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OBEYING THE LAW

Published online by Cambridge University Press:  16 October 2018

Michael Sevel Open the ORCID record for Michael Sevel [Opens in a new window]
Michael Sevel*
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University of Sydney Law School
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Abstract

What is it to obey the law? What is it to disobey? Philosophers have paid little attention to these questions. Yet the concepts of obedience and disobedience have long grounded many perennial debates in moral, legal, and political philosophy. In this essay, I develop systematic accounts of each concept. The Standard View of obedience—that to obey the law is to act for a certain sort of reason provided by the law—has long been taken for granted. I argue against this and other views of obedience, and develop an account of the knowledge and intention required in acts of obedience. I then develop a symmetrical account of the disobedience involved in acts of civil disobedience. The purpose of the essay is to develop a more systematic understanding of these concepts, in order to identify more precisely what is at stake in debates of political obligation, civil disobedience, and the authority of law.

Type
Research Article
Information
Legal Theory , Volume 24 , Issue 3 , September 2018 , pp. 191 - 215
Copyright
Copyright © Cambridge University Press 2018 

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References

1. The inattention started early. In the founding text of the political obligation literature, Plato's Crito, Socrates has the Laws of Athens require that he either “persuade or obey” the laws (51a–52e), but no characterization of either alternative is given. The matter is further complicated by the fact that the terms “persuade” and “obey” in Plato's Greek have a common verbal root (peithein), such that the active voice is used to express the former idea, and the passive voice the latter. Socrates also speaks of doing what the law commands (poeteon ha an keleuei, at 51b) but relies on his audience's intuitive understanding of what that phrase is to mean. For discussion, see Richard Kraut, Socrates and the State (1984), at 54–114. Modern contributions to the literature fare no better, even when a writer's very stated purpose is to identify the problem. See, e.g., Wolff, Jonathan, What Is the Problem of Political Obligation?, 91 Proc. Aristotelian Soc. 153 (1991)CrossRefGoogle Scholar, in which obedience is taken as the central concern but no attention is ever given to saying what it is. More recently, William Edmundson, in a survey of the duty-to-obey literature, spends several pages characterizing the duty under discussion, but then stipulates, in a single sentence, what obedience to law is taken to be. He calls this stipulation an “idiomatic point,” though, as I argue below, it involves substantial theoretical commitments that have rarely been questioned. See Edmundson, , State of the Art: The Duty to Obey the Law, 10 Legal Theory 215, 217 (2004)Google Scholar. David Lefkowitz, in his survey of the same literature, makes the same stipulation, but oddly as an explanation of the duty, not as an account of obedience itself. See Lefkowitz, , The Duty to Obey the Law, 1 Phil. Compass 571, 572–573 (2006)CrossRefGoogle Scholar.

2. See John Rawls, A Theory of Justice (2d ed. 1999)Google Scholar, where his stated aim is to give an account of action “contrary to law,” Id. at 320, acts that are “violations” of the law, Id. at 323. Rawls provides no further explanation of the relevant sort of action. The most recent substantive contribution to the civil disobedience literature similarly contains no account at all of what “disobedience” is supposed to be and frames the discussion vaguely in terms of “offending.” See Kimberley Brownlee, Conscience and Conviction: The Case for Civil Disobedience (2012), at 155–156.

3. Beginning in the seventeenth century, legal philosophers drew these connections because they conceived of law on the model of sovereign command. See Postema, Gerald J., Law as Command: The Model of Command in Modern Jurisprudence, 11 Phil. Issues 470 (2001)CrossRefGoogle Scholar. While the command model of law has been mostly jettisoned, the conceptual connection between authority and the demand for obedience continues to be the orthodoxy. The locus classicus of the modern view is Joseph Raz, Authority, Law, and Morality, in Ethics in the Public Domain 212–216 (1994). Recent restatements and endorsements of the view can be found in Viehoff, Daniel, Democratic Equality and Political Authority, 42 Phil. & Pub. Aff. 337, 340 (2014)CrossRefGoogle Scholar, and Perry, Stephen, Political Authority and Political Obligation, in 2 Oxford Studies in Philosophy of Law 1 (2013)Google Scholar.

