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Robert Marsh, University College Is there a general moral obligation to obey the law which extends to all persons and all laws in a given jurisdiction? Why? According to Finnis, a general moral obligation to obey the law, because law says so, is necessarily entailed by law’s morally facilitative pro...

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Robert Marsh, University College Is there a general moral obligation to obey the law which extends to all persons and all laws in a given jurisdiction? Why? According to Finnis, a general moral obligation to obey the law, because law says so, is necessarily entailed by law’s morally facilitative project.[EXCELLENT START AND A REALLY NICE TURN OF PHRASE HERE TOO! WELL WRITTEN AND GETS THE READER’S ATTENTION FROM THE START] By defining law’s purpose as the reasonable resolution of society’s coordination problems in the name of the objective common good, a general moral obligation of obedience appears, prima facie, logical and inevitable, such that all persons have a moral, as opposed to a legal, obligation to obey all laws in a given jurisdiction. However, Finnis ultimately succumbs to Raz’s criticism. Given the necessary but subtle distinction between morally obligations per se, and moral obligations to obey the law, Raz demonstrates that the duty of obedience differs according to the nature of the legal rule under consideration. Furthermore, given that different laws will influence one’s normative actions to a different extent according to the person in question, Raz’s normative justification thesis[NORMAL JUSTIFICATION THESIS] rightly personalises the nature of one’s moral obligation to obey the law. Therefore, it is submitted that one’s moral obligation to obey the law is not general, but exists on a spectrum, and the extent of one’s moral obligation to obey the law is influenced by both internal and external considerations. Internal considerations, discussed by Raz, concern the ability of the law to enable individuals to better comply with right reason if he accepts the authority’s directives as authoritatively binding. By contrast, external considerations, more closely analysed by Finnis, concern the extent to which the legal system in question has a claim to justice. [EXCELLENT START – EXTREMELY WELL WRITTEN, ENGAGINGLY PULLS THE READER IN, VERY PRECISE AND ACCURATE ON THE THEORISTS YOU MENTION.] Firstly, it is necessary to define precisely what is meant by a ‘general moral obligation to obey the law’. The obligation in question has 3 components of note: (i) it is a moral, not a legal obligation; (ii) it is ‘general’; (iii) it is a moral obligation to obey the law, ie to follow the law because the law says so. The first component distinguishes markedly between legal validity on the one hand and the presumptive legal obligation thereby entailed, and a separate moral obligation to obey the law on the other. Legal validity, according to Hart’s social fact theory, is entailed upon a rule’s conformity with a given jurisdiction’s rule of recognition, thereby creating a legal obligation to obey which will be legally enforced. A moral obligation to obey the law is separate from this legal obligation: rather than acting out of prudential reasons, for example to avoid legal sanctions, a moral obligation requires one to act in accordance with the law because that is the right, or moral, course of action. The obligation in question is ‘general’, and it would thus be universally applicable to all laws in a given jurisdiction, and cannot be selectively applied and disapplied to individual laws. “General” also carries the implication the obligation is exclusionary, not merely a prima facie obligation of obedience which can be displaced by other normative considerations. Furthermore, the obligation is to obey the law because the law says so, not because the legal position happens to align with one’s independent moral compass. A moral obligation per se must thus be distinguished from a moral obligation to obey the law: in the UK one should refrain from assisting in another’s suicide not because that accords with one’s moral viewpoint, but because that is the present legal position. As John Lucas suggests, if there is a moral obligation to obey the law, the law must, thereby, be capable of changing the normative situation and determining one’s moral position. The question is thus framed as follows: is there a moral (extra-legal) obligation, to obey the law because the law says so, which applies as an exclusionary reason for acting to every law in a given jurisdiction? [EXTREMELY WELL FOCUSSED HERE. WITH THE CHARACTER OF THE OBLIGATION IN FOCUS, IS THIS A VERY HIGH AND DIFFICULT TARGET FOR ANY THEORY, PERHAPS EITHER SINGLY OR IN COMBINATION, TO REACH?]

