The Source of Legal Obligations

Question 1

Obligations:

1. key question re obligation to obey the law
2. Raz on law’s effect
3. Dworkin on law’s effect
4. Prudential reasons?

Answer 1

1. not that there’s always an obligation to obey every law, but rather how law changes our reasons, which particular reasons, and whether these reasons count as obligations.
2. Raz – laws create exclusionary reasons and legal duties are therefore these exclusionary reasons
3. Dworkin (Greenburg, Hershovitz, Stavropolous): no need to discuss exclusionary reasons etc. – the law doesn’t have exclusionary effect. It gives ordinary first order reasons (albeit strong ones), so the presence of exclusionary reasons isn’t an objection to them.
   What kinds of reasons does the law give us?
4. Prudential reasons (though this isn’t an obligation – it’s more like reasons to avoid dangerous animals etc.)

Question 2

Introduction

Do we have a general obligation to obey the laws of our legal system?

1. what do liberal anarchists argue?
2. what if acting in conformity with the directives is the right thing to do?
3. how have legal scholars responded re locating the general obligation to obey the law? (4 points)
4. 2 follow up questions:

Answer 2

1. Liberal anarchists famously argued that acceding to the claims of authority of one’s legal system—even if it is a reasonably good legal system—is fundamentally incompatible with one’s autonomy. Therefore, they suggested, one should never comply with legal directives (or the directives of any supposed authority, for that matter).
2. Of course, acting in conformity with certain directives will often be the right thing to do, but that is coincidental and therefore beside the point.
3. In response to the anarchist challenge, scholars have tried to locate a general obligation to obey the law in a legal system’s effectiveness in solving coordination problems, the substantive justice of its laws, its democratic decision-making procedures or the true community it fosters.
4. If they fail and we are forced to agree with the anarchists that there is indeed no general obligation to obey the law,

• does that still leave open the possibility of a legitimate legal system?
• Even if it turns out that there is no general obligation to obey the law, is there nonetheless a right way to relate to the laws of a legitimate legal system?

Question 3

R. Wolff, In Defense of Anarchism (1970) ch 1: “The Conflict between Authority and Autonomy

I - The concept of authority

1. definition of a state and its distinctive characteristic?
2. definition of authority?
3. First question: under what conditions and for what reasons does one man have supreme authority over another?

Answer 3

1. The state is a group of persons who exercise supreme authority within a given territory, and may include all the persons who fall under its authority. Its distinctive characteristic is supreme authority – sovereignty
2. Authority is the right to command and correlatively the right to be obeyed, distinguished from power: the ability to compel compliance.
3. We must demonstrate by an a priori argument that there can be forms of human community in which some men have a moral right to rule. Legitimate (de jure) authority thus concerns the grounds and sources of moral obligations; de facto states are simply states whose subjects believe it to be legitimate – although they may be wrong. Since some people do so believe, there are de facto states.

Question 4

R. Wolff, In Defense of Anarchism (1970) ch 1: “The Conflict between Authority and Autonomy

II - The concept of autonomy

1. what is the fundamental assumption in moral philosophy? where does the obligation NOT derive from?
2. what does a responsible individual acknowledge?
3. how might we say a man is autonomous
4. how might we say he is free?
5. can man abdicate his autonomy?
6. can man give up responsibility for his actions?

Answer 4

1. The fundamental assumption of moral philosophy is that men are responsible for their actions; this obligation does not derive from man’s freedom of will alone, for more is required in taking responsibility than freedom of choice.
2. A responsible individual does not imply that he always does what is right but only that he does not neglect the duty of attempting to ascertain what is right. He does acknowledge himself bound by moral constraints, but he insists that he alone is the judge of those constraints.
3. Since the responsible man arrives at moral decisions which he expresses to himself in the form of imperatives, we may say that he gives laws to himself or is self legislating – autonomous.

4, He may do what another tells him but not because he has been told to do it – he is therefore, in the political sense of the word, free.

5. Since man’s responsibility for his actions is a consequence of his capacity for choice, he cannot give it up or put it aside, but he can refuse to acknowledge it – therefore, man can forfeit his autonomy at will: he can decide to obey the commands of another without making any attempt to determine for himself whether what is commanded is good or wise. We frequently forfeit our autonomy – by giving to the force of tradition or bureaucracy.
6. This is not the same as the false assertion that a man can give up responsibility for his actions - the moral condition demands that we acknowledge responsibility and achieve autonomy wherever and whenever possible.

Question 5

R. Wolff, In Defense of Anarchism (1970) ch 1: “The Conflict between Authority and Autonomy

III - The conflict between authority and autonomy

1. what is the defining mark of the state?
2. what is the primary obligation of man?
3. why is anarchism consistent with autonomy?
4. does the feeling of a special obligation to the law have an objective basis?
5. is all authority equally wrothless according to the anarchist?
6. why is a de jure legitimate state vacuous?

Answer 5

1. The defining mark of the state is authority, the right to rule.
2. The primary obligation of man is autonomy, the refusal to be ruled. Insofar as a man fulfills his obligation to make himself the author of his decisions we will resist the state’s claim to have authority over him; he will deny that he has a duty to obey the laws of the state simply because they are laws.
3. Thus, anarchism is the only political doctrine consistent with the virtue of autonomy. An anarchist may grant the necessity of complying with the law under certain circumstances or for the time being, but he will never view the commands of the state as legitimate, as having a binding moral force.
4. The anarchist tells me my feeling of a special obligation to obey its laws is purely sentimental and has no objective moral basis.
5. All authority is equally illegitimate, although of course not therefore equally worth or unworthy of support
6. . If all men have a continuing obligation to achieve the highest degree of autonomy possible, then there would appear to be no state whose subjects have amoral obligation to obey its commands. Hence the concept of a de jure legitimate state would appear to be vacuous, and philosophical anarchism would seem to be the only reasonable political belief for an enlightened man.

Question 6

Bix, Jurisprudence: Theory and Context

Intro

1. what is the seminal q?
2. what do most writers assume?
3. reasons for obeying the law?
4. what is the focus of the debate?
5. what are the various theories?
6. what are the various scenarios?

Answer 6

1. The question is whether there is a moral obligation to obey the law, a moral obligation that attaches to a rule simply because of its legal validity, i.e. its membership within a legal system.
2. Most writers assume:
   1) A generally just legal system
   2) There is a prima facie obligation that can be overridden if a stronger moral obligation requires a contrary action
3. Reasons for obeying the law:
   1) Prudential reasons (fear of imprisonment or fine)
   2) Habit (easier to obey the law unreflectively rather than calculating the moral and prudential factors on each occasion)
4. These reasons aren’t the focus of the debate – the question is whether the legal status of a command, by itself, without more, adds any moral reasons for doing/not doing an action.
5. Various theories:
   1) Consent
   2) Gratitude
   3) Reciprocity
   4) Consequences
6. In all cases, the difficult scenario is one where there is seemingly no risk of harming anyone, and the disobedience seems like it would go undetected (ex. stop sign at 3AM).

Question 7

Bix, Jurisprudence: Theory and Context

I – Consent

1. thesis?
2. steps to the argument?
   (i) step + possible response?
   (ii) step 2 + response?
3. what is the real question?
4. what is a possible response?

Answer 7

1. Thesis: by some action (voting, accepting government benefits, not leaving the country) or inaction, we have implicitly consented to obeying society’s law.
2. Steps to this argument:
   (i) A certain action constitutes “consent” to obeying the society’s laws – response is that these activities cannot be properly understood as consent, because a) citizens do not perceive of their action that way, and b) do not have reasonable alternatives.

(ii) Consent in this way leads to a moral obligation to obey the law - even if these activities can constitute the consent, consent doesn’t necessarily equate an obligation to obey the society’s laws. Why?
a. Acts of consent may have limited force: a mere promise is not sufficient to maintain large moral claims, like creating a moral obligation to do something a) on one-sided terms (paint your house for $1), b) immoral (kill your father), c) give up one’s autonomy (do anything you told me to for a month). In the same way, mere consent may not be sufficient to justify creating a broad obligation to obey whatever the government might enact from that day onward.

3. The real question: how do we create moral obligations for ourselves, and what are the limits of these obligations? The extent to which consent can create, waive or defeat legal and moral obligations is a difficult theoretical question – thus, consent offers at best, a partial response.
4. Possible response: consent only creates an obligation to obey a generally just regime, not just any regime – but even if this is true, is it consent, or the justice of the regime itself, that creates the obligation to obey, consent merely working to limit certain types of legitimate complaint by the citizen?

Question 8

Bix, Jurisprudence: Theory and Context

II – Consequentialist approach (Hobbes, Honoré)

1. thesis
2. Hobbes?
3. Honore
   (i) response?
   (ii) counter-argument to the response

Answer 8

1. Thesis: the obligation arises from the bad consequences to society if people did not have such an obligation.
2. Hobbes (extreme version): the law is to be obeyed even when it is unjust, because the alternative is the chaos of the state of nature, the law of all against all (Hobbes, Leviathan: “though of so unlimited a [Sovereign] Power, men may fancy many evil consequences, yet the consequences of the want of it, which is the perpetual war of every man against his neighbour; are much worse”)
3. Honoré: if the initial presumption is that the law need not be obeyed, then people will tend more often to disregard the law than if the initial presumption is for obedience, leading to an “attitude of disobedience” and the breakdown of the order and cooperation needed for society to function
   (i) Response: fear of legal sanctions and pre-existing moral commitments are enough to prevent the consequences of disobedience
   - though not really - notwithstanding the fact that many crimes do go unaddressed, great psychological comfort comes from the fact that we are all abiding by the same (overarching) rules. Even though in a city like London, cultural norms differ, the knowledge that there is a common denominator in these norms fosters solidarity, an essential evolutionary requirement as a remarkably social creature. The challenge, as seen with the EU project, is in finding the balance.

Further, taken to its extreme, such ‘solidarity’ creates rigid borders and can drown out other values i.e. differing views. But in a moderated form, it provides enough structure to demarcate the boundaries of our rules, whilst leaving scope for debate and development. Such a vision of the law can be supported by reference to an experiment in a children’s playground. Clearly defined boundaries led to the children wandering to the very edge of those boundaries. However, the absence of any boundaries meant that the majority stayed much closer to the central building.

Question 9

Bix, Jurisprudence: Theory and Context

III – Benefit or gratitude (Plato)

1. thesis?
   - analogy to…?
2. responses?
   - 4 points

Answer 9

1. Thesis: it is immoral for those who have received substantial benefits from the state not to respond with the same obligation that governments ask in return – obedience to the law (by analogy to the duty of children to their parents).
2. Responses:
   - children don’t owe parents the obligation to let them determine all our future choices – so is gratitude to government sufficient to give it moral authority over our actions?
   - we can only owe a moral obligation if we voluntarily accept such benefits and intend to continue to do so, whereas most people don’t have the power to waive their rights to receive them
   - further, many would prefer limited interference by the state!
   - On the other hand, the law does coordinate activities and that given that we inadvertently take advantage of the effects of this coordination i.e. we can safely drive to work knowing which side of the road to drive on, the abide so others can carry out their

The law is therefore a traffic light, finding workable combinations to give as much liberty (given that our prevailing moral political philosophy stems from Mill) to all citizens.

Question 10

Bix, Jurisprudence: Theory and Context

IV – A duty to support and to further just institutions (Rawls)

1. thesis
2. response?

Answer 10

1. Thesis: the natural law position that if laws are just, they have the power of binding in conscience, a power which comes from the Eternal Law from which they are derived (Aquinas).
2. Responses: even if this is true, it doesn’t create a general moral obligation to obey every law on every occasion, as many instances of disobedience simply do not undermine just institutions.

Question 11

Bix, Jurisprudence: Theory and Context

V – Fairness or reciprocity (Hart)

Answer 11

Thesis: obedience is not a duty to the state but a duty to one’s fellow citizens – “when a number of persons conduct any joint enterprise according to rules and thus restrict their liberty those who have submitted to their restrictions when required have a right to a similar submission from those who have benefitted by their submission” (Hart, Are There Any Natural Rights?). Someone who disobeys the law is unfairly taking advantage of other people’s sacrifices.

Question 12

Bix, Jurisprudence: Theory and Context

VI – There is no moral obligation to obey the law (Fuller)

1. what does Fuller argue?
2. what does Raz argue?
3. what is an objection to Raz’s view?
4. what do sceptics argue re obligation to obey the law?
5. questions to distinguish?
6. what does Smith argue?

Answer 12

1. In the course of the Hart-Fuller debate Fuller argues that if, according to legal positivism, the validity of a law is separate from its moral value, then how can the legal positivists speak of a “moral dilemma” about whether to obey a morally dubious law? (Fuller, Positivism and Fidelity to Law). Just because something is required by law, it is not by itself a moral reason for doing that action.
2. But some legal positivists accept that the legal status of a norm may give it no intrinsic moral weight (Raz) – they don’t argue that we should never obey the law, but only that the moral reasons must go beyond the simple “because the law says so”.
   - Raz: we have a moral obligation to obey the law if and when we believe that we are more likely to make the morally best choice by following the law than by making our own judgment (because the legislator heard expert testimony, because of coordination problems). But the most common situation is that what the law requires is when the action is the moral thing to do, regardless of what the law says.
3. [Objection: how can you know that you have a better idea of what is morally right than the legislature?]
4. Sceptics say that the arguments for a general moral obligation to obey the law is insufficient to ground a general obligation – if disobeying a law causes no harm and doesn’t create a bad example, how is it going to undermine a just institution or a joint enterprise? Why should consent or a duty of fair play/gratitude extend to all laws – even where disobedience is harmless. Why should we continue to have the obligation to obey a coordinating law if it has become clear that it failed at coordinating?
5. Questions to distinguish:
   1) ethical question: what should I do in this situation?
   2) meta-ethical question: what is the set of beliefs and attitudes we want or need the public to hold?
   3) political question: from perspective x, what is the set of beliefs and attitudes we want or need the public to hold? (not covered here)
6. Smith: even if there is a moral obligation, it carries little moral weight because:
   1) a seriously immoral act does not become significantly more or less culpable depending on whether the action is legally permitted or not
   2) we are slow to condemn someone for breaking the law until we find out which law was broken

Question 13

Bix, Jurisprudence: Theory and Context

VII – Connections

This topic is connected to more basic questions of:

Difference in adopting natural law vs positivist view

Answer 13

This topic is connected to more basic questions of:
1) Moral theory (what grounds our moral duties: benefit? consent? cooperation? consequences? necessity? interdependence?)

2) Legal theory (how do we determine the existence or validity of a law or legal system?)

