CHAPTER 13 LAW AND OBLIGATIONS LESLIE GREEN Lawisa realm of obligation and duty? Iemayrequireusto ght wats, effin fom ass to pay taxes to esp agreements to take cet eporerimes, to protect the environment, and to take its judgments a binding and Gal Creating, varying, and enforcing such obligations not the only busines ofa. It aso secures rights con- ferspowers, defines terms, andso forth. Whileitwouldbe wrongto suggestthat these ‘can somehow be reduced to obligations, it is none the less true that they can only be fully understood with reference to them. To grasp the significance ofthe power to contrac, for example, one mast understand that it giverise to dates to perform of pay damages To understand the right oe speech, one must ee that t grounds in others a duty not to siknce. To understand the definition ofa ‘minor one must understand the obligations from which sich persons are exempt, and those they are poweresto creator change. ‘The obligatory character oflawiscental for another eason Legalobligations may confit, not merely with narrow slt-itees, bu with any other important obig- ations. The duty of miitary sevice may confit withthe duty to cat for one’s as ily thedutyto send one’s dildren school wth ones rlgious duty to promote the futh.Thelaw’sown atitude tosuch conflctssclear:itsaqurementsareto take pr oriy, except where it permits otherwise, But should weaccede to this peremptory attitude, and on what grounds? Obviously enough, particular leal obligations may require things that on thir merits ought to be done anya they are demanded by 1moralityeffcency, courtesy, andso forth, Bu some want to add another argument. They sy that,in addition to any such considerations, we dso havea moral obligation to doany and all ofthese things becuse heya required bylaw a least when the * For present purposes ue these terms interchangeably LESLIEGREEN 55 legal system is reasonably just. That is, they appeal to what the western philosophical tradition calls a doctrine of ‘political obligation’ Whether such a reason exist is of both philosophical and practical importance, for the law’s own view about the con- tent and exigency of its obligations is enforced, as Locke said, by any penalties up to and including death. Nowhere are the stakes higher. The tradition was confident of the existence of politcal obligation and doubtful ‘only about which of two main grounds justify it. Voluntarist theories find their most influential expression in the writings of John Locke, who holds that we have duty to ‘obey the aw when, but only when, we consent to its rule. The competing approach, defended by Locke's critic David Hume, maintains that our voluntary acts are here irrelevant, and that the obligation to obey is suficient justified by the value of gov- ‘ernment under law, Of course, these wo alternatives were not universally endorsed, ‘but until recently serious doubts were entertained only by anarchists and others who reject the rule oflaw. The contemporary emergence, and perhaps even dominance, of third position is therefore of great interest. A number of legal and political philo- sophers who do value government under law have become sceptical, and reject both the Lockean and Humean traditions in favour of the view that there simply is no general obligation to obey the law as traditionally conceived.? Here, I explore the {grounds of such scepticism and gauge its implications for legal theory. 1 OBLIGATION AND THE Nature OF Law ‘The ordinary concept of law comes to us, as Donald Regan puts it, wearing a ‘halo’? ‘on prominent display in the familiar contrast between the rule of man nd therrule of law, Perhaps then there isan intimate connection between the obligation-imposing character of aw and is positive valence? Could the explanation for the halo simply lie in the fact that law's requirements are also morally obligatory? If so, this might sug- ‘gest constraint on legal theory. Philip Soper once held that, ‘actual obligation is one of the phenomena of legal systems for which theory must account’* And Ronald 2 SeeM BE Smith's ThereaPrima Facie Obligation to Obey the Law? YaleLaw Jour (0973), 930-76 | Ras, The Authority of Law (Osford:Catendon Press 3973) A]. Simone, Mora Prinpss ‘and Politin! Obligations (Princeton, Nh: Princeton University Press 3979); J. Feinberg, “Civil Disobedience in the Modern Word’ Homantes in Scien 2 (2979), 37-64 R. Satorus, ‘Plical ‘Authority nd Plitcl Obligation, Virginia Law Revie 67a), say L- Gen, The hart the ‘State (Orford: Clarendon Press 98). > Donald H, Regan, Law's Hal ia Jules Coleman and Elen Frankel Paul (ed), Piowophyand Law (Oxford: Blackwell 95)).35-30- “Philp Soper, A Theory Law (Cambridge, Mass: Harvard Univesity Press 1984, 4. Soper mod Ses his view in ‘Law's Normative Claims’ in Robert P. Gorge fe.) The Autonomy of La: Ess on Lega Pasian Oxford Clarendon Pres 3996), 285-47.516 LAW AND opLIGatioNs Dworkin sill maintains that, ‘A conception of law must explain how what it takes to be law provides a general justification forthe exercise of coercive power by the state, 8 justification that holds except in special cases when some competing argument is specially powerful? From there it may seem a short step to Lon Fuller's conclusion that law cannot be what the positivist think itis, for how could there be ‘an amoral datum called law; which has the peculiar quality of creating moral duty to obey it? 1n fact such views misrepresent the constraint thatthe obligatory character of law places on legal theory, for they lide three different questions. First, how should we understand the normatvity of law—the pervasive use of normative terms, including ‘obligation’ and ‘duty; in stating and describing the law? Secondly, what could give ‘the law legitimacy—what might justify its rule, including its ultimate use of coercive force? And finally, the question of obligation: should the law’s subjects take its requirements as morally binding? Though often confused, orat any rate fused, these are different and partly independent problems for jurisprudence. 