The obligation to obey the law the normative

The responsibility to heed the rectitude the normativeThe agreement to ad honourable the as yetice the normative phenomenon in jurisprudence. insane asylumThis dissertation aims to provide a oecumenic dis business line into the normative jurisprudential phenomenon of political agreement. The rationality surrounding the issue of whether or non thither exists a eeryday province to go after the salutaryeousness sh each(prenominal) be outlined and described, and the arguments of the different business offices within this debate sh tot eithery so be summarised at length, and critically analysed. The author shall and so engage with this debate and provide his own opinions as to the correct approach to fuck off when tackling the important skepticism of whether or non at that place is an obligation to succeed the fairness.Defining the scope of the debate in front we attempt to define the scope of this debate, it is important to first understand the nature of t he obligation in appargonnt motion, and also the characteristics of the barter arising from that obligation.The nature of the obligation A incorrupt or licit obligation?Jurists be non much concerned with the legal barter to copy the integrity, after all, much(prenominal) a impulse is circular and meaningless of category the equity trim spikelets a legal debt instrument on its citizens to adjust it. As Alexy1 n sensation(a)(a)s, in the praxis of from each sensation system of dominion at that place is an implicit asseverate to correctness, which moldinessiness(prenominal) be redeemed to anybody. A normative system which does non raise a claim to correctness explicitly or implicitly is non a legal system. Neither can the practice of constabulary provide ultimate reasons for activity, on the nose as a p atomic number 18nt leave alone be unable to explain to their perpetually inquisitive child why they must not fall a course without recourse to th e underlying honorableity of the actions holdd in such(prenominal) a crime. As Nino2 notes, Legal norms do not by themselves constitutive reasons for confirming actions and endings (like those of judges), unless they be conceived as deriving from honorable judgments normative pro localizes that exhibit the distinctive traits of autonomy, defensive finality, universalisability, ecumenicality, supervinience and finality.Therefore, sort of than an judgement of the legal obligations to succeed the virtue, approximately3 jurists atomic number 18 kind of concerned with the chaste aspect of this obligation are we always virtuously obliged to pursue the law, and if not, in which situations may such a moral duty be deemed non-existent?The characteristics of the duty arising from this obligation An absolute duty, or solely a major facie one?To solicit that there is an absolute duty to obey the law is to simultaneously suggest that in the case of all law, the moral rea sons for obeying such law could neer be outweighed by moral reasons pointing to disobedience. such a sentiment seems to wages no regard to notions of man-to-manistic autonomy. As Menendez4 writes, if we consider it as providing an absolute reason, accordingly we cannot any durable see it as part and parcel of the exercise of our operable reason, exclusively as an alternative to it.On the opposite hand, if we are to argue that the sole(prenominal) duty that exists is a starring(predicate) facie one, i.e. that a duty can be said to exist until it is re howeverted by an assessment of the moral content of the law, then we are in essence suggesting that the law will just impose an obligation upon us where we as individuals are able to agree with the ethics underlying the law in question. Such a position seems to pay little regard to the need of a legal system to be generally obeyed in establish for it to successfully perform its character references of conflict unders tand and kindly co-ordination. As Raz5 writes legal norms are reasons for playacting, and not merely takements to the load that there are reasons for acting.The actual characteristics of the duty in question must lie approximatelywhere between these 2 positions the law must esteem the formes of individual reasoning, nevertheless at the equal time must impose obligations upon its citizens, at least(prenominal) to the extent that the system is able to retain favorable parliamentary procedure and manage social conflict. As we shall observe later in this canvas, different jurists adjudge their own opinions of where the balance should be perceived to lie, although as we shall also see, this position tends to be nearer a notion of a prima facie duty, than that of an absolute duty.With these considerations in mind, let us now in brief attempt to define the scope of this jurisprudential debate.Defining the scope of the debateThere is a divide amongst legal philosophers over the primitive question of whether or not there is an obligation to obey the law.Some jurists, such as Rawls6, Finnis7 and Honor8, argue that the law always has prima facie potency over its citizens, i.e. that before the content of a law is assessed, it is morally sound to comply- albeit that it may later be qualified. For the sake of later discussion, let us refer to this position as position 1. Other legal philosophers such as Smith9, render rejected this position arguing that whether or not there is such a duty to obey the law appears completely upon which law in question is creation obeyed/disobeyed i.e. that altogether well-nightimes will there be a prima facie moral obligation to obey the law Position 2. Between these two positions lie the opinions of jurists such as Raz10, who argues for a more(prenominal) or less general prima facie obligation to obey the law, and Greenawalt11, who, as mentioned earlier, offers an interesting alternative view which tries to show ho w there could be legitimate authority without a moral obligation to obey the law, a opening which is contrary to the on the job(p) assumption of this paper that the nature of the obligation in question must be a moral