Legal Obligation and the Duty of Fair Play

i . The subject of law a fret inn ralitj' suggests rna u)' d iffcrcnt quest ions. In
it may consider the lust orical and sociological question as to the
particulq,
way
3nd ;ij;jiiiicr in wli icli moral ideas influence and arc inhuenccd by the lcgal
$ystcm;
or j j iiiiy iux'o1vc the qticn ion what tier moral concepts and principles
enter
into an aclcq tia l c cfc flint ion of law. A(;ain, the topic of law and morality
siigg
CStS the prol1ciu of the legal cii forcciucnt of morality and whether the fact
cci turn conduct is inner tint iy accented precepts is suffic refit to justify
that
makin thilt
CG Iltl uci .i legal offense. Finally, there is the large subject of the
study
of the ra t ioii,il Jiri iici[1cs of in oral crit icisiu of lcj;al inst it tit ions and the
J grou nfl.s of on r acq uicsccucc in them. I shall be concerned solely with a
of th is l:ist qucst iiIi: xv'ith the grounds for our moral obligation to
(y gmc0t
pJygy thC (hut is, t carry out our leg.it dut res arid to fulfill our legal litW,
g|| qj| jj. My llc.h is is tl t llc J1ora l olliga tion to ohcy tlc la\s' is a s}ccia|
case
of tlc )ri j, I.cic dtity of I.lr }lay.
] |j;j|[ g $tu11c, dS r|tiirit1g nc a rgt i1cit, l hnt tl1crc is, at least in a society
$uch
jj5 ctirs, , j1r8l oIIigat in t otcy lltc las', Rlthottgh it n1a y, of course,
gygrridlcn i j ccrl\ it cscs ly ctlcr i orc Stringent ohtigfitiot1S. [ sh[]
bC
gssuni
also Hi.i I I Jr ix bl i(;il ion iii iisl ren on sonic genera I moral principle;
that
j$, it trust dc)ciicl tii soinc piiuciplc of just ice or upon sonic pri nci[ilc of
so6
ial
ui ilily ir I lic coiiiiiitili gol , alld the like. Now, it in:i)' appear to be a
t I Ui5 jjj' j;j3
let

in en Jr[rose it is, that .i literal obligat ion rests on some iuora]
I j1c.t i i cxcltiIc tl1c [ssiIiIil}' tit.tt the ohli6a t io1 to ohcy the
a S|ccia l )liici}lc f its s\'tt. /\ftcr all, ii is /cl, without further


argument, absurd t hat there is a mo rii I priiiciJi Ie sticli I hat when w hnd
ourselves subject to an existing system of rules sn is J'iug i ii n 3e h iiii ion of a
legal system, we have an obl igat ion to obey I lic law; rind such a irinc iplc might
be final, and not in need of explanation, in the iva)' in which I lic principles of
justice or of promising and thc like are final. I do not I:now of an)'oiic who has
said that there is a s;ccial princi ple of lc(;al obli j;tiou in this sense. Given a
rough agree ment, saJ', oc the possible p riiic iplcs as being those of justice, of
social utility, and the like, the quest ion has bcc ii u n ivll lCli of one or several is
the obligation to obey the law founclcd, and which, if an)', has a special
importance. I want to give a special place to the priiic i|ilc cleft n ing the duty of
fair play.
2. Jn speaking of ollcs obl igat ion to tibe)' Inc law, I a in tisi rig the term
obligation in its niorc limited sense, iii which, together iv'itli the notion of a
duty and of a responsibility, it has a connect ion wit h uistil u t iti ual rtilcs. Duties
and Responsib ilities are assigned to ccrtanl (iosit ions a nd offiCC$, ilIi

