Download law extension committee - The University of Sydney

LAW EXTENSION COMMITTEE
UNIVERSITY OF SYDNEY
JURISPRUDENCE LECTURE OUTLINE
ALL STUDENTS PLEASE NOTE:
The outline below is intended to assist students in following the
lectures in the course and in understanding the recommended
reading. The outline is not a substitute for the lectures and
reading. The outline is not intended to be comprehensive.
Students who have merely familiarised themselves with the outline
but not attended the lectures and read the prescribed text and
readings will be inadequately prepared for the exam and at
substantial risk of failure.
Examination questions will increasingly ask students to apply the
concepts and arguments taught in the course to an issue or
problem. Students will be best prepared to deal with the paper
who have attended the lectures or weekend schools and read
widely.
Dr C Birch (LEC Winter 2006 Session)
1
LECTURE 10
THEORIES OF POLITICAL OBLIGATION
Introduction
This lecture explores arguments for and against the view that we have a moral obligation to
obey the law. It is important to distinguish between an obligation to obey a particular law,
founded upon the reasons for making that particular conduct obligatory, and the different
notion, that we have a general obligation to obey all laws, including those laws that we
believe are morally unjustified. Most no doubt believe we should obey the law prohibiting
murder. This however could easily be explicable on the basis that most of us believe killing is
wrong. By contrast, some people believe redistributive taxation is wrong. They may however
also believe that despite its wrongness they have an obligation to obey this law.
This lecture will not be a comprehensive survey of the many political theories that have been
proposed but will look at some key steps in the evolution of political thought.
The argument from Plato’s Crito
In 399BC Socrates was tried in Athens on a charge of being a menace to society and was
sentenced in death. In Plato’s famous dialogue, ‘Crito’, a friend of Socrates, offered to
arrange escape for him. Socrates refused.
Socrates rejected the invitation to flee because it would be a breach of Athenian law. Socrates
argued that he had a moral duty to obey the law even if he believed the law is wrong. Socrates
put forward several arguments for this position.

One has agreed to obey the laws and it would be a breach of that promise to be
disobedient. Such agreement had been given by Socrates continuing to live in Athens
thereby tacitly acknowledging Athenian legal authority.


In a further argument, Socrates said that he had received the benefits of being an Athenian
citizen throughout his life and as a matter of justice was obliged to take the burdens that
come with those benefits. One of the burdens is the duty of obeying the law.
Dr C Birch (LEC Winter 2006 Session)
2

Socrates also argued that the relationship between State and citizen is not one of equality
but a relationship akin to that of parent and child which carries a duty of obedience.


A further interpretation of Socrates argument is not that one must obey the law, but that
one must accept the penalty if one disobeys the law.


Socrates also argued that he had an obligation to obey because he had been afforded an
opportunity to persuade the State to change the law. He had been allowed a trial and
having taken that opportunity could not now disobey the law.
Crito contains one of the first instances of the so-called “social contract” argument. However,
one may question why the moral obligation to keep promises should override other moral
obligations such as doing good by breaking bad laws.
The argument from Hobbes’ Leviathan
Hobbes (1588-1679) commenced to publish Leviathan in 1651. The English Civil War (16401653) had produced immense misery and Hobbes’ emphasis upon the importance of a strong
State was no doubt partly a reflection of that experience.
One might reconstruct Hobbes’ argument along the following lines (in this regard I follow the
views of Jonathon Wolff in an Introduction to Political Philosophy OUP 1996).

People are all approximately equal in strength. Equipped with an appropriate weapon the
weakest person can defeat the strongest.


Human motivations are derived from our biological nature.


The chief things required by people are scarce (namely, food, shelter and the essentials of
life). Because of scarcity there will be competition.

Dr C Birch (LEC Winter 2006 Session)
3

Because of the competition between people for scarce resources in the absence of a state it
will not be possible to act in accordance with moral sentiment. Each will be forced into a
war against all others. This is because:-
(i)
We desire to obtain the power and means to satisfy our future desires (eg, I
wish to have the means to ensure that I can grow a crop to feed myself next
year).
(ii)
If we fear others may attack us to satisfy their future desires, if will be in our
rational self interest to attack first, for it would be irrational simply to wait until
we are attacked when we may be in a situation of weakness.
(iii)
In the state of nature without a ruler there will be no injustice from broken rules
for without a lawgiver there could not be rights or obligations.


