¹ West Virginia Stale Board of Education v. Barnette 319 U.S. 624, 641.

² SeeKalven, Harry Jr., The Negro and the First Amendment (Chicago 1965), p. 16: “A free society is one in which you cannot defame the government”Google Scholar.

³ Plamenatz, Cf. JohnMan and Society (London 1988) I, ch. 6, esp.pp. 220–241Google Scholar; Marshall, Geoffrey, Constitutional Theory (Oxford 1971) pp.208–211Google Scholar. Plamenatz, rejecting Locke's conception, defends a notion of “indirect” consent, based on a democratic form of government.

⁴ CfRaz, Joseph, The Morality of Freedom (Oxford 1986) ch. 4Google Scholar, and Ethics in the Public Domain (Oxford 1994) ch. 15Google Scholar.

⁵ For the distinction between the “coverage” and “protection” of a right (such as a right to free speech), see Schauer, Frederick, Free Speech: A Philosophical Enquiry (Cambridge 1982) pp.89–92Google Scholar.

⁶ Ibid. pp. 68–71, discussing Scanlon, Thomas, “A Theory of Freedom of Expression” Philosophy and Public Affairs 1 (1972), 204Google Scholar.

⁷ Richards, David A.J.,Toleration and the Constitution(Oxford 1986) esp Parts II & III. See also Richards, “Free Speech as Toleration” in Waluchow, W.J(ed.),Free Expression: Essays in Law & Philosophy (Oxford 1994)Google Scholar.

⁸ Richards provides a useful general discussion: Toleration and the Constitution, Part I.

⁹ “Justification and Judicial Responsibility” (1984) 72 Calif. L.R. 178, esp 193–199Google Scholar; see also Lyons, , Moral Aspects of Legal Theory (Cambridge 1993) pp. 96–101CrossRefGoogle Scholar.

¹⁰ MacCprmick, Cf. Neil,“The Concept of Law and ‘The Concept of Law’” (1994) 14Google Scholar Oxford J. Legal Stud. I/ See also Hart, H.L.A., “Legal Positivism and the Separation of Law and Morals” (1958–1959) 71 Harv. L.R. 598, reprinted in Hart, Essays in Jurisprudence and Philosophy (Oxford 1983)Google Scholar.

¹¹ 319 U.S. 624 (1943).

¹² Ibid. 642.

¹³ Ibid. 653–655. Cf. Minersville School District Board of Education v. Gobitis 310 U.S. 586, 594–595(Frankfurter J.)Google Scholar.

¹⁴ Dworkin, Cf. Ronald, Taking Rights Seriously (London 1977) ch. 8Google Scholar.

¹⁵ “Legal Obligation and the Moral Nature of Law”(1980) Juridical Review 61. See also Duff, , Trials and Punishments (Cambridge 1986) ch.3Google Scholar.

¹⁶ Fuller, Lon F., The Morality of Law, revised ed. (New Haven, Conn. 1969). See Duff, , “Legal Obligation”, above; CfFinnis, John, Natural Law and Natural Rights (Oxford 1980) pp. 270–276Google Scholar.

¹⁷ Duff, R.A,“Legal Obligation”, above, p. 80Google Scholar.

¹⁸ See Raz, Joseph, “The Rule of Law and its ” (1977) 93 L.Q.R. 195Google Scholar. For a wider conception of the rule of law, encompassing legal tradition and the necessary culture of legality, see Raz, Ethics in the Public Domain, above, ch. 16.

¹⁹ “Legal Obligation”, above, p.82Google ScholarFinnis, Cf. John,Natural Law and Natural Rights, above. Finnis takes the attitude of the conscientious, law-abiding citizen as exemplifying the focal or central case of law: “a viewpoint in which the establishment and maintenance of legal … order is regarded as a moral ideal if not a compelling demand of justice”: op. cit., P.14Google Scholar.

²⁰ The rule of law, as here interpreted, therefore discourages the adoption of rules which some citizens can obey only at the cost of violating conscience. For his part, the citizen must makeallowance, consistently with conscience, for the importance of accommodation with others in the interest of the common good. CfRawls, Polotical Liberalism (New York 1993) esp. Lectures 2 and 4Google Scholar.

