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KURT GERRY

NEW YORK UNIVERSITY SCHOOL OF LAW

THESIS

9-2-11

ON POLITICAL OBLIGATION AND THE NATURE OF LAW ______________________________________________________________________________


Summary ................................................................................................................................................................................. 1 Introduction ............................................................................................................................................................................2 Part I. On Political Obligation................................................................................................................................................4 1. The Nature of Political Obligation ..................................................................................................................................4 2. Natural Duty Theories of Political Obligation ...............................................................................................................6 2.1 The Nature of Natural Duty Accounts ....................................................................................................................................................... 6 2.2 Rawls and the Natural Duty of Justice ........................................................................................................................................................ 7 2.2.a. Rawls Account ..................................................................................................................................................................................... 7 2.2.b. The Particularity Problem .................................................................................................................................................................. 8 2.3 Waldron and the Natural Duty of Justice ................................................................................................................................................. 10 2.3.a. Waldrons Defense............................................................................................................................................................................. 10 2.3.b. Critique of Waldron .......................................................................................................................................................................... 13 2.3.c. Democratic Authority and the Particularity Problem ................................................................................................................. 15 3. Alternative Theories of Political Obligation .................................................................................................................. 17 3.1 Associative Theories ..................................................................................................................................................................................... 18 3.1.a. The Nature of Associative Accounts ............................................................................................................................................. 18 3.1.b. Difficulties with Associative Theories ........................................................................................................................................... 19 3.1.c. Dworkin on Associative Obligations ............................................................................................................................................. 20 3.2 Consent Theories........................................................................................................................................................................................... 22 3.3 The Principle of Fairness ............................................................................................................................................................................. 26 4. Conclusion .................................................................................................................................................................... 30 Part II. On The Nature of Law ............................................................................................................................................. 31 5. The Function of Law..................................................................................................................................................... 32 5.1 The Guidance of Conduct ........................................................................................................................................................................... 32 5.2 Critique ............................................................................................................................................................................................................ 35 5.3 The Medusa Regime and Law as Ideology ............................................................................................................................................... 39 5.3.a. The Medusa Regime .......................................................................................................................................................................... 39 5.3.b. Law and Ideology............................................................................................................................................................................... 42 5.4 Conclusion ...................................................................................................................................................................................................... 45 6. Laws Normative Claims ............................................................................................................................................... 45 6.1 Laws Claim to Legitimate Authority and the Hart-Raz Debate ............................................................................................................ 46 6.1.a. The Debate .......................................................................................................................................................................................... 46 6.1.b. Analysis ................................................................................................................................................................................................ 49 The Imperative ......................................................................................................................................................................................... 50 Back to the Debate .................................................................................................................................................................................. 53 The Cassidy-Sundance Regime ............................................................................................................................................................. 57 6.1.c. Conclusion ........................................................................................................................................................................................... 62 7. Law and Coercion: Hart and Raz on the Sanctionless Legal System ............................................................................ 62 7.1 Hart on Law and Coercion .......................................................................................................................................................................... 64 7.2 Raz on Law and Coercion ........................................................................................................................................................................... 66 7.2.a. The Sanctionless Legal System ........................................................................................................................................................ 68 7.2.b. Critical Analysis .................................................................................................................................................................................. 70 7.3 Conclusion ...................................................................................................................................................................................................... 74 8. Raz and Laws Claim to Legitimate Authority: The Capability Thesis ......................................................................... 75 8.1 The Sources Thesis ....................................................................................................................................................................................... 76 8.2 Analysis and Criticism of the Capability Thesis ...................................................................................................................................... 78 8.3 Conclusion ...................................................................................................................................................................................................... 80 9. Conclusion .................................................................................................................................................................... 81 References ........................................................................................................................................................................ 81

KURT GERRY*

TABLE OF CONTENTS

of Law in Legal Theory, NEW YORK UNIVERSITY SCHOOL OF LAW (September 2011). This paper was in fulfillment of my thesis requirement at the NYU LLM program in Legal Theory. I would like to thank my thesis advisor Liam Murphy of NYU School of Law for invaluable guidance and comments. I am grateful to Professor Robert Howse (NYU Law) and my fellow students in the Legal Theory thesis seminar for their valuable comments and support.

*Masters

Electronic copy available at: http://ssrn.com/abstract=1969980

KURT GERRY

NEW YORK UNIVERSITY SCHOOL OF LAW

DRAFT THESIS 9-2-11

SUMMARY In this paper, I attempt to elucidate the nature of law 1 by way of philosophical anarchism. As a result, the implicit premises, assumptions, and structure of my argument can be broken down as follows: (1) it is a commonplace 2 that law is a social phenomenon, that is, its existence is, in some sense, always a matter of social facts 3; (2) it is a commonplace that law is in some sense a product of the political; (3) in order to understand how law relates to the political and is (at least partly) determined by social facts, we must understand the political relationship; (4) in order to understand the political relationship, we must understand the nature of political obligation; (5) in order to fully understand political obligation, we must engage in normative argument regarding the existence of political obligation; (6) there is no political obligation; (7) this conclusion helps us understand the nature of law; in particular, (i) we must abandon a strong guidance-based conception of law, (ii) we must reconsider our ideas regarding laws normative claims, and (iii) coercive superiority is an essential concept for understanding the nature of law as a social practice. [Before moving forward, I must note what this argument is not. It is not a logical deductive argument. Rather, I am making a claim about the nature of a social practice. My claim is that we can have a better understanding of this social practice once we recognize that there is no political obligation. As such, I do not claim that certain conclusions necessarily follow as a matter of definition and logic. I thus claim that the nature of law as a social practice is made clear by recognizing that the assertions of certain theorists regarding an obligation to obey the law are all false.]

I must note from the outset that I am concerned with law in the sense of municipal law only, as a distinct concept. Thus, I do not offer an account of law that encompasses the interesting and difficult issues regarding international law. For some, this may be fatal for my analysis. I disagree, but my views regarding the nature of international law are beyond the scope of this project. Similarly, I am not concerned with law or legal systems as envisaged by some anarchists. I thus believe that anarchist law such as envisaged by the likes of David Friedman and Murray Rothbard is similar to international law in the sense that it is a distinct concept. 2 Mark C. Murphy describes the starting place for all philosophy, including the philosophy of law, as the familiar, the commonplaces, that which we possess prior to approaching a particular field or philosophical issue. MARK C. MURPHY, PHILOSOPHY OF LAW: THE FUNDAMENTALS 1-3 (2007) (hereinafter MURPHY, PHILOSOPHY OF LAW). Thus, a commonplace is a stock of common truths [about a particular issue] that all of us seem to endorse, and which are so uncontroversial as to rarely require comment. Id. at 2. 3 This point is not to beg the question against natural law theorists, and it is readily admitted as such. For example, Mark C. Murphy, a prominent contemporary natural lawyer, writes that laws existence is, at least in part, always a matter of social fact. When we say that a legal system exists, or that a certain law is valid, or that the law in a certain case is suchand-such, what makes those claims true is always, at least in part, a matter of social fact. MURPHY, PHILOSOPHY OF LAW, supra note 2, at 4-5. For an example of an inclusive legal positivist view, see JULES COLEMAN, THE PRACTICE OF PRINCIPLE: IN DEFENSE OF A PRAGMATIST APPROACH TO LEGAL THEORY (noting that [l]aw is a human artifact designed by humans) (hereinafter COLEMAN, PRACTICE OF PRINCIPLE). For an example of a legal positivist, see, e.g., HANS KELSEN, AN INTRODUCTION TO THE PROBLEMS OF LEGAL THEORY 8 (B.L. Paulson & S.L. Paulson trans., 1992 ed.) (1934) (Law is a social phenomenon, that is, it observable in society).
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Electronic copy available at: http://ssrn.com/abstract=1969980

KURT GERRY

NEW YORK UNIVERSITY SCHOOL OF LAW

DRAFT THESIS 9-2-11

INTRODUCTION The central claim of this paper is that approaching the fundamental issues in general jurisprudence through the lens of philosophical anarchism (the proper normative response to the question of political obligation) is essential for an adequate understanding of the nature of law. Implicit within this claim is the belief that, in order to fully understand the nature of law, one must first understand the nature of the political realm. 4 The political is a constitutive feature of law: law is, in some sense, a product of the political. 5 In turn, the political relationship is essential for an understanding of the political, and as a result, one must understand this relationship before one can fully understand the nature of law. In addition, the question of political obligation is essential to understanding the political relationship. Thus, I will explore the question of political obligation in order to obtain a better understanding of the nature of law. I believe that the failure to adequately account for political obligation prior to approaching the questions of general jurisprudence explains why legal philosophers have failed in their attempts to elucidate the nature of law. It is common to find philosophers analyzing, e.g., laws normative claims prior to fully comprehending the political relationship. For example, Leslie Green states that legitimacy involves the question of whether we should accept laws claims as valid and it therefore imports some view about what these claims in fact are. Most abstractly, we could say that law claims authority and that its subjects owe a correlative duty of obedience.6 I believe Green errs in this assertion.7 Legitimacy involves the question of the use of political power in all its forms, whether through law or otherwise. While legitimacy deals in part with the use of law, this is not the entirety of it. 8 The political relationship is
For example, John Austin recognizes the inherent connection between law and the political relationship. According to Austin, [t]he matter of jurisprudence is positive law: law, simply and strictly so called: or law set by political superiors to political inferiors. AUSTIN, THE PROVINCE OF JURISPRUDENCE DETERMINED AND THE USES OF THE STUDY OF JURISPRUDENCE 9 (Indianapolis: Hackett Publishing Co. ed, 1998) [1832] (hereinafter AUSTIN, PROVINCE OF JURISPRUDENCE DETERMINED). For an example of the idea that law is a complex and political institution, see also H.L.A HART, THE CONCEPT OF LAW 239 (2nd ed., 1994) (hereinafter HART, CONCEPT OF LAW). 5 It should be noted that the political is distinct from the social. See, e.g., ROGER COTTERRELL, LAW, CULTURE, AND SOCIETY: LEGAL IDEAS IN THE MIRROR OF SOCIAL THEORY at 15-16, 20 (2006); see also JOSEPH RAZ, THE AUTHORITY OF LAW 100 (2d ed., 2009) [1979] [hereinafter RAZ, AUTHORITY OF LAW] add quote. Joseph Raz also recognizes the connection between the legal and the political. He states: Legal systems are not autarkic social organizations. They are an aspect of some political system. JOSEPH RAZ, Postscript, in THE CONCEPT OF A LEGAL SYSTEM 210 (Oxford: Clarendon Press, 2d ed., 1980). For similar claims, see also id. at 211-12, 221-22. Raz also recognizes the connection between a theory of law and a theory of the state, stating that A theory of law must be based, at least partly, on a theory of state. RAZ, AUTHORITY OF LAW at 99. 6 Green, Law, Legitimacy, and Consent, 795 S.CAL.L.REV. 795, 797 (1989). Similarly, Raz argues that law necessarily claims legitimate authority. He proceeds to assess whether there is an obligation to obey the law, given a certain conception of authority. See JOSEPH RAZ, AUTHORITY OF LAW, supra note 4, at 3-33, 233-49; see also JOSEPH RAZ, ETHICS IN THE PUBLIC DOMAIN: ESSAYS IN THE MORALITY OF LAW AND POLITICS 215-20, 341-54 (revd ed., 1994) [hereinafter RAZ, ETHICS IN THE PUBLIC DOMAIN]. I think he gets this backwards. 7 Although Green appears to recognize the importance of political obligation for a theory of law, he erroneously accounts for laws normative claims prior to analyzing political obligation. 8 This is (somewhat) recognized by A. John Simmons when he writes that [p]olitical obligation is closely linked with the obligation to obey some legitimate political authority In fact, many writes on this subject have suggested that to obey the law is precisely what we are looking for in asking about political obligation. But I think that to allow this would be to limit prematurely our inquiry. MORAL PRINCIPLES AND POLITICAL OBLIGATIONS 4-5 (1979) [hereinafter SIMMONS
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more general than the legal relationship, but it is nonetheless essential for an understanding of the latter, for as I stated above, the political relationship is in some sense constitutive of the legal. Thus, the political relationship needs to be understood before we can understand the nature of law generally and laws normative claims specifically. In Part I, I analyze political obligation and criticize the various attempts to ground a general obligation to obey the outcome of the political process, concluding that there is no such general obligation. Contra Robert Paul Wolff, this is not an a priori claim, but a posteriori, that even if it is possible to have a moral obligation to obey political superiors, almost all people in all states throughout history never had such obligation. In Part II, I proceed to consider the nature of law in light of this conclusion. First, I consider the question of laws function. I argue against a popular conception that a legal rule is a thing that must be capable of guiding the conduct of those to whom it is addressed. It is often argued that guiding conduct entails eliminating (at least in part) the need of the law-subject to engage in moral deliberations, that it makes a practical difference in ones normative reasoning. I think this is a mistake. In light of philosophical anarchism, this account of laws function is too narrow, for it ignores the potential ideological and manipulative uses of law, and it is often defended by an unjustifiably idealistic approach to elucidating laws nature. Second, I argue that, with a proper understanding of political obligation, the problem of the nature of law takes on a different form, and we can obtain a deeper understanding of law as a social practice in realizing that widely held beliefs regarding the normativity of law are somewhat mistaken. (1) I believe my approach casts doubt on Joseph Razs argument for exclusive positivism via authority. It is unlikely that law necessarily claims legitimate authority. Thus, my approach also casts doubt on Razs assertions regarding the meaning or sense of statements asserting legal obligation. (2) My approach calls for a reassessment of (and ultimately a more central position given to) the role of coercive superiority in an adequate account of the nature of law. (3) Even if we grant Razs assertion that law necessarily claims legitimate authority, my approach shows that it is highly unlikely that law must be the sort of thing that is capable of legitimate authority. One important implication of my analysis is that law should not be understood as a system necessarily constituted by oughts and prescriptions, of norms setting forth or presupposing real reasons for action. Rather, law may9 also be a system composed of imperative musts, that is, the legal domain may be exhausted by commands or stark imperatives (not necessarily a realm of moral oughts). 10 I believe this entails a more central role for the relationship of coercive superiority in any adequate account of the nature of law. On my account, coercive superiority is an essential
(1979)]. Joseph Raz explicitly recognizes this point. See JOSEPH RAZ, BETWEEN AUTHORITY AND INTERPRETATION 127 (2009) (hereinafter RAZ, BETWEEN AUTHORITY AND INTERPRETATION) (stating that political obligation is broader than authority and the obligation to obey the law). 9 It should be noted that the realm of law is not exhausted by rules imposing legal duties, and I am not claiming otherwise. 10 For a discussion of the distinction between commands and ought-statements, see Neil MacCormick, Legal Obligation and the Imperative Fallacy, in OXFORD ESSAYS IN JURISPRUDENCE, SECOND SERIES, 100, 100-06 (A.B.W. Simpson ed., 1973) (hereinafter MacCormick, Legal Obligation and the Imperative Fallacy). For a similar discussion, as well as the use of stark imperatives, see MATTHEW H. KRAMER, IN DEFENSE OF LEGAL POSITIVISM: LAW WITHOUT TRIMMINGS 83-87 (1999).
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feature of legal systems, and I submit that law is inextricably tied to whatever system monopolizes coercive force in a particular domain. This is, in some respects, an Austinian view of the nature of law: laws and legal obligation are not necessarily morally prescriptive; laws claims may simply be demands for compliance by those who hold a dominant position in society (i.e., a position of coercive superiority). PART I. ON POLITICAL OBLIGATION11 Beginning with Platos Crito, political philosophers have struggled with the question of whether the subjects of a governmental regime have a moral obligation to obey its dictates.12 In fact, it has been called the most important question in political philosophy.13 From Plato to Aquinas to Hobbes to Locke to Kant and in more contemporary times, to the likes of John Rawls, Ronald Dworkin, Joseph Raz, and Jeremy Waldron; all have cut their teeth on this important question, and all have contributed to our understanding in their own original way. In the sections that follow, I critically analyze the major theories attempting to establish political obligation, concluding that all such theories fail in this attempt. As a result, there is no political obligation. I begin by considering the theory first set forth by John Rawls 14 and later powerfully defended by Jeremy Waldron, that there is a natural duty of justice which requires of all persons a duty to obey and support just institutions. After rejecting natural duty accounts, I proceed to consider three alternative and highly influential theories of political obligation. First, I analyze and criticize associative theories of legitimacy, those claiming that political obligation arises out certain communal relations. Second, I consider and reject those theories, popular in mainstream political culture, claiming that we are bound to our political societies because we have in some way consented to its rule. Third and finally, I reject theories of fair play. Such theories attempt to ground political obligation in a moral claim to fairness according to which we are obligated to obey the rules of our political society because of the, e.g., benefits we receive from this supposedly cooperative enterprise. As a result of these discussions, I conclude that political subjects in general are not (and never were) subject to a genuine obligation to obey their political society. 1. THE NATURE OF POLITICAL OBLIGATION Before tackling the different theories of political obligation, we must first consider what it means to claim one has an obligation to obey the dictates of ones political society in general or to obey the

I benefited greatly from discussions of political obligation in Professor Janos Kis seminar on political philosophy (New York University School of Law, Fall 2010) and in Professor Robert Howses Legal Theory Thesis seminar. 12 For the purposes of discussing political obligation, I will use the term law to account for the rules (and principles, standards, etc.) laid down by the institutions that have effective control (i.e., monopolization of legal force) over a specific territory. 13 In the words of G.E.M. Anscombe, the question of political authority is the fundamental question of political theory. Anscombe, On the Source of the Authority of the State, in AUTHORITY 142, 150 (Joseph Raz ed., 1990) (hereinafter Anscombe, On the Source of the Authority of the State). 14 RAWLS, A THEORY OF JUSTICE 334 (1971) [hereinafter RAWLS (1971)].
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law in particular. In many cases, it is obvious on its face that we have a moral duty15 to do what the law requires. For example, the criminal law characteristically forbids murder and rape, assault and fraud. It is clear that in these circumstances, we have a moral duty to do what the law requires. But to analyze the issue of political obligation in this light is to misconstrue the project. In these circumstances, there is clearly an external moral obligation not to, e.g., rape and murder, and this moral obligation is contingent in its relation to the content of the law in question (i.e., laws definition of the act of rape and murder). In other words, I have a moral obligation not to murder my neighbor regardless of whether a law exists proscribing such conduct. In some sense, then, we are morally obligated to comply with these laws. The question of political obligation, however, is the question of a duty to obey, and the concept of obedience is fundamentally different from that of mere compliance. Obedience is intimately connected to the source of a command or rule, as opposed to its content. Thus, to obey entails adding a content-independent element to the mix. 16 In the case of law, therefore, to say that one has a moral obligation to obey implies that one has a moral duty to act as the law requires because the law requires it. A. John Simmons provides a clear statement of the issue: A moral duty to obey the law would be a duty to do as the law requires because it is required by valid law (or because of what its being valid law implies), a duty to obey the law as such, not to do as it requires just insofar as it happens to overlap with independent moral duties (which should be discharged whether or not they are also made legal duties). 17 The obligation to obey implies that there is moral weight in the mere fact of legality. It is because it is the law that generates moral force, not the content of the act prescribed or forbidden. More generally, to claim the existence of political obligation is to claim that there is a moral duty to comply with the dictates of the political process because it is the outcome of the political process. Therefore, the question of political obligation is whether there is a moral obligation to obey the dictates of the political process. The duty to obey is the logical correlate of political legitimacy. Thus, we can say, following Simmons, that state legitimacy is the complex moral right to be the exclusive imposer of binding duties on its subjects, to have its subjects comply with these duties, and to use coercion to enforce the duties. 18 Ronald Dworkin provides a similar account: [a] state is legitimate if its constitutional structure and practices are such that its citizens have a general obligation to obey political decisions that purport to impose duties on them.19 Thus, state legitimacy and political authority entails that

I will follow the trend in discussions of political obligation and use duty and obligation interchangeably throughout this paper. 16 On this content-independent character, see, e.g., H.L.A. HART, ESSAYS ON BENTHAM 254-62 (1982) (hereinafter HART, ESSAYS ON BENTHAM). 17 A. John Simmons, The Duty to Obey and Our Natural Moral Duties, in CHRISTOPHER WELLMAN & A. JOHN SIMMONS, IS THERE A DUTY TO OBEY THE LAW? 95 (2005) (hereinafter Simmons (2005)). 18 SIMMONS, JUSTIFICATION AND LEGITIMACY: ESSAYS ON RIGHTS AND OBLIGATIONS 130 (2001) (hereinafter SIMMONS (2001)). 19 DWORKIN, LAWS EMPIRE 191 (1986) [hereinafter DWORKIN (1986)].
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all (or almost all) citizens have the obligation to obey all (or almost all) of the political decisions produced by legitimate government. Of vital importance to the question of political authority and political obligation is the particularity requirement. In order to establish the existence of political obligation, one must establish that there is a special moral bond between citizen and state such that the state has the moral authority to bind those subject to it. As noted by Leslie Green, [p]olitical obligation is not just some general duty to humanity which requires compliance with governments, but rather a special moral relationship between a citizen and a state.20 Moral legitimacy and political obligation asserts that an individual is not bound to multiple different governments; rather, citizens are said to share such moral bond to one particular government that generates a moral duty of obedience.21 In summary, an obligation to obey the law entails the following characteristics: 22 (1) contentindependent: the obligation holds irrespective of its content; the existence of the states directive itself (independent of its content) makes a moral difference. (2) Source-based: the subjects bear an obligation that was not required of them before, just in virtue that the person in authority performed an act that counts as creating an obligation for them. The obligation arises because of the fact that the authority imposes it. The moral power arises from that authoritative source. (3) Generality: (almost) all law-subjects are required to obey (almost) all the rules and directives applying to them on (almost) all occasions. (4) Particularity: the obligation is specific to a state, rather than to the most just state, or to the state whose subjects need most the cooperation and aid of outsiders. 2. NATURAL DUTY THEORIES OF POLITICAL OBLIGATION 2.1 The Nature of Natural Duty Accounts Natural Duty theories 23 of political obligation present what I believe are the strongest arguments for a general obligation to obey the dictates of ones political superiors. Such theories tend to ground the duty to obey in either (1) the moral importance of advancing some moral good, 24 or (2) in some moral duty thought to be owed by all persons to all others as moral equals, regardless of our positions in society.25 Natural Duty theories are grounded in a certain type of moral requirements that are general and nonvoluntary. They are general in that they bind us in virtue of our personhood and moral equality, they bind each person towards each other person in virtue of some nonrelational properties characteristic of each human person. They are nonvoluntary in that they are not the result of the voluntary performance of some act, such as consent or the free acceptance of
LESLIE GREEN, THE AUTHORITY OF THE STATE 228 (1988) (hereinafter GREEN, AUTHORITY OF THE STATE). See SIMMONS (1979), supra note 8, at 31-32. 22 I would like to thank Janos Kis for helpful discussions of the nature of political obligation in his seminar on political philosophy (New York University School of Law, Fall 2010). Much of this section is derived from notes from his discussions. Any errors are of course my own. 23 I benefited greatly from discussions on the nature of natural duty moral requirements in Professor Janos Kis seminar in political philosophy, New York University School of Law, Fall 2010. 24 These theories tend to be of a consequentialist nature. For a helpful discussion of theories of political obligation based on consequentialist grounds or claims of necessity, see Simmons (2005), supra note _, at 124-42. See also SIMMONS (1979), supra note 8, at 45-54 (critiquing possible utilitarian approach to political obligation). 25 See Simmons (2005), supra note 17, at 103, 121.
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benefits. Rather, they are incumbent on individuals in virtue of some fact about them separate and apart from any voluntary act. 26 John Rawls provides a helpful summary of the idea of natural duties. [I]t is characteristic of natural duties that they apply to us without regard to our voluntary acts. Moreover, they have no necessary connection with institutions or social practices; their content is not, in general, defined by the rules of these arrangements. A further feature of natural duties is that they hold between persons irrespective of their institutional relationships; they obtain between all as equal moral persons. In this sense the natural duties are owed not only to definite individuals, say to those cooperating together in a particular social arrangement, but to persons generally. This feature in particular suggests the propriety of the adjective "natural." 27 2.2 Rawls and the Natural Duty of Justice 2.2.a. Rawls Account Although there are many different variations of natural duty theories of political obligation, 28 I will focus on only one instantiation: the natural duty of justice. In A Theory of Justice, Rawls initially asserts that the subject of justice is the basic structure. Thus, the principles of justice apply to political institutions, not individuals. 29 Nonetheless, he argues that we all have a natural duty of justice that entails a natural duty of political obligation. He states: First, we are to comply with and to do our share in just institutions when they exist and apply to us; and second, we are to assist in the establishment of just arrangements when they do not exist, at least when this can be done with little cost to ourselves. It follows that if the basic structure of society is just, or as just as it is reasonable to expect in the circumstances, everyone has a natural duty to do what is required of him. Each is bound irrespective of his voluntary acts, performative or otherwise. 30 Thus, we have a natural duty to obey the laws that apply to us in those political societies made up of just institutions (i.e., societies with a just basic structure). In situations where just institutions do not exist or are unjust, we have a natural duty to help bring about such institutions, even in situations in which they do not apply to us.

See generally Simmons (2005), supra note 17, at 108-09. RAWLS (1971), supra note 14, at 114-15. 28 See, e.g., G.E.M. Anscombe, On the Source of the Authority of the State, supra note 13, at 142-73. For a general discussion, see Simmons (2005), supra note 17, at 121-88 29 For a critique of Rawls account of the subject of justice, see Liam B. Murphy, Institutions and the Demands of Justice, 27 Phil. & Pub. Aff. 251 (1999). 30 RAWLS (1971), supra note 14, at 334.
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2.2.b. The Particularity Problem As noted above, the particularity requirement is essential in grounding an obligation to obey the law. Many theories of political obligation have fallen victim to this legitimacy condition, and Rawls theory (as well as all natural duty accounts) is especially vulnerable. 31 To understand why this is the case, recall that Natural Duty theories assert that our duty to obey is a natural duty, a special type of moral requirement with special characteristics. One such feature is that a natural duty is a general requirement, one that binds us irrespective of the special features of our lives, and one that is owed to persons generally. 32 The question of political obligation, however, involves the requirement to obey ones own political community, a moral duty to obey the dictates of your own political superiors. It binds one to your own laws and government.33 The problem of particularity facing natural duty accounts is thus the problem of deriving a specific obligation to a particular state from a general moral duty to promote, e.g., justice. Rawls account does not adequately capture this special relationship. As noted by Simmons, a general moral duty to promote justice cannot bind one specially to support or comply with one particular state or society (such as my own). And the moral duty to obey the law is precisely such a particularized moral bond. This makes the derivation of a duty to obey domestic law from any natural duty desperately problematic from the start.34 The point is also illustrated in Ronald Dworkins objection to Rawls account. According to Dworkin, the natural duty of justice does not provide a good explanation of legitimacy, because it does not tie political obligation sufficiently tightly to the particular community to which those who have the obligation belong; it does not show why Britons have any special duty to support the institutions of Britain. [It] fails to capture the intimacy of the special duty. It fails to show how legitimacy flows from and defines citizenship. 35 To be sure, Rawls asserts that the natural duty of justice is owed to just institutions that apply to us. 36 But what does it mean for an institution to apply to us and how does this ground and particularize a natural duty of justice? The problem of particularity is the problem of deriving a duty to a particular state from a general natural duty. This is a problem because natural duties are the duties we all have in virtue of our status as a human persona moral agentand not as the result

For an in-depth analysis and critique of the natural duty of justice account of political obligation, see SIMMONS (1979), supra note 8, at 31-35, 155-156; see also Simmons (2005), supra note 17, at 166-70. 32 Simmons (2005), supra note 17, at 110. 33 See SIMMONS (1979), supra note 8, at 143-57. 34 Simmons (2005), supra note 17, at 166. 35 DWORKIN (1986), supra note 19, at 193. 36 RAWLS (1971), supra note 14, at 334 (emphasis added).
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of a transaction or associative role.37 And they are owed to everyone: as noted by Rawls, the natural duties are owed not only to definite individuals, say to those cooperating together in a particular social arrangement, but to persons generally. 38 So how does the natural duty of justice translate into an obligation to obey the laws of particular political states? Rawls simply asserts that we have a duty of justice to comply with those just institutions that exist and apply to us. 39 But the question naturally arises: why do we have a duty to support only those just institutions that apply to us? Why do we not have an obligation to the most just state or an obligation to support the state whose
subjects need most the cooperation of outsiders? Or why not simply an obligation to promote justice simpliciter? Simmons makes the point strongly:

why should those institutions that apply to us have some special moral claim on our attention? Justice is equally important everywhere. Why should we be thought to be specially bound to obey (and do our share in) the domestic institutions that apply to us ? What exactly privileges domestic institutions in this way? We can promote the cause of justice, advance the goal of a stable structure of just coercive institutions for all persons, without giving priority to the demands of domestic law. Why is our natural duty not simply the general duty to advance the cause of justice as effectively as we can, by whatever means are most effective ? 40 At bottom, the fundamental flaw in Rawls theory of political obligation is his failure to provide an adequate account of the moral significance of an institution that applies to us. 41 Rather, he simply assert its. But as noted by Jeremy Waldron, the insertion of a phrase is not an answer to a philosophical objection.42

