Notre Dame Journal of Law, Ethics & Public Policy

Volume 1
Article 10
Issue 1 Symposium on Law and Morality

February 2014

The Obligation to Obey: Revision and Tradition

Joseph Raz

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Joseph Raz, The Obligation to Obey: Revision and Tradition, 1 Notre Dame J.L. Ethics & Pub. Pol'y 139 (1985).
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THE OBLIGATION TO OBEY: REVISION AND
TRADITION

JOSEPH RAZ*

The turbulent sixties, years of the civil rights movement

and of the Vietnam War, brought, as a by-product of civil
strife and widespread discontent, renewed interest in the
question of the duties an individual owes his society. It was
soon to give way to a preoccupation with what society owes to
its members, that is to the swelling of interest in theories of
justice and individual rights. But before it did so a good deal
of common ground seemed to have been established among
many of the political and moral theorists who did and still do
attend to the issue. It is summed up by the view that every
citizen has a prima facie moral obligation to obey the law of a
reasonably just state. Its core intuition is the belief that deny-
ing an obligation to obey its laws is a denial of the justice of
the state. This is believed to be so either on instrumentalist
grounds or on grounds of fairness. The instrumentalist con-
tends that the state will not be able to function if its citizens
are not obligated to obey its laws and respect that obligation
for the most part. The fairness argument has it that anyone
who denies an obligation to obey in a just state take unfair
advantage of others who submit to such an obligation.
I have joined several theorists who challenge this consen-
sus." There have, of course, always been those who deny the
existence of an obligation to obey the law on the ground that
no state can be just. Their most powerful philosophical
spokesman in recent years has been Robert Paul Wolff.' The
challenge posed by the arguments referred to is that they
claim that even in a just state, if there can be such, there is
no general obligation to obey the law. Not even all those who
deny the existence of a general obligation to obey the law
have realized its full implications. If there is no general obli-

* Fellow and Tutor in Jurisprudence, Balliol College, Oxford.

1. See Smith, Is There a Prima Facie Obligation to Obey the Law?, 82
YALE L. J. 950 (1973); A. WOOZLEY, LAW AND OBEDIENCE (1979); A. SiM-
MONS, MORAL PRINCIPLES AND POLITICAL OBLIGATION (1979); J.RAZ, THE Au-
THORITY OF LAW (1979); Sartorius, PoliticalAuthority and Political Obligation,
67 VA. L. REV. 3 (1981).
2. R. WOLFF, IN DEFENSE OF ANARCHISM (1970).
139
JOURNAL OF LAW, ETHICS & PUBLIC POLICY [Vol. I

gation to obey, then the law does not have general authority,
for to have authority is to have a right to rule those who are
subject to it. And a right to rule entails a duty to obey. I shall
contend below that in a very real sense this conclusion re-
turns to the main line of thought of the founders of modern
political theory. However, it appears to be a novel position
and not surprisingly has led to a number of misunderstand-
ings as typified in Dr. Finnis's article in this issue. This article
aims to help dispel some of the misunderstandings.

I. GOVERNMENT WITHOUT AUTHORITY

Let us start by considering the (apparent) paradox of the

just government. Most political theorists acknowledge that
there is no general obligation to obey the law of an unjust
state. But, it is contended, there is an obligation to obey the
law of a reasonably just state, and the greater its justice the
stricter, or at any rate the clearer, the obligation. But is this
so? Isn't the reverse the case? The morality of a government's
laws measures, in part, its justice. Its laws are moral only if
there is a moral obligation to perform the actions which they
impose a legal obligation to perform. That moral obligation
cannot be due to the existence of an obligation to obey the
law. To establish an obligation to obey the law one has to
establish that it is relatively just. It is relatively just only if
there is a moral obligation to do that which it imposes legal
obligations to do. So the moral obligations on which the
claim that the law is just is founded are prior to and indepen-
dent of the moral obligation to obey the law. The alleged
moral obligation to obey arises from these independent obli-
gations to act as the law requires.
Since the obligation to obey the law derives from these
other moral obligations, its weight or strictness reflects their
weight. The stricter they are the stricter is the obligation to
obey. But if so, then the obligation to obey the law is at best
redundant. It may make a moral difference if it exists in an
unjust state, for there it imposes a moral obligation where
none exists. But in a just state, it is at best a mere shadow of
other moral duties. It adds nothing to them. Since the obliga-
tion to obey exists only in a just state, it is at best redundant.
Consider the question whether there is a legal obligation
to obey the law. The obligation exists, but it is hardly ever
mentioned, for it is the shadow of all the specific legal obliga-
tions. The law requires one to pay tax, refrain from murder,
assault, theft, libel, breach of contract, etc. Hence, tautologi-
1984] OBLIGATION TO OBEY

