遵法責務問題を問うべき根拠

―遵法責務論無用論に抗して―

抄録

Must we adhere to ask and solve the problem of obligation to obey the law? An affirmative answer to this question is not self-evident. On one hand, legal positivists (like Matthew Kramer) who attempt to build a comprehensive descriptive theory of law which covers all the phenomena of law around the world, deny any necessary relations between the concept of law and morality. So they wholeheartedly accept that an evil law is also a law. but they reject the idea that law in general has a value which deserves the basis of obligation to obey the law. On the other hand, for natural law theories (like Michael Moore's) that argue we should recognize the normativity of law only when the law is morally just, an evil law is basically not a law (except when the evil law is useful as a heuristic to find what is morally just), so the problem whether and why we should obey evil laws just because they are law, is not a problem from the very beginning. Legal theories mentioned above treat useless the arguments to solve the basis of obligation to obey the law. But if we recognize that when we fulfill our obligation to obey the law. we should not only comply with laws, but also occasionally we should disobey them in order to improve the law to conform to common values of our society, it becomes clear that it is not sufficient to ask whether laws are useful for us to follow good or right reasons. Rather we must ask whether law's have the intrinsic value of law sufficient to ground obligation to obey the law.