If you start with traditional natural law theory, then your conclusion about whether something is “law” will incorporate much of the answer about whether one has an obligation to obey the law (ex. you have an obligation to obey just laws, and a minimal obligation to obey unjust laws for public compliance so as not to undermine a generally just legal system).

But if you’re a legal positivist, then because the validity of law is independent from its merits, then you need to find your answers elsewhere.

Question 14

Penner, Textbook on Jurisprudence

I – A necessary prima facie moral obligation to obey the law

Answer 14

It was assumed that for the State and the law to function, it was necessary that subjects of the law had a prima facie (i.e. defeasible) obligation to obey the law – so the debate is how the obligation should be explained. This is the starting point of:

Question 15

Penner, Textbook on Jurisprudence

A - Plato/Socrates (Classical Greco-Roman natural law)

Answer 15

Plato, in The Last Days of Socrates, purports to present statements of Socrates in relation to law and the duty of obedience:
- Apology: the State has no right to demand that a person commit evil or injustice – where this is in fact demanded, the only honorable course is refusal.
- Crito: addresses the different question of where the state (through its law) doesn’t command wrong of an individual but does wrong to him.
o Three grounds of obligation to comply with the law, of which an analogy with the relationship of parent and child and State and citizen: the obligation arises from gratitude for the law maintaining a system in which the individual has chosen to reside (assumes that individuals are free to depart). By disobeying, an individual attempts to destroy the law and the social fabric that it supports and which that individual must be taken to have accepted by remaining in the state.
o So if you don’t approve you have three options: move, persuade the state to amend the law, or obey. This assumes that 1) persuasion is possible and 2) legitimate departure is possible. But in practice this may not be true (ex. potential victims of genocide in the Third Reich can neither persuade nor depart – should they then submit willingly to slaughter?)
Inconsistency between the argument for disobedience in Apology and obedience in Crito, possibly explained by a distinction between a duty to do no wrong to others, and a duty to accept an unjust infliction pursuant to an obligation already accepted. So while Plato denies the right of the State to command evildoing, it denies simultaneously the right of an individual to refuse submission when wrongful acts are commanded by the law to be done to him (subject to persuasion and prior departure).

Question 16

Penner, Textbook on Jurisprudence

B - Finnis (Natural Law Revival)

4 types of obligations

dismissal of these into separate disciplines

division between moral and collateral moral

Answer 16

Four types of obligations: 1) sanction-based (Bentham), 2) intra-systemic formal (Austin), 3) moral (Hart) and 4) collateral moral (natural law theories).

The dismissal of some of these into other disciplines is unsound jurisprudential method. The idea of “obligation” is not a singular phenomenon but a combination of different obligatory factors (coercive, formal and moral).

The division between moral and collateral moral is that by disobeying a law (even a bad one) a person places at risk the whole legal system and there is therefore a “collateral” moral obligation to obey such a law notwithstanding its immorality.

Question 17

Penner, Textbook on Jurisprudence

C – Theories justifying a general moral obligation

1 – Consent

• problem
• response

Answer 17

• Problem = absence of actual consent.
• Response = notional consent (i.e actual consent is unnecessary where consenting would be a reasonable thing to do), but this dispenses with consent altogether rather than depending upon it, because if it would not be reasonable to consent, then actual consent can’t justify it, and if it is reasonable, actual consent is unnecessary.

Question 18

Penner, Textbook on Jurisprudence

C – Theories justifying a general moral obligation

2 – Fair play/benefit and burden

• what is it?
• does it justify an obligation to a general system of law?

Answer 18

• Between state and citizen
• Between citizens (insisting on one’s own legal rights entails respecting the legal rights of others)
  But the obligation we’re trying to justify is a general moral obligation to obey every law of the system just because it is a law of the system – fair play is a moral obligation of its own, and complying with it doesn’t justify complying with every rule that forms part of whatever body of laws is laid down by an authority (indeed some laws even contribute to unfairness: tax regimes).

Question 19

Penner, Textbook on Jurisprudence

C – Theories justifying a general moral obligation

3 – Violation sets an example to others (Finnis)

2 counter-arguments

Answer 19

It encourages disobedience causing harm to the legal system, making it less effective. This is hopeless:

1) Certain instances of disobedience may shock people and encourage greater obedience
2) Many acts of disobedience would never be detected

Question 20

Penner, Textbook on Jurisprudence

D – Denying a general moral obligation

RAZ

• people who respect their communities
• is this sufficient to ground a general obligation to obey the law?
• what paradox does Raz highlight?
• what 2 categories of law does Raz distinguish?
• what are the different rationales for obeying each?

Answer 20

• Raz: certain people, i.e. those who respect and are more or less deeply committted to their communities, may come under a general obligation to obey the law as an expression of that respect, but that does not ground a general obligation for everyone (by analogy with friendship creating certain special, expressive reasons to act in certain ways)
  o Paradox: how can a good state with a right to rule have that right if its subjects don’t have a general duty to comply with its directives?
  o Raz’s response: distinguishes
  ♣ laws that address wrongs mala in se (morally wrong in themselves) – here one has a moral obligation not to do the wrong (ex. murder, steal) whether the laws says so or not. Where there are prudential reasons, then these are additional reasons but not moral ones.
  ♣ laws that address wrongs mala prohibita (depend for their wrongfulness on the fact that they have been made the subject of regulation) – the latter case serves coordination purposes, and for Raz, the fact that there is a law doesn’t create the obligation, it’s that the law works so that people do indeed coordinate their behaviour that creates the obligation (ex. you have an obligation not to pollute the river if everyone else refrains from polluting the river, but you wouldn’t if others were polluting the river, whether a law says you can’t or not). It’s the fact of social coordination itself that gives the moral reasons to join it.

Question 21

*Green, ‘Legal Obligation and Authority’ in The Stanford Encyclopedia of Philosophy

Terminology:

Political obligation:

Legal obligation:

Command:

Political authority
- distinguished from (2 things)

Law

Non-voluntarist theory

Constitutive obligations

Instrumental justification
- example?

Necessity:

• Klosko?
• Finnis?
• Rawls?

Voluntarist theory

Consent:
- example?

Expressive obligation

Fairness
- propounded by?

Answer 21

NOTE: according to HT, Green treats Dworkin’s associative obligations theory unfairly and briefly.

Political obligation: the moral obligation to obey the law. Voluntarists think that this requires a voluntary subjection to law’s rule (eg. consent), while non-voluntarists think that the value of a just and effective legal system is in itself sufficient to validate law’s claims.

Legal obligation: legal requirements with which the law’s subjects are bound to perform that the law renders non-optional. It is different from compulsion, in that subjects can choose to break the law, but it is also different from a weighty reason to conform, because such is neither a sufficient (SC has no obligation not to reverse itself too often but it still has important reasons not to) nor necessary (there is an obligation not to tread on another’s lawn, but this is only a trivial reason) condition.
- NOTE: But are these really two examples of the condition being unnecessary rather than the first being insufficient? The first simply shows that the law is not the only weighty reason to act a certain way – the only difference between the two examples is that there is an obligation to do one and not the other, though this obligation doesn’t seem to play much of a role.

Command: According to Austin, command = an expression of will + an attached risk, however small, of suffering an evil for non-compliance. It accounts for the stringency of obligations: “When I am talking directly of the chance of incurring the evil … I employ the term duty, or … obligation”.

Political authority is a right to rule with a correlative duty to obey. Legal authority is a subcategory, but it is contrasted with theoretical authority, the authority held by experts, which doesn’t claim a right to obedience or even to be believed.

Law: to engage in a debate about whether there is an obligation to obey the law, we will describe the nature of law as 1) institutionalized (connected to courts, legislatures etc.), 2) of wide scope (governing a large, loosely structured and open-ended group) and 3) morally fallible. It is after adopting this definition that political obligation turns on the moral reasons to obey mandatory requirements of a wide-ranging, morally fallible, institutionalized authority.

Non-voluntarist theory: A theory is non-voluntarist if its principles justifying legal authority do not invoke the choice or will of the subjects among its reasons for thinking they are bound to obey.

Constitutive obligations: A non-voluntarist theory that argues against looking for moral justifications for a duty to obey because a political association, like membership in any group, is itself pregnant with obligations (Dworkin)

Instrumental justification: A non-voluntarist theory where law can be instrumentally justified because it helps subjects comply better with reasons that are relevant to them. Raz’s normal justification theory is an example.

Necessity: The law is justified when it helps people comply with reasons but only if it is restricted to the domain of necessary social functions. Philosophers disagree as to what is necessary: Klosko confines it to “presumptively beneficial public goods”, while Finnis allows self-evident values including life, knowledge, play and religion. Rawls would also allow just arrangements not yet established.

Voluntarist theory: Political authority depends on the voluntary subjection to law’s rule.

Consent: Political authority requires the consent of its subjects. Locke is a proponent, defining consent as including enjoyment of benefits of government.

Expressive obligations: we are bound to obey the law because it is an appropriate expression of gratitude, respect and sense of belonging to the community. Raz thinks that the same reason we owe obligations to our friends justifies obligations to the law.

Fairness: the most influential voluntarist argument, propounded by Hart and Raz: political obligation grounds in a willingness to benefit from a system of mutual restraint. If we benefit from others not breaking the law, we owe an obligation not to break it ourselves.

Question 22

Notes
I. OBLIGATIONS IN THE LAW

i. How should the law be presented?

• Bentham (Kelsen)?
• Hart and Raz? (and where do they differ?)
• Honore and Dworkin?

Answer 22

• Bentham: “Every article of law has in common with the rest [in that it] commands and by doing so creates… obligations.” Therefore, Bentham and Kelsen think that the content of a legal system should be presented solely in terms of duty-imposing and duty-excepting laws, because it reveals the conditions under which the coercive power of law will be met
• Hart and Raz think that this presentation would be uninformative and unwieldy, but while Hart is concerned about it concealing the social functions of law, Raz thinks that it hides the different kinds of reasons for action that they create
• Honoré and Dworkin both devised theories that bypassed the issue [Does this show that it is meaningless, unimportant

Question 23

Notes
I. OBLIGATIONS IN THE LAW

ii. What accounts for the stringency of legal obligations?

Content:

• Green?

Answer 23

• Green thinks that the content of legal obligations does not account for their stringency, because it is neither sufficient (high courts have no obligation not to reverse themselves too often but they still have important reasons not to) nor necessary (we have an obligation not to trample on other people’s lawns, but this is only a small reason) for someone to pursue a certain course of action.

[I think this doesn’t show that it is insufficient, only unnecessary – the first example only shows that there are other very weighty reasons and that a legal obligation is therefore unnecessary. Also, the law is usually couched in absolute terms: a law not to do something too often is simply unenforceable. The difference between law and other reasons is that the law’s demands are absolute (subject only to defences), while other reasons more readily give way to competing reasons.]

Question 24

Notes
I. OBLIGATIONS IN THE LAW

ii. What accounts for the stringency of legal obligations?

Sanction:

• Austin & Kelsen? (where do they differ?)
• Command theory?
• Kelsen’s sanction theory?

Answer 24

• Austin and Kelsen both thought that sanction was behind legal obligations, though Austin envisaged a direct connection while Kelsen envisaged an indirect one
  o Command theory: Austin defines command as an expression of will coupled with an attached risk, however small, of suffering an evil for non-compliance. This risk of sanction accounts for the stringency of obligations: “When I am talking directly of the chance of incurring the evil … I employ the term duty, or … obligation”.
  o Kelsen’s sanction theory: Kelsen objects to the command theory and the content of a legal duty to be only part of a triggering condition for the mandatory norm which commands or authorizes officials to impose a sanction. “[A] norm: ‘You shall not murder’ is superfluous, if a norm is valid: ‘He who murders ought to be punished. [Thus,] legal obligation is not, or not immediately, the behavior that ought to be. Only the coercive act, functioning as a sanction, ought to be.”

Question 25

Notes
I. OBLIGATIONS IN THE LAW

ii. What accounts for the stringency of legal obligations?
- Hart’s criticisms of the sanction theory:

1. misrepresents …
   - response
2. renders unintelligible…
   - response
3. inadequate explanation of…
   - response
4. reinforcing vs constituting duties

Answer 25

o Misrepresents a range of disparate legal consequences, including compensation and invalidation, as if they all function as penalties
♣ NOTE: Perhaps the terminology of ‘penalty’ is inapt, but the premises are still valid, in that the law operates to place an individual in a worse position for non-compliance than they would be if they complied. Maybe the goal of all law is not to punish, but the effect of all law on an individual is to make him want to comply because it would put him in a better position than non-compliance.
Also, if a power-conferring law really was unconnected with any notion of penalty, then why is it that trying to enforce an invalid contract put one in contempt of court? Power-conferring laws, in reality, limit what we can do, because law is based on the premise that everything that is not prohibited is lawful. Thus, without the law that wills must be signed, we are free to make wills however we want…

o Renders unintelligible duties in the absence of sanctions, eg. duty of high courts to apply the law
♣ NOTE: But it doesn’t – these duties are not legal duties but moral ones. The sanction theory merely does not address all types of duties. It is perfectly true of legal duties – duties that are attached to sanctions.

o Inadequate explanation of non-optionality: ‘you have an obligation not to murder’ cannot merely mean ‘if you murder you will be punished’, because the law is not indifferent between people murdering and being jailed, and not murdering at all. “The right to disobey the law is not obtainable by the payment of a penalty or a license fee” (Francome v Mirror Group Newspapers Ltd)
♣ NOTE: Is it though? Of course society and legislators might not be indifferent, but is the law really indifferent? In the same way as a shopkeeper is not indifferent between people paying £5 for a book and not buying a book at all (because he wants to sell books), surely the economy is indifferent as between the two: a book is worth £5 – it’s the same whether you have a book or £5 to buy it with.

o The normal function of sanctions is to reinforce duties not constitute them. Avoiding sanctions is not the only or, contrary to Holmes, primary reason for people being interested in knowing their duties. People want to be guided by their duties, and officials invoke them as reasons for and not merely consequences of their decisions.

Question 26

Notes
I. OBLIGATIONS IN THE LAW

ii. What accounts for the stringency of legal obligations?

Hart’s rule-based theory

• what might sanctions mark?
• what must an obligation-imposing rule be?
• what does this account for if not their validity?
• when will obligations be valid?

Answer 26

• sanctions might mark circumstances in which people are obliged to conform, but they have an obligation only when subject to a practiced social rule. The fact that people use it as a rule makes it normative. An obligation-imposing rule must 1) be reinforced by serious or insistent pressure to conform, 2) they must be believed important to social life or some valued aspect of it, and 3) their requirements may conflict with the interests and goals of the subject.
  o This accounts for the nature of obligations not their validity: obligations will only be 1) legally valid if part of a legal system as certified by the tests for law in that system, and 2) morally valid if supported by sound moral reasons

Question 27

Notes
I. OBLIGATIONS IN THE LAW

ii. What accounts for the stringency of legal obligations?