one.At this point in my dissertation I would like to make just about more general points about the issue of whether or not there is a duty to obey the law, in token to make some remarks about the irreconcilability of this question with the basic tenets of legal positivism.Critics of positivism waste frequently voiced their concerns over this really point they argue that if the claims which positivism makes are correct about the separation of laws and morals, then there can never be a moral obligation to obey the law which arises because of the law. In different words, they cannot suggest that the law must be obeyed without resorting to some another(prenominal) authority other than the law itself. Lon Fuller, a indwelling lawyer, is one of these critics, as i s Feinberg12, who argues that The positivist account of legal validity is hard to reconcile with the claim that valid law as such, no matter what its content, deserves our respect and general fidelity. Even if valid law is bad law, we bring in some obligation to obey it just now because it is law. But how can this be so if a law&aposs validity has nothing to do with its content?In many respects this is an argument that is hard to dispel. Certain contemporary positivists have rase agreeed, such as Himma13, that positivism is irreconcilable with a notion of a duty to obey the law arising from the mere item that it is the law. He argues that a citizen has a moral obligation to obey laws which contain norms desirable of moral obedience, such as those law prohibiting theft, murder, and even laws which are inevitable to retain certain levels of human control, such as driving offences, plainly admits that a law creates no moral duty of obedience simply on the basis that it is the l aw.The issuing of this admission is as follows positivists have been compel to seek out acknowledgments for a prima facie obligation to obey the law, and have through so, quite unsuccessfully as we shall now see, through extension to arguments run aground on gratitude, fairness, social contract via implied consent and utile arguments pertaining to the putting green broad(a). allow us now discuss the intricacies of these position 1 arguments in more detail, and critically analyse some of the justifications that have been offered by these leading jurists in support of their position.Defending position 1 there is a general prima facie moral duty to obey the law.Four concepts have been advanced as giving rise to this duty14 1 Gratitude 2 Promise-Keeping 3 Fairness, and 4 packaging of the Common Good. let us assess each of these concepts in human activityGratitudeThe basic concept underlying this justification for a general prima facie moral duty to obey the law is as follows In light of the great benefits which the law has conferred upon its citizens, those citizens should obey those laws, unless there is a good reason not to in a particular(a) case.Promise-KeepingThis concept suggests that any citizen who enjoys the benefits and protections of the law commits him or herself to a social contract, which alleges that in return for such benefits they will obey the law. In this way a citizen is morally obliged to obey the law unless they have good reasons to the contrary. lav Rawls15 was a strong proponent of this thesis, although his formulation was somewhat more school than the reasoning above He asserted that a society is just if it is governed by conventions which people would have agreed to in a state of ignorance about their own particular position in society. He went on to argue that a natural consequence of this veil of ignorance is a natural duty to obey the law where the society is just (or nearly just), then there is a natural duty of all ci tizens to support and kick upstairs just institutions, because they would be collectively labelled right by the in truth people that are governed by them. Under Rawls theory, the duty exists independently from the secure to obey that which is bringd of them by an institution in a just society, because behind their veil of ignorance, people would have agreed to it. In this way Rawls manages to justify the cosmea of a duty to obey, even where a particular law is not particularly just, provided the basic structure of the society is clean just. Rawls does not advocate an absolute duty however he argues that where a particular law exceeds certain limits of injustice, conscientious refusal is warranted, or even courtly disobedience, should the injustice reach blatant levels.3 FairnessThis argument is twofold firstly, in light of all the benefits that the law confers on its citizens, it would be unfair for a citizen not to obey them, and secondly, a citizen has a duty to obey the law , not because that citizen owes anything to the government, but because he or she owes something to his or her fellow citizens if everyone else complies with the law, then it is not fair for one citizen not to, whilst at the aforementioned(prenominal) time still receiving the benefit which that law confers.In essence wherefore, under this concept, there are two tests that must be satisfied before it can be said that a prima facie moral obligation to obey the law has been established on the grounds of fairness. setoffly, the law must have generally beneficial hearts and secondly, most citizens must obey the law, so that a citizen would be taking an unfair advantage should he or she set not to.The latter part of this test is identical to the argument offered by Dworkin16 in justification of his general moral duty to obey the law Dworkin asserts that a man is under a moral duty to obey the law for reasons of fairness, as outlined above, but at the correspondent time, that same m an may also be under conflicting duties other than those he owes to the state, such as to God and his own conscience if these but duties conflict with his duties to the state, then Dworkin argues that such a man is entitled to do what he judges to be right.4 Promotion of the Common GoodThis ground for the existence of a prima facie duty is grounded in the ideals of utilitarianism if