Legal Obligation And Authority (Stanford Encyclopedia Of Philosophy)

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1. obligations in the law

every legal system contains laws that impose obligations, but there is no decisive linguistic marker that determines what they are. It is not necessary to use the term “obligation”, nor its almost synonymous, “duty”. the imperative mood is rarely found. the canadian criminal code imposes an obligation not to advocate genocide therefore:

Anyone who advocates or promotes genocide is guilty of an indictable offense and is punishable by imprisonment not exceeding five years.

the English sale of goods law says that,

When the seller sells goods in the course of business, there is an implied condition that the goods supplied under the contract are of merchantable quality.

That these laws create obligations follows from the way “crime” and “implied condition” function in their respective areas of law, not from the language in which they are expressed.

At first glance, some laws have other functions. the requirement that “a will must be signed” generally imposes no duty, nor does the duty to make a will, and even the duty to have it signed if it does, establish conditions in the absence of which the document simply does not count as valid will. however, some philosophers argue that the content of any legal system can and should be represented only in terms of laws that impose and exempt duty (bentham of laws in general; kelsen 1960 [1967]). asks bentham,

What is it that each article of the law has in common with the rest? commands and by doing so creates duties or, which is another word for the same thing, obligations. (bentham, of laws in general [1970: 294])

(for a related contemporary view, see harris 1979: 84-106). They think that analyzing laws in this way reveals what legislators or subjects most need to know: under what conditions the coercive power of the law will finally be fulfilled. Others argue that even if such a reduction were possible, it would be unwieldy, uninformative, and unmotivated, since it would obscure the different social functions that laws serve (hart 1961 [1994: 26-49]) and the different kinds of reasons for law enforcement. action. they create (Raz 1975 [1990]). Still others, desperate for any principled way of knowing what a law is, have abandoned the problem altogether and tried to develop a theory of law that bypasses it (Honoré 1977; Dworkin 1978: 71-78). At a minimum, it seems clear that whether or not all laws impose obligations, they can only be fully understood through their relations to those that do. therefore, a legal right is an interest that justifies others having an obligation to protect it, a power of attorney is the ability to create or modify obligations, etc.

What then are the legal obligations? they are legal requirements with which the subjects of the law are obliged to comply. a mandatory act or omission is something that the law makes non-optional. Since people can clearly violate their legal obligations, “non-optional” does not mean that they are physically obliged to comply, or even that the law leaves them without any eligible alternative. on the contrary, people often calculate whether or not to fulfill their legal duties. Could it be then that obligations are simply compelling reasons to comply, even if they are sometimes neglected or exceeded? this cannot be a sufficient condition: higher courts have important reasons not to reverse their decisions too often, but they are not legally bound to refrain. neither is it necessary: one has an obligation, but only a trivial reason, not to step on someone’s lawn without her consent.

If its content does not account for the rigor of the obligations, what does? a historically important theory, though now largely defunct, explained it in terms of grief. According to this view, to have a legal obligation is to be subject to a sovereign command to do or refrain, where a command requires an expression of will together with an accompanying risk, however small, of suffering harm by default. as the english jurist john austin says,

[w]hen I speak directly of the possibility of incurring evil, or (changing the expression) of responsibility or hatred of evil, I use the term duty, or the term obligation…. (Austin 1832 [1995: 18]; see also Bentham’s Laws in General; Hobbes 1651 [1968])

Others conceived an indirect connection between duty and sanction, arguing that what is normally counted as the content of a legal duty is really only part of a condition triggering the peremptory norm that orders or authorizes officials to impose a sanction. According to this opinion,

a norm: “you shall not kill” is superfluous, if a norm is valid: “he who kills must be punished”. (Kelsen 1960 [1967: 55])

therefore,

[t]he legal obligation is not, or not immediately, the behavior that it should be. only the coercive act should be, functioning as a sanction. (Kelsen 1960 [1967: 119])

None of these versions of the sanction theory survived h.l.a. Hart’s critiques (Hart 1961 [1994: 27-42]; cf. Hacker 1973; but see Schauer 2015 for a recent reformulation of this approach). First, they misrepresent a variety of disparate legal consequences, including compensation and even invalidation, as if they all function as sanctions. second, they render unintelligible many familiar references to duties in the absence of sanctions, for example, the duty of superior courts to apply the law. third, they offer an inadequate explanation of non-optionality. “you have an obligation not to kill” cannot simply mean “if you kill you will be punished”, since the law is not indifferent between people, on the one hand, killing and imprisoned, and on the other hand not killing at all. “the right to disobey the law cannot be obtained by paying a fine or license fee” (francome v. mirror group journals ltd. [1984] 2 all er 408 at 412). such dictates are commonplace and reflect familiar judicial attitudes. More importantly, the normal function of sanctions in law is to reinforce duties, not to constitute them. It is true that one of the reasons why people are interested in knowing their legal duties is to avoid sanctions, but this is not the only reason nor is it, contrary to what Oliver Wendell Holmes supposed, theoretically primary (holmes 1897). the subjects also want to be guided by their duties, either to fulfill them or to deliberately infringe them, and officials invoke them as reasons and not mere consequences of their decisions.

Sensitivity to such issues led Hart to advocate a rule-based theory. he says that while sanctions may mark circumstances in which people are bound to comply, they have an obligation only when subject to a practiced social rule that requires an act or omission. the fact that the subjects use it as a rule, the brand as normative. Three other characteristics distinguish binding rules: they must be enforced by serious or insistent pressure to conform; they must be considered important for social life or for some valuable aspect of it; and its requirements may conflict with the interests and goals of the subject (hart 1961 [1994: 85-88]). this explanation of the nature of obligations is not an explanation of their validity. Hart does not say that a legal duty is binding as long as there is a willingness to deploy serious pressure in support of it, etc. he holds that a duty is legally valid if it is part of the legal system (that is, if it is certified as such). by the tests for law in that system), and a legal duty is morally valid only if there are sound moral reasons for doing it. but, at least in his early works, he offers the theory of practice as an account of duties in general: legal duties are creatures of legal rules, moral duties of moral rules, and so on. (Hart later modified this view, see 1982: 255-268; and 1961 [1994: 256].)