In the absence of a State there will be perpetual civil war and in the words of Hobbes “the
life of man, solitary, poor, nasty, brutish and short”.


To escape from this state of constant civil war it is necessary that there be a body capable
of enforcing rules so that it will no longer be rational for people to act pre-emptively and
engage in war.


A State will not be an effective kerb upon the tendency of people to strike pre-emptively
unless its authority be paramount. Therefore to achieve a peaceful and stable society the
power of the State must be absolute.
Locke’s argument
Locke also approached the matter by asking how the State might have political authority over
us but reached a different conclusion from Hobbes. Locke argued: 

That in the state of nature there are personal rights. In particular, to life, health, liberty and
possessions. These exist prior to any political organisation.
Dr C Birch (LEC Winter 2006 Session)
4

Locke further believed that in the state of nature the moral law would be generally
followed.


Locke argued that some would break the moral law and the law would be futile without
enforcement, therefore everyone had a natural right to enforce the law.


If the law was enforced by individuals exercising their right of self enforcement numerous
difficulties would arise, there would be arguments, acts of excessive enforcement and only
a civil authority with the power to resolve these disputes could succeed in bringing peace.


Locke argued however that it could never be intended to confer legislative power upon
this civil authority so as to permit it to violate our pre-existing rights. (“Whenever the
legislators endeavour to take away, and destroy the property of the people, or to reduce
them to slavery under arbitrary power, they put themselves into a state of war with the
people, who are thereupon absolved from any further obedience and are left to the
common refuge”). See the Second Treatise on Civil Government.
Is democracy a good justification for an obligation to obey the law
Many people in our society believe that because we have been able to vote for our
government we are therefore bound to obey. However, it takes some effort to demonstrate
why an entitlement to vote leads to a moral obligation to obey any law decided by the
legislature for which one voted. Robert Paul Wolff in his influential book “In Defence of
Anarchy” shows that democracy does not lead to a general obligation to obey the law. Wolff
identifies Rousseau as the first political philosopher to recognise that majoritiarin democracy
was not a self-proving moral principle. Rousseau believed that he had found a justification for
majoritarian democracy with his concept of the general will. Wolff reconstructs Rousseau’s
argument in the following steps.
(i)
I am free and only properly obligated when I act in accordance with the general will of
he people.
Dr C Birch (LEC Winter 2006 Session)
5
(ii)
I would not consider it an infringement of my liberty to be compelled to do something
which I would have wanted to do had I not chosen an alternative course by mistake or
error.
(iii)
The general will reflects the choice that anyone would make who has properly
directed their mind to the question of what ought to be done for the regulation of
society free of error or mistake.
(iv)
The majority of the people assembled to vote and directing their mind to what ought to
be done for the governance of society will correctly choose. Their view reflects the
general will.
(v)
If I have opposed the majority I have in effect mistaken what I should have intended
or willed and what I would have intended or willed but for my mistake.
(vi)
The majority is entitled to enforce their position because it reflects in effect the
position I would have wanted if I had myself correctly apprehended the general will.
In Rousseau’s words “if anyone refuses to obey the general will he will be compelled
to do so by the whole body; which means nothing else then that he will be forced to be
free”.
Wolff considers Rousseau plainly wrong in assuming that the majority view manifests the
general will. In fact some 20 years after Rousseau's argument was set out in “The Social
Contract” the Marquis de Condorcet discovered his famous jury theorem which applies
probability theory to demonstrate that where a decision is made by a number of decision
makers, each acting independently and with an average probability of getting the correct
answers greater than .5, the likelihood that the majority decision is correct is substantially
higher than the likelihood that anyone individual’s decision is correct and as the size of the
jury tends to infinity the likelihood that the majority are correct tends to certitude. Of course
not all the pre-conditions for the application of de Condorcet’s jury theorem apply in the
political deliberations of most modern societies.
CONDORCET’S JURY THEOREM
Probability that majority are correct: =
vh – k
______
vh – k + eh – k
Dr C Birch (LEC Winter 2006 Session)
6
WHERE: -
v = the individual jurors probability of correctness in judgment
h = number of votes in the majority
k = number of votes in the minority
e = probability of incorrect judgment of jurors i.e 1 – V
The theorem assumes:(i)
The average V of the jurors is above .5
(ii)
The jurors are choosing between only two possible outcomes
(iii)
The jurors each decide independently.
Wolff also argued that majoritarianism does not produce a just distribution of political power
merely because its based upon a system of according each person a vote of equal value. In any
society with an entrenched majority of say 51%, that majority will have a total monopoly of
political power. Wolff suggests that the only just way of distributing political power would be
if voters put chips into a lottery and the government were chosen randomly, the proportion of
chips reflecting the proportion of differing preferences within the community would result in
political power being distributed over a substantial period of time roughly in proportion to the
following of the various political parties. Such a system would however, while being just in
one sense, be wholly inefficient, possibly even disastrous in other senses.
De Condorcet also discovered the famous electoral paradox in which, depending upon the
order of preferences, it may be that there is no democratic answer to some distributions of
preference, in the sense that no matter which candidate be chosen, a majority would have
preferred some other candidate. Lewis Carroll independently discovered the electoral paradox
and the well known economist and philosopher Kenneth Arrow generalised it for all electoral
systems. It has thus became known as Arrow’s theorem.
VOTING PARADOX
Individual 1
Individual 2
Individual 3
A
B
C
B
C
A
Dr C Birch (LEC Winter 2006 Session)
7
C
A
B
A majority prefer A over B (1 & 3)
Another majority prefer B over C (1 & 2)
Another majority prefer C over A (2 & 3)
Robert Dahl and the principle of affected interests
A further difficulty for democratic theory is to determine what it is a majority of that matters.
You would not consider that the people of Indonesia or New Zealand ought to be entitled to
vote for the legislators who are to determine how Australians will be taxed. It is Australians
whose interests are affected by the Australian Taxation system and therefore they are the
natural body of people to exercise a vote on that matter. The answers however are not always
clear. Is the town plan for the CBD of Sydney a matter that should be determined by the
political community of the residents of Sydney’s CBD, or all of those who live or work in the
CBD, or because of it being the capital of New South Wales, the whole of the state, or
because of the national significance of the city the whole of Australia?
We clearly have a multiplicity of interests some of which relate to our local precinct, some to
the local council zone in which we live, some to the city, some to the State, some to the
nation, and some to the human race. Robert Dahl described these as sitting inside each other
like Chinese boxes, and that we need an affected interest to justify a claim to vote.
One can clearly see many of the constitutional difficulties in a federation like Australia
involving inter se questions as effectively deriving from controversy about what represents
the appropriate community of affected interest.
Rawls (1921 - )
John Rawls has perhaps been the most influential political philosopher of the last 50 years.
His key work is “A theory of justice” (1971).