Robert Marsh, University College According to R P Wolff, a moral obligation to obey the law and individual human autonomy are mutually exclusive, and cannot coexist: “The autonomous man, insofar as he is autonomous, is not subject to the will of another. He may do what another tells him, but not because he has been told to do it.” Wolff thus perceives a dichotomy between authority and autonomy. Any form of authority, legal or otherwise, conflicts with man’s primary obligation to make decisions for himself: [WELL EXPLAINED – THE DISTINCTIVE CHARACTER OF WOLFF’S POSITION COMES OVER REALLY STRONGLY HERE. DOES WOLFF IN YOUR VIEW OVER-VALUE AUTONOMY AT THE EXPENSE OF OTHER VALUES? OR DOES HE HAVE AN OVERLY NARROW UNDERSTANDING OF WHAT AUTONOMY IS, AND WHAT IT NEEDS TO FLOURISH?]instinctively, therefore, humans should resist the institution of the law, in so far as it seeks to guide human conduct and make authoritative moral decisions, and should deny that any one has a duty to obey the laws of the state simply because they are the laws. Whilst Wolff does not challenge the fact that some people actually have de facto authority in a given jurisdiction, he rejects the possibility of legitimate, justified, de jure authority which would render logically possible a general moral obligation to obey the law.[REALLY WELL EXPLAINED, WELL DONE] It is submitted, however, that Wolff’s dichotomy is no more than apparent. Wolff’s mistake lies in affording insufficient explanatory significance to the facilitative nature of law. If Wolff’s dichotomy were pursued to its logical end, autonomy requiring one to act on one’s own judgment on all moral questions, individuals would never defer decision-making to others, even to relative experts who are better placed, in terms of knowledge and experience, to make the ‘right’ choices. The opinions of medical specialists, to the extent they conclusively determine the treatment one should follow by virtue of their authority, should be disregarded.[YES, GOOD, WE WOULD HAVE TO HEAR THE ADVICE, BUT THEN WEIGH IT AGAINST OUR OWN VIEWS AND ASSESSMENTS OF THE SITUATION, FOR WOLFF TO BE SATISFIED WE WERE NOT ABANDONING OUR AUTONOMY AND RATIONALIST] Similarly, the institution of the law, to the extent it claims authority over its citizens, cannot ever be legitimate, irrespective of the benefits to social organisation and enhanced powers of individual decision-making which it can provide. This is wrong, and will actually impede, rather than facilitate, the pursuit of right reason. On the other hand, Wolff may contend this is an unfair reading of his theory: he does not deny that individuals “may do what another tells him”, which is, in effect, all that patients do upon choosing to follow a prescribed course of medical treatment. Wolff, however, actually goes further: in rejecting the concept of legitimate authority, he denies it can ever be the normatively right decision to defer to another by virtue of their authority. To this extent, Wolff is mistaken. The law, purely by virtue of its authority, guides human conduct and effects social organisation, as is necessary in any effective modern society: to deny that law is ever legitimate is to deny, inevitably unconvincingly, its social significance. Therefore, contrary to Wolff, legitimate authority and thus a moral obligation to obey the law, is not a logical impossibility. [PRECISE AND NUANCED ANALYSIS HERE, VERY WELL DONE] Given a moral obligation to obey the law is, prima facie, not logically impossible, is there a moral obligation to obey the law, in fact, which extends to all persons and all laws in a particular jurisdiction? [VERY SMOOTHLY LINKED FROM THE PRECEDING DISCUSSION AND THE ESSAY FLOWS REALLY WELL HERE]A moral obligation to obey the law may be conceived of by either a voluntarist, or a non-voluntarist account. In other words, if there is a moral obligation to obey the law, it may arise either dependent upon, or independently of, citizens’ choice or consent to legal authority. It is submitted, contrary to the social contract theory of 17th century philosopher Thomas Hobbes, that a voluntarist theory cannot justify a moral obligation to obey the law. According to Hobbes, the moral and political obligations of citizens are dependent upon a contract or agreement amongst themselves, to which they have tacitly or expressly consented, to form the society in which they live.[COULD IT, IN YOUR VIEW, ALSO BE SOME KIND OF HYPOTHETICAL CONSENT WHICH CONSTITUES THE SOCIAL CONTRACT? IE NOT THAT WE/ANY POPULATION ACTUALLY HISTORICALLY CONSENTED BUT