The constitutive role of social pressure is sometimes considered an Austinian blot on Hart’s theory, but in any case there are more serious problems with it as a general description of obligations (Dworkin 1978: 50-54; Raz 1975 [1990: 53-58]). people readily speak of obligations when they are acutely aware that there are no relevant social practices, as a lone vegetarian might in a carnivorous society. And the conditions of Hart’s practice may be met in cases where there is no obligation but only generally applicable reasons, such as when victims are regularly urged to hand over their wallets to a mugger. At best, Hart’s theory will apply only to a special class of obligations in which the existence of conventional practice is an essential part of the reasons for conformity, though even here the theory is open to question. (see dworkin 1978: 54-58; green 1988: 88-121; cf. marmor 2011: chap. 3). More recently, some have objected that Hart’s attempt to reduce social rules to social practices fails because rules and practices belong to different metaphysical categories. if so, grounding one to the other is a category mistake. Instead, we should think of the rules of our legal system as based on the planning activities of various officials whose intent is to regulate the behavior of individuals (as well as other bodies) operating within the legal system (Shapiro 2011).

a third account is based on reason. From this perspective, what constitutes obligations is not the social resources with which they are enforced, nor the practices in which they can be expressed, but the kinds of reasons for action they offer. Legal obligations are content-independent reasons that have both categorical and preventive validity. The mark of their independence of content is that their force does not depend on the nature or merits of the action they require: in most cases, the law can impose an obligation to do x or to refrain from doing x (hart 1958; 1982: 254-55; but cf Markwick 2000; Sciaraffa 2009; Valentini 2018). that they are preventive means that they require the subject to set aside his own view of the merits and comply nonetheless. that they are categorical means that they do not condition their statements to the goals or interests of the subject.

this vision is foreshadowed in both thomas hobbes and john locke, but its most influential contemporary version is due to joseph raz (1975 [1990: 35-84]). Raz argues that obligations are categorical reasons for action that are “protected” to the extent that they are combined with special second-order reasons that force us to exclude from our deliberation some of the competing first-order reasons for action. Yes. “first-order reasons” are normal reasons for action based on self-interest, desires, or morality; “second-order reasons” are reasons why we have to act (or refrain from acting) on first-order reasons. Thus, the distinctive feature of obligations, according to Raz, is that they exclude some contrary reasons—typically at least reasons of convenience and ordinary preference—from our practical deliberation. some but not all. an “exclusion reason” is not necessarily a conclusive reason. the rigor of an obligation is thus a consequence not of its weight or characteristics of practice, but of the fact that it supports the required action by special normative means, isolating it from the general jurisdiction of reasons. or, in any case, this is what obligations do when they have the force they claim, that is, when they are obligatory. The theory does not assume that all legal obligations are actually morally binding, but it does assume that the legal system establishes them as if they were, a consequence that some have questioned (hart 1982: 263-267; himma 2001: 284-297). and while this account is invulnerable to objections to sanction-based theories and practice, it needs to confirm the general idea of an “exclusionary reason,” and some philosophers have expressed doubts about it as well.

some have criticized the very existence of reasons to act for (or against) other reasons by pointing out that acting for (or against) other reasons is not something we can choose to do (whiting 2017; adams 2021 ). Others have pointed out that the reasons provided for authoritative directives are better understood as reasons that causally constrain our ability not to comply with the directives in question (Shapiro 2002). others have argued that what raz calls exclusion reasons are ultimately simply reasons that outweigh competing reasons (mian 2002), reasons that affect the weight of first-order reasons (perry 1989), or reasons that causally change factual circumstances in a way that triggers pre-reasons. existing reasons (enoch 2011 and 2014). finally, others have accepted that there are reasons for exclusion, while rejecting the claim that it is always reasonable to exclude valid reasons from consideration altogether (regan 1987; gur 2007). This has led to the formulation of alternative models, according to which obligations are better understood as “presumptive grounds”, as opposed to exclusionary grounds for action (Schauer 1991; Renzo 2019). According to these models, competing reasons for action are not completely excluded from the agent’s deliberation. rather, the second-order reasons created by the obligation simply create a presumption in favor of its exclusion. subject to the fulfillment of certain epistemic conditions, the presumption can be refuted (but see venezia 2020).

2. authority, obligation and legitimacy

A competitive market is not a legal system, although people adjust their behavior in response to relative prices and the whole constitutes a form of social order. neither was the system of mutual nuclear deterrence, although it guided behaviors and generated norms that regulated the cold war. Many philosophers and social scientists agree that a social order is a legal system only if it has effective authority. an effective (or de facto) authority may not be justified, but it has a special relationship to justified (de jure) authority. Justified authority is what effective authorities claim, or are generally recognized to have.

What is legal authority and how does it relate to obligations? it is a kind of practical authority, that is, authority over action. According to one influential view, “to claim authority is to claim the right to be obeyed” (R. P. Wolff 1970: 5). there are, of course, authorities who make no such claim. theoretical authorities, that is, experts, are not characterized by claims of obedience. they do not even need to claim the right to be believed. and there are weaker forms of practical authority. giving someone the authority to use his car is simply allowing him. but political authority, of which legal authority is a species, is normally regarded as a right to rule, with a correlative duty to obey. That is why the law claims the right to obedience where it establishes obligations. and to obey is not simply to obey the law; is to be guided by it. max weber says it is

as if the governed had made the content of the mandate the maxim of their conduct by itself. (weber 1922 [1963: ii 946])

or, as robert paul wolff says something more insightful:

Obedience is not a matter of doing what someone tells you to do. it’s about doing what he tells you to do because he tells you to do it. (r. p. wolff 1970: 9)

This is not to say that one obeys only by treating the command of authority as an irrevocable reason for action; but it must be treated as a binding reason independent of the content. the question of whether there is an obligation to obey the law is a question of whether we should legally act and obey the law as it purports to be obeyed (raz 1979: 233-249).

