Law as Authority Flashcards

Question

Green, ‘Legal Obligation and Authority’, in The Stanford Encyclopedia of Philosophy, intro, s 1 2. Legal obligations are requirements with which law’s subjects are bound to conform, that are rendered non-optional. But what are legal obligations?

Answer 1

1. 1. Non-optional doesn’t mean physical compulsion, or lack of eligible alternatives (people sometimes consciously consider whether to follow the law) – so can obligations just be weighty reasons to perform? 1. 1.1. Not sufficient: high courts have important reasons not to reverse themselves too often, but no legal obligation 1. 1.2. Not necessary: one has an obligation (but only trivial reason) not to tread on someone’s lawn without their consent 1. 2. So content doesn’t account for stringency of obligations – does penalty? 1. 2.1. Hobbes, Bentham and Austin say that legal obligation requires an expression of will and attached risk of suffering an evil for non-compliance 1. 2.2. Kelsen said that what is normally counted as the content of a legal duty is really just a triggering condition for the mandatory norm that commands/authorizes officials to impose sanctions 1. 2.3. Hart rejected both: 1. 2.3.1. They misleadingly represent a range of disparate legal consequences (eg. compensation/invalidation) as if they all functioned as penalties 1. 2.3.2. They don’t account for other references to ‘duty’ without legal obligation (eg. duty of highest court to apply the law) 1. 2.3.3. They don’t adequately explain non-optionality (‘you shouldn’t murder’ is not the same as ‘if you murder you will go to jail’ – the law isn’t indifferent as to murdering + going to jail and not murdering at all) 1. 2.3.3.1. “The right to disobey the law is not obtainable by the payment of a penalty or a license fee” (Francome v Mirror Group Newspapers) 1. 2.3.3.2. Function of penalties is to reinforce duties, not constitute them (legal sanctions is only one of many reasons why people care about their legal duties) 1. 2.4. Hart said that people have an obligation to perform only when subject to a practiced social rule requiring an act or omission (though sanctions might oblige them to do something) – the fact that subjects use it as a rule marks it as normative 1. 2.4.1. Features of obligation-imposing rules: 1. 2.4.1.1. Reinforced by serious or insistent pressure to conform 1. 2.4.1.2. Believed important to social life/some valued aspect of it 1. 2.4.1.3. Their requirements may conflict with interests/goals of subject 1. 2.4.2. Objections: 1. 2.4.2.1. People often speak of obligations when they are aware that no relevant social practices exist (lone vegetarian in meat eating society) [MI: But do these really exist? In China you simply don’t have vegetarians, and a lone vegetarian simply would find an obligation to stand by their life choices, which is common to all.] 1. 2.5. Raz said that what constitutes obligations is not the social resources for their enforcement, or the practices in which they may be expressed, but the kind of reasons for action that they offer. Legal reasons are content-independent, pre-emptive (require subjects to set aside their own view) and categorical. 1. 2.5.1. Theory doesn’t assume that all legal obligations are morally binding, but that they are put forward as such by legal systems (though Hart disagrees 1982, 263-7) 1. 2.5.2. Objection: is it ever reasonable to exclude entirely from consideration an otherwise valid reason? (Finnis 1979, 231-59)

Answer 2

1. Practical reason = general human capacity for resolving, through reflection, what one is to do. It contrasts with theoretical reason because the latter leads to mental states (gives reasons for what one ought to believe) whereas the former leads to certain courses of action. 2. Our capacity for deliberative self-determination raises a philosophical problem addressed here: how can deliberation succeed in being practical in its issue? What do we need to assume—both about agents and about the processes of reasoning they engage in—to make sense of the fact that deliberative reflection can directly give rise to action? 3. What are the characteristics of the practical point of view? 3. 1. One way to contrast theoretical and practical reason: 3. 1.1. Theoretical questions can be understood as questions of explanation (asking why events have occurred) and prediction (asking what might happen in the future). Concerned with matters of fact and their explanation, and treats these issues in impersonal terms that are accessible (in principle) to anyone. Examples are natural and social sciences. 3. 1.2. Practical reason takes a distinctively normative question as its starting point – asking what one ought to do of a set of alternatives for action that haven’t been performed. Concerned with matters of value not fact (what it would be desirable to do). Agents attempt to assess and weigh their reasons for action, from a distinctively first-personal point of view, defined in terms of a practical predicament in which they find ourselves (either individually or collectively). 3. 2. A different way of contrasting, stressing the parallels rather than the differences: Theoretical reflection too is concerned with a normative rather than a factual question, namely with the question of what one ought to believe by weighing reasons for and against belief, from a first-personal standpoint. Seen in this way, the contrast between practical and theoretical reason is essentially a contrast between two different systems of norms: those for the regulation of action on the one hand, and those for the regulation of belief on the other. 3. 2.1. Difference 1: truth vs desirability 3. 2.1.1. Theoretical reason involves reflection with an eye to the truth of propositions, and the reasons for belief in which it deals are considerations that speak in favor of such propositions' being true, or worthy of acceptance. 3. 2.1.2. Practical reason is concerned not with the truth of propositions but with the desirability or value of actions. The reasons in which it deals are considerations that speak in favor of particular actions being good, or worthy of performance in some way. 3. 2.2. Difference 2: consequences. Though both alter our attitude, one alters our beliefs and the other our intentions 3. 2.2.1. Theoretical reflection produces changes in one's overall set of beliefs 3. 2.2.2. Practical reason gives rise to action, modifying our intentions, insofar as the subject is rational (because otherwise, a person might end up doing x even though one acknowledges that y is called for by the considerations one has reflected on)

Answer 3

1. We are used to conceptualizing conflicts in one way, in that they are resolved by the relative weight/strength of the conflicting reasons. However, to arrive at a logical theory of practical conflicts, we must recognized that not all conflicts are of the same type: there are first-order and second-order reasons. 1. 1. If we rely on an intuitive grasp of which reasons are stronger than the others, then we need not differentiate between first and second order, and as such philosophers don’t usually discuss them. But relying on intuition is premised on accepting the principle: 1. 2. Principle: one ought always do, all things considered, whatever one ought to do on the balance of reasons. This principle doesn’t always apply: 1. 2.1. X has an offer that she must accept by midnight, and it has lots of advantages and drawbacks. She is however too tired to make a rational decision, because she’s had a rough day. So she rejects the offer not because the cons outweigh the pros but because she’s too tired to think, and can’t trust herself with her decision. If this is a reasonable reason to reject, then the principle is invalid. 1. 2.1.1.1. NOTE (MI): This doesn’t necessarily mean P1 is not valid – one reason to reject the offer perfectly consistent with P1 is that if you accept, all the other options are closed. This is presumably the reason why, when she can’t trust herself, she thinks it is more sensible to reject the offer than to accept it, because she could easily have said that she couldn’t trust herself so she would accept it in case no such opportunities come up again. These are all on the balance of reasons for accepting/rejecting, and are perfectly consistent with P1. 1. 2.1.2. Tiredness in this scenario means that she hasn’t formed an opinion on the balance of reasons, but rather for the sole reason that she is tired. It is very common when faced with time constraints etc., and though it provides no reason for rejecting rather than accepting, some rule of thumb seems to be followed. 1. 2.2. Y, in the army, is ordered by the commanding officer to do x, and he feels justified in doing it even though on the balance of reasons he has a strong case for not doing it. But he feels that the order is a reason for doing it regardless of the balance of reasons. If ordered to commit atrocity he would refuse, but ordinarily orders should prevail. 1. 2.2.1. NOTE (MI): But this, again, can be a reason on balance – it doesn’t circumvent the balance; rather, it is such a strong reason on balance that you no longer need to consider any other reason on the balance, because nothing else can override it. The reason in this case is experience – the commanding officer is more knowledgeable and experienced than me, so even though I think on balance I should do y, I trust that my commanding officer knows better and that really I should do x. We are used to this in society – we are used to trusting our parents, the state, judges etc. to protect us, sometimes against ourselves. And so of course we defer to authority when considering whether we should do one thing or another. 1. 2.3. Z promised his wife that when deciding for his son’s education he would only have the son’s interest in consideration and wouldn’t consider any other interest. Then, he has to decide whether to send his son to private school, which will affect whether he can quit his job and write a book he’s always wanted to write, and will also affect others’ ability to send their children to private school. He may regard it reasonable to disregard all these considerations because of the promise. 1. 2.3.1. The promise itself isn’t a reason to send the son to public school or not – what is the reasoning?

Answer 4

1. 1. A conflict with an exclusionary reason is not resolved by the strength of competing reasons but by a general principle of practical reasoning that determines that exclusionary reasons always prevail when in conflict with first-order reasons. 1. 2. They can vary in scope, exclude all or only some of the reasons that apply to any given problem (eg. promise to take account of only son’s interest doesn’t validly exclude consideration of justice to other people) 1. 3. Exclusionary reasons can be overridden by other second-order reasons, and only undefeated ones validly exclude. 1. 4. Possible principles: 1. 4.1. Principle 2: one ought not to act on the balance of reasons if the reasons tipping the balance are excluded by an undefeated exclusionary reason. 1. 4.2. Principle 3: it is always the case that one ought, all things considered, to act for an undefeated reason.

