3.1 - Sypnowich, Christine - Consent, Self-Government and Obligation (en)

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Consent, Self-Government and Obligation

Consent, Self-Government and Obligation

by Christine Sypnowich

Source:

PRAXIS International (PRAXIS International), issue: 3 / 1986, pages: 256-276, on www.ceeol.com.
http://www.ceeol.com/http://www.ceeol.com/http://www.dibido.eu/bookdetails.aspx?bookID=9e4d6499-94a7-47c0-b6d3-48244233281fhttp://www.ceeol.com/


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Praxis International

Vol 6 3 A Philsophical Journal October 1986

redigitized by Central and Eastern European Online Library - www.ceeol.com

DEMOCRACY, SOCIALISM, AND POLITICAL THEORY

CONSENT, SELF-GOVERNMENT AND

OBLIGATION

Christine Sypnowich

It belongs to man to judge the law at the risk of being judged by it.

Maurice Merleau-Ponty1

This paper raises the age-old problem of the citizens obligation to the state,but in a radical framework, where all citizens fully participate in the making oflaw, and where all citizens enjoy maximum economic and social equality. I amconcerned with the citizens attitude to law under a model of democraticsocialism,2 to discover whether radical theory can justify a moral obligation toobey the law where liberal theory fails. This question will be analyzed fromthe perspective of a socialist theory of law which, while critical of Marxismstypically reductionist approach to legal issues, draws on Marxist ideas informulating an alternative.

There are many kinds of obligations which one could incur to obey the law.In this paper, I want to focus on what I shall call an intrinsic obligation toobey the law. An intrinsic obligation to obey the law is an obligation to obey itbecause it is the law. This obligation holds regardless of other, extrinsicobligations I may have to obey the law which result from, say, a prior moralcommitment, a promise to a friend to do what the law requires, or a legalobligation in virtue of a contractual relationship with another party. If thereis any such intrinsic obligation, it would resemble an obligation to obey ones

parents, which holds in virtue of the fact that they are ones parents, and doesnot derive from the nature of their particular requests and the situations towhich they apply. However, it would be a mistake to conclude from this thatan intrinsic obligation is somehow underived. Rather, this obligation derivesfrom the nature of the law itself (hence the title of an intrinsic obligation). Itis thought to hold because the law meets certain standards; i.e. that it isenacted by a government of the right sort, one which has legitimacy as theauthoritative basis for law-making. For liberal political theory, the legitimacy

of government is typically a function of the participation of citizens in thepolitical process. This participation is defined minimally, however, to bemerely a matter of citizens consenting to government. Carole Patemanswritings on participatory democracy provide a radical alternative to the liberalconsent model. Arguments for participatory democracy call into question thelegitimacy of the liberal democratic state and thereby the obligation to obey itslaws, claiming that only a political system in which all participate in theformulation of all political decisions has the legitimacy required for anintrinsic obligation of obedience.3 The radical challenge, however, is made on


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Praxis International 257

the basis of the familiar liberal premise that citizens political involvement isthe foundation of the legitimacy of the state and thereby, the basis of anobligation of obedience. This paper argues that no system is legitimate enoughin that sense to generate an intrinsic obligation to obey the law.4

It is not my object to assess the validity of the general claims of theparticipatory model, whether citizens lives will be enriched, or decisionsmade more just; rather, this paper focuses on the issue of whether the

proposed expansion of citizens involvement in political life provides a specialcase for an obligation to obey the law.5 I will examine how the problem ofobligation is affected by the claims and ideals of a socialist community by rst,analyzing the shortcomings of consent theories of obligation developed byliberal writers; second, setting out the argument of the socialist alternative, asan heir to the political tradition of classical Greece, and as it is developed in

the thought of Rousseau, Pateman and Marxist writers; and third, examiningthe difculties which undermine the theory of obligation in a participatorydemocracy.

The Possibility of Socialist Law

Before the question of the nature of obligation to socialist law can beaddressed, a more fundamental problem awaits resolution: that is, whetherthe idea of legal institutions in a socialist form of society is even intelligible.Socialism and the law have been uneasy bedfellows. Certainly the notion that

political and legal institutions will wither away with the emergence anddevelopment of socialist society has had a long legacy in radical thought.

Given the scope of this paper, a thorough refutation of the theory of thewithering away of law can hardly be attempted. I will, however, suggestgrounds for allowing for the possibility that legal institutions could persistunder socialism, rendering the question of the citizens attitude to law arelevant one.

There are within Marxism various perspectives on the issue of lawsrelationship to capitalism, which I will group into three different conceptionsof law. While not necessarily incompatible with each other, these conceptionscan be roughly distinguished as follows. Law can be dened as an expressionof egoism, a means of reconciling antagonistic, alienated and self-interestedwills.6 Another position depicts law as a means of consolidating the interestsof the ruling class, of capital, against the interests of the proletariat.7 Finally,law is considered a form of ideological mystication, offering formal, equal

rights to liberty and security, thereby clouding substantive inequalities insocial and economic relations.8 In all three positions, a phenomenon whichwould have been described in legal terms under capitalism, must, upon thewithering away of law, be understood as something qualitatively different.There are two arguments to be made against this view; the rst, a modest one,from an immanent or internal perspective, and the second, a more ambitiousone which challenges the core of the withering away doctrine.

To start with the minimal tactic rst, even if one accepts that law willeventually disappear under socialism, it remains that law will have a role to


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258 Praxis International

play in the transitional period before postcapitalist society reaches its fullestdevelopment. For instance, jurists in the Soviet Union continue to contendthat their role is to use law to create conditions where law will be unnecessary,to eliminate remnants of bourgeois egoism and class conflict, therebyremoving the need for law.9 Not surprisingly, the nature of the road to thesocialist, lawless future has been a source of contention among Marxists,

particularly in the U.S.S.R. For some, a period of socialist law is unthinkable:law will disappear upon the highest development of capitalist legal insti-tutions, as the Soviet theorist Evgeny Pashukanis claimed in the 1920s era ofthe National Economic Policy.10 Jurists since Stalin have tended to argue,however, that law must first be transformed into an instrument of socialism,to consolidate the power of the Soviet state; if law was viewed undercapitalism as a means of organizing productive relationships in the interest of

the dominant class, then it could be of some use for the dictatorship of theproletariat in the transition to socialism.11 In any case, it would appear thatradical theory envisages a need for some form of law as long as the socialist

project is only partially realised.One may want to go further, however, and make a stronger critique which

addresses the moral danger of the withering away thesis, and urges that lawhave a permanent, positive role to play even in a ourishing socialist society.History gives some credence to this view, as the notion of a merely transitionalsocialist legality based on class rule justied a reign of legalized terror underStalin in the U.S.S.R.12 Similarly, the supposed end of law may precipitate aredenition of legal claims and conicts as concepts are manipulated in the aidof political concerns (e.g. re-education, which centres on eliminating the

supposed criminal tendencies inherent in the personalities of those convicted,replaces punishment, as anti-social behaviour is treated as mental deviancyby psychologists.) There is a great deal to be said for the rule of law, insofar asit handles interpersonal conflict and conflict between state and citizen in a

public forum, to be discussed and decided in full view of the citizenry, ratherthan in the unseen world of hospitals and asylums.