4. See Hershovitz, Scott, The Authority of Law, in The Routledge Companion to Philosophy of Law 65–75 (Marmor, A. ed., 2012)Google Scholar, for the only critical engagement with the Standard View. Some recent work in legal philosophy purports to clarify what obeying the law is, if only to contrast it with other possible responses to law, but in each case the explanandum turns out to be something else. For example, William Edmundson contrasts obeying the law with “law-abidance,” though he never explains either concept; he says that abiding by the law is in part to “comply” with it, but the notion of compliance is left unexplained. With regard to obedience to law, he oscillates between what I call (below) the reason conformity and reason compliance views. See Edmundson, William, The Virtue of Law-Abidance, 4 Philosophers’ Imprint 1, 2–3 (2006)Google Scholar. Another example is Fred Schauer, who suggests, in his most recent book, that he is addressing such questions as “What exactly does it mean to follow or obey the law?” and “Is every act that is in compliance with the law also an act of obedience to the law?,” The Force of Law (2015), at 6, questions that are in fact the main focus of the present essay. However, he ultimately adopts, without argument, Id. at 194 n.18, the “conventional” view of obeying the law, which is precisely the Standard View I criticize below. Finally, Margaret Gilbert acknowledges that the Standard View is inadequate, but does not suggest what account should replace it. See her A Theory of Political Obligation (2006), at 210–211.

5. It might be thought that while obeying the law has been given scant attention by philosophers, another, closely related topic has generated a voluminous literature that is of obvious relevance here. Inspired by certain remarks of Wittgenstein, many philosophers of the last thirty years have debated what it is to “follow a rule.” See, e.g., Saul Kripke, Wittgenstein on Rules and Private Language (1982); Boghossian, P.A., The Rule-Following Considerations, 98 Mind 507 (1989)CrossRefGoogle Scholar; Pettit, Philip, The Reality of Rule-Following, 99 Mind 1 (1990)CrossRefGoogle Scholar; Wright, Crispin, Rule-Following Without Reasons: Wittgenstein's Quietism and the Constitutive Question, 20 Ratio 481 (2007)CrossRefGoogle Scholar. Indeed, some of the views considered here bear an affinity to some found in that literature. The debate over the nature of rule-following, however, is largely irrelevant to a discussion of obeying and disobeying the law, because the notion of a “rule” in that debate has little in common with the concept of a law as traditionally used by both philosophers and lawyers. For example, it is widely accepted that a “rule” can have “infinitary contents,” Boghossian, Paul, Blind Rule-Following, in Mind, Meaning, and Knowledge 32 (Coliva, Annalisa ed., 2012)Google Scholar, that is, it can be stated in innumerable acceptable ways. Laws, however, exist at least in part because they have been intentionally laid down or posited, and so often have a canonical formulation, which delimits the range of reasonable interpretations that can be given of them. It is also widely agreed in that debate that some kind of “commitment” or “acceptance” of the rule is necessary in order to follow it. But as we will see, obeying the law requires nothing of the sort, and indeed requires that such commitment is not necessary: it must be possible, for example, for one to obey an unjust law. The very idea of civil disobedience, in fact, assumes this. And there are other sorts of cases; for example, it must be possible for a foreigner to obey the laws of a state to which she owes no allegiance.

6. Richard Wasserstrom made the point long ago in The Obligation to Obey the Law, 10 UCLA L. Rev. 780, 785 (1962–1963)Google Scholar.

7. See T.M. Scanlon, Being Realistic About Reasons (2014), Derek Parfit, 1 On What Matters (2011), Joseph Raz, Engaging Reason (1999), and Jonathan Dancy, Ethics Without Principles (2004), among others.

8. Joseph Raz, The Morality of Freedom (1986), at 23–109; Joseph Raz, Between Authority and Interpretation (2009), at 126–165. See also Enoch, David, Reason-Giving and the Law, in 1 Oxford Studies in Philosophy of Law 1–38 (Green, Leslie and Leiter, Brian eds., 2011)Google Scholar.

