We libertarians recognize the value of a system of laws. More than any other movements, ours espouses formation of a system of laws that will be a system that implements justice and that will work. It is a system that first promotes justice, but which yearns also be a society of love. A society must first be a society of justice before it can be a society of compassion and wellness. If you ranked the good life higher than justice you might achieve neither.
Achieving Justice Requires Obedience to Laws
We obey the law and those legally appointed for its enforcement for various reasons. When the police order us to stop or to move back, we almost always do as the police order. The police are armed. Moreover, even if we were armed as well, we are morally constrained not to initiate the use of force. None of that, however, explains why we are obligated to obey. Neither the officer's gun nor our fear of it can explain it. We may obey laws for fear of loss of reputation or out of a desire for order. They only explain the fact that we obeyed, not why obedience to a law is obligatory.
While there might be a moral obligation to obey a particular law because of its moral content (e.g., laws prohibiting murder) or because it solves a coordination problem (e.g., laws requiring people to drive on the right side of the road and other rather benign rules that hardly anyone would quarrel with), the mere fact that a rule is law does not provide a moral reason for doing what the law requires. Establishing a law implies a demand for obedience, but does not prove why it must be obeyed.
A System of Law Relies on Morality
The moral reason for obeying a law depends on many things, including how the law was enacted, what problem it was intended to relieve, who instituted the law, how it is applied, what behavior it restricts and what rights it protects or violates.
Arguments in favor of an obligation to obey the law roughly fall into four categories: (1) arguments from gratitude; (2) arguments from fair play; (3) arguments from implied consent; and (4) arguments from general utility. This article takes a different tack.
Obeying laws is a moral obligation, not a legal obligation (The Internet Encyclopedia of Philosophy), however neither the existence of a law nor a particular type of lawmaking process provide a moral reason for doing what the law requires. That has to be discovered or developed out of a moral foundation.
Only moral reasons can provide ultimate reasons for action (University of Oslo Center for European Studies). The law itself cannot provide the ultimate or categorical reasons for action.
Nevertheless the nature or quality of a given law can be argued to be an essential part of what makes obedience to that law obligatory.
The Qualities of Good Laws
There can be laws that are bad (illegitimate, invalid or unjust), and there can be laws that are better.
Hayek explains that the rule of law has eight characteristics (Friedrich A Hayek, The Constitution of Liberty, London: Routledge.1960, 206ff.): laws that are non-retroactive, certain and known, equality before the law (i.e., laws that are perfectly general, abstract, and permanent), an independent judiciary, a government subject to rules, a judicial system to control the legality of administrative acts and judicial decisions, and a Bill of Rights (Hayek is too aware of the weakness of naïve iusnaturalism to list these rights).
How to get it Wrong
Looking at it another way, Lon Fuller, a late great professor of law, describes how to fail to produce good laws.
Lon Fuller, Morality of Law, 2nd rev. edn., (New Haven, Conn.: Yale University Press, 1969), p. 39:
[T]he attempt to create and maintain a system of legal rules may miscarry in at least eight ways; there are in this enterprise, if you will, eight distinct routes to disaster. The first and most obvious lies in a failure to achieve rules at all, so that every issue must be decided on an ad hoc basis. The other routes are (2) a failure to publicize, or at least make available to the affected party, the rules he is expected to observe; (3) the abuse of retroactive legislation, which not only cannot itself guide action, but undercuts the integrity of rules prospective in effect, since it puts them under threat of retrospective change; (4) a failure to make rules understandable; (5) the enactment of contradictory rules or (6) rules that require conduct beyond the powers of the affected party; (7) introducing such frequent changes in the rules that the subject cannot orient his action by them; and, finally, (8) a failure of congruence between the rules as announced and their actual administration. (p. 39)
A total failure in any one of these eight directions does not simply result in a bad system of law; it results in something that is not properly called a legal system at all, except in the Pickwickian sense in which a void contract can still be said to be one kind of contract. (p 39)
Fuller called these the “eight demands of the inner morality of law.” (p. 46)
What are Just Laws?
Note that that principle number eight might only convey the meaning of “misapplication of the law.” However, Fuller himself also finds a requirement for reciprocity in it, as does Barnett.
Randy E Barnett, The Structure of Liberty: Justice and the Rule of Law, (New York: Oxford University Press, 1998), p. 98f:
Barnett also finds more in Fuller's eighth principle of legality. He also sees a requirement there for a reciprocity. He finds a “failure of congruence” in disregard of legal precept by decision makers, such as being swayed by their own interest of partiality in making decisions or application of the law.
Barnett's own answer to our question may be consequentialist, (pp. 17-23) but definitely go beyond the prudential. In the introduction to this book he begins his case by asserting that liberty does not mean being libertine, that freedom requires structure. That structure consists of laws. A society where humans are to be able to pursue happiness, peace and prosperity has to have laws to make up the foundation for the required structure of justice.
Obedience to Laws Requires that they are Just Laws
With the establishment of a system of justice, based on laws, Barnett raises the question as to what creates the obligatoriness of those laws. Laws come with the demand for obedience. It is a necessary component. Laws are not mere guidelines to conduct. Must we respect them even if we reject the purpose they serve? Should we obey out of fear of punishment?
It is generally prudent to heed the barrell of the gun, but one should really also obey laws even in the absence of the police. But there is no magic force in the idea that you “ought” to obey.
