3.1 - Sypnowich, Christine - Consent, Self-Government and Obligation (En)

Consent,SelfGovernmentandObligation
Consent,SelfGovernmentandObligation
byChristineSypnowich

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Source: PRAXISInternational(PRAXISInternational),issue:3/1986,pages:256276,onwww.ceeol.com.
DEMOCRACY, SOCIALISM, AND POLITICAL THEORY
CONSENT, SELF-GOVERNMENT AND OBLIGATION

Christine Sypnowich It belongs to man to judge the law at the risk of being judged by it. Maurice Merleau-Ponty1 This paper raises the age-old problem of the citizens obligation to the state, but in a radical framework, where all citizens fully participate in the making of law, and where all citizens enjoy maximum economic and social equality. I am concerned with the citizens attitude to law under a model of democratic socialism,2 to discover whether radical theory can justify a moral obligation to obey the law where liberal theory fails. This question will be analyzed from the perspective of a socialist theory of law which, while critical of Marxisms typically reductionist approach to legal issues, draws on Marxist ideas in formulating an alternative. There are many kinds of obligations which one could incur to obey the law. In this paper, I want to focus on what I shall call an intrinsic obligation to obey the law. An intrinsic obligation to obey the law is an obligation to obey it because it is the law. This obligation holds regardless of other, extrinsic obligations I may have to obey the law which result from, say, a prior moral commitment, a promise to a friend to do what the law requires, or a legal obligation in virtue of a contractual relationship with another party. If there is any such intrinsic obligation, it would resemble an obligation to obey ones parents, which holds in virtue of the fact that they are ones parents, and does not derive from the nature of their particular requests and the situations to which they apply. However, it would be a mistake to conclude from this that an intrinsic obligation is somehow underived. Rather, this obligation derives from the nature of the law itself (hence the title of an intrinsic obligation). It is thought to hold because the law meets certain standards; i.e. that it is enacted by a government of the right sort, one which has legitimacy as the authoritative basis for law-making. For liberal political theory, the legitimacy of government is typically a function of the participation of citizens in the political process. This participation is defined minimally, however, to be merely a matter of citizens consenting to government. Carole Patemans writings on participatory democracy provide a radical alternative to the liberal consent model. Arguments for participatory democracy call into question the legitimacy of the liberal democratic state and thereby the obligation to obey its laws, claiming that only a political system in which all participate in the formulation of all political decisions has the legitimacy required for an intrinsic obligation of obedience.3 The radical challenge, however, is made on
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the basis of the familiar liberal premise that citizens political involvement is the foundation of the legitimacy of the state and thereby, the basis of an obligation of obedience. This paper argues that no system is legitimate enough in that sense to generate an intrinsic obligation to obey the law.4 It is not my object to assess the validity of the general claims of the participatory model, whether citizens lives will be enriched, or decisions made more just; rather, this paper focuses on the issue of whether the proposed expansion of citizens involvement in political life provides a special case for an obligation to obey the law.5 I will examine how the problem of obligation is affected by the claims and ideals of a socialist community by first, analyzing the shortcomings of consent theories of obligation developed by liberal writers; second, setting out the argument of the socialist alternative, as an heir to the political tradition of classical Greece, and as it is developed in the thought of Rousseau, Pateman and Marxist writers; and third, examining the difficulties which undermine the theory of obligation in a participatory democracy. The Possibility of Socialist Law Before the question of the nature of obligation to socialist law can be addressed, a more fundamental problem awaits resolution: that is, whether the idea of legal institutions in a socialist form of society is even intelligible. Socialism and the law have been uneasy bedfellows. Certainly the notion that political and legal institutions will wither away with the emergence and development of socialist society has had a long legacy in radical thought. Given the scope of this paper, a thorough refutation of the theory of the withering away of law can hardly be attempted. I will, however, suggest grounds for allowing for the possibility that legal institutions could persist under socialism, rendering the question of the citizens attitude to law a relevant one. There are within Marxism various perspectives on the issue of laws relationship to capitalism, which I will group into three different conceptions of law. While not necessarily incompatible with each other, these conceptions can be roughly distinguished as follows. Law can be defined as an expression of egoism, a means of reconciling antagonistic, alienated and self-interested wills.6 Another position depicts law as a means of consolidating the interests of the ruling class, of capital, against the interests of the proletariat.7 Finally, law is considered a form of ideological mystification, offering formal, equal rights to liberty and security, thereby clouding substantive inequalities in social and economic relations.8 In all three positions, a phenomenon which would have been described in legal terms under capitalism, must, upon the withering away of law, be understood as something qualitatively different. There are two arguments to be made against this view; the first, a modest one, from an immanent or internal perspective, and the second, a more ambitious one which challenges the core of the withering away doctrine. To start with the minimal tactic first, even if one accepts that law will eventually disappear under socialism, it remains that law will have a role to
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play in the transitional period before postcapitalist society reaches its fullest development. For instance, jurists in the Soviet Union continue to contend that their role is to use law to create conditions where law will be unnecessary, to eliminate remnants of bourgeois egoism and class conflict, thereby removing the need for law.9 Not surprisingly, the nature of the road to the socialist, lawless future has been a source of contention among Marxists, particularly in the U.S.S.R. For some, a period of socialist law is unthinkable: law will disappear upon the highest development of capitalist legal institutions, as the Soviet theorist Evgeny Pashukanis claimed in the 1920s era of the National Economic Policy.10 Jurists since Stalin have tended to argue, however, that law must first be transformed into an instrument of socialism, to consolidate the power of the Soviet state; if law was viewed under capitalism as a means of organizing productive relationships in the interest of the dominant class, then it could be of some use for the dictatorship of the proletariat in the transition to socialism.11 In any case, it would appear that radical theory envisages a need for some form of law as long as the socialist project is only partially realised. One may want to go further, however, and make a stronger critique which addresses the moral danger of the withering away thesis, and urges that law have a permanent, positive role to play even in a flourishing socialist society. History gives some credence to this view, as the notion of a merely transitional socialist legality based on class rule justified a reign of legalized terror under Stalin in the U.S.S.R.12 Similarly, the supposed end of law may precipitate a redefinition of legal claims and conflicts as concepts are manipulated in the aid of political concerns (e.g. re-education, which centres on eliminating the supposed criminal tendencies inherent in the personalities of those convicted, replaces punishment, as anti-social behaviour is treated as mental deviancy by psychologists.) There is a great deal to be said for the rule of law, insofar as it handles interpersonal conflict and conflict between state and citizen in a public forum, to be discussed and decided in full view of the citizenry, rather than in the unseen world of hospitals and asylums. In any case, the definitions of law as a vehicle of egoism or ideology provide some ground for a socialist jurisprudence which does not foresake all liberal ideals. The view of law as a social structure which mediates bourgeois egoism grasps the interpersonal conflict which underlies law, but it denies the possibility of conflict which is not the result of selfishness. A socialist jurisprudence thus rests on the possibility that interpersonal conflict may arise in socialist society which is not connected with egoism and class divisions. Even in a socialist society without self-interest, narrowly construed, legal institutions may be necessary to adjudicate between selfless views of the good. If we make the implausible assumption that men under socialism will share the same sensitivity to a set of altruistic duties, it remains that these duties will conflict in particular cases, and disputes would doubtless arise over the outcome of these conflicts.13 More fundamentally, Marx did not envisage socialism as a society of philanthropists intent on doing good works; the socialist revolution is the consequence of proletarians coming to consciousness of where their interests lie, and socialism itself consists in creative beings