1.1 Normativity A theory of law should explain the character and meaning of statements like the fol- lowing: “The statutes of Canada must be published in French and English, Citizens ‘of Georgia have an obligation to abstain from sodomy’ 3ut to say that these are sim- ply moral obligations isto say both too much and too little. Is too much since itis notorious that people make such statements without taking the requirements in question as stating any valid moral reason and even while regarding them as quite ‘wrong. Itistoo litte, because it assumes rather than explains what it isto havea moral “obligation inthe first place, ‘Tohavean obligation is to havea reason to actor to refrain from acting —a reason with which one is in some sense bound to conform. But in what sense? The exigency ‘of legal obligations is plainly not to be found in theit weight or importance: itis as certain that T havea legal obligation not to destroy your junk mail misdelivered to me as itis that this isa trivial matter. On the other hand, courts have extremely weighty reasons not to introduce conflicting rules into the lav, yet they have no legal obliga- tion to refrain from doing so. Obligations thus display what H. L. A. Hart called “content- independence’ their existence does not depend on the nature or significance of the actions they requite or prohibit.” But if the exigency of obligations is not a § Ronald Dworkin, Lan’s Empire (Cambridge, Mass: Harvard University Pres, 1986), 9. * Lon Flies, "Posvism and Fdality to Lave—A Reply to Profesor Hart, Haren Lr Review,71 (2958), 630 rp in Joel Feiabergand Jules Colernan eds), Phiowopiy o Lav th ed (Belmonte Cali Wadsworth, 2000), 300 | * ForHart first statement ofthiside, ee ‘Legal and Moral Obligation in A. 1 Melden (ed), Ess 'n Moral Piesophy (Sete University of Washington Pres 1938), 82-107 Hisposton iter sen In Commands and Authoritative Legal Reasons i his Esty on Benham (Onur: Clarendon Preox 1982). 243-68 LESLIEGREEN 517 fanction of their content, then what sit? Three theories have been especially infla- ential On sanction-based accounts, to be under an obligation is for it to be likely, or ordered, or justified, that one wil suffer sanction for actingor filing to actin acer- tain way.t Advanced by Hobbes, Bentham, Austin, JS. Mill, O. W, Holmes and Kelsen, sanction theories are now nearly friendless. The difficulties are well known.? First all versions depend on an implausibly wide notion ofa sanction, including not ‘only punishments but also civil remedies as such compensation and even mere nl- lity. Secondly; egal dties do not leave itt the option ofthe subject whether to com- ply. "You have an obligetion not to steal’ cannot merely mean ‘Ifyou steal you willbe punished; for judges are not indifferent between people, on the one hand, stealing and beingjsiled and on the other hand notstealing atall. Thirdly, legal duties are not, ‘bounded by the probability of detection and we refer to obligations when itis certain, that no sanction will follow and even when there is no provision for sanction of any kkind,as when we ay that the highest courtshavea duty to apply he law. Finally, while sanctions do provide reasons for acting, they are reasons of the wrong kind, The rea- son for avoiding a sanction isthe disvalue ofthe sanction discounted by the prob- ability of suffering it. But this variable quantity depends on both the content of the sanction and on the goals of the agent, whereas duties are independent ofboth. Such considerations led Hart to suggest that while sanctions might figure in a partial analysis of ‘being obliged’ to do something, they cannot explain ‘having an. obligor Sancions ae important bee they ate one af the mos date expressions of law’s power, its most important technique of reinforcing the duties it imposes—not because they explain what itis to have a duty. Instead, Hart defends a rule-based theory according to which we have obligations only when we are subject to social practice-rules of certain sort. A practice rule exists only when there is regu- laity ofbehavious, deviations from which at criticized, such eiticism regarded as legitimate, and atleast some people treat the regularity asa standard for guidingand. appraisingbehaviout and thus use characteristcally normative language in referring to it, Notall practice rules are obligation-imposing, however; most are just ordinary customs and conventions. Hart claims that obligations require the presence of three further features: the required behaviour isenforcedby serious orinsstent pressure to ‘conforms itis believed important to social life or to some valued aspect of it; and it may conflict withthe interests and goal ofthe subject. Since these beliefs and +4 hep dicason ofthese vrs, nd objtons hee, P.M. S. Hake, “Santon ‘hereof Dati A WB Spon (el). Oxford Bay urate Sond Sr Ox Crendon Pes 733-70. For Hat's epi take ce bis‘Legl Duty aed Obligation sin Ess on Ben However ts not pool to bringevething Hat sot ition nth cny ino 8 content relatos with is ther wings Seen parca is pling endorsement of ome. {hinge a encton theory tp 0 see Hs Han, The Coo Low, 2nd PA Bullch and) Ra (Oxford: harmon Press. 95) 2-49 8-9 bid pp.518 LAW AND oBLiGations practices may have as their objects any standards of conduct whatever, the content- independent character of obligations i preserved. The practice theory thus proposes 4 general account oflegal, moral and conventional obligations: what tisfor an act to be obligatory isthe same in each context, though the criteria that determine which acts are obligatory vary, ‘While the practice theory avoids most ofthe pitfalls cf sanction-based accounts, in the end no more acceptable." People speak of obligations when they are well aware that there are no relevant social practices, as might a lone vegetarian in a meat eating society. The practice conditions may be satsled in cases where there is no obligation but only generally applicable reasons, as when victims are regularly urged to yield their wallets toa mugger. Most important, the fact that there isan obligation {0 isa reason for g-ing; yet ouside certain special casts the fact that theresa gen- «ral practice of ¢-ing is not a reason for doing as that practice requires. Hart’ last ‘writings therefore restrict the scope of the practice theory to the realm of conven tional obligations, where the fact of common practice isa non-redundant part of the reason for conforming tit, But no al legal obligations an be understood as merely conventional—many reinforce behaviour that would be mandatory even in the absence of customary conformity, such asthe obligation to abstain from rape."? ‘Amore plausible account is justfication-based. On ths view, obligations are char- acterized by the sort of justifications that they purport tooffer:content-independent and binding reasons for action. Their bindingness combines two features. First, obligations are ategoricalin force; they apply tothe norm-subject independently of his own interests or goals. In view of the use Kantians make ofthis notion, itis worth emphasizing that there is nothing intrinsically moral in the idea of a categorical rea- son for acting: ‘Shut up isa categorical imperative. The second feature is noticed by Hobbes and Locke in their discussions of the nature of political authority.'