Criticism of Hart’s rule-based theory

Answer 27

• people speak of obligations while aware that there are no relevant social practices (eg. lone vegetarian in a meat-eating society) and Hart’s conditions can be satisfied without obligation (eg. handing over a wallet to a mugger) (Dworkin 1978, 50-54; Raz 1990, 53-58)

Question 28

Notes
I. OBLIGATIONS IN THE LAW

ii. What accounts for the stringency of legal obligations?

Reason-based theory

Answer 28

• obligations are content-independent reasons that are both categorical and pre-emptive in force – they do not depend on the nature or merits of the action that they require, but rather require the subject to set aside his own view of the merits and comply nonetheless: Raz, though foreshadowed by Hobbes and Locke
  o Raz: obligations are categorical reasons that are protected by exclusionary reasons not to act on some (though not normally all) of the competing reasons to the contrary. Their stringency is accounted for by their insulating the required action from the general competition of reasons.

Question 29

Notes
I. OBLIGATIONS IN THE LAW

ii. What accounts for the stringency of legal obligations?

Reception of reason-based theory

• Perry and Regan
• Marmor and Finnis

Answer 29

• Perry and Regan express doubts about whether it is ever reasonable to exclude entirely from consideration an otherwise valid reason, but the theory has been adopted in contrasting views of the nature of law: Finnis 1979, 231-59, Marmor 2001

Question 30

Notes
II. AUTHORITY, OBLIGATION AND LEGITIMACY
Background:

Answer 30

Competition markets and mutual nuclear deterrence are not legal systems though people adjust their behavior in response to them. A social order is a legal system only if it has effective (de facto) authority, though this authority may not be justified.

Question 31

Notes
II. AUTHORITY, OBLIGATION AND LEGITIMACY

i. What is legal authority and how is it related to obligations?

Authority is a claim to the right to obedience

• Wolff
• Weber
• Friedman

Answer 31

• Wolff: “To claim authority is to claim the right to be obeyed [and] obedience is not a matter of doing what someone tells you to do. It is a matter of doing what he tells you to do because he tells you to do it.” This is not true of all authority (eg. theoretical authority (experts) don’t claim obedience or even a right to be believed), but it is normally true for political authority (including legal authority). The right to be obeyed is not the same as to comply

o Weber: It is “as if the ruled had made the content of the command the maxim of their conduct for its very own sake”. The justification is content-independent.

• Friedman: “[I]f there is no way of telling whether an utterance is authoritative, except by evaluating its contents to see whether it deserves to be accepted in its own right, then the distinction between an authoritative utterance and advice or rational persuasion will have collapsed”.

Question 32

Notes
II. AUTHORITY, OBLIGATION AND LEGITIMACY

i. What is legal authority and how is it related to obligations?

Sources thesis

• Raz

Criticisms:

• Waluchow
• Soper, Greenawalt, Edmundson

Answer 32

• Raz says that the test for the existence and content of law must be based only on social facts and not on moral arguments. Authority must “establish their existence and content in ways which do not depend on raising the very same issues which the authority is there to settle”. If the law is to settle moral issues, it cannot itself engage in the same debate.
• Criticism of the sources thesis:

o Waluchow: The law has other functions such as educating its subjects about right and wrong, and this is ill-served with the attitude that the rules are to be obeyed because they are rules

o Soper, Greenawalt, Edmundson: Legal authority involves no claim right, but only a set of liberties to decide certain questions for a society and enforce their decisions

Question 33

Notes
II. AUTHORITY, OBLIGATION AND LEGITIMACY

i. What is legal authority and how is it related to obligations?

Liberty conception

Answer 33

• Legal authority is a set of liberties to decide certain questions for a society and enforce their decisions.

Question 34

Notes
II. AUTHORITY, OBLIGATION AND LEGITIMACY

ii. Is the character of law’s authority a matter for descriptive or normative analysis?

Descriptive

Normative

• Free market (Hayek)
• Dworkin’s ‘more relaxed’ understanding

Answer 34

no notes

• we should understand law to claim only the sort of authority it would be justifiable for the law to have
  o Free Market: Hayek: ‘The ideal type of law … provides merely additional information to be taken into account in the decision of the actor’. The nature of legal authority should be understood analogically to a free market.
  o Dworkin’s ‘more relaxed’ understanding of legal authority: Dworkin thinks that the law is not trying to communicate guidance, but that a subject considering his legal duties is having a “conversation with oneself … trying to discover his own intention” in acting. Thus the law claims nothing independently of what each does well to regard it as claiming.

Question 35

Notes
II. AUTHORITY, OBLIGATION AND LEGITIMACY

iii. What is the relationship between obligation and legitimacy?

Obligation
- Dworking

Legitimacy

• Rawls
• Kelsen

Answer 35

• Obligation:
  Dworkin: “[T]hough obligation is not a sufficient condition for coercion, it is close to a necessary one. A state may have good grounds in some special circumstances for coercing those who have no duty to obey. But no general policy of upholding the law with steel could be justified if the law were not, in general, a source of genuine obligations”
• Legitimacy:
  o Rawls: “[A]cquiesence in, or even consent to, clearly unjust institutions does not give rise to obligations”. Thus legitimacy precedes an obligation to obedience.”
  o Kelsen: A legal system that doesn’t justifiably coerce won’t be able to assure the law-abiding that others will obey – effectiveness is a necessary (though insufficient) condition for justified authority.

Question 36

Notes
III. Obligations to the law

i. Do we owe an obligation to obey the law?
- Wolff’s dilemma

• objection to Wolff’s theory
  (i) principled objection
  (ii) practical point
• better understanding of Wolff’s concern and response that this doubt is unfounded
• Law’s essential features are: (3 points_

Answer 36

• No obligation of obedience: Wolff’s dilemma: “If the individual retains his autonomy by reserving to himself in each instance the final decision whether to co-operate, he thereby denies the authority of the state; if, on the other hand, he submits to the state and accepts is claim to authority then … he loses his autonomy”. Wolff favours autonomy and thus defends anarchism, because he is uneasy about surrendering judgment – how can it be rational to act against reason as one see it?
• Objections to Wolff’s theory:
  o A principled objection to every surrender of judgment is self-defeating, because a rational anarchist needs voluntary surrendering of judgment (eg. contracts) as a substitute for authoritative ordering (Soper)
  o By surrendering judgment in some matters people can spend more time thinking about more important things, so a partial surrendering of judgment may enhance people’s autonomy overall
• In the nature of law that there is an obligation to obey: A better understanding of Wolff’s concern is whether it is justifiable to surrender judgment wholesale to the law. Some say that this doubt is unfounded because it is of the nature of law that there is an obligation to obey it (Fuller, Finnis).
  To surmount this difficulty we adopt a definition of law compatible with both views. Law’s essential features are:
• Law is institutionalized: all law is connected to the activities of institutions (courts, legislatures, administration etc.)
• Legal systems have a wide scope: law is not limited to restricted groups (eg. families) or domains (eg. baseball). It governs the relationship between a large, loosely structured and open-ended group of strangers
• Law is morally fallible
  In this way, political obligation turns on whether there are moral reasons to obey the mandatory requirements of a wide-ranging, morally fallible, institutionalized authority.

Question 37

Notes

IV. Non-voluntarist theories

Answer 37

A theory is non-voluntarist if its principles justifying legal authority do not invoke the choice or will of the subjects among its reasons for thinking they are bound to obey.

Question 38

Notes
IV.1. constitutive obligations (Dworkin)

ii. Is the character of law’s authority a matter for descriptive or normative analysis?

Answer 38

NOTE: This is a very brief and unfair treatment of Dworkin’s theory
- The very nature of a political society includes political obligation: Attempts to find independent moral justifications for obligation are mistaken and conceptually confused, because “political association, like family or friendship and other forms of association more local and intimate, is itself pregnant of obligation” (Dworkin).
o “We have not understood what itmeansto be a member of political society if we suppose that political obligation is something we might not have had and that therefore needs to bejustified” (McPherson)
- Objection: Indeed people in organic associations often feel obligations to other members but these obligations are usually justified on independent grounds, for example the value of obligations attached to social rules, and thus why duties bind has no general answer but depends on the roles and duties. Dworkin, meanwhile, believes there is such a general duty, as long as the members think that their obligations are special, personal and derive from a good faith interpretation of equal concern for the wellbeing of all members. But why is the ground of duty obedience and not (eg.) fraternity? This theory needs more argument.

Question 39

Notes
IV. 2. Instrumental justification

• example
• 2 points about Raz’s theory

Answer 39

• Authority may be instrumentally justified as a way to help its subjects do what they ought: eg. Raz’s ‘normal justification thesis’, which states that authority is justified when it helps its subjects comply with reasons that apply to them better than they can on their own.
  o Important points about Raz’s theory:
  ♣ It will not apply where it is more important for subjects to decide for themselves than the decide correctly
  ♣ It is not a utilitarian theory, because that would require more commitment as to what reasons are relevant

Question 40

Notes
IV. 2. Instrumental justification

Criticism

2. too braod and too narrow

Answer 40

o This does apply to theoretical authority (we obey doctors who know better than we do, but this is not blind deference because it is subject to higher-order considerations like whether the authority is trustworthy etc.), but does it really apply to political authority? Yes, to an extent: legislators may know better than most about certain subjects (eg. global warming) but scientists may know as well or better. Also, there are some areas where there are no criteria of relevant expertise at all.
o The theory is both too broad and too narrow:
♣ Broad: we don’t think that political authority should be acknowledged whenever the rulers can better ensure conformity to right reasons – there are matters inappropriate or too trivial for political regulation.
♣ Narrow: outside theoretical authority, it can only apply to integrate the activity of people who must cooperate but who disagree on the matters at hand. But it is unclear how much deference to authority is needed in this context: sometimes, providing information or restructuring incentives would suffice (Green)

Question 41

V. Voluntarist theories
V.1. Consent

NOTE: Different versions of consent:

• Loche
• Green

Answer 41

1. An original social contract – that people once upon a time united to under the same law: Locke
2. People today have undertaken an obligation by some act that amounts to consent: Green

Question 42

V. Voluntarist theories
V.1. Consent

What is consent?

• original social contract
• US declaration of independence
• Locke
• criticisms

(i) how is consent given?
- Finnis
- response

(ii) consent is irrelevant

(iii) there is no consent
- Plato
- Locke
- response?

Answer 42

What are we consenting to? To follow the law, or to suffer the sanctions if we don’t?

Past consent current habit BUT not current obligation? (Of the original social contract binding everyone subsequently living in the society and consenting for them, until these individuals opt out and withdraw that consent)
- Consent of the subjects is the justification for political authority
o Governments “derive their powers from the consent of the governed” (American Declaration of Independence)
o “Men being … by nature all free, equal, and independent, no one can be put out of this estate and subjected to the political power of another without his own consent.” Locke.
- Criticism:
o How is consent given? Voluntarists require the actual consent of each subject, but not to every law or application thereof. Finnis says that this is absurd: the very reason we need authority is to substitute for unanimity in co-ordination problems that involve everyone in the community.
♣ BUT consent theorists don’t apply consent to ‘coordination problems’ but rather to the establishment of a political community: the mere capacity of one to violently affect another’s interests is insufficient for them both to be subject to law (contrary to what Kant argues) – the two must agree to unite under one jurisdiction.
o Consent is irrelevant: Even in this confined form there is the question of whether it is in fact given and if so, whether it would bind. Consent is not just consensus: it is a performative commitment. But like all promises, there are limits to validity (eg. mistake, coercion, duress), and consent can be revoked. Therefore, a consent theory can only be of value if we can explain why we also value a power to bind ourselves to obey. Hume thinks that consent is redundant because any plausible answer to why we are bound by a promise would also account for our obligation to allegiance.
♣ BUT there can be non-promissory conditions on obedience:
• Power to give and withhold consent serves as a protective function
• Consent allows people to establish political allegiances by creating or joining political societies (eg. the Commonwealth)
• Consent also establishes the acceptability of government, and might signal that it has a good chance of being effective (which is itself a precondition for justification of political authority)
o Many people have done nothing that constitutes consent: Plato thinks that continued residence counts, and Locke extends this to enjoyment of benefits of government. But this cannot count as consent because often there are no feasible alternatives.

Question 43

V. Voluntarist theories

V.2. Expressive Obligations

Answer 43

• We are bound to obey because that is an appropriate expression of gratitude (for all that the law gives us), respect (for good-faith efforts to guide us), and a sense of belonging to the community.
• Raz draws an analogy to friendship: we choose our friends, and as such owe obligations to them of loyalty. We also owe loyalty to the society to which we belong and with which we identify.

Question 44

V. Voluntarist theories
V.3. Fairness

• difficulties with benefits (3 give)
• compare gratitude
• what is the most influential voluntarist argument?

Answer 44

Difficulties:

1. Are we actually benefited?
2. If we are benefited, did we ask for the benefit?
3. Is the benefit connected in any meaningful way to the burden? (Contrast to estoppel and mutual benefit and burden doctrine)

Compare gratitude – connected to goodwill and emotions etc. (affective aspect)

• Most influential voluntarist argument: political obligation grounds in a bare willingness to benefit from a system of mutual restraint (Hart, Rawls). Those who accept the benefits of a fair scheme of cooperation have a duty to do their allotted part under the scheme.

Question 45

Scepticism and anarchism

Answer 45

There are plausible objections to each of the dominant justifications for the duty to obey the law. Each leaves significant gaps in the authority of law.
This is not an impossibility proof—only anarchists like Wolff think that justified political authority is impossible. But neither is it just the familiar problem that philosophical theories provide only a rough fit to our casuistic judgements. It is that the typical justifications for authority are all sensitive to context in a way that the claims of law are not.
The resulting scepticism about the obligation to obey has given rise to a debate about its significance. In assessing the significance of scepticism, one needs to bear in mind several points:
o Scepticism about political obligation flows from the special features of legal authority, in particular, its wide scope, its institutionalized character, and its moral fallibility. That is why the familiar principles by which we justify the authority of teachers, parents, doctors, or executors do not readily generalize to cover all laws.
o Most sceptical arguments are about over-reach. They do not deny that legal authority is often valuable, or that there is often content-dependent reason to do what law requires; they do not deny that some people have moral obligations to obey; they do not even deny that there are some laws that everyone has a moral obligation to obey. They deny only that the conscientious subject is bound to take the law at its word, that he must share the self-image of the state.
o Scepticism about obligation does not entail scepticism about legitimacy: one may affirm that law is entitled to coerce while denying that all of law’s subjects have a duty to obey it
o Scepticism is not the view that assuming an obligation to obey would be impermissible, a view of anarchists like William Godwin and Wolff and extreme individualists like Thoreau. Sceptics say that there are also other morally permissible attitudes to have towards the law.

