We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Close this message to accept cookies or find out how to manage your cookie settings.
Published online by Cambridge University Press: 12 February 2014
This essay argues that there can be a duty to obey the law when it is produced by the evolutionary forces at work in the customary and common law. Human beings' inherent epistemic limitations mean that they must rely on the trial and error learning built into the common law process to discover rules that facilitate peaceful social interaction. Hence, a duty to obey the law produced by the common law process can arise from individuals' natural duty to promote social peace. This argument cannot be extended to ground political obligation. It does not give rise to a duty to obey the state.
The author is indebted to David Schmidtz, Carmen Pavel, and the other contributors to this volume for their constructive criticism of this essay and their recommendations for improvement. The author also wishes to thank Ann C. Tunstall of SciLucent, LLC for her insightful comments of a draft of this essay, and Annette and Ava Hasnas of the Montessori School of Northern Virginia for giving him overwhelming evidence that there is no duty to obey the commands of authority figures.
1 Kramer, Matthew H., “Moral and Legal Obligation,” in Blackwell Guide to the Philosophy of Law and Legal Theory, ed. Golding, Martin P. and Edmundson, William A. (Oxford: Blackwell, 2005), 179Google Scholar.
2 Edmundson, William A., “State of the Art: The Duty to Obey the Law,” Legal Theory 10 (2004): 215–59 at 216Google Scholar.
3 Ibid., 215.
4 See, e.g., Lefkowitz, David, “The Duty to Obey the Law,” Philosophy Compass 1, no. 6 (2006): 571–98, at 571CrossRefGoogle Scholar, where after explicitly recognizing that “there is more to the modern state than its legal order, and not every legal order exists within a state,” Lefkowitz nevertheless ignores the distinction stating, “the terms ‘law,’ ‘legal,’ and ‘state’ will be used interchangeably; for instance, by referring in some cases to a duty to obey the law, and in other to a duty to obey the state (or the state's directives)”; and Edmundson, “State of the Art: The Duty to Obey the Law,” 217, where after recognizing that “[r]ecent usage has tended also to conflate the duty (or obligation) to obey the law with what is referred to as ‘political obligation,’ ” Edmundson nevertheless recommends that “the term ‘political obligation’ … should be understood to refer preeminently to the duty to obey.”
5 Philosophical anarchism is the position that holds that although states are morally illegitimate, there does not exist a “a strong moral imperative to oppose or eliminate states; rather [philosophical anarchists] typically take state illegitimacy simply to remove any strong moral presumption in favor of obedience to, compliance with, or support for our own or other existing states.” Simmons, A. John, Justification and Legitimacy: Essays on Rights and Obligations (Cambridge: Cambridge University Press, 2001), 104Google Scholar.
6 Lefkowitz, “The Duty to Obey the Law,” 572.
7 Simmons, A. John, “The Duty to Obey and Our Natural Moral Duties,” in Wellman, Christopher Heath and Simmons, A. John, Is There a Duty to Obey the Law (Cambridge: Cambridge University Press, 2005), 93–196, at 102Google Scholar.
8 Edmundson, “State of the Art: The Duty to Obey the Law,” 229.
9 See, e.g., Rawls, John, A Theory of Justice (Cambridge, MA: Harvard University Press 1971)Google Scholar; Waldron, Jeremy, “Special Ties and Natural Duties,” Philosophy and Public Affairs 22 (1993): 3–30Google Scholar; Lefkowitz, David, “A Contractualist Defense of Democratic Authority,” Ratio Juris 18 (2005): 346–64CrossRefGoogle Scholar; Finnis, John, “The Authority of Law in the Predicament of Contemporary Social Theory,” Notre Dame Journal of Law, Ethics, and Public Policy 1 (1984–1985): 115–37Google Scholar; Wellman, Christopher Heath, “Samaritanism and the Duty to Obey the Law,” in Wellman, Christopher Heath and Simmons, A. John, Is There a Duty to Obey the Law (Cambridge: Cambridge University Press 2005), 3–89CrossRefGoogle Scholar.
