The strength of a claim to conscientious objection depends on the type of law.

An intuition I've been trying to articulate, but naturally Raz did so first (and way more clearly than I have been able to):

On p. 286 of The Authority of Law, he describes how the strength of a claim to conscientious objection depends on "the ground for having a particular legal duty." He describes three categories: paternalistic laws (with respect to which CO claims are strongest), "laws protecting the interests of identifiable individuals" (with respect to which CO claims are the weakest), and "duties to protect the public interest," which occupy an intermediate position between these two. I think this is an important point in relation to the pharmacists' situation, since the requirement to dispense Plan B is an example on the third category, but it is often mis-treated in the literature as an example of the second.

Paternalistic laws
A prima facie right to conscientious objection grounded in humanism is strongest w/r/t paternalistic laws, because "it is hard to imagine a situation in which coercing the conscience of a normal adult by law in his own interest could be justified. If the ideals of autonomy and pluralism are not enough to enable a person to pursue his moral convictions at his own expense then they count for very little indeed." (283)

Laws protecting the interests of identifiable individuals
(e.g., "murder, rape, libel, or even violation of property or contractual rights")
These are the sorts of things that are punishable by tort liability, equitable remedies (e.g., injunction or specific performance), or even penal measures. The idea is that, even a "humanistic" (which is Raz's name for a society that respects individual autonomy) society will restrain individual freedom of action "when vital interests of other people are involved. When this is the case those others should not be made to pay for the conscience of objectors." (284) Penalties (at least financial ones) can be seen in these cases as not violative of autonomy but a "reasonable price for it," akin to alternative service vis-a-vis conscription.

Laws protecting the public interest (i.e., laws protecting the interests of unidentifiable individuals)
"Here the claim not to have one's conscience coerced encounters less powerful opposition from other considerations...[because] of the insignificance of each individual's contribution...Most of the time exempting a single individual from the duty will make little or no discernible difference to the protected good."

Now, the literature criticizing the pharmacists almost invariably describes the conflict as between an individual pharmacist's conscience and the good of an individual woman, suggesting in some cases that the pharmacist should not be able to inflict a harm on the woman because his moral convictions are at odds with hers. I have always found these chracterizations to be odd and misleading, since it strikes me that refusing to provide something is not inflicting a harm, so long as that thing is otherwise adequately provided for. And at the very least, it's a wholly different kind (i.e., in character, not merely degree) of "harm" than that pharmacist might inflict by assaulting her or plowing his car into hers. I wonder how analyses of these different kinds of laws would have to be reconceived on a natural law view, rather than Raz's "humanistic" one, but I am encouraged to have my intuition affirmed that there may ways of defining or delimiting the appropriateness of moral dissent from a law based on the type of duty it imposes.

Question about the appropriate treatment of the conscientious objector

So, Raz points on 281-282 of The Authority of Law that a "right" to conscientious objection could be rooted in the notion of respect for persons, since a society that values autonomy must value pluralism, and such a society will presumably strive to be an environment in which people can pursue their tastes and inclinations in any way they like, subject to the constraints imposed by "the necessities of social cooperation and of securing similar opportunities to all." In that society, if one could explain how a person's freedom to avoid wrongdoing (by his own lights, even if he is wrong) is "central to his self-respect," one has grounds for a right (against society) not to have one's conscience coerced (albeit a prima facie right).

Could a right to "conscientious objection" in a society founded on natural law principles take this form? Perhaps one constituent of an individual's good is self-determination, requiring as a necessary condition a degree of freedom to act on one's own moral judgments. In that case, the argument that society ought to respect my freedom to act on my own conscience seems to take the same form (and be similarly pf, since the fact that the right can be overridden by other values or ideals is "inevitable, given that it is a right to do that which is in fact morally wrong which is given to people who will use it for that very purpose. To give it absolute importance is to prefer the morally wrong to the morally right whenever the act has misconceived moral ideas however wicked.").

But what if the right to act on one's conscience (however evil its dictates) is not a negative right borne of the importance of respect for my autonomy but is instead based on the fact that law has its authority only in virtue of my consent to it, on the basis of its service to the common good? So it's not that individuals' consciences being free from constraint is affirmatively valuable to society but that, lacking free consent from individuals' consciences, society has no authority over them.

Does this change the nature of the questions that need to be answered about CO? Could we still ask "when does the right not to have one's conscience coerced have to give way to other values and ideals?" (AKA, "is the right still prima facie"?) Or would conscientious objection be an absolute right, since the authority of any other legal requirements (including those that serve what might be regarded as "competing" values in a different system) depends on free conscientious consent? And wouldn't we have to consider how a society can maintain de facto authority over its citizens if it is broadly acknowledged that the legitimacy of its authority over any of its individual members is contingent upon her consent?