²¹ MacCormick, Neil,“The Concept of Law”, above, p. 17.Google Scholar.

²² Ibid.

²³ The Concept of Law, 2nd ed. (Oxford 1994) esp. ch. 2 and pp. 51‘61, 82‘91Google Scholar.

²⁴ Cotterrell, Cf. Roger, The Politics of Jurisprudence (London 1989) ch. 4.Google Scholar.

²⁵ Raz, Cf. Joseph, The Morality of Freedom, above, ch. 4. See also Raz, , Ethics in the Public Domain, above, ch. 14.Google Scholar

²⁶ Ethics in the Public Domain, above, p. 335.

²⁷ The Concept of Law above, p. 201.

²⁸ Ibid. pp. 116–117.

²⁹ An objection which Hart subsequently appeared to concede: see his review of Fuller's Morality of Law in (1965) 78 Harv. L.R. 1281 at p. 1294, reprinted in Essays in Jurisprudence and Philosophy, note 10 above, pp. 361–362.Google Scholar

³⁰ NeilMacCormick has observed that, “What must be essential to the ‘internal aspect’ of the rule of recognition is some conscious commitment to pursuing the political values which are perceived as underpinning it, and to sustaining in concrete form the political principles deemed inherent inconstituted order of the society in question”: Legal Reasoning and Legal Theory (Oxford 1978) pp. 139 –140. See also Ibid. pp. 62–65; and CfSartorius, Rolf, “Hart's Concept of Law”, in Summers, Robert S. (ed.), More Essays in Legal Philosophy (Oxford 1971). p. 131Google Scholar.

³¹ For the hermeneutic, as distinguished from the internal, point of view, see MacCormick, Neil,Legal Reasoning and Legal Theory, above, Appendix, and H.L.A. Hart (London 1981) ch. 3;Google ScholarRaz, cf. Joseph, The Authority of Law (Oxford 1979) pp. 153–159; H.L.A. Hart, Essays inand Philosophy, note 10 above, pp. 14–15, and The Concept of Law, note 23 above,. 239–244Google Scholar(Postscript).

³² The interpretative legal theory of Ronald Dworkin entails similar conclusions, as I have tried toelsewhere: see Dworkin, Ronald, Law's Empire (London 1986);Google Scholar T.R.S. Allan, “Justice andin Law's Empire” [1993] C.L.J. 64.

³³ Church of the Lukumi Babalu Aye v. City of Hialeah 124 L.Ed.2d 472, 519 (1993). See also Yoder, Wisconsin v. 406 U.S. 205 (1972); Employment Division, Dept. of Human Resources of Oregon v. Smith 494 U.S. 872 (1990)Google Scholar.

³⁴ U.S. v. Seeger 380 U.S. 163 (1965), interpreting the Universal Military Training and Service Act,.Google Scholar

³⁵ Welsh v. U.S. 398 U.S. 333, 342–343(1970)Google Scholar.

³⁶ Appropriate respect for conscience also favours the exemption of non-pacifists who object to participation in a particular war on account of its perceived injustice. Douglas J., who described “conscience and belief” as the “bedrock of free speech as well as religion”, thought that restricting exemption to pacifist objectors constituted “an invidious discrimination in favour of religious persons and against others with like scruples”: Gillette v. U.S. 401 U.S. 437, 465–469 (1971)Google Scholar(Douglas, J., dissenting). Gillette resisted conscription on the ground of his opposition to the Vietnam conflict as an unjust war. For further discussionGoogle Scholar, see Walzer, , Obligations: Essays on Disobedience. War. and Citizenship (Cambridge, Mass. 1970) pp. 132–138Google Scholar. The British experience in the 2nd World War is briefly discussed by Peter Singer, Democracy and Disobedience, (Oxford 1974) pp. 101–102.Google Scholar

³⁷ See Finnis, Natural Law and Natural Rights, note 16 above, p. 361; Raz, The Morality of Freedom, note 4 above, p. 102. For the complexities involved where several groups have legitimate groundsdisobedience, and there is the consequent risk of serious disorder, see Rawls, John, A Theory of Justice (Oxford 1972) pp. 373–375Google Scholar.

³⁸ Natural Law and Natural Rights, note 16 above, p. 319.

³⁹ Ibid.

