|
 Provocations
Michael
LaBossiere
Number
Eighteen: Of Marriage and Civil Disobedience
In
2004 it was rumored laws would be passed to make same sex marriages
illegal in the United States. In response, some officials issued
marriage licenses to same sex couples. Other authorities decided
this behavior was illegal and, in some cases, arrests were made.
While some might suspect the furor over same sex marriage is a red
herring to lure peoples' eyes to the bedroom and away from the ballooning
deficit, high levels of unemployment, and military adventures in
the Middle East, this situation raises many important philosophical
issues. One of these, the matter of civil disobedience, is the subject
of this essay.
While
the motives of the officials involved vary, it is safe to assume
at least some acted from the belief that discrimination based on
sexual orientation is morally wrong. In these cases, the officials
decided to act in accord with their conscience and in violation
of the law. Those more inclined to obedience than conscience claimed
the officials had an obligation to obey the law. Not surprisingly,
they tended to give two stock reasons for obedience. First, if officials
obeyed their consciences rather than the laws, chaos would result.
Second, officials are obligated to obey the laws. While both are
worth considering, this essay focuses only on the second.
It
might seem obvious that officials should obey the laws and it seems
natural to assume the basis for the obligation is a legal one. Despite
the appeal of this assumption, this cannot be the basis of the obligation.
This can be shown by the following argument. To keep things simple,
suppose there is a law stating that officials must obey the other
laws. While this might seem to provide a foundation for the obligation
to obey, it merely pushes back the problem. The problem switches
from providing a basis for the officials' obligation to obey laws
in general to the problem of providing a basis for the officials'
obligation to obey the specific law telling them to obey the other
laws. Obviously, it will not do to propose yet another law that
requires the officials to obey the law that requires them to obey
the other laws-this would merely start off an infinite regression
of laws with no possible end in sight.
If
the officials' obligation to obey the law cannot be found in the
laws, then there are two options left.
The
first option is to simply claim officials should obey and there
is no basis for this beyond the bare fact that they should obey.
While this option has great appeal to dictators, it does not provide
a plausible foundation for obedience. One problem is that the justification
is circular: the answer to the question "why should I obey?"
is "you should obey because you should obey."
A
second problem is that the claim "X is a law" does not
seem to effectively support the claim "X should be obeyed."
After all, slavery was once legal in the United States, yet it is
unappealing to claim American officials should have helped keep
other human beings chained in brutal and dehumanizing slavery. The
same can be said for various other terrible things that have been
or are legal, such as genocide, sexism, and racism. In light of
these problems, the first option does not seem reasonable.
The
second option is to claim officials have an obligation to obey the
laws and this obligation is based on something other than the law.
Since an obligation is something someone should do, and morality
deals with what should be done, the most promising option is to
claim that the basis for the obligation is a moral one.
This
option seems to be a better choice than the first option. After
all, while "X is the law" does not seem to effectively
support the claim "X should be done", there seems to be
a much stronger connection between the claim "X is morally
right" and the claim "X should be done."
This
option is not without its problems. Starting with David Hume, philosophers
have argued that you cannot get an "ought/should" from
an "is" and other philosophers have attacked morality
itself. However, if morality were rejected, then it would follow
that officials would have no obligation to obey the laws. This is
because there would be no obligations.
However,
if it is assumed that morality does provide the basis for the officials'
obligation to obey the laws, then there are good grounds for arguing
the officials should follow their moral consciences.
If
the obligation is a moral one, an official cannot be obligated to
do what is wrong because it does not make sense to claim there is
a moral obligation to do what is immoral. This would be analogous
to claiming that one is legally obligated to break the law. Thus,
if the official regards the law as immoral, then the right thing
to do would be to disobey the law.
An
obvious problem is that an official's moral assessment could be
mistaken. Given this fact, an official should insist on being given
reasons as to why the apparently immoral law is actually morally
acceptable. If the official is convinced, they should then obey
the law. If the official is unconvinced, they should probably follow
Thoreau's advice: resign the office in protest and then take action
against the law. If no reasons are forthcoming and the official
is simply told to obey, then they should not obey. Naturally, this
assumes the official is in a democratic society that has a commitment
to morality.
Provocations
will next be updated mid April 2004
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