In any case, the denitions of law as a vehicle of egoism or ideology providesome ground for a socialist jurisprudence which does not foresake all liberalideals. The view of law as a social structure which mediates bourgeois egoismgrasps the interpersonal conflict which underlies law, but it denies the

possibility of conflict which is not the result of selfishness. A socialistjurisprudence thus rests on the possibility that interpersonal conict may arisein socialist society which is not connected with egoism and class divisions.

Even in a socialist society without self-interest, narrowly construed, legalinstitutions may be necessary to adjudicate between seless views of the good.If we make the implausible assumption that men under socialism will sharethe same sensitivity to a set of altruistic duties, it remains that these duties willconflict in particular cases, and disputes would doubtless arise over theoutcome of these conicts.13 More fundamentally, Marx did not envisagesocialism as a society of philanthropists intent on doing good works; thesocialist revolution is the consequence of proletarians coming to consciousnessof where their interests lie, and socialism itself consists in creative beings


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engaging in meaningful activity as, amongst other things, a vehicle for theirown fulfillment.

The view that law is a form of ideology also reveals the positive componentsof legal institutions. E.P. Thompson argues that law is only ideological insofaras it offers something of real value.14 A socialist jurisprudence must beginwith a grasp on the ambivalence of legal ideology, which in its very role as asource of legitimation, offers moral values of signicance for a society foundedon equality and justice. The weakness of the withering away argument, in allits manifestations, lies in its inability to explain why positive aspects of law incapitalist society are without utility in socialist society. After all, Marxism has

perhaps too readily envisaged a socialist future which exploits capitalisttechnology, arguing that the technological resources of capitalism areabolished, preserved and transformed in the historical movement towards

socialism. It would seem to be available to Marxism to likewise embrace law asan emancipatory feature of capitalism which would continue to exist, albeit inan altered form, in a socialist future. One can accept the view that theabstract, formal liberties offered by law in liberal democracies leaveunchallenged the exploitation and domination intrinsic to the capitalistsystem, or even worse, that in providing such liberties, law legitimates andthereby serves the injustice of the economic order. But if these libertiesnonetheless stand as fragments of genuine justice, or even possible instru-ments for emancipation, as the ideology and egoist views taken togetherconcede, then socialists would do well to consider them as social institutionsworth preserving and developing in postcapitalist society.

Obligation derived from Consent

The argument for deriving political obligation from participation inlaw-making is an heir to consent theories of obligation from Hobbes onwards.Social contract theories of the seventeenth and eighteenth centuries attemptedto found obligation on consent to the principle of government, rather thanconsent to a particular government. For Hobbes, the nature of the particulargovernment was not at issue: any political state was better than none, facedwith the alternative, the brutal state of nature. Given the desirability ofmaintaining any political regime, citizens enter into contracts to alienate their

powers to the state, thereby obligating themselves to obey state laws.15 Locke,however, claimed that consent was to be given more discriminatingly, to thosegovernments which would promise to protect citizens lives and property. If

the state failed to meet these obligations, citizens would then be justied inabdicating theirs, and could legitimately disobey state laws.16

The project of circumscribing the basis for political authority has beentaken up by modern political theorists. J.P. Plamenatz, for example,conceives obligations as the result of the majoritys consent to a particulargovernment, not government in principle, as Hobbes would have it, nor evena particular type of government such as the Lockean one. Plamenatzs consenttheory holds that in giving consent to a political authority, the citizen acceptsan obligation to abide by the authoritys laws and decisions. In selecting our


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government we take responsibility, not for anothers actions, but for enablingothers, as our representatives, to act in a certain way. We voluntarily decide toempower certain people by granting them political authority, and we areanswerable for this decision.17

However, this theory presents obvious difculties. The act of solemncommitment to government required by the consent-giving contract is in mostliberal democratic societies a rare event indeed. As often as not, thegovernment in power is elected by a minority of the populace, since many donot vote at all, and of those that do, particularly in multi-partied states, manyvote for unsuccessful candidates. (Even President Reagan, for example, whois thought to have come to power with an overwhelming majority, was elected

by a minority of Americans capable of voting.) If consent is the prerequisitefor obligation, Pateman argues, then either few citizens can be said to have

obligations, or the relevance of consent seems suspect and one wonders why itwas invoked in the first place.18 If obligations arise out of voluntarycommitments created by an expressed intention to be bound, then the theoryof consent is an inadequate basis for obligation.19

One solution is to interpret the political rights of citizenship, such as theright to vote, as a form of consent:

In voting, ones voluntary behaviour leads others to the reasonable belief thatone consents to the majority decision-procedure. After the event one cannot saythat one never consented or to be strictly accurate, even if one says that onenever consented, one is still obliged as if one had consented.20

This view appears in Plamenatzs theory, in a postscript, where he redenes

consent as something given in virtue of voting in general: if there is anestablished process of election, anyone who takes part in the process consentsto the authority of whoever is elected to the ofce.21 This answer seems to giveconsent a meaning different from its usual sense so that obligation is derivednot from consent but from something else, from the mere activity of giving orwithholding it. But one could say that, voting against the ConservativeGovernment, for example, is precisely an act of not giving consent to it. Thedogma that consent is derived from voting serves to encourage abstention as astronger form of political opposition than voting against a candidate seeking toform a government. As Raz points out, one can be against democracy and stilldecide to vote in elections.22 Moreover, even if one supports the democraticsystem, Singers assertion does not undermine the force of the counter-assertion that one has no obligation to those who are elected against ones will.

Plamenatz also maintains that one has a reason to obey the law in ademocratic polity because representative governments are easily changed, sothat those who dislike their policies have better reason for hoping that theycan cause them to be reversed.23 No doubt the consideration that I may beable to change the law may render obedience less onerous; no law need be inforce indenitely. However, this argument buttresses a concept of obligation

based on an expectation that consent will eventually be granted, not consentitself. This is a rather weak claim, particularly since one may have little reasonto believe that the candidates one supports will ever attain power. It is still


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open to those who did not consent to say that they have no intrinsic obligationto obey the law until a government which has their consent is elected.

Another argument which is often invoked is that consent is given so long asone does not emigrate. But to contend that tacit consent has been given

because one remains in the community, although one has opposed the electionof the government., seems most underhanded. First, it seems inappropriate to

base the weighty matter of political obligation on what Walzer calls thenon-act of not-leaving.24 Moreover, there are obvious political, economicand personal constraints on emigration. Political refugees are not welcome inmany countries, if indeed one who leaves his homeland because he opposesthe government there is entitled to that status. The potential refugee mayalso believe that there are no other countries worthy of his consent. As Humemaintains,

We may as well assert that a man, by remaining in a vessel, freely consents to thedominion of the master; though he was carried on board while asleep, and mustleap into the ocean and perish, the moment he leaves her.25

Also, it is possible that the individual may consider his attachment to hiscommunity too profound to leave.26 So paltry is the foundation of consent insocial contract theory that obligation dwindles from a commitment arising outof a political choice, to an inescapable consequence of ones existence in acommunity.

