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 apply. 
• 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 judge?
• 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!!

[Quiz:Attendance only!]

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 be unjust:
• 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 God.
• 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 laws.