Do we have a prima facie obligation to obey the law?
The need for obedience to the law as obligatory, is a cornerstone for a society to function as the world exists. Any political body or sovereignty requires its citizens to obey the social contract put out before them for there to be order. This order would create safety and prosperity for citizens who are bound to said law. The question of this essay is to focus on the need or obligation of every citizen to obey all laws that it’s governing body decrees. Do we obey because we agree with the law, or for the sake of obedience?
First and foremost, any society needs a means of creating and disseminating its legal practices. In the United States laws are supposed to be created by an elected body and knowledge is passed onto its citizens by press, word of mouth, enforcement, or legal councilors. Citizens in this country are in turn, are obliged to follow the rules whether they be set by executive order, congressional vote, or judicial precedent. We must ask ourselves: Is this the most effective system of jurisprudence?
One of the first problems that might be encountered is the sovereignty principle. This principle establishes that political authority is derived from some agreement by the public. Some argue that the sovereign is determined by the masses or by a consensus of the people. Others might argue that sovereignty's nascent point is from the presence of force. There may be an incalculable number of methods to determining how, exactly, political power is granted to a person or persons.
In the case of congressional law-making bodies, people elect senators to state or federal offices. In the case of the United States Senate, 2 persons are elected to represent each of the 50 states that compose the union. While this is meant to balance the power of the states to the population, we encounter a troubling prospect. This is the problem of the fact that population has exploded exponentially since the creators of the Early Republic ratified the United States Constitution (and did away with the Articles of Confederation.) The United States has 100 people representing and voting for the interests of hundreds of millions of people. Talking heads popularized by the press argue that the United States is becoming an oligarchy, but is that novel proposition if you consider those statistics (let us put aside the House of Representatives for argument's sake?) Can the Senators they really create fair and just laws effectively? Are they in touch with the people they govern when their lifestyle is radically different than that of the average construction worker or IT professional?
Consider the Executive Branch of the government for a moment. They are in the position to enforce the law that they might not even agree with. Due to either the fact that the other two branches have created (possibly) draconian edicts, or the fact that the chain of command might not allow for individual judgements or decisions to be made. Some executive officials are elected, such as the POTUS, but many are not. To what extent do military leaders have on how law is created and enforced that most citizens even know about? Many questions can be promulgated from the premise of executive power.
Judicial power in the United States is based on precedent and the holdings of judges through a network of hierarchically based regionally autonomous courts. Local courts can make decisions that affect policy, and higher courts can overrule them. This begs the question of whether the higher courts are aware of what is happening on the local level outside of a given court case. Can judges, who assumedly, lived cloistered lives, have a fair opinion of a federalist experiment in law? Finally, the Supreme Court was never an elected, but appointed body, and therefore is immune from scrutiny and recourse from the public. This isn’t even in factoring in the lifetime appointment that goes with being a member of the SCOTUS.
In the United States, local and federal agencies are also law-making bodies that can make distinct impacts on the livelihood of an inordinate amount of people. To what extent are they subject to public oversight? The question or how one can seek a remedy from an injustice from a government agency is not always clear. While a person can bring civil litigation against a particular agent, the agency, remains immune from legal action. Does the public even agree to the existence of certain agencies? Would they agree to how it practices or what persons it hires?
The above-mentioned premises of concluding the nature of power in the United States is only a small sample of questions or difficulties that the political leviathan is subjected to. The conclusion must be that there are so many laws, holdings, precedents, statutes, edicts, and orders that the common person can be lost. The topic of the book Overruled by Supreme Justice Neil Gorsuch addresses these issues. Gorsuch’s argues summarily that people resist the rule of law when there is either too few laws or too many. He affirms that the public would be at the greatest state of order when they know what to obey and how to obey it, and of course, whether they feel they should obey.
The argument of this essay now turns to the original question stated in the title. Essentially, I believe that people have some prima facie obligation to follow the law. People in the United States have countless laws to follow, limitless regulations to adhere to, and must be expected to do so. The reason I argue for some, rather than simple obedience, is whether the laws are equitable. So, in a word to my own question, I answer with, maybe.
The Positivist argues that law and morality are separate, and one must be applied to the other. Some may assume that morality was inherently considered during the inception of a law. This is a common trap. The trap is that a person might believe that obedience to law for law’s sake is going to provide justice and order. Laws were not necessarily created to promote good as many people understand it. We, as citizens have a duty to apply morality to law after its inception.