is an interesting feature of this account which means that one can say what the authority requires regardless of whether the requirement is justified on its merits. in fact, it could be argued that

If there is no way to know whether a statement is authoritative, except by evaluating its content to see if it deserves to be accepted in its own right, then the distinction between an authoritative statement and rational advice or persuasion will have collapsed. (friedman 1973: 132)

Raz develops such an idea in one of the main arguments of the “sources thesis”, the idea that an adequate proof of the existence and content of law must be based solely on social facts, and not on moral facts. arguments (see the entry on legal positivism.) subjects of authority

You can benefit from its decisions only if you can establish its existence and content in such a way that it does not depend on raising the very questions that the authority is there to resolve. (raz 1994: 219)

if the law aims to resolve disputes over moral issues, then the law must be identifiable without resolving these very disputes. therefore, the law is exhausted at its sources (such as statutes, court decisions, and customs, along with local conventions of interpretation). This type of argument has become widespread (see Shapiro 1998), but it has also been criticized. it is not clear what kind of restriction is posed by the idea that it should not involve “the same problems”; Perhaps if morality is just a necessary condition, there might be moral tests for authority that leave the relevant dependent reasons intact (Coleman 2001: 126-127). and while the law does indeed serve as a framework for guiding and evaluating behavior, it can also have other functions, such as educating its subjects about right and wrong, and this can be detrimental to the attitude that rules should be partially obeyed. because they are the rules (waluchow 1994).

The view of correlative authority by obligation is not universally accepted. Some argue that the power to impose moral obligations is only one of many ways in which political authorities have the ability to shape the normative status of those subject to them. The distinctive feature of political authority, according to this approach, is the broadest power that unilaterally modifies the duties, freedoms, and claim rights of its subjects (Copp 1999 and Perry 2012). others argue that political authority does not imply any right to claim, but only a set of freedoms: to decide certain issues for a society and to enforce its decisions. (Soper 2002: 85 ff; cf. Ladenson 1980; Greenawalt 1987: 47-61; and Edmundson 1998: 7-70).

The conception of freedom must answer two questions. First, isn’t it a feature of the right to decide that requires subjects to refrain from acting on competing decisions? if the law says that abortion is permissible and the church says that it is not, what does the denial of the church’s right to decide consist of, if not that public policy must be structured by the first decision and not by the second, although the latter it is right? second, does the right to enforce include the duty of subjects to pay the penalty when required? if it does, then this is just a truncated version of correlative obligation theory, one that holds that punitive and remedial obligations, but not primary obligations, are binding. if not, then you are totally at odds with the actual views of judicial officials, who do not believe that subjects are free to evade sanctions if they can.

This comes to a methodological question in the philosophy of law. Some consider the character of the law’s authority to be a matter of descriptive analysis fixed by the semantic and logical constraints of official language and argumentative traditions. Others hold that such an analysis is impossible or indeterminate, and that we are thus driven to normative arguments about what legal authority should be (see Soper 2002; Finnis 1979: 12-15). put crudely, they think we should understand the law to claim only the kind of authority that the law would be justifiable to have. such is the motivation for friedrich hayek’s suggestion that

the ideal type of law… merely provides additional information to be taken into account in the actor’s decision. (hayek 1960: 150)

Hayek favors the free market and concludes that the nature of legal authority must be understood analogically. The most radical position of this type is that of Ronald Dworkin. he prefers what he calls a “more relaxed” understanding of legal authority (dworkin 1986: 429). Others have argued that the preemptive notion of authority is unsatisfactory because it is too rigid (eg, Perry 1989). Dworkin’s objection goes much deeper. His position is not that the law communicates only a weaker form of guidance; is that the law should not be understood as trying to communicate anything at all. a subject who considers his legal duties is not listening to the law; he is engaged in “a conversation with himself” and is “trying to discover his own intention in maintaining and participating in that practice” (dworkin 1986: 58). From this point of view, there is no fact about what the law claims that is independent of what each one is right to consider claiming.

However we resolve the methodological question, there are two parallel normative questions:

the problem of obligation: what, if anything, justifies the duty to obey the law, and how far does that obedience adequately extend?
the problem of legitimacy: what, if anything justifies coercive power? of the law, and how far can that power properly extend?

what is the relationship between these? some hold that obligation comes first:

[although] obligation is not a sufficient condition for coercion, it is close to being a necessary condition. a state may have good reason in some special circumstances to coerce those who do not have a duty to obey. but no general policy of defending the law with steel could be justified if the law were not, in general, a source of genuine obligations. (dworkin 1986: 191)

the idea is that the mere fact of having justice on your side is an inappropriate ground to coerce others; a special title that emanates from the moral status of the law is also needed. (Contrast, for example, with Locke’s view that everyone has an “executive power of the law of nature”, at least outside of political society [second treatise, § 13].)

Others argue that this sets the relationship back. First, it is doubtful that one can have an obligation to obey an illegitimate regime. We might think that “acquiescence, or even consent, to clearly unjust institutions does not create obligations” (Rawls 1971: 343; but cf. Simmons 1979: 78-79). if so, at least some conditions of legitimacy precede an obligation of obedience. Second, there are substantive reasons to think that we would have no obligation to obey if the law were not already justified in defending its requirements “with steel.” a legal system that could not justifiably coerce could not assure the law-abiding that the recalcitrant will not play them for fools. Without being able to solve this security problem, it would be unfair to impose obligations on them, and unfair to demand their obedience. Underlying this suggestion is the familiar idea that effectiveness is a necessary, but certainly not a sufficient, condition for justified authority. (See Kelsen 1960 [1967: 46-50]; cf. Finnis 1979: 250. For an alternative formulation of the view that there can be no duty to obey until we have established the right of authority to coerce, see Ripstein 2004 .)

