We should think carefully about why, if at all, we should obey the law. How can I decide
what to do when ethics (morality, consent, utilitarianism, gratitude, reciprocity,
communitarianism, fairness) and the law come into conflict. How do we bridge the gap
between the two? Should our ethics adapt to the law, or should we attempt to adapt the
law to our ethics? Are there boundaries to how far we can push this?
Blind obedience requires two assumptions:
(a) the democratic process works
(b) the judicial review process works.
Prudentially, we should obey because of the threat of punishment and/or imprisonment.
But are we morally obliged to obey the law, and does the state have the moral authority
to make and enforce law? Sometimes we are morally obliged to obey things that are not
enforced by state authority, and sometimes we are obliged by law to obey things that we
are not morally obliged to obey (e.g. we should reciprocate moral obligations, but not acts
of authority).
Moral obligation to obey the law (consent theory + fairness/egalitarianism) is a serious
puzzle. Should the law be obeyed out of self-defence against the consequences of
breaking it? No: if a just law isn’t enforced, this does not make it morally void. We require
a more fundamental reason to obey it, even if we could get away with it. If breaking the
law harmed nobody but benefited the lawbreaker, should it be broken?
Publicity: visibly and publicly breaking the law undermines the strength of
institutions (e.g. torture) and can have unintended consequences, even if it seems
benign at the time. This identifies social contract theory as the framework by which
we decide legal participation.
Invisibility: if no one knows the law is being broken and is not affected by it, is it
moral to do so?
A distinction between morally and empirically (consequentialist) based laws might
lead to different theories of consent and justice for each.
Morality
"We should obey law insofar as it represents the requirements of basic morality”.
Nozick: The (minimal) state should only pass laws insofar as they are necessary to
enforce the requirements of morality: the only state (and thus legal system) that is justified
is one that enforces basic [libertarian] morality (private property, peace etc.).
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