From a sociological point of view, the conceptual and logical relations between the norms of legal order represent empirical and causal relations between social actors. The claim that legal authority is based on the validity of empowering norms means, sociologically, that the capability to enact and enforce legal norms is based on an empirical transfer of power from one social actor to another. With this process, sociology has to explain how a proclamation of legal rights by the creation of empowering (...) norms can lead to the establishment of the factual power of coercion. This explanation reveals that legal authority as a social fact is irrevocably dependent on non-legal power, which is not created by legal empowering norms but is the empirical foundation for all legal authority and state power. (shrink)

This article offers a justification for the continued use of jury trials. I shall critically examine the ability of juries to render just verdicts, judicial impartiality, and judicial transparency. My contention is that the judicial system that best satisfies these values is most preferable. Of course, these three values are not the only factors relevant for consideration. Empirical evidence demonstrates that juries foster both democratic participation and public legitimation of legal decisions regarding the most serious cases. Nevertheless, juries are costly (...) and, therefore, economically less efficient than competing modes of trial. I do not argue that all human beings possess an inalienable legal right to be tried by a jury. However, it is my hope that this analysis will make clear what we might gain or lose when we propose jury reforms. (shrink)

Many political philosophers believe that we owe moral obligations to our political communities simply because we are asked. We are, for example to pay taxes, or serve in the army whenever we are demanded to do so by the competent authorities or agencies. Can such moral obligations be created by European Union institutions? This essay discusses the natural duty of justice to support just or nearly just political institutions as defended by John Rawls and Jeremy Waldron. It suggests that European (...) Union institutions can be seen to create similar obligations, only if we adopt a cosmopolitan theory of political legitimacy for both domestic and international institutions. A key distinction proposed is that between a duty of jurisdiction, owed by everyone to every legitimate state, and a duty of civility, owed by citizens to their own states. (shrink)

The prevailing view in Canada of the Crown-Native fiduciary relationship is that it arose as a consequence of the Crown taking on the role of intermediary between First Nations and British settlers eager to acquire Aboriginal lands. First Nations are sometimes deemed to have surrendered their sovereignty in exchange for Crown protection. The author suggests that the sovereignty-for-protection argument does not supply a compelling account of how Aboriginal peoples lost their sovereignty to the Crown. Furthermore, Aboriginal treaties compel the courts (...) to take seriously Aboriginal peoples' sovereign authority to treat with the Crown. First Nations did not intend to surrender their sovereignty through the treaty process, but courts assume that this is the result. Against this background, the author argues that the Supreme Court of Canada has imposed fiduciary obligations on the Crown in order to legitimise the Crown's assertions of sovereignty over Canada's Aboriginal peoples. (shrink)

The fundamental interaction that triggers a fiduciary obligation is the exercise by one party of discretionary power of an administrative nature over another party's interests, where the latter party is unable, as a matter of fact or law, to exercise the fiduciary's power. The goal of this paper is to demonstrate that there is something "deeply fiduciary" about the interaction between a state and its subjects. The fiduciary nature of this relationship provides the justification for the state's legal authority and (...) its obligation to act in the interests of its subjects. The practical manifestation of the state's overarching fiduciary obligation to its subjects is the rule of law. (shrink)

Because its business is to resolve disputed issues, the law very often calls on those fields of science where the pressure of commercial interests is most severe. Because the legal system aspires to handle disputes promptly, the scientific questions to which it seeks answers will often be those for which all the evidence is not yet in. Because of its case-specificity, the legal system often demands answers of a kind science is not well-equipped to supply; and, for related reasons, constitutes (...) virtually the entire market for certain fields of forensic science and for certain psychiatric specialties. Because of its adversarial character, the law tends to draw in scientists who are more willing than most to give an opinion on less-than-overwhelming evidence; and the more often such a witness testifies, the more unbudgeably confident he may become in his opinion. Legal rules can make it impossible to bring potentially useful scientific information to light, and the legal penchant for “indicia” and the like can transform scientific subtleties into legal shibboleths. And because of its concern for precedent, and the desideratum of finality, the law sometimes lags behind scientific advances. (shrink)

