Methods of Ethics

Henry Sidgwick

Book III

Chapter VI


§1. In the discussion of Justice the moral obligations of obedience to Law and observance of Contract have been included, and have, indeed, appeared to be the most definite part of the complex system of private duties commonly included under that term. At the same time, as we have seen, there are some laws, the violation of which does not interfere with the rights of others, and therefore has not the characteristics of an act of Injustice. While again, the duty of Fidelity to promises is also commonly conceived as independent of any injury that might be done to the promisee by breaking it: for (e.g.) men ordinarily judge that promises to the dead, though they are beyond the reach of injury, ought to be kept: indeed, some would regard them as even more sacred than promises made to the living. It seems therefore desirable to examine the propositions `that Law ought to be obeyed' and `that promises ought to be kept', considered as independent principles.

To begin with the former: how are we to ascertain what the Law is which, as is commonly thought, we are morally bound to obey, as such? It is plain that we cannot here distinguish Legal from other rules by considering the sanctions actually attached to them, as we had occasion to do in a previous chapter. For commands issued by rebels and usurpers are held to have as such no general bindingness, though they may be enforced by judicial penalties; it would be generally agreed that so far as it is our duty to obey such commands this is solely in order to avoid the greater evils which might result to ourselves and others from our disobedience; and that the extent of such a duty must be determined by considerations of expediency. Nor, again, can we say that all commands even of a legitimate sovereign are to be regarded as Laws in the sense in which the term must be taken in the proposition that `laws ought to be obeyed': since we all recognise that a rightful sovereign may command his subjects to do what is wrong, and that it is then their duty to disobey him. It seems therefore that for our present purpose we must define Laws to be Rules of Conduct laid down by a Rightful Authority, commanding within the limits of its authority.

There are therefore two questions to be settled, if the proposition that laws ought to be obeyed is to furnish practical guidance: (1) how we are to distinguish the Rightful Lawmaker---whether individual or body, and (2) how we are to ascertain the limits of this lawmaker's authority. The questions should be distinguished; but, as we shall see, they can only be partially separated. Beginning with the first question, we may assume that the authority to make laws resides in some living man or men. No doubt in some societies, at some stages of their development, the whole or a part of the code of laws habitually observed, or at least recognised as binding, has been believed to be of divine or semi-divine institution; or perhaps from mere antiquity to possess a sanctity superior to that of any living authority, so as to be not legitimately alterable. But we hardly find this view in the Common Sense of civilised Europe, upon which we are now reflecting: at any rate in our societies there is not thought to be any portion of the definite prescriptions of positive law which, in virtue of its origin, is beyond the reach of alteration by any living authority.

Where then is this authority to be found?

In the answers commonly given to this question, the conflict between the Ideal and the Traditional or Customary, which has perplexed us in seeking the definition of Justice, meets us again in an even more complicated form. For not only do some say that obedience is always due to the traditionally legitimate authority in any country, while others maintain that an authority constituted in accordance with certain abstract principles is essentially legitimate, and that a nation has a right to claim that such an authority shall be established, even at the risk of civil strife and bloodshed: but often, too, the authority actually established is not even traditionally legitimate. So that we have, to distinguish three claims to authority, each of which may come into conflict with either of the other two: (1) that of the Government held to be ideally or abstractly right, and such as ought to be established: (2) that of the Government de jure, according to the constitutional traditions in any given country: and (3) that of the de facto Government.

[ME, Justice, §7]
[ME, Laws and Promises, §2]