Introduction:
A normative theory of law includes the ethics of legislation and adjudication. The latter is the focus of theoretical interest, as we saw. However, it also includes the ethics of enforcement (from the police and executive point of view) and compliance (from the citizen point of view). We will not say much about the ethics of enforcement (not every law has to be enforced and the costs and choices make it essentially a utilitarian issue). Our concern is with the obligation to obey the law. The question is not about the legal obligation because that is what adjudication determines. The question is about whether there is a moral obligation to obey the law – here we mean the law as correctly interpreted (using the inner moral principles of the law).
We might think that since we morally interpret law, we should naturally have a moral obligation to obey it. However, it is not that simple. What we have been justifying is the rule of law and the standards for interpretation. We have accepted that our definition is one that ought to justify fidelity to law and thus amounts to a moral justification of the rule of law. Having fidelity to law involves commitment to support the institution of the rule of law. Now given that we ought to support and defend the institution, does that mean we each have a moral obligation to obey each and every law? Do we have a moral obligation to obey any law, per se?
The Principle of Fairness
We previewed a key argument that we morally should obey the law in Brian Barry's argument. We called it the principle of fairness. If you derive benefits from a social decision procedure, you should accept its decisions when it goes against you. Ergo, you should obey the law if you benefit from others’ obedience (and obviously, we do).
This seems right, but Robert Nozick raises some hard questions. How does the receipt of benefits give rise to an obligation to reciprocate? Example: if I give you an apple you did not ask for, do you owe me one in return? Nozick argues that mere bestowing of benefits cannot justify an obligation of gratitude. A strict obligation, he says, would arise if there were an exchange of promises, but in the case of law, there is no explicit performative of that sort. So, what creates the obligation? If someone engages in a venture that benefits you but you do not request it or participate in it or are not otherwise engaged in the venture, you are not morally obligated to join in (e.g. you are not morally obligated to join unions)? Is free-riding inherently immoral?
For those engaged in a joint venture, i.e., those who do join in, there is less problem justifying fairness. If I employ the decision procedure to get a result against you, then I should accept your employing to against me. It is not a case of passively receiving the indirect benefits of a well-ordered society but my actual appeal to and use of the principles. In voluntarily participating in the social activity, I commit myself to its norms in a way that gives rise to issues of fairness. If a group is pushing a car and you join in to get "credit" for the "good turn" and then take advantage of the fact that no one can tell if you push hard or not, you are doing something unfair. If you merely fail to join in, the principle of fairness does not obviously apply even if you subsequently are offered and accept a ride in the car.
Even if we grant this use of the principle of fairness, however, we can not directly derive an abstract obligation to obey the law. That is because, so far, we have justified the law from the liberty side. We have argued that the justified function of the rule of law is not to get social order, not to justify enforcement, but to limit it. The relevant benefit that we gain (and to which we should guarantee others’ access) is protection from arbitrary government coercion or vengeance. Fidelity to law would entail activities to support the rule of law and legal protection of others charged with crimes. Our duty is to act so that others who may have done things we disapprove of get due process from the punishers. The principle of fairness does not concern my jay-walking in the middle of the night, but the businessman who appeals to strict legality to protect his business interests, but advocates arbitrary government action against unpopular religions or pornography.
Contrast: Fidelity to law and prima facie, generic obligation to obey the law.
We morally ought to HAVE a rule of law (as opposed to the rule of mandarins) but this may not entail that we are morally obligated to obey it. The moral argument is against any punishment without law and for the liberty and equality the system of law grants us. So the principle of fairness does not prove we have an obligation to obey each law. Is there some other way to prove it? M. B. E. Smith (followed by Feinberg) argued in detail that there was not. He formulated the question in this technical way "Do we have a prima facie, generic, moral obligation to obey the law?"
Smith points out that his is not a question if we ever morally ought to obey the law. In many (probably most) cases we should. That is because the law tells us to do something which it is already moral to do. So doing what is moral coincides with obeying the law, but its being against the law does not increase the moral obligation. The question is should we do so specifically because it is legal. Is it an obligation that holds generically for all laws? Does its being against the law make something already wrong more wrong? If something is in no way wrong, can its being against the law make it morally wrong?
Consider three types of arguments for thinking there is such an obligation:
1. Gratitude for benefits: This is the one Nozick attacks. Even if we acknowledge them, duties of gratitude may be paid back in different ways – the way to show gratitude to parents may be to be equally caring for your own children. As we argued above, the proper expression of gratitude would be working to guarantee the protection of laws to others. Blanket obedience to law does not seem called for.