For similar account of natural duties, see Christopher Heath Wellman, Political Obligation and the Particularity Requirement, 10 Legal Theory 97, 97 (2004). 38 RAWLS (1971), supra note 14, at 115. 39 RAWLS (1971), supra note 14, at 115, 334. 40 Simmons (2005), supra note 17, at 162. 41 For an analysis and critique of the importance of institutions that apply to us, see e.g., SIMMONS (1979), supra note 8, at 150-54; see also Simmons (2005), supra note 17, at 162, 164. Moreover, one may also object to the qualification found in Rawls account. Recall that one has an obligation to obey the law if the basic structure of society is just, or as just as it is reasonable to expect in the circumstances. RAWLS (1971), supra note 14, at 334. One may reasonably object to this qualification. Dudley Knowles forcefully makes the point: Imagine a citizen who fails to comply with an unjust law of a nearly just state. If the state insists upon compliance, or seeks to punish the recalcitrant, why cant he resist, saying Nearly sorry in the manner of the parent replying to the child who complains, You nearly hurt me. If the justice of the state is to do any work as a sufficiency claim, justice itself serving as the ground of citizens duties, we would need a separate, additional argument if we wished to claim that the nearly just state has the same authority. We would need an argument from near-justice, but the prospect is almost comical. To the state which claims authority on the basis that it is nearly just we can all too easily imagine the citizen replying that he nearly has the duties of the citizenbut not quite. KNOWLES, POLITICAL OBLIGATION: A CRITICAL INTRODUCTION 159 (2010). 42 Waldron, Special Ties and Natural Duties, 22 PHIL. & PUB. AFF. 3, 7 (1993).
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2.3 Waldron and the Natural Duty of Justice 2.3.a. Waldrons Defense In an effort to save Rawls theory from the particularity problem, Jeremy Waldron attempts to ground a natural duty of justice to specific political institutions that does not rely on consent or a willing acceptance of benefits.43 His argument is broken down into three distinct stages. In the first stage, Waldron attempts to establish that principles of justice are range-limited rather than universal, thus providing a justification for the necessary distinction between insiders and outsiders in his theory of political obligation. 44 In the second stage, he attempts to establish a requirement of the institutional administration of principles of justice, how insiders and outsides relate to these institutions, and the further requirements of obedience and compliance such an institutional structure (supposedly) necessitates. 45 Finally, in the third stage Waldron attempts to establish which institutions are entitled to demand obedience and compliance in furtherance of its pursuit of justice. 46 In the first stage, Waldron argues that certain moral principles are range-limited, and the principles of justice fall within this category. This provides a distinction between how insiders and outsiders relate to such a range-limited principle. According to Waldron, a person is within the range of application of a given principle of justice P 1 and thus an insider if he figures in the set of persons (or any of the sets of persons), referred to in the fullest statement of P 1 , to whose conduct, claims, and/or interests the requirements of P 1 are supposed to apply. Substantively, an individual is within the range of a principle if it is part of the point and justification of the principle to deal with his conduct, claims, and interests along with those of any other persons it deals with. 47 On Waldrons account, the special relationship of a citizen to the legal institutions of his state is largely captured by the fact that he is an insider with regard to the set of range-limited principles administered by those institutions. 48 One may wonder why the principles of justice are range-limited in this way. In order to justify this distinction and the use of range-limited principles of justice (and crucial to his theory), Waldron appeals to Kantian 49 political philosophy and the claim that we all have a moral duty to enter into political society (i.e., civil state 50). The idea here is that because of the threat of violence and constant warfare, we are all under a moral duty to leave the state of nature and enter into
See generally Waldron, Special Ties and Natural Duties, supra note 42, at 3-30. Waldron, Special Ties and Natural Duties, supra note 42, at12-15. 45 Waldron, Special Ties and Natural Duties, supra note 42, at 15-19. 46 Waldron, Special Ties and Natural Duties, supra note 42, at 19-27. 47 Waldron, Special Ties and Natural Duties, supra note 42, at 13. 48 Waldron, Special Ties and Natural Duties, supra note 42, at 13. 49 See IMMANUEL KANT, THE METAPHYSICS OF MORALS, 41-42, at 84-86 (Cambridge: Cambridge University Press, 1996). 50 See IMMANUEL KANT, On the Common Saying: This May be True in Theory, but it Does not Apply in Practice, in KANT: POLITICAL WRITINGS 61, 67 (H.S. Reiss ed., 1991).
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political society.51 In the state of nature, there is a continuing threat that we will resort to violence with those close to us in settling disputes regarding the possession and use of finite resources. This threat is most pronounced with regards to those within the immediate vicinity. 52 Thus, I should enter quickly into a form of society with those immediately adjacent to me, those with whose interests my resource use is likely to pose the most frequent and dangerous conflicts. 53 Waldron thus defines a territory by reference to such threats of violence and conflict: I shall use the notion of a territory to refer to any area within which conflicts must be settled if any stable system of resource use is to be possible among the inhabitants. 54 As a result, Waldron claims to have established the basis for the distinction between insiders and outsiders, and thus the use of rangelimited principles of justice. 55 In the second stage, Waldron argues that an institutional structure is required to administer the principles of justice, and this in turn requires that the institutions demand acceptance from those to whom the claims of justice are made (i.e., insiders). In addition, the institutional requirement necessitates the demand that both insiders and outsiders refrain from undermining the institutions implementation of the principles of justice. As a result of the interplay between stages one and two, Waldron claims to account for the characteristic special allegiance that is missing from Rawls theory of political obligation. According to Waldron, The laws of New Zealand do not purport to address conflicts involving the ordinary claims and rights of Frenchmen. So, no matter how just those laws are, the relation of most Frenchmen to them is at most an external relation: there are things they can do to undermine the legal system in New Zealand, but they are not bound internally to their determinations of justice. By contrast, a New Zealander does have the special insider relation to the laws of his own country. They have been set up precisely to address the question of the rights and duties of someone in his position vis-a-vis his fellow New Zealanders. That is the sense in which they apply to him. 56 In the third stage, Waldron argues that the institution of the State is entitled to an obligation of obedience, and it is entitled to demand that no other institutions compete with it in implementing the principles of justice. According to Waldron, the institution that is entitled to obedience and support in a given territory is the one that is (1) actually just, (2) capable of implementing justice in the territory and over the claims it addresses, and (3) legitimate. 57 The test for legitimacy involves establishing that there is a good reason to recognize this organization, as opposed to any rival organization, as the one to do justice in the given territory or with the claims that are at issue. 58

See Waldron Special Ties and Natural Duties, supra note 42, at 13-14. Waldron, Special Ties and Natural Duties, supra note 42, at 14. 53 Waldron, Special Ties and Natural Duties, supra note 42, at 15. 54 Waldron, Special Ties and Natural Duties, supra note 42, at 15. 55 Waldron, Special Ties and Natural Duties, supra note 42, at 15. 56 Waldron, Special Ties and Natural Duties, supra note 42, at 18. 57 Waldron, Special Ties and Natural Duties, supra note 42, at 19-27. 58 Waldron, Special Ties and Natural Duties, supra note 42, at 22.
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According to Waldron, the reasons for entering into political society entail reasons for having one and only one scheme of justice within such society. First, the initial reason for entering into a political society is to solve the problems of disagreement and conflict. This is because political institutions can mediate and arbitrate disputes, they can develop practices of impartiality, and they can collect together sufficient force to uphold their determinations. There is therefore a clear moral interest in their establishment. 59 Second, the reasons for entering into a political society provide reasons for having only one scheme of justice for the following reasons: (1) As noted by Robert Nozick, 60 the presence of multiple political schemes will likely lead to further conflict, and often on a greater scale than when in the state of nature without protection agencies. 61 (2) According to Waldron (and echoing Hobbes), my duties of justice may be affected by the extent to which I have assurance that others are cooperating with me; and [t]oo great a plurality of institutions may dissolve the advantages of an assured scheme of cooperation and reintroduce the chaos of a number of cross-cutting initiatives, each of which seems futile in itself. 62 (3) The possibility of a plurality of reasonable and just schemes points in the direction of choosing one scheme in order to solve the coordination problems political institutions are meant to solve.63 (4) Justice is systematic, a concept inherently connected to the institutions of societys single basic structure. As such, it seems that any claim that justice can make on us presupposes the identification of one set of organized institutions as the system that makes a claim on us. 64 According to Waldron, these considerations establish that one and only one system is entitled to implement the demands of justice. And the institution that is entitled to obedience and support is the one best able to obtain compliance: salience is the driving force behind the states entitlement to obedience; the state works as the salient solution to the problem of injustice. 65 As a result, Waldron claims that [t]he sheer existence of an institution as dominant and unchallenged may suffice to establish its salience, whether it is popularly supported or not. 66 Thus, one particular institution is entitled to obedience within a particular territorial domain. In the strong words of Waldron, when confronted with the question whether an organization may morally impose itself on

Waldron, Special Ties and Natural Duties, supra note 42, at 22. ROBERT NOZICK, ANARCHY, STATE, AND UTOPIA 10-17 (1974) (hereinafter NOZICK, ANARCHY, STATE AND UTOPIA). For a critique of Nozicks invisible hand explanation, see MURRAY N. ROTHBARD, THE ETHICS OF LIBERTY 233- 37 (New York University Press ed., 1998) [1982]. According to Rothbard, it is economically absurd to expect the protective agencies to battle each other physically; such warfare would alienate clients and be highly expensive to boot. It is absurd to think that, on the market, protective agencies would fail to agree in advance on private appeals courts or arbitrators whom they would turn to, in order to resolve any dispute. Id. at 234. See also DAVID FRIEDMAN, THE MACHINERY OF FREEDOM 111-63 (2d ed., 1989); David Friedman, Law as a Private Good: A Rejoinder to Tyler Cowen on the Economics of Anarchy, 10 Econ. & Phil. 319 (1994); Randy Barnett, Pursuing Justice in a Free Society: Part Two-Crime Prevention and the Legal Order, 5 CRIMINAL JUSTICE ETHICS 30 (1986); Bryan Caplan & Edward Stringham, Networks, Law, and the Paradox of Cooperation, 16 REV. AUSTRIAN ECON. 309 (2003). But cf. Tyler Cowen, Law as a Public Good: The Economics of Anarchy, 8 ECON. & PHIL. 249 (1992); Tyler Cowen, Rejoinder to David Friedman on the Economics of Anarchy, 10 ECON. & PHIL. 329 (1994). 61 Waldron, Special Ties and Natural Duties, supra note 42, at 22-23. 62 Waldron, Special Ties and Natural Duties, supra note 42, at 23. 63 Waldron, Special Ties and Natural Duties, supra note 42, at 23-24. 64 Waldron, Special Ties and Natural Duties, supra note 42, at 24. 65 For a characterization of the issue as the problem of injustice, see Simmons (2005), supra note 17, at 172. 66 Waldron, Special Ties and Natural Duties, supra note 42, at 25.
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us, the theorist of natural duty must stop treating this question as an objection and simply insist that the answer is yes. 67 2.3.b. Critique of Waldron Although Waldron presents an interesting defense of a natural duty of account of political obligation, I believe he fails in his response to the particularity problem because his Kantian approach fails to provide a plausible justification for drawing a distinction between insiders and outsiders. First, recall that, in order to justify range-limited principles of justice, Waldron relied on the Kantian moral imperative to enter into political society. This is based on the claim that those living within a certain proximity constitute special threats to us, even assuming good faith. Waldron proceeded to define as a territory any area within which conflicts must be settled if any stable system of resource use is to be possible among the inhabitants. 68 I believe that Waldron is misguided, however, in arguing that our neighbors are somehow special threats to us in such a way that legitimizes the coercive implementation of State enforcement mechanisms. Rather than special threats, our neighbors are more likely special sources of friendship and companionship, for we are more likely to establish bonds of friendship and kinship with those closest to us. 69 For example, Kropotkin argues that there is as much, or perhaps even more, of mutual support, mutual aid, and mutual defence amidst animals belonging to the same species or, at least, to the same society. Sociability is as much a law of nature as mutual struggle. 70 Moreover, we are more likely to have continuous and frequent contact with those in close proximity. In such a setting, defection and violence is irrational: game theory shows that the rational approach to iterated games among those in a small group without a probabilistic cutoff is not one of defection and aggression; rather, rationality requires social cooperation as the optimal social strategy. It is more likely that those at a distance, those that we do not interact with and develop on-going relationships, pose special threats, especially considering the advances in modern weaponry.71 There is thus a strong argument that both our makeup and rationality undermine the claim that our near neighbors constitute special threats. Second and similarly, the Kantian approach rests on a claim that ones continuation in a state of nature in relation to others is somehow a wrongful threat. This seems implausible. It is hard to understand how ones simple refusal to enter into a particular political community is somehow wrongful to those already in the community or attempting to establish one, especially considering that there are many who are simply not threats on any reasonable interpretation of the situation. This is important because the idea of wrongful threats appears to require an objective standard, and mere subjective feelings will not suffice. 72 The observations above provide additional support, for the inherent need for friendship and the rational dictates provided by game theory suggest that we should not simply assume that those close to us are planning an attack. And the mere subjective
Waldron, Special Ties and Natural Duties, supra note 42, at 27. Waldron, Special Ties and Natural Duties, supra note 42, at 15. 69 See also Simmons (2005) supra note 17, at 175. 70 PETER KROPOTKIN, MUTUAL AID 24 (1902). 71 See Simmons (2005), supra note 17, at 174-75. 72 See Simmons (2005), supra note 17, at 175 on this point.
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belief to that affect (i.e., the belief that ones neighbors are a likely threat of attack) will not suffice to elevate the refusal to enter political society to the status of a wrongful threat. Therefore, the Kantian approach seems to rest on an implausible account of what constitutes a wrongful threat. Third, Waldrons salience approach to legitimacy seems misguided as well. As noted above, Kantian political philosophy claims a moral imperative to enter into a political society with those who pose a threat to us. Waldron argues that insiders and outsiders are determined by the claims and interests a range-limited principle of justice is meant to deal with, and the principles of justice that are implemented are determined by the salient institution within a given territory. But this means that the claims and interests, and thus the given territory, are determined by whatever institution just so happens to be salient. So whether individuals constitute a threat to each other, thus requiring the creation of a political society, is determined by the salient institution for no other reason than it being salient. 73 As a result, the claim that a group of individuals constitute a threat to one another can be determined by, e.g., the territorial boundaries shaped by imperialism and oppression. The problem with Waldrons approach is that it allows for the salient state institutions to determine the contours of a political society; whether such individuals actually constitute special threats makes no difference. This undermines the Kantian foundations of his theory, for the fact that an institution is salient makes no difference in determining whether those subject to its demands constitute a threat to one another. And if those within an institutions domain do not pose such threats, there is no moral obligation to enter together into a political society. Without the ability to distinguish between special threats, there is no justification for distinguishing between insiders and outsiders. The salience of an institution is simply irrelevant in determining the contours of a political society that is supposedly grounded in a theory of special/wrongful threats. Waldron thus fails to establish that salience is the morally-defining feature that grounds the legitimacy of one (and only one) institution in a given political territory. Fourth and similarly, I believe that the observations mentioned above point to an additional (and fundamental) difficulty with Waldrons approach. Even if we assume the range-limited principles of justice set forth by Waldron, important questions remain: who decides whether a person falls within the range of application? Who decides whether someone is a special threat? Who decides whether someone is a wrongful threat? If we are to follow Waldrons lead, disagreements abound, and there is no reason to believe that this fundamental issue would be any different. Moreover, it seems to me that political institutions themselves pose significant threats to individuals by, e.g., wrongfully including or excluding many from their zones of application. Waldron recognizes these concerns in passing, noting that outsiders may sometimes justly demand to be treated as insiders. 74 This fundamental problem and its necessary link to the ultimate grounds of political legitimacy is recognized by Wojciech Sadurski. He states: I have not discussed the question of who constitutes the demos within which the majority counts for the purposes of MR [majority rule] [However, a] determination of the bounds of the demos is crucial for any fully-fledged conception of democracy because, even
73 74

For a clear discussion of this issue, see Simmons (2005), supra note 17, at 173-74. Waldron (1993), 17, n.30.
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if my argument about the link between MR and equality is correct, a fundamental inequality may be caused by a disenfranchisement of some groups of people for the purposes of ascertaining majority. [U]ltimately what we are interested in is the relationship of equality (as displayed by MR) to the legitimacy of a democratic system, and by placing some people outside the bounds of the demos, the system fails to make out the claim of legitimacy of its laws towards them. 75 Unfortunately, Waldron (and Sadurski) does not recognize the reverse claim (or its fundamental importance): many law-subjects may justly demand to be treated as an outsider as well. There is a significant wrong committed when an individual (or a group of individuals) is incorrectly subjected to the coercive apparatuses of the political system. As noted by Cindy Holder, [f]or those wrongfully integrated into a state, the state seems most accurately described not as a vehicle for governing a common world but as an alien, external mechanism through which they and their communities are managed. 76 There is nothing in Waldrons theory to account for this significant harm. Furthermore, Waldron makes reference to a requirement of democratic decision procedures, and perhaps this is the proper route for determining the inclusion/exclusion problem.77 Unfortunately, democratic decision procedures cannot save the theory from the particularity problem, as I will show below. 2.3.c. Democratic Authority and the Particularity Problem It is sometimes asserted that democracies, and only democracies, possess the special extra ingredient required of legitimate government and thus ground an obligation to obey the law. Most political philosophers, both democratic and otherwise, take the existence of a demos for granted, presuming the adequacy of the currently-existing and historically contingent political units. With this assumption in hand, such theorists proceed to analyze the conditions of legitimate government and political fairness, typically including discussions of political equality or political representation. For example, Thomas Christiano claims that the political units that make up actual states are often the products of highly contingent and morally arbitrary causes. And in many cases, these common worlds were forged by the use of force and fraud. But however one thinks of how these common worlds are formed, the fact of a common world is a morally relevant fact now. To see why this common world is morally important we must continue the argument for democracy.78

Wojciech Sadurski, Legitimacy, Political Equality, and Majority Rule, 21 RATIO JURIS 39, NEED CITE (2008) (p.33 of draft) Cindy Holder, Democratic Authority From the Outside Looking In: States, Common Worlds and Wrongful Connections, 5 J. Ethics & Soc. Phil. [__], [8] (2011). 77 Waldron (1993), 27. 78 CHRISTIANO, THE CONSTITUTION OF EQUALITY: DEMOCRATIC AUTHORITY AND ITS LIMITS 82-83 (2008). Many philosophers proceed along similar lines, either explicitly acknowledging the historically contingent nature of existing political units or simply assuming it without mention. Ronald Dworkin, for example, requires that a bare community is a precondition for a legitimate political society, and practice is sufficient to provide the boundaries for such a society. See DWORKIN (1986), supra note 19, at 201-02, 207-08. For a discussion of the tendency of political theorists to
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The discussion of the particularity requirement, however, shows that a theory of political obligation in general and democratic authority in particular must ground a particularized moral obligation in order to show that democratically elected governments have the special moral quality of legitimate authority. The issue is made clear by Simmons: [m]erely treating people well in a decision-making process is not an adequate defense for coercing them unless (at least) those people can be shown to be (morally speaking) subject to that decision-making process. We cannot legitimate imposing our laws on, say, Canadians or Mexicans simply by treating those persons equally in our lawmaking process (by giving them an equal vote, etc.). ... [The problem of particularity for democratic theory] is the moral problem of grounding the authority of some particular states democratic processes over any particular person.79 Thus, simply pointing to a given political society and showing the presence of democratic processes does not adequately ground legitimate democratic authority. One must be able to provide moral reasons over and above the decision-making process for why this state within this territory is said to hold moral authority over this particular person or persons. Robert Dahl further notes that democratic theorists often take for granted that democracy would exist in certain concrete political units ... But they rarely ask why we ought to accept these particular aggregations as appropriate for democracy rather than different aggregations with different boundaries. 80 The particularity problem can thus be specifically tailored to fit theories of democratic authority. Dahl, although not explicitly referring to particularity, nevertheless provides an instructive formulation of the problem as it relates specifically to democratic theory. For Dahl, the question at issue is: when does a collection of persons constitute an entitya peopleentitled to govern itself democratically? 81 According to Dahl, [i]f the democratic process is a means by which some collection of persons may rightfully govern itself, what constitutes an appropriate collection of persons for employing the democratic process? Is any collection of persons entitled to the democratic process? In short, if democracy means government by the people, what constitutes "a people"? There may be no problem in the whole domain of democratic theory and practice more intractable than the one posed by this innocent-seeming question.82 Frederick Whelan provides similar insights: The concept of democracy always makes reference to a determinate community of persons (citizens)a peoplewho are
assume the historically-contingent political units, see Sofia Nasstrom, The Legitimacy of the People, 35 POL. THEORY 624 (2007). 79 A. JOHN SIMMONS, POLITICAL PHILOSOPHY 112-13 (2008) (emphasis in original) (hereinafter SIMMONS (2008)). 80 ROBERT A. DAHL, DEMOCRACY AND ITS CRITICS 194 (1989) (hereinafter Dahl (1989)). 81 DAHL (1989), supra note 78, at 193. 82 DAHL (1989), supra note 78, at 116.
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collectively self-governing with respect to their internal and external affairs. [A]ny democratic theory must face the fundamental question of the appropriate constitution of the people or unit with which democratic governance is to be practiced.83 To further complicate things, democratic theory itself appears ill-suited to tackle this pressing issue. For example, the ideal of majority rule is often connected to theories of democracy. It appears question-begging, however, to suggest that majority rule ought to determine when a group of people constitutes the People and thus entitled to rule. What we need to know is why these people are entitled to decide in the first place. This We the People problem is thus particularly relevant in the context of Waldrons defense of a natural duty of justice. Recall that Waldrons approach requires a distinction between insiders and outsiders, and this requires the determination of whether some are special and wrongful threats to each other. In the absence of such a relationship, there is no moral obligation to enter into political community. The question thus arises: who decides whether such a relationship exists? It begs the question to answer, the People ought to decide, for the question precisely is whether an individual ought to be subject to the Peoples domain. Moreover, it appears equally questionbegging to assert that whoever is subject to the laws of a political society constitute the People and thus entitled to rule, for the question precisely is when ought an individual to be subject to the laws of a particular political community. As a result, Waldron cannot resort to democratic theory to save his distinction between insiders and outsiders and the special threats dilemma. Waldron provides no account for establishing who poses a special threat or how to answer those who protest against the inclusion within a political community. Therefore, Waldrons approach fails to save the Rawlsian theory of political obligation from the particularity problem. 3. ALTERNATIVE THEORIES OF POLITICAL OBLIGATION In this section, I critique three highly influential theories of political obligation: the associative, consent, and fair-play accounts. First, I analyze and refute associative theories of legitimacy, paying close attention to the version propounded by Ronald Dworkin. Second, I consider and reject theories of legitimacy and political obligation based on the consent of the governed. Third and finally, I reject theories of fair play. As a result of these discussions, I conclude that political subjects in general are not (and never were) subject to a genuine obligation to obey their political society.

83

Frederick G. Whelan, Prologue: Democratic Theory and the Boundary Problem, in LIBERAL DEMOCRACY 13, 13 (Pennock & Chapman, eds., 1983) (emphasis in original).
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3.1 Associative Theories 3.1.a. The Nature of Associative Accounts Associative theories 84 offer a unique account of political obligation that seeks to ground a moral requirement in neither an individuals voluntary undertakings nor in the natural duties we all have in virtue of our personhood. Rather, the associativist asserts that our political obligations rest on facts about our personal identity or facts about our social roles. Associative obligations are communal obligations 85 or obligations of role 86 that arise simply out of the fact that one occupies a certain position in the community. They are the special responsibilities social practice attaches to membership in some biological or social group [and they arise] just by belonging to groups defined by social practice, which is not necessarily a matter of choice or consent. 87 The paradigmatic examples put forth by associativists are the special obligations among family, lovers, and friends. 88 Analogously (or so we are told), political communities are pregnant of obligation and the role of citizen is constituted by duties and obligations, including the duty to obey the law. 89 Thus, it has been said that the essence of the associative claim is that we are affiliated and therefore morally obligated, rather than morally obligated and only then affiliated. 90 In explicating the concept of associative obligation as a distinct type of moral requirement, theorists tend to emphasize either the emotional attachments felt between those obligated or the feeling of identity/attachment one has towards a specific group or role. Thus, we see associativists cite to the emotional attachments between siblings and family members 91 in order to illustrate the existence of obligations that are neither owed to persons generally nor created by the particular acts of individuals (e.g., promises and contracts). As a result, associative obligations take a particular form of moral requirement that is both special and non-voluntary.92 They are special moral requirements in that they are grounded in those special relationships that we have with particular others or groups, and they are owed specifically to those others or groups.93 Second, they are non-voluntary in that they fall on us simply because of the (non-consensual) roles we occupy
Associative theories of obligation come in many shapes and sizes. See e.g., RONALD DWORKIN (1986), supra note 19, at 195-215; Margaret Gilbert, Group Membership and Political Obligation, 76 MONIST 119 (1993); MARGARET GILBERT, A THEORY OF POLITICAL OBLIGATION: MEMBERSHIP, COMMITMENT, AND THE BONDS OF SOCIETY (2006); JOHN HORTON, POLITICAL OBLIGATION (1992); John Horton, In Defense of Associative Political Obligations: Part Two, 55 POL. STUDIES 1 (2007) [hereinafter Horton (2007)]; YAEL TAMIR, LIBERAL NATIONALISM (1993) (hereinafter TAMIR (1993)); Michael Hardimon, Role Obligations, 41 J. PHIL. 333 (1994) (hereinafter Hardimon, Role Obligations). 85 DWORKIN (1986), supra note 19, at 196. 86 DWORKIN (1986), supra note 19, at 195. By way of contrast, Michael Hardimon defines a role obligation as a moral requirement, which attaches to an institutional role, whose content is fixed by the function of the role, and whose normative force flows from the role. Hardimon, Role Obligations, supra note 82, at 334. Interestingly, Hardimon claims that role obligations are not a species of associative obligations. See id. at 335. 87 DWORKIN (1986), supra note 19, at 196. 88 DWORKIN (1986), supra note 19, at 196-99. 89 DWORKIN (1986), supra note 19, at 206. 90 TAMIR (1993), supra note 82, at 136. 91 See, e.g., DWORKIN (1986), supra note 19, at 196-98. 92 See Simmons (2005), supra note 17, at 108-09. 93 Simmons (2005), supra note 17, at 108.
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or status we possess. Thus, associative obligations are said to obtain only among special associations (as opposed to general duties that are owed to all of humanity) and are neither explicitly agreed upon nor consented to (contrary to specific obligations generated through discrete actions or agreements).94 Theories grounded in associative obligations thus appear to provide a promising start for an adequate account of political obligation. First, they satisfy the particularity requirement by being special moral requirements that are owed to particular persons or groups. Second, because they arise out of roles or status, they are non-voluntary and thus do not require implausible accounts of, e.g., tacit consent.95 Third, and in consequence of these two observations, by locating the obligation in the special character of non-voluntary social practices and relationships, associative theories appear able to account for the political nature of the moral requirements claimed in political obligation. 3.1.b. Difficulties with Associative Theories There are many difficulties with the associative approach to political obligation, even granting the assumption that associative obligations in general actually exist. This is because the emphasis on close emotional ties appears to be a difficult ground to support the idea of political obligations. First, it is difficult to understand how such obligations arise in political communities in which citizens never engage directly with or even meet each other. Most political subjects do not know even a small fraction (let alone the peculiar characteristics) of those who happen to live within their arbitrary political boundaries. Second, in modern pluralistic states, law-subjects tend to have feelings of resentment towards rather than close personal ties to their fellow citizens. Cultural diversity, economic class, and ethnic differences often produce conflict rather than compassion among citizens. This problem is exacerbated by the recognition of culturally-motivated cognition.96 Third, to the extent that citizens do feel an attachment to the fictitious entity of the state (as opposed to an attachment to those who make up the polity, an important distinction), such an attachment is often undermined by the likelihood of manipulation through state propaganda. 97 Propaganda has this effect (i.e., of undermining the possibility of political obligation arising out of a felt identity) because the normative force driving the plausibility of associative obligations is undermined if the felt-connection is the result of intentional manipulation by those to whom we are said to owe an obligation. As noted by Wellman, this is akin to my insisting that my lover has a duty not to leave me solely because I manipulated her into identifying with me and our relationship. If anything, manipulation makes my lovers commitment less appropriate and makes a state less deserving of faithful allegiance. 98
Christopher Heath Wellman, Associative Allegiances and Political Obligations, 23 SOCIAL THEORY AND PRACTICE 181, 182 (1997) (hereinafter Wellman (1997)). 95 For an account of the initial advantages of associative theories of political obligations, see, e.g., A. John Simmons, Political Obligation and Authority, in THE BLACKWELL GUIDE TO SOCIAL AND POLITICAL PHILOSOPHY 17, 28-29 (Robert L. Simon ed., 2002) (hereinafter Simmons (2002)); Simmons (2005), supra note 17, at 109-110. 96 See e.g., Dan M. Kahan, ET AL., They Saw a Protest: Cognitive Illiberalism and the Speech-Conduct Distinction, 64 STAN. L. REV. (forthcoming 2012). 97 See Wellman (1997), supra note 92, at 198-99. 98 Wellman (1997), supra note 92, at 198.
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In my mind, these problems cannot be overcome by a theory seeking to ground the political obligations of citizens in historical and currently-existing political societies. The supposedly normatively-meaningful connections that give rise to associative moral obligations simply do not exist between citizens in the political relationship. The fact of contingency, vast and arbitrary boundaries, and a historical-record of imperialism, conquest, and bloodshed (not to mention class warfare, oppression, slavery, and apartheid), undermine the attempt to establish associative obligations among members of modern states. In the next section, I analyze and criticize Ronald Dworkins attempt to overcome such difficulties in his theory of political obligation. In the interest of space, however, I will not be able to do so for all such associative theories (for analysis and critique of the different associative accounts, see the references in the footnote below). 99 3.1.c. Dworkin on Associative Obligations Ronald Dworkin provides an interesting account of associative obligations that seeks to sidestep the problems noted above. According to Dworkin, a true community possesses four distinct qualities, and a bare community that possesses these four qualities gives rise to associative political obligations. 100 A unique aspect of Dworkins theory is his claim that personal relationships and emotional ties are not necessary to ground communal obligations. Thus, he claims that the grounds for communal obligations are not psychological but interpretative: [t]he concern they require is an interpretative property of the groups practices of asserting and acknowledging responsibilities these must be practices that people with the right level of concern would adoptnot a psychological property of some fixed number of the actual members. 101 As a result, by providing an interpretative account of political obligation, Dworkin parries the arguments offered above regarding the characteristics of actual political societies; the actual feelings and actual emotional personal ties of those in political communities are irrelevant to the Dworkinian interpretive enterprise. The problem with this approach, however, is that Dworkin thereby abandons any relation to an associative account of political obligation. Recall that in arguing for the existence of associative duties qua distinct moral requirements, Dworkin repeatedly makes reference to certain nonFor more comprehensive critiques of associative theories of political obligation, see SIMMONS (2001), supra note 18, at 65-92, 93-101; Simmons (2002), supra note 93, at 31-32; Simmons (2005), supra note 17, at 111-15; SIMMONS (2008), supra note 77, at 49-52; Leslie Green, Associative Obligations and the State, reprinted in DWORKIN AND HIS CRITICS 267, 267-84 (Justine Burley ed., 2004) (hereinafter Green, Associative Obligations and the State); Leslie Green, Law and Obligations, in THE OXFORD HANDBOOK OF JURISPRUDENCE AND PHILOSOPHY OF LAW 514, 532-35 (Jules Coleman & Scott Shapiro eds., 2002) [hereinafter Green, Law and Obligations]; Wellman (1997), supra note 92; Christopher Heath Wellman, Relational Facts in Liberal Political Theory: Is There Magic in the Pronoun 'My'? 110 ETHICS 337 (2000); Eerik Lagerspetz, Ronald Dworkin on Communities and Obligations: A Critical Comment, 12 RATIO JURIS 108 (1999); PHILIP SOPER, THE ETHICS OF DEFERENCE 169-72 (2002) [hereinafter SOPER (2002]; Hirohide Takikawa, Citizens as Brothers? Critically Analyzing Dworkin on Political Obligation, in LAW, LIBERTY, MORALITY, AND RIGHTS 66-75 (Gizbert-Studnicki & Klinowski eds., 2009). 100 DWORKIN (1986), supra note 19, at 199-201. A Dworkinian true community possesses the following qualities: (1) its members must hold the attitude that the groups responsibilities are special (as opposed to general duties), owed to only those within the group; (2) its members must hold the attitude that the responsibilities are personal, that they are owed horizontally between members, not just vertically to the group as a whole; (3) its members hold the attitude that these particular responsibilities flow from a more general responsibility of concern for the well-being of the group; and (4) its members assume that the groups practices show an equal concern for all members. Id. at 199-201. 101 DWORKIN (1986), supra note 19, at 201 (emphasis added).
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voluntary responsibilities that arise out of associational relationships. He begins with the responsibilities of family or friends or neighbors,102 the responsibilities to family and lovers and friends and union or office colleagues, 103 the responsibilities to friends, 104 academic colleagueship and family, 105 and the responsibilities to your brother in virtue of our brotherhood.106 In so arguing, Dworkin appeals to associative responsibilities and moral obligations in the context of close relationships characterized by either strong emotional or personal ties (family, friends, neighbors) or consensual association (union and office/academic colleagues). Political relationships, however, are neither close and personal nor consensual, and existing states do not instantiate the qualities necessary for a true Dworkinian community.107 But according to Dworkin, this does not matter, for associative political obligation is an interpretative property of a given societys laws. It is hard to understand, however, how political obligation is associative in any meaningful way or how an interpretation of a practice, rather than the actual practice itself, can give rise to actual moral obligations. 108 As argued by Leslie Green, Dworkins interpretive account is some remove from associative obligations and the organic view of social life that inspires them. Such obligations seek to explain the moral force of the contingent and accidental; when they fall out of a necessary interpretative imputation that no one may actually endorse, detached from the lives of its subjects, it is plain that we have left associative obligations far behind.109 This problem is not mere semantics. Associative theories try to fill a void by arguing that political obligation does not stem from either consensual relations or a general duty owed by all to all. In so arguing, associativists call upon the associative obligation, an obligation said to arise out special relationships such as father and daughter, husband and wife. As shown above, Dworkin is not shy to exploit our intuitions regarding these close personal albeit non-voluntary relationships, not mention our intuitions regarding consensual association; but by asserting the interpretative project, he abandons both. So we are left to wonder what exactly is left to ground the assertion of associative political obligation at all. Perhaps, as hypothesized by Wellman, 110 Dworkin means to argue that a state characterized by law as integrity is made up of citizen-relations similar to those among friends and family
DWORKIN (1986), supra note 19, at 196. DWORKIN (1986), supra note 19, at 196. 104 DWORKIN (1986), supra note 19, at 197. 105 DWORKIN (1986), supra note 19, at 198. 106 DWORKIN (1986), supra note 19, at 198. 107 Moreover, in a later work Dworkin appears (at least implicitly) to recognize the extent of the problem in actual political societies. First, he states [n]o government is legitimate that does not show equal concern for the fate of all those citizens over whom it claims dominion and from whom it claims allegiance. RONALD DWORKIN, SOVEREIGN VIRTUE 1 (2000). He proceeds to claim that [t]he prosperous democracies are very far from providing even a decent minimal life for everyone. Id. at 3. According to Dworkin's theory of equality, this evinces an attitude that fails to treat subjects with equal concern. It thus seems that Dworkin himself undermines any claim to political obligation in actual political societies. 108 See e.g., SOPER (2002), supra note 97, at 170. 109 Green, Law and Obligations, supra note 97, at 534; see also SIMMONS (2001), supra note 18, at 78-79; Wellman (1997), supra note 92, at 191-94. 110 Wellman (1997), supra note 92, at 192-93.
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because the integrity of the law is best interpreted as issuing from a concern that citizens have for each other. 111 But if the interpretation stems not from the actual concern of citizens, but from a hypothetical concern consistent with Dworkins true community, then we are again back to wondering how Dworkin relies on associative obligations. As noted by Wellman, [j]ust as Dworkin has notoriously objected to the hypothetical contract that it is not simply a pale form of an actual contract, it is no contract at all, we might object that interpretive concern is not simply a less robust kind of concern, it is no concern at all. 112 The fatal flaw in Dworkins account is that it is impossible to understand how associative obligations can arise out of a context that lacks close emotional ties, consensual association, and the actual Dworkinian concern 113 of citizens. The intuitive force behind the idea of associative obligations in general (and exploited by Dworkin) is that we relate to the context of family and friends and lovers, and we proceed to say perhaps I do have moral obligations to these people whether or not I voluntarily consent in the form of an agreement. But the intuitions and reasons why we feel that we have these special non-voluntary obligations resulting from friendship and family do not transfer to the political relationshipmy relationship with John Doe from Idaho in no way resembles the close emotional ties characterized by my relationship with family and friends, or the personal ties characterized by consensual association with colleagues. 114 Dworkin thus fails in his account of political obligation grounded in associative obligations. 3.2 Consent Theories There is a strong tradition in political philosophy, dating back to at least Thomas Hobbes, which grounds political obligation in the consent of the governed. It is appealed to by many contemporary governments and holds a special place within the history of popular American political culture. One need look no further than the Declaration of Independence to see the

