Obeying The Law

The University of Sydney Law School
Legal Studies Research Paper Series
No. 18/45
August 2018
Obeying the Law

Michael Sevel
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Forthcoming in Legal Theory (2018)
OBEYING THE LAW
Michael Sevel 1
Senior Lecturer in Jurisprudence
University of Sydney Law School
[email protected]
What is it to obey the law? What is it to disobey? Remarkably little attention has been
paid to these questions. The inattention is remarkable because the concepts of obedience and
disobedience have long been central to several perennial debates in moral, legal, and political
philosophy, and yet participants in those debates have either given unreflective, cursory
accounts or said nothing substantive about them at all. Examples of the inattention are not
hard to find. It has been debated whether we have a duty or obligation to obey the law for
nearly as long as there has been law. But the vast majority of theorists of political obligation
have been far more interested in the normative features of that alleged duty – its grounds,
whether it is universal, overriding, absolute, pro tanto, and so on – than with its content, that is,
with what sort of thing a person must do, or what sort of thing must happen, in order for that
1
For helpful discussions, I thank Farrah Ahmed, Mitch Berman, Michelle Dempsey, Tom Dougherty, David Estlund,
Jessica Flanagan, Jeff Goldsworthy, Scott Hershovitz, Robert Hughes, Matt Lister, Adam Perry, David Plunkett,
Veronica Rodriguez-Blanco, Massimo Renzo, Enzo Rossi, Wojciech Sadurski, Fred Schauer, Stefan Sciaraffa, David
Shoemaker, A. John Simmons, Dale Smith, Larry Solum, Nicos Stravropouls, and Kevin Walton. I also thank
audiences at the Analytic Legal Philosophy Conference at the University of Virginia, the Institute for Law &
Philosophy at the University of Pennsylvania, the Legal and Political Theory Workshop at the National University of
Ireland Galway, the Irish Jurisprudence Society at Trinity College Dublin, the Association for Social and Legal
Philosophy Conference at the University of Warwick, the Department of Politics at Princeton University, the
University of Tartu Centre for Ethics, the Centre for Legal Governance at Macquarie University, the Legal Theory
Workshop at Melbourne Law School, and the Julius Stone Institute of Jurisprudence at the University of Sydney
Law School. This research was supported by the Centre for Ethics and Public Affairs, Murphy Institute, Tulane
University, and the National University of Singapore Faculty of Law.

person to obey the law and thereby discharge the duty, whatever it is. 2 To take another
example, over the past fifty years, legal and political philosophers have been increasingly
interested in the nature and practice of civil disobedience, resulting in an enormous, complex
literature. However, those philosophers have been more interested in giving an account of the
‘civility’ of an act of the relevant sort – for example, that it is done publicly and conscientiously
for a political purpose, and so on – rather than in explaining what the relevant sort of act is, i.e.,
what constitutes disobedience. Indeed, nearly all writers on civil disobedience, from John
Rawls’ seminal discussion in the 1970s to the present, routinely use such terms as “breaches”
or “violations” of law to refer to the relevant phenomena, and leave it at that. 3 Finally, it has
long been a consensus among legal philosophers that it is of the nature of law to claim
authority over its citizens, and in turn that it is of the nature of authority to demand obedience
2
The inattention started early. In the founding text of the political obligation literature, Plato’s Crito, Socrates has
the Laws of Athens require that he either “persuade or obey” the laws (51a-52e), but no characterization of either
alternative is given. The matter is further complicated by the fact that the terms ‘persuade’ and ‘obey’ in Plato’s
Greek have a common verbal root (peithein), such that the active voice is used to express the former idea, and the
passive voice the latter. Socrates also speaks of doing what the law commands (poeteon ha an keleuei, at 51b) but
relies on his audience’s intuitive understanding of what that phrase is to mean. For discussion, see Richard Kraut,
Socrates and the State (Princeton: Princeton University Press, 1984), pp. 54-114. Modern contributions to the
literature fare no better, even when a writer’s stated purpose is to identify the problem. See e.g. Jonathan Wolff,
“What is the Problem of Political Obligation?,” Proceedings of the Aristotelian Society 91 (1991): 153-169, in which
obedience is taken as the central concern but no attention is ever given to saying what it is. More recently,
William Edmundson, in a survey of the duty-to-obey literature, spends several pages characterizing the duty under
discussion, but then stipulates, in a single sentence, what obedience to law is taken to be. He calls this stipulation
an “idiomatic point”, though, as I argue below, it involves substantial theoretical commitments which have rarely
been questioned. See Edmundson, “State of the Art: The Duty to Obey the Law,” Legal Theory 10 (2004), 215-259,
at p. 217. David Lefkowitz, in his survey of the same literature, makes the same stipulation, but oddly as an
explanation of the duty, not as an account of obedience itself. See Lefkowitz, “The Duty to Obey the Law,”
Philosophy Compass 1/6 (2006): 571-598, at pp. 572-573.
3
See John Rawls, A Theory of Justice, 2nd ed. (Cambridge, Mass.: Harvard University Press, 1999), where his stated
aim is to give an account of action “contrary to law” (p. 320), acts which are “violations” of the law (p. 323). Rawls
provides no further explanation of the relevant sort of action. The most recent substantive contribution to the civil
disobedience literature similarly contains no account at all of what ‘disobedience’ is supposed to be, and frames
the discussion vaguely in terms of “offending.” See Kimberley Brownlee, Conscience and Conviction: The Case for
Civil Disobedience (Oxford: Oxford University Press, 2012), pp. 155-156.

from those subject to it. 4 But while only theorists of authority have made substantive
philosophical claims about what in general obedience to law requires (though they have been
notably silent about disobedience), their supporting arguments are difficult to discern. In any
event, those claims about obedience, which I will collectively call the Standard View, have been
subject to precious little critical assessment. 5
It might be thought that this inattention is just as it should be, and that systematic
accounts of obeying and disobeying the law are in fact not required to answer such questions.
Philosophers have known well enough what obedience and disobedience are, and any attempt
to say anything more precise would obscure that which was sufficiently clear all along, and
would thus stifle, rather than facilitate, discussion. But a moment’s reflection reveals that
systematic accounts of these responses to law are of central importance in these debates.
4
Beginning in the seventeenth century, legal philosophers drew these connections because they conceived of law
on the model of sovereign command. See Gerald J. Postema, “Law as Command: The Model of Command in
Modern Jurisprudence,” Philosophical Issues 11 (2001): 470-501. While the command model of law has been
mostly jettisoned, the conceptual connection between authority and the demand for obedience continues to be
the orthodoxy. The locus classicus of the modern view is Joseph Raz, “Authority, Law, and Morality,” in Ethics in
the Public Domain (Oxford: Oxford University Press, 1994), at pp. 212-216. Recent restatements and
endorsements of the view can be found in Richard Dagger, “Authority, Legitimacy, and the Obligation to Obey the
Law,” Legal Theory (forthcoming), Daniel Viehoff, “Democratic Equality and Political Authority,” Philosophy &
Public Affairs 42 (2014): 337-375, at p. 340, and Stephen Perry, “Political Authority and Political Obligation,” Oxford
Studies in Philosophy of Law, Vol. 2 (Oxford: Oxford University Press, 2013), at p. 1.
5
See Scott Hershovitz, “The Authority of Law,” in A. Marmor (ed), The Routledge Companion to Philosophy of Law
(New York: Routledge, 2012), pp. 65-75, for the only critical engagement with the Standard View. Some recent
work in legal philosophy purports to clarify what obeying the law is, if only to contrast it with other possible
responses to law, but in each case the explanandum turns out to be something else. For example, William
Edmundson contrasts obeying the law with ‘law-abidance’, though he never explains either concept; he says that
abiding by the law is in part to ‘comply’ with it, but the notion of compliance is left unexplained. With regard to
obedience to law, he oscillates between what I call (below) the reason-conformity and reason-compliance views.
See William Edmundson, “The Virtue of Law-Abidance,” Philosophers Imprint 4 (2006): 1-21, at pp. 2-3. Another
example is Fred Schauer, who suggests, in his recent book, that he is addressing such questions as “What exactly
does it mean to follow or obey the law?” and “is every act that is in compliance with the law also an act of
obedience to the law?” [The Force of Law (Cambridge, Mass.: Harvard University Press, 2015), p. 6], questions
which are in fact the main focus of the present essay. However, he ultimately adopts, without argument (at p. 194
n18), the “conventional” view of obeying the law, which is precisely the Standard View I criticize below. Finally,
Margaret Gilbert acknowledges that the Standard View is inadequate, but does not suggest what account should
replace it. See her A Theory of Political Obligation (Oxford: Clarendon Press, 2006), pp. 210-11.

