The Online Library of Liberty

A project of Liberty Fund, Inc.

• Associate Editors
• Editorial
• Bibliographical Essay: Ellen Frankel Paul, Laissez Faire In Nineteenth-century Britain: Fact Or Myth?
• I: Legal Philosophy
• The Minos: What Is Law?
• Obedience to Law
• Moral and Legal Justification
• Early First Amendment Theory
• The First Amendment & Freedom of Expression
• The First Amendment and Religion
• The First Amendment Vs. the Cpi
• The Economics of Strict Liability
• The Rule of Law In American Politics
• II: Political Analysis
• Society, State, and Right In Proudhon
• Human Rights and Political Change
• Carter's Human Rights Policy
• Locke's Tolerance: Prudence Or Right?
• Political Intolerance
• Hayek: Reason, Relativism, and Liberty
• Hayek On Coercion and Freedom
• “advanced Liberalism” As Managed Capitalism
• Common Good & Public Interest
• Uncrowding the “commons”
• Milgram: Obedience, Authority, & Legitimacy
• Syndicalism & “the Servile State”
• The Parisian League
• Conservatism In Spain
• Soviet Intellectual Orthodoxy
• The Clergy & the American Revolution
• Russian & American Defenses of Servitude
• Croce's Hegemony: How to Win Minds
• III: War and the State
• Just War and Rights
• Just Wars Vs. No Wars
• Walzer & Just War
• Wartime Propaganda Tactics
• Iran, Oil, and the Cold War
• The State and Oil Policy
• San Francisco & the Military Complex
• Protectionist Assaults On Developing Countries
• Government Military Behavior
• IV: Political Economy and Theory
• Three Kinds of “capitalism”
• Adam Smith: Economic Utilitarian
• Roepke: Laissez Faire and Social Order
• Government-induced Boom & Bust
• Austrian Vs. Neoclassical Methodology
• Professor Friedman's Instrumentalism
• Milton Friedman's Critics
• Entrepreneurship and Justice
• Externalities & Government Intervention

Obedience to Law

Alan H. Goldman

• University of Miami

“The Obligation to Obey the Law.” Social Theory and Practice 6(Spring 1980):13–31.

The classic view of legal obligation developed by Hobbes and the positivists held that citizens are under obligation to obey the law, whereas higher representatives of sovereign power have no such obligation. Philosophers from Locke to Rawls have attacked this view, assuming that all have at least prima facie duties to obey law. Prof. Goldman's paper defends the positivist distinction between officials and private citizens, but it derives the opposite conclusion, namely that while officials have a specific obligation to obey the law, citizens do not.

Goldman bases his position on a philosophical separation of institutional from moral obligations. Of course, if legal obligations are to exercise normative authority, they must in some sense reduce to moral obligations. Institutional obligations are nevertheless distinct, since the legal requirement to obey laws prevails independently of the law's moral content. A judge, for example, must apply the law consistently and predictably, so that citizens who wish to remain within the bounds of the law may predict how they may do so. If judges were to decide cases on their moral merits rather than on the plain dictates of the law, consistent expectations would not be possible. On the other hand, inconsistency in the actions of private citizens would not produce such widespread negative effects in society.

Officials and private citizens likewise differ in their ability to ascertain morally relevant facts concerning parties who would be affected by their decisions. For a judge to decide a case on its moral merits, he would have to investigate the personal situations of all litigants, situations which would be legally but not morally irrelevant. The strict applicability of the law is far more clear-cut. In addition, the economic costs involved in making a thorough moral investigation would be prohibitive. For their part, private citizens do not adjudicate disputes between parties who are total strangers to them. They are thus usually in a better position to know the relevant situations of those toward whom they act.

Lastly, acceptance of government office may legitimately be construed as agreement or voluntary commitment to act officially within the confines of institutional powers and obligations. One such obligation requires obeying and applying law wherever called for. Private citizens are under no such contractual mandate.

The sanctions attached to law naturally make it prudential to perform or avoid certain behavior for those who fail to act on moral grounds. Indeed, the stability of society depends in large part upon routine acquiescence to accepted rules. Insistence on the citizen's moral obligations, rather than on his duty to obey the law, is the best insurance that legislators will take cognizance of moral factors as they frame their statutes.