So I’ve been thinking about one of the classic problems of legal theory: Can the demands of the law be distinguished from the demands of a mugger? When the government tells you to pay your taxes, is that different in some material way from a gunman who tells you to hand over your wallet?

Socrates, famously, felt that we have an important moral obligation to obey the law, which is why he took the hemlock even as he protested his innocence. But most contemporary legal philosophers disagree. The modern consensus is that there is absolutely no moral obligation to obey the law, not even a minimal prima facie obligation.

A prima facie obligation is the minimum assumption that, absent justification, we have a general duty to obey the law. This obligation is not absolute, of course - nobody condemns civil disobedience, for example. But if you’re going to disobey the law, then the prima facie obligation would make you give a reason for your disobedience - to society, to your fellow citizens, or maybe only to yourself.

And so recently it has been suggested to me that the difference between the law and a mugger can be apprehended through our intuition; while we feel we have a prima facie obligation to obey the law, we detect no such intuitive obligation to obey the gunman. Therefore, it is argued, there must be (or, at least, we must believe there is) a real moral difference between the law and a gunman.

That is, imagine being held up by a mugger. Suppose that you somehow got away without handing over your wallet. If someone asks you why you didn’t pay the gunman, what would you say?

Presumably, you’d simply say something like “because I could get away”. Nothing more elaborate than that.

Now imagine that you don’t pay your taxes one year, and you get away with it. If someone asks you why you didn’t pay your taxes, what would you say? What would you say if your child asked you?

Most people would, in these circumstances, feel a need to justify their actions. Maybe you can give a good reason for your disobedience to the State - maybe you strongly believe that income taxes are unconstitutional, and you’re taking a principled stand - but you would feel that you were obligated to offer a justification. This means that you regard the State as different from the gunman in some material moral way.

And if the professional philosophers disagree with our basic beliefs, maybe we should adjust our philosophy to better describe what’s going on in our hearts.

Or so the argument goes. I don’t think it works. Here’s why.

One purpose of government, in political theory, is to provide for the common good. We’ll call a government that tries to provide for the common good a “good faith” government, because whether you agree with an individual law or not, it’s intent is to provide for the common good. We’ll contrast good faith governments with bad faith governments, which are despotic, tyrannical, and avowedly self-interested.

Now, let’s turn to the argument about the supposed prima facie obligation to obey the law. This argument might take two forms. The prima facie obligation might be felt towards any State simply because it is the sovereign, regardless of the moral character of the State, or it might only be felt towards good faith States.

We’ll start with the argument that the prima facie obligation emanates from the State simply because it is sovereign. This is by far the simpler case.

To begin, imagine that you’re a good and moral person in a “bad faith” State. Would you feel a prima facie obligation to obey the State? I seriously doubt it. If the State is legislating for it’s own benefit, it becomes very difficult to distinguish the bad faith state from the gunman writ large. They both want your wallet. Neither one attempts to justify it’s demands in terms of the social good. And so if you could disobey the bad faith State without receiving punishment or a sanction, then I doubt you’d feel the need to justify yourself.

And since the original argument in favor of the prima facie obligation asserts that theoretical philosophy should adapt to actual human responses, we can safely conclude that where we would not feel an obligation to obey the bad faith State, it doesn’t exist. So the bad faith State is the gunman writ large, no more and no less.

So that’s the easy case. But what about the more limited claim, that we only owe a prima facie obligation to good faith State’s? Maybe a bad faith State isn’t performing the expected functions of a State, and so doesn’t deserve our prima facie obligation of obedience. But if the State is trying to do good for the society as a whole, we’ll tend to feel as if we ought to at least justify our disobedience. Doesn’t that conform with our intuitions?

My thesis here is that the sense of obligation we feel towards a good faith State is just a species of the general obligation we feel to be subject one to another. If I’m right, then our intuitions don’t reflect some special moral duty we feel to the sovereign, but rather they reflect our perceived moral obligation to each other as members of the community.

How would we test this? We might start by removing the law from the hypothetical.

So instead of paying your income taxes, say you’re at a town hall meeting with the members of your city (most of whom you’ve never met and will never see again), and the community has just voted to take up a voluntary collection to build a new police station that will benefit the whole city. As the hat is passed, you can choose either to pay or not to pay - you will not face sanction either way. But if everyone else is paying, would you feel a prima facie obligation to pay? That is, would you feel a slight tug to either pay or, if you didn’t want to pay, would you feel slightly bad about that, and maybe want to have a reason to give if asked why you didn’t pay? Or would you just say “I didn’t pay because I could get away without paying”?

Similarly, imagine that you are driving in a parking lot where there are no parking spaces reserved for the handicapped. The lot is mostly full, but you see the perfect parking spot right up front. As you’re about to pull in, you notice a van driven by a disabled person also heading for the same spot. Would you steal the spot, and force the disabled person to park in the back of the lot and walk? If circumstances forced you to take the spot (maybe you’re rushing your child to the emergency room) would you believe that it was only the emergency of your child’s illness that justified taking the spot? Or would you simply say, “I can get away with taking this spot, so I’m going to take it”?

Now let’s invert the hypothetical. Say there is a parking place reserved for the handicapped. But it’s 3:45 AM and no one is around and you’re only going to be parking for ten minutes. Assume you somehow had perfect certainty that no one else would need the spot and you wouldn’t get a ticket. Would you feel bad about parking in the spot? Or would you just park there and not worry about it?

So it seems to me that when a law, even in a good faith State, does not protect an important community interest, then we feel no prima facie obligation to obey it. Conversely, when our actions would inconvenience the community, we do feel a prima facie obligation to avoid creating that inconvenience for others, even when there is no law. Therefore, the source of our moral intuitions seems not to be our obligation to the State, but rather our obligation to each other as members of a community. It’s just that, by definition, a good faith State will always be trying to protect the community good.

To make the connection between the law and a gunman more clear, imagine a twist on the plot of the movie John Q.: Assume that a gunman holds you up and ask for your wallet. As he’s doing so, he apologetically tells you that he needs the money to pay for a surgery that will save his daughter’s life. Now assume he’s somehow distracted, and if you want to you can hit him and then run away without paying. Would you do so? If you did, would you feel bad about it, and maybe feel the need to justify your decision to the distraught father (if only in your head) in some way?

So, ultimately, the argument that we can detect a prima facie obligation to obey the State boils down to 1) the happy coincidence (created, in part, by the definitional exclusion of a “bad faith” State) between our personal moral goals and the goals of the State and 2) the unhappy coincidence that the moral convictions of the gunman are generally opposed to our own.

The intuitive moral difference between the gunman and the State is therefore not a moral recognition of the State’s inherent sovereign authority. The obligation we often feel to justify our disobedience to a good faith State does not, in any way, distinguish the State from the gunman. We will feel an obligation towards either the State or the gunman when we feel they are acting in the community interest, and we will not feel such an obligation when we feel they are not acting in the community interest. Further, this obligation will vary with the strength of our personal conviction that the “community interest” is a moral good - which is, itself, a debatable proposition about which people, in different contexts, disagree.