Why Should I Obey The Law? – a sample response
We may note at the outset that the two authors take a somewhat different approach to the
issue of our obligations or duty to obey the state by obeying its laws. Dobos tackles the
issue directly and I have chosen his formulation as the springboard for this activity.
Christiano addresses this question and the issues that arise in relation to it in a different way:
focusing primarily on the legitimacy of the political authority rather than the conditions under
which citizens, subjects, etc. have a duty to obey an authority. The overlap is, nevertheless,
considerable. As Christiano comments at the beginning of his article, the question of when
political authority is legitimate can be understood to be the same as that of when we
(citizens, subjects, etc.) have a duty to obey the state.
Christiano also prefaces his treatment of the various positions on this issue with a number of
clarificatory comments. Worth noting are the distinctions he makes between what he calls
‘justified coercion,’ e.g. in the case of a justified military occupation or running a prisoner of
war camp, and what he calls ‘a robust right to rule.’ In the former case, whilst the right to rule
might be justifiable the justification does not entail a duty to obey on the part of the ruled. In
the latter it does. Such a duty, he explains, involves more than simply obeying when the
command of the authority coincides with one’s own moral inclinations. Such a duty is
‘content independent,’ i.e. one must obey simply because the command comes from a
legitimate authority. The flip side of this feature is what Christiano calls the pre-emptive
character of such duties, i.e. they take precedence over other duties in a manner analogous
to the way that ‘trump’ cards take precedence over others in certain card games. Thus, the
most demanding notion of political authority is one where there is a right to rule that
correlates with a content independent and pre-emptive duty to obey on the part of the ruled.
It is essentially this most demanding notion that Dobos has in mind when he refers to
‘political obligation.’
There is insufficient space in a short response such as this to offer a detailed analysis of the
agreements, disagreements and overlaps between these two articles, and, indeed, that is not
necessary for our purposes (though it would be a useful way to deepen one’s understanding
of the issues). The key point to note is that after surveying the most influential theories of
political authority/obligation these two writers come to rather different conclusions about the
current state of affairs.
Dobos claims that ‘There is today a growing consensus that no theory of political obligation
succeeds,’ and that, therefore, no state has a robust right to rule. This view is known as
‘philosophical anarchism.’ Notable proponents of this view are RP Wolff and AJ Simmons.
By contrast, Christiano arranges his material so that the democratic conception of political
legitimacy comes at the end. He makes a strong case for this conception but does not
subject it to an anarchist critique. It seems, therefore, that he wants to endorse his, suitably
qualified, conception of democratic legitimacy. But can it withstand an anarchist critique? My
own view is that it cannot. Some form of democratic arrangement might offer us the closest
thing to a robust right to rule, but it cannot, thankfully, provide even democratic governments
with the kind of legitimacy that puts the citizens of democratic states under an obligation to
obey its content independent commands.1
Christiano goes some way towards accepting this in his final paragraph, where he discusses
some limits on democratic authority. The notion of limits itself implies that not all of the
authority’s commands have a pre-emptive, content independent status; so the question
becomes one of how we decide which commands have that status and which do not. This,
of course, is the anarchist’s question. Because democracies are based on majority rule their
1
decisions are subject to the same kinds of criticisms that have been directed against
utilitarian philosophies: minorities may be treated in an immoral manner. Moreover,
Christiano’s principle of equal respect is not one that is intrinsic to democracy but one that
has to be added to it. A democratic assembly might vote to constrain its powers by means of
some such principle, as in the American Bill of Rights, but it need not. And that is why I
popped the word ‘thankfully’ into the final sentence of the preceding paragraph. To me, it is
a chilling prospect to think that any authority could legitimately issue pre-emptive, content
independent commands.
In short, the desire for a robust legitimacy seems to be a desire for something akin to a
totalitarian arrangement. It is the absence of robust legitimacy that offers the possibility of
political change, the possibility of debate and the possibility of challenging the authority of the
rulers. Let us be glad, therefore, that all the eminent political thinkers discussed in these
articles have failed to provide sound arguments for any state’s robust right to rule.
1
Is the idea of being a subject of a monarch and a participant in a democratic state coherent? The ‘subject’ status
of Britons surely means that Britain is not yet a true democracy.
2