Legitimacy of authority and the duty to obey

What's the relationship between the moral legitimacy of an authority and one's duty of fidelity to it?
Greenawalt: The legitimacy of a political authority does not define the scope of one's duty to obey that authority. An illegitimate authority can issue directives that carry an obligation to obey, and a legitimate authority can issue directives that do not. Possible substantive grounds for the duty to obey include promises, utility, fair play and a natural duty.

How does Fuller account for the duty to obey?
Distinguishes b/t the morality of aspiration ("the good life" a la the Greeks) and the morality of duty ("basic rules without which an ordered society is impossible, or without which an ordered society directed toward certain specific goals must fail of its mark"--the Old Testamant and the 10 Commandments). Morality of aspiration can have no direct bearing on the requirements of law; for workable standards, law must adhere to the morality of duty...(to be continued)

How can a positivist?

Fuller's Ways to Fail to Make Law

In The Morality of Law (Yale U. Press 1964), Fuller uses the allegory of Rex, an inept king, to illustrate eight ways to fail to make law:

(1) failure to achieve rules at all, so that every issue must be decided ad hoc;
(2) failure to publicize, or at least to make available to the affected party, the rules he is expected to observe;
(3) the abuse of retroactive legislation;
(4) failure to make the rules understandable;
(5) enactment of contradictory rules;
(6) enactment of rules that require conduct beyond the powers of the affected party;
(7) introducing such frequent changes in the rules that the subject cannot orient his action by them;
(8) failure of congruence between the rules as announced and their actual administration.

"A total failure in any of these eight directions does not simply result in a bad system of law; it results in something that is not properly called a legal system at all...Certainly there can be no rational ground for asserting that a man can have a moral obligation to obey a legal rule that does not exist, or that is kept secret from him...[etc.]."

"In situations like these there can be no simple principle by which to test the citizen's obligation of fidelity to law, any more than there can be such a principle for testing his right to engage in a general revolution. One thing is, however, clear. A mere respect for constituted authority must not be confused with fidelity to law. Rex's subjects, for example remained faithful to him as king throughout his long and inept reign. They were not faithful to his law, for he never made any."

So, a legal system has to have certain features in order to issue laws to which citizens have a moral obligation to be faithful. At the least, it needs to issue laws that are regular, public, prospective, understandable, not contradictory, possible to comply with, constant, and consistently administered. If its laws uniformly lack any of these features, citizens cannot have a duty of fidelity to them (presumably because "ought" implies "can"). But does the sum of these characteristics necessarily give rise to laws that are morally binding (or to which citizens have a duty of fidelity)? Couldn't the Nazis have issues some substantively reprehensible laws that met these criteria? This is what Fuller tries to deny in his response to Hart by declaring his belief that "coherence and goodness have more affinity than coherence and evil," but isn't some more substantial argument required to show how a duty of fidelity to law arises from mere process constraints?

See Lon Fuller's The Morality of Law (1964).

Questions about Fidelity to Law

Is there a moral ideal of fidelity to law?
If so, what is its origin? Is it implicit in the notion of "legality" or "law"? What is its relation to other principles that we customarily associate with legality?
Is its applicability conditional on the content of a law, or does it attach based on a law's pedigree?

How does it interact with other moral norms?
Can it be reconciled with legal positivism?
Does it help the conscientious objector at all (either in her personal deliberations or with arguments that she should be exempt from the application of a law), or does it just redescribe her problem?

On Fuller... how interrelated are Fuller's notions of "order" and "good order"? With respect to post-Nazi Germany, he claims that they're separate but related goals that can exist in tension with one another, but that must both be satisfied. And then he simultaneously claims that they at least have "affinity" (or greater affinity than order and bad order) and that they are both to be regarded as goals for lawyers?
If they're separable, is it law's satisfaction of the "morality of order" that gives rise to the duty of fidelity (it's at least necessary, but is it sufficient?), or mustn't it be law's satisfaction of the morality of good order?

Reflections on Feinberg and Fuller

Fuller: Positivism has a problem: Can’t explain the ideal/duty/norm of fidelity to law. Thus, can’t even adequately consider/frame the dilemma of someone whose obligation to obey the law conflicts with other moral obligations.

• “Higher law” notions of NL appeal to a substantive standard to explain why moral duties to obey the law are derivative of its requirements being moral; thus, fidelity to law and one’s moral duty shouldn’t ever conflict.
• His “internal morality of law” provides a procedural way of explaining when one doesn’t have any such duty of fidelity to law (presumably he expects this to be thinner and less controversial, although he does posit that the “morality of order” will cohere better and conduce to good laws rather than bad, and he thinks that both order and good order should be regarded as socially-pursuable goals, and should be considered by lawyers and judges.

