Challenges to Theories of the Obligation to Obey The

Introduction

The obligation to obey the law has been based on a number of theories in jurisprudence. These theories emphasise on the obligation to obey the law based on the notions of consent given by all to obey the law, fair play, and samaritanism. However, these theories cannot possibly avoid the problem posed by voluntarism. Voluntarism poses a problem for the complete acceptance of the theses under any of these theories. Voluntarism is a problem for consent theory because it is difficult to show how people can have legal duties under consent notion when they may not have actually consented to these legal duties, a problem which consent theorists seek to resolve through a resort to tacit consent or hypothetical consent. In the case of fair-play theory, the notion of having an obligation to obey the law because one is also benefitting from the law is put in a problem by voluntarism because it is not necessary that an individual may have actually accepted the benefit offered by the law. The requirement of a voluntary element poses a problem to the notion of obligation to obey the law because it is not possible to always satisfy the element of voluntariness; this has led to the contention that it is better to avoid the spectre of voluntarism and accept that individuals can be under legal duties even if these duties are not voluntarily acquired. This essay discusses the extent to which voluntarism poses a problem for the theories that posit obligation to obey the law and supports the argument that no theory can successfully avoid the problems posed by voluntarism.

The problem of voluntarism and the obligation to obey the law

The idea of voluntarism is at the fore of this discussion on obligation to obey the law because at the core of political obligation is the idea of moral obligation and not just legal obligation. It is difficult to deny that there is a legal obligation to obey the law, therefore, that question is hardly relevant in this context. Each society in the world has laws and there is a legal obligation to obey the laws. This includes political societies that are democratic in form and structure, like England, as well as authoritarian societies like Afghanistan under the Taliban, or purportedly democratic societies like South Africa in the apartheid period, where a significant membership of the society was subjected to arbitrary violence under the law and constitution of the state. In all these societies, the idea of legal obligation is not suspect and most would agree that those within the domain of these societies would be obligated to obey the law of the land.

The more important and core question when political obligation is spoken about is whether there is a moral obligation to obey the law. The element of morality of the obligation poses the dilemma of whether people should obey the laws that they do not agree with. Voluntarists would argue that for there to be an obligation to obey the law, there should be a voluntary subjection to the rule of the law, which may be given through consent or be based on the idea of fair play, or be thought justified on the basis of samaritanism. This poses the problem for all the theories that base the obligation to obey the law on moral grounds, but are not able to escape the problem of voluntarism, which is inherent in these theories.

Voluntarists like Thomas Hobbes, John Locke, and John Rawls, to name a few, base the obligation to obey the law on some voluntary act or consent on the part of the individual, which gives rise to such an obligation. It is argued that we have an obligation to obey the law because we have consented to it. The consent theory finds its roots in the social contract theory as espoused by Thomas Hobbes amongst others, where he argues that people entered into a social pact to obey the law because human life without such law was “nasty, brutish, and short”, and individuals devised a social contract (pactum subjectionis) by which they agreed to subject themselves to the absolute power and authority of the sovereign. The social contract is hypothetical in nature, and it is used to convey the notion that people have entered into the contract to obey the law in the state of nature, due to the problems in the state of nature, which necessitated such a contract. The problem with this approach to obligation to obey the law is that consent is tacit and hypothetical in nature; most people have not actually consented to obeying the law. The hypothetical and tacit consent is a possible response from the consent theory. The argument in this context is that had people been given the opportunity to consent, they would have done so in the state of nature, because it is reasonable to give such consent. This is the argument that is used by John Rawls. John Rawls argues that we have natural duties to obey the law and to support and further institutions that are meant to advance justice in the society. He posits:

