Law in Contemporary Society

[Revised] Justifications for Nationality Based Rights and Obligations

-- By CodyHuyan - 22 Apr 2024


I am a citizen of California and smoke marijuana regularly (I don’t really). Recreational use is legal there. When I visit China, I don’t use any cannabis products because any use of marijuana is strictly prohibited. I don’t believe that smoking weed should be illegal, but I choose to follow Chinese law nonetheless when I travel there. Why do I need to or choose to obey Chinese law as a U.S. citizen?

It is necessary to address the need and choice questions separately. Host countries impose a legal obligation upon visiting foreigners to abide by domestic laws, but foreigners practically have a choice not to. Especially when there are no extradition agreements with the host country and the visitor is only present for a short timeframe, enforcement of domestic law can be difficult, creating opportunities for people to break the law while facing no consequences. Yet, even with lower deterrence effects, most people still choose to obey the law. The origin of such voluntariness to obey law that one doesn’t necessarily agrees with warrants an analysis separate from the theory through which a legal obligation is imposed.

Why are people obligated to obey laws of another country?

Another way to frame the need question is where does a country obtain the legitimacy and authority to impose and enforce their domestic laws on foreigners within its border? While I believe that the social contrarian theory adopted by many liberal theorists fail to address the choice question, it does provide an explanation for the source of authority of a country. Social contrarian theory purports that people obey the law because they implicitly agreed to a social contract to do so. Nationality is our acceptance of the social contract. With nationality comes the enjoyment of certain benefits, what we call rights, in exchange for forfeiting certain personal interests, which we name obligations. The ability to travel to other countries is one benefit that one’s nationality offers, although with varying levels of convenience. In exchange for such benefit, countries mutually agree to legal authority over each other’s visiting citizens. On an individual level, acceptance to the social contract of the hosting country effectuates through one’s obtainment of Visa and actual entry. Travelers enjoys hospitality, safety, and other resources from the hosting country. In exchange, they agree to abide by the domestic law and for host country’s authority to enforce the law.

Why do people choose to obey laws of another country?

While nationality-based social contrarian theory sufficiently answers the obligation question, it fails to adequately explain the choice question. One must still make a conscious choice to perform its obligations. In cases where there are less enforcement mechanisms, which can be the case for visitors in a foreign country (i.e. no extradition, short stay lowering chances of being caught), there are more opportunities for one to not obey the law while facing no negative consequence. So why do people still choose to obey laws of a foreign host country, even if the law is different from their home country or that they don’t agree with it?

Some theorists, such as Yael Tamir, have put forth an associative obligations theory to explain voluntarily assumption of burdens, arguing that the willingness to assume legal obligation derive from people’s sense of responsibility towards members of the community with which they associate. Yet, travelling doesn’t necessarily change one’s association. Travelling to China and choosing to obey their law doesn’t mean I now associate with the Chinese community. Conversely, my association with the U.S. also does not negate the legal obligation upon me to follow Chinese law.

Perhaps, an alternative cosmopolitan theory offers a better justification for the choice question. Rather than independent entities, the world should be viewed as one exhaustive community, where birthright citizenship is nothing more than the same type of contingency that race, gender, or social class are. Nationality, then, is simply a governance mechanism to better facilitate and enforce the rights and obligations each person owes as a citizen of the world. Ultimately, irrespective of individual backgrounds and nationality, we all should be owed a common baseline set of rights as human. This set of rights doesn’t denote a universal moral standard. Rather, each nation exists to cultivate their own unique culture and standards. This baseline set of rules narrowly indicates a bottom line of decency and care that all people should be entitled to, i.e. not being physically hurt by another without a justifiable cause. To respect each other’s culture and rules when temporarily intruding upon one’s community is part of that baseline decency we owe each other. Thus even when there are discrepancies and disagreements with foreign law, people often choose to obey it as long as the disagreement is not material.

The Role of Nationality

In addition to its pragmatic function as the source of legal authority, nations also exist to formulate communities and promote cultural diversity. Just like race or religion based communities within a country can have their own unique rules and preferences additional to legal national requirements, each nation also creates communal norms above the baseline mandated by the world at large. These cultures and norms inform the fundamental values of an individual. When one faces discrepancies or disagreement with laws in a foreign country, the materiality of such discrepancy and whether it is “worth it” to break the law for what they believe to be righteous is dictated by their nationality and values associated. Worthiness obviously requires a more comprehensive inquiry into the costs of disobedience, which is not addressed here, but the anticipated utility from disobedience is largely influenced by the social, culture, and political backgrounds that one grows up in. While nationality is not the only factor as religion, race, social class, or any similar contingencies will have a bearing on it, it plays a foundational role as a nation’s rules of law contours the outer boundaries of one’s perspective.

I choose to obey China’s ban on marijuana, but maybe, if my freedom of speech is on the line instead, I will choose to break the law.

You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable. To restrict access to your paper simply delete the "#" character on the next two lines:

Note: TWiki has strict formatting rules for preference declarations. Make sure you preserve the three spaces, asterisk, and extra space at the beginning of these lines. If you wish to give access to any other users simply add them to the comma separated ALLOWTOPICVIEW list.


Webs Webs

r5 - 27 May 2024 - 20:45:39 - CodyHuyan
This site is powered by the TWiki collaboration platform.
All material on this collaboration platform is the property of the contributing authors.
All material marked as authored by Eben Moglen is available under the license terms CC-BY-SA version 4.
Syndicate this site RSSATOM