In his 1973 paper, “Is There a Prima Facie Obligation to Obey the Law?” M.B.E. Smith posits that the questions asking, “have the citizens of any government a prima facie obligation to obey the law?” and “what governments enjoy legitimate authority” are two distinct questions, and thus should not be conflated. It is my contention, that while these two questions are—and should be kept—separate, the latter can inform the former. Smith argues that “although those subject to a government often have a prima facie obligation to obey particular laws (e.g., when disobedience has seriously untoward consequences or involves an act that is mala in se), they have no prima facie obligation to obey all its laws" I believe that this statement is incorrect.
…show more content…
In some instances, such as those proposed by George Klosko, consent must be universally agreed upon, and he proposes a number of necessary conditions which ought to induce an obligation to obey the law. Alternatively, theorists like John Rawls (whose ideas on legitimacy were not yet fleshed out at the time of Smith’s paper) argue a view of “hypothetical consent,” whereby “everyone would consent to a scheme of governing principles, or would have good reason to consent, under fair conditions.” The reality of pluralism, though, makes unanimous consent and to a lesser degree hypothetical consent, untenable. One of the original, and principal proponents of the idea of pluralism, Isaiah Berlin, stated of pluralism, that there is a “conception that there are many different ends that men may seek and still be fully rational, fully men, capable of understanding each other and sympathizing and deriving light from each other.” Pluralism is relevant to the debate on the obligation to obey the law, because people are diverse in human life, and conflict is
In some instances, such as those proposed by George Klosko, consent must be universally agreed upon, and he proposes a number of necessary conditions which ought to induce an obligation to obey the law. Alternatively, theorists like John Rawls (whose ideas on legitimacy were not yet fleshed out at the time of Smith’s paper) argue a view of “hypothetical consent,” whereby “everyone would consent to a scheme of governing principles, or would have good reason to consent, under fair conditions.” The reality of pluralism, though, makes unanimous consent and to a lesser degree hypothetical consent, untenable. One of the original, and principal proponents of the idea of pluralism, Isaiah Berlin, stated of pluralism, that there is a “conception that there are many different ends that men may seek and still be fully rational, fully men, capable of understanding each other and sympathizing and deriving light from each other.” Pluralism is relevant to the debate on the obligation to obey the law, because people are diverse in human life, and conflict is