Consider, for example, the only two accounts of obeying the law advanced in recent times.
Some have claimed that to obey the law is to act for the reason that the law requires that one
so act; others have argued that it is merely to do what the law says, regardless of the reasons
for which one acts. These views will be discussed and made more precise in a moment, but the
present point is that they assume very different pictures about what law requires of persons,
how law engages their capacities as rational agents, and the normative significance of such
engagement. In particular, what distinguishes these accounts is their different views about the
reason for which a person must act in order to obey the law. And there is of course a tradition,
as old as moral philosophy itself, which holds that the reasons for which a person acts are of
great importance, for example, in judging whether an action is right or permissible, whether the
person acted from good character, and so on. Determining, then, whether the law must figure
in a person’s practical reasoning at all (and if so, how), or whether a person needs to have any
knowledge of the law at all in order to obey it, will bear directly on assessing the gravity (or
levity) of a duty to obey the law, its relation to and priority among other moral duties, as well as
the moral significance of acts of disobedience, civil or otherwise.
Given, then, the central importance of obeying and disobeying the law in these
perennial debates, their enduring role in legal and political argument, and the persistent
reticence of moral, legal, and political philosophers to explain them, a more explicit and
defensible account of each of them is long overdue. I will begin, in Section I, by considering the
Standard View of obeying the law which has long been taken for granted by theorists of
political authority, roughly that for a person to obey the law is to act for a certain sort of reason
provided by the law, as well as an opposing view, according to which obedience requires doing

what the law requires, though not necessarily for the reason that the law requires it. I argue
that both views are inadequate because both attempt to explain obedience exclusively in terms
of the concepts of a reason for action, and acting for a reason, which has been for too long the
preference among legal and political philosophers.
In Section II, I expand the possibilities for understanding obeying the law by moving
beyond the general idea of acting for a reason, focusing instead on the content of the intention
and knowledge with which an obedient subject must act. This highlights a different and less
often discussed aspect of law’s normativity: that the law, quite independently of creating
reasons, often creates actions for us to perform: it identifies and in some cases conceptualizes,
in terms far removed from that of ordinary action concepts, actions which it requires, forbids,
or permits of its subjects. This characteristic feature of the law provides the clue as to what
obedience requires. I will argue that the law identifies actions which we are to understand
ourselves to perform when we perform them, such that that understanding moves us to action,
if what we do is to count as obeying the law. In order to obey the law a person must act with
some recognition that she is in fact doing an action which the law requires. In a phrase,
obedience requires knowingly doing the right thing. The ‘right thing’ is not the morally right,
best, or justified thing, but doing the action that is required by the law and not another. What
this knowledge, recognition, or understanding involves may vary across cases, but I will develop
a default view against which exceptional cases can be contrasted.
In Section III, I consider the even more neglected idea of disobeying the law, in light of
the discussion of Sections I-II. I confront the threshold question of the relationship between
obedience and disobedience, in particular whether, as their names suggest, one is simply the

negation of the other: whether disobedience should be understood as merely a failure to obey.
The matter turns out to be not as simple as that, and I introduce a two-part account of
disobedience, arguing for both a default sense and a more specialized sense involved in acts of
civil disobedience. Both accounts, however, are compatible with the view of obedience
developed in the earlier sections. Disobedience in the default sense (for example the sense
implicit in much of the criminal law) typically involves an agent intending, and performing, an
action which fails to correspond to an action permissible by law or (what often comes to the
same thing) intending and performing an action which corresponds to one forbidden by it. Acts
of civil disobedience are of this sort as well, but can be symmetrically contrasted with acts of
obedience in that they consist additionally in knowingly failing to do the right thing: that is, in
performing an action one recognizes is at variance with one the law requires. This account of
disobedience fits well not only with the role it plays in theories of civil disobedience, but also
with how practitioners of civil disobedience have often characterized what is required to
successfully engage in the practice.
My discussion of each concept is not meant to be conclusive, and leaves open the
possibility that obedience and disobedience to law, at least as discussed in the various
philosophical literatures, may not form an elegant set of opposing ideas; rather, each may in
the end refer to distinct but related phenomena. However, I have the relatively modest aim of
taking a first step in having a more philosophically substantive discussion about these concepts
which figure in many foundational questions of legal and political philosophy. The broader
purpose is to come to a more systematic understanding of obeying and disobeying the law, so
that we can then identify more precisely what is at stake in debates about, e.g., what practical

authorities demand of us, whether there is a duty to obey the law, and whether civilly
disobeying it is ever justified. 6
I. OBEYING THE LAW: THE STANDARD VIEW
Before setting out the only extant philosophical account of obeying the law, an old caveat
should be brought once again to the fore. It should be kept in mind that the Standard View,
and all other accounts of obedience and disobedience discussed in this paper, are meant to
explain a characteristic response to only one (albeit ubiquitous) domain or kind of law, and so
not as a necessary or appropriate response to all law. The domain of law in respect of which
the notions of ‘obedience’ and ‘disobedience’ are appropriate has generally been restricted to
the ‘penal’ law, though distinguishing penal from non-penal law is not straightforward. The
penal law certainly includes most parts of the criminal law, but also encompasses any other
legal norm which explicitly requires or forbids a kind of action, and to which a sanction for
disobedience attaches. So for example many mundane traffic laws, or laws in tax codes which
6
It might be thought that while obeying the law has been given scant attention by philosophers, another, closely
related topic, has generated a voluminous literature which is of obvious relevance here. Inspired by certain
remarks of Wittgenstein, many philosophers of the last thirty years have debated what it is to ‘follow a rule.’ (See,
e.g., Saul Kripke, Wittgenstein on Rules and Private Language (Cambridge, Mass.: Harvard University Press, 1982),
P.A. Boghossian, “The Rule-Following Considerations,” Mind 98 (1989): 507-49, Philip Pettit, “The Reality of Rule-
Following,” Mind 99 (1990): 1-21, and Crispin Wright, “Rule-Following Without Reasons: Wittgenstein’s Quietism
and the Constitutive Question,” Ratio 20 (2007): 481-502.) Indeed, some of the views considered here bear an
affinity to some found in that literature. The debate over the nature of rule-following, however, is largely
irrelevant to a discussion of obeying and disobeying the law, because the notion of a ‘rule’ in that debate has little
in common with the concept of a law as traditionally used by both philosophers and lawyers. For example, it is
widely accepted that a ‘rule’ can have “infinitary contents” (Paul Boghossian “Blind Rule-Following,” in Mind,
Meaning, and Knowledge, ed. Annalisa Coliva (Oxford: Oxford University Press), p.32), that is, it can be stated in
innumerable, acceptable ways. Laws, however, exist at least in part because they have been intentionally laid
down or posited, and so often have a canonical formulation, which delimits the range of reasonable
interpretations which can be given of them. It is also widely agreed in that debate that some kind of ‘commitment’
or ‘acceptance’ of the rule is necessary in order to follow it. But as we will see, obeying the law requires nothing of
the sort, and indeed requires that such commitment is not necessary: it must be possible, for example, for one to
obey an unjust law. The very idea of civil disobedience, in fact, assumes this. And there are other sorts of cases;
for example, it must be possible for a foreigner to obey the laws of a state to which she owes no allegiance.

impose fines for non-fulfillment of tax obligations may all be considered ‘penal’ for present
purposes. There are surely many marginal cases, but the caveat is that any explanation of
obedience and disobedience will have extensive application to large domains of law in modern
legal systems, though it will not extend to all law, for example to that which Hart called ‘power-
conferring’ rules like those governing the making of wills and other contracts. 7
That caveat aside, the long-standing philosophical account about what obeying the law
requires (the Standard View) arises out of a broader philosophical view about what practical
authority is about, which in turn rests on a view, common among philosophers, 8 about what
we’re about, the sorts of creatures we are as agents. The line of thought proceeds like this: we
are creatures who have rationality or reason, the capacity to recognize certain features of the
world as significant, worthy of our notice, and relevant to deciding what to do and believe.
Those features are themselves said to be reasons, considerations which count in favor or
against doing or adopting some token action or attitude. This capacity to recognize and
respond to reasons is said to be essential to us as persons, as agents who can respond and
affect the world in distinctive ways. Practical authorities such as the law are said to enter the
picture by making demands on us, say, to pay our taxes or refrain from committing murder.
These demands are made on the presumption that we are persons in this sense, and so are
intended to engage our capacities by serving as reasons for action, alongside, and on some
accounts, in place of, all the other reasons that we had before the authority came on the scene.
7
Richard Wasserstrom made the point long ago in “The Obligation to Obey the Law,” UCLA L. Rev. 10 (1962-63):
780-807, p. 785.
8
See T.M. Scanlon, Being Realistic about Reasons (Oxford: Oxford University Press, 2014), Derek Parfit, On What
Matters, Vol. 1 (Oxford: Oxford University Press, 2011), Joseph Raz, Engaging Reason (Oxford: Oxford University
Press, 1999), Jonathan Dancy, Ethics Without Principles (Oxford: Oxford University Press, 2004), among others.