'8
a-

tions are normally the consequence of vol u rna rJ' act s of |crsous, and while
perha}is most of o ur obligat ions arc as5u tried by oursel v'cs, th iOU((l1 I hC making
of promises and the acceptin Of benefits, an cl so forth, others maj' put us
under obligation to them (as when on some occasion Inc)' fret( tie, for exam-
ple, as children). I should not clatter that the moral j;roti rids for tiur obeying
the law is derived from the dut j' of fair-Jla)' except miSofi r as one is rcfcrri ng
to an obligation in this sense. It would be incor rec I to sa)' that o iir dul y not to
commit any of the legal offenses, specifying; crimes of violence, is bascd on the
duty of fair play, at least cntircl y. These cruncs involve vvrou(;s .is such, and
with such offenses, as with the vices of cruclt y and greed, elm do i iij; iheqJ j5
wrong independently of there being a legal system inc bcucfits of vvliic h we
have voluntarily accepted.
I shall assume Sev'era1 special features about the nat urc of the lcj;a1 order in
regarcl to which a iiioral obligation arises. I ii acldi I ion to the gcucr.all)' .sI ratcg j
place of its system of rules, as dcfiiiin j; an cl rclati ug the fu iicla incn t al institu-
tions of society that regulate the pursuit of substantive interests, and to the
monopoly of coercive powers, I shall su(i[iosc that the lcga I s '5tCili In QUCstion
satisfies the concept of the rule c[ In iv (or wha i o nc may I lii in tit its jiIs{ ic a5
regularity). By this I mean that its rules arc (iubl ie, that si ni ila r casw re t rcated
similarly, that there are no bills of attaiiidcr, and the like. 4licsc arc all features
of a legal system insofar as it embodics without dcviat ion the notion o .i p uI
i i c

system of rules addressed to rational beings for tlic or(;au u;ri
i t Weir

conduct in the pursuit of their substantive interests. 7h is concept imposes,
by


tegol Otligolion ond the Duly of Foir Ploy
] 9((, no hurlts c ii ltte oa fci t i of legal rules, nut only on their regular admini-
stration. Fiiia ll y, J shall as mimic th.at the legal order is tha t of a constitutional
democracy: I hat is, I sli:ill su p Jiosc lh:i I there is :i const it ut ion establish ing a
p j;j q of equal citiz.airstrip ii iicl securing frccdoiii of the person, freedom of
thought
illld l ilierty tit conscience, and such polit ical equal it)' as in suffrage and
the
right to pan icipalc in ilic political process. Thus I am confining discussion
j g ltgal systems of a spcciiil kiiicl, but there is no harm in this.
qjj pp GOC] ( l]1tJtlp]1l III IU it Stl 111 Ob $oClill i1d\'i1llt it(jCS) \VOtlId SPCIlJ IG
wherc
result
front riot doing so. I f the iiioral oblij;atioii to obcJ' the law' is founded on
the
principle of fair (ilay , how can one bccoiiic bound to obey an unjust laxv,
,d
nu
t

is there .ibti if I Hie p riuci|lc In:it cx p wins the grounds for forgoin
6

);e grcatcr j;oOd
]J j , o( Con rsc, a I.tin ili:ir situ at ion iii .i const it tIt to nal democracy that a
hc licvc r .l inc iulic r G 6 t UC 1111 HOW It)', OH SOIIIC 1cj;islat ix'e ]1fO(iOSlt1, O(l-
case
the Ij1fijoril y, r 8 Coa litioit Fuffjcicit I to Cot1stitLltc a n1Rjority, takes
whcre
ggp;jq ;jj;p of its st reo(;t h arid vtlcs in in own interests. hut th is feature is not
A Jicrstiii liel oiij;iii( tti the in i month rna)' be adva iita(;ccl by the
essent i;;J,
jjjgjority Jiroposal aiitl st ill oJiposc il as unjust, yct xx'hcn it is ciiacteii he will
norm3
ll/
b 1tiiinrl by it.
$on hc tlioiij;1ii Twit there is ostensibly .i Jiaradox of a s)iccial kind when
a
Cjt jZp jj,
W]jO Vflt t?8 I II itfiCt1tt1 i1 flCC lYl 111 111$ lllofill pnnci Jilcs $ COF'lCC[ltlOR OF
acccJits the iuajirit y decisiiii xx'licIi he is iii the iii inority. Let us
justice),
or the Inc, which arc cou m:try to one another.
tit the cousin ut tonal )irocecl urc for enacting
jtici1 c.t j accept life iacliic'.s cl1nicc, wl1ich ( assul1itg thnt B gets a
majorij7
o[ tl\ vlcS) iIjvl t'c5 I li king llal /J ogl1t to he cnactcd when, let
the
p;iradox scents ti lic t li.ii in .i coiistil tit ional dcniocrac)' a cil icn is often
put
]jj jjyltinij of lclicvi Jt g ll t tnt I zt .Iil /J.sl1ctlt he cnaclcd vhcn A nJ


