Law and Moral Obligation II: A Response to Ilya Somin

Ilya Somin has posted an essay at Volokh that narrows that gap between our views on the source of the moral obligation to obey the law—I certainly agree, for example, that there are exigent circumstances in which one might be not merely entitled but obliged to disobey—but our underlying disagreement persists: whether the calculation itself is an individual or a political one.

Ilya denies my assertion that his calculus is one of “atomized individuals” pursuing self-interest, noting, for example, that I in fact acknowledged his observation that potential harm to others was a valid factor in assessing the extent of one’s obligation to obey the law. But this affirms my point, which is that on his reasoning the authority still rests with individuals, and that—whatever factors they may take into consideration, which may indeed be altruistic or other-regarding—they make these decisions in isolation rather than as public members of a political community.

Ilya writes to the contrary:

[I] do not in fact advocate each individual relying solely on his unaided judgment in deciding whether he has an obligation to obey a particular law. He or she can also rely on social norms, moral principles, or defer to the views of those more knowledgeable about the relevant moral tradeoffs. The claim that people must either obey all laws or rely solely on their own personal judgment is a false dichotomy.

Had I relied on such a dichotomy, I would concede the point. But I don’t think I did, nor do I think that’s the choice. Rather, the choice is between calculating individually and thinking politically. By this I mean—and here, I suspect, is the nub of the disagreement—that the political community (a) exists qua community, transcending the individuals comprising it, and (b) asserts claims on its members in that capacity. Even to the extent Ilya’s individuals reason morally, they are still a web of isolated individuals, each calculating the impact of their behavior on other individuals—they do, in fact, rely “on their own personal judgment” as to whether to obey the law, even if that judgment is informed by the opinions of others—not reasoning as a political community with an existence as a community.

To be sure, Ilya is certainly right that no such community meaningfully operates at the national level, or at least one cannot seriously vindicate one’s membership in it with 1-in-60-million odds of casting a decisive ballot in a presidential election. I suspend judgment on the presidency-centric assumptions evident in the example; a more constitutionally sound one would seem to be the same figure for a Congressional race, but I grant that the odds would still be infinitesimal. But notice again the individualism—a word I deploy descriptively and that I assume Ilya would not regard as an epithet: One’s participation is meaningful if one’s vote is personally decisive, not as part of a shared deliberative process in which one’s desires must be accommodated to those of others.

Still, Ilya identifies a serious problem with the classical argument as it is mapped onto contemporary politics. That argument in contemporary context would have to assume something like a functioning American constitutional order, which depends heavily on decentralization through federalism. The moral force of participation is enhanced at the local level but diminished when it is stretched to the point of impersonality. The moral force of obedience is further undermined when rules become unknowable or their enforcement becomes arbitrary. Here I assume Ilya and I can agree.

We also agree that individuals are not merely entitled but morally bound to disobey flagrantly unjust laws like the Fugitive Slave Act. But I would resolve these situations on Burkean grounds: as prudential exceptions from which general rules are not to be drawn. That is, they do not prove a generalized individual entitlement to determine in isolation whether to obey the law based on one’s own moral views. To make a rule of that exception is inescapably to dissolve politics, which depends on a community, once consented to, being coercively bound. (Ilya’s argument that consent, including tacit consent, is not a meaningful device in the contemporary setting—due among other factors to the difficulty of emigration—seems to me to lead to the conclusion that politics as I understand it is untenable, a destination to which I am unwilling to follow.)

In practice, to be sure, our disagreement is probably narrower than my initial post suggested. At the theoretical level, though, it remains an important one. It distills to the difference between Burkeanism and libertarianism. On that description of the dispute, if not its resolution, I also suspect we would agree.

Greg Weiner, who teaches political science at Assumption College, is the author of Madison’s Metronome: The Constitution, Majority Rule and the Tempo of American Politics. His book American Burke: The Uncommon Liberalism of Daniel Patrick Moynihan will be published by University Press of Kansas in early 2015.

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Comments

  1. Kevin R. Hardwick says

    Greg,

    Regarding the notion of “flagrantly unjust.” It is not at all clear that what constitutes flagrantly unjust is self evident. First, one can credibly argue that the fugitive slave law was necessary in order to attain a greater good. This was after all the calculation of guys like James Madison, for whom the evils associated with dissolution of the Union were greater than the ills associated with the compromises over slavery necessary to secure the union. If Madison’s calculus is correct, then arguably one has an obligation to enforce and obey unjust laws. This was how Lincoln understood the issue.

    But second, and even more thorny, proponents of slavery had strong arguments supporting their notion that blacks were unfit to govern themselves and hence were better off as slaves. We now know and understand those arguments to be false, but at the time it was not self evident where the truth lay. As William Van Cleve has powerfully argued in his recent and excellent study of slavery and the constitution, for most of the period prior to the civil war most Americans, north and south, were profoundly racist. Their racism amounted both to a strong public consensus and also to a real unperceived bar to correct moral reasoning about slavery. Under these circumstances, does your argument still bear up? If the will of the political community is unambiguously racist, what are the implications for political obligation in a public order premised on popular sovereignty?

  2. gabe says

    ” If the will of the political community is unambiguously racist, what are the implications for political obligation in a public order premised on popular sovereignty?”

    I would look to Mr Lincoln for the answer to that question. At times, leadership is required to bring the people to a proper moral consensus. Does this make it an individual response or a collective response (or is it, to abuse Mr Madison, a government acting nationally or Federally ?

    • Kevin R. Hardwick says

      Gabe,

      No question. But of course Lincoln failed to disrupt the prevailing moral consensus, at least in his lifetime, or those of the next two generations. The proslavery racial essentialism survived the war, and remained the consensus in our country until at least the 1960s. That is why laws that strike us today as flagrantly unjust continued in effect, and sustained the active support of most Americans. Racism was, until very recently, the normative position. There are real limits to what even great moral leadership can achieve. As Andrew Johnson–not a man most of us consider to be a great and thoughtful leader–pointed out in his various veto messages, absent moral consensus to sustain law, the only alternative is un democratic force against prevailing norms.

      • gabe says

        Kevin:

        You are of course correct with respect to racist attitudes – they certainly survived the war – and if some of our neo_C0nfederate friends are to be believed were actually magnified by the war and Reconstruction.
        However, I do not believe that Lincoln was trying to effect such a change in personal attitude but rather only institutional change; i.e. to no longer give the force of law to human bondage. In that regard he was successful.
        Johnson was of course correct regarding moral consensus as a buttress to the law – it is a necessary precondition to societal acceptance of the law. However, it has all too often been used as an excuse for the status quo. Some argue that this is precisely what Johnson had in mind. I am not so certain of that. Yet, it would have been easier to accept Johnson as something other than a War Democrat if he had been a little more supportive of some of the Republican proposals (not all, certainly). I have mixed impressions of him.
        I would say also that to a certain extent the survival of institutional racist practices had much to do with Democrat Party coalition building efforts ( or at least efforts by FDR etc) to not fracture the emerging Democrat coalition by alienating the southern Democrats. As to moral sentiment, or lack thereof, it certainly did survive well into the 20th Century.
        Of course, nowadays our Progressive friends equate policy difference with racism. One wonders why they are ale to maintain their coalition – at what point do we recognize the sheer hypocrisy of this group?

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