Artur Szutta

University of Gdańsk, Poland

Arguments supporting the legal obligation thesis

The legal obligation thesis: We are (morally) obliged to obey the law.

Arguments:

  1. Because so says the law (positivist argument);
  2. Because such is our community’s practice (communitarian argument);
  3. Because pacta sunt servanda (social contract argument);
  4. Because we ought to show gratefulness;
  5. Because this is the will of majority;
  6. Because disobedience is not fair;
  7. Because the consequences of disobedience would be disastrous;
  8. Because the law is a just institution;
  9. Because obedience to law is required on the basis of the obligation to respect other persons’ dignity.

The conclusion: Arguments from 1 to 7 are not sufficient to demonstrate that all the adult citizens of a given state are (morally) obliged to obey the law. They all need their fulfillment by either argument 8 or 9. It also seems that argument 8 when explained requires something more than just stating that we (as citizens) think that we should treat each other as equal and free moral beings. The fact that given citizens share such convictions does not prove their validity. A convincing anthropology showing that we (citizens) owe each other respect is needed, and Personalism seems to offer such justification. Such statement does not mean arguments 1 to 7 have no value in supporting the legal obligation thesis, but it means that these arguments are conclusive only in the light of the deeper assumptions offered in arguments 8 and especially 9.

In this presentation, due to the time limits I will restrict myself only to the analysis of the first of the above arguments.

Analysis of the arguments:

  1. “Because so says the law” (positivist argument)
  1. the argument:
  1. the form of the argument:

(1)if the law says I should do x, I am legally obliged to do x

(2)there is a law

(3)the laws says I should do x

(4)therefore I am legally obliged to do x

  1. To ask why one should do what the law commands him to do is not to understand the nature of the law(R. Wasserstrom)
  2. what islaw and legal obligation?

(1)distinct from moral obligation

(2)a useful metaphor of a game and its rules

  1. objections:
  1. True:

(1)it does not make any sense to play a game while ignoring its rules

(2)one can think of social life as a civic game

  1. However:

(1)There is a decisive difference between games like chess, football and ‘the civic game’. One freely chooses to play or not to play a game but one has not such a choice in case of participating in the civic enterprise.

(2)How then to demonstrate the obligation to participate in the game?

  1. possible defenses and further critiques:
  1. Higher order law:

(1)Positivist might say:

One can formulate a higher order rule commanding that “one should participate in the civic enterprise [and therefore to follow legal commands]”.

(2)Objection:

Higher order law itself needs justification which cannot be found in another third (fourth, etc.) level law. Such argument leads to regressio ad infinitum.

  1. Separation of law and morals(H.L.A. Hart, A. Fortas)

(1)Positivist might say:

One has to distinguish legal obligation from moral obligation.

(a)While moral obligation refers to people as moral beings, legal obligation refers to people as citizens already participating in civic enterprise

(b)The argument is not about the obligation to participate in the civic game but about how the participants (as participants) of the game should behave.

(2)Objection:

The separation of moral and legal obligation does not help much because:

(a)Even if we agree that there is a specific deontic category as legal obligation (distinct from moral obligation, referring only to de facto citizens), the open question remains: why should we feel obliged to keep participating in the civic game? The legal obligation cannot oblige me (on its mere legal obligatory basis) to keep participating in the civic enterprise). It requires some external support (probably of the same kind as the obligation to join such an enterprise).

(b)Such deontic value of legal obligation necessarily assumes some normative (moral) dimension, without which it will always be only a conditional obligation (type if...then..) while we perceive obligations rather as categorical (“you are obliged to do x”; not “if you accept your being a citizen then you are obliged to do x”).

  1. Sanction (J. Austin)

(1)Positivist might say:

there is a legal obligation in the sense that legal command, as legal, constitutes a reason for acting in a given way. Such a reason could be created by sanction, or more generally by wanted or unwanted outcomes of obedience/disobedience.

(2)Objection:

Sanction (or desired/undesired outcomes) although might constitute a reason for acting in a certain way, it cannot by itself generate obligation.

(i)If sanction or reward were to define legal obligation than the nature of legal obligation would not differ significantly from the command of a tyrant or a bandit that threatens to shoot us if we do not do what he or she wants us to do.

(ii)Of course, facing the bandit with a gun pointed at our children, we might feel morally obliged (or justified) to do what we are required, but this moral obligation would rather be based on the duty to care for our children, not duty (or obligation) to follow orders supported by sanction.

  1. “legitimate rules” (H.L.A. Hart)

(1)Hart’s point:

(a)Obligation to obey the law is not created by sanction but contrary to that, disobedience to law gives reasons to apply sanction

(b)The legal rule is obligatory not because it is supported by the will of the authority (or by virtue of sanction) but because it is legitimate.

(c)Distinction (primary/secondary rules):

(i)Primary rules tell what citizens should (not) do

(ii)Secondary rulesdetermine procedures according to which the primary rules should be constituted.

(d)Legitimate rule:

(i)(concerning the primary rules)the one thatwas constituted in accordance with the secondary rules that regulate how new rules in the legal system should be formed

(ii)(concerning the secondary rules) the one that has been accepted by virtue of a given practice

(2)Objection:

(a)The whole argument seems to rest on the concept of acceptance.(If there is or was such a fact as acceptance of a given secondary rule, than all the primary rules issued in accordance with it should be obligatory by the virtue of that acceptance.)

(b)However such argument is of a different kind than the argument analyzed here. It acceptance it refers to is an element (precedent) external to the system of law, constituting the system of law rather than being constituted by the system. This argument should be labeled as “social contract argument” and it will be the subject of our analysis in another place.

  1. Conclusion:

In the light of the above analysis,positivistic argument (according to which there is a separate category of legal obligation that conveys its obligatory value exclusively by virtue of its being element of a legal system [defined also as a civic game or enterprise]) seems to be inconclusive, thereforedefending legal obligation requires further argumentationwhich reaches out the legal system itself.

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