The question 'Why should I obey the law?' introduces a contemporary puzzle that is as old as philosophy itself. The puzzle is especially troublesome if we think of cases in which breaking the law is not otherwise wrongful, and in which the chances of getting caught are negligible. Philosophers from Socrates to H.L.A. Hart have struggled to give reasoned support to the idea that we do have a general moral duty to obey the law but, more recently, (...) the greater number of learned voices has expressed doubt that there is any such duty, at least as traditionally conceived. (shrink)

Under what conditions, if any, do those the law addresses have a moral duty or obligation to obey it simply because it is the law? In this essay, I identify five general approaches to carrying out this task, and offer a somewhat detailed discussion of one or two examples of each approach. The approaches studied are: relational‐role approaches that appeal to the fact that an agent occupies the role of member in the political community; attempts to ground the (...) duty to obey the law in individual consent or fair play; natural duty approaches; instrumental approaches; and philosophical anarchism, an approach that denies that most subjects of contemporary states have a duty to obey the law simply in virtue of its status as such. (shrink)

This chapter contains sections titled: The Prima Facie Duty to Obey: A Brief History Implications of Catechistic Metaethics for the Duty of Obedience Implications of Commonalist Metaethics for the Duty of Obedience Conclusion References.

The question 'Why should I obey the law?' introduces a contemporary puzzle that is as old as philosophy itself. The puzzle is especially troublesome if we think of cases in which breaking the law is not otherwise wrongful, and in which the chances of getting caught are negligible. Philosophers from Socrates to H.L.A. Hart have struggled to give reasoned support to the idea that we do have a general moral duty to obey the law but, more recently, (...) the greater number of learned voices has expressed doubt that there is any such duty, at least as traditionally conceived. (shrink)

This chapter contains sections titled: Definitions Justification and the Duty to Obey.

A growing number of political and legal theorists deny that there is a widespread duty to obey the law. This has lent a sense of urgency to recent disagreements about whether a state’s legitimacy depends upon its ‘subjects” having a duty to obey the law. On one side of the disagreement, John Simmons, Robert Paul Wolff, David Copp, Hannah Pitkin, Leslie Green, George Klosko, and Joseph Raz hold that a state could only be legitimate if the (...) vast majority of its subjects have a duty to obey the law. On the other side, M.B.E. Smith, Jeffrey Reiman, Kent Greenawalt. (shrink)

The central question in political philosophy is whether political states have the right to coerce their constituents and whether citizens have a moral duty to obey the commands of their state. In this 2005 book, Christopher Heath Wellman and A. John Simmons defend opposing answers to this question. Wellman bases his argument on samaritan obligations to perform easy rescues, arguing that each of us has a moral duty to obey the law as his or her fair (...) share of the communal samaritan chore of rescuing our compatriots from the perils of the state of nature. Simmons counters that this, and all other attempts to explain our duty to obey the law, fail. He defends a position of philosophical anarchism, the view that no existing state is legitimate and that there is no strong moral presumption in favor of obedience to, or compliance with, any existing state. (shrink)

Journal of Social Philosophy, EarlyView.

This essay argues that there can be a duty to obey the law when it is produced by the evolutionary forces at work in the customary and common law. Human beings' inherent epistemic limitations mean that they must rely on the trial and error learning built into the common law process to discover rules that facilitate peaceful social interaction. Hence, a duty to obey the law produced by the common law process can arise from individuals' natural (...) duty to promote social peace. This argument cannot be extended to ground political obligation. It does not give rise to a duty to obey the state. (shrink)

Managers of multinational companies often favour an aggressive tax avoidance strategy that pushes the legal limits onto the advantage of shareholders and the disadvantage of the spirit of democratically legitimized tax laws. The public and media debate whether such aggressive behaviour is immoral. Aggressive tax avoidance is a subset of the aggressive legal interpretations potentially observable in all fields which places little weight on the will of a democratically legitimized legislation. A thorough ethical analysis based on the deontological approach of (...) Kant demonstrates that aggressive tax avoidance as a special case of operating on the edge of legal boundaries is potentially immoral. Applying the Kantian “contradiction of conception or will” test shows that this maxim might not be conceived or willed as a general law of nature. If all natural or legal persons aggressively interpret laws on all subjects and in every imaginable situation, then central principles of the system of law we all rely upon would be severely compromised. Therefore, aggressive tax avoidance by managers of multinational companies may violate the managers’ moral duty to obey not only the letter but also the intention or spirit of the law. The validity of the argumentation depends critically on the formulation and interpretation of the respective maxims and on assumptions about the legal system. Preserving central elements of Kantian philosophy, the article demonstrates the complexity of a philosophical argumentation which tries to justify the moral intuitions that underpin the common negative evaluation of aggressive legal strategies in business. (shrink)

