Everyone knows that a legal system can, and does, tolerate a certain amount of harmless disobedience and that this in no way hampers its capacity to function.
But whose consent, and to what? A voluntarist theory requires the actual consent of each subject. But this cannot mean consent to every law or application thereof. Consent is more commonly proposed as a part of the constitution rule that sets up the political community in the first place.
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For consent theorists, an A-B interaction does not become a candidate for authoritative regulation until A and B agree to unite under one jurisdiction. We cannot ask which or what sort of authority is justified over both the Kurds and the Shiites in Iraq until we answer why there should be one at all. Beyond this foundational role, however, consent theorists take different views of whether it has any further significance in policy. Locke thinks it is then displaced by majority rule by delegates as the natural procedure for most decisions; for Rousseau, this is but another form of slavery.
Even in its confined role, however, consent has attracted powerful criticism. For a good survey see Simmons , 57—; for a qualified defence see Beran These focus on the questions of whether it is in fact given and, if given, whether it would bind. Consent is not mere consensus or approval; it is a performative commitment that undertakes an obligation through the very act of consenting. Like other promises and oaths, however, there are limits to its validity. We need to ensure that consent is not defeated by mistake, coercion or duress. It must also respect substantive limits on its validity.
Locke argues that one cannot consent to be killed, and thus not to slavery, and thus not to anything tantamount to slavery, including absolute government. One can imagine a similar argument to the conclusion that political consent must be revocable. But as we build in all these validity conditions the commitment itself seems to be doing less and less work. Consent is saved from irrelevance only if we can explain why we also value a power to bind ourselves to obey. Three sorts of arguments have been popular.
First, there are instrumental reasons for wanting deliberate control over the liability to legal duties. In political authority, where the stakes are as high as they come, the power to give and withhold consent serves an ultimate protective function beyond what we could expect from the fallible institutions of limited government.
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Third, though consent is defined by its performative character, ancillary non-performative features naturally accompany it: consent also expresses the acceptability, or at least tolerability, of the government. This may mark consented-to rulers as salient from among a number of possible contenders, and it may signal that they stand a good chance of being effective, which is itself a necessary condition for the justification of any political authority. It is open to doubt how persuasive such considerations are. But matters are even worse, for it is in any case clear that many people have done nothing 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 Other acts are even less plausibly so interpreted. Whatever the moral relevance of these facts, they do not count as consent, for people do these things without imagining they will create obligations, and they do them in circumstances in which they have no feasible alternative. Other non-promissory actions, for example voting or participating in politics, fare no better: many do not vote, and few who do regard it as undertaking any duties at all. Perhaps we can say that if people consent, and if the relevant legitimacy conditions are fulfilled, then they will have a duty to obey the law.
That is obviously a far cry from establishing law's claims. Consent supposes that obligations of obedience must be somehow undertaken by acts the point of which is to assume an obligation. There are weaker forms of voluntarism. Some relationships that one may freely enter or at least exit are marked by obligations.
In essence, this is a voluntarist version of the theory of constitutive obligations considered above in Section 4. On such views we are bound to obey because that is an appropriate expression of emotions we have good reason to feel: gratitude to the law for all that it gives us, respect for its good-faith efforts to guide us, or a sense of belonging to the community. In the last case, the relationship cannot merely be that of being a subject of the law; it must be something like membership in the community whose law it is Raz , — Friendship provides an analogy. People choose their friends, but not in order to have obligations to them.
A flourishing friendship does, however, bring obligations in train. In addition to the familiar reasons for fulfilling its duties of support, honesty, reciprocity etc. This is bound to be a somewhat loose fit—the institutional and bureaucratic structure of law means that it will generally be an imperfect expression of the society it regulates. And, as Raz notes, expressive arguments apply only to those who actually stand in this special relation; they do not show that it is obligatory to do so, nor that it is obligatory to express one's loyalty in this way rather than some other.
Moreover, it is unclear why we should even think that obedience is a fitting expression of this sort of relationship in the first place. Is this a well-entrenched convention? Is it somehow normatively appropriate? Loyalty to one's friends is not normally shown in obeying them. Why should loyalty to the community be any different? Perhaps the most influential voluntarist argument grounds political obligation in neither performative nor expressive acts, but in a bare willingness to benefit from a system of mutual restraint.