> Obligations equire that the subject set aside his own view ofthe merits of acing and comply none the less. The best elaborated and most persuasive account of this feature isducto Joseph Raz. Obligations ae categorical reasonsthat are protected by exchi- sionary reasons not to act on some ofthe competing reasons othe contrary. They are ‘reasons for acting, together with ‘second-order’ reasons not to act on some other Xs Ronald Dworkin, Taking Rights Sry (Cambedge, Mass Harvard University Pres. 978), 4-38 Joseph Ru, Practica Reson and Noms ed. (Pineton: PincetonUaiventy Poss enor 12 Even ithrespectto conventional obligations, the practice theory utimatl fal forconventional_ ‘ues provide only ordinary eeasons for acting not binding one. lexplre vars spectator the flowing papers ‘Lave, Co-ordination, andthe Common Good’, jr Joma ef egal Stns (i98),299-sa4‘Anthortyand Convention Philosophical Quarters (985), sa9-46 an Postings {nd Conventionalism’, Canadian Journal ofLaw and urgpadenc. 131989), 9 8 Thomas Hobbes, Leviathan dC, Maepherion Harmondserth: Peng 968), pt lsc 303 Joh Lack Two Tries of Government. P.Lslet (Cambridge: Cambridge Unie Pro, 1963} 836, See Joseph Ra, Promises and Obligations in P. M.S. Hacker an. Ra. (ed), Law, Morality and Seven: Esys in Hono of HL A Hart (Onfrd: Clarendon Pres 177), 0-ah an! hel Practice Reason and Norms 35-44 LESLIEGREEN 5i9 reasons. Two cautions should be noticed. First, the excluded reasons must be pre- ssurptively valids if a certain fact in itself provides no justification for doing some- thin, then one needs no special reason not to act ont, Exclasion rules in the lw of ‘evidence, for example, direct one not to rely on certain considerations that would otherwise be relevant; one does not appeal to them to explain why we should not Dworkin, Law's Empire, 191. esi >» Onthecapciy ofan ocean sno wrongs se Tony Hone Law Ox fnnaof Legal Seder I95) 829M % ‘ThomasD, Senor, WhatifThercareNo " es There are No Falta Obligations? Phibsphyand Publis vo 5 Mosh 2g, TreDependenceof Moratyon LESLIBGREEN 523 13 Justification Law's claimsare therefore substantial and invite mora scrutiny. Unless the obligation ‘of obedience is supposed tobe primitive," we should be able to ground itn some familiar moral principles. Bu law isnot the only socal institution that claims obedi- ‘ence, and the plausibility ofits claims cannot be assessed without considering further its nature. Are we therefore dependent on an adequate theory of the nature of law before we can assess the validity of a duty to obey? Soper once held that ‘the idea about what law is already entails the conclusion about the obligation to obey and, as we have seen, Fuller thinks that an “amoral datum’ cannot create duty to obey. That, however, is too simple. Even iflaw is aus- terely a matter of fact, that tells us nothing about whether there is an obligation to ‘obey the law as determined by such facts, After all, whether or not someone has ‘promised, and what he has promised to do, are also matters of fact determined by ‘what he has said and done and by the conventions about such words and commit- ‘ments, But promises generate obligations to perform. There is no reason why the same might not be true of law as postivists conceive ofit. Contrariwise, the existence ‘or content oflaw may depend on morality and yet this might not entail general duty of obedience. Even ifthere isa necessary connection between law and morality, that might only mean that every true legal system is necessarily legitimate ot, more weakly, has systemic value. None the less, the Fuller-Soper position points to an important truth. Although political obligation is not entailed by law's nature, constrained by it. As we have already seen, recognizing an obligation of obedience involves mote than paying careful attention to law, or treating itas food for thought, cor as valuable advice. But we cannot know whether there is a duty to obey the law ‘unless we know something about law and the role t plays in human life. So arent we backin Soper’ bind? Not exactly, for there are significant featuresthatare recognized byany plausible theory of the nature oflav, but which stop shortof determiningsuch atheory. First, lw is institutionalize itis the product not only of human thought and action and in that sense a social construction; it is more significantly the product of institutionalized thought and action. Nothing is law that is notin some way con- nected with the activities of institutions such as legislatures, courts, administrators, police, and so on. Neither ideal social norms nor general social customs, but only an institutionally relevant subset of these, count as law. Institutionalzation is matter of degree; the highly centralized and differentiated institutions of modern. legal systems are but one possibilty. Nor need we suppose that law is exhausted by 5 E,F. Cari maintain, 'allattempts to explain thi recognition of political obligtion in terms of somthing else led o confusion, elcontadiction, and the evident misdescription of facts which we ‘annot dou. Morals and Polis Oxford Clarendon Press 93) 2 But even absicobligtion canbe ‘pon-reductvey illuminated, 9 Soper, Theory ofan, 8-0524_LAW AND OBLIGATIONS institutional facts, Those are matters in dispute amonglegal theories—Hart says that law is just those standards that courts are bound to apply in accord with their own customary practicess Dworkin holds that it includes any moral reason that is good ‘ground fora court’s decision, But on the general idea ofthe institutional character of Jaw positivists and modern natural lawyers are in agreement, Secondly law has a wide scope. itis significant part af our concept of law that itis notlimited tothe affairs ofa small group, suchas club,nordoesitonly attend to one ‘restricted domain of life, such as baseball, Law governs high-stakes, open-ended. domains, and is capable of regulating the affairs not on'y of small ‘fce-to-face’soci- ties but large, dispersed, loosely structured organizations of many millions of people. Whether law chooses to exercise as much authority as it can is another ques- tion. Most modern legal systems, and all legitimate ones, are legally limited, but we should have no illusions about their power or importance: they not only claim power to regulate but actually eegulate the most vital interests ofall within ther territory. ‘Thirdly, law is morally allible** Itmay require behaviour that isiniquitous, such as fighting in immoral wars. may proscribe behaviour thts innocent, suchas homo- sexual activity. Itmay failto