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OBEY THE LAWS: FREE OF CONSTRAINT
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OBEY THE LAWS: FREE OF CONSTRAINT
|
Dr. S. Krishnan
Associate Professor
Seedling School of Law and
Governance
Jaipur National
University, Jaipur
|
Ms. Priya Chugh
1st year
student of BALLB
Seedling School of Law and
Governance
Jaipur National
University, Jaipur
|
“If a law is
unjust, a man is not only right to disobey it, he is obligated to do so.”
-Thomas
Jefferson
Abstract:
Devoid of
obedience any law is merely a dead letter. But are we obliged to obey the law?
If yes, then what causes this obligation? And if not, then what makes us
believe that we are? From ancient philosophers like Aristotle and St. Augustine
to more recent philosophers and political thinkers like John Locke, Ronald
Dworkin and John Rawls etc., all have tried and failed to provide these mind
boggling questions with an ideal answer which may explain the cause of
existence of such obligation and hold its ground in all imaginable scenarios.
At best they have pointed out some possible reasons, like morality, social
contract, associative obligation etc., which might compel us to obey the law
but not without leaving a wide room for ambiguity. Nevertheless in the latter
half of the 20th Century, Joseph Raz, an Israeli philosopher,
ventured to explore the other side of the isle by trying to answer the big
question in negative. He disapproved altogether the quest for the ‘perfect
reason’ by claiming that there exists no obligation to obey the law. This essay
will attempt to give an insight on this age-old question through in depth
analysis of the various philosophical reasons previously contended by different
schools of thought and reviewing the nature of ‘civil disobedience’ while
upholding the Razian stand of ‘no obligation’.
Keywords: No Obligation, Reasons To Obey,
Civil Disobedience, Joseph Raz
Laws have
been rather crucial in shaping the society into what it is today. People have
obeyed laws since the times immemorial and it is undeniable that this obedience
has become an inseparable part of their lives. In Crito, Socrates
remarks on the importance of law as ‘is
a city without laws satisfactory to anyone?’[1]
But the cardinal question is whether the expediency of law for the peace, progress, stability and
even existence of the society, creates in itself an obligation for people to
obey it. Most of the earlier philosophers went on to give the reasons for
obligation without a conclusive ascertainment of its existence. Joseph Raz, in
his essay ‘The Authority of Law’,
answers this question by refuting
upon the independent existence of any obligation to obey the law. I would
attempt to defend his views by giving my own interpretation of them. First the
meaning of obligation would be discussed. Subsequently the two of the acclaimed
reasons which obligate us to obey the law i.e. morality and higher laws and the
‘social contract’ would be critically examined. And the last part would discuss
the nature of ‘civil disobedience’ in the light of present contentions.
What is an Obligation?
According
to Raz, the general obligation to obey the law which entails the reason to do
the act which law requires[2].
Its existence must strictly pertain to the fact that law demands it. But the
problem is that in real life such an obligation has no weight of its own. It is
the accumulation of variety of other obligations and fears viz. moral
obligation, social obligation, associative obligation and fear of persecution
etc. existing in different proportions for each person which justify the
obedience of law for him. Raz claimed that the main role of law is to mark the
standard to which these independent motivations of people attach themselves[3].For
instance; people are generally known to possess some moral reasons to guide
them against the commission of murder or rape. A law penalizing murder or rape
would be just in the eyes of people because they already existing have other
reason which certifies it to be so.
Taking this
discussion further, say a survey is done in a democratic country where citizens
are asked to give reasons for their obedience of some random laws prevailing in
that country. It is possible that countless combinations of reasons could be
put forward by a person to justify his views. It could be any reason be it
morality, fear of social ostracism, fear of punishment or mandate to follow the
word of God etc. The response might be
different for every single law which is questioned or similar for all of them
or a standard answer for some and different reasoning for others, depending
upon the person so being asked.