The liberal model offers another argument, which nds its most inuentialexpression in John Rawlss A Theory of Justice, that citizens are obligated toobey the law because they derive benefits from the state. Rawls argues that

obeying the law is simply a matter of doing ones fair share if one gains fromthe cooperative labours of others.27 H.L.A. Hart also argues that once theindividual opts into a social structure he has an obligation to obey its laws,which if broken, endangers the conditions of social existence and cooperationfrom which he prots.28 Although he rejected the idea of a social compact,Hume also argued, of course, that citizens were obligated to obey the lawbecause society could not otherwise subsist.29 However, one could arguethat social benets might also be generated by disobeying a law; there is nonecessary connection between obedience and social benefits.30 In any case,like the citizens membership in a particular community, deriving benefits isnot something over which the individual has much control. If consent meansanything at all, it must be actively given. Furthermore, the fact that I benefitfrom obedience does not appear to be grounds for an intrinsic obligation toobey. Rather, the law is an instrument, and the reasons I have to make use ofit are not obligations.

A more radical critique of the social contract holds that even if obtained, theindividuals consent in the liberal democratic state is a sham, given the usuallow level of political awareness and involvement. Because the weak, the poorand the unorganized are politically inarticulate, bereft of political opinion andhence alienated from the public domain, they cannot be said to have giventheir consent, even if they helped vote in a government. 31 Marxismdistinguishes between the individuals real interests and his apparent


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interests. Imbalances in economic and social power set limits, whetherobjective or subjective, to peoples political power, and the parameters of their

political vision.32 Hence, on this critique, not only does the liberal politicalorder lack the consent of many of its weakest members, even if this consent isacquired, the real, though perhaps unexpressed, interests of these memberswould remain unrepresented. It is on this basis that in his polemic, Their

Morals and Ours, Trotsky sneers at the vacuity of norms obligatory upon all ina society of class divisions, where the solidarity of class is more categoric thanmembership in the body politic.33 While the socialist may concede that theliberal state extends benets, their value will be open to the question: benetscompared to what?34

The Radical Alternative

Platos dialogue, The Crito, offers a case for obligation based on the specialrelationship between citizen and community peculiar to the Greek polis.While Socrates is often quoted to support liberal democratic theories ofobligation, his position relies on a political structure which contrasts sharplywith most modern states. Political decisions are reached in a small, intimateforum where all citizens actively participate, a model which suggests a parallelwith the contemporary idea of participatory democracy. It is thus appropriateto begin an analysis of the radical case for obligation with an examination ofthe relevance and force of Socratess argument for political obligation in TheCrito.

Socrates is wrongly convicted of corrupting the youth and is sentenced todeath, having rejected an alternative sentence of banishment. His friend Critourges that he escape, but without success. Socrates notes the important rolethe laws have had for his development, how they nurtured and educated him.He reminds his friend how he was able to affect the development of the law,

both in the polis and in his trial. Socrates contends that the relationship ofcitizen to country is such that his country is more honourable, venerable andsacred, more highly prized by Gods and men ... than mother and father. Lawand polis cannot long survive if judgements passed have no force and are setaside by private persons. He concludes that he must do what ones city andcountry enjoins, or persuade it in such manner as justice allows.35

The position of Socrates in The Crito is given further theoretical content inthe political thought of Aristotle, in which the relationship of commitment

between man and polis is discussed. The polis is the highest association,

which exists for the sake of the moral and political development of itsmembers. Man by nature is a member of a polis; the thought of exiling oneselffrom ones community, the option which justies obedience to law for someliberal writers, is inconceivable:

He who is without a polis, by reason of his own nature and not of some accident,is either a poor sort of being, or a being higher than man: he is like the man ofwhom Homer wrote in denunciation: clanless and lawless and hearthless ishe.36


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For Aristotle, the political association which best fulfills its function is onewith the greatest equality; where all citizens share in political power, rulingand being ruled in turn.

The notion that the collectives will takes priority over that of the individualhas enjoyed considerable currency on the Left. While Trotsky rejected theidea that individuals are obligated to the bourgeois state, he afrmed the

proletarians duty to the Party, as the weapon of the revolutionaryreconstruction of society. There can be no contradiction between personalmorality and the interest of the party, since the party embodies in [the

proletarians] consciousness the very highest tasks and aims of mankind.37

To some extent this claim reapplies the criteria for obligation advanced byliberal theorists: the quality of a regime determines whether one has anobligation to obey its laws. Because the socialist regime best promotes the

interests of its members, it is worthy of support and obedience. Butrevolutionary Marxists are not merely claiming that the Party is owedobedience because socialism is the best provider of collective goods.38 Nordoes Socrates see the citizens obligation as the consequence of aninstrumental or consequentialist calculation. Socialism, like the morality ofthe polis, represents a unity between collective and individual wherein theinterests of each are inseparable.

In the socialist argument this is derived from the nature of the emancipatoryproject, which like the classical Greek conception of the polis, requires totalcommitment to an enterprise which subsumes and supersedes all individualinterests. Sartre provides an interesting analysis of the solidarity of the groupwhich is propelled by a commitment to an historical mission of liberation. He

notes the tenuous nature of this commitment once the event or situation whichspurred the initial revolutionary action has passed. The group threatens todisintegrate unless the common object, collective praxis, is reactualized.Hence members of the group must obligate themselves to obey the collectivewill: an oath of mediated reciprocity secures the future of the communitythrough mutual abdication of individual liberty. Being in the group becomesan exigency, wherein each relies on all the others. Hence the pledge, whilemade to combat the groupss fear of disintegration, instills another fear in its

place, fear of the repercussions of failing to fulll ones obligation as a memberof the group.39

According to the collectivist ethos, the purpose of a radical democraticstructure is not to formulate decisions based on an aggregate of freelycommitted, disparate individual goals, but to actualize the communitys

general will. In Marxism, the fundamental unity between the interests of theindividual proletarian and the proletariat as a class has, perhaps ironically,

justied aberrations from the participatory model, in the form of democraticcentralism. After all, if the interests of the individual and the group areinseparable, it does not much matter who articulates these interests. HenceLenin argued that the socialist revolution was to be led by a vanguard ofleaders; and, he contended, even upon the completion of the socialist project ademocratic structure would not be necessary since, rid of the atomistic andconictual impulses of capitalism, people will automatically conform to rules


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of social life.40 Participatory democracy is not considered the source of thelegitimacy of the proletariats policies, but merely the vehicle for theinherently legitimate, indivisible class consciousness of the working class.

