When is it right to Disobey the Law?
The law consists of a set of rules and regulations, enforced by a ruling authority, to govern behavior. The rule of law consigns all individuals within a given community under the same regulations and constraints. This promotes safety and a greater sense of freedom as the community works to promote the generally accepted social good. The obligation to obey the law arises from the fact that individuals in the society have agreed upon a set of rules to offer a general sense of direction that results in the greater good.
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The law forms the basis that forms states. Every citizen who enjoys the advantages proffered by the state is therefore under obligation to obey the law. To assess cases where we can disobey the law, it is important to analyze what justifies the rule of law. I will argue that individuals have the right to disobey the law under three conditions. First, when the duty to obey the law goes against a generally accepted universal moral code. Secondly, when the disobedient action has an apparent and socially accepted reason and can improve or amend the existing law. Third, when moral and social rewards exceed the cost of disobeying the law.
Over the years, many theorists have debated the reasons why individuals should obey the law. According to Kramer, the obligation to obey the law has four characteristics. The first characteristic is the universality of this obligation. This means that the duty to obey the law applies to all the individuals that exist within the jurisdiction of the law (Kramer 2005).
The second characteristic, that the duty is content independent, means that the obligation to obey the law is not dependent on the goals or motivations of the individuals but exists simply because it is the law. The third characteristic is that the obligation to obey the law is comprehensively applicable, laws should be obeyed in their entirety and individuals cannot pick which parts of the law to obey. The final characteristic is that it is a prima facie duty. This means that while the law is binding under normal circumstances, certain moral considerations can overrule its authority (Rawls, 1971).
The duty to obey the law forms the foundation of states and liberal democracy. Individuals living within a centralized political structure are obligated to conform to their laws. All individuals within a given state enjoy protection and benefits because of their citizenship. This implies consent, either explicit or tacit, to obey the laws of the state. According to Horton, laws outline the terms of association within a polity, hence obedience to laws promotes the welfare and interests of the polity (Horton 1992).
Laws, being universally borne, ensure that individual acts in a manner that is socially acceptable by the majority of the state. Hume however argues that many individuals within a given jurisdiction have no power to consent voluntarily to the rule of the state (Hume 1953). Since these individuals do not take any action or inaction to acquire the obligation to obey the state, they thus do not have a duty to obey the laws. In the late 1950s and the 1960s, Martin Luther King engaged in civil disobedience geared to promote social equity in America. He was involved in civil rights movements to promote the rights of African Americans in issues such as desegregation, labor laws, and voting.
The laws at this time focused on promoting the values and rights of white Americans at the expense of the rights of other races. Since African-Americans came to the country as slaves, they did not have the power to consent voluntarily to the authority that the state exercised over them. While the obligation to obey the law is universally borne, this situation shows that in certain circumstances, individuals have a right to disobey the law.
Martin Luther King argued that promoting order over justice is wrong and that negative peace might signify the presence of justice (King, 2013). Slavery, segregation, and violence against fellow men due to the color of their skin can all be considered ills against the universal moral code. In this situation, an individual has a right to disobey the law either to highlight this injustice or ensure that the law is removed or amended.
The duty to obey the law is considered as content-driven. This means that individuals have a moral obligation to follow legal directives simply because of their status as the law and not because of their content. This justification can frustrate individuals when the law cannot answer some questions about the restrictions enforced. According to Joseph Raz, the practical authority that the state claims over its citizens is justified only if the citizens can achieve better moral and rational ends than when acting on individual rationales (Raz 1985).
While an individual may like to drive at high speeds to achieve certain personal goals, the state imposes speed limits under the assumption that the potential for accidents negates individual time constraints. Content-driven justifications also assume that the state has experts who have considered all eventualities of law and are best able to guide the actions of its individuals. This rationale insists on a political rationale to obey the law without an independent moral justification.
The apartheid system in South Africa promoted the white minority rule while curtailing the movements, associations, and rights of the black majority. The National Party (NP) set legislation that ensured racial segregation and enforced these laws. Before 1960, most of the countries in East and Southern Africa were colonized by European countries. Colonization was therefore socially acceptable during this time.
With education, People began questioning whether the current laws promoted their rights and well-being. Civil disobedience resulted when the black majority realized that the laws were limiting their freedom without offering a sufficient balance in terms of benefits. According to Raz, some individuals have enough knowledge or skills to realize that they could do better by relying on their judgment rather than relying on the state (Raz 1985). Individuals may also realize that the laws of another nation better reflect his situation and his conviction. To change the laws of his nation, or to raise awareness on the failure of existing law, civil disobedience is a justifiable course of action.
