Obeying the Law, Authority, and Might vs. Right

My Philosophy of Law class has started up this week, and the first question we are pondering is whether there exists a general obligation to obey the law. Specifically, as my textbook puts it, is there a general obligation to obey every law, even laws that do not happen to coincide with an independent moral commandment? It wouldn't mean that it was morally right to obey every law if that obligation did exist, just that there was some moral force in favor of obedience. Maybe there would be a stronger moral force arguing for disobedience, for instance in the case of the civil rights movement, but there's some, admittedly inferior reason to obey the law even so.

The textbook's conclusion, at least during the introduction, appears to be no. They consider several arguments, and find all of them lacking. They consider consequentialist arguments, social-contract arguments, and finally John Rawls' fairness argument, and reject them each in turn. I do feel that, especially in considering the consequentialist arguments, they get a little forgetful of the fact that finding such an obligation to follow the law does not actually mean that one should follow the law; by the original premise of the question it strikes me that if one can show that on a consequentialist "pro/con" diagram on the question, "should I follow the law?" there is always some non-negligible entry in the "pro" column, you've found a general consequentialist moral impetus in favor of obedience. But I digress, because I think the most fruitful line of inquiry is in the social-contract category. I also think that asking the question the way my book does, "should one obey every law?", is rather confusing. It's better to ask, why should I follow any law?



We can construct a patchwork of reasons to follow various sorts of laws. Assuming we're talking about morals, we have to exclude "laws you'll be punished for breaking". However, as the book notes, many laws happen to coincide with a free-standing moral imperative, and one ought follow those laws. There are other similar kinds of arguing, but they all kind of miss the point. If we're asking for a specific imperative to obey the law, we want arguments based simply on the fact that something is the law. And if we're thinking about the law then we have to be thinking about authority, because law defines itself by authority. (It's more or less in the definition of the word, I'd say.)

There are two kinds of authority: authority by might and authority by right. Authority by might is very simple indeed: it is about power. If you have this kind of authority it means you can force other people to obey your commands. You have the resources to enforce your dictates. That's all you need to be an authority by might, is some might. If there's another authority with more might than you have, who can overrule you and make you obey them, then you're not really much of an authority any more, except as much as the stronger lord allows you to be, in which case you're really just their vassal.

Authority by right is a completely different thing. It means that there is some valid reason why you ought to be able to order people around. This can take various forms, but one way or another the result is that your rule is a good thing, that you aren't just in charge because you can be but because you should be. I think it must be true that there is always some sort of authority by might, because there's got to be someone with more coercive power than anyone else and that guy gets to rule the roost. But there most definitely is not any guarantee that anyone will have authority by right, or that if someone does, it will also be the person with the might.

Any law is made by some sort of authority. My personal theory is that any law issued by an authority by might has no moral force standing behind it, no obligation to obey. If the only reason the authority is making laws in the first place is because they can, because they have the power to punish those who disobey, then the law is nothing more than a threat. Maybe it is prudent to follow it, because you don't like being punished. Maybe in many cases it will be morally good to follow the law, because the law happens to be a good law that aligns well with external senses of morality. But maybe not, and if not, then screw the law. It is nothing.

The whole point of authority by right, however, is that there is moral force backing the ruler. Therefore, by definition, there is moral force backing the laws, and some sort of moral obligation to obey them. Thus far I've only been making definitions and then drawing circular conclusions, but some examples of an authority by right should make my conclusion more clear. People always like to think that the person wielding might over them also has some right to their authority. In the old days, the people holding the might invented the concept of divine right of kings to satisfy this desire. If all the citizens believe that their king was divinely anointed, then of course they have a very good moral reason to obey his laws: god made him king, so these are, indirectly, god's laws.

More recently, however, we've invented a different theory to make might and right line up with one another: democracy. The textbook glosses over the argument from voting ridiculously quickly, saying merely that people don't conceive of voting as an agreement to obey all laws (which is true), that giving up voting is costly (also true), and that binding moral agreements must be conscious (which may be true but I think has some loopholes). Once again, however, they're getting tricked up by focusing on this construct of "obeying all the laws." Of course voting is not an agreement always to obey the law, because we know while making whatever agreement it is we are making that there could always be some stronger moral reason to disobey the law.

But what we do when we vote is endorse the government as a whole. And I don't mean government in the sense of "party in government," the current Administration or legislature or whatever. When you vote, you buy into the overall system of government. In this country (and everywhere, really, outside of the U.K.), we would say that you buy into the Constitution. You don't promise never to try to change the constitution; I don't even think you promise never to try to get the constitution repealed or thrown out altogether. But I think you do accept that the government is there and that it has a legitimate right to be there. That means you agree that, all else being equal, you ought to follow its laws. You have conferred upon it authority by right, which means almost tautologically that there is an obligation of some weight to obey it. Q.E.D.

This is a notion that political philosophers have been savvy to for a very long time. Rousseau was very concerned with the problem of unanimity: there is a problem with imposing a law on someone who did not agree to it, what with the whole infringing-their-liberty thing, but we can't just say that we won't impose laws on those who disagree with them, because then laws disappear altogether. The solution is that you look for unanimous consent to the form of government. Once you have that, you get to impose laws on those who dissent from those laws, because they've agreed to the institutions that create the laws. That's why complaining that you didn't vote for the party in power doesn't work: as long as you vote, you agree to be bound by the decision of the majority (usually).

Now, not everyone has voted, so one needs several other arguments to extend this obligation to the entire populace. Immigrants or travelers, people who voluntarily enter a country, are perhaps the easiest people in the world to cover, even easier than citizens who have voted: a nation is completely clear about its general system of government, so when you make a decision to go to that country, you automatically accept the government in place. Perhaps when there's a revolution the new government ought to give all foreigners and immigrants in the country a chance to leave, but those are pretty rare nowadays anyway.

That leaves us with natural-born citizens who have never voted, a significant portion of whom have never voted because they are children and have never been afforded the right to vote. My inclination is to think that for the government just to extend you the right to vote, or in the case of children to extend you the promise of a future right to vote, is sufficient. If someone wants to say, I've never voted, I will never vote, and therefore I claim that I have not consented to this government and am not bound by its laws, I don't have a huge problem with that, so long as they're okay with it when the government then doesn't accept that as a plea in criminal court and throws them in jail for their crimes.

One way or another, though, I'm pretty sure that voting does constitute consent to the government as a whole, which means some kind of low-level consent to follow the laws of that government. This doesn't mean that, as a net matter, you morally ought follow every individual law, but I think it does mean that there is at least one moral reason to follow every law. We don't view it as an agreement to follow every law because it isn't one. If we don't view it as consent to the government, well, honestly I think that's our fault. If you sign a contract that you have ample opportunity to read, but you simply neglect to do so, I don't think you can then complain when there's language in the contract you don't like. Voting gives the government authority by right over you, and once it has that, you have a moral obligation to obey it. If the government won't let you vote, then no such obligation exists. It is, as far as I can see, as simple as that.