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

2.  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 2

3.  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. 3

4.  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 4

5.  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 5

6.  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 6

7.  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 7

8. ▪ So, is it right to escape rather than suffer the punishment? ▪ No ▪ Two extended arguments  From Duty (Deontological)  From Consequences 8

9.  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 9

10.  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 10

11.  M. B. E. Smith, Is There a Prima Facie Obligation to Obey the Law?Prima Facie  No.  Let PF=“There is a prima facie obligation to obey the law” 11

12.  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 12

13.  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 13

14.  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 14

15.  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 15

16.  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 16

17.  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” 17

18.  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 18

19.  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 19

20.  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 20

21.  (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 21

22. ▪ 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” 22

23. Week 5 Unit 5 Concepts of Law: Moral Obligation? 23