I here address the question of how judges should decide questions before a court in morally imperfect legal systems. I characterize how moral considerations ought inform judicial reasoning given that the law may demand what it has no right to. Much of the large body of work on legal interpretation, with its focus on legal semantics and epistemology, does not adequately countenance the limited legitimacy of actual legal institutions to serve as a foundation for an ethics of adjudication. I offer (...) an adjudicative theory in the realm of non-ideal theory: I adopt a view of law that has achieved consensus in legal philosophy, make some plausible assumptions about human politics, and then consider directly the question of how judges should reason. Ultimately, I argue that judges should be cognizant of the goods that are at stake on particular occasions of adjudication and that this requires treating legal requirements transparently, i.e., as sensitive to their moral justifications. (shrink)

The idea that law claims authority (LCA) has recently been forcefully criticized by a number of authors. These authors present a new and intriguing objection, arguing that law cannot be said to claim authority if such a claim is not justified. That is, these authors argue that the view that law does not have authority viciously conflicts with the view that law claims authority. I will call this the normative critique of LCA. In this article, I assess the normative critique (...) of LCA, focusing predominantly on the arguments presented by its most incisive proponent Philip Soper. I defend a twofold conclusion. First, LCA, understood roughly along the lines put forward by Joseph Raz, is part of the most attractive analysis of law. Second, proponents of the normative critique, and in particular Soper, are committed to accepting LCA. (shrink)

The Lockean natural rights tradition—including its libertarian branch-- is a work in progress.1 Thirty years after the publication of Anarchy, State, and Utopia, Robert Nozick’s classic work of political theory is still regarded by academic philosophers as the authoritative statement of right-wing libertarian Lockeanism in the Ayn Rand mold.2 Despite the classic status of this great book, its tone is not at all magisterial, but improvisational, quirky, tentative, and exploratory. Its author has more questions than answers. On some central foundational (...) questions he refrains from taking a stand. There is spadework yet to be done on the project of developing the most plausible versions of Lockean and Lockean libertarian views. Prior to doing this work, and articulating the sensible alternatives and what can be said for and against them, we are not yet in a position reasonably to opt for any particular version of Lockean theory or for that matter to decide between the natural rights tradition and rival consequentialisms. This essay aims to explore hard and soft versions of Lockean theory. The exploration aims to persuade the reader to favor the soft versions. Section I formulates four claims (all asserted by Nozick) and provisionally identifies the Lockean libertarian view with these claims. Section II notes that although Nozick in his 1974 book made scant progress toward providing a justification of his particular doctrine of rights, compared to rivals, no rights theorist since then has made significant advances on that front, so Nozick’s achievement has not been superseded. Nozick’s view of rights as side constraints is rehearsed. Sections III and IV raise a question that Nozick first posed: Should rights be regarded as specifying ways individuals may not be treated, infringement of which is sometimes, or always, or never morally acceptable provided full compensation is paid to any victims? Hard libertarianism is defined as a version of Lockean libertarianism that replies “Never!” to this question along with offering strict interpretation and uncompromising affirmation of the four provisional claims detailed in Section I.. (shrink)

Allen Buchanan has argued that a widely defended view of the nature of the state – the view that the state is a discretionary association for the mutual advantage of its members – must be rejected because it cannot adequately account for moral requirements of humanitarian intervention. This paper argues that Buchanan’s objection is unsuccessful,and moreover, that discretionary association theories can preserve an important distinction that Buchanan’s alternative approach to political legitimacy cannot: the distinction between “internal” legitimacy (a state’s ability (...) to morally justify itself to its own members) and “external” legitimacy (a state’s ability to morally justify itself to humanity more broadly). (shrink)