Now
consider a law which bans homosexual activities is put in the questionnaire
among others. It is a high probability that for an average heterosexual middle
aged Muslim man taking part in the survey, the likely grounds to justify the
existence of such law and authenticate the obedience which it commands, would
be morality and the mandate to follow the word of God (assuming he adheres the
commandments of Qur’an which explicitly condemns the practice[4]).
It might be same in the case of an Orthodox Jew gentleman of similar
qualifications as his scriptures and his culture too disapprove of
homosexuality[5].
But a young atheist, who happens to be a lesbian, may resort to fear of
punishment or social ostracism[6]
while giving reasons for her obedience of this law. She might even detest it
for its unjustness and speak in the favor of its abolishment.
Nonetheless,
this position might reverse if the next law which is questioned bans domestic
violence like beating one’s spouse etc. Here the former (Muslim man) may use
the reasons of the latter (lesbian atheist) and latter may give the reason of
morality used by former in the previous question. The reason for the Muslim man
to do so could be that Islam permits a husband to use beating as a last resort
if his wife refuses to have sexual intercourse with him[7].
It is not necessary that no Muslim would use morality as a reason because not
all Muslims follow the word of Qur’an per se. But Muslims make up almost a
quarter of the world’s population (about 1.7 Billion) and most of the Muslim
population resides in the Middle East where strict adherence to Qur’an and
Hadiz is generally seen. Thus it would be safe to say that no less than 60-70%
of Muslim males or 300-400 thousand people of the world would not have much
moral reason to obey such law. That’s a big number. It is not only in the case
with Islam but with almost every major religion and even some cultures which
permit or restrict some things which might be considered immoral or even
diabolic in others. We may also consider restriction of abortion in
Christianity, permissibility of child marriage in Hinduism (also in many other
cultures as it is still legal in 93 countries) and polygamy in Islam and
Hinduism etc.
This
hypothetical survey, despite its low level of precision, explains a lot about
the cause of obedience of law for different people. It could be inferred that
even in a real life survey there would be hardly any consistency amongst
reasons for obedience of any law given by the different persons. A person does
not have consistency even amongst his own answers let alone with others. The
inherent cause of obedience is not same for anyone in all the cases. Therefore
even if we suppose that there exists an obligation to obey the law, no one
could point out a common cause for its existence.
To verify
this stand of ‘no obligation’ it becomes indispensible to look at the other
philosophical reasons which tend to fix a singular cause for the obligation to
obey the law for all persons. I would examine three most popular reasons which
have been considered the possible answer to the question by different schools
of thought for centuries- morality and ‘higher law’; social contract and
coercion.
Morality
and the ‘Higher Law’
The
‘natural law’ theorists have since long taken the support of morality and
‘higher laws’ to show that there is an undeniable general obligation to obey
the law. Aristotle, the father of ‘natural law’ paradigm, explored the nature
of law, its abidingness and it’s applicability in Politics, Rhetoric and
Nicomanchean Ethics. According to him there exists two types of laws i.e.
‘particular laws’ (manmade laws) and ‘universal laws’[8],
where latter is superior to the former. He believed that an ideal government
(which was voluntary monarchy according to him[9]) would make just
laws and ensure their obedience by the citizens[10].
Aristotle promoted the ideas of eglatarism and rule of law in the society, long
before they were even properly formulated by anyone, while suggesting that the
supremacy of ‘universal law’ was the only way to achieve it.
Cicero, a
famous Roman philosopher, was highly influenced by the work of Aristotle. He
also believed that there existed a universally accepted, unchanging and
everlasting law authored by God binding upon the whole world alike which could
not be restricted or abrogated by any human legislation.[11]
It is evident that both of these early ‘natural thinkers’ affirmed the
existence of the ‘universal law’ which contained in itself an inherent
obligation to be obeyed.
