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

Constitution, Society, and Leadership

Week 5 Unit 5Concepts of Law:

Moral Obligation?

Christopher Dreisbach, Ph.D.Johns Hopkins University

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

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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.

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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

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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

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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

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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

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▪ So, is it right to escape rather than suffer the punishment?▪ No▪ Two extended arguments

From Duty (Deontological) From Consequences

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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

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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

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

to obey the law”

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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

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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

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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

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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

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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”

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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

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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

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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

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▪ 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”

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Week 5 Unit 5Concepts of Law:Moral Obligation?

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