Law and Obligations

In the recent debate on political legitimacy, we have seen the emergence of a revisionist camp, advocating the idea of ‘legitimacy without political obligation,’ as opposed to the traditional view that political obligation is necessary for state legitimacy. The revisionist idea of legitimacy is appealing because if it stands, the widespread skepticism about the existence of political obligation will not lead us to conclude that the state is illegitimate. Unfortunately, existing conceptions of ‘legitimacy without political obligation’ are subject to serious objections. In this article, I propose a new conception of ‘legitimacy without political obligation,’ and defend it against various objections that the revisionist idea of legitimacy is either conceptually or morally mistaken. This new conception of legitimacy promises to advance the debates between anarchists and statists by making the task of philosophical anarchists significantly more difficult.

I present arguments against previous readings of the Crito then give an interpretation of the dialogue characterized in terms of fair play. This resolves seeming inconsistencies with the Apology.

This paper was presented as a Plenary Lecture at the 28th World Congress of the International Association for the Philosophy of Law and Social Philosophy (IVR), “Peace Based on Human Rights.” University of Lisbon, July 2017. The recognition and protection for human rights varies significantly across countries. Many countries purport to recognize human rights through their constitutions, statutes, or international treaties, but questions arise when the rights protected in practice vary, at least in some commentators’ views, from what the scope of the rights actually are, or should be. For those legal systems where human rights are not supported by conventional positive, one can ask: Can human rights norms be said to be part of the law even where there is no conventional social source? This topic is considered briefly, using the Nuremberg Trials as an example. In general, the connection between general moral standards and human rights complicates the already intricate problems relating to the relationship of conventional law and morality. In connection with that basic question about the relationship of law and morality, the paper ultimately defends a view that is simultaneously simple, naïve, and radical (and goes back to H. L. A. Hart): that law is a sui generis form of normativity, a form of normativity of its own, that is not identical with or a subset of morality or any other normative system. Another way of putting the view would be to say that under this approach legal normativity in general, and legal propositions in particular, do not, by their nature, reduce to or equate to propositions of another type, nor do legal propositions, by their nature, purport to be propositions of another type. The paper defends this position against both the common contemporary view (by theorists like Joseph Raz) that law purports to make moral claims, and the recent position (taken by theorists like Mark Greenberg) that law simply is a subset of morality.

Critics of Immanuel Kant’s legal and political philosophy argue that his theory of the state collapses into one of two extremes. For some, Kant is a quietist who regards positive law as the instantiation of justice and thereby deprives himself of a moral standpoint for the criticism of positive law. For others, Kant is an anarchist who denies the authority of law whenever it deviates from the demands of justice. I argue that these interpretations are the opposing products of a common error: the failure to distinguish between Kant’s justification of the right of the state to exercise public authority and his corresponding theory of a perfectly just state. Once these aspects of his theory of the state are disentangled, Kant’s transformative vision comes into view. Far from reducing the idea of a state to either an authoritative fiat or a utopian vision of justice, Kant offers a standpoint for recognizing (1) the public authority of existing states, (2) the standard of justice for assessing the moral adequacy of those states, and (3) the ongoing duty of existing states to direct the exercise of public authority to the deepest possible fulfillment of public justice.

This paper is primarily a response to John Simmons's critique of Locke's consent theory of political obligation (Two Treatises). It seeks to apply ordinary legal reasoning to what Locke actually says about "express consent" and "tacit consent." The result is a theory both different from the theory commonly attributed to Locke and more plausible. Among the differences is that express consent ("entering political society") is understood to arise chiefly from seeking to vote (rather than by oath or voting) and tacit consent is understood as a reasonable (but rebuttable) presumption of actual consent. In the course of presenting Simmons's critique, the paper identifies four commonly accepted criteria of adequacy for theories of moral obligation to obey law or government, noting that Locke's theory, under its lawyerly interpretation, fails to satisfy any of the four criteria but seems reasonably plausible (for example, in its ability to deal with Simmons's critique). This is taken to be reason to weaken all four criteria.