⁴⁰ Ibid.p. 360.

⁴¹ Ibid. pp. 314–320, 354–357.

⁴² Ibid. p. 357.

⁴³ The invariant force (or black-and-white quality) of legal obligation, properly understood, attacheslegal obligation correctly (reasonably) asserted or acknowledged—according to the citizen's(or judge's) moral judgment (taking account of the need for authority and co-operation with others for the common good).

⁴⁴ For analysis of the reasons for obedience to law based on the conception of democracy as a fair compromise between competing claims to power, see Peter Singer, Democracy and Disobedience, note 36 above.

⁴⁵ For conflicting requirements of justice and fairness, see Dworkin, , Law's Empire, note 32 above;Allan, Law, Liberty, and Justice (Oxford 1993) chs. 4 & 5Google Scholar.

⁴⁶ Cf. Scanlon, “A Theory of Freedom of Expression”, note 6 above, p. 214. Scanlon argues that autonomous citizens could not concede to the state the right to have its decrees obeyed without deliberation.

⁴⁷ Obligations, note 36 above, p. 132. (See also pp. 138–142.) Walzer also observes that we can regard the state as being composed of consenting citizens only in so far as the legitimacy of “secondary associations with limited claims to primacy” is recognised:ibid. pp. 18–19. The implications of pluralism for the role of freedom of expression are explored by Raz, Ethics in the Public Domain, note 4 above, ch. 6.

⁴⁸ Cf. X v. Morgan-Grampian [1991] 1 A.C. 1; Allan, Law, Liberty, and Justice, above, ch. 5.

⁴⁹ E.g. Hart, H.L.A., The Concept of Law, note 23 above, p. 210Google Scholar.

⁵⁰ In describing his conduct as disobedience to law the dissentient may, of course, simply use language which reflects the viewpoint of others—a viewpoint which he does not actually share: CfFinnis, , Natural Law and Natural Rights, note 16 above, pp. 234–237Google Scholar.

⁵¹ A Theory of Justice, note 37 above, pp. 363–391Google Scholar.

⁵² It should be noted that civil disobedience need not be limited to an appeal to a common conception of justice, but may invoke principles of justice which the majority ought to recognise: see Singer, Peter, Democracy and Disobedience, note 36 above, pp. 86–90Google Scholar.

⁵³ Op.cit., note 37 above, p. 389.

⁵⁴ Although Rawls's account of the rule of law is largely formal or procedural, it obtains its significance from the theory of justice. To his description of a legal system as “a coercive order of public rules addressed to rational persons for the purpose of regulating their conduct and providing the framework for social co-operation”, Rawls adds: “When these rules are just they establish a basis for legitimate expectations” (op.cit., note 37 above, p. 235).

⁵⁵ Ibid. p. 366.

⁵⁶ Ibid. p. 363.

⁵⁷ A conflict between legal and (other) moral obligations arises only where, for some special reason of personal morality (e.g. loyalty or friendship), a person declines, in any particular case, to obey an acknowledged legal duty (i.e. one whose justification on grounds of political morality he accepts): see the discussion of legal obligation above.

⁵⁸ Ibid. p. 351, emphasis added. In so far as Rawls treats gravely unjust requirements as valid laws, despite their violation of the principles of justice for which his theory provides, his account seems confused.

⁵⁹ Ibid. p. 365.

⁶⁰ Ibid. p. 390. CfDworkin, , Taking Rights Seriously, note 14 above, pp. 210–217Google Scholar.

⁶¹ A Theory of Justice, note 37 above, pp. 387–388Google Scholar. See also Rawls, , Political Liberalism (New York 1993) Lecture 4Google Scholar.

⁶² As Michael Walzer describes the position of non-conformists who owe allegiances to groups or sects: “none of them admits without qualification the political sovereignty or moral supremacy of the larger society of which they are members”. (Obligations, note 36 above, p. 15.) Walzer argues for recognition of an obligation to disobey the state in defence of engagements and ideals to which one may be committed, where disobedience does not threaten the existence of the larger society or endanger the lives of its citizens.

⁶³ Cf. Scanlon, “A Theory of Freedom of Expression”, note 6 above.

