The Duty to Obey – Charles F. Capps

Do people have a moral obligation to obey the law simply because it is the law? If you come to a red light and have a clear view in all directions with no cars in sight, do you have a moral obligation to stop? 

Questions like this have long divided philosophers of law. In The Nature of Law: Authority, Obligation, and the Common Good, Daniel Mark defends the traditional natural law position that law’s connection to the common good generates a defeasible moral obligation to obey the law. The book is divided into five chapters. The first two criticize H. L. A. Hart’s rule-based, positivist theory of law. The third criticizes Joseph Raz’s influential positivist account of law’s authority. The fourth chapter is the heart of the book: it presents Mark’s preferred brand of natural law theory, which holds that law is a set of commands oriented to the common good, and explains why this theory implies the existence of a defeasible moral obligation to obey the law. The fifth and final chapter addresses questions about the relationship between Mark’s theory of law and democratic systems of government. 

The most interesting and successful parts of the book are where Mark works out the kind of relationship between law and the common good that, assuming it exists, would be capable of generating a moral obligation to obey the law. As Mark points out, if it were the orientation to the common good at the level of the individual law that generated the obligation, then it would be hard to see how this obligation could be an obligation to obey, that is, to comply with the law just because it is the law. The fact that the action required by law is in service of the common good would do all the work in generating the moral obligation to perform the action. The fact that the law requires the action would be redundant. 

Mark’s solution is to ground the moral obligation to comply with each individual law in the orientation of the legal system as a whole to the common good. Because the system-level orientation to the common good can remain intact even if some individual laws are unjust, it can generate a moral obligation to obey even those laws, an obligation that would not exist but for the fact that they are laws.

The focus on the system-level orientation to the common good is among the book’s most valuable insights. Not only does it explain how there could be a moral obligation to obey the law just because it is the law, but it also provides Mark with an elegant account of the morality of revolution: generally, revolution becomes morally permissible once injustice has become so pervasive as to compromise the orientation of the system as a whole to the common good. It also provides Mark with an intuitive explanation for why it is generally appropriate for those engaged in civil disobedience to submit to the punishment prescribed by law for their actions. Civil disobedience is morally permissible when the defeasible moral obligation to obey an individual law is defeated by countervailing considerations. Yet even then, it is plausible that the defeasible moral obligation to comply with the law’s provision of punishment for violating the law remains undefeated. 

However, we encounter a complication here. It is one thing to work out what kind of relationship between law and the common good would be capable of generating a moral obligation to obey the law. It is another thing to show that law actually has this relationship to the common good. Even if a system’s general orientation to the common good generates a moral obligation to obey its rules, one might still ask whether only systems generally oriented to the common good count as legal systems. If not, then there may not be a moral obligation to obey all laws, only an obligation to obey those that are part of a system generally oriented to the common good.

Despite relying heavily on the work of John Finnis throughout the book, Mark has surprisingly little to say about Finnis’s influential argument that at least all central cases of law have the kind of orientation to the common good that generates a moral obligation to obey. Also conspicuously absent from the book is meaningful engagement with the work on this subject by prominent natural law theorists since Finnis, most notably Mark Murphy. 

The closest Mark comes to defending the natural law view that only systems oriented to the common good count as legal systems is in his criticism of Hart’s positivist alternative. Mark reads Hart as (perhaps inconsistently) recognizing that a system does not count as a legal system unless its subjects feel that they ought to follow the system’s rules. But Mark argues that Hart’s theory “gets in the way of any coherent account” of why people feel that way. Hart conceives of law as consisting of “rules based in social practice”—what people do “around here”—and “on a moment’s reflection, any person can see that the fact that we happen to do things a certain way around here … never [generates] an obligation to obey the law just because it is the law.” Absent some basis for thinking that people should obey the law, it is hard to explain people’s feeling that they should obey the law.

I am not sure how much damage this criticism inflicts on Hart’s theory. Hart could, if he liked, help himself to Mark’s account of why there is an obligation to obey all rules of a system oriented to the common good, to explain why the subjects of such a system feel that they ought to obey the law. This is consistent with the claim that a system that was not oriented to the common good but where people, for whatever reason, nonetheless felt that they ought to follow the rules would also constitute a legal system. Hart need not maintain that such a system is probable and thus does not owe us an account of why people might feel that way. Mark never claims that there would be anything counterintuitive about identifying such a system as a legal system and even appears to concede that one’s intuition might align with the positivist on this point.

