Philosophy of Law Study Questions

Questions on Smith pp. 950-60.

1.    Someone says, "Of course there is a duty to obey the law. Otherwise it would be OK to murder and rape." Response?

2.    Someone says, "Of course there isn't a duty to obey the law. Otherwise slaves in the antebellum South would have been obligated not to escape." Response?

3.    How weak can prima facie obligations get?
        Can a prima facie obligation exist even though it is trumped by every other moral obligation that arises?

4.    Shouldn't we be looking for an argument that the duty to obey the law is overriding - that it trumps all other duties? Don't governments claim that about the law?

5.    Do we have to have a duty to obey the law for the government to be justified in punishing us? Consider the following statement by Joseph Raz:

“One can threaten and penalize people without having authority over them. One can also have an organization to issue and carry out threats without authority over them either…. [The] actions [of government officials] are morally permissible 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 ways morally appropriate for those who renege on their moral duties.”

What is Raz talking about? Is he right? If he is right, is a duty to obey the law at all relevant to the legitimacy of government?

6.    What is the argument for a duty to obey the law on the basis of gratitude? Shouldn't this be an argument from consent (or promise a to obey the law), that is, that one implicitly promised to obey by accepting the benefits of government?

7.    Why does Smith think the argument from gratitude fails? Is he right?

8.     What is the difference between the argument from gratitude and the argument from fair play?

9.    Can the argument from fair play justify a generic prima facie duty to obey the law - that is, a prima facie duty to obey all the laws of one's legal system? Smith mentions laws prohibiting homosexual activity or the dissemination of birth control information. Why does he think that the argument from fair play cannot apply to them? Is there any way to generate an argument that we benefit from people's forbearances when they abide by such laws, even though the content of such laws is wrong?

10.    Setting aside the duty to obey the law, does the argument from fair play really work? Robert Nozick in Anarchy, State, and Utopia offers the following example to show that it does not:

"Suppose some of the people of your neighbourhood (there are 364 other adults) have found a public address system and decide to institute a system of public entertainment. They post a list of names, one for each day, yours among them. On his assigned day […] a person is to run the public address system, play records over it, give news bulletins, tell amusing stories he has heard, and so on. After 138 days on which each person has done his part, your day arrives. Are you obligated to take your turn? You have benefited from it, occasionally opening your window to listen, enjoying some music or chuckling at someone's funny story. The other people have put themselves out. But must you answer the call when it is your turn to do so? As it stands, surely not."  (Nozick, 1974: 93)

What do you think of his example? Does it really show that the argument from fair play does not work?