) O H II P AW IS : C O I t CT D PA P P 3
B are contraries: that A should be enacted because A is the best polic)', :ind that
B should be enacted because 0 has a niajorit)'and niorcov'cr, and this is
essential, that this conflict is d uker e ii i front the usual sort of conflict between
priiiia facie duties.
There are a number of things that may be said aliout this sup(oscd paradox,
and there arc several ways in which it iiiiiy be resolved, c.ach Of \vhich brings
out an aspect of the situation. But I think the simplest thing to sa)' is to deny
straightaway that there is anything different in this sit uat ion thati in an)' other
situation where there is a conflict of pri ma facie principles. lhc csscii i ml of the
matter seems to bfl dS fOllows: ( 1 ) Should A 0 Y E 6 c c ici c d n6 i ii1/ lciiiented,
that is, administered Since it is supposed tual cv'cr)'ouc accepts thc outcome
of the vote, within limits, it is appropriate to )iut the enact intent and imple-
mentation together. (2) 1s A or 0 the best policy! It is asstiiiicl that cs'eryone
yj3tp5 ;j j3 r([ jjjg ((j [y j5 p(y] [(j ;j[ O|9 Elliott ;i8 I O Wh IC h !S I h C llCS I ]1O I IC)' ii lld t]j(j(
the decision as to how to vote is not based on |iersoiial tin ercsi. Fhcre is no
special conflict in this situation: the citizen who know's that lic vx'ill fincl himself
in the minority believes that, taking into accou tit only i he rclatix'c uterus of A
ancl B as prospective statutes, and leaving aside how inc x'otc will go, d should
be enacted and
implemented. MOf Cover, on fin own pri iici plcs lie should vote
for what he thinks is the best policy, anfl leave asidC how the \'Ot t2 will go. On
the other hand,
given that a majority will vote for l3, l3 shoulcl lie enacted and
and
he may knOW that a iiiajority will x'o1c for II. Jhcsc jiiijg-
implemented,
are
relative to different
(different argu iiicnt$). The hrst is
principles
ments
based
on the
perSOf1S COtlCCption Of the best social |9Olicy; ilic second is based
on the
principles Ofl WhiCh he accepts the const itution. The real decision, then,
is as follows:
A (lrSOn has tO dCCide, in each case where he is in the iiiinority,
whether the
nature of the StatUtc is such that, given that it will ict , or has got,
a majority vote, he SlioUld Oppose its leing inip1ciucnic1, engine in civil
or take equivalent fiction. In this situ at ion lic snugly has to
disobedience,
balance his obligation to oppose an unjust U at rite against lits o1l igat ion to
abide by a just constitution. This is, of course, a difficult situation, btlt not one
introducing any deep logical paradox. Noriiially, it is hoped thu illC Obligation
to the constitution is clearly the decisive one.
Although it is obvious, it may be worthwh ilc incur rotting, SiRCC il iClevant
feature of voting will be brought out, that the result of a vote is that :i rtile of
law is enacted, and at though given the fact of its enact incit t, C\Cf/Ollc agrees
that it should be implemented, no one is requi ied tO bCllf?Vc that the statute
enacted represents the best policy. It is consistent to say thai another statute
would have been better. The vote does not result in a statenicn t to be
believed:



tegol Obligolion ond the Duty o! Foir Ploy
naIT1l/
,
thilt

B i s svi p c r \oi, on i i s liter its, to A. To get th is interpretation one
yould
have to suppose that the principles of I he constitution specify a device
which
gilthPf$ it1[orniation as to what citizens think should be done and that
th
device is so const ructcd that it always produces front this inform at ion the
jjji3rally cOrr0ct opi n ion as tO WHICH iS HIC l9Clit policy. ]f UI i1CCC(ttlR a COllStl-
ntio
n it was so iiiter(i rctci, thci-e woulcl, indeed, be a serious paradox: for a
bC tOf I1 bCiwccn lielicving, on lits own principles, that A is the
citizen
would