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engaging in meaningful activity as, amongst other things, a vehicle for their own fulfillment. The view that law is a form of ideology also reveals the positive components of legal institutions. E.P. Thompson argues that law is only ideological insofar as it offers something of real value.14 A socialist jurisprudence must begin with a grasp on the ambivalence of legal ideology, which in its very role as a source of legitimation, offers moral values of significance for a society founded on equality and justice. The weakness of the withering away argument, in all its manifestations, lies in its inability to explain why positive aspects of law in capitalist society are without utility in socialist society. After all, Marxism has perhaps too readily envisaged a socialist future which exploits capitalist technology, arguing that the technological resources of capitalism are abolished, preserved and transformed in the historical movement towards socialism. It would seem to be available to Marxism to likewise embrace law as an emancipatory feature of capitalism which would continue to exist, albeit in an altered form, in a socialist future. One can accept the view that the abstract, formal liberties offered by law in liberal democracies leave unchallenged the exploitation and domination intrinsic to the capitalist system, or even worse, that in providing such liberties, law legitimates and thereby serves the injustice of the economic order. But if these liberties nonetheless stand as fragments of genuine justice, or even possible instruments for emancipation, as the ideology and egoist views taken together concede, then socialists would do well to consider them as social institutions worth preserving and developing in postcapitalist society. Obligation derived from Consent The argument for deriving political obligation from participation in law-making is an heir to consent theories of obligation from Hobbes onwards. Social contract theories of the seventeenth and eighteenth centuries attempted to found obligation on consent to the principle of government, rather than consent to a particular government. For Hobbes, the nature of the particular government was not at issue: any political state was better than none, faced with the alternative, the brutal state of nature. Given the desirability of maintaining any political regime, citizens enter into contracts to alienate their powers to the state, thereby obligating themselves to obey state laws.15 Locke, however, claimed that consent was to be given more discriminatingly, to those governments which would promise to protect citizens lives and property. If the state failed to meet these obligations, citizens would then be justified in abdicating theirs, and could legitimately disobey state laws.16 The project of circumscribing the basis for political authority has been taken up by modern political theorists. J.P. Plamenatz, for example, conceives obligations as the result of the majoritys consent to a particular government, not government in principle, as Hobbes would have it, nor even a particular type of government such as the Lockean one. Plamenatzs consent theory holds that in giving consent to a political authority, the citizen accepts an obligation to abide by the authoritys laws and decisions. In selecting our
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government we take responsibility, not for anothers actions, but for enabling others, as our representatives, to act in a certain way. We voluntarily decide to empower certain people by granting them political authority, and we are answerable for this decision.17 However, this theory presents obvious difficulties. The act of solemn commitment to government required by the consent-giving contract is in most liberal democratic societies a rare event indeed. As often as not, the government in power is elected by a minority of the populace, since many do not vote at all, and of those that do, particularly in multi-partied states, many vote for unsuccessful candidates. (Even President Reagan, for example, who is thought to have come to power with an overwhelming majority, was elected by a minority of Americans capable of voting.) If consent is the prerequisite for obligation, Pateman argues, then either few citizens can be said to have obligations, or the relevance of consent seems suspect and one wonders why it was invoked in the first place.18 If obligations arise out of voluntary commitments created by an expressed intention to be bound, then the theory of consent is an inadequate basis for obligation.19 One solution is to interpret the political rights of citizenship, such as the right to vote, as a form of consent:
In voting, ones voluntary behaviour leads others to the reasonable belief that one consents to the majority decision-procedure. After the event one cannot say that one never consented or to be strictly accurate, even if one says that one never consented, one is still obliged as if one had consented.20
This view appears in Plamenatzs theory, in a postscript, where he redefines consent as something given in virtue of voting in general: if there is an established process of election, anyone who takes part in the process consents to the authority of whoever is elected to the office.21 This answer seems to give consent a meaning different from its usual sense so that obligation is derived not from consent but from something else, from the mere activity of giving or withholding it. But one could say that, voting against the Conservative Government, for example, is precisely an act of not giving consent to it. The dogma that consent is derived from voting serves to encourage abstention as a stronger form of political opposition than voting against a candidate seeking to form a government. As Raz points out, one can be against democracy and still decide to vote in elections.22 Moreover, even if one supports the democratic system, Singers assertion does not undermine the force of the counterassertion that one has no obligation to those who are elected against ones will. Plamenatz also maintains that one has a reason to obey the law in a democratic polity because representative governments are easily changed, so that those who dislike their policies have better reason for hoping that they can cause them to be reversed.23 No doubt the consideration that I may be able to change the law may render obedience less onerous; no law need be in force indefinitely. However, this argument buttresses a concept of obligation based on an expectation that consent will eventually be granted, not consent itself. This is a rather weak claim, particularly since one may have little reason to believe that the candidates one supports will ever attain power. It is still
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open to those who did not consent to say that they have no intrinsic obligation to obey the law until a government which has their consent is elected. Another argument which is often invoked is that consent is given so long as one does not emigrate. But to contend that tacit consent has been given because one remains in the community, although one has opposed the election of the government., seems most underhanded. First, it seems inappropriate to base the weighty matter of political obligation on what Walzer calls the non-act of not-leaving.24 Moreover, there are obvious political, economic and personal constraints on emigration. Political refugees are not welcome in many countries, if indeed one who leaves his homeland because he opposes the government there is entitled to that status. The potential refugee may also believe that there are no other countries worthy of his consent. As Hume maintains,
We may as well assert that a man, by remaining in a vessel, freely consents to the dominion of the master; though he was carried on board while asleep, and must leap into the ocean and perish, the moment he leaves her.25
Also, it is possible that the individual may consider his attachment to his community too profound to leave.26 So paltry is the foundation of consent in social contract theory that obligation dwindles from a commitment arising out of a political choice, to an inescapable consequence of ones existence in a community. The liberal model offers another argument, which finds its most influential expression in John Rawlss A Theory of Justice, that citizens are obligated to obey the law because they derive benefits from the state. Rawls argues that obeying the law is simply a matter of doing ones fair share if one gains from the cooperative labours of others.27 H.L.A. Hart also argues that once the individual opts into a social structure he has an obligation to obey its laws, which if broken, endangers the conditions of social existence and cooperation from which he profits.28 Although he rejected the idea of a social compact, Hume also argued, of course, that citizens were obligated to obey the law because society could not otherwise subsist.29 However, one could argue that social benefits might also be generated by disobeying a law; there is no necessary connection between obedience and social benefits.30 In any case, like the citizens membership in a particular community, deriving benefits is not something over which the individual has much control. If consent means anything at all, it must be actively given. Furthermore, the fact that I benefit from obedience does not appear to be grounds for an intrinsic obligation to obey. Rather, the law is an instrument, and the reasons I have to make use of it are not obligations. A more radical critique of the social contract holds that even if obtained, the individuals consent in the liberal democratic state is a sham, given the usual low level of political awareness and involvement. Because the weak, the poor and the unorganized are politically inarticulate, bereft of political opinion and hence alienated from the public domain, they cannot be said to have given their consent, even if they helped vote in a government. 31 Marxism distinguishes between the individuals real interests and his apparent