Question 46

*Stavropoulos, ‘Obligations, Interpretivism and the Legal Point of View’ in Marmor (ed), The Routledge Companion to Philosophy of Law (2012)

Answer 46

Asks the question: What exactly are we bound by when we promise or consent to something?

NOT AVAILABLE ONLINE

Question 47

Terminology

Legal significance

Legal practice

Substantive normative fact

Nonnormative fact:

Orthodox view

Law (under the orthodox view)

Answer 47

Legal significance: a political action is legally significant if it changes legal rights and obligations.

Legal practice: all legally relevant actions taken together

Substantive normative fact: a fact about what is right or good or valuable, eg. the claim that people ought to participate in political decision-making.

Nonnormative fact: A fact that is not substantive normative, eg. the claim that X believes people ought to participate in it is nonnormative.

Orthodox view: A version of legal positivism that argues that the legally relevant aspects of institutional practice do not include any substantive normative facts (eg. what is right or good or valuable). Instead, institutions shape the law by communication.

Law (under the orthodox view): The set of norms produced by enactment of statutes (both the fact of their enactment and what their text means (i.e. what it logically entails)). Under competing views, communication is only part of what law is – law also includes norms that justify or exclude institutionally produced norms. Substantive normative considerations are therefore part of the explanation.

Question 48

Obligation through law
Dworkin, Justice for Hedgehogs (2011) ch 14

• what is this chapter concerned with?
• what to questions will not be addressed?
• what is the main question?
• how are performative and associational obligations affected by social facts?
• response (3 points made)

Answer 48

This chapter is concerned with our duty to aid, at a cost to ourselves, those who have a special performative (the relationship is made special through datable and voluntary acts like promising) or associational relationship (family, kinship, partnership, political association) with us – both give rise to “duties” or “obligations” ( = particularly strong responsibilities of aid).

• What is the difference between claims that someone ought to help a suffering human being and that he has a duty to?
• What is the connection between obligations and rights? (i.e. if you have an obligation to help me, do I automatically have a right to your help?)

These questions will not be addressed here: the main question is – how are the duties and obligations attached to your special relationships drawn from and affect what it is for you to live well?

Both performative and associational obligations are affected by social facts: what counts as a promise and excuse for ignoring it varies from context to context, and so does, ex. the extent of kinship. But the difficulty is that convention and social practice are matters of fact – how can they create and shape genuine moral duties? “Social practices seem to create performative and associational obligations from scratch. They seem alchemy: making something moral out of nothing moral”.

Responses:

• Conventions give rise to expectations and people have a moral right to have their expectations protected. This is incomplete because not all expectations give rise to rights.
• A general moral duty to respect useful and just social institutions: but this is not true of many institutions (ex. agricultural production arrangements among African tribes)
• Fairness requires me not to take advantage of social institutions without respecting the burdens of those institutions: but this explains very few role obligations, like parents have little advantage to gain from that role but still owe obligations. Also, gratuitous promises also incur obligation.

Question 49

Obligation through law
Dworkin, Justice for Hedgehogs (2011) ch 14

I – Promises

• what does Hume say re promises creating obligations?
• can we say that it creates an obligation because a promisee will rely on it?
• How does Dworkin place promising as a source of moral duty?
• what if someone makes a sincere promise and change their mind later?
  (i) has A harmed B?
  (i) Did A have a responsibility not to harm B in that way?

Answer 49

Promises create obligations, but why? Hume compares it to “transubstatiation or holy orders, where certain form of words, along with a certain intention, changes entirely the nature of an external object, and even of a human creature”.

We can’t say that it creates an obligation because the promisee will rely on it, because the promisee will not rely on it unless he supposes that the promise creates an obligation.

The answer is that promising is not an independent source of a distinct kind of moral duty – rather, it plays an important role in fixing the scope of a more general responsibility – not to harm others by first encouraging them to expect that we will act in a certain way and then not acting in that way, arising out of a duty to respect the dignity of others. “We have a general responsibility not to harm other people, and this sometimes includes a responsibility to fulfill expectations that we have deliberately encouraged.”
If I make a promise with no intention of acting on it, then I harm you by this very act, even if you don’t believe me or don’t act on it, because I harm your dignity, and harm myself because the insult to your dignity compromises the respect I should have for myself.

But what if I make a promise sincerely and then change my mind later –

• have I harmed you? Even if you would have acted in the same way regardless of my promise, I still harmed you because 1) I created a risk of harm which is in itself a kind of harm because I didn’t know whether you would have acted in the same way, and 2) I changed the information base on which you made decisions and then falsified that base.
• did I have a responsibility not to harm you in that way? I singled you out for encouragement so I’m not completely obligation-free, but it isn’t true that changing my mind would always be wrong. Where the line should be drawn depends on many factors (likelihood of harm, seriousness of encouragement, whether you in fact suffered harm, whether you should understand that circumstances change, and you necessarily run some risk when you rely on even deliberately cultivated predictions, that you should have appreciated the possibility of me changing my mind)

Question 50

Obligation through law
Dworkin, Justice for Hedgehogs (2011) ch 14

II – Associative Obligations

Why should the fact that everyone thinks I have a responsibility towards my son mean that I actually do?

• external + internal point

Answer 50

Answer: the creative interaction between our responsibility not to harm others and the social practices that refine that responsibility (ex. children need care – society placed this responsibility on parents – nobody else will do it – therefore parents have this responsibility).

But in other cases, the alternative to assigning people a special responsibility is that nobody will be assigned it (ex. relationship to sexual partners, colleagues, friends, children towards parents). Here it is the internal character of the relationship (not that some assignment of responsibility is needed) that drives the responsibility.

Question 51

Obligation through law
Dworkin, Justice for Hedgehogs (2011) ch 14

III – Political obligations (i.e. moral obligaiton to obey the laws of their community just because they are laws)

Does the mere fact that something is the law give me a further, distinctly moral, reason to obey it? (2 points)

Can political obligation be a kind of associational obligation?

What is the paradox?

Importance of dignity

Answer 51

Does the mere fact that something is the law give me a further, distinctly moral, reason to obey it?

Doesn’t mean obligation to obey every law – I can still think that some laws are so unjust as not to be obeyed (ex. civil disobedience – disobedience to protest unjust laws – is, according to some, justified, as an exception to the more general principle that requires obedience even to laws I disapprove of but don’t think wicked)

Anarchists say no (even in generally just legal communities) – we have an obligation if some independent reason argues that we must, but not simply because the law was adopted according to the constitutional procedures that the political practices and conventions of our community stipulate. They believe that nobody has an obligation unless they voluntarily accepted that obligation (not true except in case of naturalization), yet all attempts at defending the idea that political obligation depends on consent have failed, and in any case, many associational obligations are not voluntary, and the others are only partly voluntary. Thus, anarchists cannot win their case by appeal to some general principle about obligation and consent.

Can political obligation be a kind of associational obligation?

Most associational obligations are between small groups of people who know each other, whereas political boundaries are defined by a series of historical and geographical accidents, and their members do not know each other or share anything in common except saluting the same flag.

Nevertheless, Dworkin thinks that political obligation flows from political association in the same way as other associative obligations – coercive political organizations undermine the dignity of their members unless each accepts a reciprocal responsibiity to the others to respect collective decisions that meet appropriate conditions.

Here is the paradox: collective coercive government is essential to our dignity as we need the order and efficiency that only it can provide; at the same time, coercive government also threatens to make dignity impossible as some members of the community must exercise vast power over the rest and threaten punishment for disobedience.

Our answer depends on our interpretation of dignity: the principle of dignity that dictates that we must take responsibility for our own lives permits us to share it with others through ex. relationships of intimacy, or political association. This latter association we cannot avoid, but its vulnerabilities are consistent with our self-respect only if they are reciprocal.

Political obligation is more precisely defined than other associative obligations because what it requires is fixed by constitutional structure and history, legislation and adjudication. But its moral impact is often more contestable: ex. whether civil disobedience is appropriate. And in some terrible circumstances it is arguable that political obligation has lapsed entirely: when a government is no longer legitimate.

Question 52

Obligation through law
Dworkin, Justice for Hedgehogs (2011) ch 14

III – Political obligations (i.e. moral obligation to obey the laws of their community just because they are laws)

• On legitimacy

Answer 52

Political obligation holds only under the condition of legitimacy – which has two dimensions: depending on both how the government acquired its power and how it uses it. It’s distinct from justice – a government may be legitimate though not fully or even largely just, because it would be legitimate as long as its laws can reasonably be interpreted as recognizing that the fate of each citizen is of equal importance and that each has a responsibility to create his own life. Justice depends on the degree to which the system is successful. “A government can be legitimate … if it strives for its citizens’ full dignity even if it follows a defective conception of what that requires”.
Justice and legitimacy are a matter of degree – the framework may be legitimate but some discrete laws may not be. For Dworkin, if the ‘stain’ is small and can be corrected through the political process, then political obligation remains to a substantial degree, but if it is widespread and protected from cleansing through politics, then political obligation lapses entirely.

Question 53

*Dworkin, Law’s Empire (1986) ch 6

Answer 53

NOTE: Does he think that the existence of a true community justifies obligations, or merely identifies them?
Core objection: I don’t think in any political community that we can think of the four criteria are satisfied?

Question 54

*Dworkin, Law’s Empire (1986) ch 6

core summary

Answer 54

1) There are two principles of political integrity:
a. Legislative principle – lawmakers should try to make the set of laws morally coherent
b. Adjudicative principle – the law should be seen as coherent in that way so far as possible
2) In analyzing whether political life recognizes integrity as a political virtue:
a. We first recognize that in a non-utopian society, it is an independent ideal because it can conflict with other ideals like fairness and justice (eg. precedent might give a reason for judges to find one way even though it conflicts with their conception of fairness: McLoughlin).
b. Then we recognize the need for compromise, and distinguish between external and internal compromise, instinctively supporting the former while rejecting the latter because where a matter of principle is at stake, we object to arbitrary distinctions and prefer a system where different opinions are heard but a coherent scheme adopted.
c. Then we recognize that internal compromise cannot be objected to on the grounds of fairness (it is fairer than majority rule) or justice (it prevents instances of injustice that would otherwise occur, no matter on how arbitrary the ground).
d. Our instinctive objection, then, must stem from a third ideal – one based on integrity because internal compromise forces authorities to endorse principles to justify part of what it does that it must reject to justify the rest.
3) Lessons about integrity from the US constitution
a. We are attracted to integrity because we want ‘equality before the law’ – we accept that states are free to deny non-constitutionally required rights, but they must deny them to all and not to merely some.
b. When we talk about integrity, we talk about integrity within a political system and not across different ones – it would not violate the principle if one state outlawed abortion and another allowed it, and then others adopted an intermediate position.
4) Pragmatists object to the principle of integrity, but it can have many benefits both practical and moral:
a. Practical benefits include 1) less room for corruption and partiality, and 2) increased efficiency in the law stemming from people accepting that the law includes not only explicit legislation but also other principles and standards that the legislation assumes. In this way, law can expand and contract without the need for detailed legislation
b. The moral benefit stems from furthering our idea of self-governance. It requires us to accept that we are bound by more than the mere political decisions, but also the moral principles underpinning them. It fuses our moral and political lives, by forcing us, when making decisions based on conflicting principles, to interpret the common scheme of justice to which we are committed simply by virtue of citizenship
5) Common justifications for legitimacy include fair play, tacit consent and duty to be fair. But none of this really explains legitimacy: how is it that anything can justify the coercive power of the state? Why is it that democratic election justifies subjects being bound by institutions they did not elect and regimes they do not approve of? Why is it that, just because Parliament enacted something, we have an obligation to obey it?
6) Dworkin thinks that the best defense of political legitimacy is none of the above, but rather stems from fraternity, community and their attendant obligations: what he calls ‘communal obligations’ or ‘associative obligations’. This is because this argument assimilates political obligations to other obligations more familiar in nature: such as familial or cultural obligations.
a. Part I: A political community is a true community
i. First, he draws an account of obligations in true communities like familial, racial and cultural communities, concluding that, though some obligations in such settings can be defeated for blatant injustice, others are worthy of acceptance though they, too, can be unjust (eg. a daughter may have a responsibility to accept her father’s choice in marriage in a culture that has a good faith belief in the paternal protection of daughters, and where all other institutions appear just)
ii. Then, he concludes that a political community is like such communities and as such, is associative. He rejects a common argument that communal obligations can only arise by choice, because we don’t choose our colleagues or even all of our friends. In political communities, we face the same struggles in disentangling moral and legal issues pose by law, as those faced by a family or cultural group.
b. Part II: This is the best defence of political legitimacy
i. Out of the three models of community (de facto, rulebook and principle), only the principle model is truly associative and this provides a better defense of political legitimacy than the other models, because it assimilates political obligations to the general class of associative obligations and supports them in this way.

Question 55

Dworkin, Law’s Empire (1986) ch 6

I. does integrity fit?

External compromise

Answer 55

• In ordinary (non-utopian) politics integrity must be seen as an independent ideal because it can conflict with other ideas such as fairness and justice, in requiring us to support legislation we believe inappropriate in a just and fair society or uphold rights that we don’t think people would have there
  o Eg. judges deciding McLoughlin might think it unjust to require compensation for emotional injury, but because some victims have received in the past, they nevertheless have a reason for awarding it now
• Conflicts between ideals are common: there are even conflicts between fairness and justice, in that fair institutions can make unjust laws and vice versa.
• Thus, we must choose between competing ideas when deciding which political programs to support: majority rule is fair, but it can produce unjust results for individual rights. Which do we sacrifice?

