Author Name:   Astha

Do we have an obligation to obey any law, no matter how unjust or evil the law is? Provided only that it is 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.

Do We Have An Obligation To Obey Law?

Do we have an obligation to obey any law, no matter how unjust or evil the law is? Provided only that it is 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.

Introduction
Nature of State: “We are not final because we are infallible, but we are infallible only because we are final.”

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 the law of inward morality. Man is 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 a 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 become 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:
This agreement between men leads to the establishment of a 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. The 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 that 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 the law, but any such constraints are legally binding only in virtue of certain contingent social facts. Thus, according to positivism’s separability thesis, there is no necessary moral constraint on the content of the 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 law’s 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?

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 injustice, 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 extensive basic liberty compatible with the similar liberty for others.
·To attain socio-political and economic equality for all.

If the state fulfils these two principles then it is a just law. Since one has voluntarily accepted the benefits of the arrangements or taken advantage opportunities it offers to further one's interest. we are not to gain from the cooperative labours of others without doing any fair share.

Firstly I would discuss obligation towards Natural duty or just laws:
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 break just laws. For example, you find someone who needs immediate medical attention and there is a traffic jam then you will have to break 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 with these laws. The reason John Rawls provides 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 favour. 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 don’t realize that certain laws are unjust he could definitely realize it at a certain point of time.

Civil Disobedience

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 the 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 labelling law be applied to rules as amoral as those enacted under the Nazis? The ethnic cleansing undertook 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 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 the 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 Lock’s 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.

End-Notes
# This is the famous quote of Justice Jackson in Brown v Allen.
# Feinberg, Joel, “Civil Disobedience in the Modern World,” Humanities in Society
# I am indebted to John Rawls for clarification on this and other matters in this paragraph.

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