Nonetheless, the task of identifying the collective will is not alwaysstraightforward. What if I do not feel at one with the group? It may happenthat some cannot grasp their true collective interests, unable to perceivehow the collective will is intrinsically in harmony with their individual wills,or that they dispute with the leadership as to what this will is. Factions,fragmentation and conict may arise in the collectivist unity. At the very least,the goals and policies of the community will not always be self-evident to all itsmembers. A socialist legal system is thus necessary to mediate this conict.41

Participatory democracy also takes on a heightened importance as the onlystructure where the community as a whole can approximate, if not discover,

the general will. As Rousseau was to understand, such a forum may only yieldthe will of all a majority decision, rather than what is necessarily theinterest of the community but that risk would seem to be unavoidable.

On this view, participatory democracy emerges as the basis for obligation asthe most reliable (and hence fair) means of ascertaining how our individualwills merge with the collective, thus discovering in what collective will ourindividual wills consist. Rousseau takes up the Aristotelian ideal and calls for ademocratic social contract where collective participation establishes obli-gation. What more certain foundation can obligation among men have thanthe free agreement of he who obligates himself.42 Civic virtue, wherein eachconsiders his interests only as a member of the political association, ourishesin a community where all participate fully in political life, creating and

assuming obligations directly. Obedience to the general will is henceobligatory and uncontroversial, since it is no more than obedience to aself-prescribed law, which is the foundation for liberty.

The undertakings which bind us to the social body are obligatory only becausethey are mutual; and their nature is such that in fullling them we cannot workfor others without working for ourselves.43

Contemporary proponents of the participatory polity claim that a statewhich takes into account the views of all is more likely to perform its functions

better, and therefore to deserve our allegiance and have a valid claim on ourobedience.44 The Aristotelian polis and Rousseauian social contract stand as

models for socialist politics, whereby man emancipates himself throughself-government. It is the fact that each citizen contributes to the making oflaw that makes intrinsic obligation possible in a socialist community.45 Only a

pluralist citizenship, which extends the sphere of political involvement, cangenerate real obligation and an authentic patriotism.46 If obligations requireexplicit commitment to a known object by active subjects, then a process inwhich persons formulate, discuss and decide public issues that are importantto them and directly affect their lives47 will be the foundation for anobligation to obey the law.


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A Critique of the Radical Alternative

The participatory model claims to resolve the difculties that impeded theliberal democratic theory of obligation. I will argue, however, that despite itsvirtues, the radical model cannot justify an intrinsic obligation to obey thelaw. Three problems will be analyzed: rst, whether a dissenting minority hasan obligation of obedience; second, the role of extenuating circumstances inthe application of a general obligation of obedience; and third, the dilemma ofnon-participants.

1. The Case of the Dissenting Minority

Even where law is made in a democratic process involving all citizens, some

laws may not have unanimous support. Unless we are to argue that adissenting minority is obligated on the basis of its mere participation, whichwould be no less than reintroducing the consent argument that obligationresults from voting, the dissenting minority cannot have an intrinsicobligation to obey the law according to the conception of obligation as aself-assumed commitment. The meetings of the Soviet Bolshevik PartysCentral Committee in 1917-18 provide an interesting historical case forconsidering the signicance of dissent for obligation.48 This period in Soviethistory exemplies the concept of the Sartrean oath as a voluntarycommitment, before obligation to the Party came to justify unquestioningobedience, backed up by political terror.

One of the rst disputes within the Central Committee arose over theOctober 1917 decision to begin an armed insurrection while Russia was atwar. Zinoviev and Kamenev, among others, made their opposition known instatements in which they cited technological backwardness and lack ofresources as reasons against the plan. Lenin responded with a polemic onstrike-breaking, arguing that the dissenting minority had an obligation tocomply with decisions made by the centre.49 In another controversy thefollowing month, Zinoviev and Kamenev objected to the Central Committeedecision not to share political power with representatives from the otherSoviet parties. In a public statement they criticized attempts to defend a

purely Bolshevik government at whatever cost, and resigned their posts asmembers of the Central Committee while remaining in the ranks of the Party,feeling unable to take responsibility for this fatal policy. Zinoviev andKamenev argued that, rather than obligated to comply with the decision, they

were obligated to disobey: Our step was dictated by a consciousness of ourduty and responsibility to the socialist proletariat. A group of PeoplesCommissars followed suit, resigning their posts in protest to a policy which,they predicted, would mean the retention of a purely Bolshevik government

by means of political terror.50

The defeated minorities were concerned, not with obedience to the generalwill, but obedience to the principles that underlay the formation of a generalwill in the rst place.51 It had become apparent that the two were not alwaysthe same, or at least that different interpretations of these principles could cast


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doubt on the generality of the general will. The Central Committee issued anultimatum that the opposition submit to Committee decisions, and promoteits policy in all public speeches, or withdraw from all public Party activity andresign all responsible posts.52 Some deserters and strikebreakers, as Lenincalled them, held their ground. In a statement to the Central Committee,Kamenev complained that the conditions offered by Lenin represented anunprecedented demand to speak against our convictions.53

What obligation does one have to a law, judgement or policy which onebelieves to be unjust? Pateman contends that her position allows for dissentingminorities, exempting them from obligation. Indeed, she contends thatsocial contract is an unt description of the participatory structure, sincedissent and disobedience are implied by the practice of self-assumedobligation. Contracts refer to exchanges of obedience for protection, whereas

the relationship among citizens which obtains in the democratic system sheexpounds is one of a voluntary agreement which individuals enter in order toexpress and maintain their substantive freedom and equality. According toPateman, compelling one to consent can only lead to the degeneration of the

political association.54

But contracts do not always refer to exchanges of obedience for protection,as Rousseaus social contract demonstrates. According to his philosophy,there is no brutal state of nature propelling men to enter contracts with eachother; obligation issues from a contract of equals who pledge to renounce theirindividual differences, subsuming them under the general will, which claimsgeneral obedience. Pateman is trying to both have her cake and eat it, if shewants to hold both that an obligation to obey the law is only possible in a

society where all participate to the fullest extent in the creation of law, andthat such an obligation is purely voluntary.55 One wonders why theparticipatory model is relevant at all; for while the consent theorists tried tojustify obligation with too slender a conception of the political, Patemanexpands the political only to justify the idea of an obligation to obey the lawwhich, it turns out, is not obligatory. So long as obligation is derived fromdemocratic participation, some kind of social contract must be established,where a mutual agreement is made to regard collective decisions as binding. Ifobedience to law is simply a matter of individual conscience, then the notionof intrinsic obligation, and not just the social contract, should be abandoned.

