Only after being told that they may be punished for doing so would they begin to construct the idea that thievery is bad/immoral. Introduction 3. Thanks to technology, perseverance, and judicial adaptability, access to the highest court in the United Kingdom has been maintained during the crisis.”. What is a Moral Obligation to Obey the Law? Positivist and Natural Law Theory 8. Whilst a declaration upholds Parliamentary sovereignty (in the legal constitution) by not imposing any domestic legal obligation upon Parliament, it nevertheless puts considerable pressure on the political branches to remedy the incompatibility. Wednesbury is inherently deferential because it arguably starts by assuming that the decision is lawful – an assumption displaced only if the decision is “so outrageous” or “so unreasonable”. The courts would probably revert to the weaker principle of legality to avoid threatening these fundamental principles. 3(2) Health Protection (Coronavirus, Restrictions) (England) 2020, as amended by Reg. Josh Tray is a founder of the YLJ. William S. Boardman - 1987 - Ethics 97 (3):546-557. Traditionally, this has been viewed as a requirement of a certain kind, to obey the law for the “content-independent” reason that it is the law, as opposed to the content of particular laws. Big philanthropy is not the solution. So if our income taxes are used to support vital services, then we have a moral obligation to pay our income tax. There are a variety of positions that might be taken concerning the question of whether or not there is a duty to obey the law. Conversely, one has a moral responsibility to disobey unjust laws. The background to it was the civil rights movement in the United States, and the Vietnam War with its political scandals. [16], Furthermore, a strict approach towards compliance with the Regulations can reduce the value of certain forms of protest. So the moral obligations on which the claim that the law is just is founded are prior to and indepen-dent of the moral obligation to obey the law. Moral obligation - optional reason for following, just comply because it is the right thing to do and choose when. Were the Act repealed, the development of common law rights and increased political dialogue should mitigate the loss of protection. The HRA has thus led to fuller political engagement with, and thus better political protection of, human rights – a human rights culture, catalysed by the HRA’s enactment, that should survive its repeal. Destroying the Norway/Switzerland myth. Philosophers ascribe properties such as “content-independence” and “particularity” to it. That has continued, using video-conferencing and tele-conferencing in place of face-to-face meetings between the Justices. Unlike the principle of legality, s.3 permits a Convention compliant interpretation – even when contrary to clear and unambiguous statutory wording (Bowen). However, it should be noted that the manner in which law moulds perceptions of morality makes it difficult to identify situations where law is perceived as immoral. Thus any defiance of law encouraging disrespect towards the legal system that, if shared by many, may lead to anarchy is an act which weakens the authority of this moral endeavour and thus is an immoral act. 2020, 4, 359-371, [14] Bryan Walsh and Alison Snyder, “Scientists caught between pandemic and protests”, available online at https://www.axios.com/black-lives-matter-protests-coronavirus-science-15acc619-633d-47c2-9c76-df91f826a73c.html, [15] Dominic Casciani, “Coronavirus: Are protests legal amid lockdown?”, available online at https://www.bbc.co.uk/news/uk-52909814, [16] Mirren Gidda, “BAME people disproportionately targeted by coronavirus fines”, available online at https://libertyinvestigates.org.uk/articles/bame-people-disproportionately-targeted-by-coronavirus-fines/, [17] Matthew Taylor and Jessica Murray, “Extinction Rebellion: rights experts say that peaceful protest in the UK under threat”, available online at https://www.theguardian.com/environment/2020/sep/03/extinction-rebellion-rights-peaceful-protest-threat-police, [18] PA Media, “More than 600 arrests made at XR protests in London”, available at https://www.theguardian.com/environment/2020/sep/05/over-600-arrests-made-at-extinction-rebellion-protests-in-london/. H.L.A Hart clarifies how obligations are not necessarily the consequence of moral pressure, rather it is social pressure that leads to them. A declaration signals that valid domestic law is incompatible with a Convention binding upon the UK in international law (Elliott). King supports this view by arguing that declarations “are not a significant issue” for Parliament and Government. The building is also a major tourist attraction, welcoming 75,832 visitors in the year to March 2020, many of whom sat in the public gallery, however briefly, when hearings were taking place. However, the courts arguably adopted proportionality before the HRA, albeit not explicitly. On the afternoon of Wednesday 18 March 2020, however, at the conclusion of the second day of an appeal in the Supreme Court, the building fell silent. However, he does not think there is a moral obligation to obey. This significantly narrows the window for legal obligations that are not associated with moral obligations. Law 2020 41(9) 274-284, [12]Madeline Roache, “Hungary’s PM Orban gets sweeping powers to tackle coronavirus”, available online at https://www.aljazeera.com/news/2020/03/30/hungarys-pm-orban-gets-sweeping-powers-to-tackle-coronavirus/, [13] Professor Kanstantsin Dzehtsiarou, “Article 15 derogations: are they really necessary during the COVID-19 pandemic?”, E.H.R.L.R. B. However, where the law is not supported by natural