Wellman (1997), supra note 92, at 192. Wellman (1997), supra note 92, at 193. 113 Although the conditions for a true community are interpretive rather than psychological, Dworkin acknowledges that a group will rarely meet or long sustain [the conditions] unless its members by and large actually feel some emotional bond with one another. DWORKIN (1986), supra note 19, at 201) (emphasis added). By this recognition, according to Simmons, Dworkin has in effect admitted that actual concern is very unlikely ever to be the case in actual political communities, since members of such communities seldom "actually feel some emotional bond" with all (or even most) of their fellow members. It is simply not true, either in our own political community or in any others with which we are familiar, that most citizens feel with respect to all of their fellows a deep and abiding concern. In the interest of realism, we must acknowledge that the divisions between religions, ethnic groups, races, political parties, castes, economic classes, and so on run too deep for this claim to be convincingly denied. Where one might find the kind of closeness and concern necessary for Dworkin's account of associative obligations, of course, will only be in groups far smaller than the large-scale political communities with which Dworkin claims to be concerned. SIMMONS (2001), supra note 18, at 78-79. 114 Moreover, the intuitive force driving the idea of non-voluntary obligation of parent and child that Dworkin repeatedly refers to is completely different (authoritative, hierarchical) than the fraternal or communal relationship (mutual, horizontal) that he claims grounds the concept of political obligation. See Green, Associative Obligations and the State, supra note 97, at 271-72.
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historical influence of consent theory in American politics. 115 And it is no wonder; consent theorys appeal is direct and intuitive, for it respects our belief that the course a mans life takes should be determined, as much as possible, by his own decisions and actions. 116 On this view, political authority is legitimate if and only if it results from the consent of those subject to its directives. Such a theory grounds the political obligations of citizens in their personal performance of a voluntary act which is the deliberate undertaking of an obligation. 117 Thus, it is a voluntary act (e.g., a promise or a contract) which provides legitimacy and grounds political obligation. The problems with consent theory, at least as an account of the obligations of actual citizens in actual political societies, are well known. 118 Very few if any citizens throughout the history of political society can be said to have committed the voluntary acts required by consent theories. We are born into our political societies and are never given a choice as to whether we agree or not to the states reach. As a result, it is implausible to argue that actual citizens have explicitly consented to the authority of our governments. A historically popular response is an appeal to tacit consent. In consideration thereof, we must consider what it means to say that one tacitly consents to governmental authority, and how this is done. First, as noted by Simmons, one consents through intentional and voluntary actions (or omissions).119 Second, consent is tacit when it is given by remaining silent and inactive [it] is expressed by the failure to do certain things. 120 Importantly, tacit consent is actual consent with the same significance and binding force as direct and explicit consent. Its only difference, then, is the special mode of its expression. 121 Thus, the distinguishing feature of tacit consent is the way consent is expressed by remaining silent and inactive. The question then becomes, under what conditions can silence and the failure to do certain things be taken as a sign of consent (recalling that consent requires intent and voluntary acts)? Simmons provides a helpful account of the conditions that appear necessary for any morallymeaningful interpretation of tacit consent: (1) the individual knows what obligations they are undertaking by not dissenting, (2) the individual knows how to express dissent, (3) the individual is given an opportunity to and is provided a deadline for expressing such dissent, and (4) the situation is one in which it is relatively easy and therefore not prohibitively costly for one to express dissent.122 How, then, can it be said that actual governments derive their legitimacy from the tacit consent of the governed? According to John Locke, one tacitly consents to the authority of government by merely being on the territory in question. Locke writes: every man, that hath any possession, or enjoyment of any part of the dominions of any government, doth thereby give his
It states: [T]o secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed. THE DECLARATION OF INDEPENDENCE para. 2 (U.S. 1776) (emphasis added). 116 SIMMONS (1979), supra note 8, at 69. 117 SIMMONS (1979), supra note 8, at 57. 118 See, e.g., DAVID HUME, OF THE ORIGINAL CONTRACT (1742), reprinted in HUME: POLITICAL ESSAYS 186, 186-201 (Knud Haakonssen ed., 1994) (hereinafter HUME, OF THE ORIGINAL CONTRACT); SIMMONS (1979), supra note 8, at 57100. 119 SIMMONS (1979), supra note 8, at 77-79. 120 SIMMONS (1979), supra note 8, at 80. 121 SIMMONS (1979), supra note 8, at 80. 122 SIMMONS (1979), supra note 8, at 80-81.
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tacit consent, and is as far forth obliged to obedience to the laws of that government.123 The problem with this approach, however, is that there is no normatively-meaningful way to say that one consented. Does mere presence on a territory manifest intent to be obligated through voluntary acts? It seems clear that it does not, for it is unlikely that the individual knows how to express dissent or that the individual is given an opportunity to and is provided a deadline for expressing such dissent. Most importantly (and as noted above), a normatively-meaningful account of tacit consent requires that the situation is one in which it is relatively easy and therefore not prohibitively costly for one to express dissent. 124 As a result, even if citizens were given an antecedent formal choice about whether to stay or go (which they are not), such a choice still would not amount to tacit consent. This is because moving out of a state is prohibitively costly, thus undermining any sense in which the action can be said to be voluntary in a morally-meaningful way. As famously argued by David Hume, Can we seriously say, that a poor peasant or partisan has a free choice to leave his country, when he knows no foreign language or manners, and lives, from day to day, by the small wages which he acquires? We may as well assert that a man, by remaining in a vessel, freely consents to the dominion of the master; though he was carried on board while asleep, and must leap into the ocean and perish, the moment he leaves her.125 One may question this condition. Why must ones ability to dissent be free of high costs? Doesnt the presence of such costs manifest ones desire to remain? Doesnt the presence of such costs manifest the benefits the individual perceives as flowing from the citizenship in the state? Doesnt this fact show that the person therefore tacitly consents? This objection fails, however, for two reasons. First, it incorrectly assumes that the costs associated with leaving are related to ones status as a political citizen. Rather, the costs are associated with leaving simpliciter, that is, the costs are related to leaving the territory, not renouncing ones status as citizen. Second, the objection presupposes the states moral authority by questioning condition (4). Those who assert that mere presence is enough to establish consent assume the state has an independent and antecedent right to impose the prohibitively costly choice situation upon its subjects. This cannot be the case, however, if consent is the basis for the states authority in the first place. As noted by Simmons, only if citizens had already consented to the states jurisdiction over the land could the state legitimately compel a choice between allegiance and emigration. The argument that continued residence gives tacit consent to state authority presupposes that the state already has authority based on consent; it cannot, then, be used to explain the source of that authority.126 The ability to dissent from the agreement must be a reasonable option and cannot require assuming exorbitant costs that the other party (i.e., political society) has no independent and antecedent right to impose.
JOHN LOCKE, SECOND TREATISE OF GOVERNMENT 119 (Indianapolis: Hackett ed., 1980) [1690]. SIMMONS (1979), supra note 8, at 81. 125 See HUME, OF THE ORIGINAL CONTRACT, supra note 116, at 193. 126 See, e.g., SIMMONS (2008), supra note 77, at 55 (emphasis in original).
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A defender of consent theory (as an account of actual citizens obligations) may respond by arguing that voting provides the basis upon which one can be said to have consented to the authority of a (democratic) government. This claimthat voting adequately expresses tacit consentis fundamentally flawed. 127 As noted above, consent (whether tacit or otherwise) requires intentional and voluntary acts or omissions, and tacit consent occurs when remaining silent and inactive manifests actual consent, given the circumstances. What seems to be minimally required for tacit consent, then, is (the belief) that if one did not engage in the relevant activity they would not be bound by an agreement. In the case of voting, however, this is simply not the case. If an individual does not vote, he is not thereby excused from political obligation. Supposedly democratic governments do not present a choice situation to their subjects: vote and thereby consent to our legal system, or dont vote and thereby become excluded from our reach. Rather, democratic regimes impose themselves on individuals whether or not they vote at all. 128 Ironically, one is more likely to be confronted by the (manifestly confused) ideologue of supposedly democratic regimes with the retort that if you dont vote, you have thereby given up your right to criticize government.129 It is thus impossible to interpret the casting of a vote as the manifestation of consent. Moreover, it is always possible (and often likely the case) that some people vote in selfdefense (perhaps as a way to mitigate threats to their interests) and not as a way to express consent to the outcome of an election.130 As noted by the 19th-century abolitionist lawyer and anarchist Lysander Spooner, In truth, in the case of individuals, their actual voting is not to be taken as proof of consent, even for the time being. On the contrary, it is to be considered that, without his consent having ever been asked, a man finds himself environed by a government that he cannot resist; a government that forces him to pay money, render service, and forego the exercise of many of his natural rights, under peril of weighty punishments. He sees, too, that other men practise this tyranny over him by the use of the ballot. He sees further that, if he will but use the ballot himself, he has some chance of relieving himself from this tyranny of others, by subjecting them to his own. In short, be finds himself, without his consent, so situated that, if he use the ballot, he may become a master; if he does not use it, he must become a slave. And he has no other alternative than these two. In self-defence, he attempts the former.131 Thus, the act of voting in actual-existing supposedly democratic political societies does not manifest the law-subjects consent.
See, e.g., SIMMONS (1979), supra note 8, at 91-93. See also THOMAS CHRISTIANO, THE RULE OF THE MANY: FUNDAMENTAL ISSUES IN DEMOCRATIC THEORY 27-28 (1996). 128 See, e.g., SIMMONS (2008), supra note 77, at 115-16 (making the same point). 129 This is the vote or shut up! response. 130 On this point, see RANDY BARNETT, RESTORING THE LOST CONSTITUTION 15 (2004). 131 LYSANDER SPOONER, NO TREASON, NO . II: THE CONSTITUTION 7-8 (1867). He continues: Doubtless the most miserable of men, under the most oppressive government in the world, if allowed the ballot, would use it, if they could see any chance of thereby ameliorating their condition. But it would not therefore be a legitimate inference that the government itself, that crushes them, was one which they had voluntarily set up, or ever consented to. Id. at 8.
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3.3 The Principle of Fairness In recognition of the problems of consent theory, 20th century political philosophers sought to save a voluntarist account of political obligation by resorting to the moral principle of fairness. The theory was first made popular by H.L.A. Hart132 and subsequently adopted by, among others, John Rawls. 133 The basic idea is that members of a cooperative enterprise who voluntarily accept the benefits resulting from such enterprise are thereby placed under a duty of fairness to reciprocate in the production of such benefits. According to Hart, when a number of persons conduct any joint enterprise according to rules and thus restrict their liberty, those who have submitted to these restrictions when required have a right to a similar submission from those who have benefited by their submission. 134 Similarly, Rawls argues that political obligation stems from the moral principle of fairness. He states: The principle of fair play may be defined as follows. Suppose there is a mutually beneficial and just scheme of social cooperation, and that the advantages it yields can only be obtained if everyone, or nearly everyone, cooperates. Suppose further that cooperation requires a certain sacrifice from each person, or at least involves a certain restriction of his liberty. Suppose finally that the benefits produced by cooperation are, up to a certain point, free: that is, the scheme of cooperation is unstable in the sense that if any one person knows that all (or nearly all) of the others will continue to do their part, he will still be able to share a gain from the scheme even if he does not do his part. Under these conditions a person who has accepted the benefits of the scheme is bound by a duty of fair play to do his part and not to take advantage of the free benefits by not cooperating. 135 The problems with these accounts are well documented.136 Indeed, Rawls himself came to abandon the theory as an adequate account of a general obligation to obey law. 137 The fatal flaw is that theories of fair play attempt to save the voluntaristic framework of consent theory by locating a voluntary undertaking in the acceptance of benefits. The fairness account asserts that individuals can accept benefits from a cooperative scheme without giving his consent to the scheme, and that such acceptance of benefits obligates him to do his fair share. 138 The focus on acceptance, however, is also the theorys Achilles heel. To understand why this is a problem, one must first understand the moral underpinnings of the principle of fairness. The thought that fairness gives rise to an obligation to contribute is grounded in the belief that when a number of persons engage in a
See generally Hart, Are There any Natural Rights?, 64 PHILOSOPHICAL REV. 175 (1955) (hereinafter Hart (1955)). See Rawls, Legal Obligation and the Duty of Fair Play (1964), reprinted in JOHN RAWLS: THE COLLECTED PAPERS 117 (Samuel Freeman ed., 1999) (hereinafter Rawls, Legal Obligation). 134 Hart (1955), supra note 130, at 185. 135 Rawls, Legal Obligation, supra note 131, at 122. 136 See, e.g., NOZICK, ANARCHY, STATE, AND UTOPIA, supra note 60, at 90-95; SIMMONS (1979), supra note 8, at 101-42; SIMMONS (2001), supra note 18, at 27-42; DWORKIN (1986), supra note 19, at 193-95. 137 RAWLS (1971), supra note 14, at 113-14. 138 For an in-depth discussion of the insights of fairness, see SIMMONS (1979), supra note 8, at 101-08, 114-36; see also SIMMONS (2001), supra note 18, at 29-31.
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mutually advantageous cooperative venture [w]e are not to gain from the cooperative labors of others without doing our fair share. 139 The principle of fairness thus condemns the activity of free riding on the efforts of others. 140 The free-rider is denounced for taking advantage of or exploiting141 the efforts of others who have voluntarily sacrificed in order to provide benefits to all. As noted by Simmons, the moral wrong is the unfair self-selection of who gets to benefit from a scarce resourcefree ridingthat a cooperative scheme can tolerate, for fairness would dictate that any opportunities for nonharmful free riding themselves be fairly distributed to all participants in the scheme The unfairness lies in the way that self-selection exploits or takes advantage of others good-faith sacrifices. 142 This is a problem for fairness theories, however, because it requires an account of how the acceptance of benefits unfairly takes advantage of or exploits others. Simply receiving benefits does not ordinarily give rise to a claim of free-riding. For example, when I benefit from seeing an attractive woman walking on the street (of course, less attractive than my fianc), no one claims that I free-ride on the efforts she makes to stay in shape. Something more from the individual vis--vis the benefits received is normally required before one can be said to have taken advantage of or exploited the efforts of another. As a result, the principle of fairness requires a normatively-meaningful account of the acceptance of benefits in order to show that one has unfairly taken advantage of or exploited the efforts of others. This is why Rawls discussion of the principle of fairness focused on the voluntary acts that give rise to obligationsthe political act of running for and holding office, the act of marriage, the act of promising, and the act of joining a game.143 The idea here is that the voluntary acceptance of benefits received from the cooperative effort of others, coupled with a refusal to do ones share in the production of such benefits, unfairly takes advantage of or exploits those persons and their efforts. Although it appears true that many citizens of relatively just states receive benefits, it is extremely difficult to claim that these subjects voluntarily accept the benefits provided, at least in any morally meaningful way. I agree with Simmons in that a morally significant acceptance requires either (1) the agent actively seeking and obtaining the benefit, or (2) the benefits are willingly and knowingly accepted by the agent. This, however, is not the case with many subjects of modern states. 144 First, most of the benefits provided are public goods that are thrust upon subjects without any effort on their part to bring them about. Thus, as noted by Rawls, it is not clear what is the requisite binding action or who has performed it that would give rise to fairness obligations, and as a result there is no political obligation, strictly speaking, for citizens generally. 145 Second, governments always interfere with ones attempts to procure excludable goods from other sources.146
RAWLS (1971), supra note 14, at 112 (emphasis added). See SIMMONS (2001), supra note 18, at 29-35; see also NOZICK, ANARCHY, STATE, AND UTOPIA, supra note 60, at 90. 141 SIMMONS (2001), supra note 18, at 29 (emphasis in original). 142 SIMMONS (2001), supra note 18, at 30. 143 RAWLS (1971), supra note 14, at 112-13. 144 See SIMMONS (2008), supra note 77, at 57; SIMMONS (2001), supra note 18, at 31-32; SIMMONS (1979), supra note 8, at 133-42. See also Michael Huemer, The State, in CENTRAL ISSUES OF PHILOSOPHY 257, 261-62 (John Shand ed., 2009) (hereinafter Huemer, The State). 145 RAWLS (1971) at 114. 146 See, e.g., Huemer, The State, supra note 142, at 261-62.
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This is characteristically done by either (1) proscribing competition (e.g., first-class mail) or (2) crippling competitors ability to compete with the government in the marketplace (e.g., by requiring subjects to pay for the service provided by the government whether they utilize the governments services or not).147 Third, political organizations do not represent themselves as engaged in reciprocal transactions in their distribution of benefits to subjects; they do not act according to the idea these benefits are provided as consideration for your political obligation. 148 For example, citizens of New York City do not receive a tax break if they can prove they do not ride the subway or use public transportation. As a result, it is difficult to establish that citizens have willingly and knowingly accepted benefits in a morally-signification way that establishes political obligation; rather, it is more likely that citizens believe they have no choice in the matter, and the services they do benefit from have been involuntarily paid for in advance (through taxation). Some theorists seek to salvage fairness by discarding the voluntary framework implicit in the acceptance requirement, arguing instead that mere receipt of certain essential goods is sufficient to ground a fairness theory of political obligation. George Klosko, for example, claims that the principle of fairness generates political obligations if three conditions are met: (1) the benefits received outweigh the costs imposed by the scheme, (2) the goods are presumptively beneficial public goods; and (3) the political system is relatively just. 149 The benefits provided by a state are presumptively beneficial public goods if they have the following qualities: (1) public goods: such goods are non-excludable in that if they are to be provided, they must be provided to all because, for some reason or another, they cannot be denied to specific individuals or groups; and (2) presumptively beneficial: these goods are said to be indispensable and are necessary for an acceptable life for all members of the community.150 If these three requirements are met, fairness gives rise to obligations to all those who receive such benefits, voluntary acceptance or otherwise. According to Klosko, the provision of a single presumptively beneficial public good is sufficient to give rise to political obligation, including the obligation to support the provision of non-presumptive goods. Klosko thus claims that the provision of a single presumptive public good is able to trigger extensive political obligations, requirements to assist in the provision of many governmental services. 151 For Klosko, then, the indispensability of a public good is the single most important factor that gives rise to fairness obligations. There are numerous problems with Kloskos non-voluntaristic account of fairness as the moral foundation of political obligation. 152 Briefly put, the fundamental problem with Kloskos theory and all theories continually resorting to fairness as the basis of political obligation is that they
See, e.g., Huemer, The State, supra note 142, at 261-62. See also SIMMONS (2001), supra note 18, at 36 (noting that collective action often precludes the possibility of private provision of the public good in question). 148 See, e.g., Huemer, The State, supra note 142, at 262. 149 GEORGE KLOSKO , THE PRINCIPLES OF FAIRNESS AND POLITICAL OBLIGATION 39-57 (New Edition 2004) (1992) (hereinafter KLOSKO (1992)). 150 KLOSKO (1992), supra note 147, at 39. 151 KLOSKO (1992), supra note 147, at 41. 152 See e.g., SIMMONS (2001), supra note 18, at 27-42; A. John Simmons, The Particularity Problem, 7 APA NEWSLETTER ON PHILOSOPHY AND LAW 18, 21-23 (Fall 2007) (hereinafter Simmons (2007)); Christopher Heath Wellman, Toward a Liberal Theory of Political Obligation, 111 Ethics 735, 736-38 (2001); Alan Carter, Presumptive Benefits and Political Obligation, 18 J. APPLIED PHIL. 229 (2001); Craig L. Carr, Fairness and Political Obligation, 28 SOCIAL THEORY & PRACTICE 1 (2002); Daniel McDermott, Fair-Play Obligations, 52 Pol. Studies 216 (2004).
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do not adequately appreciate the nature of the moral duty of fair play and the moral wrong that it proscribes. As noted above and made clear by Simmons and others, the moral wrong is one of free riding, which is condemned because a free rider takes advantage of or exploits the efforts and sacrifices of others. The particularity problem, on Kloskos account, is addressed by the strength of benefits received. But as a result, it matters not on Kloskos theory how that polity acquired that territory which means that it matters not to persons duties of obedience how they came to be recipients of the goods delivered to the territory within which they reside. 153 His theory has no place for some kind of legitimizing pedigree 154 and thus seems to simply ignore the meaning of fairness. For example, on Kloskos account, the U.S. government may invade Vietnam, provide national defense, and thereafter legitimately demand obedience from the Vietnamese, so long as it maintains some resemblance of substantive justice, all in the name of fairness. This seems implausible. It is difficult to understand how the Vietnamese would be taking advantage of others and unfairly freeriding on the efforts of others. It thus appears that Kloskos approach essentially asserts particularity by taking note of benefits received. But, as put by Simmons and made clear by the Vietnam example, [o]ne cannot genuinely satisfy the particularity requirement by simply asserting particularity in the structure of ones theory, by (e.g.) simply asserting that the boundaries of the de facto activities of any importantly beneficial scheme are morally unassailable. 155 Moreover, Klosko provides no insight into a morally-meaningful cooperative enterprise. Rather, he simply assumes its existence. But this is inadequate. This problem precisely is the issue of great importance. What is special about a given territory and population that provides moral authority for the institutions that monopolize force? In arguing for political obligation via fairness, Klosko mentions our (or, more precisely, their) cooperative schemes as the basis of an obligation to obey. But the morally-interesting question is precisely why this scheme is our scheme in the first place. The cooperative scheme on the fairness account is one in which a state demands cooperation from its subjects upon pain of punishment and produces important public goods. 156 I believe this is inadequate, an account of cooperative that is morally vacuous. As noted by Simmons, a scheme is not made yours (in any morally interesting sense) by your simply having unavoidable public goods rammed down your throat, in a fashion approved by the majority of those pushing the ram. Schemes must be genuinely cooperative (not just called cooperative, as in Kloskos theory), with participants freely participating. 157 In addition to the arguments noted above, Kloskos account will not impress practical anarchists who are skeptical about the necessity of the state in general and its moral justification in actual instances in particular. Klosko is thus unlikely to convert the unfaithful by asserting, for example, that the state is necessary to provide the public good of national defense which thereby
Simmons (2007), supra note 150, at 21. Simmons (2007), supra note 150, at 21. 155 Simmons (2007), supra note 150, at 21. 156 Klosko cannot argue that the scheme is one in which individuals jointly agree to cooperate in the production of such a scheme, or that the simultaneous positive actions of citizens produces it. This is simply inaccurate. The situation is one in which the state itself imposes a scheme upon millions of individuals, and individuals either acquiesce or feel the brunt of the coercive state institutions. 157 Simmons (2007), supra note 150, at 21 (emphasis in original).
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gives rise to a fairness requirement of obedience.158 The anarchist will likely reply that the state itself is to blame for any (supposed) need of national defense. Moreover, one may pause and wonder just what national defense is anyway. Klosko exploits xenophobia through the hypothetical hostile outsider hell-bent on massacring the X-ites. 159 In reality, it is more plausible to argue that most threats from outsiders are likely the result of a states policies towards such outsiders in the first place. Furthermore, these threats that are said to produce a need for national defense are in reality threats to the particular state itself. Rarely do we hear down with John and Sally and Fred from Idaho! Rather, we hear down with the American government! So the supposed threat from which we all have a need for defense is in actuality only a threat to a particular states existence itself. But if we do not have a moral reason to care about this states existence in the first place, then there is no need for national defense, and a state cannot justify and legitimize itself by claiming only it can assure its own existence. To further demonstrate the implausibility that national defense gives rise to fairness concerns and political obligation, recall that Klosko claims that the provision of a single presumptive public good is able to trigger extensive political obligations. 160 This seems fundamentally problematic. On this account, one may argue that the United States is owed obedience by Canadians and Mexicans because the U.S. governments foreign policies provide important deterrence considerations against all those states seeking to invade Canada and Mexico. As a result, the U.S. government may impose itself on the people living within the boundaries of Canada and Mexico, so long as its implementation is substantively just and provides opportunity to participate in democratic procedures. I believe this is implausible, thus providing further reason to reject Kloskos approach to political obligation. 4. CONCLUSION I have now shown that all political systems lack moral legitimacy and that the political relationship is devoid of political obligation. For the philosophical anarchist, then, the political realm is characterized (a posteriori at least) by the overwhelming presence of illegitimate coercion and sanctions. We are now ready to explore the nature of law and assess the debates in general jurisprudence. Because we enter this debate knowing there is no political obligation, our pretheoretical view includes a strong intuition that physical force and coercive superiority is, in some sense, essential to an adequate understanding of the nature of law. 161

158 Klosko continuously resorts to national defense as the paradigm of a presumptively beneficial public good. See e.g. KLOSKO (1992), supra note 147, at 40, 41-43, 52, 54-55; GEORGE KLOSKO, POLITICAL OBLIGATIONS 28-30, 42, 64 n.10, 71 (2005). 159 KLOSKO (1992), supra note 147, at 52. We may wonder what makes someone an X-ite in the first place. Most likely the answer is that they happen to be subject to the laws of a state which forces itself upon them. So we may question why the threats to persons identified simply as member of State-X somehow provides a moral justification for State X to impose itself on such person. 160 KLOSKO (1992), supra note 147, at 41. 161 For an alternative (and normative) approach to a theory of law from a sympathetically anarchist position, see generally RANDY BARNETT, THE STRUCTURE OF LIBERTY: JUSTICE AND THE RULE OF LAW (1998).

