Does the need to maintain a successful political community create an obligation to obey the law? (Updated with a reply to political theorist Greg Weiner’s latest post)

April 21

In this recent post, political theorist Greg Weiner expresses some dissatisfaction with both sides in the debate between Michael Rappaport and myself over speed limits and the duty to obey the law (see here for the latest post in the exchange and links to earlier ones):

[The debate] proceeds from an assumption that the obligation to follow the law is grounded in its utility to individuals or… the harm of breaking the law to other individuals….

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.

I agree that the maintenance of a community that enables individuals to flourish is one good reason to obey laws. But it does not generate an obligation to obey all laws, or even most of them. Some laws are an essential element of a “successful political society.” A great many others are not, especially in the modern state, which regulates an incredibly wide range of activities. Indeed, some modern laws probably undermine community more than they promote it, in which any obligations we have to the community count against obedience. One can argue that the community will fall apart unless people feel a strong moral obligation to obey all laws. But centuries of evidence shows that this just isn’t true. In both the United States and other relatively successful liberal democracies, there has always been widespread acceptance of the idea that it is morally permissible to violate at least some laws. The case of moderate violations of speed limits that Rappaport and I have been discussing is just one of many examples. Thus, the need to maintain a successful political community generates only an obligation to obey some laws, but by no means all.

Weiner suggests that my (and possibly Rappaport’s) analysis of the duty to obey the law requires people to decide whether to obey the law as “atomized individuals.” But 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.

It is also incorrect to suggest that my view is based solely on calculations of “self-interest.” As Weiner himself recognizes elsewhere in the post, I explicitly pointed out that a duty to obey a particular law can arise from an obligation to prevent harm to others. But that same duty can also sometimes justify violating other laws that themselves inflict severe unjustified harm rather than prevent it. The Fugitive Slave Act of 1850 is one well-known historical example; Jim Crow segregation laws are another. In fairness, it is not entirely clear to me whether Weiner believes that the need to maintain a successful political community generates a strong obligation to obey all laws, or only some of them. If he means the latter, it may be that the disagreement between us is relatively minor.

Finally, Weiner suggests that “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.” I agree that a genuinely consensual “acceptance of…protection” might potentially create an obligation to obey. But, in reality, most people have not had such an opportunity for meaningful consent. Instead, they have been born under the authority of a particular government, and cannot escape its power, except at the very great cost of emigration. I discuss the consent rationale for obedience in greater detail here.

I am skeptical that a generalized obligation to obey an authority can arise merely from having an opportunity to influence the rules it adopts. But even if can, most citizens of modern states do not have a meaningful opportunity to exercise such influence. For all but a small minority, their only real chance of influencing government policy is through voting. But the chance of any one vote determining the outcome of an election is infinitesmally small, about 1 in 60 million in a presidential election, for example. Even if you factor in the tiny chance that an ordinary citizen can influence policy by means other than voting, such as making a speech or a small campaign contribution, the odds are still extremely low. Democracies have many advantages over dictatorship. But, even in a democracy, the ordinary citizen has too little opportunity to participate in the formation of government policy for that opportunity to, by itself, generate any strong obligation to obey the state’s decisions.

For a more extensive discussion of the consent and opportunity-to-participate rationales for a duty to obey the law that greatly influenced my own vies on the subject, I recommend A. John Simmons’ book, Moral Principles and Political Obligations.

UPDATE: I have revised the title of this post so that it better reflects the content.

UPDATE #2: Greg Weiner responds to this post here. He seems to concede many of my points, and does not challenge others. For example, he recognizes that elections offer the individual only an infinitesmal chance of influencing the content of law, especially at the federal level, and that this is relevant to the extent to which they create an obligation to obey the law. As he puts it, “[t]he moral force of participation is enhanced at the local level but diminished when it is stretched to the point of impersonality.” I would add that even at the local level, most citizens have little chance to influence the law, unless the locality is extremely small. He also admits that individuals have the right to disobey “flagrantly unjust laws” such as the Fugitive Slave Act. Significantly, he does not challenge the key point that obedience to many, perhaps most laws, is not essential to maintaining a successful political community.

Greg qualifies his concession about flagrantly unjust laws by suggesting that it is a limited exception “from which general rules are not to be drawn.” But how limited it is depends on how common “flagrantly unjust laws” are. Given the enormous size and scope of the modern state, it might well be the case that flagrantly unjust laws are adopted with some regularity. Even if they are only a small proportion of the total number of laws, they could be large in absolute numbers. Moreover, if it is morally permissible for individuals to disobey “flagrantly” unjust laws, why not ones that are “only” moderately unjust? Indeed, it could be the case that a series of laws that, individually, are only moderately unjust, inflict a flagrant injustice due to their combined effect.

Greg emphasizes that, even if under my view, individuals deciding whether to obey a law may do so based on principle rather than narrow self-interest, they still “make these decisions in isolation rather than as public members of a political community.” I don’t think this necessarily follows. One can argue that individuals deciding whether or not to break the law have a moral duty to first deliberate about it with other members of the community or otherwise consult the views of other people. Alternatively, one can argue they can only disobey if such a decision is endorsed by widely held community norms. Unquestioning obedience to the government and purely individual decision-making are not the only possible options here. Be that as it may, once we agree that there is a right for individuals to disobey “flagrantly unjust” laws (even without deliberating with others first), that already opens up a substantial scope for legitimate individual choice on these matters.

Finally, Greg argues “that the political community (a) exists qua community, transcending the individuals comprising it,” and that this creates an obligation to obey laws (though not “flagrantly unjust” ones). As Greg recognizes, I deny that there is a community that transcends individuals in this way. We have moral obligations to the rights and welfare of others that justify obedience to many laws, but not to a disembodied “political community.” But even if such a transcendent community does exist, it only creates a general duty to obey the law if the community is coextensive with the government. In reality, however, much of what the government does may not be sanctioned by the community and could potentially undermine it rather than benefit it. Thus, even communitarian principles do not necessarily create a strong duty to obey the law.

Ilya Somin is Professor of Law at George Mason University. His research focuses on constitutional law, property law, and popular political participation. He is the author of "The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain" (forthcoming) and "Democracy and Political Ignorance: Why Smaller Government is Smarter."
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