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interests. Imbalances in economic and social power set limits, whether objective or subjective, to peoples political power, and the parameters of their political vision.32 Hence, on this critique, not only does the liberal political order lack the consent of many of its weakest members, even if this consent is acquired, the real, though perhaps unexpressed, interests of these members would remain unrepresented. It is on this basis that in his polemic, Their Morals and Ours, Trotsky sneers at the vacuity of norms obligatory upon all in a society of class divisions, where the solidarity of class is more categoric than membership in the body politic.33 While the socialist may concede that the liberal state extends benefits, their value will be open to the question: benefits compared to what?34 The Radical Alternative Platos dialogue, The Crito, offers a case for obligation based on the special relationship between citizen and community peculiar to the Greek polis. While Socrates is often quoted to support liberal democratic theories of obligation, his position relies on a political structure which contrasts sharply with most modern states. Political decisions are reached in a small, intimate forum where all citizens actively participate, a model which suggests a parallel with the contemporary idea of participatory democracy. It is thus appropriate to begin an analysis of the radical case for obligation with an examination of the relevance and force of Socratess argument for political obligation in The Crito. Socrates is wrongly convicted of corrupting the youth and is sentenced to death, having rejected an alternative sentence of banishment. His friend Crito urges that he escape, but without success. Socrates notes the important role the laws have had for his development, how they nurtured and educated him. He reminds his friend how he was able to affect the development of the law, both in the polis and in his trial. Socrates contends that the relationship of citizen to country is such that his country is more honourable, venerable and sacred, more highly prized by Gods and men ... than mother and father. Law and polis cannot long survive if judgements passed have no force and are set aside by private persons. He concludes that he must do what ones city and country enjoins, or persuade it in such manner as justice allows.35 The position of Socrates in The Crito is given further theoretical content in the political thought of Aristotle, in which the relationship of commitment between man and polis is discussed. The polis is the highest association, which exists for the sake of the moral and political development of its members. Man by nature is a member of a polis; the thought of exiling oneself from ones community, the option which justifies obedience to law for some liberal writers, is inconceivable:
He who is without a polis, by reason of his own nature and not of some accident, is either a poor sort of being, or a being higher than man: he is like the man of whom Homer wrote in denunciation: clanless and lawless and hearthless is he.36
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For Aristotle, the political association which best fulfills its function is one with the greatest equality; where all citizens share in political power, ruling and being ruled in turn. The notion that the collectives will takes priority over that of the individual has enjoyed considerable currency on the Left. While Trotsky rejected the idea that individuals are obligated to the bourgeois state, he affirmed the proletarians duty to the Party, as the weapon of the revolutionary reconstruction of society. There can be no contradiction between personal morality and the interest of the party, since the party embodies in [the proletarians] consciousness the very highest tasks and aims of mankind.37 To some extent this claim reapplies the criteria for obligation advanced by liberal theorists: the quality of a regime determines whether one has an obligation to obey its laws. Because the socialist regime best promotes the interests of its members, it is worthy of support and obedience. But revolutionary Marxists are not merely claiming that the Party is owed obedience because socialism is the best provider of collective goods.38 Nor does Socrates see the citizens obligation as the consequence of an instrumental or consequentialist calculation. Socialism, like the morality of the polis, represents a unity between collective and individual wherein the interests of each are inseparable. In the socialist argument this is derived from the nature of the emancipatory project, which like the classical Greek conception of the polis, requires total commitment to an enterprise which subsumes and supersedes all individual interests. Sartre provides an interesting analysis of the solidarity of the group which is propelled by a commitment to an historical mission of liberation. He notes the tenuous nature of this commitment once the event or situation which spurred the initial revolutionary action has passed. The group threatens to disintegrate unless the common object, collective praxis, is reactualized. Hence members of the group must obligate themselves to obey the collective will: an oath of mediated reciprocity secures the future of the community through mutual abdication of individual liberty. Being in the group becomes an exigency, wherein each relies on all the others. Hence the pledge, while made to combat the groupss fear of disintegration, instills another fear in its place, fear of the repercussions of failing to fulfill ones obligation as a member of the group.39 According to the collectivist ethos, the purpose of a radical democratic structure is not to formulate decisions based on an aggregate of freely committed, disparate individual goals, but to actualize the communitys general will. In Marxism, the fundamental unity between the interests of the individual proletarian and the proletariat as a class has, perhaps ironically, justified aberrations from the participatory model, in the form of democratic centralism. After all, if the interests of the individual and the group are inseparable, it does not much matter who articulates these interests. Hence Lenin argued that the socialist revolution was to be led by a vanguard of leaders; and, he contended, even upon the completion of the socialist project a democratic structure would not be necessary since, rid of the atomistic and conflictual impulses of capitalism, people will automatically conform to rules
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of social life.40 Participatory democracy is not considered the source of the legitimacy of the proletariats policies, but merely the vehicle for the inherently legitimate, indivisible class consciousness of the working class. Nonetheless, the task of identifying the collective will is not always straightforward. What if I do not feel at one with the group? It may happen that some cannot grasp their true collective interests, unable to perceive how the collective will is intrinsically in harmony with their individual wills, or that they dispute with the leadership as to what this will is. Factions, fragmentation and conflict may arise in the collectivist unity. At the very least, the goals and policies of the community will not always be self-evident to all its members. A socialist legal system is thus necessary to mediate this conflict.41 Participatory democracy also takes on a heightened importance as the only structure where the community as a whole can approximate, if not discover, the general will. As Rousseau was to understand, such a forum may only yield the will of all a majority decision, rather than what is necessarily the interest of the community but that risk would seem to be unavoidable. On this view, participatory democracy emerges as the basis for obligation as the most reliable (and hence fair) means of ascertaining how our individual wills merge with the collective, thus discovering in what collective will our individual wills consist. Rousseau takes up the Aristotelian ideal and calls for a democratic social contract where collective participation establishes obligation. What more certain foundation can obligation among men have than the free agreement of he who obligates himself.42 Civic virtue, wherein each considers his interests only as a member of the political association, flourishes in a community where all participate fully in political life, creating and assuming obligations directly. Obedience to the general will is hence obligatory and uncontroversial, since it is no more than obedience to a self-prescribed law, which is the foundation for liberty.
