DO WE HAVE AN OBLIGATION TO OBEY LAW?

SYNOPSIS
Do we have an obligation to obey any law, no matter how unjust or evil, provided only that it is in
fact a valid rule of the legal system in which we happen to be physically located? Reassessment of
the relation between law and ethics justifies a new look at the classic statement of legal obligation.
The paper enumerates the arguments based on the premises that in the beginning of the civilization
men lived in the state of nature, since this situation was not idealistic for development, growth and
well being of men they entered into a contract to form the State as an authority to formulate rules
for the society.
In the introduction Ill discuss the reason for the emergence of government and law . The premises
on which the conclusion named law is based is in accordance with the principles propounded by
John Rawls in his book The theory of Justice. In the latter part of the paper Ill elaborate on the
obligation part. Whether we are obliged to obey law or we are required to follow them. The extent
of obligation and the need to disobey them in the current scenario to uphold democratic
institutions. Finally a glimpse into John S. Mills theory of liberty and a parallel anecdote of
Sophocles Antigone describing how eventually even the State and society will realize the defects
in the manmade laws not based on ethical considerations.
Keywords
Nature of state, Locke, John Rawls, Mill , legal positivism and natural laws.

Aastha Mishra
Sem II
NLU Ranchi
565

INTRODUCTION
Nature of State
We are not final because we are infallible, but we are infallible only because we are final.1
Taking into consideration the fact that men in the primitive stage lived without any laws ,
regulations or any authority to govern them , to guide them or to protect them . If we base our
claim on the theory of John Locke then the state of nature was not one of constant warfare but of
goodwill, peace and mutual cooperation and preservation . People at this stage obey the laws of
nature, which are instinctively and consciously embedded within men, that it is law of inward
morality. Man are basically rational beings impelled by their inner nature to treat others with
humanity.
Now the question arises that if the state of nature was so ideal then what was the reason for
establishing state? The fact that human nature is fragile there were a few who dissented from the
ideas of morality in pursuance of their vested self interest and this lead to oppression of some
people. Those who were observing the laws of nature were not in a more advantageous position in
comparison to those who violated the laws . Hence in the absence of any established authority in
the state of nature , it became very difficult to deal with the offenders . This leads to the conclusion
that the state actually came into existence for observing that the laws of nature are not violated by
people.
If men becomes judge of his own case , then justice cannot be secured . Thus the state of nature
proved to be inconvenient. In order to rectify this defect , men abandoned the state of nature and
entered into civil or political society by means of Social Contract.
The terms of the contract were as following:

1 this is the famous quote of Justice Jackson in Brown v Allen

This agreement between men lead to the establishment of society in the primary stage .in the
second stage the government was established. Hence we conclude that even if the government is
dissolved the society remains and does not disintegrate. Order can be restored by setting up a new
government. By drawing this distinction between society and government what Locke actually did
was that he placed government under the control of society. This leaves no scope for absolutism.
The consent of the people lead to the formation of state and even though they had surrendered their
rights to the state, the basic natural rights (right to life, liberty and property ) still remained with
the people. The reason why people surrendered their rights to the state was because now they were
to enjoy the benefits of the state like the state was to preserve their rights, punish the offenders and
was to regulate the society for its development. Hence we conclude that state came up to provide
justice. Whether justice and laws are to be based on natural laws or not is discussed further in the
essay.
THE CONCEPT OF LEGAL POSITIVISM AND NATURAL LAW
Legal validity
The idea of legal positivism was nurtured by philosophers like Hart . The Positivism explains legal
validity in terms that make no necessary reference to the content of law; whether a standard is
legally valid depends only on how or by whom it is promulgated. Of course, a rule of recognition
can include substantive constraints on the content of law, but any such constraints are legally
binding only in virtue of certain contingent social facts. Thus, according to positivisms
separability thesis, there are no necessary moral constraint on the content of law. Whereas the
natural law says that there are certain basic rights and justice held to be common to all humans
deriving authority from nature based on reason .
Now comes the issue whether we should accept certain procedure followed scripted manmade laws
separated from morality since the legal positivism propounds that law and morality are two distinct
things.
The positivist account of legal validity is hard to reconcile with the
[claim] that valid law as such, no matter what its content, deserves our
respect and our general fidelity. Even if valid law is bad law, we have