Answer 5

1. on a test that distinguishes between the two ways that a reason can be defeated: is the reason defeated by an overriding first-order reason or an exclusionary second-order reason? 1. 1. Sometimes we can look at the content of the promise (Z’s promise) or a conceptual link between practical concepts and the notion of exclusionary reasons (thus decisions and mandatory norms can only be explained by reference to exclusionary reasons). But is there a general test? 1. 2. Taking Y’s obedience of commanding officer’s orders, he probably decided that even though on the balance of first order reasons he should disobey the order, he should obey the order anyway, because he thinks that it is not for him to decide the merits of each but it is for the commanding officer. This must be an exclusionary reason not a very weighty first-order reason because: 1. 2.1. We would disregard Y’s own conception of the situation if we were to say that he regards the order only as an overriding first order reason. He isn’t saying that the order is a conclusive reason for doing x, but rather that it is a reason not to act on the merits of the case. He doesn’t see the order as another reason for doing x (he wouldn’t have done it without the order), but rather he considered the order as a reason not to completely assess the pros and cons of the decision. 1. 2.2. Also, if Y obeyed the order and then subsequently ordered his subordinate to do x, and the subordinate disobeys, he would have conflicting feelings. He would think that the subordinate did the right thing, but also the wrong thing, by disobeying orders. As such, the order should be seen as an exclusionary reason.

Answer 6

1. where there is no doubt what ought, all things considered, to be done, and yet we believe that the defeated reason is not merely overridden, but represents a different assessment of what ought to be done. 1. 1. When we react to situations with ‘mixed’ reactions, they provide evidence that there are exclusionary reasons, and when we judge these mixed reactions as appropriate, we are indicating our belief in the validity of exclusionary reasons.

Answer 7

1. the scope of an exclusionary reason is the class of reasons it excludes. Each second-order reason has a strength and an intrinsic scope that can be affected by scope-affecting reasons. 1. 1. Eg. If Y rejects an order from a superior because it is an exclusionary reason, then it can be assumed that all their orders are equal in scope. But they may still differ between ranks of superiors, etc. We must conclude that the rank of the officer is not in itself an operative reason (the fact that A is a major isn’t an operative reason for anything), but rather auxiliary reasons.

Answer 8

1. There can be conflicts between second-order reasons: conflicts between a reason to act for a certain reason and an exclusionary reason to refrain from acting for it. These turn on the strength of the conflicting reasons and the presence of strength-affecting auxiliary reasons.

Answer 9

1. Two kinds of exclusionary reasons: 1) decision based on the agent’s temporary incapacity to perform a balanced judgement (X’s decision to reject the business offer) and 2) other exclusionary reasons (eg. authority based reasons). 1. 1. First type can be because of temptation, threat, intoxication… If this is the reason then it applies only if the merits of the case weren’t examined before the incapacity arose. These differ from all other types (eg. authority based reasons) because they depend on the circumstances of the agent at the time he decides what to do. 1. 2. Thus some people conclude that this is a first order reason, but this is wrong as nothing prevents someone from going through the balance of reasons, even if he doesn’t trust his own judgment.

Answer 10

1. The pre-emption thesis is that when one ought to act because of an authoritative directive, then one’s reasons are different than if he ought to act for some other reason: the authoritative directive isn’t just one additional reason for action, but rather a pre-emptive reason – these reasons have the ability to turn ‘oughts’ into duties. 1. 1. Objection: the thesis cannot justify pre-empting reasons that the authority was meant to reflect correctly but failed to reflect. This objection is based on a false premise and therefore fails, because directives that fail to reflect reasons are nevertheless binding and justifiably so because an authority is justified according to the justification thesis if it is more likely than its subjects to act correctly for the right reasons. If every directive that is mistaken (in failing to reflect reason correctly) it is liable to being challenged as mistaken, then the advantage of accepting authority as more reliable and successful a guide to right reason disappears. 1. 2. Objection 2: if authoritative directives can be overridden/disregarded if they deviate much from the reasons that they are meant to reflect (the justification thesis claims this) then this imposes a limit on authoritative directives that defeats the pre-emption thesis in requiring everyone in every case to consider the merits of the case before he can decide to accept an authoritative instruction. This objection also fails, Raz says, because a clear mistake is different from a great mistake – a clear mistake can be small (adding together a chain of numbers of which one is a decimal, to get a whole number) and a great mistake can be subtle. Establishing that something is clearly wrong doesn’t require going through the underlying reasoning, so the objection is not to the pre-emption thesis itself. 2. In the case of the arbitrator, his decision is an exclusionary reason because it replaces the balance of reasons of the parties with that of the arbitrator. The parties’ balance no longer matters, and if the arbitrator decided one way for the same reasons, then these cannot later be relied on. The same holds for why judges’ decisions become res judicata and the reasoning employed to reach one conclusion can’t then be relied on to reach the opposite conclusion. * Have read all the set sections, but there’s a section on p63 about objections to the thesis and rejections of these objections – might be interesting.

Answer 11

1. Three theses regarding the relationship between law and morality have been defended in recent years: 1) sources thesis (all law is source-based), 2) incorporation thesis (all law is source-based or entailed by source-based law), 3) coherence thesis (law consists of source-based law together with the morally soundest justification of source-based law) 1. 1. Source-based = law’s existence and content can be identified by reference to social facts alone. All three theses give a special role in the identification of law, but differ as to whether there can, or must, be anything more.

Answer 12

1. Sources thesis should be defended against the others because of the nature of authority. Authority can be divided into 1) legitimate and 2) de facto authority (people treat you as authoritative but you lack the attributes of authority). Legitimate authority is practical, or theoretical, or both. 1. 1. Differences between practical and theoretical authorities can be understood as the distinction between reasons for belief and reasons for action, but this doesn’t distinguish between authorities and other people’s requests, while authorities’ special “peremptory status” distinguishes them from other directives 1. 1.1. In arbitration, the arbitrator’s decision is a reason for action for the disputants – they ought to do as he says because he says so (it’s not one of the many reasons that relate to the case, and it’s meant to replace the other reasons on which the case depends) 1. 1.1.1. But an arbitrator’s decision isn’t an absolute reason in that it has to be obeyed come what may (it can be challenged/justifiably disobeyed in certain circumstances – eg. arbitrator was bribed/drunk/new evidence later came to light…) 1. 1.1.2. Two features of arbitration: dependence and pre-emptiveness: because the arbiter is meant to decide on the basis of certain reasons, the disputants are excluded from later relying on them. 1. 1.2. But is the arbitrator’s case unique or common to all authority? They decide each given case, while Parliament is meant to sometimes create new reasons for doing certain things, not necessarily displace other reasons.

Answer 13

1. 1) dependence thesis (all authoritative directives should be based on reasons that apply to the subjects and bear on circumstances covered by the directives), 2) normal justification thesis (normal/primary way to establish X has authority over Y is that Y is likely better to comply with reasons that apply to him because he considers the directives of X as binding, than if he tries to follow the reasons that apply to him directly), 3) pre-emption thesis (the fact that an authority requires performance of an action is a reason for its performance not to be added to all other relevant reasons, but that should replace some of them) 1. 1. Dependence and normal justification theses are “service conceptions of authority” in that they regard authority as mediating between people and the right reasons that apply to them 1. 2. Thus surrender to authorities reflects their limited role – they don’t introduce new and independent considerations, but are meant to reflect dependent reasons in situations where they are better placed to do so.

Answer 14

1. The law’s claim to authority is shown by the fact that legal institutions are officially designated as authorities, regard themselves as having the right to impose obligations on subjects, claims that their subjects owe them allegiance, that their subjects ought to obey the law etc. (it doesn’t rest on the fact that it is morally legitimate) 1. 1. Official doctrine is that even a bad law should be obeyed as long as it is in force; lawful action can be taken to try and amend/repeal it 1. 2. But is something an authority merely because it claims to be? Raz thinks that only those who can have authority can sincerely claim to have it, and so the law must be capable of having authority.

Answer 15

1. Reasons for not having authority: 1) moral or normative conditions for someone’s directives being authoritative are absent (normative reasons are unavailable/insufficient to justify countervailing reasons), 2) someone lacks the non-moral/non-normative prerequisites of authority (eg. he cannot communicate with others because he is a tree)

Answer 16

1. it is (or is presented as) someone’s view of how its subjects ought to behave, and if 2) it is possible to identify the directive as being issued by the alleged authority without relying on reasons on which directive purports to adjudicate. 1.1. First requirement refers to the mediating role of authority: it acts on reasons that apply to us anyway, because we will more closely conform to these reasons if we follow the directive than if we try to act on these reasons directly Second requirement refers to its identification: suppose an arbitrator decides a case based on fairness, there’s only one fair answer and he picks it out – he can’t simply tell the parties that he arrived at the only fair answer (though it is a uniquely identifying factor), because it is unhelpful. So it must be capable of identification in isolation of the reasons on which it is based

Answer 17

1. Legislation, judicial precedent and customs meet the non-moral conditions implied in the service conception of authority, in that they meet the two conditions of being authoritatively binding. But these are not the usual reasons cited for the centrality of source-based law – the coherence theory, advanced by Dworkin, offers an alternate account. It first identifies the legal sources valid in a legal system, and then assuming that all laws ever made by these sources were made by one person at one time conforming with one political morality, then that morality is the law (Master Question). 1. 1. There may be conflicts within a legal system that stops it from conforming with a political morality, but Dworkin allows a political morality with which most laws conform. 1. 2. The idea of the master question means that Dworkin thinks that all of judges’ decisions are based on considerations of political morality – Raz agrees with this. 1. 3. Dworkin’s second idea is that judges owe a duty of professional responsibility, which requires them to respect and extend the political morality of their country (where laws conflict, judges decide based on the standards of political morality that inform the source-based law) – Raz disagrees: 1. 3.1. This duty of professional responsibility is far-reaching and doesn’t depend on the content of the law – judges in South Africa would need to use their power to extend apartheid)

Answer 18

1. Dworkin’s conception of the law, and his two ideas (1) judges’ decisions are based on considerations of political morality and 2) judges owe a duty of professional responsibility) conflict with the two necessary features of law argued for above in the service conception: 1. 1. According to Dworkin there can be laws that don’t express anyone’s judgment on what subjects ought to do – the best justification for laws may never have been thought of or endorsed by anyone 1. 2. According to Dworkin, identification of much of the law depends on considerations that are the same considerations that the law is supposed to settle: establishing what the law is involves judgment on what it ought to be. If there’s no law on a subject, and the court decides based on policy, then many would say that the court created law, but Dworkin would say that there was already law consisting of the best justification of the source-based law (in deciding what the law is, the court has to go into the issue of what a fair law would be and the least change in it that will make source-based law conform to it – his second Master Question) 1. 2.1. Here Dworkin and Raz disagree: do judges make law or do they merely follow pre-existing law? If the latter, then identification of a law depends on settling what a morally just law would be, on the very considerations which a law is supposed to have authoritatively settled.

