This essay originally appeared in the Center on Religion Culture and Democracy‘s Reading Wheel. It is reprinted with permission.
Right-of-center writers on philosophy and law have penned some fascinating books in recent years calling attention to rights as well as their attendant obligations. From Adrian Vermeule with Common Good Constitutionalism, to Erika Bachiochi with The Rights of Women, to Hadley Arkes, my own boss and mentor, with his Mere Natural Law, no shortage of scholarly energy has been devoted to reminding modern audiences that one cannot articulate a proper understanding of a right without the framework of corresponding duties associated with a right. Daniel Mark’s The Nature of Law joins and elevates these notable works on the connection between rights and obligations. To take one elementary example of how to understand rights with obligations, if I was to claim a right to move freely without obstruction to enter my apartment, the corresponding duty would be on you as well as the government to oblige and not impede my entry. Alter the hypothetical though and the correlative duty changes. If I am trying to enter my apartment building while it is aflame, there is no duty for you or the government to oblige my right until the fire is extinguished in the name of the common good. The upshot here is that all of us have a presumptive liberty to engage in all legitimate acts, subject only to a sufficient justification for any abridgement of that liberty.
Abraham Lincoln in his debates with Stephen Douglas caught the importance of framing rights as connected to obligations in the debate over slavery, the gravest test of the American legal regime and its legitimacy. One moment from the debates was particularly instructive. Douglas on October 15, 1858, at Alton, Illinois, defended the principle of popular sovereignty in extending slavery to the federal territories. Douglas also defended the Supreme Court’s decision in the 1857 case of Dred Scott v. Sanford as still permitting popular sovereignty over the question of slavery, despite the text of the opinion holding that the Constitution and its safeguards did not apply to black Americans regardless of their location or status as freemen. The Constitution did apply, according to the Court’s majority, to slaveowners seeking the return of their slaves held as property as part of due process of law.
As a corollary to that defense of popular sovereignty and to persuade citizens of Northern states such as Illinois to support his popular sovereignty position, Douglas said that even with the Court’s decision in Dred Scott, Northern states would not have to oblige the slaveholders who would seek the return of runaway slaves in their states. Douglas in his remarks at Alton approvingly quoted then-Senator Jefferson Davis who had said earlier in a separate speech attempting to satisfy parties that “though the right would remain, the remedy being withheld, it would follow that the owner would be practically debarred, by the circumstances of the case, from taking slave property into a Territory where the sense of the inhabitants was opposed to its introduction.” In other words, the right to the return of a slave (required as held by the Court) could through local laws and municipal regulations be rendered a nullity because of no obligation to effectuate the claim.
Logically, Douglas had fallen into the trap of assenting to a right of some to vote slavery up or down but also a right of others to dispossess some of that to which they had a right. As Lincoln explained to his audience, “The man who argues that by unfriendly legislation, in spite of that Constitutional right, slavery may be driven from the Territories, cannot avoid furnishing an argument by which Abolitionists may deny the obligation to return fugitives, and claim the power to pass laws unfriendly to the right of the slaveholder to reclaim his fugitive.” Lincoln thus chided Douglas, apparently to wild applause, as the greatest abolitionist of all. Douglas’s grave error was thinking that a right need not have an attendant obligation. Our rights are a nullity, both theoretically and practically, without the expectation of others respecting or obliging them. Politically, the die was cast. Support for Douglas’s popular sovereignty position fell apart because the South realized it needed federal slave codes, not unreliable expectations to oblige due process property claims to secure their claims to property in black slaves. As Hadley Arkes likes to ask when he teaches this episode of the Lincoln-Douglas debates, “When was the last time a substantive argument mattered in politics?”
Enter Daniel Mark and his new book, The Nature of Law. Mark’s signature contribution in his erudite work is that one has a prima facie moral obligation to obey the law. Mark certainly acknowledges, with Aquinas, that an unjust law is no law at all. Yet, as Mark argues in his book’s introduction, “Placing law in its proper context, namely as an instrument for promoting the common good, allows us to see why law must have authority and why law’s authority (in a just system) is itself worth upholding.” The act of acknowledging an unjust law within a just legal system requires an understanding of the common good that obliges us to respect law’s authority absent a sufficient justification. Mark later explains,
For law to entail an obligation to obey (and, thus, for law to give people a reason to treat it as doing so), there always needs to be some additional theory that justifies the law or, in other words, supplies the obligation to obey. In that case, it is the features of that other theory and not a feature intrinsic to the concept of law itself that explain justified authority and obligation. That is, whatever gives a law authority in a particular case is separate from the concept of law itself, meaning that obligation is not an intrinsic part of law.
Mark accepts that there may be circumstances when the presence of an unjust law or judicial precedent fundamentally challenges the grounds of the regime under which one lives. But as related to our example from the Lincoln-Douglas debates, Mark holds to a Lincolnian position on rights and obligations. A fundamentally just legal order deserves our prima facie allegiance, even when particularly egregious exceptions cause us to question the regime. One living under such a regime may rightly acknowledge when to make a prudential accommodation with an evil, in the name of the common good, for the sake of compressing that evil. The common good in Lincoln’s case was preserving the Union while also rejecting the fallacious understanding of rights and obligations as articulated by Douglas over slavery. Just as our rights can only be coherent within the framework of attendant obligations, the authority of law itself can only be coherent if viewed through a framework of obligation to obey that transcends the positive law (which in Lincoln’s time sustained slavery) itself. Mark’s book, even if not invoking the Great Emancipator explicitly, is a timely reminder of why Lincoln’s wisdom still elucidates to this day.