The further
important contributions to this ideology were made by the Chrisitan
philosophers, St. Augustine and St. Thomas Aquinas. St. Augustine professed
through his concepts of two cities (‘City of God’ & ‘Earthly Cities’) and
‘original sin’ that men have a strong tendency to sin and they required a
political authority to control them coercively so they might learn humility[12]. In his early works, he expressed the view
that human law must be legislated in conformity to eternal law (Lex Aeterna) which was thoroughly just.[13]
His great admiration to Cicero’s philosophy could be seen in his works where he
harmonized it with the principles of Christianity. Almost millennia later, St.
Thomas Aquinas presented a more elaborate form of St. Augustine’s philosophy.
He divided this universal law into three parts: ‘Eternal Law’ or ‘Lex Aeterna’,
through which everything in the universe is controlled[14];
‘Natural Law’ or ‘Lex Naturalis’, which is the part of ‘Lex Aeterna’ imprinted
on every rational being’s(man) soul[15];
and the Divine Law, which are dictates of holy scriptures which revealed the
elements of ‘Lex Aeterna’ to men[16].
The Human law on other hand was described as a means to enable disabled persons
to follow the dictates of the natural law[17]
which was free of error[18].
St. Thomas Aquinas strengthened the religious involvement in natural law theory
turning the view of obligation of law towards strict adherence to one’s
religious scriptures as command of God.
Modern
natural thinkers, like Hugo Grotius, gave further modifications to the theory.
Grotius used the ‘just war theory’ and ‘right to necessity’ as a basis to
demark the existence and abidingness of natural law. He had a rather distinct general
view of ‘natural law’. He believed that it could not be amended even by God and
even He was subject to it[19].
From this
brief review of historical evolution of ‘natural law’ ideology it becomes clear
that all of these theories have two key assumptions- (1) there is some ‘higher
law’ which commands obedience (2) its two indicated sources are morality and
religious scripture. It cannot be denied that morality is one of the main
reasons for our obedience of laws. But as for the sole contender to form a basis
for ‘general’ obligation of the law, it hardly stands a chance. Raz took the
‘bad influence’ approach[20]
to prove this point. He argued that though we may influence others through our
behavior but the influence of every person and every act so done by him is
different. For example, a traffic signal jumped by the Archbishop of Canterbury
in his car would be news for thousands of people whereas same act done by a
college student on his bike would go unnoticed. Thus believing the argument of
‘preventing bad influence on others’ given by the ‘natural thinkers’, former
would carry a moral obligation to obey the traffic rules while the latter would
not because he can exert no ‘bad influence’ by disobeying it.
Another
basal defect to be focused is the inconsistency and vagueness of ‘Higher Law’.
According to majority of natural law theories, ‘Higher Law’, described as
universal law, eternal law, natural law etc., is the supreme law to which all
manmade laws are subordinate. But as for the explanation of what this ‘Higher
Law’ comprises, merely sources like morality, reason and religious scriptures
are pointed out. The main problem is not only the ascertainment of which one
these is to be followed but also who shall be the authority to certify it as a
source. Let’s consider its given sources.
Morality is
the set of moral reasons[21]
which an individual or a society considers as measurement yard of goodness for
all the actions he commits or judges. Some of these reasons are innate in all
men since birth like reverence of parents and abstinence from harming others
etc. but most of them are learned through social interactions. Culture,
religion, and country etc. of a person play a decisive role in formation of his
moral reasons. But the problem arises with the generality of morals in every
person on earth. Given the different backgrounds of people, a thing which is
moral for one might be immoral for another. For example, let’s say a law is
made in India banning the sale and consumption of beef. The 80% of the Hindus
residing there would have a strong moral reason to abide to such law as their
society, culture, religion etc. all condemn the practice. But for Muslims and
Christians residing in India there would be no such moral obligation to obey
the law. Their obedience would only be a result of fear of punishment rather
than moral motivation. The dictates of the ‘Higher law’ and morality of Hindus
would differ greatly from those of Muslims, Christians and Jews on this point.
There are many other examples which would concur to this stand.
Thus we may
concluded that morality and even ‘higher laws’ (different for different
people), though form a strong reason for obedience of most laws, cannot justify
as a reason for general obligation to obey law.
