Law and Moral Obligation

Here and at Volokh, Ilya Somin and Mike Rappaport have been conducting a fruitful exchange over the extent of individuals’ moral obligation to obey the law, but the debate should not obscure the deeper and important philosophical ground on which they apparently agree: a shared assumption that the duty arises from something like an individual utility function. Their dispute seems to pertain to whether the individual should deploy his or her moral calculus at the personal (Somin) or systemic (Rappaport) level. The tougher question is whether any society so conceived and so dedicated—namely, one in which individuals calculate their moral obligation to obey the law as atomized individuals—can long endure.

Using speed limits but also other arbitrarily enforced and meddlesome regulations as illustrations, Somin identifies a morally weak obligation to obey the law whereby “most people believe it is all right to violate [these rules] in cases where there is no significant harm to others.” Even a strong moral presumption for obedience could be overcome by “extremely powerful countervailing considerations” for the individual. Rappaport counters that a functioning legal system—i.e., one in which the law is followed—“operate[s] to the benefit … of the great majority of people.” From here, Rappaport sparks an interesting conversation on whether speed limits are a forceful illustration of Somin’s underlying claim.

Fair enough, as are the consequent replies—all a genuinely fascinating debate. But it proceeds from an assumption that the obligation to follow the law is grounded in its utility to individuals or, in the case of Somin’s weak version, the harm of breaking the law to other individuals. Somin and Rappaport disagree, if I correctly understand, on whether the individual should be thinking individually or systemically.

But should the individual be thinking politically? One function of the law, classically understood, is not merely to augment the utility of individuals—indeed, it seems odd to use the word “moral” to describe a calculation essentially arising from self-interest in the first place—but also to achieve a shared vision of community in which, on Aristotelian premises, the individual flourishes. Successful political societies are bound not merely by webs of utility but by shared traditions, histories and aims that encompass liberty but understand it in the ordered tradition of Cicero, Burke or the American Framers.

In this context, the individual’s obligation to obey the law may arise from his or her freedom to participate in its formation or his or her acceptance of its protection. This is Socrates’ case for refusing a jailbreak in the Crito. It is also the case for majority rule suggested by James Madison or, more recently, articulated by Willmoore Kendall. It sees the individual as politically formed, situated and obliged. The individualistic conception that Somin and Rappaport suggest seems wholly apolilitical in the sense that politics has classically been understood, and as such it seems a thin gruel for sustaining political community.

Reader Discussion

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on April 21, 2014 at 11:42:33 am

If we lay aside for the moment whether the example concerns compliance with actual Law (such as determines the nature of killing) rather than compliance with particular Rules of Policy, this approach by Professor Wiener takes us in a more meaningful direction. However, it also takes us into questions of "analytical" philosophy.

The first question arises from the use of the term "moral obligation."

What is (are) the element(s) required for an obligation to be "moral?"

Is the "moral sense" the individually perceived sense of "right and wrong;" the "ought and ought not" that motivates individual actions and constraints in individual conduct; or is it socially conditioned behavior?

If it is that "individually perceived sense," how does that sense come to be formed in individuals; innately, or by acculturation and association, or by combinations of effects?

We proceed to the next question of what gives rise to any obligation (creates a demand for specific action or constraint), both in the first instance of the individual, and, more broadly, in the relations within a social order.

There is much more to be said, particularly on how "morality" in a social order comes to be formed from a commonality of recognition, acceptance and performance of particular obligations by a sufficiency, in degree and numbers, of the members of that social order. This latter prospect is what makes possible structures of Law and legal systems (for determination of such things as the nature of killings). That prospect also plays a role in the development of Rules of Policy.

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R Richard Schweitzer

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