citizens tally the law then the collective welfare of society will diminish therefore citizens are morally obliged to obey the law. The disadvantage suffered by one citizen through giving to obey the law should, under this reasoning, be fit against the benefit conferred to society as a whole by his compliance.Finnis17 is one of the main proponents of this theory, although his reasoning does go somewhat further than the simple utilitarian approaches offered above. Finnis argues that fulfilling legal obligations is necessary for the common good, simply because the common good is the good of individuals. Having described and understood all of the possible justifications promoted for the existence of a general prima facie moral duty to obey the law position 1, let us now return to each of them and offer some critical compendiumDefeating Position 1 no prima facie moral duty to obey the law can be justified via the concepts of gratitude, promise-keeping, fairness or the promotion of the common good1 GratitudeWhilst gratitude in its normal everyday meaning capability therefore lead to certain moral obligations, never has it been suggested that as a target allow for of gratitude one should do everything that is asked of you. It is for this reason that this ground is weak, and does not adequately justify a general prima facie moral duty to obey the law.2 Promise-KeepingIt is instantly obvious that no general prima facie duty could ever be said to exist by virtue of the basic promise-keeping principle unlike a party to a contract, a citizen has no documentary choice as to which count ry he or she belongs, and therefore even though that citizen may indeed receive benefits, be infractn the aspect to vote, and be subjected to a just social structure, there is nothing imbed in the process of receiving these benefits which would lead one to automatically assume the finesse of a promise to obey. Therefore, I do not agree that a general prima facie obligation to obey the law can be derived by way of this rationale.3 FairnessThis justification for a prima facie moral obligation to obey the law relies heavily upon an idea that all law confers benefits an anarchist however may argue that the state produces no such benefits.Also, it is difficult to the concept of fairness to a legal constraint which genuinely does no-one any good if this type of case is frequently occurring, then the compend of fairness as day to day co-operative transactions will break down.4 Promotion of the Common GoodWhichever brand of utilitarianism one chooses to apply to this concept, the sam e conclusion results promotion of the common good cannot be used to justify the existence of a prima facie duty to obey the lawAct-UtilitarianismThe very chemical mechanism of act-utilitarianism require a balancing act of all the ordained and negative attributes of a certain action before deciding which course would be in the interests of the common good to decide whether or not a duty to obey the law exists will therefore depend upon which particular law is in question. As such, there can be no prima facie obligation to obey the law via this concept.Rule-UtilitarianismThe very mechanics of district-utilitarianism suggest that an action is right if it is required by a rule where general observance of that rule would have the best consequences. Following on from this, it makes sense that a rule requiring one to obey (with certain exceptions) would in all likelihood have better consequences than a rule requiring one always to obey. The process of formulating a comprehensive list o f such exceptions would in effect require an assessment using the same mechanisms as relevant to act-utilitarianism, and as such, the same criticisms to a prima facie duty will apply.It should be noted that these criticisms do no necessarily serve to destroy the arguments of Finnis Finnis argues that that fulfilling legal obligations is necessary for the common good, simply because the common good is the good of individuals. This is a theory that I will address in more detail at a later point in this dissertation. For now, we should simply be satisfied that any justifications based upon act- or rule- utilitarianism cannot be successful in establishing the existence of a general prima facie duty to obey the law.In essence, the criticisms of act-utilitarianism and rule-utilitarianism do not preclude there ever being a duty to obey the law, merely that the existence of such a duty can only be determined with reference to each particular law. This leads us back to our earlier discussion of position 2 jurists, those such as Smith18, who argue that whether or not there is such a duty to obey the law depends entirely upon which law in question is being obeyed/disobeyed i.e. that only sometimes will there be a prima facie moral obligation to obey the law. Before we go on to discuss the rationales that have been offered in support of position 2, let us first take a brief look at the work of George Klosko19, and his multiple principle theory of political obligationGeorge Kloskos multiple principle theory of political obligation combining the flunk justifications of internal Duty, Fairness and the Promotion of the Common Good, into a comprehensive justification for the existence of a general moral obligation to obey the lawGeorge Klosko employs three concepts in order to combine the principles of Natural Duty, fairness and the promotion of the common good into a single comprehensive unifying theory. He labels these three concepts as cumulation, vernacular support and overlap. He describes these three principles in the following wayFirst is what we call cumulation. Different principles can cover different services provided by the state, and so by combining principles, a larger range of state services can be accounted for. Second is what can be referred to as mutual support. In regard to certain state functions, if a given principle on its own cannot justify compliance, the problem might by chance be overcome by more than one principle working in tandem. The third way is simple overlap. The