[ Pobierz całość w formacie PDF ]

duty of the ruled to obey them. It is often asserted that there is a prima facie
general duty of obligation to obey the law. What this means is that in the
absence of special reasons that might justify a specific exemption, the
acknowledgement of the law s authority leads to the acceptance of the duty
of obedience. How it might lead to this, however, is a matter for debate. It
may be for reasons quite independent of the authoritative status of the law.
The special reasons for suspending this presumption, furthermore,
suggesting that there are limits to the general duty, must arise from consider-
ations powerful enough to override the standard reasons for compliance.
Common reasons for obeying the law
On the assumption that there are sound moral reasons for not breaking
contracts, committing frauds or acts of violence, does the unlawfulness of
wrongful acts provide an additional reason to conform? This is the ques-
tion. If sound moral judgement were a sufficient guide to action, legal
obligation would simply be a reinforcement of moral obligation. The law
would be no more than a system of coercion to prevent or discourage
people from acting harmfully. One obvious reason in addition to moral
obligation is the instinct of self-preservation, the fear of sanctions. This is
not the point. The question is whether the fact of legality as such creates an
obligation beyond the moral obligation that might already be felt. Do we
have to respect the law as law?
92 The reach of the law
One fairly common belief is that the obligation is self-evident, because
the law is, by definition,  what you have to do . The law is the law and it is
there to be obeyed. The theoretical expression of this reason is the claim
that the obligation is derived conceptually, that the obligation to obey is
written into the very idea of legitimate authority. This is a conceptual justifi-
cation. To say that  X is a law just means that X has to be obeyed.
Disobedience is wrong by definition and the sanctions of the law are auto-
matically justified. It should be stressed that on this argument the obligation
is derived solely from the legality, not from the content of the law.
Another common belief is that the law has to be obeyed because its
authority is essential for the continuation of civilised society. The emphasis
here is on the dangerous social effects of any relaxation in the general obli-
gation to obey. This argument is rooted in the utilitarian tradition, which
today is more commonly termed consequentialist. This is a broader term that
includes theories which reject the specific standard of utility but retain the
basic principle that all actions are to be judged in terms of their effects,
rather than, for example, their inherent goodness or badness. In the same
way that Bentham in his critique of common law judged the merits of indi-
vidual laws by reference to their overall utility, contemporary consequentialists
justify a general obligation to obey the law by referring to the good and bad
effects on society as a whole of obedience and disobedience. Given that
general disobedience would have dangerous consequences, this approach
establishes at least a prima facie duty of obedience, but leaves open the ques-
tion as to whether this duty can be overridden in specific circumstances in
which the effects of the injustice perpetuated by an unjust law outweighs the
negative effects of disobedience.
A third type of justification is contractual, according to which the obliga-
tion arises from an agreement  either explicit or unspoken  already
reached between the rulers and the ruled. The commitment on this line of
reasoning is to obey the law, not for the sake of what might happen in the
event of widespread disobedience, but as an expression of what is already
due. The state has the right to expect obedience because consent has already
been implicitly given. This justification is also open to refutation, depending
on whether or not the rulers have honoured their side of the contract.
Obligation and legal theory
It is vital to understand that there is no simple correspondence between the
major theories of law and these theories of obligation. It is a common
mistake to divide natural lawyers from positivists by imagining that while
the former urge us to disobey unjust laws, the latter insist that a bad law is
still a law that has to be obeyed. In fact, the problem of how the nature of
law relates to the source of obligation to obey is one of the most complex
and paradox-ridden areas in contemporary jurisprudence. We can open up
this area by observing that the mere statement or exposition of what the law
Authority and obligation 93
actually expects and demands of those subject to its jurisdiction in no way
begins to answer the question about their obligation to obey these laws. The
fact that there are sanctions to enforce the law does not create an obligation,
it means only that we can be obliged to conform (Hart 1961: 80 1).
The central problem derives from the deep ambiguity in the terms
 authority and  authorisation . Both positivism and natural law have been
unclear about the relation between obligation and the authority of the law.
Positivists have frequently been interpreted as arguing that any law that is valid
according to purely technical criteria automatically creates alongside its legality
a general obligation to obey. On the other hand, many positivists have seen the [ Pobierz całość w formacie PDF ]