justice the moral obligation will not exist as the social pressure for compliance will be exclusively sourced form the illegality of the act, not its immorality. To answer, one must think about what follows from a moral obligation to obey the law being: (i) a moral obligation; (ii) a species of political obligation; (iii) a matter of obedience; and (iv) a matter of obedience to the law. The protection afforded to common law rights is necessarily weaker because it exists solely in the domestic sphere, governed by Parliamentary sovereignty (Elliott). See also Mack-ie, Obligations to Obey the Law… 3) Regulations 2020 (SI 2020/558), [9] Council of Europe Information Document SG/Inf(2020)11, [10] Aaron Turpin, “Comment on “Health Protection (Coronavirus, Restrictions) (No. Throughout a hearing one member of the IT staff will monitor the hearing and a second will monitor the live feed. The Natural Law of Mankind. In the early days of the virtual hearings counsel were not able to see all of the members of the Court but only the Justice who was speaking at any one time. That being said, Professor Dzehtsiarou argues that the use of Article 15 ECHR is unnecessary, as it would create public panic by sending the message that human rights may be limited, so perhaps there is an ideal middle ground to be found between discouraging any notion that emergency legislation is an encroachment on the public’s existing freedoms, and introducing emergency powers with little public discussion or consultation that are unjustifiably wide-ranging in their scope.[13]. The window for legal obligations that are not moral obligations is thus very slender, if it exists at all. Accordingly it would be very possible to have a legal obligation unaccompanied by a moral one. Law as a concept exists in order to meet moral demands, failure to do so makes a legal system criticisable but not invalid. Added to PP index 2009-01-28 Total views Post- 2000, litigants could enforce a broader range of rights in domestic courts which, due to reduced cost and delay, enabled better protection. By requiring a statement of (in)compatibility for every Bill, s.19 forces political engagement with human rights issues, and the Joint Committee on Human rights plays an influential role by asking questions, examining Bills and producing reports. The HRA’s repeal may thus not much reduce such limited protection. moral obligation to obey the law. In addition, all hearings are live-streamed and were viewed in the same period by an audience of 386,098. To what extent does “commercial common sense” influence contractual interpretation? But if they get louder, the legal protection of individual rights may be threatened. Before one can know whether there is a moral obligation to obey the law, one must know what a moral obligation to obey the law is. 2) (England) (Amendment) (No. The alleged moral obligation to obey arises from these independent obli-gations to act as the law requires. These motivations have no necessary links to morality, thus legal obligations conceptually, can exist independently of moral obligations. However, the repeal of ss. Rather than expressly derogating from these obligations, having recourse to the provision for emergencies made in Article 15 ECHR – a decision criticised by Greene, given that a pandemic is exactly the sort of situation the provision was intended for – the UK government has elected to rely upon the derogations inherent within these articles. However, the extent to which protection would be undermined is limited because common law rights evolve alongside the HRA: any rights dispute starts with the common law (Kennedy) and courts increasingly rely on common law rather than Convention rights (e.g. In conclusion, there are many different forms of social responsibility that can be observed in our society – from mask-wearing, to taking to the streets to campaign for systematic change. Other signatories to the ECHR have used the current circumstances to introduce laws that are so potentially broad that their possible encroachment on human rights warrants criticism. It can be suggested that it is very possible to have a legal obligation wth no moral counterpart. The Human Rights Act: Protection Afforded and Implications of Repeal. That we have been able to perform our functions fully during this period has been due in large measure to the skill, diligence and enterprise of the Court’s staff. Both proportionality and Wednesbury are malleable standards (as shown in Carlile and Smith respectively) and each may strengthen or lessen individual rights protection. The same can be seen in reverse with slavery in the US. Since the lockdown three new Justices have been appointed to the Supreme Court: Lord Leggatt, Lord Burrows and Lord Stephens. Coronavirus: A threat to humanity or sensationalist hyperbole, A Microcosm of Human Rights Issues at Large: the Human Rights Council. so puzzled by the statement moral obligation to obey unjust laws to begin with (as I encountered it in Rawls and later in Christiano as well, coming to understand it as common usage) is that the terminology seems to imply that the moral ground of moral obligation and unjust laws is … The s.4 protection is therefore stronger than common law protection because s.4 sidesteps domestic sovereignty by giving effect to an international treaty with international enforcement mechanisms (Bowen). According to Raz, Finnis’s assertion of the existence of moral obligation to obey laws that are legally valid and are inserted in a … Only if one knows what it is can one know whether an argument for it succeeds. ... That there should never be an obligation to obey the law simply because it is the law. The HRA has