3. obligations before the law

can affirm our confidence in the correlative vision of the obligation to know that from the earliest times the philosophical reflection on political authority has focused on the obligation to obey. The passive obligation of obedience is certainly not all that we owe to the law (Parekh 1993: 243; Green 2002: 543-547), but many have taken it as the minimum demand of the law. this gives rise to a puzzle. as robert paul wolff says:

if the individual preserves his autonomy by reserving for himself in each instance the final decision to cooperate, therefore he denies the authority of the state; if, on the other hand, he submits to the state and accepts its claim to authority, then he… loses its autonomy. (r. p. wolff 1970: 9)

wolff resolves the dilemma in favor of autonomy, and on that basis defends anarchism.

some of wolff’s concerns stem from the “judgment surrender” itself: how can it be rational to act against reason as one sees it? others stem from the fact that it is a surrender to the law. Regarding the first point, it is relevant to note that promises and contracts also imply renunciation of judgment and a kind of deference to others (see Soper 2002: 103-139), however, a rational anarchist needs such voluntary commitments to replace authoritative commands. a principled objection to any delivery of judgment is therefore self-defeating. In addition, there seem to be cases in which by renouncing judgment on some issues, more time and resources can be secured for reflection and decision on things that are more important, or with respect to which one has a greater capacity for self-direction. therefore, a partial delivery of judgment can improve the overall autonomy of the agent.

This suggests that wolff’s concern is best understood as skepticism about whether it is justifiable to submit one’s judgment entirely to the law. Some philosophers have questioned the intelligibility of this doubt; They say that it is in the nature of law that there is an obligation to obey it, at least in their central case (Fuller 1958 [2000: 100]; Finnis 1979: 14-15). Some go so far as to conclude that it is therefore absurd to ask for any basis for the duty to obey the law: the law is that which must be obeyed (McPherson 1967: 64). we need a way to enter this circle, and the best entry is to specify the nature of the law in a way that is compatible with various theories about its nature. Three features are especially important (based on Hart 1961 [1994: 193-200]; Raz 1975 [1990: 149-154]; and Lyons 1984: 66-68). First, the law is institutionalized: nothing is law that is not connected with the activities of institutions such as legislatures, courts, administrators, police, etc. Second, legal systems have a wide reach. the law is not limited to the affairs of small face-to-face groups like families or clans, nor does it cater solely to a narrow domain of life like baseball. the law governs open domains of large groups of loosely structured strangers and regulates their most pressing interests: life, liberty, property, kinship, etc. this is its third central feature: the law is morally fallible. this is recognized by both positivists and natural law scholars, whose slogan “an unjust law is not a law” was never intended to affirm the infallibility of the law.

The question of political obligation, then, revolves around whether there are moral reasons to obey the mandatory requirements of a wide-ranging and morally fallible institutionalized authority. This obligation is intended to be comprehensive insofar as it encompasses all legal obligations and all those whose compliance is required by law. it is not supposed to bind no matter what, although it must be a genuine obligation among others. some philosophers also consider that it should bind particular people to their own states, i.e. the states of which they are residents or citizens, and that an argument that could not show that one has stricter duties to obey one’s own country that an equally just foreigner would be to that extent deficient (Simmons 1979: 31-35; Green 1988: 227-228). finally, it is common knowledge that the obligation exists only when a minimum condition of justice is met.

4. transactional theories

Two main strategies are traditionally employed to justify political obligation. one appeals to some kind of transaction existing between the state and its members; the other appeals to specific sets of duties that individuals have simply as moral agents or by virtue of the particular positions they occupy. we’ll start by considering the first.

4.1 consent

“the right of all sovereigns”, says hobbes in leviathan (ch. 42) “derives originally from the consent of each of those who are to be governed”. in the second treatise (§ 95) locke says:

being men… by nature all free, equal and independent, no one can be expelled from this state and subjected to the political power of another without their own consent.

The ideological influence of such theories in the struggles for representative government and decolonization was immense. Few now deny, in the words of the United States Declaration of Independence, that all governments “derive[d] their just powers from the consent of the governed,” and it is perhaps no exaggeration to say that consent has become the ” gold standard” for political authority (and, indeed, for a theory of any political power; Buchanan 2002).

but whose consent and for what? nor the consent of our ancestors, because such an “original” contract, as it was called in the seventeenth century, cannot have authority over those who did not accept it. a voluntaristic theory requires the actual consent of each subject. but this cannot mean consent to all laws or applications thereof. The blatant absurdity of that idea leads some to declare consent “inherently implausible”: as finnis puts it,

The need for authority is precisely to replace unanimity in determining the solution of practical coordination problems that involve or concern everyone in the community. (finnis 1979: 248)

Consent theorists, however, have not generally proposed the principle as a solution to “practical coordination problems”. unanimous consent would be a very bad decision rule: transaction costs would be huge, and reticence could block many desirable policies. consent is most commonly proposed as part of the constitutional rule that establishes the political community in the first place. Consent theorists thus reject Immanuel Kant’s idea (discussed below) that the mere ability of a to violently affect the interests of b is sufficient license for anyone to subject them to a regime of positive law (the metaphysics of morals § 44). for consent theorists, an a-b interaction does not become a candidate for authoritative regulation until a and b agree to join under one jurisdiction. we cannot ask what or what kind of authority is justified over both kurds and shiites in iraq until we answer why there should be one. however, beyond this pivotal role, consent theorists have differing views on whether it has any further significance in politics. Locke thinks that it is then superseded by majority rule by delegates as the natural procedure for most decisions; For Rousseau, this is just another form of slavery.

