Law in Contemporary Society
What is the relationship between civil law and the law of nature? When is one justified in disobeying the sovereign?

According to Hobbes, the natural condition of mankind is a state in which individuals are in “a condition of war of everyone against everyone, in which everyone is governed by his own reason, and there is nothing he can make use of that may not be a help unto him in preserving his life against his enemies” (Leviathan, 1651). In such a condition, each individual poses a danger to the other and this can quickly lead to a state of anarchism. Hence, individuals are better off by forming an order or “sovereign power” which will help delineate boundaries between right and wrong. Hobbes identifies two ways to attain a “sovereign power.”

The first way is by natural power. In Leviathan, Hobbes illustrates this point with the case of a man making his children submit themselves to his government or else face destruction by him. Or a man subjecting his enemies to his will, and sparing their lives in return.

The second way is by creating a “common-wealth” state whereby men willfully submit themselves to one man or to a group of men with the assurance of being protected against all others. Hobbes believes that the civil law and natural law engendered in these scenarios are not of different kinds, but merely different parts of the law. There is no law, Hobbes contends, unless the law is enforced by the state or “common-wealth.” Hence, even though Hobbes views the state as an “artificial man,” he contends that the state is “of greater stature and strength than the Natural, for whose protection and defence it was intended; and in which the Sovereignty is an Artificial soul, as giving life and motion to the whole body.”

But is the power of the state limitless? Or are individuals ever justified in disobeying the state?

Hobbes rightfully maintains that every subject in the Commonwealth must obey the civil law in order to assure the well-being of the majority. But what happens when the relevant law violates constitutional rights? Do individuals still need to oblige even when they have not explicitly consented to the so-called social contract? And what if the law itself infringes upon a citizen’s civil rights?

Hobbes would argue that if we benefit from living under the protection of the state, we need to obey its law or else be confronted with a state of anarchy. A case on point is Walker v. City of Birmingham. Here, city officials requested an injunction to halt protests from a group of African-Americans citing the burden of the protests on the city. The protestors ignored the injunction alleging that it violated their first and fourteen amendments and were held in contempt. The question addressed by the Supreme Court is whether a court order must be obeyed, even when it is erroneous. The Supreme court affirmed the contempt because the protesters failed to challenge the injunction in court.

But what if the “common-wealth” itself takes its individuals back to a pre-state condition of wars and lawlessness? Would an individual then be justified in resisting an established government? Hobbes argues that it is unnatural to resist a government when the same government is in place to ensure that its citizens stay alive. But he makes a different argument when it comes to resisting capital punishment. In such a case, individuals may resist the state by any means to preserve their own life.

I believe that there should be avenues to resist even a legitimate government over laws that are unjust. Whether the court provides a mechanism to challenge such laws is important in deciding when and how to resist government authority. In Walker, Justice Stewart emphasized the role of the rule of law as an “orderly process” and Justice Warren pointed out that the law is a “substantive just and lawful process” hinting that the law must be obeyed even when it is unjust. On the other hand, Justice Douglas emphasized the law as a tool to “protect fundamental constitutional values.” And Martin luther King contended that the rule of law is just moral law that individuals respect by accepting the penalties for civil disobedience to unjust laws. (Walker v. City of Birmingham.) Hence there are instances where the law may be disobeyed. For example, when disobeying the law is the first step toward effecting change.

While I generally agree with Hobbes theory, I argue for some flexibility in the application of the social contract. The law can not remain static as society evolves. It must be, albeit conservatively, adapted to changes as society evolves.


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r1 - 24 Apr 2020 - 14:58:25 - ChristineFrancis
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