Thus far, I have argued that law does not claim that subjects have reasons to defer to its judgments. But a central question for political theory has always been whether subjects do in fact have such reasons – a question typically posed by asking whether there is a prima facie obligation to obey the law. In Part II, I defend an affirmative answer to the question but do so indirectly. Instead of beginning with the question of political obligation, the next two chapters examine in turn two standard paradigms of obligation – promises and fair play – in order to show how these paradigms are themselves better understood when re-presented as examples of deference. The analysis of these two chapters will then be extended to the question of political obligation.
Two reasons justify starting with the problem of promissory obligation. First, political theory often assumes that political obligation could be established if only one could demonstrate actual or implied consent to the state. Most consent theorists, accordingly, focus on the kinds of actions that can plausibly be said to show consent. In this chapter, I argue that the implicit priority thus accorded to consent or promise is unwarranted because the difficulties of explaining why and how promises obligate are almost exact analogues of the difficulties that attend attempts to defend political obligation. Two consequences, one negative and one positive, result.
In Chapter 1, I suggested that current legal theory, confronted with law's apparent moral claims, tends toward two mistakes. The first mistake is to demote law's claims, making them accidental rather than necessary features of legal systems. Under this view, legal systems are essentially coercive. The fact that many such systems make normative claims for their directives is no more critical to the understanding of the concept than the fact that legal systems make different kinds of normative claims, reflecting the different ways in which state power can be organized. No one would suggest, for example, that the concept of “legal system” properly applies only to those systems that make a particular type of normative claim about their right to coerce – democratic claims, say, rather than totalitarian ones. In like fashion, it is suggested, we should not limit the concept to just those systems that make normative claims in general of whatever type: What counts in deciding that systems are legal is the organized coercion that distinguishes legal systems from, say, religious and moral systems.
The second mistake in current characterizations of law's claims errs in the opposite direction by promoting those claims to what I previously described as strong moral claims. It is easy to see how this promotion might occur. Modern positivists recognize that the normative claims about law's moral force are presented as serious (at least by insiders); but since it must be obvious, even to insiders, that officials can make mistakes and that particular norms can thus (however unwittingly) be unjust, the claims about law's moral force must be about the duty to obey law just because it is the law: Law must, in short, claim practical authority.
Theoretical and Practical Authority
This chapter and the next consider in turn two questions about authority: (1) What do we mean by authority? (2) Does the law claim authority? Both chapters are preludes to a third question to be considered at the end of Part II: (3) Does law have authority? That these are distinct questions may not seem obvious; if, for example, law has authority, it might seem natural to suppose that legal systems necessarily claim authority. As indicated in the preface, however, I argue here not only that these are distinct questions but that they deserve distinct answers: Law has authority but does not claim it. But, though the questions are distinct, the first question concerning the nature of authority is closely connected to each of the latter two questions. That is because conclusions about whether law has or claims authority may depend on what one means by “authority.” This chapter thus begins with that question: What does one normally mean when one ascribes authority to a person or to the state?
Philosophers who discuss this question commonly begin by distinguishing theoretical from practical authority. Theoretical authority, it is usually said, is authority about facts, about what is the case; practical authority is authority about action, about what one ought to do. Theoretical authority does not provide one with new reasons for action but only with new reasons for belief (which may, of course, be relevant to action); practical authority, in contrast, provides new reasons for action.
Moral Inquiry and the Problem of Autonomy
When we say of someone, “He has the morals of …(an animal) (a saint),” we engage in a commonsense way in the same activity that sociologists pursue in a professional way: (1) we construct from the description of a person's behavior the implicit normative principles that guide the person's actions; (2) we separate the descriptive parts of an inquiry (what are the principles guiding the behavior?) from the ultimate evaluative issue (should this person's morals be approved/condemned?). Of course, in the commonsense case, evaluation is often just a step behind description – to say that someone has “the morals of an animal” would normally serve to censure as much as to describe. It may even be that most of the time when we talk this way about “the morals of a person,” we implicitly intend to censure: We could say that someone “has the morals of a saint,” but it seems more natural, when praise is intended, to say simply that someone “is a saint.”
