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Law Notes Jurisprudence Notes

The Source Of Legal Obligation Moral Obligation To Obey The Law Notes

Updated The Source Of Legal Obligation Moral Obligation To Obey The Law Notes

Jurisprudence Notes


Approximately 417 pages

Jurisprudence notes fully updated for recent exams at Oxford and Cambridge. These notes cover all the LLB core jurisprudence readings from Hart to Dworkin to Raz to Mill and Kelsen and much much more. These notes are perfect for anyone studying either law or the philosophy of law, no matter where they are based.

These notes are formed from readings of the primary texts (i.e. the original books) and academic papers, then condensed down as much as possible. Everything is split up by topic and ...

The following is a more accessible plain text extract of the PDF sample above, taken from our Jurisprudence Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:

Table of Contents

Introduction 3

Background Reading 3

R. Wolff, In Defense of Anarchism (1970) ch 1: “The Conflict between Authority and Autonomy” 3

Textbook 4

Bix, Jurisprudence: Theory and Context 4

Penner, Textbook on Jurisprudence 6

I – A necessary prima facie moral obligation to obey the law 6

A - Plato/Socrates (Classical Greco-Roman natural law) 6

B - Finnis (Natural Law Revival) 7

C – Theories justifying a general moral obligation 7

1 – Consent 7

2 – Fair play/benefit and burden 7

3 – Violation sets an example to others (Finnis) 7

D – Denying a general moral obligation 7

Read 8

*Green, ‘Legal Obligation and Authority’ in The Stanford Encyclopedia of Philosophy 8

Terminology: 8

Notes 9



III. Obligations to the law 11

IV. Non-voluntarist theories 12

IV.1. constitutive obligations (Dworkin) 12

IV. 2. Instrumental justification 12

IV. 3. Necessity 12

V. Voluntarist theories 13

V.1. Consent 13

V.2. Expressive Obligations 14

V.3. Fairness 14

Scepticism and anarchism 14

*Stavropoulos, ‘Obligations, Interpretivism and the Legal Point of View’ in Marmor (ed), The Routledge Companion to Philosophy of Law (2012) 15

Terminology 15

Obligation through law 15

Dworkin, Justice for Hedgehogs (2011) ch 14 15

*Dworkin, Law’s Empire (1986) ch 6 17

Terminology 17

core summary 19

Notes 20

I. does integrity fit? 20

II. Is integrity Attractive? 21

III. The puzzle of legitimacy 21

IV. Obligations of community 22

V. Fraternity and political community 22

*Green, ‘Associative Obligations and the State’ in Burley (ed), Dworkin and his Critics (2004) 23

Summary 23

Notes 24

I. Legitimacy and Consent 24

II. Obligations of True Community 25

III. Integrity and Obedience 25

IV. Individuality and community 25

Obligation to law: consent 26

Hume, ‘Of the Original Contract’ in his Essays: Moral, Political and Literary (1777, repr 1987) 26

Obligation to law: authority 26

*Raz, The Authority of Law (1979, 2nd ed 2011) ch 12 26

I. The character of the obligation 26

II. Moral reasons to obey 27

III. Prudential reasons to obey 28

IV. Good law without an obligation to obey 28

(The material from Tutorial IV is relevant here.) 28

Citizenship: responding to law’s claims 28

Dan-Cohen, ‘Law, Loyalty and Citizenship’ in Marmor (ed), The Routledge Companion to Philosophy of Law (2012) 28

Raz, The Authority of Law (1979, 2nd ed 2011) ch 13 29

Legitimacy without an obligation 30

Applbaum, “Legitimacy without the Duty to Obey”, Philosophy and Public Affairs 38 (2010) 30

Smith, ‘Is there a prima facie obligation to obey the law’, Yale Law Journal 82 (1973). 32

Harris, LP, Ch.16. – The duty to obey the law 34

Plurality of theories is necessary? 34

Richard Dagger, ‘Political Obligation’ 34

Anarchist challenges to political obligation 34

Contemporary theories of political obligation 35

Conclusion – a plurality of principles? 37

Obligation is 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.

  1. Raz – laws create exclusionary reasons and legal duties are therefore these exclusionary reasons

  2. 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?

  1. Prudential reasons (though this isn’t an obligation – it’s more like reasons to avoid dangerous animals etc.)


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

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). 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.

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. Are any of these responses successful? 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?

Background Reading

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

I - The concept of authority

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

Authority is the right to command and correlatively the right to be obeyed, distinguished from power: the ability to compel compliance.

First question: under what conditions and for what reasons does one man have supreme authority over another?

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.

II - The concept of autonomy

The fundamental assumption of moral philosophy is that men are responsible for their actions; this obligation...

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