2. Fair play and benefits derived from joint activities. This obligation only comes into play when our illegal act will harm someone who has previously sacrificed under the "legal" agreement. In that case, Smith notes, I already have an independent moral obligation not harm that person. The law does not seem to change my moral situation. I would have similar obligations under conventions, private agreements, and any other arrangement in which someone else conformed to his cost and my benefit.
3. Consent: consent is normally a speech act and few have explicitly performed it – hence it must be implied. How? Consider this possible answer:
a) By voting? Is democracy a justification? Some argue that voting in a democratic election carries prima facie obligation to obey the laws passed by the elected government. This presupposes a moral principle that we should obey democratic authority. It does not follow from the justification of the rule of law because that justification would work in a monarchy as well. Smith insists that this is circular reasoning. Voting confers an authority that we presuppose elected officials to have. Voting merely selects who exercises that authority; it does not create or justify the authority. A justification of democracy as the "best available government" does not work much better. The problem we are discussing is why we are morally obligated to obey governments in general.
Utilitarian generalization
The core of Smith's argument is broadly utilitarian. We ought to obey the law, he says, whenever it is "optimific" to do so (i.e., it would lead to the best overall consequences). When it is optimific, we have an independent moral reason to do the act in question. Then it is not because it is legal but because it is optimific. In cases where obedience is not optimific, we do not obviously have any moral obligation to obey. This argument reminds us that Smith is not arguing that we can morally disobey the law for private advantage. He is arguing that we can morally disobey the law whenever it tells us to do something we do not have an independent moral duty to do.
Some advocates of obedience to law buttress utilitarianism with an argument from generalization – what if everyone did as you are doing? The answer is it depends on how you describe what I am now doing. I am disobeying the law when it is optimific? That presupposes that my disobedience in this case is not going to contribute to a general breakdown in law and order or undermine the positive aspects of the rule of law (because these would make the act non-optimific). The consequences of everyone's doing precisely what I am doing would certainly be good!
Smith's argument relies on a recent developments in utilitarian theory. David Lyons argued that rule utilitarianism does not differ fundamentally from act utilitarianism. Lyons reaches this conclusion by distinguishing 'threshold,' 'maximizing' and 'minimizing' conditions in utility calculations involving social cooperation. Consider fishing in a lake. Normally it is optimific, but at some point (the threshold) more people fishing in the lake begins to destroy the population and lead to overall harm. Now suppose we have a social agreement to fish only twice a week. If most people abide by that agreement, my fishing an extra time would not cause any harm. However, if enough others did as I did, it would destroy the lake. Lyons says this still allows a utilitarian to justify breaking the agreement until we reach the threshold where the next person breaking the agreement will cause more harm than good. This would "maximize" utility. It justifies an act or rule utilitarian in "free riding" even if he generalizes his behavior. (I free-ride only when we are not at the threshold; if everyone did exactly as I am doing, nothing would be wrong). Our intuition, still, is that this is unfair
On the other hand, after the agreement has broken down and fish population is doomed, there is no further harm (in fact greater good) in fishing as long as the social benefits outweigh costs. Since the harm is already done (given others violation of the moral norms), there is no point in wasting the remaining fish in futilely trying to sustain a failed agreement. That is "minimizing" the harm. That does not seem unfair. Our utilitarian obligations, in other words, depend on what others are doing. There may be conditions where the level of lawbreaking has reached a threshold. We then may have a utilitarian (optimific) duty to abide by social arrangements that require sacrifices for the common good because further failure to do so could lead to a breakdown of social order. Our intuition is that early violation of the agreement even before the threshold may be optimific but unfair. Our intuition is that minimizing the harm when the breakdown has already taken place is not similarly unfair. The breakdown means the agreement is no longer "in effect."
Lyons notes these intuitions about the injustice of maximizing and the justice of minimizing mainly in connection with our violating agreements for personal advantage. It is not clear that our intuition is that anything is similarly unfair about such "moral free riding" (violating the agreements where it does no harm to the goal of the agreement and achieves some moral or impersonal good—e.g. where it is optimific). In those cases, where we are doing something that is independently moral, the threshold argument complicates the moral calculation, but it does not obviously yield the conclusion that we must obey the law.
Hence, Smith concludes, we have no generic prima facie moral reason to obey the law. We have specific independent moral obligations to do things that would count as obeying particular laws in most circumstances. These separate obligations take into account issues of moral fairness and the specific moral content of most laws. Threat of punishment is enough to sustain social order for other cases and the punishment is permissible if our "inner morality" requirements are met. We have moral obligations to drive on the left of the road in H.K. because, given the expectations of other (perhaps created by the law) not to do so would not be optimific. It is those expectations and probable consequences, not the lawfulness, that makes it morally required. If the law required driving on the right but we all expected everyone to drive on the left anyway, obeying the law would be morally wrong!
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