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The Relationship Between Law And Morality Philosophy Essay

The question whether there is a prima facie obligation to obey the law and whether it would be more significant to shed light on the scope as well as the basis of such obligation, as opposed to argue for its existence, deserves great analysis. Therefore, one could argue that the starting point in assessing this question is to identify the sources out of which such obligation derives and once this has been clearly ascertained the next step is to examine whether our prima facie obligation to obey the law is based on legal or moral reasoning. A more skeptic, however, might argue that such obligation to obey the law does not exist at all since, if this was the case, it would have threatened his or her personal autonomy.

Further to the above, it is in my view that in order to provide a logical answer to the above dilemma, particularly when discussing whether there is a prima facie obligation to obey the law, it is of great importance to understand what specific law is under discussion and whether the country under consideration is one that promotes democratic principles and values (e.g. the United Kingdom, Germany, and the United States of America) such as equality, social acceptance, social justice, respect of freedom of expression, or one that promotes dictatorship (e.g. Egypt, Libya, Yemen and Syria where the recent protests in these countries led to the killing of thousands of civilians by the their own government).

In discussing whether there is a prima facie obligation to obey the law one needs to ask firstly, whether such obligation is owed towards their government in return of the benefits (if any) they received from it (the “gratitude argument”), secondly, because they expressly or implicitly agreed to obey their government’s laws (the “consent argument”), or thirdly, because the laws ought to be obeyed in order for the government to be able to maintain high levels of democracy and protect the general good (the “utilitarian argument”).

Aim of our essay

Our essay aims in answering the above-mentioned while making a contribution to the political and legal zone of ambiguity, which currently characterises the question whether there is a prima facie obligation to obey the law and that what needs to be clarified is the scope of such obligation instead of its existence. An attempt will also be made to examine the position of most of the existing views on the above dilemma, by comparing and distinguishing the different ideas expressed by various experts in this field, thereby providing a detailed analysis as to whether we have a prima facie obligation to obey the law.

In discussing the above question, we will be dividing our essay into the following 4 parts: i) the meaning of morality, ii) the relationship between law and morality, iii) the gratitude argument, iv) the consent argument and v) the utilitarian argument.

In relation to the first point, an attempt will be made to outline the idea of morality, while in the second point we will argue about the importance of the co-existence and co-dependence of law and morality. Afterwards, we will be providing arguments for and against the dilemma referred to earlier. Finally, in the last point we will provide a summary of the main arguments stated throughout our essay, while expressing a clear position whether we agree with this attitude and why.

Identifying the Meaning of Morality

We do not intend to define in detail the concept of morality since morality is a matter of great depth. However, a fair definition of the notion of morality is that most of the decisions or choices (either moral or immoral) that people make are usually driven by instinct or conscience [1] . Speaking of moral and immoral decisions, a very straightforward and at the same time self-explanatory comment is given by the American novelist and Nobel Prize winner Ernest Hemingway in one of his famous quotes, which says: “I know only that what is moral is what you feel good after and what is immoral is what you feel bad after.” [2] One might argue that what Hemingway suggests cannot always be the case since morality is not an objective element but a subjective one, since what might seem right for me could seem wrong for you. For instance, A would consider it immoral to have sexual intercourse with her boss in order to get promoted, since this would go against her religious beliefs and family principles, while for B it would seem moral to do it since she considers the act of having sexual intercourse with her boss in order to get promoted a “must do thing”.

Taking into consideration the above example it could be argued that the concept of morality is strongly linked with our character and grows along with us from the day we are born, reflecting the principles and values we are taught, either from our family, the church or the society at large. Consequently, even if there was a law specifically prohibiting having sexual intercourse with your boss in order to get promoted and we ought to obey it, it would be of little significance since our decision to proceed with the above scenario or not would be taken based on our instinct and conscience and not because of our prima facie obligation to obey such law.

The Relationship between Law and Morality

“Morality may inform the legislator but the question must be raised as to whether the law has to be morally valid in order to be legally valid.” [3] This statement made by Doherty clearly demonstrates that morality and law are both required for maintaining high levels of social development and democratic stability. A law will only be valid as long as its rationale and scope entail the element of morality and vice versa. It follows that a person has both moral and legal obligation to obey the law. It is, indeed, like a marriage where the man (e.g. law) promises to be loyal to his wife (e.g. morality) in good times and in bad, in sickness and in health. One could also compare this with the chicken or the egg causality dilemma “which came first, the chicken or the egg”. As the following paragraph suggests, the concept of morality existed way before the idea of law. So, we know that first came morality and then the law followed.

