Do we really have to follow the law?
Many individuals assume that laws compel us to follow them solely on the basis that they are laws. Joseph Raz sought to dismantle that shared position in The Authority of Law, when he made an argument against there being a general obligation to obey the law. To Raz, although there is a rule, it does not create a duty to follow the rule. This assertion shocked the conscience of lawyers and philosophers as it undermines one of the foundational principles of legal order.
Authority is the heart of Raz's thinking. Authority is not only about orders or threats. It is about guidance. Raz took the position that the law claims the authority to guide people to act. A claim, however, is not necessarily the same thing as authority. To say that the law claims authority only describes what it claims to do. The burden of proof to show that laws really have authority requires an additional justification.
Raz articulated this with what he identified as the "service conception." The purpose of authority is to enable better agency on the reasons that people already possess. Authority does not itself create obligations out of thin air. Instead, authority comes in to enable people to comply with their reasons that were both established outside of the authority itself. Think about this from the standpoint of using a GPS for instance. You have a reason to go from point A to point B. The reason did not come from the GPS. The GPS makes it considerably easier to act on the reason in front of you. The law is supposed to function in a similar manner to that analogy.
The implications for this view are sharp. If the law conforms and really does enable our ability to act in support of the reasons we already have, it may create obligation. If the law does allow us to act, it loses its claim to authority. A legal rule does not have to be authoritative simply because it has been created through official channels. It must earn its force by the way it operates in the world. This is what Raz was denying in stating that there is not a general obligation to obey the law. He was not suggesting that disobedience is always right, he was suggesting that it is not possible to justify obedience in every case as legal.
Ordinary examples illustrate how this comes about. Consider, for example, a speed limit that is located near a school. The rule advises the driver to not exceed twenty miles per hour during certain times. It makes sense in terms of protecting children. Most drivers already believe that safety is a good reason to drive safely so establishing a limit helps the more general expectation that the driver will drive in accordance. Again, in this case, the law earns its authority.
Not all rules achieve this. Consider a parking law that is complicated and inconsistent. The times are constantly changing and the signs you see are not easy to understand. A driver may have a good reason to park responsibly but the law makes an otherwise responsible driver unsure. This is what Raz would suggest was a failure of the claim to authority of the rule. It is a rule in the books, but it does not create an obligation to obey. There could be a good practical reason to comply with the rule, but that is not authority.
Raz's position takes away the comfort of believing that legitimacy represents obligation. Stability is usually based on this very assumption. Suggesting otherwise seems to elicit chaos. Raz's point, however, is not to endorse chaos. He believes that many laws do succeed in laying claim to authority. The worry is the shift from "many" to "all." By denying the law an automatic right to obedience, it compels us to think more deeply about which laws serve their purpose, and which do not.
Raz was not an anarchist. An anarchist might say that law never creates obligations in the first place. Raz was not as extreme. He acknowledges that the law often does create obligations, but only under certain conditions. These are practical conditions. The law must provide a consideration that provides guidance to individuals in acting on reasons they already possess, which the law can do better than they could achieve through acting in their own capacity. Where these conditions are satisfied, obedience follows, and where these conditions are unsatisfied, the claim collapses.
This view does affect how we view legal systems. It suggests that lawmakers cannot rely on formal validity. It is not enough that a statute passes through proper procedures. Law (authority) is related to the capacity of the statute to function effectively as a guide. If it doesn't function as a guide to action, then it may still have force through coercion but not authority in Raz's sense. The difference is important. Force coerces through threats, authority persuades through justified guidance. A healthy legal system must strive for the latter and not the former.
Critics have been concerned that Raz's position may weaken stability. If people think there is no general obligation to obey, would they not be able to pick and choose which rules to follow? Raz responds, his position is simply a description of reality. Citizens already do assess the merits of laws, often on an unconscious basis. Citizens usually obey those rules which they find reasonable, and tend to disobey those which appear to them to be arbitrary or somewhat nonsensical. By allowing this conversion process, it is not Raz's intention to undermine the law, but merely to describe how authority operates in fact.
The theory may also reconfigure debates about civil disobedience. Whereas traditional accounts will often treat civil disobedience as a violation of one's duty to follow the law, which is done so for a more important reason, on Raz's account, just because the law fails to perform its guiding role, doesn't mean that there is a duty to violate it in the first place. The reframing does not get rid of the costs of civil disobedience, rather it changes the moral landscape. On occasion, civil disobedience may be less about violating a duty, but rather, about your refusal to accept a claim, without proper justification(s).
In practice, Raz's story confirms something like an underdog narrative, or at least a normative burden narrative where the law comes to serve the community ethically. Take segregation laws for example. Kelsen might say that those laws, while not ethical, were nevertheless counting as lawful because they were validly enacted. Raz will not deny its legal validity, but rather argue that laws that deny the authority they claim to assert, are authority-less. Those laws did not help citizens act on the reason they already had, that is the dignity and equality of all people, rather they undermined those existing reasons. The authority of those laws collapsed into coercion alone.
For citizens, Raz's argument functions the dual purposes of (1) being empowering, and (2) being sobering. Raz's argument is empowering because it shows, under this circumstances, that the law calling for blind obedience is not required. Raz's argument is sobering because it shows, ethically-speaking, where and when citizens ethically and legitimately obey, it lies at the mercy of those who put the law in place all together, either lawmakers or judges, to day, the law cannot simply rely on formalities alone, it must substantiate itself by providing guidance to citizens in ways they cannot do as well themselves.
When the question when "Do you really have to follow the law?" there is not one specific answer. For Raz, the answer remains contingent. While some laws, in fact, do make claims of genuine obligation because they fulfill this guiding role. Other laws, do not. The law makes claims of authority in all cases, those claims are not always, valid. In any society, the difficulty is to create a legal system where those claims are more often true than not true. When a legal system does that, the law achieves the authority it is seeking.