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PART II. ON THE NATURE OF LAW Upon entering the field of legal philosophy, we are initially approached by the classical legal positivism of Jeremy Bentham and John Austin. Bentham162 and Austin 163 set forth the Imperative Theory of law according to which laws are the explicit or tacit commands and prohibitions, standardly supported by coercive sanctions, issued by a sovereign legislator or legislative body or their subordinates, and the permissions to act or refrain from acting issuing from these same sources. 164 To the philosophical anarchist, Benthams and Austins claim that laws are the commands of the sovereign backed by coercive force seems (initially) plausible and appears to capture much of what we experience in the legal realm. In todays jurisprudential landscape, however, we quickly recognize that contemporary positivists do not adhere to this classical conception. We are told that Austins theory does not and cannot account for an essential feature of law: laws normativity. 165 We are told that the fundamental questions and goals for jurisprudence are found in elucidating this feature, to capture how law is a practice that essentially involves rules setting forth or grounding moral reasons for action. This is laws essential nature; that it asserts moral reasons for action, that it functions by acting upon our practical reasoning in the guidance of conduct. Coercion is an ancillary concept, we are told, unimportant to a philosophical explication of the essential nature of law. In fact, legal systems could exist without any provision for sanctions and rule-enforcement at all. 166 This raises our eyebrows, and in light of our philosophical anarchism, gives pause for concern. Although we recognize that disabusing the myth of political obligation is not necessarily conclusive in settling these fundamental issues, we nevertheless proceed cautiously in the face of such claims regarding laws normative nature. We stop and ask, If there is no political obligation, why do we think that law, a social practice importantly connected to the political realm, is essentially normative in this morally-loaded way? Why does law, a social practice devoid of moral legitimacy,
Bentham sets forth a definition of a law as follows: A law may be defined as an assemblage of signs declarative of a volition conceived or adopted by the sovereign in a state, concerning the conduct to be observed in a certain case by a certain person or class of persons, who in the case in question are or are supposed to be subject to his power. BENTHAM, OF LAWS IN GENERAL 1 (ch. 1, par. 1) (Athlone Press ed., 1970); see also JEREMY BENTHAM, THE LIMITS OF JURISPRUDENCE DEFINED 88 (Warren Everett ed., 1945) (1782). 163 According to Austin, [l]aws proper, or properly so called, are commands; laws which are not commands, are laws improper or improperly so called. AUSTIN, THE PROVINCE OF JURISPRUDENCE DETERMINED, supra note 4, at 1. 164 H.L.A. HART, ESSAYS ON BENTHAM, supra note 16, at 17-18. 165 See, e.g., SCOTT J. S HAPIRO, LEGALITY 51-78 (2011) (hereinafter SHAPIRO, LEGALITY). 166 For examples of the claim that coercion is not a necessary feature of law, see H.L.A. Hart, Theory and Definition in Jurisprudence, 29 PROC. ARISTOTELIAN SOCY, SUPP. VOL., 239, 253 (1955); JOSEPH RAZ, PRACTICAL REASON AND NORMS 157-62 (Oxford: Oxford University Press, revd ed., 1990) (hereinafter RAZ, PRACTICAL REASON AND NORMS); SHAPIRO, LEGALITY, supra note 163, at 169-70. See also LON L. FULLER, THE MORALITY OF LAW 108-11 (rev. ed., 1969); Hans Oberdiek, The Role of Sanctions and Coercion in Understanding Law and Legal Systems, 21 AM. J. JURIS. 71 (1976); NEIL MACCORMICK, LEGAL RIGHT AND SOCIAL DEMOCRACY 232-46 (1982). For a direct natural law account of a sanctionless legal system, see JOHN FINNIS, NATURAL LAW AND NATURAL RIGHTS 267-70 (1980). Some legal philosophers have gone so far as to take these arguments as a given with little need to recite them. See Leslie Green, Law as a Means, in THE HART-F ULLER DEBATE IN THE TWENTY-FIRST CENTURY 169, 182 (Peter Cane ed., 2010). On the other hand, some modern legal theorists focus on coercion/sanctions as an essential feature of law. For example, Hans Kelsen states that All the norms of a legal order are coercive norms, i.e. norms providing for sanctions. HANS KELSEN, GENERAL THEORY OF LAW AND STATE 29 (Anders Wedberg trans., Lawbook Exchange ed., 2007) (1945).
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necessarily claim such legitimacy? And why is this claimrather than, say, the (illegitimate) use of forceessential to understanding laws nature? Why and how could we think that coercion is an ancillary concept in understanding law? It is with this skeptical outlook that we proceed. We ask these questions in a sincere, penetrating, and argumentative manner. These questions are not merely rhetorical and pedantic; we are truly skeptical that laws nature is necessarily normative in this morally-loaded way. As noted above, our intuition is that coercion must, at the very least, play some role in our philosophical explanation of law. We have an open mind and are willing to listen to and consider the opposing arguments. But we do require arguments to overcome our initial skepticism, and simple declarations that this is so will not suffice. It is to these arguments that we now turn. 5. THE FUNCTION OF LAW According to Joseph Raz, [t]he concept of the functions of law is, quite obviously, of major importance to any theory of law which attempts a general explanation of the nature of law. 167 A common theme running through contemporary jurisprudential literature is the idea that the function of law is the guidance of conduct.168 On this functionalist approach, any adequate account of laws nature must provide an understanding of how law fulfills its essential function of guiding conduct. According to some, it is fatal to a theory if it provides a conception such that law cannot in principle fulfill this necessary function.169 In this section I analyze and criticize this strict guidancebased conception that dominates popular theories of law. From the perspective of philosophical anarchism, such a conception unjustifiably focuses on a morally-loaded internal point of view, a focus defended by a quixotic Lockean approach to laws functions. On my account, such an approach is misguided, obscuring rather than clarifying that which is essential for understanding the nature of law as a social practice. 5.1 The Guidance of Conduct As noted above, many contemporary legal philosophers assert that the function of law is the guidance of conduct. But what exactly does it mean to say that the guidance of conduct is laws
Raz, On the Functions of Law, in OXFORD ESSAYS IN JURISPRUDENCE 278, 278 (A.W.B. Simpson ed., 1973). See e.g., H.L.A. HART, CONCEPT OF LAW, supra note 4, at 249; RAZ, PRACTICAL REASON AND NORMS, supra note 164, at 139 (institutionalized systems are co-ordinated guidance and evaluation systems); Id. at 142; Scott Shapiro, On Harts Way Out, in HARTS POSTSCRIPT: ESSAYS ON THE POSTSCRIPT TO THE CONCEPT OF LAW 149, 186-89 (Jules Coleman ed., 2001) (hereinafter Shapiro, On Harts Way Out); ANDRE MARMOR, PHILOSOPHY OF LAW 134 (2011) (on laws guidance function) (hereinafter MARMOR, PHILOSOPHY OF LAW). Jeremy Waldron presents a somewhat different view on laws relation to the guidance of conduct. According to Waldron, the guidance of conduct is not laws function; rather, guiding action is the mode of governance distinctive to law. [I]t is the distinctive way in which law performs whatever functions are given to it by law-makers. Waldron, Vagueness and the Guidance of Action, in PHILOSOPHICAL FOUNDATIONS OF LANGUAGE IN THE LAW 58, 61-62 (Andrei Marmor & Scott Soames ed., 2011) (hereinafter Waldron, Vagueness and the Guidance of Action). 169 According to Scott Shapiro, for example, inclusive legal positivism is fatally flawed because it cannot account for laws guidance function. See generally Shapiro, On Harts Way Out, supra note 166, at 149-91; Shapiro, Law, Morality, and the Guidance of Conduct, 6 LEGAL THEORY 127 (2000) (hereinafter Shapiro, Law, Morality, and the Guidance of Conduct); see also SHAPIRO, LEGALITY, supra note 163, at 273-81.
167 168

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function? According to Scott Shapiro,170 to claim that a norms function is the guidance of conduct is to be committed to the idea that the norm must in principle be capable of securing conformity by making a difference to an agents practical reasoning. 171 A norm makes a difference to an agents reasoning if it motivates an agent to act in a way that he might not have acted had he not appealed to the rule in his practical reasoning. 172 Moreover, a norm is capable of making a practical difference, and therefore capable of guiding conduct, if and only if it is capable of motivating an agent to act in a way that he might not have acted had he not appealed to the rule. 173 Thus, to be committed to the idea that the function of a legal norm is the guidance of conduct is to be committed to the idea that legal rules as legal rules motivate law-subjects in this particular way, that is, they function by making a practical difference.174 Thus, a legal rule makes a practical difference when an agent might not have conformed to the rule had he not appealed to the rule as a legal rule. 175 Importantly, Shapiro claims that to be committed to such a guidance conception of law is to be committed to the further idea that law qua law must be capable of making a practical difference in this way. He thus posits the Practical Difference Thesis: legal rules must in principle be capable of securing conformity by making a difference to an agents practical reasoning. Every legal rule, according to Shapiro, must in principle be capable of motivate[ing] the norm-addressee to act in ways that he might not have acted had he not appealed to the rule in his practical reasoning. 176 Why does a functionalist approach commit one to the practical difference thesis, that is, to the idea that law must be capable of making a practical difference? Shapiro provides a refreshingly lucid argument in support of his account. The argument can be broken down as follows. 177 (1) To say that a thing has a function is to say that there is some state of affairs the thing is supposed to bring about. (2) To say that a rule has the function of guiding conduct is to say there must be some action the rule is meant to secure. (3) [A]n agent is guided by a rule only when the rule makes a difference to his practical reasoning. 178 (4) Thus, a legal rule guides conduct only if conformity is secured by the law making a difference to the practical reasoning of the agent. (5) But if a rule (legal or otherwise) is incapable of bringing about an action by making a difference in ones practical reasoning, then there can be no action that counts as the fulfillment of the guidance function. (6) As a result, a rule that is incapable of making a difference in ones practical reasoning cannot have the function of guiding conduct. (7) Therefore, if the function of legal rules is the guidance of conduct,
I must note that the description and critique of the guidance conception to follow is aimed at the conception set out by Shapiro in his earlier work, and not that propounded in Legality. Although I make use of some ideas from this recent project, I do so only to help understand the claims made previously. Thus, my critique is not directed at Shapiros recent ideas regarding law as plans. 171 Shapiro, Law, Morality, and the Guidance of Conduct, supra note 167, at 129. See also Shapiro, On Harts Way Out, supra note 166, at 176 (claiming that for rules to guide behavior, they must be capable of motivating agents to act differently from how they might have without their guidance). 172 Shapiro, Law, Morality, and the Guidance of Conduct, supra note 167, at 132. 173 Shapiro, Law, Morality, and the Guidance of Conduct, supra note 167, at 132. 174 Shapiro, Law, Morality, and the Guidance of Conduct, supra note 167, at 132-33. 175 Shapiro, Law, Morality, and the Guidance of Conduct, supra note 167, at 136. 176 Shapiro, Law, Morality, and the Guidance of Conduct, supra note 167, at 133. 177 The following is generally derived from the argument set forth in Shapiro, On Harts Way Out, supra note 167, at 188. 178 Shapiro, Law, Morality, and the Guidance of Conduct, supra note 167, at 146.
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then such rules must in principle be capable of making a difference in the practical reasoning of lawsubjects. Shapiro also provides an account of the type of guidance law may provide. According to Shapiro, there are two methods by which a legal rule can guide ones conduct.179 We can say that a law-subject is motivationally guided by a legal rule when the agent takes the rule as the sole source of his motivation for conformity, i.e., when he conforms simply because the rule regulated the conduct in question.180 On the other hand, one is epistemically guided by a rule if the agent look[s] to a legal rule as a means of finding out whether the law regulates certain conduct and, if so, how. Central to epistemic guidance is the fact that the rule was the source of information regarding what counts as conformity. 181 The guidance conception of law thus posits that the essential function of law and legal rules is the guidance of conduct. The guidance of conduct requires that a rule makes a difference in the practical reasoning of the law-subjects in bringing about certain actions. There are two different methods by which one can be guided by a legal rule: motivationally or epistemically. Thus, a theory of law must be able to capture laws essential guidance function; it must produce a conception of law such that legal rules are in principle capable of fulfilling its essential function in either motivationally or epistemically guiding conduct. At this point, one may stop and wonder: why guidance? Why must one be committed to the view that the essential function of law and legal rules is the guidance of conduct as set forth above? According to Shapiro, law is meant to solve normative problems by mediating between rival standards of conduct.182 In his most recent work, Shapiro claims that the point of having law is to settle matters about what morality requires so that members of the community can realize certain goals and values. 183 In defending this view, Shapiro makes use of a state of nature methodology and applies Lockean insights to the problems associated with what he calls the circumstances of legality 184 (i.e., whenever a community has numerous and serious moral problems whose solutions are complex, contentious, or arbitrary.).185 On this view, law functions by supplying authoritative determinations to controversial moral issues. 186 Law provides authoritative marks, informing individuals which norms are to be followed and which are not, thereby eliminat[ing] the need for people to resolve their disagreements by engaging in normative deliberation and debate.187 Thus, the function of a legal rule, according to the guidance conception, is to secure compliance by informing the norm-subject of his obligations or rights in a way that eliminates the need for agents to
179 See Scott J. Shapiro, On Harts Way Out, supra note 166, at 172-77; see also Shapiro, Law, Morality, and the Guidance of Conduct, supra note 167, at 146-49. 180 Shapiro, Law, Morality, and the Guidance of Conduct, supra note 167, at 146. 181 Shapiro, Law, Morality, and the Guidance of Conduct, supra note 167, at 146 (emphasis in original). 182 See Scott Shapiro, On Harts Way Out, supra note 166, at 173-74. 183 SHAPIRO, LEGALITY, supra note 163, at 275. See also Scott J. Shapiro, Was Inclusive Legal Positivism Founded on a Mistake?, 22 Ratio Juris 326, 334 (2009). 184 Shapiro appeals to this notion in his most recent work. See SHAPIRO, LEGALITY, supra note 163, at 170-73. 185 See SHAPIRO, LEGALITY, supra note 163, at 170. 186 See Shapiro, Law, Morality, and the Guidance of Conduct, supra note 167, at 147-49. 187 Shapiro, Law, Morality, and the Guidance of Conduct, supra note 167, at 148-49.

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engage in normative deliberation about the appropriate course of conduct to resolve their doubts or disagreements. And legal rules are able to accomplish this function because they bear the mark of authority set out in their systems rule of recognition. 188 Shapiro thus provides an account of laws essential function grounded in an account of the hypothetical functions law may serve in a complex society characterized by moral disagreement. 5.2 Critique Shapiro provides an interesting and clear exposition of laws guidance function via the practical difference thesis. However, the guidance conception in general and Shapiros defense in particular both fail in establishing laws necessary function.189 Shapiros conception does not account for the fact that the political relationship is devoid of moral legitimacy and political obligation, and thus gives insufficient attention to the differing perspectives and viewpoints of legal actors. Specifically, Shapiros morally-loaded and idealistic defense of the guidance conception fails to appreciate the perspectives of political officials with differing goals and purposes that diverge from a mere desire for obedience to particular laws. Shapiros approach thus fails to appreciate (1) the perspective of individuals who correctly conclude that they are not bound by a general obligation to obey the law, and (2) the legal regime characterized by the desire to maintain systemic control, yet indifferent to specific instances of conduct. (Shapiros account also fails to capture (3) the perspective of those who view law as moral educative device (a tool not to guide conduct, but to educate or foster political debate190)). At bottom, Shapiros approach unjustifiably focuses and relies on a morally-loaded defense of laws supposed guidance function.191 In light of philosophical anarchism, this focus is unwarranted. It fails to account for the dualistic character and realities of modern legal systems. Marc Galanter accurately describes this dualistic legal situation, noting that there is an unresolved tension between the national and local, the formal and the informal, the official and the popular. The official law [is] more or less remote from the attitudes and concerns of many of the people ruled by it. 192 The realities of the legal context are thus not adequately accounted for by an appeal
Shapiro, Law, Morality, and the Guidance of Conduct, supra note 167, at 149. As noted above, my critique is not aimed at Shapiros recent formulation of law as plans. I do believe, however, that my critique also applies to the conception of law set out in Legality to the extent that Shapiro utilizes a similar methodology in elucidating laws essential functions. 190 See, e.g., Jeremy Waldron, Vagueness in Law and Language: Some Philosophical Issues, 82 CAL.L.REV. 509, 538-539 (1994) (recognizing that one may insert a vague provision into a statute without further clarification, for his aim may be, not to regulate conduct, but rather to turn a debate into a legal debate. Also, knowing where we stand may not be the point of the provision. Instead, the point may be to ensure that certain debates take place in our society . . . sometimes the point of a legal provision may be to start a discussion rather than settle it, and this may be particularly true of the constitutional provisions that aim at restricting and governing legislation. See also Waldron, Are Sovereigns Entitled to the Benefit of the International Rule of Law? forthcoming in EUR. J. INTL L., available now at http://ssrn.com/abstract=1323383 at 27 for the idea of educating and inspiring moral discussion through law. 191 For an alternative critique of Shapiros methodology (although not of the conclusion regarding laws functions) from a more realist perspective, see, e.g., Frederick Schauer, The Best Laid Plans, 120 Yale L.J. 586, 604-621 (2010). Frederick Schauer poses similar questions regarding the importance of the internal point of view for a theory of law. 192 Galanter, The Modernization of Law, in LAW AND THE BEHAVIOURAL SCIENCES 993-94 (Friedman & Macualay ed., 1969). Frederick Schauer also seems to recognize this duality in his discussion of rules and rule following, noting the
188 189

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to a Lockean story of the state of nature. When these views are taken into account, law should be seen as a thing that, at most, seeks to affect beliefs193 and/or motivations,194 not something that necessarily makes a practical difference in guiding conduct, at least not in the strong sense set forth in Shapiros Practical Difference Thesis. Before moving on to the main critique, we should first take note of the many difficulties associated with establishing that the social practice of law has any essential function. 195 For example, it is dubious to claim that law qua law has a manifest function, that is, a function defined by the intentions of certain human actors (often those who design or use the thing in question). The problem is that the universality and ubiquity of law, and the heterogeneity of the individuals and communities associated with its practice, is such that one is hard-pressed to establish that a special function is intended by all (or by a certain category of designated actors) within each and every
situation he calls the asymmetry of authority. See FREDERICK SCHAUER, PLAYING BY THE RULES: A PHILOSOPHICAL EXAMINATION OF RULE-BASED DECISION-MAKING IN LAW AND IN LIFE 128-34 (1991) (hereinafter SCHAUER, PLAYING BY THE RULES). He notes that the asymmetry of authority is present in the context of general rules, stating that: This asymmetry between the irrationality of obedience from the subject's perspective and the rationality of requiring it from the authority's is equally at work in the case of rules as it is with particular commands. Because rules are necessarily made in advance of their application, a subject of a rule at the time of its application by that subject will consider the possibility that this instance lies in the area of under- or over-inclusion, and that consequently (remember, we are assuming the validity of the argument against authority) this is a case in which the rule should not be followed. From the perspective of the authority-rejecting subject, therefore, particular applications are either ones in which the rule's justification is applicable and the rule should thus be followed, or in which the rule's justification is inapplicable and the rule should thus be ignored. Id. at 131. 193 Andrei Marmor recognizes this aspect of laws function in passing. He writes: The law may have other normative aspects that are not directly instantiated by providing reasons for action. The law may set an example or a standard for conduct in various other forms, or it may even purport to influence peoples beliefs and attitudes. MARMOR, PHILOSOPHY OF LAW, supra note 166, at 2, n.2 (emphasis added). Friedrich A. Hayek also recognizes, perhaps only implicitly, the strategic advantages of controlling or manipulating opinion. He states: The authority of a legislator always rests [on] a prevailing opinion that the legislator is authorized only to prescribe what is right, where this opinion refers not to the particular content of the rule but to the general attributes which any rule of just conduct must possess. The power of the legislator thus rests on a common opinion about certain attributes which the laws he produces ought to possess, and his will can obtain the support of opinion only if its expression possesses those attributes. So long as the legislator satisfies the expectation that what he resolves will possess those attributes, he will be free so far as the particular contents of its resolutions are concerned, and will in this sense be sovereign. But the allegiance on which this sovereignty rests depends on the sovereigns satisfying certain expectations concerning the general character of those rules, and will vanish when this expectation is disappointed. In this sense all power rests on, and is limited by, opinion. HAYEK, LAW, LEGISLATION AND LIBERTY, VOL. I: RULES AND ORDER 92 (1973) (hereinafter HAYEK, LAW, LEGISLATION, AND LIBERTY). 194 For a similar (yet in the end fundamentally different) conclusion, see, e.g., A.M. Honor, Real Laws, in LAW, MORALITY, AND SOCIETY: ESSAYS IN HONOUR OF H.L.A. HART 99, 104 (P.M.S. Hacker & Joseph Raz ed., 1977) (claiming that the main function of a legal system is to strengthen the motives which citizens have to obey certain prescriptions in certain situations); see also MICHEL FOUCAULT. DISCIPLINE AND PUNISH: THE BIRTH OF THE PRISON 26-29 (Alan Sheridan trans., Vintage Books 2d ed., 1995) (1977) (discussing manipulative functions of law); MICHEL FOUCAULT, HISTORY OF SEXUALITY VOLUME I: AN INTRODUCTION 86-89 (Robert Hurley trans., Penguin Books ed., 1990). 195 For an argument against a functionalist approach to law, see e.g., BRIAN Z. TAMANAHA, A GENERAL J URISPRUDENCE OF LAW AND SOCIETY 133-54 (2001). See also ROGER COTTERRELL, THE SOCIOLOGY OF LAW: AN I NTRODUCTION 81, 94-96 (2d ed., 1992) (expressing a reluctance to recognize universal function of law).
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instance of a legal system or legal rule. Moreover, as noted by Leslie Green, not all laws are created intentionally, for some laws and bodies of law may be created by the gradual emergence of customs and conventions ... [and this] is no more an intended result than is the emergence of grammar through daily usage. 196 Thus, it appears to border on the implausible to argue that all legal rules possess an essential manifest function. Moreover, there are many difficulties in establishing that law necessarily possesses a latent function as well. This is also the result of the observations above: it is extremely difficult to establish one special implicit function in light of the nearly unlimited purposes to which law can be utilized. Similarly, the diversity of legal officialsa diversity in beliefs, motivations, world views, and so on is such that one is again hard-pressed to establish an implicit function in the practice of law. Thus, because of the ubiquity of legal systems, the diversity of those subject to legal rules, and the diversity of the aims sought, it is extremely difficult to establish that one specific state of affairs is the state of affairs law qua law aims to bring about. Shapiros practical difference thesis has been the focus of criticism elsewhere, 197 and I believe that his account is fatally flawed as a theory of laws necessary function(s). First, there is no reason to assume that all laws qua law must function in the strong sense provided in the Practical Difference Thesis, even if we assume the adequacy of Shapiros Lochean approach to laws function.198 As noted by Waluchow, legal systems are well aware of the inherent limitations of general rules laid down in advance. 199 There are thus competing considerations at play whenever we attempt to determine the appropriate level of practical guidance to be expected from our legal norms. 200 Moreover, as noted by Frederick Schauer, all general norms are inherently both overinclusive and under-inclusive in relation to the purpose they are intended to serve. 201 There is thus
See Leslie Green, The Functions of Law, 12 Cogito 117, 117 (1998). For general discussions criticizing Shapiros account of laws guidance function and the practical difference thesis, See generally COLEMAN, PRACTICE OF PRINCIPLE, supra note 3, at 134-48; Kenneth Einar Himma, H.L.A. Hart and the Practical Difference Thesis, 6 LEGAL THEORY 1 (2000) (hereinafter Himma, H.L.A. Hart and the Practical Difference Thesis); Wil Waluchow, Authority and the Practical Difference Thesis, 6 LEGAL THEORY 45 (2000) (hereinafter Waluchow, Authority and the Practical Difference Thesis); Matthew Kramer, How Moral Principles Can Enter Into the Law, 6 LEGAL THEORY 83 (2000); Kenneth Einar Himma, Inclusive Legal Positivism, in THE OXFORD HANDBOOK OF JURISPRUDENCE AND PHILOSOPHY OF LAW 125, 157-65 (Jules Coleman & Scott Shapiro ed., 2002); Wil Waluchow, Legality, Morality, and the Guiding Function of Law, in THE LEGACY OF H.L.A. HART: LEGAL, POLITICAL, AND MORAL PHILOSOPHY 85, 85-97(Grant et al. ed., 2008) (hereinafter Waluchow, Legality, Morality, and the Guiding Function of Law). For Jeremy Waldrons account of laws functions that is at odds with the strict guidance conception set forth in the practical difference thesis, see, e.g., Jeremy Waldron, Torture and Positive Law: Jurisprudence for the White House, 105 COLUM. L. REV. 1681 (2005) (arguing that vague standards of torture serve the function of chilling ones motivation to push up against the boundaries of what constitutes such a human rights violation); Waldron, Are Sovereigns Entitled to the Benefit of the International Rule of Law?, supra note 187, at (discussing laws function as an educative device that induces law-subjects to engage in practical reasoning); Waldron, Vagueness and the Guidance of Action, supra note 166, at 66-67, 70-82 (arguing that laws guidance function is not as generally understood in the literature). For an account criticizing the guidance function in general, see Honor, Real Laws, supra note 192, at 103-05. 198 For the development of a similar line of argument, see Wil Waluchow, Legality, Morality, and the Guiding Function of Law, supra note 195, at 90-93. Kent Greenwalt also provides reason to doubt the strong guidance conception in his discussion of acceptable fouls and acceptable breaches of legal duty. See KENT GREENWALT, CONFLICTS OF LAW AND MORALITY 10-15 (1987). 199 Waluchow, Legality, Morality, and the Guiding Function of Law supra note 195, at 91-92. 200 Waluchow, Legality, Morality, and the Guiding Function of Law supra note 195, at 92. 201 For a general discussion of this feature of rules, see FREDERICK SCHAUER, PLAYING BY THE RULES, supra note 190, at 31-34. Thus, Schauer states:
196 197

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no reason to agree that a social practice inherently limited in these respects nevertheless possesses a necessary function of guiding behavior in the strict sense set forth by Shapiro. This leads to a second problem, that of partial guidance: Shapiro does not adequately establish that all laws must provide complete guidance. 202 For example, Jeremy Waldron observes that many laws, such as laws prescribing reasonable conduct, function in providing partial guidance by focusing the subjects attention on certain normative issues. 203 As argued by Waldron, there is no reason to conclude that such instances do not instantiate the guidance of conduct. In so arguing, Waldron notes contexts in which the law-maker identifies a pair of circumstance, indicates that some adjustment of behavior is appropriate when one of these circumstances is overtaken by the other, attempts to focus Ps practical reason on what that change of behavior should be, and indicates by whatever penal provision are attached that P should take this whole business seriously. That is guidance. [This] law guides Ps practical reasoning through certain channels. It evinces some faith in that reasoning, inasmuch as it empowers Ps practical reasoning rather than seeking to dominate or supersede it. But what it indicates will not be tolerated, is a failure on Ps part to orient his practical reasoning to the circumstances specified by the lawmaker. 204 Thus, Shapiro fails to foreclose the possibility that some laws provide partial guidance in the practical reasoning of law-subjects. The problem of partial guidance naturally leads to a third problem, that of the fallacy of composition.205 Shapiros account of the guidance function of all legal norms suffers from the flaw that recognition of a function of law (or, more accurately, the function of a legal system) does not entail anything regarding the function of a law or each law. Thus, one may be committed to the idea that all legal systems essentially function in guiding the conduct of subjects without thereby positing a view on the function of individual laws. As noted by Coleman, there remains a logical gap between what must be true about law, and what must be true about each law. 206
By truncating the array of facts to be considered, rules commit a decision-making process to some number of errors, an error being defined as a result other than that indicated by direct particularistic application of background justification or theory of justification. These errors are not a function of mistakes that decision-makers may make, but instead are generated by decision-makers faithfully and accurately following the rules. The errors are produced not by decision-maker, but by life, for life, unlike the factual predicate of a rule, is probabilistic and not universal, variable and not fixed, fluid and not entrenched. As the complexity of experience clashes with the simplicity of a rule, errors are produced even when rules are applied conscientiously. Id. at 149. 202 For similar criticisms, see Waluchow, Authority and the Practical Difference Thesis, supra note 195, at . Jeremy Waldron explores the idea of law providing partial guidance, especially as a facilitator of moral and political debate. See Waldron, Torture and Positive Law, supra note 195; Waldron, Are Sovereigns Entitled to the Benefit of the International Rule of Law? supra note 187, at 27-28; Waldron, Vagueness and the Guidance of Action, supra note 166. 203 Waldron, Vagueness and the Guidance of Action, supra note 166, at 67. 204 Waldron, Vagueness and the Guidance of Action, supra note 166, at 67. 205 For a similar critique, see COLEMAN, PRACTICE OF PRINCIPLE, supra note 3, at 144; Himma, H.L.A. Hart and the Practical Difference Thesis, supra note 195, at 31; Waluchow, Authority and the Practical Difference Thesis, supra note 195, at 76. 206 COLEMAN, THE PRACTICE OF PRINCIPLE, supra note 3, at 144.
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5.3 The Medusa Regime and Law as Ideology 5.3.a. The Medusa Regime In addition to the arguments set forth above, philosophical anarchism requires us to recognize the inadequacy of Shapiros Lochean methodological approach to elucidating laws essential function. This quixotic defense of a guidance-based conception unjustifiably ignores the possibility of the antiHerculean (or the Medusa) political regime: a regime using law as an ideological and propagandizing device for oppression and domination through manipulation and ad hoc rationalization, not as a tool to guide conduct.207 Such a regime exploits ideology and political rhetoric in order to maintain its position of power. Moreover, and similar to Hurculean regimes,208 vagueness and obscurity are often positive attributes for Medusa, permitting the regime to act as it desires while maintaining the claim that its actions are according to law. First, the Medusa regime consciously uses law to cast its own oppressive actions in its best light, leaching on to the admiration that a culture may have for the law. Medusa takes advantage of these feelings, maintaining power through law in the context of a community that places law on a pedestal, thus exploiting E.P Thompsons insights into the rule of law. Medusa is self-aware and manipulative, taking the reins of an institutional apparatus held in high regard by those subject to it. She is thus aware of the possibility of becoming a prisoner of her own rhetoric, and she thus consciously indulges the population where doing so has no affect on her ability to maintain a position of dominance.209 In addition, Medusa recognizes the power of laws symbolismthus permitting the maintenance of control despite holding out mutually contradictory ideals 210as well as its ability to importantly influence categories of thought.211 Moreover, Medusa exploits Robert Nozicks insights regarding the inefficacy of an outlaw protective agency:

207 See generally, e.g., E.P. THOMPSON, WHIGS AND H UNTERS THE ORIGIN OF THE BLACK ACT (1977) (historical analysis of use of law to oppress and maintain class dominance) (hereinafter THOMPSON, WHIGS AND HUNTERS); Joseph Singer, The Player and the Cards, 94 YALE L.J. 1, 6, n.11 (1984) (law as a mechanism for legitimating power.). See also, e.g., Ronald A. Cass, Property Rights Systems and the Rule of Law, available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=392783 at 9-14 (2003) (Mugabe using and manipulating law to stay in power, not guide conduct). 208 See Waldron, Vagueness and the Guidance of Action, supra note 166, at 66-67, 73-82; see also Waldron, Torture and Positive Law, supra note 195. 209 See, e.g., THOMPSON, WHIGS AND HUNTERS, supra note 205. At the end of Whigs and Hunters, Thompson famously declares that the rule of law is an unqualified human good. Id. at 266. In so arguing, he claims that for law to serve its ideological functions, it must at the very least seem just. In order for this to be the case, the ruling elite often come to believe its own rhetoric. As a result, the rulers become the prisoners of their own rhetoric. Id. at 263. 210 See generally e.g., THURMAN W. ARNOLD, THE SYMBOLS OF GOVERNMENT (1935). 211 ANTHONY G. AMSTERDAM & JEROME BRUNER, MINDING THE LAW 20 (2000). According to Amsterdam and Bruner, categories allow us to treat certain things as if they are the same as what we previously experienced. Categories are grounded in a more general theory of the world and our place in it. They are derived from our ideas of what matters to ourselves and those on whom we depend. Id. at 23. Importantly, shared societal categories function to create communal solidarity [providing] a basis for a peoples sense of identity as a community. Id. at 24. Thus, categorization is a process of creating shared meaning among members of a community. Moreover, we experience the world as categorized and take this experience for granted, as given. Id. at 26. Category systems are, for the most, inherited from culture, often constituting a communitys common-sense view of the world. Id. at 27.

