Liberty, Prudence, Imperfection, and Law

“Law Abidingness: A Virtue and Its Limits,” By Bruce Frohnen

Augustine advises that laws must be enforceable and cannot take the place of religion.

Is it virtuous to abide by the law? One certainly would be forgiven for believing that it is not viewed as such in our current political climate. What with public disdain and murderous violence toward the police and constant claims of bias and injustice in our legal system, it is hardly surprising that lawbreakers appear to draw more praise than criticism in some quarters. Part of the reason for this situation may be the modern take on law as, in John Austin’s terms, merely an order backed by the force of the state. A number of legal scholars have written on the supposed lack of any intrinsic obligation to obey the law simply because it is the law. This is the upshot of at least one academic school of thought (critical legal studies) and arguably several more. Then there is the religious take on law. Catholic natural law theory is said to posit that “an unjust law is no law at all.” And this would mean that the legal pronouncements of any particular government are open to question and rejection by individual conscience.

One might counter this position by pointing to the impossibility of maintaining any functioning society (or chance for people to lead peaceful, decent lives) in the absence of settled rules, generally obeyed. On this latter view, law is a kind of mutual defense pact. We obey the law so that we will not have to obey the most powerful or unscrupulous among us. There may be some truth behind this calculation. But it seems doubtful that a society could function well over time with fear as the only grounding for law; too many people are tempted too often by too many benefits for breaking the law.

Do we then need a myth of law-abiding virtue? Is it necessary that we believe we have a duty to obey the law, even when no one is looking, so that the mutual defense pact can survive? It seems far more likely that people (and especially academics) today have misread the proper grounds of law and law-abidingness. This misreading has become more prevalent even as, and perhaps because, the application of law has been extended far beyond its proper, defensible realm.

The rather superficial reading of natural law as undermining law-abidingness is dealt with relatively simply. Neither Augustine nor, following him, Aquinas baldly stated that an unjust law is not law. The phrasing used is more like “an unjust law seems like no law at all.” Aquinas wrote that “the force of a law depends on the extent of its justice” and “every human law has just so much of the nature of law, as it is derived from the law of nature.” The clear implication is that law by nature aims at justice, such that unjust (or “crooked”) laws are imperfect—perhaps even radically so. Particularly, Aquinas’s understanding of the high value of social order and the need for prudence and humility results in a heavy preference for law-abidingness, qualified only by the higher duty to refuse commands to violate fundamental natural law.

More generally, it is helpful to remember Aristotle’s conception of virtue and excellence in pursuit of a good. Order being necessary to a good life lived in common (the highest political good), acting so as to support the legal/political order would seem a necessary virtue of social and political life. In most of its iterations, law’s form and function bear out this understanding. We have laws against theft, for example, because such conduct undermines public trust and property rights. To violate the law against stealing, then, is wrong in two senses: it involves theft, itself a bad act, and it involves going against the law.

The problem with the virtue of law-abidingness seems to arise in the context of things that are illegal but not wrong in themselves. Such laws are neither so common nor so necessary as some might aver. Traffic regulations, for example, often are seen as establishing violations that are wrong solely because the law says so. But most sensible traffic laws are rooted in the need and duty of people to act with reasonable care for the safety of others. Speed limits, unless manipulated for reasons of income generation, aim to keep traffic at safe speeds. The real problem comes about with complex regulations. Is it morally wrong, for example, to forego purchasing health insurance? For a vendor to describe flower bulbs to its customers in a manner other than that prescribed by regulation? The thousands of regulations to which American citizens and businesses are subjected in the name of “fairness,” “the environment,” and numerous other lofty goals increasingly seem to make “criminals” of us all, thereby undermining the legitimacy of law.

This is not to say that laws always must punish the bad and reward the good. Augustine famously advised against outlawing prostitution because, in his day, such laws could never be fully enforced and would end by, in his view, destroying various useful social institutions in the feckless drive to end the sin of fornication. Government cannot punish and reward in the same way and toward the same ends as religion because that would require an omniscience and omnipotence impossible to achieve and deadly to order and liberty in the attempt.

This is why the virtue of law-abidingness needs to be understood in the context of the purpose of law. Laws ought to be obeyed provided they tend to support the common good. Law cannot eliminate sin. It cannot make us all virtuous. It must aim at supporting the institutions, beliefs, and practices within which we can pursue a good life in common. This is, thank goodness, a limited task capable of reasonable performance by reasonable laws. The difficulty, for we who live in overregulated nations whose governments seek to subject all of life to law, is deciding when and how to oppose laws that interfere too much with the normal functioning of civil society. The general answer, within a legitimate government, is that we should seek to change the laws by arguing for better ones within the lawmaking institutions established in our communities. The most tragic question for any society concerns when that legitimacy, requiring loyalty to existing structures, has been truly and finally forfeited.

 

Bruce P. Frohnen is Professor of Law at the Ohio Northern University Pettit College of Law.

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