The claim by Sally McManus, the new head of the ACTU, that when the law is unjust, ‘I don’t think there is a problem in breaking it’, returns us to a deep question in political philosophy: Why should I obey the law and the state more generally?
The howls of outrage from the Prime Minster and some of his colleagues (as well as The Australian ) about her claims, are part political theatre, but also hint at the challenges these questions raise for self-consciously liberal societies.
What is political obligation?
To have a political obligation is to have a moral duty to obey the laws and support the institutions of one’s political community. In fact, I think political obligations are a broader category of duties than strictly legal obligations. The two can come apart. For example, I might have a legal obligation to pay tax in a deeply corrupt state, but not necessarily a moral obligation to do so.
So the hard question is how we come to actually acquire political and legal obligations. Is it through birth, or through consent? Or do we have ‘natural duties’ that flow from the existence of already reasonably just institutions. But what counts as ‘reasonably just’? And what are the conditions under which we might be ‘released’ from those obligations, if ever?
The PM surely doesn’t believe we must always obey the state – he cut his teeth as a young lawyer challenging the British government’s attempt to ban Peter Wright’s Spycatcher in Australia. On the other hand, McManus surely doesn’t believe we can simply opt out of every law we disagree with. Civil society would quickly become very uncivil.
The argument from fair play
The question of the duty to obey the law is an old question and the subject of one of Plato’s most famous early Socratic dialogues. In the Crito, Socrates engages in an intense conversation with his followers about whether or not he should flee the city that has just condemned him to death. In the end, he decides he should not, mainly because he feels it would involve breaking the commitments and agreements he has made with his fellow citizens and the city that has done so much to nurture and shape him.
Socrates makes a number of arguments in the course of the dialogue, but perhaps the most resonant for us today is an appeal to fairness. He suggests that to disobey the law would be to mistreat or disrespect his fellow citizens. If I have constrained my freedom to be bound by the law, under the premise that others will do likewise, then it’s unfair if you choose to disobey the law whenever it inconveniences you. The city can’t survive, let alone flourish, if that was our general attitude towards each other.
There is a gloriously robust literature in moral and political philosophy on the nature of political obligation and especially the argument from fair play. They key issue here, as far as McManus’s claim is concerned, is whether or not the laws we are subject to are indeed constitutive of a reasonably just, mutually beneficial, collaborative society. This generates the obligation to take on your fair share of the burdens of sustaining such a community. And so a general obligation to obey the law is grounded in the principle of fair play – doing your part to sustain a community you benefit from by others doing theirs.
One problem with this argument is that it might be too weak. How can my not obeying the law in some particular circumstance really undo a large-scale society like Australia?
On the other hand, a simple though experiment suggests it might also be too strong. Imagine a situation in which someone on your street mounts an impressive display of Christmas lights every year. Everyone on the street enjoys the lights enormously. But the following year, your neighbor turns up on your doorstep and insists that it’s your turn to do it this time. But you didn’t ask him to put up the lights. You didn’t consent to share in the burdens of doing so. And yet the principle of fair play would suggest you are so obliged.
Against political obligation?
This debate continues to rage on the pages of political philosophy journals and blogs. But it remains a critical issue too for contemporary politics, where people disagree vehemently about significant political, social and economic issues.
If we really don’t see our community as bound by laws that enable us to cooperate together in a mutually beneficial way, then it’s not clear that we have established a genuine political community in the first place. Citizenship surely involves more than merely a transactional relationship with others in our community.
On the other hand, given the extraordinary powers of the state, the conditions under which I become obliged must surely be stronger than merely being a member of that society. Don’t the laws themselves have to be just? Or, to return to a point I made above, don’t we have a general political obligation only if our political community in a broad sense is actually reasonably just? But is that really a feasible standard for the imperfect world in which we live? Doesn’t that mean that, ultimately, political obligation is basically impossible? (Of course, for anarchists, this is a very welcome conclusion!)
So the Prime Minister and his colleagues have overstated the case that in suggesting there might be times when disobeying unjust laws is justified, McManus is somehow advocating chaos. As a civil libertarian he should know better.
And yet McManus needs to understand that the grounds for civil disobedience must be carefully considered. It is a condition of genuine civil disobedience – as Martin Luther King so eloquently argued in his ‘Letter from a Birmingham Jail’ – that you must be willing to suffer the consequences of disobeying the law in the hope of transforming the views of your fellow citizens. You need to take the public good to heart, and not simply your own particular interests. Socrates was willing to die for the sake of his city. Martin Luther King was imprisoned and ultimately assassinated. These are perhaps the extreme cases. But it speaks to the dilemma of how free societies deal with deep disagreement, including about the nature of injustice. It’s not clear yet how far the ACTU would be willing to go.