Question 56

Dworkin, Law’s Empire (1986) ch 6 Notes

I. does integrity fit?

Internal compromise

Answer 56

• We all believe in political fairness and know that we hold different views about moral issues. But we would be abhorred by attempts at “checkerboard solutions” (those that represent all opinions in proportion of number of supporters) or internal compromise (eg. disagreement about racial discrimination to be solved by allowing discrimination on buses and permit it in restaurants) on arbitrary grounds where matters of principle are at stake (but not, for example, in zoning).
• Thus, we accept external compromise: that each opinion be given a voice in the deliberation process but we nevertheless settle on some coherent principle. “It must be a compromise about which scheme of justice to adopt rather than a compromised scheme of justice”
• But why should we object to checkerboard solutions?
  o Not fairness: it is fairer than a winner-takes-all scheme
  o Justice?
  ♣ Distinguish individual decisions (where compromise will always be more just than one alternative and less just than another – eg. pro-choice supporters would think that checkerboard is more just than prohibition and less just than licensing) from accepting it as a scheme in advance, with which we are concerned
  ♣ In this context checkerboard is just because it prevents instances of injustice that otherwise occur; rejecting it simply because it is arbitrary would be perverse because the alternative might be the general triumph of the principle we oppose
  ♣ So we don’t have any reasons of justice to oppose it

Question 57

Dworkin, Law’s Empire (1986) ch 6

I. does integrity fit?

Integrity and the constitution

Answer 57

• US history is full of checkerboard statutes: eg. slavery compromise in allowing 3/5ths of slaves in each state to determine the state’s representation in congress.
• BUT integrity is flouted not only in checkerboard statutes, but also when communities enact statutes each coherent in itself but cannot be defended together as expressing a coherent ranking of different principles of justice or fairness or procedural due process
• We know that sometimes this is inevitable, but we still accept integrity as an ideal and think compromise is wrong. This is accepted in the US Constitution: the 14th Amendment has been accepted to outlaw internal compromises over important matters of principle.
• There is an intimate connection between integrity and equal protection: when the SC ruled on abortion, it allowed states to prohibit abortions in the third trimester, but it must do so to all women, not just women born in even years. States can deny (certain) non-constitutionally required rights, but it must not do so arbitrarily.
• This shows that we want integrity because we want ‘equality before the law’

Question 58

Dworkin, Law’s Empire (1986) ch 6

II. Is integrity Attractive?

Answer 58

• Pragmatists object to integrity because they object to the idea that the state is an independent entity that can have principles to compromise – thus, there is no internal compromise, so long as each member who makes up the government is not acting inconsistently with his own principles.
  o Response: We don’t need to treat the state as a separate entity from members of government, but we should see community as a distinct moral agent because the social and intellectual practices that treat community in this way should be protected. We can borrow from the French concept of fraternity: a political society that accepts integrity as a political virtue becomes a special form of community, special in a way that promotes its moral authority to assume and deploy a monopoly of coercive force.
  o Benefits of integrity:
  ♣ Practical:
  • Less room for favoritisim, corruption, partiality etc.
  • More efficiency in the law: if people accept that the law includes not only explicit legislation but also other principles and standards that the legislation assumes, then it can expand and contract without the need for detailed legislation
  ♣ Moral:
  • Integrity furthers our idea of self-governance (Kant, Rousseau: freedom is based on the idea that we are in some sense the authors of the political decisions made by those who govern us), because it requires us to accept that we are bound by more than the mere political decisions. It fuses our moral and political lives, by forcing us to interpret the common scheme of justice to which we are committed simply by virtue of citizenship

Question 59

Dworkin, Law’s Empire (1986) ch 6

III. The puzzle of legitimacy

Answer 59

• The puzzle: how can anything justify coercion in politics? Just because a legislature is democratically elected, does it give the regime legitimate power over those who voted against it?
• A connected question: do citizens have genuine moral obligations just in virtue of law? Does the fact that legislatures have enacted something, in itself, give us a reason to obey?

Question 60

Dworkin, Law’s Empire (1986) ch 6

III. The puzzle of legitimacy

Tacit consent

Answer 60

• Some philosophers argue that modern democracies are legitimate because of a social contract: Rawls thinks that everyone would choose certain principles of justice as in his interests, and these principles are therefore the right ones for us. But this can only explain legitimacy if everyone has indeed signed an actual agreement to accept and obey political decisions – and the argument that tacit consent, by not emigrating when one turns eighteen, cannot be enough because there are no genuine alternatives.
• Even if the consent is genuine, it still doesn’t explain legitimacy because one does not have the choice to be free of sovereigns – when emigrating, he leaves a sovereign to join another.

Question 61

Dworkin, Law’s Empire (1986) ch 6

III. The puzzle of legitimacy

Duty to be just

Answer 61

• Rawls thinks that people would recognize a natural duty to support institutions that meet the test of abstract justice and by extension accept institutions not perfectly just. But this duty doesn’t explain legitimacy, because it doesn’t tie political obligation to the particular community to which those who have the obligation belong: it doesn’t explain why Britons owe an obligation to follow British law.

Question 62

Dworkin, Law’s Empire (1986) ch 6
III. The puzzle of legitimacy

Fair play

Answer 62

• If someone receives benefits under a political organization, then he has an obligation to bear its burdens. But this has two fatal flaws:
  o It assumes that people can incur obligations simply by receiving what they don’t seek and would reject if they had a choice – this is unreasonable
  o It is ambiguous – how do people exactly benefit from political organization? The natural answer is that you benefit if your ‘welfare’ under the state is what it would otherwise be. But what does ‘otherwise’ mean?
  ♣ Does ‘otherwise’ mean ‘any other political system that might have developed in the place of the current one? This would be too strong, because it can never be shown.
  ♣ Does it mean ‘with no social or political organization at all’? This is plainly too weak – for it is too easy to satisfy.
• In this sense, not only does fair play claim a duty from someone’s welfare being improved in a way they did not seek, but it claims a duty when someone is treated in a way that might not even improve his welfare over any appropriate benchmark.

Question 63

Dworkin, Law’s Empire (1986) ch 6

IV. Obligations of community

Circumstances and conditions

Answer 63

• Though we may think that benefits thrust upon us by strangers do not morally affect us because we didn’t ask for or choose to have them, but the position is different when we have “communal obligations” (special responsibilities that attach to membership in some group, such as family, friends and neighbours).
• If we accept this idea, then the objections to fair play no longer apply. But philosophers have largely ignored it because:
  o They assume it can only attach to emotional connections and not to large political communities
  o Such responsibilities holding in large, anonymous communities is nationalism and racism – sources of suffering and injustice
• But communal obligations do not arise out of choice: we owe obligations to colleagues whether or not we voted for them. So they must arise out of other conditions – Dworkin thinks reciprocity. He thinks that communal responsibility can arise only if the members regard the group’s obligation as:
  o Special: holding distinctly within the group and not as general duties its members owe to those outside the group
  o Personal: They run directly from one member to another and not just the group as a whole in a collective sense.
  o Flowing from a more general responsibility each has of concern for the well-being of other members.
  o This concern must be equal for all members.
• Thus we distinguish between a ‘bare community’ (one genetically or geographically linked) and a ‘true community’ – a bare community that also fulfills the four conditions of communal responsibility.

Question 64

Dworkin, Law’s Empire (1986) ch 6

IV. Obligations of community

Conflicts with justice

Answer 64

• Indeed a true community can be unjust in two ways:
  o Unjust to members because its conception of equal concern is defective (eg. a community that thinks that equal concern for men and women requires dominion over one)
  o Unjust to members outside the group (eg. discriminatory racial or religious groups)
• But the four conditions are a matter of interpretation, and justice inevitably features in this interpretation so we may conclude that apparently unjust responsibilities are not responsibilities at all.
• But we cannot always count on this, because an unjust responsibility can nevertheless be genuine. Sometimes, if the injustice is too great, it might cancel out the obligation (eg. racism), but other times, the injustice is not so great so we might hesitate (eg. can a daughter have an obligation to defer to her parents wishes in a society that allows parents to choose spouses for daughters and not sons, in the good faith belief that daughters need more paternal protection than sons? If the institution is otherwise seriously unjust, we might think that it cannot be justified. But if the institution is otherwise just, then we might conclude that the responsibility is genuine, but might be defeated by other considerations such as freedom. In this case, we may think that the daughter who contravenes this responsibility may owe her father an apology and should try to adhere to the other institutions of the community)
• This discussion supports the conclusion that political obligation is a form of communal obligation – the same struggles and distinctions disentangling moral and legal issues posed by law apply to the cultural or familial setting

Question 65

Dworkin, Law’s Empire (1986) ch 6

V. Fraternity and political community

Answer 65

Thesis: the best defense of political legitimacy is to be found in fraternity, community and their attendant obligations.
Models of community
- De facto model - members treat their association as a de facto accident of history and geography, so is not a true associative community at all: people may think this because 1) they consider others to be only a means to their own personal ends or 2) because they are committed to justice and think that there is no distinction between their own community and the world as a whole
- Rulebook model – members accept a general commitment to obey rules established in the way special to the community: like self-interested people who are competitors in a game with fixed rules, or who are parties to a limited and transient commercial arrangement.
- Model of principle – that political communities require a shared understanding more comprehensive than the rulebook model, in that it requires members to accept that their fates are linked through being governed by common principles, not just the rules that are hammered out

Question 66

*Green, ‘Associative Obligations and the State’ in Burley (ed), Dworkin and his Critics (2004)

Summary

Answer 66

Green doesn’t try to argue that people in fact do consent to political obligation; he argues the opposite – that consent is much rarer than what people actually think; that almost nobody consents. However, he argues that a general obligation to obey is unnecessary (and insufficient) to justify state authority.
1) Thesis: political obligation cannot be associative, and a version of consent theory is more apt to explain political obligation.
2) By consent theory, Green intends only the critical moral claim that “only if someone consents to obey the law does he have an obligation to obey it”, and not the factual claim that “everyone has an obligation to obey the law because everyone has consented to it”. The claim:
a. Doesn’t deny that there are other reasons for obeying the law
b. Asks us to see the law as a reason for acting as it requires and not acting on some otherwise valid reason for disobeying
c. Doesn’t claim that consent is sufficient for legitimacy: it has to meet substantive conditions on validity (eg. no obligation arises out of free and informed consent to obey the Nazi government)
i. NOTE: But WHY? Green explains that “consent binds only if there are reasons for holding that those actions that are signs of consent create duties because they are performed in the belief that performing them does create duties… The power to bind oneself to obey a tyranny, like the power to promise to commit murder, is morally valueless”. BUT WHYYYYYYY?????
3) Associative obligation merely identifies responsibilities; it doesn’t justify them. Indeed, Green has found no positive argument justifying the binding force of associative obligations.
i. NOTE: Dworkin replies that in most instances of non-political associative obligations, there is no obligation to obey. But this is just because of the nature of these relationships, and even in such relationships there are instances of obligations to obey, such as feeling obliged to go along with what your friend says you should do in the vacation (then it is natural to talk about ‘bending to his will’). It is simply because of the nature of political obligations that you see more instances of obligation to obey there than elsewhere.
b. The argument that citizens, analogous to children to their parents, need guidance from the state cannot stand because 1) this only applies to some people in some circumstances and 2) doesn’t explain why this guidance requires an obligation to obey rather than the state simply creating incentives to obey
c. As Locke argues, there is no reason why an obligation to obey is ever an appropriate response to a particular attitude: I might respect my elders, be grateful to my benefactors, etc., but none of it creates an obligation to obey them. This is exemplified, Green argues, by Dworkin’s arranged marriage example – she says that this is not a true obligation, but a mere prima facie deference to take account of her father’s wishes
4) Integrity also does not justify obligation to obey [NOTE: Dworkin replies that he’s not arguing the contrary! Of course integrity doesn’t, in itself, create obligations], because:
a. If integrity of a legal system stems from the personification of a community as Dworkin states, then there is no obligation to obey the state just as there is no obligation to obey the integrity of an individual.
b. Even if it is beneficial to personify integrity because it creates virtues such as allowing us to have a sense of integrity, none of the virtues suggests any ground of obligation (eg. openness, efficiency and moral autonomy do not require citizens to take the law as binding)
c. At any rate, such a personification creates as many vices (eg. bad faith and hypocrisy)
5) Therefore, Dworkin is wrong in saying that membership, without consent, is sufficient for there to be a duty. Consent is necessary. He responds to Dworkin’s objections:
a. Consent to the role of citizenship is not valid because of lack of alternatives: Green says that there are alternatives – eg. staying in a country and obeying its laws when conscience so counsels, but without accepting the moral authority of the state. Here, the law poses no obligation on him.
b. Role duties are not formed in an act of deliberate contractual commitment: Green says that consent doesn’t have to be one act, it can be a series of acts and omissions that together amount to the deliberate assumption of a role
i. NOTE: Dworkin asks, what does ‘deliberate’ mean? What must you do to consent? If I think that my actions aren’t an expression of consent, am I still consenting, all else being equal?
c. Role duties extend beyond explicit agreement to include the spirit or purpose of the relationship: Green argues that consent theory is not committed to the contrary view as consent can create duties both explicitly and implicitly
d. Role duties are often not thought to be voluntary: Green says that we cannot confuse wanting to assume an obligation with wanting (to perform) an obligation; we can assume an obligation we don’t want in order to get something that we do.
6) Conclusion: A general obligation to obey is neither necessary nor sufficient for the state to be generally justified in enforcing the law. Eg. it must also use the lease harmful means effective in securing a reasonable degree of compliance
a. NOTE: But Dworkin replies that people who don’t have an obligation to obey the law will only obey laws that capture their genuine moral obligations: if he thinks there’s no duty to respect a complex system of securities regulation (eg. financial regulation to improve GDP), then he won’t have an obligation to do it?
Dworkin also replies that the authority of the state to coerce those who have rejected its authority is also limited, because if authorities believe they don’t have a general moral justification to enforce the law, then then won’t have authority to enforce laws when there is no persuasive case for enacting those laws at the moment they are asked to enforce it.

Question 67

*Green, ‘Associative Obligations and the State’ in Burley (ed), Dworkin and his Critics (2004)

Notes

Answer 67

Background: associative obligation is an attractive model for the relationship between citizen and state because other forms of such memberships (eg. ethnic, religious or occupational groups) are not a matter of free choice and in any case the obligations imposed are not freely chosen.
Thesis: Responds to Dworkin’s challenge that sceptics “either deny all associative obligations or show why political obligation cannot be associative” on the second ground. A version of consent theory is more apt to explain political obligation.