Feinberg thinks that this difference (whether moral standards are internal or external to law) isn’t as much of a problem for the private citizen as for a judge, since the latter has to articulate decisions based on legal reasons in public and can’t privately act on his/her moral convictions without risk of undermining the rule of law

But what about when the law doesn’t permit private disobedience without grave consequence (such as in the case of the nullifying juror)? [Related Q: Is undermining the rule of law the only concern a judge or private citizen need have when considering breaching his legal duty?] What about when violation of the law would be public in character and would result in grave harm to one’s own or others' material interests (e.g., punishment, loss of one's job)? Then, isn’t it a matter of significant import to the citizen whether she has incommensurable—but both moral—duties to obey the law and to act morally or whether the law, insofar as it is immoral, does not in fact bind her? Maybe it's only of psychological or spiritual import, since the law will treat her the same way, regardless of whether her duty to obey the law was morally moot. Or can we ask whether, and under what circumstances, it might be wise/appropriate/for law to excuse a person because the legal requirement was trumped by a moral obligation? Can anything general be said about that? Would the answer of the LP and the NL be different? [Could a legal positivist ever permit the law to excuse morally-motivated non-performance of a legal duty, or would that violate the rigid separation?]

Back to the point of view of the individual, is this still just a (semantic) distinction without a (practical) difference? No matter what we call "fidelity to law"--i.e., a moral duty or something sui generis--we still have the problem of cashing it out. Where does it come from, and how does it interact (trump? displace? defer?) with a moral agent's other reasons for action? Does the NL have anything more to say about this than the LP?

Fuller on Fidelity to Law

Lon Fuller's Positivism and Fidelity to Law, 71 Harv. L. Rev. 630 (1958), is a response to Hart's Positivism and the Separation of Law and Morals (which appeared in the same issue of the same journal). It's one of the articles in the Radbruch-Hart-Fuller discussion that Feinberg critiques in the article discussed in the previous post.

Fuller's fundamental point is that Hart's criticism of Radbruch (that his "higher law" natural law theory does violence to the notion of law when it alleges that Nazi laws were not laws) is mostly unjustified. While Fuller doesn't (explicitly) subscribe to a "higher law" theory, he thinks that Hart completely misses law's "internal morality"--a set of standards implicit in the concept of law, wholesale violation of which renders a system's enactments invalid as law. Radbruch may have been wrong to say that, because the Nazi's aims were odious, their laws weren't "law" (and thus the German courts acted rightly in declaring them void), but he was not wrong to say that the Nazis' failure to conform to certain standards rendered their laws invalid. In Fuller's view, those standards are the "morality of order," which is violated by (e.g.) retrospective statutes, secret statutes, judges who disregard the terms of the laws they purport to apply, and officials who can resort to illegal force without fear of repercussion. A system--such as the Nazis'--that does not conform to the morality of order cannot make "law," since these standards are internal to the very notion of law.

Hart's failure to grasp that there is an internal morality to law has other pernicious consequences as well, the most relevant of which (to my interests, anyway) is that positivism cannot make any sense of the "ideal of fidelity to law", nor (consequently) of the predicament of an individual who finds herself torn between her (moral) duty to obey the law and another moral duty. Fuller's characterization of positivism's take on that situation:

"On the one hand, we have an amoral datum called law, which has the peculiar quality of creating a moral duty to obey it. On the other hand, we have a moral duty to do what we think is right and decent. When we are confronted with a statute we believe to be thoroughly evil, we have to choose between those two duties....[but positivism] never gives any coherent meaning to the moral obligation of fidelity to law...The fundamental postulate of positivism--that law must be strictly severed from morality--seems to deny the possibility of any bridge between the obligation to obey law and other moral obligations. No mediating principle can measure their respective demands on conscience, for they exist in wholly separate worlds." (Fuller 86-87)

Fuller thinks that Radbruch saw, as Hart does not, that Germany faced a dilemma--how to restore both respect for order (i.e., law) and respect for good order (i.e., justice)--and that these goals are not "opposing demands that have no living contact with one another, that simply shout their contradictions across a vacuum." (87) Moreover, Fuller thinks Radbruch was right that the forced separation of law and morals effected by the ascendancy of legal positivism in Germany facilitated Hitler's rise to power. But Radbruch went too far in positing a "higher law" understanding of the relation between morality and law; all that was required for the argument that the Nazi statutes were invalid was to draw attention to their systematic failure to respect law's internal morality. However, he speculates that it is no coincidence that the two arguments would have the effect of invalidating the same statutes, "for the overlapping suggests that legal morality cannot live when it is severed from a striving toward justice and decency."

