Obligations to the law................................................................................................................. 11
IV. Non-voluntarist theories............................................................................................................. 12
IV.1. constitutive obligations (Dworkin)........................................................................................ 12
IV. 2. Instrumental justification.................................................................................................... 12
IV. 3. Necessity............................................................................................................................ 12
V. Voluntarist theories..................................................................................................................... 13
V.1. Consent................................................................................................................................. 13
V.2. Expressive Obligations.......................................................................................................... 14
V.3. Fairness................................................................................................................................ 14
Scepticism and anarchism.............................................................................................................. 14

*Stavropoulos, 'Obligations, Interpretivism and the Legal Point of View' in Marmor
(ed), The Routledge Companion to Philosophy of Law (2012)..................................15
Terminology....................................................................................................................................... 15

Obligation through law................................................................................................. 15
Dworkin, Justice for Hedgehogs (2011) ch 14...........................................................15
*Dworkin, Law's Empire (1986) ch 6.........................................................................17
Terminology....................................................................................................................................... 17 core summary.................................................................................................................................... 19
Notes.................................................................................................................................................. 20
JURISPRUDENCE: MORAL OBLIGATION TO OBEY THE LAW

1 I. does integrity fit?...................................................................................................................... 20
II. Is integrity Attractive?............................................................................................................... 21

III. The puzzle of legitimacy........................................................................................................ 21

IV. Obligations of community...................................................................................................... 22

V. Fraternity and political community........................................................................................ 22

*Green, 'Associative Obligations and the State' in Burley (ed), Dworkin and his
Critics (2004)..............................................................................................................23
Summary............................................................................................................................................ 23
Notes.................................................................................................................................................. 24
I. Legitimacy and Consent............................................................................................................ 24
II. Obligations of True Community.................................................................................................25

III. Integrity and Obedience........................................................................................................ 25

IV. Individuality and community.................................................................................................. 25

Obligation to law: consent............................................................................................ 26
Hume, 'Of the Original Contract' in his Essays: Moral, Political and Literary (1777,
repr 1987)...................................................................................................................26
Obligation to law: authority.......................................................................................... 26
*Raz, The Authority of Law (1979, 2nd ed 2011) ch 12.............................................26
I. The character of the obligation.................................................................................................... 26
II. Moral reasons to obey.................................................................................................................. 27

III. Prudential reasons to obey....................................................................................................... 28

IV. Good law without an obligation to obey....................................................................................28

(The material from Tutorial IV is relevant here.)......................................................28
Citizenship: responding to law's claims....................................................................... 28
Dan-Cohen, 'Law, Loyalty and Citizenship' in Marmor (ed), The Routledge
Companion to Philosophy of Law (2012)...................................................................28
Raz, The Authority of Law (1979, 2nd ed 2011) ch 13..............................................29
Legitimacy without an obligation................................................................................. 30
Applbaum, "Legitimacy without the Duty to Obey", Philosophy and Public Affairs 38 (2010)....................................................................................................................30
Smith, 'Is there a prima facie obligation to obey the law', Yale Law Journal 82
(1973).........................................................................................................................32
Harris, LP, Ch.16. - The duty to obey the law............................................................34
Plurality of theories is necessary?................................................................................ 34
Richard Dagger, 'Political Obligation'.......................................................................34
Anarchist challenges to political obligation........................................................................................ 34
Contemporary theories of political obligation.....................................................................................35
Conclusion - a plurality of principles?.................................................................................................37

JURISPRUDENCE: MORAL OBLIGATION TO OBEY THE LAW

2 Obligations: Obligation is not that there's always an obligation to obey every law, but rather how law changes our reasons, which particular reasons, and whether these reasons count as obligations.

1. Raz - laws create exclusionary reasons and legal duties are therefore these exclusionary reasons

2. Dworkin (Greenburg, Hershovitz, Stavropolous): no need to discuss exclusionary reasons etc. -
the law doesn't have exclusionary effect. It gives ordinary first order reasons (albeit strong ones),
so the presence of exclusionary reasons isn't an objection to them.

What kinds of reasons does the law give us?