The theories about how this is supposed to work are varied and complex, but one influential
theory, Joseph Raz’s “service conception” of authority, 9 says that it is in the nature of authority
for authorities to assess the reasons that apply to us for us, that is, on our behalf, and issue
demands on the basis of those assessments. It is then part of the justification of our obedience
to authority that authoritative directives reflect the reasons that we have anyway. Authorities
are thus said to be a “service” or benefit to their subjects in the sense of helping the subjects do
many of the things they have independent reason to do.
On this kind of theory of practical authority, and the authority of law, in which the
concepts of a reason and acting for a reason take center stage, what does obedience require?
To state the view precisely, it is helpful to introduce a distinction between complying with a
reason, and merely conforming to it. 10 To comply with a reason is to act for that reason; to
conform to a reason is simply to do the action for which the reason is a reason, but not to act
for that reason. For example, I may have several reasons to have a glass of wine at the party:
the wine has a pleasant flavor, it will relax me, it will enhance my sociability, it may have certain
beneficial effects on my health, and so on. Suppose then that I drink the wine, and do so for
the reason that it’s pleasant but not for the others. In drinking, I have complied with the
reason that it’s pleasant because I have acted for that reason. If you asked me why I drank it, I
9
Joseph Raz, The Morality of Freedom (Oxford: Clarendon Press, 1986), pp. 23-109 and Between Authority and
Interpretation (Oxford: Oxford University Press, 2009), pp. 126-165. See also David Enoch, “Reason-Giving and the
Law,” Oxford Studies in Philosophy of Law, Vol. 1, eds. Leslie Green and Brian Leiter (Oxford: Oxford University
Press, 2011), pp. 1-38.
10
See Joseph Raz, Practical Reason and Norms, 2nd ed. (Oxford: Oxford University Press, 1990), pp. 178-180, and
John Gardner and Timothy Macklem, “Reasons,” in The Oxford Handbook of Jurisprudence & Philosophy of Law,
Jules Coleman and Scott Shapiro eds. (New York: Oxford University Press, 2002), pp. 462-463. Gardner and
Macklem draw a similar distinction between “deliberately” and “accidentally” doing what reasons recommend.
The distinction is less precise, however, since one can ‘deliberately’ conform, or fail to conform, to a reason, ideas
which will be of use below.

would say: because it’s pleasant. Moreover, the fact that the wine has a pleasant flavor in some
sense explains why I did what I did. But with regard to those other reasons to drink the wine –
that it relaxes me, is healthy, and so on – it can only be said that I have conformed to them; it is
the case only that I’ve done the action for which those reasons are reasons: I drank wine. It is
to that extent that I have ‘satisfied’ those reasons and, as it were, done all that they ask of me.
Now back to obeying the law. With the compliance-conformity distinction before us,
the Standard View starts with the idea that law provides reasons for action to its subjects, and
claims that obedience requires compliance, and not merely conformity, with those reasons.
That is, a person obeys the law only when she does what the law requires for the reason that
the law so requires. “Obedience is not a matter of doing what someone tells you to do. It is a
matter of doing what he tells you to do because he tells you to do it.” 11 The ‘because’ here is
not, or is not merely, causal; it is normative, and so refers to the reason for which a subject
must act if she is to obey. For analytical purposes, the Standard View can be called the reason-
compliance view:
Reason Compliance [RC]: If it is a fact, F, that a law, L, requires A to ϕ, then A obeys L by

ϕing for the reason that F. 12
11
R.P. Wolff, In Defense of Anarchism, 3rd. ed. (Berkeley: University of California Press, 1998), 9. While Wolff
appears to be the modern source of the Standard View, its influence has come by way of the work of Joseph Raz,
who explicitly accepts Wolff’s view of obeying the law as ‘essentially sound.’ See Raz, The Authority of Law
(Oxford: Oxford University Press, 1979), p. 11, and his introduction to the collection of essays in Joseph Raz (ed.),
Authority (New York: New York University Press, 1990), 1-19. See also Donald Regan, “Reasons, Authority, and the
Meaning of ‘Obey’: Further Thoughts on Raz and Obedience to Law,” Canadian Journal of Law & Jurisprudence 3:3
(1990), 3-28.
12
I assume that the object of obedience is a particular law. One may object that this runs afoul of the orthodoxy in
the theory of authority that authorities are persons, and therefore only persons can be obeyed. I wish to remain
agnostic about the proper object of obedience, and RC can harmlessly be reformulated given one’s position on
that issue.
10

Those who accept RC assume that obeying the law requires explicit and rather precise
knowledge of the content of the law. The assumption seems plausible for the more general
reason that in order for a person to act for a reason, that person must have knowledge of, or at
least be aware of, that reason. 13 So just as I can’t drink the wine because it’s pleasant unless I
have knowledge of its pleasant flavor, similarly I can’t pay my taxes because the law says so,
unless I know that the law says so, and what exactly it says. 14
RC has considerable intuitive appeal, especially across a wide range of cases involving
one person obeying the orders of another. While it is apparently widely held as an account of
obeying the law, it has been, however, more often assumed than argued for. Perhaps for that
reason it has only very recently been criticized as not fully taking account of our experience of
living and acting under the law. It has been suggested that reflection on various examples
shows that RC is false and rather that obeying the law requires only conformity, and not
compliance, with the reasons for action the law provides. 15 This opposing view is that for many
of the actions required, permitted, or prohibited by law, we usually already have many reasons
to do them or not to do them, independently of the law; and that in those cases, acting on
13
Cf. Joseph Raz, The Authority of Law, 2 ed (Oxford: Oxford University Press, 2009), 214: “Therefore if the law is to
be obeyed it must be capable of guiding the behavior of its subjects. It must be such that they can find out what it
is and act on it.” In the meantime, whether acting on a reason requires an agent to know that reason has become
a contentious issue among moral philosophers. See John Hyman, Action, Knowledge & Will (Oxford: Oxford
University Press, 2015), pp. 133-158.
14
It is an open question, and one I set aside here, as to whether knowledge, merely a reasonably justified belief, or
some other epistemic standard, is required. Raz and others speak loosely of having ‘knowledge’ of the law, and
writers in legal philosophy have not yet sought to make the epistemic standard more precise. It ought to be made
more precise, but doing so will not matter for present purposes.
15
For example, Scott Hershovitz suggests we should “identify obedience with conformity – with simply doing as
the law requires whatever one’s reasons” (“The Authority of Law,” in A. Marmor (ed), The Routledge Companion to
Philosophy of Law (New York: Routledge, 2012), p. 67). See note 18, below, for discussion of others who have
endorsed the reason conformity view.
11

those other (non-legal) reasons is sufficient for obedience, so long as we simply do what the
law requires. We may formulate the weaker, reason-conformity view more precisely this way:
Reason Conformity [RF]: If it is a fact, F, that a law, L, requires A to ϕ, and given the
existence of another (normative, non-legal) reason, G, to ϕ, then A obeys L by merely
conforming to reason F, that is, by ϕing for the reason that G. 16
Cases in which the law requires something for which there is already clear and compelling
moral reason have been adduced to show why RC is mistaken and RF is correct. For example,
we would find a person peculiar if her only, or even primary, reason for refraining from murder
was that the law said so. There are plenty of other good reasons not to commit murder which
we would expect to be acted upon by law-abiding citizens, quite apart from the reason that the
law forbids it. And further, it seems, the law is indifferent as to which of these reasons we
choose to act on. “The law certainly does not regard your behavior as defective if you refrain
from murdering for the reason that murder is wrong. No prosecutor will investigate. No
charges will be brought. No judge will take you to task for failing to pay proper heed to the
law.” 17 There are also examples which show that most of the time it is not plausible to suppose
that a demand for compliance is even implied by a given legal requirement. Consider a law
requiring citizens to pay tax in proportion to one’s income. Again, there are likely innumerable
reasons to pay taxes that depend on the various worthwhile ends which the state (let’s assume)
will pursue with the resulting revenue: enhance national security, relieve suffering of the worst
16
The view Hershovitz argues for may be even weaker than this, since conformity may not require acting for a
reason at all. For example, if while driving I depress the car brake purely out of anger as I approach an intersection
at which the traffic light has just turned red, then it would seem that I have conformed to the relevant traffic law
without acting for any reason. An argument for the existence of such merely expressive actions can be found in
Rosalind Hursthouse, “Arational Actions,” The Journal of Philosophy 88 (1991): 57-68.
17
Hershovitz, “The Authority of Law,” p. 67. See also Stephen Perry, “Political Authority and Political Obligation,”
pp. 10-11, for this and similar counter-examples to the Standard View.
12

