Plato’s dialogue Crito, as is well known, presents Socrates’ response to the question why must one obey the law. The facts surrounding Socrates’ trial, imprisonment and subsequent execution are all well known, I shall not repeat them here. Rather my present task will be to analyze the other side of the Socratic argument, in order to determine Socrates’ possible response to the question of when (or under what circumstances) may we chose to disobey the law. The purpose of this present analysis is three-fold: first, to determine what in fact might be the Socratic response to the question. Second, to show – as against at least one recent writer – that Socrates could be said to have a theory of civil disobedience. My third task, given that such a theory could be attributed to Socrates, is to assess the adequacy of this theory.

From the Autobiography of John Stuart Mill

In what follows, we must position ourselves in an obscure passage, a passage from the hostilities of nature to the serenity of civilized life. It is precisely here, at the dawn of social existence, that David Hume located the beginnings of law. His search for origins would eventuate in a narrative describing the spread of public peace by way of the greatest obstacle to such peace: unslacking self-interest. (That is what some refer to as an economy of means.) Along the route, language entered into his story with such prominence that it cannot safely be disregarded. We shall have to read Hume’s narrative as a narrative – that is, as a textual framing – if we hope to do justice to its arguments (about justice). To cross the gap between nature and society, we shall have to discover that the gap does not lie simply between them, but also lies within each of them. More specifically, we shall have to find that nature is perforce hollowed out by culture.

Ask a practising liberal to define her political creed, and more likely than not she will begin by describing the wonderful life of the free person. That is, in the parlance of modern political philosophers, she will begin with a conception of the good. The good life is the free life, and the good society is the one where people are as free as possible. By contrast, recent liberal philosophers have for the most part grounded their theories in principles of right or rights. Indeed, some have argued that what is unique about liberalism as a political doctrine is that it is not committed to the advancement of any particular conception of the good, let alone to that of the free person. In his celebrated recent book, The Morality of Freedom, Joseph Raz sides with the practitioner and confronts the pedlars of right-based or deontological liberalism head-on. Believing the history of liberal theory to be against them, he labels his opponents ‘revisionists’. The Morality of Freedom has already been hailed as the most significant new statement of liberal principles since Mill’s On Liberty. And while this may be a bit over-enthusiastic, Raz would welcome at least one philosophical aspect of the comparison with Mill. Both are teleologists who ground their theories of political morality on considerations of the value of the free or autonomous life. I shall dub such theories ‘autonomarian’. And I shall examine Raz’s autonomarian reaction in detail here, for it may well be the most important such theory in the post-Rawlsian era.

Although Positivism and Natural Law theories seem to be mutually exclusive theories regarding the law, one might be able to salvage the attractive features of both theories by confirming each theory to a different area of judicial life. The most promising line of demarcation is to confine Positivism to theories of validity, and to confine Natural Law to theories of adjudication. This strategy has been very ably outlined in a paper by David Brink, which I shall use as the springboard for this essay.

In my article “Legal Positivism and Natural Law Reconsidered” I suggested that we might be able to effect an interesting reconciliation of legal positivism (LP) and natural law theory (NL) by distinguishing two possible LP-NL debates. In particular, I suggested that we should distinguish, within legal philosophy, between theories of legal validity – that is, accounts of the existence conditions for valid law and theories (as I now would put it) of legal interpretation – and theories of adjudication – that is, accounts of how judges should decide cases. We can use this distinction to formulate two possible LPNL debates, one involving legal validity (LP1-NL1) and one involving adjudication (LP2-NL2). NL1 asserts and LP1 denies that the existence conditions for valid law and the theory of legal interpretation ensure that legal standards satisfy true or sound political morality to some significant extent. NL2 asserts and LP2 denies that the content of the correct or justifiable judicial decision must satisfy true or sound political morality to some significant extent. I sketched my own view of the relevant details of the theories of legal validity and adjudication and argued that these claims seem to vindicate LP1 and NL2 and so to allow a kind of reconciliation of LP and NL.

In “Legal Theory, Legal Interpretation, and Judicial Review”, David O. Brink advocates a central role in legal interpretation for considerations of human purpose. He states:

In my article “Legal Theory, Legal Interpretation, and Judicial Review” I tried to do three main things. First, I tried to establish a link between familiar issues within legal theory about the nature and determinacy of the law and familiar issues within constitutional theory about the scope and record of judicial review via their common dependency on assumptions about the nature of legal interpretation. Second, I argued that a proper theory of interpretation has at least two important components: a theory of the semantics of legal terms and a theory about how best to characterize the purposes or intentions underlying legal provisions. Third, I sketched my own account of these two components of legal interpretation and then explored their implications for these familiar disputes within legal theory and constitutional theory. In particular, the semantic claims that I outlined require us (a) to distinguish between the meaning or reference of legal terms and people’s beliefs about the extension of those terms and (b) to rely on theoretical considerations, of various kinds, in ascertaining the extension of general terms occurring in legal provisions. The account of underlying purpose that I sketched requires legal interpreters to identify the purpose of a legal provision with the abstract values that the framers of that provision sought to implement, rather than with the specific activities that they sought to regulate, and then to determine the extension of these values (i.e., the activities that these provisions, properly understood, do regulate) by appeal to theoretical considerations about the nature of these principles and policies. These interpretive claims, I argued, tend to vindicate a belief in the determinacy of the law in hard cases and the style, if not the content, of the Court’s exercise of judicial review in cases concerning individual rights, against worries that in these cases it has exceeded the scope of legitimate judicial review.