AUTHORITY & OBLIGATION

2. The Sceptical Case — No General Duty to Obey

Smith — there is no prima facie duty to obey all laws

•    Against Rawls’ assumption of a duty: we often have a PF duty to obey particular laws, but no PF duty to obey all. Tests three families of argument, all of which fail:

◦    (1) Benefit-based — gratitude (accepting benefits incurs a debt): fails — no duty to be grateful for benefits foisted on you or given for ulterior reasons. Fair play (Hart/Rawls — Citizens are part of a cooperative scheme. Everyone restricts their liberty for mutual benefit, so it is unfair to take the benefits without obeying the rules): captures a real obligation but misses its limits — fairness can’t ground a duty to obey all rules (incl. unjust ones) AND if it doesn't help your fellows or harm the community, there is no reason to comply on "fair play" grounds

◦    (2) Consent/promise — direct consent is rare; indirect consent (Main objection is the Humean "you're not really free to leave,") — so it can’t ground a duty to obey all laws. Not binding.

◦    (3) Utility/general good — Brandt: a PF duty to obey holds iff general acceptance of "obey the law" beats any other rule (or none). Smith: it doesn't beat a more discriminating rule — "obey except where breaking the law is harmless/optimific" — so "obey the law" needn't be in the best set

TARGETS RAWLS: treating his fair-play/natural-duty argument as an extension from his central philosophy

Green — obligations to obey are content-independent

•    Obligations = content-independent + binding reasons that exclude competing considerations.

-        the exclusionary/second-order-reason element — the obligation requires you to set aside some of the first-order reasons you'd otherwise weigh, rather than just adding weight to one side

•    Sceptics do not deny that (1) there is often content-dependent reason to do what law requires; (2) some people have moral obligations to obey; (3) there are some laws that everyone has a moral obligation to obey — what they deny is that the conscientious subject must take the law at its word (your false (4) False: (4) everyone must obey all laws.

•    NOT NECESSARILY GREEN Focus on obedience conceals three real obligations underpinning legal order: to facilitate the rule of law, to know the law, to develop the law.

Wolff — the anarchist challenge

•    The state’s defining mark is authority (right to rule); man’s primary duty is autonomy (responsibility for one’s own moral choices, refusing to be ruled). These conflict irreconcilably.

•    So the concept of a de jure legitimate state is vacuous, and philosophical anarchism (denies the state has legitimate moral authority or a rightful claim to rule. It asserts that citizens have no ethical obligation to obey the law simply because it is mandated by the government is the only reasonable stance – BUT: They may even tolerate (this bit is more Simmons) the existence of a minimal government as a practical, unavoidable reality. Instead of organizing political uprisings, they focus on intellectual critique, personal autonomy, and ethical self-governance) (An anarchist may comply, but never treats commands as binding because commanded.) —

= THEY KEY FOIL FOR ANY ‘autonomy vs authority’ Q

BUT – Wolff doesn’t leave the conflict flatly irreconcilable - allows one theoretical exception, unanimous direct democracy, where everyone wills every law, so each is confronted only with laws he's consented to and men can harmonize the duty of autonomy with the commands of authority. He then rejects it as practically impossible

3. Defences of an Obligation

Rawls — fair play + natural duty

•    NO POLITICAL OBLIGATION TO OBEY THE LAW BUT duty to obey flows from

1.     the natural duty to support just institutions and

2.     the principle of fairness (obligations assumed voluntarily, provided the institution is reasonably just).

o   BUT THIS IS LIMITED – the Principle of Fairness requires a voluntary act (like accepting specific benefits or running for political office), critics argue it fails to bind the vast majority of citizens who have performed no such acts (Rawls himself recognises this limit)

-        Under a just constitution we must accept majority rule, so unjust laws bind ‘provided they don’t exceed certain limits of injustice’

•    Simmons's objection — a natural duty to support just institutions binds you to support any sufficiently just state, so it can't explain why you owe allegiance to your own

SO:

1.     Natural Duty – EVERYONE

2.     Fairness – OFFICIALS & THE VOLUNTARILY-ENGAGED ONLY

= a shift from his 1964 "Legal Obligation and the Duty of Fair Play," where he had grounded obedience in receipt of benefits

Raz — NO GEN OBLIGATION

•    Even in a good society there is no general obligation — not absolute, not even prima facie.