This duty has two parts: first, we are to comply with and to do our share in just institutions when they exist and apply to us; and secondly, we are to assist in the establishment of just arrangements when they do not exist, at least when this can be done with little cost to ourselves.” John Locke too has used the notion of tacit consent to explain how the obligation to obey the law is based on the consent given to the obedience by those who choose to remain within the dominion of any government and enjoy the protection of the government as well as all that is offered within the dominion. This consent as per Locke is one of tacit nature, where simply because the individual chooses to be in a specific state or political community, he chooses to be bound to obey the laws of that state or community. This argument is not without flaws as the critique by Simmons effectively shows. Simmons has reacted to the issue of tacit consent that an individual may give simply by choosing to live in a particular political community as emphasised by Locke as a weak proposition because individuals may choose to live within a specific political community not just because they wish to, but also because in most cases, real individuals have very few alternatives to continue living in the community. To put it another way, Simmons argues that it is not appropriate to attribute tacit consent to an individual simply because he continues to live within a community because the individual may be living in the community because of no alternative but to continue living in the community. Simmons argues that: “For many citizens there are few acceptable options to remaining in their states and obeying (most) law, and for most persons active resistance to the state in in effect

“For many citizens there are few acceptable options to remaining in their states and obeying (most) law, and for most persons active resistance to the state in in effect impossible. And for none of us is there any option to living in some state or the other, all of which make (at least) the same core demands on us.”

Taking the example of the Apartheid, the above analysis of Simmons can be explained further. During the Apartheid era in South Africa, laws made by the South African government of the time were manifestly unjust to the Black population of the country. The argument that because the people chose to live in South Africa they had given their tacit consent to the laws, so they should be bound by such unjust laws, would be perverse. It would deny to the people the right to dissent from such laws and the right to not follow such laws as the actions of leaders like Nelson Mandela showed. Such leaders were jailed for their anarchist acts against the laws of the time, yet no one would doubt the manifest immorality of the laws and the morality of those who refused to follow them. If the question of political obligation is that of morality of obedience of law, then it may be said that there would be an obligation to not follow such law. Tacit consent would not save the obligation to follow such law. Simmons too has criticised the notion of a tacit consent. He argues that a tacit consent can be valid only if it satisfies certain conditions. First, people should be aware of that to which they are consenting. Second, people should be free to dissent and dissent must not be prohibitive in terms of cost. The other argument put forth is that of hypothetical contract or consent. Ronald Dworkin has criticised the notion of hypothetical contract, saying that a hypothetical contract is no contract at all. Dworkin’s critique is levelled at John Rawls’ hypothetical contract made behind the veil of ignorance.

It is also argued by voluntarists that the obligation to obey the law comes from the concept of fair play; since individuals have benefitted from the obedience of others to law, they are also under an obligation to obey the law. These benefits are derived from the arguments based on the state of nature. According to Hobbes, these benefits include protection and assurance provided by the sovereign. Locke argues that the benefits includes adjudication, resolution of differences:

“When a number of persons conduct any joint enterprise according to rules and thus restrict their liberty, those who have submitted to these restrictions when required have a right to a similar submission from those who have benefited by their submission.”

The problem with this approach is that the individuals may not have actually accepted the benefits or that even if individuals were given certain benefits, the law also exacted high costs. An example can be seen in the case of apartheid, which was practiced in South Africa and was part of the legal system that gave certain protections of the rule of law but also subjected Blacks to the arbitrary violence by the state and its agencies. This may bring one to the problem of accepting benefits. Can it be said that one has accepted benefits in a situation where benefits are forced upon one or only when benefits are sought and received willingly?

Simmons would argue that there is a difference between receiving a benefit and accepting it. In the case of South Africa, the benefit of the law was not sought and received but forced upon those who had no power of negotiating on whether they wanted the benefit that came with such high costs. Applying Nozick’s example of the public address system, one may argue that where benefits are forced upon one along with their attendant costs, one is not under an obligation to obey the law. However, a response to Nozick is provided by George Klosko, who argues that Nozick’s principal argument is based on a frivolous example of a public address system, whereas the benefits that are being supplied by the state are to be worth the recipient’s efforts in supplying them, indispensable for satisfactory lives, and have benefits and burdens that are distributed fairly amongst all people.

