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The Moral Obligation to Obey the Law

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THE MORAL OBLIGATION TO OBEY THE LAW


George Klosko


The moral obligation to obey the law, or as it is generally called, political obligation, is a moral requirement to obey the laws of one’s country. Traditionally, this has been viewed as a requirement of a certain kind, to obey the law for the “content-independent” reason that it is the law, as opposed to the content of particular laws. In characterizing this as a moral requirement, theorists distinguish political obligation from legal obligation. All legal systems claim to bind people subject to them; part of what we mean by a valid law is that the relevant population is required to obey it. This requirement is generally supported by coercion, while those who do not obey are subject to sanctions. But these aspects of legal obligation leave open more ultimate questions about the state’s justification for imposing such requirements. Unless citizens have moral requirements to obey the law, they may be forced to do so, but in compelling obedience, the state is acting unjustly and impinging on their freedom.


As H. L. A. Hart argues, the distinctive thrust of political obligations can be seen in the contrast between being obliged to do p and having an obligation to do it (Hart 1961: 80–88). If a gunman holds Smith up and threatens to shoot her unless she turns over $50, she is likely obliged to surrender this sum. But by this locution, we mean no more than that the alternatives to complying are significantly unpleasant, which gives her a strong reason to comply. According to Hart, obligation adds to this an internal dimension. While Smith’s being obliged to do p is analyzed in terms of her assessment of the consequences of obeying or not obeying, her having an obligation to do p adds to these concerns the moral legitimacy of what she is compelled to do. If Smith is a citizen of a legitimate state that requires she pay $50 in taxes, once again she could well be forced to comply; the consequences of noncompliance could be unacceptable to her. But in this case, it is right that she surrender the money. If she recognizes the obligation, she will believe it is the right thing to do—although we should note that this is a prima facie moral requirement, capable of being overridden by additional moral considerations.


At the present time, no theory of political obligations is generally accepted. All accounts are subject to vigorous controversy. Absence of consensus on moral reasons is accompanied by more basic disagreements about the nature of political obligations themselves and whether a satisfactory account is possible. At the present time the dominant position in the literature may well be that there are no political obligations in the traditional sense. But this contention too is disputed by scholars from numerous directions.


According to standard analysis, an obligation is a moral requirement that an individual imposes on himself or herself (Brandt 1964; Hart 1958; Simmons 1979, ch. 1). For instance, if A promises B to dop, the moral requirement to do p is generated by the act of promising and would not otherwise exist. But in spite of the label “political obligation,” most scholars argue that moral requirements to obey the law need not be grounded in requirements of this kind (an exception is Pateman 1979). In spite of other disagreements, scholars largely agree about a few basic criteria that a successful theory of political obligation should satisfy (Simmons 1979, ch. 2; Klosko 2005, ch. 1). First, the theory should be general; that is, it should explain the obligations of all or almost all citizens. It should also explain their requirements to obey the laws of their own country. This criterion is generally referred to as “particularity” (Simmons 1979: 31–35). It should be comprehensive, i.e., explain requirements to obey all or almost all laws. Finally, as indicated above, in keeping with the general thrust of liberal political theory, the moral requirements in question should be of only limited force. They should bind citizens as a rule, but, as prima facie obligations, able to be overridden by conflicting moral requirements (see Klosko 1992: 12–14). Other features are discussed in the literature. But these should be adequate for this essay. Putting these four features together, we may say that a successful theory of political obligation explains the requirements of all or almost all citizens to obey all or almost all laws of their own countries, with these requirements of limited force.


In the literature, scholars have attempted to justify political obligations on a variety of grounds. In the liberal tradition, arguments from voluntary consent are traditionally most central. Until relatively recently, the history of political obligation has been a history of consent (Klosko 2011b). Additional approaches that will be discussed in this essay are consequentialist arguments, based on the effects of obedience or disobedience, arguments based on the principle of fairness (or fair play), which turn on receipt of benefits from the state, and arguments based on a principle of membership or association, and a natural duty of justice. I will examine the strengths and weaknesses of these different approaches and recent developments that have called into question central features of political obligations as traditionally understood.


Consent Theory


Although elements of a consent theory of political obligation are present in earlier thinkers, the view receives its classic statement in John Locke’s Second Treatise of Government (1988/1690). Locke argues that people are naturally free in the state of nature. Although the state of nature is governed by natural law, in the absence of an authority to enforce this, Locke subscribes to the “strange Doctrine” (§ 13) that all men have the right to enforce it for themselves. However, general self-enforcement leads to conflict, and so people are willing to surrender their enforcement powers. They do this in two stages—erecting a community, which then places its powers in a legislative authority. Because people surrender only certain of their rights, the legislative power is able to act only in these areas. But in these areas, individuals agree “to submit to the determination of the majority, and to be concluded by it” (§ 97). Because Locke’s overall purpose in the Second Treatise is to justify revolution, he is deeply concerned with limitations on authority. Although he does not use the word “contract,” he argues that legitimate political authority is held in trust. When the limitations are violated, people have strong rights of resistance, including resistance by single individuals when they believe “the Cause of sufficient moment” (§ 168). However, Locke argues that this right will not lead to disorder, as individuals will realize the futility of acting alone (§ 208).


