Obedience to Law: Exploring the Views of Natural and Positive Law Theorists

Abstract

“Civil disobedience is not our problem, our problem is civil obedience. Our problem is that numbers of people all over the world have obeyed the dictates of the leaders of their government and have gone to war, and millions have been killed because of this obedience. Our problem is that people are obedient all over the world in the face of poverty and starvation and stupidity and war and cruelty. Our problem is that people are obedient while the jails are full of petty thieves, and all the grand thieves are running the country. That’s our problem.The words of Howard Zinn are a good reflection of some of the views different people have held on the issue of obedience to law. The quandary is not new and has been a subject of examination from the days of early philosophers of law up to date. To these early philosophers, the position held depended on the school of thought which one sought to propagate and the same is mirrored in present day arguments where depending on one’s view on obedience to law, it is possible to determine from which school of thought they borrow from.Whereas there are those who advocate for strict obedience of the law regardless of whether it is good or bad in the views of the subject, others have held the position that it is only the just laws which ought to be respected and thus obeyed. These two positions are held by the positivists and the natural law theorists respectively.Within the two schools of thought, different scholars have tried to come up with reasons as to why law should be obeyed or otherwise and the qualifications to the obedience of law. The two schools of thought however agree on the fact that laws should be obeyed and their departure is to the modalities of the obedience. To understand and appreciate the reasoning of behind the positions held by the two groups, one might need to first look at the various arguments that have been put forward as to why people should obey the law. Anthony D'Amato in his examination on the obligation to obey the law in a case study of the death of Socrates comes up with three reasons, first, a citizen may have assented to that law either expressly or impliedly and thus agreed to obey it. With regards to this, it has been said to be extremely difficult if not impossible to find express consent and as such, consent has been implied from actions such as voting or accepting the benefits of living within a state.Secondly, the compulsion to obey the law is put in consequentialist terms. The idea behind this justification is to try and picture how a society in which people disobeyed the law would look like. According to Freeman,5such a society would easily slide back to the Hobbesian state of nature which was a state of perpetual war of every man against his neighbor. The third reason is that the citizen may have been the recipient of benefits conferred by other citizens and therefore it is arguable that he should have an obligation to obey the laws enacted by those citizens. Freeman refers to this as the ‘free rider’ and the argument is that it is wrong for those who may have benefited from the state no to respond with obedience to the law.An analysis of the views of naturalists and positivists on obedience to law discloses merger of opinions at one point or the other as expressed by various theorists. Positivists for example advocate for absolute obedience of the law as posited by the sovereign but we still see some positivists like Hart who have stated that injustice must be resisted. According to Hart the right of resistance would be based upon the assumption that unjust provisions do not constitute positive law of if one agreed, that such unjust provisions were indeed law, then they were too reprehensive to be applied or to command anyone’s obedience.On the other hand, Even the theorist most faithful to natural law has at one point made an argument on obedience that has some positivist element. Aquinas for example did say that if law contradicted the law of God one should obey God’s law rather than human law, however where a law is rendered unjust merely because it offends the public good, then it might be better to simply obey. This paper seeks to sample these views in order to give the reader a deeper understanding on the behaviour of people with regards to obedience to law or otherwise.