cally, one has a legal obligation to pay tax, refrain from mur-
der, assault, theft, libel, breach of contract, etc. A short,
though empty and uninformative, way of describing one's le-
gal duties is to say that one has a legal duty to obey the law.
One has a legal duty to obey the law because one has a legal
duty to obey this law and that, and so on, until one exhausts
their list. It is likewise, the paradox can be interpreted as al-
leging, with the moral duty to obey the law. It exists only to
the extent that there are other, independent moral duties to
obey each of the laws of the system. It is merely their
shadow.
In fact the paradox is even worse. The obligation to obey
the law is no mere shadow. It would be, were it to exist, a
moral perversion. Consider legal duties such as the duty not
to commit murder and not to rape. Clearly there are moral
duties to refrain from murder and from rape. Equally clearly
we approve, if we do, of the laws prohibiting such acts, be-
cause the acts they forbid are morally forbidden.$ Moreover,
we expect morally conscientious people to comply with these
laws because the acts they forbid are immoral. I would feel
insulted if it were suggested that I refrain from murder and
rape because I recognize a moral obligation to obey the law.
We expect people to avoid such actions whether or not they
are legally forbidden, and for reasons which have nothing to
do with the law. If it turns out that those reasons fail, that it
is only respect for the law which restrains them from such
acts, then those people lose much of our respect.
But if the obligation to obey the law is not a morally cor-
rect reason by which the morally conscientious person should
guide his action, at least not in such elementary and funda-
mental areas of the law as those mentioned, then can there
be such an obligation? Can there be a moral obligation to
perform an action if to take the existence of the obligation as
one's reason for the action it enjoins would be wrong, or ill-
fitting?
So much for the apparent paradox of the just law. The
more just and valuable the law is, it says, the more reason one
has to conform to it, and the less to obey it. Since it is just, those
considerations which establish its justice should be one's rea-
sons for conforming with it, i.e., for acting as it requires. But
in acting for these reasons one would not be obeying the law,

3. Here as elsewhere in this article I am assuming that the immoral-

ity of an action, even if a necessary condition for the justice of a law
prohibiting it, is never a sufficient condition.
JOURNAL OF LAW, ETHICS & PUBLIC POLICY [Vol. I

one would not be conforming because that is what the law

requires. Rather one would be acting on the doctrine of jus-
tice to which the law itself conforms.
I called the paradox merely 'apparent' because it is over-
stated. For reasons we will examine in the next section, some-
times the law makes a moral difference. In particular some-
times the law is just, although no independent obligation
attaches to what it requires. In these cases it is morally obliga-
tory to act as the law requires because it so requires. But even
though overstated the alleged paradox is instructive. It chal-
lenges the existence of a general obligation to obey the law.
To succeed it need only establish that in some fairly central
cases there is no such obligation. From this point of view it
matters not that some laws are not like the laws against mur-
der and rape. If a legal prohibition of murder neither im-
poses an independent moral obligation nor makes the duty
not to murder stricter or weightier than it was without the
law, then the case is made. The prohibitions of murder, rape,
enslavement, imprisonment and similar legal prohibitions are
central to the laws of all just legal systems. Their existence
cannot be dismissed as marginal or controversial. If these
laws do not make a difference to our moral obligations, then
there is no general obligation to obey the law. There may be a
moral obligation to obey some laws, but this was never in
contention.
The argument so far depends on two assumptions both
of which are open to challenge. First, the argument assumes
that to refrain from murder or any other moral perversion
solely because the law proscribes it is morally distorted and
undesirable. It may be objected that while this is not the best
motive for refraining from murder it is not the worst either.
It is better for example than sparing a person's life because
he will then suffer a more painful death. Second, it assumes
that the reasons for obeying the law, when such can be
found, must derive from the reasons for having laws with
that particular content. It may be objected that the reasons
for obedience normally thought of as constituting the obliga-
tion to obey have nothing to do with the desirability of any
particular law but with the desirability of the existence of a
legal system and a structure of government by law as a whole.
The argument of the following pages will help rebut
these objections and will bolster the assumptions, especially
the second one.4 My present purpose is more modest. Even if