9. See Joseph Raz, Practical Reason and Norms (2d ed. 1990), at 178–180Google Scholar; Gardner, John & Macklem, Timothy, Reasons, in The Oxford Handbook of Jurisprudence & Philosophy of Law 462–463 (Coleman, Jules and Shapiro, Scott eds., 2002)Google Scholar. Gardner and Macklem draw a similar distinction between “deliberately” and “accidentally” doing what reasons recommend. The distinction is less precise, however, since one can “deliberately” conform, or fail to conform, to a reason, ideas that will be of use below.

10. R.P. Wolff, In Defense of Anarchism (3d ed. 1998), at 9Google Scholar. While Wolff appears to be the modern source of the Standard View, its influence has come by way of the work of Joseph Raz, who explicitly accepts Wolff's view of obeying the law as “essentially sound.” See Raz, The Authority of Law (1979), at 11, and his introduction to the collection of essays in Authority (Raz, Joseph ed., 1990), at 1–19Google Scholar. See also Regan, Donald, Reasons, Authority, and the Meaning of ‘Obey’: Further Thoughts on Raz and Obedience to Law, 3 Can. J. L. & Juris. 3 (1990)CrossRefGoogle Scholar.

11. I assume that the object of obedience is a particular law. One may object that this runs afoul of the orthodoxy in the theory of authority that authorities are persons, and therefore only persons can be obeyed. I wish to remain agnostic about the proper object of obedience, and RC can harmlessly be reformulated given one's position on that issue.

12. Cf. Joseph Raz, The Authority of Law (2d ed. 2009), at 214Google Scholar: “Therefore if the law is to be obeyed it must be capable of guiding the behavior of its subjects. It must be such that they can find out what it is and act on it.” In the meantime, whether acting on a reason requires an agent to know that reason has become a contentious issue among moral philosophers. See John Hyman, Action, Knowledge & Will (2015), at 133–158.

13. It is an open question, and one I set aside here, as to whether knowledge, merely a reasonably justified belief, or some other epistemic standard is required. Raz and others speak loosely of having “knowledge” of the law, and writers in legal philosophy have not yet sought to make the epistemic standard more precise. It ought to be made more precise, but doing so will not matter for present purposes.

14. For example, Scott Hershovitz suggests we should “identify obedience with conformity – with simply doing as the law requires whatever one's reasons.” Hershovitz, supra note 4, at 67. See note 18, infra, for discussion of others who have endorsed the reason conformity view.

15. The view Hershovitz argues for may be even weaker than this, since conformity may not require acting for a reason at all. For example, if while driving I depress the car brake purely out of anger as I approach an intersection at which the traffic light has just turned red, then it would seem that I have conformed to the relevant traffic law without acting for any reason. An argument for the existence of such merely expressive actions can be found in Hursthouse, Rosalind, Arational Actions, 88 J. Phil. 57 (1991)CrossRefGoogle Scholar.

16. Hershovitz, supra note 4, at 67. See also Perry, supra note 3, at 10–11, for this and similar counterexamples to the Standard View.

17. What the law requires in the tax example may even be weaker than this; it arguably doesn't even require that you pay your taxes. That is, your tax obligations can be fulfilled by, say, my paying your taxes without you running afoul of what the law requires of you. Other examples, like a judicial order in the form of an injunction (e.g., a restraining order regarding domestic violence), may require that only an action by the addressee will suffice. Raz once called these “action” (as opposed to “outcome”) reasons. See Raz, The Morality of Freedom, supra note 8, at 145–146.