impose obligations that we ll should bear, such asa duty. of easy rescue, And it may do morally desirable things, such as taxation for public ‘goods, in unjust ways. Morality always stands in appraisal of law, and not the other ‘way around, Again, thisis neutral between positivism and natural law. No one claims ‘hat aw is morally infallible, and even ifthereis some necessary connection between lawand morality, thisis notit. The explanation for the falibilty oflaw may take com~ peting forms, but the general idea is another of the deepest features of law for which any competent theory must account. ‘These three features do not specify a theory oflaw—they do not even suffice to dis- tinguish law from all other forms of social order. They are jointly compatible with the ‘most stringent legal positivism or the most capacious natural law. But together with the analysis of obligations, they help anchor an account of allegiance to law and ‘elease us from Soper sbind. From the fact that we are considering a moral obligation ofobedience,it follows that weare seckingabindingand content-independent moral reason for compliance, one that is universal inthe sense of coveringall subjects of the law and all occasions on which their compliance is requrred. From the fact that itis ‘obedience to law, we know that these requirements are broad-ranging, morally fall- ‘ble, and are connected with institutions that are in someway distinct from the ordi- nary flow of socal life. One last constraint follows from the doctrine of legitimacy. Legitimacy is.a necessary condition for obligation, and legitimacy isa matter of both, the scope and the location of authority, Although Swedish law may be sufficiently legitimate, Canadians have no obligation to obey it—not even if it should address itself to them. The obligation of obedience is thus understood to bind individuals to 2» HLL A Hart, Law Liberty and Moray Stanford, Calif: Stanford Univesity Pres196)),3-4sand avi Lyons, Eis and the Rue of aw (Cambridge: Cambridge Unies Pes 185) ce, LESLIE GREEN 525 1 particular legal system, the one of which they are citizens or subjects.** ‘piclarysiticonen called does ot pesuppone or entathatrexons fr obe- dlience are agent-relativen character; it maybe a consequence ofthe local urgency oF eficacyofagent-neul considerations forexample the dat oeneiens ors ice, Patty ses reflect the omon undstaning hat thesis spec relationship between individuals and ther legal systems, one that wil tl incase o conflict between the requirements oftheir own system and any other, How can law ‘which isinstitutionalized, wide-ranging, and morally faible generate universal, par- ticular, and binding reasons to act? That isthe problem of political obligation. As we shall see, itisa very difficult problem. 2 VOLUNTARY OBLIGATIONS 241 Consent , ideal obligation Adin tame of Ween olla thee harp jus ony th onset fhe ove In Hotes, Lock, Rouen, and Kant inl many arts on hin thi ob tently ‘orm fal pean he ees Prom ot oats and veal lif th enero ns cre meaning sors isnocol lum sperma tie wih theron ofehang inthe hs de por orabes of antes andes in par bec i mownta be done wih hat inenton tinge os atonal falta nnn ca come for hears to what een compte alan coi ten shes Ths the coe of Lois argent nthe Srnd Treat I te re promosay powers wens hen we canner ldo heave Efe them: On ay Pasblvew the cap one one sch power Ths ole gvcinnent ae avs Megat Lakes rumen segs rot pc worry herrea aher bounds ot ama pow tm ling dating conn uch smite, ccna Pty because hs awe sap and oral ie, the poe obey mye se For dcoion > jisofcouse posbleto oe parila elton to more thn oe el ste. Fx and ce ofthe pray requlement sex sims Mtl Prins and Pil Oberon, cen Th thoy te Sata 3 Frhepl con othe volar won se ak iy, Wi ond Paltz ginny (Cbg Mas HarrdUnierty Pos 92) & CE Raz, The Morality of Freedom (Oxford: Clarendon Press, 1986). 80-2526 LAW AND OBLIGATIONS fatally open-ended and, ifirrevocable, hazardous. Perhaps then its validity is limited to situations with further safeguards, including periodic raffirmations of consent, if not Renan’s plebiscite de tous les jours. And what should we say about duress? It is, notorious that loyalty oaths tend to proliferate in the very circumstances in which they are invalid, The extorted professions of loyalty in sewenteenth-century England ‘rin the McCarthy yearsin the United States bound no one, and the same is true now of those demanded of refugee immigrants or military conscripts. Some have argued, following Hume, that such problems are endemic because people rarely have any choice butto live under theirlaw. While that may bea sound objection to theidea that continued residence itself counts as consent, it does not show that express consent never binds. As Harry Beran argues, those who freely assume full membership of their political community when there isa right to exit and secession and space for internal dissidents cannot be said to be forced to remain. And we must not conflate ‘the correct idea that most people have no effective choice but to stay in their country with the suggestion that they have no effective choice but to acknowledge an obliga tion to obey it. Mere compliance with the law is normally sulficient to avoid coercive pressure. ‘To show that political consent is not inevitably defeated does not, however, show that itis valid. We also need to explain why we should wan:a power to bind ourselves to government in the first place. Hume challenges the Lackean to account for the ‘moral obligation to obey the law: Your answer's, Because we shold keep our word (...) I say, you find yourself embarrassed, when itis asked, why are we bound to keep our word? Nor can you give ay answer, but what ‘would, immediately, without any cienit,have accounted or ou obligation to allegiance." Contrary to what Hume here implies, however, Locke does have a non-redundant theory about this.¥Itis not conspicuous inthe Second Trearise because itis not nec essary there, where the central question is about th limits of any possible promise, and not the justification for keeping promises in general. But Hume’s objection is of interest for what it reveals about his view of consent, He thinks promising is solely ‘matter of ‘public utility, by which he means the ‘apparent interests and necessities of hhuman society’#® We must keep our promises only because promising is an instru- ‘mentally useful institution; but in complex societies the very same is true of govern- ‘ment, which cannot exist without the exact obedience’ ofits subjects? We therefore havea duty to obey whether or not we have consented, Both of these artificial virtues ‘stand precisely on the same foundation’ and ‘being of lke force and authority, we gain nothing by resolving the one into the other’ 2 Harry Beran, The Con Theory of Political Obligation (London: Cioom Helm 9) ® David Hume, ‘Ofthe Osgial Contract ia says, Moral Palit and Literyy, ed. EF. Miler (indianapolis: Liberty Cases. 