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Law and Moral Obligation II: A Response to Ilya Somin

Ilya Somin has posted an essay at Volokh that narrows that gap between our views on the source of the moral obligation to obey the law—I certainly agree, for example, that there are exigent circumstances in which one might be not merely entitled but obliged to disobey—but our underlying disagreement persists: whether the calculation itself is an individual or a political one.

Ilya denies my assertion that his calculus is one of “atomized individuals” pursuing self-interest, noting, for example, that I in fact acknowledged his observation that potential harm to others was a valid factor in assessing the extent of one’s obligation to obey the law. But this affirms my point, which is that on his reasoning the authority still rests with individuals, and that—whatever factors they may take into consideration, which may indeed be altruistic or other-regarding—they make these decisions in isolation rather than as public members of a political community.

Ilya writes to the contrary:

[I] do not in fact advocate each individual relying solely on his unaided judgment in deciding whether he has an obligation to obey a particular law. He or she can also rely on social norms, moral principles, or defer to the views of those more knowledgeable about the relevant moral tradeoffs. The claim that people must either obey all laws or rely solely on their own personal judgment is a false dichotomy.

Had I relied on such a dichotomy, I would concede the point. But I don’t think I did, nor do I think that’s the choice. Rather, the choice is between calculating individually and thinking politically. By this I mean—and here, I suspect, is the nub of the disagreement—that the political community (a) exists qua community, transcending the individuals comprising it, and (b) asserts claims on its members in that capacity. Even to the extent Ilya’s individuals reason morally, they are still a web of isolated individuals, each calculating the impact of their behavior on other individuals—they do, in fact, rely “on their own personal judgment” as to whether to obey the law, even if that judgment is informed by the opinions of others—not reasoning as a political community with an existence as a community.

To be sure, Ilya is certainly right that no such community meaningfully operates at the national level, or at least one cannot seriously vindicate one’s membership in it with 1-in-60-million odds of casting a decisive ballot in a presidential election. I suspend judgment on the presidency-centric assumptions evident in the example; a more constitutionally sound one would seem to be the same figure for a Congressional race, but I grant that the odds would still be infinitesimal. But notice again the individualism—a word I deploy descriptively and that I assume Ilya would not regard as an epithet: One’s participation is meaningful if one’s vote is personally decisive, not as part of a shared deliberative process in which one’s desires must be accommodated to those of others.

Still, Ilya identifies a serious problem with the classical argument as it is mapped onto contemporary politics. That argument in contemporary context would have to assume something like a functioning American constitutional order, which depends heavily on decentralization through federalism. The moral force of participation is enhanced at the local level but diminished when it is stretched to the point of impersonality. The moral force of obedience is further undermined when rules become unknowable or their enforcement becomes arbitrary. Here I assume Ilya and I can agree.

We also agree that individuals are not merely entitled but morally bound to disobey flagrantly unjust laws like the Fugitive Slave Act. But I would resolve these situations on Burkean grounds: as prudential exceptions from which general rules are not to be drawn. That is, they do not prove a generalized individual entitlement to determine in isolation whether to obey the law based on one’s own moral views. To make a rule of that exception is inescapably to dissolve politics, which depends on a community, once consented to, being coercively bound. (Ilya’s argument that consent, including tacit consent, is not a meaningful device in the contemporary setting—due among other factors to the difficulty of emigration—seems to me to lead to the conclusion that politics as I understand it is untenable, a destination to which I am unwilling to follow.)

In practice, to be sure, our disagreement is probably narrower than my initial post suggested. At the theoretical level, though, it remains an important one. It distills to the difference between Burkeanism and libertarianism. On that description of the dispute, if not its resolution, I also suspect we would agree.

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