Political and Constitutional Obligation

In his provocative, courageous, and original book,1 Abner Greene argues that there is "no successful general case for a presumptive (or 'prima facie') moral duty to obey the law."2 In my own book,3 I argue that there is no moral duty to obey our foundational law -- the Constitution of the United States. This Essay addresses three issues related to these claims. First, I discuss what seem to me to be important ambiguities in and problems with Professor Greene's argument. Second, I defend my own stance against criticisms advanced by Greene and others. Third, I explore the relationship between his claims and mine.I. THE PROBLEMS WITH GREENE'S ARGUMENTIn the first half of his book, Greene makes two separate claims. First, he insists that there is no general prima facie obligation to obey the law.4 Second, he defends a concept that he labels "permeable sovereignty."5 On this view, the state sometimes, but not always, has an obligation to permit individuals acting pursuant to religious or other norms to disregard the law.6Greene is not as clear as he might be about the relationship between these two claims. Greene does not think that the government is always obligated to permit conscientious objectors to disregard its laws. He makes clear that he favors a "balancing approach," under which "[t]he required exemptions would be prima facie only, permitting government to resist them through showing a compelling state interest."7The ambiguity about the relationship between Greene's two claims arises when we examine the cases that permeable sovereignty does not cover. Perhaps Greene thinks that recognition of a right to disregard the law in some cases is sufficient to establish an obligation to obey the law in other cases. Alternatively, he may believe that permeable sovereignty, although desirable, is insufficient to establish a general duty to obey the law.Unfortunately, either interpretation of Greene's argument creates problems. In Section A, I argue that if the first interpretation is right, then Greene is not really rejecting political obligation, at least as that concept is usually understood. In Section B, I argue that if the second interpretation is right, then individuals outside the realm of permeable sovereignty have no obligation to obey the law. Because Greene thinks that individual obligation and state legitimacy are correlative, the state acts illegitimately when it punishes these individuals. It follows that on Greene's own argument, permeable sovereignty indeed covers cases that he claims it does not cover.A. The First InterpretationWe cannot hope to sort out these problems without first clarifying what the political obligation controversy is about in the first place. I take the controversy to be about whether law can have a trans-substantive, bridging function. What I mean by this is that for political obligation to take hold, we must provide reasons why people should obey a law even when they have moral and political views that are inconsistent with the law. In other words, we must explain why the law bridges our substantive moral differences and why it trumps our substantive moral commitments.There are, of course, a wide variety of theories of varying plausibility that attempt to respond to this challenge. For present purposes, the important point is that none of these theories holds that just anything that calls itself "law" can serve a trans-substantive bridging function. In this sense, all theories of political obligation are limited. Of course, some are more limited than others. For some theorists, law must satisfy only the most minimal standards to command obedience; for others, the standards are more demanding. But virtually no one defends the authoritarian claim that anyone claiming to speak for the law must be obeyed.8I will not attempt to survey all of these theories here. Instead, I limit myself to some of the most prominent examples. Some natural law theorists approach,9 or at least have been understood to approach,10 the problem of political obligation as one of defining what constitutes law. …