Christopher Hurtado

Facts

This case consolidates several different cases from Delaware, Kansas, South Carolina, and Virginia. Several black children sought, through legal representation, admission to public schools that allowed or required racial segregation. The plaintiffs alleged that racial segregation was unconstitutional under the Equal Protection Clause of the Fourteenth Amendment.

A three-judge federal district court denied the plaintiffs relief under the “separate but equal” doctrine in all but one case, citing Plessy v. Ferguson. The plaintiffs appealed to the Supreme Court, contending that segregated schools were not equal and could not be made equal and that the plaintiffs were therefore deprived of equal protection of the laws.

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Is there a moral obligation to obey the law?

Is it immoral to ever disobey any particular law no matter what the law or reasons? It seems it depends on the law, the situation and one’s reasons. When considering whether we have an obligation to obey the law, some would answer that it depends on what is meant by “law.” By law do we mean moral law or man-made law? Martin Luther King, Jr., a premier example of civil disobedience in our day, wrote in a letter to his fellow clergyman from jail in Birmingham regarding unjust man-made law that “injustice anywhere is a threat to justice everywhere.” According to Augustine, an unjust man- made law is really no law at all. While there seems to be a legal and moral responsibility to obey just laws in this view, there also seems to be a moral responsibility to disobey unjust laws. Just law can be understood as man-made code that is consistent with moral law, whereas unjust law can be understood as human law not rooted in eternal and natural law.

Others, like Mill would answer by appealing to the principle of utility. In his view, the law does not add anything to the morality of the situation. There is no moral obligation to obey the law. It is the consequences that matter. The question then becomes, are the consequences of my disobedience good overall, or are they harmful? Kant would ask, what if everyone did it? His categorical imperative claims that if one can will one’s maxim to be universal law without contradiction, then one’s maxim is moral and one must act on it. Otherwise, it is not moral and one must refrain from acting on it.

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Dworkin’s main objection to Hart’s positivism is that the law ought to “take rights seriously.” If Hart’s claim that the adjudication of a hard case rests upon a judge’s personal opinion, intuition or his exercise of strong discretion, then rights are seriously compromised. In Dworkin’s view, rights are more important than other considerations such community welfare. Rights must not be subordinated to the interest of the community. They must be recognized as a part of the law. Dworkin argues that history provides more support for individual rights and liberty than legal positivism does.

In Lost Empire, Dworkin attacks conventionalism and pragmatism. According to conventionalism, law is a function of social convention-cum-legal convention. In other words, law simply consists in following convention. In this view, judges may exercise strong discretion in adjudicating. Continue Reading…

Hart distinguishes between social habits and social rules. While following social habits is habitual, breaking them does not bring about harsh criticism or censure. Breaking social rules on the other hand does. Social rules seem to bind us and laws seem to be social rules. There are two perspectives to this: the external aspect and the internal aspect. The external aspect is the independently observable fact that people do tend to regularly follow the rules. The internal aspect is one’s sense of obligation to follow the rule. It is from this aspect which the law acquires its normative quality. This aspect is also know as the “critical reflective attitude.” Hart calls the populace’s obedience of a rule “efficacy.” For a law to be efficacious, the majority of the populace must follow it. While the average citizen of a modern state with a developed legal system may feel compelled by the internal aspect, it is more important for the officials of the society to feel compelled by it since they must follow constitutional provisions they could ignore with impunity.

Laws are more than just rules of conduct. There are two types of laws: primary rules and secondary rules. Primary rules are rules of conduct. Secondary rules are rules that apply to officials and govern the execution of primary rules. Secondary rules address three problems: The first is the problem of the uncertainty regarding what the law is. A secondary rule Hart calls “the rule of recognition” states the criteria for the validity of laws. The second is the problem of the rigidity of rules. This problem necessitates “rules of change” which govern changes in the law. The third is the problem of how to resolve legal disputes. This problem gives rise to “rules of adjudication.”

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Natural law refers to an objective set of principles independent of and higher than human law, knowable by human reason and upon which human law is based. In religious terms, natural law refers to the human understanding of divine law or the laws of nature. In non-religious terms, it refers to an objective set of principles necessary for human prosperity which constrain human actions and social arrangements. In either case, natural law is universal and unchanging. Its principles are in accordance with human nature and conducive to human flourishing and are thus binding on human conscience. Some natural law theories argue that human laws that do not to conform to natural law are not rightly called laws; others note that these laws fall short, but allow that they can be called laws nevertheless.