Illegal Strikes and Political Obligation – What Reasons Do We Have To Obey The Law?

The issue of public sector pay rises has been at the forefront of political discussions in the UK in recent months. The controversy can be traced back to at least 2013, when the government placed a 1% limit on such pay rises, a figure that falls below recent levels of inflation, meaning that the cap has made public sector workers financially worse off in real terms. Earlier last week, the government announced that it would allow ministers some flexibility to breach this limit, as well as announcing small rises in the pay of some public sector workers. However, critics have labelled these measures as divisive and insufficient.

Len McCluskey, the leader of the Unite union in the UK, has recently added to this controversy when he told a BBC interviewer that he would be willing to back illegal strike action in order to oppose the cap on public sector pay rises. Under legislation introduced last year, legal industrial strike action in the UK public sector now requires the support of at least 40% of all those entitled to vote in the relevant ballot. Moreover, the ballot itself must also have at least 50% turnout in order to be valid. In his interview, McCluskey intimated that he would support strikes that did not meet this second condition. In turn, this has led commentators to call on Jeremy Corbyn, the leader of the opposition, to clarify whether he too would support illegal strikes.

I do not intend to address the moral and economic considerations involved in the question of the amount that a fair society should pay to its public sector workers. Rather, I shall be interested in the nature of the reasons that we may have to obey laws we disagree with, and the implications that our answer to this question may have for whether we should support illegal strikes of this sort.

 

Why Should We Obey The Law?

 

We often have some self-interested reason not to break the law. This is typically true in the indirect sense that individuals who break the law will often face punishment for doing so. However, it can also be true in a more direct sense, since some laws may also be aimed at safeguarding one’s own well being. Consider, for instance, laws prohibiting trespassing on railways; part of the reason that such trespass is illegal is that the act is highly dangerous for the trespasser herself. Our prudential reason to obey this law is partly derived from its content; we have self-interested reason to avoid the dangers of trespassing on railways.

We also may have moral reasons to follow laws that are grounded by the particular content of the law in question. Consider for instance, the law against murder; one’s reason to obey the law is plausibly derived in large part from the strength of one’s moral reason not to kill people.

However, the requirements of the law can depart from what is in our interests, and indeed from what morality may require. Some, such as McCluskey, might claim that this is arguably true of the legislation governing public sector industrial action in the UK. For another example, liberals might claim that laws prohibiting abortion in some countries are both immoral and detrimental to individual well-being. Assuming that there are some cases in which the requirements of the law and the requirements of morality diverge, can we have moral reasons to obey laws that we take to be immoral?

Those who endorse the concept of political obligation claim that citizens do have some moral reason to obey such laws, simply by virtue of the fact that they are codified in the law of one’s society. This reason amounts to what H L A Hart described as a content-independent reason to follow the law, in that it is a reason that “functions independently of the nature or the character of the action to be done”.[1]

Why suppose that we could have this sort of content-independent moral reason to obey the law? Whilst I cannot address the numerous attempts to answer this question here, I shall briefly outline some of the more prominent theories, and their implications in the context of the public sector pay dispute (for a more exhaustive and detailed discussion of such theories, and for further readings, see here, here, and here).

For some, it might be claimed that this question is misguided from the outset; the thought here is that simply to be involved in a political association such as a civil society inextricably involves bearing certain obligations, including the obligation to obey the laws of one’s society. Such obligations do not require, and perhaps do not admit of further moral justification, much in the same way as the obligations that we bear towards our close family members.

However, we might find it plausible to suppose that political obligation does require further moral justification. One prominent trend in the literature exploring such justification has been to appeal to the moral force of consent. On this approach, political obligation is understood to be grounded by the fact that the individual has in some sense consented to being governed by the state; by virtue of this consent, she has a duty to obey the law. Naturally, the most pressing problem for this approach is whether we can truly say that all citizens have provided a token of valid consent to such governance.

To see why this is a problem, consider first the point that political obligation supposedly applies to all members of the society in question. In order to capture this, perhaps it might be claimed that all citizens have tacitly consented to governance by virtue of their choice to reside in a certain place. However, it is far from clear that this consent would qualify as valid; citizens may not understand that their choice of residence entails obedience to all present and future laws, and they may not have the option to withdraw this consent. Their choice of residence may also be a function of coercive forces that undermine the voluntariness of their choice, and thus the validity of this token of consent.

On the other hand, if the consent theorist stipulates conditions that aim to ensure that the consent provided to governance is valid, it becomes less clear that the theory will capture all of the members of the society to whom the political obligation supposedly applies. For instance, although one might arguably claim that an informed individual voting for the winning candidate in a democratic election closely resembles an individual giving a token of valid consent to governance, it is implausible to claim that the political obligation can apply to all members of one’s society, if the obligation can only grounded by consent of this sort. Indeed, in the current context, it seems plausible that many of those who would support public sector pay rises will have voted against the current government. The claim that they nonetheless have a political obligation grounded by their consent seems tenuous at best.

The final approach to the content-independent reasons undergirding political obligation that I shall consider here, and one that H. L. A. Hart himself endorsed, appeals to considerations of fairness. Members of society typically receive and accept benefits in return for their submission to the law; through its laws, the state may, amongst other things, protect, medically treat, and educate its citizens. If one were to not only receive but also to accept these benefits without submission to governance by the state, then this would violate a norm of fairness. Accordingly, political obligation, it might be claimed can be grounded by considerations of reciprocity, the thought that we should ‘do our bit’ by complying with the system of law that brings us these benefits. To do otherwise would be to free-ride on the sacrifices of others.

This is an apposite theory with which to conclude this brief overview of the discussion of political obligation in the present context, since the public sector pay cap example provides an excellent illustration of a potential tension in the fairness approach. It seems somewhat to perverse to claim that considerations of fairness demand that public sector workers obey laws placing strict legal conditions on striking, when the very motivation for such strikes is the apparent lack of fairness with which they have been treated by having the pay cap imposed in the first place.

Where does leave the concept of political obligation? Naturally, I have not been able to canvass all of the nuances of the theories of the obligation’s justification here; as such, the problems that I have briefly alluded to above should not be taken to amount to an all things considered argument in favour of anarchism. However, even if a political obligation can be justified, and we do have some content-independent moral reason to obey the law, this does not settle the further matter of whether it should be taken to override the strong content-dependent moral reasons we might plausibly have to oppose certain laws. Few would doubt the morality of those who historically opposed laws enshrining slavery, apartheid, or the discrimination of women. However, if we are to count Len McCluskey amongst the company of such moral dissenters to political obligation as Nelson Mandela and the suffragettes (as he has suggested), then we must address prior questions concerning the strength of our moral reasons to change the current pay levels of public sector workers.

Reference

Hart, H. L. A. (Herbert Lionel Adolphus). Essays on Bentham: Studies in Jurisprudence and Political Theory. Oxford: Clarendon Press, 1982.

[1] Hart, Essays on Bentham, 254–55.

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