Question 68

*Green, ‘Associative Obligations and the State’ in Burley (ed), Dworkin and his Critics (2004)

I. Legitimacy and Consent

Answer 68

• Consent theory sometimes equivocate two separate claims:
  o Only if someone consents to obey the law does he have an obligation to obey it (a critical moral thesis)
  o Everyone has an obligation to obey the law because everyone has consented to obey it (an explanatory thesis)
• The second is obviously false, so by consent theory, Green intends only the first claim. Features of the claim:
  o It doesn’t deny that there are other reasons for obeying the law (self-interest, courtesy, fear etc.)
  o Its content is to obey the law (of one’s own state) and can yield to other urgent considerations, but before yielding the law asks us to see the law as a reason for acting as it requires and not acting on some otherwise valid reason for disobeying
  o It doesn’t claim that consent is sufficient for legitimacy: other conditions have to be fulfilled (eg. consent is free and informed) and they have to meet substantive conditions on validity (eg. no obligation arises out of (even free and informed) consent to obey the Nazi government)
  ♣ NOTE: But WHY? Green explains that “consent binds only if there are reasons for holding that those actions that are signs of consent create duties because they are performed in the belief that performing them does create duties… The power to bind oneself to obey a tyranny, like the power to promise to commit murder, is morally valueless”. BUT WHYYYYYYY????? So this is saying that you can never have immoral obligations – but who decides what is immoral?

Question 69

*Green, ‘Associative Obligations and the State’ in Burley (ed), Dworkin and his Critics (2004)

II. Obligations of True Community

Answer 69

• Associative membership identifies our obligations and doesn’t justify them – how can they ever be validated? What turns one’s duty as neighbor into a moral duty?
• We can seek justifications for single associative practices (eg. family, friendship, neighbourhood etc) but how do we validate a “more general practice of associative obligation itself”? If we can’t, then there is no point to association in the abstract. To answer, Dworkin relies on the moral relationships in groups like families, friendships etc. and distinguishes between a bare community and a true community.
• But he doesn’t explain what exactly it is about true communities that accommodates the state’s claim to authority, and his central example, that of fraternity, goes against it. Fraternity does not impose an obligation of obedience, merely mutual aid and respect [NOTE: But doesn’t it impose an obligation for both siblings to obey their parents?]
• Parent-child relationships might be better – here, two common justifications for authority relations apply:
  o Need for obedience in child rearing. This cannot be extended to political authority, because it must apply to adults of mature judgment, and though they may need authoritative guidance sometimes, this only applies to some people and in some areas. A deeper objection is that even if there are certain things that only the state can do, it doesn’t mean that the state can only do them if citizens recognize an obligation to obey it.
• Why is an obligation of obedience ever an appropriate expression of some attitude? Locke says that one may owe honour to an ancient, defence to his child, gratitude to a benefactor etc. but none of this gives any authority or right to any one of making laws over him from whom they are owing.
  o This is illustrated by Dworkin’s arranged marriage example – what the daughter owes in this case is not an obligation but prima facie deference, as it can be no more than a duty to consider her father’s wishes.
  ♣ NOTE: But Dworkin never argued that there was an ‘obligation to defer’ – there is, as Green recognizes, an ‘obligation [though Green uses the word duty] to consider their father’s wises’. The key here is that there is an obligation, and it doesn’t matter that the obligation is not to obey or whatever, and it doesn’t matter that it can be overridden by other things like liberty.
• Therefore there is no positive argument to show associative obligations are entitled to the binding force they claim.

Question 70

*Green, ‘Associative Obligations and the State’ in Burley (ed), Dworkin and his Critics (2004)

III. Integrity and Obedience

Answer 70

• Why is integrity important? If it is important only because it shows that the conditions of true community are satisfied, then it adds nothing.
• We start by considering personal integrity – it creates no duty to obey those who display the virtue. It is the same when integrity is exhibited not by a person but by a community personified.
• Dworkin says that personifying a community is advantageous because it makes possible a sense of virtues such as integrity, but it does the same in relation to vices – such as bad faith and hypocrisy. In any case, none of the virtues suggests any ground of obligation.

Question 71

*Green, ‘Associative Obligations and the State’ in Burley (ed), Dworkin and his Critics (2004)

IV. Individuality and community

Answer 71

• A social account of legitimacy doesn’t have to be normative like Dworkin thinks – it can be evaluative. Consent can make it normative.
• Dworkin says that consent to the role of citizenship would not be valid because a person doesn’t have any alternatives to membership in a state. However, Green responds and says that this is not true – there are other alternatives, such as remaining peacefully in a country, but reject the moral authority of the state. As such, they would be in though not of the political community – the law imposes no obligation on them.
• Dworkin says that role duties are not formed in an act of deliberate contractual commitment like joining a club: Green responds that consent theorists don’t require duties to be assumed in “one act”, nor that the consent be contractual – they might be assumed by actions, omissions and series of actions and omissions collectively amounting to the deliberate assumption of a role

Question 72

Obligation to law: consent

Hume, ‘Of the Original Contract’ in his Essays: Moral, Political and Literary (1777, repr 1987)

Answer 72

Political power attains its legitimacy not through a social contract (which bases our moral obligation to obey on our mutual consent or promise to be governed) because it offers no basis for any moral obligation to keep that promise. The political obligation of obedience, therefore, is on the same footing as the obligation of promise-keeping, or “fidelity”. This gives rise to a dilemma: if there is moral basis or the duty of fidelity to promises, then whatever basis that might be, it also provides a moral basis for political obedience. If there is no moral basis, then the contract theory won’t be able to give us any moral basis to obey the law.
It is indeed undeniable that, at first, government was founded on a contract, where people of roughly equal physical strength consented to be bound under the same laws, to be governed by the same chieftain, renouncing their liberty for the sake of peace and order. But even this consent was imperfect, because the chieftain governed by persuasion more than command. More than this, however, today’s government is so far away from the ‘original contract’ in both time and nature, that it cannot account for consent today. Also, all governments that exist at present founded originally on usurpation or conquest, without even any pretense of a fair consent. Thus, even the original social contract was not really by consent.
Further objections to Locke’s social contract:
1) For consent to carry weight, it must be voluntary: there can be no moral duty to keep promises that one is coerced into making. Poor people cannot afford to emigrate, and so their act of remaining in the country cannot be seen as consent.
2) The only reason why we have a duty to keep promises is that it maximizes society’s utility, so we should just leave the promise out of it and say that obedience is justified because it maximizes utility?

Question 73

Obligation to law: authority

Raz, The Authority of Law (1979, 2nd ed 2011) ch 12

Answer 73

Thesis: There is no obligation to obey the law (absolute or even prima facie), regardless of one’s conception of the good legal system.

Question 74

Obligation to law: authority

Raz, The Authority of Law (1979, 2nd ed 2011) ch 12

I. The character of the obligation

Answer 74

For there to be a ‘strong’ obligation to obey the law of a legal system:

1) There must exist some reason which makes it desirable, all else being equal, that the law always be followed, and this reason must include the fact that the actions are required by law as a non-redundant premise.
2) There must be more than a prima facie obligation to do as the law requires: obligation entails a “reason to obey in all circumstances defeated only by considerations which are legally recognized as excusing from prosecution or conviction”
3) This obligation must entail disregarding countervailing moral reasons, no matter how strong. The obligation is exclusionary.

• An obligation to obey entails a reason to do what the law requires, but the converse is not true: there are many other reasons to do what the law requires.
• If I obey the law because I don’t want to aggrieve my family, then although the law is a reason for conforming it is only an incidental reason applicable under special circumstances to the particular case. The obligation to obey the law is a general obligation applying to all laws and all subjects
• An obligation to obey the law of a legal system presupposes the existence of some reason that makes it desirable, all else being equal, that the law always be followed
• The law’s claim to obedience is more than the conception of the obligation to obey the law as a prima facie reason to obey, for the claim is not defeated by all violations of law because the law has its own adjudicative machinery (courts, prosecutorial discretion [prerogative of pardon?]) that assumes the right to determine in what conditions legal requirements are defeated by other considerations. Therefore, it entails “a reason to obey in all circumstances defeated by considerations which are legally recognized as excusing from prosecution or conviction.”
  o Eg. If I steal medicine because otherwise I would die, it is not a violation of my duty to obey the law not because the prima facie obligation is defeated by stronger moral reasons, but because the law provides for mechanisms that recognize these moral reasons as stronger (eg. defences).
• However, this obligation is not absolute, but exclusionary. Courts need not deny the moral reasons for breaking the law, but they maintain that it ought not be broken and that these reasons need be ignored. Thus, to establish an obligation means to establish that this claim is justified.

Question 75

Obligation to law: authority

Raz, The Authority of Law (1979, 2nd ed 2011) ch 12

II. Moral reasons to obey
Thesis: moral reasons to obey cannot found a general obligation

Even bad laws need to be obeyed

Answer 75

Even bad laws need to be obeyed because otherwise it sets a bad example and inclines others to disobey, and shows a lack of judgment making the individual less likely to obey good laws

Objection

1) It at best provides an ordinary prima facie reason to obey
2) The argument doesn’t apply in many cases: sometimes breaking the law revolts people and strengthens the law-abiding inclinations of the population, and other times it won’t set an example for anyone (eg. undetectable crimes)

Question 76

Obligation to law: authority

Raz, The Authority of Law (1979, 2nd ed 2011) ch 12

II. Moral reasons to obey
Thesis: moral reasons to obey cannot found a general obligation

Obligations are based on promises or undertakings.

Answer 76

1) They are often taken under duress or coercion which deprives them of moral validity (eg. conscripts swearing an oath of allegiance)
Even though they are sometimes taken voluntarily (eg. swearing into office) most people don’t do this. Ordinary submission to the law cannot be interpreted as a promise, which requires expressed intention to be bound

Question 77

Obligation to law: authority

Raz, The Authority of Law (1979, 2nd ed 2011) ch 12

II. Moral reasons to obey
Thesis: moral reasons to obey cannot found a general obligation

Estoppel and quasi-estoppel

Answer 77

Estoppel and quasi-estoppel (X by his behavior knowingly induces Y to rely on him, should not other things being equal frustrate the expectation if doing so affects them adversely) – if I tell you that I’ll obey the law so that you obey it, then I should obey it too.

Objections

1) Often when we break the law we don’t affect others adversely
2) Most of us don’t induce this kind of reliance, at least not knowingly, because me following the law in reliance of the fact that others would do it too is no more relying on an estoppel than Londoners staying in London in the reliance that others would stay there too is a moral reason for Londoners not to leave the city
3) Morally pernicious: it suggests that everyone is inevitably obliged to obey the law however good or bad the law might be

Question 78

Obligation to law: authority

Raz, The Authority of Law (1979, 2nd ed 2011) ch 12

II. Moral reasons to obey
Thesis: moral reasons to obey cannot found a general obligation

Democracy

Answer 78

participation in voting leads others to believe that they are consenting to the majority decision procedure (estoppel argument) (Singer)

Same as estoppel arguments

(1) Often when we break the law we don’t affect others adversely
2) Most of us don’t induce this kind of reliance, at least not knowingly, because me following the law in reliance of the fact that others would do it too is no more relying on an estoppel than Londoners staying in London in the reliance that others would stay there too is a moral reason for Londoners not to leave the city
3) Morally pernicious: it suggests that everyone is inevitably obliged to obey the law however good or bad the law might be)

Question 79

Obligation to law: authority

Raz, The Authority of Law (1979, 2nd ed 2011) ch 12

II. Moral reasons to obey
Thesis: moral reasons to obey cannot found a general obligation

Democracy: a fair way of achieving a compromise between competing and legitimate aims

Answer 79

Objection:

The duty to support a just institution is insufficient to establish an obligation to obey the law

Question 80

Obligation to law: authority

Raz, The Authority of Law (1979, 2nd ed 2011) ch 12

II. Moral reasons to obey
Thesis: moral reasons to obey cannot found a general obligation

Many have moral reasons to obey the law, but this cannot be stretched to found a general obligation to obey the law

Answer 80

1) A common counter-argument is that bad laws need to be obeyed because otherwise it sets a bad example and inclines others to disobey, and shows a lack of judgment making the individual less likely to obey good laws

2) Objections:
a. It at best provides an ordinary prima facie reason to obey
b. The argument doesn’t apply in many cases: sometimes breaking the law revolts people and strengthens the law-abiding inclinations of the population, and other times it won’t set an example for anyone (eg. undetectable crimes)

Question 81

Obligation to law: authority

Raz, The Authority of Law (1979, 2nd ed 2011) ch 12

II. Moral reasons to obey
Thesis: moral reasons to obey cannot found a general obligation

• Another argument: obligations are based on promises or undertakings

Answer 81

• Objections:
  o They are often taken under duress or coercion which deprives them of moral validity (eg. conscripts swearing an oath of allegiance)
  o Even though they are sometimes taken voluntarily (eg. swearing into office) most people don’t do this. Ordinary submission to the law cannot be interpreted as a promise, which requires expressed intention to be bound

Question 82

Obligation to law: authority

Raz, The Authority of Law (1979, 2nd ed 2011) ch 12

II. Moral reasons to obey
Thesis: moral reasons to obey cannot found a general obligation

Third argument: estoppel and quasi-estoppel

Answer 82

• X by his behavior knowingly induces Y to rely on him, should not other things being equal frustrate the expectation if doing so affects them adversely) – if I tell you that I’ll obey the law so that you obey it, then I should obey it too.
• Objections:
  o Often when we break the law we don’t affect others adversely
  o Most of us don’t induce this kind of reliance, at least not knowingly, because me following the law in reliance of the fact that others would do it too is no more relying on an estoppel than Londoners staying in London in the reliance that others would stay there too is a moral reason for Londoners not to leave the city

Question 83

Obligation to law: authority

Raz, The Authority of Law (1979, 2nd ed 2011) ch 12

III. Prudential reasons to obey

Answer 83

• These include reasons such as legal and social sanctions, but there is no general prudential policy that applies to all laws because everyone has some areas of law where the risks run by breaking the law are minimal and prudential considerations would support disregarding it altogether and acting as if there were no prudential reasons against breaking the law

Question 84

Obligation to law: authority

Raz, The Authority of Law (1979, 2nd ed 2011) ch 12

IV. Good law without an obligation to obey

Answer 84

• It is possible to judge a legal system good without acknowledging an obligation to obey its laws.
  o There are often independent moral reasons for conforming to the laws of a good legal system than to those of a bad legal system – the general moral quality of the system encourages conformity by giving a reason to trust the moral value of each inidividual law.
  o There are two main legal techniques how law serves its functions: to provide prudential reasons (mala per se) and to set out, in a public way, the requirements of organized society (mala prohibita). The first has already been addressed, and the second is not a reason at all: it merely allows those motivated by the appropriate reasons to take part in co-operative enterprises. It does not give rise to an obligation to obey the law.
• The upshot of the discussion in this section is that the law is good if it provides prudential reasons for action where and when this is advisable and if it marks out certain standards as socially required where it is appropriate to do so.
• If the law does so properly then it reinforces protection of morally valuable possibilities and interests and encourages and supports worthwhile forms of social co-operation. But neither of these legal techniques even when admirably used gives rise to an obligation to obey the law.