The undertakings which bind us to the social body are obligatory only because they are mutual; and their nature is such that in fulfilling them we cannot work for others without working for ourselves.43
Contemporary proponents of the participatory polity claim that a state which takes into account the views of all is more likely to perform its functions better, and therefore to deserve our allegiance and have a valid claim on our obedience.44 The Aristotelian polis and Rousseauian social contract stand as models for socialist politics, whereby man emancipates himself through self-government. It is the fact that each citizen contributes to the making of law that makes intrinsic obligation possible in a socialist community.45 Only a pluralist citizenship, which extends the sphere of political involvement, can generate real obligation and an authentic patriotism.46 If obligations require explicit commitment to a known object by active subjects, then a process in which persons formulate, discuss and decide public issues that are important to them and directly affect their lives 47 will be the foundation for an obligation to obey the law.
Praxis International A Critique of the Radical Alternative
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The participatory model claims to resolve the difficulties that impeded the liberal democratic theory of obligation. I will argue, however, that despite its virtues, the radical model cannot justify an intrinsic obligation to obey the law. Three problems will be analyzed: first, whether a dissenting minority has an obligation of obedience; second, the role of extenuating circumstances in the application of a general obligation of obedience; and third, the dilemma of non-participants. 1. The Case of the Dissenting Minority
Even where law is made in a democratic process involving all citizens, some laws may not have unanimous support. Unless we are to argue that a dissenting minority is obligated on the basis of its mere participation, which would be no less than reintroducing the consent argument that obligation results from voting, the dissenting minority cannot have an intrinsic obligation to obey the law according to the conception of obligation as a self-assumed commitment. The meetings of the Soviet Bolshevik Partys Central Committee in 1917-18 provide an interesting historical case for considering the significance of dissent for obligation.48 This period in Soviet history exemplifies the concept of the Sartrean oath as a voluntary commitment, before obligation to the Party came to justify unquestioning obedience, backed up by political terror. One of the first disputes within the Central Committee arose over the October 1917 decision to begin an armed insurrection while Russia was at war. Zinoviev and Kamenev, among others, made their opposition known in statements in which they cited technological backwardness and lack of resources as reasons against the plan. Lenin responded with a polemic on strike-breaking, arguing that the dissenting minority had an obligation to comply with decisions made by the centre.49 In another controversy the following month, Zinoviev and Kamenev objected to the Central Committee decision not to share political power with representatives from the other Soviet parties. In a public statement they criticized attempts to defend a purely Bolshevik government at whatever cost, and resigned their posts as members of the Central Committee while remaining in the ranks of the Party, feeling unable to take responsibility for this fatal policy. Zinoviev and Kamenev argued that, rather than obligated to comply with the decision, they were obligated to disobey: Our step was dictated by a consciousness of our duty and responsibility to the socialist proletariat. A group of Peoples Commissars followed suit, resigning their posts in protest to a policy which, they predicted, would mean the retention of a purely Bolshevik government by means of political terror.50 The defeated minorities were concerned, not with obedience to the general will, but obedience to the principles that underlay the formation of a general will in the first place.51 It had become apparent that the two were not always the same, or at least that different interpretations of these principles could cast
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doubt on the generality of the general will. The Central Committee issued an ultimatum that the opposition submit to Committee decisions, and promote its policy in all public speeches, or withdraw from all public Party activity and resign all responsible posts.52 Some deserters and strikebreakers, as Lenin called them, held their ground. In a statement to the Central Committee, Kamenev complained that the conditions offered by Lenin represented an unprecedented demand to speak against our convictions.53 What obligation does one have to a law, judgement or policy which one believes to be unjust? Pateman contends that her position allows for dissenting minorities, exempting them from obligation. Indeed, she contends that social contract is an unfit description of the participatory structure, since dissent and disobedience are implied by the practice of self-assumed obligation. Contracts refer to exchanges of obedience for protection, whereas the relationship among citizens which obtains in the democratic system she expounds is one of a voluntary agreement which individuals enter in order to express and maintain their substantive freedom and equality. According to Pateman, compelling one to consent can only lead to the degeneration of the political association.54 But contracts do not always refer to exchanges of obedience for protection, as Rousseaus social contract demonstrates. According to his philosophy, there is no brutal state of nature propelling men to enter contracts with each other; obligation issues from a contract of equals who pledge to renounce their individual differences, subsuming them under the general will, which claims general obedience. Pateman is trying to both have her cake and eat it, if she wants to hold both that an obligation to obey the law is only possible in a society where all participate to the fullest extent in the creation of law, and that such an obligation is purely voluntary. 55 One wonders why the participatory model is relevant at all; for while the consent theorists tried to justify obligation with too slender a conception of the political, Pateman expands the political only to justify the idea of an obligation to obey the law which, it turns out, is not obligatory. So long as obligation is derived from democratic participation, some kind of social contract must be established, where a mutual agreement is made to regard collective decisions as binding. If obedience to law is simply a matter of individual conscience, then the notion of intrinsic obligation, and not just the social contract, should be abandoned. Of course, in asserting the absence of an intrinsic obligation to obey the law I am not suggesting that one who disobeys collective decisions for reasons of individual conscience does not risk adverse consequences. Pateman, however, introduces a further epicycle into her theory, and argues that those who oppose the majority decision are not only exempted from the obligation of obedience, but have a right to disobedience. Without engaging in a debate about whether rights to disobedience are justified, suffice it to say that denying an obligation to obey the law does not require embracing a right to disobedience. On the contrary, a right to disobedience is logically unnecessary in the absence of an opposing obligation to obey the law. Moreover, merely positing a right to disobedience does not solve the problem of obligation, since it is unclear how such a right meshes with the duty of obedience; if it simply