However, even in its limited role, consent has attracted powerful criticism. (For a good review, see Simmons 1979: 57-100; for a qualified defense, see Beran 1987.) Much of it has focused on the questions of whether consent is in fact given and, if so, whether it would be binding. The first thing to note is that here consent is understood as a performative commitment that assumes an obligation through the very act of consent. therefore, it is closer to how we normally understand the notion of a promise, rather than how consent is used in other contexts. (When you consent to surgery, for example, you do not incur an obligation to have surgery. You simply waive your objection to having surgery.) however, like other promises and oaths, there are limits to the validity of consent. not only because consent is invalid if obtained through coercion, manipulation, or duress, but also because there are things to which we lack the moral power to consent. Locke, for example, argues that one can consent neither to being murdered nor to slavery, and thus to anything equivalent to slavery, including absolute rule. one can imagine an argument similar to the conclusion that political consent must be revocable. But as we incorporate all these validity conditions, the commitment itself seems to be doing less and less work, leading some to conclude that it becomes “essentially irrelevant” (Pitkin 1965 [1972: 57]). consent is saved from irrelevance only if we can explain why we also value a power to force us to obey. David Hume could conceive of no reason at all: Keeping promises is an “artificial virtue” serving the public good, just like obeying the law. As long as the law is tolerably legitimate—and Hume is willing to give it a wide berth—a promise to obey is redundant, since any plausible answer to the question why we are bound by the promise would be “immediately, without any circuit, they have given account of our obligation of loyalty”; “being of equal strength and authority, we gain nothing by resolving one into the other” (hume 1748 [1985: 481]).

Now, while a theory of consent need not “resolve” loyalty into a promise—there can also be non-promising conditions on obedience—it must explain why it should be conditioned on it. Three types of arguments have been popular. First, there are instrumental reasons for wanting a deliberate check on the liability of legal duties. in political authority, where the stakes are high, the power to give and withhold consent serves a fundamental protective function beyond what we might expect from the fallible institutions of limited government. second, consent allows people to establish political allegiances by creating new political societies or joining existing ones without waiting for the gradual emergence of ties of community and reciprocity; consent is an immediate passport to “perfect membership” in a commonwealth (locke, 2nd treatise, § 119). Third, although consent is defined by its performative character, non-performative ancillary characteristics naturally accompany it: consent also expresses the acceptability, or at least tolerability, of government. this may mark the consenting rulers as outstanding among a number of possible contenders, and may mark that they have a good chance of being effective, which in itself is a necessary condition for the justification of any political authority.

It is doubtful how persuasive such considerations are. but things are even worse, because in any case it is clear that many people have not done anything that counts as giving such consent. Even freely given oaths of office and naturalization do not usually amount to a general commitment to obey the law (Greenawalt 1987). other acts are even less plausibly interpreted in this way. Plato’s Crito introduces the idea that continuous residence counts as a kind of tacit consent to obey, and Locke expands that to include any enjoyment of the benefits of government, “whether traveling freely down the road” (second treatise, § 199) . Whatever the moral relevance of these facts, they do not count as consent, because people do these things without imagining that they will create obligations, and they do them in circumstances where they have no other feasible alternative. other unpromising actions, for example, voting or participating in politics, fare no better: many do not vote, and few see it as a duty at all. perhaps we can say that if people consent, and if the relevant legitimacy conditions are met, then they have a duty to obey the law. however, that obviously falls far short of establishing the claims of the law.

Alternatively, we could amend our theory and justify political authority not by appealing to the fact that we have consented to it, but rather by appealing to the fact that we would have, or perhaps should, have consented to it, under some idealized idea. condition—say, if we had been more rational or better informed (estlund 2008: 117-135). the problem with this move, however, is that by basing political authority on hypothetical rather than actual consent, the perspective seems to lose much of its appeal. the reason why the notion of consent is particularly attractive is that it promises to reconcile being subject to someone else’s authority with retaining our ability to act as autonomous agents. consent does that because to the extent that we have consented to another person having authority over us, any obligation they impose on us can be traced, ultimately, however indirectly, to an exercise of our will, namely our decision to consent. . in this limited sense, the obligations in question are obligations that we have voluntarily incurred. however, none of this is true in the case of hypothetical consent. for our will plays no role in generating any of the obligations that political authority imposes on us if the authority is justified not by appealing to our actual choice to consent to it, but by appealing to the hypothetical choice of some idealized version of ourselves. . Indeed, some have argued that hypothetical consent is best understood as a disguised version of the natural duty view (Simmons 2005: 117). Ultimately, what justifies political authority here is the fact that we have independent reasons to act as the authority requires. because these are the same reasons why we would (or should) consent to an authority that requires such things if we were more rational or better informed. If so, hypothetical consent is at best a heuristic device that helps us see what those reasons are (Raz 1986; Sreenivasan 2009; Thomson 1990; but see Enoch 2017).

4.2 fairness

Even if we cannot say that we have consented to them in any meaningful way, it seems clear that (reasonably fair) political authorities provide us with crucially important benefits, such as security and the rule of law. some have pointed to these benefits to justify our duty to obey and support the authorities in question. The central idea here is that those who benefit from a fair scheme of cooperation have a duty to do their assigned part under that scheme. In other words, if others obey the law for our benefit, we owe them a duty not to take advantage of their compliance (hart 1955; rawls 1964).

However, on closer inspection, some of the concerns that plague theories of consent also surface here. Since, intuitively, only when the benefits produced by a cooperative scheme are accepted by its members, the existence of fair play obligations is indisputable. If a scheme of cooperation simply throws benefits on people as inevitable consequences of the cooperative activity of others, even very valuable benefits, it is doubtful that we have a duty to comply with the scheme. however, it is not clear in what sense we can say that we accept the benefits provided by the state. After all, the core benefits of an effective legal system, including security and order, are the kind of nonexcludable public goods that Simmons (1979: 138-139) calls “open benefits.” they are granted to all who live in the territory over which the state claims authority, regardless of whether the benefits in question are welcome or not. You can rarely avoid these benefits, and when you can, it’s only at great cost. More importantly, states often claim the same kind of authority over both those who accept benefits and those who do not (Nozick 1974; Rawls 1964; Simmons 2001: Chapters 1-2).