Of course, in asserting the absence of an intrinsic obligation to obey the lawI am not suggesting that one who disobeys collective decisions for reasons ofindividual conscience does not risk adverse consequences. Pateman, however,

introduces a further epicycle into her theory, and argues that those whooppose the majority decision are not only exempted from the obligation ofobedience, but have a right to disobedience. Without engaging in a debateabout whether rights to disobedience are justified, suffice it to say thatdenying an obligation to obey the law does not require embracing a right todisobedience. On the contrary, a right to disobedience is logically unnecessaryin the absence of an opposing obligation to obey the law. Moreover, merely

positing a right to disobedience does not solve the problem of obligation, sinceit is unclear how such a right meshes with the duty of obedience; if it simply


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defeats it, then the status of an intrinsic obligation seems tenuous indeed.56

However, a radical democratic community which does not claim that itscitizens have an intrinsic obligation to obey the law is better able to foster aliberal and lenient attitude to disobedience, concerned with the justice of thelaw in question and the reasons and circumstances which led to violation,rather than reducing these moral questions simply to matters of legality orillegality. Moreover, put in perspective, dissent in the participatory politywould figure as little threat to the regime as a whole, given the widespreadinvolvement and general commitment of citizens to the political process.Zinoviev and Kamenev, for example, opposed the decisions of the CentralCommittee from a standpoint of solidarity with its wider aims.

Of course, one who opposes a law may be reluctant to disobey it because ofhis membership in the collectivist polity. Without nding himself obligated to

obey, he may perceive disobedience as harmful for the order of thecommunity and consider this a reason for obedience. For example, in the issueof other parties involvement in the Bolshevik government, Zinovieveventually decided to withdraw his statement and resignation, in light of thespecial nature of the war situation in which these decisions were made, and to

prevent a split in the Party.57 And, in the controversial decision of the CentralCommittee to make peace with the Germans, while Bukharin and others madea statement to express their disagreement with what they perceived as thePartys abandonment of the international proletariat, others of similar minddecided not to associate themselves with the statement, convinced of the needfor solidarity during the crisis.58 Similarly, Socrates submitted to his sentence

because he thought an escape could undermine the legal and political order of

the polis. This is not to say that he was thus obligated to obey the law; hecould very well have decided that disobedience would not endanger the socialorder, or that endangering that social order was a good thing. To argue, asSocrates does, that all acts of disobedience will have pernicious consequencesfor the community overlooks the fact that most violations of the law areundetected or minor. In any case, carefully considered acts of disobediencecan set a good example, by encouraging disobedience only when it is

justied.59 Furthermore, morally justied disobedience can benet thecommunity, as a form of social criticism which demonstrates the gap between

justice and legality.60

2. The Role of Extenuating Circumstances

Even if a law is made with the unanimous support of a politically activecitizenry, occasions for disobedience could arise. It may happen that anindividual decides that in a certain instance he is compelled to disobey the lawwhich he before supported, indeed advocated. There may be a tension

between the aim of a law as a principle and the consequence of law as it isapplied in a concrete situation, so that the values represented by the generalrule may indeed best be served by disobeying the law in question. The tension

between law as a principle and as an applied rule is a reection of the moregeneral problem of invoking moral absolutes which purport to transcend


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history. Marxists have long been wary of eternal truths, arguing that themorality of an action is determined by particular historically situatedcircumstances.61 For example, Rosa Luxemburg averred that the socialist

project could not be outlined in advance:

Far from being a sum of ready-made prescriptions which only have to beapplied, the practical realization of socialism as an economic, social and juridicalsystem is something which lies completely hidden in the mists of the future.62

Although society is a moral reality and law an expression of a developingmoral consciousness, the legal and the moral may often diverge in particularsituations.63 Hence, there may be situations when the application of a lawwhich is just in principle will lead to injustice. The case of Socrates illustratesthis problem. He supported the legal requirement of submission to sentence,

but in his case this resulted in injustice, since he was wrongly convicted.64

It may be suggested that while this position defeats the idea of an absoluteobligation to obey the law, it allows for a prima facie obligation of obedience.When one has a prima facie obligation to obey the law one has an obligation toobey the law which is capable of being overridden by other signicant factors.Thus obligated, unless one has a moral reason not to obey the law at least asstrong as a reason to obey it, then the failure to obey the law is morally wrong.Rosss account of the prima facie still prevails in moral philosophy:

I suggest prima facie duty or conditional duty as a brief way of referring to thecharacteristic ... which an act has, in virtue of being of a certain kind ... of beingan act which would be a duty proper if it were not at the same time of anotherkind which is morally signicant.65

Jonathan Dancy has argued that it is trivial because inevitable that a morallysignificant property would decide the issue if it were the only one thatmattered. But the whole point of the prima facie argument is to explainconict between obligations where no property is the only one that matters.Since it is never the case that there is only one such property, the notion of the

prima facie represents a futile attempt to insulate moral decision-making fromthe interfering effects of different contexts. Hence, it is not self-evident thata property which would decide the issue were it the only one that matteredwill be one which I should care about at all (i.e. is prima facie relevant) when itis not the only one.66

I think there is a difference between the attitude to law which I defend hereand the attitude required by a prima facie obligation. The prima facie positionimplies a rst glance obligation to obey the law which always holds. That is,one always has, at rst glance, an obligation to obey the law in virtue of lawslegality although it may be overruled by reasons for disobedience. Thedifculty with this view emerges in cases where the laws status as law may because for disobedience. There may be occasions when, rather than having anobligation to obey the law which is outweighed by other considerations, onehas reasons to disobey the law in virtue of it being law. It is possible to imaginecertain kinds of actions which a community may seek to promote that would

be made the worse for being law: support for national service, or rel igious


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education, for example, may depend on them being optional rather thanlegally required. In such cases, someone who is in favour of the policy maydecide to disobey the law which renders the policy binding because he findsthe policy an unsuitable subject for legal enactment. One disobeys not

because what the law requires was objectionable, but because it wasobjectionable that the law should require that.67 Not only do we nd a policymade the worse for being law, we find the institution of law made the worsefor being implemented in these situations.68

3. The Problem of the Non-participants

Perhaps the most serious objection to the idea of intrinsic obligation in a

participatory democracy comes from the non-participants, or perhaps, onbehalf of them. It has been assumed that the law, if not reecting the views ofall, is created in a political process which involves all members of thecommunity. But suppose not all citizens voluntarily contribute to the makingof political decisions. Although one may envision a future, ideal communitywhere political participation is much broader and more extensive, degrees of

participation are still likely; civic virtue will be more or less developed in eachindividual. Some may agree with Oscar Wildes criticism of socialism that itwould take too many evenings.69 Civic virtue may ourish, but it is notinconceivable that there will be some who are content to leave politicaldecision-making to their more activist fellows, some, if not most, of the time.One critic predicts that:

The apathetic, the occasional enthusiasts, the part-time workers: all of them willbe ruled by full-timers, militants and professionals.70

The participatory model must take into account the limits imposed onrepublican virtue by the inevitable pluralism of commitments. However,non-participants are not necessarily without opinions. As active Leftists willconfirm, no one is more opinionated than the armchair Marxist. It mayhappen that those who were absent from a political debate are in vehementdisagreement with the outcome. Do they have an obligation to complynonetheless?