OiiC/ il!! elicvin j; at the same time that J3 is the best policy as estab-
best
lished
accC
b/ lhC COI1 t it tit tonal device, the principles of the design of which he
tS. ThlS COliflici coulcl be niaclc a normal one only if one supposed that a
who in:ide fin owii juclgnicnt on the merits was always prcpared to
hen ;
revise
it givcn the opinion com.st rusted by the machine. Eut it is not possible
to dP
tt2f t14i(l9 the best policy iii this way, nor is it possible for a person to give
such d F1 lRdC
f lil

i ig What tlii.s tins in lcrpreta t to n of t he const it tit ioual proce-
dure
shows, I th jnk, is tllitl there is an important difference between voting and
spe nbing
. The const it u t tonal procedure is not, in an essential respect, the same
Gut2li the usual lssii iiiptioiis Of perfect competition Of price
as
the
market:

const it tit tonal procedure, people voting their political opinions
on
the
merits
of policies may or may not reflect the best policy. What this
ft ilf YOU brings ou I, theft, is that when citizens vote for pot icies on
;nisintef
w ei
merits, th C CGIistitution:il proccd ti re cannot be view'cd as acting as the
;jjg (gt cloes, Cvcii II Iilc r icleal coudit ions. A constitutional procedure does not
reconci
le
diff

rciiCcs of opinion into an opinion to be takcn as truethis can
yyly bc
doric by atL
t1fI1 Clit and reason ingliii rathcr it dccides whose opinion
js to
det0r niinc lcj;islal iVC
]iGliCy.

4.
Now
to I tint tO the miiln Jirollciu, that of understanding how a person can
properly
fin3 himself iii a Jiosit ion where, ly his own principles, he must grant
;j;;Jjq ril y vote, 11 should bc enacted and iiiipleiiiented even though
take
;

clian(;c his round wJicucvc r lic foti nl himself iii the minority; it is not
limit to iiiidcrt akc to abide by the enact-
that they are within certain l units.
rht mrc cx.ct ly ,c ilc coiJ iiios of tlis u ndcrta king
gut


First of all, it means, as previously suggested, that the constitution:it proce-
dure is misinterpreted as a procedure for making legal rules. It is a process of
social decision that does not produce a stateiucn: to ldc bcliex'ccl (t uai B s the
best policy) but a rule to be follOwt?c1. Such a proccdti rc, saJ' involving some
form of majorit)' rule, is necessary because it is cert.ini that there will be
clisagreement on what is the best policy. This iv'il l lc I rite even if vv'e assume,
as I shall, that cx'e Olle was a similar sense of justice an ct evcr)'ouc is able to
agree on a certain constitutional procedure as just. I here vv'ill be ilisagrcc ment
because they will not approach issues with the satire $tOCk Of i n foriuai ion, they
will regard different moral features of sit nations as carrying different weights,
and so on. The acceptance of a const it utioual Jroccdu re is, tlicn, a necessary
political device to decide between conflict rug legislative proposals. I I one
thinks of the constitution as a fundamental part c i i i c scheme of social
cooperation, then one can say that if the coiistil utioii is just, and if one has
accepted the bcncfits of its working a net nil cucls to cont nine doing so, and if
the rule enactcd is with in certain limits, then one has a n obli j;a I ion, based on
the principle of fair play, to obey it when it comes oiics I u i n. I n accc[it ing the
benefits of a just constitution one becomes bou net to it, amet in particula r one
becomes bound to one of its fundamental rules: giv'cn a iuajo i it y x'ote in behalf
of :i statute, it is to be enacted and properly implemented.
The principle of fair play may be definefl as follow's. SuppGSC thcfe is a
mutually beneficial and just scheme of social cooperat ion, and tliiit the advan-
tages it yields can only be obtained if everyone, or nearly evcr)'iiiie, cooperates.
Suppose further that cooperation requires a certain sacrifice fi oni cach person,
or at least involves a certain restriction of his 1i1erty. Suppse finally that the
1enefits produced by cooperation are, up to a ccrtain point, fiee: that is, the
scheme of cooperation is unstable in the sense that if an)' one person l;iio\vs
that all (or nearly all) of the others will cont in tic to clo t lici r part, lie will still
be able to share a gain from the scheme even if he docs not do his piu t. Under
conditions a [Person who has acccpiecl the benefits Of t uc scheme is
these
bound
by a duty of fair play to do his part and not to take ad v'aiitagc of the free
benefit by not cooperating. The reason one mint alistaiii front this attempt is
that
the e:istence of the benefit is the result of everyones effort, and prior to
some unde rstanding as to how it is to be shared, if it can be shared
a
t ,I1, it
belongs in
fairness tO nO one. (I return to Hi is q nest in n 1eloiv.)
Now I want to hold that t hc obl iga I ion li o1e)' ltte law', :is enacted by a
constitutional prOCCdUfe, even when the law scents unjust to its, is a case of the
duty of fair play as definecl. It is, morcovcr, an obligat ion in the more fun ited
sense in that it depends upon our having acccpicd and on r intent ion to