10 Edmundson, “State of the Art: The Duty to Obey the Law,” 235.
11 Ibid.
12 Finnis, John, “Law as Co-ordination,” Ratio Juris 2 (1989): 97–104, at 133CrossRefGoogle Scholar, writes “Political authority has its most thorough explanation as the source of solutions to coordination problems … [problems] where, if there were a coordination of action, significantly beneficial payoffs otherwise practically unattainable would be attained by significant numbers of persons, where there is sufficient shared interest to make some such coordination attractive, and where the problem is to select some appropriate pattern of coordination in such a way that coordination will actually occur.”
13 See Rawls, A Theory of Justice, 333–55 and Waldron, “Special Ties and Natural Duties.”
14 See Wellman, Christopher Heath, “Toward a Liberal Theory of Political Obligation,” Ethics 111, no. 4 (2001): 735–59, at 745CrossRefGoogle Scholar.
15 Lefkowitz “The Duty to Obey the Law,” 590.
16 Raz, Joseph, “The Obligation to Obey: Revision and Tradition,” Notre Dame Journal of Law, Ethics, and Public Policy 1 (1984–1985): 139–55, at 152Google Scholar.
17 Simmons, “The Duty to Obey and Our Natural Moral Duties,” 174.
18 Ibid., 166. See also, Lefkowitz, “The Duty to Obey the Law,” at 592, who states that “[a] second objection leveled against all natural duty accounts involves their inability to justify the particularity of the duty to obey the law. Granting for the sake of argument that an agent's fulfilling her natural duties requires support for just political institutions, and that such support must take the form of obedience to law, critics argue that natural duty theorists cannot demonstrate why agents must obey the law of the state that claims jurisdiction over them, rather than, at least in some cases, the law of some other state.”); and Jeremy Waldron, “Special Ties and Natural Duties,” 5, who states that “[t]he first objection is that a theory basing the requirement of obedience simply on the quality of legal and political institutions is unable to explain the special character of a person's allegiance to the particular society in which he lives.”
19 Simmons, “The Duty to Obey and Our Natural Moral Duties,” 148–49. See also, Ladenson, Robert, “Legitimate Authority,” American Philosophical Quarterly 9 (1972): 335–41Google Scholar; Edmundson, “State of the Art: The Duty to Obey the Law,” 223.
20 Edmundson, “State of the Art: The Duty to Obey the Law,” 235.
21 Morris, Christopher, An Essay on the Modern State (Cambridge: Cambridge University Press, 1998), 214CrossRefGoogle Scholar.
22 Lefkowitz, “The Duty to Obey the Law,” 590.
23 Edmundson, “State of the Art: The Duty to Obey the Law,” 235.
24 American Bar Association (ABA) Model Code of Professional Responsibility (1983), EC 4–1Google Scholar.
25 ABA Model Code of Professional Responsibility (1983), EC 7–1Google Scholar.
26 See Surowiecki, James, The Wisdom of Crowds (New York: Doubleday, 2004), 3–22Google Scholar.
27 Space does not permit a detailed description of the nature of customary and common law. Hence, I provide only a telescoped overview. For a fuller account, see Hasnas, John, “Two Theories of Environmental Regulation,” Social Philosophy and Policy 26 (2009): 95–129, at 108–115CrossRefGoogle Scholar; Hasnas, John, “Hayek, Common Law, and Fluid Drive,” New York University Journal of Law and Liberty 1 (2005): 79–110, at 81–98Google Scholar; and Zywicki, Todd, “The Rise and Fall of Efficiency in the Common Law: A Supply-Side Analysis,” Northwestern University Law Review 97 (2003): 1551–1633, at 1582–89Google Scholar.
28 Fuller, Lon L., “Human Interaction and the Law,” in The Principles of Social Order: Selected Essays of Lon L. Fuller, ed. Winston, Kenneth (Durham, NC: Duke University Press, 1981), 212Google Scholar. In what follows, I rely heavily on Lon Fuller's exceptionally lucid account of the nature of customary law that I can do little to improve upon.