Philosophy, despite its typical attitude of detachment and abstraction, has for most of its long history been engaged with the practical and mundane-seeming question of whether there is a duty to obey the law. As Matthew Kramer has recently summarized: “For centuries, political and legal theorists have pondered whether each person is under a general obligation of obedience to the legal norms of the society wherein he or she lives. The obligation at issue in those theorists' discussions is (...) usually taken to be prima-facie, comprehensively applicable, universally borne, and content-independent.” This essay is a commentary on the current state of discussion of this perennial philosophical topic. (shrink)

Engineers have a greater responsibility than many other professionals not to commit civil disobedience in performing their jobs as engineers. It does not follow that engineers have no responsibility for their company’s actions. Morally, engineer may be required to speak out within the company or even publicly against her company. An engineer may be required to work on a project or quit her job. None of these acts, generally, are against the law. An engineer may be morally required to commit (...) civil disobedience as a private citizen. But, given the institutional character of engineering and the division of labor in the modern world, very rarely will conscience require an engineer to violate the law in the performance of her job as an engineer. (shrink)

This article aims to make conceptual room for a view about political legitimacy called the power-liability account. The view claims that politi- cal legitimacy is a form of normative power that entails moral liability, but not necessarily a moral claim-right that entails moral duty. The power-liability account supports appealing interpretations of justified civil disobedience in the face of legitimate but unjust law at home and of justified human rights interventions that violate legitimate international law abroad. I argue here only (...) for the conceptual possibility of this view, not for its normative correctness. I believe that the power-liability view indeed is correct, but it often is thought that the view not only is false but also incoherent. Many hold that entailed duty and immunity are built into the meaning of the concept of political legitimacy. My task is to loosen these conceptual strictures. (shrink)

I employ the principle of fairness to argue that many existing states have a moral duty to obey international law simply in virtue of its status as law. On this voluntarist interpretation of the principle of fairness, agents must accept the benefits of a cooperative scheme in order to acquire an obligation to contribute to that scheme’s operation. I contend that states can accept the benefits international law provides, and that only if they do so do states have (...) a fair-play duty to obey international law. In addition, I demonstrate that A. John Simmons’ criticisms of the attempt to use the principle of fairness to establish a duty to obey domestic law – both with respect to understanding the legal order as a cooperative scheme, and to agents’ acceptance of benefits – do not apply in the international context. (shrink)

Engineers have a greater responsibility than many other professionals not to commit civil disobedience in performing their jobs as engineers. It does not follow that engineers have no responsibility for their company’s actions. Morally, engineer may be required to speak out within the company or even publicly against her company. An engineer may be required to work on a project or quit her job. None of these acts, generally, are against the law. An engineer may be morally required to commit (...) civil disobedience as a private citizen. But, given the institutional character of engineering and the division of labor in the modern world, very rarely will conscience require an engineer to violate the law in the performance of her job as an engineer. (shrink)

Herman Melville’s Billy Budd presents a classic example of a legal official legally required to enforce a law he believes or knows to be unjust. Although there has been considerable discussion of a citizen’s moral duty to obey unjust laws, there has been little consideration of a legalofficial’s duty to enforce unjust laws.In this paper I take the central moral dilemma of the novel -- a legal official’s moral duty to enforce a valid law of a (...) legal system vs. his moral duty not to do or to contribute to injustice -- and discuss various moral considerations that would bear on this dilemma. By doing this I hope to contribute both to the moral issues involved as weIl as, to some extent, the literary criticism with regard to Billy Budd. (shrink)

