Constitution, Society, and Leadership Week 5 Unit 5 Concepts of Law: Moral Obligation?

1. Constitution, Society, and LeadershipWeek 5 Unit 5Concepts of Law: Moral Obligation? Christopher Dreisbach, Ph.D. Johns Hopkins University

2. Concepts of Law: Moral Obligation-iUnit Overview-i • So far • Three theories of law • Natural Law • Legal Positivism • Legal Realism • Natural Law theory is the one that (in most cases) posits a necessary connection between law and morality

3. Concepts of Law: Moral Obligation-iiUnit Overview-ii • Two questions regarding law and morality • Must a law be morally good? • Is one morally obliged to obey a law, whether or not the law is morally good? • Feinberg & Coleman address this second question in Ch. 7.

4. Concepts of Law: Moral Obligation-iiiUnit Overview-iii • Feinberg & Coleman, Ch. 7: “Is there a Moral Obligation to Obey the Law?” • Three Selections • Plato, Crito • M. B. E. Smith, Is There a Prima Facie Obligation to Obey the Law? • Martin Luther King, Jr., Letter from Birmingham Jail

5. Concepts of Law: Moral Obligation-ivPlato-i • Plato, Crito • Socrates: There is a moral obligation to obey the law • Back story: • Socrates awaits execution • On bogus charges • His wealthy friend, Crito, has bribed a guard and offers to help Socrates escape • Socrates agrees to escape only if Crito can convince him that it is the just thing to do

6. Concepts of Law: Moral Obligation-vPlato-ii • Crito’s argument • If Socrates does not escape • Crito will lose a cherished friend • Most people will think that Crito was too cheap to help Socrates • Socrates’ children will be deprived • Socrates will have the reputation of being a coward

7. Concepts of Law: Moral Obligation-viPlato-iii • Socrates’ quick response to Crito • Don’t worry about what “most people” think • Only what wise and reasonable people think • “The important thing is not to live, but to live well” • To live well is to live honorably • To live honorably is to do the right thing

8. Concepts of Law: Moral Obligation-viiPlato-iv • So, is it right to escape rather than suffer the punishment? • No • Two extended arguments • From Duty (Deontological) • From Consequences

9. Concepts of Law: Moral Obligation-viiiPlato-v • Socrates’ argument from duty • One must never knowingly do wrong • It is dishonorable • It is wrong to injure in retaliation • One ought to fulfill one’s agreements—especially if one freely and knowingly enters into them • If Socrates escapes he would be • Injuring Athens in retaliation • Violating his agreement to abide by Athens’ laws • Therefore, it would be wrong—dishonorable—to escape

10. Concepts of Law: Moral Obligation-ixPlato-vi • Socrates’ argument from Consequences • To escape would be to develop a deservedly bad reputation • Coward • Disobedient • This bad reputation would make life miserable • Socrates wouldn’t be able to practice philosophy • To live miserably is not to live well • Therefore, Socrates shouldn’t escape

11. Concepts of Law: Moral Obligation-xSmith-i • M. B. E. Smith, Is There a Prima Facie Obligation to Obey the Law? • No. • Let PF=“There is a prima facie obligation to obey the law”

12. Concepts of Law: Moral Obligation-xiSmith-ii • Two arguments in brief • Negative argument • There are three arguments for PF • These arguments fail • Therefore, no PF • Positive argument • If PF in meaningful sense, then PF is serious or substantial • If PF is serious or substantial, it must pass one of 2 tests • It’s possible to break a law without violating either test • Therefore, no PF

13. Concepts of Law: Moral Obligation-xiiSmith-iii • Negative argument—expanded • Three arguments in defense of PF: Based on • Individual benefits one can receive from obeying the law • Implied consent or promise • Utility—the greatest good for the greatest number

14. Concepts of Law: Moral Obligation-xiiiSmith-iv • Argument 1 • Version A: Duty to act with gratitude toward government • Smith: Not self-evident that • Citizens have a duty to be grateful • Obeying the law is • The only way to show gratitude • Always going to express gratitude • Version B: Unfair to benefit from a system of rules and not play by those rules • Smith: I can break some laws without treating anyone unfairly

15. Concepts of Law: Moral Obligation-xivSmith-v • Argument 2: By living in a community I (at least) implicitly consent to play by its rules—obey its laws • Smith • Implicit consent is not consent • Even if we could make sense of “implicit consent,” e.g., when I vote, I consent to obey the authority • This is not self-evident, so not PF

16. Concepts of Law: Moral Obligation-xvSmith-vi • Argument 3: Obedience promotes the greatest good; disobedience the opposite • Smith • Not always: the law might be a bad one • Might be a good law whose violation does not make matters better or worse

17. Concepts of Law: Moral Obligation-xviSmith-vii • Positive Argument—Expanded • Two tests: • PF is serious “if, and only if, an act which violates the obligation and fulfills no other is seriously wrong” • PF is serious “if, and only if, violation of it would make considerably worse an act which on other grounds is already wrong”

18. Concepts of Law: Moral Obligation-xviiSmith-viii • Smith • Response to Test 1: running a stop sign at an otherwise deserted intersection at 2:00 AM • Broke the law • But no serious wrong • Response to Test 2: intentional fraud • That one broke the law did not make the act morally worse

19. Concepts of Law: Moral Obligation-xviiiKing-i • Martin Luther King, Jr., Letter from Birmingham Jail • Obligation to • Obey just laws • Disobey unjust laws • Back story • King in Birmingham jail for leading nonviolent protest in Birmingham • Without a legal parade permit • Eight clergymen publish criticism of King • King responds

20. Concepts of Law: Moral Obligation-xixKing-ii • King’s basic argument • (i) “Injustice anywhere is a threat to justice everywhere.” • (ii) People are obliged to fight against injustice—nonviolently • Four steps to any non-violent campaign • Collect facts: Has there been an injustice • Negotiate: If successful no need for next 2 steps • Purify self: ‘This isn’t about me!’ • Take direct action

21. Concepts of Law: Moral Obligation-xxKing-iii • (iii) There is injustice in Birmingham • Racial-segregation and failure to fulfill promises to fix • Legal • Two types of law • Just • “A man-made code that squares with moral law or the law of God” • “Any law that uplifts human personality” • Unjust • “Any law that degrades human personality” • “Difference made legal” • False superiority of one group over another

22. Concepts of Law: Moral Obligation-xxiKing-iv • Augustine: “An unjust law is no law at all” • “An individual who breaks a law that conscience tells him is unjust, and who willingly accepts the penalty of imprisonment in order to arouse the conscience of the community over its injustice, is in reality expressing the highest respect for law”

23. Week 5 Unit 5 Concepts of Law: Moral Obligation? Constitution, Society, and Leadership