Social
Contract
The
‘natural law’ theories remained uncontested till the mid 16th
Century when Thomas Hobbes published Leviathan
which singlehandedly brought back to life the concept of social contract of
Socrates. In the dialogues Apology
and Crito written by Plato, Socrates
introduced the idea of ‘Tacitus agreement’ to the world. He claimed that if one
continuously enjoys the facilities which the state provides (protection,
employment, education etc.); observes its manner of deliverance of justice and
handling of civic matters; and still decides to stay in it, then through his
actions he enters into an implied agreement with the state to obey all of its
commands[22]. Despite his previous stand in Apology, where he declared that
injustice was being done to him[23],
he condoned that injustice must not repaid by injustice[24]
and breaking away from the prison and disobeying the court’s decision would do
be unjust.
The
later philosophers like Thomas Hobbes, John Locke and Jean Jacques Rousseau,
used this basic idea of ‘Tacitus agreement’ but gave their own separate reasons
for its existence. Hobbes, in his illustrious work, Leviathan, used the concept of ‘state of nature’ i.e. existence of
mankind without a civil society with laws or government, to explain the reason
for the need of the state and laws. He believed that without a common authority
to keep him in awe, humanity would exist in the state of nature (state of war)[25]
wherein life would be ‘solitary, poor, nasty, brutish, and short’[26]. To save himself and be at peace, man ought to
surrender his right of absolute liberty to the state in return for protection
of his being and some basic rights.
Locke
and Rousseau also gave their own versions of ‘state of nature’ in their works.
John Locke, who was coeval to Hobbes, believed that even in the state of
nature, man is not free from constrains of law which governs everyone i.e. the
law of nature which, according to him, is created by law or, to non believers,
discoverable by reason[27].
Being a strong contender of inalienable rights of men, he proposed that people
in the ‘state of nature’ surrender their absolute rights, to be governed by
laws promulgated for the common good and interpreted by upright and unbiased
judges[28].
His theory suggests that people had an obligation to obey the laws which an
ideal government (one which governs by the principles of ‘rule of law’) makes
for the protection of their inalienable rights. Hitherto, both the previous
theories have emphasized only one main characteristic of the state i.e.
protection, which according to them obligates everyone to obey the law.
Almost
after a century, Jean Jacques Rousseau published his ‘Discourse on the Origin
and Basis of Inequality among Men’ in which he presented his version of ‘state of nature’ which
was opposite of was completely opposite of Hobbes’s original version. He
believed that in the ‘state of nature’ there was happiness[29],
equality[30]
and peace (giving the instance of Caribbean tribes[31])
as man was uncomplicated and only felt for his actual necessities[32].
But during the inevitable transition to ‘state of society’, people became more self-centered
due to development of and jealousy[33],
inequality[34],
crime[35]
etc. ensued in the society. He proposed that only solution to this situation
was ‘social contract’ whereby people give up
their individual will for the general will[36]. Everyone gives their
rights to everyone and thus nobody loses any right. Though Rousseau views were
quite different from Hobbes’s and Locke’s but his theory also only weights the
protection provided by the state as the main reason for the general obligation.
Nevertheless, more recently John Rawl gave further implications of
this ‘social contract’. Through his famous ‘veil of ignorance’ hypothesis[37], Rawls presented a new
vantage point to look upon what social contract has so far included that led to
the unfairness in society as it exists today and what ought to be included in
it to bring society to such a desirable state whereby no one is afraid to take
up the ‘veil of ignorance’ challenge. He contended that everyone
who is treated by such a government with reasonable justice has a natural duty
to obey all laws that are not grossly unjust, on the ground that everyone has a
natural duty to uphold and to comply with just institutions[38][39].
Though Rawls theory appeals as comparatively more reasonable and realistic than
any of the above but it has its own defects as discussed below.
