Is There a Moral Obligation to Obey the Law free essay sample

Classical natural theory asserted that the validity of a rule necessarily depends on whether it conforms to moral standards because those who do â€Å"bind in conscience†. Law plays a normative role in such a theory. On the opposite, positivists such as John Austin or H. L. A Hart believe that the legality of law is independent from moral considerations and is only a matter of factual requirements. Positivism highlighted this view with their separation thesis in which one cannot assert a law is just because it has the status of law nor that one can guarantee that a subject ought to do what the law requires. The essential property of the law which is promulgation (whether in Austin’s thesis the focus is put on who promulgates the law – the sovereign or Hart’s analyses of how it is promulgated – after it satisfies a set of secondary rules) does not give rise to a moral obligation. We will write a custom essay sample on Is There a Moral Obligation to Obey the Law or any similar topic specifically for you Do Not WasteYour Time HIRE WRITER Only 13.90 / page These theorists indeed tried to argue that the moral obligation to obey the law depends on features that are not essential to the existence of a legal system and that when missing then do not affect the effectiveness of such a system. I would argue that the identification of law being a matter of factual conditions can’t give rise to an obligation of a moral nature and thus can’t be derived from moral obligations as consent, fair play or co-ordination matters as it has been previously argued. The past debates have focused on the determination of such an obligation when the law was â€Å"grossly unjust† but what will be asserted is no obligation exists even when the legal system is just. According to Finnis, law is the instrument to promote the common good and help one to achieve the realization of the basic human goods. A law is valid because â€Å"it takes place in a scheme of practical reasoning whose practical starting point is the range of basic ways in which human well-being can be promoted and protected, the way picked out in practical reason’s first principles†. Law is described as â€Å"seamless web† that is as being the common denominator for men’s action and thus serve co-ordination purposes. Coordination appears through a legitimate authority to promulgate valid laws which and offer a necessary clarity and the identification of practical solutions due to the variety of actions available for one person. It is the value of the Rule of law that gives the legal system its distinctive entitlement to be treated as the source of authoritative solutions. It is important because recalcitrance is always possible even when one benefits from the cooperation. Although Finnis acknowledges the possibility that one may have other considerations to obey the law, he asserts that law comes as an authoritative source to help you choose when confronted to different basic human goods, as to tip the balance in favor of the obligation voiced by the law. Therefore, law might have a moral force here. As he puts it, â€Å"one aspect of the common good is being a ‘law abiding citizen and to be a law abiding citizen requires obeying the law even when one does not see an independent reason to do what the law requires†. The identification of the solution helps determine the pattern of behavior that one must adopt and from which the benefits depend. Whilst Positivists agree, they refute the argument that moral and laws have to be necessarily connected. Indeed being legally obliged does not entail being morally obliged. One of the most contributive philosophers on this theory appears to be H. L. A Hart to whom an obligation is general demand for conformity in addition to a social pressure on the deviants and the requirements of sacrifices on the law-abiding. Hart explains the existence of a legal system by the reunion of two perspectives usually respectively attributed to naturalist and positivist. In this way, asserting that one legal system can’t be grounded on the mere existence of an external point of view, that is to say to have an external observer who admits a particular groups behave in a certain way and accepts the rules as binding them. Indeed, the perspective is complete when the internal point of view of those subjects to the law acknowledges there are reasons for obeying the laws which gives rise to an obligation. In this sense, Hart makes a true connection with natural law theorists. However, Hart denies that his depiction of the internal point of view is of a moral nature. According to him obedience and acceptance of the rules are two distinctive features as â€Å"acceptance does not impart moral approbation of the rule, nor even belief that there are adequate moral reasons for obeying it†. In Hart’s own terms: â€Å"What is necessary is that there should be a critical reflective attitude to certain pattern of behavior as a common standard and that this should display itself in criticism , demanding for conformity and in acknowledgement that such criticisms and demands are justified, all of which find their characteristic in the normative terminology of ‘ought’, ‘must’, ‘should’, ‘right and ‘wrong’. Hart’s argument is strikingly ambiguous as this terminology mentioned as such directly refers to the vocabulary of morality. One can fairly question the connection Hart makes between morality and law and wonders if that argument does not contribute in far to blur the dividing line between these two. Hart’s response to that point is that the terminology is common to the language of law and of morals. He goes further by claiming that being legally under an obligation has a very different meaning than being morally obliged as one can face a great variety reasons on whether to obey the law, even those of which who appears to be unjustified from a moral perspective. Instinctively, Hart’s attempt to defend his position on the dividing line between a moral and a legal obligation seems to fail and does not serve the cause of the skeptics to affirm there is no moral obligation to obey the law. Indeed, how can you conjugate the need that ‘the criticisms and demands are justified’ when the lawmakers can still accept law as a fact but that morally it is possible that ‘they ought not to accept it’. It appears as paradox because it is more likely than those demands will not be justified. Therefore, Hart’s failure to demonstrate a clear separation of law and morals leads to the failure to prove the non-existence of moral obligation to obey the law. We must then analyze Hart’s contemporaries work to demonstrate that there is no general obligation to obey the law grounded on moral considerations. I would argue that the mere fact that law has the status of law and