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defeats it, then the status of an intrinsic obligation seems tenuous indeed.56 However, a radical democratic community which does not claim that its citizens have an intrinsic obligation to obey the law is better able to foster a liberal and lenient attitude to disobedience, concerned with the justice of the law in question and the reasons and circumstances which led to violation, rather than reducing these moral questions simply to matters of legality or illegality. Moreover, put in perspective, dissent in the participatory polity would figure as little threat to the regime as a whole, given the widespread involvement and general commitment of citizens to the political process. Zinoviev and Kamenev, for example, opposed the decisions of the Central Committee from a standpoint of solidarity with its wider aims. Of course, one who opposes a law may be reluctant to disobey it because of his membership in the collectivist polity. Without finding himself obligated to obey, he may perceive disobedience as harmful for the order of the community and consider this a reason for obedience. For example, in the issue of other parties involvement in the Bolshevik government, Zinoviev eventually decided to withdraw his statement and resignation, in light of the special nature of the war situation in which these decisions were made, and to prevent a split in the Party.57 And, in the controversial decision of the Central Committee to make peace with the Germans, while Bukharin and others made a statement to express their disagreement with what they perceived as the Partys abandonment of the international proletariat, others of similar mind decided not to associate themselves with the statement, convinced of the need for solidarity during the crisis.58 Similarly, Socrates submitted to his sentence because he thought an escape could undermine the legal and political order of the polis. This is not to say that he was thus obligated to obey the law; he could very well have decided that disobedience would not endanger the social order, or that endangering that social order was a good thing. To argue, as Socrates does, that all acts of disobedience will have pernicious consequences for the community overlooks the fact that most violations of the law are undetected or minor. In any case, carefully considered acts of disobedience can set a good example, by encouraging disobedience only when it is justified.59 Furthermore, morally justified disobedience can benefit the community, as a form of social criticism which demonstrates the gap between justice and legality.60 2. The Role of Extenuating Circumstances
Even if a law is made with the unanimous support of a politically active citizenry, occasions for disobedience could arise. It may happen that an individual decides that in a certain instance he is compelled to disobey the law which he before supported, indeed advocated. There may be a tension between the aim of a law as a principle and the consequence of law as it is applied in a concrete situation, so that the values represented by the general rule may indeed best be served by disobeying the law in question. The tension between law as a principle and as an applied rule is a reflection of the more general problem of invoking moral absolutes which purport to transcend
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history. Marxists have long been wary of eternal truths, arguing that the morality of an action is determined by particular historically situated circumstances.61 For example, Rosa Luxemburg averred that the socialist project could not be outlined in advance:
Far from being a sum of ready-made prescriptions which only have to be applied, the practical realization of socialism as an economic, social and juridical system is something which lies completely hidden in the mists of the future.62
Although society is a moral reality and law an expression of a developing moral consciousness, the legal and the moral may often diverge in particular situations.63 Hence, there may be situations when the application of a law which is just in principle will lead to injustice. The case of Socrates illustrates this problem. He supported the legal requirement of submission to sentence, but in his case this resulted in injustice, since he was wrongly convicted.64 It may be suggested that while this position defeats the idea of an absolute obligation to obey the law, it allows for a prima facie obligation of obedience. When one has a prima facie obligation to obey the law one has an obligation to obey the law which is capable of being overridden by other significant factors. Thus obligated, unless one has a moral reason not to obey the law at least as strong as a reason to obey it, then the failure to obey the law is morally wrong. Rosss account of the prima facie still prevails in moral philosophy:
I suggest prima facie duty or conditional duty as a brief way of referring to the characteristic ... which an act has, in virtue of being of a certain kind ... of being an act which would be a duty proper if it were not at the same time of another kind which is morally significant.65
Jonathan Dancy has argued that it is trivial because inevitable that a morally significant property would decide the issue if it were the only one that mattered. But the whole point of the prima facie argument is to explain conflict between obligations where no property is the only one that matters. Since it is never the case that there is only one such property, the notion of the prima facie represents a futile attempt to insulate moral decision-making from the interfering effects of different contexts. Hence, it is not self-evident that a property which would decide the issue were it the only one that mattered will be one which I should care about at all (i.e. is prima facie relevant) when it is not the only one.66 I think there is a difference between the attitude to law which I defend here and the attitude required by a prima facie obligation. The prima facie position implies a first glance obligation to obey the law which always holds. That is, one always has, at first glance, an obligation to obey the law in virtue of laws legality although it may be overruled by reasons for disobedience. The difficulty with this view emerges in cases where the laws status as law may be cause for disobedience. There may be occasions when, rather than having an obligation to obey the law which is outweighed by other considerations, one has reasons to disobey the law in virtue of it being law. It is possible to imagine certain kinds of actions which a community may seek to promote that would be made the worse for being law: support for national service, or religious
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education, for example, may depend on them being optional rather than legally required. In such cases, someone who is in favour of the policy may decide to disobey the law which renders the policy binding because he finds the policy an unsuitable subject for legal enactment. One disobeys not because what the law requires was objectionable, but because it was objectionable that the law should require that.67 Not only do we find a policy made the worse for being law, we find the institution of law made the worse for being implemented in these situations.68 3. The Problem of the Non-participants
Perhaps the most serious objection to the idea of intrinsic obligation in a participatory democracy comes from the non-participants, or perhaps, on behalf of them. It has been assumed that the law, if not reflecting the views of all, is created in a political process which involves all members of the community. But suppose not all citizens voluntarily contribute to the making of political decisions. Although one may envision a future, ideal community where political participation is much broader and more extensive, degrees of participation are still likely; civic virtue will be more or less developed in each individual. Some may agree with Oscar Wildes criticism of socialism that it would take too many evenings.69 Civic virtue may flourish, but it is not inconceivable that there will be some who are content to leave political decision-making to their more activist fellows, some, if not most, of the time. One critic predicts that:
The apathetic, the occasional enthusiasts, the part-time workers: all of them will be ruled by full-timers, militants and professionals.70
The participatory model must take into account the limits imposed on republican virtue by the inevitable pluralism of commitments. However, non-participants are not necessarily without opinions. As active Leftists will confirm, no one is more opinionated than the armchair Marxist. It may happen that those who were absent from a political debate are in vehement disagreement with the outcome. Do they have an obligation to comply nonetheless? The activist may want to hold that, since there are no obstacles to participation, those who do not are remiss, and have an obligation to obey the law nevertheless. But those who do not participate in the face of opportunities to do so cannot be said to be obligated any more than the apathetic in the liberal consent model. After all, theoretically, political activity is open to all in a liberal democracy too. A participatory democracy will be the poorer for coercing people to participate with the justification that political participation takes priority over anything else. Nor should the participatory democracy hold people to the obligations made by others. If obligations are to be self-assumed, they can not be based on the presence of a mere opportunity to participate. And, if those who do not participate do not have an intrinsic obligation to obey the law, then an intrinsic obligation does not exist.
