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"We are better off living under the rule of law than outside it" Does this imply that we are obliged to obey the law?An Englishman is washed up on an uncharted island and finds himself in a state of nature. There are fierce creatures, poisonous plants and hostile savages to contend with, all of which feel no need to show him favour. Would he be better of living under the rule of law? The answer to this depends largely on what the state of nature is like. Locke and Rousseau paint relatively rosy pictures, both choosing to to assume the best of man in his natural state. Rousseau talks of the 'noble savage' [Rousseau II] whereas Locke is committed to man as a divinely created being [Locke II]. Locke thinks society is a matter of convenience, to better implement the natural laws. Rousseau takes the dimmer view that society has corrupted mankind, and that we would have been better staying in the state of nature. He does not however advocate a return. These optimistic views of nature do not fit well with what we know of human history, and of Darwinian evolution. Humans are not that far from animals. Competition and survival of the fittest are still important parts of our nature. Indeed, if Darwin was right, then the state of nature would have to be a constant hard struggle in order for natural selection to be an effective force for evolution. Consider also human history - a constant cycle of struggle and conflict between warring peoples that goes back as far as any recorded history, and probably much farther. While Hobbes was alive well before Darwin, he saw in the state of nature the same constant struggle for supremacy [Hobbes, VIII]. He described a state with everyone competing for limited resources; a war of all against all in which our lives would be constantly under threat; a state that should be avoided at all costs. Anything would be better than this chaos. However, while Hobbes apparently has little faith in human nature on an individual level, he seems to have excessive faith in human nature on the level of sovereign. If in a state of nature one must constantly fear the power of other individuals, then surely the power of the state must give cause for greater fear. It is a far greater power, but in the hands of the same mere humans. If I cannot prevent one man with a gun killing me for my goods, how can I prevent one man with an army from doing the same? So would our Englishman be better under a state of law? What if he had been washed up on an island with a society. If the laws stated that all foreigners were subject to slavery (a common enough law through history) then he might be better off risking the wild animals. However, while the worst state of law may be less beneficial than the state of nature, the state of nature is still probably something we would wish to protect ourselves from. In any case, the best scenario for our Englishman in the state of nature is a pleasant agrarian lifestyle. Subsistence living leaves no time for development of art, science or culture. Indeed, in the state of nature there is very little use for these things. Thus, if the development of the human condition is a good thing, and society is required for it, then we are better off in society than in a state of nature. For a society to remain stable, it needs laws. Therefore, while it is possible that we might be worse off living under a rule of law, for human progress to be made we must take the risk. Does this imply we are obliged to obey the law? Why is anyone obliged to do anything? Generally an obligation arises from an agreement - either explicit or implicit. If I make a promise, I am obliged to keep it because I explicit say that I will. If I take an item from a shop, I am obliged to pay for it by the implicit agreement between vendor and customer. One way to demonstrate our obligation to the state is to try and demonstrate some sort of consent. An explicit consent to obey the law is uncommon to say the least. In some countries naturalised citizens must make some sort of pledge to their adoptive country, but native citizens rarely do. I am a British citizen, and certainly I have never explicitly consented. Consider our Englishman, but this time he has been washed ashore on an island with a well developed society. He still cannot leave, but he finds himself subject to the society's laws merely by virtue of the fact that he is on the island. Is he obliged to obey? Provided he never voices his consent, or does anything to imply consent, then there is no reason he can be obliged to obey. Compare to a child born to our society. The child did not choose its society, any more than the Englishman chose which island to be washed up on. If the Englishman is not obliged to obey then neither is the native child. The only difference is the possibility that the native child's parents or ancestors may have explicitly consented and bound their descendants to the same agreement. While the idea of a person committing their entire bloodline to a contract may be acceptable in some traditions, in others it is not. Assume the Englishman does not explicitly consent to the laws. Can he be bound by an implicit consent? It might be reasonable to say that if he participates in the government e.g. through voting, he consents to the system, and thus to its laws. This holds even if his chosen part do not get in. By participating in a vote, you tacitly agree to be bound by its decision. Just as if I ride the train I implicitly consent to pay, if I utilise the public services by driving on the roads or leaving my rubbish to be collected, I am implicitly agreeing to pay for it by paying my taxes. However, what if we don't partake at all. Maybe our Englishman does his best to keep out of society entirely. Even in this case he is probably enjoying the protection of the state. While he is within its jurisdiction he will be protected from the island's wild beasts, and from attack by other islanders. One cannot claim this as implicit consent however. Our Englishman cannot leave the island, so he has no choice but to remain within the protection of the society [Hume]. A different criticism of the idea of obligation by implicit consent is: what if the state does not uphold its end of the bargain? What if the roads are unkempt, or the rubbish is left uncollected? What if my chosen party is elected, then reneges on all its promises? In this case, even if I had explicitly consented to be bound by the law, if the other party breaks their end of the agreement, then the agreement is void. Governments are reneging on promises so often it is hard to claim anyone can be bound by consent. One last kind of consent is hypothetical consent. This says that a rational person would, if given the choice, consent to the state of law over the state of nature, and that this hypothetical consent is as good as actual consent. This is problematic as it makes assumptions over what a rational person would do, and about the state in question. We have already discussed whether the rule of law is necessarily better than the state of nature, and it is quite possible that a person might rationally reject the rule of law, especially if the state was particularly brutal. A more fundamental problem is the assertion that hypothetical consent is in any way equal to actual consent [Wolff, pp48-50]. So if the idea of obligation through consent, be it explicit, implicit or hypothetical are all flawed, what other mechanisms could be used to imply an obligation to obey the law? Do we have a moral duty for instance? This could only be true if the laws were moral. It would surely be a contradiction to claim we were morally obliged to obey immoral laws? In which case, our moral obligation to obey the law is not because it is the law. Rather it is derived from some other standard, and therefore it is to this other standard that our obligations are due. Lastly, one could make an argument along the line of the tragedy of the commons. One person may decide not to obey the law, and it may have little impact. But if the people all individually decided this, the law would become meaningless and we would revert to the state of nature [Hampton, pp106-111]. By this argument, we are obligated to obey the law because the very existence of the law depends on my obeying it, and the welfare of others depends on the existence of the law. In the case of our marooned Englishman, this last may well be binding. If he turns up on the island and refuses to obey the law, and manages to convince the populace that he is under no obligation to, there is a real danger the populace will decide that they are not going to obey the law either. Anarchy descends, and the society reverts back to the state of nature. The Englishman has destroyed a culture, and possibly endangered the lives of all the islanders. Generally, we are better off living under the rule of law than outside it, and we are obliged to obey the law - not because we consent, but because to not obey defeats the object of living under the rule of law. Bibliography
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