Responding to Greg Weiner on the Duty to Obey the Law

Greg Weiner has raised various questions about my (and Ilya Somin’s) views about the obligation to obey the law. I have several responses to his two posts.

First, Greg views my position as claiming that an individual should make the decision whether to obey the law based on an “individual utility function.” But that is not my view. I believe that the decision whether to obey the law is based on the effects of that decision on people throughout the nation. If one wants to view in terms of utility functions (rather than based on a different notion of welfare), it is based on the summation of different utility functions.

Second, Greg believes that I think that individuals should make the decision on their own. But that is not necessarily true either. I generally believe, based on my indirect consequentialism or two level theory, that people should follow moral rules rather than calculating what action to take in particular circumstances. One question I have about the duty to obey the law is whether there are such moral rules that are applicable to it.

Third, in my initial post, I mentioned the idea that individuals have an obligation to follow the law under a reasonably desirable legal system. This was an attempt to come up with a kind of moral rule to govern whether to follow the law. Thus, it is not a question of an individual calculating what to do in particular cases, at least most of the time.

Fourth, Greg objects that one should look at this question politically. Greg appears to believe that the decision whether one should follow the law should depend on “his or her freedom to participate in its formation or his or her acceptance of its protection.”

I believe that these may be relevant factors, but I don’t see how one can ascribe to them the force that Greg appears to. That someone voted in an election does not create any significant reason to be bound by the law. The key question is whether the overall legal system is a favorable one generally for the people and how one’s disobedience might help to undermine that system. I suppose that one might have an obligation to follow an arrangement that one consented to or in other small numbers situations, but certainly not simply based on voting, whether at the national, state or even city level.

Finally, Greg does seem to believe that people should have the power to decide whether to follow the law, as he would allow people not to follow seriously unjust laws such as the fugitive slave law. Greg wants to read this as a rare exception, but I am not so sure. While slavery was certainly a monstrous injustice, it is not clear that the failure to follow this law – at least when done by government officials – was the right thing to do. If the North did not follow the law, then the South might withdraw from the union – the failure to enforce the law was one of the principal justifications the South gave for secession – and that might lead to even worse consequences for slaves. (In the event, the slaves were benefited by the Civil War, but had the North lost, slaves might have been greatly harmed.)

Mike Rappaport

Professor Rappaport is Darling Foundation Professor of Law at the University of San Diego, where he also serves as the Director of the Center for the Study of Constitutional Originalism. Professor Rappaport is the author of numerous law review articles in journals such as the Yale Law Journal, the Virginia Law Review, the Georgetown Law Review, and the University of Pennsylvania Law Review.  His book, Originalism and the Good Constitution, which is co-authored with John McGinnis, was published by the Harvard University Press in 2013.  Professor Rappaport is a graduate of the Yale Law School, where he received a JD and a DCL (Law and Political Theory).

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Comments

  1. says

    There is no single answer to “the” question about the obligation to follow the law, because the question may arise in various contexts and be analyzed from a number of perspectives. Certainly, questions of the morality of following a particular law invokes questions of ethics that might be satisfactorily answered with diametrically opposed conclusions depending on one’s favorite philosopher. A deontologist and utilitarian could probably bore an entire room to death trying to resolve the issue. The question may just as validly be viewed, as Mr. Weiner does, from a political perspective, or a government perspective or even a sociological or theological one. This state of affairs is a consequence of the fact that the question is not straightforward, and is not really a single question at all.

    I would like to stir the pot by suggesting that the initial question include a related inquiry: what is the moral authority of the source of the law? I submit the following examples:

    1.) Speeding while taking one’s wife to the delivery room in the midst of active labor can be viewed as an exception to a general obligation to observe speed limits. The breach can also be accommodated by holding that a law-making body has no moral authority to proscribe speeding in such circumstances.

    2.) The validity of miscegenation laws can be attacked either by assessing the morality of the subject matter itself, or by assessing whether any body legitimately possesses the moral authority to pass such laws.

    3.) No body has the moral authority to promulgate a law that is unreasonably vague, or cannot be complied with or enforced; even if the subject of the law is undeniably moral. To take the trivial case, a legislature has no moral authority to outlaw immoral thoughts. Similarly, a legislature may not mandate ignorance, in the form of forbidding teaching of “immoral” subjects.

    4.) A legislature arguably has no moral authority to proscribe using reasonable force to defend oneself against bodily harm or death.

    5.) A legislature has no moral authority to require single mothers, or “mentally infirm persons,” or alcoholics be sterilized.

    The foregoing does suggest an exercise in question-begging: who decides what is moral when assessing moral authority? Can a rump or shadow government have moral authority? How about someone who asserts that he is descended from royalty and possesses the divine right of Kings? What about an administrative agency that purports to outlaw home schooling?This is where Professor Weiner’s argument gets the most traction, since there is a political dimension to establishing moral authority, and here is where I think the resolution between the individual prerogative and public duty tension lies. Determining whether a government has moral authority with respect to a particular issue (e.g. who you can marry, where you get your health care, what types of activity a business must subsidize for employees) depends largely on an ephemeral sense of public acceptance, in addition to objective consideration of “right and wrong.” Was it immoral to drink alcohol in 1930? Was it right to observe the Nuremberg Laws in the Third Reich?

    Deciding the “morality” of observing laws does not belong to any single discipline.

    • gabe says

      Z:

      To all of the above:

      PRICELESS!!!!!!

      Although we may never apprehend it, there is some value in pursuing first causes, if only to provide perspective. In other words, upon what is the law / morality based?
      Is it apprehended by reason or is it felt / lived by experience (individually / societally?

      And what does the decision to not enforce the law do to the peoples obligation to submit to other laws (good or bad)?

      Perhaps, this is for another essay – but given your statements above I think it is trite for one to say i was simply following orders. An individual or collective decision????

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