Barnett says that laws or a legal system would not bind one in conscience if they “failed to recognize the rights that are essential to the pursuit of happiness, peace, and prosperity…” (p 68). To obligate us to obey requires that the laws do indeed recognize and protect our pursuit of happiness, peace and prosperity. By extrapolation, we are right in disobeying them if they harm these rights.
There is a certain quality needed, in other words, for legislative acts to be valid and legitimate and for them to bind in conscience. Whatever that quality is, “it must go in before the name ‘law' goes on” (p. 20). Laws are obligatory if they are consistent with natural rights. “For human beings in society with others to pursue happiness, peace and prosperity, enforceable legal rights must not conflict with certain background natural rights.” (p. 21) Laws intended to advance the general welfare cannot be permitted if they violate those rights.
If we picture consent to be a reason for laws to command obedience, a reciprocal consent of the governors to respect those rights is required. (p. 21)
Upholding the constitution requires honoring the claim in the preamble, which states that the constitution's purpose to “establish Justice, ensure domestic Tranquility, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity” (p. 21) All four are required. We do not have the obligation to obey laws that establish justice or ensure tranquility or promote the general welfare if they work against the blessings of liberty.
Valid versus Legitimate Law: Barnett, Take 2
In a later book, Restoring the Lost Constitution: the Presumption of Liberty (Princeton : Princeton University Press, 2004), pp. 48-51, Barnett updates his idea. Here he argues that a “valid” law is produced by the constitutional procedures. The “legitimacy” of a law is the quality of meriting the benefit of a doubt and a prima facie duty of obedience. A valid law could be illegitimate, and a legitimate law could be invalid (because the procedures did not provide assurances that the law is just). The proper procedures can also fail, resulting in an unjust law.
In chapter 2 he wrestles with the issue of constitutional legitimacy. He rejects the common view that legitimacy is based on the consent of the people. To truly amount to consent-based legitimacy, everyone in every generation would need to consent. It would need to be unanimous. There are institutions where this happens, e.g. condominium associations. However, it is not to be found in regard to the U.S. Constitution, and it cannot.
Legitimacy must have another foundation, or it would have none at all (as Lysander Spooner claimed in his The Constitution of No Authority). Barnett builds a case for the legitimacy of the constitution and laws enacted under it in their protecting rights rather than violating them. As he says on page 44f:
For a law is just, and therefore binding in conscience, if its restrictions are (1) necessary to protect the rights of others and (2) proper insofar as they do not violate the preexisting rights of the persons on whom they are imposed.
The second of these requirements dispenses with the need to obtain the consent of the person on whom a law is imposed. After all, if a law has not violated a person's rights (whatever these rights may be), then that person need not consent to it. The first requirement supplies the element of obligation. If a law is necessary to protect the rights of others (again, whatever these rights may be), then it is as obligatory for the person on whom it is imposed as protecting that person's rights is obligatory on the legal system itself.
The Myth of Consent as Reason to Obey
Ironically, in comparing the unanimous consent regime of organizations such as condominium associations with government, unanimous consent allows “many more legitimate restrictions on freedom than when consent is absent.” (p. 45) Small groups are able to consent unanimously to many restrictions. In the absence of consent, however, their rights remain intact and must not be abridged.
In a large group, with a large divergence of knowledge and personal projects, unanimous consent has proven impossible regarding anything.
There is then a duty to obey laws in the absence of consent. But it applies to laws that do not violate the rights of persons whose freedom they restrict. “Regulating” rights can be done without violating (forbidding) them. There is the classic example of allowing all kinds of free speech but limiting it to exclude particular uses such as screaming “fire!” in a crowded theater.
So, what means are available to create laws that accomplish this? Consent is not the way. Police and prosecutorial procedures are presumptive. Judicial process comes too late. Legislative procedures are the only way. It all boils down to the lawmaking procedures.
To produce laws that are just, and therefore binding in conscience, the procedures must determine that some “restrictions are (1) necessary to protect the rights of others and (2) proper insofar as they do not violate the preexisting rights of the persons on whom they are imposed.” Such procedures deserve the benefit of a doubt, and we ought to obey the laws produced under them. On the other hand, if the procedures do not give us assurance that they will do this, we are not bound in conscience to obey the laws that are produced.
Neither are we bound to obey if the combination of the lawmaking process and the way laws are applied create an unjust legal system (see Lon Fuller's eight principles, above).
Should we Disobey Unjust Laws?
Legislative acts that violate our rights to our lives, liberty and the pursuit of happiness are invalid laws, unjust laws. These rights are inalienable. We must not tolerate the violation of them. We really should disobey such unjust laws.
Moreover, since it is possible for a lawmaking process to produce just laws that are subsequently applied in an unjust manner, it is logical to say also that such laws should be disobeyed.
These reasons make it morally necessary, at times, to disobey laws. These reasons, however may not be sufficient. Any sane individual who is faced with this choice would be foolish to ignore other factors, such as timing, the likelihood of being worse off if arrested and prosecuted, the effect of it on loved ones, the possibility of other actions leading to the unjust law being overturned, etc.
Take a look at the list of grievances made by our Founding Fathers in the Declaration. It did not happened overnight. It took ten years of struggling, relatively peacefully, with the monarchy. That was a revolution. That revolution ended with rebellion. That rebellion ended with victory in war. There was some luck involved. It could have ended with defeat and worse treatment by the king.
When we think too much is at stake, and disobeying is worth it, and circumstances appear to be our favor, we too may have to take the same road. Let revolution begin in our minds!
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