198), 481 2 See Eston the Law of Nature, ed. W. von Leyden (Oxford Clarendon Press 95813 4 Hume, ‘Original Contract, 4 “Hume, Treatie of Human Notre 48 LESLIE GREEN 527 ‘Though this argument scems to have persuaded many, itis fundamentally flawed. Hiume’s quarrel witha rationalistc meta-ethic here obstructs his understanding of the substantive morality. To defend the necessity of consent one does not need to show that promising s natural or primary, but only thatit has special valuein the cir- cumstances. The fact that two normative practices have ultimate foundations of the same type does not prove that one is not necessary forthe validity ofthe other, any ‘more than the fat that two rooms rest on the foundations of one house proves that one ean enter the second without passing through the fist. In defending consent, theorists appeal to two different sorts of considerations. First there are instrumental reasons for wanting deliberate control over our duties. When their incidence depends on the will of those who beat them, there i generally less chance that they will be harmed. That is admittedly not the only way to protect subjects, but it isa good one when the stakes ar as high as they rein the case of allegiance to law. Itis {rue that the requirement of egitimacy also does some of this work—however lgit- imate governments re stillimperfeet governments, and consent enables individuals to limit their commitments if they need to. It also empowers those who wish to change their allegiance from one legitimate government to another to do so forth- ‘with, without awaiting the slow growth of other sorts of moral tes ‘But this is not the whole story. Such instrumental considerations do not explain {heroleof promising inall contexts. To requir tha people can marry only with theit ‘own consent, for example, obviously bas instrumental benefits; but the exchange of promises has a further role as constitutive ofa valued relationship and as a solemn ‘expression of ts beginning. Hume's instrumentalism conceals these functions, but pethaps we se them at work in Locke's suggestion that while almost any receipt of law's benefits will count as “tact” consent to obey, only actual explicit consent will ‘make people ‘members’ ofa commonvealth.? ‘Those are the main reasons or thinking tha consent, ifgiven, could bind. But isit given Itisby many officials by Voluntary immigrants, and by others in special cases, but many do nothing that can properly be counted as consent. The career of consent theoryin the fce ofits evident failure of universality isahistory ofits extension, dilu- tion, and ultimately subversion. Consider only the two most famous salvage attempts to produce ‘tacit’ consent on the part of those wio apparently do no such thing, Continued residence was suggested already in the Crito and famously and fatally elaborated by Locke: very man that hath any Postesion or Enjoyment, of any pat of the Dominions of any Government, doth thereby give is Tact Consent...) whether thishis Possession be of Land, to hrs and his Heit for ever, oF a Lodging only fora Week, or whether itbe barely traveling frcely onthe Highway. Lace, Two Treats I, «123: 39. For commentary se A. John Simmons, *Denisons" and “Aliens: Locke's Problem of Paltical Consent Soil Theory and Practice, 24 (1098), 161-82 9 Locke, Two Treatises 5.19393.528 _LAW AND OBLIGATIONS This fails because performative consent is tied to certain conventions: it must be recognized that ¢-ing in circumstances C counts as consenting, and the individual ‘must g intentionally or atleast knowingly invoke that convention. One cannot con- sent by accident. Owning property or benefiting from the rule of law notoriously does not mean that the subject thereby undertakes a duty of obedience, so ifitgenes- ates any duty to obey it cannot be by a voluntary route, Esoteric arguments to the cffect that it ought to bear this meaning simply concede the point, Participation in politics, the other main candidate, fares no better. Not only is participation itself nowhere near universal, no one—certainly not the police or courts—thinks those who do not vote have no, or even weaker, obligations to obey. Thus the common analogies between participation and promissory estopped are misguided. It may be that in ordering a meal | induce a restaurateur to serve mein the expectation of pay- ‘ment, but itis also crucially tue that those who do not order, or who order while announcing that they will not pay, do not get served. ‘n politic, in contrast, the esponsesand expectations of othersarenot correlated toone’s degree orkind of par- ticipation, Whether or not onehas voted, run for office, orserved onajury, oneis met with the very same demands for and expectations of obedience, Consent to a legitimate government thus provides exactly the sort of reason the ‘tradition has in mind: it generates a content-independen, binding reason to comply and it establishes a special relationship with a particular legal system. Perhaps that is why Hume, who thinks consent both improbableand unrecessary, none the lesscon- ‘cedes that among the possible foundations for obligation consent is ‘the best and ‘most sacred of any: That it cannot yielda duty of anything like the right scope sets legal theory off on the search for an alternative, 2.2 Expressive Theories Even ifthe obligation to obey must be voluntary, it doesnot follow that it must be the result ofa performative act intended to assume an obligation. It may be enough that obligation isin some way a necessary consequence of a contingent relationship vol- untarily created, ‘What I shall call ‘expressive theories’ adapt the second function of promising toa ‘non-performative context. The most popular model here is friendship.#” While people usually choose ther friends, they do not do so in order to have people to owe duties to, Indeed, such a reason for making friends is incompatible with true friend ship. But once one has friends, one has obligations to them—obligations of support, hhonesty, and reciprocity. Whatever other reasons one might have for fulfilling these obligations, doing so also expresses and is known to express loyalty to one’s fiends, * eg Peter Singer, Democracy and Disobedience (NewYork: Onto University Pres 974) 45-39- ‘Home, Original Contact. 