The law is a solution to a collective action problem in our society. In order to keep order, the law maintains power structures and provides important restrictions on what we can do. But on the part of the citizens, while there is a legal obligation to do as the law says, is there actually a moral obligation? A moral obligation is a duty which one owes but is not necessarily legally binding. There are two kinds of moral obligation: those derived from Natural Rights (i.e. those considered universal, which can be loosely compared to human rights and animal rights) and those supported by a good or valuable antecedent consideration (Bouvier, 1856).
If we look at the underlying motivations of the majority of laws, they generally seem to protect Negative Utilitarianism. This means that suffering is limited in society and the vulnerable are protected (West and Duigan, 2010). The sensible conclusion of this is that human rights are therefore protected. This is the base argument that most everyday people use in some form to point out the moral weight of the law. However, the law and morality must be inherently linked in order for the law in and of itself to carry moral weight as opposed to simply the actions it merely supports.
Civil Disobedience and the Social Contract
The first problem people point out with the law is that it is arbitrary and based on factors (such as religion) that one does not have control over. The result of this is that it is not always clear whether an action minimises suffering. One might ask does following Sharia Law actually appease Allah and prevent suffering as a result of divine intervention? But moreover, the seemingly arbitrary nature of law can lead to morally abhorrent laws, such as those designed to carry out systematic discrimination or those created by legislators to maintain their own power and let the citizens suffer. This suggests that the law cannot always fulfil its moral obligation from the negative utilitarian standpoint (or at least it isn’t always clear if it can), and this cannot be enough of a justification to follow all laws.
This is where Civil Disobedience arises. While the law generally fulfils its obligation to implement Negative Utilitarianism, there are exceptions. Many argue the legality of an action does not significantly affect its moral status (Brownlee, 2017), so just because a law happens to align with a moral obligation, this does not mean that law has any bearing on the moral status of an action. Therefore, when minor laws (such as jaywalking), morally abhorrent laws and abuses of power exist (within the law or otherwise), they rarely go some way to fulfilling Negative Utilitarianism and they cannot carry a significant obligation under a negative utilitarian lens. More serious abuses of powers can even require Civil Disobedience for the very purposes of Negative Utilitarianism.
However, the underlying justification for Civil Disobedience is based on the assumption that there is generally an obligation to follow the law (Brownlee, 2017). This is what makes Civil Disobedience effective as a statement of discontentment. The key thing to note is that a moral obligation need not take priority over all else. In some circumstances, like the trolley problem, there is more than one obligation pushing in different moral directions. There are justifications to follow the law because as least as a whole, it solves a collective action problem and so we should not undermine it for its errors.
Civil Disobedience is only justified when the moral obligation to defend Negative Utilitarianism outweighs other moral obligations to follow the law and is therefore not a satisfactory reason to believe that there isn’t a moral obligation to follow the law.
Bridging the Gap Between Legal and Moral Obligations
It is clear that the obligations of the law often align with the underlying moral obligations we have as a result of Natural Law (underlying principles based on human rights). But the absence of the law still does not affect our obligation to carry out the actions the law proposes. What actual moral impact does the law have? For the law to hold genuine moral weight and not just be coincidentally aligned with pre-existing moral obligations, there must exist a link between moral and civil duties.
Legal Positivism states that laws are man-made and therefore, there is no necessary connection between the law and morality. It also states that moral judgements cannot be established or defended by rational argument, evidence or proof (Hart, 1958). Therefore, the law cannot have a connection with true morality as it is based on rational argument, evidence and proof. This suggests there is no link between civil and moral duties.
But there are two major counterarguments: the Social Contract and Natural Law. On the former, as part of the Social Contract, you give up rights for the state’s protection; you can opt-out of a legal system anytime (Rousseau, 1987) and therefore you have a duty to other citizens and a moral duty to follow the law in return for protection from the state. This suggests there is an inherent moral duty to follow the law by virtue of being a citizen, meaning that through the Social Contract, there is a link between civil and moral duty. However, the issue that arises from this argument is obviously that opting-out isn’t so easy. Simply out of a basic need to live, we are coerced to opt-in to some social contract as all habitable landmasses are owned by a governing power who imposes laws upon us with which we may not agree.
However, the second counterargument to consider is Natural Law. This idea suggests that laws are not necessarily arbitrary or man-made as Legal Positivism claims because there exists a natural and universal law based on human rights. While there may be discrepancies between legal systems, the law is generally based on these rights – rights which are a key tenant of a moral obligation and rights that ought to be protected. The idea of Natural Law the thought processes of legislators are governed by Natural Law which thus manifests in their decisions and so the law. This also means there is a link between civil and moral duty, and this explains why there might specifically be a moral obligation to follow the law.
The law is an artificial construct and might seem arbitrary, despite often supporting actions that fulfil legitimate moral obligations. While there might exist other conflicting moral obligations, such as to be loyal to our friends (Fordonski, 2016), or to act against abuses of power, there can exist some moral obligation, no matter how small, to follow the law if the link between civil and moral duty can be made through the Social Contract or Natural Law. However, this link depends on whether you do indeed believe in the Social Contract or Natural Law, both very abstract concepts. If you agree with these ideas, then you can conclude there is a moral obligation to follow the law, but if not, then there is no inherent moral obligation to follow the law.
West, H. and Duigan, B. “Utilitarianism”. Encyclopædia Britannica, 2010
Bouvier, J. Law Dictionary: Adapted to the Constitution and Laws of the United States. 1856
Brownlee, Kimberley, “Civil Disobedience“, The Stanford Encyclopedia of Philosophy (Fall 2017 Edition)
Hart, H. Positivism and the Separation of Law and Morals. The Harvard Law Review Association. 1958
Rousseau, J. The Basic Political Writings. (Trans. Donald A. Cress) Indianapolis: Hackett Publishing Company. 1987
Fordonski, K. If I Had to Choose: E. M. Forster and the Idea of Friendship. 2016