In response, some have argued that while it is true that acceptance is normally required to incur fair play obligations, this is not the case when it comes to the kind of “presumed beneficial” goods that states provide. . . Since goods such as security and order are necessary for any acceptable life, we can assume that everyone would seek these benefits if doing so was necessary to receive them. After all, not doing so would be irrational (Klosko 1991, 2005; see also Arneson 1982; Dagger 1997, 2018). the problem with this argument is that we often make choices that are irrational in this sense but, setting aside cases where paternalistic interference might be justified, this is usually enough to protect us from incurring the costs associated with making the reasonable choice. . Although it might be unreasonable not to purchase a particular life insurance policy, if I refuse to do so, you are not permitted to provide me with the policy and expect me to pay for it. Why think that refusing to accept state-provided benefits shouldn’t just as well protect us from incurring the costs associated with them? after all, these obligations are intended to preclude attempts to take advantage of the members of a cooperative scheme by exploiting their sacrifices and reaping the benefits produced by the scheme without bearing any of the costs associated with its production. but if I don’t accept the corresponding benefits because, perhaps foolishly, I fail to appreciate their value, I’m not trying to take advantage of anyone.

Things are more complicated than we might at first think here because it’s not unrealistic that, in at least some cases, the rejection of essential open benefits that we know we’re going to receive anyway could be the product of motivationally biased beliefs. triggered by a desire to take advantage (that is, irrational beliefs we have developed, perhaps unconsciously, in order to receive those benefits without having to contribute our fair share to their production). and it is plausible that when this is what explains our inability to accept the benefits in question, our fair play obligations are not undermined (renzo 2014). but there is no reason to think that this explanation will be valid in all cases where state-provided benefits are denied. realistically, some cases of rejection will be genuine and, in those cases, justice seems unable to vindicate our obligation to obey the law.

An additional complication has to do with the fact that, despite not being excludable in the sense that they cannot be selectively provided only to those who request them, many of the “open benefits” provided by states are not distributed equally among all citizens. . Even in societies that present themselves as liberal and egalitarian, minorities are often discriminated against and suffer serious injustices from their governments. when this is the case, the idea that obedience might be required as a way of doing one’s part in maintaining a cooperative scheme for mutual benefit is bound to lose much of its force (shelby 2016; see also kelly 2022 and yankah 2022).

4.3 gratitude

equity (in its voluntarist interpretation) requires some type of acceptance, as opposed to the mere reception, of the benefits produced by the state so that a political obligation is generated. however, some transactions appear to generate obligations, even though the benefits received have not been accepted. For example, if it provides me with a benefit, I should at least be grateful and express my gratitude in a suitable way. Couldn’t this idea be used to justify political obligation? some argue that it can. Obeying the law, according to them, is a way of fulfilling the duty of gratitude that we owe to our own state for the benefits we receive from it (Plato [Crito]; W. D Ross 1930; Walker 1988; Klosko 1989).

One problem with this account is that the mere receipt of a benefit does not seem sufficient to justify a duty of gratitude. maybe I enjoy listening to your trombone practice, but if you unknowingly give me this benefit (perhaps you think I’m on vacation, while practicing next door), do I owe a duty of gratitude? And do I owe you a duty if your intention is to harm me rather than benefit me? (perhaps you know I’m next door, and practice out loud to annoy me, not knowing there’s nothing I enjoy more than listening to your trombone). this seems unlikely. the mere provision of a benefit does not seem to generate duties of gratitude, unless the benefit in question is provided with the right intention. but can states have intentions to begin with (if not in a metaphorical sense)? those who deny it conclude that, for this reason, no duty of gratitude is owed to them (Simmons 1979: ch. 7; but see Knowles 2002).

This objection is, in a sense, symmetrical to the one considered in relation to fair play accounts. there we saw that simply receiving state-provided services is not enough to ground political obligation unless those who receive these benefits have certain states of mind (ie, the intention to accept the benefits). the objection here is that receiving the same services is not sufficient to ground political obligation unless those who provide them have certain states of mind (ie, the intention to benefit their recipients). however, it is worth noting that the above objection applies here as well. As we have seen, state-provided services are hard to avoid, and more importantly, the demands states make of us are the same whether we accept those services or not. but the claim that we may incur duties of gratitude for benefits we do not appreciate, and perhaps explicitly reject, seems controversial. again, it may be irrational to refuse benefits, but if we do so (and we are sincere), it is not clear that any cost can be imposed on us as a way of fulfilling our duties of gratitude.

5. non-transactional theories

The appeal of transactional theories is that it seems intuitively plausible that political obligation has something to do with the duties generated by the important benefits that states provide to their members. The problem is that the mere provision of benefits seems insufficient to generate obligations unless certain psychological conditions are met by those who receive the benefits, and possibly also by those who provide them. but, as we have seen, it is doubtful that these conditions will be met by all those over whom states claim authority.

This has led some to abandon the idea that political obligation can be based on some kind of transaction whereby we offer our loyalty to our state in exchange for the services it provides. some of the most interesting developments in the contemporary debate consist of exploring viable alternatives to this strategy.

5.1 instrumental justification

An influential storyline justifies authority instrumentally, as a way to help its subjects do what they should.

The normal and primary way to establish that one person should be recognized as having authority over another involves showing that the alleged subject is likely to better comply with the reasons applied to him (apart from the supposed authoritative directives) if he accepts the directives of the supposed authority as authoritatively binding, and tries to follow them, than if he tries to follow the reasons that apply directly to him. (raz 1994: 214; see also raz 1986: 38-69; raz 2006)

raz calls this the “normal justification thesis” (njt). it is fulfilled only if the authority bases its directives on the reasons that apply to the subjects (the “dependency thesis”) and if the subjects take their directives as “exclusionary” or “precautionary” reasons (see section 1 above), displacing their own judgments about what should be done on the merits (the “preference thesis”). three points need emphasis. First, a normal justification is not a single justification, but typical of a variety of practical and theoretical authorities. in its central idea is that justified authorities help their subjects to do what they already have good reason to do; it does not apply when it is more important for subjects to decide for themselves than to decide correctly. second, although njt has similarities to rule utilitarianism, it is not a utilitarian theory: that requires further compromises about what kinds of reasons are relevant and how indirect policies can be followed. third, njt does not require a valid authority to promote the self-interest of the subject. for example, if there are investments that it is immoral to make (eg, in countries that tolerate slavery), then a consultant’s recommendations deserve deference only if they drive one away from those investments: it is not enough (or permissible) for them maximize one’s financial capacity. returns. njt is governed by the reasons that correctly correspond to the case, not for reasons that the agent is aware of, or that serve his own interest in the strict sense.

