Why Should We Obey the Law?

George Klosko

• Publisher: Polity
• Year: 2018
• Print ISBN: 9781509521210, 9781509521203
• eBook ISBN: 9781509521241
• Edition: 1
• Topic: Philosophy
• Subtopic: Political Philosophy

Whether we should obey the law is a question that affects everyone's day-to-day life, from traffic laws to taxes. Most people obey out of habit, but the question remains: why are we morally required to do so? If we fail to obey, the state may enforce compliance, but is it right for it to do this, and if so, why?

In this book, George Klosko, a renowned authority on political obligation, skillfully probes these questions. He considers various prominent theories of obligation and shows why they are unconvincing, contending that only an approach that interweaves multiple principles, rooted in "fair play, " is fully persuasive.

Klosko develops the fullest statement of his own well-known theory of political obligation while providing a clear overview of the subject. The result is both an essential introductory text for students of political theory and philosophy and a cutting-edge, original contribution to the debate.

1
Introduction

You are walking down the street. A gunman points a pistol at you, and demands that you turn over your wallet. Chances are you will comply. In such a case, it is clear that you are obliged to surrender your wallet. By this, we mean that the consequences of not doing so are sufficiently unpleasant to elicit your cooperation. Consider an alternative case. Your government institutes an income tax and demands that you pay it. In this case too, chances are that you will comply. Your government has the means to force you to pay and to punish you if you do not. In this case too, you are obliged to cooperate. But this case differs in a fundamental way. If you are a citizen of the relevant state – or perhaps an inhabitant of the relevant country – it may well be that you should comply, that, unlike with the gunman, it is right that you do so. Put a bit differently, in this case, your government has a moral claim that you obey its commands. If this is true, then you are not only obliged to obey but also have an obligation to. If paying taxes is the law of the land, then you should obey the law and pay your taxes (see Hart 1961, 80–8).

The subject of this book, as indicated in its title, is reasons why people should obey their governments, or obey the law. The two examples in the previous paragraph differ in regard to the non-existence or existence of a moral basis for obedience. Our main questions concern the nature of this moral claim.

Political obligation, as the subject is generally referred to, is a practical topic that affects all of us and throughout our lives. Governments are constantly making laws and demanding that people obey. Confronted with a particular tax, the selfconscious citizen should ask herself whether she should pay it. The law’s requirement that she do so is a factor in her practical reasoning, to be weighed against and considered along with others. The law’s demands may be relatively trivial: to cross the street only at the crosswalk, or to wait for the walk sign before crossing. But far more onerous demands are possible: to pay income taxes that can amount to a substantial portion of one’s earnings; in the extreme case, to provide military service that could cost one’s life. In these and other instances, governments have means to enforce compliance. Ordinarily, the citizen will be obliged to comply. But once again, we should inquire into reasons that could make it right for her to do so. This large question encompasses numerous sub-questions: why a government has a right to its subjects’ obedience; over whom such a right holds; when it holds and when it ceases to hold; the circumstances responsible for the latter; one’s recourse if one is no longer obligated to obey; and many others. These questions have been central to political philosophy since the origin of the discipline. Greater and lesser thinkers have discussed them endlessly, from different perspectives, coming to sharply different conclusions. At the present time, scholars disagree, and consensus is not in sight. But, once again, these are questions with which all of us must deal, and I will attempt to provide answers. Given disagreements between scholars, I do not expect these answers to meet with general – or perhaps even widespread – acceptance. But I will attempt to present a plausible position – although one that also differs in important ways from many others in the literature.

In ordinary discourse, an “obligation” is a moral requirement that someone imposes on herself. If I promise you to take you to the movies, this requirement, created by the promise, is binding on me because I made it. Presumably, had I not made the promise, I would not have an obligation to take you. However, the term “obligation” may be used in a broader sense, in which it is roughly equivalent to “duty,” with both terms referring to moral requirements that may or may not be self-imposed. Accordingly, the term “political obligation” is also used in a somewhat broad sense, denoting moral requirements to obey the law, whether or not they are self-imposed. Moral requirements to obey the law can have different bases. What I view as the most important will be discussed below.

Although scholars disagree about a great deal in regard to political obligations, they are generally in agreement on certain features a successful theory of political obligation should possess.¹ It should be “general,” or account for the obligations of all or most inhabitants of the given country. Because political obligations are ordinarily owed to one’s own country, an adequate theory should account for this dimension of “particularity.” In addition, political obligations should be “comprehensive.” They should explain moral requirements to obey all laws – or all legitimate laws – of the country in question.

Because in the liberal tradition, political obligations are generally viewed as of limited force, a successful theory should account for this. Although a political obligation should be viewed as a strong reason to do what the obligation requires, this reason is not necessarily conclusive or decisive. This feature of political obligations is indicated by calling them prima facie or pro tanto, with these terms indicating that the obligations in question can be overridden by countervailing considerations. This is a feature of obligations in general, besides political obligations. For instance, assume that Anne promises to meet Ben after class. On the way to the meeting, she sees Charles, who is having a heart attack. By rushing Charles to the hospital, she could save his life. Clearly, under these circumstances, her obligation to Ben is outweighed by stronger moral considerations, and so Anne would be wrong to keep the appointment. But although the moral requirement generated by the promise is outweighed by a duty to save a life, this does not imply that the former was not a genuine obligation. Evidence that it was a genuine obligation is the fact that Anne would owe Ben an apology for missing their meeting. But evidence that she had done the right thing is that Ben would be wrong not to accept her apology. Similarly, in regard to political obligations, while they ordinarily constitute strong reasons to obey the law, they too can be overridden by other factors, in which case it could actually be wrong to obey.