is the result of a technically-valid process does not necessarily give rise to a moral obligation due to the variety of factual conditions that governs the obedience. Then, one must deny the existence of a general obligation to obey all laws at all time. However, some legal theorists tried to derive such an obligation derived from moral considerations as consent, fair play or co-ordination matters. Indeed, following Aquinas theory, the legitimacy of the legal system was the starting point of his analyses. In Aquinas’s term, it is legitimate when law conforms to natural law as being the direct participation in the mind of God, whose perfection can be grasped by the use of reason. Thus, positive law derived from natural law has necessarily gives rise to a duty to obey the law even where the law would be morally optional. The law here serves as a purpose of realize one’s human nature. According to Aquinas, we have to foster just institutions: â€Å"positive laws are either just or unjust. If they are just they have the power in binding in conscience, a power which comes from the Eternal law from which they are derived†. Law is the result of human-made and is a matter of fact, thus it is obvious that factual reasons are there. Positivists support a different view on which the validity of law is independent from its worth. Smith’s article is the most persuasive and detailed account of the demonstration that no obligation can be voiced in general terms. Smith questions the existence of a â€Å"prima facie obligation to obey the law† which is the case if â€Å"a person A [has] to do an act X if, and only if, there is a moral reason for S to do X which is such that, unless he has moral reason not to do X at least as strong as his reason to do X, S’s failure to do X is wrong†. Smith answers the claims that such an obligation can be grounded on the gratitude agents must have toward their government for providing benefits. On this view, one person who accepts the benefits has a debt towards the benefactor. As much as the argument sounds convincing, Smith point out that â€Å"if someone confers benefits on me without any consideration of whether I want them, and if he does this in order to advance some purpose other than promotion of my particular welfare, I have no obligation to be grateful towards him†. Indeed, such an obligation would be indeed verified if one had the choice of benefiting from the state’s enforcement of law. However, in our society, no one has the a genuine option which puts them in a position to choose whether to accept or not these benefits then I hardly seen how one has to show its gratitude for something that is imposed on them, no matter how supposedly beneficial it is. Moreover, Smiths fairly notes that obedience is only a possibility to show your gratitude and that the latter can be expressed in different ways which depends on the extent of the benefit. A comparison has often been made between the argument of gratitude and the one a child must express towards its parents. As much as it is true that children should feel grateful for what their parents have done for them, it is frankly odd to claim grown-ups owe obedience to their parents. It clearly establishes that gratitude offers at best a partial answer whether there is an obligation. Aware of these insufficiencies, legal theories shifted the right to gratitude from the benefactor to the agents who submitted. It was first voiced by John Rawls who argued that one has an obligation because he lives in a scheme of mutual cooperation and benefits from the submission of his fellow citizens. Most strikingly, Hart’s also argued that such an obligation existed and was due to citizen who abided by the law and not to government: â€Å"When a number of persons conduct any joint enterprise according to rules and thus restrict their liberty, those who have submitted to these restrictions when required have a right to a similar submission from those who have benefited by their submission†. What is at stake is that those who submit realize some are taking advantage of their submission to disobey the law and still benefits from other’s submission. This could encourage those who submit to think their sacrifices are not being rewarded and eventually see not point in submitting either. The duty of fair-play thus incites everyone to play the game of a social mutual cooperation to avoid general disobedience. As Smith pointed out, the argument, as much as interesting it is, imply that this mutual cooperation benefits all the members of the society. Such a perfect cooperation is unrealistic as agents are confronted to a variety of basic human goods and that cooperation does not always serve their interest. Moreover, as he fairly noted, not all type of disobedience effectively leads to cause harm to other agents and then Hart’s and Rawl’s arguments fail. Indeed, he argues that such disobedience to the traffic code very frequently is unnoticed and then causes no harm. Then as much as gratitude is insufficient, fair play offers at least a partial answer as it cannot account for a general situation. Therefore, some theorists tried to ground such an obligation on the consent one has previously given to the authority of law. According to them, It is of course an indirect consent through the process of voting. John Locked argued that the â€Å"purpose of an election is to give authority to the people who win it† and that you acknowledges, if you’re part of the majority, that laws passed under such a government are justified and then you will most likely obey the laws you agreed on when voting – since you know candidate’s program and the content of the laws that ought to be passed. On that view, those who are not part of the winning majority still accept the laws as they know they would have expected such a pattern of conduct if they had been in the winning position. Smith offers a persuasive counter-argument by saying voting might give rise to a duty to obey the law, as much as you’re part of the eligible. If you’re ineligible, it is hard to ground such an obligation because there is no consent to the authority that has been elected. Then, such an obligation certainly cannot be expressed in general terms but must account for the variety of specific situations. Eventually, Smith discusses the opportunity that such an obligation could be grounded on a principle of utility. Bentham argued that a man’s action was influenced by his desire to find pleasure and avoid evil which gave a starting point for John Austin’s account of law as being an order backed up by a threat that would cause evil in case of disobedience. In such a case, the moral duty is grounded on the consequences of disobedience. Government aims at securing Common Good and promoting the basic human goods. In the absence of such coordination, agents