1. Prudential reasons (though this isn't an obligation - it's more like reasons to avoid dangerous animals etc.)

INTRODUCTION
Do we have a general obligation to obey the laws of our legal system?
Liberal anarchists famously argued that acceding to the claims of authority of one's legal system---even if it is a reasonably good legal system---is fundamentally incompatible with one's autonomy. Therefore,
they suggested, one should never comply with legal directives (or the directives of any supposed authority, for that matter). Of course, acting in conformity with certain directives will often be the right thing to do, but that is coincidental and therefore beside the point.
In response to the anarchist challenge, scholars have tried to locate a general obligation to obey the law in a legal system's effectiveness in solving coordination problems, the substantive justice of its laws, its democratic decision-making procedures or the true community it fosters. Are any of these responses successful? If they fail and we are forced to agree with the anarchists that there is indeed no general obligation to obey the law, does that still leave open the possibility of a legitimate legal system? Even if it turns out that there is no general obligation to obey the law, is there nonetheless a right way to relate to the laws of a legitimate legal system?

BACKGROUND READING
R. WOLFF, IN DEFENSE OF ANARCHISM (1970) CH 1: "THE CONFLICT BETWEEN
AUTHORITY AND AUTONOMY"
I - The concept of authority
The state is a group of persons who exercise supreme authority within a given territory, and may include all the persons who fall under its authority. Its distinctive characteristic is supreme authority -
sovereignty
Authority is the right to command and correlatively the right to be obeyed, distinguished from power:
the ability to compel compliance.
First question: under what conditions and for what reasons does one man have supreme authority over another?
We must demonstrate by an a priori argument that there can be forms of human community in which some men have a moral right to rule. Legitimate (de jure) authority thus concerns the grounds and sources of moral obligations; de facto states are simply states whose subjects believe it to be legitimate -
although they may be wrong. Since some people do so believe, there are de facto states.
JURISPRUDENCE: MORAL OBLIGATION TO OBEY THE LAW

3 II - The concept of autonomy
The fundamental assumption of moral philosophy is that men are responsible for their actions; this obligation does not derive from man's freedom of will alone, for more is required in taking responsibility than freedom of choice.
A responsible individual does not imply that he always does what is right but only that he does not neglect the duty of attempting to ascertain what is right. He does acknowledge himself bound by moral constraints, but he insists that he alone is the judge of those constraints. Since the responsible man arrives at moral decisions which he expresses to himself in the form of imperatives, we may say that he gives laws to himself or is self legislating - autonomous. He may do what another tells him but not because he has been told to do it - he is therefore, in the political sense of the word, free.
Since man's responsibility for his actions is a consequence of his capacity for choice, he cannot give it up or put it aside, but he can refuse to acknowledge it - therefore, man can forfeit his autonomy at will: he can decide to obey the commands of another without making any attempt to determine for himself whether what is commanded is good or wise. We frequently forfeit our autonomy - by giving to the force of tradition or bureaucracy.
This is not the same as the false assertion that a man can give up responsibility for his actions - the moral condition demands that we acknowledge responsibility and achieve autonomy wherever and whenever possible.
III - The conflict between authority and autonomy
The defining mark of the state is authority, the right to rule. The primary obligation of man is autonomy,
the refusal to be ruled. Insofar as a man fulfills his obligation to make himself the author of his decisions we will resist the state's claim to have authority over him; he will deny that he has a duty to obey the laws of the state simply because they are laws.
Thus, anarchism is the only political doctrine consistent with the virtue of autonomy. An anarchist may grant the necessity of complying with the law under certain circumstances or for the time being, but he will never view the commands of the state as legitimate, as having a binding moral force.
The anarchist tells me my feeling of a special obligation to obey its laws is purely sentimental and has no objective moral basis. All authority is equally illegitimate, although of course not therefore equally worth or unworthy of support
If all men have a continuing obligation to achieve the highest degree of autonomy possible, then there would appear to be no state whose subjects have amoral obligation to obey its commands. Hence the concept of a de jure legitimate state would appear to be vacuous, and philosophical anarchism would seem to be the only reasonable political belief for an enlightened man.