Rawls’ theory is a theory of distributive justice but also includes a theory of the
distribution of political power.
Dr C Birch (LEC Winter 2006 Session)
8

Rawls’ theory has sometimes been described as a concept of justice as fairness.


Rawls defends voting as a way of distributing political power fairly.


Rawls’ argument for his principle of distributive justice involves reliance upon a
hypothetical social contract. An agreement people would make if acting rationally and not
aware of their personal advantages and disadvantages


Rawls’ theory is one which shows why we are entitled to demand obedience in order to
prevent benefits being given to what have been sometimes referred to as “free riders”
Communitarian political philosophies
Much western political theory has taken as its starting point the principle that individuals are
free and autonomous and that the problem is to explain how they can be obligated to obey the
State or to obey others. Artistotle in his “Politics” had in the 4th Century BC challenged this
approach.
His famous phrase that “man is a political animal” recognised the inevitability of our living in
communities. If we must live communally we must harmonise our conduct with others.
Some contemporary moral philosophers (eg, Michael Sandel and Charles Taylor) have
attacked the over emphasis on individual rights in western liberal political philosophy and
advocated a renewed emphasis upon communal obligations.
The challenge in political philosophy appears to lie in finding a balance. Over emphasis upon
communal obligations leads rapidly to intolerance of difference, the concentration camp and
genocide. Viewing the matter from the traditional liberal perspective however can, unless one
is careful, undercut the right of the State to claim obedience on anything other than the
protection of basic rights.
Dr C Birch (LEC Winter 2006 Session)
9