The institution of law and the obligation to obey

Abstract

To ask why individuals should obey the law is to also question why we need an institution of law in the first place. What is it that makes the law valuable? The same reasons which justify the institution will also justify dis/obedience to it. The purpose of this thesis is to investigate (a) teleological justifications of the law and obedience to it - the law is valuable because it maximises certain moral values, and (b) how such a teleological justificatory mechanism may conflict with conventional moral intuitions. One of the objectives of this thesis is to demonstrate that because disobedience to the law will occasionally maximise these justificatory values more than obedience, a teleological justificatory mechanism is inconsistent with an absolute obligation to obey the law - the two are mutually exclusive. The same considerations which justify the institution will also on occasion direct agents to disobey the law. Moreover, when we consider the objections to this position we find that the legal absolutist has a only a very narrow range of counter-arguments at his/her disposal. What appear to be new claims are really just old arguments in a different guise. But why should we be concerned with the absolutist's claim that agents must always obey every law all of the time? It is after all a position which most laymen would summarily reject as hardly worthy of serious consideration and similarly most contemporary legal philosophers, with a few notable exceptions, have followed suit and prefer to concentrate instead on a prima facie obligation to obey the law. As a result there is a notable gap in current literature on the subject, often the absolutist hardly warrants a paragraph - if that. It seems that this is a gap in our academic knowledge that needs to be filled. Secondly, while there may be many everyday examples of the legal system tolerating breaches of the law by individuals (e.g. the police fail to prosecute or the judge to convict) there is nonetheless, at the very least, a presumption in most contemporary legal systems that the obligation to obey is absolute - the law is the law and it must be obeyed and enforced. Finally, by examining and rejecting an absolute obligation we may be in a better position to determine what counts as a justified instance of law breaking. The same reasons which lead us to reject an absolute obligation to obey the law may also provide the criteria by which an act of disobedience's justifiableness may be assessed.