"I just don't, it's illegal" – Is There a Moral Obligation to Obey the Law?
About the Author
Samantha Love read Law at Merton College, Oxford, and is currently following the BCL course.
St Michael defeats the Devil by Eugène Delacroix
Would you ignore a red traffic light at 3am when absolutely nobody else was around, or would you sit and wait at the junction?
Or to put the question from another angle, do you avoid taking illegal substances because they’re dangerous for your health, expensive, often sold as part of wider criminal activity that you don’t want to support, because you don’t want to end up in jail yourself, or simply because the law says so? How important is the fact that the law demands or bans something to you, when thinking about whether to follow that law? Some legal philosophers argue that there a general moral obligation to obey the law- that the fact that a law demands certain behaviour should be morally important to us regardless of what the law actually says.
Others argue that the law itself makes little difference morally and that we will often make decisions about whether to follow the law for practical reasons, or for moral reasons related to the behaviour demanded. Even some of the keenest law students will think they are justified in ignoring the occasional law in a situation that won’t have any effect on anybody, or follow the law for reasons other than simply because ‘that is the law’. Our own moral and practical judgements are often relevant to obedience to the law, and if a law does not reflect a moral consensus in society or coordinate behaviour in a helpful way then it may be ignored as unnecessary or irrelevant if citizens know they will not be caught breaking it.
The existence of a general obligation to obey the law is one of the ‘big questions’ in legal philosophy, and is bound up in what your definition of ‘law’ is. This article intends to map out some of the key elements of this question, and put it in the wider debate about the nature of law, which is the really central question in jurisprudence (legal philosophy).
Why does the existence of a general obligation matter?
It might seem like on a practical level this is an irrelevant debate. Most people don’t kill others because that would be immoral, not because it is illegal or because they don’t want to go to jail. Or we trust the government to make the right decision. So perhaps it wouldn’t seem to matter whether we have a general obligation to obey the law, since most people obey most laws most of the time. In any case a general obligation would still leave you with the possibility of justifying specific breaches of the law, such as driving above the speed limit to get a sick friend to the hospital.
On another level, whether there is or is not a moral obligation to obey the law, we are still subject to it. As Austin wrote:
“Now, to say that human laws which conflict with the Divine law are not binding, that is to say, are not laws, is to talk stark nonsense. The most pernicious laws, and therefore those which are most opposed to the will of God, have been and are continually enforced as laws by judicial tribunals. Suppose an act innocuous, or positively beneficial, be prohibited by the sovereign under the penalty of death; if I commit this act, I shall be tried and condemned, and if I object to the sentence, that it is contrary to the law of God, who has commanded that human lawgivers shall not prohibit acts which have no evil consequences, the Court of Justice will demonstrate the inconclusiveness of my reasoning by hanging me up, in pursuance of the law of which I have impugned the validity.” (1)
Of course, there is a difference between a moral obligation and what you are legally required to do or will be punished for (not) doing. In a morally unjust legal system, you may well find yourself being punished for doing things that are morally right, but that does not mean that you should not do the right thing. The question of what to do when faced with morally unjust laws is not the important focus of this debate however, since even those who believe in a general moral obligation to obey would say that there is no obligation to support an unjust legal system or unjust institutions. The issue here is about how we should view the law from a moral perspective; whether law in itself is generally a good thing and that we should follow its rules so as to support the general institution of law.
There are other grounds of argument for such a duty than upholding just institutions, which will be seen below. But the general idea in favour of a moral obligation to obey the law is that in most cases we should assume that because law is generally good, we should follow individual laws unless they are particularly unjust or there are special moral circumstances for breaching it. This is a question about what law is and does, and what attitude we should have towards the law. Should we be sceptical about individual laws, or should we assume that they are generally right and to be followed? Perhaps this question isn’t important on a practical level, but it is a central one philosophically. And it will determine our approach in the ‘traffic light’ style cases, though some would argue that they don’t matter.