18. John Austin famously makes the concept of obedience central to his account of sovereignty, i.e., as a person or persons habitually obeyed by the political community and who obey no one, which in turn forms an essential part of his theory of law. He explicitly endorses the reason conformity view of obedience in The Province of Jurisprudence Determined (Rumble, Wilfrid E. ed., 1995), at 248–249Google Scholar, where he claims that while acts of obedience must be “voluntary or free,” they can be done from “motives of some description or another.” H.L.A. Hart follows Austin in The Concept of Law (Raz, Joseph and Bulloch, Penelope A. eds., 3d ed. 2012)Google Scholar, where he claims that citizens may obey the law for “a variety of different reasons,” Id. at 114, and “from any motive whatever,” Id. at 116. Himma argues that Hart “overstates” the extent to which obedience is necessary for the existence of a legal system, but the criticism relies on incorrectly attributing to Hart the reason compliance (RC) view of obedience. See Himma, Kenneth Einar, A Comprehensive Hartian Theory of Legal Obligation: Social Pressure, Coercive Enforcement, and the Legal Obligations of Citizens, in Philosophical Foundations of the Nature of Law (Waluchow, Wil & Sciaraffa, Stefan eds., 2013), at 175–176Google Scholar. Hart, much later and under the influence of Raz, did endorse something like the reason compliance view in Essays on Bentham (1982).

19. Austin likely misunderstood Bentham's view of obedience, which is more subtle than the conformity view as represented in RF, and is at least in some aspects a reason compliance view. See Gerald Postema, Bentham and the Common Law Tradition (1986), at 233–237, for discussion of various interpretations of Bentham on this issue. Prior to Bentham, many philosophers in the early modern period took the reason compliance view of obedience for granted.

20. Antoine de Saint-Exupery, The Little Prince (Cuffe, T V F trans., 1943), at 35–36Google Scholar. The exchange is no doubt an elaboration of that aphorism from French revolutionary politics, “There go my people. I must find out where they are going, so I can lead them.”

21. See Frost, Kim, On the Very Idea of Direction of Fit, 123 Phil. Rev. 429 (2014)CrossRefGoogle Scholar, in particular his recasting, id. at 473, of Anscombe's original idea as there being different manifestations of practical thought with their own standards of correctness.

22. Mark Murphy, An Essay on Divine Authority (2002), at 24.

23. G.E.M. Anscombe, Intention (2d ed. 2000), at 56–57Google Scholar.

24. Cf. Friedman, R.B., On the Concept of Authority in Political Philosophy, in Authority 64 (Raz, Joseph ed., 1990)Google Scholar (“…authority is distinguished from coercion as a mode of influence because it involves some sort of ‘recognition’ on the part of the subject that the person to whom he submits is ‘entitled’ to obedience and it is distinguished from persuasion in that obedience is not procured by ‘argument’”).

25. This capacity of unique and spontaneous action identification was noted by G.E.M. Anscombe in Intention (1957). For recent discussions in ethics and social psychology, see the essays in Agency and Self-Awareness (Roessler, Johannes & Eilan, Naomi eds., 2003)Google Scholar and Agency and Action (Hyman, John & Steward, Helen eds., 2004)CrossRefGoogle Scholar, as well as Vallacher, Robin & Wegner, Daniel, Action Identification Theory, in Handbook of Theories of Social Psychology 327–348 (Van Lange, P.A.M. et al. eds., 2012)CrossRefGoogle Scholar.

26. Raz, supra note 3, at 237. See also Perry, Stephen, Hart's Methodological Positivism, in Hart's Postscript: Essays on the Postscript of the Concept of Law 324 (Coleman, Jules ed., 2001)Google Scholar. Brian Leiter claims this idea “has been endorsed by every legal philosopher of the last hundred years, with the exception of the Scandinavian Realists.” See his Naturalizing Jurisprudence: Essays on American Legal Realism and Naturalism in Legal Philosophy (2007), at 173.

27. See Donald Davidson, Essays on Actions and Events (2d ed. 2001), at 50Google Scholar. In a recent essay, Matthew Hanser assumes IC as an account of obedience, but he gives no reason for preferring it over the Standard View (or any other). See his Doing Another's Bidding, in Reasons and Intentions in Law and Practical Agency 112–114 (George Pavlakos & Veronica Rodriguez-Blanco eds., 2015).