The activist may want to hold that, since there are no obstacles toparticipation, those who do not are remiss, and have an obligation to obey thelaw nevertheless. But those who do not participate in the face of opportunitiesto do so cannot be said to be obligated any more than the apathetic in theliberal consent model. After all, theoretically, political activity is open to all ina liberal democracy too. A participatory democracy will be the poorer forcoercing people to participate with the justication that political participationtakes priority over anything else. Nor should the participatory democracyhold people to the obligations made by others. If obligations are to beself-assumed, they can not be based on the presence of a mere opportunity to

participate. And, if those who do not participate do not have an intrinsicobligation to obey the law, then an intrinsic obligation does not exist.


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Certainly it would be foolish to defend an obligation to obey the law in aliberal democracy which applied only to the legislators.

Conclusion

I have argued that there would be no intrinsic obligation to obey the lawunder socialism because the extent of an individuals participation cannot

justify an obligation of obedience. Of course, participation may render the lawmore just, or the legal system as a whole more precious. But these factors can

be assessed separately when deciding whether to obey, without a generalobligation of obedience. Some members of the Left may nd this conclusiondisappointing: the Marxist canon is abridged to allow for socialist law, only tocreate a legal system to which one has no intrinsic obligation of obedience.

However, socialists are wrong to see obligation as an ideal which a Utopiansociety should be able to require. The concept of an intrinsic obligation toobey the law betrays a simplistic and potentially dangerous view of moralityand politics. In these concluding remarks I will note some of the features ofthis underlying perspective.

First, an intrinsic obligation to obey the law can imply that the legal and themoral are synonymous. Certainly it is implicit in some arguments for

participatory democracy that the laws of such a society will inevitably be justand good. Rousseau contends that the general will is always upright andalways tends to the public advantage.71 This claim has been made on behalfof liberal legal systems: the natural law theorist Lon Fuller, for example,argues that a legal order has an implicit morality, and that the obligation toobey the law is thus an obligation to do what morality requires. 72 In hiscritique of natural law the legal positivist H.L.A. Hart contends that the sensethat

there is something outside of the ofcial system, by reference to which in the lastresort the individual must solve his problems of obedience, is surely more likelyto be kept alive among those who are accustomed to thinking that rules of lawmay be iniquitous, than among those who think that nothing iniquitous cananywhere have the status of law.73

One does not have to deny that a rule meet certain moral requirementsbefore it can be a law in order to take issue with the claim that what is illegal isimmoral.74 Yet one of the principal tenets of Soviet socialist legality is thatcitizens have a moral responsibility to obey the socialist state, given the

assumption that the law is always worthy of obedience.75 This argument wasparticularly powerful under Stalin, when all sources of social criticism wereeliminated with the rationale that the Party can never be mistaken in itshistorical mission of emancipation. The doctrine continues to have repressiveconsequences, evident in the disappointing human rights records of EasternEurope. It is thus ironic perhaps that the anti-authoritarian vision of politics

purported by participatory democracy should have authoritarian implicationsfor the individuals moral conscience.76 The argument for obligation, byconcentrating on the rightness of obedience to law rather than upon the


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question of the tightness of the law itself, will stunt and thwart thedevelopment of the individuals political and moral wisdom which is so centralto the participatory vision.77

Second, however, an intrinsic obligation to obey the law threatens toundermine the very foundation of the participatory political structure which issupposedly its source. The dilemma between conscience and social order notheory can solve.78 But an intrinsic obligation to obey the law makes criticismand moral assessment of a legal system difcult, controversy and open

political discussion constrained. Arendt points out that the public realm doesnot simply unify individuals private wills:

as the common world, [It] gathers us together and yet prevents our falling overeach other, so to speak. What makes mass society so difcult to bear is not thenumber of people involved, or at least not primarily, but the fact that the worldbetween them has lost its power to gather them together, to relate and toseparate them.79

There is an ironic sense in which the proposition that citizens have anintrinsic obligation to obey the law is weaker, rather than stronger, in thecontext of a radical, participatory politics. Where political participation is asocial norm and voting itself a duty, political participation is a less plausibleground for obligation, if obligations are to be freely undertaken. Thisconsideration also raises the possibility that political involvement is not, afterall, an inherently positive activity, that it perhaps does not have a necessary,universal, moral value which applies in all circumstances. There are situationsin which notparticipating is a courageous political act, and the alternative, for

example, voting in an Eastern European election, as one Pole dryly noted, isan act of supreme indifference.80 Voting can be an expression of powerless-ness, moral weakness, or a lack of civic courage. Where all are expected to

participate, and where the entrenched powers of the political system renderparticipation inefcacious, or indeed farcical, not participating represents astrong political statement. Hence, not only is the concept of political

participation unable to justify an intrinsic obligation to obey the law, theconcept itself requires qualication.

An intrinsic obligation to obey the law gives law an authority that it does notdeserve, and the individual conscience a role of subservience to it. Indeed,authority has been analyzed as precisely the quality of a person or institutionwhich takes its commands to be exclusionary reasons for action. Lawsclaim to authority rests on its claim to provide a sufcient reason for doing a

required action, one that dictates that reasons for non-conformity bedisregarded.81 The problem of the non-participants is a profound reminder ofthe possibility that any political order, no matter how noble its intentions, can

become alienated from its citizenry. Political actors need critics, and thepolitical order must be responsive to the moral qualms and dilemmas criticismreveals.82 In order to avoid a socialism governed by Party ofcials, removedfrom the needs and interests of the community, the Left must reject thenotion of an intrinsic obligation to obey the law, while afrming theimportance of democratic participation.


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Without general elections, without unrestricted freedom of press and assembly,without a free struggle of opinion, life dies out in every public institution,

becomes a mere semblance of life, in which only the bureaucracy remains theactive element. Public life gradually falls asleep, a few dozen party leaders ofinexhaustible energy and boundless experience direct and rule ... an elite of theworking class is invited from time to time to meetings, where they are toapplaud the speeches of leaders, and approve proposed resolutions unanimously

at bottom, then, a clique affair a dictatorship, to be sure, not thedictatorship of the proletariat however, but only the dictatorship of a handful of

politicians...83

NOTES

1 Humanism and Terror(Boston: Beacon Press, 1969), p. xxxix.

2 Not to be confused with Soviet-style socialist democracy.

3 C. Pateman, Part icipation and Democrat ic Theory (Cambridge: Cambridge University

Press, 1970) and The Problem of Political Obligation (Chichester: John Wiley, 1979).

4 Literature on the subject of obligation contrasts two versions of how one might understand

an intrinsic obligation: first, as an overriding obligation, which defeats any other,

conflicting obligations; and second, as a prima facie obligation, which, while always in

force, can be defeated by other, stronger obligations under certain circumstances. As I lack

condence that this contrast can be properly made out, I shall shelve it for the moment.

