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Published: Fri, 02 Feb 2018
Duty To Obey The Law
The statement explicitly presupposes the existence of a duty to obey the law. However, it is reassuring that many influential academics and notorious civil activists do not share Rawls’ view:
‘Why should I ever consider myself to have a “duty” to obey rules imposed by a criminal gang simply because it calls itself a government?’. 
1.0 Rawls’ Preconditions
Before engaging with the substance of Rawls’ argument, the various ‘special features’ of the environment which fair play requires to operate can be attacked from a perspective of political anarchism, which does not necessarily presuppose the legitimacy of the state  . Fair play requires a ‘just constitution’, a ‘constitutional democracy’ and ‘rules’ of a ‘just institution’  . Provided these conditions are met, it logically follows that the duty to obey an ‘unjust law’ cannot be overridden by ‘illegal means’, so long as the law does ‘not exceed certain limits of injustice’  . I intentionally focus my discussion on original criticism.
As a theory of social justice, fair play can only be applied to situations of small social enterprises  . I acknowledge the conceptual difficulty of formulating a theory of political obligation for larger enterprises, since it would be difficult to apply the principle of justice with any consistency to arrive at conclusions. My contention is that the consequence of restricting a theory to such specific circumstances practically renders fair play a model for utopia, not political obligation.
1.1 A ‘just constitution’ and ‘unjust laws’
The reciprocation of ‘benefits’ arises from a mutual moral obligation to do one’s fair share. Before exploring these benefits, one can criticise their source; namely the ‘just constitution’ of a legitimate state. I shall also consider the issue of civil disobedience in relation to following an unjust law, since the foundation of Rawls’ reason for why we should obey an unjust law is the implied acceptance of that state’s constitution  . It is not far-fetched to suggest that this grossly over-estimates the political awareness and moral conscience of an average member. Although Rawls suggests that this is implied, Woolf regards authority more as a submission of moral autonomy, rather than as an acceptance of a constitution as a legitimate reason to obey unjust laws  .
Although the UK has no written constitution, it is still a constitutional democracy  . The equivalent to the US Bill of Rights is the Human Rights Act 1998  . A just constitution is in theory, a source from which rights should flow  . In the UK, new Labour has been criticised of its serious unconstitutional violations of such rights (Noam Chomsky is a passionate critic of similar breaches in the USA, arguing his case extremely succinctly with empirical evidence  ). It has virtually been proven that the extension to the 42 day period of detention was passed undemocratically, against major constitutional principles  . We have also seen Robin Cooks’ resignation from cabinet over the legitimacy of the Iraq war  . It was reported by the Convention on Modern Liberty that almost sixty new powers contained in more than twenty five Acts of Parliament have ‘whittled away at freedoms and broken pledges set out in the Human Rights Act and Magna Carta since Labour came to power in 1997’  . Contrary to Rawls; my perception of a ‘just constitution’ is that of political myth.
2009 saw unprecedented levels of civil disobedience within the UK. One such event was a solo-protest by an eighty year old pensioner, imprisoned for making a stand against “oppressive council taxes”  . Rawls would presumably disapprove of such trivial stances of disobedience  . This is in direct conflict with both political and philosophical anarchism; Wolff would argue that the duty to comply with an unjust law in particular is an unacceptable submission of moral autonomy to authority  . I most certainly agree, but surely this is dependent on the nature of the cause. If we examine the nature of Gandhi’s civil resistance in colonial India; the suppression of moral autonomy eventually led to ingenious, methods of protest. One such protest was the mass-marching of citizens to the coasts of India to produce salt, contrary to laws granting ownership of India’s salt supplies to Britain. Wolff may argue that Gandhi was forced into this situation by a state which coerces cooperation by the use of ‘power’ as opposed to ‘authority’. I would argue that this kind of disobedience is entirely justified, ultimately resulting in the exercise of personal moral sovereignty and is therefore irreconcilable with Rawls’ high threshold of tolerance. Civil disobedience plays a fundamental role in redefining the legitimate boundaries of the state when it has overstepped its mark. This implies that political obligation is not a static concept. If Gandhi were to share Rawls’ views, India may still be under a discriminatory colonial regime today.