What would a general obligation look like? Ground clearing.
First, we need to be clear that the focus is on a prima facie moral obligation to obey the law – on face of it we should obey the law, but in certain situations we may be morally justified in breaking the law. Raz gives the example of stealing medicine for an ill tourist who has no English language skills or right to medical care (2). The assumption is that we’re talking about generally just legal systems, although of course we could have a long debate about what constitutes a just legal system. Communists and Thatcherites could have a long debate about whether a legal system that distributes property in a way largely based on family links and allows workers to be paid less than the value of their work ought to be supported!
Hopefully by now it is clear that this question is going to matter most in a generally just legal system, in situations which people feel morally indifferent or torn about but the law demands certain action or non-action. Does the fact that a law exists tip the balance?
Groundings for a moral obligation
There are a few ways in which a moral obligation to obey the law might be argued for.
– By living in the state and taking the benefits of a legal system (protection of property, a free education system) we implicitly consent to follow the law. Of course, Bix notes that we can ask whether we have really consented to our legal systems in any meaningful way (3). Does not leaving the country mean you consent to living under its laws, or do you not have the money to leave? Or do you just want to stay with your family? We can also ask whether such consent is enough to agree to a whole legal system- we might say that this is an unfair deal, especially if there is a sudden change in government power or policy but also because whilst we might find a legal system to be generally just there may be specific laws we disagree with. Are we bound by the whole lot?
– Alternatively we could say that because of the benefits we receive from the legal system, out of gratitude we ought to meet its demands. This however suggests that in exchange for benefits we perhaps didn’t ask for, we ought to do everything the law demands. As Bix points out, simply because our parents brought us up doesn’t mean that they have a right to determine our whole lives for us (4).
– We could instead think about the consequences of not obeying the law; Hobbes’s argument that we may end up in a state of anarchy. However, since we have already seen that in most cases our moral views or a practical reason such as fear of punishment will ensure we follow the law, this might not necessarily be true.
More promising is Honoré’s argument that what matters in the difficult cases left is the presumption you start from. If we assume we do owe a duty to obey a morally indifferent law (the traffic lights at 3am) we are unlikely to find an important reason to disobey it – you’ll only be a minute later home, after all. From the other side however, without a starting point of an obligation to wait at the traffic lights there is no strong reason to wait, since there is nobody around. It is better to assume that there is an obligation to obey the law so that more laws are followed. In the cases we are thinking about though, does it make a difference whether they are followed or not? Does it really matter if everyone ignores traffic lights on empty roads at 3am? Raz also points out that very few of us are really important enough that our disobeying a law is going to make others think that there is no need to follow the law (5). The Pope should keep his vow of chastity, and the Prime Minister ought not to hire illegal immigrants, but the rest of us do not influence people’s decisions whether to follow the law or not.
– Another grounding for a general duty is that we should support just institutions. Finnis argues that the law presents itself as a ‘seamless web’, and that we cannot pick and choose between which laws to follow (6). This is perhaps doubtful – do we not draw a distinction between breaking a traffic law and complete anarchy? And as Raz points out, some terrible violations of law only bring the rest of the community together in considering the law to be important, so sometimes breaking a law even in a horrific way will not bring the whole legal system crashing down – it makes it stronger (7).
– A last way of thinking about this is in terms of reciprocity; that because everyone else obeys the law we ought to as well. If everyone else gives up their right to pollute water, punch people who annoy them and take property from others then we ought to do the same out of fairness to the sacrifices they have made. In many cases this argument is a strong one, such as not polluting- we expect everyone to go along with the agreed-upon scheme. This might not be the case in situations which we think obedience is more about morals than community agreement though, such as not punching people, or about keeping ourselves out of trouble such as filling out tax reforms correctly.