The above paragraph suggests that law and morality could and should co-exist. Taking this into consideration, one might ask whether the moral obligation to obey the law always follows the legal obligation to obey the law and vice versa. Let us take two examples in answering this: First Example: I go to the church and I refuse to take off my hat, disregarding the fact that I will most likely offend someone. Obviously I had a prima facie moral obligation to take off my hat but I had not a legal obligation to do so. Second Example: I have just killed my roommate because he is having a party at 03:00 o’clock in the morning and as a result I cannot go to sleep. In this case I initially (and definitely) had a moral obligation not to commit murder because such obligation existed way before murder became illegal (e.g. the sixth of the Ten Commandments given by God to the people of Israel reads as follows: “You Shall Not Kill”) and then a legal obligation because murder is, in fact, illegal; except in the case of self-defense and even then there is a possibility I will be accused of manslaughter. Consequently, it could be powerfully argued that legal obligation always follows moral obligation whereas moral obligation does not always follow legal obligation, which leads us to the conclusion that our prima facie obligation to obey the law is always moral, sometimes moral and legal but it can never be solely legal.

The Gratitude Argument: the “what for” argument

If we recognize that we do, indeed, have a prima facie obligation to obey the law on the one hand and in order to be able to define the scope and rationale of such obligation on the other, it is essential to examine to whom such obligation is owed. Do we owe it to our government? And if so, why? In 1979 when President Jimmy Carter reinstated the draft of young men for military service, the television reporters asked them of the reason why they were complying with the law and 90% of them stated “I owe it to my country.” [4] One might argue that this statement suggests that citizens have a prima facie obligation to obey their government’s rules, even if such rules mean that its citizens must go to war, fight and probably die for their country. At this point I find no reason why we should hesitate to ask the “what for?” question.

According to M. Smith “…virtually all governments do confer substantial benefits on their subjects…Thus, if it be maintained that obedience to the law is the best way of showing gratitude towards one’s government, it may with some plausibility be concluded that each person who has received benefits from his government has a prima facie obligation to obey the law.” [5] Even though at the beginning M. Smith recognises that when you receive some benefits from your government, you need to show some gratitude towards it by obeying your government’s laws, he then argues that, in case you receive some benefits even “momentous” benefits, as he put it, from your government which you did not ask for then you are not under an obligation to obey its rules. [6] I could not agree more with his argument, however we must add something: in deciding whether to obey the laws of your government, even if you receive benefits which you did not ask for, it depends on at least two things: Firstly, the specific law that the government requires its citizens to obey and whether the rationale of such law entails the element of morality, as already discussed above; and secondly, whether the government in question, is one which promotes democratic principles and values such as equality, social acceptance, social justice, and respect of freedom of expression (as provided by Article 10 of the European Convention on Human Rights). Regarding the second point, and especially regarding the acknowledgment and safeguarding of freedom of expression by the government, one could argue that this was certainly not the case when Socrates, perhaps world’s most influential philosopher, at the age of 70 died after being tried and sentenced to death by his government for “not believing in the Gods the state believes in, and introducing different and new divine powers; and for corrupting the youth”. [7] 

Taking into account the above, and in assessing whether we have a prima facie obligation to obey the law and whether such obligation is owed towards the government as gratitude for the benefits we receive it would be an irony not to mention that what happened to Socrates in Greece more than two thousand years ago is still happening right now. And since we might run the risk of being critisised about what we have just stated, we need to justify it, at least at a fair level. Three months ago, that is in February 2011, a wave of protest burst out in Egypt, which expanded rapidly to Libya, Yemen and Syria. But let us take for example the situation in Egypt and Libya since it was in these two countries that most people lost their lives. What benefits did the people in these two countries receive from their governments so as to be obliged to obey their laws? One would say that it was the other way around: it was the two governments that received benefits from their citizens during the last decades, therefore the wealth of the Egyptian president Hosni Mubarak [8] and Libya’s Muammar Gaddafi [9] have been recently estimated to worth over USD 70 and USD 128 billion respectively. After the protestors started voicing out their most probably, justified anger against their dictators and autocrats, both governments had the audacity to provide their supporters with guns in order to fight for and on their behalf their fellow citizens. Most of their supporters, either out of moral obligation or legal obligation or even out of fear, blindly obeyed the commands of their governments, something which led to an enormous tragedy with thousands of innocent people being killed.

According to Plato, the government is like our parents and that during war time we must do whatever our state and our country tell us to do [10] . One thing is for sure: we do have a prima facie moral obligation to obey our family’s rules since we receive so many benefits from them since the day we are born. But under no circumstances whatsoever is there a prima facie obligation towards a government (which even though it may offer useful things to its citizens), which provide its citizens with weapons and compel them to go and kill their fellow inhabitants. In such case, the “what for” argument must apply.

The Consent Argument

The consent argument states that we have a moral obligation to obey because we have agreed to obey the law. There are two ways that someone could give his or her consent: firstly, by providing express consent and secondly, with implicit consent. One has shown expressed consent when one has explicitly consented to an agreement. The citizens of a country, however, have never expressed consent to obey the laws, therefore it could be argued that they implicitly consented to obey the rules of their country. It was not their choice. For instance, Plato, Locke [11] and W.D. Ross [12] argued that one gives their implicit consent to obey the laws of the land when one is a resident of the land and that one is free to move to some other land, if he or she does not wish to obey the law of the land.