4. The first objection is indecisive. The fact that some motives for
19841 OBLIGATION TO OBEY

the alleged paradox fails to disprove the existence of an obli-

gation to obey, it succeeds in making us reexamine some of
our assumptions about the functions of law in society. It
reveals that much of the good that the law can do does not
presuppose any obligation to obey.
Once more a simplified picture will help bring out the
point more clearly. Let us assume that in its sole proper func-
tion, the law prohibits murder, neglect of children by their
parents, and other similar immoralities. On this assumption it
is plausible to claim that the law's direct function is to moti-
vate those who fail to be sufficiently moved by sound moral
considerations. The conscientious, knowledgeable person will
do what the law requires of him regardless of whether the
law exists or not. The law is not for him. It is for those who
deny their moral duties. It forces them to act as they should
by threatening sanctions if they fail to do so. By addressing
the self-interest of those who fail to be properly moved by
moral considerations, the law reassures the morally conscien-
tious. It assures him that he will not be taken advantage of,
will not be exploited by the unscrupulous.
This oversimplified picture demonstrates the good a gov-
ernment without authority can do.5 One can threaten and pe-
nalize people without having authority over them. One can
also have an organization to issue and carry out threats with-
out authority over them either. We can imagine the law en-
forcement functions we have in mind being carried out by
people who are paid salaries, or given other incentives to en-
force and to administer the laws. The personnel in charge of
the implementation of the law need not necessarily be subject
to the authority of the government or its law; they may be
doing a job under a contract. Their actions are morally per-
missible for reasons independent of the law. Even when they
encroach on the personal liberty of the offender, they need
not invoke the law in justification. They treat offenders in

action according to law are worse than the desire to obey may be nothing
more than the ranking of evils. It may show merely that we normally re-
gard intellectual confusion (the belief in an obligation to obey and action
for it) as a lesser evil than cruelty, hatred,. etc.
5. My analysis here is loose and informal. It runs parallel to the in-
genious discussion of the pre-state existence of voluntary protection as-
sociations in R. NOZICK's ANARCHY, STATE AND UTOPIA (1974). I do not
share his picture of the working of the invisible hand, nor his understand-
ing of people's moral rights and duties. But my argument parallels his in
the emphasis on the extent to which governments do or can carry out func-
tions which do not presuppose possession of authority.
JOURNAL OF LAW, ETHICS & PUBLIC POLICY [Vol. I

ways morally appropriate for those who renege on their

moral duties.
The picture is oversimplified. But it is so in what it leaves
out, not in what it says. Governments fulfill the functions we
described, but they do much else besides. Some of their other
functions do not presuppose the recognition of authority ei-
ther. It is an important fact about the modern state that to an
ever greater extent it affects our fortunes by means other
than exercising, or claiming to exercise, authority over us. In
many states the government, or public authorities generally,
are the largest employer in the country, control much of the
infrastructure through a state monopoly on the provision of
mail, telephone, airport and seaport services and the like.
The armed forces are the largest clients for many high tech-
nology industries, and so on. The details vary from state to
state, but the overall picture is rather similar.
The effects of this concentration of economic power are
evident in the state's growing use of its economic muscle to
achieve aims which in previous times would have required
legislation or administrative actions. Governments attempt to
affect the direction of industrial development, the level of ec-
onomic activity, the rate of inflation, the level of unemploy-
ment, the regional distribution of wealth in the country, and
other objectives through their economic power alone. Even
non-economic objectives such as racial equality in employ-
ment are sometimes pursued by the use of economic power,
rather than by the exercise of authority. It is often argued
that the awarding of governmental contracts only to equal
opportunity employers is the best way of pursuing such
objectives.
Many of these developments are relatively recent and
raise difficult questions about the adequacy of the existing
machinery for controlling governmental powers. The ma-
chinery evolved primarily as a check on the government's ex-
ercise of legislative and administrative power. It is ill suited
today to supervise the economic activities of public authori-
ties. Nevertheless, it is clear that only the degree to which
governments affect their populations by non-governmental
means is new, for governments have always affected individu-
als by changing their physical or economic environment by
means which do not invoke its authority. Governments have
built roads, dug canals, constructed state buildings and monu-
ments, employed people and the like for as long as political
society has existed.
19841 OBLIGATION TO OBEY

