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Obligation to Obey
NB: 'GD' = 'Great Debates' by McBride and Steel
The 'obligation to obey' refers to a prima facie, general, moral obligation to obey the law.
This is an obligation to X because the law requires X.
Accounts of obligations:
1. Austin/Kelsen: Sanction theories. What constitutes obligations is the social resources with which they are enforced. FAILS because does not account for sanction-less duties and the normative force of obligations.
2. Hart: Rule-based theory. Sanctions might oblige people to conform, but people only have an obligation when subjected to a practiced social rule. FAILS because not all rules are backed up by social pressure. See Week 2 for Dworkin's objections to the social rule thesis.
3. Raz: Reason-based theory. What constitutes obligations is the kind of reasons for action they offer: by imposing obligations, authorities purport to offer protected reasons.
Non-voluntarist theories of obligation to obey:
1. Dworkin: Associative obligations. Associative obligations arise in a true community (where there are special and individualised obligations based on a mutual and equal concern for each member of the community). Legal duties are forms of associative obligations. These associative obligations are what justifies official coercion.
a. GD: These four conditions may be necessary but insufficient conditions for associative obligations, e.g. familial duties may exist because of the emotional ties between family members.
2. Raz: Instrumental justification (NJT). Normal justification thesis: An authority is legitimate if a subject is more likely to better conform with the reasons that apply to him if he accepts the directives of the authority as authoritatively binding, rather than acting on his own judgments (ensuring conformity to right reason). This is the service conception of authority. This can be applied to governmental authority.
a. A government has genuine legitimate authority if it claims to impose obligations on people by communicating an intention to do so and it succeeds in doing that (because there is a good moral case for it).
Whether the subject complies is irrelevant to authority/legitimacy.
i. NB: The NJT is a way for an authority to be legitimate. Thus, the government is not legitimate per se, but the government's authority is legitimate. To Raz, 'legitimate' just means 'justified'.
b. Clear to see how the NJT justifies an authority, but what gives rise to an obligation to obey? Is it that as rational beings we have an obligation to act in accordance with reason? 3. Anscombe: Necessity. The domain of authority is the domain of necessary social functions. These are goods which anyone would want and require social cooperation to produce.
a. Green: Many of the activities of a legitimate government are optional
(e.g. supporting education).
4. Rawls: Duty to support just institutions. Not supporting just institutions would result in great harms to society. Waldron: If we lived in a state of nature, we would be in a state of peril. We thus have a natural duty to secure compliance with a set of rules which secure peace and protect basic moral rights.
a. Simmons: Law does much more than prohibiting behaviour that would endanger people à the duty is too narrow.
i. GD: Locality - we supposedly only have a duty to support the just institutions of the society in which we live - why not to support just institutions wherever they exist?
5. Harm to society. Disobeying laws will set a 'bad example' and encourage people to disobey the law generally (this equally applies to unjust laws).
a. E.g. judges still apply legal rules which are slightly unjust or else it undermines the effectiveness of governments.
b. Raz: Some violations of law do not undermine the effectiveness of government or harm society (e.g. offences not known to anyone, violating the interests of one individual only).
c. NB: The 'harm to society' and 'duty to support just institutions'
arguments tend to overlap.
Voluntarist theories of obligation to obey:
1. Consent. Subjects of a legal system consent to their being governed.
a. Most people cannot be said to have expressed their consent. Continued residence is not tacit consent to obey (some people do not have the means to leave).
b. Steel: Consent is permissive in character, whereas promising is generative
(about creating obligations) à consent does not create obligations.
Consent theory is actually about promising, and there are limits to the power to bind oneself, e.g. a person cannot bind themselves to become a slave.
i. Q: Does the power to promise include the power to bind oneself to do unjust things? If not, then this theory only allows for obligations to obey perfectly just laws.
2. Raz: Expressive obligations / "respect for law"
a. One can acquire an obligation to obey the laws of his community by
"identifying with or belonging to the community", acquiring a "respect for law". This "respect for law" grounds a quasi-voluntary obligation to obey the law: quasi-voluntary because there is no "moral duty to feel a sense of belonging in a community". Since it is quasi-voluntary, though, it cannot be said that everyone has an obligation to obey the law. i. GD: This conception of 'respect for law' is too restrictive. Loyalty to one's friend may extend to performing minor wrongs because they ask you, but there are limits à 'respect for law' may not give rise to obligations when laws are very unjust.
3. Rawls: Fair play. Those who accept the benefits of fair scheme of cooperation have a duty to do their allotted part under that scheme.
a. Nozick: The mere fact that you have received those benefits cannot oblige you, even if you welcome those benefits (think of his public entertainment centre example).
i. BUT: It can be said that because you need the benefits that the legal system gives you, you implicitly asked for them. Two rebuttals:
1. Legal systems provide benefits that are much more than those necessary to well-being.
2. A person might wish to obtain that benefit from some other source, e.g. private security company.
b. GD: Does not work either (i) where you have not benefited from others obeying the law, or (ii) where breaking a particular law will not actually harm the interests of others who have obeyed that law in the past.
GD: None of these arguments on their own convincingly establish a general obligation to obey but taken together they might cover all situations.
Scepticism and anarchism
Wolff is an anarchist à thinks that justified political authority is impossible.
Scepticism is different . Sceptical arguments accept that legal authority is often valuable, or that there is often content-dependent reason to do what law requires. Some people do have moral obligations to obey, and sceptics do not even deny that there are some laws that everyone has a moral obligation to obey.
Let's take a look at a couple of theories in more detail:
Raz - No general obligation
"If there is no general obligation to obey, then the law does not have general authority, for to have authority is to have a right to rule those who are subject to it. And a right to rule entails a duty to obey."
Law necessarily claims legitimate authority.
An authority claims to have authority if it claims to be able to impose obligations on people by its communicating an intention to do so. It has authority when it succeeds in creating obligations for others (bc there is a good moral case for it,
e.g. NJT), regardless of whether the subject actually complies.
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