tegol Obligolion ond the Duly of Foir Ploy
123
continue accepting the benefits of n just scheme of cooperation that the con-
5titution dchucx. lii this .sciisc i l depends on our own voluntary acts. Again, it
is an oblig:it ion owed to on r fellow citiz.cms generally: that is, to those who
peratc with us in the work in j; of the conxt it It I ion. It is not an obligat ion
owed
to public officials, altliouJ;li lhcrc iiuiy be nich oblig:it ions. That it is an
obl
igation owed try citiz.cms to one another is shown by the fact that they are
to be i lid igiiaut with one another for failure to comply. Further, an
entitlcd
estial
condition of I he obl igal ion is the justice of the constitution and the
g9qgral system Of liiw being rou(;hly in accordance with it. Thus the obligation
to
obey (or riot to rcsist) in u iijusi law depends stron j;1y on there being a just
cOiiSt ](;;(jp.
Unless ohe obeys the law enacted undcr it, the proper equilib-
rium,
Of bitlil IlCc, lct wccn co iii(ct rug claims defined b)' the constitution will
not
bc niaiiitiii I1ci. Finally, while it is true enough to say that the enactment
[yy ;j luajority binds the iui iioi ity, so that oiic may be bound by the acts of
there is io 9ucxtioii of their bind in(; them in conscience to certain
othCfS,
b
iief8
tt5 l > lie be.st Jol icy, arid it is a necessary' condition of the acts
13j! I!!9 *s 111 ill I lic const il tit ion is just, that we hav'e accepted its
of Ot}1I$
benefi
ts, and sO foFt h.
particular,
I thrill .issiiiiic that ilicic arc two principles of justice that Jroperly
to the fund:i ment.it struct ii re of inst it ut ions of the social system aiii,
gpply
thus,
(

the cometh tit ion. 1lic first of thcsc princi)lcs requires lh:it everyone
have
jq equal ri(;lit to the most cx I ciisivc liberty compat iblc with a likc liberty
( gJ(; the scconcl is th.it iiicq uilil in arc arliit ra ry unless it is reasonable to
are
gpcn to all. I sli:i 11 ass ti rue i liar the.sc arc t Jic )iriiiciplcs that can be clerivecl
v.riLIs ]ii l linen ice ii a co1$l ittitional dct11ocracy. Ai1d once
cstalilisliecl and cotistil tit ional proccclurcs exist, oiic can view


) O111I PAV\/ IS : CO It CT D PA P P 5
on a wide body of social fscts. Even in a socict) of i riiJiart rat arid rational
persons, one cannot expect agreement on these teat tors.
Now recall that the question is this: How is it possible that a person, in
accordance with his own concept ion of justice, should find himself bound by
the acts of another to obey an unjust law (not smi pl)' a law contrary to his
interests) Put another way: Why, when I a ni free and st ill w'ilhout my chains,
should I accept certain a priori conditions to which any social cont ract must
conform, a priori conditions that rule out all const it utio n:il procedures that
would decide in accordance with iriy judgment of just ice against cx'cr)'one else?
To explain this (Little has remarked),' we rcqu irc two li)'potlicscs: that among
the very limited number of procedures that won Id stand an)' chiiicc of being
established, none would make iiiy decision dccisivc in this ixtl)'i 0iid that all
such procedures would determine social cotidi t ions I hat I judge to b better
than anarchy. Granting the second hypot hcsis, I v'ant I o c1aloral e on this in
the following way: the first step in the explanation is to dcrix'c the principles
of justice that are to apply to the basic form of ihC sOCi.11 s)'St cm and, in
particular, to the constitution. Once we have these principles, we see that
no

just constitutional procedure wo uld make my jtidgiiic tit as to I he best policy
decisive (would make me a dictator iii Arrows sense).- I t is not simply that,
among the limited numier of procedures actually possibl)' as things are, no
procedure would give me this ant hority. The po ini is I hat eveI1 if SUCh \vere
possible, given some extraordinary social circuiiista rices, ii vOU lC1 IlOt lie just.
(Of course it is not possible for everyone to hav'c this aii t horii) .) Once we see
this, we see how it is possible that within the framework of a just cotisi it utional
procedure to which we are oblig:ited, it may nevcrt he less h:ippcu that v'e
re