Answer 19

1. The problem with the coherence thesis is that it fails to see the special connection between source-based law and the law’s claim to authority and is inconsistent with the latter – the incorporation thesis is better in this respect. 1. 1. Many defenders of incorporation thesis don’t use this argument in its defence but rather that it’s necessary to defend a thesis that separates law and morals (separability thesis). But Raz thinks that the separability thesis is untenable, in that every legal system has some moral merit and that all major traditions in Western political thought believes in such a connection between morality and law. Thus the incorporation thesis is better than the separability thesis because it considers the nature of authority.

Answer 20

1. However, the incorporation thesis ought to be rejected because its claim, that all that is derivable from the law with the help of other true premises is law, is false if the law is to necessarily claim authority. This is because say, A proves that hypothesis B is true iff C is true, and D later on proves that C is true – A wouldn’t have proved that B is true, and anyone telling you of A’s discovery wouldn’t be advising you to believe B. As such, the mediating role of authority means that a law can only have binding force for views that it holds or presents itself as holding. These other true premises cannot be law, because they are not authoritative. 1. 1. Raz accepts that, for example, judges who work out what is required by the due process provisions of the American constitution are engaged in interpreting the constitution, but does not accept that this leads to the conclusion that judges are only applying the law as it is.

Answer 21

1. Therefore, not all moral consequences of a legal rule are part of the law – but some might be attributable to the author of the legal rule as representing his intention and thus can be part of the law. Nevertheless, the sources thesis should be preferred because it leaves open the possibility of something in between the sources and incorporation theses

Answer 22

Some people object to the presupposition of the sources thesis that whenever one is faced with valid legislation one can also find an intention behind it. Do we not know that sometimes Members of Parliament vote knowing nothing and intending only to get home as early as possible? - The view that denies the imporance of the law-maker’s intention to our understanding of the law would say that texts are legally binding because endorsed by the proper constitutional procedure, and they are to be interpreted not by reference to the author’s intentions but by reference to existing conventions of interpretation which need not refer to anyone’s intention. But then why does the endorsement of a certain text in accord with those procedures endow it with a special status? - The answer is that the procedure is deisgned to allow those in authority to express a view on how people should behave, in a way which will make it binding, rather than some arbitrarily chosen ritual. Law-makers need not intend anything other than that the bill should become law with the meaning given it by the conventions of interpretation of their country. To deny them that intention is to deny that they know what they are doing when they make law. - This argument relies on the importance of the centrality of legislative bodies; it is an evaluative judgment but not a judgment of the moral merit of anything. Also, its application depends on the fact that the perception of importance of the feature focused upon is shared in our society, that it is shared, among others, by the law-makers themselves. The concept of law is part of our culture and of our cultural traditions. But the culture and tradition provide it with neither sharply defined contours nor a clearly identifiable focus. Various, sometimes conflicting, ideas are displayed in them. It falls to legal theory to pick on those which are central and significant to the way the concept plays its role in people’s understanding of society, to elaborate and explain them. To do so it does engage in evaluative judgment, for such judgment is inescapable in trying to sort out what is central and significant in the common understanding of the concept of law. It was my claim in this chapter that one such feature is the law’s claim to authority and the mediating role it carries with it. The significance of this feature is both in its distinctive character as a method of social organization and in its distinctive moral aspect, which brings special considerations to bear on the determination of a correct moral attitude to authoritative institutions. For unlike understandings of “mass” or “electron”, people want to understand law in order to understand themselves. This is a point missed both by those who regard the law as a gunman situation writ large and by those who, in pointing to the close connection between law and morality, assume a linkage inconsistent with it.

Answer 23

Addresses criticisms of the service conception, most commonly, the argument that legitimate authority, at any rate legitimate political authority, presupposes a special connection between rulers and ruled, a special bond that is ignored by the service conception

Answer 24

The service conception is driven by two problems, one theoretical and one moral. - Theoretical: how to understand the standing of an authoritative directive. Similar problem to that presented by promises and other voluntary undertakings: how can actions communicating intentions create reasons or obligations, just because they communicate these intentions? ♣ Answer: there is nothing special in such a case (many actions incur obligations: giving birth to a child, infringing other people’s rights). But a promise is binding only if the promised action is of a class regarding which there are sufficient reasons to hold the promisor bound by his promise. In the same way, a person can have authority over another only if there are sufficient reasons for the latter to be subject to duties at the say-so of the former. - Moral: how can it ever be that one has a duty to subject one's will and judgment to those of another? ♣ Answer: two conditions must be met: • The subject would better conform to reasons that apply to him anyway if he intends to be guided by the authority's directives than if he does not (= the normal justification thesis). • With respect to these matters, it is better to conform to reason than to decide for oneself, unaided by authority (the independence condition).

Answer 25

- The whole point of the moral problem is that acting by oneself is more important than anything. What advance is there in stating that authority is legitimate only where acting by oneself is less important than conforming to reason? - It suggests that one can compare the importance of conforming to reason with the importance of deciding for oneself, independently of authority. But the two are incommensurable concerns. ♣ Raz thinks that this is not so: we’re not fully ourselves if too many of our decisions are not taken by us, but on the other hand, sometimes it is our (moral) duty to accept authority, ex. at the scene of an accident, we are required to recognize someone as being in charge of the rescue for coordination pruposes.

Answer 26

- The value of our rational capacity, i.e., our capacity to form a view of our situation in the world and to act in light of it, derives from the fact that there are reasons that we should satisfy, and that this capacity enables us to do so. It is not, however, our only way of conforming to reasons: ex. we can be guided by emotions and judgment. Authority is simply one such device: by following authority (like following advice or a technical device), one’s ultimate self-reliance is preserved for it’s one’s own judgment which directs one to recognize the authority of another (like keeping promises and following advice). - The preemption thesis explains that authorities are able to function because their decrees are the product of decisions by agents set on determining what we ought to do, and direct us to do so, and constitute legitimate authorities when doing so in fact achieves the result of conforming better to reason. So in following authority, we follow reason and thus exercise our judgment.

Answer 27

o When matters are regulated by one authority, while the others remain silent, we should follow those who issue directives on the matter. o When several authorities pronounce on the same matter and their directives conflict, we must decide, to the best of our ability, which is more reliable as a guide.

Answer 28

o The answer is that according to the preemption thesis, a binding authoritative directive is not only a reason, but also an exclusionary reason, i.e., a reason for not following reasons that conflict with the rule. Directives preempt by excluding reliance on (some) conflicting reasons, not reasons for behaving in the way the directive requires.

Answer 29

o Authoritative directives are not always conclusive reasons so can be defeated by conflicting reasons or directives that they do not exclude. Legal rules are merely prima facie rules for the conduct they describe. o When legal rules conflict, how is the outcome to be decided, when no formal device is available or sufficient? ♣ Refer to the background considerations? ♣ Consider the relative importance of the rules (ex. one is a trivial one (ex. minor tax regulations) whereas the other concerns fundamental rights)? But the preemption thesis implies rejecting both because it excludes reference to background considerations and thus precludes a proper assessment of the rule’s importance. But authority can make law and indicate its importance in its eyes. To the extent that judicial practice instructs courts to resort to these devices, they are recognized as legally binding and have authoritative standing.

Answer 30

o A major, if not the main, factor in establishing the legitimacy of political authorities is their ability to secure coordination. Some writers, commenting on this fact, have gone further and argued: ♣ (a) that the sole (or only major) function of political authorities is to coordinate the conduct of those subject to them for the achievement of some goods; ♣ (b) that coordination being secured via a Lewis-type convention does not require an authority with a right to rule: all it requires is the ability to make salient certain coordinative outcomes; and ♣ (c) that it follows that political authorities, as such, do not enjoy a right to rule. o Such views overlook quite a number of facts central to the functioning of legitimate political authorities. ♣ First, that they can satisfy the normal justification thesis not only by securing coordination, but also by having more reliable judgment regarding the best options, given the circumstances, and that in their normal activities, expertise and coordination are inextricably mixed. ♣ Second, that the coordination that political authorities should secure is rarely the sort of coordination constituting the solution to a Lewis-type coordination problem. Coordinating the actions of many agents means nothing more than making, or enabling them to act in such a way that they all play diverse roles in some possible plan of action that is likely to yield some sought-after results. ♣ Third, one reason for this is that the need for coordination and the means for achieving it are not necessarily generally known and are often a matter of controversy. ♣ Fourth, that since the goals people actually have need not be desirable, coordination aimed at securing these goals need not be desirable either. The coordinated schemes of action that political authorities should pursue are those to which people should be committed, or those needed to secure goals that people should have, which are not always the goals which they do have. ♣ Fifth, that typically, when the political authority is otherwise legitimate and reasonably successful, it will also be rightly taken, at least in some areas, to be an authority on the second order question of when is coordination in place.