some obligation to obey it simply because it is law. But how can this be
so if a laws validity has nothing to do with its content? Why should I
have any respect or duty of fidelity toward a statute with a wicked or
stupid content just because it was passed into law by a bunch of men
(possibly very wicked men like the Nazi legislators)
according to the accepted recipes for making law?2
Can the society follow certain laws for being laws? Can the law stand independent of morality ?
From my point of view law came into existence to protect our natural laws which are based on
morality hence one cannot separate law and morality.
Gustav Radbruch, one of the prominent German philosophers redefined his position on legal
validity by introducing the concept that when statutory rules reach a level of extreme unjustice , so
that the contradiction between positive law and justice becomes intolerable they cease to be
OBLIGATION TO OBEY
the people have formed the state with their own consent and hence are obliged to obey the laws if
the laws are just .the presumption that the state is present currently makes us assume that people in
general have consented to its existence and given a sanction to its just laws. According to John
Rawls two principles of Justice are there:

Each person is to have an equal right to the most extensivebasic liberty compatible with

the similar liberty for others.

To attain socio political and economic equality for all .
If the state fulfills these two principles then it is a just law. Since one has voluntary
accepted the benefits of the arrangements or taken advantage opportunities it offers to
further ones interest . we are not to gain from the cooperative labors of others without

doing any fair share.3

Firstly I would discuss obligation towards Natural duty or just laws:
2

Feinberg, Joel, Civil Disobedience in the Modern World, Humanities in Society

Natural duty based on morality says that people in a society should respect each other and
should not to harm others. If people in a society are reluctant in observing laws based on
natural duty then the state has all rights to use its coercive powers to enforce the laws. People
with reasonability are expected to follow the laws and avoid the risk.
But under certain conditions people might need to brake just laws . For example you find
someone who needs immediate medical attention and there is a traffic jam then you will have
to brake the just traffic laws . Hence obligation may wary under certain conditions but it could
always be justified based on reason.
Secondly , the situation where laws are slightly unjust:
There may be instances when under a just state laws are partially unjust. The laws may
departure from the publicly accepted standards that are more or less just or these laws may
conform to the conception of justice of the majority class but this conception in itself may be
unjust. The fact that there is a just constitution in existence in relation to unjust laws , because
the way provisions are interpreted to satisfy personal interests and political agendas wary.
Nevertheless our natural duty to uphold just institutions bind us to comply to these laws . The
reason John Rawls provide for accepting unjust laws is that among the very limited number of
feasible procedures that have any chance of being accepted at all , there are none that would
always decide in our favor. Consenting to one of these procedures is surely better than no
agreement at all .whether non compliance is justified depends on the extent to which laws are
unjust. Besides that even for self preservation , development and well being we need to obey
laws. Otherwise we will again go back into the state of nature.
Thirdly a situation where laws are totally unjust:
If the laws are unjust then obviously there is no need to obey them. The question that arises
who will decide whether the laws are unjust . the reason that man is a rational animal and has
certain instinctive consciousness based on morality makes us assume that even if initially men
doesnt realize that certain laws are unjust he could definitely realize it at a certain point of
time.
CIVIL DISOBEDIANCE
3 I am indebted to John Rawls for clarification on this and other matters in this paragraph.

If a man can only obey and not disobey he is a slave.