Confucius argued for the centrality of the superior man’s political duty to his fellow human beings and to the state, while Socrates suggested that the superior man (the philosopher) may have no such political duty. However, Confucius also suggested that one not enter or stay—let alone save—a troubled state, while Socrates stayed in an unjust state, apparently fulfilling his political duty to the state by accepting an unjust verdict. In this essay, I will try to show how Confucius could solve (...) these apparent contradictions. I will then examine the reasons Socrates directly and indirectly offers to resolve his seemingly conflicting positions in light of the discussion of the Confucian case. This article is a first step toward a deeper understanding of both Confucius and Socrates (Plato) by way of comparative studies, and of the general issue of a superior man’s political duty to a bad state. (shrink)

One can appreciate Anarchy, State and Utopia on many levels. Its emphasis on individual freedom is a refreshing change of pace. It questions assumptions that have long been sacrosanct. It puts forth a theory of entitlement which is nothing short of remarkable in this day and age. And most importantly, it is being taken seriously by the press and, hopefully, the establishment philosophers as well. But Professor Nozick has attempted more than this. He has attempted to refute the anarchist position. (...) This is a rare endeavor. Few have taken the anarchist position seriously enough to refute it. Few understand it well enough to do it justice. Dr. Nozick displays an intimate knowledge of the anarchist position and yet he rejects it. His refutation is novel, intricate and many-faceted. But does it succeed? In this paper I shall try to outline a few reasons why I think it does not. Nozick begins by asserting that "Individuals have rights..." (ix).§ The purpose of the “first part of his book (the _only part which we shall treat here) is to see if it is possible to evolve a state or "state-like entity" (118} without any violation of individual rights. I-Ie concludes that such a thing is possible and likely as well. I shall confine my examination to the possibility that a state might exist which does not violate individual rights ab initio. ‘ln a state of nature an individual may himself enforce his rights, defend himself. (shrink)

Introduction -- Practical reasons and judicial use of force -- Deviating from legal standards -- The legal duties of judges -- The normative classification of legal results -- Reasons to deviate -- Adherence rules -- Obeying adherence rules -- The judicial oath -- Legal duty and political obligation -- Systemic effects -- Agent-relative principles -- Optimal adherence rules -- Guidance rules -- Treating like cases alike -- Implementation -- Theoretical implications -- Conclusion.

An enduring question in political and legal philosophy concerns whether we have a general moral obligation to follow the law. In this paper, I argue that Philip Soper’s intuitively appealing effort to give new life to the idea of legal obligation by characterising it as a duty of deference is ultimately unpersuasive. Soper claims that people who understand what a legal system is and admit that it is valuable must recognise that they would be morally inconsistent to deny that they (...) owe deference to state norms. However, if the duty of deference stemmed from people’s decision to regard the law as valuable as Soper argues, then people who do not admit the value of the state would have no duty as such to defer to its norms. And, more importantly, people who admit the value of the state would have a duty not to defer to particular norms, namely those norms which violate the values that ground their preference for a state. This critique of Soper operates within his parameters by accepting his claim that moral consistency generates reasons to act. Even on those terms, Soper’s defence of legal obligation as a duty of deference is unpersuasive. (shrink)

This article starts by examining the appeal to hypothetical consent as used by law and economics writers. I argue that their use of this kind of argument has no moral force whatever. I then briefly examine, through some remarks on Rawls and Scanlon, the conditions under which such an argument would have moral force. Finally, I bring these considerations to bear to criticize the argument of judge Frank Easterbrook's majority opinion in Flamm v. Eberstadt.

This book articulates a systematic vision of an international legal system grounded in the commitment to justice for all persons. It provides a probing exploration of the moral issues involved in disputes about secession, ethno-national conflict, "the right of self-determination of peoples," human rights, and the legitimacy of the international legal system itself. Buchanan advances vigorous criticisms of the central dogmas of international relations and international law, arguing that the international legal system should make justice, not simply peace among states, (...) a primary goal, and rejecting the view that it is permissible for a state to conduct its foreign policies exclusively according to what is in the "national interest." He also shows that the only alternatives are not rigid adherence to existing international law or lawless chaos in which the world's one superpower pursues its own interests without constraints. This book not only criticizes the existing international legal order, but also offers morally defensible and practicable principles for reforming it. Justice, Legitimacy, and Self-Determination will find a broad readership in political science, international law, and political philosophy. (shrink)