II. ON THE FOUNDATION OF POLITICAL AUTHORITY

Governments affect us through their intervention in the

market by changing the physical environment, and by provid-
ing the morally unscrupulous or misguided with self-inter-
ested reasons to do that which they ought to do, but which
moral reasons fail to make them do. Focusing on these as-
pects of governmental activity helps dispel the myth that de-
nying the existence of an obligation to obey the law amounts
to denying the possibility of a just government. This myth is
based on a misperception of the aims and means of govern-
mental action. If in principle governments can discharge all
the mentioned functions without authority, then they can do
so justly as well as unjustly. From our perspective it does not
matter if the same ends can be achieved by other means, ones
which do not involve the existence of governments. I am not
challenging the justice of alternative modes of social organi-
zation, nor comparing their precise merits. I only seek to es-
tablish that those who favor the continued exercise of many
of the existing functions of governments cannot argue from
that to the existence of a general obligation to obey the law.
For those functions can be discharged by governments inde-
pendently of such an obligation.
One objection may be that the argument overlooks that
at least government officials must accept governmental au-
thority for government to function as described. If the offi-
cials do not obey the law, then the morally unscrupulous, for
example, will have no fear that legal sanctions may be applied
to them. The contract model answered this objection, be-
cause officials would serve the government by consent, rather
than because they recognize its authority. This may not be a
very practical arrangement in some cases. A more important
objection may be that, where governments do not exercise
any authority, not even over their officials, one may well
doubt whether they are governments at all rather than cor-
porations who voluntarily undertake some good social ser-
vices. Be that as it may, the functions described which are
normally carried out by governments can in principle be car-
ried out without authority. Furthermore, let us remind our-
selves that the argument does not require that nobody is
under the authority of government. It only claims there is no
general obligation to obey the law, i.e. that not everyone is
under an obligation to obey all the laws, not even in a rela-
tively just society.
My basic position is not that no one has any moral reason
JOURNAL OF LAW, ETHICS & PUBLIC POLICY [Vol. I

ever to take account of the existence of the law. I argue that

the extent of the obligation to obey varies from person to
person. In no case is the moral obligation as extensive as the
legal obligation. Consider three typical situations in which or-
dinary citizens do find themselves under an obligation to
obey.
First, imagine that I use in the course of my employment
tools which may create a safety hazard to passers by. The
government has issued safety regulations detailing the equip-
ment which may be used and the safety measures that I must
take to make their use safe. The government experts who
laid down these safety regulations are experts in their field.
Their judgment is much more reliable than mine. I am there-
fore duty bound to obey the regulations which they have
adopted.
Second, we all have reason to preserve the countryside.
In areas visited by many people, this goal would be enhanced
if no one had barbecues. In fact everyone has barbecues in
those areas. The damage is done and my refraining from a
barbecue will not help. The situation is so bad that my having
a barbecue will not make even a small difference. At long last
the government steps in and forbids having barbecues except
in a few designated locations. Because the regulation might
reverse the trend, I have an obligation to obey this law.
Third, I disagree with the government's policy of al-
lowing the construction of nuclear power plants. I can try to
block the roads leading to the construction sites to stop build-
ing material and machinery from reaching the workers. Do-
ing so will be against the law. It will also, if successful to any
degree, encourage other people to take the law into their
own hands when they think they can force the government to
change its policies. This will undermine the ability of the gov-
ernment to discharge its functions. Despite this lapse on the
government's part, I still regard it as a relatively just and
moral government. I have an obligation to obey the law and
avoid breaking it in the way described.
In one respect the last case differs from the first two.
Though I am obligated to obey the law, the obligation does
not show that the law or government has authority over me
regarding the issue in question. In the first two cases my obli-
gation to obey results from the law's authority. It knows best,
or it can best arrange matters. Hence, I had better accept its
instructions and obey. In the last case there are no such as-
sumptions. It is merely that I will undermine the govern-
ment's ability to do good. That reason can, and often does,
19841 OBLIGATION TO OBEY