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Certainly it would be foolish to defend an obligation to obey the law in a liberal democracy which applied only to the legislators. Conclusion I have argued that there would be no intrinsic obligation to obey the law under socialism because the extent of an individuals participation cannot justify an obligation of obedience. Of course, participation may render the law more just, or the legal system as a whole more precious. But these factors can be assessed separately when deciding whether to obey, without a general obligation of obedience. Some members of the Left may find this conclusion disappointing: the Marxist canon is abridged to allow for socialist law, only to create a legal system to which one has no intrinsic obligation of obedience. However, socialists are wrong to see obligation as an ideal which a Utopian society should be able to require. The concept of an intrinsic obligation to obey the law betrays a simplistic and potentially dangerous view of morality and politics. In these concluding remarks I will note some of the features of this underlying perspective. First, an intrinsic obligation to obey the law can imply that the legal and the moral are synonymous. Certainly it is implicit in some arguments for participatory democracy that the laws of such a society will inevitably be just and good. Rousseau contends that the general will is always upright and always tends to the public advantage.71 This claim has been made on behalf of liberal legal systems: the natural law theorist Lon Fuller, for example, argues that a legal order has an implicit morality, and that the obligation to obey the law is thus an obligation to do what morality requires.72 In his critique of natural law the legal positivist H.L.A. Hart contends that the sense that
there is something outside of the official system, by reference to which in the last resort the individual must solve his problems of obedience, is surely more likely to be kept alive among those who are accustomed to thinking that rules of law may be iniquitous, than among those who think that nothing iniquitous can anywhere have the status of law.73
One does not have to deny that a rule meet certain moral requirements before it can be a law in order to take issue with the claim that what is illegal is immoral.74 Yet one of the principal tenets of Soviet socialist legality is that citizens have a moral responsibility to obey the socialist state, given the assumption that the law is always worthy of obedience.75 This argument was particularly powerful under Stalin, when all sources of social criticism were eliminated with the rationale that the Party can never be mistaken in its historical mission of emancipation. The doctrine continues to have repressive consequences, evident in the disappointing human rights records of Eastern Europe. It is thus ironic perhaps that the anti-authoritarian vision of politics purported by participatory democracy should have authoritarian implications for the individuals moral conscience.76 The argument for obligation, by concentrating on the rightness of obedience to law rather than upon the
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question of the tightness of the law itself, will stunt and thwart the development of the individuals political and moral wisdom which is so central to the participatory vision.77 Second, however, an intrinsic obligation to obey the law threatens to undermine the very foundation of the participatory political structure which is supposedly its source. The dilemma between conscience and social order no theory can solve.78 But an intrinsic obligation to obey the law makes criticism and moral assessment of a legal system difficult, controversy and open political discussion constrained. Arendt points out that the public realm does not simply unify individuals private wills:
as the common world, [It] gathers us together and yet prevents our falling over each other, so to speak. What makes mass society so difficult to bear is not the number of people involved, or at least not primarily, but the fact that the world between them has lost its power to gather them together, to relate and to separate them.79
There is an ironic sense in which the proposition that citizens have an intrinsic obligation to obey the law is weaker, rather than stronger, in the context of a radical, participatory politics. Where political participation is a social norm and voting itself a duty, political participation is a less plausible ground for obligation, if obligations are to be freely undertaken. This consideration also raises the possibility that political involvement is not, after all, an inherently positive activity, that it perhaps does not have a necessary, universal, moral value which applies in all circumstances. There are situations in which not participating is a courageous political act, and the alternative, for example, voting in an Eastern European election, as one Pole dryly noted, is an act of supreme indifference.80 Voting can be an expression of powerlessness, moral weakness, or a lack of civic courage. Where all are expected to participate, and where the entrenched powers of the political system render participation inefficacious, or indeed farcical, not participating represents a strong political statement. Hence, not only is the concept of political participation unable to justify an intrinsic obligation to obey the law, the concept itself requires qualification. An intrinsic obligation to obey the law gives law an authority that it does not deserve, and the individual conscience a role of subservience to it. Indeed, authority has been analyzed as precisely the quality of a person or institution which takes its commands to be exclusionary reasons for action. Laws claim to authority rests on its claim to provide a sufficient reason for doing a required action, one that dictates that reasons for non-conformity be disregarded.81 The problem of the non-participants is a profound reminder of the possibility that any political order, no matter how noble its intentions, can become alienated from its citizenry. Political actors need critics, and the political order must be responsive to the moral qualms and dilemmas criticism reveals.82 In order to avoid a socialism governed by Party officials, removed from the needs and interests of the community, the Left must reject the notion of an intrinsic obligation to obey the law, while affirming the importance of democratic participation.