1.2 Democracy, The Rule of Law and Unjust Laws
Rawls holds that this duty arises only in a constitutional democracy and inexcusably holds that ‘there is no harm in this’  . A whole other paper can be written on this subject; however some key issues are highly relevant to the functioning of fair play. It is interesting that Rawls grounds the duty to obey unjust laws on primal democratic principles, such as the blind acceptance of majority will  . This is overridden only by counter-obligations of superior moral weight.
A democracy should at least in theory uphold the rule of law, hence sufficiently serving the interests of justice. In reality however, we experience gross violations of democratic principles. The worst being the killing of an innocent man by police on grounds of Labour’s terrorism legislation  . The issue of political obligation in a democracy surely changes when 440 new imprisonable offences were created without direct parliamentary approval since Labour came into power in 1997  . It is only in areas where the state has the legitimacy to legislate, that an obligation can be based. When the state erodes its’ own legitimacy by over-legislating, the obligation consequently becomes narrower, to the extent that one cannot consider the existence of such an obligation in the current political climate.
John Stuart Mill’s On Liberty warns of a prominent danger to liberty, which democracies are prone to; ‘the tyranny of the majority’  . We have seen this manifesting during Hitler’s reign and I argue that we are seeing this in practice now, such as in the ‘direct democracy process’; whereby voters in one federal state of the US can change their own constitution without the approval of other federal states  . Although the Californian courts had legitimised homosexual marriage, voters reversed the decision by this process, whilst on the same day granting rights to chickens  . This has inevitably resulted in absurd legislation, contrary to the constitutional principles and Rawls’ idealist democracy.
As Winston Churchill infamously stated, ‘the greatest argument against democracy is a five minute conversation with an average voter’  . Milton Freidman is of the opinion that voters are highly uninformed about many political issues and have a strong bias about the few issues on which they are fairly knowledgeable  . This in turn renders the whole system of a democracy as one which is not suitable to serve the interests of justice and moral autonomy.
Rawls notes that the system must also comply with the ‘Rule of Law’, which in my opinion is an additional fabrication to the fallacy of democracy. Raz defines this as a tool to ‘uphold the dignity of man as an individual’  . Essentially, the principle is founded on the basis that all members of a state, be it politicians or peasants be subject to equal treatment under law. 2009 saw a revelation that MP’s were effectively stealing tax payers’ money, spending it illegally on personal expenses. It was also alleged for over 40 years that several ex-members of parliament were directly involved and profited from various criminal activities organised by the ‘Kray Twins’.
In 2008, a letter from Ronnie Kray named all the parties involved, nevertheless; the government censored the names of MP’s who were still alive on the pretentious grounds of ‘national security’  . Rawls would struggle to argue with a straight face that such conduct upholds the rule of law as per Raz’s definition. I am personally infuriated that MP’s who profited from and used child prostitution are now protected. A reconsideration of the requisites of fair play is undoubtedly needed in light of this shameless deterioration of constitutional principles and the rule of law, which cannot possibly yield compliance from the duty of fair play.
2.0 The Animal in Man
Simmons advances an argument that fair play encompasses ‘an extension of certain consent theory institutions’  . I put forward that consensual mutual recognition of benefits places an unrealistically onerous burden of performance on the beneficiary. This is evident in the requirement of one to ‘do his fair share’  . The conceptual problems of quantifying a ‘fair share’ are obvious, especially when considering that people do not often contribute to such schemes, or have a very small chance of getting caught. What are the chances of getting caught if I do not pick up my dog’s mess in my neighbourhood? Practically nil. Yet I benefit from the cleanliness of my neighbourhood due to the cooperation of others. The problem lies in often being unable to identify these ‘free-riders’ and also the fact that natural conformity encourages other people to free ride instead of abiding by the rules. Anthropology however does generally support the notion that ‘social out-casting’ is essential to achieving mutual cooperation, (therefore we must personally know the free-riders) often seen in tribal cultures and close communal settlements such as the Salomon Islands, where there is very little crime despite the substantial absence of law enforcement  .