Answer 31

- To evaluate this point we should contrast theoretical and practical authority. - Theoretical authorities cannot order us to believe one thing or another, and cannot impose duties to believe--the nature of belief and belief formation excludes such duties. They cannot possess or lack legitimacy so don’t require anything more than the two conditions of the service conception. Practical authorities, on the other hand, impose duties on people. They have authority over people. To be authorities, so the argument goes, they need more than the capacity to function well. They need to be made authorities through something like an appointment, as such, the service conception is necessary but not sufficient. - For our purposes it is enough that such a right must exist for a government to meet the two conditions of legitimacy, and that it must be effectively used.

Answer 32

- The problem is of propriation. The aspect of the moral problem we are confronting is not the limits to one's freedom that the law or other authoritative directives pose. It is that the limits are imposed deliberately, and that they are imposed by another. Consent explanations appeal because they seek to make the limits the agent's own. They are chimerical because they fail to do that. They remain imposed limits, deliberately imposed by another. My historical consent cannot have the significance placed on it; it cannot make the limits my own. - What we need, you may think, is another way of explaining appropriation, of explaining how the commands of authority can lose the character of subjection of one person to the will of another. That is where the search for collective identities begins.

Answer 33

- The flaw in consent accounts is that they fly in the face of reality. They claim that what is not mine is mine, in spite of the patent fact that it is binding on me regardless of my will, and often against my will. - The best that can be said for them is that they make each of us slaves of our own decisions when young. But there is another way. A rule or directive may be neither imposed on me by another nor made by me. It could be made by “us,” by a collectivity of which I am a part. - Is the moral problem solved when the authority’s action is ours? o Not everyone identifies with their country or regime. o It may be said that it is a requirement of the legitimacy of the state, and of its authorities, that it would be reasonable of its citizens to identify with it. But the service conception provides the conditions for the fulfillment of this requirement. So that thought offers neither a criticism of nor a supplementation to the service conception account of authority. - Must legitimate authorities be also acting for collectivities and does it matter? o It is open to some to maintain that we should revise our beliefs about the scope of authority. My sense is that this would be a mistake. The problem of appropriation, to which identification is supposed to be the answer, is a misguided question. It is not part of our normal understanding of authority that its actions are the actions of its subjects. o On the contrary, the normal understanding is that authority involves a hierarchical relationship, that it involves an imposition on the subject. The service conception explains how and when such power can be justified, at least in the sense of being for the good. o The quest for a solution to the appropriation problem is perhaps best seen as an aspirational ideal: it would be good, desirable, to have the bulk of those subject to a political authority identify with the regime for which it acts. But identification should not be thought of as a condition of legitimacy.

Answer 34

1. A policeman who says ‘stop or I’ll shoot’ is different from a gunman who says ‘your money or your life’, because the policeman claims the right to demand that the subject stop, and not simply the power 1.1. Thus Austin’s gunman depicts simply law’s power, not what distinguishes it from ‘mere thuggery’ 1.2. Legal officials may not have the right to issue orders, but at least they claim to have the right, a right different from the power of the gunman 2. Philosophers mostly agree that practical authority consists in a right to rule (subjects are obligated to obey), but disagree on whether the law is authoritative in this sense 2.1. Most agree that unjust laws don’t carry an obligation to obey, but the paradox of the just law holds that we might not be obligated even in just states 3. Raz’s ‘paradox of the just law’ posits that the more just and valuable the law is, the more reason one has to conform to it and the less reason to obey it – the considerations of justice that establish the rule should be the reason it is obeyed, not the fact that it is required by the law (eg. The law prohibiting murder) 3.1.1. NOTE (MI): But if this were true, then we wouldn’t need a law prohibiting murder, since people will refrain from it regardless. The utility of the law prohibiting murder either means that it is authoritative, in that people do obey it, or it means that laws don’t serve a normative function, but only a punitive one (preventative/punitive). The correct question to ask is not whether people don’t commit murder because of the moral reasons or because of the law; the correct question to ask is whether, had the moral reasons been contrary to the law – do you still obey the law? If the law ordered you to kill, rather than ordering you not to – do you still obey it? This is the right question because laws and morals often collide – legislators need morality to back up their laws and to garner acceptance. If laws are, as Hart says, social constructs built up from patterns in behaviour that carry enormous social pressure, then the reasons for obedience of these social pressures were the original reasons for obeying the law. The law tells us which moral reasons are more important than others, by imposing more grievous penalties for them. Perhaps it’s when we choose to break the law (and the existence of legal defences) that really undermines the authority of the law. For example, if a child jumps in front of my car, and the only way for me to avoid him is to drive onto my neighbour’s lawns and damage her roses, I do that even though I know that it is a crime, though it would be an accident and I would probably go guilt free if I hit the child. I choose to commit a crime because it is the lesser evil – for moral reasons completely independent of the law. Perhaps morality undermines law’s authority – there is no general duty to rescue. 3.2. Thus this undermines the authority of the law 3.3. It is true that not all just laws are paradoxical – there are some laws that are just but that don’t carry any independent reason to conform (eg. A law prohibiting parking on streets in certain hours so that the streets can be cleaned – but even here the law is a little bit paradoxical because people obey it in order to aid the scheme of cleaning streets not only because the law prohibits it) 4. Paradox only succeeds if obedience doesn’t include acting on the reasons that justify the law – this requires working out what obedience means. Don Regan (stating the standard view) says that one can’t be said to obey the law unless he does what he is told because he has been told to do it. 4.1. Raz: one conforms to the law if he does what it requires; one complies with the law if he conforms and takes the law as his reason for action. 5. So we can find a way out of the paradox by rejecting the standard view and equating conformity with compliance – so that obeying the law against murder is simply not murdering. But we must have other stronger reasons for defining obedience down than that it avoids a paradox: 5.1. If you act as the law requires, whatever the reason, the law doesn’t care about the reasons why you so acted. 5.1.1. NOTE (MI): But should the law care? It is murder to prefer your own life to another’s, or to choose one life over another. Say, you are aware of this law, and (as was the subject of a recent film) you are in an earthquake and your two children are stuck under the two ends of a single cement boulder, so that saving one will inevitably kill the other. If you don’t act in time, then both will probably die. Wouldn’t the law care, or shouldn’t the law care, if you complied with the law simply because there was a law, and not because of some other reason? Might you be guilty of some future crime if you had, while trying to obey the law against trespass or criminal damage, elected to kill the child instead? Isn’t this as horrific as the holocaust? When do you have an obligation not to obey the law? Perhaps compliance with the law is the very sign that it is unjust and should not be obeyed 5.2. But some laws do require the law to be the reason for your action – eg. Military orders. But even in those laws, if a sergeant, for example, has the right to compliance rather than mere conformity, then his orders are likely to affect the subject more than intended (in that it also makes the reason binding) as the sergeant s unlikely to care about the reasons himself so long as the subject obeys. 6. Another way out of the paradox is redefining authority – instead of saying that authority is the right to obedience, and obedience entails compliance, we can simply say that authority is the entitlement to conformity. This is better because the standard view doesn’t accurately portray what authorities actually claim. 6.1. Perhaps the reason the standard view is so widely accepted is because of the ‘because clause’ (an arbitrator’s decision is a reason for action – the parties ought to do as he says because he says so (Raz)). 6.1.1. The clause is ambiguous – ‘B is obligated not to murder because the law prohibits it’ can be interpreted in two ways: 1) it can either report merely the ground of B not murdering (the law) or 2) the content of the obligation (B must not murder and the reason must be that the law prohibits it). 6.1.2. Many philosophers adopt the second perspective (erroneously) perhaps because authorities demand respect (and thus deference) on top of conformity. However this is incorrect because only good authorities are entitled to respect, and thus deference is not the right way to show this respect.

Answer 35

1. Raz’s normal justification thesis states that one person has authority over another if following his orders would help the subject conform better to reason’s requirements than if the subject decided what to do on his own. 1. 1. Hershovitz is doubtful of this thesis – surely the law prohibiting murder doesn’t help people conform to reason better than they can on their own (the punishment for murder does encourage people not to commit murder, but it is the prohibition that must do the work not the punishment – the two must be severable) 1. 2. Raz also says that authority consists of a normative power to change a subject’s protected reasons, but Hershovitz says that this power is derivative of the right to rule not constructive of it (you can also have normative power without authority – such as a financial planner advising a married couple on saving for retirement)

Answer 36

1. Hershovitz thinks that an authority’s right to rule is simply its claim on the subject’s obedience, but either way the important bit is that the obligation is owed to the authority. This helps us understand why the law against murder is legitimate – the moral obligations are owed to victims, family, friends etc. but the moral obligation created by the law is owed to the law. 1. 1. This is crucial because when you owe someone an obligation you are accountable to them – if you don’t owe the law an obligation, then it doesn’t have moral standing to prosecute you (there are lots of moral transgressions that the law doesn’t punish). 2. Hershovitz thinks that authority can be justified as long as 1) a morally permissible social practice assigns the authority a right to rule and the subject an obligation to obey, and either 2) the parties have chosen to participate or 3) participation is morally mandatory, and actual on the part of the authority (though not necessarily the subject).