74 © Ray, Autor oflaw, 250-6, LBSLIEGREEN 529 Expressive theories offer the most plausible non-reductive interpretation of the traditional arguments from gratitude or community.** On such views we are bound. to obey because that isan appropriate expression of emotions that we have good rea- son to feel: gratitude tothe law forall that it gives us, respect for its good-faith efforts to guide us, or a sense of belonging to a community under law. Joseph Raz suggests, ‘A person identifying himself with his society, feeling that itis his and that he belongs toit is loyal tohis society. Hisloyalty may express itself, among other ways, in respect, for the law of the community? When such an attitude is permissible—when thelaw is legitimate—and when it flourishes itis a genuine source of obligations, Although expressive obligations are sometimes valid they none the less ail to jus- tify the duty to obey the law. They leave unexplained why obediencefittingly expresses gratitude or loyalty to law. Itis not enough to say itjust does, as we might to one who asks why the word ‘dog’ refers to dogs. In addition to any conventional aspects, cer~ tain relationships have internal necessities that make expressive behaviour appropri ate or inappropriate, and these necessities depend on the nature and purposes of the relationships in question. Consider Locke's objection to attempts to ground the duty of obedience in such notions as the biblical injunction to honour one's parents: ‘A Man may owe honourand respect toan ancient, or wise Man; defence tohis Child or reliefand support to the Distressed; and gratitude to Benefictor, to such a degre, thatall he has,allhecan do, cannot sufficiently pay it Butall these give no Authority, no righttoany one ‘of making Laws ver him from whom they are owing.” Locke's claim that one should rhanka benefactor, respect the wise, or defenda friend are not claims about what is conventional, but about what is fitting in view of the nature of the relationship in question; that is why they do not cal for the kind of authority and obedience we see in aw. For Locke, obedience is fitting in other con- texts, for example, the relationship of parent and child, or creator and created. Children do not choose their parents, nor creatures their creators, and they owe them ‘obedience, if they do, on grounds that have nothing to do with voluntarism, Moreover, even where there are conventional aspects to the expression of grati- tude, respect, or loyalty to the law, and where obedience isa possible expression of those feelings, it does not follow that obedience isthe only or best way to show Raz acknowledges. Our idea ofthe appropriate expression of gratitude is not deter~ ‘mined by the subject-state relationship. Only in rare and highly ritualized cases is there a mandatory way to express respect, such as in prescribed forms of dress or address in court. In our cultures, the conventional meaning of obedience is actually ‘more complex, for our moral heritage is not only Hebrew but also Greek. Alongside “See A.D. M, Walker, ‘Political Obligation and the Argument from Gratitude’ Philosophy and all Airs, 7 (988), 3-2, and G. Klsko,Poical Obligation and Gratitude’, Philosophy and Pads 8 (1989) 352-8 "© Raz, Authority of Lav, 3 See sev also his Gowerament by Consent in JR, Pennock ad J. W. ‘Chapa (eds), tory Revisited: Nomos XXTX (New York: Nev York Unversity Press. 1987). 76 Locke, Twa Treat 70:36530__LAW AND OBLIGATIONS the idea that obedience tol is proper expression ofthe devotion ofa people, we havea inherited the idea that tapas a seri rappropiate hay of fe and equal etizes. These conflicting meanings pile tenia consi erable atitude a tohow to express the atitudesin question Final lings of grade loyal an repectare mst hoe in the personal contexts that form the paradigms fr express Th extent the nat, tonalzedand bresestirealoflawis general tc Werustremembet Harts leson tha thealieaton ofl ad fe isa standing rik in modern sce that the lw is precisely nora smoothly fitting part of Stlcikei, or the soul of a nation andthisows not fom eruption rinse a simply om heer rent ofl and peopetht neil when ls bureaucrat, cn sraneFoallofthee reasons epesvsm semsdesined felt beter han performative consent in grounding obligation tobe. 2.3 Fairness ‘The last significant move within the voluntarist tradition abandons the claim that ‘obedience depends on either performative or expressive cts, and retreats to the posi- tion that it flows from a mere willingness to benefit from the reciprocal compliance of others. The element of will thus remains, though in an attenuated form compat- {ble with the bureaucratic and alienated nature typical of legal cultures, Pethaps the ‘most influential contemporary theory of obligation, the theory of fairness or fair play ‘was defended by Hart and most influentialy elaborated by Rawls thus: Suppose theres a mutually Beneficial and js scheme of sacl cooperation an ta the actantgsityiscan only be obtaedifeveryone,orneryeeryone cooperates Suppose further hat cooperation eres a cern sic om eth penn or tines certain reson of his ery. Suppose nly hatte benef prodaced by coopetion ares up torn pont fc tat the scheme of copeaton uae he sees that ifany one person knows tht al ore all) ofthe other wi contint dt pat be wills ableto share again rth scheme evened not de hs par Under hee congtionsaperson who asacrpedthe benefits oftheschemeiboundby=duty oa pay todo ispartand not ttake advantage othe free Denes by wa cooperating>™ ‘The validity ofthat general moral principle has somet mes been doubted. Robert Nozick, for example, offers variety of counterexamples intended to show that with- ‘out consent the receipt of benefits cannot bring an obligation to reciprocate: ‘If each day a different person on your street sweeps the entre street, must you do so when * Her, Concept of Law, 117. . 22 HALA Hat Are Ther Any Natural Right? Pisophica Reon 64 (95) 2 John Rawis, ‘Legal Obligation and the Duty of Fair Play’, in S. Hoo irom (ieworke Noor Uney rama en MEG Lawand Piety LESLIEGREEN 531 your time comes? Even if you don't care that much about a clean street? Must you imagine dirtas you traverse the street, soas not to benefitasa free rider?" He invites similar scepticism about a duty to help provide music through a public address sys- tem, or to pay for books that someone has thrust on you. Infact, such cases do not meet the Hart-Ravls conditions: they are mere externalities, or independent of co- ‘operation, or unjust in their distribution ofbenefits and burdens.