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Without general elections, without unrestricted freedom of press and assembly, without a free struggle of opinion, life dies out in every public institution, becomes a mere semblance of life, in which only the bureaucracy remains the active element. Public life gradually falls asleep, a few dozen party leaders of inexhaustible energy and boundless experience direct and rule ... an elite of the working class is invited from time to time to meetings, where they are to applaud the speeches of leaders, and approve proposed resolutions unanimously at bottom, then, a clique affair a dictatorship, to be sure, not the dictatorship of the proletariat however, but only the dictatorship of a handful of politicians...83
NOTES 1 Humanism and Terror (Boston: Beacon Press, 1969), p. xxxix. 2 Not to be confused with Soviet-style socialist democracy. 3 C. Pateman, Participation and Democratic Theory (Cambridge: Cambridge University Press, 1970) and The Problem of Political Obligation (Chichester: John Wiley, 1979). 4 Literature on the subject of obligation contrasts two versions of how one might understand an intrinsic obligation: first, as an overriding obligation, which defeats any other, conflicting obligations; and second, as a prima facie obligation, which, while always in force, can be defeated by other, stronger obligations under certain circumstances. As I lack confidence that this contrast can be properly made out, I shall shelve it for the moment. 5 Certainly the case for a fuller political life has been eloquently made by Hannah Arendt in The Human Condition (Chicago: University of Chicago Press, 1958.) Arendt contends that action in the public space is mans highest activity, and warns that one-man rule is always tantamount to the abolition of the public realm itself. (220-1.) See also C.B. Macpherson, The Life and Times of Liberal Democracy (Oxford: Oxford University Press, 1977); as well as George Kateb, Comments on David Braybrookes The Meaning of Participation and of Demands for It and Peter Bachrach, Interest, Participation and Democratic Theory, both in J.R. Pennock and J.W. Chapman, eds., Nomos XVI: Participation in Politics (New York: Atherton, 1975); William Connolly, The Terms of Political Discourse (Oxford: Martin Robertson, 1983), Chapter 2; Michael Walzer, Obligations: Essays on Disobedience, War and Citizenship (Cambridge, Mass.: Harvard University Press, 1970); Nannerl O. Henry, Political Obligation and Collective Goods, in J.R. Pennock and J.W. Chapman, eds., Nomos XII: Political and Legal Obligation (New York: Atherton, 1970). 6 See Karl Marx, On the Jewish Question, in K. Marx and F. Engels, Collected Works (London: Lawrence and Wishart, 1975), Vol. III, 166-7 and Evgeny Pashukanis, Selected Writings on Marxism and Law, P. Beirne and R. Sharlet, eds., (London: Academic Press, 1980), 76-81 and the Introduction by Beirne and Sharlet, 12-14. Tom Campbell also characterises law under capitalism thus, although he envisages a socialist legal structure premissed on the demise of egoism. See The Left and Rights (London: Routledge and Kegan Paul, 1983). 7 This view appears in Marx, Manifesto of the Communist Party, in op. cit., Vol. VI, 482-96; Engels, History of the English Corn Laws in op. cit., Vol. IV, 657-61; writings by the Soviet legal theorists Yudin, Vyshinsky, Stuchka, Golunski and Strogovich in Soviet Legal Philosophy, intro. and ed. by John Hazard (Cambridge, Mass.: Harvard University Press, 1951; Ralph Miliband, The State in Capitalist Society (London: Quartet, 1973); and Colin Sumner, Reading Ideologies (London: Academic Press, 1979), 270-7. 8 See Marx, The German Ideology, in op. cit., Vol. V, 28-93; The Eighteenth Brummaire of Louis Bonaparte, in K. Marx and F. Engels, Selected Works (Moscow:
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Progress, 1970), Vol. 1, 290-3; Engels, Letter to Mehring, in K. Marx and F. Engels, Selected Correspondence (Moscow: Progress, 1975), 399-402; Pashukanis, op. cit., 74-9, 117; M. Reisner, The Theory of Petrazhitshkii, in Hazard, op. cit., 108; Antonio Gramsci, State and Civil Society, in Selections from the Prison Notebooks, ed. and transi. by Q. Hoare and G. Nowell-Smith (New York: International Publishers, 1971), 246; and Nicos Poulantzas, State, Power, Socialism (London: Verso, 1980), 84. 9 For an account of Soviet jurists views on the future of law in the Khruschev period, see George Feifer, Justice in Moscow (London: Bodley Head, 1964), 330-1; and Aryeh Unger, Constitutional Development in the U.S.S.R. (London: Methuen, 1981), 288-9. 10 Op. cit., 61. 11 See Beirne and Sharlet, op. cit., 31-6; Harold Berman, Justice in the U.S.S.R. (Cambridge, Mass.: Harvard University Press, 1966), 64. 12 See Beirne and Sharlet, op. cit., 31-6; Unger, op. cit., 79-84. 13 See Campbell, op. cit., and R. N. Berki, Insight and Vision: The Problem of Communism in Marxs Thought (London: J.M. Dent and Sons, 1983), for altruistic theories of socialism, and a critique of them in my Law as a Vehicle of Altruism, Oxford Journal of Legal Studies (Summer, 1985). 14 Whigs and Hunters: The Origin of the Black Act (New York: Pantheon Books, 1975), 258-69. Thompson insists that law does not only deceive and conceal ... it also organizes and sanctions certain real rights of the dominated classes... 15 Thomas Hobbes, Leviathan, ed. by C.B. Macpherson (Middlesex: Penguin, 1968). In Chapter XVIII, Hobbes writes: the state of man can never be without some incommodity or other ... the greatest, that in any form of government can possibly happen to the people in general, is scarce sensible in respect of the miseries, and horrible calamities, that accompany a civil war, or that dissolute condition of masterless men, without subjection to laws, and a coercive power to tie their hands from rapine and revenge... 16 See John Locke, Second Treatise, Two Treatises of Government, ed. by Peter Laslett (Cambridge: Cambridge University Press, 1967). 17 J.P. Plamenatz, Consent, Freedom and Political Obligation (Oxford: Oxford University Press, 1968), 16. 18 Pateman, op. cit., 1979, 82. 19 Joseph Raz, The Authority of Law (Oxford: Clarendon, 1979), 239. See also Walzer, op. cit., 8-14, Pateman, op. cit., 1979, 88-9. 20 Peter Singer, Democracy and Disobedience, (Oxford: Oxford University Press, 1973), 52. 21 Plamenatz, op. cit., 170. 22 Raz, op. cit., 241. 23 Plamenatz, op. cit., 150. 24 Walzer, op. cit., 18. 25 David Hume, Of the Original Contract, in Essays Moral, Political and Literary, (Oxford: Oxford University Press, 1963), 462. 26 Of course, the view that man is intrinsically a member of a political community, first propounded by Plato and Aristotle, has been invoked to justify obligation, rather than repudiate it, particularly by advocates of democratic participation. I will return to this argument later in the paper. Here, however, this insight undermines the idea that obligation results from the option of emigration. 27 Rawls, A Theory of Justice (Cambridge, Mass.: Harvard University Press, 1971), 376. 28 Hart, The Concept of Law (Oxford: Oxford University Press, 1961), 168 and Neil MacCormick, H.L.A. Hart (London: Edward Arnold, 1981), 170. 29 Hume, op. cit., 468. 30 Richard Wasserstrom, The Obligation to Obey the Law, in R.S. Summers (ed.) Essays in Legal Philosophy (Oxford: Oxford University Press, 1968), 300-1.