As Rawls's thought evolved from his 1958 article ‘Justice as Fairness’ to the 1996 edition of his book Political Liberalism, his response to the problem of political compliance would seem to have undergone a number of changes. This article critically evaluates the development of Rawls's various explicit or implied arguments that serve to justify compliance to just social arrangements, and concludes that the problem of political compliance remains without any cogent solution within the vast corpus of Rawls's work. Key Words: (...) liberalism • philosophical anarchism • political duties • political obligation • Rawls. (shrink)

Acts of civil disobedience and conscientious objection provide valuable indications of the congruence of political outcomes with citizens’ conceptions of justice and the good. As their primary concern is substantive, their logic seems extraneous to procedural approaches to justice. Accordingly, it has often been argued that these latter condemn citizens to a ‘deaf-and-blind’ acceptance of the outcomes of agreed procedures. A closer analysis of such acts of contestation shall reveal that although, for proceduralism, the outcomes of just procedures cannot be (...) contested as unjust , they may be contested on the ground of values other than justice, such as someone’s religious/ethical allegiances. Proceduralism about justice will be thus shown to be consistent with the commitment to realising certain outcome-oriented values. (shrink)

To what extent can we as a community legitimately require individuals to contribute to producing public goods? Most of us think that, at least sometimes, refusing to pay for a public good that you have enjoyed can involve a kind of 'free riding' that makes it wrong. But what is less clear is under exactly which circumstances this is wrong. To work out the answer to that, we need to know why it is wrong. I argue that when free riding (...) is wrong, the reason is that it is unfair. That is not itself a very controversial claim. But spelling out why it is unfair allows us to see just which forms of free riding are wrong. Moreover, it supplies a basis from which some more controversial conclusions can be defended. Even if a public good is one that you have been given without asking for it or seeking it out, it can still be wrong not to be prepared to pay for it. It can be wrong not to be prepared to pay for public goods even when you do not receive them at all. And furthermore, it can be right to force you to do so. (shrink)

Locke's Two Treatises of Government is (primarily) a work of practical (or applied) ethics rather than (as commonly supposed) political philosophy or (as some recent historians have argued) political propaganda. The problem is the oath of allegiance to James II. So interpreting it makes political obligation resemble the special moral obligations of profession rather than the general obligations of morality. Political obligation is the formal moral obligation to law that comes from voluntary participation in law-making (directly or through representatives one (...) helps to choose), a form of express consent. Ordinary moral obligations to law, those arising from considerations of justice, are, in contrast, much the same for ordinary residents as for foreign visitors. This is the domain of tacit consent. The right to organise a political society, including the right to exclude, derives from the natural right of free association. (shrink)

Margaret Gilbert's plural subject theory defines social collectives in terms of common knowledge of expressed willingness to participate in some joint action. The author critically examines Gilbert's application of this theory to linguistic phenomena involving "we," arguing that recent work in linguistics provides the tools to develop a superior account. The author indicates that, apart from its own relevance, one should care about this critique because Gilbert's claims about the first person plural pronoun play a role in the argument in (...) favor of her recent theory of political obligation. Key Words: collective agent • Gilbert • plural subject • semantics • we. (shrink)

The law persists because people have reasons to comply with its rules. What characterizes those reasons is their interdependence: each of us only has a reason to comply because he or she expects the others to comply for the same reasons. The rules may help us to solve coordination problems, but the interaction patterns regulated by them also include Prisoner's Dilemma games, Division problems and Assurance problems. In these "games" the rules can only persist if people can be expected to (...) be moved by considerations of fidelity and fairness, not only of prudence.This book takes a fresh look at the perennial problems of legal philosophy - the source of obligation to obey the law, the nature of authority, the relationship between law and morality, and the nature of legal argument - from the perspective of this conventionalist understanding of social rules. It argues that, since the resilience of such rules depends on cooperative dispositions, conventionalism, properly understood, does not imply positivism. (shrink)