-E.Fromm
To what extent it is permissible in a society which is under unjust laws. Civil disobedience is
generally organized on a public forum and is engaged openly with fair notice and is not covert . it
is based on commonly shared conception of justice. According to St. Augustine An unjust law is
no law at all. An unjust law was a human law that was not rooted in eternal and natural law. Just
law upgrades human beings while unjust laws degrade the society. Can the label law be applied to
rules as amoral as those enacted under the Nazis? The ethnic cleansing undertaken by Hitler or the
laws legalizing buying and selling of humans in the name of slavery in America. Can those rules
that segregated blacks and whites in Africa in the name of Apartheid be called as a laws?
Definitely no. hence there is a need to disobey certain laws that infringe our basic human right.
Disobedience should be taken as a last resort when all democratic means have got exhausted.
In the contemporary times civil disobedience made people achieve their basic rights. For example
Rosa Park , an African American became inspirational when she stood up for what she believed ,
by sitting down. When a conductor asked her to give her seat for a white passenger , she refused,
she was arrested for not obeying the law requiring blacks to relinquish seat to white people when
the bus was full. Her struggle lead to Supreme Court decision of banning segregation on public
transport.
Similarly if a soldier is ordered to engage in an illicit war , he may refuse if he reasonably believes
that the principles applying to the conduct of the war are plainly violated . His natural duty not to be
made the agent of grave injustice and evil to another outweighs his duty to obey.
In Locks Liberal theory any oppressed citizen has the right to disobey . In reality civil disobedience
is carried out by those who are a part of a group , when citizens feel an obligation to disobey.
Hence to maintain the democratic essence of the state we need to disobey the laws when they are
unjust.

JOHN STUART MILL

LIBRETY
Mill was a staunch supporter of the idea of freedom of speech and expression . According to mill
dissenting speech plays a crucial role in a collective truth speaking endeavor advocated for a market

place of idea. Clashes between opinions lead to progress in uncovering universal unchangeable
truths . Mills free speech defense is based on the argument that individuals are more likely to pick
true beliefs if presented with several alternatives but also on the notion that a society that prizes
dissent promotes the development of character traits in its citizens which in turn allows that society
to prosper.
with regards to ancient Greek story by Sophocles Antigone situated in the battle ground , a war
between two brothers , Eteocles and Polynices after the death of their father, for the throne . both
die while fighting with each other. The new ruler Creon announces that Eteocles is to be honored
and Polynices is to be disgraced by leaving his body unburied on the battle ground something
which was a shameful and harsh punishment at that time. When their sister Antigone comes to
know about the entire incident she proceeds to the thebes city and vehemently disobeys the order
of the new ruler Creon and buries her brother Polynices. She is arrested for her disobedience she
argues the moral validity of the law but Creon doesnt have any answer to this. She is sentenced to
death . But eventually when the chorus realizes that the king Creon is being unjust they warn him
and Creon realizes his mistake but itb is already too late as Antigone has sacrificed her life by
drinking poison.
It tells us how we need to disobey unjust laws and how eventually even the state will realize its
unjust laws and will amend them . There is a need to dissent and exercise your freedom of
expression.
Mill argues that no person has the authority 'to decide the question for all mankind and exclude
every other person from the means of judging' (Mill, 1859 / 1974, 77). What he means by this is that
no one can be certain that their own belief is absolutely correct, yet the censor is conferring a
judgement of absolute certainty on their own beliefs by refusing any challenges to them (i.e. the
'false beliefs' being censored). In the context of writing in an England that was still very much
aligned with Christian belief, Mill directly tackles the obvious problem of religious belief requiring
an acceptance of the absolute truth of divine revelation (the false beliefs censored here would be that
of the heretics cited by Scanlon in his own principle). Mill cites the example of Jesus being
persecuted for his own religious beliefs, notes that current believers despise their saviour's
persecutors, and then points out that they are being hypocritical to persecute those who do not share
the same religious beliefs as them in their own time. Mill concludes this demonstration by pointing

