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Law's Halo

Published online by Cambridge University Press:  13 January 2009

Donald H. Regan
Donald H. Regan
Affiliation:
Law and Philosophy, University of Michigan
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Extract

Like many people these days, I believe there is no general moral obligation to obey the law. I shall explain why there is no such moral obligation – and I shall clarify what I mean when I say there is no moral obligation to obey the law – as we proceed. But also like many people, I am unhappy with a position that would say there was no moral obligation to obey the law and then say no more about the law's moral significance. In our thinking about law in a resonably just society, we have a strong inclination to invest law with a sort of moral halo. It does not feel right to suggest that law is a morally neutral social fact, nor to suggest that law is merely a useful social technique.

In this essay, I shall try to account in part for law's moral halo. (Let me emphasize “in part”; I do not purport to say everything that could be said.) Because I share the widespread inclination to invest law with this halo, I shall not be interested in a merely historical account of how we come to see law with a halo – a pure “error theory” of law's halo, if you will. I want to justify the halo. On the other hand, the main way to justify the halo is to get clear just what law's moral significance is. It is unlikely that at the end of the process of clarification the halo will have exactly the shape or luminance that it had at the beginning.

Type
Research Article
Information
Social Philosophy and Policy , Volume 4 , Issue 1 , Autumn 1986 , pp. 15 - 30
Copyright
Copyright © Social Philosophy and Policy Foundation 1986

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References

1 Cf. Smith, M. B. E., “Is There a Prima Facie Obligation to Obey the Law?,” Yale Law Journal, vol. 82 (1973), pp. 950–976CrossRefGoogle Scholar; Raz, Joseph, The Authority of Law (Oxford: Clarendon Press, 1979), pp. 233–249.Google Scholar

2 Cf. Soper, Philip, “The Moral Value of Law,” Michigan Law Review, vol. 84 (1985), pp. 63–86CrossRefGoogle Scholar; Raz, The Authority of Law, pp. 250–261. Notice that Raz, like me, wants to be on both sides of the fence. Indeed, from the point of view of the reader who likes his questions and answers writ large, it may seem I have little to say that Raz has not already said. But there are enough differences of detail, of emphasis, and of general perspective that Ihope the repetition of major themes may be justified.

3 See my Utilitarianism and Co-operation (Oxford: Clarendon Press, 1980), especially ch. 2.

4 Cf. Raz, The Authority of Law, pp. 246–249. (Raz's ideas on law as a technique of achieving cooperation are emphatically not the object of my criticisms in the next few paragraphs of text.)

5 For further discussion of the compatibility of coordination and act-utilitarian behavior, see my Utilitarianism and Co-operation, especially chs. 3, 4.

6 For further discussion, see Smith, “Is There a Prima Facie Obligation,” pp. 954–958.

7 My argument here obviously owes much to Smith, “Is There a Prima Facie Obligation,” pp. 969–971. Just for completeness, I will stipulate, if the reader wishes, that no one observes my disobedience at the red light in the desert (so I cannot be setting a bad example); there is no danger of my present disobedience weakening my own resolve to obey other laws when obedience would have good consequences; and so on. All of this to guarantee that there really is no reason for obedience in this case.

8 It might occur to the reader that laws could not create any expectations at all, and therefore the law on traffic lights could not create a moral obligation even in the red-light-in-traffic case, unless people believed there was a moral obligation to obey the law. This is a mistake, for reasons I shall adumbrate in section III (without being able to develop them at length).

9 Smith, “Is There a Prima Facie Obligation,” pp. 970–971.

10 Finnis, John, Natural Law and Natural Rights (Oxford: Clarendon Press, 1980), pp. 314–320.Google Scholar Incidentally, Finnis is also one of the few people who have recognized that promises create obligations of widely varying strengths (p. 308). This obvious but neglected fact about promises moves me to deny that there is anything sensibly referred to as “the obligation to keep promises,” just as I deny that there is an obligation to obey the law. Of course promises, like laws, are often intended to and often do create moral obligations; but that is a different claim.

11 My claim here obviously resembles Raz's claim that a citizen might “trust” the lawmaking and judicial institutions of a generally good legal system (The Authority of Law, p. 245). But Raz seems primarily to suggest trust as a permissible reason for obedience, whereas my emphasis is on what the citizen is morally required to do before she disobeys.

12 Cf. Mackie, J. L., “Obligations to Obey the Law,” Virginia Law Review, vol. 67 (1981), pp. 143–158, 150.CrossRefGoogle Scholar

13 This possibility was raised by Philip Soper in a discussion of my paper.

14 Raz, The Authority of Law, pp. 249, 260.