In this collection of recent essays (several appearing in English for the first time), John Dunn brings his characteristically acute and penetrative insight to a wide range of political issues. In the first essay, 'The history of political theory', Professor Dunn argues for the importance of a historical perspective in the study of political thought. Other pieces engage with central concepts of political philosophy such as obligation, trust, freedom of conscience and property. A group of studies tackle specific contemporary problems (...) and future dangers, for example racism and the dilemma of humanitarian intervention. The volume as a whole articulates the many dangers, but also the huge importance of, contemporary politics, and provides a representative collection of work by one of the most astute political commentators writing today. (shrink)

Legal positivism dominates in the debate between it and natural law, but close attention to the work of Thomas Hobbes – the ``founder'' of the positivist tradition – reveals a version of anti-positivism with the potential to change the contours of that debate. Hobbes's account of law ties law to legitimacy through the legal constraints of the rule of law. Legal order is essential to maintaining the order of civil society; and the institutions of legal order are structured in such (...) a way that government in accordance with the rule of law is intrinsically legitimate. I focus on Hobbes's neglected catalogue of the laws of nature. Only the first group gets much attention. Its function is to facilitate exit from the state of nature, an exit which Hobbes seems to make impossible. The second group sets out the moral psychology of both legislators and subjects necessary to sustain a properly functioning legal order. The third sets out the formal institutional requirements of such an order. The second and third groups show Hobbes not concerned with solving an insoluble problem of exit from the state of nature but with the construction of legitimate order. Because a sovereign is by definition one who governs through law, Hobbes's absolutism is constrained. Government in accordance with the rule of law is government subject to the moral constraints of the institutions of legal order. (shrink)

That law is coercive is widely assumed. The assumption has important consequences. What we regard as coercive we view as at least prima facie illegitimate, and we hold it to an accounting. What is not coercive, in contrast, is presumed to be in order. To be able to cast the law (or the free market) as a coercive force is to be able to throw upon its defenders a burden of persuasion which, even if carried, leaves what has had to (...) be defended under a cloud. Where, as in morality and politics, so much is uncertain, to be able to cast a burden of persuasion upon one's opponent is a significant rhetorical advantage. In recent decades, the concept of coercion has been subjected to rigorous analysis. This article applies that analytical work to the question that forms the title. The answer that it reaches is not a reassuring "Of course!" but a surprising - some would say, repugnant - "No; except in extraordinary circumstances law is not coercive.". (shrink)

Aristotle thought we are, by nature, political animals. Political philosophy in the tradition of Hobbes and Locke sees political society not as natural but as an artifice. For this tradition, political society emerged from a pre-political state of nature by the exercise of innate normative powers. Those powers, together with the rest of our native normative endowment, both make possible the construction of the state, and place sharp limits on the state’s just powers and prerogatives. -/- Thus described, a state-of-nature (...) theory has three components. One is an account of the native normative endowment, or “NNE.” Two is an account of how the state is constructed using the tools included in the NNE. Three is an account of the state’s resulting normative endowment, which includes a (purported) moral power to impose duties of obedience. -/- State-of-nature theories disagree about the NNE. For Hobbes, it consists of a moral permission to do whatever seems to one to be necessary to survival, and a moral power to covenant. Locke specified a more constraining NNE, which also included a “natural executive right” to punish wrongdoing. Rawls excluded personal desert from the “original position,” his refurbishing of the state of nature. In each case, the NNE is not treated as though it were a matter of empirical investigation and discovery, but rather were one of reflective adjustment to the other two components of the theory. -/- The work of social psychologist Stanley Milgram and his students suggests a quite different NNE, one far more constrained than what state-of-nature theories have allowed. Norms that constrain moral reproof are of particular interest here. Contrary to Locke, people do not behave in experimental settings as one would predict if they possessed a “natural executive right” to punish wrongdoing. Moral reproof is subject to standing norms. These norms limit the range of eligible reprovers. -/- This paper draws on this work to support two claims. One, is that the native normative endowment is (as Aristotle held) already political. The other is that political authority should be re-conceived as a matter of standing - that is, as the state’s unique possession of a moral permission to enforce moral norms, rather than as a moral power to impose freestanding duties of obedience. (shrink)