A few questions about Fuller's view:
(1) Fuller's apparently modest internal morality of law is not unconnected with morality writ large; he just doesn't press the connection. It's as if he suggests it to reassure those who would suspect his view of not going far enough. But he does state his belief, without argument, that "coherence and goodness have more affinity than coherence and evil." Thus, when men are required to explain and justify decisions, that will pull those decisions toward goodness. Can such a belief be justified? Mustn't there be a lot built in to his notion of "coherence" (or, more broadly, his "internal morality")?
(2) Early on, he accusing the positivists of labeling every non-legal standard "morality" and thus muddling up the notion. Doesn't his "internal morality" involve a similar stretching of the traditional understanding of morality? Are his order-related norms really "moral"? (And if so, is it true that "law" must instantiate them?)
(3) Aren't positivists and NL theorists just after different things? LPs just want to talk about what the law is, leaving questions about how it interacts with morality completely to the side, while natural lawyers want to talk about what the law should be if it's going to serve the ends of morality. Where does any of this leave the pharmacist, who knows what the law is and knows what morality requires? Does the NL-er (higher law or internal morality or otherwise) have anything more useful to say to her than the positivist?

Feinberg on Law v. Morality

Joel Feinberg's article "The Dilemmas of Judges Who Must Interpret 'Immoral Laws'" makes the general point that the practical difference between natural law (NL) and legal positivism (LP) is minimal as applied to the duties of a "private citizen." When a person encounters a conflict between a legal duty and an overriding moral obligation, she will describe her situation in one of two ways: "The enactment is immoral and is therefore not a valid law," (NL) or "The law, though valid, is outweighed by moral considerations" (LP). On either view, she may be morally justified in violating the enactment, so NL v. LP is a distinction without a (practical) difference. (Hart apparently believes that LP has the practical merit of "candor", in that it admits that there is a conflict between the two duties--legal and moral--even though one may dramatically outweigh the other, rather than insisting counterintuitively that there is no legal duty at all and therefore denying the felt experience of conflict in such a case. But Feinberg apparently thinks that practical importance of candor is negligible.)

Nevertheless, Feinberg believes that a significant practical difference between the two views arises in the case of judges, who have to publicly defend their decisions on legal grounds. When a judge faces a conflict between an overriding moral obligation and a legal norm (e.g., the Fugitive Slave Act), he is bound to rationalize his conclusion publicly and on legal grounds. A LP judge in such a situation has no choice but to admit that the grounds for his decision are external to the law, and therefore to invite the censure of the public and other judges for overreaching the limits of his office. Meanwhile, a NL judge, who believes that the fundamental precepts of justice are implicit in the law, may argue for his conclusion from grounds that are--on his view--internal to the law.

Feinberg makes this latter point by means of a protracted dialogue between hypothetical LP and NL judges, in which the LP judge ultimately concedes that the only practical difference b/t LP and NL cuts in favor of NL, in that a NL judge would be more "comfortable" when faced with an unjust law. Still, the LP judge wonders whether that provides any support for the veracity of the NL view, and he wonders about whether a comfort differential constitutes a difference in their "morally important consequences." Finally, he insists that a persuasive NL view would have to account for how morality has come to be a part of the law.

Points to ponder:
(1) Do Feinberg's observations apply with equal force to the "weak NL thesis," i.e., that an unjust law is a law, but a defective one?
(2) Feinberg's hypothetical NL and LP judges cursorily (and confusingly) discuss the relative weights of role-specific obligations versus obligations based on the less peculiar role of "citizen" or obligations based on one's humanity alone, noting in passing that there is no lexical ordering between them--i.e., one's obligations as a human being do not always trump one's obligations as, e.g., a judge. They all have to be (and, therefore, one assumes, can be) weighed against each other. Also, Feinberg seems to assume that a judge would weigh his role-specific legal obligation more heavily than a juror would. What determines the weight of our various obligations? If not determinative, to what extent are their sources (i.e., law v. morality?) relevant?
(3) It seems to me that a lot of Feinberg's argument could rest on the very peculiar role of judges vis-a-vis law--i.e., their responsibility to reason in public from legal premises--and not on a general theory of role-specific legal obligations v. moral obligations. I wonder, then, how relevant any of its implications are for other kinds of role-specific obligations (e.g., the obligations of health care workers to abide by Plan B laws). Does the discussion of weighing role-specific legal obligations against humanity-based moral obligations carry any weight? (N.B. At one point, F describes a judge who cites extralegal sources as someone who is "insensitive to the moral bindingness of voluntary commitments." If the "voluntary commitment" is the key to role-specific obligations, then how broadly or narrowly should that commitment be construed in the case of judges or pharmacists or...?)
(4) The whole argument assumes a pf moral obligation to abide by the laws of a generally just, democratic society, which is a contestable assumption. (But would any good, for my purposes, come of challenging it?)

OK, that's it for now!

So this is how it's done, eh? Not too difficult!

initial post

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