Robert Marsh, University College THAT, IF WE HAD BEEN OFFERED THE OPTIONS, WE WOULD HAVE CONSENTED, IT WOULD HAVE BEEN RATIONAL FOR US TO CONSENT? OR DOES THAT IDEA JUST TAKE US EVEN FURTHER AWAY FROM THE USUAL NOTION AND CONDITIONS OF CONSENT?] The model is reciprocal: by virtue of the benefits to social organisation and order which are entailed, the citizen accedes to the authority of the law. Prima facie, this position is attractive and reflects law’s facilitative project.[THIS IS A VERY NICE THEME RUNNING THROUGH THE ESSAY, IE LAW’S FACILITATIVE CHARACTER. IS THIS TYPE OF THEORY ALSO ATTRACTIVE BECAUSE IT SEEMS TO PUT US, THE CITIZENS, IN CONTROL, NOT IMPOSED UPON UNILTAERALLY BY, BUT AGREEING RECIPROCALLY TO, BE BOUND BY GOVT AND LAW?] This position is also analogous to the separation of powers: in determining the scope of substantive judicial review in administrative law, for example, whilst decision-making power should, in principle, remain with the executive and not be usurped by the judiciary, the executive function must be adequately constrained in line with legislative intent, thereby protecting individual liberty. However, while the separation of powers concept is legitimised by the UK’s rule of recognition, which acknowledges Parliamentary sovereignty and the need for administration to comply with the rule of law, which is itself legitimised by the social practice of officials in the UK, there is no similar express justification for the social contract itself. Citizens cannot be said to have a moral obligation to obey the law because they expressly consented to it: unlike officials who necessarily consent to and apply the rule of recognition, citizens do not consent to be bound by the law. Rather, the law claims authority by virtue of their being in a given jurisdiction. Therefore, any attempt to found a moral obligation to obey the law upon a voluntarist theory, necessarily based upon the tacit consent of citizens who have no real choice but to accept the authority of the state, is unintelligible. [VERY THOUGHTFUL POINTS, EXTREMELY WELL ANALYSED AND ARGUED IN YOUR OWN VOICE] If a general moral obligation to obey the law is to be found, it must be identified by a nonvoluntarist account. The two principal non-voluntarist accounts are provided by Joseph Raz and John Finnis. According to Raz, there can be a moral obligation on the part of some people to obey some of the laws of a given jurisdiction some of the time: however, there is not a general moral obligation to obey the law which extends to all persons and all laws in a given jurisdiction. Raz identifies circumstances in which the law has moral authority through the normal justification thesis: a legitimate authority, entailing a moral obligation of obedience, will exist if the citizen is likely better to comply with right reason if he accepts the authority’s directives as authoritatively binding. According to Raz, therefore, there exists a moral obligation to obey the law, because the law says so, only where this will enable an individual, in their particular circumstances, to more effectively pursue right reason. This reflects the nature of the moral obligation to obey: the law in question must operate as an exclusionary reason, requiring citizens to give up the right to act on their own judgment, which, owing to individual autonomy, citizens will do in different degrees in different