Consent theories of political obligation draw upon the unique powers consent exhibits in everyday dealings, but they are frustrated by the "problem of massive nonconsent." Expansions of what is counted as consent, such as tacit or hypothetical consent, have seemed untrue to the core concept of giving willing consent. David Estlund proposes a novel conception, "normative consent," to address the problem of massive nonconsent while being true to "the idiom of consent." This comment details consent’s virtues and shows that consent (...) theories cannot claim enough of them to vindicate political obligation. (shrink)

��Three concepts—authority, obedience and obligation—are central to understanding law and political institutions. The three are also involved in the legitimation of the state: an apology for the state has to make a normative case for the state’s authority, for its right to command obedience, and for the citizen’s obligation to obey the state’s commands. Recent discussions manifest a cumulative scepticism about the apologist’s task. Getting clear about the three concepts is, of..

The last half-century has seen a steady loss of confidence in the defensibility of a duty to obey the law — even a qualified, pro tanto duty to obey the laws of a just or nearly just state. Over roughly the same period, there has been increasing interest in virtue ethics as an alternative to the dominant consequentialist and deontological approaches to normative ethics. Curiously, these two tendencies have so far only just barely linked up. Although there has been discussion (...) of the question whether patriotism should be considered a virtue, and abstract discussion about the virtuous person’s relation to authority and justice in general, there has been little virtue-oriented discussion having specific reference to the kinds of difficulties that have motivated the ascendant skepticism about political obligation. This silence has persisted despite repeated calls for renewed work on “virtue politics”. This article proposes and defends a preliminary account of law-abidance (as contrasted to obedience) as a virtue. It argues that a virtue-theoretic account of our relation to the law offers advantages that are not contingent upon the independence or priority of the virtues with respect to consequentialist and deontological components of a complete moral theory. Chief among these advantages is the promise of an alternative to the deadlocked positions taken by apologists for the duty to obey the law and their philosophical-anarchist critics — positions which have tacitly been assumed to exhaust the viable possibilities. (shrink)

It is commonly supposed that citizens of a reasonably just state have a prima facie duty to obey its laws. In recent years, however, a number of influential political philosophers have concluded that there is no such duty. But how can the state be a legitimate authority if there is no general duty to obey its laws? This article is an attempt to explain how we can make sense of the idea of legitimate political authority without positing the existence of (...) a general duty to obey the law. The explanation makes use of a distinction between laws of general application, on one hand, and on the other the particularized, directed efforts by state officials to channel and resolve disputes (including those arising from violations of the law). A state's legitimate authority entails a general duty to cooperate in the latter type of effort, rather than upon a dubious general duty to obey the law. (shrink)

Many political philosophers believe that we owe moral obligations to our political communities simply because we are asked. We are, for example to pay taxes, or serve in the army whenever we are demanded to do so by the competent authorities or agencies. Can such moral obligations be created by European Union institutions? This essay discusses the natural duty of justice to support just or nearly just political institutions as defended by John Rawls and Jeremy Waldron. It suggests that European (...) Union institutions can be seen to create similar obligations, only if we adopt a cosmopolitan theory of political legitimacy for both domestic and international institutions. A key distinction proposed is that between a duty of jurisdiction, owed by everyone to every legitimate state, and a duty of civility, owed by citizens to their own states. (shrink)

This new edition includes a substantial postscript by the author, in which he responds to thirty years of discussion, criticism and further work in the field to ...