TEXTBOOK
BIX, JURISPRUDENCE: THEORY AND CONTEXT
The question is whether there is a moral obligation to obey the law, a moral obligation that attaches to a rule simply because of its legal validity, i.e. its membership within a legal system. Most writers assume:
1) A generally just legal system 2) There is a prima facie obligation that can be overridden if a stronger moral obligation requires a contrary action

JURISPRUDENCE: MORAL OBLIGATION TO OBEY THE LAW

4 Reasons for obeying the law:
1) Prudential reasons (fear of imprisonment or fine)
2) Habit (easier to obey the law unreflectively rather than calculating the moral and prudential factors on each occasion)
These reasons aren't the focus of the debate - the question is whether the legal status of a command, by itself, without more, adds any moral reasons for doing/not doing an action.
Various theories:
1)
2)
3)
4)

Consent
Gratitude
Reciprocity
Consequences

In all cases, the difficult scenario is one where there is seemingly no risk of harming anyone, and the disobedience seems like it would go undetected (ex. stop sign at 3AM).
I - Consent
Thesis: by some action (voting, accepting government benefits, not leaving the country) or inaction, we have implicitly consented to obeying society's law.
Steps to this argument:
1) A certain action constitutes "consent" to obeying the society's laws - response is that these activities cannot be properly understood as consent, because a) citizens do not perceive of their action that way, and b) do not have reasonable alternatives.
2) Consent in this way leads to a moral obligation to obey the law - even if these activities can constitute the consent, consent doesn't necessarily equate an obligation to obey the society's laws.
Why?
a. Acts of consent may have limited force: a mere promise is not sufficient to maintain large moral claims, like creating a moral obligation to do something a) on one-sided terms (paint your house for $1), b) immoral (kill your father), c) give up one's autonomy (do anything you told me to for a month). In the same way, mere consent may not be sufficient to justify creating a broad obligation to obey whatever the government might enact from that day onward.
The real question: how do we create moral obligations for ourselves, and what are the limits of these obligations? The extent to which consent can create, waive or defeat legal and moral ogliations is a difficult theoretical question - thus, consent offers at best, a partial response.
Possible response: consent only creates an bligation to obey a generally just regime, not just any regime -
but even if this is true, is it consent, or the justice of the regime itself, that creates the obligation to obey,
consent merely working to limit certain types of legitimate complaint by the citizen?
II - Consequentialist approach (Hobbes, Honore)
Thesis: the obligation arises from the bad consequences to society if people did not have such an obligation.Hobbes (extreme version): the law is to be obeyed even when it is unjust, because the alternative is the chaos of the state of nature, the awr of all against all (Hobbes, Leviathan: "though of so

JURISPRUDENCE: MORAL OBLIGATION TO OBEY THE LAW

5 unlimited a [Sovereign] Power, men may fancy many evill consequences, yet the consequences of the want of it, which is the perpetuall warre of every man against his neighbour; are much worse")
Honore: if the initial presumption is that the law need not be obeyed, then people will tend more often to disregard the law than if the initial presumption is for obedience, leading to an "attitude of disobedience" and the breakdown of the order and cooperation needed for society to function

Response: fear of legal sanctions and pre-existing moral commitments are enough to prevent the consequences of disobedience
III - Benefit or gratitude (Plato)
Thesis: it is immoral for those who have received substantial benefits from the state not to respond with the samll obligation that governments ask in return - obedience to the law (by analogy to the duty of children to their parents).
Responses:children don't owe parents the obligation to let them determine all our future choices - so is gratitude to government sufficient to give it moral authority over our actions?
we can only owe a moral obligation if we voluntarily accept such benefits and intend to continue to do so, whereas most people don't have the power to waive their rights to receive them
IV - A duty to support and to further just institutions (Rawls)