Mahatma Gandhi promoted the idea of non-violent civil action to promote his messages. Gandhi held that British rule in India only existed due to the cooperation of Indians. Their rule did not exist without the sanction of Indians, and the laws that oppressed Indians to promote the welfare of Britain were flawed. The obligation to obey the law should be comprehensively applicable. All individuals should be subject to the same laws and should obey the law as is.
The obligation to obey the law is dependent on a sense of fairness and a belief that obedience respects the basic rights of other individuals (Lefkowitz 2004). Rawls (1971, 96) argues that to justify the duty to obey the law, just institutions should exist in society. He argues that civil disobedience should target violations of equal opportunity and liberty. A just society can at times promote unjust laws. Individuals, therefore, have a right to disobey laws that betray the principles that govern equal and fair social cooperation. Mahatma Gandhi acted in defense of the Indian population, Africans, and even women, all considered as second-class citizens by the ruling powers (King 2013).
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All major philosophies agree that individuals have a moral obligation to help others avoid significant harm that would reduce their ability to lead a worthwhile life. Individuals can, therefore, disobey the law when in pursuit of social fairness and equality for a marginalized and oppressed group.
The duty to obey the law is a prima facie duty. Smith (1973, 974) argues that there is no obligation to obey all the laws of a government. While the law is at first glance assumed inviolate, the presence of other moral obligations may necessitate disobedience of the particular law. According to Raz (1985, 154), the law is dependent on the moral autonomy of those under its jurisdiction. Without the issue of morality, obedience to the law will only be dependent on self-interest or the fear of repercussions.
While the law prohibits over speeding in certain areas, surpassing the speed limit to save a patient’s life can be justified. An individual is therefore justified in cases where the moral and social rewards exceed the cost of disobeying a law. The individual should however be willing to account for his action and pay the price if need be.
Justification of the duty to obey the law faces various conceptual difficulties. Theorists have argued that individuals within a state have to obey the laws of that particular state simply because they are the law. However, individuals must have an individual drive or moral reason to follow the laws of the state. In some states, segregation may result in the feeling that the state does not promote the well-being of one group over another. In this case, civil disobedience is justified if it leads to social fairness and equality.
The content of the law can also at times fail to cover the needs of citizens within a state. In some countries, the law forbids women to vote while also dictating what they wear. These women are not part of the legal process and have wants and needs that have been largely neglected. In this situation, the women have no obligation to obey the law and their actions can only be assured by the threat of punishment. Individuals also have a moral obligation to help others and to this end, have the right to disobey the law if it threatens others.
The paper argues that while individuals have a political obligation to obey the law, they are not under any moral obligation to do so. Obeying the law will depend on the circumstances at the time and any universal moral obligation that applies to the situation. The paper thus argues that an individual can disobey the law when in pursuit of social fairness and equality within a society and in cases where the substance of the law cannot answer pertinent questions regarding a given situation.
Horton, J 1992, Political Obligation, Humanities, Atlantic Highlands, NJ.
Hume, D 1953, ‘Of the Original Contract’, in David Humes (ed), Political Essays, Bobbs-Merrill, Indianapolis, pp. 17-42.
King, M 2013, ‘Mohandas K, Gandhi and Martin Luther King, Jr.’s Bequest: Nonviolent Civil Resistance in a Globalized World’, in Lewis V. Baldwin and Paul R. Dekar (eds) “In an Inescapable Network of Mutuality”: Martin Luther King, Jr. and the Globalization of an Ethical Ideal, Wipf and Stock, Eugene, OR, pp.168 -171.
Kramer, M 2005, ‘Moral and Legal Obligation’, in Martin P. Golding and William A. Edmundson (eds), The Blackwell Guide to the Philosophy of Law and Legal Theory, Blackwell Publishers, Oxford, pp.179-190.
Lefkowitz, D, 2004, ‘The Nature of Fairness and Political Obligation: A Response to Carr’, Social Theory and Practice, vol. 30, no.1, pp. 1-31.
Rawls, J 1971, A Theory of Justice, Belknap Press, Cambridge, MA.
Raz, J 1985, ‘The Obligation to Obey: Revision and Tradition’, Notre Dame Journal of Law, Ethics, and Public Policy, vol.1, pp. 139-155.
Smith, M 1973, ‘Is There a Prima Facie Obligation to Obey the Law?’ Yale Law Journal Vol. 82, pp. 950-976.