Putting aside this last question of whether a disparaging judgment is normally intended, we can talk about “law's morals” in the same way that we do a person's morals: We can describe the ways that legal systems present themselves to those subject to them and reconstruct from that description the implicit normative principles that underlie the legal system's actions.
The Logic of Deference
The Limits of Deference
My aim thus far has been to show that four recurring examples of human interaction – friendship, promise-keeping, fair play, and political obligation – can be re-presented as examples of the duty to defer to the views of others even if those views are incorrect or misguided. In this chapter, I consider somewhat more fully the normative basis for the argument for deference, including limits on the argument's reach. I also help illustrate and defend the argument by comparing other theories about the duty to obey the law that share similarities with the theory sketched here.
Forms and Varieties of Communities
In previous chapters, we considered two major types of community, competitive and cooperative, and indicated how the duty to defer may depend on the argument for preferring one or the other in particular contexts. I do not suggest that these broad types are exhaustive of the kinds of communities one might encounter, but only that they are particularly prominent alternatives that figure in the argument for deference. While it would be a mistake to assume that the four paradigm examples discussed here are the only examples that raise the question of deference, one must be careful not to so weaken the argument for deference that it collapses into a question of common courtesy. The varieties of relationships and occasions in which such questions might arise are as limitless as the human ability to imagine and form associations.
The previous two chapters illustrate some of the advantages to be gained from re-presenting familiar problems about the obligations of promise and fair play as problems of explaining why one might have reasons to defer to the normative views of others. This chapter attempts a similar re-presentation of the obligation to obey the law. I shall suggest that this problem, too, is best seen as a direct application of a theory that shows why citizens may always have reasons to defer to the legal norms of the state. But I shall begin by first attempting to apply the more traditional argument about fair play as a basis for political obligation. Since we have now shifted the focus of fair play arguments from benefits conferred to the duty to respect the normative judgments of others, it may be that this new focus will help solve standard problems in using fair play to establish a prima facie obligation to obey the law.
Political Obligation and Fair Play
I suggested earlier that fair play arguments for political obligation have become a popular alternative to arguments based on consent because they have the advantage of generating duties in exactly those cases where consent theories are weakest: namely, where citizens who derive benefits from living in a state cannot, by any reasonable interpretation of their conduct, be said to have agreed or promised to do anything in return.
Before proceeding to the normative half of this study to examine whether law actually has moral authority, this chapter briefly summarizes the conclusions of Part I by indicating how they bear on certain familiar issues in legal theory. Three distinct but related questions dominate discussions about the nature of law. Two of these questions have long-standing pedigrees as critical paths to a better understanding of the concept; the third question, a more recent arrival on the scene, is a close cousin of the first two and shows signs of becoming equally central to the current debate. The three questions are: (1) what do we mean by legal “obligation”?; (2) what is the connection between law and morality?; and (3) what is the connection between law and certainty?
The Meaning of “Legal Obligation”
Moral philosophers usually distinguish between what one ought to do and what one is obligated to do. Obligations, it is usually said, are more important or more serious than mere oughts. Though there is disagreement about exactly how to model this difference in force, the suggestion that obligation is more serious has nothing to do with the fact that oughts can be used in nonmoral contexts as well as moral ones. For even when moral oughts are the focus, it is usually thought that to say one ought to do something falls short in terms of significance from saying that one has an obligation to do the same.
Mary and Jim are roommates. They share an apartment with separate bedrooms and common living and eating areas. Both suffer during the winter from dry air – a problem that can be solved by installing a humidifier that will add moist air to the entire apartment. The cost of a humidifier is significant for both Mary and Jim. One day, Mary installs a humidifier and asks Jim to pay half the cost. Does Jim have an obligation to pay?
The literature on the duty of fair play is filled with variations on this simple example. In fact, the inventiveness of theorists in creating hypothetical cases to test intuitions about the duty of fair play is matched only by – and is probably a reflection of – the inability to reach a consensus about the underlying theory that grounds such a duty. It is as if, to borrow from Rawls's concepts of reflective equilibrium and considered judgments, explanations of the duty of fair play are so confused or lacking in consensus at the level of general theory that most of the work continues to be done at the level of intuition. Examples and counterexamples parade for inspection in the hope that judgments about whether a duty exists in a particular case can be connected to a general theory, thus making the judgments more secure and considered.
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