In his 1972 essay, M.B.E. Smith asks the question, “Is there a Prima Facie Moral Obligation to Obey the Law?” Although he ultimately asserts that there isn’t one, Smith addresses several methods for arguing in favor of “prima facie” morality, but even they fall victim to assumptions about the situation that creates law, making their arguments all the more flimsy.
- The first argument proposes that fidelity to law arises from a gratitude to the governing body, but this assumes that those upon whom the law is enforced should be grateful for the law. As it has been noted that a classical definition for Rule of Law could allow an oppressive dictator to rule, why should it be assumed that his subjects be grateful?
- The second argument proposes that the obligation arises from some sort of consent or social contract, but this assumes that the ruled have consented. In most legal systems, even that of the United States, there are always those subjects who have not consented. The conjecture that participating in an election or other legal procedure implies consent is flimsy because implied consent does not explicitly say whether consent is to obey law or perhaps to accept the consequences of law enforcement.
- The third argument takes a utilitarian approach, stating that it is generally in the common interest for people to obey the law. But this makes the same assumption as the first argument, that the law imposed on the subjects is in some way in their benefit.
The common assumption all of these arguments, which even Smith seems to accept in his positive argument for the non-existence of “prima facie” obligation, seems to be that the ruled have some hand in the creation of the law. The aforementioned argument invalidating implied consent notwithstanding, this ignores the possibility of a despotic dictatorship or imperialistic empire. The laws imposed by such rulers on their subjects are technically laws, though they may not necessarily have the consent of the governed or be created for their benefit. Consider a victim of the African slave trade living in the American south in the early 19th century. She may live within the nation’s borders, but why should she consider herself morally obligated to obey the laws of a country that were oppressively forced upon her*? I don’t see any reason why. Therefore, there must not be a general moral obligation to obey law.
Even if there was an inherent moral obligation to obey law, by simply asking the question, “Is there a Prima Facie Moral Obligation to Obey the Law?” Smith implies that in the debate over the morality of fidelity to law, both parties in the discussion recognize that if law implies a moral obligation to obey it, this obligation is only “prima facie,” or “a moral obligation … [that] may, of course, be overridden in certain cases by other more stringent obligations.” But if it so obvious that such an obligation has the ability to be overridden by other stronger obligations, why must we discover if it exists in the first place? When morally evaluating an action that contradicts law surely we consider the moral reasons that support the law rather than the possibility that we have an implicit obligation to obey, simply because it is law.
* I’ll admit that it’s an extreme example, but we’re discussing inherent morality, so it must be present in all cases.