Obedience

"We must now fear the person who obeys the law more than the one who breaks it." (MacDonald) Discuss.

Essentially the reasoning behind the social contract is the same for most authors; it is the creation of Sovereign for the purpose of protecting the individual's interests. However, there are many discrepancies between the continuation of the relationship between the citizen of the state and the Sovereign. For Hobbes the social contract is of a perpetual nature, and cannot be revised, for Locke this was not the case, instead it was thought that if the Sovereign discontinued to fulfil its purpose in defending the individual's interests the social contract was breached and the individual had the right to deny the Sovereign's authority. Authors since tend to fall into either the Hobbes group or the Locke group, Rousseau's opinion falls within the latter believing the governed were free to disobey and establish a new political contract if they did not feel the Sovereign is delivering its side of the contract. Kant believed that there was no right to revolution due to the Sovereign being indivisible, as did Hobbes.

I find that not only in theory but also in practical terms I will have to agree with the theories of Locke, Rousseau and Fuller. I feel that Hobbes contradicts himself when he claims that law is reason subject to interpretation and amendment by equity ; if we see equity as being natural justice and then asserts that law is none the less law even if it is unjust law, would the lack of equity not be fatal to legislation being classed as law would it not destroy the very character of what law is?

If we do follow the Locke standpoint law is seen as less robust or solid, it is subject to the constraints of justice, fairness and morals, and without such law is no longer law and the social contract is dissolved. I also believe that the nature of any contract is - if one party does not fulfil their obligations and thus breaks the terms of the contract there is no need for the other party to fulfil their obligations granted under the contract.

I find that this opinion has been evidenced by a history of revolutions, the destruction and remaking of social contracts has repeatedly occurred throughout the history of man. Showing that although the social contract may be intended to be continuous, it is not unconditionally continued.

Although it appears that discussing the social contract may be straying from the point at hand, namely whether those obedient to the law should be feared more than those disobedient to the law or not, I assert that it is fundamental for the following reason. If one is entitled to dissolve the current Sovereign under the terms of the social contract, then surely that would entail that any law passed by such a Sovereign is no longer law, thus if we consider the disobedient citizen, with our focus not on law breaking in the context of cold-blooded murderers, or rapists or thieves. Instead it is disobedience that the usually law-abiding citizen can be brought to. Then, surely as there is no longer any law to be broken, there can be no such thing as a disobedient citizen (if our definition is confined to the aforementioned bounds).

Under Hobbes this problem does not arise, as if there is no right to revolt then law should be obeyed even if its paper form does not conform to the constraints of justice, and thus the existence of the disobedient cannot be questioned.

Where does this lead us? No matter what social contract theory is believed to be true, the question must be asked as to what it is that the "Disobedient" relies upon to disobey the laws delivered by the Sovereign that he or she is subject to the authority of.

To exemplify such a situation, I find the story of Advocate Bram Fischer extremely appropriate; not only in demonstrating a situation in which a law-abiding citizen can become a "Disobedient" but also for showing what factors are brought forward in justifying such disobedience.

Fischer was a much-respected advocate in South Africa at the time of apartheid; he was stricken off the role of advocates for making decisions in which he refused to uphold the discriminatory laws of the country.

How could a man denounce the law which he has dedicated his life to upholding and delivering? Fischer's problem could be seen in two ways, the first being that judges can be seen as not only administering law but justice also , which rings true in the case of Fischer as the oath of office used to swear in judges in South Africa includes that the judge would "administer justice to all persons alike" . The second way of viewing his problem is that one can understand that when applying law it must read according to the rule of law, Fischer saw his problem in the latter way.

No matter which way you chose to view the dilemma, there exists one factor common to both, it seems to be that the "Disobedient" views the law as secondary to the principle of justice, or if considering the latter, that law has an intrinsic relationship with justice which prevents law from really being law if justice is not present. So, to consider as to whether or not, justice is a justification that would render the disobedient someone to be feared, I feel it is necessary to determine and classify what type of justice does the "Disobedient" look to.

Aristotle considered justice as being separable into two categories corrective and distributive justice. The balance between both can be referred to as "absolute justice" , however such a balance may not always exist in context of the circumstances of every individual case. Aristotle talks of a "legal justice", which is the justice that the law is meant to deliver. Law can only be expressed in a way that is general, as it cannot be legitimately expected to cover all the circumstances of every case subject to the law. Therefore legal justice cannot be absolute justice , it can only be so far as can be reasonably expected for a legislature to cater for. Also, absolute justice seems to be dependent not only on circumstance but changing moral standing. Therefore legal justice is as close to absolute justice as can be made possible. To explain the development of law through the common law system Ð'- we can look to the principle of "equity" and making it part of the legal system Ð'-equity being the "part of morality that corrects the deficiencies of legal justice", using it as a way to fill in the gaps that emerge when trying to make legal justice match up to absolute justice. However, this would mean that morality is in fact not just part of law but can also displace it to an extent, meaning law is not final; but this may not be a problem is one can accept