In my previous post I discussed self-corruption and how it should influence our view of morality and the harm principle. Here, to begin my reflections on the relationship between law and morality, I shall explain why self-corruption grounds a prima facie moral obligation to obey the law. The following was submitted to Oxford's Law Society for an essay competition and it is therefore in a slightly different format from my normal posts, and repeats much of the groundwork for the concept of self-corruption as laid out in the previous post.
Self-Corruption and the Moral Obligation to Obey the Law
The question of a moral obligation to obey the law, straddling as it does the fence between legal and moral philosophy, must appear one of the more imminent and relevant aspects of jurisprudence to the legal outsider. Most of us will have encountered a situation where we could break a law of some kind without any apparent chance of punishment or harm arising. Is there a moral dimension which arises here, encouraging us to act in accordance with the law despite it seeming to serve no coherent moral aim? I will argue that there is. Specifically, that in a reasonably just society, there will always be a prima facie obligation to obey the law.
Nobody would defend the position that there is an absolute duty to obey the law, at least not since the morally horrific yet legally binding norms of the Nazi German state. Instead, I would argue for a prima facie duty: A duty-creating reason which can be bolstered or displaced by other considerations. In this way there is a prima facie moral duty not to kill which may, in select situations like self-defence and possibly euthanasia, be displaced. The duty to obey the law will serve as scant defence to those who committed Nazi horrors, since there are clear and overwhelming reasons ensuring the overall moral balance is against obedience.
Raz’s argument against the prima facie obligation
Philosophers epitomised by Joseph Raz however argue emphatically that even such a prima facie obligation cannot exist. Raz argues that we would label as immoral anyone who refrained from murder because it was illegal, rather than for other reasons. Therefore any ‘prima facie obligation’ would there be dead (1). I submit that this is a confused way to consider moral obligations. Raz implicitly assumes that moral obligations can be added up in specific situations to give an overall moral weighting, rather like adding up the costs and benefits of a business transaction in purely economical terms. On this view, the obligation to obey the law does indeed not seem to add any weight to strong moral reasons against murder. However, we do not look at moral obligations in the way that he suggests.
Let us consider the moral obligation to uphold a promise made. Once again it would seem clear that this cannot be an absolute obligation (considering promises to do wrong). Nevertheless there are good moral reasons for upholding a promise which would need to be displaced in specific circumstances: Since society depends to an extent upon people being able to rely on the word of others, every broken promise damages the society in which it takes place. As long as that society is worth preserving (a reasonably just society) this will underpin a prima facie duty to uphold promises. Now, imagine that after some terrible slight I am moved to kill an enemy, but promise a good friend of mine that I will not. Still, I go ahead and do the deed. Clearly from an objective point of view the promise can be excluded from consideration of my moral wrong. It has been swallowed up in the heinous act of murder. Nevertheless, I would argue that the obligation to obey my promise still existed, running concurrently with the obligation not to murder and merely eclipsed by it. Certainly, it would seem absurd to argue that because in this case other considerations make the promise practically morally irrelevant, there is not a prima facie obligation to obey promises. Exactly the same is true with the obligation to obey the law. It is eclipsed by more pressing moral matters, certainly, but it still exists, Raz’s assertion notwithstanding.
The bad example argument
Despite the failure of this argument, it is still for me to make my case in favour of the duty. I must express gratitude to Raz and Smith here in aptly dismissing a number of unsatisfactory positions (2). I will focus on the sole ground for a duty which I do not believe they succeeded in demolishing: The ‘bad example’ argument which is helpfully summarised by Raz (3).
It states that in a reasonably just society, there will be many laws with which it is better to comply simply because they are laws. Raz accepts this in the cases of the government having better expertise over regulations than (most) individuals and the government co-ordinating collective action which would fail without the government’s intervention. Therefore, the argument goes, there is a prima facie obligation to obey all laws, even those not falling under these categories, since to do otherwise would set an example of contempt for the law, discouraging others from obeying the law even in worthwhile cases. This will be damaging for a society which, as reasonably just, we wish to preserve.
Raz respects the argument but says that it is insufficient to ground a general duty as it requires the possibility and likelihood of setting a bad example in every single case. He gives the counter-examples of horrific murders, which will actually strengthen feeling in favour of obedience, and running red lights when there is no-one about, which provides no example at all. It is submitted that he has missed some crucial points. Regarding the murder situation, one cannot know in advance what effect a crime will have on other people’s opinions of crime. It may encourage or discourage them from it. Nevertheless, the balance is always in favour of encouraging, because instances cumulatively bring an act closer to general acceptance. Also, the shaking up of people’s perceptions of the act always carries a risk of desensitising them to it. Far more difficult to answer is the traffic lights situation. The central argument of this essay is an attempt to answer it.