bound to obey what seems to us to be aiil is an unjust law. lVlo rco ver, the
possibility is present even thou$h everyone has the satire sense of justice (that
is, accepts the same principles of justice) aiil everyone regards the constitu-
tional procedure itself as just. EVCn the most efficient COn5i itution cannot
prevent the enactment of unjust laws if, from the complexity of the social
situation and like conditions, the iiiajoriiy decides to enact thCHi. A just
constitutional procedure cannot foreclose all injustice; th is clepeiids on those


tcgol Obligolion ond lie Duty of Foir Ploy
who
carry out the ) rocctl ti re. /\ const it tit renal procedure is not like a market
yg iynci[ink i13(CTC$1 $ IG .\ II G(1t U 1I tllll result .
g, 5 far I li:we been cI isctissiii(; the first ment toned anomaly of legal obliga-
;pi , namely, t liit tliou(;li it is founded on justice, w'c rna)' be required to obey
an
unjust law. $llGtlld iitw like to iuclutlc the scconcl a normal)': that we may
v'0
j;; obligation to tibcy the law even though more good (thought of as a
h
(advi tit ages) rna)' lic j;a in ccl by not doing so. The t hens I wish to argue
sum
is
that
not only is our obli(;atiou in olicy the law a special cue of the principle
of fir
play, allCl fin dC[1cI1dcnt
ulimi the jUst ice of the instil utioiis to which we
5(($ 9J, htm also the principles of justice arc absolute w'ith rcs)cct to the
ppinciplc
of tit il ity (as I|ic [inIici[ilc to ninxiiii izc the net su ni of advantages).
p[,eal
(Q the )iriiici plc of tIt il iiy. /\ greater balance of net advantages shared by
,oie co j ust ify the iiijiisi ice su ffcrcd 6)' others; a nd where unjust institu-
voiCld i l]1fit soCiill lieccxsity requires it, there x'ould be greater injust ice
b
thcrwi3C,
jjt s ui1. Scc 1l, tr hligntcn t olc)' tl1c lv, \vhch is a special
case of th
princi)lc of firm )ilay, can not be overricldcii by an ap[ical to tit ility,
j; rna)' be ovcrriiicn by a riot tier dlii)' of just ice. These arc sweejiiiig
though
positioiis
and iiiosi likely false, but I .sliould lil:c to examine them briefly. pr
j 3 not know how ti est:i blisli these [i ro[iosit ions. lhey arc not established
b
the
5ort of ar(;iiiiieut tried itliox'c to slioxv that the two princi}ilcs, [Previously
ntioiicd,
:irc i lic i wi [irinciJilcs of just ice, that is, iv'licii the subject is the y;;
basic
5 ructu re of the sicial s)'stciii. \\'liar elicit ari argtiiiic in iuij;ht show is
that,
if

crt i i natural cciJitiis rc t8kCi1 as s|ccif}'i ng thc concept of just ice,
the lwn jriJCi jlcs f jlisl ice are the princi}lcs logicull}' associa tcJ with the
h
wIit tlc siljcct is llc ht h c sirict\trc cf the social system. The
gonccpl
argUjjj g
j

i jjh I ]ruvc, tr If is correct, tl1u t life [rnct}lc.s f jist ice arc in con\-
princi)lc tit tit ility. llic argument might establish that our
of justice iiiusi so incl mcs con Ilict with the [Principle of
uti!j!y
. IJit it Ic:i vcS LIi1Sclll0t
wl8t the j orc general notio of right requires
this
conflict occtir.s. lu prtivc thai the concept of justice sliou1i hax'c an
jien
bsOl;t
weigh I with res(iect to i liar of utility woulcl require a ilccpcr argunicut
(iased
p;j a It :i ii.ilysis tit the coiiccJt Of iij;h I, at lent i mentor as il rel:itcs to thc
f just ice iiiil iii i lit y. I have no iclca whether such an analysis is
] ]iro[isc to to i risteacl is to tr)' out the thought th;il the
pnccpt5
and
des lia'c tin absolu l c weight, to see whether this
pncept of jtisl ice


