Anarchy or Obligation Flashcards
Wolff’s objection
since all men have a continuing obligation to achieve the highest degree of autonomy possible there is no moral obligation to obey the authority - Philosophical anarchism
philosophical anarchism
the denial that law has all the authority it claims for itself
non-voluntarist
does not invoke the choice or will of its subjects
instrumentalist (Raz)
authority must be instrumentally justified as a way to help its subjects do what they ought to
normal justification thesis
authority justified “if a subject is likely better to comply with reasons which apply to him if he accepts the directives of the authority as authoritatively binding then if he tries to follow the reasons why apply to him directly”
dependence thesis (in NJT)
the authority bases his directives on the reasons which apply to the subjects
pre-emption thesis (in NJT)
the subjects take his directives as pre-emptive reasons displacing their own judgments
scheme of social cooperation
NJT can be broadened to where it integrates the activity of many people who must cooperate but who disagree on there matters (British participation in ECHR)
Constitutive (Dworkin)
politicis is a form of association that in itself bears obligations
Consent (as a part of voluntarist)
“The right of all sovereigns is derived originally from the consent of everyone of those that are to be governed” (Hobbes, Leviathan)
Critique:
- but many people have done nothing which would constitute giving consent — response: tacit consent from residence (Plato) or any enjoyment of the benefits of government (Locke)
- even so people do these things without imagining they will create obligations
Expressive obligations (Voluntarist)
obey the law an appropriate expression of emotions we have good reasons to feel (eg being included in a community)
Critique - (i) apply only to those who stand in this special relation (ii) unclear why we should think of this relation as obligation
Fairness (Hart, Rawls)
those who accept the benefits of fair scheme of cooperation have a duty to do their allotted part under that scheme, if others obey the law to our benefit, we owe them a duty not to free-ride on their compliance
Critique of Fairness
(i) need acceptance on the part of its subjects, otherwise same as non-voluntarist
(ii) people do not “accept” the benefits consciously
(iii) not all cases of disobedience can be said as ‘free-riding’, eg undetected breaches
In defense of anarchism (Wolff)
Authority and autonomy are mutually opposed concepts which cannot be reconciled and since the primary obligation of man is autonomy, he should resist the state’s claim to have authority over him.
authority
right to command and be obeyed (obeying the authority just because they say so as a binding content-independent reason)
power
ability to compel compliance through force
persuasive argument
if I am persuaded to do sth, I am not obeying the command because the person say so but only acknowledging the force of an argument
autonomy
self-legislating
Kant on autonomy
men are metaphysically free, meaning that they are capable of choosing how they shall act
obligation to take responsibility
man possessing free will has an obligation to take responsibility for his actions even though he may not be actively engaged in continuing process of reflection about how he ought to act
so long as we acknowledge our responsibility for our actions, we must recognise as well continuing obligation to make ourselves the authors of such commands we may obbey
moral autonomy
submission to laws which one has made for oneself, an autonomous man 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
conflict between autonomy and authority
if all men have a continuing obligation to achieve the highest degree of autonomy possible, then there would be no moral obligation to obey the authority
if the individual retains his autonomy by reserving to himself the final decision whether to cooperate, he denies the authority of the state
if he submits to the state and accepts its claim to authority then he loses his autonomy
solution to the conflict
- embrace anarchism and consider all forms of government as illegitimate or
- renounce one’s autonomy. however one cannot give up autonomy since it would equate submitting oneself to ‘wilful heteronomy’ (Kant) / ‘surrender of judgment’. autonomy which constitutes our freedom to make our own choices and responsibility for these choices is inherently embedded in our human dignity
- we have no choice but to embrace anarchy as a the only doctrine with the virtue of autonomy
Hobbessian justification
the only justification of authority is the idea that the monopolisation of force under an authority is better than the alternative of anarchy; a world w/o any political authority, the state of nature in which each man is at war with each other, is worse even than living under the authority of a tyrant so as the tyrant does not engage in the wanton murder of his subjects.