‘Social contract’ paradigm fails on many accounts to give a
stringent cause of general obligation to obey the law. There are two points
which confirm this assertion. First, the ‘social contract’ is not much of a
contract because the ‘implied consent’ of every citizen is not free. Socrates
opines that relation between the state and a citizen is similar to a parent
child relationship. But parent and child relationship is not a contractual
relationship rather it is an associative one as ‘Integrity Theory’ of Ronald
Dworkin suggests. Even by ignoring this contention, there is the problem of
lack of choice. A person has virtually no choice other than submitting to a
sovereign rule. For instance, a person may wish to flee from the
totalitarianism prevailing in his own country to the neighboring country which
is democratic. But due to unreasonable restrictions on issue of passport by the
state, he is unable to obtain one. Hence, he is personally condemns state’s
manner of governance but due to the lack of choice he may be forced to live
under its rule. Such person can’t be said to have given an implied consent as
per the concept of ‘Tacitus Agreement’.
Secondly, even the justness of laws and the legal system, as
suggested by Rawls, does not give rise to an independent generic obligation to
obey the laws. It is admitted that people have a stronger incentive to obey the
laws when legal system is just and which promulgates just laws. But even these
laws are categorized as just only because people have abundant individual moral
reasons to conform to them. As contended in the earlier part of this essay the
laws mainly tend to provide a framework for individual motivations to stick to
and thus by making good laws all a legal system is doing is giving establishing
more acceptable and likely to be adhered frameworks for people’s moral reasons.
No special obligation to obey the law is created by just laws. Hence, the
‘social contract’ theory does not hold strong grounds either to give a singular
reason which creates general obligation to obey the law for people. Nonetheless
John Rawls’s argument for validity and even necessity of civil disobedience in
certain cases is quite plausible. It may further solidify the present contentions
and ironically, weaken his argument about the obligation to obey law.
Civil
Disobedience
Moving
on to the other end of the spectrum we may see that the ‘no obligation’
ideology, which has been defended all along in this essay, becomes clearer when
it comes to explaining the conditions of disobedience through it.
Civil
disobedience is a social phenomena whereby a large number of citizens
collectively denouncement or agitation against unjust laws or unjust political
institutions or its activities. It has been seen in action a number of times in
the past century alone. Some popular examples include the ‘Salt March’ led by
Mahatma Gandhi and Martin Luther King Jr. led Montgomery Bus Boycott which
sparked 1960’s ‘Civil rights movement’ in U.S. It has been established so far
that people obey laws either because of their own personal motivations or, in
some cases, out of the fear of punishment. Generally it is important for any
law which survives for prolonged time or isn’t often disrespected that the former
cause of obedience i.e. out of one’s personal motivation (morality, social
stigma, conformity to religious commandment etc.) be more dominant than the
latter i.e. fear of sanction. But sometimes a law, either from the inception of
its legislation or due to some later change in trend, loses its ability to work
as a robust framework for the dominant portion of its adherers to cling their
personal motivations on it. In such cases more and more people first resort to
the latter cause of obedience (fear of punishment) and when they outnumber
heavily the motivated abiders then activities of defiance begin to take place
which sometimes turn into a violent revolt. But this is not the case for every
law. Whether such law would be opposed explicitly at all; how long will it take
for any defiant activities to become common; or whether the matter could turn
into a civil war; all depend upon the magnitude of unfairness of the law in
question and its effect on the lives of people.
The
recent ruling of U.S. Supreme Court in Obergewells
v Hodges[40]
case declaring all laws banning same-sex marriage as unconstitutional signify
the power of civil disobedience. LGBT groups began their protests and movements
in early 1970s and after almost half a decade of consequent legal battles
achieved their goal. It is not a conventional example of civil disobedience
which involves actual disobedience on the part of people involved in it rather
this is an example of strong public agitation with only minor transgressions which if remains
unchecked for long, turns into such fully fledged civil disobedience.
Nevertheless,
civil disobedience is not justified in all cases. As John Rawls observes, it
must be used only as a last resort against substantial injustice and the ill
effects arising out of it must be balanced before such disobedience causes more
harm to the nation than its actual stimulus[41].