off in society, contribute to the education of the young, and so on. And it seems, again, that
the law is, as it were, indifferent as to why citizens pay the tax they are obligated to pay. All the
law requires is that taxes be paid, not that they be paid because the law requires it. The law
doesn’t care whether you pay your taxes for the good of mankind, in order to escape prison, or
just to get your accountant to stop reminding you to pay them: all that it asks is that you act so
as to conform to the requirement that you pay, which of course only requires that you pay,
regardless of the reasons for which you end up paying. 18 To be sure, there may be cases in
which the law requires compliance: imagine a judge issuing an injunction against a recalcitrant
defendant to stop engaging in conduct that amounts to a public nuisance, and requiring that
the defendant abstain from the conduct because she (the judge) required him to stop. Or
again, imagine a police officer giving an order to a citizen to move along on the scene of a riot.
But, the defender of RF maintains, surely these are marginal and rare cases: the law typically
only requires conformity with its directives, and simply does not care why those persons
subject to it do the things they are legally required to do.
Suppose we accept these counterexamples to the Standard View as persuasive and
therefore as prima facie reason to reject RC. What then of the revisionary view, RF? Does
obeying the law generally require only that we do what the law says, without regard to the
reasons for which we act? The view is not without its adherents. For example, RF seems to
have been the going view of obeying the law in the positivist tradition up to and including
18
What the law requires in the tax example may even be weaker than this; it arguably doesn’t even require that
you pay your taxes. That is, your tax obligations can be fulfilled by, say, my paying your taxes without you running
afoul of what the law requires of you. Other examples, like a judicial order in the form of an injunction (e.g., a
restraining order regarding domestic violence), may require that only an action by the addressee will suffice. Raz
once called these ‘action’ (as opposed to ‘outcome’) reasons. See The Morality of Freedom (Clarendon Press,
1986), pp. 145-46.
13

Hart, 19 though that was a break from even earlier acceptance of the reason compliance view of
obedience. 20
In fact, obedience as mere conformity to the reasons the law provides is deeply
implausible. If all that is required to obey the law is conformity to its directives – that is, merely
doing the actions required, regardless of the reasons for which one does them – then
obedience would become a ubiquitous and for that reason far less interesting phenomenon
than has been supposed. For on the mere conformity view, there may be little connection
between the issuance of a legal rule or order on the one hand, and an action that amounts to
obeying it on the other. Indeed, if mere conformity is all that is required, there need not be any
connection – normative, causal, or otherwise – between law and citizen at all. For that reason,
the view has bizarre implications. It would open up the possibility that a person could obey
the law while being completely oblivious to the fact that they are doing so, indeed, while
completely unaware of the fact that there is a system of legal rules which applies to her
19
John Austin famously makes the concept of obedience central to his account of sovereignty, i.e., as a person or
persons habitually obeyed by the political community and who obeys no one, which in turn forms an essential part
of his theory of law. He explicitly endorse the reason conformity view of obedience in The Province of
Jurisprudence Determined, ed. Wilfrid E. Rumble (Cambridge: Cambridge University Press, 1995), pp. 248-249,
where he claims that while acts of obedience must be “voluntary or free,” they can be done from “motives of
some description or another.” H.L.A. Hart follows Austin in The Concept of Law, 3rd ed., eds. Joseph Raz and
Penelope A. Bulloch (Oxford: Clarendon Press, 2012), where he claims that citizens may obey the law for “a variety
of different reasons” (114) and “from any motive whatever” (116). Himma argues that Hart “overstates” the
extent to which obedience is necessary for the existence of a legal system, but the criticism relies on incorrectly
attributing to Hart the reason compliance (RC) view of obedience. See Kenneth Einar Himma, “A Comprehensive
Hartian Theory of Legal Obligation: Social Pressure, Coercive Enforcement, and the Legal Obligations of Citizens,” in
Philosophical Foundations of the Nature of Law, eds. Wil Waluchow and Stefan Sciaraffa (Oxford: Oxford University
Press, 2013), pp. 175-176. Hart, much later and under the influence of Raz, did endorse something like the reason
compliance view in Essays on Bentham (Oxford: Oxford University Press, 1982).
20
Austin likely misunderstood Bentham’s view of obedience, which is more subtle than the conformity view as
represented in RF, and is at least in some aspects a reason compliance view. See Gerald Postema, Bentham and
the Common Law Tradition (Oxford: Clarendon Press, 1986), pp. 233-237, for discussion of various interpretations
of Bentham on this issue. Prior to Bentham, many philosophers in the early modern period took the reason
compliance view of obedience for granted.
14

conduct. A person could, moreover, even be said to obey the law if she did so on accident, for
example, if she intended to do something either prohibited by law or to which the law is
indifferent, but by mistake were unsuccessful because of incompetence or weakness of will,
and ‘obeyed’ the law anyway. Or a person could even obey the law while in a sense acting, but
not intending anything at all, e.g., when sleepwalking.
The consequences of a mere conformity view like RF are even more bizarre than that.
Recall the children’s book The Little Prince, in which a confused but confident king claims he
receives perfect obedience from all his subjects, and indeed he guarantees that this be so.
When the prince approaches the king on a planet of which he is the only resident, the exchange
goes like this:
“May I sit down?” came now a timid inquiry from the little prince.
“I order you to do so,” the king answered…
"Sire," [the little prince] said to him, "I beg that you will excuse my asking you a
question--"
"I order you to ask me a question," the king hastened to assure him.
"Sire-- over what do you rule?"
"Over everything," said the king, with magnificent simplicity[…]
The king made a gesture, which took in his planet, the other planets, and all the stars[…]
"Over all that," the king answered.
For his rule was not only absolute: it was also universal.
"And the stars obey you?"
"Certainly they do," the king said. "They obey instantly. I do not permit
insubordination."
Such power was a thing for the little prince to marvel at. If he had been master of such
complete authority, he would have been able to watch the sunset […] two hundred
times, without ever having to move his chair.
"I should like to see a sunset... do me that kindness... Order the sun to set..."
"You shall have your sunset. I shall command it. But, according to my science of
government, I shall wait until conditions are favorable."
15

"When will that be?" inquired the little prince...before saying anything else [the king]
consulted a bulky almanac. "Hum! Hum! That will be about-- about-- that will be this
evening about twenty minutes to eight. And you will see how well I am obeyed." 21
There are many lessons in this amusing exchange, but for present purposes the point is that,
according to RF, the king does enjoy the obedience of his subjects. For his subjects clearly do
conform to his requirements – they do what he tells them to do, and on the theory of
obedience as reason conformity, that is all that is required. Now this is obviously absurd –
indeed, that it is absurd is part of the charm of the story. But the charm of the story doesn’t
contribute to the truth of the theory. One way our king has gone wrong is that he
misunderstands what it is to require or command something of someone. He merely describes
what happens, what someone has done, and then ‘commands’ that it be so. But commands,
and the norms they create, are not like that. Commands are not descriptions: they do not ‘fit’
what happens, but rather what happens must in some sense fit them. As philosophers have
sometimes put it, descriptions and things like commands which express an intention or desire,
have different “directions of fit.” 22 Mark Murphy has put the point in regards to commanding
this way:
commanding that p is an attempt to do something with language, to realize some state

of affairs by the performance of a speech-act. It is, in particular, a directive act: the aim
internal to a commanding act is that of having the addressee or addressees carry out the
action represented in the proposition that is the object of the command. 23
21
Antoine de Saint-Exupery, The Little Prince, trans. T V F Cuffe (London: Penguin Books), pp. 35-36. The exchange
is no doubt an elaboration of that aphorism from French revolutionary politics, “There go my people. I must find
out where they are going, so I can lead them.”
22
See Kim Frost, “On the Very Idea of Direction of Fit,” Philosophical Review 123 (2014): 429-484, in particular his
recasting (p. 473) of Anscombe’s original idea as there being different manifestations of practical thought with
their own standards of correctness..
23
Mark Murphy, An Essay on Divine Authority (Ithaca: Cornell University Press, 2002), p. 24.
16