apply to people not subject to the authority of the govern-

ment. A foreign state may restrain its action in order not to
undermine the ability of my government to fulfill its useful
functions. But a foreign state is not subject to the authority
of the government.'
More important are the features the three cases have in
common. 1) They are typical cases. Much of planning law,
laws concerning safety at work, regulations regarding stan-
dards of manufactured goods such as cars, pharmaceuticals
and the like, rules concerning the safe maintenance of cars,
or concerning standards of safe driving, qualifications re-
quired for engaging in certain occupations, and many more,
all belong to the first category. Standards for the preserva-
tion of the environment, for the protection of scarce re-
sources, for the raising of revenue through taxation to
finance public projects, welfare services or other valuable
projects, and many more belong in most cases to the second
category. Any act aimed at forcing public authorities to
change their policies or actions by unlawful means belongs to
the third category. Some laws are more likely to be broken
for these reasons than others, but the violation of any law
can, on occasion, be used for such a purpose.
2) In all the examples, the law makes a difference to
one's moral obligations. The moral obligation is a prima facie
one; it may be overridden by contrary considerations. But for
the law, I might well have adopted different safety precau-
tions. I accept the superior reliability of the law on such is-
sues, and defer to its judgment. I would not have had any
reason to avoid having barbecues in the beauty spots of the
second example, but for the introduction of the law which
gives rise to the expectation that the widespread but damag-
ing practice will come to an end, or at least that it will be
sufficiently reduced so that my self-restraint will make a dif-
ference, however little. Finally, had the blockade of the nu-
clear power plant site not been against the law, it would not
have been an act tending to undermine the ability of the gov-
ernment to carry out its proper functions. That is why it is
proper to talk in all these cases of my obligation to obey some
laws.
3) None of the cases separately, nor all of them together

6. In other words, I agree with R.P. Wolff's contention that some-

times one has reason to obey someone who claims authority for reasons
which do not amount to submission to his authority. See, R. WOLFF supra
note 2, at 15-16.
JOURNAL OF LAW, ETHICS &VPUBLIC POLICY [Vol. I

offer an argument capable of being generalized to point to a

general obligation to obey. The contrary is the case. They
highlight the degree to which the obligation is limited and
varies in accordance with circumstances. The first case de-
pends on the law's superior knowledge. But if I am the great-
est living expert on pharmaceuticals, then the law has no au-
thority over me regarding the safety of pharmaceuticals.
Sometimes I have the option of investing time, money and
mental effort in a problem to solve it myself, or to go to a
knowledgeable friend and follow his advice. The law, in cases
of the first type, is like a knowledgeable friend and the same
range of options are available. So that in such matters the
range of the law's authority over individuals varies from one
person to another.
The second example concerns not the law's superior
knowledge, but its ability to achieve goals which individuals
have reason to pursue, but cannot do so effectively on their
own, because their realization requires coordinating the ac-
tions of large numbers of people. Although central to the
normal functioning of the law, such cases cannot be genera-
lized to generate an obligation to obey the law of a relatively
just state. First, not all laws purport to fulfill such a function.
Laws of the kind involved in the first class of cases, as well as
laws like the prohibition of rape and murder differ from laws
which coordinate the efforts of large groups. In the former
cases, the reasons for acting in accord with the law apply with
the same stringency in each case regardless of the degree of
general conformity with the law. Every time someone
murders or recklessly engages in a risky activity he acts
wrongly, harming or risking others. Not so in our second ex-
ample. Here the existence of reasons for the action, and their
weight, depend on general conformity, or the likelihood of it.
Some laws are of this character, others are not. The reasons
which lead one to acknowledge the law's authority in cases of
coordination do not apply elsewhere. Second, laws striving to
achieve coordination address masses of people, and are
designed to be enforced and regulated through the activities
of judicial and administrative institutions. They are drafted
not merely to state most accurately the actions required if co-
ordination is to be achieved, but also to be easily compre-
hended, and to avoid giving rise to administrative corruption,
the harassment of individuals, and other undesirable by-prod-
ucts of the operation of the legal machine. A person who un-
derstands the situation will often have reason to go beyond
the law, and to do more than the law requires in pursuit of
19841 OBLIGATION TO OBEY

