“DO WE HAVE AN OBLIGATION TO OBEY LAW?”

THIS ARTICLE WAS WRITTEN BY RAJ KRISHNA, A STUDENT OF CNLU.

Abstract: As we see that title of the article has been selected with great care. It can be said as it is in a form of question. This is not done for rhetorical purposes, but to reflect genuine uncertainty about the answer. A state expects its citizens to obey law so that it can function in a proper manner. Since an individual gets most of its benefit and right from the state, therefore it should obey law for the welfare of state. Many political philosophers also think the same that there is a prima facie obligation to obey law However, all laws are not just. There can be some laws which are unjust in nature. Therefore, do we have an obligation to obey any such law, no matter how unjust or evil, provided only that it is in fact a valid rule of the legal system in which we happen to be physically located? I don’t think that we must submit ourselves to a law which is immoral and unjust. We should protest against those laws which are unjust in nature. However, the mode of protest should be peaceful in nature. There should not be any sort of violent activities during protest.

1. INTRODUCTION:

“It isn’t a question of whether it was legal or illegal. That isn’t enough. The question is what is morally wrong.”

• Richard Nixon, “Checkers Speech” 1952.

“Do we have an obligation to obey law?” is the topic on which we are having the discussion. I think everyone will agree that the topic of discussion is very difficult. This is because there is a lot of genuine uncertainty about the answer.

For centuries we have been taught that we should obey law. This is because if we follow law then the state prospers. A state cannot prosper without the co-operation of its citizens. Apart from that a citizen cannot grow unless the state grows. Therefore, one should obey law for benefit of both state and himself. Even many political philosophers think the same. For example John Rawls has written in his work “Legal Obligation and the Duty of Fair Play” the following lines in regard of obeying law:

“I shall assume, as requiring no argument, that there is, at least in a society such as ours, a moral obligation to obey the law, although it may, of course, be overridden in certain cases by other more stringent obligations.”[1]

However there are also a large number of contemporary writers who believe that there is no moral obligation to obey the law. For example, M.B.E. Smith, in an important article published in 1973, argued that there cannot be a moral obligation to obey the law. He claimed that such an obligation cannot be derived from more basic moral obligations such as those of “fair play” or “consent”. Nor, he contended, is such an obligation necessary to ensure the effectiveness of the legal system.[2] Therefore there is a very heated debate that whether we should obey law or not.

2. CONCEPT OF LAW:

The whole discussion is going on that whether we should obey law or not. But, first we need to know the Concept of Law. What Law is?  This is because without knowing the Concept of Law we cannot say that we should obey law or not.

It is very difficult, if not impossible, to give a clear-cut definition of law. Mature thinkers like Max Radin have been compelled to come up to the conclusion that ‘those of us who have learned humility have given up the attempt to define law’.[3]

Hart too, in his book “The Concept of Law”, concedes that ‘nothing concise enough to be recognized as a definition could provide a satisfactory answer’[4] to the question, what is law. Instead of trying to answer this question, Hart goes on to analyze the resemblances and differences between law, coercion, and morality as types of social phenomena.

One of the major difficulties in defining the concept of law arises from the fact that the Western conception tends to think of law in terms of its own institutions. It is inclined to conceptualize law in the framework of the modern centralized state and its instrumentalities. Such a conception is an impediment to the understanding of legal processes in non-modern social systems such as those of peasant civilizations and tribes. It tends to narrow down the vision to such an extent that even the need to enforce law in some societies is denied.  As Malinowski puts it: ‘By defining the forces of law in terms of central authority, courts, codes, and constables, we must come to the conclusion that law needs no enforcement in primitive community and is followed spontaneously.’[5]

Obviously, we should have a conception of law which has a wider and more comprehensive frame of reference. It seems that the concept of law provided by Cardozo sums up well the chief characteristics of law. Cardozo’s definition of law,[6]contains four essential elements: (a)The normative element, (b)The regularity element, (c)Courts, and (d) Enforcement. In this delineation also the terms ‘courts’ and ‘enforcement’ have to be interpreted so broadly as to cover the diverse kinds of institutional arrangements in different types of societies.

Sociologists consider law to be one of the several social codes. The primary function of social codes is to sustain the social order by upholding the basic values and norms of society. Besides law, social codes include religious codes, institutions, customs and rules of etiquette and manners. Each kind of social code is backed by its own type of sanctions. Any violation of religious codes is believed to result in supernatural sanctions. Social institutions, like the institution of marriage, are so established that they become a condition of behavior in society. Violation of customs is punished by social disapproval and censor. Flouting of rules of etiquette of the group invites ridicule. Similarly, violation of laws is expected to lead to penalization or punishment by the state. Since the state alone has the legitimate power of violent punishment, the breaking of laws invites the ultimate sanctions which the society can inflict. In an extreme case, this can even be the sentence of death.

However, in order to have a concept of law comprehensive enough to be applicable to all kinds of social systems, including those of peasant and tribal cultures, the state too has to be defined in a broad sense. We need not think of the state only in its centralized form but has constituted by various institutions which have the authority to settle disputes and enforce their decisions.[7]

3. HISTORICAL PERSPECTIVE:

In the past we have witnessed many a times when law has not been obeyed for some cause or the other. Some of the notable incidences are as below:

