Responding to Greg Weiner on the Duty to Obey the Law

Greg Weiner has raised various questions about my (and Ilya Somin’s) views about the obligation to obey the law. I have several responses to his two posts.

First, Greg views my position as claiming that an individual should make the decision whether to obey the law based on an “individual utility function.” But that is not my view. I believe that the decision whether to obey the law is based on the effects of that decision on people throughout the nation. If one wants to view in terms of utility functions (rather than based on a different notion of welfare), it is based on the summation of different utility functions.

Second, Greg believes that I think that individuals should make the decision on their own. But that is not necessarily true either. I generally believe, based on my indirect consequentialism or two level theory, that people should follow moral rules rather than calculating what action to take in particular circumstances. One question I have about the duty to obey the law is whether there are such moral rules that are applicable to it.

Third, in my initial post, I mentioned the idea that individuals have an obligation to follow the law under a reasonably desirable legal system. This was an attempt to come up with a kind of moral rule to govern whether to follow the law. Thus, it is not a question of an individual calculating what to do in particular cases, at least most of the time.

Fourth, Greg objects that one should look at this question politically. Greg appears to believe that the decision whether one should follow the law should depend on “his or her freedom to participate in its formation or his or her acceptance of its protection.”

I believe that these may be relevant factors, but I don’t see how one can ascribe to them the force that Greg appears to. That someone voted in an election does not create any significant reason to be bound by the law. The key question is whether the overall legal system is a favorable one generally for the people and how one’s disobedience might help to undermine that system. I suppose that one might have an obligation to follow an arrangement that one consented to or in other small numbers situations, but certainly not simply based on voting, whether at the national, state or even city level.

Finally, Greg does seem to believe that people should have the power to decide whether to follow the law, as he would allow people not to follow seriously unjust laws such as the fugitive slave law. Greg wants to read this as a rare exception, but I am not so sure. While slavery was certainly a monstrous injustice, it is not clear that the failure to follow this law – at least when done by government officials – was the right thing to do. If the North did not follow the law, then the South might withdraw from the union – the failure to enforce the law was one of the principal justifications the South gave for secession – and that might lead to even worse consequences for slaves. (In the event, the slaves were benefited by the Civil War, but had the North lost, slaves might have been greatly harmed.)