Imagine that I am a forgetful person who must remind myself to do things by a system of notes. One night I promise my friend to buy him something the next day and write a note to that effect. However just before bed the friend annoys me. In anger I throw away the note, aware that this will ensure that I forget my promise. Imagine further that I well know that I tend to forgive (or forget!) wrongs in my sleep so that had I seen the note the next day, I would almost certainly have obeyed its contents. My acts the next day in failing to uphold the promise are not wrong. Who can blame me for failing to remember something when it is outside of my control? Indeed, I would be blameless if some rogue, and not I, had dispensed with my note. The wrong was done last night. In effect I manipulated events so that I did harm (breaking the promise) the next day. Although I did not breach the harm principle in the immediate timeframe, I did so in an inchoate way: I pushed myself to cause harm in the future.
Why the slightly far-fetched example? I am trying to show that setting myself up to cause harm in the future is in itself a wrong. This seems relatively clear in this memory case. Now consider a new scenario. Imagine that I am fed up with people being mean to me. In order to gain some respect, I train myself to respond automatically to taunts and teasing with disproportionate physical violence. As a result I later cause terrible injuries to people who fall foul of my training. I would imagine it relatively uncontroversial to hold that, as in the memory example, I was doing something wrong in training myself thus. Even before I actually harmed anyone, I was influencing myself so as to cause harm at a later date, and this must be wrong.
In essence, I am arguing that whatever formulation of the harm principle people go by, this kind of inchoate harm must be included. Just as I do wrong in persuading my friend to harm another, I do wrong if I ‘persuade’ myself to do so. I will call this ‘self-corruption’. Both of the examples so far involved deliberate choices to cause harm in the future, but the principle seems to logically extend to where causing harm in the future is a logically foreseeable consequence or risk of my actions now. Of course, such actions may still be justifiable by other means: A soldier at war may develop a violent character but this might be justified by the circumstances of war. This makes avoiding self-corruption which makes harm more likely a prima facie duty which would need to be displaced in individual cases.
Self-corruption and the bad example argument
Now recall the traffic light example that I considered earlier. In running red lights when no other vehicles or pedestrians are around we might well not risk any real harm nor set any bad example to others. However surely we are setting a bad example to ourselves. Every time we break the law we lessen our respect for its normative force, and make it more likely that we will break the law again. There is a close parallel with promises here. It may well be possible to break a promise and get away with it without anyone ever knowing or getting harmed. However, in doing so we reduce our respect for promises as a whole, making it more likely that we will breach promises in the future. In both cases it seems quite reasonable to assume that our diminished respect for the concept (law or promise) makes it more likely for us to breach it again, even where it is uncontroversially wrong to do so.
There are two levels to this. The first is that once we break a law or promise without anyone else knowing or being affected, we are more likely to do so again in ways which do harm people due to the promise or law having existed (as well as Raz’s situations when law itself creates moral duties, people also rely on both law and promises in ways which can make it wrong to violate them). This is a direct step from harmless breach to harmful breach. On the indirect level however, once we break a law or promise without anyone else knowing or being affected, we are more likely to do so again in ways which set bad examples to people around us. They are then more likely to break laws and promises in ways which harm people due to the promise or law having existed. On both direct and indirect levels, disobedience of even trivial laws risks leading to harm.
It is submitted that this must therefore be prima facie wrong, as it is an example of self-corruption. Remember that self-corruption is influencing oneself so as to cause or risk causing harm in the future. Breaching promises or trivial laws risks us causing harm both ourselves and through the medium of other people through bad example. Therefore there is a prima facie obligation not to breach laws and promises. Of course as earlier conceded, this can be displaced where there is a good reason for the breach. Nevertheless the obligation always exists.
My conclusion that there exists a prima facie obligation to obey the law in reasonably just societies rests on just two new foundations. One is empirical: Breaching the law without causing harm or setting a bad example for others makes it more likely that we will breach the law where it has created a moral obligation and / or where it sets a bad example for others. The other is moral: It is prima facie wrong to influence ourselves so as to make us more likely to cause harm in the future. If these two stand, as I believe they do, then an obligation exists after all. In fact given the level of truth Raz has conceded to the classical formation of the bad example argument, it would seem difficult for him to deny my extension of the argument through self-corruption.
1. ‘The Obligation to Obey the Law’, Chapter 12 in Raz, J. (1983) The Authority of Law. Oxford University Press.
2. See especially Smith, M.B.E. (1973) “Is There a Prima Facie Obligation to Obey the Law?” Yale Law Journal 82:5. p. 950.
3. ‘The Obligation to Obey the Law’, Chapter 12 in Raz, J. (1983) The Authority of Law. Oxford University Press.