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31 See Bachrach, op. cit., 39-45. 32 See P. Bachrach and M. Baratz, Power and Poverty: Theory and Practice (Oxford: Oxford University Press, 1970), and Steven Lukes, Power: A Radical View (London: Macmillan, 1974), for analyses of the hidden dimensions of power; see G.A. Cohen, The Structure of Proletarian Unfreedom, in Philosophy and Public Affairs Vol. 12, No. 1, (Winter 1983), and Issac Balbus, The Concept of Interest in Pluralist and Marxian Analysis, Politics and Society (Summer, 1971), for a discussion of exploitation and the interests of the proletariat. The radical case against liberal models of politics has an ally in the communitarian critique of liberalisms metaphysics, advanced by Michael Sandel, Charles Taylor and Alasdair MacIntyre. In contrast to the idea of a freely choosing self which is the foundation of liberal consent theories, the communitarians advance a view of a socially constituted self in which I am situated from the start, embedded in a history which locates me among others, and implicates my good in the good of the communities whose stories I share. Sandel, ed., Introduction, Liberalism and its Critics (Oxford: Basil Blackwell, 1984), 9. 33 Leon Trotsky, Their Morals and Ours (New York: Pathfinder Press, 1969), 16-18. 34 Pateman, op. cit., 1979, 121-7. 35 Plato, The Crito, transl. by Henry Cary (Paris: The Pleiad, 1926). It is here that the argument for obligation based on the opportunity to emigrate is first invoked. N.A. Greenberg maintains that it is hard to believe, however, that Socrates would have stayed in a state that he knew would come to condemn him to death. Socratess Choice in the The Crito, Harvard Studies in Classical Philology (Cambridge, Mass.: Harvard University Press, 1965), 65-6. 36 Aristotle, The Politics, transl. by E. Barker (Oxford University Press, 1948), s. 1253. 37 Trotsky, op. cit., 33-4. 38 See Henry, op. cit. 39 Jean-Paul Sartre, Critique of Dialectical Reason, transl. by Alan Sheridan-Smith and ed. by Jonathan Ree (London: New Left Books, 1976), 346-437. Arendt describes the dynamic of the group upon dissolution of its initial impetus in different, although similar, terms: What keeps people together after the fleeting moment of action has passed (what we today call organization) and what, at the same time, they keep through remaining together is power. And whoever, for whatever reasons, isolates himself and does not partake in such being together, forfeits power and becomes impotent, no matter how great his strength and how valid his reasons. (op. cit., 201) 40 V.I. Lenin, What is to be Done? and State and Revolution in: Selected Works (London: Lawrence and Wishart, 1953). 41 See the above discussion on the possibility of socialist law and my critique of Campbells The Left and Rights in op. cit. 42 Quoted in Pateman, op. cit., 1979, 149, from the sixth Lettre de la Montagne, Oeuvres Compltes (Paris: Gallimard), Vol. III, 806-7. 43 Rousseau, The Social Contract, transl. and ed. by G.D.H. Cole (London: J.M. Dent, 1973) Bk. II, ch. 4. 44 Henry, op. cit., 289. 45 Pateman, op. cit., 1979, 174. 46 Walzer, op. cit., 226-7. 47 Bachrach, op. cit., 1975, 4L 48 See James Bunyan and H.H. Fisher, eds., The Bolshevik Revolution (Stanford University Press, 1934); and more recently, Ann Bone, transi., The Bolsheviks and the October Revolution (London: Pluto, 1974), for compilations of party documents from that period. 49 Cited in Bone, op. cit., 88-117. 50 Ibid., 141-2. 51 Walzer, op. cit., 3-7.
52 53 54 55 56
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Cited in Bone, op. cit., 143. Cited in Ibid., 148. Pateman, op. cit., 1979, 169. See Patemans critique of anarchism in Ibid., 135-42. See Franz Neumann, On the Limits of Justifiable Disobedience, in The Democratic and Authoritarian State (New York: Free Press, 1957), 158-9, and Hugo Bedau, On Civil Disobedience, The Journal of Philosophy, 58 (1961), 663, on the futility of finding a principle which would identify the sufficient and necessary conditions for disobedience; and Neumann, Ibid., and Raz, op. cit., 262-89, for reasons against a right to disobedience. 57 Cited in Bone, op. cit., 150. 58 See Ibid, 215-17. 59 Raz, op. cit., 238. A.D. Woozley makes this point in his critique of Socratess case for obligation in Law and Obedience: the Arguments of Platos Crito (London: Duckworth, 1979). 60 See Howard Zinn, Disobedience and Democracy (New York: Random House, 1968), and Wasserstrom, op. cit., 300-1. 61 See David Bakhursts Marxism and Ethical Particularism: A Reply to Steven Lukess Marxism and Morality in: Praxis International, Vol. 5, No. 2, (July 1985). 62 The Russian Revolution (Ann Arbor, 1961), 69. 63 Andrew Fraser, The Legal Theory We Need Now, in Socialist Review, No. 40-1, (July-October, 1978), 164. 64 See Walzer, op. cit., 3-7, for a discussion of the idea of an obligation to disobey the law and Woozley, op. cit., 37-40, for an analysis of the problem in the context of The Crito. 65 W.D. Ross, The Right and the Good (Oxford: Oxford University Press, 1930), 19. See also M.B.E. Smith, Is There a Prima Facie Obligation to Obey the Law in Yale Law Journal, Vol. 82 (1973), and Wasserstrom, op. cit., for a discussion of prima facie obligation as it applies to obedience to law. 66 Dancy, Ethical Particularism and Morally Relevant Properties, Mind, Vol. XCII (1983), 539-41. 67 Woozley, op. cit., 39-40. 68 I am grateful to David Bakhurst for suggesting this argument, and for providing many other helpful comments on an earlier draft of this paper. 69 Quoted in Walzer, op. cit., 218. 70 Walzer, op. cit., 237. 71 Op. cit., Bk II, ch. 3. The arguments for obligation in The Crito reflect a similar understanding of the relation between law and morals which was prevalent in ancient Greece. Woozley discusses the natural law assumptions of the concept of nomoi in op. cit., 53-5. 72 Positivism and Fidelity to Law, Harvard Law Review, 71 (1958), 644-8. 73 Op. cit., 206. See also Neil MacCormick, Legal Right and Social Democracy (Oxford: Clarendon, 1982), 54. 74 Wassertrom, op. cit., 281. 75 Campbell also makes this claim in his theoretical model of socialist law, conveniently abandoning his positivistic view that law and morality do not strictly coincide. Op. cit., 81-2. 76 See Alfred Meyer, Political Change through Civil Disobedience in the U.S.S.R. and Eastern Europe in: J.R. Pennock and J.W. Chapman, eds. Nomos XVI: Participation in Politics, however, for an interesting account of the scope and nature of disobedience in Eastern Europe. 77 See Wasserstrom, op. cit., 303-4, and Smith, op. cit., 105-6; Raz notes the moral complacence which is often the concomitant of respect for law; see op. cit., 260-1.
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78 79 80 81 82 83
Neumann, op. cit., 159. Op. cit., 52-3. I am grateful to Steven Lukes for suggesting this to me. Raz, op. cit., 3-33. See Walzer, op. cit., 235-8. Luxemburg, op. cit., 71-2. This article is a revised version of a paper I presented at the World Congress of the International Political Science Association which was held in July, 1985, in Paris. It was written with the support of a Commonwealth Scholarship, for which I am very grateful.

3.1 - Sypnowich, Christine - Consent, Self-Government and Obligation (En)

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DEMOCRACY, SOCIALISM, AND POLITICAL THEORY

CONSENT, SELF-GOVERNMENT AND OBLIGATION

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Praxis International A Critique of the Radical Alternative

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