something like this captures how we justify deferring to the expert opinions of scientists or the advice of doctors who know more than we do. if we tried to question them, we could not benefit from their experience. accepting them as authoritative therefore requires deferring to their judgment and allowing it to displace our own assessment of what to do. it is not a matter of blind deference: the subject remains attentive to considerations of a higher order that determine whether the authority is trustworthy, acts in good faith, etc. and deference may be limited in scope and subject to controls of its effectiveness over time.

To what extent do such considerations apply to political authority? the idea that political authority is justified primarily by virtue of some valuable service it provides to those subject to it certainly seems appealing. and the view has a broader application than we might initially think, once we consider the important role that political authority is normally seen to play in creating or supporting worthwhile schemes of social cooperation. If we have reason to support such schemes and the NJT is correct, we may be justified in obeying authority, even if the schemes in question are not ones we would have chosen ourselves. therefore, the njt is considered by many to be well placed to justify compliance in general “coordination problems” and in situations where individual reasoning may backfire, for example in prisoner’s dilemmas.

One concern that some have raised about njt is that while it can vindicate the claim that we have reasons to act as required by authority, it seems unable to vindicate the claim that we have an obligation to do so. As we have seen, authorities are usually thought of as having the moral power to impose obligations on us, or at least the right to compel us to act as they require. experts, by contrast, lack that power. refusing to comply with their directives, no matter how foolish, does not give them the standing to enforce compliance or penalize us if we refuse. one of the main objections raised against njt is that it blurs the distinction between being subject to someone’s authority and simply receiving expert advice (perry 2005; himma 2007; darwall 2013: chs. 8-9; tadros 2020; but see root 2010). Another objection is that the raz view does not pay enough attention to the procedural aspects of justifying political authority. We normally think that it is important that the decisions of political authorities be the product of fair democratic procedures, but a purely instrumental justification seems insensitive to this type of consideration (Waldron 1999; Shapiro 2002; Hershovitz 2003; Christiano 2004; Viehoff 2011).

In terms of its ability to deal with coordination problems, it is not clear to what extent deference to authority is really necessary here. The extent to which people need authoritative guidance to secure cooperation varies by context, and the law may solve some cooperation problems simply by providing information or restructuring incentives (see Green 1988: 89-157). that suggests that njt covers only a narrow range of legitimate state activities. but in another sense, njt seems too broad. we do not believe that political authority should be recognized as long as rulers can better ensure conformity to right reason. there are matters that are too trivial or otherwise inappropriate for political regulation. therefore, some sort of threshold condition may need to be met first, and should not be limited to issues of general social importance. (Raz’s view has had a widespread influence on the debate, spawning a vast literature. Recent works relating to it include Shapiro 2002; Perry 2012; Enoch 2014; Macklem 2015).

5.2 necessity and natural duty

need-based arguments may be motivated by precisely that concern. in this account, it is not enough that someone can help others to track the correct reason, he must be able to do it within a certain domain. Locke thought that the most urgent question for political philosophy was “to distinguish exactly the affairs of civil government” (Locke 1689 [1983: 26]), to determine what things are properly Caesar’s. some contemporary writers take a related view. Elizabeth Anscombe argues that the domain of authority is the domain of necessary social functions.

5.3 constituent obligations

A third type of non-transactional view challenges the very idea that a justification is needed for political obligation. for example, thomas mcpherson writes

[w]hy should I obey the government is an absurd question. we have not understood what it means to be a member of political society if we assume that political obligation is something that we may not have had and therefore needs to be justified. (mcpherson 1967: 64)

From this point of view, the many attempts to find independent moral principles to justify the obligation are not simply wrong, they are conceptually confused; they exhibit a “symptom of philosophical disorder” (pitkin 1965 [1972: 75]). instead, the question of political obligation must be addressed by paying attention to the meaning of “member”.

it is hard to find philosophers who still think that normative questions can be resolved by linguistic considerations, but margaret gilbert (2006) has recently proposed a more sophisticated version of this strategy, based on the idea that members of political communities they jointly commit to defending their institutions and are therefore obliged to play their part in the execution of this joint commitment. (Note, however, that for Gilbert, these obligations are not moral in nature, and therefore her view is, in this important respect, very different from all the other views we are considering.)

A more influential version of the constitutive argument appeals to the value of associative obligations. the starting point here is the observation that we often find ourselves involved in relationships and practices that carry special responsibilities. Even when we have not chosen to be part of them, it is our very membership in them that brings with it distinctive “role obligations” (Hardimon 1994). To fail to realize this fact is to misunderstand the responsibilities and practices in question (Dworkin 1986: 198). it is in this sense that ronald dworkin affirms that

[p]olitical association, like family or friendship and other more local and intimate forms of association, is itself pregnant with obligation. (dworkin 1986: 206)

We can make sense of these valuable practices and relationships only if we correctly understand the role that the obligations associated with them must play. Indeed, some go further, arguing that since these roles are often crucial components of our own identity, it is necessary to correctly understand the obligations in question to avoid alienating ourselves (Horton 2010; Tamir 1995). the social preconditions of our identity are partially constituted by these obligations, so it is necessary to make sense of them in order to ultimately make sense of who we are. By making sense of these obligations, we ultimately make sense of ourselves.