⁶⁴ The distinction between law and “managerial control” is emphasised by Fuller, in opposition to the conception of law as a “one-way projection of authority” from ruler to citizen: The Morality of Law, note 16 above, ch. 5.

⁶⁵ For discussion of such theories, see Hart, , The Concept of Law, above, chs. 2 & 3Google Scholar.

⁶⁶ Barnette is considered above.

⁶⁷ [1985] 2 All E.R. 151, 155–159.

⁶⁸ [1985] A.C. 1054, 1080.

⁶⁹ Leader, Cf. Sheldon L., “Free Speech and the Advocacy of Illegal Action in Law and Political Theory” (1982) 82 Col.L. Rev. 412Google Scholar.

⁷⁰ See discussion of civil disobedience above.

⁷¹ 249 U.S. 47 (1919).

⁷² Ibid. 52.

⁷³ CfRawls, , Political Liberalism, note 61 above, pp. 348–356Google Scholar. See also Debs v. U.S. 249 U.S. 211 (1919), upholding the conviction of a socialist candidate for the presidency, under the Espionage Act 1917, for a public speech denouncing the war with Germany, on the ground that the natural and intended effect of the speech was to obstruct recruiting.

⁷⁴ 274 U.S. 357, 376 (1927). Cf. Gitlow v. New York 268 U.S. 652, 673 (1925) (Holmes J., dissenting).

⁷⁵ 274 U.S. 375–376.

⁷⁶ Frohverk v. U.S. 249 U. S. 204, 208 (1919)Google Scholar.

⁷⁷ R. v. Arrowsmith [1975] 1 Q.B. 678, 684Google Scholar.

⁷⁸ Political Liberalism, note 61 above, pp. 345–346Google Scholar.

⁷⁹ Ibid. p. 346; Kalven, Harry Jr., A Worthy Tradition: Freedom of Speech in America (New York 1987)Google Scholar.

⁸⁰ See Brandenburg v. Ohio 395 U.S. 444, 447 (1969)Google Scholar.

⁸¹ Leader, Cf. Sheldon, “Free Speech”, note 69 above, pp. 431–432Google Scholar.

⁸² Frohwerk v. U.S. (above) 249 U.S. 204, 206Google Scholar.

⁸³ It follows that the distinction drawn in the American cases, between the “abstract teaching … of the moral propriety or even moral necessity for a resort to force and violence”, on one hand, and the preparation of “a group for violent action and steeling it to such action”, on the other, may be defended as a coherent constraint on freedom of speech: see Noto v. U.S. 367 U.S. 290, 297–298 (1961)Google Scholar. Cf. Whitney v. California 274 U.S. 357, 376 (1927)Google Scholar (Brandeis J.). Advocacy which is “directed to inciting or producing imminent lawless action”, and likely to incite or produce it, where the action entails coercion and violence, can legitimately be proscribed: Brandenburg v. Ohio 395 U.S. 444, 447 (1969)Google Scholar.

⁸⁴ A Theory of Justice, note 37 above, p. 366Google Scholar.

⁸⁵ Ibid. p. 387. CfDworkin, , Taking Rights Seriously, note 14 above, chs. 7 & 8Google Scholar.

⁸⁶ Cf. Whitney v. California 274 U.S. 357, 377–378 (Brandeis J.)Google Scholar.

⁸⁷ A Theory of Justice, above, p. 366Google Scholar. Raz, Cf. Joseph, The Authority of Law, note 31 above, pp. 271–275Google Scholar.

⁸⁸ Cf. Texas v. Johnson 491 U.S. 397 (1989)Google Scholar.

⁸⁹ Stromberg v. California 283 U.S. 359 (1931)Google Scholar.

⁹⁰ U.S. v. O'Brien 391 U.S. 367 (1968)Google Scholar; note Harlan, J.'s qualified concurrence at 388–389.Google Scholar

⁹¹ Cf. David Richards, Toleration and the Constitution, note 7 above, ch. 4.

⁹² The citizen will generally distinguish between cases in which he accords the state no moral authority (e.g. as regards the requirements of religious worship) and those where its authority has been abused (by unjust decisions within its proper scope), although he may conclude in either case that there is accordingly no obligation to obey. I am grateful to Julian Rivers for this clarification.

⁹³ Holmes J.'s judgment in Frohwerk affords an illustration (see above).