out that 'Orthodox Christians who are tempted to think that those who stoned to death the first
martyrs must have been worse men than they themselves are ought to remember that one of those
persecutors was Saint Paul' (85-86). The reference to St. Paul is a powerful one since he was one of
the most important writers of the New Testament and the person who properly established the
Christian church in the first place. If St. Paul was fallible in his own beliefs, who are they to impose
their beliefs on others? Tolerance concerning the freedom of expression of alternative religious
beliefs is required on the censor's part.
John Locke was held the "father of liberalism itself," whose arguments in favor of the social contract
theory and the rectitude of constitutional, republican government underscored not simply the rise of
liberal democracy, but also the rise of liberal epistemology."4
Locke's epistemology is premised on the understanding that even though the human capacity for
reason is profound and distinguishes human beings from all others creatures5, while simultaneously
being shared in equity by all men, knowledge is not certain and in fact can never be certain.6
According to Locke human understanding and reason "comes exceedingly short of the vast Extent of
things," yet reason was bestowed upon humanity in a share far greater than the
remainder of Creation, and as a result human beings can still understand some elements of the
universe despite their inability to have total and full comprehension of all things.7 Locke states that
boundless enquiry into the nature of all things, when untempered by the recognition of the limited
4 Rauch bases this position on the observation that a world in which all people enjoy the same unlimited
right to speak, knowledge will be arrived at by a means of public discourse wherein all ideas are
continuously vetted and subject to constant review. In light of this, Rauch concludes that society benefits
from speech that is hateful or obnoxious to the extent that it causes individuals to constantly scrutinize their
own positions, preventing knowledge from going stale and denying any one person the opportunity to
declare themselves the fmal arbiter of knowledge.
5 JOHN LOCKE, AN ESSAY CONCERNING HUMAN UNDERSTANDING 13 (Oxford Univ. Press
2008) (1690).

6 Roger Woolhouse, Locke's Theory of Knowledge, in THE CAMBRIDGE COMPANION TO

LOCKE 147, 148 (Vere Chappell ed. 1994).
7 Supra at 6

and finite nature of human reason, is dangerous because it leads to absolute and undue certainty of
knowledge in some and absolute skepticism in others.8
With the capacity of human error in mind, Locke reminds readers that the greatest error in the pursuit
of knowledge is the belief that one has certain knowledge that is beyond scrutiny.
According to Locke:
We should do well to commiserate our mutual Ignorance, and endeavour to remove it in all the
gentle and fair ways of Information; and not instantly treat others ill, as obstinate or perverse,
because they will not renounce their own, and receive our Opin_ions, or at least those we would
force upon them, when 'tis more than probable that we are no less obstinate in not embracing some
of their. For where is that Man, that has uncontestable Evidence of the Truth of all that he holds, or
of the Falsehood of all he condemns.
. Speech is important because we are socially situated and it makes little sense to say that Robinson
Crusoe has a right to free speech. It only becomes necessary to talk of such a right within a social
setting, and appeals to an abstract and absolute right to free speech hinder rather than help the
debate. At a minimum, speech will have to be limited for the sake of order. If we all speak at once,
we end up with an incoherent cacophony. Without some rules and procedures we cannot have a
conversation at all and consequently speech has to be limited by protocols of basic civility. It is
true that many human rights documents give a prominent place to the right to speech and
conscience, but such documents also place limits on what can be said because of the harm and
offense that unlimited speech can cause, (I will discuss this in more detail later). Outside of the
United States of America speech does not tend to have a specially protected status and it has to
compete with other rights claims for our allegiance. John Stuart Mill, one of the great defenders of
free speech, summarized these points in On Liberty, where he suggests that a struggle always takes
place between the competing demands of authority and liberty. He claimed that we cannot have the
latter without the former:

8 JEREMY WALDRON, THE HARM 1N HATE SPEECH 210-13 (20 12).

All that makes existence valuable to anyone depends on the enforcement of restraints upon the
actions of other people. Some rules of conduct, therefore, must be imposedby law in the first
place, and by opinion on many things which are not fit subjects for the operation of law. (1978, 5)
The task, therefore, is not to argue for an unlimited domain of free speech; such a concept cannot
be defended. Instead, we need to decide how much value we place on speech in relation to other
important ideals such as privacy, security and democratic equality and there is nothing inherent to
speech that suggests it must always win out in competition with these values. Speech is part of a
package deal of social goods: speech, in short, is never a value in and of itself but is always
produced within the precincts of some assumed conception of the good (Fish, 1994, 104). In this
essay, we will examine some conceptions of the good that are deemed to be acceptable limitations
on speech. We will start with the harm principle and then move on to other more encompassing
arguments for limiting speech.
Before we do this, however, the reader might wish to disagree with the above claims and warn of
the dangers of the slippery slope. Those who support the slippery slope argument claim that the
consequence of limiting speech is the inevitable slide into censorship and tyranny. Such arguments
assume that we can be on or off the slope. In fact, no such choice exists: we are necessarily on the
slope whether we like it or not, and the task is always to decide how far up or down we choose to
go, not whether we should step off the slope altogether. It is worth noting that the slippery slope
argument can be used to make the opposite point; one could argue with equal force that we should
not allow any removal of government interventions because once we do we are on the slippery
slope to anarchy, the state of nature, and a life that Hobbes described in Leviathan as solitary,
poore, nasty, brutish, and short (1968, 186).
It is possible that some limits on speech might, over time, lead to further restrictionsbut they
might not. And if they do, those limitations might also be justified. The advocate of the slipperyslope has to demonstrate how a restriction here and now will lead to some further (unjustified)
restriction in the future. The usual slippery-slope claim is not that the proposed restriction will lead
to minor adjustments in the future, but that a small change now will have drastic and tyrannical
consequences. The causal mechanisms for how this must necessarily happen are usually
unspecified.