29 Fuller, “Human Interaction and the Law,” 213–14.
30 Ibid., 219–20.
31 Ibid., 228.
32 Ferguson, Adam, An Essay on the History of Civil Society (1767), part 3, sec. 2Google Scholar.
33 Please note that I am making no claim that systems of customary law always reduce violence or promote justice. The brief account provided applies only in circumstances in which the rules evolve free from pre-existing distorting or oppressive influences—when the rules evolve in a normative “state of nature.” Customary law that develops within incentive structures that promote oppression will tend to be oppressive. My argument in this essay is that individuals can have a duty to obey the law when their community is governed by a system of customary law that evolves free from pre-existing state or other oppressive power structures.
34 Blackstone, William, Commentaries on the Laws of England, Volume 1, (Oxford: Clarendon Press, 1765), 65Google Scholar.
35 Pollock, Frederick, First Book of Jurisprudence, Sixth Edition (London: Macmillan & Co., 1929), 254Google Scholar.
36 Berman, Harold J., Law and Revolution: The Formation of the Western Legal Tradition (Cambridge, MA: Harvard University Press, 1983), 480–81Google Scholar.
37 In this context, please banish from your mind any association of this discussion with the high profile Constitutional decisions made by the Supreme Court of the United States. The current discussion applies only to judicial behavior in common law cases, not cases in which judges interpret Constitutions or statutes, which are the type of consciously created state law that I am excluding.
38 Common law judges are never in a position to make up rules out of whole cloth or create rules as a mechanism of social control as legislators are. The need for a plaintiff to bring a case means that there must always be harm to some individual's interest before judges can get involved. There are no victimless torts. No harm to an individual means no plaintiff. No plaintiff means no lawsuit. No lawsuit means no judicial ruling. No judicial ruling means no rule of law.
Note also that the evolution of rules takes place at the appellate level. That is, when there is either no rule governing a type of conflict or the currently operative rule is unclear, archaic, or produces putatively unjust results, appeals from jury verdicts allow judges to attempt new resolutions that can create new or reshape old rules of law. Such evolution is not stimulated by any and all violations of law. For when an effective rule of law exists, violations of it are easily resolved at the trial level and do not give rise to appeals. The law of battery has been stable for centuries. The fact that individuals continue to commit batteries does not produce change because the assignment of liability for battery does not raise any controversial questions of law that can generate controversial appeals.
39 See Simmons, “The Duty to Obey and Our Natural Moral Duties,” 115–20.
40 Rawls, A Theory of Justice, 62.
41 Ibid., 93.
42 I originally introduced the idea of primary values in a previous contribution to this journal. See Hasnas, John, “Toward a Theory of Empirical Natural Rights,” Social Philosophy and Policy, 22 (2005): 111–47, at 140–42CrossRefGoogle Scholar.
43 Edmundson, “State of the Art: The Duty to Obey the Law,” 215.
44 Simmons, “The Duty to Obey and Our Natural Moral Duties,”166.
45 Note that the duty that I advocate—the duty to obey the law of the particular community one finds oneself in—also resolves other problems that dog arguments for the duty to obey the law such as whether foreign visitors are bound to obey the local law or whether the duty can apply to nongeographical communities. Because the duty I advocate is a duty to obey the law of the particular community one is in, foreign visitors would be bound by it. Further, there is no reason why the duty cannot extend to nongeographical communities in the proper circumstances.
46 Simmons, “The Duty to Obey and Our Natural Moral Duties,” 148–49.
47 Lefkowitz, “The Duty to Obey the Law,” 590.
48 Edmundson, “State of the Art: The Duty to Obey the Law,” 235.
49 Oliver Wendell Holmes famously attempted to create a common law duty for all drivers to stop, look, and listen at railway crossings before proceeding in 1927. See Baltimore & Ohio Railroad v. Goodman, 275 U.S. 66 (1927)Google Scholar. This duty lasted only seven years before being overruled in 1934. See Pokora v. Wabash Railway, 292 U.S. 98 (1934)Google Scholar.
50 Ferguson, Adam, An Essay on the History of Civil Society (1767), part 3, sec. 2Google Scholar.
51 Raz, “The Obligation to Obey: Revision and Tradition,” 151.
