Philosophy of Law Study Questions

Questions on Smith pp. 960-64

1.    Assume someone has made an explicit promise to obey the law (say as part of a naturalization ceremony or when taking on some governmental office). Even then would it follow that there is a prima facie duty to obey the law?

2.    Setting aside the fact that the existence of a duty to abide by the results of democratic procedures in which one had a vote cannot show that there is a generic duty to obey the law (because not all legal systems are democratic), does the argument that one has a prima facie duty to abide by such result work at all? Is this really an argument from consent?

3.    Are there other reasons, besides consent, to think that one has a prima facie duty to abide by the result of democratic procedures? Could one argue that the result of such procedures are more likely to be morally superior to one’s own moral views?

4.    Could one argue that someone who willingly choses to visit a country has a moral duty, based on implicit consent, to obey its laws?

5.    Another more subtle implied-consent argument for a duty to obey the law, offered by Margaret Gilbert,  appeals, not to voting, but to our general use of language that suggests an identification with our country and an acceptance of its laws. Here is Gilbert’s argument (as described by William A. Edmundson )

Gilbert assimilates political obligation to a wider category of “joint commitments” formed when persons “mutually express their readiness to be so committed, in conditions of common knowledge.” Such persons “cannot unilaterally remove” themselves from the commitment and, to that extent, form a “plural subject.” The relevant mutual expression need not be a datable event, and the content of the commitment may be vague, but a central conversational use of the first-person plural pronoun typically invokes or presupposes a plural subject. Gilbert calls this idiom the “plural subject sense of ‘we.’” Mutual acquiescence in this idiom presumptively forms a plural subject, and this phenomenon is identifiable on larger, less direct scales, as where, for example, islanders use the plural-subject idiom to express their readiness to be jointly committed to other islanders, whoever they may be. “Social groups are plural subjects,” she argues, “constituted by joint commitments which immediately generate obligations.” Promises and agreements generally are, for Gilbert, but instances of joint commitment.

…[The] objection [that no express consent to be obligated by law generally occurs]—which is damaging to actual consent theory—does not touch plural-subject theory, which does not rest upon agreement. Gilbert argues that the widespread practice of referring to “our country,” “our constitution,” and “our law” is interpretable as a use of the “plural subject sense of ‘we,’” and that persons who employ such idioms are to be so understood. Such an interpretation would explain the sociological fact that there is a widespread and deep sense of attachment to “our country” and an obligation to obey its laws. William A. Edmundson, State of the Art: The Duty to Obey the Law, 10 LEGAL THEORY 215, 240-41 (2004).

Is Gilbert right that such self-descriptions can create a duty to obey the law? Isn’t Gilbert instead merely describing the fact that many Americans wrongly believe that there is such a duty?