] O H II PAV\/tS : C Ot t CT D PA P k 5
we cannot accept. It would seem as if to attribute to just ice an absolute weight
is to interpret the conceJt of right as requiring that a sJccia1 place be given to
persons capable of a sense of justice and to the |iriuci|ilc of their working out
together, from an initial position of eg ti a lity, the to i in Of I he if COnimon
institutions. To the extent that this idea is at tractix'e, the concc|ii of just ice will
tend to have an absolute weight with respect to tit ili t)'.
7. Now to consider the two anomalous cases. I-met: I u the situation where
the obligation requires obedience to an unjust law, it scents I rite to say that the
obligation depends on the principle of fair play and, thus, on justice. SuJpose
it is a matter of a person being requi red to Jay an iiicoiiic tax of , kind tht he
thinks is unjust, not simply by reference to li is mite rests. II t would ROt want
to try to justify the tax on the ground that the net gain to certain groups in
society is such as to outweigh the injust ice. The uat tint argti ment to make is
to his obligation to a just constitution.
But in considering a particular issue, a citizen has to mat:c tw'o decisions:
how he will vote (and I assume that he x'otcs for what lie I h inks is the best
policy, morally speaking), ad, in case he shout d be in I hr iuinorit y, whether
his obligation to support, or not obstruct, the tin plcnicntat ion of the law
enacted is not overridden by a stronger obligation that iiuiy lead to a number
of courses including civil d isobcdicnce. Now in the sort of case i Imagined,
suppose there is a real question as to whether flue th.x ltiw' should be obeyed.
Suppose, for example, that it is framed in such a way that it Scclns deliberately
calculated to undermine unjustly the position of certain sccial or religious
groups. Whether the law should be obcyccl or not depends, if one v'ants to
emphasize the notion of justice, on such nuitters as ( I ) the justice of the
constitution and the real opportunity it allows for reversal; (2) the depth of the
injustice of the law enacted) (3) whether t hc enactiiicnt I$ aCtuall)' a nuittcr of
calculated intent by the majority and warns of further such acts; and (4)
whether the political sociology of the Situation is such as to aHO\' Of llOQe that
the law may be repealed. Certainly, if a social or rc1 igiou FOtl Q fl1SORi1[y[y
(not irrationally) and correctly supposes iliat a pcriiiiliiClit lnajorit)', or Inajor-
ity coalition, has deliberately set out to unclcrcut its lasis and that there is
no

chance of successful constitutional resistance, then the obligat ion to obey that
particular law (and perha Js other lilWs more gcll Cfilll )) CCilSC:,. I ii such a
case
a minority may nO lollQcr be obligated by t hc duty of fair kln'. There m,y
be
other reasons, of course, at least for a tune, for obeyiii j; the law. O IU I night
say
that disobedience will not improve the jtist ice of their sit fiat ion or of iieii
descendants' situation; or that it will result in injiir)' a ud liaiin ti i It nocent


tcgol Obligolion ond the Duty of Foir Ploy
persons (that is, lilcinbcrs not belonging to the unjust ni:a jority). In this way,
one
tTli$ht appeal to tlic balance of jtist ice, if the principle of not causing injury
to
the innocent is a question of jtist ice; btil , iii any cue, the appeal is not made
to
the greater net balance of advantages (irrcspcct we of the moral position of
those
receiving them). lhe thesis I want to suggest their, is that in considering
whether
we are obl igat cd to obey an unjust Jaw, one is led into no absurdity if
othe
simply throw.s oui the principle of utility altoget her, except insofar as it is
included
iii thC $Clicral [Principle requiring one to establish the most efficient
just
institutiots.
Seconcl: Notv tltc ether snrt of anolaIy arises when
the Ias' is just and we
have
a duty of I:i ir play to folloW it, but a gicatcr net balance Of advantages
be gained front iitit cloiiig so. Again, the income tax will serve to
could
illu.s t rate this fa ni i l iar poun: llic social consequences of any one person (per-
even ma n)' (ieoplc) ii of paying h is tax a re uiiiiot iccable, and let us
hap5
z.ero in value, but lheic is a noticeable Jrix'ate gain for the person
.supp
t9Se

