LEGAL OBLIGATIONS TO THE LAW
Every legal system contains obligation-imposing laws, but there is no
decisive linguistic marker determining which these are. It is the nature of the
law that there is an obligation to obey it. Some legal theorists go so far to
say that it is absurd to ask for any ground of the duty to obey the law: law is
that which is to be obeyed. Three features of law are especially important:
First, 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 scope. Law is not limited to the affairs of
small face-to-face groups such s families or clans, nor does it only attend to
a restricted domain of life. Law governs open-ended domains of large,
loosely structured groups of strangers and it regulates their most urgent
interests: life, liberty, property, kinship, etc.
Although law necessarily deals with moral matters, it does not necessarily do
so well, and this is the third feature: law is morally fallible.
A theory of political obligation 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. Three such arguments are:
Constitutive Obligations
There is no choice but to follow these due to specific political roles. They are
“already pregnant of obligation” and the will, choice or autonomy are not
taken into consideration. One feels obligated to follow the rules assigned by
that role. Here, Dworkin gives an example of family, friends, and other
possible social associations.
Problems that arise with this are that there is lack of definition of roles.
Instrumental Justification
A more typical non-voluntarist theory says authority may be instrumentally
justified as a way to help its subjects do what they ought.
The normal and primary way to establish that a person should be
acknowledged to have authority over another person involves showing that
the alleged subject is likely better off complying with the authority. IZ Raz
calls this the “normal justification thesis.” Here, if the authority convinces
alleged subject that the reason to obey is rational, it is termed as
“dependence thesis” while, if the subject feels obligated to respect the
authority based on the past results, looking at the merits of that law, it is
called “pre-emption thesis.”
Three points need emphasis. First, a normal justification is not a unique
justification, but one typical to a variety of practical and theoretical
authorities. At its core idea is that justified authorities help their subjects do
what they already have good reason to do; it does not apply when it is more
important for the subjects to decide for themselves than to decide correctly.
Second, although normal justification thesis has similarities to rule-
utilitarianism, it is not a utilitarian theory: that requires further commitments
about what sort of reasons are relevant and how about indirect policies may
be pursued. Third, normal justification thesis does not require valid authority
to promote the subject's self-interest.
Normal justification thesis is governed by whatever reasons correctly apply
to the case, not reasons of which the agent is aware, or which serve his self-
interest narrowly understood.
Necessity
These are mandated as necessary, and autonomy of the subjects is not
considered. Locke thought the most urgent question for political philosophy
was to “distinguish exactly the business of civil government.” It is not
enough that someone be able to help others track right reason, they must be
able to do so within a certain domain.
Voluntarist Theories
Consent
A distinctive theme of Western political thought is the idea that political
obligation is justified only by the consent of the governed. In Hobbes, Locke,
Rousseau, and Kant we find many variations on the claim that our duties to
law are determined by some form of individual agreement, whether express
or tacit. Promises, contracts, oaths, and vows all fall into this general area. In
its core meaning, consent of these sorts is not only voluntary, it is
performative: it is given with the intention of changing the rights, duties,
powers, or liabilities of another, and it succeeds in part because it is known
to be done with that intention.
The general characteristics of consent are:
- It justifies political authority
- Take into consideration each person’s consent
- It should have Constitutional Validity
- Consent is a performative commitment, ie, everyone will feel obligated to
follow because their consent was taken
- Allegiance may not always resolve to promise. Non- promissory conditions
can also lead to obedience. Consent need not always resolved to promise
Expressive Obligations
Even if the obligation to obey must be voluntary, it does not follow that it
must be the result of a performative act intended to assume an obligation. It
may be enough that obligation is in some way a necessary consequence of a
contingent relationship voluntarily created. In other words, it involves
emotions, gratitude, good efforts, and a sense of belonging to the
community. When one identifies as a part of a society, they feel obligated to
follow the laws because they wish to remain loyal to the society.
Fairness
This follows a “fair scheme of co-operation”, and is the bare willingness to
benefit from a system of mutual restraint. Political obligations are neither
performative, nor expressive. Fairness gives rise to obligations whenever
there is a beneficial practice of mutual constraint and accepted benefit. It
involves introspective consent.
From these two approaches, arise the following two implications:
1- Scepticism
Scepticism about political obligation flows from the special features of legal
authority, in particular, its wide scope, its institutionalized character, and its
moral fallibility.
Obligations may arise from different moral theories which, might, themselves
not be perfect.
2- Anarchism
It might be argued that law does not have the authority that it claims to have.
This leads to a compromise in obligations towards the law.