Answer 37

1. Raz’s defence of exclusive legal positivism (the content of the law must be determined exclusively by social and not moral facts) starts from the premise that law necessarily claims legitimate authority (though it might not have it), and that it must be possible to identify the content of the law without evaluating the reasons that the law helps subjects conform with (an order that leaves one to figure things out for himself is not particularly helptful) 1. 1. Hershovitz disagrees with Raz’s example of the arbitrator, because the arbitrator doesn’t have authority in that he can’t claim redress if the parties don’t listen to him (the parties owe an obligation to each other to obey him). Raz would disagree because for him authority is a normative power to obligate, while Hershovitz says that it’s a claim on obedience. 1. 2. The argument could still work if the arbitrator were replaced by a judge, but Raz’s choice of examples is telling because he conceptualizes the role of authority as providing a service (to help conform to reason). Then the arbitrator becomes the paradigm of authority, but we have seen that helping people conform to reason isn’t sufficient to establish authority, and it’s also not necessary for a law to be authoritative. 1. 3. If Raz is right, then much of the criminal law is redundant because it tells people what they already know they shouldn’t do, and sometimes are even less helpful (eg. Laws to act reasonably) Conclusion: “often, the point of the law is not to tell people what they must do; rather, it is to render them accountable to the law for failing to do it.” NOTE (MI): This comes dangerously close to the view that the law is nothing more than a guide for authorities to determine when to punish?

Answer 38

• Rights and duties that jurisprudence studies are no more than prophesies gleaned from caselaw (past judicial experience that predicts what future courts will do/consider/decide) • A legal duty is no more than a prediction that if someone doesn’t do something he will be made to suffer; it should be distinguished from moral duties which exist independently of the sanctions imposed • There must be laws that contravene the moral views of the most enlightened; it would be wrong to equate one’s moral rights with his legal rights – eg in law of contract, legal/moral malice • Law, unlike Maths, cannot be said to derive from a single coherent set of axioms and rules; dissenting judgments shouldn’t be seen simply as one side having done the sums wrong (the logical form, without consideration for social factors, is fallacious) • When we want to know why a rule of law exists, we look inevitably to tradition, because the life of law is like the life of plants, where each generation looks for improvement/addition; the law is a product of gradual historical improvement, not reworking of the whole with the particular ends in mind o Eg. the crime of larceny traditionally depended on trespass (aim was fear of violence) but modern law widened the criterion so that possession by a trick or device satisfies the crime. It would have been better/truer to the present object of the law if the requirement was abandoned altogether • History’s role is perhaps too great: in contract the distinctions between debt, covenant, assumpsit are only historical; consideration is a mere form – why should historical distinction be allowed to affect the rights and assumptions of business men?

Answer 39

• Hart criticizes a concept of law based on commands and habits (most clearly pronounced by Austin) • In ordinary language we have imperative language – there are requests, pleas, and warnings. There is the order of a gunman (give me money or I shoot you). We perhaps shouldn’t use order or command because they are too associated with the military and thus connote a degree of authority. • But law is not like the orders of a gunman because: o Legal controls are mostly general, in that rather than having officials parade the streets looking for improper conduct which they deem illegal, general forms of directions that aren’t addressed to individuals but to everyone are used instead o Laws have ‘standing’ or persistent characteristic – they're meant to bound future classes of the same people time and time again. Gunmen, on the other hand, are not superior to the bank clerk except in that very moment where he’s able to make that threat – there is no continual belief in the consequences of disobedience (the order is not kept ‘alive’) o Laws must be followed by most people most of the time, whereas the mere temporary ascendency of one person over another as in the case of the gunman is the antithesis of law • Thus a closer version to the law is “general orders backed by threats given by one generally obeyed”, where it is “generally believed that these threats are likely to be implemented in the event of disobedience” and the body giving the law must be “internally supreme and externally independent”.

Answer 40

- Three main groups: o Content of laws: there are groups of laws that don’t conform to the order backed by threats model (eg. ways to make valid contracts/wills/marriages – those that provide facilities for achieving certain ends) ♣ But laws that govern courts’ jurisdiction seem different – if I didn’t have two signatories to my will, it is void. But if a court surpasses its jurisdiction, its decision stands until (and unless) it is quashed by a higher court ♣ Statutes conferring legislative power on subordinate legislators cannot be assimilated with a general order • However the desire for uniformity is strong, so we should consider arguments that these differences in variety of laws is superficial and that the ultimat notion of orders backed by threats is adequate: o Nullity as a sanction – objections: ♣ Nullity may not be an ‘evil’ to the person who failed to satisfy the conditions required for validity ♣ Criminal sanctions can identify an undesirable social conduct and sanction intended to prohibit it – this is not true of power-conferring laws, which seek to encourage conduct if anything ♣ With criminal law it might be logically desirable or possible for these rules to exist without punishment (we can distinguish the rule prohibiting behavior and the provision for penalties) whereas the same cannot be said of power-conferring laws o Power-conferring rules as fragments of laws – laws do not prohibit conduct, they merely order officials to apply certain sanctions in certain circumstances (more extreme form); laws intended to govern the ordinary citizens are seen as orders backed by threats but power-conferring rules are seen as “if… then” constructions (if a will has been signed then the official shall recognize it) o Mode of origin of laws ♣ Custom conflicts with the gunman view • But whether or not custom is law is subject to debate • Even if it is it’s a subordinate source of law in that it can be displaced by statute and whether courts recognize them in the first place is subject to discretion (eg. by applying ‘reasonableness’ test) • Objections: o Nothing can be law until someone orders it to be so (custom is not law until courts apply it) o Status of custom as law is due to the sovereign’s tacit order o Range of application of laws ♣ The top-down view of authorities making laws binding its subjects can only be reconciled with political realities if an authority in his official capacity is separated from his private capacity (an official in official capacity creates rules that bind everyone including himself in his private capacity ♣ Perhaps the better view is that legislation is the introduction of general standards of behavior to be followed by society generally; thus, the legislator is not like giving orders (outside the reach of what he does) but like making a promise, he must fall within the ambit of the promise (rule) he makes

Answer 41

- In criticism of theory of orders backed by threats it’s necessary to consider whether there is always a sovereign who makes laws and who this sovereign is Habit of obedience - Habit of obedience – say people over time acquire a habit of doing (inter alia) what the sovereign orders him to do o Then nobody needs to express a view on whether his or others’ obedience is right/proper/legitimately demanded - Differences between habit and law: o Habit is enough for behavior to converge in fact but for a law deviation must be considered wrong o For a law deviation from the standard should be considered a good reason for criticism o Laws have an internal aspect in that people strive to maintain it and view it as a general standard to be followed by the group of people as a whole The persistence of law - Laws clearly cannot be regarded as valid for the legislator’s lifetime only, but how do we recognize continued recognition of past laws? o Past statutes owe their present legal status to the acquiescence of the present legislature? This is surely wrong because courts when applying statutes don’t distinguish based on the acquiescence of present legislatures

Answer 42

• Discussion is premised on the assumption that governments want to stay in power, and to make the nations they govern prosperous/powerful/religious/eminent. To do so they use force, but this force can never be used no matter how beneficial except as licensed by rights and responsibilities flowing from past political decisions about when collective force is justified • Law of a community license coercion because they flow from past decisions of the right sort • Three conceptions that try to answer questions like why there needs to be a link and what sort of link? Is there a point to requiring licensing of coercion and what is it? o Conventionalism: the point of law’s constraint on coercion is predictability and procedural fairness; the link needs to be strong enough that the past decision states explicitly the rights and responsibilities in question, or that these be made explicit through other means accepted by the legal profession. No other link to history is needed. o Legal pragmatism: No link needed between decisions and the past; judges should do whatever they think best for community’s future rather than trying for consistency and valuing it for its own sake (rejects the concept of law as legal rights) o Law as integrity: accepts the concept of law as legal rights but considers the link as not just allowing procedural fairness/predictability but also equality among citizens which makes the community more genuine and improves the moral justification for exercising political power • Law and morality o “Popular morality” is not law because the law depends not on passive views but positive commitment because authorities have enacted these views into law, but a different conception of the law may make what counts as law depend on popular morality and the explicit content of executive decisions o Law is also not synonymous with justice because it again depends on the theory that you identify with – it is permissible to hold that when executive decisions are unclear then justice plays a role in interpretation, but the natural law/legal positivism debate may place a greater role on justice • Whether the Nazis had law can be a question of semantics – it is perfectly right to say that a wicked system doesn’t have laws despite having established principles of governance. But at the same time it’s possible to say that they did have law because they had the essential features of a legal system (this approach is positivist). But the answer to the question doesn’t matter, because we would know that when someone says whether Nazis had/didn’t have law they’re not making a value judgment of Nazis but rather adopting different conceptions of the meaning of ‘law’

