Is there a general, special or no obligation to follow the law?
(Here's an updated version of my formative essay that i had to write for my course. Let's start with a little bit of legal philosophy to get back in the game after a long break)
In answering the question whether there is an obligation (or duty) to obey the law, it will be submitted that the existence or absence of such duty largely depends on what the pursuer’s view of the law is. To demonstrate this, the legal positivism school and the natural law school shall be recalled. It will be established that, when looking at law as a legal positivist would, there can be no general duty to obey. For natural law theorists, on the other hand, establishing such a duty would be unproblematic.
As a background point, there are three kinds of duties discussed in the literature: a general (moral) duty[1], a prima facie (conditional) duty[2], and a special (limited) duty[3]. This work perceives the three as standing in a sort of a pyramid relationship to one another, with a general duty being on the top. The consequence of this is that, where a general duty failed to be established, a conditional prima facie, or a limited special duty might be found. Therefore, the work will proceed with an analysis pertaining to the presence or absence of a general duty as its first order, and will then apply, where possible, the findings to the other two kinds of duties.
Before turning to the main part of the inquiry, it is helpful to understand, why must an obligation of any kind to follow the law be established? This depends on whether one takes the view that obedience to law is the same as the obedience to a state which has produced the law. For two ways of thinking are possible: either the duty to obey the law must be established for its own sake[4], to justify the legitimacy of the law’s claim to obedience to itself, or to justify the legitimacy of the state that has authored the law [5]. In both cases, establishing legitimacy of a claim to obedience would have a two-fold meaning - it would a) provide a powerful ground for the affected person to do as the law demands, and b) change the character of a sanction imposed for breach of this code of conduct from a mere coercive one to a justified one.[6].
What would the finding of a duty to obey mean for a legal positivist? Legal positivists famously claim that the substance of the law does not affect its validity: the law can be unjust, and yet it will still be a valid law.[7] This ‘validity’ of the law does not mean the same as the law’s ‘legitimacy’ talked about earlier. A valid norm, like a correct mathematical equation, is simply a true fact; its only effect is that it assigns a norm to a particular legal system. This relationship of a norm to a wider legal framework does not, in itself, create a duty to obey the norm in question; only if it can be established that the wider legal system imposes on its subjects a duty to obey, could it be said that the overarching duty to obey would ‘rub off’ on a singular valid norm in the moment of it joining the wider framework. The finding of legitimacy of a system is particularly important for the case where a singular norm is “wicked or stupid”[8]. For if there is a general duty to obey the law simply because it is the law, then there would be no getting out of obeying a norm, no matter its individual merits. Seen from this angle, it is all the more important for a positivist to establish a general duty to obey the law.
As mentioned above, a positivist separates between the form and content of the law. We know, however, that a duty to obey the law does not arise from the law having merely been validly enacted - there is nothing in the formal requirement to justify a general duty to obey.[9] Therefore, to carry within itself a moral duty to obey, valid law must have an already embedded internal “ought” - the principle “(valid) law is to be obeyed because it is the law” must be logically sound. Alternatively, there could be an external judgment factor imposed on the valid law, which would constitute a valid “ought” - for instance that the “(valid) law is to be obeyed because the law is just”.
Hart and Kelsen argue that there is an embedded “ought'' and fail, one on the grounds that the ‘is’ of solidified social custom which is the law does not give rise to an ‘ought’[10], and the other on the grounds that the basic norm, which must in principle operate as an ‘ought’, is hard to establish and sometimes leads to a false positive (sometimes what seems as an ought of a system is not its ought)[11]. This is no surprise, for when a positivist tries to prove that the law is to be obeyed because it is the law, what they are really trying to prove is “valid law is to be obeyed because it is valid law”. The problem with this statement is apparent - not only does it remind of a circular fallacy, but also attempts to find an ‘ought’ from ‘is’.
Raz shows[12] why there could be no valid external ‘oughts’ imposed on a positivist legal system based on some examples. He discusses a variety of possible external “oughts”, e.g. “law must be followed because law is a promise” or “law must be followed because it constitutes an estoppel”. But because Raz does not provide, as he says, a “master argument for the non-existence of a moral obligation”[13], here is an attempt to do so in the context of our inquiry. If there is to be an external ‘ought’ imported onto the law by virtue of the law capable of having a particular characteristic - be it justice of the legal system, its fairness, etc., then the fact that in the positivist conception, the law must be merely formally correct to become valid means that it is just as probable that a law would have this characteristic as that this characteristic would be absent from a given law. And if it is the general duty to obey the law we seek, then even a single legal norm which lacks the desired characteristic would disprove its claim to general moral obedience.
The implications of this are the following: a legal positivist would never have a general (moral) duty to obey the law. They might find a prima facie duty - but with a variable degree of success, for it would depend on the extent to which a given law is capable of complying with an external standard that would give rise to an “ought” - it simply may not be enough moral force in valid law to even begin to contrast it with a polar moral obligation. Yet a special duty may be owed, for instance where the principles such as consent[14], promise, quasi-estoppel[15] etc. apply. Bear’s and Raz’s criticisms point out that a reason for striking down the proposal to impute a duty from one of the principles above is based on the reasoning, that the suggested sources of duty to follow the law fail to provide a rule to which there are no exceptions. This, however, destroys the potential for a consideration to be applied to justify a general duty, but not a special one.