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If the outlaw agency is simply an open aggressor, pillaging, plundering, and extorting under no plausible claim of justice, it will have a harder time than states. For the states claim to legitimacy induces its citizens to believe they have some duty to obey its edicts, pay its taxes, fight its battles, and so on; and so some persons cooperate with it voluntarily. An openly aggressive agency could not depend upon, and would not receive, any such voluntary cooperation, since persons would view themselves simply as its victims rather than as its citizens. 212 Medusa recognizes that explicit oppression and domination is inefficient and costly. She thus turns the institution of law against those who hold it in esteem, profiting from the insights of Nonet and Selznicks observation that repression is perfected when it can forgo coercion. 213 Second, Medusa recognizes the value of vague and obscure laws as a controlling device, aiding in her goal of maintaining system-wide exploitation. In this respect, she does not care about individual laws and their efficacy, so long as the end result permits the maintenance of control over the populace. Particular laws may provide little in the way of guidance, for such laws are intended to keep individuals preoccupied and entangled in the web of a complex and turbid legal system, and thereby unlikely to challenge her rule. Moreover, even if Medusa seeks to control behavior by guiding action through particular laws, vagueness is still seen as a positive attribute in many circumstances, thus further undermining the claim that guidance entails a strict conception of the practical difference thesis. For example, First Amendment jurisprudence often focuses on the chilling effect of vague laws that aim at curtailing speech.214 Such laws deter not only the behavior to which they are eventually applied, but also much behavior that surrounds this core, as lawBruner and Amsterdam also see the flip-side of the categorizing functions: systems of categories, like (or as) ideological systems, can be used to manipulate, oppress and dominate. In the hands of Medusa, they are instruments of hegemonic power, suppressing weaker groups and maintaining hierarchy and positions of privilege. Id. at 24, 34. Category systems based on gender is a prime example, where the womans role function to suppress women in systems dominated by men. Id. at 24. We thus see how category systems importantly affect legal practice, including laws interpretation, application, and evolution. Categories and methods of categorizing often become entrenched in institutions and habits of mind. Id. at 36. By framing a category in one way or another, certain consequences and conclusions tend to follow. For example, the taboo of incest is categorized differently by different cultures. In some cultures, marriage between those of the same totemic clan or moiety is considered incest, while in others some kinship relation is required for the taboo to attach. The way in which the taboo is categorized affects the content of a possible law that forbids it. Id. at 51-52. How one sees these events affects how one categorizes them which, in turn, lead to divergent legal conclusions. 212 NOZICK, ANARCHY, STATE, AND UTOPIA, supra note 60, at 17 (emphasis added). Hayek appears to come close to making a similar point, stating that a ruler would find it to his advantage to claim for the organizational rules the same dignity as was generally conceded to the universal rules of just conduct. HAYEK, LAW, LEGISLATION, AND LIBERTY, supra note 191, at 90. I am not ready, however, to follow Nozick (and Green, among many others) in asserting that the state necessarily claims legitimacy. 213 PHILIPPE NONET & PHILIP SELZNICK, LAW AND SOCIETY IN TRANSITION: TOWARDS RESPONSIVE L AW 32 (Transaction Publishers ed., 2001) [1978] (hereinafter NONET & SELZNICK, LAW AND SOCIETY IN TRANSITION). See also SCHAUER, PLAYING BY THE RULES, supra note 190, at 133-34 (discussing the possibility of using education and securing compliance through inculcat[ing] rule-following values in the relevant population). 214 See, e.g., Gibson v. Florida Legis. Investigation Comm., 372 U.S. 539, 556-57 (1963) (stating that of course, all legitimate organizations are the beneficiaries of these protections, they are all the more essential here, where the challenged privacy is that of persons espousing beliefs already unpopular with their neighbors and the deterrent and chilling effect on the free exercise of constitutionally enshrined rights of free speech, expression, and association is consequently the more immediate and substantial.).
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subjects seek to avoid the risk of being punished by the vague rule. 215 Laws of this type tend to produce conservative behavior as law-subjects prefer to avoid punishment. As noted by Jeremy Waldron, chilling behavior may be a good thing from the regimes point of view, and therefore guiding action need not be conceived as an exact enterprise. Chilling action is also a way of guiding action. It brings a persons action under legal control within a broad and vaguely defined range rather than by reference to a specific act-type The instruction to Slow down, for example, guides action and it does so even though the recipient of the instruction knows pragmatically that dropping his speed by 1 mph does not satisfy the requirement and knows too that dropping his speed to 1 mph may be taking things too far. Somewhere in between these extremes, there is an area of behavior that the instruction guides him towards. But it is a vague area and, from the laws point of view, it probably doesnt matter if the desire to avoid sanctions biases things towards the lower end of the scale.216 In this way, Medusa employs vague laws as a kind of threat, for it constitutes a warning [that puts law subjects] on notice217 that they are within a vicinity in which coercive force will be utilized. Medusa thus recognizes the potential benefits of vague laws in controlling behavior and maintaining system-wide dominance. Furthermore, vague laws produce a situation in which Medusa possesses considerable discretion in the implementation and enforcement of particular laws. As a result, Medusa is able to apply physical force in situations she deems necessary to the maintenance of systemic control, while at the same time not concerning herself with inconsequential infractions, all while under the rubric of law enforcement. She is able to justify the forbearance of (costly) prosecutions with the claim that such apparently unlawful actions did not in fact fall within the confines of the vague statute. For example, suppose that Medusa institutes a traffic code so detailed and complex that it is reasonable for local folks to state if a cop follows you around long enough, he will catch you doing something illegal. It is not physically or logically impossible to follow the law, but because of human fallibility, it is extremely likely that most persons will engage in a legal infraction. Medusa does not enforce the laws 100% of the time because she does not have the desire (or the man power) to do so. Rather, she has built into these formal laws the ability to arbitrarily discriminate while at the same time maintaining her ability to justify her actions with the claim you violated the law. She utilizes the framework to, e.g., raise funds when needed or as a pretext for legallyauthorized stops. For example, if Medusa is in need of additional revenue, she simply increases the number of traffic citations handed out. Moreover, the stops allow Medusa to conduct more extensive investigations of those particular individuals she has reason to concern herself with (or any other reason to harass), and once again under the auspice of the law. Similarly, Medusa might utilize the ideological functions of law in conjunction with the vague laws mentioned above. Suppose, for example, that Medusa wishes to establish a steady stream of
Waldron, Vagueness and the Guidance of Action, supra note 166, at 76-77. Waldron, Vagueness and the Guidance of Action, supra note 166, at 76. 217 Waldron, Vagueness and the Guidance of Action, supra note 166, at 80.
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income in addition to the regular taxation the law-subjects have become inured to. Recognizing that there are limits to the levels of taxation her subjects will tolerate, Medusa seeks a different approach. She surveys the prevailing societal norms and recognizes a general condemnation of certain individual conduct. Suppose that a strong and vocal minority (or a slight majority) condemns the consumption of Supplement B, although there is a solid (but silent) minority which engages in this conduct. Medusa devises a strategy to exploit this situation in order to increase revenue flow and ultimately maintain her position of power. First, she sets forth a publicity campaign against the consumption of Supplement B (e.g., just say no to B!) while simultaneously promulgating laws banning the use and sale of the product. As a foreseeable consequence, an underground and lucrative market quickly emerges and the War on B is thereafter launched. In order to rid society of this noxious practice, Medusa promulgates further laws which establish her legal power to confiscate assets reasonably believed to be associated with the Supplement B trade. Second, she makes use of the vague traffic scheme described above (i.e., a traffic scheme so complex and prevalent that it is reasonable to assert if a police officer follows you around long enough, he will catch you doing something illegal) as a pretext for engaging in lawful search and seizures, targeting those associated with Supplement B or those particularly vulnerable to a frame-up. As a result of these stops, she is able to lawfully appropriate assets from law-violators. In this context, Medusa cares not whether subjects violate the laws pertaining to Supplement B or the traffic code; in fact, she fully anticipates and desires that many will engage in the prohibited conduct. It is thus odd to say that nevertheless laws function is to make a practical difference in an agents reasoning. Moreover, one may reasonably wonder about the prevalence of such a context in the real world. As noted above, the history of political and legal regimes is characterized by illegitimacy (and often atrocity). Are we really to believe that this hypothetical strategy is simply that, hypothetical, with no real world counterpart? 218 To make matters worse, modern society is characterized by pluralism and pervasive moral disagreement. It is thus increasingly difficult to discern the intentions and strategies of those in political and legal power, for one mans Hercules is another mans Medusa. As a result, I believe that if one is to make a claim about the function of law, the most that can be said is that legal norms, taken as whole, are directives with the aim of controlling (not necessarily guiding) the systemic behavior of a population. 5.3.b. Law and Ideology Although fundamentally different, my analysis of the systemic function of law (if an essential function is necessary for an understanding of the nature of law) in the Medusa Regime is somewhat similar to Marxist theories of law as ideology. In general (and perhaps crudely summarized here), law as ideology is part of a Marxist project of understanding law as an instrument of coercion that nevertheless rarely resorts to direct physical force. Ideology functions as the cement 219 binding social relations together and ensuring the reproduction of the relations of production. It reproduces and legitimizes the structures of capitalism: subjects must possess certain skills, concepts, and values for
218 219See

Are we that nave? e.g., ANTONIO GRAMSCI, SELECTIONS FROM THE PRISON NOTEBOOKS OF ANTONIO GRAMSCI (Quintin Hoare & Geoffrey Nowell Smith eds. & trans., 1971).
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capitalism to reproduce itself (i.e., capitalisms conditions of existence). The State and its Ideological State Apparatuses 220 are central in ensuring these conditions. Ideology generates common-sense beliefs of the social order, and each Ideological State Apparatus brings this about in the way proper to it (for example, educational and legal Ideological State Apparatuses act in different ways, but both ultimately function to maintain the social structure).221 The contemporary Marxist approach to law as ideology thus envisages a latent as opposed to a manifest function of law: laws ideological function is (generally) not to be found in some Medusalike conspiracy among industrial capitalists. Rather, it is an inevitable outcome built-in to the social formation and practice of law. For example, Hugh Collins suggests a class-instrumentalist approach grounded in Marxist epistemology, while at the same time avoiding a conspiratorial interpretation.222 In so arguing, Collins highlights the apparent reflexive relationship between law and ideology. Law is created by a process in which ideology plays a formative role and, in turn, law transmits an ideology which, because it is through the medium of law, is legitimated in the process of transmission. According to Collins, we have ideological frameworks through which we interpret our life experiences. 223 These frameworks develop with our experiences in the social world and our differing roles in the relations of production. For example, owners will share similar ideological frameworks because they share similar experiences in their economic relations. As a result, a dominant ideology arises which permeates their perceptions of interests,224 and the social structure appears as the natural order of things. Laws are enacted pursuant to this dominant ideology, and the system appears necessary to uphold the natural social order.225 At the same time, law reinforces the dominant ideology. The legal/ideological framework provides a comprehensive interpretation and evaluation of social relationships which is in tune with ... the dominant ideology.226 For example, laws rituals, symbolism, and repeated acceptance of outcomes work to cognitively reinforce laws implicit ideology. 227 To the extent that such ideology
See generally LOUIS ALTHUSSER, Ideology and Ideological State Apparatuses: Notes towards an Investigation, in LENIN AND PHILOSOPHY: AND OTHER ESSAYS (1971) (hereinafter Althusser (1971)). 221 See ALTHUSSER (1971), supra note 218, at 146-47. 222 See generally HUGH COLLINS, MARXISM AND L AW 35-61 (1982) (hereinafter COLLINS (1982)). I would like to say that I do not find plausible the Marxist claim that our worldviews are determined in the last instance in the relations of production. Collins idea relies on a conception of society that requires relatively neatly defined classes with relatively similar class interests. Society, however, is comprised of individuals and groups with vastly differing worldviews and cultural systems, occupying a variety of different roles, and I think it is simplistic to tie our epistemological/metaphysical frameworks to economic roles. One can simultaneously occupy the role of fianc, coworker, Mets fan, Anarchist, and New Yorker, and all of these roles have different meanings based on the different mixtures and meanings that make up an individual-as-a-whole. So being a New Yorker has a different meaning to a Mets fan than a Yankees fan. In turn, being a Yankees fan has a different meaning for an individual from the Bronx than an individual from Queens, and so on. There are a variety of roles and cultural contingencies that affect our experiences and how we imagine our place in the world that cannot be reduced to ones position in the relations of production. Therefore, the claim that the material formation of ideologies is determined by the relations of production breaks down, and with it the claim that law in the last instance is constituted by and legitimizes ideologies determined in the economic base. 223 COLLINS (1982), supra note 220, at 36-40. 224 COLLINS (1982), supra note 220, at 43. 225 COLLINS (1982), supra note 220, at 38-40, 43, 50-51. 226 COLLINS (1982), supra note 220, at 50-51. 227 For an in-depth discussion of the symbolic functions of dispute resolution, see, e.g. OSCAR CHASE, LAW, CULTURE, AND RITUAL: DISPUTING SYSTEMS IN CROSS-CULTURAL CONTEXT (2005). Moreover, Sally Falk Moores
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reflects the dominant class interests, laws ideology reinforces those interests. Although law is relatively autonomous, the dominant ideology delimits the bounds of acceptable political action by constituting societys common-sense beliefs of a natural social order.228 For example, the idea of personal responsibility implicit in criminal law relies upon an ideology that includes a strong conception of free will, downplaying the influence of social structure and economic pressures on individual action.229 Similarly, corporate law determines executives fiduciary duties based on the shareholders interests in profit maximization, forestalling an interpretation that includes an egalitarian society or workers interests. This discussion supports the claim that laws function must be understood from a systemic perspective. The Marxist account of law as ideology provides an insightful analysis 230 of a conception of laws function on a system-wide level: the legal system is said to function in ensuring the reproduction of the relations of production; individual laws and legal rules need not function in this way (indeed, they may function in an oppositional manner). Although I ultimately find the Marxist account of law as ideology unconvincing, I nevertheless believe that it provides valuable insight into the potential ideological functions of law. This provides further reason to reject the claim that the essential function of all laws is to make a practical difference in the reasoning of agents in the guidance of conduct.

anthropological study of the Chagga is illustrative of this idea. See Sally Falk-Moore, Selection For Failure in a Small Social Field: Ritual, Concord, and Fraternal Strife among the Chagga Kilimanjaro, 1968-1969, in SYMBOLS AND POLITICS IN COMMUNAL IDEOLOGY: CASES AND QUESTIONS 109, 109-43 (Sally Falk Moore & Barbara G. Myerhoff ed., 1975). In her study of disputing, Moore notes the communitys economic realities: property shortages and scarce resources. She found that Chaggan dispute processes function in sloughing-off community members in order to maintain a competitive balance for scarce resources among the winners. At the same time, such processes rationalize such sloughing-off in order to maintain the Chaggan communitarian rhetoric of brotherhood and mutual obligation. Thus, in order to uphold the ideology of community in the face of expulsion, disputing works to identify the rejected person as a justifiable exception to these common commitments. (Id. at 112-13.) Moore describes the legitimizing function of the process: disputing reaffirms both the actual power of the deciders and the presumed social and moral efficacy and correctness of the norms and values referred to [I]t reiterates a general commitment to a social and ideological order at the same time that it transforms a specific controversy into a nondispute. (Id. at 115.) The rituals and symbolism function to rationalize communal rhetoric in the face of extensive disputing and bitter rivalries, and the expulsion of the losers of the process 228 COLLINS (1982), supra note 220, at 49. 229 COLLINS (1982), supra note 220, at 50-51. 230 Moreover, there is theoretical value in recognizing laws ideological capacity and potential ideological functions that provide valuable insight into laws nature. It is important to recognize that there are a variety of factors constituting our worldviews which ultimately contribute to the ways law is enacted, interpreted, implemented, and (most importantly) experienced. Clifford Geertz wrote that law is a distinctive way of imaging the real (GEERTZ, LOCAL KNOWLEDGE: FURTHER ESSAYS IN INTERPRETIVE ANTHROPOLOGY 173 (3rd ed., 2000)) and it is important to remember that law is a social practice that potentially shapes and constitutes categories of fact. Moreover, understanding laws ideology helps us recognize its effects on different cultures and outlooks. The rituals and symbolism of the legal experience, as illustrated by Oscar Chase and Sally-Falk Moore, informs and acts upon our worldviews. The contingent of the legal order comes to be seen by many as natural, legitimized in the rituals of legal practice. In turn, law is seen to function as a guide for those in need of guidance. For others, however, law is experienced as foreign, oppressive, and alienating. There is a danger in law, inherent in any social practice characterized by the repeated implementation of force, to inculcate and manipulate some, and to oppress and alienate others.
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5.4 Conclusion The problem with the guidance conception of law is that it makes the unwarranted leap from the observation that law affects conduct to the conclusion that the function of a law is to guide conduct by making a practical difference. This is a mistake. If we are to attribute a function to the concept of law, it must be done from a systemic perspective. Moreover, Shapiros account is undermined by his flawed Lockean methodology. Philosophical anarchism provides us with reason to question and ultimately reject such an idealistic approach to laws nature. As a result, we are able to recognize the potential ideological and manipulative functions of law. Therefore, the function of law (or more precisely legal system) is at most to control behavior on a systemic level. This does not necessarily entail Shapiros guidance of conduct, with each individual law playing its particular guiding role in a master plan. The Medusa Regime does not worry itself with the particulars and has no preference whether or not one follows individual laws. Medusa is concerned only with the systemic outcome: do these laws, in total, control the populace? I am thus inclined to follow what I believe to be the tone and spirit (although not the specifics) of Harts reply231 to Dworkin by concluding that it is quite vain to seek any more specific purpose for which law as such serves beyond the general control of the populace on a system-wide level. 6. LAWS NORMATIVE CLAIMS The proper understanding of political obligation also affects our approach to the jurisprudential debate regarding laws normativity. First, our understanding has implications relating to the Razian theory of law and authority. Specifically, I argue that Raz fails to establish his claim that official statements of legal obligation necessarily imply an assertion (whether genuine or insincere) of moral obligation. I also argue that Raz fails to establish that law necessarily claims legitimate authority.232 If we are committed to the idea that law makes certain claims, a more plausible view is that law claims to occupy a position of coercive superiority, that is, law claims the ability and willingness to enforce its norms. Alternatively, even if law necessarily claims legitimate authority (which it does not), I argue (in Section 8 below) that Raz fails in his assertion that law, as a result of this claim, must be the sort of thing capable of legitimate authority.

In reply to Dworkins criticism that Harts theory does not adequately account for the purpose of law as the justification of state coercion, Hart states In fact I think it quite vain to seek any more specific purpose which law as such serves beyond providing guides to human conduct and standards of criticism of such conduct. (HART, CONCEPT OF LAW, supra note 4, at 248-49). Hart also hints at a more systemic approach to law in general in an his Introduction to Austins Province of Jurisprudence Determined: We should abandon the question whether the definition of law requires that a sanction must be annexed to every law, for it is surely now obvious that only a dogmatic restriction of the use of the word law or a confusing extension of the word sanction can make this contention plausible. Instead, we should ask whether it is a defining characteristic of a legal system that it should provide for sanctions; and here there are perhaps more alternatives than have been customarily allowed. H.L.A. Hart, Introduction to AUSTIN, PROVINCE OF JURISPRUDENCE DETERMINED, supra note 4, at xiii. 232 I discuss Razs capability thesis in Section 8 below.
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6.1 Laws Claim to Legitimate Authority and the Hart-Raz Debate 6.1.a. The Debate Joseph Razs account of the normativity of law is intimately connected to his account of authority and, in turn, his general theory of law. According to Raz (and most contemporary legal positivists 233), law necessarily claims legitimate authority.234 Innocuous as it might sound, this conceptual claim has far-reaching implications for his theory of the nature of law. It marks a sharp division between his theory and the theory of H.L.A. Hart, and propels the inclusive/ exclusive debate. For Raz, the assertion that law necessarily claims legitimate authority was the foundation of a debate with Hart regarding the proper sense of internal legal statements and the conditions upon which one accepts a legal norm. Both Raz and Hart agree that law claims authority over its subjects. According to Raz, however, this implies that law necessarily claims legitimate authority, for it implies that law claims to supply its subjects with reasons for action.235 In turn, judicial acceptance of the rule of recognition must be based on or appear to be based on a belief in the moral legitimacy of such rule. This is so because, in applying the criteria of validity, judges make statements of the obligations and duties of other people. 236 This marks a major divide between the two theories. In The Concept of Law, Hart famously set forth his theory of the foundations of law. On his account, at the foundation of every legal system is a fundamental secondary rule, a single rule of recognition that provides the validity conditions for law: it provides authoritative guidance for determining which norms count as the laws of that system and which do not.237 Such rule is a social rule the existence of which depends on the officials of the system accepting the rule and applying its criteria of validity in carrying out official acts.
See e.g., COLEMAN, PRACTICE OF PRINCIPLE, supra note 3, at 144 (Law necessarily claims a normative power to create genuine rights and obligations); MARMOR, PHILOSOPHY OF LAW, supra note 166, at 58 (it is an essential aspect of law that it always claims to be a legitimate authority) (emphasis in original); ANDREI MARMOR, POSITIVE LAW AND OBJECTIVE VALUES 34 (2001) (it is a necessary feature of law that it claims to be a legitimate authority) (hereinafter MARMOR, POSITIVE LAW AND OBJECTIVE VALUES); John Gardner, How Law Claims, What Law Claims, in INSTITUTIONAL REASON: THE JURISPRUDENCE OF ROBERT ALEXY 1, 15, 22 (Matthias Klatt ed., forthcoming) (hereinafter How Law Claims, What Law Claims) (arguing that we must understand law to be making a moral claim for itself, in the sense of a claim to be made up of moral obligation, and thus law makes a claim to moral authority); Leslie Green, Positivism and the Inseparability of Law and Morals, 83 N.Y.U. L.REV. 1035, 1048 (2008) (Every legal system contains obligation-imposing norms and claims legitimate authority to impose them.). This belief, however, is not shared by all. See e.g. KRAMER, IN DEFENSE OF LEGAL POSITIVISM, supra note 10, at 78-112; David Enoch, Reason-Giving and the Law, in OXFORD STUDIES IN PHILOSOPHY OF LAW: VOL. 1, 1, 34-36 (Leslie Green & Brian Leiter ed., 2011) (expressing doubts vis--vis Razs assertion that law claims legitimate authority). 234 See RAZ, ETHICS IN THE PUBLIC DOMAIN, supra note 6, at 215-20; see also RAZ, PRACTICAL REASON AND NORMS, supra note 164, at 150-52. 235 See Joseph Raz, Hart on Moral Rights and Legal Duties, 4 OXFORD J. LEGAL STUD. 123, 129-131 (1984) (hereinafter Raz, Hart on Moral Rights and Legal Duties). 236 See Raz, Hart on Moral Rights and Legal Duties, supra note 233, at 129-31. 237 Specifically, the rule of recognition specifies some feature or features possession of which by a suggested rule is taken as a conclusive affirmative indication that it is a rule of the group to be supported by the social pressure it exerts. . . . [it is] a rule for conclusive identification of the primary rules of obligation. HART, CONCEPT OF LAW, supra note 4, at 95.
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Judges, for example, must treat the rule of recognition as a rule: they must use it as a standard in assessing validity conditions when determining whether a norm is a law of the system, and they must use it for evaluating and criticizing those officials who do not.238 Hart stressed, however, that such official acceptance is not the same as moral acceptance and does not imply a belief in the moral legitimacy of the system.239 One can accept a rule from the internal point of view for a variety of reasons, many of which are decidedly non-moral in character. For example, one can accept the authority of a legal system based on considerations of self-interest or the desire to do as others do.240 To acknowledge a norm as legally obligatory from the internal point of view is not ipso facto to acknowledge such norm as morally obligatory.241 Hart re-emphasizes this claim in his later work as well: if all that is required is that judges should have some comprehensible motives for behaving as they do in [accepting enactments by the legislature as determining the standards of correct judicial behavior], this can easily be satisfied by motives which have nothing to do with the belief in the moral legitimacy of the authority whose enactments they identify and apply as law. Thus individual judges may explain or justify their acceptance of the legislators enactments by saying that they simply wish to continue in an established practice or that they had sworn on taking office to continue it or that they had tacitly agreed to do so by accepting the office of judge. All this would be compatible with judges either having no belief at all concerning the moral legitimacy of the legislature or even with their believing that it had none.242 Moreover, Hart argued that judicial statements of legal obligation are not the same as statements of moral obligation. For Hart, then, the meaning or sense of legal obligation is different from the meaning or sense of moral obligation. 243 Hart thus argued for a non-cognitive theory of legal discourse according to which statements of legal obligation are not statements that the addressee has reasons for action:
See generally HART, CONCEPT OF LAW, supra note 4, at 107-10, 115-17. See HART, CONCEPT OF LAW, supra note 4, at 203 (stating that [t]hose who accept the authority of a legal system are not thereby committed to a moral judgment that it is morally right to do what the law requires). 240 HART, CONCEPT OF LAW, supra note 4, at 203. Max Weber offers a similar approach to acceptance. In discussing authority and domination, Weber states: It is by no means true that every case of submissiveness to persons in positions of power is primarily (or even at all) oriented to this belief [in moral authority]. Loyalty may be hypocritically simulated by individuals or by whole groups on purely opportunistic grounds, or carried out in practice for reasons of material self-interest. Or people may submit from individual weakness and helplessness because there is no acceptable alternative. But these considerations are not decisive for the classification of types of domination. What is important is the fact that in a given case the particular claim to legitimacy is to a significant degree and according to its type treated as valid; that this fact confirms the position of the persons claiming authority and that it helps to determine the choice of means of its exercise. MAX WEBER, ECONOMY AND SOCIETY 214 (Guenther Roth & Claus Wittich ed., 1978). 241 HART, CONCEPT OF L AW, supra note 4, at 203. 242 HART, ESSAYS ON BENTHAM, supra note 16, at 265. 243 HART, ESSAYS ON BENTHAM, supra note 16, at 158-61.
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I find little reason to accept [Razs] cognitive interpretation of legal duty in terms of objective reasons or the identity of meaning of obligation in legal and moral contexts which this would secure. Far better adapted to the legal case is a different, non-cognitive theory of duty according to which committed statements asserting that others have a duty do not refer to actions which they have a categorical reason to do but, as the etymology of duty and indeed ought suggests, such statements refer to actions which are due from or owed by the subjects having the duty, in the sense that they may be properly demanded or exacted from them. On this footing, to say that an individual has a legal obligation to act in a certain way is to say that such action may be properly demanded or extracted from him according to legal rules or principles regulating such demands for action.244 According to Hart, then, statements of legal obligation are not statements asserting reasons for action. Rather, they express an attitude of acceptance to treat a rule as a guide for conduct. As a result, there is no reason to assume that law necessarily claims legitimate authority. Thus, Hart posits a theory according to which (1) statements of legal obligation do not have the same meaning or sense as statements of moral obligation and thus do not assert reasons for action for the addressee, and (2) judges who accept the rule of recognition do not necessarily accept (or pretend to accept) that legal obligations are morally binding. Raz rejects both of these claims. He argues that genuine judicial acceptance of a legal norm amounts to its moral endorsement, that is, the judge considers the norm binding on all its subjects. Moreover, judges, in asserting the existence of a legal obligation, necessarily assert a moral obligation as well. An internal legal statement is necessarily a moral endorsement of the norm.245 Thus, a judges statement of legal duty is an assertion of a moral duty; it is a statement about how a lawsubject morally ought to act.246 The meaning or sense of obligation does not change when moving from the moral to the legal context. According to Raz, judicial acceptance of a legal systems fundamental rules implies moral acceptance (or a pretense thereto) because of the nature of moral discourse and normativity in general. First, as mentioned above, Raz rejects Harts differentiation between legal and moral oughtstatements. Law necessarily claims legitimate authority.247 Thus, when judges, as the the authentic

HART, ESSAYS ON BENTHAM, supra note 16, at 159-60 (emphasis added). It is important to note that although the assertion of a legal obligation implies the assertion of a moral obligation, Raz does not argue that judges necessarily believe that this is so. Rather, the assertion of a legal obligation can be either genuine or insincere. The same is true for acceptance. Genuine acceptance is the belief in the moral legitimacy of the norms. But one may simply pretend that this is so. Thus, judges, in using the rule of recognition, evince either their good-faith belief that the rule is morally justified or the appearance of such belief. 246 For the development of this idea, see RAZ, THE CONCEPT OF A LEGAL SYSTEM 49, 234-238 (Oxford: Clarendon Press, 2d. ed. 1980); RAZ, PRACTICAL REASON AND NORMS, supra note 164, at 126-129, 147-48, 162-77; RAZ, THE AUTHORITY OF LAW, supra note 6, at 153-57; Raz, Hart on Moral Rights and Legal Duties, supra note 233, at 129-31; RAZ, ETHICS IN THE P UBLIC DOMAIN, supra note 6, at 215-20; RAZ, BETWEEN AUTHORITY AND INTERPRETATION, supra note 8, at 4-5. 247 Raz, Hart on Moral Rights and Legal Duties, supra note 233, at 131.
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representatives, the mouthpiece of the law, 248 formulate legal statements in deontic predicates, such statements do not change their sense: they are moral statements asserting moral obligations. For Raz, then, duty and obligation mean the same when one talks of legal and of moral duty and obligation. Judicial statements of legal obligation assert that one has real reasons for action. Thus, legal discourse is moral discourse. Legal institutions take their activities to impose and enforce real, morally binding, rights and duties, and they refer to them in the usual normative language familiar from moral discourse. 249 Second, in accepting a rule concerning the behavior of another, one cannot justify such acceptance on the basis of self-interested or pragmatic reasons. 250 One can only accept in good faith a rule imposing duties on others for moral reasons (although one may insincerely accept for reasons of a different kind). Thus, one cannot, in good faith, accept a rule imposing duties on others based on self-interested or pragmatic grounds. According to Raz, although one can accept a rule as a guide to ones own behavior for self-interested reasons, one cannot adduce one's preferences or one's self-interest by themselves as a justification for holding that other people must, or have a duty to, act in a certain way. To claim that another has to act in my interest is normally to make a moral claim about his moral obligations. 251 But all judges who accept a rule of recognition necessarily accept a rule that requires them to accept other rules that impose duties on other people.252 As a result, a judge can only accept such a rule, in good faith, for moral reasons. Therefore, judges either accept the rule of recognition in good faith for moral reasons or pretend to do so.253 6.1.b. Analysis Razs argument that law claims legitimate authority is the upshot of his argument that legal officials, in making statements of legal obligations, necessarily evince a belief (or pretence thereto) in the existence of a moral obligation as well. Judicial statements of legal obligation are assertions of reasons for action for the laws addressees. Thus, Raz relies heavily on the idea that legal officials, in announcing legal duties and obligations, claim to provide reasons for action for their addressees. Raz is mistaken, however, because legal officials do not necessarily assert reasons for action in their directives to law-subjects. Rather, as I will show below, many directives are mere commands or stark imperatives 254 that do not assert or presuppose reasons for action. Thus, in accepting the rule of recognition, legal officials may take an internal point of view without accepting or pretending