Answer 43

• Central idea: coercion is relevant to the explanation of law if an adequate explanation of how it is that certain political facts constitute distinctively legal obligations must necessarily refer to some coercion-involving fact • Interpretations: o Threat of sanction is constituent in every law (as an aspect of nature of laws or as generalization about actual laws) o Nature of law claims authority to regulate coercion o Descriptive: legal obligations not honored are coercively enforced o Normative: government may exercise coercion only if it is allwed by law • What is coercion? o Coercer interferes with coercee’s alternatives as to lead him to take the course of action that the coercer wants him to take (by changing the balance of reasons) o This is often thought to be a necessary but insufficient element to constitute coercion • When is coercion permissible? o Coercion is thought to be in principle objectionable but subject to justification based on consideration of transition of subject’s situation before interference to results of interference o Maybe coercion is only objectionable if/because it makes the subject worse off (reduction of freedoms)? • Creating reasons o Raz theorizes that law is a collection of interrelated norms, and laws telling subjects to take a course of action are enacted as edicts from an authority where it makes practical judgment on the subjects’ behalf o But the authority’s decision cannot work as a norm unless it itself constitutes reason for the prescribed action (and people aren’t doing it for, say, keeping their reputation/advancing their business) o Thus a norm guides action only insofar as it makes action not responsible to circumstances other than the fact that the relevant edict exists o Analogy: when you promise to do sth, you create a new reason to do it, but to what extent is this the reason/norm? ♣ Impact view – promise creates new circumstances that are ultimately the source of the new reason ♣ Creation view – the fact of the promise is itself a reason (but there must be some background reason why people should be able to bind themselves (eg. that it is in one’s interest to be able to do so)) • Thus the impact view is that if a mob threatens a shopkeeper telling him they know where he lives, then the impact it makes on the shopkeeper is probably enough to make him pay them the sum demanded (you can create the reasons you want – you calculate them based on presumed effectiveness). But the creation view goes further – the promisor only has to say the word, and so it is the promisor’s choice and not any impact, that is the reason o Thus the creation view of the law is that given the background justification of the government’s power to affect citizens’ normative situation, it can create special reasons for norms simply by saying so (we act according to edicts because they exist, regardless of its impact on the balance of reasons) • Enforcing Edicts o The view that people don’t respond to the edict itself but the undesirable consequences of enforcement is inconsistent with the creation view, because the subject is not submitting his action to the judgment of the authority, but responds to the effect that the authority’s action has on his circumstances (this is not the right reason) o Also the view that people follow the law because the threat of sanction means that they can expect everyone else to follow the law and derive benefits therefrom thwarts the creation view because it’s not the edict per se that directs the subject’s action • Moral limits on coercion o Dworkin: morality of coercion determines the determinants of obligation o Objection: the correctness of a conception of law cannot turn on how well it fits within a controversial moral doctrine about the conditions under which coercion is permissible (nature of law shouldn’t depend on what it would be good for law to be) o History may be relevant: law must treat everyone equally, so if government uses force on historical occasions then it must use force again when a similar occasion arises (principled consistency) o Thus, the content of obligation is not limited by the normative views of actual officials (unlike what creation viewists argue) – if the law is the moral impact of institutional practice, then I might be obligated to take some action even though no official ever took the view that I ought to take it • Creation view is also limited in that authorities’ views are not ‘privileged’ let alone the sole reason for subjects to submit (to have an obligation is not to have reason to submit one’s action to anyone’s views) • Further, the law shouldn’t be viewed as a set of norms to guide official coercive action rather than private conduct; our obligations are the same regardless of enforcement (if we don’t get caught we still have an obligation not to speed) – politics doesn’t create obligations to obey authorities; it permits the enforcement of obligations that are identified as such by the principles that make political practice consistent in principle

Answer 44

Austin's sanction-based account of law and legal obligation was demolished in H.L.A. Hart's The Concept of Law, but this may not be so clear. - The alleged linguistic distinction between being obliged and having an obligation fail to provide as much support for the idea of a sanction-independent legal obligation - The soundness of Hart's claims depends on a contested view of the nature of legal theory It is true that in identifying the phenomenon of the internal point of view, Hart located and analyzed a dimension of law and of rules that Austin unfortunately and distortingly neglected. But it’s less clear that this dimension is as important to understanding the nature of law as Hart supposed, and less clear still that sanctions or coercion are as unimportant to the concept of law as Hart at times appeared to suggest

Answer 45

It is precisely the threat of sanction which to Austin gives the law its normative force, which provides the law with its authority, and which consequently creates the very idea of a legal obligation. Thus, legal obligation is reducible to a question of fact – that citizens and officials, when law exists, feel obliged by the threat of sanctions to do what the law expects. Austin’s theory recognizes the hierarchical nature of law – subjects obey the command of the sovereign because of the threat of sanction, but the sovereign's sovereignty was simply an empirical social or political fact. A legal system is a system where the subjects developed a habit of obedience to the commands of the sovereign, but the sovereign, essentially by definition, had developed a habit of obedience to no one at all.

Answer 46

Austin made many oversimplifications that Hart exposed: - Austin's alleged attention only to duty-imposing and not power-conferring rules sees law entirely on the model of the criminal law, slighting the power-creating and constitutive nature of law - By assuming a vertical hierarchical relationship between sovereign and subject, Austin, says Hart, neglected the very real modern possibility of a sovereign that not only created law, but was also bound by it. Law is far more than just the “gunman writ large”; to say that it is is to misconceive the very nature of law itself. With respect to these aspects of Austin's account, Hart seems substantially correct. But Hart went further: by focusing on sanctions and coercion, Hart argued, Austin imagined a world populated by people much like Holmes's mythical “bad man”, whereas many people are not like the bad man but is more like the “puzzled” man – the man of good faith who seeks to know what the law is and is predisposed to comply with it.

Answer 47

Hart's criticism of Austin seems problematic, in that the experience of modern complex legal systems may indeed be more coercive than the tone of Hart's criticism suggests. There exists the largely non-coercive and non-sanction-based realm of contract, wills, trusts, and much of private ordering, but just as these increased, so have the forms of state regulation. For Raz, for Green, and for many others, what stands in need of explanation is law's claim to authority. Law may not in fact have authority, and it certainly may not have legitimate authority, but it is essential to law that it claim authority—that it claim to be imposing obligations—and any theory of law that cannot explain law's claims will fail as a theory of law.

Answer 48

Raz, Green, Coleman, and others thus make clear what Hart did not: That the question of the importance of sanctions is parasitic on the answer to the question of what a theory of law is designed to accomplish, and thus what criteria distinguish a satisfactory account of law from an unsatisfactory one Raz and many others freely acknowledge that most of the legal systems we actually encounter are ones in which coercion looms large, but we can nevertheless imagine that there could be a legal system in which sanctions played a limited role, or perhaps even no role at all. And if this is so, the argument continues, then sanctions, even if centrally important to the actual functioning of actual legal systems, are not essential to the concept of law. This focus on conceivable rather than actual worlds is curious as many theorists claim their theories to be descriptive, but choosing to focus on the puzzled man rather than the “bad man” is nevertheless a choice in the controversy as to what jurisprudence seeks to accomplish: search for essential features of the concept of law, or identify the non-logically-necessary features of the standard, normal, and paradigm cases of law as we know it.

Answer 49

But we still need to attend to the question whether legal obligation can or should be defined in terms of sanctions, as Austin would have it. Hart relies heavily on the law’s language to distinguish being (coercively) obliged from having a (non-coercive) obligation, and argues that a sanction-based account is deficient just because it cannot explain this distinction. But is there a difference? The only non-question-begging answer is that the distinction is so deeply embedded in our language and our conceptual apparatus that it must rest on solid foundations. Perhaps there is such a distinction, and perhaps the gunman-writ-large explanation of law is unsound, but it is not clear that Hart's linguistic intuitions get him as far in reaching that conclusion as he supposes.

Answer 50

That the arguments from ordinary or legal language fail to defeat Austin's claim does not, of course, make his claim sound. At its most extreme, Austin's argument is that without a threat of sanction there is no obligation and no duty. We can indeed imagine an account of obligation without resorting to sanctions. But if doing so offers an empirically unsatisfying account of how law, contingently, is understood and experienced, then a sanction-free account of law, even if not of duty, is an account that does not fit the facts of law as we know it.

Answer 51

Here it is crucial to distinguish the enterprise of identifying the distinctive features of law from the enterprise of identifying the important features of law as we know it - If the goal of the philosophy of law is to offer a philosophically astute account of what makes law different from other prescriptive enterprises, then the dominant place of coercion and sanctions in law as it is experienced and as it exists in the world cannot so easily be ignored. - If the goal of philosophy of law is to identify the essential features of law, Hart's focus on the puzzled man has helped expose the goals of much of modern jurisprudence. But if the effect of those goals is to detract from recognizing the importance of a feature—coercion—that is present in all real legal systems and largely absent from many other normative systems, then it is hardly clear that Hart's efforts have been as unqualifiedly positive as many legal theorists now suppose.

Answer 52

If jurisprudence’s aspiration to be descriptive of the actual social reality that is law is genuine, then it may be time for jurisprudence to grapple with the fact that law exists in Zimbabwe and North Korea as well as in Canada and New Zealand, and that law's coercive dimension is not only how vast numbers of people see the law, but also why so many people, including officials, do what the law says. Thus, if the soundness of a theory of law that ignores law's coercive and sanction-dependent dimensions depends on a particular view about what legal theory is designed accomplish, then we can—and should—ask why that is a view of legal theory that is in fact desirable to have.