5 Certainly the case for a fuller political life has been eloquently made by Hannah Arendt in

The Human Condition (Chicago: University of Chicago Press, 1958.) Arendt contends that

action in the public space is mans highest activity, and warns that one-man rule is always

tantamount to the abolition of the public realm itself. (220-1.) See also C.B. Macpherson,

The Life and Times of Liberal Democracy (Oxford: Oxford University Press, 1977); as wellas George Kateb, Comments on David Braybrookes The Meaning of Participation and

of Demands for It and Peter Bachrach, Interest, Participation and Democratic

Theory, both in J.R. Pennock and J.W. Chapman, eds., Nomos XVI: Participation in

Politics (New York: Atherton, 1975); William Connolly, The Terms of Political Discourse

(Oxford: Martin Robertson, 1983), Chapter 2; Michael Walzer, Obligations: Essays on

Disobedience, War and Citizenship (Cambridge, Mass.: Harvard University Press, 1970);

Nannerl O. Henry, Political Obligation and Collective Goods, in J.R. Pennock and J.W.

Chapman, eds.,Nomos XII: Political and Legal Obligation (New York: Atherton, 1970).

6 See Karl Marx, On the Jewish Question, in K. Marx and F. Engels, Collected Works

(London: Lawrence and Wishart, 1975), Vol. III, 166-7 and Evgeny Pashukanis, Selected

Writings on Marxism and Law, P. Beirne and R. Sharlet, eds., (London: Academic Press,

1980), 76-81 and the Introduction by Beirne and Sharlet, 12-14. Tom Campbell also

characterises law under capitalism thus, although he envisages a socialist legal structure

premissed on the demise of egoism. See The Left and Rights (London: Routledge and

Kegan Paul, 1983).

7 This view appears in Marx, Manifesto of the Communist Party, in op. cit., Vol. VI,

482-96; Engels, History of the English Corn Laws in op. cit., Vol. IV, 657-61; writings

by the Soviet legal theorists Yudin, Vyshinsky, Stuchka, Golunski and Strogovich in

Soviet Legal Philosophy, intro. and ed. by John Hazard (Cambridge, Mass.: Harvard

University Press, 1951; Ralph Miliband, The State in Capitalist Society (London: Quartet,

1973); and Colin Sumner,Reading Ideologies (London: Academic Press, 1979), 270-7.

8 See Marx, The German Ideology, in op. cit., Vol. V, 28-93; The Eighteenth

Brummaire of Louis Bonaparte, in K. Marx and F. Engels, Selected Works (Moscow:


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Progress, 1970), Vol. 1, 290-3; Engels, Letter to Mehring, in K. Marx and F. Engels,

Selected Correspondence (Moscow: Progress, 1975), 399-402; Pashukanis, op. cit., 74-9,

117; M. Reisner, The Theory of Petrazhitshkii, in Hazard, op. cit., 108; Antonio

Gramsci, State and Civil Society, in Selections from the Prison Notebooks, ed. and transi.

by Q. Hoare and G. Nowell-Smith (New York: International Publishers, 1971), 246; and

Nicos Poulantzas, State, Power, Socialism (London: Verso, 1980), 84.

9 For an account of Soviet jurists views on the future of law in the Khruschev period, see

George Feifer,Justice in Moscow (London: Bodley Head, 1964), 330-1; and Aryeh Unger,

Constitutional Development in the U.S.S.R. (London: Methuen, 1981), 288-9.

10 Op. cit., 61.

11 See Beirne and Sharlet, op. cit., 31-6; Harold Berman, Justice in the U.S.S.R.

(Cambridge, Mass.: Harvard University Press, 1966), 64.

12 See Beirne and Sharlet, op. cit., 31-6; Unger, op. cit., 79-84.

13 See Campbell, op. cit., and R. N. Berki, Insight and Vision: The Problem of Communism in

Marxs Thought (London: J.M. Dent and Sons, 1983), for altruistic theories of socialism,and a critique of them in my Law as a Vehicle of Altruism, Oxford Journal of Legal

Studies (Summer, 1985).

14 Whigs and Hunters: The Origin of the Black Act (New York: Pantheon Books, 1975),

258-69. Thompson insists that law does not only deceive and conceal ... it also organizes

and sanctions certain real rights of the dominated classes...

15 Thomas Hobbes, Leviathan, ed. by C.B. Macpherson (Middlesex: Penguin, 1968). In

Chapter XVIII, Hobbes writes: the state of man can never be without some incommodity

or other ... the greatest, that in any form of government can possibly happen to the people

in general, is scarce sensible in respect of the miseries, and horrible calamities, that

accompany a civil war, or that dissolute condition of masterless men, without subjection to

laws, and a coercive power to tie their hands from rapine and revenge...

16 See John Locke, Second Treatise, Two Treatises of Government, ed. by Peter Laslett

(Cambridge: Cambridge University Press, 1967).

17 J.P. Plamenatz, Consent, Freedom and Political Obligation (Oxford: Oxford University

Press, 1968), 16.

18 Pateman, op. cit., 1979, 82.

19 Joseph Raz, The Authority of Law (Oxford: Clarendon, 1979), 239. See also Walzer, op.

cit., 8-14, Pateman, op. cit., 1979, 88-9.

20 Peter Singer,Democracy and Disobedience, (Oxford: Oxford University Press, 1973), 52.

21 Plamenatz, op. cit., 170.

22 Raz, op. cit., 241.

23 Plamenatz, op. cit., 150.

24 Walzer, op. cit., 18.

25 David Hume, Of the Original Contract, in Essays Moral, Political and Literary, (Oxford:

Oxford University Press, 1963), 462.

26 Of course, the view that man is intrinsically a member of a political community, first

propounded by Plato and Aristotle, has been invoked to justify obligation, rather thanrepudiate it, particularly by advocates of democratic participation. I will return to this

argument later in the paper. Here, however, this insight undermines the idea that

obligation results from the option of emigration.

27 Rawls,A Theory of Justice (Cambridge, Mass.: Harvard University Press, 1971), 376.

28 Hart, The Concept of Law (Oxford: Oxford University Press, 1961), 168 and Neil

MacCormick, H.L.A. Hart(London: Edward Arnold, 1981), 170.

29 Hume, op. cit., 468.

30 Richard Wasserstrom, The Obligation to Obey the Law, in R.S. Summers (ed.) Essays

in Legal Philosophy (Oxford: Oxford University Press, 1968), 300-1.


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31 See Bachrach, op. cit., 39-45.

32 See P. Bachrach and M. Baratz, Power and Poverty: Theory and Practice (Oxford: Oxford

University Press, 1970), and Steven Lukes, Power: A Radical View (London: Macmillan,

1974), for analyses of the hidden dimensions of power; see G.A. Cohen, The Structure of

Proletarian Unfreedom, in Philosophy and Public Affairs Vol. 12, No. 1, (Winter 1983),

and Issac Balbus, The Concept of Interest in Pluralist and Marxian Analysis, Politics and

Society (Summer, 1971), for a discussion of exploitation and the interests of the proletariat.