3.1. DEATH OF SOCRATES IN ANCIENT GREECE:

The first incidence which I think should be discussed is the incidence of Socrates. It is because it was the incidence where for the very first time it was seen that the law was disobeyed. Socrates obeyed what he believed was an unjust verdict, as detailed in the Crito. However, it was considered wrong in the eyes of law. Meletus, Lycon, and Anytus charged Socrates with impiety and with corrupting the youth of the city.[8] Since prosecution and defense speeches were made by the principals in Athenian legal practice, Socrates spoke in his own behalf. It is uncertain if the charges were the result of his associations with the Thirty or resulted from personal pique. Callias, Plato’s uncle, had been the leader of the unpopular Thirty, but it is difficult to imagine that Socrates could have been considered a collaborator when in fact he risked death by refusing to be implicated in their crimes. He had, however, made a great number of enemies for himself over the years through his self-appointed role as the “gadfly” of Athens and it is probable that popular misunderstanding and animosity toward his activities helped lead to his conviction. His defense speech was not in the least conciliatory. After taking up the charges and showing how they were false, he proposed that the city should honor him as it did Olympic victors. He was convicted and sentenced to death. Plato’s Crito tells of Crito’s attempts to persuade Socrates to flee the prison (Crito had bribed the jailer, as was customary), but Socrates, in an allegorical dialogue between himself and the Laws of Athens, reveals his devotion to the city and his obligation to obey its decrees even if they lead to his death.

3.2. ACTIVITIES OF MAHATMA GANDHI:

Mahatma Gandhi, a man famous for disobeying law during his time. Therefore, he was also referred as an anarchist by many of the Englishmen. Be it South Africa or India, Gandhiji opposed all those British laws which were unjust. He fought against the racial discrimination in South Africa. He not only fought but also won against the South African authorities in getting unjust laws abolished.  After that he came back to India where he played the role of an anchor in the Freedom struggle.

Gandhiji launched many mass movements in India against the British rule. Some of the notable mass movements were Champaran Movement, Non-Cooperation Movement, Civil Disobedience Movement and Quit India Movement. The motive behind every movement was to oppose the unjust laws of the Englishmen which became a cause of misery to the Indian people. In Champaran Movement he fought against the landlords who forced the peasants to grow indigo on their land. In Civil Disobedience Movement he made salt which was not allowed to Indians. Gandhiji not only succeeded in getting the unjust laws abolished, but, also succeeded in getting India independent.

3.3. ACTIVITIES OF MARTIN LUTHER KING JR.

Racism and ethnic discrimination in the United States has been a major issue since the colonial era and the slave era. Legally or socially sanctioned privileges and rights were given to White Americans that were not granted to Native Americans, African Americans, Asian Americans, and Latin Americans. European Americans (particularly Anglo Americans) were granted in matters of education, immigration, voting rights, citizenship, land acquisition, and criminal procedure over periods of time extending from the 17th century to the 1960s. However, non-Protestant immigrants from Europe; particularly Irish people, Poles and Italians; suffered xenophobic exclusion and other forms of ethnicity-based discrimination in American society. In addition, although Middle Eastern Americans are counted as White under the US Census, Jews (including immigrants from the Diaspora and from Israel itself) and Arabs have faced continuous discrimination in the United States, and as a result, some people belonging to these groups do not identify as white. East and South Asians have similarly faced racism in America and are usually not considered white.[9]

Major racially and ethnically structured institutions included slavery, Indian Wars, Native American reservations, segregation, residential schools for Native Americans, and internment camps. Formal racial discrimination was largely banned in the mid-20th century, and came to be perceived as socially unacceptable and/or morally repugnant as well. In getting racial discrimination banned Martin Luther King, Jr played a very important role. He disobeyed what he regarded as an unjust application of the law, with the belief that the same was necessary to trigger reform. His movements and speeches were successful as whole of America stood up to ban racial discrimination.[10]

4. CONCLUSION AND SUGGESTIONS:

From above it can be said that the all laws should not be followed. It is because it’s not the laws which make a society, but, society which makes laws and customs. Therefore, society should have full control in eliminating those laws which are unjust and cruel for the society. Archaic laws should also be amended if they are of no good to the people. If we find a law unjust then we should protest against it to get it abolished. However, our protest should be peaceful in nature.

We should not do any violent activities to get our things done as it will be both unlawful and immoral. Thus, we should use non-violent methods to get our work done. Some laws may be wrong, but, there are also laws which are for the welfare of the people. Therefore, we should use the just laws and just legal system to get unjust laws abolished. I do think that these methods might take time, but, it will definitely bring positive results. Apart from that we should have faith in state as it exists only for the welfare of people. It won’t think wrong for its people.

[1] John Rawls, Legal Obligation and the Duty of Fair Play, in LAW AND PHILOSOPHY 3 (S. Hooked.  1964).

[2] M.B.E. Smith, Is There a Prima Fade Obligation to Obey the Law? , 82 YALE L.J. 950, 975 (1973).

[3] Max Radin, A Restatement of Hohfeld, Harvard Law Review, 51, 1938, p.1145.

[4] H.L.A. Hart, The Concept of Law, Oxford: Clarendon Press, 1961, p.16.

[5] Bronislaw Malinowski, Crime and Custom in Savage Society, New York: Harcourt, Brace, 1926, p.24.

[6] B.N. Cardozo, The Growth of the Law, New Haven: Yale University Press, 1924, p.52.

[7] Indra Deva (Editor), Sociology of Law, Oxford University Press.

[8] Sources for Socrates’s life are the dialogues of Plato, especially the Apology, Crito, Phaedo, and Alcibiades’s speech in the Symposium, and Xenophon’s Memorabilia, all of which are available in a variety of editions and translations. A comprehensive and major study of Socrates’s thought is Norman Gulley, The Philosophy of Socrates (1968). See also Eduard Zeller, Socrates and the Socratic Schools (1885; 3d rev. ed. 1962); A. E. Taylor, Socrates (1933); and Anton-Hermann Chroust, Socrates: Man and Myth (1957).

[9] Joe R. Feagin, Racist America: Roots, Current Realities, and Future Reparations, (2009), 2nd Edition.Routledge: New York, NY.

[10] Id.