Pivotal to fair play is the concept of ‘moral obligation’: essential to social cooperation and the reciprocation of benefits. A moral obligation presumes the morality of man, which again is a highly controversial claim that must be addressed. Understanding the nature of man is crucial to deducing whether or not one would reciprocate their duty to other participants of the scheme. One of the most significant contributions to psychology is Sigmund Freud’s ‘pleasure principle’  . To paraphrase, the primary objective of man is dominated by the ‘id’; a pleasure seeking, pain avoiding element of the human mind, which cannot usually be overridden and is ultimately selfish  . Freud dismisses the natural moral capacity of man, as do many anthropologists; much archaeological evidence suggests signs of extreme violence between tribal communities, such as skull and bone fractures across a large number of pre-historic remains, supported by Darwinian ‘survival of the fittest’ theory.
Various empirical psychological experiments have led to conclusions that most people will simply conform to authority and commit acts of violence. Stanley Milgram provided one such theory; he was fascinated by the instant evaporation of morals in Nazi Germany. He therefore constructed the notorious ‘prison experiment’, which involved equipping ordinary members of the public with the uniform of prison guards and another group of civilians as their prisoners in a simulated prison. He concluded that behind the pretence of uniform and authority; most people are capable of committing gross acts of violence simply due to conformity and human nature  .
These arguments present significant blows to the mutual reciprocation condition of fair play theory. They also dismiss any morally-grounded theory, whether fair play or gratitude. Studies on corruption, from Machiavelli through to modern governmental studies in openly corrupt countries prove with virtual certainty, that corruption is an inevitable consequence of power  . This is bolstered by Milgram’s experiment and the ‘pleasure principle’ as illustrated above. Rawls insists that fair play derives from generic considerations, not specifically catered for political obligation. Would it not logically follow, that it would be extremely hypocritical of people to abide by fair play theory in certain circumstances, but not recycle their waste, or even smoke and consume alcohol, since those who refrain from such behaviours are less likely to need the services of the NHS which their income tax contributes to?
The concept of benefits presents further problems if we consider the receipt of those benefits. It is fundamental that we distinguish these benefits from benefits derived from theories such as gratitude, since these benefits originate from social cooperation. The difficulty is essentially with people who receive little, disproportionate or no benefit from participating in a social enterprise in comparison to other members. Inspired by Nozick’s neighbourhood; picture a tenement block of apartments, where a night-shift worker shifts sleeps only during the daytime. That neighbour would receive fewer or no benefits of quiet enjoyment compared to the majority who sleep at night, unless she matched the same sleep pattern as the rest of the occupants. It is in the daytime that the other neighbours are active, keeping her awake. What would be her moral reason for staying quiet at night whilst her neighbours are sleeping? There simply isn’t one, unless it is within her sense of justice to obey the rule.
As Wolff puts it: ‘…anarchism is the only political doctrine consistent with the virtue of autonomy’  . I could never accept the political alternatives offered by political or philosophical anarchism, but their ideals are truly awe-inspiring. The strongest form of anarchism I can suggest is political and would involve substantial elements of capital-anarchism. My view is that we live in an age of corporations, where they are a necessary evil. Due to relentless globalisation and capitalism; we simply cannot exclude them from the picture. Furthermore, we see that corporations are some of the main drivers behind key legislation and acts of government, as was evident in George W. Bush’s decision not to sign the Kyoto treaty, heavily influenced by ‘Exxon mobil’  . If corporations can influence the president of the USA so strongly, then the wrong-doings which would probably occur if they gained power can only be left to speculation.
Political anarchism is also an idealist theory as it requires moral standards to function; this is in direct conflict with the arguments presented earlier. If the government were to lose power, we simply do not know what would happen. George Orwell explores this theme intimately in Animal Farm; a fable entirely based on the Russian Revolution. The pigs on the farm who led a revolution to overthrow their oppressive farmer could not help but assume the position of power themselves and exploit the weaker animals. We have seen this time and time again and should have the wisdom to learn from history. As was seen in the Russian revolution; the heirs to the power became even more corrupt than their previous rulers.
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John Keane, ‘The Life and Death of Democracy’ (Simon & Schuster, London 2009)
John Buell, ‘Democracy by other means’ (University of Illinois Press, Detroit 1995)
Joseph Raz, ‘The Authority of Law’ (OUP, Oxford 2009)
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< http://www.cmsindia.org/cms/events/corruption.pdf> Accessed 12 November 2009
accessed 20th December 2009.
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