Another thing to note before we engage with the harm principle is that we are in fact free to speak
as we like. Hence, freedom of speech differs from some other types of free action. If the
government wants to prevent citizens engaging in certain actions, riding motor bikes for example,
it can limit their freedom to do so by making sure that such vehicles are no longer available;
current bikes could be destroyed and a ban can be placed on future imports. Freedom of speech is a
different case. A government cannot make it impossible to say certain things. The only thing it can
do is punish people after they have said, written or published their thoughts. This means that we
are free to speak or write in a way that we are not free to ride outlawed motorbikes. This is an
important point; if we insist that legal prohibitions remove freedom then we have to hold the
incoherent position that a person was unfree at the very moment she performed an action. The
government would have to remove our vocal cords for us to be unfree in the same way as the
motorcyclist is unfree.
A more persuasive analysis of freedom of speech suggests that the threat of a sanction makes it
more difficult and potentially more costly to exercise our freedom. Such sanctions take two major
forms. The first, and most serious, is legal punishment by the state, which usually consists of a
financial penalty, but can stretch occasionally to imprisonment. The second threat of sanction
comes from social disapprobation. People will often refrain from making public statements
because they fear the ridicule and moral outrage of others. For example, one could expect a fair
amount of these things if one made racist comments during a public lecture at a university. Usually
it is the first type of sanction that catches our attention but, as we will see, John Stuart Mill
provides a strong warning about the chilling effect of the latter form of social control.
CONCLUSION
In a liberal society, we have found that the harm principle provides reasons for limiting free speech
when doing so prevents direct harm to rights. This means that very few speech acts should be
prohibited. The offense principle has a wider reach than the harm principle, but it still recommends
very limited intervention in the realm of free speech. All forms of speech that are found to be
offensive but easily avoidable should go unpunished. This means that all forms of pornography
and most forms of hate speech will escape punishment. If this argument is acceptable, it seems
only logical that we should extend it to other forms of behavior. Public nudity, for example, causes

offense to some people, but most of us find it at most a bit embarrassing, and it is avoided by a
simple turn of the head. The same goes with nudity, sex, and coarse language on television. Neither
the harm or the offense principles as outlined by Mill support criminalizing bigamy or drug use,
nor the enforcement of seat belts, crash helmets and the like.
Some argue that speech can be limited for the sake of other liberal values, particularly the concern
for democratic equality; the claim is not that speech should always lose out when it clashes with
other fundamental principles that underpin modern liberal democracies, but that it should not be
automatically privileged. To extend prohibitions on speech and other actions beyond this point
requires an argument for a form of legal paternalism that suggests the state should decide what is
acceptable for the safety and moral instruction of citizens, even if it means limiting actions that do
not cause harm or unavoidable offense to others. It is up to the reader to decide if one of these
positions is persuasive. It has certainly been the practice of most societies, even liberal-democratic
ones, to impose some paternalistic restrictions on behavior and to limit speech because it causes
offense. As we have seen, even Mill seems to back away somewhat from the harm principle.
Hence the freedom of expression supported by the harm principle as outlined in Chapter One of
On Liberty and by Feinberg's offense principle is still a possibility rather than a reality. It is also up
to the reader to decide if it is an appealing possibility.