Some have resisted this move by pointing out that while people in organic associations often feel obligations to other members, we typically look for an independent reason to justify them (see Simmons 1996; Wellman 1997). after all, it is not surprising that members who have been socialized into a given practice feel that their identity is shaped in important ways by the responsibilities associated with it. the concern is that, in the absence of a rationale for this treatment, these feelings are simply an example of false consciousness. However, it is worth noting that while this might be an objection to communitarian versions of the theory (Horton 2010), it is not an objection against Dworkin’s formulation of the associative view. dworkin thinks we have

a duty to honor our responsibilities according to the social practices that define groups and attribute special responsibilities to membership. (dworkin 1986: 198)

Provided that the members of the group believe that their obligations are special, personal and derive from a good faith interpretation of equal concern for the well-being of all its members. but for him these conditions are not a matter of the actual feelings and thoughts of the members. rather, they are interpretive properties that we would do well to impute to the members. still, why think that they ground a duty of obedience, as opposed to a duty of respectful care, or a duty to apologize for instances of non-compliance? Certainly obedience is not part of the virtue of Dworkin’s paradigm of “fraternity”: mutual help and support are the normal obligations there. Indeed, the classical associative model for political authority was not brotherhood but fatherhood, against which Locke argued so decisively. This does not deny that we owe something to those decent associations of which we are involuntary members, but this does not seem enough to claim political obligation (from Dworkin’s point of view, see Perry 2008).

A second objection to the associative model is to point out that even if we admit that the model can justify the obligations owed to members of small groups, which are structured around close personal interactions, this still does not mean that we can Do the same with obligations that members of large groups, such as our political communities, have, most of which we never have the opportunity to meet or interact with (Simmons 2001: Chapter 4; but see Horton 2010 and Gilbert 2006). however, it is not clear how forceful this obligation is. Suppose I haven’t been able to interact with my parents or siblings for most of my life, or even all of it, for reasons that neither of us could control. does that mean my special obligations to them are automatically cancelled? perhaps, under certain circumstances, but not necessarily.

A more promising objection is to the idea that associative obligations are not voluntary. this is certainly true if by “non-voluntary” we mean that we do not necessarily choose to enter into the relationships and practices that are intended to generate the obligations. While it may not be clear whether we can choose to become someone’s friend (rather than have our friendship form spontaneously), we do not normally choose to enter our family. still, it is possible for parents to disown their children and for children to disown their parents, under certain conditions. When the attitudes of reciprocal trust and affection that should sustain these relationships disappear, the obligations that accompany them are significantly weakened and possibly extinguished. this has led some to argue that associative responsibilities are best understood as “quasi-voluntary”. although they are not based on the choice to enter the relationship with which they are associated, they are conditional on the relationship being approved of, if only in the minimal sense that we could have gotten out of it if we wanted to (renzo 2012; but see dagger 2018: 79-82). but once we travel this path, we are confronted, once again, with the concern that afflicts voluntaristic accounts, such as those that appeal to consent or fairness. if endorsing our membership in the political community is a condition for having the role obligations associated with that membership, then anyone who does not does so lacks political obligation.

6. skepticism and anarchism

As the above study suggests, there are plausible objections to each of the dominant justifications for the duty to obey the law. (For useful evaluations of other theories, see also Wasserstrom 1963; Smith 1973; Simmons 1979; Huemer 2013). each leaves significant gaps in the law’s authority. This is not proof of impossibility: 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 for our casuistic judgments. the problem is that the typical justifications of authority are all context-sensitive in a way that the claims of law are not. to put it another way, the law itself purports to determine to what extent and in what contexts it binds its authority. (For a formulation of the skeptical view that explores its relationship to legal positivism, see Kramer 1999).

The resulting skepticism about the obligation to obey has given rise to a debate about its meaning (Sir 1987; Gans 1992: 90). As in other areas of philosophy, skeptical conclusions are treated by some as a reduction of whatever premises seem to support them; others are inclined to follow arguments where they lead. When evaluating the importance of skepticism, several points need to be considered.

To begin with, skepticism about political obligation arises from the special characteristics of legal authority, in particular, its wide reach, its institutionalized character, and its moral fallibility. that is why the family principles by which we justify the authority of teachers, parents, doctors, or executors do not easily generalize to cover all laws. most skeptical arguments have to do with overreaching. They do not deny that legal authority is often valuable, or that there is often a content-dependent reason for doing what the 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 only deny that the conscious subject is obliged to take the law literally, that he must share the self-image of the state.

This is not the same as endorsing a “pick and choose” policy. it is consistent with a mixed policy: there may be areas and matters in respect of which an obligation of obedience must be accepted and others in which compliance must be apportioned according to merit. hart writes:

The recognition of an obligation to obey the law must at a minimum imply that there is at least some area of conduct regulated by law in which we are not free to judge the moral merits of particular laws and condition our obedience to this judgment. (hart 1958: 104)

skeptical arguments need not deny that such an area exists; they deny that it matches the actual claims of the law.

Second, obligation skepticism does not imply legitimacy skepticism: one can assert that the law has a right to coerce while denying that all subjects of the law have a duty to obey it (see Green 1988; Simmons 1979; Edmondson 1998). skepticism about the possibility of legitimate government leads to anarchism of the ordinary kind; skepticism about political obligation leads only to what is called “philosophical anarchism”: the denial that the law has all the authority it claims for itself.

Third, skepticism is not the view that assuming the obligation to obey would be inadmissible, as suggested by anarchists like William Godwin or R. p. wolff and extreme individualists like thoreau. rather, skeptics argue that there are other morally permissible attitudes toward the law as well. these attitudes may be more prevalent and more justifiable than some philosophers suppose.

Finally, it is worth noting that, if successful, the objections considered above only show that there is no principle capable of grounding political obligation over all those over which states claim authority. but why think that a sound theory of political obligation should appeal to a single principle? Perhaps our best account of political obligation will employ different principles to justify the state’s right to demand our obedience in different areas (Klosko 2005) and on different individuals (Renzo 2012 and 2014). one way to overcome skepticism about political obligation is to be pluralistic about it (j. wolff 2000; knowles 2010; mokrosinska; 2012)

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Legal Obligation and Authority (Stanford Encyclopedia of Philosophy)