IS THERE A DUTY TO OBEY THE LAW?

Vol. 16 No. 9 (September, 2006) pp.704-707

IS THERE A DUTY TO OBEY THE LAW? by Christopher Heath Wellman and A. John Simmons. New York: Cambridge University Press, 2005. 214pp. Hardback. $50.00/£30.00. ISBN: 0521830974. Paper. $18.99/£12.99. ISBN: 0521537843.

Reviewed by Margaret S. Hrezo, Department of Political Science, Radford University. Email: Mhrezo [at] radford.edu.

Written for Cambridge University Press’s FOR AND AGAINST Series, IS THERE A DUTY TO OBEY THE LAW? consists of two essays. The first, written by Christopher Heath Wellman of Washington University in St. Louis, argues for the existence of a moral duty to obey government. In contrast, A. John Simmons, of the University of Virginia, maintains in the second essay that there is no strong moral duty to obey the laws of any existing state. The book’s purpose is to examine what the editors call the “central question of political philosophy . . . . whether political states have the right to coerce their constituents and whether citizens have a moral duty to obey.” Both essays are well written, thoughtful, and thought provoking. The debate is informative. The topic is important, even if one disagrees that it is the central question of political philosophy. Political obligation is one of the thorniest areas in legal and political philosophy and the literature is immense. States increasingly have to justify the legitimacy of legal rules in an atmosphere pervaded by the beliefs that it does not matter whether individuals choose to obey and that there is no genuinely binding reason for an individual to obey when obedience does not serve his self-interest. Both authors have written extensively on the subject, and their expertise is widely acknowledged. Despite these strengths, however, the book ultimately does not help us think more clearly about the problem of political obligation.

The problem is not the exposition of their opposing arguments. In the first essay, Wellman maintains there is a moral duty to obey the state because states “provide vitally important benefits that could not be secured in their absence, and they supply these benefits without requiring their subjects to make unreasonable sacrifices” (p.5). To Wellman, there is no way that even an entire society of well-meaning moral people could live flourishing lives without the state. Without the state, human beings would be forced into Hobbes’ war of all against all. To remedy this situation Wellman relies on what he calls the natural moral duty of samaritanism—a duty that does not rely on any previous transaction or preexisting association between rescuer and rescuee. If a person is in danger and one can save him without unreasonable cost, then there is a moral duty to do so. Although Wellman begins from the position that obedience to the state is a form of nonconsensual coercion not dissimilar to slavery, he believes that each of us occupies the position of the individual in need of rescue. The state’s coercion of all those within its territorial borders is “the only way for it to rescue any of us from the perils of the state of nature” (p.19). Thus, we should obey it as long as the benefits of obedience [*705] outweigh its costs. Samaritanism, however, cannot justify every potential function that a state may be able to do well. He uses the analogy of someone appropriating another’s car to take a third person to the hospital to make this point. Although it may be permissible for A to take B’s car in order to save C’s life, it is not permissible for A to take B’s car in order to take C to the grocery. Wellman attempts by this caveat to provide a general moral justification for obedience to law that leaves room for citizens to disobey illegitimate states or the unjust laws of legitimate states.

Simmons, however, is not convinced by Wellman’s argument—or by any other argument for a moral duty to obey the state. Who says there is a moral duty to “discharge the internal duties imposed by law” (p.94)? Why does such a duty exist? Why should I as an individual feel such a duty? Obedience, Simmons argues, is a question of the source of the rule or command. “A moral duty to obey would be a duty to do as the law requires because it is required by a valid law . . ., a duty to obey the law as such, not to do as it requires just insofar as it happens to overlap with independent moral duties” (p.95). For Simmons, that means that only some natural duty justifies obedience to the law even in a just state. For this reason after briefly mentioning the Associative (the duty to obey results from our nonvoluntary occupation of certain social roles) and Transactional (the duty to obey results from “morally significant interactions”) theories of obedience, he concentrates on examining various Natural Duty theories of obedience (p.102).

Natural duty theories, Simmons argues, locate the duty to obey in the existence of a moral duty to either: (1) “advance some impartial moral good” or (2) treat all others as moral equals regardless of “roles, relationships, or transactions” (p.121). He begins by outlining the general premises and conclusions he believes are shared by any Natural Duty theory. Premise 1: Government is necessary for all human beings. Premise 2: All persons have a natural moral duty to do one or more of the following: (1) maximize goodness in the world; (2) perform necessary tasks and support others who perform them; (3) respect and defer to those occupying necessary positions of authority; (4) do justice; and (5) assist those in peril (p.123). The remainder of Simmons’ essay is his attempt to refute each of the elements of Premise 2.