Raz’s objections and the positivist conception of law
Joseph Raz’s objections to the idea of a general moral obligation to obey the law have been scattered through the discussion above. In essence, he says that the fact that a law exists is not morally significant on its own and that no moral obligation to obey the law is grounded simply in the fact that a law exists. We may morally agree with a law or we may wish to avoid punishment, and we may obey a law because we know that it coordinates behaviour in a certain way even if that is not the best way to deal with the coordination problem – you may think roundabouts are better than traffic lights but you still follow traffic lights – but we are often thinking about the underlying practicalities or morals. We might well decide that on most occasions the law will know better than we do, and decide to make a policy of following the law except on areas where we might know better. A boiler engineer might not do a full safety check on his or her boiler as required by law because he or she knows that that make of boiler usually only breaks down in certain ways, for example. Or we might develop respect for the law in such a way that we decide to uphold it rather than trying to undermine it. However, this all happens at a level of thinking about moral and practical reasons for obedience rather than taking the law at face value – even where you decide to generally do as the law says you have half an eye on what each law is trying to achieve (8).
Raz’s view on this issue in part comes from his position as a legal positivist– somebody who tries to set the criteria for something being a valid law as separate to any questions of the moral value of a law. Law is not necessarily moral to positivists; whilst a Constitution may set moral limits on what kinds of laws can be passed a legal system which sets no such limits is still a working legal system with valid laws. For this reason we should be sceptical about a moral obligation to obey the law because at face value we do not know if a law is moral or not- something being law does not automatically mean we can assume it is valuable or correct.
In contrast, natural lawyers take the view that law is generally a morally good thing and laws are generally just, in part because of the stricter requirements they put on a legal system. If law is generally good for people then it makes more sense to say that we are morally bound to obey the law because we are upholding something which is generally useful and just (9).
The two schools of thought (and this is a big simplification of the very many views present in legal philosophy!) described above may well agree on what is morally right in an urgent situation where someone breaks the law. The dispute is about the general starting point when we are faced with a law demanding or banning X, a starting point which is in part dictated by what we think law is and what it is for.
Back to the traffic lights
The traffic lights example described at the beginning of this article is a favourite of legal philosophers. Traffic lights exist to help us coordinate our behaviour on the roads, so that we cause the fewest accidents possible. The problem of coordinating our driving does not exist at 3am because there is nobody to crash into. Nor are there any police officers to catch and punish us, or anyone else to see the law-breaking and decide that they would also like to stop obeying the law. In short, running a red light at 3am is not going to harm anyone and it is certainly not going to start a revolution. It demonstrates the difficulty of finding a general moral obligation to obey the law, because so many people would not consider this to be immoral behaviour when we know the law exists for everyone’s protection but there is nobody around to be harmed. We think beyond the law to its reasons for existing, and decide that at 3am we can make a better decision on whether ignoring traffic signals endangers anyone.
However, if the fact that a law exists makes no difference in the case where other moral or practical reasons don’t exist for action one way or the other, can we really say there is a moral obligation to obey the law, even at face value? Then again, is it dangerous, wrong or unfair to say that we are not morally obliged to follow the law simply because it is the law? That is a question that everyone must decide for themselves, and whatever we might like to think we would say our true opinion will best be shown at 3am at an empty crossroads.
(1) John Austin, The Province of Jurisprudence Determined (Cambridge University Press, 1995)
(2) Raz, The Authority of Law (Oxford University Press, 2011, 2nd edn)
(3) Bix, Jurisprudence: Theory and Context (Sweet and Maxwell, 2009, 5th edn)
(4) Ibid. The parenting analogy originally came from Plato
(5) Raz, ibid.
(6) Finnis, Natural Law and Natural Rights (Oxford University Press, 2011, 2nd edn)
(7) Raz, ibid.
(8) This is a summary of the discussion in Chapters 12 & 13 of The Authority of Law, ibid.
(9) See Finnis, Natural Law and Natural Rights (ibid) at Chapter 11