This book examines the central questions concerning the duty to obey the law: the meaning of this duty; whether and where it should be acknowledged; and whether and when it should be disregarded. Many contemporary philosophers deny the very existence of this duty, but take a cautious stance toward political disobedience. This 'toothless anarchism', Professor Gans argues, should be discarded in favour of a converse position confirming the existence of a duty to obey the law which can be outweighed by (...) values and principles of political morality. Informed by the Israeli experience of political disobedience motivated by radically differing moral outlooks, the author sets out the principles which should guide our attitude to law and political authority even amidst clashing ideologies and irreconcilable moralities. This book will be of interest to students and scholars of law, philosophy and politics, and anyone concerned with the individual's responsibilties toward his or her political community. (shrink)

The two leading traditions of theorizing about democratic legitimacy are liberalism and deliberative democracy. Liberals typically claim that legitimacy consists in the consent of the governed, while deliberative democrats typically claim that legitimacy consists in the soundness of political procedures. Despite this difference, both traditions see the need for legitimacy as arising from the coercive enforcement of law and regard legitimacy as necessary for law to have normative authority. While I endorse the broad aims of these two traditions, I believe (...) they both misunderstand the nature of legitimacy. In this essay I argue that the legitimacy of a law is neither necessary nor sufficient for its normative authority, and I argue further that the need for legitimacy in law arises regardless of whether the law is coercively enforced. I thus articulate a new understanding of the legitimacy and authority of law. (shrink)

Margaret Gilbert offers an incisive new approach to a classic problem of political philosophy: when and why should I do what the laws of my country tell me to do? Beginning with carefully argued accounts of social groups in general and political societies in particular, the author argues that in central, standard senses of the relevant terms membership in a political society in and of itself obligates one to support that society's political institutions. The obligations in question are not moral (...) requirements derived from general moral principles, as is often supposed, but a matter of one's participation in a special kind of commitment: joint commitment. An agreement is sufficient but not necessary to generate such a commitment. Gilbert uses the phrase 'plural subject' to refer to all of those who are jointly committed in some way. She therefore labels the theory offered in this book the plural subject theory of political obligation. The author concentrates on the exposition of this theory, carefully explaining how and in what sense joint commitments obligate. She also explores a classic theory of political obligation --- actual contract theory --- according to which one is obligated to conform to the laws of one's country because one agreed to do so. She offers a new interpretation of this theory in light of a theory of plural subject theory of agreements. She argues that actual contract theory has more merit than has been thought, though the more general plural subject theory is to be preferred. She compares and contrasts plural subject theory with identification theory, relationship theory, and the theory of fair play. She brings it to bear on some classic situations of crisis, and, in the concluding chapter, suggests a number of avenues for related empirical and moral inquiry. Clearly and compellingly written, A Theory of Political Obligation will be essential reading for political philosophers and theorists. (shrink)

Do people have obligations by virtue of the fact that a given country is their country? Actual contract theory says they do because they have agreed to act in certain ways. Contemporary philosophers standardly object in terms of the 'no agreement' objection and the 'not morally binding' objection. I argue that the 'not morally binding' objection is not conclusive. As for the 'no agreement' objection, though actual contract theory succumbs, a closely related plural subject theory of political obligation does not. (...) Plural subject theory may be the truth in actual contract theory and should be explored in its stead. (shrink)

I argue that obligations of an important type inhere in what I call 'joint commitments'. I propose a joint commitment account of everyday agreements. This could explain why some philosophers believe that we know of the obligating nature of agreements a priori. I compare and contrast obligations of joint commitment with obligations in the relatively narrow sense recommended by H. L. A. Hart, a recommendation that has been influential. Some central contexts in which Hart takes there to be obligations in (...) his sense are contexts in which there are obligations of joint commitment. Nonetheless, different senses of 'obligation' appear to be at issue. (edited). (shrink)

Powerful emotion and pursuit of self-interest have many times led people to break the law with the belief that they are doing so with sound moral reasons. This study is a comprehensive philosophical and legal analysis of the gray area in which the foundations of law and morality clash. This objective book views these oblique circumstances from two perspectives: that of the person who faces a possible conflict between the claims of morality and law and must choose whether or not (...) to obey the penal code; and that of the people who make and uphold laws and must decide whether to treat someone with a moral claim to disobey differently from ordinary lawbreakers. In examining the extent of the obligations owed by citizens to their government, Greenawalt concentrates on the possible existence of a single source of obligation that reaches all citizens and all laws. He also discusses techniques of amelioration of punishment for conscientious lawbreakers, asking how far legal systems should go to accomodate individuals who break the law for reason of conscience. Drawing from numerous examples of conflicts between law and morality, Greenawalt illustrates in detail the positions and predicaments of potential lawbreakers and lawmakers alike. (shrink)

These essays, all written within the last decade, represent Hare's thinking on a range of contemporary issues in political morality, including political obligation, terrorism, morality and war, rights, quality, and the environment. Three of the essays are previously unpublished.