Raz, Hart on Moral Rights and Legal Duties, supra note 233, at 131. RAZ, BETWEEN AUTHORITY AND INTERPRETATION, supra note 8, at 4-5. 250 Raz, Hart on Moral Rights and Legal Duties, supra note 233, at 130. 251 RAZ, THE AUTHORITY OF LAW, supra note 6, at 307. 252 Raz, Hart on Moral Rights and Legal Duties, supra note 233, at 130. This is so if we assume that legal rules necessarily purport to provide reasons for the addressees. 253 Raz, Hart on Moral Rights and Legal Duties, supra note 233, at 130. 254This term is used by Kramer. See, e.g., KRAMER, IN DEFENSE OF LEGAL POSITIVISM, supra note 10, at 85.
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to accept it as morally legitimate. Rather, such officials may accept the rule for purely pragmatic and self-interested reasons. As noted above, Raz relies heavily on the assertion that legal officials claim to provide reasons for action. This is based on the observation that law is a normative system that requires or forbids certain forms of behavior. Indeed, the language of law is (supposedly) characterized by the normative semantics of ought, duty, rights, and obligation. 255 For Raz, the problem of laws normativity is importantly connected to the problem of explaining the use of normative language in describing the law or legal situations. 256 The trouble with Razs account, however, is that he simply assumes that legal norms are prescriptive in nature. He fails to account for norms that are imperative: norms that demand compliance in the form of a must that are divorced from a moral ought, those that do not provide or presuppose reasons for action. Before moving forward, a clarification is in order. My analysis is not meant to defend Harts non-cognitive account of the meaning or sense of legal obligation. Rather, my intention in this section is to analyze, in light of my conclusions above regarding political obligation, an important philosophical claim by Joseph Raz (and many others) regarding law and laws claim to legitimate authority. I reject this view and argue that law does not necessarily make such a claim. The gunman-situation write large is, on my account, a legal system, provided certain additional institutional features obtain. 257 As a result, in assessing the validity of my argument, it does not suffice to simply assume from the outset that the gunman regime is not a legal system. This is precisely what is at issue, for I claim that, by looking through the lens of philosophical anarchism, the important conceptual questions in legal philosophy take a different shape, thus requiring old assumptions to be reassessed and, when appropriate, discarded. Therefore, when I say the law does not necessarily claim legitimate authority because this does not account for the gunman legal system, it begs the question to respond but the gunman system cannot be legal because it does not claim legitimate authority. We both beg the question in this exchange, so arguments external to these claims must establish the truth of the implicit premises. This is what I plan to do, and I humbly ask the reader to base judgments of success on the strength of these arguments. The Imperative 258 Matthew Kramer, in an analysis that inspired much of what follows, accurately differentiates imperatives from moral prescriptions.259 First, Kramer defines a norm broadly so that it encompasses any general directive that lays down a standard with which conformity is required and
See also Gerald Postema, The Normativity of Law, in ISSUES IN CONTEMPORARY OF H.L.A. HART 81, 81-104 (Ruth Gavison ed., 1987). 256 RAZ, PRACTICAL REASON AND NORMS, supra note 164, at 170.
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Such institutional requirements include the generality of norms, the durability of the system (i.e., that it lasts for an indefinite amount of time, although such time is difficult or impossible to pin down), and a somewhat close correlation between norm specification and implementation. For a further discussion and elucidation of these features of a wicked legal system, see KRAMER, IN DEFENSE OF LEGAL POSITIVISM, supra note 10, at 94-96. 258 This discussion draws heavily on Neil MacCormicks and Matthew Kramers elucidation of imperatives. See Neil MacCormick, Legal Obligation and the Imperative Fallacy, supra note 10, at 100-30; KRAMER, IN DEFENSE OF LEGAL POSITIVISM, supra note 10, at 78-112. 259 KRAMER, IN DEFENSE OF LEGAL POSITIVISM, supra note 10, at 83-89.
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against which peoples conduct can be assessed. 260 This includes statements concerning how people ought to behave [and statements] concerning how people must behave. 261 Imperative norms are of the latter type (concerning how people must behave) and are characterized by the following features: (1) they do not necessarily set forth or presuppose moral reasons for action;262 (2) they do not necessarily set forth or presuppose prudential reasons for action; 263 (3) they are contextualized to relationships of the overwhelming superiority of the addressor over the addressee; and (4) they are distinguishable based on the kind of requirement the norm-statement expresses (as opposed to the grammatical mood of the statement): the requirement is generally grounded in the interests of the commander (or norm-applier) rather than the addressee.264 For present purposes, the third feature mentioned abovethe overwhelming superiority of the addressoris of particular importance. Neil MacCormick describes the proper context in which an imperative (a command on MacCormicks account) is asserted: somebody who commands is necessarily calling for obedience on the part of his addressee To call for obedience involves asserting ones superiority over another. There are certain relationships, relationships of superiority and inferiority, which may exist between persons, such that the inferior is in one sense or another required to comply with the expressed wishes of the other in relation to his conduct. One person is properly said to obey another if he complies with the others expressed wishes, willingly or unwillingly, in recognition that he is required to do so in virtue of their relationship.265 Thus, an imperative statement is contextualized to a hierarchical relationship and involves the assertion of the addressors superiority266 over the addressee. The type of hierarchical relationship involved may take a number of forms,267 but I would like to concentrate on one form in particular, that of coercive power. Person 268 A is in a position of
KRAMER, IN DEFENSE OF LEGAL POSITIVISM, supra note 10, at 80. KRAMER, IN DEFENSE OF LEGAL POSITIVISM, supra note 10, at 80. 262 Although a command may presuppose or assert such reasons (e.g., Thou shalt not steal), this is not necessarily so. Thus, when the gunman commands the bank-teller give me your money or Ill shoot! he is not presupposing moral reasons for action, nor is he setting forth such reasons. See KRAMER, IN DEFENSE OF LEGAL POSITIVISM, supra note 10, at 85. 263 Kramer describes this feature as the interest-independence of imperatives. KRAMER, IN DEFENSE OF LEGAL POSITIVISM, supra note 10, at 85. In other words, imperatives are not necessarily promotive of their addressees interests. Indeed, imperatives may conflict with the addressees interests. Thus, when the gunman sticks up the bank-teller, the only reason the victim has for handing over the money is to avoid being shot. There is no reason to hand over the money aside from the desire to avoid such an outcome. Thus, imperatives are not necessarily setting forth or presupposing prudential reasons for action. 264 KRAMER, IN DEFENSE OF LEGAL POSITIVISM, supra note 10, at 84-87. It is interesting to note a similarity in the work of Philippe Nonet and Philip Selznick. According to Nonet and Selznick, governing power is repressive when it gives short shrift to the interests of the governed, that is, when it is disposed to disregard those interests or deny their legitimacy. NONET & SELZNICK, LAW AND SOCIETY IN TRANSITION, supra note 211, at 29. 265 MacCormick, Legal Obligation and the Imperative Fallacy, supra note 10, at 106 (emphasis in original). 266 The concept of superiority is a familiar one in jurisprudence. For example, John Austin described it as the power of affecting others with evil or pain, and of forcing them, through fear of that evil, to fashion their conduct to ones wishes. AUSTIN, THE PROVINCE OF JURISPRUDENCE DETERMINED, supra note 4, at 24. For a discussion of Austins account of superiority, see RAZ, CONCEPT OF A LEGAL SYSTEM, supra note 244, at 13-15.
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coercive superiority relative to Person B (and is thus in a position to issue imperatives) if (1) Person A has the physical power or is perceived to have the physical power to inflict undesired harm on Person B; (2) Person A is prepared to or is perceived to be prepared to inflict such harm; (3) there is a lack of a present risk of retaliation of similar harm; (4) there is a range of actions Person B is prepared to do, however unwillingly, in order to avoid suffering the harm which Person A can inflict 269 (or is perceived to have the capacity to inflict); and (5) A and B both know all this, or at least suppose it to be the case. 270 This description is basically the same as MacCormicks with one caveat, the perceived qualification. One is often in a position of coercive superiority over another without ever exercising this power, in the sense that such person never flexes his muscle and actually physically coerces Person B. Thus, it is speculation whether such person actually possesses the ability to physically coerce the other. Yet it seems silly to insist that such person must somehow prove his physical power before we are ready to say he is in a position of superiority. This is especially true in the context of groups of individuals and communities, for it is extremely difficult to prove that one group possesses such power over the rest (short of pointing to the outcome of an actual war). Therefore, I submit that perception is reality in the realm of coercive superiority: an addressor possesses actual coercive superiority so long as he has or is perceived to have such physical power.271 In light of these observations, it is important to note that legal norms have always found a home in the context of a relationship characterized by coercive superiority. Legal officials (as a category) have always occupied a position of coercive power relative to their norm-subjects. Indeed, Joseph Raz, in analyzing the nature of a legal system, observed that all known legal systems are based on the use of sanctions and force to uphold the law, and that it is probably humanly impossible for a system to exist without recourse to force.272 This is especially revealing in light of my conclusion above, that there is no obligation to obey the dictates of ones political superiors. The legal context is one in which the addressor lacks moral authority and the addressee has no general moral obligation to obey. These two observations of the legal relationship illuminate the context of legal statements, and such a context is relevant in assessing whether statements of legal obligation are necessarily prescriptive. 273
MacCormick notes two relationships: physical coercion (e.g., the gunman) and authority (e.g., the employer-employee relationship). See MacCormick, Legal Obligation and the Imperative Fallacy, supra note 10, at 106-07. Kramer, in addition to these two relationships, adds situations where one person is in such a position that she is able to exert significant control over the other because of, e.g., sex appeal. See KRAMER, IN DEFENSE OF LEGAL POSITIVISM, supra note 10, at 86. 268 In this context, Person includes individuals or groups of individuals (including corporate entities). 269 MacCormick, Legal Obligation and the Imperative Fallacy, supra note 10, at 107. 270 MacCormick, Legal Obligation and the Imperative Fallacy, supra note 10, at 107. 271 Kramer comes close to recognizing this point as well. He states: Of course, if the addressees of a command are submissive because they are deluded about [the addressors] position, then [the addressor] enjoys an actual superiority over themalbeit a superiority based on their misconceptions rather than on any factor which [the addressor] explicitly or implicitly invoked. KRAMER, IN DEFENSE OF LEGAL POSITIVISM, supra note 10, at 86. 272 See RAZ, PRACTICAL REASON AND NORMS, supra note 164, at 158-159. See also Malinowskis classic anthropological study indicating that even primitive societies with legal systems were not (and are not) characterized by blind rulefollowing and that coercion is essential. BRONISLAW MALINOWSKI, CRIME AND CUSTOM IN SAVAGE SOCIETY (1926). 273 It is important to clarify that I am not arguing for an imperative-centered account of all legal norms as a conceptual necessity. Rather, I am pointing out that statements of legal obligation take place in the context characterized above. This is relevant to the present debate.
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As a result, I believe we must conclude that there is a live controversy vis--vis whether statements of legal obligation have the same meaning or sense as statements of moral obligation. In particular, there is an issue as to whether statements of legal obligation are necessarily statements setting forth or presupposing reasons for action. This warrants emphasis because, as noted by Kramer274 (and in a similar context, by Andrei Marmor and Frederick Schauer 275), one cannot simply assume the answer without providing an argument. In other words, one begs the question by merely referring to the official use of deontic language. Simply pointing out and shouting Look! There is the use of duty and obligation and rights! will not suffice. As shown above, legal statements are made in the context of coercive superiority where the addressors lack moral authority and the addressees lack a moral obligation to obey. In such a context, it is entirely possible that the addressors issue imperatives with no pretense of legitimacy and no interest in the addressees reasons for action. Moreover, the legal landscape is equally characterized by a lack of deontic language, instead taking the appearance of imperative form. For example, most statutes lack any reference to duty or obligation or right. Rather, they describe certain conduct and attach a sanction in the event an individual is found to have engaged in such behavior. This empirical fact is all too often glossed over by legal philosophers, positivist or otherwise, bent on establishing necessary connections between law and morality. Therefore, one cannot simply rely on the existence of obligation-statements to defend the Razian position, for such an argument begs the question in issue. Back to the Debate With this conception of the imperative in hand, we are in a better position to assess Razs claim that statements of legal obligation are of the same sense as statements of moral obligation, that is, statements of legal obligations are statements asserting reasons for action. If Razs account is successful, it would preclude my assertion that laws (and perhaps legal systems) may take the imperative form (i.e., statements that do not set forth or presuppose moral reasons for action). Let us thus revisit Razs argument as it would apply against the imperative norm. According to Raz, legal discourse is moral discourse. 276 Legal discourse claims to provide reasons for action. Why is this so? Because law claims legitimate authority: given that legal institutions purport to impose and enforce duties on people, given that they take it upon themselves to deprive those who disregard their legally imposed standards of property and liberty (and sometimes of their life), it follows that those institutions take themselves to be legitimate, that is to have the moral right to act as they do. A result of this is that legal discourse is moral discourse.277
KRAMER, IN DEFENSE OF LEGAL POSITIVISM, supra note 10, at 87-88. Marmor critiques Harts assumption that the gunman situation is necessarily one of being obliged rather than under a legal obligation, see MARMOR, POSITIVE LAW AND OBJECTIVE VALUES, supra note 231, at 35 (noting that Hart simply assumes there is a difference). Schauer makes a similar claim. See Frederick Schauer, Was Austin Right After All? On the Role of Sanctions in a Theory of Law, 23 RATIO JURIS 1, 12-13 (2010). 276 RAZ, BETWEEN AUTHORITY AND INTERPRETATION, supra note 8, at 4. 277 RAZ, BETWEEN AUTHORITY AND INTERPRETATION, supra note 8, at 4 (emphasis added).
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Thus, judicial statements of legal obligation (legal discourse) necessarily assert reasons for action (moral discourse) because the law claims legitimate authority. According to Raz, [t]he decisive argument concerning the meaning of statements of legal duties is that the law claims for itself moral force.278 Raz is thus basing his argument on a conceptual claimthe personification of the law and its claim to legitimacyin order to ground his argument that official statements of legal obligation are of the same sense of statements of moral obligation. But why, one might ask, does the law claim legitimate authority? Why must we impute a necessary claim to legitimacy to a concept, law, that seems incapable of making claims at all? 279 Raz provides us with the following answer: The claims the law makes for itself are evident from the language it adopts and from the opinions expressed by its spokesmen, i.e., by the institutions of the law. The law's claim to authority is manifested by the fact that legal institutions are officially designated as "authorities," by the fact that they regard themselves as having the right to impose obligations on their subjects, by their claims that their subjects owe them allegiance, and that their subjects ought to obey the law as it requires to be obeyed (i.e., in all cases except those in which some legal doctrine justifies breach of duty).280 On Razs account, therefore, we know that conceptually law claims legitimate authority based on the language of its officials.281 This is obviously problematic. Raz argues that, contra Hart, judicial statements of legal obligation necessarily assert reasons for action because law claims legitimate authority. But he now argues that law claims legitimate authority based on the language of legal officials. This argument begs the question against those asserting the possibility of imperative norms, for he assumes that legal statements must be asserting moral authority. And it is not of minor significance. Raz relies heavily on the assertion that law claims legitimate authority as the foundation of his theory of the nature of law. 282 And he clearly relies on this assertion in arguing against Hart that legal discourse is necessarily moral discourse: the law claims to have legitimate moral authority. This explains why the law is presented in moral terms. The fact that legal and moral
Raz, Hart on Moral Rights and Legal Duties, supra note 233, at 131 (emphasis added). For a discussion questioning the idea that law makes claims, see generally Kenneth Einar Himma, Laws Claims of Legitimate Authority, in HARTS POSTSCRIPT: ESSAYS ON THE POSTSCRIPT TO THE CONCEPT OF LAW 271, 271-309 (Jules Coleman ed., 2001); see also RONALD DWORKIN, JUSTICE IN ROBES 199-200 (2006). But cf. John Gardner, How Law Claims, What Law Claims, supra note 231. 280 RAZ, ETHICS IN THE PUBLIC DOMAIN, supra note 6, at 215-16. 281 In How Law Claims, What Law Claims, John Gardner makes a similar assertion, arguing that the claims of law are identical to certain claims of its officials (How Law Claims, What Law Claims, supra note 231, at 8) and that in assessing the content of laws claims, [t]he place to begin, nobody doubts, is with the language that law-applying officials use. Id. at 9. 282 Thus, he writes that [n]o system is a system of law unless it includes a claim of legitimacy, of moral authority. That means that it claims that legal requirements are morally binding, that is that legal obligations are real (moral) obligations arising out of the law. Raz, Hart on Moral Rights and Legal Duties supra note 233, at 131 (emphasis added). See also RAZ, ETHICS IN THE PUBLIC DOMAIN, supra note 6, at 215-31; RAZ, BETWEEN AUTHORITY AND INTERPRETATION, supra note 8, at 112 (The moral doctrine of legitimate authority is crucial to our understanding and assessment of the law.).
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terminology overlap and that terms such as authority, duty, obligation, right, and liberty are common to both has been a source of much confusion and contributed to various mistakes. [T]he common terminology of law and morality may have encouraged Bentham in his view that statements of rights and duties are not normative statements at all. He attempted to analyse their meaning in relation to command, or to sanction. Many others have followed in his steps. 283 He further states that the shared terminology [of legal and moral discourse] attests to what the law aspires to be. It is an expression of the fact that the law necessarily claims legitimate authority.284 We can see Razs reliance once again in his direct response to Hart: [j]udges, if anyone, take the law as it claims it should be taken. They more than anyone acknowledge the law at its own estimation. To understand legal statements we should interpret them as meant by those who take them and accept them at face value, those who acknowledge the law in the way it claims a right to be acknowledged.285 Thus, Raz argues that legal statements of obligation necessarily purport to provide reasons for action because law claims legitimate authority. And law claims legitimate authority because the language used in making legal statements is that of obligation. Thus, Raz begs the question against the argument that legal statements do not necessarily assert reasons for action. Therefore, Razs approach fails to establish the incoherence of the claim that legal officials may accept a rule of recognition without endorsing its moral legitimacy, for such a rule does not necessarily entail the acceptance of further rules that assert moral obligations for other people. One may object and argue that I have misinterpreted the Razian project.286 Raz is not arguing that law qua law claims legitimate authority because of the language of its officials; rather, such language is evidence of the claims law make. Marmor provides an interpretation of the Razian project. He begins by positing the question: whether there is something about the nature of law itself that requires it to make a claim to be a legitimate authority. 287 He continues:

283 RAZ, BETWEEN AUTHORITY AND INTERPRETATION, supra note 8, at 111. The many others in this statement refers to Hart. 284 RAZ, BETWEEN AUTHORITY AND INTERPRETATION, supra note 8, at 111-12 (emphasis added). 285 Raz, Hart on Moral Rights and Legal Duties, supra note 233, at 131 (emphasis added). 286 I would like to thank Michael Young for pushing me on this point. I nevertheless believe that Raz in the end relies on the language and actions of legal officials in defense of his assertions regarding the claims of law. This methodology is seen again in his later writings. For example, in defending the personification of law, he writes: I find nothing amiss in personalizing the law. We do refer to the law as imposing requirements and duties, conferring rights and privileges, and so on. Such expressions are unexceptional. The law's actions, expectations, and intentions are its in virtue of the actions, expectations, and intentions of the people who hold legal office according to law, that is we know when and how the actions, intentions, and attitudes of judges, legislators, and other legal officials, when acting as legal officials, are to be seen as the actions, intentions, and expectations of the law. RAZ, BETWEEN AUTHORITY AND INTERPRETATION, supra note 8, at 93 (emphasis added). See also RAZ, AUTHORITY OF LAW, supra note 4, at 30 (judges as the mouthpiece of the law); see also id. at 32 (relying on language of officials). 287 MARMOR, PHILOSOPHY OF LAW, supra note 166, at 70.

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I think that Razs positive answer is correct. As I understand the answer, it consists of two points. The first is that whenever the law makes a certain requirement about the conduct of its putative subjects, it purports to impose the requirement as a matter of obligation or duty to comply; it is the way in which laws are invariably expressed. The second is that the only way to make sense of this kind of obligation is by interpreting it as an instance of an authoritative directive. And here the basic insight is the same as the one noted by Hart: If I tell you that you ought to , I have appealed to reasons that apply to you; if I tell you that you should only because otherwise I will harm you, I have renounced a claim to reasons that apply to youexcept the reason to avoid the harm that I might inflict on you. Therefore, whenever the law expresses a demand in terms of what its putative subjects ought to do, as the law invariably does, it appeals to reasons, albeit, of the identity-related kind. And the best way to make sense of such identity-related reasons in the context of law is by interpreting them as authoritative in nature.288 As I see it, this does not save a Razian approach. Marmor begins with the assumption (after first) that law necessarily imposes obligations. He thereafter simply assumes that this means law imposes moral reasons for action, that it necessarily addresses subjects as what one ought to do. But this is precisely what is at issue. Imperative norms do not assert what one morally ought to do, what one has moral reasons to do; rather, they assert what one must do, irrespective of the reasons that apply or the interests of the subjects. 289 He therefore begs the question when he insists that the only way to make sense of this kind of obligation is by interpreting it as an instance of an authoritative directive. 290 Imperative norms do not set forth those kinds of obligations at all. As a result, we must look elsewhere for an adequate argument against the claim that law does not necessarily assert moral authority (i.e., my claim that law may be imperative). Jeffrey Goldsworthy offers an argument in support of such claim. Goldsworthys argument is based on a conception of the function of legal reasoning. Judicial reasoning has a justificatory function: it serves to justify the actions taken pursuant to the legal outcome. According to Goldsworthy, legal decisions are practical in the sense that they are decisions to act in ways seriously affecting other people's interests. 291 Thus, legal reasoning plays a justificatory role in demanding others to act (or refrain from acting) in certain ways: The function of legal reasoning is to determine when these actions are justified, and so the ultimate norms upon which that reasoning is based must somehow be self-justifying. Now, whether or not these most fundamental norms are regarded as legal, they must surely be
MARMOR PHILOSOPHY OF LAW, supra note 166, at 70. Moreover, if Razs account is simply an interpretation of the legal landscape and not as a direct argument against imperative legal norms, that is, he is simply painting a picture of our legal practice, then Raz does not adequately account for the fact that legal norms always find a home in a relationship of coercive superiority and devoid of political obligation. 290 MARMOR PHILOSOPHY OF LAW, supra note 166, at 70 (emphasis added). 291 Goldsworthy, The Self Destruction of Legal Positivism, 10 OXFORD J.LEGAL STUD. 449, 456 (1990).
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moral. If they were immoral or amoral they could not fulfill their role of justifying judicial action. Amoral or immoral reasons can justify action to the actor, but they cannot justify it to others, especially not to those likely to be adversely affected by the action. But the role of legal reasoning is to publicly justify judicial action: reasons which the judge addresses only to herself cannot in principle play that role. 292 Thus, moral reasons must be presupposed in making statements of legal obligation. Now, on the face of it, this appears to be rehashing arguments similar to the Razian approachi.e., that statements requiring people to do things must be asserting moral reasons for action. To that extent, it begs the question against those arguing for an imperative interpretation of at least some official statements of obligation. To claim that the function of legal reasoning is to justify legal norms is to define away the issue at hand, for the question just is whether legal statements assert reasons for the addressee. But within Goldsworthys argument is an important observation about the nature of legal reasoning: aside from the use of deontic language, legal officials characteristically refer back to legal rules before taking official action. So the question naturally arises: why would officials take the pains of referring to legal rules before taking action if their purpose is not justificatory? What is the point of legal reasoning if not to morally-justify official action? Although Goldsworthy is wrong in simply assuming that the function of legal reasoning is to (morally) justify official action, there is nonetheless the argument that a justificatory function can account for this aspect of legal reasoning (i.e., referring back to legal rules) while imperative cannot. This, then, is a non-question-begging argument for a prescriptive interpretation of (all?) official statements of legal obligation.293 This is an important issue for my account of law because, as show above, the Medusa regime uses law to manipulate and control her law-subjects. In such a regime, law functions as a justificatory and legitimizing device. Thus, it would appear that my arguments regarding laws function would necessitate a legitimizing function for legal reasoning. The Cassidy-Sundance Regime This conclusion, however, is unwarranted. While the Medusa regime relies on manipulation and ad hoc rationalization, there is another regime, the Cassidy-Sundance regime, which relies on neither.294 Rather, this regime is ultimately based on brute force (the highway robbers write large, if you will), for it was able to monopolize 295 the use of coercion within a particular domain. While Cassidy-Sundance has the same goals as the Medusa regimethe continuation of a position of
Goldsworthy, The Self Destruction of Legal Positivism, supra note 289, at 456-57. One may wonder how this relates to the thousands and thousands of non-judicial legal officials and their claims of legal obligation, for such officials do not utilize legal reasoning in the ways judges do. 294 For a similar approach to the function of legal reasoning, see KRAMER, IN DEFENSE OF LEGAL POSITIVISM, supra note 10, at 89-92. 295 By monopolize I mean the regime is in some sense a price maker rather than a price taker in the use of coercive physical force. Because of the regimes overwhelming power to physically coerce others, it is able to set the price for the use of physical force, in the sense that its dictates and actions play a central role in either (1) the cost-benefit analysis of a potential coercer, or (2) the cost to the coercer post use of force.
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powerit does not rely on the same methods. Instead, it relies entirely on its ability to coerce others. That is, it relies on its position of coercive superiority. But in doing so, the regime implements an institutional framework that creates, applies, and enforces its directives. The purpose of such a framework is to systematize and regularize its control over the populus, thus establishing a more efficient system of domination. As a result, its directives lack any indication that they are providing reasons for action. For example, Cassidy-Sundance may follow the lead of the Model Penal Code in promulgating an assault statute as follows: A person is guilty of assault if he attempts to cause or purposely, knowingly or recklessly causes bodily injury to another Simple assault is a misdemeanor unless committed in a fight or scuffle entered into by mutual consent, in which case it is a petty misdemeanor. 296 The regime proceeds to define misdemeanor as any violation the commission of which the violator is to be imprisoned for up to one year. Or perhaps CassidySundance promulgates the following directive: A person shall not drive a motor vehicle while using a wireless telephone device unless that telephone is specifically designed and configured to allow hands-free listening and talking, and is used in that manner while driving. 297 In light of this approach, the officials accept rules organizing the system, but they do so for purely instrumental considerations. In addition, the regime does not assert that their subjects have reasons to obey apart from the threat of sanctions, nor does it assert that it rules in their interests. It simply does not care about either. The Cassidy-Sundance regime is completely indifferent as to the moral reasons for action and the interests of its subjects. As mentioned above, the purpose is to lay down directives in order to regularize its rule in a more efficient manner. This context provides insight into the possible function of legal reasoning. Recall that two essential features of coercive superiority (itself an essential feature of the imperative-context) are the physical ability or perceived physical ability to inflict undesired harm and the willingness or perceived willingness to act upon this ability. Because the Cassidy-Sundance regime relies entirely on its coercive superiority, it is essential that it maintains, at the very least, the appearance of its power and the willingness to act upon it. At the same time, in order for the imperative system to serve its purpose as a system, the promulgated directives must be generally followed. But in general, the only motivation for compliance is the avoidance of sanctions. As a result, if an addressee believes there is an equal chance of sanction whether she follows the directives or not, she will have no motivation to comply. 298 This is what provides Cassidy-Sundance the incentive to coerce according to its rules. Thus, legal reasoning that refers back to prior directives serves a dual-function in the Cassidy-Sundance regime: it provides motivation for subjects to adhere to the regimes directives,
This wording is taken from the Model Penal Code 211.1 (2009). This wording is taken from California Vehicle Code 2008, 23123(a). It is also cited in MARMOR, PHILOSOPHY OF LAW, supra note 166, at 1, n.1. 298 See KRAMER, IN DEFENSE OF LEGAL POSITIVISM, supra note 10, at 90-91, 95-96. Kramer writes: officials have to be concerned about the effects of their current actions on the motivations of people in the future. If a legal system is known to depart frequently from the terms of its own norms by punishing lawful conduct or by conniving at unlawfulness, then citizens incentives for compliance with the norms will greatly diminish. Hence, given that wicked rulers will doubtless want their malevolent laws to operate effectively, they will have good grounds for insisting that the laws be enforced in accordance with the terms thereof. Id. at 96.
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while at the same time reinforcing the regimes coercive superiority over its subjects. If the regime simply exercised its power by physically coercing its subjects arbitrarily without reference to its directives, it would undermine the purpose of setting down directives in the first place. Lawsubjects would not take these directives into account because there is no connection between the directive and the use of force. As Kramer observes, [h]ighlighting the correlation between nonfulfillment-of-duty and subjection-to-punishment is the means of promoting a pattern of incentives that will secure the efficacious functioning of a scheme of imperatives. 299 Thus, the Cassidy-Sundance regime may rationally refer to prior directives without pretense to a justification for their actions. This indicates that there is no inherent moral-justificatory function in the reference to laws in legal reasoning. It may simply function as a reinforcing-mechanism that displays coercive superiority without undermining the institutionalization of imperative-norms. This account is buttressed by the conclusion reached above, that there is no moral obligation to obey political superiors. Many political officials (and many throughout history) have no concern for promoting the interests of or the moral reasons that apply to their subjects, and thus there is no reason to presume such saintly compassion. Moreover, one may wonder the extent to which this account captures the actual latent functions of legal reasoning in actually-existing legal systems, irrespective of explicit intentions or claims to the contrary.300 In light of the historical experience with legal systems and the truth of philosophical anarchism, is it that far-fetched to claim that the latent function of legal reasoning is to reinforce coercive superiority while maintaining the ability to control the populace through general rules? At this point an objection is likely to be raised (and in fact has been raised 301). One may object that the Cassidy-Sundance regime simply is not a legal system. Without any pretense to moral legitimacy, we do not recognize this system as legal at all. Why should we accept Cassidey-Sundance as a legal system? Perhaps you have shown that Cassidy-Sundance has a need for legal reasoning, and perhaps you have show that Razs arguments are insufficient as far as they go. But you have not provided a positive argument for why the Cassidy-Sundance regime is a legal system. In responding to such objection, we should begin by asking what the differences are between the Cassidy-Sundance regime and the real legal system (real according to objectors). Lets take a look. (1) In all known cases of law, legal directives are characterized by a context of coercive superiority. So there is no difference in this respect. (2) In all systems of law, legal directives are generally contextualized to hierarchical relationships devoid of political obligation. So there is no difference in this respect.