International and domestic law offer a study in contrasts: States' legal obligations often depend on their consent to specific international legal norms, whereas domestic law applies to individuals with or without their consent; enforcement in international law is weak and, for many international treaties, non‐existent, whereas states spend considerable resources to create centralized coercive enforcement mechanisms; and international law is characterized by much less institutional differentiation and specialization of functions than domestic legal systems are. These differences have invited a number of skeptical challenges to international law, 3 of which we explore in this essay. The first points to 1 or more of the deviations of international law's institutional structure from that of a modern state's legal system as a basis for denying that international law is really “law.” Central to the debates over international law's status as law are concerns about whether and why the concepts of law inherited from domestic legal systems should serve as the blueprint for theorizing law in general and international law in particular. The second skeptical challenge targets international law's legitimacy. It claims that we lack reasons to treat international legal norms or the exercise of political power by international institutions, as anything other than an attempt by states to advance their national interests. If this challenge succeeds, states and other subjects of international law have merely prudential reasons to comply with it rather than a moral duty to obey it. Following a brief description of recent debates over how we ought to understand the concept of legitimacy when used to assess international political practices or global governance, we survey several possible bases for a moral duty to obey or respect international law. These include state consent, instrumental accounts of legitimate authority, and global democracy. The third set of challenges focuses on the relationship between state sovereignty and international law. International rules and institutions often make demands for reform affecting the domestic law of a state in order to elicit compliance with international law. Skeptics argue that the rule of international law is incompatible with states' political self‐determination. Regardless of whether their defense of this claim ultimately succeeds, thoughtful engagement with it may well require us to rethink some of the fundamental concepts and normative ideals in political philosophy, including state sovereignty, democracy, individual rights, political authority, and political obligation.

In the contemporary philosophical literature, political legitimacy is often identified with a right to rule. However, this term is problematic. First, if we accept an interest theory of rights, it often remains unclear whose interests justify a right to rule (the ‘grounds of authority’ question): either the interest of the holders of this right to rule or the interests of those subject to the authority. And second, if we analyse the right to rule in terms of Wesley Hohfeld’s characterization of rights, we find disagreement among philosophers about what constitutes the conceptual core of political authority: a power-right or a claim-right to rule (the ‘nature of authority question’). In this paper I show that both of these are problematic for a number of reasons. First, if we think that it is only the interests of the holders of a right to rule that justify the possession of authority, the conceptual core of authority must consist in a claim-right. However, this understanding of authority biases our thinking about legitimacy in favor of democratic exercises of power. Second, if we hold such a decisively democratic view of legitimacy, we confront an impasse with respect to addressing global collective action problems. Although it is clear that political authority is necessary or useful for solving these issues, it is doubtful that we can establish global institutions that are democratically authorized anytime soon. The paper suggests an alternative ‘Power-Right to Command View’ of political legitimacy that avoids the democratic bias and allows for thinking about solutions to global problems via global service authorities.

How should international law figure into the practical reasoning of agents who fall under its jurisdiction? How should the existence of an international legal norm regulating some activity affect a subject’s decision-making about that activity? This is a question concerning the general moral authority of international law. It concerns not simply the kind of authority international law claims, but the character of the authority it actually has. This paper concerns the sense in which international law, and the law of nascent legal systems generally, generate obligations for their subjects, i.e., for those who fall under their claimed jurisdiction.

Abstract: This essay sets out the main elements of the revisionary and philosophical interpretation of the jurisprudence of American Legal Realism that I have developed in a series of articles over the last decade.