There were a lot of intense debates in relation to the above statement. Such statement inevitably raises the question of how exactly does living in a particular place imply consent? For instance, we decide to move from the United Kingdom, where we were living for a long period of time, to China with intention to return back to United Kingdom in six months. Does this mean that we consented to obey the laws of China just because we are about to live there for just six months? This could also go the other way around: just because we live in the United Kingdom for a long period of time, does it mean that we consented to obey its laws? There is no convention in place that determines when this consent is given. I think the determining factor, which demonstrates whether we implicitly consented to obey the laws of a given country is not for how long we live in that country but whether we have the right to vote in that country. It is only through our voting power (whether we exercise it or not) that an implicit consent to obey the laws of a country may be established.

My suggestion above can also be supported by Dowrkin’s argument that “consent cannot be binding on people, in the way this argument requires, unless it is given more freely, and with more genuine alternate choice, than just by declining to build life from nothing under a foreign flag.” [13] Consequently, it can be reasonably stated that it is only through the power of voting that people’s implicit consent is granted to obey the laws of a government. An additional example to the above is given by Plamenatz who argued that “even if you dislike the system and wish to change it, you put yourself by your vote under a [prima facie] obligation to obey whatever government comes legally to power…For the purpose of an election is to give authority to the people who win it and, if you vote knowing what you are doing and without being compelled to do it, you voluntarily take part in a process which gives you authority to these people.” [14] Although Plamenatz’s argument may be regarded as being straightforward and fair, a deeper consideration of it demonstrates some levels of vagueness and unfairness, especially as far as the category of people who are not eligible to vote is concerned, i.e. youths under the age of 18 and people with special needs. On the contrary, someone might argue that those who are under 18 as well as those with special needs are under the protection of their parents or their guardian, thus their primary obligation to obey the law is towards them and subsequently to their government, thereby making it of little importance whether they vote or not.

The Utilitarian Argument

In determining whether we have an obligation to obey the law based on the Utilitarian Argument, first we need to understand what utilitarianism means. It is not our aim to start an extended discussion regarding utilitarianism since it is a notion that deserves great analysis. We shall, however, attempt to demonstrate some important arguments for and against. The rationale that lies behind the philosophy of utilitarianism is based on the “promotion of the greatest happiness for the greatest number” [15] , thereby achieving a collective good [16] . One could argue that the idea of utilitarianism is based on the consequences that our actions or inactions might have, irrespectively whether we obey the law or not and as long as they benefit as more as possible people. Consequently, this raises at least two crucial questions, the first being whether there should be any prima facie moral obligation to obey the law since utilitarianism is based on our consequences? Whether utilitarianism entails the element of unfairness since the highest happiness for the maximum number of people could mean the highest misery for the few?

At this point we will give two examples in order to make our point clear in answering the above questions: In the first example, we suddenly decide to start destroying every car we see on the street. Our act would definitely have the good consequence on the environment since it helps reducing pollution. In the second example, if the law required the Royal Family to give half of the money (estimating to have come in closer to £100 million) [17] for the Royal Wedding of Prince William and Catherine Middleton to homeless people and hospitals, more people would benefit than would lose.

What derives from the first example is that we have attempted through an illegal act to obey our moral obligation to help reducing the levels of pollution. Also, what can be noticed from the second example is that our obligation to obey the law will sometimes benefit the majority of the people while causing minor and insignificant harm to the few, however, sometimes our obligation to obey the law could benefit the majority of the people but the harm caused to the few will be of great importance. Consequently, it could be argued that our obligation to obey the law based on the utilitarianism is likely to have unpredicted results, thereby running the risk of affecting negatively social stability and collective justice.

Conclusion

In the first part of our essay there was a reference in relation to the need, when discussing whether there is a prima facie obligation to obey the law, to understand what specific law is under discussion and whether the government in question is one that promotes democratic principles and values or one that promotes dictatorship. In the second part, we discussed the concept of the morality where it was argued that most of our decisions or choices (either moral or immoral) are usually driven by instinct or conscience. In the third part, some crucial arguments were made in concluding that our prima facie obligation to obey the law is always moral, sometimes moral and legal but it can never be solely legal. Finally, in the following parts, an attempt was made to answer the dilemma stated in the introduction by referring to the Gratitude Argument, the Consent Argument and the Utilitarian Argument and by introducing various examples to make our points understood.

In light of the above, it is now possible to attempt to answer the question that this essay is all about: whether there is a prima facie obligation to obey the law and whether it would be more significant to shed light on the scope as well as the basis of such obligation, as opposed to argue for its existence. Basically, our moral duty is to not do anything immoral. Laws are a means by which all governments attempt to enforce morality. Sometimes they miss the balance by either being too restrictive, or not restrictive enough. However, the moral views of society change as the time passes by and most of the sometimes laws remain unchanged, thereby failing to do what they are intended to, e.g. to express the moral views of the majority. Finally, I believe that we do have a prima facie obligation to obey the law as long as its scope and rationale entail the element of morality, thereby promoting social welfare and collective justice.

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