Question 85

Raz, The Authority of Law (1979, 2nd ed 2011) ch 13

Thesis:

Answer 85

assuming there is no general obligation to obey the law, a morally permissible attitude to the law is respect. Those who hold this attitude have a general reason to obey it, and this is morally permissible so long as it is not a generally wicked legal system. Respect is divided into cognitive respect (respect for moral value of the law) and practical respect (respect for practical reasons, such as guilt for breaking the law). Practical respect can lead people to obey the law, which appears to contravene the lack of a general obligation. But an analogy can be drawn to friendship: often, friendship alone is a justification for doing something, independently of whether the friend will find out and how they will react. Respect simply gives those who feel it a reason to obey that others do not. This doesn’t mean that all law should be respected, because respect involves a moral complacency that the law will be morally sound, a confidence that may or may not be misplaced. Sometimes, loyalty to one’s people may require active opposition to the law rather than obedience: the question as to which attitude is appropriate is not about the proper attitude to law, but the nature of the good society and the good law.

• If there is no general obligation to obey the law, then citizens can have two morally permissible attitudes to the law: 1) no general moral attitude and 2) respect.
• Two components of respect:
  o Cognitive respect: respect for the moral value of the law (democracy, fairness, contribution to social progress, protection of individual rights)
  o Practical respect: hostility to law-breakers, approval of law-abiding behavior, shame and guilt for breaking the law etc.
• If there is no general obligation to obey, then it should be morally impermissible to have an attitude of respect, because obedience is generally justified by practical respect for the law. The purpose of this essay is to argue that this is not the case – having no moral attitude is morally permissible, but so is having respect for the law.
  It will be argued that there is an attitude to law, generally known as respect for it, such that those who have it have a general reason to obey the law, that their reason is their attitude, the fact that they so respect the law, and that it is morally permissible to respect the law in this way (unless it is a generally wicked legal system).

Question 86

Raz, The Authority of Law (1979, 2nd ed 2011) ch 13

I - A Paradoxical Claim

Answer 86

Distinguish (primarily) cognitive respect and (primarily) practical respect.
- Primarily cognitive attitude consists in the appropriate cognitions concerning the moral value of law and affective and practical inclinations and dispositions appropriate to them
- Primarily practical attitude consists largely of a disposition to obey the law (i.e. to do that which it requires because it so requires, because it is right as a matter of moral principle to obey it) – it recognizes the moral reasons for obeying the law
The absence of an obligation to obey the law seems to undermine the practical attitude (because it should encourage people to be their own arbiters rather than follow the law because it is the law) but it does not undermine the cognitive attitude.
Having concluded, in the previous essay, that there are no such general moral reasons to obey the law, it seems to follow that practical respect for law is an unjustifiable attitude. But can it be that respect for law does not rest on an obligation to obey but is a substitute for it? Can one say that one’s respect for the law obliges one to obey it ? I shall defend this possibility through drawing an analogy with friendship.

Question 87

Raz, The Authority of Law (1979, 2nd ed 2011) ch 13

II - Friendship – an analogy

Answer 87

Imagine that one says ‘I will help Mary because she is my friend’. There is no surprise in invoking friendship as a reason for action: it 1) implies a certain degree of goodwill and 2) creates patterns of interaction and thus generate expectations and 3) there are actions one must perform because failing to do so will be wrong given the friendship (even if the friend does not discover the failure).
Common to all cultural concpetions of friendship is the fact that the fitting action is required of a friend regardless of whether or not he desires to perform it, and whether or not the friend will learn of it or be affected by it. Friends have reasons which others do not.
It is morally permissible not to have friends at all and morally permissible not to be friends with any particular person. Obligations of friends are self-imposed. They depend on a relationship which one could have avoided and which one can terminate.
The obligations through friendships differ from voluntary obligations like promises, because they are by-products of the relationship rather than its point and purpose.

Question 88

Raz, The Authority of Law (1979, 2nd ed 2011) ch 13

III - Respect for law: the analogy

Answer 88

It is not my intention to suggest that respect for law is a case of friendship. But there are parallels:
- Respect for law is, like friendship, a complex and multi-faceted phenomenon.
- Whether or not one respects the law is up to the individual.
- Whether or not one respects the law is, given information about the law and the society, revealing of one’s character (attitude to authority etc.)
- Respect is itself a reason for action. Those who respect the law have reasons which others have not. These are expressive reasons. They express their respect for the law in obeying it, in respecting institutions and symbols connected with it, and in avoiding questioning it on every occasion.
- Social conventions and cultural precepts partly determine the appropriate or fitting ways to express respect.
It may be objected that there is one major disanalogy between friendship and practical respect, namely that the obligation of friends is but one aspect of a complex human relationship whereas practical respect is first and foremost a recognition of a reason to obey the law.
- Respect for law is an aspect of identification with society (the reverse of alienation). A person identifying himself with his society, feeling that it is his and that he belongs to it, is loyal to his society. His loyalty may express itself, among other ways, in respect for the law of the community.
Respect may but need not manifest themselves through respect for the law. Therefore, even if loyalty to one’s community is obligatory, respect for law is not.

Question 89

Raz, The Authority of Law (1979, 2nd ed 2011) ch 13

IV - The worth of respect

Answer 89

Conclusion: There is no general moral obligation to obey the law, not even in a good society. It is permissible to have no general moral attitude to the law, to reserve one’s judgment and examine each situation as it arises. But in all but iniquitous societies it is equally permissible to have ‘practical’ respect for the law.
For one who thus respects the law his respect itself is a reason for obeying the law. For the person who respects the law there is an obligation to obey. His respect is the source of this obligation. On the other hand, even where loyalty to one’s society is morally appropriate, or even obligatory, expressing it through respect for law may not be appropriate. Their moral character or behaviour may make them unfitting for the moral trust which respect for law expresses.
The question as to when the one or the other attitude is appropriate is no longer a question about the proper attitude to law; it is a question about the nature of the good society and the good law.

Question 90

Legitimacy without an obligation

Applbaum, “Legitimacy without the Duty to Obey”, Philosophy and Public Affairs 38 (2010)

Answer 90

This article aims to make conceptual room for thepower-liabilityaccount of political legitimacy: political legitimacy is a form of normative power that entails moral liability, but not necessarily a moral claim-right that entails moral duty

Question 91

Legitimacy without an obligation

Applbaum, “Legitimacy without the Duty to Obey”, Philosophy and Public Affairs 38 (2010)

I – What is legitimacy?

Answer 91

• Some might hold that a state, in virtue of its legitimacy, has standing as a party to international treaties, an entitlement to be recognized by other states, the right to control territory and forcefully defend its borders, immunity from outside interference, and the normative power to impose moral obligations on its residents. Others hold that a legitimate state simply is one that is justified in exercising coercion.
• For some, a legitimate ruler simply is a lawful ruler. For others, a legitimate ruler must be a just ruler.
  The notions of legitimacy behind these positions diverge enough to call into question whether their proponents agree about what they are disagreeing about. The same term, of course, can come to refer to different concepts

Question 92

Legitimacy without an obligation

Applbaum, “Legitimacy without the Duty to Obey”, Philosophy and Public Affairs 38 (2010)

II - Must legitimacy entail duty?

Answer 92

The standard view is that legitimacy entails two other normative relations: the moral obligation of those legitimately ruled by the ruler to obey, and the moral immunity of the ruler from coercive interference in the exercise and enforcement of legitimate rule. I disagree.
Joseph Raz is the contemporary philosopher who has made the strongest case for a conceptual connection between legitimate authority and obligation (though he has not, to my knowledge, taken a stand on immunity). Raz has convincingly argued that the exercise of legitimate authority by an actor entails some change in the normative situation or status of another. Otherwise, having authority cannot be distinguished from merely having a moral permission to causally affect another.
I think Raz is right that legitimate authority is more powerful than mere permission. But there may be other ways that legitimate authorities can change the normative situation of others aside from obligating them – what are these ways?

Question 93

Legitimacy without an obligation

Applbaum, “Legitimacy without the Duty to Obey”, Philosophy and Public Affairs 38 (2010)

III - Legitimacy as a Hohfeldian power

Answer 93

Hohfeld distinguished four legal advantages that A can have in relation to B, which, correlatively, entail four legal disadvantages of B in relation to A.
o If A has arightagainst B, B has a correlativedutyto A;
o if A has aprivilege(or liberty, or permission, or justification-right) with respect to B, B hasno-rightagainst A;
o if A has a powerwith respect to B, B faces aliabilityfrom A; and
o if A has animmunityfrom B, B has adisabilitywith respect to A.
Each legal advantage also has its negation:
o Having aclaim-rightis the opposite of havingno-right;
o aprivilegeis the opposite of aduty;
o apoweris the opposite of adisability; and
o Animmunityis the opposite of aliability.
On my account, legitimacy is a kind ofmoralpower, the power to create and enforcenonmoral(or perhaps I should say not yet moral) prescriptions and social facts. If Hohfeld’s scheme is correct, when A has a moral power with respect to B, and B must have a correlativemoral liability. What is this liability?
Valid law generates, among other legal advantages and disadvantages, valid legal obligations. At issue is whether valid legal obligations are of necessity moral obligations.
The power-liability account says no: whether hypothetical imperatives are also moral imperatives is a conceptually open question to be settled by substantive moral argument in light of morally relevant empirical circumstances

Question 94

Legitimacy without an obligation

Applbaum, “Legitimacy without the Duty to Obey”, Philosophy and Public Affairs 38 (2010)

IV - An objection from overridden duties

Answer 94

Why not account for justified violations of legitimate law by introducing duties that are overridden or outweighed? That way, legitimate authority always entails duty, but not always dispositive duty.
I think Kant has the correct account of apparent conflicts of moral duty: duties are conclusory.Groundsfor duties can be overridden and outweighed, but a specified duty, if it is a duty, is not overrideable or outweighable.

Question 95

Legitimacy without an obligation

Applbaum, “Legitimacy without the Duty to Obey”, Philosophy and Public Affairs 38 (2010)

V - A Holmesean Objection

Answer 95

Perhaps the duty claimed by the legitimacy-entails-duty view is disjunctive: legitimate law imposes on its subjects a duty either to comply or to accept the legal consequences. This, famously, is Oliver Wendell Holmes’s analysis of the legal duty that a contract imposes: there is no duty not to breach a contract. Rather, there is a disjunctive legal duty either to perform the contract or to compensate for breach.
This is a legal formulation, not a moral one; the moral parallel would be the view that legitimate law entails a moral duty that has the following disjunctive structure: either obey the law or accept the legal penalty. So the legitimacy-entails-liability view collapses back into the legitimacy-entails-duty view. Nothing in Raz’s account prevents the entailed moral duty from having such a structure.
Whether or not Holmes gives a correct analysis of the legal duties that contract law imposes, legal duties are not in general disjunctive in that way - even if Holmes is correct about the disjunction in the law of contracts, this does not render the moral obligation to keep the underlying promise disjunctive.
Therefore, the view that legitimate law entails a moral duty that contains the disjunct, “either comply with the (nondisjunctive) legal duty or accept the legal consequences,” though coherent, is not perspicacious.

Question 96

Smith, ‘Is there a prima facie obligation to obey the law’, Yale Law Journal 82 (1973).

Intro

Answer 96

I suggest that it is not at all obvious that there is such a general moral obligation to obey the law, that this is something that must be shown, rather than so blithely assumed.
I shall argue that, although those subject to a government often have a prima facie obligation to obey particular laws (e.g., when disobedience has seriously untoward consequences or involves an act that is mala in se), they have no prima facie obligation to obey all its laws.
1º “prima facie obligation” = S has a prima facie obligation to do an act X if, and only if, there is a moral reason for S to do X which is such that, unless he has a moral reason not to do X at least as strong as his reason to do X, S’s failure to do X is wrong.
A specific statement asserts that some particular person has a prima facie obligation to perform some particular act. In contrast, a generic statement asserts that everyone who meets a certain description has a prima facie obligation to perform a certain kind of act whenever he has an opportunity to do so.
S thus has a generic prima facie obligation to do X if, and only if, S meets some description D and the generic statement “Those who are D have a prima facie obligation to do X” is true.
2º As used here, the phrase “prima facie” bears a different meaning than it does when used in legal writing (evidence sufficiently persuasive so as to require rebuttal): if there is a prima facie obligation to obey the law in the sense in which I am using the phrase, the mere illegality of an act is always relevant to the determination of its moral character, despite whatever other reasons are present

Question 97

Smith, ‘Is there a prima facie obligation to obey the law’, Yale Law Journal 82 (1973).

Section I – criticism of theories

• First, those which rest on the benefits each individual receives from government;

Gratitude:

Answer 97

♣ the most important benefits of government are not accepted by its citizens, but are rather enjoyed regardless of whether they are wanted, and a government typically confers these benefits not to advance the interests of particular citizens but as a consequence of advancing some purpose of their own.
♣ even if a debt of gratitude is owed, when a person owes a debt of gratitude towards another, he does not necessarily acquire a prima facie obligation to display his gratitude in the most convincing manner (or any defined manner at all)

Question 98

Smith, ‘Is there a prima facie obligation to obey the law’, Yale Law Journal 82 (1973).

Section I – criticism of theories

• First, those which rest on the benefits each individual receives from government;

o Fair play:

Answer 98

♣ The obligation seems to arise most clearly within small, voluntary cooperative enterprises
♣ When disobedience in such a group benefits the other members, or at least doesn’t harm them, my moral position is surely different
♣ Therefore, even when co-operation is perfect, considerations of fairness do not establish that members of a cooperative enterprise have a simple obligation to obey all of its rules, but have rather the more complex obligation to obey when obedience benefits some other ember or when disobedience harms the enterprise. This obligation is therefore more complex than what Hart and Rawls assumed.
♣ Moreover, perfect cooperation is unrealistic; in reality, there will inevitably be disparity among the members’ sacrifice in obeying rules. Thus, the obligaiton requires different things of different members, depending on their previous pattern of compliance and the amount of sacrifice they have made.
♣ NOTE: more recently, Rawls abandoned the argument from fair play for an obligation, but instead distinguishes between obligations (e.g., to be fair or to keep promises) and natural duties (e.g., to avoid injury to others), maintainig that fair play gives rise to a duty to obey all laws that are not grossly unjust. Smith dismisses this argument for reasons that I (Chen) don’t really understand.

Question 99

Smith, ‘Is there a prima facie obligation to obey the law’, Yale Law Journal 82 (1973).