Many political theorists argue that immigration restrictions are unjust and defend broadly open borders. In this paper, I examine the implications of this view for individual conduct. In particular, I argue that the citizens of states that enforce unjust immigration restrictions have duties to disobey certain immigration laws. States conscript their citizens to help enforce immigration law by imposing legal duties on these citizens to monitor, report, and refrain from interacting with unauthorized migrants. If an ideal of open borders is (...) true, these laws are unjust. Furthermore, if citizens comply with their legal duties, they contribute to violating the rights of migrants. We are obligated to refrain from contributing to rights-violations. So, citizens are obligated to disobey immigration laws. I defend the moral requirement to disobey immigration laws against the objection that disobedience to the law is excessively risky and the objection that citizens have political obligations to obey the law. (shrink)

What are our responsibilities in the face of injustice? How far should we go to fight it? Many would argue that as long as a state is nearly just, citizens have a moral duty to obey the law. Proponents of civil disobedience generally hold that, given this moral duty, a person needs a solid justification to break the law. But activists from Henry David Thoreau and Mohandas Gandhi to the Movement for Black Lives have long recognized that (...) there are times when, rather than having a duty to obey the law, we have a duty to disobey it. -/- Taking seriously the history of this activism, A Duty to Resist wrestles with the problem of political obligation in real world societies that harbor injustice. Candice Delmas argues that the duty of justice, the principle of fairness, the Samaritan duty, and political association impose responsibility to resist under conditions of injustice. We must expand political obligation to include a duty to resist unjust laws and social conditions even in legitimate states. -/- For Delmas, this duty to resist demands principled disobedience, and such disobedience need not always be civil. At times, covert, violent, evasive, or offensive acts of lawbreaking can be justified, even required. Delmas defends the viability and necessity of illegal assistance to undocumented migrants, leaks of classified information, distributed denial-of-service (DDoS) attacks, sabotage, armed self-defense, guerrilla art, and other modes of resistance. There are limits: principle alone does not justify law breaking. But uncivil disobedience can sometimes be not only permissible but required in the effort to resist injustice. (shrink)

According to a prominent argument, citizens in unjust societies have a duty to resist injustice. The moral and political principles that ground the duty to obey the law in just or nearly just conditions, also ground the duty to resist in unjust conditions. This argument is often applied to a variety of unjust conditions. In this essay, I critically examine this argument, focusing on conditions involving institutionally entrenched and socially normalised injustice. In such conditions, the issue (...) of citizens’ duties to resist is complicated. I conclude by considering how my discussions may clarify a contemporary problem about engaging in resistance to aid potential migrants who have been turned away by states in accordance with widely accepted rules. (shrink)

In her book A Duty to Resist, Candice Delmas defends the view that we are not only permitted to disobey gravely unjust laws, but we may have a duty to do so. Moreover, not only civil but also uncivil disobedience may be justified in such cases. To justify both claims she argues that the same principles that justify a duty to obey the law—such as the principle of fairness, Samaritan duty, and associative obligations—also justify a (...) duty to disobey the law. The problem with this argumentative strategy is that it amounts to an attempt to derive the duty to disobey gravely unjust laws (or to resist them) from less stringent duties than the ones that can plausibly ground it. Against this strategy, I argue that the focus on laws that violate fundamental rights is what does all the normative work for justifying the duty to disobey/resist such laws, and the appeal to weaker principles is not only superfluous but also misleading. It has negative consequences for our understanding of what is owed to victims, in virtue of what, and by whom. (shrink)

In response to recent criticisms of traditional theories of political obligation, scholars have advanced moral reasons for complying with the law that focus on natural duties to assist other people who are in need. In discussions of political obligation, these ‘rescue principles’ are presented as alternatives to traditional principles. I argue that theories of political obligation based on rescue principles are not able to fulfill the role theorists assign them. If the underlying assumptions of rescue theories are uncovered, they can (...) be seen also to support more traditional obligations to obey the law. Accordingly, rather than serving as alternatives to traditional principles, rescue principles can only supplement them. Key Words: political obligation • rescue • Copp. (shrink)