Published in Revus (2017)

Reconsider the influence of H. L. A. Hart’s The Concept of Law (1961) in its fiftieth anniversary, in particular, and the legacy of his work, in general, is an idea that first came to mind in informal discussions between Tom Campbell, Imer B. Flores, and Wilfrid J. Waluchow during the Conference The Legacy of H. L. A. Hart: Legal, Political, and Moral Philos- ophy, organized by the Cambridge Forum for Legal and Po- litical Philosophy, in Cambridge University, Cambridge (United Kingdom), July 27-28, 2007. Actually, the idea that it is necessary not only to reconsider Hart’s The Con- cept of Law but also to re-read and even to re-write it, can be traced back to Nicola Lacey’s A Life of H. L. A. Hart. The Nightmare and the Noble Dream, where she points out that the Appendix to The Concept of Law, which is now known as the “Postscript”, was conceived at some point by Hart himself as an essay with the title “The Concept of Law Re- considered”. Along these lines, Enrique Cáceres, Imer B. Flores, and Juan Vega Gómez agreed to pay tribute to Hart’s The Con- cept of Law in its golden anniversary not only by dedicating to him and his masterpiece the Discussion of Problema, Volume 5, but also by devoting themselves to the organiza- tion of different activities, during 2011, including a tête à tête Seminar Discussion between Kenneth E. Himma and Wilfrid J. Waluchow, two of the most representative heirs of Hart’s “soft positivism”, i.e. “inclusive legal positivism”. In addition, Flores proposed a Special Workshop “H. L. A. Hart’s The Concept of Law Reconsidered” to the organizers of the XXV IVR World Congress of Philosophy of Law and Social Philosophy “Law, Science, Technology”, which was held in Frankfurt am Main (Germany), August 18, 2011, with the participation of Tom Campbell, Pierluigi Chiassoni, Imer B. Flores, Noam Gur, Eerik Lagerspetz, and Roger Shiner. In the meantime, Jorge Fabra, approached Waluchow with similar proposals and was redirected to Flores, with whom he joined forces calling for submissions to this volume as guest editors. It is worth to mention that the Discussion is inaugurated with a biographical and bibliographical memo filled of refer- ences by Matthew H. Kramer and a more personal note full of anecdotes by Wilfrid J. Waluchow, in which the last stu- dent supervised by H. L. A. Hart re-tells some of the stories that depict his supervisor, mentor, friend and inspiration. The Discussion also includes the revised papers that both Himma and Waluchow presented both in the International Conference on Legal Philosophy hosted by the Graduate Program in Law at UNAM in Acatlán, one of the campus in the Metropolitan Area of Mexico City, and in the Discussion Seminar “Problema” organized by the Legal Research Insti- tute at UNAM, in the main campus, and also a reply from Himma to Waluchow. In addition, the volume incorporates the revised versions of the papers presented in the Special Workshop, and other papers submitted by Keith Culver and Michael Giudice, Pavlos Eleftheriadis, Giorgio Pino, Dan Priel, and Fabio P. Schecaira. As editors of this Discussion we are very pleased with the result and hope that the reader will enjoy the articles col- lected in this volume, which by the by contains original contributions. Most of them reconsidering the place of Hart’s The Concept of Law in Legal Theory and Philosophy (Campbell, Lagerspetz, Priel, and Schecaria); some pointing to the virtues of Hart’s methodology (Chiassoni, Culver and Giudice, Eleftheriadis, and Waluchow); and still others de- veloping critical reassessments of his main thesis (Flores, Gur, Himma, Pino and Shiner). Finally, we are extremely grateful to all the contributors for their enthusiasm that made possible this little homage to the “aristocracy of our intellect”.

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 to announce and enforce law, and explains the state's obligation to act in the interests of its subjects by ruling in accordance with the rule of law. Whereas consent theories of the state founder because so many people do not in fact consent to state authority, the fiduciary theory flourishes precisely because fiduciary law governs nonconsensual relations, including the state-subject relationship. With this underlying constitutional relationship in place, consent can operate through democratic channels to regulate the content of ordinary legislation.