Raz - instrumentalist/service conception
autonomy does not exclude authority, but the authority of law is justified to the extent it helps us better to comply with reasons that apply to us than if we try to follow the reasons directly
The Obligation to obey the law (1979): there is no obligation to obey the law, even in a good society whose legal system is just.
character of obligation
that the law has legitimate authority
it entails a reason to do that which the law requires:
- categorical - the reasons do not condition their claims on the subject’s own goals or interests
- exclusionary/pre-emptive - the reason excludes some countervailing reasons
disobedience sets an example and inclines other people to disobey and those affected may not be discriminating or may be inclined to break good laws as well as bad ones
this only provides an ordinary prima facie reason to obey, not amounting to an obligaton as recognition of the authority of the law
fails to apply to undetected offences
- may argue these do not serve as bad example but still the obligation should be general
promise - moral obligation based on promises or voluntary undertakings
most people do not commit themselves this way and cannot interpret ordinary submission to the law as mounting to such undertaking, as expressed intention is required
estoppel or quasi-estoppel - a person knowingly induces another to obey the law which lead him to believe that I will obey the law myself then I should not let him down by breaking the law
only applies if by breaking the law I adversely affect him but generally it doesn’t
generally we do not induce this kind of reliance on others
even if we do, we do not do that knowingly
morally pernicious: suggest that every individual is inevitably obliged to obey the law regardless of how good or bad that law may be
every legal system has some moral merit or alternatively, other moral content (eg good institutions)
if characteristics of law make it morally valuable, then it affects an individual’s reasons only to the extent that his action will undermine the law - goes back to example-setting argument
Peter Singer (1973) - reasons to obey the law in a perfect democracy: (i) participation (estoppel by voting) (ii) democratic procedures as a fair way of achieving a compromise b/n competing and legitimate aims
(i) simply false factual assumption - non-democrats can participate
(ii) 2 reasons why democratic prod can be thought to be fair (1) the gov is just (then go back to support for institutions (2) the very fact that solution was reached makes it a just solution (misguided)
prudential reasons to obey the law
reasons to do that which the law requires because it requires it (unlike moral reasons)
primary prudential considerations - eg the risk of incurring sanctions
not sufficiently extensive - all of us have opportunities to break the law where no prudential reasons against such actions apply
secondary prudential considerations
apply more widely:
- PPC apply to some or all cases within a certain class (i.e. on some or all occasions in which one can break the law one has a prudential reason for not doing so)
- attempt to establish whether PPC applies in each individual case involve costs(eg risk of miscalculations, time)
- prudential reason to act on a policy of always obeying the law rather than examine in every case whether it is or is not governed by a PPC
shortcoming of prudential policies
- PCs do not give rise to moral obligations
- the extent to which secondary PCs for adopting a policy of abiding the law vary from person to person
- almost nobody has reason to adopt an all-embracing policy b/c they can exempt low-risk areas
Good law without an obligation to obey
This seems to be a paradox: We think a moral citizen obeys the laws of a just legal system, and the
good legal system as one whose laws ought to be obeyed.
To dispel the paradox, has to consider the ways in which the law serves its functions:
o (i) Provisions of reasons through sanctions
• This punishes acts which shouldn’t be performed for reasons independent from the
existence of law (mala per se: wrong in itself). and sanctions serving as alternative
reasons for people who are not motivated as they should be.
o (ii) Marking of standards required by the organised society in a publicly ascertainable way
One has reason to do because of participation in schemes of social cooperation (mala
prohibita: wrong because it is prohibited)
• E.g. the act is only useful if a sufficiently large number of people behave in
particular ways (e.g. polluting river)
• E.g. the particular form of scheme concretises a general obligation (e.g.