Answer 53

1. The model of law as the sovereign’s coercive orders fails to adequately depict the legal system: Hart at 77. 1. 1 Even criminal statutes, those that most resemble orders backed by threats, are different because they are equally binding on those who enact them. 1. 2 There are other varieties of law (public/private power-conferring laws) that cannot be construed reasonably as orders backed by threats. 1. 3 There are laws that differ in mode of origin. 1. 4 Account of a habitually obeyed sovereign necessarily exempt from all legal limitation doesn’t take account of the continuity of laws or the identification of legislature with the electorate

Answer 54

1. 1 Tacit order: only depicts simple scenarios (eg. general who deliberately refrains from interfering with orders of subordinates) and fails to take account of the complex nature of legal system 1. 2 Power-conferring laws as fragments of rules: departs too radically from ordinary conceptions. 1. 3 All rules are directed only to officials: no more consistent with our ordinary thinking than claiming that all rules of a sport are directed only at umpires. 1. 4 Separating legislature in its official capacity and private capacity: supplements the theory with something it doesn’t contain – a rule defining what must be done to legislate (only with this rule can legislature have an official capacity)

Answer 55

1. This failure is attributable to the fact that the theory doesn’t include and cannot yield the idea of a rule, without which we cannot understand even the most elementary of laws.

Answer 56

1. 1 Primary rules are those that require people to do/abstain from certain actions, whether they wish to or not. 1. 2 Secondary rules are those parasitic upon primary rules, in that they provide that people who do certain things may, by so doing, introduce new rules of the primary type.

Answer 57

1. 1 There is a difference between being obliged to do something and having an obligation: 1. 1.1 If we take the gunman situation, we can say that if person hands over the money, he was obliged to do so, but it’s implausible to say that he ‘had an obligation’ or ‘duty’ to hand it over. Being obliged simply relates to the motives and beliefs that some harm would result if you didn’t do as asked. It is not enough to found an ‘obligation’. 1. 1.2 We wouldn’t say that B was obliged to hand over the money if the harm threatened was trivial in comparison with the worth of the money, or if there was no reasonable probability that A would implement the harm threatened. Thus, the psychological component of being ‘obliged’ is not necessary for obligation; B’s beliefs, fears and motives are irrelevant to whether he had an obligation.

Answer 58

1. 1.1 It fails to take account of the fact that transgressions do not merely predict sanctions, but also justify them. 1. 1.2 Likelihood of punishment is not a precondition: I still have an obligation to do X even if I bribed the police/have no chance of getting caught if I don’t. 1. 1.2.1 However, it is true that in normal legal systems, likelihood of punishment and illegality have a high correlation. There’s no point in talking about obligations without predictability of punishment, so such a statement can be justified on the presupposition of a normal working legal system (like the in/out rule in cricket presupposes that umpires would judge accurately, though this doesn’t always happen in the individual case)

Answer 59

1. 1 The seriousness of social pressure behind rules determines whether they are thought to give rise to obligations. 1. 1.1 There are many social rules (‘take your hat off’, don’t say ‘you was’) that would be absurd to conceive of as obligations. Many social rules are conceived of as imposing obligations when the social pressure and general demand for conformity are great, and when pressure is physical but administered by the community rather than officials, we tend to conceptualize them as a primitive/rudimentary form of law. 1. 2 The rules supported by this serious pressure are thought important because they are believed to be necessary to the maintenance of social life/some important feature of it. 1. 3 Conduct required by these rules may, while benefiting others, conflict with what the person who owes the duty wishes to do (duty/interest conflicts).

Answer 60

1. 1 The external/internal view difference (external=observer who doesn’t accept the rules; internal=member of group that accepts and uses the rules to guide conduct) can help understand this. 1. 1.1 External can take the form of ‘extreme external view’, where the observer observes without commenting on the reasons the members of the group obey the rules; the view of these people would merely capture the predictability of conduct, such as the increased likelihood of people stopping when the traffic light is red. It doesn’t give any more guidance, and misses out a whole dimension of law. 1. 1.2 There’s no need for the external viewer to adopt expressions like “I have an obligation”, and merely expressing everything in terms of probability of harm will suffice; as such, there is a tension between external and internal viewers (who subscribe by rules because they agree with them). 1. 2 As such, the role of legal theorists is to not take any point of view out of context; the strongest criticism of the predictive theory, thus, is that it fails to take account of the internal aspect of rules.

Answer 61

1.1 There must be rules that forbid the free use of violence, and the internal observers must outnumber the external observers, so that a population of people of roughly equal strength would endure. 1.2 Only a small community of closely-knit individuals can live successfully under such a regime, because these rules won’t form a system but rather resemble our rules of etiquette, and there would be no procedure to settle doubt regarding what the rules are/the scope of the rules. 1.3 The rules would be static – the only mode of change is evolution; there is no means of deliberately adapting rules to changing circumstances. Social pressure by which the rules are maintained is inefficacious – without an agency specifically empowered to resolve disputes as to whether a rule has been breached, the disputes will always continue.

Answer 62

1. 1 Uncertainty of primary rules is remedied by a rule of recognition, which, even in its primitive forms consisting of recognition of authoritative text(s), it brings about the idea of a legal system in that rules are not just discrete unconnected sets but are unified. 1. 1.1 Rule of Recognition can take a variety of forms: reference to an authoritative text/legislative enactment/customary practice/general declaration of specified people/past judicial decisions. 1. 2 Static nature of primary rules is remedied by ‘rules of change’, such as the rule allowing someone to make new primary rules: it is according to this, and not OBT, that the idea of legislative enactment/repeal should be understood. 1. 3 Secondary rules supplement primary rules by empowering individuals to make authoritative determinations of whether a primary rule has been broken (‘rules of adjudication’).

Answer 63

1. 1 Wherever it is accepted, people have authoritative criteria for identifying primary rules of obligation 1. 2 In modern legal systems, rules of recognition are often multiple (written constitution, legislative enactment, judicial precedents etc) and conflicts are usually resolved by a system of criteria (eg. statute trumps common law) for primacy/subordination 1. 2.1 Primacy/subordination should be distinguished from the argument that all laws ‘really’/’tacitly’ come from legislation, because judicial decisions are subordinate because they can lose their status as law if Parliament enacts otherwise, and yet they don’t derive their status as law from tacit parliamentary approval but rather from this rule of recognition that accords them an independent (if subordinate) place. 1. 3 Unstated rules of recognition are reflective of the internal point of view, in that those who use them manifest their own acceptance of them as guiding rules. 1. 4 Rule of Recognition is the ultimate rule of a legal system, that provides the criteria to assess the legal validity of all other rules. For example, the by-laws of the Oxfordshire City Council are valid because they were made in exercise of the powers conferred by statutory powers made by the Minister of Health. We can go further if we want to.

Answer 64

1. 1 What category does the statement ‘whatever the Queen in Parliament enacts as law is law’ (it’s not a statute or a convention)? 1. 2 How can we show that the fundamental provisions of a constitution are really law and not ‘pre-legal’, ‘meta-legal’ or ‘political fact’?

Answer 65

1. Two conditions for a legal system to exist: rules of behavior that are valid according to the system’s ultimate criteria of validity must be generally obeyed, and its rules of recognition specifying the criteria of legal validity and rules of change and adjudication must be effectively accepted as common public standards.

Answer 66

• Hart criticizes a concept of law based on commands and habits (most clearly pronounced by Austin) • In ordinary language we have imperative language – there are requests, pleas, and warnings. There is the order of a gunman (give me money or I shoot you). We perhaps shouldn’t use order or command because they are too associated with the military and thus connote a degree of authority. • But law is not like the orders of a gunman because: o Legal controls are mostly general, in that rather than having officials parade the streets looking for improper conduct which they deem illegal, general forms of directions that aren’t addressed to individuals but to everyone are used instead o Laws have ‘standing’ or persistent characteristic – they're meant to bound future classes of the same people time and time again. Gunmen, on the other hand, are not superior to the bank clerk except in that very moment where he’s able to make that threat – there is no continual belief in the consequences of disobedience (the order is not kept ‘alive’) o Laws must be followed by most people most of the time, whereas the mere temporary ascendency of one person over another as in the case of the gunman is the antithesis of law • Thus a closer version to the law is “general orders backed by threats given by one generally obeyed”, where it is “generally believed that these threats are likely to be implemented in the event of disobedience” and the body giving the law must be “internally supreme and externally independent”.