intuition here is that, period requirements to obey given laws could be relatively weak, these can be reinforced by support of additional principles.20These three concepts admit that individually arguments of Natural duty, fairness and those argument pertaining to the common good must fail in their task of explaining and identifying a general moral duty to obey the law, but using these three principles as described above, he disembodied spirits to show how t hese failing arguments can be combined to successfully address those limitations. The principle of shutdown serves to suggest that the main limitation of these theories is their applicability to a limited knowledge domain of state function, i.e. the services that the state provides to its citizens. Mutual support deals with the limitations of these individual arguments in relation to their attempt to justify a general moral obligation to obey the law, and the overlap principle deals with the respective weaknesses of each of these individual arguments, very much in the same way as we have done earlier in this essay.Klosko argues that a theory that only purports to account for one type of state function cannot be said to lead to a general duty to obey the law. He argues that state functions are social facts, and as such the failure of theorists to account for the variety of these functions in their theories is a factual failure in their arguments, a factual failure which must theref ore lead to conclusions which are non-comprehensive and cannot therefore be said to give rise to the general moral duty to obey the law which they purport to do.Whilst prima facie I can see the point that Klosko is making each of these theories do work to a certain extent, the problem being that we are always able to find many situations which exist where the theories fail to hit up to scrutiny. What Klosko has therefore tried to do is to incorporate these theories together, so that when one of them fails, another justification can step in to uphold our position of there being a general moral duty to obey the law. Whilst at first this may seem somewhat artificial, at least Klosko has tried to justify the fusion of these very different arguments by reference to state function.One cant help however feeling that some of the failures of the very individual justifications that he is using, rather than being simply cod to their limited scope by virtue of differing state functions, are s o fundamental as to render any fusion of them inappropriate. By the end of this essay I shall hopefully have demonstrated that the best compend of the question of whether or not there is a general moral duty to obey the law does not result from any of these individual arguments, uncomplete from the fusion of them, but rather from a wholly new expression of the character of the obligation and duty itself.Let us now turn to the position 2 theorists, and see if we can find some make arguments amongst their writingDefending Position 2 there may be a prima facie obligation to obey some laws, but such a duty cannot be a general oneM.B.E. Smith is normally known as an advocate of this position. In his earlier work, Is There a Prima Facie Obligation to Obey the Law? he performs an analysis of all the arguments which purport to support the existence of a position 1 duty to obey the law, providing successful counter arguments for each, and finally concluding as a result these analyses tha t the professedly answer to the question of whether or not there is a general prima facie moral duty to obey the law must reside at position 2 whether or not there is such a duty to obey the law depends entirely upon which law in question is being obeyed/disobeyed i.e. there will only sometimes be a prima facie moral obligation to obey the law.Defeating Position 2 exactly because we cannot find adequate justification for the existence of a general prima facie moral duty to obey the law does not mean that we must, by default, resort to the conclusion that the most accurate description of this normative phenomenon is that of there only sometimes being a prima facie moral obligation to obey the lawSimply because we cannot find adequate justification for the existence of a general prima facie moral duty to obey the law does not mean that we must, by default, resort to the simplistic conclusion that the most accurate description of this normative phenomenon is that of there only someti mes being a prima facie moral obligation to obey the law.Joseph Raz, in his scheme of Justice (1971) argues this point exactly. He does not understand why theorists have not ventured to reach a compromise between position 1 and position 2, especially in light of the fact that it seems so clear that the true answer must lie somewhere between these two uttermost(a) positions. Raz therefore proposed such a theory.The compromise between position 1 and position 2 J. Raz, in search of a new moving- flick showEarlier in this essay we discussed the character of the duty in question. We argued that whilst the duty will never be an absolute one, neither is it realistic to suggest that such a duty will be generally prima facie in character.To fictionalise those arguments, for the duty to be absolute is to deny a place for individual reasoning and autonomy in a society if every law must be obeyed regardless of any extraneous personal beliefs or opinions, then personal virtual(a) morality i s denied. Likewise, if the duty was prima facie in character, the ability of the law to retain social order and manage social conflicts may come into questionRaz therefore decided that an alternative enactment of the obligation was required, and so was born the notion of an absolute reason, or, as it has become known by certain other jurists21, the exclusionary reason. Let us now consider exactly what Raz understands by itRazs new characterisation of the obligation to obey the lawRaz introduces the idea of there being two orders of pragmatical reason first-order reasons and second order reasons. These reasons are practical in that they are the kind of reasons that