Authority and Legal Obligation

Abstract

This dissertation addresses the nature of legal obligation and the so-called dilemma of authority, which asks how authority can be both content-independent, meaning authoritative without respect to the substance of the directives, and legitimate, a normative judgment that necessarily depends on the content. Contemporary accounts of law's authority, often because they build on the work of HLA Hart and Joseph Raz, are largely inadequate. Hart, on one hand, identifies obligation as the central feature of law, which distinguishes it from criminal coercion, but, on the other hand, characterizes law as rules based in social practice, which do not necessarily entail an obligation to obey. Raz, while also a positivist, tries to account for law's normative authority, locating it in the conformity of laws with the reasons subjects already have for action. This form of legitimacy, however, explains only when obedience to the law is permissible, not when it is obligatory. Indeed, Raz concludes that there is no obligation to obey the law just because it is the law. Furthermore, with a theory of law as expertise, Raz cannot say why the law, among all other schemes, is authoritative. Instead, a legal system should be seen as a set of commands oriented on the whole to the common good. Conceptually, legal obligation is composed of both commands and reasons, drawing on models of religious obligation and moral obligation, respectively. The descriptive aspect, command, captures law's intention to obligate and refers to the commander (in whatever institutional form), who is the one designated to bear the authority. The normative aspect, the common good, supplies the justification for law's authority through people's obligations to the common good. In this way, the law has general authority and can obligate even when it is not good in all its particulars. The views of Yves Simon and John Finnis strongly support this connection between law, authority, and the common good. In addition, the work of Carl Schmitt on sovereignty and political theology, which emphasizes the importance of authoritativeness yet rejects positivism, offers a complementary parallel to the concept of law in this dissertation.