Wellman and Simmons, Is There a Duty to Obey the Law? For & Against, reviewed by David Wrobel (NYLJ)

Is there a duty to obey the law? If one understands the question on more than a superficial level, one must ask what is meant by “duty,” what is meant by “obey,” and what is meant by “law.”

It might even depend on what the meaning of the word “is” is.

Christopher Heath Wellman, an Associate Professor of Philosophy at Washington University in St. Louis, and A. John Simmons, a Professor of Philosophy and Law at the University of Virginia, were asked to take opposing views to the question. As debated by these two very capable scholars, the issue is whether there is a “moral” duty to follow the laws of the country in which you live, a duty you would be ethically obligated to follow even if you were not required to do so under threat of penalty.  Put another way, the question is whether political states have the right to coerce their citizens.

“Is There a Duty to Obey the Law” is one of a new series of  “For and Against” books published by Cambridge University Press in which academics are asked to write counter-essays regarding the same moral, social or political issue.  Other books in the series address “Social Welfare and Individual Responsibility,” “Euthanasia and Physician-Assisted Suicide” and “The Legalization of Drugs.”  If this volume is any indication of the quality of the entire series, then the publishers are creating readable and useful guides prepared by some very fine minds. They are a tonic for those who have overdosed on sound-bite debate.

Wellman takes the “for” position in the first half of the book, and arguably he had the easier assignment.  Simmons, arguing the “against” side and in favor of “philosophical anarchism,” needs to jump through far more hoops to make his argument convincing.  I must admit that I found myself rooting for Simmons, in the second half of the book, to demolish the civics lesson contained in the first half.  In my opinion, and to my chagrin, the anarchist could not beat the bourgeoise “statist,” who, it turns out, makes an exceedingly convincing case for why one should be happy to pay taxes.

Wellman’s argument follows a familiar course, but it is freshly articulated.  He starts with the assumption that a world without law would resemble the Hobbesian state of nature, yet he does not require the reader have a negative view of human nature to agree with his arguments. He persuasively points out that even a society composed entirely of well-intentioned and peace-loving individuals would be unable to maintain social order for long without the assistance of a government that is given a monopoly on the legitimate use of force and the duty to dispense independent justice. (And if anyone needs to see what the lack of a strong central government can result in, look at Iraq.)

From this premise, Wellman moves to the unassailable proposition that “virtually no one denies” that there exists a moral duty to save a baby drowning in a shallow pond, “even if this rescue requires one to get one’s shoes and trousers wet.”  This “Samaritan” argument leads inexorably to the conclusion that obedience to the State is a small price to pay for the myriad benefits that are conferred upon us all by having a government.

But Wellman concedes that there exist illegitimate regimes, and that even legitimate regimes can enact immoral laws. For this reason, he ultimately admits that the moral duty to “obey the law” is not absolute.

In the second half of the book, Simmons presents a creditable case against the existence of a moral duty to obey the law, but not all his arguments hit their mark with equal strength.

Simmons maintains, for example, that one is not actually “obeying the law” if one follows a set of moral principles (not stealing, not murdering, etc.) that the law just happens to “piggyback.”  True as this argument may be as a matter of logic, it feels like semantic wordplay.

And when Simmons argues that morally reprehensible regimes (e.g. Nazis)) and repugnant laws (e.g. fugitive slave laws) are not entitled to respect, much of his thunder has already been stolen by the Wellman’s prior concessions.

Simmons is at his best and most convincing when he simply refuses to acknowledge that any individual has the “natural duty” to submit to a sovereign authority as a matter of principle.  To prove the point, Simmons presents a hypothetical scenario to counter the “drowning baby” story.  He notes that Oxfam is a well-run and well-intentioned charity that works to eliminate hunger and suffering in the world. He asks the reader to imagine “an enormously expanded and impossibly efficient Oxfam” that everyone would agree is an “unqualified good thing.”  Would there exist a moral duty to donate to this organization? Simmons says the answer must be “no,” and for similar reasons he believes that no government — no matter how well-intentioned or good — has the moral right to demand our obedience.

Both essays in this book are presented in an intelligent and polite manner.  One gets the sense that either writer could have taken the position of the other, and in the end their differences are not that great.  Despite his best attempt at defending “philosophical anarchism,” Simmons’ essay is unlikely to be taken as a manifesto by any political firebrand.  And despite his apparent defense of the status quo, Wellman argues powerfully for the need to oppose and confront unjust laws and illegitimate states.

This book is not recommended to anyone who wants to know the answer to the question in its title.  It is recommended to all those who recognize the value of the question, and its need to be debated in every generation.