the same coordinating goal. Alternatively, he may find that

on occasion he has no reason to follow certain aspects of the
law. They may be the inevitable simplifications the law has to
embrace to be reasonably understood and efficiently en-
forced. There is no reason for an individual not faced with
the same considerations to conform to the law on such
occasions.
The third type of example is often invoked to supple-
ment the previous two .and plug the remaining holes. It is ar-
gued that if the law is reasonably just, then cases like those of
the first two types exist in large numbers. In other cases one
ought to obey the law, for otherwise one would undermine
its ability to function effectively. The argument is based on a
false premise. Law breaking is liable to undermine the effec-
tiveness of the government in many cases. In others, viola-
tions of law have no such effect. Offenses never known to an-
yone or violating the interests of one private individual only,
as with many torts and breaches of contract, generally do not
diminish the government's effectiveness. There may be other
reasons for conforming with the law in some of these cases,
but the threat to the effectiveness of government and the law
is not among them.
These three types of arguments illustrated by our exam-
ples are not the only ones which lead to obligations to obey
some laws or others. I have discussed them, because, other
than consent and voluntary commitments, they most com-
monly give rise to an obligation to obey. They usefully illus-
trate the main points which need emphasizing. First, that the
extent of the duty to obey the law in a relatively just country
varies from person to person and from one range of cases to
another. There is probably a common core of cases regard-
ing which the obligation exists and applies equally to all.
Some duties based on the coordinative argument (e.g. duty to
pay tax) and on the bad example argument (e.g. avoiding po-
litical terrorism) are likely to apply equally to all citizens. Be-
yond this core, the extent of the obligation to obey will vary
greatly. Second, the extent of the obligation depends on fac-
tors other than whether the law is just and sensible. It may
depend on the expertise of the individual citizen, as in cases
of the first kind, or on the circumstances of the occasion for
the violation, as often in cases of the third kind.
JOURNAL OF LAW, ETHICS & PUBLIC POLICY [Vol. I

III. REVISIONISM IS TRADITIONALISM

Dr. Finnis's article in this issue 7 exemplifies some of the

confusions which pervade our reflections on the obligation to
obey. His central claim is that the law presents itself as a
seamless web: its subjects are not allowed to pick and choose. 8
This is certainly the case. But Finnis does not even pause to
indicate that he draws from this the conclusion that we are
not allowed to pick and choose, let alone present any reason
in support of it. For him, if this is how the law presents itself,
then this is how we ought to take it. To be sure, if we have an
obligation to obey the law, then the conclusion does indeed
follow. But one cannot presuppose that we have such an obli-
gation in order to provide the reason ("the law is a seamless
web") for claiming that we have an obligation to obey. This
would be a most vicious circle indeed. Does he perchance im-
ply that we cannot pick and choose, for if we do the whole
system of law and order will be undermined and will eventu-
ally collapse? He certainly does not argue to that effect, nor
does he consider the case to the contrary which I have
presented above and previously.* Under these circumstances
one hesitates to foist any particular interpretation on Finnis's
statement.
Dr. Finnis's intriguing article contains similar throwaway
points which leave the reader wondering how they are meant
to be taken. Does he really believe that "apart from the law"
a person "could reasonably be relatively indifferent to the
concerns and interests of persons whose activities . . . do not
affect him or at least do not benefit him"? 10 There are no
doubt people who do hold that we have no moral obligations
to people who do not benefit us. But such a broad statement
has no hope of carrying conviction without any word in its
defense. Moreover, most of those people will take the point
as militating against there being an obligation to obey the
law, at least to the extent that it requires us to benefit stran-
gers. Finnis regards it as a further reason to believe in an
obligation to obey.
Finnis tells us that, even if farmers have a duty not to
pollute the river they may misguidedly dispute this, and
therefore the way to get them to do their moral duty is to

7. Finnis, The Authority of Law in the Predicament of Contemporary Social

Theory, 1 NOTRE DAME J. L. ETHICS & PUB. POL'Y 115 (1984).
8. Id. at 120.
9. J. RAz, THE AUTHORITY OF LAW ch. 12 (1979).
10. Id.
19841 OBLIGATION TO OBEY