welfare contribution)
law and obligation to obey
- the law is instrumental in setting up schemes of social cooperation
- the moral reasons affecting such cases derive entirely from the factual existence of the social practice and not from the fact that the law instrumental (it’s the practice that matters)
- the law is good if it provides prudential reasons for action then it reinforces protection of morally valuable possibilities
- the legal system can be good but we can also deny that there is an obligation to obey its laws
Obligation to Obey (1984) (author???)
the extent of the duty to obey the law in a relatively just country varies from person to person and from one range of cases to another, though some cases are likely to apply equally to all citizens (eg coorindative, bad example); the extent of the obligation depends on factors other than whether the law is just and sensible (eg expertise of the individual citizen, circumstances of the occasion of violation)
gov without authority
the paradox - there is no general obligation to obey the law of an unjust state but there is an obligation to obey the law of reasonably just state
there is a moral obligation to obey just laws; the more just the law, the stricter the obligation
- if that which the law requires is moral then the moral obligation to execute that act is not due to the existence of an obligation to obey the law; rather it is prior to and independent from the moral obligation to obey the law
- if one refrains from committing murder, it is not because of a moral obligation to obey the law but rather for reasons which have nothing to do with the law
a legal obligation to obey the law
this is tautological - one has a legal duty to obey the law because one has a legal duty to obey the law
the law exercises certain desirable functions eg motivate those who fail to be sufficiently moved by sound moral reasons
this can be done without presupposing any obligation to obey, one can threaten and penalise people without having any authority over them
foundation of political authority
basic position - no one has any moral reason ever to take account of the existence of the law. the extent of the obligation varies from person to person. in no case is the moral obligation as extensive as the legal obligation
3 types of situation where there is a duty to obey (political authority)
1) the judgment of gov is more reliable than mine (safety reg) so I am duty bound to obey — depends on law’s superior knowledge and the importance of being correct is more than the importance of having a choice
2) the law facilitates what individuals have reasons to pursue in the first place but cannot do so effectively on their own cause their reaslisation requires coordination —- this depends on the law’s ability to fulfill the function (likelihood of general conformity)
3) disobedience may encourage other people, undermining the ability of a largely just and moral gov to discharge its functions - so I have an obligation to obey but it does not show gov’s authority over me —– sometimes law-breaking has no effect on gov’s ability (eg undetected breaches)
common for all 3 - they are typical and in all examples the makes difference to one’s moral obligation
none of them separately or altogether is capable of being generalised to a general obligation to obey; they highlight the degree to which the obligation is limited and varied
Finnis’ objection
the law presents itself as a seamless web - its subjects are not allowed to pick and choose
- counterarg - one cannot presuppose that we have such an obligation in order to provide the reason for claiming that we have an obligation to obey
Finnis - people may be misguided if they are free to object
- counter: human judgment errs, and whether this leads to submission or denial of authority depends on the circumstances
non-instrumental reason: FAIRNESS - it is unfair to enjoy benefits derived from the law without contributing one’s share to the production of benefits
one has no choice but to accept benefits
it cannot be unfair to perform innocuous acts which neither harm anyone nor impede the provision of any public good
contract and consent
many people have never performed anything remotely like such an action
associative duty (semi-voluntary) - obligation to obey out of a sense of identifying with or belonging to the community (just like duties of loyalty in friendship)
one does not have a moral duty to feel a sense of belonging in the community
ATTACK ON RAZ
- difficulty in application
- value of autonomy lies in choice
- it may be hard to know whether someone has authority
- the test: do I do better complying with authority or complying with my own reason?
- Raz thinks this is not difficulty, because legitimacy is a complex concept that needs empirical reason since people who assume that the law has authority might be wrong just as people who think they know better
- what if reasons are subjective (ie we only have reasons to do things if we want to do them?) — Raz: REASONS ARE OBJECTIVE, and about what you should desire rather than what you desire. - you may desire to kill someone but you have no reason to bring that about & in fact you have a reason to respect their life — John T thinks Raz is right
– too paternalistic though?
