Smith, Malcolm - The Duty to Obey the Law

2014/05/23

A Companion to Philosophy of Law and Legal Theory, 2nd edition, Dennis Patterson ed.

This paper revisits previous discussions about the moral duty to obey a community or society's laws. Author starts with a brief history on the subject and makes the case that the disagreement over the duty to obey comes from differences in meta-ethical approaches.

The history of a prima facie duty to obey the law came with the development of the prima facie moral obligation, as pioneered by WD Ross. Ross's meta-ethics was a form of intuitionism, a theory that holds that humanity had a moral faculty and that exploration and elucidation of the judgments it issues would turn up moral values. The trouble is that Sidgwick had forcefully argued that no moral value didn't admit of exception. Thus Ross tried to formulate a "prima facie" moral value: one that "all things being equal" has moral authority, but could be overridden by some other compelling principles or circumstances. Ross put things like promise keeping, beneficence, and, without much argument, obeying the law, into the prima facie category. Later, other intuitionists rejected the duty to obey as even a prima facie obligation (pg459), arguing that:
1. law may have authority, but that doesn't necessarily compel a duty to obey
2. the thought that all of society's participants took some sort of oath of duty is a fiction 
3. the law is not always coextensive with moral obligations
4. the obligation to obey moral laws is redundant due to the obligation obey morality

Author believes that the state of play is that few intuitionists still try to find a prima facie duty to obey, but instead those who argue for it are not intuitionists. Instead, they are "catechists", trying to formulate moral principles that, if followed, would be the best for humanity (pg460). Author discusses a prototypical example of the work of John Mackie in "Ethics: Inventing a Right and Wrong". Mackie does not believe in objective morality but instead goes about making a set of moral principles that he argues will contribute to human flourishing. Using this meta-ethical stance, Mackie argues that the duty to obey the law is a "reciprocal norm" (pg461).

Author considers the intuitionist moral theory to be a species of a meta-ethical view of "Commonalism", which argues, loosely: (pg463)
1. Moral intuitions are the source of moral authority, but need to be clarified and de-personalized
2. Moral knowledge is universal or near-universal
3. The work of moral theorists is to describe moral judgment, not to invent it

The trouble with the duty to obey is that it shows the conflict between Commonalists and Catechists in the meta-ethical sphere. Author promises to argue against the Catechist method in further work, but briefly points out that the Catechist method departs significantly from other philosophies, which mostly seek to describe, not prescribe (pg464-5).