have a moral obligation to obey the law. They will then re-
frain from pollution, because the law requires them to do so.
But that will be the case only if they will not make a mistake
about their obligation to obey the law, and only if the law
makers will not make a mistake about the obligation not to
pollute the rivers. Even if these conditions are met, they con-
stitute an argument for the existence of an obligation to obey
the law only if the lawmakers are not likely to make fewer
mistakes than the farmers on other issues as well. For the ob-
ligation to obey is general and what is won in the absence of
pollution can easily be lost in the maltreatment of old age
pensioners or of the mentally ill.
Those who emphasize the danger of every person decid-
ing for himself, whether the case for the law's authority over
any range of questions is good or not, often overlook this last
point. Human judgment errs. It falls prey to temptations and
bias distorts it. This fact must affect one's considerations. But
which way should it incline one? The only general answer
which I find persuasive is that it depends on the circum-
stances. In some areas and regarding some people, caution
requires submission to authority. In others it leads to denial
of authority. There are risks, moral and other, in uncritical
acceptance of authority. Too often in the past, the fallibility
of human judgment has led to submission to authority from a
misguided sense of duty where this was a morally reprehensi-
ble attitude.
Finnis's elegant discussion of the river pollution case il-
lustrates one way in which the law can do good, and when it
does it should certainly be obeyed." It is a good illustration
of an occasion on which the existence of the law makes a dif-
ference. While some laws make a difference, I doubt that all
do. Some of the examples used above show how greatly many
legal rules, all equally central to the law, differ from the river
pollution example. One should not be so captivated by one
paradigm that others go unnoticed. Consider the river pollu-
tion case itself. Finnis quite reasonably directs our attention
to a time when coordination, though desirable, does not ob-
tain and the law steps in to secure it. But travel ten years on.
By now, let us simplify, either the scheme introduced by the
law has taken root and is the general practice, or it has long
since been forgotten and is honored only in the breach. In
the second case, my conforming with the law will serve no
useful purpose unless it happens to protect me from penal-

11. Id. at 134-37.

JOURNAL OF LAW, ETHICS & PUBLIC POLICY [Vol. I

ties, or to stop my behavior being misunderstood by others.

There is then no point in obeying the law. There is reason to
conform with it if the scheme is in general effective. But, as is
evident by comparing this case with the previous one where
the law is the same but the practice of conformity is missing,
that reason is not the law but the actual practice.
All the questions I raise can be answered. I have stated
my answers in previous publications and supplemented them
above. Finnis seems to disagree, but he fails to tell us why. He
properly explains why the law is a way of achieving coordina-
tion, 12 but he never even attempts to show that coordination
requires general obedience to law.18
I should make clear my agreement with Finnis in his
doubts about the value of social choice and game theory as
guides to moral decisions. This is not the occasion to go into
such issues. But we should remember that all the arguments
concerning an obligation to obey which were canvassed so far
were essentially instrumental arguments. They assumed that
we have reason to promote or protect certain states of affairs,
and examined whether recognition of an obligation to obey
the law, or obedience to law, is a way of doing so. But are
there not non-instrumental reasons for obeying the law?
Non-instrumental reasoning is central to a distinguished
tradition in political philosophy. Today one of the most com-
mon arguments, often repeated in different forms, is based
on alleged considerations of fairness. It is unfair, it claims, to
enjoy benefits derived from the law without contributing
one's share to the production of those benefits. As has been
pointed out many times before, this argument is of dubious
validity when one has no choice but to accept the benefits, or
even more generally, when the benefits are given to one who
doesn't request them, and in circumstances which do not im-
ply an understanding concerning the conditions attached to
their donation and receipt. Besides, even where it is unfair
not to reciprocate for services received, or not to contribute
one's share to the production of a good of general public
value, it cannot be unfair to perform innocuous acts which
neither harm any one, nor impede the provision of any pub-
lic good. Many violations of law are such innocuous acts.
Therefore, appeals to fairness can raise no general obligation

12. Id. at 134-35.

13. Throughout I am using "coordination" in its ordinary significa-
tion, rather than in the narrow and artificial sense it has been given in
some recent writings in game theory.
1984] OBLIGATION TO OBEY

to obey the law.