States jurisprudence commonly means the philosophy of law. Legal philosophy has many aspects, but four of them are the most common. The first and the most prevalent form of jurisprudence seeks to analyze, explain, classify, and criticize entire bodies of law. Law school textbooks and legal encyclopedias represent this type of scholarship. The second type of jurisprudence compares and contrasts law with other fields of knowledge such as literature, economics, religion, and the social sciences. The third type of jurisprudence seeks to reveal the historical, moral, and cultural basis of a particular legal concept. The fourth body of jurisprudence focuses on finding the answer to such abstract questions as " What is law? " and " How do judges (properly) decide cases? " Apart from different types of jurisprudence, different schools of jurisprudence exist. Formalism, or conceptualism, treats law like math's or science. Formalists believe that a judge identifies the relevant legal principles, applies them to the facts of a case, and logically deduces a rule that will govern the outcome of the dispute. In contrast, proponents of legal realism believe that most cases before courts present hard questions that judges must resolve by balancing the interests of the parties and ultimately drawing an arbitrary line on one side of the dispute. This line, realists maintain, is drawn according to the political, economic, and psychological inclinations of the judge. Some legal realists even believe that a judge is able to shape the outcome of the case based on personal biases. Apart from the realist-formalist dichotomy, there is the classic debate over the appropriate sources of law between positivist and natural law schools of thought. Positivists argue that there is no connection between law and morality and that the only sources of law are rules that have been expressly enacted by a governmental entity or court of law. Naturalists, or proponents of natural law, insist that the rules enacted by government are not the only sources of law. They argue that moral philosophy; religion, human reason and individual conscience are also integral parts of the law. There are no bright lines between different schools of jurisprudence. The legal philosophy of a particular legal scholar may consist of a combination of strains from many schools of legal thought. Some scholars think that it is more appropriate to think about jurisprudence as a continuum. LEGAL POSITIVISM RESEARCH DONE FROM: http://plato.stanford.edu/entries/legal-positivism/

In this paper I develop and defend a new account of political legitimacy. I argue that a regime is legitimate insofar as it achieves quality assent to rule. Assent to rule is an evaluative assessment of the regime, by its subjects, about whether the regime realizes some goods through the exercise of power and authority. Assent is quality assent just when it is consistent with what I call the minimal claim of ruling, namely, the provision of basic security for all subjects. When legitimacy is characterized in these terms, its achievement will be naturally correlated with the realization of key political goods: non-alienation, stability, and political alignment among subjects. What makes this account distinctive, and attractive, is that it captures the crucial insights from both sides of the theoretical divide in the existing literature on political legitimacy, namely (i) that legitimacy is a good-making feature of a regime, but also (ii) that legitimacy depends upon people's subjective attitudes.

Philosophical anarchism is the philosophical view that addresses the twofold problem of state legitimacy and political obligation. Its main claims are the absence of general political obligations on the part of citizens of a polity, and that states or governments are morally illegitimate. This viewpoint, then, challenges the pervasive preconceptions with regard to citizens having a special ethical bond with their state or government. The objective of this essay is to offer a defence of philosophical anarchism in the form introduced by Simmons. We begin by illustrating the basic elements of the theory, as well as subtle distinctions therein. Next, we turn to discuss what the implications would be if citizens adopted the philosophical anarchist stance; and reveal that they are not as startling as one might initially think. Finally, the remaining of the essay is dedicated to a series of objections and attempts of redress. Some were aimed at the consequences of the theory, yet expressed rather its alleged perniciousness, while others attacked Simmons argumentation method.

On what basis, and to what extent, are refugees obligated to obey the laws of their host countries? Consideration of the specific case of asylum-seekers generates, I think, two competing intuitions: (1) the refugee has a prima facie obligation to obey the laws of her host country and (2) none of the popularly canvassed substrates of political obligation—consent, tacit consent, fairness, or social role—is at all apt to explain the presence of this obligation. I contend that the unfashionable gratitude account of political obligation does the best job of accounting for the intuitions. As has been noticed by other commentators, obligations of gratitude are difficult to specify and subject to numerous cancelling conditions. I analyze these conditions in detail and conclude that if one accepts that gratitude is the basis of the political obligation of the refugee, then one must face up to just how frangible the obligation is. In particular, the obligation is conditional on the fair and generous treatment of refugees that is consistent with their dignity as human beings.