Is There a Prima Facie Obligation to Obey the Law?

M. B. E. Smith

• “Although those subject to a government often have a prima facie obligation to obey particular laws (e.g. when disobedience has seriously untoward consequences or involves an act that is mala in se), they have no prima facie obligation to obey all its laws.

Prima Facie Obligation (PFO)

• Requisites:– Person A has a moral reason to do act Z– If, at the same time, A has a moral reason NOT to

do Z, it has to be at least as strong as his reason to do Z.

Failure to do Z would amount to a wrong.

Kinds of Prima Facie Obligation

• Specific Statement - some particular person has a PFO to perform some particular act.– Ex. X has a PFO pay taxes

• Generic Statement – everyone who meets a certain description has a PFO to perform a certain kind of act whenever he has an opportunity to do so.– Ex. Parents have PFO to take care of their infants.

Smith’s Opposition to the Gratitude Argument

1) It may reasonably doubted whether most citizens have an obligation to be grateful to their governments

2) Assuming there is, the mere fact that A has conferred upon B benefits does not establish A’s right to dictate all of B’s behavior; nor does it establish that B has to consider A’s will in everything B does.

Smith’s Opposition to the Argument From Fair Play

• Situation: – A and B are members of the society.– B has never disobeyed the rules.– A has benefitted from B’s submission.

THUS:- With A obeying the rules, he confers on B the same

benefits he receives. FAIR!- With A disobeying the rules, he endangers A

indirectly by being a threat to society.

Smith’s Opposition to the Argument From Fair Play

• But! If B’s disobedience neither harms nor benefits anyone?

Thus:

Considerations of Fairness do not establish that members of the group have a simple obligation to obey all of its rules. The obligation of fair play governs a man’s actions only when some benefit or harm turns on whether he obeys.

Smith’s Opposition to The Duty to Support Just Institutions

• “everyone who is treated by such a government with reasonable justice has a natural duty to obey all laws that are not grossly unjust, on the ground that everyone has a natural duty to uphold and comply with just institutions”

• While it is true that those who have profited by invoking the rule of a just government must obey the laws, it is simply false that fairness dictates obedience when disobedience does no harm or withholds no benefit.

Smith’s Opposition to The Duty to Support Just Institutions

• Further, the utility of a just government is such that one has a prima facie duty to obey when disobedience is harmful to it, BUT, so long as disobedience does no harm, the government’s character is irrelevant to the question of whther one has a PFO to obey.

Smith’s Opposition to the Argument from Consent

• Most citizens simply don’t consent or promise, even implicitly to obey the law.

Smith’s Opposition to the Argument from Consent

• But why think that by participating in an election we choose to grant authority to the people who win it (especially if we did not vote for them)?

• why think that even if our participation amounts to our voluntarily granting such people (de facto) authority?

• why think that granting them that authority generates an obligation to obey?

Smith’s Opposition to the Argument from Consent

• If voting is supposed to amount to implicit or indirect consent, and not- voting is also supposed to amount to consent, how can I withhold consent?

• There cannot be meaningful consent that cannot be withheld

Smith’s Opposition to the Act-Utilitarian Argument for the Obligation to Obey

• There is a specific PFO to obey the law whenever obedience is optimific. But no generic prima facie obligation to obey can be derived from weak-act utilitarianism.

Smith’s Opposition to the Generalization Argument

• the generalization argument makes a mistake: there are plenty of harmless, morally neutral things that it would be bad if everyone did (e.g. produce food, consume food without producing any, always let someone else leave the elevator first. )

Smith’s Opposition to the Generalization Argument

• If the argument is to have any plausibility, we need to identify the right level of generality at which to describe the principle governing our action.

Smith’s Opposition to the Generalization Argument

• But “what if everyone broke the law?” targets the wrong description of the act (after all, it would also be bad if no one ever broke the law). We need to ask what would happen if people broke the law when doing so would have the best consequences. That wouldn’t have disastrous results.

Smith’s Opposition to the Rule-Utilitarian Argument

• the combination of people’s own motivations to do the morally right thing, and their fear of sanctions of illegal behavior, would mean that most people would obey the laws even when they didn’t accept a prima facie obligation to obey.