The Obligation to Obey the Law in the Light of the Debate Between Finnis and Raz (original) (raw)
Related papers
Law and the Normativity of Obligation
Jurisprudence Annual Lecture 2014 - Jurisprudence, vol 5 (2014) 1–28, 2014
""The paper examines the natural law tradition in ethics and legal theory. This tradition is shown to address two questions. The first question is to do with the nature of law, and the kind of human capacity that is subject to legal direction. Is law directive of the voluntary – of what is subject to the will, or what can be done or refrained from on the basis of a decision so to do? Or is law directive of some other kind of capacity? The second question is about the nature of ethical normativity, and the relation within normativity of its directive and appraisive aspects. Is direction primary, and appraisal to be explained in terms of a theory of direction; or must a theory of ethical direction be based on a theory of ethical appraisal? Both issues are introduced by reference to Hume’s ethical theory, which raises them in a particularly sharp form. The natural law tradition, in the form it reached by the early modern period, is shown to combine giving a primacy to the appraisive in normative theory, with, in legal theory, a detachment of law from any exclusive tie to the direction of the voluntary. At the heart of the theory of natural law is the idea of law as a distinctive form of normativity directive of a capacity not for voluntariness, but for self-determination. Combined with a view of the state not just as a coordinative authority but as a coercive teacher, this led to a distinctive and highly controversial view of the scope of positive law. The paper ends with Hobbes’s sharp opposition to this view of positive law – an opposition that focussed, in particular, on the coercive legal direction of belief. ""
Finnis on the Authority of Law and the Common Good
This paper seeks to elucidate the role played by the common good in John Finnis’ arguments for a generic and presumptive moral obligation to obey the law. Finnis’ appeal to the common good constitutes a direct challenge to liberal and philosophical anarchist denials of a generic and presumptive obligation to obey the law. It is questionable, however, whether Finnis has presented the strongest possible case for his position. In the first section I outline Finnis’ account of the relationship between basic goods, the common good and the authority of law. Section 2 demonstrates how Finnis’ emphasis upon the instrumental nature of the common good leaves his position vulnerable to Joseph Raz’s objections that not all cases of law make a moral difference and that governmental authority is often unnecessary to resolve co-ordination problems. I argue that Raz’s critique nonetheless fails adequately to address an alternative defence of the existence of a generic and presumptive obligation to obey the law, suggested by some passages in Finnis’ work, according to which the common good is integral, rather than merely instrumental, to the good of individuals. In the final section I consider whether Finnis could strengthen his case for a generic and presumptive obligation to obey the law by adopting a more consistently robust – and hence also more contentious – account of the common good.
Natural Law and the Theory of Moral Obligation
The paper explores theories of moral obligation from those of late scholastics such as Francisco Suarez and Gabriel Vasquez to those of Samuel Pufendorf and John Locke. The theories of Pufendorf and Locke are contrasted. Although these two theories appear similar, there is a profound difference between them. In Pufendorf as in a scholastic such as Suarez, practical reason is seen as involving two distinct kinds of justificatory force or modes of justificatory support, recommendation and demand; and moral obligation is identified, not as a reason-giving property of actions, but as one of these justificatory forces, the force of demand, a force that directly binds the will. Whereas in Locke there is only one justificatory force, that of recommendation; and moral obligation is no more than a reason-giving property, the property of being commanded by a punitive God, among the many that generate this force. In Locke as in much subsequent English-language philosophy, moral obligation ceases to be a justificatory force that directly binds the will, and comes to be no more than a reason-giving property of the voluntary actions that the will causes and motivates. The paper expresses doubts about whether this development has been a genuine conceptual advance, and explores the problems it raises.
The Subsidiarity of Law and the Obligation to Obey
Law is a morally valuable institution, because every community with a legal system has valuable institutional facilities to coordinate the life of the community in a way that is general and systematic. In every legal system, the value of those facilities yields a moral obligation to obey some laws. But the law’s role in guiding conduct is subsidiary to the responsibility to act with a principled attention to the good of persons, and human law by nature is arbitrary in its application in some cases. The combination of its arbitrariness and its subsidiary role mean that there is no general obligation to obey the law.
Virtue and the Normativity of Law
Ancient Philosophy Today, 2022
This paper examines the normativity of law, i.e., law's capacity to guide behavior by generating reasons for action, from the perspective of virtue jurisprudence. It articulates a virtue-based model of law's normativity according to which the law generates first order reasons for action (i.e., loyalty-reasons) that need to be factored in citizens' and legal officials' practical reasoning, which consists, primarily, in the search for the best specification of the values involved in light of an account of the good life and the role that the law plays wherein. The outcome of this piece of practical reasoning is a judgment about what ought to be done, the rightness of which depends, on the proposed model, on whether it is a judgment that a virtuous person would characteristically do in the circumstances. This model, it is argued, has distinctive features that set it apart from some prominent accounts of the normativity of law. It may, however, be disqualified as a plausible alternative account of the normativity of law on the grounds that it fails to provide action-guidance. The last part of the paper responds to this objection in a way that unveils the relevance of the social dimensions of virtue to law's normativity.
On Obligation and the Virtues of Law
This draft paper is a development of some themes from my dissertation, "Practical Necessity" (2011), and it was presented (in part) at a 2013 conference on the moral philosophy of Elizabeth Anscombe at St Hugh's College in Oxford. The argument of the paper explicates and develops two aspects of Anscombe's work on obligation: the relationship between law, obligation, and authority, on the one hand, and the place of obligation, understood as the practical mode of necessity, in the logic of practical inference, on the other hand.
Kriterion, 2020
Many prominent legal philosophers believe that law makes some type of moral claim in virtue of its nature. Although the law is not an intelligent agent, the attribution of a claim to law does not need to be as mysterious as some theorists believe. It means that law-making and law-applying acts are intelligible only in the light of a certain presupposition, even if a lawmaker or a law-applier subjectively disbelieves the content of that presupposition. In this paper, I aim to clarify what type of moral claim would be suitable for law if law were to make a claim to be morally justified. I then argue that legal practice is perfectly intelligible without moral presuppositions-that is, that the law does not necessarily make moral claims. RESUMO Muitos filósofos do direito proeminentes acreditam que o direito levanta algum tipo de pretensão moral em virtude de sua natureza. Embora o direito não seja um agente inteligente, a atribuição de uma pretensão ao direito não precisa ser tão misteriosa como alguns teóricos acreditam que seja. Significa que atos pelos quais fazemos e aplicamos leis são inteligíveis apenas à luz de uma certa pressuposição, mesmo se um legislador ou um aplicador do direito não acreditar subjetivamente no conteúdo dessa pressuposição. Neste artigo, eu busco esclarecer que tipo de pretensão moral seria adequada ao direito KRITERION, Belo Horizonte, nº 145, Abr./2020, p. 55-72