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Whatsapp Do we obey the law because of its coercive power, or because it reflects what we were going to do anyway?

When it came to obeying the law, Socrates led the pack. Although the end result of his fidelity wasn’t ideal, he did provide an example of obedience, come what may. Things might be more difficult today, but leading legal theorist Frederick Schauer has a hunch about what makes the law work. He shares it with Joe Gelonesi.

As the world gets tougher to negotiate, it’s lucky we have clear cut laws to help us through the long ethical night. However, on closer inspection, our everyday relationship with the law is a little more vexed.

While on death row in Athens after being convicted of corrupting the youth and impiety, Socrates had valid reasons to take action and flee. After all, the judgement on his case was unreasonable and the sentence would leave his orphans with nobody to care for them. But Socrates, in his Socratic way, came to work out that only the just life is worth living, and in this case, obeying the law was the just thing to do. In the ‘Speech of the Laws’ he touches on the damage legal disobedience can do to a polity.

‘Do you imagine that a state can subsist and not be overthrown, in which the decisions of law have no power, but are set aside and overthrown by individuals?’ he asked.

We are, after all, interested in law largely because of what it can do, of how it can make a difference, and if the commands merely track the law, just as my command to my dog tracks what she would do otherwise, then there is little point in being interested in the law at all.

Thus, he took the hit and the rest is history. Many generations along, we are left with a robust model of law-abiding citizenship: the law is the law, and on that basis it should be obeyed.

The law is certainly a different and special beast; it makes special claims on us which, as Socrates observed, must be binding for a universal justice to be realised. However, the ties that bind need more than simple-hearted goodwill. That’s the hunch held with some conviction by Frederick Schauer, an eminent legal philosopher who’s taught at Harvard, Columbia and Chicago, among other esteemed law schools. Two decades of examining how we play by the rules has led Schauer to an epiphany on the source of the law’s uniqueness.

Schauer asked himself the deceptively simple question: ‘Do people obey the law?’ That is, do they obey the law, or are they doing something else which merely makes them appear as if they’re obeying the law?

The law is a peculiar, when one thinks about it, as it is different to other normative systems of ethics and right-doing. It carries a special weight. Starting from this premise, Schauer works his way to an understanding of the law that cannot do without a vital, though contested, ingredient.

‘What makes law distinctive is that unlike other social and political, cultural institutions, it not only tells us what to do but threatens us with unpleasant sanctions,’ he says.

Is it possible to conceive of the law as a system without coercion, one without prisons and fines, or depending on where you live, floggings and death? Furthermore, would you even obey it as a normative system without these sanctions? Does the stick make the law special?

'For Socrates, the law was the law,' says Schauer. 'He paid the ultimate price to show that laws must be obeyed regardless of what one’s own moral judgement might be. Judgment was mistaken and unjust but the very fact it was the law, for him, entitled it to respect and obedience.’

‘In the language of contemporary jurisprudence, Socrates believed that law had content-independent authority,’ explains Schauer. ‘Socrates thought that the content of law’s judgement [on him] was mistaken and unjust, but the very fact it was the law, for him, entitled it to respect and obedience.’

As Schauer points out, Socrates might have been the first to come up with this idea, but he wasn’t the last.

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‘He’s been followed by a distinguished collection of successors, including Thomas Aquinas, John Locke and John Rawls. For some of them it is a matter of obligation imposed by the social contract, for others, a matter of fairness and reciprocity, the things that make a society function.’

That sounds reasonable, and most of us would, on first inspection, agree.

At this point, though, Schauer turns to his pet dog.

‘What makes my dog relevant is that every morning and every evening I put food in front of her and then command her to eat. Miraculously, she eats, every time I tell her to eat. What an obedient dog, you might think.’

His dog (an Australian sheep dog, he proudly points out) indicates a subtle but crucial distinction in the game of compliance.

‘You would suspect, quite properly, that my dog would eat even if I did not command her to eat, and probably even if I commanded her not to eat. She just acts in a way that happens to be consistent with my command, but she does not act at all because of it.’