Some sharing economy firms have adopted a strategy of “regulatory entrepreneurship,” openly violating regulations with the aim of rendering them dead letters. This article argues that in a democracy, regulatory entrepreneurship is a presumptively unethical business strategy. In all but the most corrupt political environments, businesses that seek to change their regulatory environment should do so through the democratic political process, and they should do so without using illegal business practices to build a political constituency. To show this, the article (...) defends a qualified moral obligation for businesspeople to obey the law even in societies that fall short of ideal democracy and that are rife with economic injustice. Owners and managers of successful businesses have strong moral reasons to obey laws concerning resource allocation. Such laws include not only property law, but also tax laws, environmental regulations, and other laws that regulate businesses in competitive markets. The moral reasons to obey such laws apply even to laws that business leaders think unfair or inefficient, provided that the laws in question have reasonable, good faith defenders. (shrink)

International and domestic law offer a study in contrasts: States' legal obligations often depend on their consent to specific international legal norms, whereas domestic law applies to individuals with or without their consent; enforcement in international law is weak and, for many international treaties, non‐existent, whereas states spend considerable resources to create centralized coercive enforcement mechanisms; and international law is characterized by much less institutional differentiation and specialization of functions than domestic legal systems are. These differences have invited a number (...) of skeptical challenges to international law, 3 of which we explore in this essay. The first points to 1 or more of the deviations of international law's institutional structure from that of a modern state's legal system as a basis for denying that international law is really “law.” Central to the debates over international law's status as law are concerns about whether and why the concepts of law inherited from domestic legal systems should serve as the blueprint for theorizing law in general and international law in particular. The second skeptical challenge targets international law's legitimacy. It claims that we lack reasons to treat international legal norms or the exercise of political power by international institutions, as anything other than an attempt by states to advance their national interests. If this challenge succeeds, states and other subjects of international law have merely prudential reasons to comply with it rather than a moral duty to obey it. Following a brief description of recent debates over how we ought to understand the concept of legitimacy when used to assess international political practices or global governance, we survey several possible bases for a moral duty to obey or respect international law. These include state consent, instrumental accounts of legitimate authority, and global democracy. The third set of challenges focuses on the relationship between state sovereignty and international law. International rules and institutions often make demands for reform affecting the domestic law of a state in order to elicit compliance with international law. Skeptics argue that the rule of international law is incompatible with states' political self‐determination. Regardless of whether their defense of this claim ultimately succeeds, thoughtful engagement with it may well require us to rethink some of the fundamental concepts and normative ideals in political philosophy, including state sovereignty, democracy, individual rights, political authority, and political obligation. (shrink)

A prominent way of justifying civil disobedience is to postulate a pro tanto duty to obey the law and to argue that the considerations that ground this duty sometimes justify forms of civil disobedience. However, this view entails that certain kinds of uncivil disobedience are also justified. Thus, either a) civil disobedience is never justified or b) uncivil disobedience is sometimes justified. Since a) is implausible, we should accept b). I respond to the objection that this ignores (...) the fact that civil disobedience enjoys a special normative status on account of instantiating certain special features: nonviolence, publicity, the acceptance of legal consequences, and conscientiousness. I then show that my view is superior to two rivals: the view that we should expand the notion of civility and that civil disobedience, expansively construed, is uniquely appropriate; and the view that uncivil disobedience is justifiable in but only in unfavorable conditions. (shrink)

This chapter begins with an empirical analysis of attitudes towards the law, which inspires a philosophical re-examination of the moral status of the rule of law. The chapter analyses survey data from the US about law-related attitudes and legal compliance. Consistently with prior studies, it finds that people’s ascriptions of legitimacy to the legal system are predicted strongly by their perceptions of the procedural justice and lawfulness of police and court officials’ action. Two factors emerge as significant predictors of people’s (...) compliance with the law: (i) their belief that they have a (content-independent, moral) duty to obey the law (which is one element of legitimacy, as defined in the chapter); and (ii) their moral assessment of the content of specific legal requirements (referred to in the chapter as ‘perceived moral content of laws’). The chapter also observes an interactive relationship between these two factors. The authors then identify a parallel (similarly interactive) modality in the way that form and content mutually affect the value of the rule of law. They argue that Lon Fuller’s precepts of legality possess an expressive moral quality, but that the extent to which their expressive effect materialises is sensitive to the moral quality of the law’s content. (shrink)