28. See Fed. R. Civ. P. 8(a)(2).

29. 558 U.S. 310 (2010).

30. See 11 C.F.R. 109.21–22 (2011).

31. See, e.g., Mike McIntyre & Michael Luo, Fine Line Between ‘Super PACs’ and Campaigns, N.Y. Times, Feb. 25, 2012, http://www.nytimes.com/2012/02/26/us/politics/loose-border-of-super-pac-and-romney-campaign.html?_r=1.

32. The Standard View (RC) suffers from a similar problem. Cf. supra note 12. A pioneering empirical study of citizens’ self-understanding as “law-abiding” is Tom Tyler, Why People Obey the Law (1990).

33. Raz long ago characterized something like this view of obedience as “conformity coupled with knowledge.” See The Concept of a Legal System (2d ed. 1980), at 15Google Scholar. There he mentions it in a critical discussion of John Austin's view of obedience, but does not pursue it further.

34. I use the phrase “in the background” in precisely the sense developed by Philip Pettit and Michael Smith in Backgrounding Desire, in Frank Jackson, Philip Pettit & Michael Smith, Mind, Morality, and Explanation 271–272 (2004), that is, as a motivating reason for action: “The desire for S figures in the background if and only if it explains the agent's choice of option. It figures in the foreground if and only if the agent reaches that choice via the recognition that he has that desire and that the option has the desirable property… More generally, a desire is present in the background of an agent's decision if and only if it is part of the motivating reason for it: the rationalizing set of beliefs and desires which produce the decision.” Though they do not explore the possibility, backgrounding knowledge rather than desire or belief is consistent with their account.

35. Fed. R. Civ. P. 12(b)(6). The rule is an interesting case, as it provides an action description (in this case an omission) that the law directs plaintiffs, defendants (in order to raise a motion), and the judge (in order to dismiss a case) to each apply to the conduct of the plaintiff in initiating a lawsuit.

36. G.E.M. Anscombe, On the Source of the Authority of the State, in Collected Philosophical Papers of G.E.M. Anscombe, Vol. 3: Ethics, Religion, and Politics (1981).

37. Hans Kelsen seems to take this view in an argument for the existence of a single, international Grundnorm. See his Principles of International Law (1952), at 559–662.

38. I mean “reasonably describable” in a nontechnical sense so as to avoid any reference to any particular evidentiary standard of proof in establishing the elements of a given crime.

39. See, e.g., Gideon Yaffe, Attempts: In the Philosophy of Action and the Criminal Law (2010), at 109–119; Michael Moore, Placing Blame: A Theory of the Criminal Law (1997), at 459–469; R.A. Duff, Criminal Attempts (1996), at 316–319.

40. See Randolph Clarke, Omissions (2014), at 68, and the examples he considers there.

41. Two notable exceptions are Vinit Haksar, Civil Disobedience, Threats and Offers (1986) and Lyons, David, Moral Judgment, Historical Reality, and Civil Disobedience, 27 Phil. & Pub. Aff. 31 (1998)CrossRefGoogle Scholar.

42. Martin Luther King, Jr., Letter from a Birmingham Jail, in A Testament of Hope: The Essential Writings of Martin Luther King, Jr. 293 (1991) (my emphasis).

43. See XX The Collected Works of Mahatma Gandhi (1966), at 464–466. Gandhi's point was that mere disobedience of this sort required in addition the now familiar elements of civility (a public, conscientious act, and so on) in order to qualify as civil disobedience.

44. See the many historical examples in Gene Sharp's seminal work, The Politics of Nonviolent Action (1973), at 303–319. Examples of such handbooks can be found at http://www.directaction.org/handbook/.

45. See the civil disobedience handbook provided to protestors in Hong Kong at the website Occupy Central, accessible in English at http://oclp.hk/index.php?route=occupy/eng_detail&eng_id=28. See especially Section 1, “Guidance Note on Legal Matters.”

46. The same qualifications on the knowledge condition discussed above (see text accompanying note 32) apply here as well.