An additional important feature of political obligations is “content-independence.” This amounts to obeying the law because it is the law, instead of, or along with, other reasons. In reasonably just states, the law generally overlaps with morality. What it is moral to do is supported by law; what is immoral is opposed. Thus there are generally good reasons to behave in accordance with law. For instance, there are good reasons not to assault other people, while the law makes assault illegal and subject to penalties. And so, if you refrain from assault, are you obeying the law or merely complying with it? In other words, are you obeying the law because it is the law or for other reasons? Scholars generally hold that a successful theory of obligation should explain why the law itself claims our obedience. An implication of content-independence is that there may be no direct relationship between the content of given obligations and the moral reasons why they bind (Hart 1958, 1982). In this respect, political obligations resemble promises. If I promise to give you $10, the requirement to pay this amount is created by the promise and would not exist otherwise. If I had promised to give you $5, or $50, I would owe these amounts. Similarly, if the government institutes a sales tax rather than an income tax, your obligation will be to pay that. If it decides on a consumption tax, then your obligation will lie in that direction. In these cases, the subject’s obligations do not depend on the relative merits of different forms of taxes but on the laws that have been enacted.

Construing political obligations as content-independent has a long provenance, dating back at least to the time of Thomas Hobbes (mid-seventeenth century). According to Hobbes: “Command is where a man saith, Doe this or Doe not this, without expecting other reason than the Will of him that sayes it” (1991 [1651], 176). Important aspects of political obligations follow from this view. Since moral requirements to obey laws depend on the means through which they are made rather than their content, legislators have great discretion in regard to areas in which they can legislate, and are able to establish obligations to obey all the laws they make. This reasoning is bound up with the comprehensiveness requirement noted above.

If we take a step back and consider all these requirements, we will see that they comprise a demanding list. A successful theory should explain the moral requirements of all or virtually all inhabitants of a given country to obey all the legitimate laws of their country. These requirements should be of limited force and should be content-independent: there should be reasons why subjects should obey the law because it is the law. At the present time, difficulties satisfying these requirements have called into question the existence of a suitable theory of obligation. As we will see in subsequent chapters, I believe these difficulties raise questions about the requirements themselves, whether a successful theory should be required to satisfy all of them.

Theories of political obligation are closely bound up with basic beliefs about society and government. People in Western societies generally believe that governments are necessary, that they perform services citizens need. These include providing law and order, defense from outside aggression, and the innumerable things that modern governments do in order to improve the lives of their citizens: for example, providing social welfare programs, health insurance, public parks, universities, and museums. In the history of political theory, the most celebrated account of life without government is that of Hobbes, most famously expressed in Leviathan. Without government, according to Hobbes, human beings experience a “war of all against all,” in which the life of man is “solitary, poor, nasty, brutish, and short” (Hobbes 1991 [1651], 89). While I believe that assumptions concerning the need for government are widely if not universally held in modern Western societies, there are dissenters, mainly anarchists of some stripe or other. Their view has significant consequences for political obligations. According to anarchists, we could get along tolerably well without government, better in fact than we do with it. They therefore argue against moral requirements to obey government – with some going further and contending that we are required to fight against it. If government is in fact not necessary, it seems unlikely if not impossible that we can develop convincing arguments why people should obey it.

Throughout this volume, I reject the claims of anarchists and assume that the state is necessary (see Klosko 2005, chap. 2). To defend this position, one need not go to the extremes of Hobbes. As James Madison says in the Federalist Papers (#51), if men were angels, government would not be necessary. But men are not angels, and so must be constrained. This is so, even if we assume that people are basically reasonable and not the ruthless creatures of Hobbes’s imagination. Even if people are basically well meaning, it is frequently in their interest to pursue their own good at the expense of other people. Familiar examples concern public goods, which people will receive whether or not they pay for them. And so they have incentives not to: for example, not to pay their taxes, if they can get away with this. Even if incentives align, in a diverse society, people will disagree about the best way to pursue cooperative projects, which makes government necessary to arrive at solutions – and democratic practices for decisions to be made fairly. In addition, psychological research has established that people are liable to cognitive errors. These are discussed briefly, in Chapter 4. For instance, “self-enhancement bias” leads people to overestimate their own capabilities and to underestimate their own incompetence and other limitations. This and additional similar tendencies have been thoroughly documented empirically. Accordingly, even if people are well meaning, their judgment is often flawed, and it is necessary to subject their reasoning to the law.

A second, related, issue is more controversial: how well government can function if people do not have political obligations. I believe that most people believe that, like government itself, political obligations are necessary and that they have obligations (esp. Tyler 1990; Klosko 2005, chaps. 9–10; cf. Green 1996). Evidence of people’s beliefs on this question is scant, but common practices support the view that most people believe that governments require willing cooperation from those they govern, that governments ruling through force alone could not provide the services that people require. For example, consider payment of income tax in the United States. Compliance is largely voluntary. Studies show that more than 80% of people comply voluntarily (IRS Oversight Board n.d.). It seems unlikely that so many people would behave in this way unless they thought it was their duty to do so. Tax payments are of course not entirely voluntary. The Internal Revenue Service oversees the tax system and enforces compliance. But because of its limited resources, the IRS audits only a small percentage of returns. If fear of being punished for non-payment was people’s sole reason for compliance, we may presume that far fewer people would pay their taxes. Many functions of government involve coordinating the behavior of large numbers of people. Could these functions be performed adequately if people believed they did not have moral requirements to cooperate with government’s command...

Table of contents

• Cover
• Copyright
• Acknowledgments
• Dedication
• 1 Introduction
• 2 Consent Theory
• 3 The Principle of Fair Play
• 4 Multiple-Principle Theory
• 5 Limits of Political Obligation
• References
• Index
• End User License Agreement