In this paper, I take issue with Arthur Isak Applbaum’s power-liability view of political legitimacy. In contrast to the traditional view that legitimate rule entails a moral duty to obey, here called the right-duty view, Applbaum argues that political legitimacy is a moral power that entails moral liability for the subjects of political rule. According to Applbaum, the power-liability view helps us explain how responsible citizens in some cases can act contrary to law while still recognizing the (...) claims of law. Against Applbaum’s attempt at establishing the power-liability view through conceptual analysis, I argue that we cannot specify the moral implications of de jure legitimacy without considering the moral argument that justifies the right to rule. I further argue that Applbaum’s normative account of political legitimacy implies commitment to a normative idea that forms the basis of a strong case in favor of the right-duty view. Finally, I argue that the present defense of the right-duty view has resources to account for the moral phenomena that prompt Applbaum’s advocacy of the power-liability view. (shrink)

When a business has competitors that break a burdensome law, is it morally required to obey this law, or may it break the law to avoid an unfair competitive disadvantage? Though this ethical question is pervasive in the business world, many non-skeptical theories of the obligation to obey the law cannot give it a clear answer. A broadly Kantian account, by contrast, can explain why businesspeople ought to obey laws of a certain type even under competitive pressure, (...) namely laws that play a direct role in defining rights to use physical or financial resources free from substantial interference. Businesspeople must obey these laws even at the cost of allowing their businesses to fail and even when the acts proscribed are mala prohibita. This argument for obeying the law in competitive contexts has limited scope. Considerations of fairness or self-preservation may justify violating laws of other types under competitive pressure. (shrink)

According to William Edmundson, a legitimatepolitical authority is one that claims tocreate in its subjects a general duty ofobedience to the law, and that succeeds increating in its subjects a duty to obey stateofficials when they apply the law in particularcases. His argument that legitimate politicalauthority does not require the state''s claim tobe true rests on his analysis of legitimatetheoretical authority, and the assumption thattheoretical and practical authority are thesame in the relevant respects, both of whichare challenged (...) here. In addition, Edmundsonfails to demonstrate that a general,content-independent, duty to obey officials whoadminister the law avoids the criticismsphilosophical anarchists pose to a general,content-independent duty to obey the law. Finally, Edmundson requires a legitimate stateto sincerely claim to create a generalduty to obey the law, yet he also argues thatin some cases the state ought to make literallyfalse claims regarding the particular dutiesincumbent upon its subjects. DespiteEdmundson''s recent efforts to reconcile thesetwo claims, the conflict remains. (shrink)

Just war theory is currently dominated by two positions. According to the orthodox view, provided that jus in bello principles are respected, combatants have an equal right to fight, regardless of the justice of the cause pursued by their state. According to “revisionists” whenever combatants lack reasons to believe that the war they are ordered to fight is just, their duty is to disobey. I argue that when members of a legitimate state acting in good faith are ordered to (...) fight, they acquire a pro-tanto obligation to obey which does not depend for its validity on the justice of the cause being pursued. However, when the war is unjust, this obligation may be overridden, under certain conditions, by the obligation not to contribute to the unjustified killing of innocents. This is because the pro-tanto force of the duty to obey the law is best understood in terms of “presumptive”, rather than “exclusionary” reasons for action. This approach captures the insights of both the orthodox and the revisionist view, while avoiding the problems that afflict each of them. (shrink)

InLegitimacy: The Right to Rule in a Wanton World, I offer both a conceptual analysis of legitimacy, the power-liability view, and a substantive moral theory, the free group agency view. Here, I defend my account against three challenges brought by Kjarsten Mikalsen. First, though I argue that conceptual analysis should not prematurely close open moral questions, it is not my view that conceptual analysis must have no substantive implications. Second, though I acknowledge that free group agencyordinarilysupports a moral duty (...) to obey, it is a feature, not a bug, that my conceptual analysis is consistent with moral theories that disagree with my preferred moral theory. Third, I argue that Mikalsen’s proposed explanation of justified civil disobedience, which sees law in such cases as creating a moral claim-right that entails a merelypresumptiveduty, is less perspicuous than the explanation given by the power-liability view. Along the way, I emphasize that the distinction between felicitous moral power and justified causal power is as important as the distinction between moral liability and moral duty. (shrink)