may feature in an individuals closing process when that individual is attempting to decide upon a particular course of action, i.e. reasons to act or to end from acting for a reason. Second order reasons are higher in priority that first-order reasons, and as such, if two such reasons should come into conflict, it will be the second-order reason that shall prevail. Second-order reasons however might themselves be trumped by what Raz describes as cancelling-reasons, reasons which might exist within the context of the particular decision process at hand which could render the secondary-reasons void. The jurisdiction of a cancelling-reason, i.e. its scope within the context of a particular decision, will be affected by what Raz calls scope-affecting reasons. Exclusionary reasons are second-order reasons of a special kind whereas all the other types of reasons may be distinguished by their ground, exclusionary reasons have a special normative mathematical function to play in the whole practical deliberative process, and it is this normative role by which exclusionary reasons should be distinguished. In effect therefore, A second-order reason is any reason to act or to refrain from acting for a reason, whereas an exclusionary reason is a second-order reason to refrain from acting for some reason.22 E xclusionary reasons exclude other secondary reasons from playing their normal role in the deliberative process, in effect cancelling these otherwise valid reasons from the decision making process. To best understand the nature of these exclusionary reasons, and how they operate within the practical decision making process, let us follow through Razs very argument for the existence of these special secondary reasonsRaz commences his argument with an analysis of a couple of examples of the decision-making process. The first example scenario involves an agent who refuses to accept a business deal on the basis that he is too weary to think about whether or not the deal could be preferential to him. Raz explains how the decision making process in this example did not involve the processing of the actual fact pertaining to the deal in question, but rather on the basis that she realised that she was too tired to perform a thorough assessment, and as such decided to play safe and decline. In this case, the first order reasons would be the facts relating to the deal, and these are trumped by the second-order reason of tiredness. Raz then proposes the situation where a colleague of the agent, another like-minded agent of similar financial status, decides to accept an identical deal this may prove to be an adequate reason for the agent, disrespect her tiredness and inability to assess all the intricacies of the deal, to accept the deal. In such a case, we could say that the fact that the other agent accepted the deal serves as a reason for her to accept it herself. This reason does not outweigh the tiredness reason, nor does it undermine it, but it does result in a different outcome to her decision-making process.The second example scenario offered by Raz is as follows While serving in the army Jeremy is ordered by his commanding officer to appropriate and use a van belong to a certain tradesman. Therefore he has reason to appropriate the van. His acquaintance urges him to disobey the order pointing to weighty reasons for doing so. Jeremy does not deny that his friend may have a case. But, he claims, it does not matter whether he is right or not. Orders are orders and should be obeyed even if wrong, even if no injury will come from disobeying them. That is what it means to be a subordinate23. correspond to Raz, the order given to Jeremy by his commanding officer should be regarded as an exclusionary reason in that it excludes the reasons offered to him by his friend, from featuring in his practical deliberative process, despite the fact that these reasons were sound in nature. This is what Raz means by exclusionary reasons. As utter above, these reasons are distinguishable by virtue of their normative role, a role which Raz describes as reasons for performing certain actions, and, other things being equal, the fact that they are excluded by an exclusionary reason merely means that they should not be complied with, not that they should not be conformed to. The best course is if they are indirectly obeyed, i.e. if the action they indicate is performed for some other, independent, reason.24Let us now apply this pictorial matter to our general duty to obey the law. The first thing which becomes evident is that the duty to obey the law can itself be described as an exclusionary reason when we state that someone is under a duty to obey the law, we are effectively stating that in the decision process of that person, reliance on extra-legal considerations in the formulation of the decision of whether or not to act in such a way has no actual place in that process. Such extra-legal considerations are thus excluded from the practical decision making process by the very existence of a duty to obey the law.One might argue here that an analysis of the duty in this way yields no different results to that of the characterization of the duty as an absolute one. In fact, whilst the result may very well be the same, the description of the duty as an exclusionary reason does give respect to the existence of a balancing decision making process, in a way which an absolute conception would not as Menendez25 writes, the duty to obey the law, when conceptualized as an exclusionary reason, precludes direct weighting and balancing, but it does not rule out a margin of exercise of practical reason. This is enough to render compatible the obligation with individual autonomy.Razs picture of the duty to obey the law is certainly the most convincing to realise although somewhat contrived, it does manage to reconcile legal and moral duty in a way which allows the law to retain a legitimate authority, whilst respecting the fact that human beings are essentially autonomous in their decision making.Let us now see if we can find any criticisms of Razs