contexts. Adopting Raz’s approach thus has an immediate logical advantage to that of Hobbes. Rather than suggesting a moral obligation to obey the law arises from citizens’ universal, but indemonstrable, express or tacit consent, Raz, in line with Hart, acknowledges that the reasons for which individuals accept authority are multiple. Some will obey the law for provincial reasons, others out of moral duty. This is unproblematic, for an effective authority is necessarily legitimate: so long as some genuinely believe the authority as justified, and they comprise a class sufficiently prominent to enable the authority to impose rule on others, the authority will be capable of commanding a moral obligation to obey its laws. [AGAIN, EXCELLENT, THOROUGH, AND HIGHLY NUANCED ANALYSIS] Finnis, in contrast to Raz, contends there is a general moral obligation to obey the law which is presumptively entailed by the legal obligation in the legal sense. As Finnis states in the first line of Natural Law and Natural Rights, there are human goods that can be secured only through the institutions of human law: only law provides the kind of authority which can reasonably resolve

Robert Marsh, University College societal coordination problems and thus enable humans to effectively pursue things of objective moral value. Therefore, as law is purely facilitative of human pursuit of objective goods, and it is uniquely adept at such a task, the law has moral authority over us, and there is a general moral obligation to obey it. It is submitted that Finnis is mistaken in identifying a general moral obligation to obey the law because it is the law, but makes an important distinction between generally just and general unjust legal systems. Prima facie, if the law is understood to have an inherently moral purpose which facilitates objectively valuable human ends, it seems to logically follow that its propositions will entail a moral obligation of obedience: humans have a shared self-interest in accepting its directions as authoritative. However, in fact, not all laws command the same moral obligation of obedience by virtue of their authority. Finnis’ theory thus ultimately succumbs to Raz’s criticism. This is because certain fundamental legal duties such as the duty not to commit murder, referred to by Hart as the minimum content of natural law, are undeniably moral obligations independently of their legal status. They are followed, prima facie, by virtue of their character as moral obligations, not because it is decreed by law. Therefore, in such cases of fundamental moral obligations, the duty to obey is much weaker, for it is the moral obligation itself which is doing the work in changing one’s normative position. [IS THE DUTY TO OBEY WEAKER, OR, AS RAZ ARGUES, ABSENT, IN SUCH CASES? ALSO, WHAT IF FINNIS, OR ANYONE ARGUING AGAINST RAZ, CONTENDED THAT EVEN IN CORE CRIMINAL LAW AREAS LIKE MURDER, WHAT LAW ADDS IS TO SHARPEN UP THE EDGES OF VAGUE AND UNDER-DETERMINED MORAL DUTIES. EG YES THERE IS SOME MORAL DUTY AGAINST KILLING, BUT DOES THAT DUTY ALLOW KILLING IN SELF DEFENCE, DEFENCE OF ONE’S PARTNER, OR OTHER FAMILY MEMBERS, DEFENCE OF PROPERTY, WHAT ABOUT ASSISTING A PATIENT IN END OF LIFE SCENARIOS… MIGHT THIS BE LAW’S ROLE, TO FIRM UP, SHARPEN AND RENDERED MORE DETERMINATE MORALITY’S “FUZZY BORDERLINES”?] Raz’s theory is, however, insufficiently nuanced. The theory proceeds from the internal point of view, as termed by Hart: the point of view of citizens within the jurisdiction in question, who use its legal norms to guide their behaviour. For Raz, therefore, the extent of one’s moral obligation to obey depends, solely internally, upon the extent to which accepting an authority’s directives enables the better pursuit of right reason. It is submitted that the extent of one’s moral obligation to obey any particular law is on a spectrum, whose position is determined by both internal and external considerations. External considerations look to the legal system as a whole, rather than to the efficacy of individual legal rules.