And what of the natural lawyers? The natural law theory, the “historical opponent” of positivists[16], is famous for its assertion that there is a necessary moral component in law. Classical naturalists on one end of the spectrum see this component located in the substantive part of the law, whereas neo-naturalists on the other end are sometimes keen to focus on the procedural part of the law and leave the substantive part of the law aside.[17] Because the question of whether procedural morality is a valid term is less than unequivocal, this branch of naturalist theory will be abandoned in order to drive a wider point home.
Those naturalists who see the substance of law as having a necessary moral element believe that a valid law which is morally coherent[18].is a legitimate law - one that excuses the application of coercion (Acquinas, Finnes), or one that will not be criticised (Dworkin). By the very fact of so doing, the naturalists leave the proverbial back door in their conception of law open for an imposition of a moral duty to follow the law. The duty arises out of a fundamental assumption about human nature and the relationship of a human to the law.
The three naturalists mentioned above all rely on human characteristics to establish what this moral component of the law should be - Acquinas and his natural law theory of morality imply that because humans are capable of reasonable behaviour, they must also only create reasonable laws; Finnes says that because humans pursue basic goods, the law must take those into account when trying to distribute those; Dworkin, finally, says that those who apply the law also import principles of the (moral) common sense of the wider population into it. In doing so, all three implicitly establish why the moral component of the law has a binding effect - it is because humans must act in a morally right way.
In this assertion lies the true weak point of the natural law theory in general, for the validity of the entire school of thought depends on whether one can sufficiently justify whether we must be moral. However, a good argument is provided by Aquinas’s natural law morality theory: it is because humans, by the virtue of their consciousness having the capacity to tell right apart from wrong, must act in accordance with what is right, they must also follow such laws which are morally coherent. So therefore, so long as a law is just, one has to obey it. When a law isn’t just, it is not a law at all; therefore, even if it is valid, it must not be followed.
Thus, for a naturalist, ‘true’ laws go hand in hand with the general duty to obey them, for a legitimate law is also a morally sensible law. This duty is a general one and not a prima facie, because the moral person cannot choose a cause for action which suits them the best when several are available, for this would hardly be compatible with the key characteristic of morality, whose values are absolute[19]. Thus, once a law has been identified as a ‘just’ law, the duty to obey it cannot be overridden by following a moral reason to do the opposite. One may, of course, follow the opposing consideration, but doing so would result in breaching one’s duty to obey the law. It is open to interpretation whether ‘sham’ laws impose at least a prima facie or a special duty to follow them, but this does not need to be discussed here, for the essay title does not leave scope for the discussion of “non-laws”.
To sum up, it has been attempted to show why a legal positivist would never find neither a general duty nor a reliable prima facie duty to follow the law (= valid law), whereas a legal naturalist would always find a general duty to follow the law (=just law). It remains to be seen whether the relationship between the presence or absence of a duty to follow the law and one’s legal ideology is at all important insofar as other schools of legal thought are concerned.
[1] Raz, Joseph, The Obligation to Obey the Law, in The Authority of Law: Essays on Law and Morality, 2012, p.235
[2] Smith, M.B.E., Is There A Prima Facie Obligation to Obey the Law? in The Yale Journal, Vol.82/N.5, p.950
[3] Murphy, Susan P., Special Obligations in Encyclopedia of Global Justice, 2011 Edition, p.1027
[4] Hasnas, John, Is There a Moral Duty to Obey the Law?, in Social Philosophy and Policy, Feb. 2014, p.451-2
[5] Wolff, Robert Paul, In Defence of Anarchism, 1970, p.3-8
[6] Klosko, George, The Moral Obligation to Obey the Law, in Law Explorer, General Law, 08 Oct 2016, https://lawexplores.com/the-moral-obligation-to-obey-the-law/, last accessed 02.12.2021
[7] Green, Leslie and Thomas Adams, "Legal Positivism", in The Stanford Encyclopedia of Philosophy (Winter 2019 Edition), Edward N. Zalta (ed.)
[8] Himma, Kenneth Einar, Positivism, Naturalism, and the Obligation to Obey the Law, in The Southern Journal of Philosophy, 1998, Vol. 36
[9] Green, Leslie and Thomas Adams, "Legal Positivism", in The Stanford Encyclopedia of Philosophy (Winter 2019 Edition), Edward N. Zalta (ed.), Part 2
[10] ibid
[11] ibid
[12] Raz, Joseph, Obligation to Obey the Law, p.238-240
[13] idem, s.242
[14] Bear, David, Establishing a moral duty to obey the law through a jurisprudence of law and economics, p.494
[15] Raz, Joseph, Obligation to Obey the Law, p.238-240
[16] For the sources, on which the discussion of legal naturalism here and the following page is based, see Himma, Kenneth Einar, Natural Law, IEP, https://iep.utm.edu/natlaw/, last accessed on 02 Dec 2021
[17] this reference is to Fuller’s conception of “procedural morality” of the law
[18] this would cover not only Acquinases’ and Finneses’ “justness” of the law, but also “moral attractiveness” of Dworkin
[19] see Johnson, Conrad D., Moral and Legal Obligation in The Journal of Philosophy, Vol.72/N.12, p.321, 326