Section I – criticism of theories

• Second, those relying on implicit consent or promise;

Answer 99

o People simply never agreed
o Implicit promise or consent?
o Through what? Residence? Use of the protection of the law? These don’t constitute any usual kind of consent to a government or promise to obey its laws. It’s possible that some people do take this view, but this is “surely true only of a very small number, consisting entirely of those enamoured with the social contract theory”.
o There is a broader sense of “consent” or “promise”? Smith says that he knows of no ways to meet this argument, as he knows no other definition suitable for this purpose.

Question 100

Smith, ‘Is there a prima facie obligation to obey the law’, Yale Law Journal 82 (1973).

Section I – criticism of theories

• Third, those which appeal to utility or the general good.

o act-utilitarianism

Answer 100

♣ Argument 1: obedience to the law supports the continued existence of government and, hence, always has good consequences. From this it follows that there is a prima facie obligation to obey the law)
• Quickly disintegrates as its principle of prima facie obligation is ambiguous (but Smith also acknowledges that nobody has specifically advanced this theory)
♣ Argument 2 (generalization argument): No one can have a right to do something unless everyone has a right to do it. Similarly, an act cannot be morally indifferent un-less it would be morally indifferent if everyone did it. But everyone breaking the law will destroy government, which is necessary for maintaining the general good. Hence, since the consequences of general disobedience would be disastrous, each person subject to law has a prima facie obligation to obey it.
• We cannot assume that just because if everyone committed a certain act there would be disastrous consequences, there is a prima facie obligation not to commit acts of that kind
• Also, the disastrous consequences assumption surely only works with some laws and not all
• Therefore, this argument can only establish a specific prima facie obligation to obey the law when obedience is optimific.

Question 101

Smith, ‘Is there a prima facie obligation to obey the law’, Yale Law Journal 82 (1973).

Section I – criticism of theories

• Third, those which appeal to utility or the general good.

o rule-utilitarianism

Answer 101

o focus on the consequences of everyone accepting (although not always following) a certain set of rules)

♣ In Brandt’s theory (most developed theory), there can be a generic prima facie obligation to obey the law within a given society if, and only if, general acceptance of the rule “Obey the law,” as a rule of prima facie obligation, would have better consequences than were no rule accepted with respect to obeying the law, as well as better consequences than were some alternative rule accepted
♣ But it is a mistake to believe that unless people are convinced that they have a generic prima facie obligation to obey the law, they cannot be convinced that in most circum-stances they have a specific prima facie obligation to obey particular laws. Brandt’s form of rule utilitarianism therefore gives no support for the proof of a prima facie obligation to obey the law.

Question 102

Smith, ‘Is there a prima facie obligation to obey the law’, Yale Law Journal 82 (1973).

Section II – An examination of the obligation

Answer 102

To say that a person S has a prima facie obligation to do an act X is to say that S has a moral reason to do X which is such that, unless he has a reason not to do X that is at least as strong, S’s failure to do X is wrong.
We distinguish degrees of wrongdoing. And so, by appealing to this notion, we can formulate two principles that may reasonably be held to govern the weight of prima facie obligations:
o First, that a prima facie obligation is a serious one if, and only if, an act which violates that obligation and fulfils no other is seriously wrong; and,
o Second, that a prima facie obligation is a serious one if, and only if, violation of it will make considerably worse an act which on other grounds is already wrong.
By neither of these tests, however, does the prima facie obligation to obey the law count as substantial. There is nothing to be lost by (for considerations of simplicity) ignoring the supposed prima facie obligation to obey the law and refuse to count an act wrong merely because it violates some law.
Yet, there is much to be gained, for in refusing to let trivialities occupy our attention, we shall not be diverted from the important questions to be asked about illegal conduct, such as that about consequences, and the character of acts performed in the course of civil disobedience.

Question 103

Smith, ‘Is there a prima facie obligation to obey the law’, Yale Law Journal 82 (1973).

Conclusion

Answer 103

1º It is by no means obvious that there is any prima facie obligation to obey the law. In the foregoing, I have rejected a number of arguments that purport to establish its existence.
The only plausible argument I have not rejected is the one of Rawls that purports to prove that there is a natural duty to obey the laws of reasonably just governments. However, I did note that his position lacks intuitive support and rests on a controversial ethical theory which has not yet withstood the test of critical scrutiny.
2º Even if such an obligation is assumed, it is of trivial weight and that there are substantial advantages in ignoring it. I suggest that all of this makes it reasonable to maintain that there is in no society a prima facie obligation to obey the law.
3º I am not contend-ing that reflective and conscientious citizens would, if asked, deny that there is a prima facie obligation to obey the law. Indeed, I am willing to concede that many more would affirm its existence than deny it. We often find that reflective people will accept general statements which are belied by their actual linguistic practice, and moral generalizations belied by reflective moral practice.
4º My point is rather that the questions “What governments enjoy legiti-mate authority?” and “Have the citizens of any government a prima facie obligation to obey the law?” - both can be, and should be, kept separate.

Question 104

Harris, LP, Ch.16. – The duty to obey the law

Answer 104

Radical crticis of our political and legal institutions see nothing morally objectionable in breaking the law: it may be ‘imprudent’ but never ‘wrong’ to defy the establishment by flouting its laws.
On the other hand, the same critics will be heard condemning official acts on the specific ground that what they do is ‘illegal’ and therefore ‘wrong’.
To assert there is a moral duty leaves open the question whether the duty is absolute or qualified – the real question is about prima facie duty because few people would accept that there is an absolute duty.

Question 105

Plurality of theories is necessary?

Richard Dagger, ‘Political Obligation’

Intro

Answer 105

To have a political obligation is to have a moral duty to obey the laws of one’s country or state. But how does one acquire such an obligation, and how many people have really done what is necessary to acquire it?

Question 106

Richard Dagger, ‘Political Obligation’

Anarchist challenges to political obligation

Answer 106

• The most thorough-going of these dissenters have been anarchists proper — that is, those persons who insist that states and governments are wickedly coercive institutions that ought to be abolished
• Philosophical anarchists have concluded that the anarchist proper is wrong about the need for the state but right about the obligation to obey the law. They hold that the state is illegitimate (like anarchists proper), but they deny that its illegitimacy entails “a strong moral imperative to oppose or eliminate states; rather they typically take state illegitimacy simply to remove any strong moral presumption in favor of obedience to, compliance with, or support for our own or other existing states”
  o Wolff’s a priori (that such an analysis is impossible, rather than a posteriori, that it may not be impossible per se but nobody’s been able to produce a satisfactory one) attack insists that moral autonomy is our “primary” or “fundamental obligation”. Critics say that this is wrong, for this would require us “to think that autonomy will always over-ride values such as not harming other people, supporting loved ones, doing a favour for a friend or even more mundane desires, such as that for a quiet life, with which this ideal of moral autonomy will from time to time conflict”. Moreover, there is no reason to accept Wolff’s claim that autonomy and authority are necessarily incompatible.
• In the end, of course, the best response to philosophical anarchists, especially those of the a posteriori kind, will be to produce or defend a theory of political obligation that proves to be immune to their objections. At present, though, no single theory has the support of all of those who continue to believe in political obligation, let alone the assent of philosophical anarchists. Several theories remain in contention, however.

Question 107

Richard Dagger, ‘Political Obligation’

Contemporary theories of political obligation

• Consent

Answer 107

o But lots of critics: Hume and Simmons. They claim not that consent cannot be a source of obligations, for they typically believe it can [really?]. The claim, instead, is that too few people have given the kind of express or actual consent that can ground a general obligation to obey the law, and neither hypothetical nor tacit consent will supply the defect.
o Nevertheless, consent theory still has its adherents:
♣ Harry Beran ( 1987) accepts the claim that only express consent can generate a political obligation, but calls for political societies to establish formal procedures for evoking such consent.
♣ Other philosophers argue that the critics construe “consent” too narrowly. Thus John Plamenatz and Peter Steinberger have maintained that voting or otherwise participating in elections should count as consent; and Steinberger produces a lengthy list of fairly ordinary activities — calling the police or fire department for help, sending children to a public school, using a public library, and more — that constitute “active participation in the institutions of the state”
o At this time there is little reason to believe that the critics of consent theory will be won over by these attempts to revive the theory by broadening our understanding of what counts as consent. There is even less reason, however, to believe that appeals to consent will simply wither away, at least among those who continue to believe in the existence of a general obligation to obey the law.

Question 108

Richard Dagger, ‘Political Obligation’

Contemporary theories of political obligation

• Gratitude

Answer 108

o The least popular theory: it is rarely the sole or even primary basis for an attempt to justify the obligation to obey the law
o A. D. M. Walker sketched such a theory (1988, p. 205):
♣ The person who benefits from X has an obligation of gratitude not to act contrary to X’s interests.
♣ Every citizen has received benefits from the state. Thus, every citizen has an obligation of gratitude not to act in ways that are contrary to the state’s interests.
♣ Noncompliance with the law is contrary to the state’s interests.
♣ Every citizen has an obligation of gratitude to comply with the law.
o One may grant that we can have obligations to institutions, including the state, yet hold that these obligations are “too weak to function as prima facie political obligations in the usual sense,” for they “would be overridden frequently, not just in unusual circumstances”

Question 109

Richard Dagger, ‘Political Obligation’

Contemporary theories of political obligation

• Fair play

Answer 109

o Socrates appealed to something resembling the principle of fairness (or fair play), but the classic formulation of the principle is the one H. L. A. Hart gave it in “Are There Any Natural Rights?”: “when a number of persons conduct any joint enterprise according to rules and thus restrict their liberty, those who have submitted to these restrictions when required have a right to a similar submission from those who have benefited by their submission”
o The principle of fair play applies to a political society only if that society can reasonably be regarded as a cooperative enterprise
o The critics have brought forward three particular criticisms.
♣ Robert Nozick, who objects that the principle of fair play would allow others to place us under an obligation to them simply by conferring benefits on us
♣ Smith: The principle of fair play will generate an obligation to cooperate only when the cooperative enterprise is small enough that any participant’s failure to obey the rules could reasonably be expected to damage the enterprise.
• Response: fairness is not a consideration only when harm or benefit to some person or practice is involved. To fail to do one’s part in a cooperative enterprise is to wrong those who cooperate even when it does not clearly harm either them or the enterprise as such
♣ Simmons: Considerations of fairness sometimes do generate obligations, that these considerations do not obtain in the political context - fair play considerations apply only to cooperative schemes that produce benefits one may refuse.
• Response: Simmons has drawn too sharp a distinction between the acceptance and receipt of benefits, or deny that obligations must be incurred voluntarily

Question 110

Richard Dagger, ‘Political Obligation’

Contemporary theories of political obligation

• Membership or association

Answer 110

o Political obligation is best understood as an associative obligation grounded in membership. If we are members of a group, then we are under an obligation, ceteris paribus, to comply with the norms that govern it. Political obligation is a form of non-voluntary obligation on a par with familial obligations.
o Three attractive features.
♣ The refusal of its proponents to treat ‘voluntary’ and ‘involuntary’ as two parts of a dichotomy. It is true, they say, that most people do not voluntarily undertake to become members of a polity, but that hardly means that membership has been forced or imposed on them.
♣ It squares with a common intuition, as a great many people apparently do think of themselves as members of political societies who have an obligation to obey their polities’ laws.
♣ The way in which the obligation to obey the laws grows out of the sense of identity that members of a polity commonly share
o Criticism, with three main objections being raised
♣ The analogy between the polity and the family is neither persuasive nor attractive
♣ The associative account conflates the sense of obligation with obligation itself
♣ Problem of group character. All groups have members, including groups that are not decent, fair, or morally praiseworthy; but if membership is sufficient to generate an obligation to obey, then the members of unjust and exploitative groups will have an obligation to obey the rules. In the case of the polity, this leads to the unpalatable and counter-intuitive conclusion that the routinely exploited and oppressed “members” of an unjust polity are under an obligation to obey its laws.

Question 111

Richard Dagger, ‘Political Obligation’

Contemporary theories of political obligation

• Natural duty

Answer 111

o John Rawls, distinguishing obligations from natural duties. Everyone is subject to the natural duty of justice, which “requires us to support and to comply with just institutions that exist and apply to us” and this duty takes the place, for Rawls, of political obligation.
o Critics:
♣ Is there such a natural duty of justice?
♣ Even if there is, the natural-duty approach runs afoul of what Simmons calls “the particularity requirement” that any attempt to solve the problem of political obligation must satisfy: “that we are only interested in those moral requirements [including obligations and duties] which bind an individual to one particular political community, set of political institutions, etc.”
o Defenders try to establish this particularity requirement:
♣ Christopher Heath Wellman attempts to derive political obligation from “samaritanism.” The duty to be a good samaritan is a natural duty, on his account, because it “does not depend upon a previous transaction or preexisting association between the rescuer and the rescuee; if a person is sufficiently imperiled and one can save her at no unreasonable cost, one cannot justify one’s failure to rescue by pointing out that one never agreed to do so or that one had no morally significant relationship with her …”
o Even a sympathetic critic may wonder whether the natural-duty approach relies implicitly, and especially where the particularity requirement is concerned, on arguments borrowed from other theories. Both Waldron and Wellman draw on the fair-play approach, for example, as when Wellman suggests “that we understand our political obligations as our fair share of the communal samaritan chore of rescuing others from the perils of the state of nature”. Which, in the end, is doing the argumentative work here, natural duty or fair play?

Question 112

Richard Dagger, ‘Political Obligation’

Conclusion – a plurality of principles?

Answer 112

One response to this question might be to say that both concepts are at work, and a good thing that they are, for no one concept or principle by itself can ground a satisfactory theory of political obligation.
- Gilbert (2006) and Steinberger (2004), for example, seem to have developed hybrid theories without ever advertising them as such
o Gilbert’s theory fuses the consent and associative approaches through her reliance on joint commitments to a plural subject, or group. For his part, Steinberger combines the consent and natural-duty approaches, arguing that any “generalized attempt to divorce obligations from natural duties, to find justifications for the former that are entirely independent of the latter, is … doomed to fail”
o Others, notably Klosko (2006) and Jonathan Wolff (1995, 2000), have explicitly called for a pluralistic or multiple-principle approach to political obligation. There is no single answer to the problem of political obligation, as they see it, because the problem has more than one aspect
- As yet there has been little reaction to these attempts to fuse approaches and draw on multiple principles in the attempt to provide a satisfactory theory of political obligation.
- Those who doubt that such a theory can be constructed, however, are likely to say that combining principles, whether in hybrid or pluralist fashion, will not help, for putting together a set of principles that are weak and unsatisfactory individually will hardly produce a strong and satisfying theory.
Whether a plurality of principles is necessary, in sum, remains one of many open questions about political obligation