Traditionally, natural law theorists and positivists opposed on the question to determine whether one has a moral obligation to obey the law. Following positivists’ arguments, I would argue that we might have to obey the law for practical reasons or even moral reasons but that it is never grounded on the simple declaration “because the law says so”. This question necessarily challenges the view one has of political authority and legal validity. Classical natural theory asserted that the validity of a rule necessarily depends on whether it conforms to moral standards because those who do “bind in conscience”. Law plays a normative role in such a theory. On the opposite, positivists such as John Austin or H.L.A Hart believe that the legality of law is independent from moral considerations and is only a matter of factual requirements. Positivism highlighted this view with their separation thesis in which one cannot assert a law is just because it has the status of law nor that one can guarantee that a subject ought to do what the law requires. The essential property of the law which is promulgation (whether in Austin’s thesis the focus is put on who promulgates the law – the sovereign or Hart’s analyses of how it is promulgated – after it satisfies a set of secondary rules) does not give rise to a moral obligation. These theorists indeed tried to argue that the moral obligation to obey the law depends on features that are not essential to the existence of a legal system and that when missing then do not affect the effectiveness of such a system. I would argue that the identification of law being a matter of factual conditions can’t give rise to an obligation of a moral nature and thus can’t be derived from moral obligations as consent, fair play or co-ordination matters as it has been previously argued. The past debates have focused on the determination of such an obligation when the law was “grossly unjust” but what will be asserted is no obligation exists even when the legal system is just.
According to Finnis, law is the instrument to promote the common good and help one to achieve the realization of the basic human goods. A law is valid because “it takes place in a scheme of practical reasoning whose practical starting point is the range of basic ways in which human well-being can be promoted and protected, the way picked out in practical reason’s first principles”. Law is described as “seamless web” that is as being the common denominator for men’s action and thus serve co-ordination purposes. Coordination appears through a legitimate authority to promulgate valid laws which and offer a necessary clarity and the identification of practical solutions due to the variety of actions available for one person. “It is the value of the Rule of law that gives the legal system its distinctive entitlement to be treated as the source of authoritative solutions. It is important because recalcitrance is always possible even when one benefits from the cooperation. Although Finnis acknowledges the possibility that one may have other considerations to obey the law, he asserts that law comes as an authoritative source to help you choose when confronted to different basic human goods, as to tip the balance in favor of the obligation voiced by the law. Therefore, law might have a moral force here. As he puts it, “one aspect of the common good is being a ‘law abiding citizen and to be a law abiding citizen requires obeying the law even when one does not see an independent reason to do what the law requires”. The identification of the solution helps determine the pattern of behavior that one must adopt and from which the benefits depend.
Whilst Positivists agree, they refute the argument that moral and laws have to be necessarily connected. Indeed being legally obliged does not entail being morally obliged. One of the most contributive philosophers on this theory appears to be H.L.A Hart to whom an obligation is general demand for...
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