The more traditional non-instrumental justification of
the obligation to obey the law relies on contract and consent.
Not all consent theorists base either the validity of the con-
sent or the reasons for giving it on non-instrumental reasons.
Hobbes wished to derive it all from enlightened self interest.
Locke allowed moral reasons to enter the argument, but they
are instrumental reasons. Consent to obey is designed to
bring greater conformity with the natural law and greater re-
spect for the natural rights of men than is likely to be
achieved in a state of nature. Rousseau was the most impor-
tant eighteenth century thinker to highlight the intrinsic
value of the social contract as the act which constitutes civil
society, as well as the personality of those who belong to it.
Consent to obey the law of a relatively just government
indeed establishes an obligation to obey the law." ' The well-
known difficulty with consent as the foundation of political
authority is that too few have given their consent. This argu-
ment in its customary form can be right and wrong at the
same time. Consent or agreement requires a deliberate,
performative action, and to be binding it has to be volunta-
rily undertaken. Many people, however, have never per-
formed anything remotely like such an action. The only time
I did was during my national military service, in circum-
stances where failure to take the oath would have led to be-
ing court-martialled. I would not have made the oath but for
these circumstances, and I do not think I was ever bound to
observe this coerced undertaking.
Nevertheless, this objection is also misguided. There are
other ways of incurring voluntary or semi-voluntary obliga-
tions. Consider a family or a friendship. There are obliga-
tions which friends owe each other, and which are in a sense
voluntary obligations, as it is obligatory neither to form
friendships nor to continue with them once formed. Yet we
do not undertake these obligations by an act of promise or
consent. As does friendship, these obligations arise from the
developing relations between people. Loyalty is an essential
duty arising from any personal relationship. The content of
this duty helps us to identify the character of the relation-
ship. If the duty precludes your having sex with another per-
son, then your relations are of one character; and if it pre-
cludes publicizing disagreements between you, then you have

14. I discuss the issue at some length in my Authority and Consent, 67

VA. L. REv. 103 (1981).
JOURNAL OF LAW, ETHICS & PUBLIC POLICY [Vol. I

relations of another kind, and so on. In other words, duties

of loyalty are semi-voluntary, because the relationship itself is
not obligatory. Moreover, they are non-instrumentally justi-
fied because they are part of what makes the relationship into
the kind of relationship it is. (I am assuming that having the
particular relationship, friendship, is itself of intrinsic value.)
What has this excursion into the normative aspect of per-
sonal relations to do with the obligation to obey the law? It
demonstrates the possibility of one kind of obligation to obey
which arises out of a sense of identifying with or belonging to
the community. Such an attitude, if directed to a community
which deserves it, is intrinsically valuable. It is not however
obligatory. One does not have a moral duty to feel a sense of
belonging in a community; certainly there is no obligation to
feel that one belongs to a country (rather than one's village,
or some other community). I talk of a feeling that one be-
longs, but this feeling is nothing other than a complex atti-
tude comprising emotional, cognitive and normative ele-
ments. Feeling a sense of loyalty and a duty of loyalty
constitutes, here too, an element of such an attitude.
The government and the law are official or formal or-
gans of the community. It they represent the community or
express its will justly and accurately, then an entirely natural
indication of a member's sense of belonging is one's attitude
toward the community's organization and laws. I call such an
attitude respect for law. It is a belief that one is under an
obligation to obey because the law is one's law, and the law of
one's country. Obeying it is a way of expressing confidence
and trust in its justice. As such, it expresses one's identifica-
tion with the community. Respect for law does not derive
from consent. It grows, as friendships do; it develops as does
one's sense of membership in a community. Nevertheless, re-
spect for law grounds a quasi-voluntary obligation. An obliga-
tion to obey the law is in such cases part and parcel of one's
attitude toward the community. One feels that one betrays
the community if one breaks the law to gain advantage, or
out of convenience, or thoughtlessness, and this regardless of
whether the violation actually harms anyone, just as one can
be disloyal to a friend Without harming him or any of his in-
terests, without even offending him.
An obligation to obey which is part of a duty of loyalty to
the community is a semi-voluntary obligation, because one
has no moral duty to identify with this community. It is
founded on non-instrumental considerations, for it consti-
tutes an attitude of belonging which has intrinsic value, if ad-
19841 OBLIGATION TO OBEY 155

dressed to an appropriate object. Vindicating its existence

does not therefore establish the existence of a general obliga-
tion to obey the law. For good or ill there are many who do
not feel this way about their country, and many more who do
not feel like this about its formal legal organization. It is
sometimes said that the denial of a general obligation to obey
is of recent vintage. It is in may ways the opposite. At the
birth of modern political theory in the seventeenth and eight-
eenth centuries, there was one clear orthodoxy: if there is a
general obligation to obey the law, it exists because it was vol-
untarily undertaken. That is the view defended in this article.
The fathers of modern political theory also believed that
such obligations were indeed voluntarily undertaken. If this
view is no longer true today it is because the societies we live
in are less homogeneous, more troubled about their own
identity, and about the role of government and the law in the
social fabric. Society has changed, not political theory.