KRAMER, IN DEFENSE OF LEGAL POSITIVISM, supra note 10, at 91. Although on its face plausible as an account of the latent function of legal reasoning, such an account is nevertheless beyond the scope of this paper and I will not further pursue this argument here. 301 See generally PHILIP SOPER, THE ETHICS OF DEFERENCE, supra note 97, at 65-71. Soper asserts that [o]ne cannot simply dogmatically assert that coercive systems are legal systems without confronting the problem of definition and the conceptual arguments for deciding whether to view law in the narrower way, which excludes the coercive system, or in the broader inclusive fashion. Id. at 66.
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(3) In all cases of law, we see norms that are general and regularly implemented, part of a stable system in existence over long periods of time. 302 So there is no difference in this respect. (4) In a real legal system, the officials (supposedly) claim moral legitimacy, while in Cassidy-Sundance there is no such pretension. So the only major difference is a claim to legitimacy. Should this matter? I think that it should not. First, as we have shown, both Cassidy-Sundance and real systems lack legitimate authority, irrespective of the systems (supposed) claims to the contrary. Second, and importantly, there is no difference between the real legal system and the Medusa regime, for Medusa claims legitimate authority as well. In fact, this claim to legitimacy is essential to maintaining control over her subjects. Cassidy-Sundance makes no such claims, but shares the identical goals of the Medusa Regime. At this point, then, it seems arbitrary to reserve only for Medusa the label of a legal system. One may object and argue that both Medusa and Cassidy-Sundance fail to qualify as a legal system because of their goals to maintain power and oppress their subjects. I think this objection fails. First, Medusa claims moral authority and thus claims to be acting in the interests of her subjects. As a result, one can never assume that any regimes goal is to act in the interests of its subjects. This problem is enhanced in the context of pervasive moral disagreement. How can we adjudicate a claim that Medusa, not Hercules, is pulling the strings? As noted above and worth repeating, one mans Hercules is another mans Medusa. Second, in light of philosophical anarchism, all claims to legitimate authority are misguided and confused. It is thus unclear why such a misguided claim should take center stage in a theory of law. One might also object and argue alongside John Gardner that the use of deontic language ought to be interpreted as law qua law making a moral claim for itself in order to avoid the conclusion that such statements are confused or insincere. According to Gardner, [u]nlike the gunman interpretation this interpretation does not require insincerity or confusion on the part of law-applying officials when they talk of obligations, rights, permissions and so on. 303 This response fails, however, because there is no political obligation. As a result, if we interpret law as making a moral claim for itself, legal officials necessarily are making either an insincere or confused claim. This is precisely the sort of argument my approach seeks to impugn. 304 Moreover, the law-subjects in Cassidy-Sundance experience law in much the same way that many experience it today and have experienced it throughout history. The imperative-norms affect
See my discussion in note 255 above, as well as the discussion in KRAMER, IN DEFENSE OF LEGAL POSITIVISM, supra note 10, at 100-01. 303 Gardner, How Law Claims, What Law Claims, supra note 231, at 15 (emphasis in original). 304 Moreover, I once again find it odd that legal philosophers consistently cherry-pick deontic statements from the vast sea of legal statements in order to argue that laws language is necessarily moral language. As shown above, statutes are often drafted and promulgated in language devoid of such language. In addition, the language of, e.g., police officers and judges in specific instances is often of the type when I tell you to do something, you do it! I am completely unconvinced by arguments asserting laws moral claims that rely heavily on the use of deontic language. For such a reliance, see PHILIP SOPER, THE ETHICS OF DEFERENCE, supra note 97, at 70-71. I am thus sympathetic to Benthams observation that [t]he versatility of language is endless, and its variety inexhaustible BENTHAM, OF LAWS IN GENERAL, supra note 160, at 143-44.
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the practical reasoning of their subjects, and for many, such norms likely come to act in an exclusionary manner: the subjects adopt a taken-for-granted stance that it is simply not worth it to act against Cassidy-Sundance (except in exigent circumstances). Again, the Medusa and the real system on the one hand and the Cassidy-Sundance System on the other are identical except for the single claim to legitimacy. In light of these similarities, I see no reason to cabin off CassidySundance as somehow a non-legal system.305 Perhaps experience leads many (including Cassidy-Sundance) to seek a Medusa strategy.306 But that is all it is, a strategy. There is nothing inherent in the role of a legal superior that necessitates a claim of moral authority. In fact, it seems more plausible to suggest that legal officials claim not legitimate authority, but coercive superiority. They may also claim moral legitimacy, but as shown above, that is not necessarily so. Although this requires further argument, it seems that the role of legal official is more naturally associated with a claim of coercive superiority, that such a claim fits better our concept of a legal system and the position of those in legal power. This does not mean that its directives are necessarily imperative. Those in a position of coercive superiority may just as well issue prescriptive claims. But what this does show is that claims of legal officials are not necessarily prescriptive. And because judicial claims are accompanied by an implicit claim of coercive superiority, it is likely that at least some claims are imperative as well. It also shows that it is possible (although less likely, for reasons Medusa knows too well) that all of a legal regimes directives are imperative in nature. This is the Cassidy-Sundance regime, the highwayman writ large.

In fact, one may plausibly argue that it is a positive attribute of the Cassidy-Sundance regime that it does not utilize manipulation and the potential ideological functions of law to remain in power. The 19th century anarchist Lysander Spooner makes such a claim: The fact is that the government, like a highwayman, says to a man: Your money, or your life. The government does not, indeed, waylay a man in a lonely place, spring upon him from the roadside, and, holding a pistol to his head, proceed to rifle his pockets. But the robbery is none the less a robbery on that account; and it is far more dastardly and shameful. The highwayman takes solely upon himself the responsibility, danger, and crime of his own act. He does not pretend that he has any rightful claim to your money, or that he intends to use it for your own benefit. He does not pretend to be anything but a robber. He has not acquired impudence enough to profess to be merely a protector, and that he takes men's money against their will, merely to enable him to protect those infatuated travellers, who feel perfectly able to protect themselves, or do not appreciate his peculiar system of protection. He is too sensible a man to make such professions as these. Furthermore, having taken your money, he leaves you, as you wish him to do. He does not persist in following you on the road, against your will; assuming to be your rightful "sovereign," on account of the protection he affords you. He does not keep protecting you, by commanding you to bow down and serve him; by requiring you to do this, and forbidding you to do that; by robbing you of more money as often as he finds it for his interest or pleasure to do so; and by branding you as a rebel, a traitor, and an enemy to your country, and shooting you down without mercy, if you dispute his authority, or resist his demands. He is too much of a gentleman to be guilty of such impostures, and insults, and villanies as these. In short, he does not, in addition to robbing you, attempt to make you either his dupe or his slave. SPOONER, NO TREASON, NO. VI: THE CONSTITUTION OF NO AUTHORITY 12-13 (1870). 306 This is indeed the insight of Weber. Leslie Green also recognizes this point as the fact of importance in Weber, stating that the real importance of Webers celebrated argument [is that] a belief in [a states] legitimacy tends to increase its stability and effectiveness. GREEN, AUTHORITY OF THE STATE, supra note 20, at 1. .
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6.1.c. Conclusion It is now clear that we must reject Razs argument that statements of legal obligation have the same sense as statements of moral obligation, for he did not account for the possibility of imperative directives and thus failed to establish that such norms cannot constitute statements of legal duty. He therefore failed to establish that judicial statements of legal obligation necessarily assert reasons for action. As a result, the official acceptance of a rule of recognition does not imply the acceptance of a rule that requires them to accept other rules that impose duties on other people. Thus, Raz failed to establish that official acceptance implies moral acceptance (or a pretense thereto). Raz erred in trying to ground two conceptual claims in each other. In doing so, he begged the question against those who do not want to enter the dance circle in the first place, those arguing that statements of legal obligation do not necessarily assert moral reasons for action. The Razian position needs a conceptual argument that grounds the assertion that law necessarily claims legitimate authority that is independent of the supposedly deontic semantics of judicial legal statements.307 I believe all such accounts are doomed to failure because of the truth of philosophical anarchism, the ubiquity of coercive superiority in the legal context, and the empirical fact that laws are often completely devoid of morally-loaded language. The additional fact that many laws (usually in the context of judicial legislation) make use of the language of rights and obligations obscures the fact that a morally-loaded meaning or sense is not conceptually necessary. Legal philosophers have for too long been under the spell of the erroneous moral interpretation. I am thus inspired by Harts description of Bentham: Bentham had as vivid an appreciation as Karl Marx of the ways in which mysteries and illusions, often profitable to interested parties, have clustered round social institutions, concealing the fact that they with their defects are human artefacts, and encouraging the belief that the injustices and exploitation which they permit must be ascribed to nature and are beyond the power of men to change. Law says Bentham shows itself in a mask, and much that he wrote was designed to remove it.308 I do not believe, however, that law ceases to be law the moment such mask is removed. That is the project I pursue in this section. 7. LAW AND COERCION: HART AND RAZ ON THE SANCTIONLESS LEGAL SYSTEM Legal positivism is a jurisprudential theory often associated with the Benthamite project of demystifying the law. 309 It is often recognized as the school of thought seeking to understand
For additional critiques of the Razian account, see generally KRAMER, IN DEFENSE OF LEGAL POSITIVISM, supra note 10, at 78-112. 308 HART, ESSAYS ON BENTHAM, supra note 16, at 2. 309 See HART, The Demystification of the Law, in HART, ESSAYS ON BENTHAM, supra note 16, at 21-39; see also Raz, Hart on Moral Rights and Legal Duties, supra note 233, at 131 (characterizing Harts project as engaged in the Benthamite enterprise of demythologising the law and subjecting it to the cool light of reason).
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law as it is rather than law as it ought to be. H.L.A. Hart, widely regarded as the most important and influential legal philosopher of the 20th century, characterized his project as descriptive sociology, 310 an attempt to provide theoretical insight into the workings of actual modern legal systems. It is of some interest, then, that Hart, perhaps the most influential of all legal positivists, and Joseph Raz, perhaps the most influential positivist of the last quarter century, reject the view that coercion is essential to understanding the nature of law. 311 For Hart, coercion is ancillary to the main functions of law in society. His theory thus sets forth two general claims regarding coercion and the sanction. First, theories of law that focus on the sanction are inadequate and obscure the central features and functions of law. Second, coercion is conceptually unnecessary for the existence of a legal system.312 Thus, such systems could exist without the provision for the use of sanctions. As a result, coercion does not deserve a central place in a theory of the nature of law. Similar to Hart, Joseph Raz asserts that coercion is not an essential feature of law. 313 In Practical Reason and Norms, Raz analyzes the role of coercion in conjunction with the explication of the concept of a legal system.314 He claims that legal systems are a special kind of institutionalized normative system, distinguishable by the characteristic way law relates to other institutionalized normative systems within the same society. Coercion, however, is not an essential feature of law because it plays no necessary conceptual role in understanding this relationship. Specifically, coercion is not essential in (1) elucidating the concept of an institutionalized normative system, and (2) elucidating the relationship between a legal system and other institutionalized normative systems within the same society. Thus, we can imagine a normative system characterized by certain features that does not provide for sanctions or enforcement and yet we would still consider such system a legal system.
HART, CONCEPT OF LAW, supra note 4, at vi. It is also curious that Ronald Dworkin, arguably the most influential non-positivist of the 20th (Finnis also has a case), argues to the contrary. For Dworkin, the whole point of law and legal practice is to justify the governmental use of force. Thus, he states that the fundamental point of legal practice is to guide and constrain the power of government in the following way. Law insists that force not be used or withheld, no matter how useful that would be to ends in view, no matter how beneficial or noble these ends, except as licensed or required by individual rights and responsibilities flowing from past political decisions about when collective force is justified. The law of a community on this account is the scheme of rights and responsibilities that meet that complex standard: they license coercion because they flow from past decisions of the right sort.See LAWS EMPIRE, supra note 19, at 93; see also id. at 98 (stating that the whole point of law is to establish a justifying connection between past political decisions and present coercion). Even St. Thomas Aquinas, the great natural law theorist of the 13th century, equates law with the concept of coercion: two things belong to the nature of law: first, it is a rule of human acts; secondly, that it has coercive power. ON LAW, MORALITY AND POLITICS, ST I-II, Q. 96, A. 5 at 66 (Indianapolis: Hackett Publishing Co., 2002). This may, however, only represent the idea that the law has normative force, which Hart does not deny. 312 See H.L.A. Hart, Theory and Definition in Jurisprudence, supra note 164, at 253 (stating that even in a municipal system it is easy to imagine material or psychological conditions which would make it very arbitrary to deny the title of a legal system to a system which had all the normal features listed above except sanctions.). 313 It is interesting to note the sharp contrast with Razs claims in The Concept of a Legal System. There, Raz claimed that the three essential features of a legal system are that it is normative, institutionalized, and coercive. it is coercive in that obedience to it, and its application, are internally guaranteed, ultimately, by the use of force. every theory of legal system must be compatible with an explanation of these features. Raz, THE CONCEPT OF A LEGAL SYSTEM, supra note 244, at 3; see also id. at 89 (stating that coercive sanctions are of great importance in understanding [laws] nature as a specific social technique). 314 See generally RAZ, PRACTICAL REASON AND NORMS, supra note 164, at 155-62.
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Although there is much value in Harts and Razs analyses of law and legal systems, both fail in their respective attempts to sever the conceptual link between law and coercion. In this section, I argue that, by emphasizing the importance of how law actually functions in legal communities, Hart undermines the claim that the internal point of view is essential for understanding legal obligation. I also argue that Raz fails to establish the conceptual claim that a normative system lacking enforcement and coercion mechanisms qualifies as a legal system. Specifically, I argue that Raz fails to distinguish a legal system from other institutionalized normative systems, thus failing in his account of what it is that makes a system a distinctly legal system. 7.1 Hart on Law and Coercion In rejecting sanction-centered theories of law, Hart repeatedly emphasizes the social fact that law functions as a standard of behavior for those living in a legal system. 315 He claims that an explanation of this apparently widespread experience of social life is crucial for an adequate theory of law. 316 Such an explanation requires an account of the internal aspect of rules. Thus, Hart claims that coercion and the sanction are ancillary to these guidance features of law. As a result, the sanction-centered theories of Austin and Kelsen must be rejected. But one may question the extent to which the subjects of modern legal systems possess this internal viewpoint as a general stance towards law. In the modern administrative state, characterized by large impersonal political institutions in pluralistic political societies lacking moral legitimacy and a corresponding obligation to obey, it is questionable whether this view is prevalent (or even rationally permissible). Thus, a person complies with the legal rules forbidding murder not because she takes the internal point of view towards the law, but because she believes murder is wrong irrespective of the laws proscription. Or a person complies with the legal rules forbidding the unlicensed practice of cutting hair not because such person is puzzled about what ought to be done and seeks guidance from sagacious legal officials, but because he wishes to avoid sanctions. If the internal point of view as a general stance towards legal systems is empirically rare, it is questionable whether it deserves such a prominent place in legal theory.317 In light of these observations, one may question the extent to which the internal point of view contributes to our understanding of legal obligation at all. 318 Recall that Hart, in rejecting the sanction theory of legal obligation, has us consider the gunman situation in order to distinguish situations where one is merely obliged from those where one is under an obligation. According to Hart,
HART, CONCEPT OF LAW, supra note 4, at 18-78, 82-91. HART, CONCEPT OF LAW, supra note 4, at 18-78, 82-91. For example, in arguing against Hans Kelsens approach to power conferring rules, Hart cites to the ways law functions in the lives of those subject to it. He states: [r]ules conferring private power must, if they are to be understood, be looked at from the point of view of those who exercise them. [such rules] are thought of, spoken of, and used in social life differently from rules which impose duties, and they are valued for different reasons. What other tests for difference in character could there be? HART, CONCEPT OF LAW, supra note 4, at 41. For Harts criticisms of Kelsen along these lines, see Id. at 38-41. 317 For a similar argument, see Schauer, Was Austin Right After All?, supra note 273, at 7-9; see also Frederick Schauer, Critical Notice, 24 CANADIAN J. PHIL. 495, 502 (1994). 318 But see Brian Bix, H.L.A. Hart and the Hermeneutic Turn in Legal Theory, 52 S.M.U. L. REV. 167, 195-98 (1999) (discussing Schauers approach).
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there is a fundamental difference between the gunman situation and the situation of legal obligation, and this difference requires us to reject sanction theories of law. But this distinction is called into question when we recognize, with Hart, that a legal system exists despite the fact that the vast majority of its subjects reject its authority and fail to take an internal point of view towards its primary rules. These subjects comply only because of the threat of sanctions.319 The internal point of view only factors in the attitudes of the legal officials. In such a case, a legal obligation is said to exist even though all of the subjects experience the law as simply the gunman situation writ large.320 Thus, the only way to differentiate the gunman system and the existence of legal obligation is by pointing to the attitudes of those in power. Even with respect to these differing attitudes, the distinction is slight. Recall that an official has this special attitude by accepting the rules of the system. But this acceptance-condition is extremely weak, for it requires only that one use these rules in identifying and applying laws of the system (while also criticizing those officials who dont). The reasons for acceptance, ones motivations for doing so, are immaterial, and an official can accept the rules simply out of self-interested concerns.321 This amounts to what may be described as a conspiracy condition for the existence of legal obligation and a legal system. Thus, we can break down Harts distinction between being obliged and being under a legal obligation in the following way: (1) in the situation of being obliged, the subjects experience the demands as the threats of a gunman, and the officials do not take the internal point of view towards the rules; (2) in the situation of legal obligation, the subjects (who make up the vast majority of the system) experience the demands as the threats of a gunman, and the officials (who make up a small fraction of the population) accept for self-interested reasons the rules of the system.322 In such situations, it is plausible to argue that sanctions and the effective institutionalization of coercive superiority provides a better account of legal obligation, rather than the conspiratorial self-interested acceptance of those in power. Hart may respond by arguing that this official internal point of view is of central importance because it is necessary for understanding the foundations of a legal system and thus the very possibility of law. This may be true, but the importance of this acceptance condition is not that it provides insight into the practical reasoning of those who experience law, but rather that it makes possible the institutionalization of coercive superiority. Moreover, it unnecessarily prioritizes the view of legal officials and those in positions of power at the expense of the views of the great majority that
To be more precise, they comply either because of (1) the threat of sanctions, or (2) the law happens to coincide with what the person believes is the morally right thing to do. Thus, a person complies with the law forbidding murder not because she takes the internal point of view towards the law, but because she believes murder is wrong irrespective of the laws proscription. 320 For a similar critique of Hart, see Danny Priel, Sanction and Obligation in Harts Theory of Law, 21 RATIO JURIS 404 (2008). 321 A possible implication of this account of acceptance is that the officials need not accept the primary rules of obligation while acting in their private capacity. This is because Harts account of the rule of recognition is that of the official practice of identifying norms and applying them in their official acts. Despite Harts observations of the selfbinding force of the law, nothing in this account of the rule of recognition requires the officials of the system to accept the primary rules while acting in their private capacity. They may reject these rules and simply conform their behavior because of threats of sanctions. This is exemplified by the fact that not all acts of law-breaking leads to a removal from office. There are usually laws providing for specific types of legal violation that calls for removal. For many offices there is no official policy and private law-breaking does not lead to dismissal or even sanctions. 322 As noted above, these officials need not accept the rules in their private capacity, further diminishing the distinction between the gunman situation and Harts legal obligation.
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experience life in a legal system. Hart repeatedly invokes the importance of understanding how law functions in society and the experience of those affected by it. If coercion is crucial to understanding how most experience life in modern legal systems, it is hard to comprehend why the sanction deserves an ancillary role in elucidating the nature of law as a distinct social practice. Moreover, and along similar lines, one may wonder what it is that Hart actually captures by resorting to power-conferring rules in his arguments against sanction-centered theories of law. If he seeks to demonstrate how law functions in citizens lives or how citizens experience such powerconferring rules, one may question the extent to which the prevalence of such rules undermines the centrality of coercion. It is plausible to argue that law is sought out in these situations because of its reliability as a sanction provider. 323 For example, the power-conferring rules characteristic of contract law function not so much as a standard of conduct or as the solution to recurrent coordination problems; rather, they function as the solution to prisoners dilemma situations as a reliable sanction provider.324 People utilize contracts and contract law not because it provides a reliable guide as to the proper methodology for entering into agreements, but because they know the other party faces the coercive power of the state if they attempt to defect. This account, I believe, better captures how powerconferring rules are typically utilized and experienced. As a result, an approach focusing on the experience of legal subjects and laws functions in society cannot appeal to power-conferring rules in hopes of severing the link between law and coercion. 7.2 Raz on Law and Coercion According to Raz, institutionalized normative systems have three central features. First, they have existence criteria which are not identical with all of their norms being practiced. Rather, they depend on the operation of their norm-creating or norm-applying institutions. 325 Thus, the existence criteria place significant weight on the activities of the officials and primary organs of the system. Second, norms belong to such systems if they have a certain internal relation to the norms that set up and regulate the relevant institutions the workings of which determine whether the system is practiced.326 The relevant institutions, according to Raz, are the norm-creating and normapplying institutions, with particular emphasis on the importance of primary norm-applying institutions. 327 Third, and finally, the systemic validity of an institutionalized normative system depends on the system being practiced.328 According to Raz, the fact that a norm belongs to a
For a similar line of thought in the context of Razs theory, see MARMOR, POSITIVE LAW AND OBJECTIVE VALUES, supra note 231, at 44-46. 324 For a discussion of the importance of laws function in solving prisoners dilemma situations, see M ARMOR, POSITIVE LAW AND OBJECTIVE VALUES, supra note 231, at 44-46. 325 RAZ, PRACTICAL REASON AND NORMS, supra note 164, at 126, 128-129. 326 RAZ, PRACTICAL REASON AND NORMS, supra note 164, at 127. According to Raz, all normative systems require criteria for determining which norms belong to the system and which do not. For example, the rules of a game are identified by their relation to the values of the game. Raz claims that the rules of institutionalized normative systems are identified as a rule of that system by their relation to the institutions which characterize those systems. Id. at 126 (emphasis added). For Raz, the institutions which characterize institutionalized normative systems are those institutions the existence of which allow us to say the system is practiced. As noted in the text, Raz claims that these institutions are the norm-creating and norm-applying institutions. 327 RAZ, PRACTICAL REASON AND NORMS, supra note 164, at 132, 134. 328 RAZ, PRACTICAL REASON AND NORMS, supra note 164, at 127-28.
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system is relevant to its validity only if that system is actually in force and practiced. Thus, the fact that a norm belongs to a proposed or extinct legal system (e.g., the Roman legal system) has no relevance to its validity. Legal systems, according to Raz, are a special type of institutionalized normative system. They are unique due to their relation to other institutionalized normative systems within the same society.329 Legal systems are characterized by three salient features, all of which relate to an overarching claim to authority.330 First, legal systems are comprehensive: they claim legitimate authority to regulate all types of behavior. 331 Legal systems, as distinguished from other institutionalized normative systems, do not acknowledge any limitation on the types of behavior that they claim authority to regulate. This does not mean that they have authority to regulate or that they actually regulate all types of behavior. Rather, it means only that they claim authority to regulate all spheres of behavior. Second, legal systems claim supremacy: they claim authority to regulate the existence and operation of other normative institutions operating within the relevant community. Thus, legal systems claim authority to prohibit, permit, or require certain conditions on the creation and functioning of all the normative institutions that exist within the community.332 Third, legal systems are open systems: they contain norms the purpose of which is to give binding force within the system to norms which do not belong to it. 333 According to Raz, it is characteristic of legal systems that they maintain and support other forms of social groupings. 334 Legal systems carry out this function by enforcing norms created by, e.g., contracts and the rules of private associations. These norms are not regarded as norms of the system. Instead, they are made binding by certain rules which require courts to recognize and enforce these adopted norms under certain conditions.335
329 RAZ, PRACTICAL REASON AND NORMS, supra note 164, at 149. One may question, however, how to determine whether differing institutionalized systems are within the same society without resort to the notion of coercion or the sanction. For a conception of society as involuntary by nature, see DAVID COPP, MORALITY, NORMATIVITY, AND SOCIETY 127-28 (1995). Raz may counter, however, that a system may be non-voluntary without recourse to sanctions. Thus, one may accept the bindingness of norms without the belief that their acceptance is voluntary. Thus, a society is characterized by an ultimate institutionalized normative system (Razs legal system) that does not conflict with other ultimate institutionalized normative systems. The problem, however, is determining the scope of the claims of an institutionalized normative system without reference to society. 330 For a discussion of practical authority as providing exclusionary reasons for action (including a discussion of Razs service conception of authority), see RAZ, ETHICS IN THE PUBLIC DOMAIN, supra note 6, at 210-20. 331 RAZ, PRACTICAL REASON AND NORMS, supra note 164, at 150-51. According to Raz, a normative system claims to regulate all those acts which it regulates and which can be regulated by norms which can be enacted directly or indirectly by the exercise of powers recognized by norms of the system. Id. at 150. In this weak sense, then, Raz is committed to the notion that a legal system claims the authority to regulate the legitimate uses of physical coercion and the sanction. 332 RAZ, PRACTICAL REASON AND NORMS, supra note 164, at 151-52. 333 RAZ, PRACTICAL REASON AND NORMS, supra note 164, at 152-53. 334 RAZ, PRACTICAL REASON AND NORMS, supra note 164, at 152-53. It is reasonable to question whether this is necessarily so. Utilizing a Razian methodology, it may be possible to imagine a legal system requiring that, e.g., only state-created contracts with state-mandated norms will be upheld. Such a system would not be an open system: it would never recognize alien norms. For a discussion of such an arrangement in the marital context, see EMILE DURKHEIM, From Repressive to Restitutory Law, in DURKHEIM AND THE LAW 52 (Steven Lukes & Andrew Scull ed., 1986). 335 This feature of all legal systems requires a modification to the test for determining whether a rule belongs to the given legal system. Recall that the test for determining whether a norm belongs to an institutionalized normative system is whether, from the point of view of the system, the norm-applying organ ought to apply it. In the context of these adopted norms, however, the court, from the legal point of view, ought to apply them. But these norms are not considered part of the legal system. Thus, Raz developed a test for determining whether a norm is adopted by the

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7.2.a. The Sanctionless Legal System As a result of his analysis, Raz concludes that so long as an open institutionalized normative system claims comprehensive and supreme authority, such system is a legal system. With these features in hand, Raz proceeds to discuss the relation between law and coercion. In so doing, he develops a thought experiment consisting of a society of angels in order to isolate the role of coercion in explicating the concept of a legal system. This hypothetical society does not provide for sanctions or the enforcement of its norms, yet still qualifies as a legal system due to the presence of the three features mentioned above. Thus, because it is possible to imagine a legal system without provisions for sanctions, coercion is not an essential feature of law. Raz begins his analysis by wondering whether it is possible for there to be a legal system in force which does not provide for sanctions or which does not authorize their enforcement by force.336 Before answering this question, Raz sets forth four empirical observations regarding known legal systems. First, all known legal systems are based on the use of sanctions and force to uphold the law. Second, all such systems regulate the use of force by permitting or forbidding its use in different situations. Third, all known legal systems prohibit the use of force against legal/political officials in the carrying out of their offices. Fourth, all known systems authorize the use of force to enforce compliance with sanctions. 337 It would appear that, based on these empirical observations, coercion is a central feature of a legal system. Raz, however, denies this. Although acknowledging that it seems humanly impossible,338 Raz nevertheless asserts that it is logically possible for a legal system to exist that does not provide for sanctions and which does not provide for the enforcement of its norms. 339 This is because we can imagine a society made up of beings that lack any desire to disobey the law, beings that look upon the law with reverence and thus guide their behavior by its dictates. Raz writes that we can imagine other rational beings who may be subject to law, who have, and who would acknowledge that they have, more than enough reasons to obey the law regardless of sanctions. [I]n such a society the legislator would not bother to enact sanctions since they would be unnecessary and superfluous. If such a normative system has all the features of a legal system described above then it would be recognized as one by all despite its lack of sanctions.340
system. See RAZ, PRACTICAL REASON AND NORMS, supra note 164, at 153. In developing such test, Raz looked to the reasons the law has for recognizing these norms as binding. Thus, he states that our purpose is to distinguish between norms which are recognized because they are part of the law and those which are recognized because of the laws function to support other social arrangements and groups. Id. at 153 (emphasis added). Thus, Raz employed a functionalist approach to developing this test. 336 RAZ, PRACTICAL REASON AND NORMS, supra note 164, at 158. 337 RAZ, PRACTICAL REASON AND NORMS, supra note 164, at 157-158. 338 Raz claims that human nature necessitates the resort to sanctions that are enforced by force (if necessary) if there is to be a reasonable degree of conformity to law and [to] prevent its complete breakdown. RAZ, PRACTICAL REASON AND NORMS, supra note 164, at 159. 339 RAZ, PRACTICAL REASON AND NORMS, supra note 164, at 158-159. 340 RAZ, PRACTICAL REASON AND NORMS, supra note 164, at 159. One may wonder why, in such a community angels, the legal system must claim legitimate authority. All the norm-subjects treat the norms as norms and lack any desire to
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For Raz, because we can imagine a society of beings characterized by a reverence for law and the lack of any desire to fail to comply with its dictates, coercion is not an essential feature of law. In such a society, sanctions would not be provided for, yet we would all recognize this system as a legal system. In defense of this claim, Raz asserts that this angelic society would still require a legal system, for the subjects would require authoritative guidance and authoritative dispute resolution despite their unusual characteristics. The point of the hypothetical is to isolate the role of coercion in our concept of law and to consider whether a system lacking provisions for the enforcement of its norms would qualify as a legal system. Raz claims that the system is recognizable as a legal system due to the presence of a legislature and judiciary, for such authoritative norm-creating and normapplying institutions would still be needed by those in the imagined society. To illustrate this need, Raz stipulates that the only difference between the imagined beings and actual people is that they have a universal and deep-rooted respect towards their legal institutions and in lacking all desire to disobey their rulings. 341 But they are not perfect. They are not a community of self-denying saints [they] pursue their self-interest when they think they are right to do so, and they may be wrong. 342 Thus, such beings have conflicting goals and different life plans, as well as trouble solving disputes and forging agreements in the face of conflicts of interest. According to Raz, this would require a legislative authority to solve coordination problems resulting from such differences. Moreover, despite the unquestioning obedience to and reverence for the law, such society would be characterized by disputes concerning the correct interpretation of and ensuing legal effects stemming from such laws. As a result, there would be a need for courts to provide for the authoritative settlement of disputes. In summary, Raz claims that law is a special type of institutionalized normative system that is not conceptually linked to coercion and the enforcement of norms. Rather, legal systems are essentially constituted by the following sixth features, none of which relates to the coercive enforcement of its rules. First, they have criteria for existence which depend in part on their primary norm-applying institutions. These existence conditions are independent of all its laws being accepted and followed by its subjects. Second, the test for determining whether a norm belongs to a particular legal system depends on whether, from the legal point of view, the primary norm-applying organs ought to apply it. 343 Third, the systemic validity of such systems depends on their being practiced. Fourth, legal systems claim legitimate authority to regulate all types of behavior. Fifth, such systems claim authority to regulate the existence and operation of all other normative institutions operating within the relevant community. Sixth, and finally, legal systems contain norms that provide binding force to other norms which do not belong to the system. As long as these features are present, a normative system qualifies as a legal system, whether or not it provides for the