Acts of obedience must ‘fit’ the commands of authority by being those actions which are among
those required; it is not enough for obedient actions merely to correspond to or ‘match’ those
which the law requires. And when a subject fails to obey, the mistake must be in the act and
not, as Anscombe said, 24 in the command. The notion of reason conformity in RF is inadequate
to account for this, as demonstrated by our confused king. A philosophical explanation of
obeying the law requires an answer as to how a subject’s attitudes and actions must “fit” the
requirement of a given law. We will return to this problem in the next section.
A simple way to modify RF to avoid these problems is to add that there must be a
unidirectional causal connection underlying the conformity between law and act: in order to
count as obedience, the law must cause the obedient act. And yet, so modified, the view would
still allow for objectionable cases. Suppose A is an expert on what the law requires of her, and
conscientiously obeys those requirements; suppose B, subject to the same laws, is woefully
uninformed about them, but for reasons completely unrelated to law (e.g., out of respect or
admiration for A), is in the habit of patterning his conduct on A’s. On the suggested revision of
RF, B obeys the law just as A does. (And we could imagine C patterning her conduct on B’s, and
so on, extending a causal chain of agents and actions far removed from the law itself.) One
reason to think that A obeys the law but the others do not - and another, related way our king
(and the mere conformity view of RF) has gone wrong - is in failing to see that in obeying the
law, there must be some acknowledgement of the authority by the obedient subject. 25 The
24
G.E.M. Anscombe, Intention, 2nd ed. (Cambridge: Harvard University Press, 2000), pp. 56-57.
25
Cf. R.B. Friedman, “On the Concept of Authority in Political Philosophy,” in Authority, Joseph Raz ed. (New York:
Blackwell, 1990), p. 64: “…authority is distinguished from coercion as a mode of influence because it involves some
sort of ‘recognition’ on the part of the subject that the person to whom he submits is ‘entitled’ to obedience and it
is distinguished from persuasion in that obedience is not procured by ‘argument’.”
17

reason conformity view (RF) requires only a mere correspondence between what the law
requires and what is done, such that the correspondence, one even caused in the right way,
may arise for any reason, or for no reason at all. And as we have seen, the Standard View (RC)
requires a person to recognize a requirement of law in a particular way – as a reason for action,
as well as a reason to act for the reason that the act is required. But we have seen the
problems with that view as well. But that does not mean that the general idea that some
distinctive recognition of authority in acts of obedience is mistaken. Indeed that general idea
explains why the sun and stars cannot obey the law but people can. But it remains to be
explained what that distinctive recognition must be.
A final puzzling consequence of the reason conformity view is this. If obeying the law
requires only a mere correspondence between legal requirement and action, regardless of
whether that correspondence is established by intentional, conscious, and rational action by an
obedient subject, or entirely by chance, then it becomes difficult to explain why moral, legal,
and political philosophers have been concerned, for centuries, with defending (or debunking)
the idea of a moral obligation to obey the law. If that alleged obligation is such that a person
could discharge it without even being aware that she is doing so, or by acting for reasons which
have nothing to do with the legal system to which the person is subject, then it would seem
that philosophical debate about its nature would be of far less importance than has long been
thought. And yet a core assumption of that debate, from Plato onwards, has been that the
question of whether such an obligation exists is an urgent question of great moral and political
significance. Interpretive charity recommends that theories of political obligation are meant to
18

explain (and sometimes justify) something more than mere correspondence between law and
obedient action and that therefore RF is false as a claim about what obeying the law requires.
II. OBEYING THE LAW: NEW VIEWS
Let us retrace our steps. We can see now that the standard, reason compliance (RC) view
really consists of two claims: to obey the law is, first, to do what the law says, and second, to do
it because the law says so. The counterexamples showed that this view was too strong and that
all that obedience requires is just the first thing: to do what the law says. This is the reason
conformity view (RF), which as we saw was also objectionable. But in order to introduce new
views of the matter, I now want to suggest that the very idea of ‘doing what the law says’
presents its own questions.
Recall that the Standard View (RC) of obedience presupposes a certain conception of the
agent, upon which a theory of authority and obedience is constructed. That shared conception
assumes that one defining mark of an agent or person is having the capacity to recognize,
appreciate, and appropriately respond to reasons for action and belief. This conception has
long been the orthodoxy in legal and political philosophy and, insofar as the Standard View
assumes it, partly explains why theoretically grounded views about what obeying the law
requires have been so few and far between. I want to now expand the possible views of what
obedience to law might be by reflecting on a different aspect of agency, which in turn allows us
to appreciate a different aspect of the nature and role of authorities, which enables us to
generate new views – and new questions – about what obeying the law amounts to.
The aspect of agency with which I’m concerned is therefore not the capacity to recognize
and respond to reasons, as the Standard View requires, but rather our capacity to engage in a
19

distinctive sort of thinking about what we do, thinking which plays a role in determining the
content of our own self-conception over time. This thinking manifests itself in the ways in
which we can spontaneously characterize our own actions, both while we are doing them, and
across time, before and after doing them. This ability to almost always say what we are doing,
have done, and will do – independent of the reasons why we do them – has been recognized by
moral philosophers and social psychologists as having a special significance in that our
characterizations of our actions shape and are shaped by our self-conception. 26 Philosophers
have traditionally focused on the content of future-directed intentions to act; the capacity to
which I refer is broader than that, as it involves the characterization of action diachronically, ie,
before, during, and after the formation and execution of an intention.
This aspect of agency points us to a different aspect of the role and nature of practical
authority: authorities, and especially legal authorities, engage this capacity of conceptualizing
action by giving us things to do – by conceptualizing, and to that extent creating, actions for us
to do and requiring that we do them so conceptualized. This is one primary sense in which law
is a “hermeneutic concept.” As Joseph Raz puts it: “The concept of law is part of our culture
and of our cultural traditions. It plays a role in the way in which ordinary people as well as the
legal profession understand their own and other people’s actions. It is part of the way they
‘conceptualize’ social reality.” 27
26
This capacity of unique and spontaneous action identification was noted by G.E.M. Anscombe in Intention
(Oxford: Blackwell, 1957). For recent discussions in ethics and social psychology, see the essays in Agency and Self-
Awareness, eds. Johannes Roessler and Naomi Eilan (Oxford: Oxford University Press, 2003) and Agency and
Action, eds. John Hyman and Helen Steward (Cambridge: Cambridge University Press, 2004), as well as Robin
Vallacher and Daniel Wegner, “Action Identification Theory,” in P.A.M. Van Lange et al. (eds.), Handbook of
Theories of Social Psychology (Thousand Oaks, CA: Sage Publications, 2012), pp. 327-348.
27
“Authority, Law, and Morality” in Ethics and the Public Domain (Oxford: Clarendon Press, 1994), p. 237. See also
Stephen Perry, “Hart’s Methodological Positivism,” in Hart’s Postscript: Essays on the Postscript of the Concept of
20

I suggest that one role the law plays in understanding people’s actions is that it provides
them with characterizations of their actions which are meant to affect the characterizations
those people themselves may formulate of those actions. Sometimes an action required by law
is characterized in a banal way, in a way in which we would conceive of our actions anyway –
for example, “driving 40 mph on a public road”; but others are characterized in ways such that
we would never think to do them, so conceptualized, on our own. For example, the law
requires that we act as the reasonable person would, and refrain from exposing others to an
unreasonable risk of harm (as in tort law), or that we not intentionally kill another person in the
heat of passion and in response to adequate provocation (one formulation of an act of
voluntary manslaughter), or that we may create a non-possessory security interest in the
bottomry of a vessel (as one can do in maritime law).
I think the role that an authority, and in particular the law, plays in conceptualizing
action is both important and has been overlooked by the going views of obedience which
assume that the exercise of authority can be understood only in terms of the creation of and
acting on a certain sort of reason for action. And focusing on this other aspect of authority can
help us better understand obeying the law. Whether or not the law creates reasons for us to
act, and whether or not the law requires conformity or compliance with those reasons, it
remains trivially true that the law requires us to do things. The intuitive reason conformity view
(RF) says that in order to obey we must simply do those things. But what acknowledgement or
Law, Jules Coleman ed. (New York: Oxford University Press, 2001), p. 324. Brian Leiter claims this idea “has been
endorsed by every legal philosopher of the last hundred years, with the exception of the Scandinavian Realists.”
See his Naturalizing Jurisprudence: Essays on American Legal Realism and Naturalism in Legal Philosophy (New
York: Oxford University Press, 2007), p. 173.
21

recognition by the person obeying must be involved in even the case of conformity? What
connection must there be between the content of the requirement and an act of obeying that
requirement?
We can start with one lesson from the story of the confused but confident king: that it
can’t just happen to be the case that one has obeyed the law. And one way to ensure that
obedience is non-accidental is to say that there at least must be the possibility of some
awareness that one has obeyed. Perhaps there is more to it. Perhaps in order to obey the law
there must be something we must do accompanied by an intention with a characteristic
content. But what must we intend?
There seem to be two broad ways to answer this question, using a compliance-
conformity distinction similar to the one we encountered in explaining the Standard View, a
distinction which we may use to generate two further claims about what an obedient subject
must intend or know in order to obey. The stronger, intention compliance, view is that in order
to obey the law, one must intend the action the law requires, precisely as characterized by the
law itself.
Intention compliance [IC]: If a law, L, requires A to ϕ, then A obeys L only by ϕing with
the intention to ϕ.
That is, if the law requires me to ϕ, I can obey only by intending to ϕ: to myself characterize my
action as one of ϕing. To adapt a familiar idea from the philosophy of action, I must act under
the legal description of an act required by law in order to obey it. 28
28
See Donald Davidson, Essays on Actions and Events, 2nd ed. (Oxford: Oxford University Press, 2001), p. 50. In a
recent essay, Matthew Hanser assumes IC as an account of obedience, but he gives no reason for preferring it over
the Standard View (or any other). See his “Doing Another’s Bidding,” in George Pavlakos and Veronica Rodriguez-
Blanco (eds.), Reasons and Intentions in Law and Practical Agency (Cambridge: Cambridge University Press, 2015),
pp. 112-114.
22