Locke holds that, because people are naturally free, only their own consent can place them under political authority (e.g., § 95). It follows that one is not bound by the consent of one’s father, or by an original contract made at the foundation of society (§ 116–18). However, although “express consent” establishes clear political bonds, Locke recognizes that few people actually consent in this way. Thus he turns to “tacit consent,” which is able to bind most or all inhabitants of a given country. As a result, his theory of political obligations based on consent is for all intents and purposes a theory of tacit consent.


Locke’s account of the actions that constitute tacit consent is expansive:



And to this I say that every Man, that hath any Possession, or Enjoyment of any part of the Dominions of any Government, doth thereby give his tacit Con sent, and is as far forth obliged to Obedience to the Laws of that Government, during such Enjoyment, as any one under it; whether this his Possession be of Land, to him and his Heirs for ever, or a Lodging only for a Week; or whether it be barely traveling freely on the Highway; and in Effect, it reaches as far as the very being of any one within the Territories of that Government.


(§ 119)


By reducing consent to, in effect, simply being within a given territory, Locke is able to argue that all or virtually all people have consented. But this raises a problem of its own. In making consent all but unavoidable, Locke deprives it of its moral significance. According to Hanah Pitkin: “we are likely to feel cheated by Locke’s argument; ⋯ why go through the whole social contract argument if it turns out in the end that everyone is automatically obligated?” (Pitkin 1965: 995). In spite of this and other problems, Locke’s view of consent is probably the standard account in the literature and—directly or indirectly—has influenced how many people think about political obligations.


Locke’s view of tacit consent was classically criticized by David Hume, in the latter’s essay, “Of the Original Contract” (Hume 1985). Hume agrees with Locke’s fundamental claims concerning the ability of consent to bind and the limited nature of political power. But he rejects the existence of an actual historical contract into which people entered, because of the lack of evidence this ever occurred. He agrees with Locke that most people have not consented expressly to government. If they had done so, they would remember this but do not. He also breaks with Locke in regard to tacit consent, claiming that, because of the nature of existing societies, most people should not be viewed as having consented. We will return to this subject below.


Variations on Consent


Theorists have attempted to preserve consent theory in different ways. Certain theorists have attempted to identify widely performed actions that constitute tacit consent. One possibility is voting. If Jones votes in an election, one could argue that he has agreed to be governed by the winners, and so to obey the law (Plamenatz 1968: 168–71). Other similar actions could be suggested, e.g., saying the Pledge of Allegiance or taking the appropriate oath upon joining the armed forces. But if we examine the conditions necessary for an act of consent to create a moral requirement to obey the laws, it can be seen that these and similar acts fall short.


As A. John Simmons notes, when people talk about “consenting” to one’s government, they often mean something much looser than voluntarily accepting a moral requirement to obey the law. Rather, they employ an “attitudinal” sense of consent. When Smith says that she consents to her government, what she frequently means is that she approves of it (Simmons 1979: 93–94). Perhaps, as indicated below, she would consent if given the opportunity, but this does not mean that she has actually bound herself to obey its laws through an act of consent.


Although a full account of the conditions necessary for effective consent cannot be presented in this context, for our purposes, three are especially important. First, the consenter must not be forced to consent—that is, reasonable means of refusing to consent must be available to her; she must be aware of what she is consenting to; and she must be competent to do so. Circumstances that do not satisfy these conditions may be described as “defeating conditions” and prevent acts of consent from generating moral obligations (Beran 1987, ch. 1).


These conditions cause problems for acts that have been purported to constitute tacit consent. Consider voting. Although it may seem that someone who votes is among other things expressing support for the political system, this is not enough for voting to ground political obligations. To use a distinction of Simmons’s, we may say that voting is “consent implying” (Simmons 1979: 88–95). It does not make much sense to vote if one does not support the political system. But this is different from saying that the act of voting actually constitutes consent. It is unlikely that many people vote with the idea that, by doing so, they are agreeing to obey the laws of their countries, and that if they did not vote, they would not have moral requirements to do so. If voting is to generate a moral requirement analogous to what is created by a promise, something along these lines would have to be true. There are similar problems with other actions that have been taken to constitute consent. For instance, although the oath one takes upon entering the armed forces does appear to generate moral requirements in regard to the oath’s contents, it ordinarily binds only as long as one is serving. When one leaves the armed forces, such oaths ordinarily expire.