Schauer’s dog indicates a sharp distinction between behaviour which is compliant with commands and behaviour which is merely consistent with them. This is deeply problematic for those on the law-as-law team, as it suggests that it’s possible that the law merely tracks people’s actions, which they would otherwise do anyway. The law under these conditions loses its social status as a system different to other moral and normative systems. Schauer, through his honed understanding of rules-based behaviour, is keenly aware of the consequences.

‘We are, after all, interested in law largely because of what it can do, of how it can make a difference, and if the commands merely track the law, just as my command to my dog tracks what she would do otherwise, then there is little point in being interested in the law at all.’

As Schauer understands it, there most certainly is a tracking function in play in higher order deliberations. People simply want to do the right thing when it comes to certain big-ticket moral and ethical items. To make the point he uses a lurid example.

‘Where I live in Virginia cannibalism is against the law, but if Virginia were to repeal its laws against cannibalism it would not change my behaviour one bit. I like to think that much the same applies to many other laws to which I am subject.’

It seems uncontroversial to conclude that people will not commit assault, fraud or murder because it is the right thing to do. However, it adds a complicating dimension to the question of why people actually comply with the law. It’s here that Schauer’s intellectually hard-won hunch about coercion kicks in.

‘In Finland, people will stand obediently at ‘do not walk’ signs, even when there is nary a car nor police officer in sight. Not so for Italians, not so for Americans and, based on my observations, somewhat so for Australians.’

Beyond anecdote, Schauer has been combing through the empirical research and the results suggest that the Finns are possibly unique.

‘There might be good reason to think that the Finns are exceptional and that obedience to the law may be far more rare than is commonly supposed,’ surmises Schauer.

He cites work done on jury notices and traffic violations.

‘The non-attendance rate for court appearances in regard to traffic violations can be as high as 60 per cent in some surveys. Much the same goes for people summoned for jury duty, where compliance rates absent stringent sanctions have been found to be as low as 20 per cent, and it rarely approaches 50 per cent.’

‘Parking meter compliance in San Francisco was 40 per cent in 2007, and compliance rates for mandatory dog licences in the United States are below 20 per cent, and three per cent for cats.’

The knockout statistic closer to home concerns our multiplying bus and transit lanes.

‘Non-compliance with high occupancy vehicle lane laws was found to be 90 per cent without enforcement.’

Add to the pile non-compliance with public transport fares, motorcycle helmet laws, tobacco sales to minors and do-it-yourself tax assessments.

The collection of studies and reports seems to indicate that when sanctions are non-existent, soft, or administered without much alacrity, people defer to their better judgement, what Schauer terms ‘my side biases’, to determine whether they will comply with the law.

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It’s at this point that a distinguishing aspect of the law as a special normative system comes into view.

‘Legal systems have long relied on coercion,’ says Schauer. ‘Now we can understand why. A principal reason for having the law is that people’s judgements are often mistaken ... It should come as little surprise that many people overestimate their own decision making abilities.’

We often think we are better drivers than we actually are. This deceptively simple truth makes law-with-coercion a fundamental system for effective social regulation in a complex world of beliefs, needs, wants, desires and the inevitable clashes that occur because of them.

It’s not only at the petty level of fines and licences that these overestimations occur. The way we regard the environment offers up stark examples of my side biases; think of rainforest protestors or whaling ship chasers. The law is often telling us to go against our best judgement. Once that happens, the law needs to be something more than a voluntary system that glides seamlessly alongside our natural tendencies to act in certain ways. It needs to dispense some good old fashioned tough love for it to work; not a ‘truth’ modern liberal democrats, who eschew the stick in favour of the carrot, appreciate.

Henry David Thoreau and the philosophical anarchist school, who believe that what’s right trumps what’s legal, would not agree. However, as Schauer concludes:

‘Once we understand that people’s self-interested decisions may not be in the collective interest, and once we understand that people’s non self-interested judgements may often be mistaken, we can understand the need for law and law’s authority.’

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