The South African case presents a situation where the benefits and burdens are not equally distributed; however, Simmons argues that even if the benefits and burdens are equally distributed, people are under an obligation to obey the law only if they have accepted the benefits of the legal system. One of the principal arguments that Simmons makes is that people are not really attached to the political community and they simple wake up in a political community and find themselves bound by the laws of the community that they have no active role in making. However, a response to this is provided by Dagger who argues that people grow into a political community and most of what people are, is also due to the community because as people come to realise the nature of the political community and the advantages that the community has to offer, they begin to take advantage of these benefits offered by the community, and in return must give their obedience to its laws. He notes:

“in growing into membership in the polity—we accept the benefits of the political order qua cooperative enterprise and undertake an obligation to obey its laws. No one of these actions is sufficient to establish our consent to the rules of the enterprise. But our continuing acceptance of the benefits that flow from cooperation places us under an obligation of fair play to the cooperating members.”

While the above argument may be justifiable on the basis of acceptance of benefits, the problem of those who are not accepting these benefits remains a problem of voluntarism.

The obligation to obey the law has also been based on the argument of samaritanism. The argument put forth by Christopher Wellman may be considered here.

Wellman argues that in the state of nature, laws are needed to secure peace and order, which may remind one of Locke’s argument for obedience to the law. Wellman says that laws can help resolve disagreements that are bound to occur in a state of nature, and this may be useful for maintaining peace and security. Wellman also justifies coercion that is involved in the application of this obedience to law by arguing that people have enforceable duties to aid others in peril and it is justifiable to coerce people to obey this duty as long as it does not put too much of a cost on the individual on whom the duty is being enforced. As others are also under similar duties to help this individual should peril befall him, this duty is justified on the basis of fair play. Based on these three principles, Wellman draws a general obligation to obey the law. Massimo Renzo criticises the argument put forth by Wellman saying that this Samaritan approach to duty is incompatible with the traditional notion of political obligation which sees obligation to obey the law as a prima facie duty for all citizens

Obligation to obey the law, as noted under the consent, fair play, and samaritanism theories, is diametrically opposed to the theory of anarchism, which promotes autonomy of the individual but emphasises on each individual doing what is just and honourable. Anarchists believe that the obligation to do what is right, just and honourable is more important than the obligation to obey law, which may at times be unjust and wrong. Anarchism does not sit well with the modern conceptualisation of law and rule of law; however, it does give importance to voluntarism, more so that voluntarist theories that base the notion of obligation to obey the law on voluntary concepts like consent and fair play, but fail to respond to the problem of voluntarism. It brings us back to the point that there needs to be a movement towards avoiding voluntarism altogether because the notions of voluntarism will never entirely satisfy the obligation to obey law. It may also be noted that voluntarism is embedded in English common law, which is inherently hostile the concept of collective rights and duties, as can be seen in the jurisprudence developed by English judges on the sanctity of the individual contract.

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Conclusion

The theories on obligation to obey law have failed to respond adequately to the problem of voluntarism that is embedded in the theories. These theories sought to make voluntary acceptance of law as the basis for the individual’s obligation to obey it. However, the notion of voluntarism as a basis for obedience of law is flawed because it can never be satisfied in its entirety. Therefore, it would be reasonable to say that no plausible theory for the obligation to obey the law can successfully avoid the problem posed by voluntarism.

Bibliography
Books

• Dagger R, Civic Virtues: Rights, Citizenship, and Republican Liberalism (New York: OUP, 1997).
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• Locke J, Two Treatises of Government (Cambridge: Cambridge University Press 1963).
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• Rawls J, ‘Legal Obligation and the Duty of Fair Play,’ in S. Hook (ed.), Law and Philosophy (New York: New York University Press 1964).
• Rawls J, A Theory of Justice (Cambridge: Belknap Press 1971).
• Simmons AJ, ‘Natural Duties and the Duty to Obey the Law’ in Christopher Heath Wellman and John Simmons (eds), Is There a Duty to Obey the Law? (Cambridge University Press 2005).
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Journals

• Hart HLA, ‘Are There Any Natural Rights?’ (1955) 64 The Philosophical Review 175.
• Renzo M, ‘Duties of Samaritanism and Political Obligation’ (2008) 14 Legal Theory 193.
• Simmons J, ‘Tacit Consent and Political Obligation’ (1976) 5 Philosophy and Public Affairs 274.
• Wellman C, ‘Toward a Liberal Theory of Political Obligation’ (2001) 111 Ethics 735.

Websites

• Green L, ‘Legal obligation and authority’ (Stanford 2003), accessed