Many accounts of the moral duty to obey the law either restrict the duty to ideal democracies or leave the duty’s application to non-ideal societies unclear. This article presents and defends a partial account of the moral duty to obey the law in non-ideal societies, focusing on the duty to obey judicial orders. We need public judicial authority to prevent objectionable power relationships that can result from disputes about private agreements. The moral need to prevent power imbalances in private relationships grounds a qualified moral duty to obey judicial decisions. The parties to a dispute are morally required to comply with a judicial order in their dispute if all of the following conditions obtain: (1) the parties’ dispute was in good faith, (2) the court’s resolution of the dispute is more impartial than either party’s own judgment, (3) the order does not call for violation of important natural duties or important artificial duties that the duty-bearer incurred involuntarily, and (4) the primary aim of disobeying the court order would be to advance an ordinary, non-political project, not to call public attention to an injustice. The moral duty to obey judicial decisions can survive significant departures from ideal fairness.
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As Viehoff (2014, p. 342) writes, while defending a democracy-based account of political obligation, ‘Many (perhaps all) existing democratic states fall short’ of even a ‘quite minimal’ standard of democratic procedure.
For defense of a position with this structure, see Simmons (1979).
Raz (1986) offers an account of the duty to obey the law that is sensitive to non-ideal conditions. Though Raz’s account includes a general discussion of the authority of states (pp. 70–109) and an explanation of the authority of a private arbitrator (pp. 41–42), he does not address the distinctive grounds for a public judiciary to have authority to resolve disputes.
The moral problem here does not always or even usually involve a risk that the dispute will be settled through violence. My account of the need for judicial authority is thus distinct from Greenberg’s view that the need for judicial authority derives from ‘the overwhelming moral importance of having a way of ending disputes peacefully’ (2014, p. 1315).
The hypothetical assumption of full compliance is one way, but not the only way, in which ideal theory can be distinguished from non-ideal theory (Valentini 2012). ‘Full compliance’ can concern either individuals’ or social institutions’ compliance with justice (Simmons 2010, p. 11). The idealization here involves individuals’ compliance.
Kant’s discussion of political obligation in non-ideal contexts focuses on the ethics of forcible rebellion, rather than on the ethics of ordinary law-breaking. For discussion of Kant’s views on political obligation in ‘despotic’ and ‘barbaric’ societies, see Ripstein (2009).
In legal language, I am discussing agreements in which a promise is offered in exchange for consideration. See Restatement (Second) of Contracts §71. Whether the sorts of agreements that contract law addresses are best understood in terms of promises is controversial. For arguments that they are, see Fried (1981) and Shiffrin (2012).
I draw this characterization of what a promise does from Shiffrin (2008).
The conflicting obligations may be merely pro tanto obligations. One or more possible resolutions of the conflict may be morally permissible even though it involves a breach of a pro tanto duty. I leave open the question whether they are dilemmas in the strong sense that every available action is morally impermissible.
This hypothetical adds more detail to a hypothetical presented in Restatement (Second) of Contracts §§ 262. The Restatement suggests that whether courts deem performance ‘infeasible’ may depend on the social importance of the goods transported.
In American law, under the Restatement rule for voidability of a contract due to a mistake, if at the time of contract both parties make a mistake about a ‘basic assumption on which the contract is made’, the contract is voidable unless the adversely affected party bears the risk of the mistake. The adversely affected party bears the risk if the parties agreed that he would bear the risk, if he knew that he had limited knowledge and decided to treat his knowledge as sufficient, or if the court finds that it is reasonable for him to bear the risk. Restatement (Second) of Contracts §§ 152, 154.
The example is inspired by Stees v. Leonard, 20 Minn. 494 (1874).
The inspiration for this thought comes from Kant’s Doctrine of Right. Kant writes, ‘Before a public lawful condition is established … each [individual human being, people, or state] has its own right to do what seems right and good to it and not to be dependent upon another's opinion about this’. (Kant, Doctrine of Right, Ak. 6:312). Since Kant thinks that the existence of courts is what distinguishes a ‘rightful condition’ from the state of nature (Ak. 6:306), I take this to mean that if there are no courts, a party to a dispute about a matter of right may do whatever seems right to her.
The difference between a public court and a private arbitrator is that a public court’s rightful authority does not depend on the parties’ consent to be governed by it.
As Rawls explains, one’s conception of the good is not the same as one’s conception of one’s welfare. People’s conceptions of the good can be altruistic, and benevolent people’s views about what goods are to be pursued can differ greatly (Rawls 1971, p. 129).
For some reasons not to count the satisfaction of impersonal preferences as a component of welfare, see Dworkin (2000, pp. 21–28).
I owe this point to Susan Long.
My argument does not rest on the idea of self-regarding duties, but if we deny that there are self-regarding duties, it will be necessary to add a qualification to the duty to obey court orders: some self-interested concerns override the duty. As Timmerman (2006) points out, including self-regarding duties in ethics is necessary to sustain the view that ethical duties are overriding.
Compare Wertheimer’s (1999, pp. 4–5, 267–269) example of the working-class truck driver who demands an exorbitant fee to rescue a wealthier driver whose car is stuck in the snow.
Judicial misconduct that violates important laws, such as laws against bribery, could undermine a judge’s moral standing to act as a public official. So could judicial violations of generally accepted professional norms, e.g. a norm against making decisions under the influence of alcohol.
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My thanks to Allyn Fives and Kei Hiruta for their invitation to contribute to this special issue and for their advice on revising the manuscript. I am grateful to Brian Berkey, Joshua Dienstag, Barbara Herman, Matthew King, Sarah Light, Calvin Normore, Amy Sepinwall, Seana Valentine Shiffrin, Alan Strudler, the members of the Wharton LGST junior workshop collectively, and an audience at the Midwest Political Science Association Annual National Conference for their helpful comments on earlier versions of this paper.
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Hughes, R.C. The Ethics of Obeying Judicial Orders in Flawed Societies. Res Publica (2020). https://doi.org/10.1007/s11158-020-09471-3
- Duty to obey the law
- Judicial authority
- Non-ideal theory
- Political obligation