•    Redundancy Idea - in a good society the conscientious person does what the just laws require anyway - It is a mere shadow of other moral duties: the conscientious person would do what (e.g.) prohibitions on murder require anyway — the law is for those who deny their moral duties

•    Upshot: the extent of the duty varies person-to-person and case-to-case.

◦    RESPECT FOR LAW - the individual must obey the law only if he respects it, and that his respect is the source of obligation. Respect for law is a semi-voluntary attitude of identification with one's community (akin to friendship or loyalty) — those who have it have an obligation grounded in that attitude; those who don't, don't

•    Law lacks general authority – BUT – THE SERVICE CONCEPTION OF AUTHORITY - an authority is justified only if its directives help subjects better comply with the correct reasons that already apply to them, making it a "service" rather than an assertion of arbitrary power

•    SERVICE CONCEPTION IS DEPENDENCE THESIS + NJT

1.     The dependence thesis - a legitimate authority's directives should be based on the reasons that already apply to its subjects

2.     The Normal Justification Thesis - A body has legitimate authority over you when you are more likely to comply with the reasons that already apply to you by following its directives than by trying to work it out yourself.

3.     The pre-emption thesis = THE CONSEQUENCE - an authoritative directive isn't added to your own reasons as one more consideration to weigh, it pre-empts your independent reasoning

Finnis — law as coordination grounds genuine moral authority

•    Coordination explains the source of law’s moral authority: it lets people coordinate for the common good without imposing a single national enterprise.

The point of law is to solve coordination problems for the common good — and in a coordination problem what matters is that everyone lands on the same rule, not that it's the best rule. So law's authority comes not from the merits of its content but from features that let it work as the rule everyone defers to: it's taken as one whole package (no picking and choosing the bits you like) and it's set by clear procedures so everyone can identify it. Since everyone benefits from that shared scheme, fairness means that if you take its benefits you must also bear its burdens — i.e. obey. That's why the duty is general (it covers all law, not just the laws you approve of) and presumptive (strong by default, but a seriously unjust law can override it)

•    FINNIS V RAZ:

1.     RAZ: OBJECTS AS

A)    not all cases of law make a moral difference

B)    governmental authority is often unnecessary to resolve co-ordination problems

ie - many coordination problems are solved by custom or convention without any need for authoritative stipulation

2.     FINNIS: mere coordinating efficacy isn't the point; you must ask what it's for — the common good and real fairness

Dworkin — associative obligation + integrity

•    State coercion is legitimate ONLY IF citizens genuinely owe obedience – SO – obligation & legitimacy stand or fall together

•    That obligation isn't chosen (no real consent); it's associative — the kind you have just by belonging, like family or friendship. But it's only genuine if the community's practices meet four conditions: the duties are special, personal, flow from concern for members' well-being, and show equal concern for all.

•    Whether a community truly meets them (especially equal concern) is a matter of interpretation, and that's where justice enters. A state with integrity — treating everyone as equals under one coherent set of principles — passes the test, so its coercion is legitimate. One that treats some as second-class doesn't.

◦    E.g In a traditional/patriarchal community, a daughter needs her father's blessing to choose a husband. Dworkin grants that she'd be justified in defying him - But his point is that the associative tie doesn't vanish: she still "has something to regret" and "owes him at least an accounting."

◦    So the example shows that genuine associative obligations leave a remainder even when justice lets you override them — integrity's "conservative pull."

4. The Live Debates

•    Finnis vs Raz (the central clash): is the coordination-based duty general/presumptive (Finnis) or occasional/redundant (Raz)? Both agree morality is objective, the state should promote wellbeing, and law solves coordination problems — they split on whether that yields a generalisable duty. Raz: moral reasons to comply come from the practice of coordination, not the law; Finnis: law’s own features create a shared interest that does bind.

•    Authority vs autonomy: Wolff says they’re irreconcilable → anarchism. Replies: Raz’s service conception softens the conflict — obeying a justified authority (one that helps you conform to reasons already applying to you) is thus not a surrender of autonomy

•    Does the duty depend on others' behaviour? On fair-play/reciprocity, yes — the duty is owed to cooperating fellow-citizens, so widespread non-compliance or non-enforcement can erode it; and on coordination, yes — a solution only binds if enough others comply. Dworkin's associative obligation is conditional too, but differently: it depends on the community being a true community that shows equal concern, not on whether individuals are complying — he actually denies it needs member-by-member reciprocation (you can owe an unreciprocating relative). So for Dworkin the dependence runs "the state must reciprocate with equal concern," not "if others defect, my duty lapses."