Are We Obligated to Obey the Law? This Philosopher Argues Why We Might Not Be

Tommie Shelby, philosopher and social theorist, employs a Rawlsian framework to outline the relationship between the political legitimacy of social order, intolerable injustice, and the rule of law to ask: do Black people living in abject poverty have an obligation to respect and abide by the law? In investigating this question he offers a new framework within which to think about victims of structural violence; particularly Black people who live in regions with high concentrations of poverty who must construct various logics of survival in a country that barely recognizes their humanity.

Additionally, he asks questions that, ultimately, leave room to justify the “criminal” acts of Black people within the confines of a violent state who deprive them of their constitutional rights and liberty while perpetuating structural regimes that limit life prospects and legitimate opportunities for upward social mobility. Shelby ultimately asserts that poor Black people aren’t necessarily obligated to submit to government authority when the basic social structure of their democratic polity is fueled by racial injustice and/or does not ensure that all members of society are guaranteed the necessary conditions to avoid poverty-ridden circumstances.

Shelby’s ultimate task is to challenge the view that poor Black people should stop blaming racism or government policies for their shortcomings and, rather, accept that their circumstances are a result of a lack of personal responsibility. To do this he offers an account of systemic injustice that stems from the lack of a basic social structure that is just and ensures that all citizens are treated fairly and equally. He primarily offers responses to different criticisms to widely held, and often racist or discriminatory, views concerning poor Black people confined underserved regions that lack necessary resources for thriving.

Specifically he unpacks the ways in which racial injustice permeates institutions, policy, and legislation in democratic polities rendering criticisms of the actions of poor Black people (for instance, actions deemed criminal or morally reprehensible) inappropriate. More than inappropriate, though, argues Shelby, are these criticisms given the relationship between the civic obligations and moral duties of citizens in a democratic polity that professes ideals of civic reciprocity made possible by a basic social structure that is just. He examines these relationships and criticisms in relation to three main issues often viewed as pathological aspects of Black life in urban poverty: crime, contempt for authority, and employment-related struggles.

Some might argue that Shelby’s focus on crime — particularly the fact that he defends the “criminal” activity of poor Black people on the basis of those that are victimless — fails to take into account the effects that violent or victim-creating crimes have on society. When Shelby describes the criminal ethos of “gangsters” and “hustlers” who, while necessarily resourceful and often acting with financial gain in mind (deemed necessary given the trickle down effects of structural violence of poor, particularly Black, communities), he, one might argue, ignores the ways in which violent crime perpetrated by poor Black people causes unnecessary suffering: a breach in the social contract within a framework that recognizes the duty of justice.

That breach, one could argue, could potentially invalidate claims made that suggest 1) governmental duty to rectify social inequity or 2) that citizens, particularly those afforded better life prospects, ought to work to create just institutions or fight to correct currently existing institutions that are unjust. To some, that breach represents disrespect of the ideals of civic reciprocity by way of unnecessary suffering.

“… An Assault On Your Civil Rights” by Andrea Rae/ Creative Commons

This objection, however, fails to account for a common misconception that Shelby argues is partly to blame for short-sighted views of Black poverty, and blackness as a construct in general, that persist in society: that behavior can be divorced from overarching structures. In this case, particularly, the fact that the conditions and circumstances faced by Black people that live in areas with high concentrations of poverty are a direct result of historic and persistent institutional racism and structural violence problematize she notions of choice, responsibility, and reasonable behavior under conditions of severe injustice.

One might, then, argue that making a direct causal claim between those conditions and circumstances, individual behavior, and overarching structures is ungrounded given the complexity of causal chains in society. This objection, however, can be challenged by data and documentation that showcases how racial disparities in any social institutions lead to diminished life prospects and the perpetuation of unjust social systems that disproportionately place poor Black people on the receiving end of further injustice: racist housing practices, mass incarceration, limited educational resources, and limited employment opportunities.

The most important feature of Shelby’s argument is his framing of the behaviors of poor Black people, often regarded as inappropriate or damaging to society at large, as nontraditional logics of survival. Further, he frames them as responses to structural violence rather than merely pathological or deviant behaviors that stem from poor judgment or natural propensity to violate social norms. Shelby pulls from examples reminiscent of the social realities of present-day United States in order to make his abstract claims and justifications more accessible.

“Scales of Justice” by Government of Prince Edward Island/Creative Commons

This is important considering his attempt to shift focus from the civic obligations that citizens have to one another to the natural duties of moral persons who coexist regardless of national or institutional allegiances. He makes the case for reconceptualizing issues of accountability and responsibility as social and reflective as opposed to individually-based modes of being. He frames these issues as moral instead of sociological in order to appeal to theories of justice instead of theories of free will or personal moral responsibility.

This theoretical direction calls into question the duties of the government as well as the duties of moral persons in order to elevate the importance of the realm of the social and structural when making judgments about individuals. Perhaps the most intriguing aspect of Shelby’s methodological turn that highlights the power and function of the structural, particularly when racist ideologies continue permeate institutions which, in turn, further place barriers between poor Black people and upward social mobility.

Finally, one feature of Shelby’s argument that complicates issues related to the duties of the government and moral persons is his consideration of the idea of “tolerable injustice” — a Rawlsian idea that serves as the litmus tests for determining whether or not members of a society are obligated to obey its laws and respect its authority. The idea that some levels and forms of injustice are, well, tolerable. Unfortunately, neither Shelby nor Rawls offer a normative view or standard by which to judge the alleged levels of injustice which results in a view of injustice based on a continuum of sorts.

What deems anything as “tolerable” especially when judged in a society whose basic structure is unjust and allows for the perpetuation of structural violence often negatively affecting certain populations disproportionately? Ought the notion of “tolerable injustice” be deemed irrelevant or inconsistent with any theory of justice given that injustice implies that some 1) citizens may be denied their constitutional rights and 2) moral persons may be disregarded with respect to being considered free and equal? Data and documentation that showcase how systemic inequity leads to diminished life prospects, and the perpetuation of unjust social systems that disproportionately place poor Black people on the receiving end of further injustice, signify that levels of what is “tolerable” may be quantifiable. Albeit approximately.

They fail, however, to address the complexities of the phenomenological realities of poor Black people that affect things not necessarily revealed in data such as self-esteem, mental health issues, or racist ideologies that linger in institutions making sociological data of this nature possible. Those phenomenological realities are issues that often evade the public eye given both the isolated nature of underserved areas and the pervasive nature of white supremacy that influences public opinion and prevents collective commitment to ensuring a basic social structure that is just.

In highlighting the complex nature between the individual and overarching power strictures and institutions, Shelby forces us to broaden the limits of accountability and responsibility in civic society. He also encourages us to reconsider what it means to live in a just society.

NYC-based philosophy graduate student whose work covers Genocide Studies, Repro + Enviro Justice, and Critical Race Theory. @moontwerk

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