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?
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
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?
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?
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
“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.”
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?
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?
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?