);imself,
or for another to wlioiii he chooses to give it (the inst it ution of the
incoiri C t:ix is subject to the first I:mid of iiistabilit) ). Jhc duty of fair play binds
us to pay
our tax. ncx'c rl liclcs.s, since we h:we accepted, and intend to cont in ue
q, the bcilcfits of the fiscal systems to w'liicli the income tiix belongs.
doiqg
Why is
this reasonable autl not a blind following of a rule, when a greater net
fidva ntagcs is [1O$Siblcbcca use I he s)'stcni of cooperation consis-
suiri
followed by everyone cue incl I produces the adx'a nt:igcs generally en-
a practice such as the income tax there is no reason
tenth
tO
give expm[yt jous IG il Il)/O UC $O th a I they ni ight enjoy the possible benefit. (An
trausititiii) iii accorilancc with the principle of establish ing the
just ]ir:ici ice. Ior cxam]ile. iii the familiar instance of the regu-

( onscrvc w:tier in a drought , il in ight be ascertained that thcrc would
lati
b
no
harm in i1 CCfiaiii ext ra use cif water over and above the use for drinking.


28
on alternate days. The details are not significant here. Jlic rna in ilca is simply
that if the greater sum of advantages can effect wet)' and fairly be distributed
among those whose cooperation makes these advantagcs possible, then this
should be done. It would indeed be irrat tonal to pi cfer a lesser to a more
efficient just scheme of cooperation; but this fact is not to be con fused with
justifying an unjust scheme by it5 greater efficiency or excusing oursclx'es from
a duty of fair play by an appeal to utility. I f thcrc is no reason to distribute the
possible benefit, as in the case of the income tax, or in the case of voting, or if
there is no way to do so that does not involve sticli problems as excessive costs,
then the benefit should be forgone. One may clisagi cc with this view, but it is
not irrational, not a matter of rule worship: il is, rather, an appeal i O the duty
of fair play, which requires one to abstain from an acl valit age that cannot be
distributed fairly to those whose efforts have made it )ossible. Th:it those who
make the efforts and undergo the restrictions of their lilicrt)' sliotilcl share in
the benefits produced is a consequence of the w sn niptio n of ali initial position
of equality, and it falls under the second principle. Init the quest ion of dis-
tributive justice is too involved to go into here. Moreos'er, it is unlit:cly th ;
there is any substantial social benefit for the d ist rib ut ion Of ivh lCh SOIue fair
arrangement cannot be made.
8. To summarize, I have suggested that the following pro[Positions ni,y be
true:
First, that our moral obligation to obey thc law is a special C0$C Of the duty
of fair play. This means that the legal order is construed :is a system of social
cooperation to which we become bound because: first, the scheme is just (that
is, it satisfies the two principles of justice), and no jtist scheme cult ensure
against our ever being in the minority in a votc; and seconcl, we have accepted,
and intend to continue to accept, its benefits. I I we fattest to obe)' tliC law, to
act on our duty of fair play, the eqtiilibriti m between confl ict ing claims, a$
defined by the concept of justice, would be upset. Thc cl ti ty of fair play is not,
of course, intended to account for its being wrong for Its to commit crimes of
violence, but it is intended to account, i n part, for the obligation to pay our
income tax, to vote, and so on.
Second, I then suggested that the concept o J as I i cc has tin absolute weight
with respect to the principle of utility (not necessarily wit li respect to other
moral concepts). By that I meant that the union o t h e two concepts of justice
and utility must take the follTl Of the principlC Of Cstilbl ishiflg the Inost efficient
just institution. This means that an unjust instii ution or law cannot be justified
by an appeal to a greater net sum of advant ages, an ct that the dll t)' O b bit if |3[Jy


Legol Obligation ond the Duly oi Foir Ploy
cannot
be analogously overridden. An unjust institution or law or the overrid-
ing of the duty of fair play can be justified only by a greater balance of justice.
I
know of no wy P
rovC this Jiroposition. I I is not proved by the analytic
argum
G I IO SHOW that
the Jirinci Jiles of justice a re indeed the principles of
Bttl 1 think it may be shown that the ]irinciple to establish the most
justicC.
elIeni
just instilulions docs not lead to conclusions counter to our intuitive
judglTtents and that it is not in a my way irrat tonal. It is, moreover, something
f a theoretical sinipl ification, iii that one does not have to balance justice
ggj)nst util ity. hut this sinipl ificai ion is tio doubt not a real one, since it is as
difficul
t to a$Cfl th n the balance Of just ice as anything else.