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Legal Obligation and Authority SEP.md

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---
bibtex: @InCollection{sep-legal-obligation,
    author       =  {Green, Leslie},
    title        =  {Legal Obligation and Authority},
    booktitle    =  {The Stanford Encyclopedia of Philosophy},
    editor       =  {Edward N. Zalta},
    howpublished =  {\url{http://plato.stanford.edu/archives/win2012/entries/legal-obligation/}},
    year         =  {2012},
    edition      =  {Winter 2012},
  }
---

Legal Obligation and Authority

Leslie Green, SEP Entry

  • All legal systems recognize, create, vary and enforce obligations and these obligations are central to the social role of law

  • Obligations exist both in the law and to the law.

  • The moral obligation to obey is defined as political obligation.

  • Bentham argues that every legal system can and should be represented solely in terms of duty- imposing and duty-excepting laws.

  • Law can only be understood in relation to duties.

  • A legal right is an interest that warrants holding others under an obligation to protect it, a legal power is the ability to create or modify obligations.

  • Legal obligations are legal requirements with which law's subjects are bound to conform.

  • the normal function of sanctions in the law is to reinforce duties, not to constitute them.

  • HLA Hart - a legal duty is morally valid only if there are sound moral reasons to comply with it.

  • Raz - obligations are categorical reasons for action that are also protected by exclusionary reasons not to act on some of the competing reasons to the contrary. Obligations exclude some contrary reasons but they do not normally exclude all: an exclusionary reason is not necessarily a conclusive reason.

Non-Voluntarist Theories

  • constitutive obligation

    membership itself imposes obligations. but why these specific obligations and not others?

  • instrumental justification

    obligations to authority help subjects do what they otherwise ought to have done. Raz's normative justification thesis

  • necessity

    authority's domain is limited to necessary social functions. justice may necessitate obligation.

Voluntarist Theories

  • consent

    obligations come from our consent to an authority. typically used to justify the establishment of communities.

  • expressive obligations

    obligation expresses an appropriate emotion of membership, ie gratitude

  • fairness

    those who accept the benefits of fair scheme of cooperation have a duty to do their allotted part under that scheme.

Selected quotes

"The question of political obligation, then, turns on whether there is are moral reasons to obey the mandatory requirements of a wide-ranging, morally fallible, institutionalized authority."

"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."

"Scepticism about the possibility of legitimate government leads to anarchism of the ordinary sort; scepticism about political obligation leads only to what is called “philosophical anarchism”: the denial that law has the all authority it claims for itself."