are left to their primary condition that being the state of nature first voiced by Aquinas, and rendered famous by Locke and Rousseau. Law appears to secure happiness and without acceptance to its authority, no government can last longer. Positivists do agree that grossly unjust legal systems are not denying that central quality of legal system but that their longevity will be at stake. However, they legitimately opposed one counter-argument to that theory based on the principle of utility. Smith remarks that disobedience to law does not always lead to bad consequences. If so, the argument fails because the like hood of getting affected by evil is not feasible. He even goes further by asserting that disobedience can even have good consequences. Finally, one cannot deny the possibility that such consent could be grounded on morally questionable content. Bix questioned that possibility that one could consent to being another person’s slave. According to that theory of consent, the simple existence of a promise would give rise to a moral duty to obey. With Bix’s remarks on the question, one can rightly see the contradiction. Therefore, in the light of Bix’s remark, the consent is clearly insufficient to give rise to a moral duty when confronted to a â€Å"truly evil regime† but may be a plausible answer in a fair legal system. We will see that Joseph Raz attempted to prove that such an obligation does not even exist in a fair legal system. Joseph Raz, a follower of Smith in so many points, opposed to Finnis on the connection between authority of law and moral considerations. Raz does not deny that one may have moral reasons for obeying the law but that they only are additional to the prudential reasons which are essential to our obedience to law. Even though he shares Finnis’s position on law having its central feature as securing cooperation, he argues that the patterns of cooperation are numerous and do not have to take the form of a law. According to him, it does not matter if the cooperation is maintained by a law or any other means. Finnis strongly disagreed on that point because law appears to be the only acceptable scheme of cooperation and that the status of law has an impact on agent’s practical reason. Indeed, in his article on that matter, Finnis proves his point with the example of river pollution. He acknowledges that a farmer may have other interests than precluding river pollution and that law might not serve its interests. However, according to him the mere fact that law has the status of law when the farmer is confronted to various human goods and has different interests at stake, the authority of law helps to tip the balance in one way more than another. Therefore, law plays the role of the identification of the solution and as a guideline. Raz offers a different interpretation of how the law secures the common good without this time having to resort to moral considerations. David Ingram fairly resumes Raz’s position as following: â€Å"Laws and legal systems that embody the rule of can aim at morally bad and unjust purposes so long as they respect individuals’ freedom and dignity as rational choosers. But this ‘inner morality’ (As Lon Fuller refers to it) contains a minimal level of justice and goodness. It satisfies the principle of formal justice in treating everyone as equally subject to the law and equally capable of rationally abiding by it [†¦]. The law satisfies the principle of ubstantive justice in treating each individual as a free, rational agent with certain basic rights. Finally, the rule of laws satisfies the common good by creating a stable framework for allowing people to pursue their own – and society’s – good† Therefore as long as law satisfies those conditions, it does not have to be morally justified. The law is given the quality of law independently from all moral considera tions as long as it satisfies factual requirements. On the contrary, according to Finnis, the moral obligation necessarily follows from that satisfaction because it is law in its â€Å"fullest sense†. According to Raz, Finnis’s assertion of the existence of moral obligation to obey laws that are legally valid and are inserted in a just system appears to be â€Å"at best redundant†. Indeed, if one lives in a just system, he will most likely have prior reasons to conform to it because of the status of â€Å"just system†. Suppose one lives in just legal system, they do not need a law to be passed to be told they are living in a just system. The mere fact that it is a fair legal system will most likely preclude one from contesting or opposing it. Therefore, the motivations preceding the law are independent of the obligation to obey the law because â€Å"the law says so†. It appears to be quite obvious then that the status of law adds no moral force in a just legal system and would indeed be redundant in Raz’s own terms. Eventually, the central claim of positivists is that laws can be trivial and that sometimes their disobedience can be unnoticed. Even if you can question the â€Å"cynical view one has toward a legal system in which he will disobey every laws he is sure he will not be caught, it does not undermine the system as long as it does not affect the law abiding citizens. What has been highlighted is that obedience is not necessary to ensure a system’s effectiveness. Human laws frequently answer needs that are relevant to a given period of time and for a specific circumstance. It would be dubious to require agents to feel morally obliged by laws that are outdated and that would render no good when obeyed. The authority of law is effective when it is possible to make a distinction between laws that are actual and that are not outweighed by higher moral consideration – which gives rise to a prima facie obligation – and those who are the answer to specific demand to which bedience would be at best useless or worse counter-productive. Asserting that there is no necessary connection between law and morality, one can obviously say that the violation of the law is not always morally wrong just because it is law. In certain cases, the violation of the law can even be justified. That sustains the argument that no general obligation can be grounded because of the existence of a multiple schema of obedience and specific circumstances under which disobedience is harmful or even further, justified. The extent of the duty depends on factual considerations independent from law technically acquiring the feature of law or from the quality of fairness of the system. They all agree that there are a core of situations under which you may feel morally obliged. Whilst Natural law theorist refers to it as sufficient to ground a moral duty, most of the positivist claims that beyond this backbone, the extent of the obligation is most likely to differ. .