The Ethics of Obeying Judicial Orders in Flawed Societies
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The Ethics of Obeying Judicial Orders in Flawed Societies Robert C. Hughes1
© Springer Nature B.V. 2020
Abstract Many accounts of the moral duty to obey the law either restrict the duty to ideal democracies or leave the duty’s application to non-ideal societies unclear. This article presents and defends a partial account of the moral duty to obey the law in nonideal societies, focusing on the duty to obey judicial orders. We need public judicial authority to prevent objectionable power relationships that can result from disputes about private agreements. The moral need to prevent power imbalances in private relationships grounds a qualified moral duty to obey judicial decisions. The parties to a dispute are morally required to comply with a judicial order in their dispute if all of the following conditions obtain: (1) the parties’ dispute was in good faith, (2) the court’s resolution of the dispute is more impartial than either party’s own judgment, (3) the order does not call for violation of important natural duties or important artificial duties that the duty-bearer incurred involuntarily, and (4) the primary aim of disobeying the court order would be to advance an ordinary, non-political project, not to call public attention to an injustice. The moral duty to obey judicial decisions can survive significant departures from ideal fairness. Keywords Contracts · Duty to obey the law · Judicial authority · Non-ideal theory · Political obligation
* Robert C. Hughes [email protected] 1
Legal Studies and Business Ethics Department, The Wharton School, University of Pennsylvania, 3730 Walnut St. Suite 600, Philadelphia, PA 19104, USA
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R. C. Hughes
Introduction Some accounts of the duty to obey the law argue that the duty is contingent on the legal system meeting high standards of legitimacy. For example, many democracybased accounts of the duty rely on definitions of democracy that few, if any, of the societies conventionally labeled ‘democracies’ satisfy.1 If there is a moral duty to obey the law only in societies that are politically nearly ideal, there is no actual duty to obey the law.2 This is an uncomfortable conclusion. Other accounts of the duty to obey the law maintain, plausibly, that there is a defeasible duty to obey the law even in societies that fall short of the democratic ideal.3 These accounts can provide at most limited practical guidance without some method for determining when other duties (e.g. the duty to avoid injustice) outweigh the duty to obey the law. It would be desirable to have an account of the duty to obey the law that explains why there is sometimes, but not always, a duty to obey the law in flawed societies, and that provides concrete guidance about when the duty applies.4 This article provides a part of such an account, focusing on one component of the duty to obey the law: the duty to obey judicial orders. I aim to show that there is a distinctive reason to respect judicial authority: it remedies objectionable inequalities of power that can a
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