disobey: they believe, rightly or wrongly, that the system provides legitimate standards of conduct. Why must the system, in addition to these beliefs, itself claim legitimacy? For the law-subjects themselves claim legitimacy for the system. Any such additional claim by the officials or the system itself would also be unnecessary and superfluous. 341 RAZ, PRACTICAL REASON AND NORMS, supra note 164, at 159. 342 RAZ, PRACTICAL REASON AND NORMS, supra note 164, at 160. 343 With the modification for adopted norms.
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enforcement of its norms by force. In the following sub-section, I argue that Raz fails in this attempt to sever the conceptual link between law and coercion. 7.2.b. Critical Analysis As shown above, Raz argues that coercion is not an essential feature of our concept of law, using the thought experiment of a society of other rational beings to prove his conceptual point. Raz fails in this attempt, however, because it appears the angelic sanctionless system is not distinguishable from other non-legal normative systems within the same society. Also, it is reasonable to deny that the normative system in this society amounts to a legal system at all (as opposed to something else altogether). That is, it is doubtful that his hypothetical system would be recognized as [a legal system] by all despite its lack of sanctions. 344 Therefore, despite Razs claims to the contrary, it seems more plausible to assert that the ability to coercively enforce compliance (i.e., coercive superiority) is conceptually necessary for identifying and differentiating a normative system as a legal system within a given society. First, in Razs imagined society, it is difficult to see how one can conceptually distinguish this angelic system of norms from a religious system or popular morality, both of which could qualify as a Razian legal system. 345 Religious and moral norms both claim supremacy and the authority to regulate all behavior. Also, both allow the adoption of alien norms by including norms that, e.g., uphold contracts and agreements of individuals and associations. 346 Moreover, both could provide for adjudicative determination of conflicts (historically, churches provided for such dispute resolution). Finally, there is nothing inherent in the concept of a religious system or social morality that would prohibit the possibility of both systems possessing norm-creating institutions (for example, a system of elders could provide authoritative guidance in matters of social morality or religious doctrine). Thus, it is impossible to differentiate the Razian hypothetical system of legal norms from the religious and social moral systems within the society. Raz could respond by arguing that such a, e.g., religious system does in fact qualify as a system of laws. On this account, if such a religious system possesses the features mentioned above then there is no reason to withhold the title legal system. In fact, Raz makes such a claim in passing. He notes that the rules of various churches claim comprehensive authority. He claims (without argument) that if such norms qualify under the other two conditions (i.e., are open systems that claim supremacy), and many of them do, these religions systems are ordinary legal systems.347 As a consequence, Razs theory postulates that many religious systems in existence today qualify as legal systems.
RAZ, PRACTICAL REASON AND NORMS, supra note 164, at 159 (emphasis added). For a similar argument, see Ekow N. Yankah, The Force of Law: The Role of Coercion in Legal Norms, 42 U.RICH.L.REV. 1195, 1234 (2008). 346 It is interesting to note that, historically, the belief that these systems failed to adequately enforce such alien norms in the first place led to the belief that a coercive legal system was necessary. See e.g., THOMAS HOBBES, LEVIATHAN (London: Penguin Classics, 1985) at 196, Part II, Chapter 14, (claiming that agreements for future performance are valid only when there is a common Power with right and force sufficient to compel performance); see also id. at 223, Part II, Chapter 17 (claiming that agreements for future performance without the Sword, are but Words, and of no strength to secure man at all). 347 RAZ, PRACTICAL REASON AND NORMS, supra note 164, at 151.
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I believe this response fails, however, because a satisfactory theory of law must be able to distinguish law and legal systems from other important yet distinct normative systems within a society. My claim is similar to what Jules Coleman calls an adequacy condition for a substantive theory of law: it is an important and prevalent feature of our legal practice that legal and religious systems (as well as social morality) are distinct. 348 I believe this is a common plateau shared by all those holding our concept of law. Moreover, Raz himself emphasizes the need to distinguish law from other institutional normative systems within a society. As noted above, this is the animating idea in Razs discussion of law as an institutionalized normative system.349 It is thus of some importance that Raz fails to explain why religion and popular morality, both characteristically believed to constitute distinct normative systems within a society, nevertheless need not be distinguished from legal systems. Contra Raz, I believe there is a recognized conceptual difference between systems of law, religion, and morality. As a result, because Razs theory cannot make such a distinction, it fails to provide an adequate account of the nature of law. Moreover, there is a practical differenceone I believe provides insight into conceptual differencesbetween legal systems on the one hand and religious and moral systems on the other, and this important practical difference can only be explained by reference to coercive superiority. Legal systems, as opposed to popular morality and religion, can operate upon an individual in the face of active opposition. Suppose, for example, that Farmer Joe lives in upstate New York. Farmer Joe is skilled with his hands and is the most self-reliant man anyone ever came across. He is, however, a cantankerous, reclusive, atheistic yet self-righteous individual, convinced that society went to hell in a hand basket 350 generations ago. He thus rejects New Yorks social morality and the laws promulgated by its legal officials. He simply wants to live alone on his farm with his goats, self-reliant and in seclusion. He thus has no need for money (i.e., legal tender), trade, or any other social interaction. In New York, however, as well as in all existing legal systems, he will not be able to do this. Why not? The reason is that New York requires payment of property tax, thus requiring Farmer Joe to take part in its economic (or penitentiary) system. Joe must engage and must feel the effects of the system. It seems that social morality and religion are incapable of producing such result. Only a legal system within society can make its presence felt on those who reject its norms. I submit that this is because the legal is intimately connected to the institutions which occupy a position of coercive superiority. This notion is implicit in the observation that the law cares very little about your actual consent, or willingness, to be subject to its authoritative demands. 351 There is something about law qua law that allows it to affect those subject to its reach over and above the fact that it is a non-voluntary system of norms. Law uniquely affects those it touches not just because it does not rely on consent, but also because it does not rely on willing participation or acceptance. I submit that law is unique in its ability to secure compliance in the face of direct normative conflict.
See Jules Coleman, Methodology, in THE OXFORD HANDBOOK OF JURISPRUDENCE AND THE PHILOSOPHY OF LAW 311, 321 (Jules Coleman & Scott J. Shapiro ed., 2002). 349 Thus, he states that [l]egal systems differ from other institutionalized systems primarily by their relations to other institutionalized systems in force in the same society. RAZ, PRACTICAL REASON AND NORMS, supra note 164, at 149. 350 Note that this is just an expression, and Joes reference to hell is not meant to undermine his atheism. 351 MARMOR, POSITIVE LAW AND O BJECTIVE VALUES, supra note 231, at 34 (emphasis added).
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Second, in analyzing the nature of legal systems, Raz appeals to common knowledge and understanding in providing for the central features of a legal system. He states that I have relied on our general knowledge of the law and human society in claiming that legal systems are institutionalized systems characterized by the combination of these three conditions. 352 He makes similar statements throughout Practical Reason and Norms, 353 as well as in his analysis of authority: [a]ll I am assuming is that the service conception of authority is sound, i.e., that it correctly represents our concept of authority. 354 In analyzing the role of coercion, he declares that [i]f such a normative system has all the features of a legal system described above then it would be recognized as one by all despite its lack of sanctions. 355 It is more plausible, however, that such a methodology leads to a contrary conclusion. If our common understanding and knowledge of legal systems are of vital importance, it is difficult to believe that coercion and the sanction are not central to law. 356 It is a fact of our shared experiences of law that coercion is always present. Raz acknowledges this fact: all known legal systems are based on widespread resort to sanctions and that all of them rely ultimately on the use of force. 357 Moreover, it is likely that most law-subjects share Razs intuition that it is probably humanly impossible for a legal system to exist without sanctions and the coercive enforcement of its norms.358 Therefore, it is plausible to argue that most people do not share his further intuition and would not recognize the angelic system as a system of laws. 359 Moreover, I think there is something to be gained from the following thought experiment. Suppose Society S has two institutionalized normative systems, A and B, both making the exact claims Raz requires for a legal system. Suppose further that the first-order norms of A and B are 90% identical, and every citizen complies with all of these norms, and the remaining 10% are in direct conflict. Now suppose that A is a system backed by those with the monopolization of force, while B neither possesses enforcement mechanisms nor provides for sanctions. Also, of the norms shared by both A and B, 100% of the citizenry guides their conduct according to Bs norms. The fact that they comply with A is mere happenstance. Now imagine that of the remaining normsthe directly conflicting norms5% of the population complies with A, not by taking the internal point of view but out of fear of sanctions, and 5% complies with B. But the 5% that complies with B are sanctioned by A. They are rounded up, put on trial, and imprisoned as violators of As norms.

RAZ, PRACTICAL REASON AND NORMS, supra note 164, at at 154 (emphasis added). For example, he states [i]n enumerating these features I have relied on our general knowledge of the law and similar systems. RAZ, PRACTICAL REASON AND NORMS, supra note 164, at 129. At another point, Raz combines an assertion regarding a common understanding with a normative judgment of importance: [t]he claim that the presence of a primary organ is a defining feature of institutionalized systems is based not only on our common knowledge of typical cases of legal and similar systems but also on the crucial role such institutions, when present, play in regulating social relations. Id. at 137. See also Id. at 164 (stating that the definitional approach to natural law theory fails to explain correctly our ordinary concept of law which does allow for the possibility of laws of this objectionable kind.). 354 RAZ, ETHICS IN THE PUBLIC DOMAIN, supra note 6, at 220 (emphasis added). 355 RAZ, PRACTICAL REASON AND NORMS, supra note 164, at 159 (emphasis added). 356 I thus share Kenneth Himmas sentiment when he asserts that [i]t strikes me as a conceptual truth that legal obligation involves coercive state enforcement. Himma, Laws Claim of Legitimate Authority, supra note 277, at 309, n.42. 357 RAZ, PRACTICAL REASON AND NORMS, supra note 164, at 157-58. 358 RAZ, PRACTICAL REASON AND NORMS, supra note 164, at 158. 359 This is not an argument for a folk conception of law. Rather, it is an argument that questions the assertion regarding a shared intuition (that the sanctionless system would be recognized as a legal system by all).
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I believe that System A is the legal system while System B is something else, perhaps popular morality. And this is the case even though 0% of the citizenry guide their conduct according to As norms, while 95% guide their conduct according to System B. Raz will likely object to this line of thought, arguing instead that both A and B are legal systems. I think Raz is mistaken. Faced with this situation, I believe that most would associate System A with our concept of law, and System B with something else entirely. Although this hypothetical is not determinative, I believe that it is illuminating: we can imagine a situation in which no law-subjects guide their behavior by the laws of the system, yet we are inclined to call such a system legal, even in the face of an intra-societal system guiding the behavior of 95% of the population. As a result of these considerations, it appears that coercive superiority is essential for understanding our concept of law. Kenneth Himma thus seems correct in his assertion that a society with a working normative system in which the norms are not coercively enforced strikes me as a society that, as a Marxist might put it, has transcended law. 360 I also agree with Jeremy Waldron in his claim that the presence of coercion is indispensible to the ordinary notion of law. 361 Thus, a society of law-worshipping beings guided by a normative system that does not provide for the enforcement of its norms is unlikely to be recognized as governed by a system of laws at all. Third, Razs approach obscures an important element of law: its potential function in solving prisoners dilemmas.362 If the rationality of the angels in Razs hypothetical is such that they encounter prisoners dilemma situations (i.e., where the optimal strategy suggests defection), then coercive sanctions appear necessary to solve such problems. On the other hand, if the angels are stipulated as such that they do not encounter such situations, then it is unclear how much we can learn of a social practicelawby considering a world of angels that are so rational, or altruistic, that they have no incentive to defect. 363 Furthermore, and more importantly, the picture of law emerging from Razs hypothetical is severely distorted, for it completely neglects laws function in solving prisoners dilemmas, focusing as it does on laws function in solving coordination problems. It is plausible to argue that a major, if not an essential function of law is the provision of sanctions in furtherance of its role in solving prisoners dilemmas. Thus, we can say, following Marmor, that law plays a greater role in resolving problems of opportunism than in resolving recurrent coordination problems. 364 Raz thus fails in his attempt to sever laws link to coercion because his theory cannot account for this (potentially) important function of law. There is a fourth possible (albeit less-developed) argument that I will now put forth against Razs assertions. Raz imagines a society in which normative systems coexist and relate to each other. The distinguishing features of a legal system within such society are its claims to supremacy, comprehensiveness, and openness. The problem with this picture is that it does not adequately account for the existence of separate societies and the conceptual consequences of their existence. It is difficult to see how we can judge where one society begins and one ends without recourse to
Himma, Laws Claim of Legitimate Authority, supra note 277, at 308, n. 42. Waldron, The Concept and the Rule of Law, 43 GA.L.REV. 1, 30 (2008). 362 This objection is derived from the work of Andre Marmor. See MARMOR, POSITIVE LAW AND OBJECTIVE VALUES, supra note 231, at 42-46; MARMOR, PHILOSOPHY OF LAW, supra note 166, at 41-44. 363 MARMOR, POSITIVE LAW AND O BJECTIVE VALUES, supra note 231, at 44. 364 MARMOR, POSITIVE LAW AND O BJECTIVE VALUES, supra note 231, at 45.
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claims regarding coercive force. Razs theory regarding the distinguishing features of law does not adequately account for the fact that there are boundaries and different legal systems. A salient feature of the modern world and part of our concept of law is the fact that multiple societies exist at the same time (and these boundaries (almost) always seem to correspond to claims of coercive superiority). It is possible for private individuals (as well as legal officials) to enter and exit different legal systems. This fact accounts for why legal systems always account for outsiders, either by regulating conditions under which one may enter or by claiming authority over a particular landmass. But once law is grounded and locked to a particular territory, it necessarily affects those living outside its boundaries. Therefore, legal systems provide authoritative norms for those outside of their society. At this point, there are clashing systems of authoritative claims. Thus, on Razs account, it is necessarily true that the law claims authority over those that reject its moral legitimacy. 365 In order to remedy this situation, the law must be able to assure compliance in a form other than acceptance of its norms. As a result, some form of compulsion is required to maintain the efficacy of a substantial portion of its norms. This may be called the Christopher Columbus Problem.366 It is plausible to argue that claims regarding the monopolization of force and the ability to enforce compliance are required to account for this shared experience of legal practice. Raz may respond by arguing that coercion is not necessarily required by this situation. Perhaps we can imagine some sort of agreement between all societies regarding the methods for appropriate disposition of possible disputes. Or perhaps some other forms of social pressure are available to account for the differing points of view. At this point, however, one must take notice that this hypothetical is dangerously close to positing a sanctionless world-wide legal system, for it requires the convergence of behavior of certain officials regarding the criteria of validity for determining whether a norm ought to be applied. I believe that, if this is required to account for the Christopher Columbus Problem, such an explanation necessarily fails. We must be able to account for the existence of multiple legal systems, and any theory that requires the postulation of a world-wide sanctionless legal system seems implausible as an account of our concept of law. 7.3 Conclusion The conception of law set forth by Raz is precise and illuminating, vital to the advancement of analytic jurisprudence in the later-half of the 20th century. Central to this theory is the elucidation and clarification of the concept of institutionalized normative systems. Unfortunately, Razs preoccupation with explaining laws normativity ultimately led to his failure to capture essential intuitions of law-subjects regarding the role of coercion in legal systems. Thus, his attempt to construct a legal system out of an institutionalized normative system without reference to enforcement mechanisms fails as an account of a distinctly legal normative system. The attempts of Hart and Raz to sever the connection between law and coercion are both unsuccessful. They are, however, nevertheless helpful. By analyzing both theories and showing where they fail, we are able to obtain a better understanding of the nature of law as a social practice, to realize that coercive superiority is an essential feature for elucidating the legal. It is important to
365 366

At the very least, the officials of foreign systems do not and cannot accept such claims. Or perhaps the Problem of Other Worlds or the New-World Problem, etc.
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always remember the context of violence and physical force in which law and the legal take place. It is thus helpful to keep in mind the insightful (although not perfect) words of Robert Cover: Legal interpretation takes place in a field of pain and death. Legal interpretive acts signal and occasion the imposition of violence upon others: A judge articulates her understanding of a text, and as a result, somebody loses his freedom, his property, his children, even his life. Interpretations in law also constitute justifications for violence which has already occurred or which is about to occur. When interpreters have finished their work, they frequently leave behind victims whose lives have been torn apart by these organized, social practices of violence. Neither legal interpretation nor the violence it occasions may be properly understood apart from one another. Interpretation suggests a social construction of an interpersonal reality through language. But pain and death have quite other implications. Indeed, pain and death destroy the world that "interpretation" calls up. 367 8. RAZ AND LAWS CLAIM TO LEGITIMATE AUTHORITY: THE CAPABILITY THESIS Suppose, for the sake of argument, we accept Razs thesis that law necessarily claims legitimate authority. What happens then? What are the implications of the fact that law claims authority? According to Raz, the upshot of laws claim is that it must be the sort of thing that is capable of legitimate authority. If the claim to authority is part of the nature of law, then whatever else the law is it must be capable of possessing authority. To claim authority it must be capable of having it, it must be a system of a kind which is capable in principle of possessing the requisite moral properties of authority.368 On Razs account, because law claims legitimate authority it must be capable of possessing it. Thus, law as a type, the kind of thing the concept embodies, must be the sort of thing that is capable of possessing the moral attribute legitimate practical authority. This does not mean that law everywhere actually possesses legitimate authority, for its claim is frequently false. Rather, it means that every conceptually possible legal system is capable of possessing it. As a result, if a normative system is conceptually incapable of possessing legitimacy, then it is conceptually banned from being a legal system. It is a conceptual truth that a legal system qua legal system is capable of instantiating 369 legitimate authority. The consequences of this argument are far reaching. The combination of (1) the assertion that law necessarily claims legitimate authority, (2) the Capability Thesis, and (3) Razs account of legitimate authority, entails the Sources Thesis, according to which law is necessarily source-based,
Robert Cover, Violence and the Word, 95 YALE L.J. 1601, 1601 (1986). RAZ, ETHICS IN THE PUBLIC DOMAIN, supra note 6, at 215. 369 Kenneth Himma labels this theory the Instantiation Thesis. See generally Himma, The Instantiation Thesis and Razs Critique of Inclusive Positivism, 20 L. & PHIL. 61 (2001) (hereinafter Himma, The Instantiation Thesis).
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that is, it is conceptually true that laws existence and content can only be identified by social facts without engaging in normative reasoning. Thus, any theory according to which criteria of legal validity includes moral norms (e.g., natural law theory, inclusive legal positivism) is necessarily false. 8.1 The Sources Thesis Raz argues for the Sources Thesis by way of the Authority Thesis and the Capability Thesis, combined with a conception of legitimate authority. According to the Capability Thesis, law must be capable of bearing legitimate authority. If law must be capable of legitimate authority, it must be the sort of thing that is capable of possessing it, and thus it must be the sort of thing that possesses certain characteristics necessary for legitimate authority. Thus, Raz claims that in order to be able to claim authority, the law must at the very least come close to the target, i.e. that it must have some of the characteristics of authority. It can fail to have authority. But it can fail in certain ways only. [Thus,] there are features of authority that it must have. [there are] some necessary characteristics of law [that] are necessary characteristics of authority [T]he law must have [these characteristics] if it is to be capable of claiming authority.370 As a result, the Capability Thesis necessitates an analysis of legitimate authority. According to Razs service conception of authority, authoritative directives are meant to mediate between people and the reasons which apply to them.371 That is, practical authorities make decisions that are meant to preempt the reasons that apply to and would have been considered by the subject in her reasoning. The subject, in reasoning through a situation, will not act on her assessment of the balance of reasons. Rather, the authoritative decision replaces those reasons that she would ordinarily consider, thereby excluding them from her reasoning process. Thus, according to this thesiswhat Raz calls the Pre-emption Thesis[t]he fact that an authority requires performance of an action is a reason for its performance which is not to be added to all other relevant reasons when assessing what to do, but should replace some of them. 372 Razs service conception states not only that authorities mediate between persons and reasons, but also that it mediates between persons and the right reasons that apply to them. Raz thus develops his idea of legitimate authority after providing a conception of authority. The conditions of legitimacy are made up in two further theses in addition to the Pre-emption Thesis: the Dependence Thesis and the Normal Justification Thesis [NJT]. The Dependence Thesis requires that authorities issue directives that are based on reasons that apply to its subjects independent of the fact of the directive itself: all authoritative directives should be based on reasons which already independently apply to the subjects of the directives and are relevant to their action in the circumstances [sic] covered by the directive. 373 The NJT requires that the subject be more likely to
RAZ, ETHICS IN THE PUBLIC DOMAIN, supra note 6, at 216. RAZ, ETHICS IN THE PUBLIC DOMAIN, supra note 6, at 214. 372 RAZ, ETHICS IN THE PUBLIC DOMAIN, supra note 6, at 214. 373 Raz, THE MORALITY OF FREEDOM 47 (1986) (hereinafter RAZ, MORALITY OF FREEDOM); see also RAZ, ETHICS IN THE PUBLIC DOMAIN, supra note 6, at 214.
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comply with right reason if she follows the authoritys directives than if she acted on her own assessment of the balance of reasons: the normal way to establish that a person has authority over another person involves showing that the alleged subject is likely better to comply with reasons which apply to him (other than the alleged authoritative directives), if he accepts the directives of the alleged authority as authoritatively binding and tries to follow them, rather than by trying to follow the reasons which apply to him directly. 374 Thus, a legitimate authority issues directives that make it more likely for the subject to act according to right reason. Therefore, a legitimate authority issues directives that preempt a subjects dependent reasons, and by doing so the subject, if she treats the directives as authoritative, is more likely to act according to the reasons that apply to her independent of the directive itself. Now, because a legitimate authority preempts the dependent reasons that apply to the subject, it is necessarily true that the validity conditions of an authoritative norm cannot be evaluative. In other words, one must be able to identify an authoritative norm and determine its content (i.e., what right reason requires) without engaging in normative reasoning. This is because the whole point of an authoritative norm is to preempt normative reasoning in the first place. In essence, an authoritative norm is meant to tell you what to do. But if one must engage in moral reasoning in order to identify an authoritative norm, such person must make a determination of what right reason requires independent of the norm. Thus, the person will have to make a determination according to the dependent reasons that the authoritative norm was meant to preempt in the first place. Therefore, in order for law to possess legitimate authority, it must be identifiable and its content determinable without recourse to moral reasoning. Moreover, if law is to possess legitimate authority, it must make it more likely that the law-subject will act according to right reason than if the subject were to act according to her own judgment. But if a law requires one to evaluate what right reason requires in order to identify law or to make out its requirements, than such subject is in no better position to follow right reason that in the absence of the directive. Therefore, if law is to possess legitimate authority, it must be capable of being identified and its content determined without recourse to moral reasoning. As a result of these considerations, if law is to be capable of being legitimate and authoritative, it must be capable of being identified and its content determined without recourse to evaluative considerations. In other words, law must be identified by social facts alone. Razs Capability Thesis, therefore, is an extremely important claim with wide-ranging consequences for legal theory. It establishes the truth of the Sources Thesis, that law must be determinable by social facts alone. Without it, there is no conceptual connection between the Authority Thesis, the service conception, and the Sources Thesis. Thus, it is crucial for Razs theory that law is necessarily capable of legitimate authority. We turn now to his arguments in support of this claim.

374

RAZ, MORALITY OF FREEDOM, supra note 370, at 53; see also RAZ, ETHICS IN THE P UBLIC DOMAIN, supra note 6, at 214.
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8.2 Analysis and Criticism of the Capability Thesis Razs argument for the claim that law must be capable of legitimate authority has two essential aspects. First, Raz asserts that law not only claims legitimate authority, but it also sincerely makes such claim. 375 Second, one cannot sincerely claim legitimate authority unless one is capable of possessing it. 376 Thus, one must understand the concept in order to sincerely claim it. Therefore, because law sincerely claims legitimate authority, it must be capable of possessing it. Therefore, law must be capable of possessing legitimate authority. Regarding the first aspect of the formula, Raz asserts that it is part of the nature of law that it sincerely claims legitimate authority. Why is this so? Since the claim [that law possesses legitimate authority] is made by legal officials wherever a legal system is in force, the possibility that it is normally insincere is ruled out. It may, of course, be sometimes insincere But at the very least in the normal case the fact that the law claims authority for itself shows that it is capable of having authority.377 Thus, law sincerely claims legitimate authority because wherever there are legal systems, its officials actually claim legitimate authority. This is enough to establish that the law sincerely makes such claim. At this point, we should pause and recall the questionable arguments Raz sets forth in favor of the assertion that law necessarily claims legitimate authority. Recall that this argument took place in the context of a debate with H.L.A. Hart regarding the semantic content of judicial statements of legal obligation. Hart argues for a non-cognitivist interpretation of legal statements. Razs cognitivist account asserts that a legal official, in making statements of legal obligation, asserts moral reasons for action, thus entailing that an official either accepts or pretends to accept the legitimacy of such norms. Raz therefore relies heavily on a claim that a judge may pretend to accept the legitimacy of legal norms in making statements of legal obligation. This aspect of his argument is inadequately unaccounted for in the assertion that laws claim to legitimacy is necessarily sincere. To be sure, Raz recognizes that officials may make insincere claims. He states that officials claim to moral authority may, of course, be sometimes insincere But at the very least in the normal case the fact that the law claims authority for itself shows that it is capable of having authority and is thus sincere in this claim. 378 However, Raz fails to account for the fact that the only reason it is plausible to attribute a claim to moral obligation in the language of officials is by recognizing that officials may be and likely are often insincere. One may thus wonder why we should attribute sincerity as a conceptual truth to laws claims if it is possible (and, given the history of atrocities

RAZ, ETHICS IN THE PUBLIC DOMAIN, supra note 6, at 216. RAZ, ETHICS IN THE PUBLIC DOMAIN, supra note 6, at 216-18. 377 RAZ, ETHICS IN THE PUBLIC DOMAIN, supra note 6, at 217. It is interesting to note that Raz once again grounds a conceptual truth about the nature of officials claims in the idea that law necessarily claims legitimate authority. 378 See RAZ, ETHICS IN THE PUBLIC DOMAIN, supra note 6, at 217.
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committed according to law and the absence of political obligation, very likely 379) that officials simply pretend to accept the moral legitimacy of the systems norms. Moreover, this argument seems to be empty. It takes the following form: Law claims legitimate authority. Therefore, its legal officials claim legitimate authority. Because law claims legitimate authority, its legal officials sincerely claim legitimate authority. Therefore, laws claim to legitimate authority is sincere. Thus, Raz grounds two conclusions regarding legal officialsthat legal officials claim legitimate authority and that legal officials sincerely claim legitimate authorityin the assertion that law claims legitimate authority. But then he grounds his assertion that laws claim to legitimate authority is sincere in the claims of legal officials Therefore, Raz has not established that laws claim to legitimate authority is necessarily sincere. We should now assess the second aspect of the formula, Razs argument regarding the possibility of a conceptual mistake. According to Raz, law must be capable of legitimate authority because anyone sincerely claiming legitimate authority must be capable of possessing it. 380 He states that one cannot sincerely claim that someone who is conceptually incapable of having authority has authority if one understands the nature of ones claim and of the person of whom it is made.381 One making a sincere claim may be mistaken about whether the person actually has legitimate authority. But such person cannot make a second mistake: she cannot make such a claim about a thing that is conceptually incapable of possessing authority.382 For example, one cannot sincerely claim that a tree is a legitimate authority.383 There are thus two kinds of mistakes a person can make in claiming that someone has legitimate authority: she may make an empirical mistake (this person did not actually have legitimate authority), or a conceptual mistake (this person is conceptually incapable of possessing legitimate authority). According to Raz, in order to make a sincere claim to authority, one must first grasp the concept and understand how the claim relates to the person of whom it is made.384 Why is this so? Why cannot one be conceptually confused in making claims of legitimate authority? Raz poses and answers this question himself: Why cannot legal officials and institutions be conceptually confused? One answer is that while they can be occasionally they cannot be systematically confused. For given the centrality of legal institutions in our structures of authority, their claims and conceptions are formed by and contribute to our concept of authority. It is what it is in part as a result of the claims and conceptions of legal institutions.

Less dramatically, one need look no further than the confirmation hearings of potential federal judges for an example of legal officials making insincere claims. And these are the systematic claims of judges, who Raz claims are the authentic representatives, the mouthpiece of the law. Raz, Hart on Moral Rights and Legal Duties, supra note 233, at 131. 380 RAZ, ETHICS IN THE PUBLIC DOMAIN, supra note 6, at 217-18 381 RAZ, ETHICS IN THE PUBLIC DOMAIN, supra note 6, at 217. 382 RAZ, ETHICS IN THE PUBLIC DOMAIN, supra note 6, at 217-18. 383 See RAZ, ETHICS IN THE PUBLIC DOMAIN, supra note 6, at 217; see also Himma, The Instantiation Thesis, supra note 367, at 66-69 (stating that it makes no sense to assert that a banana split is a legitimate authority). 384 RAZ, ETHICS IN THE PUBLIC DOMAIN, supra note 6, at 217-18.
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This answer applies where the legal institutions themselves employ the concept of authority. 385 According to Raz, we (in this society) share a concept of authority, and legal institutions are central in our understanding of this concept. He argues that legal institutions substantively affect our conception of authority. As a result, these institutions cannot be conceptually confused regarding the claims they make. 386 I do not find this argument persuasive. Even if these claims are central to our understanding of authority, it does not follow that such claims insure that the institutions are capable of legitimate authority. It is possible that the relation between legal officials and the concept of legitimacy is such that we know what is not capable of legitimate authority. Perhaps our reaction is simply that whatever else I can say about legitimate authority, this is not and cannot be it. A major problem with Razs assertion is that he assumes the practices of legal officials and institutions are intimately connected to what is morally legitimate. In other words, the claims and actions of legal officials, although not always legitimate, partially constitute what is. In light of philosophical anarchism, however, there is no reason to assume this. I have shown that there is no political obligation and never has been. Most claims by legal officials throughout history have been wrong, confused, and morally illegitimate. Moreover, legitimacy is a moral claim, and it seems to me irrelevant to normative assessment whether institutions necessarily make certain moral claims. 387 Ronald Dworkin makes a similar point: even if all officials do believe that laws must necessarily be capable of imposing moral obligations and therefore capable of legitimate authority, this opinion may show simply that they are mistaken about the concept they employ. People often make sincere claims that rest on conceptual misunderstandings. 388 Perhaps slave owners or monarchs necessarily and sincerely claim legitimate authority. It does not follow from such claims that the concept slave owner or monarch must be something capable of legitimate authority.389 8.3 Conclusion The fact of the matter is political power may be wielded in many ways and take many forms. Law is only one of them. The problem with most legal philosophy is that it comes from a tradition steeped
RAZ, ETHICS IN THE PUBLIC DOMAIN, supra note 6, at 217. For a clear explication of Razs (apparently) conventionalist approach to the concept of legitimate authority, see Himma, The Instantiation Thesis, supra note 367, at 71-79. 387 In addition, as argued by Himma, to the extent that Razs argument rests on a conventionalist understanding of authority, he has not provided the kind of empirical support necessary to undermine those who disagree with his conception of legitimacy. 388 DWORKIN, JUSTICE IN ROBES, supra note 277, at 201. 389 Moreover, and as noted by Himma, John Mackies Error Theory asserts that almost everyone is conceptually confused regarding ethical claims. See Himma, The Instantiation Thesis, supra note 367, at 69-70; see generally J.L. MACKIE, ETHICS: INVENTING RIGHT AND WRONG (1977). According to Mackie, although most people in making moral judgments implicitly claim to be pointing to something objectively prescriptive, these claims are all false. Id. at 35. It seems that this is a possible state of affairs, whether or not Mackie is correct.
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in law and the belief that law is inherently justificatory. That is, there is a belief or intuition that political obligation is somehow intimately connected to ruling through law. But this is a mistake. As I have shown, there is no political obligation. Thus, there is no reason to believe that political obligation, if it can exist, must be connected to ruling through law. As a result, there is no reason to believe that law is the type of thing that must be capable of producing legitimate moral authority. 9. CONCLUSION The central claim of my paper is that approaching legal philosophy through the lens of philosophical anarchism alters the jurisprudential landscape. In the previous four sections, I applied this methodological claim to four different issues in the philosophy of law, concluding that previouslyheld beliefs are misguided. First, I analyzed and rejected a strong guidance conception of law, arguing that philosophical anarchism requires us to recognize the potential ideological functions of legal systems. It also requires us to reject idealistic methodological approaches to elucidating the nature of law. Second, I rejected the Razian assertion that law necessarily claims legitimate authority. I showed that the essential nature of law is not prescriptive; whether laws or legal systems seek to actually guide conduct is a contingent matter. Rather, and thirdly, the essential nature of law is that there is an institutionalized system of norms (prescriptive or imperative) that is intimately connected to the institutions garnering coercive superiority with respect to subjects within a certain domain. Again, the rules may be prescriptive and the institutions may claim legitimate authority. But these are contingent features not necessary for the existence of law. Fourth and finally, I showed that philosophical anarchism requires us to reject Razs claim that law must be the sort of thing capable of legitimate authority. As a result of these discussions, we must recognize the importance of philosophical anarchism in the philosophical exploration and elucidation of the nature of law. REFERENCES
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AND RIGHTS

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