Does obeying the law require intention compliance, as IC asserts? That is, if the law
requires that I “mitigate damages as the non-breaching party to a contract,” must I intend to
perform an action of just that description, and perform it with an intention of just that content,
in order to obey? While intending to do actions characterized by the sometimes technical
language of the law is uncommon, there are cases in which it does occur as a matter of course.
For example, lawyers, far more often than ordinary citizens, act with an intention of doing
something just as the law characterizes it. This is understandable since lawyers are usually
better acquainted with what actions the law requires, in the language in which it requires it. So
a lawyer may perform “due diligence” for her client, or “protect the attorney-client privilege,”
or provide a “short and plain statement of the claim showing that the pleader is entitled to
relief,” 29 and so on. Sometimes ordinary citizens also engage in this sort of thing; these are
often cases in which there is public scrutiny on a citizen’s conduct and the stakes are high
should the citizen disobey. An example of this comes from the 2012 presidential election in the
United States. Prior to the Republican primaries in 2011, the Federal Election Commission (FEC)
clarified the ruling of the Supreme Court in the notorious Citizens United case 30 that allowed
political action committees to raise unlimited sums of money with which to make
advertisements on behalf of a candidate for president. The FEC deemed that this was
permissible so long as there was no “coordinated communication” between the committee and
the candidate’s campaign. 31 After the adoption of this rule, candidates or their surrogates
made statements to the media using the precise wording of the regulation, in order to claim
29
See Federal Rules of Civil Procedure, Rule 8(a)(2).
30
558 U.S. 310 (2010).
31
See 11 CFR 109.21-22 (2011).
23

that they were acting within its boundaries, and saying that they have not engaged in any
“coordinated communication” with a committee that had produced some controversial
advertisement. 32 But suffice it to say that these kinds of cases are rare.
There is, however, an objection to the intention compliance (IC) view that is analogous
to the objection we encountered earlier against the reason compliance (RC) view of obedience.
The law just does not seem on its face to require, as a general matter, that its subjects intend to
act precisely in terms of the characterization of the action it has specified. In fact, just as the
law is (usually) indifferent to the reasons why one does the action which the law requires in a
given instance, so long as one does it, similarly the law seems to be (usually) indifferent as to
what one intends to do when obeying, so long as one does, under some description, what the
law says. If a token law requires that I pay my taxes, it makes no difference in obeying whether,
when I pay my taxes, I think of what I am doing as “getting the government off my back”,
“contributing to the general welfare”, or whatever.
An additional problem with IC is that it implicitly requires a degree of knowledge of the
law which most people most of the time lack. If a person can obey the law only if they intend
to act under a description of the act provided by the law, and given that modern legal systems
typically govern a vast range of human actions, it would appear that IC would require a similarly
vast knowledge of action descriptions in the law, beyond that of even the most seasoned of
lawyers and judges. For that reason it seems to follow from IC that obeying the law is a
32
See, e.g., Mike McIntyre and Michael Luo, “Fine Line Between ‘Super PACs’ and Campaigns,” The New York
Times, Feb 25 2012: http://www.nytimes.com/2012/02/26/us/politics/loose-border-of-super-pac-and-romney-
campaign.html?_r=1.
24

exceedingly rare phenomenon, far less common than has been supposed both by theorists of
political obligation and ordinary citizens who self-identify as ‘law-abiding.’ 33
While IC is problematic for these reasons, we can generate a further, weaker view about
what an obedient subject must intend in terms of intention conformity:
Intention conformity (IF): Given that a law, L, requires A to ϕ, then A obeys L by

intending to Ψ, and Ψing, only if it is the case that by Ψing, A ϕs.
The intention conformity view expresses the idea that if the law requires me to ϕ, I can obey by
intending to Ψ, such that there is some entailment relationship between Ψing and ϕing. We
can at present remain neutral as to the precise relationship between Ψing and ϕing: perhaps
the relationship is one of strict identity, or there is a necessary means-end relationship between
Ψing and ϕing, or Ψing is constitutive (perhaps even only partly constitutive) of ϕing.
Whatever the best way to explain this connection, the intention conformity view says that all
that is required for a person to obey the law is to intend (and perform) an action that is
describable as the one the law requires. Again, for example, if the law requires you to pay your
taxes, you can intend to do a wide range of things as you submit payment – “manage my
finances”, “do my civic duty,” “fund all the free loaders,” “perpetuate the welfare state,” and so
on – so long as you do an action that is describable as the one the law required you to do: pay
your taxes.
However, IF suffers from the same problem as the reason conformity (RF) view. It is
perfectly consistent with again finding ‘obedience’ in the story of our confused king. For on the
33
The Standard View (RC) suffers from a similar problem. Cf. note 12, above. A pioneering empirical study of
citizens’ self-understanding as ‘law-abiding’ is Tom Tyler, Why People Obey the Law (New Haven: Yale University
Press, 1990).
25

simple intention conformity view, there need not be any connection at all, normative, causal or
otherwise, between legal requirements and the actions of the person who obeys them. There
need not be any recognition or acknowledgement of the law that we found necessary to take
account of in light of the confused king. Purely accidental, and indeed random, intentional acts
by oblivious subjects (or non-subjects) would count as obedience, on the intention conformity
view.
This view, however, does seem to be on the right track. For its failings suggest that one
way to describe the required normative connection between the law and its obedient subjects’
actions is to say that those subjects, while they need not intend to do precisely what the law
literally says to do, in order to count as obeying, they must at least recognize that their conduct
is so describable. 34 Let’s call this view intention conformity with knowledge:
Intention Conformity with Knowledge (IFK): Given that a law, L, requires A to ϕ, then A
obeys L by intending to Ψ, and Ψing, only if it is the case that by Ψing, A ϕs, and A
knows that by Ψing, A ϕs.
While IFK does make some attempt to take account of the platitude that ‘recognition’ of
authority is an essential part of obedience, in the form of knowledge that a subject’s intended
action is describable as one with which the law is in some way concerned, more needs to be
said to avoid mere accidental cases of obedience in which subjects have such knowledge, but it
is inert in bringing about the obedient action. Therefore, we should interpret IFK to claim that
knowledge of the fact that one’s conduct is describable as an act permitted, forbidden, or
required by the law must play some role in the explanation as to why one acts as one does on
34
Raz long ago characterized something like this view of obedience as “conformity coupled with knowledge”. See
The Concept of a Legal System, 2nd ed. (Oxford: Clarendon Press, 1980), p. 15. There he mentions it in a critical
discussion of John Austin’s view of obedience, but does not pursue it further.
26

the relevant occasion of obedience. I haven’t the space here to pursue in any detail the
question, rarely asked by legal and political philosophers, of what role that must be. The
argument to this point, however, suggests that the knowledge of action-description
equivalence need not play an explicit role in the practical reasoning of an obedient subject, for
example by functioning as a reason for performing the required action, but yet may make a
contribution to action by being in the background of that reasoning. 35 Obedience requires that
knowledge of the law at least motivate action, whether or not that knowledge explicitly guides
action in deliberation.
The connection described in IFK between the law and its subjects, which is the
understanding by the subject that her action is characterizable as one with which the law is
concerned, such that that fact in part explains her action, is explained by the broader aspect of
authority I explained earlier. Whether or not the law provides its subjects reasons for action, it
individuates and conceptualizes a wide range of human actions, such that subjects must adopt
those conceptualizations as a condition of obedience. This account does align with a wide
range of cases. For example, it is a striking aspect of legal practice, illustrative of this, that
otherwise ordinary human conduct can and is re-characterized all the time in pleadings written
by lawyers, and submitted in court proceedings, in order to state a prima facie case before a
court. Any plaintiff’s lawyer knows you’d better describe the defendant’s conduct in the
35
I use the phrase ‘in the background’ in precisely the sense developed by Philip Pettit and Michael Smith in
“Backgrounding Desire,” in Frank Jackson, Philip Pettit, and Michael Smith, Mind, Morality, and Explanation
(Oxford: Clarendon Press, 2004), pp. 271-72, that is, as a motivating reason for action: “The desire for S figures in
the background if and only if it explains the agent’s choice of option. It figures in the foreground if and only if the
agent reaches that choice via the recognition that he has that desire and that the option has the desirable
property… More generally, a desire is present in the background of an agent’s decision if and only if it is part of the
motivating reason for it: the rationalizing set of beliefs and desires which produce the decision.” Though they do
not explore the possibility, backgrounding knowledge rather than desire or belief is consistent with their account.
27