The radical case against liberal models of politics has an ally in the communitarian critique

of liberalisms metaphysics, advanced by Michael Sandel, Charles Taylor and Alasdair

MacIntyre. In contrast to the idea of a freely choosing self which is the foundation of

liberal consent theories, the communitarians advance a view of a socially constituted self in

which I am situated from the start, embedded in a history which locates me among

others, and implicates my good in the good of the communities whose stories I share.

Sandel, ed., Introduction,Liberalism and its Critics (Oxford: Basil Blackwell, 1984), 9.

33 Leon Trotsky, Their Morals and Ours (New York: Pathfinder Press, 1969), 16-18.34 Pateman, op. cit., 1979, 121-7.

35 Plato, The Crito, transl. by Henry Cary (Paris: The Pleiad, 1926). It is here that the

argument for obligation based on the opportunity to emigrate is first invoked. N.A.

Greenberg maintains that it is hard to believe, however, that Socrates would have stayed in

a state that he knew would come to condemn him to death. Socratess Choice in the The

Crito, Harvard Studies in Classical Philology (Cambridge, Mass.: Harvard University

Press, 1965), 65-6.

36 Aristotle, The Politics, transl. by E. Barker (Oxford University Press, 1948), s. 1253.

37 Trotsky, op. cit., 33-4.

38 See Henry, op. cit.

39 Jean-Paul Sartre, Critique of Dialectical Reason, transl. by Alan Sheridan-Smith and ed. by

Jonathan Ree (London: New Left Books, 1976), 346-437. Arendt describes the dynamic

of the group upon dissolution of its initial impetus in different, although similar, terms:

What keeps people together after the eeting moment of action has passed (what we todaycall organization) and what, at the same time, they keep through remaining together is

power. And whoever, for whatever reasons, isolates himself and does not partake in such

being together, forfeits power and becomes impotent, no matter how great his strength and

how valid his reasons. (op. cit., 201)

40 V.I. Lenin, What is to be Done? and State and Revolution in: Selected Works

(London: Lawrence and Wishart, 1953).

41 See the above discussion on the possibility of socialist law and my critique of Campbells

The Left and Rights in op. cit.

42 Quoted in Pateman, op. cit., 1979, 149, from the sixth Lettre de la Montagne, Oeuvres

Compltes (Paris: Gallimard), Vol. III, 806-7.

43 Rousseau, The Social Contract, transl. and ed. by G.D.H. Cole (London: J.M. Dent, 1973)

Bk. II, ch. 4.

44 Henry, op. cit., 289.45 Pateman, op. cit., 1979, 174.

46 Walzer, op. cit., 226-7.

47 Bachrach, op. cit., 1975, 4L

48 See James Bunyan and H.H. Fisher, eds., The Bolshevik Revolution (Stanford University

Press, 1934); and more recently, Ann Bone, transi., The Bolsheviks and the October

Revolut ion (London: Pluto, 1974), for compilations of party documents from that period.

49 Cited in Bone, op. cit., 88-117.

50 Ibid., 141-2.

51 Walzer, op. cit., 3-7.


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52 Cited in Bone, op. cit., 143.

53 Cited inIbid.,148.54 Pateman, op. cit., 1979, 169.

55 See Patemans critique of anarchism in Ibid., 135-42.

56 See Franz Neumann, On the Limits of Justifiable Disobedience, in The Democratic and

Authoritarian Sta te (New York: Free Press, 1957), 158-9, and Hugo Bedau, On Civil

Disobedience, The Journal of Philosophy, 58 (1961), 663, on the futility of finding a

principle which would identify the sufficient and necessary conditions for disobedience;

and Neumann, Ibid., and Raz, op. cit., 262-89, for reasons against a right todisobedience.

57 Cited in Bone, op. cit., 150.

58 SeeIbid, 215-17.

59 Raz, op. cit., 238. A.D. Woozley makes this point in his critique of Socratess case for

obligation inLaw and Obedience: the Arguments of Platos Crito (London: Duckworth,

1979).60 See Howard Zinn,Disobedience and Democracy (New York: Random House , 1968), and

Wasserstrom, op. cit., 300-1.

61 See David Bakhursts Marxism and Ethical Particularism: A Reply to Steven Lukess

Marxism and Morality in: Praxis International, Vol. 5, No. 2, (July 1985).

62 The Russian Revolution (Ann Arbor, 1961), 69.

63 Andrew Fraser, The Legal Theory We Need Now, in Socialist Review, No. 40-1 ,

(July-October, 1978), 164.

64 See Walzer, op. cit., 3-7, for a discussion of the idea of an obligation to disobey the law and

Woozley, op. cit., 37-40, for an analysis of the problem in the context of The Crito.

65 W.D. Ross, The Right and the Good(Oxford: Oxford University Press, 1930), 19. See also

M.B.E.Smith, Is There a Prima Facie Obligation to Obey the Law in Yale Law Journal,

Vol. 82 (1973), and Wasserstrom, op. cit., for a discussion of prima facie obligation as it

applies to obedience to law.

66 Dancy, Ethical Particularism and Morally Relevant Properties,Mind, Vol. XCII (1983),539-41.

67 Woozley, op. cit., 39-40.

68 I am grateful to David Bakhurst for suggesting this argument, and for providing many

other helpful comments on an earlier draft of this paper.

69 Quoted in Walzer, op. cit., 218.

70 Walzer, op. cit., 237.

71 Op. cit., Bk II, ch. 3. The arguments for obligation in The Crito reflect a similar

understanding of the relation between law and morals which was prevalent in ancient

Greece. Woozley discusses the natural law assumptions of the concept ofnomoi in op. cit.,

53-5.

72 Positivism and Fidelity to Law, Harvard Law Review, 71 (1958), 644-8.

73 Op. cit., 206. See also Neil MacCormick,Legal Right and Social Democracy (Oxford:

Clarendon, 1982), 54.

74 Wassertrom, op. cit., 281.

75 Campbell also makes this claim in his theoretical model of socialist law, conveniently

abandoning his positivistic view that law and morality do not strictly coincide. Op. cit.,

81-2.

76 See Alfred Meyer, Political Change through Civil Disobedience in the U.S. S.R. and

Eastern Europe in: J.R. Pennock and J.W. Chapman, eds. Nomos XVI: Part icipation in

Politics, however, for an interesting account of the scope and nature of disobedience in

Eastern Europe.

77 See Wasserstrom, op. cit., 303-4, and Smith, op. cit., 105-6; Raz notes the moral

complacence which is often the concomitant of respect for law; see op. cit., 260-1.


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78 Neumann, op. cit., 159.

79 Op. cit., 52-3.80 I am grateful to Steven Lukes for suggesting this to me.

81 Raz, op. cit., 3-33.

82 See Walzer, op. cit., 235-8.

83 Luxemburg, op. cit., 71-2.

This article is a revised version of a paper I presented at the World Congress of the International

Political Science Association which was held in July, 1985, in Paris. It was written with the

support of a Commonwealth Scholarship, for which I am very grateful.

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