Conclusion
From
the discussion so far, it could be established that it is not possible to prove
the existence of independent obligation to obey law through any single set of
reasoning which may apply to every individual. The conclusions of the analysis
of different reasons which had been used to demarcate the existence of this
obligation prove to be in accord with this inference. Furthermore, phenomena
like ‘civil disobedience’ are clear evidence to the fact that a general
obligation to obey law is not only be impossible to prove but would have been a
threat to humanity was it to exist. We find it very hard to give up our
misconception that we are bound by law to follow it. But if we succeed in doing
so, we may have a better understanding of the various other stronger
constraints which actually make us obey the law for both our individual and
universal good.
[1] Plato, Crito, at 9, 53a (translated by
Cathal Woods and Ryan Pack, 1st Ed. 2007).
[2] Joseph Raz, The Authority of Law at 233, (Oxford University Press Inc. New
York, 1979).
[3] Ibid at 241
[5] The Torah (Leviticus 18:22)
[6]Gregory M. Herek, Homosexuality at 5, (A.E. Kazdin Ed.,
Encyclopedia of Psychology, Washington D.C., American Psychological Association
& Oxford Press, 2000).
[7] Qur’an, Surah (4:34 & 38:44),
trans. Sahih International.
[8] Aristotle, Rhetoric at 57(Book 1-13), (W.
Rhys Roberts trans., 1954).
[9] Aristotle, Politics at (Book 3 P. 14), (Benjamin Jowett trans., 1999).
[10] Ibid at Book at 4 P.8 and Book 2
P. 9.
[11] Marcus Tullius Cicero, De Republica at 3.33
[12] St. Augustine, De Civitate Dei at 124.8, (426 C.E.)
[13] St. Augustine, De vera
religione at 31.58, (386
C.E.).
[14] St. Thomas Acquinas, Summa Theologica at 93, (1485 C.E.).
[15] Ibid at 91.
[16] Raymond Wacks, Understanding Jurisprudence: An Introduction
to Legal Theory at 22, (Oxford University Press, 2005).
[17] Ibid at 95, art. 1.
[18] Ibid at 91 art. 4.
[19] Supra note 27 at P.127.
[20] Joseph Raz, The Authority of Law (237-242), (Oxford University Press Inc. New
York, 1979).
[21] Joseph Raz, Incorporation by Law at 3, (Storrs Lectures at Yale, 2003)
[22] Supra note 3 at 51e.
[23] Thomas G. West, Plato’s Apology of Socrates: An
Interpretation, with a New Translation at 23 (39b), (1st ed.,
1979).
[24] Ibid at 49d.
[25] Thomas Hobbes, Leviathan at 77, (1st ed.,
1651).
[26] Ibid at 78.
[27] John Locke, Second Treatise of Government at 4, (edited by Jonathan Bennet,
2008)
[28] Supra note 42 at 41.
[29] Jean Jacque Rousseau, On inequality among mankind at 34, (Translated by G.D.H. Cole.,
2002).
[30] Ibid at 38.
[31] Ibid at 19.
[32] Ibid at 19.
[33] Ibid at 19.
[34] Ibid at 20.
[35] Ibid at 19.
[36] Jean Jacque Rousseau, The Social Contract at 11, (translated
by G.D.H. Cole, 1913).
[37] John Rawl, A Theory of Justice at 136, (rev. ed., 1999)
[38] Ibid at 334-37, 350-62.
[39] M. B. E. Smith, Is There a Prima Facie Obligation to Obey
the Law?, The Yale Law Journal at 959, (Vol. 82: 950, 1973)
[40] Obergefell Et Al. V. Hodges, Director, Ohio Department Of Health, Et
Al., 576 US _ (2015).
Article Information
OBEY THE LAWS: FREE OF CONSTRAINT
Authors: Dr. S. Krishnan, Ms. Priya Chugh
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/09/25
- Issue 7
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International Journal for Legal Research and Analysis
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