precise terms of the statute or common law rule so as to avoid having the case dismissed by a
judge as “failing to state a claim upon which relief can be granted.” 36 So, for example, imagine
two men in a pub late on a Saturday night who have a disagreement and come to fisticuffs. We
might suppose that the victor intended to, and did, “teach him a lesson” or “showed him who’s
boss”. But by Monday morning in the courthouse, what he did has been recast (by his
adversary’s lawyer) as “intentionally and without consent caused a reasonable and immediate
apprehension of imminent bodily harm in another person” (a formulation of the common law
definition of assault). And on the view I’m suggesting our bruiser failed to obey because he
failed to see that his intended conduct was characterizable in just this way, as at variance with
what the law required him to do or refrain from doing, and allowed that to play some
motivating role in the explanation of his action.
There are many refinements to be made to this line of thought, but it seems to me that
something like IFK is the most promising. One may object that IFK suffers from a similar
problem raised against both RC and IC: that IFK requires for obedience detailed knowledge of
the law, which most people lack. The consequence of IFK thus would similarly seem to be that
most people most of the time do not obey the law. That is, most people don’t exhibit any
awareness that the things they do in the course of a day is describable in precise legal terms
under the law as permitted, required, or forbidden. To be sure, some do, namely experts in the
law (lawyers, judges, administrators, etc.), who may go through a day “taking reasonable care”,
36
Federal Rule of Civil Procedure 12(b)(6). The rule is an interesting case, as it provides an action description (in
this case an omission) which the law directs plaintiffs, defendants (in order to raise a motion), and the judge (in
order to dismiss a case) to each apply to the conduct of the plaintiff in initiating a lawsuit.
28

or “acting in good faith”, or “performing due diligence”, or whatever. But ordinary citizens
rarely exhibit this level of knowledge of the law, and thereby are unable to obey it.
The objection in fact sets the bar far too high in regards to what knowledge of the law
must be in this context and how it must be manifested in acts of obedience and in the
explanations of those acts. For all that IFK requires is knowledge of the relevant legal norms at
some level of description. A person may know the language of a statute or regulation verbatim,
but more often the knowledge which plays a role in motivating action is much more coarse-
grained. One may know the core of a legal requirement without knowing the particulars; in the
extreme, one may manifest sufficient knowledge of a legal norm only by using what Anscombe
once called a ‘stopping modal,’ a deontic locution that is opaque with regard to the content of
the relevant norm, but references it nonetheless (“You can’t cross the street there,” “You have
to pay the fine,” and so on). 37 The character of legal knowledge has received scarce attention
from philosophers of law, but for present purposes, it is enough to say that obedience to law
allows for such knowledge to take many forms, and it nonetheless be the case that the person
who obeys both recognizes a legal norm as an authoritative directive, and allows that fact to
make a difference, both causal and normative, in the production of her action.
III. DISOBEDIENCE
I turn now to the even more neglected topic of disobeying the law; there is not in fact an
articulated (much less defended) view of disobedience to be found at all in the relevant
literatures (on civil disobedience and philosophical anarchism, for example). So it would be of
37
G.E.M. Anscombe, “On the Source of the Authority of the State,” in Collected Philosophical Papers of G.E.M.
Anscombe, Vol. 3: Ethics, Religion, and Politics (Oxford: Blackwell, 1981).
29

some interest to arrive at some considered view of the matter, in order to understand better
what is at stake in those debates. Given the foregoing discussion of obedience, one question to
address at the outset is the logical relationship between obeying and disobeying the law. One
view is to treat them as akin to truth values of actions, in the sense that from the point of view
of a legal system, for any possible action, it is a token instance of either obeying or disobeying
that system or one of its constituent legal norms. At first glance, this seems to be a very strong
and capacious take on the proper application of those concepts; it would seem to follow that,
for example, anyone who is not (at a given time) obeying the criminal law of Texas is disobeying
it, and this does not seem to capture the normative relation (if there is one) between, say, the
citizens of France and the relevant parts of the Texas legal system, a relation which seems far
more tenuous than that. 38 A weaker and more plausible view is that while a token action by a
person subject to a given legal system cannot at once be both an act of obedience and
disobedience in respect of the same law, it can be the case that token actions may be neither
acts of obedience nor disobedience. In the language of classical logic, the concepts of
obedience and disobedience are contraries, and not contradictories.
What then does disobeying the law require? A natural place to start is with the negation
of the Standard View of obedience, that of reason compliance.
Reason Non-Compliance [RNC]: Given the fact, F, that a law, L, requires A to ϕ, then A
disobeys L by failing to ϕ for the reason that F.
It is easy to see that this view suffers from problems analogous to the ones raised against the
Standard, reason compliance view of obedience (RC). Reflection on specific cases, like the
38
Hans Kelsen seems to take this view in an argument for the existence of a single, international Grundnorm. See
his Principles of International Law (New York: Rinehart and Company, 1952), pp. 559-662.
30

murder example, seems to show that RNC does not capture what it is to run afoul of a legal
requirement, especially in such paradigm examples in the criminal law. For example,
disobeying the law by failing to refrain from murder for a specific reason, that is, for the reason
that the law forbids it implausibly overstates (and drastically complicates) the conditions for the
triggering of a sanction. It is enough, it seems, for a person simply to fail to do what the law
requires, regardless of their reasons for the failing. This is captured by the negation of the
reason conformity view (RF):
Reason Non-Conformity [RNF]: Given the fact, F, that a law, L, requires A to ϕ, then A
disobeys L by failing to ϕ and thereby failing to conform to F.
But again, analogous problems arise with RNF as the ones I raised against RF. Disobedience, on
the interpretation of RNF, could occur by cosmic accident; a person could disobey the law by
scarcely doing anything, for any reason, or for no reason at all. Nor is there, again, any
requirement here of the right direction of fit. The view would therefore entail such absurd
consequences as, for example, the idea that distant peoples of the past disobeyed the current
New York penal code. RNF also runs afoul of a commonplace of the criminal law, according to
which it is often the case that offences (and ipso facto acts of disobedience) are committed
with certain sorts of intentions (for example a ‘mens rea’). So it might be thought that
negation of the intention compliance view (IC) is on the right track:
Intention Non-Compliance [INC]: Given the fact that a law, L, requires A to ϕ, then A
disobeys L only by ϕing with the intention of not-ϕing.
However, yet again, analogous problems arise as we encountered in the discussion of
obedience as stated by IC. It is highly implausible (not to mention a peculiar public policy) to
require that disobeying a law requires acting with a specific intention to fail to do an action
31

under the full description contained in the relevant legal norm. As observed in the previous
section, there are exceptional cases in which one intends an action under the legal description
of that action, but even more exceptional would be intentional omissions in regards to those
descriptions; only the most indignant anarchists would engage in such behavior.
The remaining complementary views to those developed with respect to obedience,
however, do seem more promising. Consider:
Intention Non-Conformity (INF): Given that a law, L, requires A to ϕ, then A disobeys L

by intending to Ψ, and by Ψing, only if it is the case that by Ψing, A fails to ϕ.
This seems to at least partially capture the notion of disobedience (or ‘offending’) underlying
the criminal law: to act with an intention to perform an act-token which is reasonably
describable as one which the law forbids. 39 There is a wide range of cases which cannot be
considered here, though I note that INF is consistent with many of the important theories of
the role and content of intentions in the criminal law. 40 I put aside the prospects of INF as a
characterization of standard cases of disobedience, in order to isolate what is involved in acts of
civil disobedience.
For acts of civil disobedience seem to be markedly different from the ordinary acts of
disobedience of thieves and murderers. The most salient difference of those acts of
disobedience (quite apart from all the aspects, most discussed by political philosophers, which
make those acts ‘civil’) is that they are done with some knowledge of a range of relevant,
39
I mean ‘reasonably describable’ in a non-technical sense so as to avoid any reference to any particular
evidentiary standard of proof in establishing the elements of a given crime.
40
See, e.g., Gideon Yaffe, Attempts: In the Philosophy of Action and the Criminal Law (New York: Oxford University
Press, 2010), pp. 109-119, Michael Moore, Placing Blame: A Theory of the Criminal Law (New York: Oxford
University Press, 1997), pp. 459-469. and R.A. Duff, Criminal Attempts (Oxford: Clarendon Press, 1996), pp. 316-
319.
32

applicable laws. These acts are done with knowledge of descriptions of acts provided by the
law which agents may perform deliberately, or as a necessary means to deliberately performing
civilly disobedient acts. The analogue of the intention conformity with knowledge (IFK) view
discussed above captures the idea:
Intention Non-Conformity with Knowledge (INFK): Given that a law, L, requires A to ϕ,

