54. Normally. Of course, there may be instances where our reasoning can impact the reasons we have, say, because we tend to perform certain tasks better when we`ve thought about it in a certain way or something like that. But these reasons are only derived (in the sense I explain later in Section V) and will not do the kind of work that the legal rationalist needs. It is doubtful whether such considerations are convincing. But things are even worse, because it is in any case clear that many people have not done anything that can be called consent. Even oaths of office and naturalizations freely given do not generally imply a general obligation to comply with the law (Greenawalt 1987). Other legal acts are interpreted in an even less plausible way. Plato`s Krito introduces the idea that continuous residence is considered a kind of tacit consent to obedience, and Locke extends this to any enjoyment of the benefits of government – “would hardly be free on the road” (§ 199). Whatever the moral relevance of these facts, they do not count as consent, because people do these things without imagining that they are creating obligations, and they do so in circumstances where they have no viable alternative. Other unpromising actions, such as voting or participating in politics, fare no better: many do not vote, and few see it as taking office.
Perhaps we can say that if people agree and if the appropriate conditions of legitimacy are met, they have a duty to obey the law. This is obviously far from justifying the claims of the law. 10. “Every legal system claims authority”; Raz, Authority, op. cit. Cit. Note 1, p.v. What is the relationship between them? Some argue that obligation comes first: “[T]he obligation is not a sufficient condition for coercion, it is close to a necessary condition. A State may, in certain special circumstances, have good reason to force those who are not obliged to obey. But no general policy of maintaining steel law could be justified if the law were not generally a source of real obligations” (Dworkin 1986, 191). The idea is that simple justice on one`s side is an insufficient reason to force others; There must also be a special title that derives from the moral status of the law. (Contrast, for example, with Locke`s view that everyone has “executive power by natural law,” at least outside political society (§13).) So what are the legal obligations? These are legal requirements that legal entities must comply with.
A mandatory act or omission is something that the law does not make optional. Since people can clearly violate their legal obligations, “non-optional” does not mean they are physically forced to comply, and the law does not leave them without a suitable alternative. On the contrary, people often calculate whether or not they have to fulfill their legal obligations. Could it then be that obligations are simply important reasons, even if they are sometimes neglected or outdated? This cannot be a sufficient condition: high courts have important reasons not to go back too often, but no legal obligation to refrain from doing so. It is also not necessary: you have an obligation, but only a trivial reason, not to walk on someone`s lawn without your consent. If their content does not take into account the stringency of the obligations, what happens then? A historically important theory, although now largely outdated, explained it in relation to penalties. Following Hobbes and Bentham, the English jurist John Austin says that a legal obligation means to submit, do or abstain from a sovereign order, where an order requires an expression of will, as well as an associated risk, however small, of suffering an evil for non-compliance. “When I speak directly of the chance to bring evil upon myself, or (changing the expression) responsibility or odious in the face of evil, I use the term duty or the term obligation.” (Austin, 1832, p. 18). Others saw an indirect link between duty and punishment. Hans Kelsen is of the opinion that what is normally considered the content of a legal obligation is in fact only part of a condition for triggering the mandatory norm ordering or authorizing officials to impose a sanction: “[A] norm: `Thou shalt not kill` is superfluous if a norm is valid: `He who murders shall be punished`” (Kelsen 1967, 55).
And so: “The legal obligation is not or not immediately the behavior that should be. Only the act of coercion, which acts as a sanction, should be” (Kelsen 1967, 119). Others claim it regresses the relationship. First, it is doubtful that one can be forced to obey an illegitimate regime. As Rawls puts it, “appropriation or even consent to manifestly unjust institutions does not create obligations” (Rawls 1971, 343; but cf. Simmons 1979, 78-79). If so, at least some conditions of legitimacy precede a commitment to obedience. Second, there is good reason to believe that we would have no obligation to comply if the law did not already have the right to maintain its requirements “with steel.” A legal system that cannot exert justified coercion cannot guarantee to law-abiding people that recalcitrants will not regard them as fools. Without being able to solve this insurance problem, it would be unfair to impose obligations on them and unfair to demand their obedience. This proposal is based on the well-known idea that effectiveness is a necessary, but certainly not sufficient, condition for a justified authority. (See Kelsen 1967, 46-50; cf. Finnis 1979, 250) This view is anticipated in both Hobbes and Locke, but its most influential contemporary version is due to Joseph Raz (1977; 1990, 35-84).
It argues that the obligations are categorical grounds for action, which are also protected by exclusionary grounds of non-action for some of the competing reasons. Commitments exclude some contrary reasons – usually at least for reasons of expediency and ordinary preference – but they generally do not exclude all of them: a reason for exclusion is not necessarily a conclusive reason. The severity of an obligation therefore does not derive from its weight or practical characteristics, but from the fact that it supports the necessary action by specific normative means and isolates it from the general competition of grounds. Or at least that`s what obligations do when they make the claim, that is, when they are binding. The theory does not assume that all legal obligations are actually morally binding, but it does assume that the legal system formulates them as if they were – a consequence that some have doubted.