The last half-century has seen a steady loss of confidence in the defensibility of a duty to obey the law — even a qualified, pro tanto duty to obey the laws of a just or nearly just state. Over roughly the same period, there has been increasing interest in virtue ethics as an alternative to the dominant consequentialist and deontological approaches to normative ethics. Curiously, these two tendencies have so far only just barely linked up. Although (...) there has been discussion of the question whether patriotism should be considered a virtue, and abstract discussion about the virtuous person’s relation to authority and justice in general, there has been little virtue-oriented discussion having specific reference to the kinds of difficulties that have motivated the ascendant skepticism about political obligation. This silence has persisted despite repeated calls for renewed work on “virtue politics”. This article proposes and defends a preliminary account of law-abidance (as contrasted to obedience) as a virtue. It argues that a virtue-theoretic account of our relation to the law offers advantages that are not contingent upon the independence or priority of the virtues with respect to consequentialist and deontological components of a complete moral theory. Chief among these advantages is the promise of an alternative to the deadlocked positions taken by apologists for the duty to obey the law and their philosophical-anarchist critics — positions which have tacitly been assumed to exhaust the viable possibilities. (shrink)

While corporate fiduciary duties in many jurisdictions are generally understood to be owed to shareholders, recent Canadian Supreme Court cases have held that directors owe their duties to the corporation, period, not to shareholders or any other stakeholders. This development has introduced significant indeterminacy to the law since it is not clear what such a conception of the duty requires. The Supreme Court did, however, make one clear statement: it held that directors owe a fiduciary duty to ensure (...) that their corporations obey statutory law. Such a duty encourages compliance with law, but may over-encourage compliance: individual directors do not necessarily gain personally from legal breaches, but may lose personally from them because of fiduciary liability, so they will have excessively strong incentives to avoid such breaches. The Article connects the fiduciary duty to obey law with recent developments in financial regulation that have increased the obligations on directors of financial institutions to oversee risk. By requiring directors to be engaged with risk at a governance level, regulators have enhanced the probability that directors will face liability under their fiduciary duties if their institutions do not comply with financial regulations. As the Article explains, the policy tradeoff between enhanced compliance benefits and over-compliance costs of fiduciary liability is different in the context of financial regulation from that in other settings. For example, significant corporate penalties, as opposed to penalties borne by individual directors, may be inconsistent with the prudential goals of regulation, perhaps because of toobig- to-fail concerns. The fiduciary duty to cause the corporation to obey financial regulation, and a stricter application of this duty than the highly deferential standard that exists in Delaware law, has advantages that do not exist in other legal and regulatory contexts. (shrink)

The natural duty theory holds that "we have a natural duty to support the laws and institutions of a just state" (Jeremy Waldron). We owe this not because we ever promised to support these laws and institutions, nor because fair play requires we support the cooperative ventures from which we receive benefits. The claim is that we have a general duty to promote institutions that do something justice requires wherever these institutions may be, a duty that (...) does not depend on our having special ties to these institutions, special ties of the sort we have to the institutions of our own government. I argue that we do not need to appeal to the idea of a natural duty to justify compliance with many laws. For example, New Zealanders must not murder, rape, or steal while in France, not because they have a duty to obey laws of a just state, but because it is wrong to murder, rape, or steal. If the natural duty theory is taken to be a statement of the conditions necessary for an obligation to exist, it would wrongly conclude there is no duty to obey laws against murder or rape in a state whose institutions and laws are not just. A second class of laws reflect not moral judgments but, rather, local conventions, conventions that are morally arbitrary but which may be useful in coordinating action. For example, New Zealanders visiting France must drive on the right side of the road, as dictated by French convention. Here, too, the natural duty theory fails to provide a suitable account of the relation noncitizens have to such laws. Our reasons for driving on the right side of the road when this is accepted convention have nothing to do with the justice of the institutions of the state. To flout this convention is not to undermine justice since there is nothing just or unjust about driving on one side of the road or another. I question the advantages of the natural duty theory, especially in light of important ambiguities in the theory. (shrink)

_Arguing about Law_ introduces philosophy of law in an accessible and engaging way. The reader covers a wide range of topics, from general jurisprudence, law, the state and the individual, to topics in normative legal theory, as well as the theoretical foundations of public and private law. In addition to including many classics, _Arguing About Law_ also includes both non-traditional selections and discussion of timely topical issues like the legal dimension of the war on terror. The editors provide lucid introductions (...) to each section in which they give an overview of the debate and outline the arguments of the papers, helping the student get to grips with both the classic and core arguments and emerging debates in: the nature of law legality and morality the rule of law the duty to obey the law legal enforcement of sexual morality the nature of rights rights in an age of terror constitutional theory tort theory. _Arguing About Law_ is an inventive and stimulating reader for students new to philosophy of law, legal theory and jurisprudence. (shrink)