* Most important, however, in none of them can the beneficiaries plausibly be sad to ‘accept the bene- fits. Admittedly, Rawls never specifies what that condition requires, but Simmons’s proposal that they must either try to get the benefits and succeed, or take them know- ingly and willingly seems broadly consistent with the spirit ofthe principle.% “The role ofthe acceptance condition is controversial*” but it is common ground that without it fairness does not create voluntary obligations. (We shall see below in ‘Sect. 3.2, where it actually leads.) Acceptance does not, of course, reduce fairness t0 consent: those who jump subway turnstiles accept the benefits of public transporta- tion without intending to assume any obligation to pay their fair share. But the accep- tance condition none the less renders fairness vulnerable to the very same objection as the consent principle: not enough people perform the relevant action. Many ben- efits, inchiding law and order, national security, public health and so om, are what ‘Simmons alls‘open benefits’ that could beavoided only by extraordinary changesin ‘one’s life style, by internal exile in a remote part of the country, or by emigration (which will only take one to another country and another set of compulsory benefits). This is not to deny that some people willingly accept the benefits of co- operation and are therefore bound in fairness to do their part, Some immigrate in search of them, or assume roles and positions calculated to yield them. And even ifa minimum package of benefits is standard and unavoidable, many actively pursue ‘more—their children enjoy compulsory schooling but also clamour for places in public universities, Although the basic moral principle is valid and relevant in such cases it simply does not carry the obligation to obey as far as law reaches. Finally, unlike both consent-based and expressivist theories, fairness is insuffi- ciently particularized, for stich benefits as people do willingly accept do not always respect the boundaries of legal systems. Americans tune in to the Canadian Broadcasting Corporation, Canadians to National Public Radio, and everyone uses the internet. With greater transnational communication and co-operation, such ‘benefits are only likely o expand, No doubt some particularization of our duties can ‘be explained by the fact that many systems of co-operation are local; but this rough and ready truth does not track the claims of lav. 5 Rober Nove Anarchy State and Ulla (ew Yor: Basic Books, 974) 84 5 See Simmans, Moral Prinples and Poa Obligations 18-36. % ibid 16-8, ' Richard J. Arpxon, The Principle of Fairness and Free Ride Problems’ Ethic, 92 (98), 66-3,532__ LAW AND OBLIGATIONS 3 Non-voLuntTary THEORIES ‘While other variations on voluntarism are no doubt posible itis difficult to see how any such theory can survive the objections to consent, expressivism, and fairness, for these flow from @ common problem. It is of the essence of voluntarism that itis ‘rooted in the wilfulness of political arrangements, and the jurisdiction claimed by Jaw seems bound to overreach the contingent relatiors established by individual choice, To Hume, that suggests an obvious conclusio {M}ebeing certain, that there isa moral obligation to submit to government, bec r emt, because everyone ‘thinks 0; it must be as certain, that this obligation arises not fom a promise; since no one, ‘whose judgment has not ben led astray by too strict adherence to asystem of philosophy, has ever dreamt of ascribing it to that origin, Neither magistrates nor subjects have form this idea of our civil duties * Hume's objection to consent may be generalized, forall voluntary obligations depend on the beliefs ofthe subject. One cannot promise by accident—no man can either givea promise or be restrain'd by its sanetion and obligation unknown to him- self—but neither can one unwittingly express an attzude or accept a benefit. $0 Humeis right to say that lack of the relevant belief negatives a voluntary obligation of| ‘obedience. But Hume also claims that there must be an odligation because ‘everyone thinks so: Notice that this second appeal to beliefs of logically different status from the frst. Absenceot the first-person belief that one has performed the relevant volun- tary act negates the claim that one has a voluntary obligation. But the presence of belie hat there is a non-voluntary obligation doesnot validate it The fic it be cone that ‘everyone thinks so’ may suggest that there isan obligation to be justified, butit cannot itselfbe a ground ofthat obligation. Becausenon-voluntary obligations are belief-independent, common opinion is not decisive one way or another. What ‘we therefore ned is some moral principle that applies inthese circumstances and is capable of generating obligations of obedience to law. The most influential candi datesare of two types. 3.1 Associative Obligations ‘The smallest departure from voluntarism retains one ofits main features: the contin ‘gency of social relations. For the voluntaris, this is explained by the fact that such relations are created ifnot deliberately then atleast willirgly. For the associationist, these are merely special cases. Following the philosophical idealists through the lush overgrowth of organic metaphor, they emphasize the gradual growth and % Hume, Treat of Human Noture,s47.——® Bid. sap. EBSLIBGREEN 533 development of significant relationships like family, religion, and community. Common moral thought holds that family, for example, owe each other special duties of loyalty, respect, and support that partly constitute their relationship but hich do not, orat any rate need not, arise from agreement. There is an important truth here, for we re often ess engaged in choosing, pursuing, and revising our goals than we are inadaptingand accommodating ourselves to the contingencies the world throws up—for example, even those who choose parenthood do not choose their particular children with their unique constitutions and temperaments.