then A disobeys L by intending to Ψ, and Ψing, only if it is the case that by Ψing, A does
not ϕ, and A knows that by Ψing, A fails to ϕ.
Notice that on this view that it is not necessary for A to intend not to ϕ in order to (civilly)
disobey, but rather to intend an action which A knows either is or in some way results in not-
ϕing. And we can add the same qualification to INKF as we did to IFK, that the relevant
knowledge play some role, if only in the background, in producing the civilly disobedient act.
Unlike cases from the criminal law, acts of civil disobedience are a specific kind of intentional
omission, what Clarke calls intentional refraining: “one can carry out an intention to A and be
aware that, in intentionally A-ing, one will not do something B, without then intending not to B,
and yet intentionally refrain from B-ing.” 41 INFK attempts to capture this notion and combine
with the idea that the relevant knowledge or awareness must move the agent to act.
I think the concept of disobeying the law on the model of INFK is at the core of the
explanation of how a person must in fact proceed if they are to perform an act of civil
disobedience. Theorists of civil disobedience rarely look to the actual history and practice of
civil disobedience as a guide to theory construction; 42 but my suggestion of what disobedience
41
See Randolph Clarke, Omissions (Oxford: Oxford University Press, 2014), p. 68, and the examples he considers
there.
42
Two notable exceptions are Vinit Haksar, Civil Disobedience, Threats and Offers (Oxford: Oxford University Press,
1986) and David Lyons, “Moral Judgment, Historical Reality, and Civil Disobedience,” Philosophy & Public Affairs 27
(1998): 31-49.
33

requires in cases of civil disobedience is consistent with the evidence of how practitioners of
civil disobedience themselves characterize what they are in the business of doing.
For example, in one of the classic statements and defenses of civil disobedience, Martin
Luther King, Jr., points out that civil rights protestors engaging in civilly disobedient acts aim
“consciously to break laws,” 43 which I have taken account of in the knowledge constraints of
civilly disobedient action as reflected in INFK. To take another example, Mahatma Gandhi once
wrote that being merely “mentally disobedient” is a necessary but not sufficient condition of
successful civil disobedience; by “mentally disobedient” he seems to have meant intentionally
acting with the knowledge that one’s action was inconsistent with what the law permits,
forbids, or requires, which is precisely the core idea of INFK. 44
Beyond these classical sources, if one looks to the practical literature of civil
disobedience and nonviolent resistance, one finds routine expression of the core idea of INFK.
In many handbooks of ‘direct action,’ used from the 1960s onwards, one finds advice to
protestors as to which laws they should aim to disobey in the course of their activities, and for
which they may be arrested. 45 A recent and striking example is the instructional materials
provided to those engaged in civil disobedience in the 2014 “Umbrella Revolution” in Hong
Kong, in which students publicly protested political oppression by the ruling communist party in
43
Martin Luther King Jr., “Letter from a Birmingham Jail” in A Testament of Hope: The Essential Writings of Martin
Luther King, Jr. (San Francisco: HarperCollins, 1991), p. 293 (my emphasis).
44
See The Collected Works of Mahatma Gandhi, Vol. XX (India: Ministry of Information and Broadcasting,
Publications Division, 1966), pp. 464-66. Gandhi’s point was that mere disobedience of this sort required in
addition the now familiar elements of civility (a public, conscientious act, and so on) in order to qualify as civil
disobedience.
45
See the many historical examples in Gene Sharp’s seminal work, The Politics of Nonviolent Action (Boston, Mass.:
Porter Sargent, 1973), pp. 303-319. Examples of such handbooks can be found at
http://www.directaction.org/handbook/ (accessed January 12, 2018).
34

Beijing. 46 In those materials, ordinances of the Laws of Hong Kong are quoted in full (the legal
norms setting out the description of such offences as ‘obstructing a public place,’ ‘unauthorized
assembly,’ and so on), with the clear purpose of providing protestors knowledge of the precise
legal descriptions of forbidden acts, in order for them to knowingly and intentionally fail to do
them.
So according to INFK, the civilly disobedient citizen must know the law they wish to
disobey, and, as it were, take up the point of view of the law regarding her proposed action, in
order to determine whether that action would be an act of disobedience at all. 47 Since this
person actually aims at disobeying, she must make sure that how the law would characterize
what she proposes to do is at odds with the action it forbids. There is therefore a certain
symmetry between the accounts of what obedience and civil disobedience each requires. In
each case, a person subject to the law must, to some extent and at some level of description,
adopt the understanding which the law provides of a given action or range of actions, in order
to act with, and be motivated by, the knowledge or awareness that one is or is not doing
something which corresponds to that understanding.
IV. CONCLUSION
I have argued that some versions of IFK and INFK are the best we can do to explain the
foundational concepts of obeying and disobeying the law, at least as they figure in the
philosophical debates about political obligation, civil disobedience, and legal authority. On the
46
See the civil disobedience handbook provided to protestors in Hong Kong at the website “Occupy Central”,
accessible in English here: http://oclp.hk/index.php?route=occupy/eng_detail&eng_id=28. (accessed January 12,
2018). See esp. Section 1, “Guidance Note on Legal Matters.”
47
The same qualifications on the knowledge condition discussed above (pp. 24-25) apply here as well.
35

one hand, requiring any more to obey the law will simply not bear out what the law actually
requires from us in a broad range of cases. On the other, requiring any less would allow us to
find obedience everywhere, and thus nowhere, and would leave us as bad off as our king
without a kingdom. The same can be said of any plausible account of disobedience. But even
so, these accounts begin to clarify what is at issue in the discussions about the possible
justifications of a general duty to obey the law, or whether a citizen is justified in civilly
disobeying the laws of the state. For those questions are in part about when a citizen must, or
should, take up the point of view of the law when understanding their own actions and
intentions, a point of view which is essential to understanding themselves. If these views of
obedience and disobedience are considered within those debates, it becomes clearer why they
are so important, and makes more precise one way in which the state can, and routinely does,
influence those over whom it claims the right to demand obedience and to punish
disobedience.
It may be suggested that the regimentation of the concepts of obedience and
disobedience I have proposed in this paper is more than we should reasonably expect from
them, and that the long-standing inattention to their contours and significance is just as it
should be. Some rough notion of ‘conformity to’ or ‘breach of’ the law is all we need to get on
with our work in legal and political philosophy, and so I have in effect made a mountain out of a
molehill. Nothing is lost, one may think, in the discussions of whether there is a duty to obey
the law, or whether civil disobedience is ever justified, if the notions of obedience and
disobedience are left virtually unexplained; and, further, nothing is gained on the score of
clarity by engaging in the sort of analysis I have offered here.
36

If this criticism is right, then I think that all of the perennial debates in which the ideas of
obeying or disobeying the law feature will continue to be fraught with ambiguity and
uncertainty as to the kind of human actions and attitudes under discussion. The long-standing
questions of, for example, how a duty to obey the law can be justified, what sort of duty it is, as
well as in what sense civil disobedience is permissible or even obligatory, are of course urgent
and important. But unless we have a better understanding of what sort of thing the duty to
obey the law is a duty to do, or just what sort of thing one must do in order for one’s action to
be civilly disobedient, then the very questions which philosophers have long asked about them
will themselves remain obscure.
37

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The University of Sydney Law School

Legal Studies Research Paper Series

Obeying the Law

This paper can be downloaded without charge from the

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OBEYING THE LAW

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subject to precious little critical assessment. 5

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the moral significance of acts of disobedience, civil or otherwise.

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preference among legal and political philosophers.

a default view against which exceptional cases can be contrasted.

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successfully engage in the practice.

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disobeying it is ever justified. 6

I. OBEYING THE LAW: THE STANDARD VIEW

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many of the things they have independent reason to do.

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Reason Compliance [RC]: If it is a fact, F, that a law, L, requires A to ϕ, then A obeys L by

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subject to it do the things they are legally required to do.

Suppose we accept these counterexamples to the Standard View as persuasive and

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indifferent, but by mistake were unsuccessful because of incompetence or weakness of will,

not intending anything at all, e.g., when sleepwalking.

goes like this:

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misunderstands what it is to require or command something of someone. He merely describes

commanding that p is an attempt to do something with language, to realize some state

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to account for this, as demonstrated by our confused king. A philosophical explanation of

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explained what that distinctive recognition must be.

whether that correspondence is established by intentional, conscious, and rational action by an

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II. OBEYING THE LAW: NEW VIEWS

presents its own questions.

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before, during, and after the formation and execution of an intention.

‘conceptualize’ social reality.” 27

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heat of passion and in response to adequate provocation (one formulation of an act of

voluntary manslaughter), or that we may create a non-possessory security interest in the

bottomry of a vessel (as one can do in maritime law).

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there must be something we must do accompanied by an intention with a characteristic

content. But what must we intend?

the legal description of an act required by law in order to obey it. 28

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in order to obey? While intending to do actions characterized by the sometimes technical

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