So why must we scrutinize a law before we simply follow it? Perhaps the law is created to suit the interests of a wealthy industrialist seeking to make profit and control a market. Perhaps there was a law passed by Congress that made wearing anything but red shirts illegal. Perhaps a lobbyist from the red dye company made many generous campaign contributions to Senators seeking to ban non-red shirts. While this example may sound ludicrous, it does happen on some level. Corporate, private, or corrupt interests are factored into creating the law.
Philosophers such as John Rawls and H.L.A. Hart addressed the question of whether following the law should be obligatory. The answer was generally, yes, with special exceptions of when the law was being corrupted. This seems to be the commonplace form of jurisprudence. These, and countless other, political thinkers date back to the earliest forms of the Republic in America. There was always a need to oversee the government and intercede in the case of tyrannical control. The Bill of Rights and the first 10 Amendments illustrate this point perfectly.
Let us consider civil disobedience for a moment. People sometimes find that laws that were created, were not created with the best intentions or were simply impractical. These people will go out of their way to publicly defy these laws to gain attention to their unjust nature. These people may be the difference between just order turning into brutal control. These people, therefore, can be cited as examples when the prima facie obligation to follow law was not true.
Arguments against the use of civil disobedience might stem from the notion that people enter a social contract in the society that they live in. Philosopher John Rawls injected the argument of fair play into the philosophical discussion of the obligatory nature of obedience. Not all of us may use the public park, but we must all pay a portion of taxes to maintain it (some might say.) One could argue that they should be able to direct a portion of where their tax dollars go specifically. Obviously, that wouldn’t be practical, because necessary yet unpopular items may go unattended.
The main difficulty of the social contract argument is the problem of agreement. How does one actively choose to be a member of a given society? If you were a born citizen of the United States, were raised from young childhood to adulthood, then decided that you were not interested in participating the social contract: How would you opt out? Where would you go? If you don’t have any allies or connections in a foreign country, would you have a fair shot to make it there? At a certain point of your life, you might be so acculturated to United States life that it would be simply impractical to live elsewhere to another nation in question.
These questions demonstrate the parochial nature of the social contract or Hobbe’s viewpoint on social obedience. The world is simply too different regarding regional norms and values. The idea of cultural and ethical relativism takes a huge part of factoring into what world an outsider could even fit into. Since we do not live in a world with a completely established set of legal values on an international level, we run into problems trying to establish universal laws based on universal morality. International government does not really exist, and problem of working around local customs is an encroaching bugaboo.
As citizens of the world, rather than simply of the United States; is there an obligation to participate in a united world order? To some extent the answer is yes, and to some extent the answer is no. There are many factors to consider when expanding legal sovereignty over the entire planet. If such sovereignty was achieved, accepted, and justified, would the obligation to follow the law remain the same?
Global world order would constantly be at odds with local or traditional legal procedures and practices. People might have an overly difficult time adjusting to a larger hierarchical set of law. The trouble that might arise is that obstinance might eventually degrade into insurrection against the global sovereign. It could be the case that more would be harmed than would be protected. Since no such global authority exists, it would be very difficult to determine how its legally nascent properties be conceived.
It is the case that international law and the United Nations are an existing force in the world today (as was the Legue of Nations.) However, such entities are an amalgamation of nations still operating under their individual banners as customs to the extent that it makes little difference. Some might say that since the United Nations does not have a completely globally participating military force that it lacks the power of a truly sovereign power. Obedience to such authority at this point is merely voluntary and proves that its individual members do not have prima facie obligation to follow law.
This brings up the question of whether any individual in any circumstance of living in a communal society of some kind has an active power in law making. The same for a duty to follow whatever laws or customs said society adopts. The issue at its core is an argument for the rights of a person or a group-based interests on whichever might be more justified. Naturally it is hard to determine what that justification is and how it might be view objectively. It is more likely to fall on the society to be justified than the individual simply due to numerical advantage. Some feel that individuality is more threatening to the overall good, and some may feel that groupthink is more threatening to the overall good.
I still would assert that the burden of proof of righteousness is on the state, and it should be on the individual to decide what is possible or impossible for them to obey. While there might be negative consequences, there is always the freedom to break the law. Only the most dystopian of worlds would create laws so powerful that they were completely immutable and unbreakable. The fact of how a society punishes, prevents, or corrects disobedience to its laws is a whole other matter.