The most influential account of authority – Joseph Raz's service conception – is an account of the role of authority, in that it is an account of its point or function. However, authority does not have a characteristic role to play, and even if it did, the ability to play a role is not, by itself, sufficient to establish authority. The aim of this essay is to shift our focus from roles that authority plays to roles that people play – (...) which we can also call roles of authority – such as chef, teacher, and parent. To justify authority, we need to justify the practices in which roles of authority play a part. (shrink)

Since Plato wrote of political obligation in his dialogue Crito, obligation in general has been of ongoing interest to philosophers. In that dialogue, Socrates argues that he was under an obligation to obey the laws of Athens and comply with a sentence of death. During the course of the argument, he raises and offers solutions to many of the central issues about obligation that philosophers still puzzle over. For instance, how can obligations have the grip on us that they do—in (...) some cases, so that we are willing to die rather than not fulfill them? What is the nature and justification of moral and legal obligations? Do we have an obligation to obey the state, and if so, why? (shrink)

This essay deals with Aristotle's complex account in Politics III.4 of the good man and the upright citizen. By this account the goodness of an upright citizen is relative to the city of which he is a citizen, whereas the goodness of a good man is absolute. Aristotle holds that the goodness of a good man and the goodness of an upright citizen are identical in one case only, that of a full citizen of his ideal city. In a non-ideal (...) city the two are always distinct. One would expect, then, that cases would arise where the goodness of an upright citizen would demand, and the goodness of a good man forbid, the very same action. Aristotle, however, never discusses such cases directly, and many scholars have thought that he skirts the issue entirely. I argue, on the contrary, that Aristotle believes that there are cases where a good man will act differently from an upright citizen and that, consequently, he believes, as we would hope he would believe, that there are limits to political obligation. Footnotesa I am indebted to Fred Miller, the other contributors to this volume, and especially my wife, Christine Keyt, for helpful comments on earlier versions of this essay. (shrink)

Much has been written about Locke's Second Treatise,[Note 1] but still, I believe, the book's main line of argument has been left unclear . Some concepts need more prominence---the duty to preserve mankind, the right of war, and private judgment; others need less---consent, majority rule, and property. Locke's aim was not to show that political obligation rests upon consent: that is assumed without argument.[Note 2] What he set out to prove is that there are certain limits to political (...) obligation which not even consent could set aside.[Note 3]. (shrink)

Political Obligations provides a full defense of a theory of political obligation based on the principle of fairness (or fair play), which is widely viewed as the strongest theory of obligation currently available. The work responds to the most important objections to the principle of fairness, and extends a theory based on fairness into a developed 'multiple principle' theory of obligation. In order to establish the need for such a theory, Political Obligations criticizes alternative theories of obligation based on a (...) natural duty of justice and 'reformist' consent, and critically examines the non-state theories of libertarian and philosophical anarchists. The work breaks new ground by providing the first in-depth study of popular attitudes towards political obligations and how the state itself views them. The attitudes of ordinary citizens are explored through small focus groups, while the 'self image of the state' in regard to the obligations of its citizens is studied through examination of judicial decisions in three different democratic countries. (shrink)

In response to recent criticisms of traditional theories of political obligation, scholars have advanced moral reasons for complying with the law that focus on natural duties to assist other people who are in need. In discussions of political obligation, these ‘rescue principles’ are presented as alternatives to traditional principles. I argue that theories of political obligation based on rescue principles are not able to fulfill the role theorists assign them. If the underlying assumptions of rescue theories are uncovered, they can (...) be seen also to support more traditional obligations to obey the law. Accordingly, rather than serving as alternatives to traditional principles, rescue principles can only supplement them. Key Words: political obligation • rescue • Copp. (shrink)