The Binding Power
of Human Law
1. Wolff argues that human beings should take responsibility
for their own actions. But to take responsibility for one’s actions requires
that one be the final arbiter of their morality. Sure, we can learn from
others: namely, we can listen to see if others convince us. We do not,
however, accept something from someone just because they say so.
- This means that there is no room for obedience as
such. Sure, most of the time we should do what the laws say, but that is
because our own judgment of the situation says that the morally
right thing to do is not to introduce disharmony in society. It is not
because the law somehow has some authority. We ourselves should judge
what is and what is not to be done. The choice is ours: we answer for it:
we must make it ourselves.
- Of course our choice must take into account all the facts.
One of these facts is the fact that someone powerful and influential
wants us to do something. But we take this fact into account. It
is not a decisive consideration.
- The views of the Crito and Aquinas were that one
must obey the state unless the laws fail to meet certain
conditions. For Plato, there was only one condition: One must disobey if
the law tells one to do something immoral. For Aquinas, there are two other
exceptions. Laws not intended to benefit society and laws that impose
disproportionate burdens on some individuals are unjust and in general need
not be obeyed, even if what they command is not immoral.
- Wolff, however, holds that one must obey the state only if
there is sufficient other reason beyond obedience.
- Consider a specific case to see how the different views
- Case 1: The government believes that space exploration is very
important and imposes a 50% sales tax on books and magazines to fund space
exploration. This is a bad law. After all, it will discourage the purchase
of books, and having the people read is probably more important than exploring
space. Question: Is it morally acceptable for a bookstore in a small
town, far from any tax inspectors, to skip collecting the tax, assuming
they can get away with it without lying to anyone?
- On the view in the Crito, no. For it’s not
immoral to collect a tax on books.
- On Aquinas’s view, maybe. For the law seems to impose an unfair burden on the segment of the public that reads, a burden disproportionate to the goal achieved. On the other hand, the burden is equal.
And whether it is disproportionate or not is maybe for the government to
- On Wolff’s view, yes. If the bookstore makes its
judgment independently, it sees that there is no need to obey.
- Case 2: In order to make the population more physically
fit, the government decrees that every able-bodied citizen should exercise
for 30 minutes each day. Since the exercise may be done in the privacy of
one’s own home, there is no legal enforcement of this. Bob, while
able-bodied, has a rare disease that will suddenly kill him any day in the
next week. Sure, he can exercise, but the health benefits in his case
will be nil. Can he skip the exercise?
- On the view in the Crito, no.
- On Aquinas’s view, maybe not. The law imposes an equal
burden on every able-bodied citizen. Including exceptions in the law
would make it difficult to figure out when to stop giving exceptions, and
people would “stretch” the exceptions. Bob should probably obey.
- On Wolff’s view, yes. If Bob makes his
judgment independently, he sees that there is no need to obey.
- Now Wolff agrees that we can defer to others on technical
matters—e.g., medicine. But we cannot on moral matters. Thus, we perhaps
would have to obey the state in respect of many laws where the
justification is given, say, in terms of economics, if we are not
ourselves economists, since this is a technical matter, not a moral one,
unless it is utterly clear to ourselves that the government gets
the economics wrong.
- A practical problem with Wolff’s view. Probably our
judgment as to when it is reasonable to disobey would in practice often go wrong. Thus, it is likely that if everyone accepted Wolff’s
view, we would have a society that is very poorly run, because people
would constantly be making exceptions for themselves instead of deferring
to the judgment of authority.
1.9. "Objections" aren't Aquinas' own view!!
2. What Aquinas calls “human law” is laws created solely by human beings. St. Thomas Aquinas (13th century philosopher and theologian,
Dominican friar, one of the most influential theologians in the Western Church)
distinguishes between natural law which is binding on all human beings
no matter what—this is the moral law—and human law, the law that
human beings produce.
- The moral law, according to Aquinas, is to fulfill our nature.
- The question is whether human law “binds a man in
conscience”, i.e., whether the moral law requires us also to obey
the human law. Aquinas eventually gives a qualified “Yes.”
- We first get three objections, however.
- Conscience is something divine, and the human cannot make
an imposition on the divine.
- Sometimes human law goes against divine law and then it
should be disobeyed.
- Sometimes human laws are oppressive, and it is always
morally acceptable to avoid oppression.
- Then we get a passage of Scripture suggesting that it is
worthwhile to suffer undeservedly while obeying those in authority.
- Aquinas then gives a nuanced account.
- Human beings are parts of communities. That is
our nature. We are social beings, “political animals” (to use
Aristotle’s phrase), beings whose fulfillment requires a community. Since
morality requires us to follow our nature, we need to act as harmonious
parts of communities. Now it is sometimes the case that a part of a
whole needs to be sacrificed for the benefit of the whole. For instance,
it is acceptable to take antibiotics even if they damage the digestive
system, since the digestive system is a mere part of the whole body, and
hence its nature is to serve the whole.
- This means that human beings must do their bit for their
communities. In particular, they must obey just laws. But not
all laws are just. For a law to be just:
- It must have the right purpose: the common good.
- It must have the right form: it cannot impose a
disproportionate or unfair burden on any one human being.
- Aquinas then distinguishes multiple ways that a law might
- It could be contrary in purpose to the human good.
- It could be promulgated by someone who lacks authority.
- In both of these cases, the law would not be at the service of society, either because it would not benefiting society,
or because it would not be the voice of society. Thus the purpose of
the common good, i.e., the good of society, is not
served, Aquinas thinks. (Is this really the right way to look at the
promulgation requirement?) In the second case, this isn’t really a law
on anyone’s view.
- Interestingly, Aquinas does not make an exception here
for laws that in fact do not benefit society, but only for laws not
intended to benefit society.
- It could impose an “unequal” burden on some one person.
Such a law might benefit the community, but it is oppression rather than
a genuine law. Such laws do not need to obeyed, except to avoid “scandal”
(i.e., so as not to cause other people to despise the law in cases where
the law ought to be obeyed). It is unlikely that “unequal” is meant as
a numerical term. Earlier on Thomas speaks of a “proportionate”
burden. It is likely that he is speaking here of the appropriate
burden. What the appropriate burden is depends on the case.
- It could be contrary to the will of God. Aquinas
distinguishes this from a law contrary to the good of society, which is
strange since one would think that it would be bad to disobey God. Yet unjust
governments frequently justify their deeds as for the good of society. For
instance, a Roman Emperor might say that worshiping the Emperor is good
for the cohesion in society. Aquinas thinks that even if it is
good for society, it is still wrong if it is contrary to the will of
- So, on the positive side, a law must be reasonable, have the good of the community in mind, spread burdens fairly, and be promulgated by someone who has authority.
- Finally, Aquinas responds to the objections. (1) Since
governments receive authority from God, it is not that human power is
superior to the conscience we get from God: both are from God. (2)-(3) The
argument that some laws either must or can be disobeyed only applies to some