Obeying the Law Flashcards
(10 cards)
What are the different kinds of obligations that we may have to obey the law?
Political Obligation: A general moral obligation to obey the law of one’s state because it is the law not based on its content
Legal Obligation: A duty that exists within a legal system and is created and enforced by law
What is the argument of political anarchism?
Simmons
There is no general obligation to obey the law
We should only do as the law says if it happens to coincide with our moral obligations
* Weak political anarchism, there are no general political obligations, all subjects of all states are at moral liberty to treat laws as nonbinding
* PA as a whole consists of the rejection of various attempts at establishing a positive obligation
Wolff
There can be no obligation because this is incompatible with autonomy. We have a moral duty to follow our conscience based on autonomy and doing what the law says because it is the law goes against this
* Argues there must be direct democracy, in which every person votes on every issue
How does Raz reconcile the obligation to obey the law with autonomy?
Dependence Thesis: Directives issued by authority should be based on reasons that already independently apply to its subjects
Normal Justification Thesis: If a person would better conform to thier pre-existing reasons if she were to listen to person B as opposed to acting on her own judgement, then they hold legitimate authority over the other
Pre-Emption Thesis: The law then pre-empts personal deliberation, helping you better fulfill autonomous aims
- They may have an epistemic advantage (knowing more about the circumstances) and coordinative advantage (being better at solving coordination problems)
- In such cases, the law is a justified authority and obedience is morally required because it serves your deeper reasons
The Service Conception of Authority
What are some issues with Raz’s theory?
- How do we know whether we are in the scope of this person’s directives or not?
- The obligation is contingent, if we happen to be an expert on the topic then they are unlikely to hold authority over us (Endicott and the electrician)
- Would not generally apply to most laws and would depend on specific assessment of whether the law enjoys a comparative advantage
- BUT Raz’s theory better respects autonomy with individuals being free to assess the legitimacy of laws claims, respecting moral pluralism
How does Finnis’ account of a political obligation differ to Raz?
Both think the law has a co-ordination function, but for Finnis this is significant enough to create a political obligation
- Legal order creates a shared interest which gives everyone reasons to collaborate with co-ordination solutions
- The law is a seamless web, how we solve one co-ordination problem depends on other areas and therefore we cannot pick and choose
- Law is a moral enterprise aimed at securing common good, thus there is a political obligation to obey morally sound laws
What is the consent argument of the obligation to obey the law?
We obey the law because we have consented to, whilst everyone does not do this directly we have given tacit consent by choosing to remain within a state or receiving its benefits, such as owning a house or using the highways (Locke)
- Goes beyond what we normally understand consent to mean
- Equates benefit with consent, residence is not a sign of tacit consent
- Model is contradictory, consen it is required for obligation and everyone who lives in a state consents, but this would apply to people under tyranny which Locke himself rejects (Simmons)
What is the fairness / fair play account of obeying the law?
Hart: When a number of people conduct a joint enterprise and thus restrict their liberty, those who submitted have a right to similar submission from those who benefit from it
Rawls: If a scheme is mutually beneficial, just and only works if most people participate, then those who accept the benefits should follow the rules as it would be unjust for them to do so
What are some objections to the fair play theory?
Nozick:
- Imagines neighbourhood setting up a system of entertainment, one person provides each day
- If the condition of the benefits is not greater than the cost of participation then surely not
- If you benefit the least out of everyone are you obligated to do an equal amount
- The fact we are partially social products in that we benefit from current patterns and forms from people before does not create in us a general floating debt which current society can collect and use
How does Simmon’s attack Nozick’s response to fair play?
Argues he fails to distinguish between mere receipt and acceptance of benefits
- Nozick’s example involves non-participants, fair play specifies those who accept the scheme are bound
- However, if someone objects to a scheme but actually draws benefits from it secretly then they are a participant because they are free-riding
- Value of the benefit is not central, what matters is that the others sacrificed to make the benefit and the recipient chose to accept it
What does Zhu say about the principle of fair play?
The principle of fair play may be complied with in other ways
- Fairness theorists need to show not only that we have a duty to contribute but to contribute what the state commands (justificatory gap)
- So long as we are giving something back and this is accepted then we are still paying for the benefit received
- State could not have legitimate political authority because we could retain a right to choose the form of repayment
TOSI’S RESPONSE: Rules of co-operative schemes set the terms of fair repayment. Allowing beneficiaries to choose alternative forms of contribution would lead to unworkable schemes