This is the territory of fairness, or fair play, as articulated by Hart and elaborated by Rawls The core idea is that those who accept the benefits of fair scheme of cooperation have a duty to do their allotted part under that scheme: if others obey the law to our benefit, we owe them a duty not to take a free-ride on their compliance. The idea that law's benefits must be accepted may not be a necessary condition for the validity of all obligations of fair play Arneson ; Klosko , but it is essential for any that aspire to be consistent with political voluntarism. If a scheme of cooperation simply thrusts benefits on people as the unavoidable fall-out of the cooperative activity of others—even very valuable benefits—any duty of compliance would have to be justified by one of the non-voluntary principles considered above.
A Pragmatic Reconstruction of Law’s Claim to Authority
Adding the acceptance condition does not of course reduce fairness to consent: those who jump subway turnstiles do not mean to assume an obligation to pay the fare. But it does renders fairness vulnerable to the very same objection : not enough people perform the relevant action.
What's more, not all cases of disobedience can plausibly be represented as free-riding, and obligations of fairness track the jurisdiction of the law only in a rough-and-ready way. Fairness will give rise to obligations whenever there is a beneficial practice of mutual constraint and accepted benefit—it matters not whether this is sustained by a law claiming jurisdiction over the subjects. As the above survey suggests, there are plausible objections to each of the dominant justifications for the duty to obey the law.
For helpful assessments of other theories, see also Wasserstrom ; Smith ; and Simmons Each leaves significant gaps in the authority of law. This is not an impossibility proof—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 to our casuistic judgements. It is that the typical justifications for authority are all sensitive to context in a way that the claims of law are not.
To put it another way, law itself purports to determine how far and in what contexts its authority binds. The resulting scepticism about the obligation to obey has given rise to a debate about its significance Senor ; Gans , As in other areas of philosophy, some treat sceptical conclusions as a reductio against whatever premises seem to support them; others are inclined to follow the arguments where they lead.
In assessing the significance of scepticism, one needs to bear in mind several points:. Austin, John Bentham, Jeremy free rider problem law: and language nature of law nature of law: interpretivist theories nature of law: legal positivism nature of law: pure theory of law. Obligations In the Law 2.
Authority, Obligation, and Legitimacy 3.
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Obligations to the Law 4. Non-voluntarist theories 4. Voluntarist Theories 5. Obligations In the Law Every legal system contains obligation-imposing laws, but there is no decisive linguistic marker determining which these are.
See Dworkin , 54—58; Green , 88— A third account is reason-based. Authority, Obligation, and Legitimacy A competitive market is not a legal system, even though people adjust their behaviour in response to relative prices and the whole constitutes a form of social order. 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 properly extend?
The problem of legitimacy : What if anything justifies the coercive power of law, and how far may that power properly extend? Finnis , 3. Obligations to the Law It may affirm our confidence in the obligation-correlative view to know that from earliest times philosophical reflection on political authority has focussed on the obligation to obey. Non-voluntarist theories 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.
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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 to comply with reasons which apply to him other than the alleged authoritative directives if he accepts the directives of the alleged authority as authoritatively binding, and tries to follow them, than if he tries to follow the reasons which apply to him directly. Raz , ; cf. Scepticism and anarchism As the above survey suggests, there are plausible objections to each of the dominant justifications for the duty to obey the law.
In assessing the significance of scepticism, one needs to bear in mind several points: Scepticism about political obligation flows from the special features of legal authority, in particular, its wide scope, its institutionalized character, and its moral fallibility.
That is why the familiar principles by which we justify the authority of teachers, parents, doctors, or executors do not readily generalize to cover all laws. Most sceptical arguments are about over-reach. They do not deny that legal authority is often valuable, or that there is often content-dependent reason to do what 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 deny only that the conscientious subject is bound to take the law at its word, that he must share the self-image of the state. Sceptical arguments need not deny that there is some such area; they deny that it coincides with law's actual claims.
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. See Green ; Simmons ; and Edmundson. Scepticism is not the view that assuming an obligation to obey would be impermissible , a view of anarchists like William Godwin and Wolff and extreme individualists like Thoreau.
Sceptics say that there are also other morally permissible attitudes to have towards the law.
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