Punishment is a matter that might make a person obey a law they rightly disagree with. Say there was a $5000 fine for wearing a non-red shirt from my red shirt example above, would obedience be more justified if that meant a person could lose their home? It is no longer a matter of whether a person should follow the law, but rather, a matter of whether they can survive the consequences of disobedience to that law. “Should” and “can” are two semantic concepts that make a huge difference in morality. If the fine were $50, maybe a person would be apt to disobey the law. Does this create a moral distinction in whether obedience to the law in general is required? Is a person who obeys rules for the sake of obedience more ethical than a person fearful of punishment? Is civil disobedience ever justified?
Now let us take an example of what might be considered fair civil disobedience: the case of African Americans during the Montgomery bus boycotts. Rosa Parks (and many others, even before and after her) famously defied sanctioned bus policy projected by regional law makers. A person resisting something that would banish an elderly woman to the back of the bus seems draconian and punitive to an entire race. People support this kind of disobedience. However, people might be more disinclined to view the civil disobedience of premeditated murder against investment bankers as unacceptable in all cases. To what extent is civil disobedience morally permissible? Popularity, both at the time and historically seems to win the day.
The issue of Cannabis legalization has been a subject of much debate in the United States. Marijuana has been traditionally seen as a tool of non-whites in America for recreational and medicinal purpose. The “Moynihan Report,” by Daniel Patrick Moynihan was a report given to President Lydon Banes Johnson about the destruction of the African American family unit. In his report to the president, Moynihan argued that Marijuana was adversely affecting the family unit of AF-AM households and was therefore detrimental to society. President Johnson was swayed by the report and legislation would be enacted for years to come afterward. This was also not a novel opinion, as Marijuana was much maligned by the white hegemony for years prior.
President Richard Nixon would go on to pass the Controlled Substances Act of 1971 which would categorize various narcotics and establish a means of prosecuting persons in violation of possession of those laws. This would go on to lead to the incarceration of countless persons, much of whom were African American. These persons, for whatever reason, felt that they had no prima facie obligation to follow such laws, and therefore suggests that entire segments of nation’s population were willing to face severe punishment to disobey. Eventually President Ronald Reagan’s infamous War on Drugs would continue to punish an ever-increasing portion of the public, a larger percentage included non-African Americans. The question of whether these people acted immorally in their disobedience is subject to massive debate amongst talking heads, politicians, academics, and so many others.
Currently there are several states in the United States that have eased off restrictions on Marijuana as a punishable offense and therefore allowed to be cultivated and sold as a consumer product. These changes in law often bring into question the validity of the punishments that were imposed on so many people during those periods. One can argue that change was necessary and should have been sooner, and others can argue that remaining firm on the topic was the just course of action. The fact remains that the obligation or lack thereof, to follow the law, has changed the outcome of what legal standards have followed.
However, this is only the case in a few states in the union. The Federal Government still has Marijuana classified as an illegal narcotic and the Drug Enforcement Agency is still able to prosecute persons for possession or sale of the product (at least outside of the state in question.) The author of this essay does not know what the exact arrangement between this agency and the state governments that removed this law is exactly. My understanding is that principle of federalism allows state the sovereignty to make its own decisions regarding the legality of Cannabis.
The issue stated above is only one sample of how conflicting interests in the legal climate can alter whether people feel justified in disregarding the prima facie requirements to follow the law. Some people may say, “you can’t pick and choose what laws you want to follow.” Those people might be forgetting the fact that a person with the wealth can relocate into certain places where certain laws aren’t in place (such as Colorado, if they want to legally use Marijuana.) Sometimes obedience to law can be malleable. If you consider it still technically obedience in the context of the legal framework of the region that they are living in.
In summation, the most common answer to the question I asked is: Yes, unless the law is unfair. How we determine what laws are unfair is ambiguous, of course. Also, what laws are even present or how we might know what they are can be confusing. Some argue that ignorance of the law is no excuse, but that does not mean that obligation was intentional. That can make all the difference in the world to people. We are always left with the choice to obey for obedience's sake or because we agree with the law. The reason why someone obeys matters, even if it does not change the practical outcome to society. Law functions in society because we all need to agree to follow the law. We can also agree that flagrant disobedience can lead to bedlam. We can only pray that we can have a country and a world where the laws are just and fair, and that all persons are willing and able to follow them.
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