Answer 67

- Three main groups: o Content of laws: there are groups of laws that don’t conform to the order backed by threats model (eg. ways to make valid contracts/wills/marriages – those that provide facilities for achieving certain ends) ♣ But laws that govern courts’ jurisdiction seem different – if I didn’t have two signatories to my will, it is void. But if a court surpasses its jurisdiction, its decision stands until (and unless) it is quashed by a higher court ♣ Statutes conferring legislative power on subordinate legislators cannot be assimilated with a general order • However the desire for uniformity is strong, so we should consider arguments that these differences in variety of laws is superficial and that the ultimat notion of orders backed by threats is adequate: o Nullity as a sanction – objections: ♣ Nullity may not be an ‘evil’ to the person who failed to satisfy the conditions required for validity ♣ Criminal sanctions can identify an undesirable social conduct and sanction intended to prohibit it – this is not true of power-conferring laws, which seek to encourage conduct if anything ♣ With criminal law it might be logically desirable or possible for these rules to exist without punishment (we can distinguish the rule prohibiting behavior and the provision for penalties) whereas the same cannot be said of power-conferring laws o Power-conferring rules as fragments of laws – laws do not prohibit conduct, they merely order officials to apply certain sanctions in certain circumstances (more extreme form); laws intended to govern the ordinary citizens are seen as orders backed by threats but power-conferring rules are seen as “if… then” constructions (if a will has been signed then the official shall recognize it) o Mode of origin of laws ♣ Custom conflicts with the gunman view • But whether or not custom is law is subject to debate • Even if it is it’s a subordinate source of law in that it can be displaced by statute and whether courts recognize them in the first place is subject to discretion (eg. by applying ‘reasonableness’ test) • Objections: o Nothing can be law until someone orders it to be so (custom is not law until courts apply it) o Status of custom as law is due to the sovereign’s tacit order o Range of application of laws ♣ The top-down view of authorities making laws binding its subjects can only be reconciled with political realities if an authority in his official capacity is separated from his private capacity (an official in official capacity creates rules that bind everyone including himself in his private capacity ♣ Perhaps the better view is that legislation is the introduction of general standards of behavior to be followed by society generally; thus, the legislator is not like giving orders (outside the reach of what he does) but like making a promise, he must fall within the ambit of the promise (rule) he makes

Answer 68

- In criticism of theory of orders backed by threats it’s necessary to consider whether there is always a sovereign who makes laws and who this sovereign is Habit of obedience - Habit of obedience – say people over time acquire a habit of doing (inter alia) what the sovereign orders him to do o Then nobody needs to express a view on whether his or others’ obedience is right/proper/legitimately demanded - Differences between habit and law: o Habit is enough for behavior to converge in fact but for a law deviation must be considered wrong o For a law deviation from the standard should be considered a good reason for criticism o Laws have an internal aspect in that people strive to maintain it and view it as a general standard to be followed by the group of people as a whole The persistence of law - Laws clearly cannot be regarded as valid for the legislator’s lifetime only, but how do we recognize continued recognition of past laws? o Past statutes owe their present legal status to the acquiescence of the present legislature? This is surely wrong because courts when applying statutes don’t distinguish based on the acquiescence of present legislatures

Answer 69

• Discussion is premised on the assumption that governments want to stay in power, and to make the nations they govern prosperous/powerful/religious/eminent. To do so they use force, but this force can never be used no matter how beneficial except as licensed by rights and responsibilities flowing from past political decisions about when collective force is justified • Law of a community license coercion because they flow from past decisions of the right sort • Three conceptions that try to answer questions like why there needs to be a link and what sort of link? Is there a point to requiring licensing of coercion and what is it? o Conventionalism: the point of law’s constraint on coercion is predictability and procedural fairness; the link needs to be strong enough that the past decision states explicitly the rights and responsibilities in question, or that these be made explicit through other means accepted by the legal profession. No other link to history is needed. o Legal pragmatism: No link needed between decisions and the past; judges should do whatever they think best for community’s future rather than trying for consistency and valuing it for its own sake (rejects the concept of law as legal rights) o Law as integrity: accepts the concept of law as legal rights but considers the link as not just allowing procedural fairness/predictability but also equality among citizens which makes the community more genuine and improves the moral justification for exercising political power • Law and morality o “Popular morality” is not law because the law depends not on passive views but positive commitment because authorities have enacted these views into law, but a different conception of the law may make what counts as law depend on popular morality and the explicit content of executive decisions o Law is also not synonymous with justice because it again depends on the theory that you identify with – it is permissible to hold that when executive decisions are unclear then justice plays a role in interpretation, but the natural law/legal positivism debate may place a greater role on justice • Whether the Nazis had law can be a question of semantics – it is perfectly right to say that a wicked system doesn’t have laws despite having established principles of governance. But at the same time it’s possible to say that they did have law because they had the essential features of a legal system (this approach is positivist). But the answer to the question doesn’t matter, because we would know that when someone says whether Nazis had/didn’t have law they’re not making a value judgment of Nazis but rather adopting different conceptions of the meaning of ‘law’

Answer 70

• Central idea: coercion is relevant to the explanation of law if an adequate explanation of how it is that certain political facts constitute distinctively legal obligations must necessarily refer to some coercion-involving fact • Interpretations: o Threat of sanction is constituent in every law (as an aspect of nature of laws or as generalization about actual laws) o Nature of law claims authority to regulate coercion o Descriptive: legal obligations not honored are coercively enforced o Normative: government may exercise coercion only if it is allwed by law • What is coercion? o Coercer interferes with coercee’s alternatives as to lead him to take the course of action that the coercer wants him to take (by changing the balance of reasons) o This is often thought to be a necessary but insufficient element to constitute coercion • When is coercion permissible? o Coercion is thought to be in principle objectionable but subject to justification based on consideration of transition of subject’s situation before interference to results of interference o Maybe coercion is only objectionable if/because it makes the subject worse off (reduction of freedoms)? • Creating reasons o Raz theorizes that law is a collection of interrelated norms, and laws telling subjects to take a course of action are enacted as edicts from an authority where it makes practical judgment on the subjects’ behalf o But the authority’s decision cannot work as a norm unless it itself constitutes reason for the prescribed action (and people aren’t doing it for, say, keeping their reputation/advancing their business) o Thus a norm guides action only insofar as it makes action not responsible to circumstances other than the fact that the relevant edict exists o Analogy: when you promise to do sth, you create a new reason to do it, but to what extent is this the reason/norm? ♣ Impact view – promise creates new circumstances that are ultimately the source of the new reason ♣ Creation view – the fact of the promise is itself a reason (but there must be some background reason why people should be able to bind themselves (eg. that it is in one’s interest to be able to do so)) • Thus the impact view is that if a mob threatens a shopkeeper telling him they know where he lives, then the impact it makes on the shopkeeper is probably enough to make him pay them the sum demanded (you can create the reasons you want – you calculate them based on presumed effectiveness). But the creation view goes further – the promisor only has to say the word, and so it is the promisor’s choice and not any impact, that is the reason o Thus the creation view of the law is that given the background justification of the government’s power to affect citizens’ normative situation, it can create special reasons for norms simply by saying so (we act according to edicts because they exist, regardless of its impact on the balance of reasons) • Enforcing Edicts o The view that people don’t respond to the edict itself but the undesirable consequences of enforcement is inconsistent with the creation view, because the subject is not submitting his action to the judgment of the authority, but responds to the effect that the authority’s action has on his circumstances (this is not the right reason) o Also the view that people follow the law because the threat of sanction means that they can expect everyone else to follow the law and derive benefits therefrom thwarts the creation view because it’s not the edict per se that directs the subject’s action • Moral limits on coercion o Dworkin: morality of coercion determines the determinants of obligation o Objection: the correctness of a conception of law cannot turn on how well it fits within a controversial moral doctrine about the conditions under which coercion is permissible (nature of law shouldn’t depend on what it would be good for law to be) o History may be relevant: law must treat everyone equally, so if government uses force on historical occasions then it must use force again when a similar occasion arises (principled consistency) o Thus, the content of obligation is not limited by the normative views of actual officials (unlike what creation viewists argue) – if the law is the moral impact of institutional practice, then I might be obligated to take some action even though no official ever took the view that I ought to take it • Creation view is also limited in that authorities’ views are not ‘privileged’ let alone the sole reason for subjects to submit (to have an obligation is not to have reason to submit one’s action to anyone’s views) • Further, the law shouldn’t be viewed as a set of norms to guide official coercive action rather than private conduct; our obligations are the same regardless of enforcement (if we don’t get caught we still have an obligation not to speed) – politics doesn’t create obligations to obey authorities; it permits the enforcement of obligations that are identified as such by the principles that make political practice consistent in principle

Answer 71

• Rights and duties that jurisprudence studies are no more than prophesies gleaned from caselaw (past judicial experience that predicts what future courts will do/consider/decide) • A legal duty is no more than a prediction that if someone doesn’t do something he will be made to suffer; it should be distinguished from moral duties which exist independently of the sanctions imposed • “I do not say that there is not a wider point of view from which the distinction between law and morals becomes of secondary or no importance, as all mathematical distinctions vanish in presence of the infinite.” • But to understand law correctly we must consider it as a “business with well understood limits, a body of dogma enclosed within definite lines” “a bad man, who cares only for the material consequences which such knowledge enables him to predict, not as a good one, who finds his reasons for conduct … in the vaguer sanctions of conscience” • There must be laws that contravene the moral views of the most enlightened; it would be wrong to equate one’s moral rights with his legal rights – eg in law of contract, legal/moral malice • Law, unlike Maths, cannot be said to derive from a single coherent set of axioms and rules; dissenting judgments shouldn’t be seen simply as one side having done the sums wrong (the logical form, without consideration for social factors, is fallacious) • When we want to know why a rule of law exists, we look inevitably to tradition, because the life of law is like the life of plants, where each generation looks for improvement/addition; the law is a product of gradual historical improvement, not reworking of the whole with the particular ends in mind o Eg. the crime of larceny traditionally depended on trespass (aim was fear of violence) but modern law widened the criterion so that possession by a trick or device satisfies the crime. It would have been better/truer to the present object of the law if the requirement was abandoned altogether • History’s role is perhaps too great: in contract the distinctions between debt, covenant, assumpsit are only historical; consideration is a mere form – why should historical distinction be allowed to affect the rights and assumptions of business men? • Sometimes, tradition doesn’t just override rational policy; it overrides after having been misunderstood and given a new and broader scope than it had when it had a meaning – material alternation of a written contract by a party avoids it as against him (contrary to the general tendency of the law – when you lie in part you’re not presumed to lie in all) -

Law as Authority Flashcards

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