[NB FOR RAZ I WOULD SAY THE NORMAL JUSTIFICATION THESIS TEST IS TO BE APPLIED NOT AT THE LEVEL OF THE WHOLE LEGAL SYSTEM BUT ALSO NOT AT THE LEVEL OF EACH INDIVIDUAL LAW, BUT RATHER AREA OF LAW BY AREA OF LAW. FOR EXAMPLE, I CAN KNOW IN ADVANCE THAT THE LAW HAS MORE EXPERTISE THAN ME ON MANY AREA OF TECHNICAL REGULATION: ABOUT CHEMICALS, HEALTH AND SAFETY AT WORK, MEDICAL MATTERS ETC. I DON’T NEED TO RE-OPEN THE NJT TEST IN THE CASE OF EACH LAW. I KNOW THAT FOR X AREA OF LAW I OUGHT TO JUST DEFER TO THE AUTHORITY, SO LONG AS THERE IS INDICATION THAT, IN THAT AREA OVER TIME, GOVT HAS A STRONGER TRACK RECORD THAN ME AT GETTING THINGS RIGHT] To this end, a distinction must thus be drawn between “generally just” and “generally unjust” legal systems: in the rare instance a legal system does not possess, in fact, a claim to justice, it would be a logical impossibility for that legal system to create moral obligations to obey its laws. Raz was thus insufficiently clear in demarcating the circumstances in which accepting authority enables the better pursuit of ‘right reason’, and it must necessarily be inferred that Raz took an objective view of human goods. [YES, HE DOES, THAT IS CORRECT. ]This is because, if one’s moral obligation to obey the law depends upon its ability to enable an individual to better achieve certain ends, and those ends do not necessarily have an objective value, a moral obligation could arise to obey the law of wholly immoral legal system. If

Robert Marsh, University College accepting the authority of Nazi law would, for example, enable a citizen to arbitrarily denounce an unfavourable neighbour, and that end was personally normatively desirable, it seems ironic to suggest a moral obligation to obey the law arises in those circumstances;[WELL I THINK RAZ WOULD THINK NOT JUST IRONIC BUT HORRIFIC AND THAT HE WOULDN’T THINK THIS FACILITATES COMPLIANCE WITH RIGHT REASON] whilst a legal obligation to obey may arise, acting in accordance with such a law is not necessarily the morally right course of action. Finnis’ methodology has the advantage of avoiding this error, framing the central case of law as that which reasonably resolves societal coordination problems in the interest of the common good, such that a moral obligation to obey the law could not be presumptively entailed upon its satisfying the test of legal validity in a given jurisdiction. Further, Finnis shows due deference towards external considerations, namely the necessarily moral character of law’s facilitative purpose, from which a moral obligation to obey the law must be derived. Finnis’ general moral obligation to obey the law, however, ultimately succumbs to Raz’s criticism, which illustrates that the moral obligation to obey the law, because the law says so, differs according to the individual’s attitude and according to the nature of the law in question. [WELL ANALYSED] In conclusion, there is no general moral obligation to obey the law which extends to all persons and all laws in a given jurisdiction. Nevertheless, a moral obligation to obey the law is not only logically possible, given that legitimate authority does not necessarily transgress human autonomy, but it is also the reality in generally just legal systems where, according to Raz, to obey would be to vindicate the citizen’s best pursuit of right reason. THIS IS EXTREMELY GOOD WORK. YOU WRITE VERY VERY WELL, IN A WAY WHICH IS PRECISE, EXACT, BUT STILL ENGAGING, AND THE WRITING FLOWS WELL AND CARRIES THE READER ALONG WITH YOU AND MAKES THEM FEEL THEY ARE ON THE JOURNEY WITH SOMEONE WHO KNOWS WHERE THEY ARE GOING AND IS HIGHLY COMPETENT IN GETTING THERE! THE ANALYSIS IS LOGICAL, WELL ORDERED, AT AN EXCELLENT LEVEL, AND YOUR OWN THESIS AND VOICE COME THROUGH STRONGLY. FOR EXAMS, DO BEAR IN MIND WHAT WILL BE THE INEVITABLE CONSTRAINTS OF TIME AND LENGTH. BUT YOU WILL BE ABLE TO WRITE IN MORE DEPTH IN THE SUMMER ESSAY...