Obligation (Austin, Hart, Raz, Kelsen, Finnis)

Question 1

Austin: Legal Obligation

Answer 1

We follow the law due to a psychological feeling of fear of punishment or sanctions.

Question 2

Hart: Legal Obligation

Answer 2

Practice Theory of Rules: We follow because we internally accept the rules - Social Normativity. This is neither a moral or Austin’s psychological obligation.

Obligation: Not the same as being obliged; it doesn’t depend on your motives nor beliefs

Internal Acceptance: Not accepting because its always been done (external), accepting because you accept the rule that tells you that you can’t do X. Acceptance involves:

• Wanting to comply.
• Ready to call out others who don’t comply.
• Willing to be called out if I don’t comply (the rule itself justifies the criticism).

Question 3

Raz: Legal Obligation

Answer 3

1) Dependence Thesis: State should only legislate if the objective relates to you.
2) Normal / Instrumental Justification: State has EXPERTISE in providing a service to you. The service is to balance the advantages and disadvantages of what you want to do with better reasons. (Driving as fast as you want vs. ensure everyone is safe). Then legitimate authority arises.
3) Preemptive Thesis: As a result of above, the state replaces your own reasoning.

No general obligation to obey the law obligation depends on individual circumstances.

Question 4

Kelsen: Legal Obligation

Answer 4

Obligation arises from belief in the basic norm. If you believe in God, you will have an obligation to follow the ten commandments.

Question 5

Finnis: Legal Obligation

Answer 5

Acceptance of legal system implies legal obligation. If legal system is implemented correctly, there is a moral obligation as it serves as guidance for people.

Process:

• I want to pursue basic goods.
• Society needs coordination to achieve basic goods.
• Law is an effective way of coordinating society.
• I should obey the law.