Of course, Hart might prefer not to adopt Mark’s account wholesale. Hart does not actually claim that a legal system exists only if all or even most of the system’s subjects feel that they ought to obey the law; all he says is that a legal system exists only if the system’s officials treat its secondary rules of recognition, change, and adjudication as standards of official behavior. And the hypothesis of a moral obligation to obey the law is not the only possible explanation for why a system’s officials treat its secondary rules as standards of official behavior. Alternative explanations include a sense of role morality and social pressure. Hart would likely adopt a liberal attitude toward the range of possible explanations for officials’ attitudes toward the law rather than insist on a single explanation applicable to all legal systems. At any rate, the point is that Hart could, without compromising his positivism, agree that people in legal systems oriented to the common good feel that they ought to obey the law and adopt Mark’s explanation for why. This shows that even if that explanation is correct, it does not follow that we should accept the natural law claim that only systems oriented to the common good are legal systems. 

Mark also criticizes Hart’s treatment of trials of Nazi officials in postwar Germany. Hart recognizes that these trials were fraught, even if plausibly justified, because they involved punishing defendants for acts that were legal when they were committed. According to Mark, this makes sense only on the assumption that there is a (defeasible) moral obligation to obey the law, such that the defendants were punished for something that they had a (defeasible) moral obligation to do. Predictably, Mark argues that the problem with the trials is solvable because the defendants’ defeasible moral obligation to obey the law was, in fact, defeated. But Mark maintains that we cannot even understand the problem to be solved unless we recognize a defeasible moral obligation to obey the law.

Mark appears to slide here from legally permitted to legally required. I do not know whether every act for which the defendants in these trials were prosecuted was not only permitted but required by Nazi law, but it is notable that Hart sets up the problem as one of whether “to punish those who did evil things when they were permitted by evil rules then in force” (emphasis added). And Hart seems right to set up the problem this way. As Hart notes, the venerable principle of legality—nulla poena sin lege—prohibits the state from punishing people for acts that were legally permissible when performed. The problem with the trials was that they appeared to violate this principle. 

This suggests that it is Mark, not Hart, who “misidentifies the nub of the problem.” The alleged (defeasible) moral obligation to do whatever the law requires has nothing to do with the principle of legality, which prohibits punishment not just for acts that the law required but for any act that the law permitted. If Mark wanted to ground the principle of legality in the relationship between law and moral obligation, then he would need to insist on a (defeasible) moral obligation to do whatever the law permits. And surely Mark would not want to go that far. 

Mark’s final major criticism of Hart is that Hart is wrong to reject the model of law as a collection of commands. According to Hart, some legal rules are a poor fit for the command model because they confer powers rather than impose duties. Legal rules defining how a legislature can enact new laws or how parties can form a valid contract are not naturally understood as commands to legislators or to potential parties to a contract. On Hart’s view, such rules confer powers rather than impose duties. But Mark argues that power-conferring rules can generally be understood as conditional commands. On this view, rules defining how a legislature can enact new laws are conditional commands instructing legislators that they must proceed in a certain way if they wish to enact a new law, and rules defining how parties can form a contract are conditional commands instructing parties that they must proceed in a certain way if they wish to form a contract. 

Mark’s argument here appears to trade on an ambiguity in the modal force of “must.” The construal of power-conferring rules as tantamount to a conditional requirement of the form, “if you wish to do X, then you must do Y,” is plausible if the modal force of “must” is metaphysical. Given that the relevant legal rule empowers the legislature to create law (only) by means of a certain procedure, it is impossible for the legislature to enact law in any other way: that is the sense in which legislators “must” proceed in a certain way if they wish to enact a new law. So too when parties wish to form a contract. The relevant power-conferring rule specifies the (only) way to do it, making it impossible to form a contract otherwise; that is the sense in which parties “must” proceed in a certain way if they wish to form a contract.

But if Mark is to reduce power-conferring rules to duty-imposing rules, then he needs the modal force of “must” to be normative—more specifically, legal. And the construal of power-conferring rules as conditional requirements of the form “if you wish to do X, then you must do Y” is less plausible if the modal force of “must” is legal. It is not as if Congress could enact a statute without regard to bicameralism or presentment, but is prohibited by law from doing so. Absent bicameralism and presentment, there is no statute. Similarly, it is not as if you and I could form a contract lacking consideration but are prohibited by law from doing so. Absent consideration, there is no contract. 

I have focused on Mark’s engagement with Hart because Mark rightly identifies Hart’s theory as the leading positivist competitor to the kind of natural law theory that Mark defends. But even if I am right that Mark’s criticisms of Hart are ultimately unsuccessful, these shortcomings should not overshadow the book’s important contributions to understanding what the grounds of a moral obligation to obey the law must be if indeed such an obligation exists. Nor do they undermine the basis that Mark provides for thinking that in a legal system such as ours in the United States, which does seem to be generally (albeit imperfectly) oriented to the common good, citizens have a defeasible moral obligation to obey the law. In addition, the book features much more of interest than can be covered here, including extended discussions of Raz’s theory of authority and Carl Schmitt’s political theory. Anyone interested in the philosophy of law, especially those interested in questions of political obligation, will enjoy this book and find in it—to quote Mark—plenty of fodder for “discussion and, better yet, disagreement.”