Maximizing goodness, the first justification, he contends is in essence the consequentialist argument that we must avoid choices that will have bad consequences. This argument fails because governments need only general compliance with their demands, not the compliance of every citizen. Second, necessity also must fail as a justification for the duty to obey unless one can show why the necessary task is a moral duty. He finds equally inadequate justifications based on respect and deference. In Simmons’ view disobedience to rules we have not made or individually accepted does not show disrespect to others “in any very strong morally important sense” (p.146). Here he maintains that providing a justification for authority is not the same as establishing its moral legitimacy over [*706] individual citizens. Fourth, Simmons examines and finds wanting Rawls’ natural duty of justice (all must build and maintain just institutional arrangements) as a justification for the natural duty to obey the law. Rawls’ argument fails, Simmons says, because Rawls is not able to explain to us why even just domestic institutions should have “privileged moral authority over us” (p.163). If there is a natural duty of justice, why would it end at the borders of our own nation state? Finally, Simmons rejects the justification for obedience based on the duty to assist those in peril—the justification on which Wellman has based his argument in the first essay. Simmons suggests that Wellman inappropriately conflates two different sorts of moral duties: charity and rescue. Wellman, he argues, posits a duty to assist in emergencies. However, the actual content of the duty Wellman describes is much closer to charity, which Simmons defines as a fair share of a collective moral task. We must rescue only those whose peril we actually see. Charity is something owed to all whether we see them face-to-face or not. Further, because it is of no real consequence to the state whether any particular individual obeys, the emergency is not genuine. Once again, Simmons argues that samaritanism cannot address why a particular moral duty applies to me individually.

The problem with the book is that the argument between the two authors is more formal than real. Both authors begin from a very similar position. The reader never believes that there is a genuine debate going on here. Both agree that the individual exists prior to the state and is the highest good. The default position is no interference with individual choice and the most minimal state possible. There is no substantive common good. The reader forms the impression that both authors view the state as an alien interloper, a center of coercive power whose purpose is solely to prevent Hobbes’ summum malum (highest evil, death). Both appear to reject the west’s Judaeo-Christian heritage. In their eyes, no one can have a positive duty to benefit others unless she has voluntarily accepted that duty (p.20). For both authors the model of the individual is Michael Sandel’s unencumbered self. Human beings are rational pleasure seekers, Locke’s homo economicus (economic man). Complete freedom of choice, empty of all substantive content, is the ultimate good and if the citizen chooses to disobey the laws of her state, it makes no difference in the state’s ability to perform its functions. Politics is the regulation of procedures according to which individuals pursue their own private interests.

Those initial assumptions constrain the logical outcomes it is possible for Wellman and Simmons to reach. In fact, given their initial assumptions, it is almost impossible honestly and objectively to reach any conclusion other than that Simmons is the most correct. Given both authors’ underlying assumptions it appears that civil disobedience should be the norm in political life, not the exception. Wellman’s argument, as Simmons points out, is not really a moral one. Try as he might, and he tries mightily, Wellman cannot convince us that his justification [*707] of the state’s coercive power is anything but utilitarian in nature. The analogy between an individual obligation to assist someone in need and the citizen’s duty to obey the state because it protects all in need unfortunately does not work—at least not in a state inhabited by the kind of human beings he assumes in the sort of state he assumes, the liberal procedural (or neutral administrative) state. In the end, the justification is that obedience is necessary in order to solve the problem of coordination.

What the book really shows us is liberalism’s tendency to destroy politics when its premises are torn out of some moral framework and taken to their ultimate conclusion. Wellman and Simmons insist on framing a non-market issue in market terms. However, political duty is not a commodity suitable for market transactions. What if politics is more than the pursuit of power? What if it is the search for a pattern of order for society that is based on the society’s concrete conditions and is designed to make life meaningful for its citizens? Or what if Plato is right and politics is the place where power meets justice in an uneasy tension? Wouldn’t that change the poles of the debate substantially? Simmons analyzes Plato’s CRITO as part of his argument, suggesting that Socrates was wrong to listen to the Laws. Simmons would be correct if Socrates had begun with the same philosophical values and premises as does Simmons. But Socrates does not. Socrates would answer Simmons’ and Wellman’s contention that individual action has little or no effect on the government’s ability to complete its necessary tasks by arguing that the city is the citizen writ large. The quality of the state depends on the quality of its citizens. Empty freedom enslaves us to our passions and whims. And the most important question in political philosophy is not whether there is a moral duty to obey, but rather whether both individual citizens and the state as a whole seek diké, justice or righteousness. Thus, whether the individual citizen chooses to obey or disobey has a real and important impact on the quality and moral authority of the state.

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