Thesis: the natural law position that if laws are just, they have the power of binding in conscience, a power which comes from the Eternal Law from which they are derived (Aquinas).
Responses: even if this is true, it doesn't create a general moral obligation to obey every law on every occasion, as many instances of disobedience simply do not undermine just institutions.
V - Fairness or reciprocity (Hart)
Thesis: obedience is not a duty to the state but a duty to one's fellow citizens - "when a number of persons conduct any joint enterprise according to rules and thus restrict their liberty those who have submitted to their restrictions when required have a right to a similar submission from those who have benefitted by their submission" (Hart, Are There Any Natural Rights?). Someone who disobeys the law is unfairly taking advantage of other people's sacrifices.
VI - There is no moral obligation to obey the law (Fuller)
In the course of the Hart-Fuller debate Fuller argues that if, according to legal positivism, the validity of a law is separate from its moral value, then how can the legal positivists speak of a "moral dilemma"
about whether to obey a morally dubious law? (Fuller, Positivism and Fidelity to Law). Just because something is required by law, it is not by itself a moral reason for doing that action.
But some legal positivists accept that the legal status of a norm may give it no intrinsic moral weight
(Raz) - they don't argue that we should never obey the law, but only that the moral reasons must go beyond the simple "because the law says so".Raz: we have a moral obligation to obey the law if and when we believe that we are more likely to make the morally best choice by following the law than by making our own judgment (because the legislator heard expert testimony, because of coordination problems). But the most common situation is that what the law requires is when the action is the moral thing to do, regardless of what the law says. [Objection: how can you know that you have a better idea of what is morally right than the legislature?]
JURISPRUDENCE: MORAL OBLIGATION TO OBEY THE LAW

6 Sceptics say that the arguments for a general moral obligation to obey the law is insufficient to ground a general obligation - if disobeying a law causes no harm and doesn't create a bad example, how is it going to undermine a just institution or a joint enterprise? Why should consent or a duty of fair play/gratitude extend to all laws - even where disobedience is harmless. Why should we continue to have the obligation to obey a coordinating law if it has become clear that it failed at coordinating?
Questions to distinguish:
1) ethical question: what should I do in this situation?
2) meta-ethical question: what is the set of beliefs and attitudes we want or need the public to hold?
3) political question: from perspective x, what is the set of beliefs and attitudes we want or need the public to hold? (not covered here)
Smith: even if there is a moral obligation, it carries little moral weight because:
1) a seriously immoral act does not become significantly more or less culpable depending on whether the action is legally permitted or not 2) we are slow to condemn someone for breaking the law until we find out which law was broken
VII - Connections
This topic is connected to more basic questions of:
1) Moral theory (what grounds our moral duties: benefit? consent? cooperation? consequences?
necessity? interdependence?)
2) Legal theory (how do we determine the existence or validity of a law or legal system?)
If you start with traditional natural law theory, then your conclusion about whether something is "law"
will incorporate much of the answer about whether one has an obligation to obey the law (ex. you have an obligation to obey just laws, and a minimal obligation to obey unjust laws for public compliance so as not to undermine a generally just legal system). But if you're a legal positivist, then because the validity of law is independent from its merits, then you need to find your answers elsewhere.

PENNER, TEXTBOOK ON JURISPRUDENCE
I - A NECESSARY PRIMA FACIE MORAL OBLIGATION TO OBEY THE LAW
It was assumed that for the State and the law to function, it was necessary that subjects of the law had a prima facie (i.e. defeasible) obligation to obey the law - so the debate is how the obligation should be explained. This is the starting point of:

A - PLATO/SOCRATES (CLASSICAL GRECO-ROMAN NATURAL LAW)
Plato, in The Last Days of Socrates, purports to present statements of Socrates in relation to law and the duty of obedience:Apology: the State has no right to demand that a person commit evil or injustice - where this is in fact demanded, the only honorable course is refusal.
Crito: addresses the different question of where the state (through its law) doesn't command wrong of an individual but does wrong to him.
o Three grounds of obligation to comply with the law, of which an analogy with the relationship of parent and child and State and citizen: the obligation arises from gratitude for the law maintaining a system in which the individual has chosen to reside
JURISPRUDENCE: MORAL OBLIGATION TO OBEY THE LAW

7

Buy the full version of these notes or essay plans and more in our Jurisprudence Notes.