The most plausible action—or lack thereof—that may be taken to constitute tacit consent is staying in one’s country. There is a certain plausibility to this position. Most people are probably aware that if they remain in a given country, they will be required to obey its laws, while this requirement will no longer obtain if they leave. However, the requirement referred to in the last sentence is legal—likely backed up by coercion—rather than moral. If staying in one’s country is to ground moral requirements to obey the law, in this case lack of action must constitute consent. As Simmons argues, failure to act may communicate consent; tacit consent differs from express consent not because it is not communicated but in the manner through which it is communicated. But additional conditions must be satisfied. Potential consenters must not only know that consent is called for, but they must also know how it is communicated, and the period of time during which they may consent or not consent (Simmons 1979: 80–81). In addition and most important, as noted above, the mode of indicating dissent must be “reasonable and reasonably easily performed.” In order for consent to be voluntary, the consequences of dissent must not be extremely harmful or detrimental to the potential consenter (81). Accordingly, hanging over this form of tacit consent is the criticism of Hume, who rejects claims that residence constitutes tacit consent, because the means of expressing lack of consent are not ordinarily available:



Can we seriously say that a poor peasant or artizan has a free choice to leave his country, when he knows no foreign language or manners, and lives from day to day, by the small wages which he acquires? We may as well assert, that a man, by remaining in a vessel, freely consents to the dominion of the master, though he was carried on board while asleep, and must leap into the ocean, and perish, the moment he leaves her.


(1985: 475)


Clearly, if one is prevented from leaving a given territory, remaining in it cannot constitute consent.


Two centuries later, conditions have changed in certain respects. With greater affluence and improved transportation it is easier for many people to travel. But one can move to another country only if another is willing to take one in. Moreover, as Simmons argues, much of what is precious in life cannot be taken with one: family, friends, a particular culture (1979: 99). Therefore, choice of either consenting or leaving could well be viewed as coercive.


In response to the difficulties of tacit consent, theorists have worked out other variants of consent. One possibility is that the consent in question need not be actual consent. Rather, if conditions in one’s country are such that one would consent to obey the laws if given the opportunity, then this hypothetical consent could ground moral requirements to obey the law. This approach traces back to Immanuel Kant, who argues that government’s power is limited by the requirement that the legislator should “frame his laws in such a way that they could have been produced by the united will of a whole nation” (Kant 1970: 79; see Waldron 1987). However, “hypothetical consent” is immediately vulnerable. To use the words of Ronald Dworkin: “A hypothetical contract is not simply a pale form of an actual contract; it is no contract at all” (Dworkin 1977: 151). Hypothetical consent is useful in shifting attention away from actions performed or supposedly performed by the obligee to aspects of the political system that would justify consenting to it—along the lines of the attitudinal sense of consent mentioned above. But because it is not able to establish obligations on its own, if it is to ground political obligations, hypothetical consent must be supplemented by additional moral principles.


An alternative means to establish political obligations based on consent is to devise political institutions that provide opportunities for more individuals freely to consent. A possible mechanism would allow citizens to consent when they reach a certain age. Various political systems have had such mechanisms, among them ancient Greek cities (see Kraut 1984: 154–57). A “reformist consent” mechanism that could be set up in the United States would require individuals to apply for formal citizenship at the age of 18, the age at which men are presently required to register for military service. An oath of allegiance to the government and/or Constitution could be part of the process. In his defense of consent theory, Harry Beran proposes that individuals who do not consent be given the option of emigrating to a “dissenters’ territory” (Beran 1987: 31–32, 37–42).


However, the obvious flaw with these proposals concerns what happens to individuals who refuse to consent. They could be required to leave the territory. But if such a choice is viewed as coercive as an alternative to tacit consent, it is unlikely to pass muster here. Thus Beran’s proposal is unlikely to be acceptable, as it not only forces individuals to emigrate but has the additional disadvantage of forcing them to live in a dissenter’s territory. The situation is not improved if individuals are allowed to stay in their countries (see Walzer 1970). The main benefits provided by the state are public goods and so available to all inhabitants of a territory whether or not they have consented. Non-consenters who stay in the territory will continue to receive these benefits without being required to support the institutional mechanisms that provide them. This would not only be unfair to consenters, whose efforts produce the benefits in question, but it could well make non-consent more attractive and so lead increasing numbers of people to refuse to consent (Klosko 1991). As fewer people consented, the costs of providing basic public goods would rise, encouraging additional people not to consent, and so leading to possible social collapse.


Consequentialism


Along with his rejection of political obligations based on consent, Hume developed an alternative view based on social utility. His argument is in accord with common sense. Government is required for the good of society and so should be obeyed, as long as it promotes this end. If it ceases to be useful, it loses its reason for being and also its authority. However, because it is so costly to change governments, this is justified only if governments become egregiously tyrannical (Treatise of Human Nature, III, ii: 9). In central respects, Hume’s conclusions are similar to those of Locke. But Hume believes he is able to establish these without the fictions of an original state of nature, individual consent and social contracts.


Hume’s basic position was developed by subsequent theorists in the utilitarian tradition, e.g., (Bentham 1988-1776, ch. 1). In departing from the voluntarism of consent theory, this position has the considerable advantage of being able to bind most or all citizens, regardless of actions they may or may not have performed. However, consequentialism faces a central difficulty in grounding requirements for given individuals to obey the law.