[lbo-talk] law

andie nachgeborenen andie_nachgeborenen at yahoo.com
Wed Sep 8 08:10:30 PDT 2004


Doesn't whether it's right to obey the law just because it's the law depend on the conditions under which it becomes law? In a democracy, if a democratically elected lawmaking body makes a law by proper procedures, other things being equal, shouldn't we obey it because it is the rule enacted by that body? We have those procedures because that's the way we agree to make the rules that govern us -- the alternatives being what I have said elsewhere, tyranny or civil war. So doesn't enactment of that sort give us a reason, at least a legal one, to follow a properly enacted law promulgated by a democratic legislature.

I think this is clearly true with morally neutral laws, like red lights mean stop. It seems pretty obviously true with laws that may have a moral dimension, but there's no obvious fact of the matter about which is the best thing to do, like funding health care more than education rather than the other way around. (another example, BTW, of a noncoercive law.)

The hard case is when the legislature enacts morally controversial or even obviously (to some) wicked laws, like segregation or destroying habeas corpus or abolishing welfare (this last is also noncoercive). I don't dispute that there may be moral reasons for civil disobedience of such laws, and these reasons may trump, but surely there is some purely legal reason to follow them. They were enacted according to the only procedures we have for making those kinds of decisions, they carry the legitimacy of democratic decision-making, and the alternative to such decisionmaking is not pretty to contemplate.

Now, we may think these laws are wrong and try to change when in the courts, in the legislature, and in the streets, but just because a law is wrong doesn't mean that there is no reason to follow it -- maybe just not an overriding reason.

And it depends on how wrong it is and how effective disobedience is likely to be in changing things. Segregation was really wrong, but until there was a prospect for mass movement individual disobedience was just a way to get yourself hurt. It's not even clear how one would commit civil disobedience against TANF, unless one ere in a very special position, a welfare bureaucrat or something.

Please note that my approach grounds law, or legal legitimacy, in the morality of democratic politics, which involves law, since democratic procedures have a legal form, but what makes those procedures have force is not the fact that they have a legal embodiment, but that they are the fairest procedures that are likeliest to produce the best outcomes. So I don't think, contrary to what Woj says, that law is free standing and based only in itself. Though many legal theorists disagree.

jks

--- Wojtek Sokolowski <sokol at jhu.edu> wrote:


> CB quoted:
> --
> >If you obey a law, simply because it is a law,
> that's pretty good sign that it shouldn't have
> been a law.
>
> Let me turn it around and say "If it is obeyed for
> reasons other than it
> being a law, it is a good sign that it should not
> have been a law in the
> first place." Any attempt to ground law in
> something else than the law
> itself is a wild goose chase. The only
> justification of law is the
> capacity to enforce it. Dura lex, sed lex. If one
> does not like that,
> one should change the institutional apparatus that
> promulgates and
> enforces such laws, instead of bickering about their
> supposed logical
> inconsistencies. Mr. Goedel has taught us that you
> can find potential
> inconsistencies in virtually any complex system - so
> pointing out to
> such inconsistencies or contradictions is not a big
> deal and will
> certainly not cause any legal system to collapse.
>
> Wojtek
>
>
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>
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