_ Source: _Volume 30, Issue 2, pp 202 - 221 There is ongoing scholarly debate over the role that Hobbes’s laws of nature play in grounding the moral requirement that subjects obey the government under which they live. This essay demonstrates how the laws of nature, when understood as natural duties, may directly ground a moral duty to obey one’s sovereign without positing that subjects have undertaken any covenant of subjection. Such a grounding avoids the problems that (...) attend accounts that depend on tacit covenant and coerced covenant. The essay describes the advantages of a natural duty account of the laws of nature over accounts that regard those laws as contractual obligations entered through voluntary acts, or as legal obligations to treat the natural laws as literal laws legislated by a sovereign God. (shrink)

Many accounts of the moral duty to obey the law either restrict the duty to ideal democracies or leave the duty’s application to non-ideal societies unclear. This article presents and defends a partial account of the moral duty to obey the law in non-ideal societies, focusing on the duty to obey judicial orders. We need public judicial authority to prevent objectionable power relationships that can result from disputes about private agreements. The moral (...) need to prevent power imbalances in private relationships grounds a qualified moral duty to obey judicial decisions. The parties to a dispute are morally required to comply with a judicial order in their dispute if all of the following conditions obtain: the parties’ dispute was in good faith, the court’s resolution of the dispute is more impartial than either party’s own judgment, the order does not call for violation of important natural duties or important artificial duties that the duty-bearer incurred involuntarily, and the primary aim of disobeying the court order would be to advance an ordinary, non-political project, not to call public attention to an injustice. The moral duty to obey judicial decisions can survive significant departures from ideal fairness. (shrink)

The tension between Kant’s egalitarian conception of persons as ends in themselves and his rejection of the right of revolution has been widely discussed. The crucial issue is more fundamental: Is Kant’s defense of absolute obedience consistent with his own principle of legitimate law, that legitimate law is compatible with the Categorical Imperative? Resolving this apparent inconsistency resolves the subsidiary inconsistencies that have been debated in the literature. I argue that Kant’s legal principles contain two distinct grounds of obligation to (...) obey political authority. One lies in his metaphysical principles of law, according to which there is only a duty to obey legitimate law or fully legitimate authorities. Another lies in his moral-pragmatic principles. He believes that membership in the state helps improve one’s character by counter-balancing one’s immoral inclinations. This is his ultimate ground for obedience to de facto, imperfectly legitimate states. On this ground, the duty to obey an actual state is conditional. Kant’s strong statements about the duty to obey actual states is explained by the ease with which he thinks the relevant condition is met by extant states. The apparent ambiguities in his discussion of obedience point to some important philosophical and historical shortcomings of his analysis of the division of govemmental powers and of judicial competence which hamper his analysis of the duty to obey the state. (shrink)

Is it the case that the law, in order to be fully legitimate, must not only be adopted in a procedurally correct way but must also comply with certain substantive values? In the first part of the article I prepare the ground for the discussion of legitimacy of democratic laws by considering the relationship between law’s legitimacy, its justification and the obligation to obey the law. If legitimacy of law is seen as based on the law being justified (as (...) in Raz’s ‘service conception’), our duty to obey it does not follow automatically: it must be based on some additional arguments. Raz’s conception of legitimate authority does not presuppose, as many critics claim, any unduly deferential attitude towards authorities. Disconnection of the law’s legitimacy from the absolute duty to obey it leads to the second part of the article which consists in a critical scrutiny of the claim that the democratically adopted law is legitimate only insofar as it expresses the right moral values. This claim is shown to be, under one interpretation (‘motivational’), nearly meaningless or, under another interpretation (‘constitutional’), too strong to survive the pressure from moral pluralism. While we cannot hope for a design of ‘pure procedural democracy’ (by analogy to Rawlsian ‘pure procedural justice’), democratic procedures express the values which animate the adoption of a democratic system in the first place. (shrink)