strengthened the protection of individual rights because Convention rights are broader than common law rights. Topics: Natural law, Law, Social contract Pages: 12 (3156 words) Published: April 20, 2015 “There is no obligation to obey the law even in a good society where the legal system is just.” Table of Contents 3. Gratitude: the laws play a role for us like the role played by people to whom we are obliged to be grateful. [5] These derogations state that restrictions may be placed on the exercise of these rights, provided that they are prescribed by law, for a legitimate aim (in this case the interests of public safety) and necessary in a democratic society. The HRA’s repeal may not lessen the protection of individual rights because, given that proportionality has been applied in cases which do not involve EU law or human or constitutional rights (e.g. As far as possible, the hearings follow the normal pattern but there are inevitably modifications. Furthermore, proportionality is not necessarily more stringent than Wednesbury. Both police attending to observe any protest, as well as the public in the area within which the protest is being held, or the public that may encounter a high volume of protesters travelling to a certain location, are in danger of being affected by the spread of Covid-19, which in some people can be symptomless. First, there is the view that there is an absolute legal obligation to obey the law, one which holds that we ought always to obey the law no matter what because the law is the law and it ought always to be obeyed. 4 See, e.g., Lefkowitz, David, “ The Duty to Obey the Law,” Philosophy Compass 1, no. Were the HRA repealed, the rights at common law would still be smaller than under the Convention but, given the common law’s continued development, would arguably exceed those existing pre-2000. For example, Extinction Rebellion (XR) have recently complained about the imposition of ‘unworkable restrictions’ on their characteristically dramatic September series of protests – namely restriction to an off-road site at Parliament Square Gardens (with a maximum number of protesters in attendance resulting from what is possible within social distancing guidelines on the site), with no boats/trailers/vehicles as part of the procession. Kevin Walton is Senior Lecturer Sydney Law School, as well as Director of the Julius Stone Institute of Jurisprudence and Vice President of the Australian Society of Legal Philosophy. Burleigh T. Wilkins - 1994 - Journal of Social Philosophy 25 (2):92-96. Once the law began to provide African Americans with civil rights, discrimination against such individuals, which was once seen as posing no moral problems, became gravely immoral to anyone growing up in desegregated America. 10 and 11 European Convention on Human Rights (ECHR) 1950, [7] Reg. Conclusion The way in which we interpret what the law is, has a large influence on whether we feel we have a sense of duty to obey it. But don’t be fooled. The Moral Obligation to Obey Law The Moral Obligation to Obey Law Tunick, Mark 2002-01-01 00:00:00 It is often held that breaking the law, any law, is morally wrong, and in doing so one acts badly. The CanadianCriminal Code imposes an obligation not to advocate genocide thus:“Every one who advocates or promotes genocide is guilty of anindictable offence and liable to imprisonment for a term not exceedingfive years.” The English Sale of Goods Act says that,“Where t… Unlike Elliott, Young sees s.4 as facilitating democratic dialogue between the courts and Parliament about human rights issues: the courts state their view but respect sovereignty by giving Parliament the final say. The Fabulous 3 – The key to successful strategies for law firms in 2020. I argue that whether in breaking a law one acts badly depends on considerations unique to the particular act of lawbreaking. it is almost certainly true that there is a legal obligation to obey the law, however, and because Raz himself says that "It]he obligation to obey the law is generally thought of as a moral obligation," id. Counsel told us that this made it difficult to gauge the response of the Court and, as a result, the system was changed so that all of the members of the Court are visible to counsel throughout. In doing so, they specify conditions that an argument for it must satisfy. During the Brexit process, political discussion about the HRA has been put on hold. Reckless Transmission of Covid-19: A Jail Sentence? It is contended that, despite rising frustration with the fluid form of the current Health Protection (Coronavirus) Regulations 2020, England’s response to the pandemic has, for the most part, considered its impact upon the rights and freedoms of those affected, particularly in the context of the right to freedom of assembly and association under Article 11 ECHR. Whether all legal obligations necessarily entail moral obligations depends on how one perceives the nature of the connection between law and morality, if it exists at all. Walled Gardens and Monopolistic Disruption – Competition Law in the New Digital Economy. On the contrary, according to Finnis, the moral obligation necessarily follows from that satisfaction because it is law in its “fullest sense”. After a summer of high-profile protesting in England amidst the ongoing Covid-19 pandemic on a range of social and political issues, this article will reflect on whether or not the existing law of protest, as modified by the exigencies of the situation, is fit for purpose. Additionally, it is important to remember that Article 10 ECHR freedoms have largely been unaffected by the pandemic, and as such there are many alternative vehicles to a traditional ‘physical’ protest that the public may also wish to have recourse to, such as letter-writing campaigns. Has Science Actually done Anything to Make Today’s Society a Better Place. Thanks for listening - any questions? Before the HRA, some claimants had to go to Strasbourg to remedy a breach of Art.8 ECHR because the common law did not, for example, provide a remedy for an unlawful strip search (Wainwright v Home Office) or confer a substantive right to privacy (Malone). The current UK rules (as of 2nd October 2020): The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 (hereafter, the Regulations) placed certain restrictions, throughout their various iterations, upon the right to protest in England, by setting out an exception to the ‘rule of six’ for protesters[1] – provided that any protest is (a) organised by a business, charity, benevolent or philanthropic institution, public body or political body, (b) risk-assessed, per Reg. Finally, an unqualified moral duty to obey the law, if it exists, must rest on some legitimate moral authority of the legal system. As against this, I suggest that it is not at all obvious that there is such an obligation, that this is something that must be shown, rather than He is equally quick to point out that whether such aims are satisfied or not is irrelevant to the validity of law. 3 Management of Health & Safety at Work Regulations 1999, and (c) all reasonable steps have been taken to limit the risk of transmission of coronavirus whilst the protest is ongoing (for example, has government guidance, with regard to social distancing been adequately observed). The latter remains crucial, and therefore police and authorities must remain sensitive to the importance of protesters’ rights, despite the current context, when implementing the Regulations. 12. As I left the Supreme Court that evening, I took a last look around, wondering how long it might be before my colleagues and I would all assemble there once again. Similarly, if our family requires us to provide for them, then you have an obligation to comply with the law because we need to stay out of prison and to provide for our families. Is it always morally wrong to violate a law and in doing so does one necessarily act badly? Daly; Osborn). That the claimant’s rights in Smith were protected under proportionality but not under Wednesbury resulted in stronger protection of individual rights. They were recently paid a great compliment by Professor Richard Susskind in an article published by the Harvard Law School (The Future of Courts, The Practice, July/August 2020): “It is to the great credit of the UK Supreme Court that it so quickly moved its entire caseload from physical to video hearings, and did so as effectively as any other Supreme Court that is noted on Remote Courts Worldwide. OBLIGATIONS TO OBEY THE LAW J. L. Mackie* IS there an obligation to obey the law? According to Raz, Finnis’s assertion of the existence of moral obligation to obey laws that are legally valid and are inserted in a … [8] Such an approach to derogation from the ECHR (during a state of emergency) was explicitly approved by the Council of Europe.[9]. Whether all legal obligations necessarily entail moral obligations depends on how one perceives the nature of the connection between law and morality, if it exists at all. Accepting this leads to the understanding of how difficult it is to find discrepancies between what is legal and what people perceive as moral. Between 24 March and 19 August 2020 27 Supreme Court judgments and 13 Privy Council judgments were delivered. Rawls tells us a society is just & fair if it is governed by principles which people would have agreed to in a state of ignorance [veil of ignorance]. [17] Whether this is truly ‘unworkable’ aside, the police have insisted that such restrictions are necessary in light of ‘serious disruption’ that would otherwise be caused i.e. In normal circumstances swearing in ceremonies take place in Courtroom One which is usually packed for the occasion with the full Court, the family and friends of the new Justice and senior members of the legal community. S.6 has given judges powers (and duties) to enforce Convention rights against public authorities, extending their review powers and securing better executive legal accountability because each Convention right is now a ground of review. After analysing the scope and structure of Convention rights, I analyse the HRA’s three most important sections (s.6, s.3, s.4). The term“obligation” need not be used, nor its near-synonym,“duty.” One rarely finds the imperative mood. Its three courtrooms, two for the Supreme Court and one used more commonly for the Privy Council, are in frequent use. While it remains there, voices calling for repeal will probably remain hushed. If it’s not bust, don’t Brexit! He claimed that such an obligation cannot be derived from more basic moral obligations such as those of "fair play" or "consent. Different types of authority. This leaves us in the same position as with the ‘moral purposes’ argument where the moral merits of the content of the law are completely irrelevant to law’s connection with morality. (NB – all online sources accessed on or before 1st October 2020), [1] Reg. Accepting this suggest that there is in almost every instance a moral obligation to obey the law. UCL Garden Room, Wilkins Building, Gower Street, London WC1E 6BT. 3 and 4 would probably undermine the legal protection of individual rights because comparable common law powers would conflict with Parliamentary sovereignty. Law is thus a just and moral concept. Where this occurs there will be a legal obligation but no moral one. 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