® A theory of allegiance to law ought surely to find some way to accommodate this reality. Like communitarian theories of justice, with which they have certain affinities, associationist doctrines of obligation are often vague, asserting that people in ‘organicassociations fee obligated by their membership, butwithout articulating any ‘moral reasons that might ground those feelings“! One version focuses on the oblig- ations attached to social roles. There are two problems about role obligations, and they are often poorly distinguished * First, there isthe question of validity: what, «establishes that the duties attached to a station are binding even when one is con- scripted into it? Most associationist theories overemphasize this issue and treat the problem of role obligations as i it were a matter of explaining why non-voluntary duties ever bind, But that isa false problem, Anyone who recognizes that there are ‘voluntary obligations must also recognize non-voluntary ones, for the duty to keep agreements cannot itself be founded on agreement, Moreover, there may not be any general obligation to perform the duties of one's stations these maybe justified piece ‘meal by different considerations in different cases. The apparent general duty may simply be an intermediate conclusion summarizing a range of unrelated reasons, including the dependence of athers on one’s performance. ‘The second problem is about content. Why should we acknowledge a role consist- ing of just shese duties? Associationists sometimes argues ifin explaining how non- voluntary obligations are possible we have automatically explained why their scope and content should be determined by socal roles, but that plainly does not follow. Dworkin ventures an answer to this question. He says that we have ‘a duty to honour ‘our responsibilities under social practices that define groups and attach special responsibilities o membership...“ These duties are not consent-baseds their con tent and liability depends on group practice rather than on individual agreement, and practice not only identifies but in some way also justifies the duties, provided that certain conditions hold, First, every true community must bea bare community (© Soe Carles Larmore, "The les ofa Life Plan’, Soca Phibmphy and Poly 6 (939), 96-12. ‘A. Simmons, Associative Politi Obligations, Ethics 106 (1996). C.H. Wellman ‘Associative Allegances and Political Obligations, Soil Thao an Pracic,33(3997),19-204. 9 CE-MichaslO. Hardimon, "Role Obligations Journal of Philosophy, (1994) 33°83 © Dworkin, Law’ Enpirs 98. { discuss Dworka’s account in greater deta in ‘Associative Obligations nd the tat’ in Allen Hutchinson and Lee Green (ds) Law ard he Gommanity: The Bd of dividuals? (Toronto: Crswel 989), 93-18, and raw on tha argument here534_LAW AND ontiGattons LESLIEGREEN 535 satisfying the minimal conditions for group lifeas defined by socal practice “+ Next its members must think that their obligations are special, personal, and derive from some good-faith interpretation of equal concern forthe well-being of all members. ‘These conditions ae said to justify associative obligeticns as such: Ifthe conditions are met, people in the bare community have the obligations of a true community whether or not they want them... No doubt political associations bear certain similarities to other non-voluntary tclationships: people rarely choose their states, they do not agree witha ther las, nationality structures their identities, political selationships grow organically, and ‘membership ina state may in some cases have intrinsic value. But there areal sig- nificant disanalogies. Once again, the institutional natare oflaw militatesagainstany secure fit between legal order and social life. If parenthood or neighbourhood are associations, they are so in a sense that brings them close tothe desiresand needs of their occupants, Subjects ofthe legal system do not normally stand to those institu- tions as neighbours stand to their neighbourhood. Then theres the mater of scope. In the paradigmatic cases of associative obligations there is a degree of social inti- ‘macy that cannot be expected in law. As Rousseau puts, “The more the social bond isstretched, the slacker it becomes’ Should that not give us pause? Dworkin’saccount avoids this problem, He denies that the conditions for associa- tive obligation involve actual beliefs or desires of member ofthe association, or even of anyone at al. They are ‘interpretive properties’ ‘practices that people with the righ level of concern would adopt—not a paychologcal property of some fixed ‘number ofthe actual members:©” That isto say, a bare community becomes a true community if a certain complex argument holds true, respective of its members attitudes. Dworkin’ rhetoriaside, thisis obviously at some remove from associative ‘obligations and the organic view of social life that inspires them, Such obligations seekto explain the moral force ofthe contingent and accidental; when they fall out of 4 necessary interpretative imputation that no one may actually endorse, detached from the lives ofits subjects, itis plan that we have left associative obligations far behind. Nori it clear how the problem of content is to be resoled. Dworkin's paradigm for associative tes is the non-voluntary association of siblings —fraternity is the exemplar that he has in mind. But the content of fraternal or sororal obligations lies inthe neighbourhood of mutual aid or respect, not obedience. That is why the usual associative model for obedience relations isnot infact the horizontal association among siblings but the vertical hierarchy of parent and child, However, the normal arguments for parental authority have nothing to do with communal association: they are instrumental or expressive. Perhaps there is an expressive element in Dworkin’ theory, for he requires that as a condition of legitimacy a community % Doin, Law's nig 07-8 © ibid. 20 The Soil Contact bk. ch. 9, tans M. Cranston (Harmondsworth: Peng, 1968) 290 © Dworkin, Law's Epi 20 display the virtue he calls ‘integrity’: principled coherence expressing a doctrine of equal concern for its members, That vitue may be admirable; it may contribute to legitimacy. But while someone's having integrity may win them our respect, ami tion, and emulation, it does not follow that itis wrong for us to interfere with projects and ambitions, nor doesit give them any claim to our obedience. Itisa final worry for any associationist view that itisliable to generate conflicting ‘communal obligations, ast perhaps did for Antigone, caught between her sisterly and religious duty to bury her brother and her rule’ command forbidding it. As subjects are often also sisters and patriots parishioners, associative obligations are endemicaly competing These conflicts, unresolvabe from the point of view of each association, suggest why communitarianism is, as Dunn righty says a feeble and sentimental solution tothe problem of political obligation: Religious and social solidarity, so far from being the solution to the problems of political instability, ze vetually the source ofthat instability. The point of politcal obligation was pre- cisely to contain, to bring under rational and humane contro, the diffuse but vivid menace ‘which these wider imaginative binds represented. ®* 3.2, Necessary Institutions Inall accounts canvassed thus far there isa pressure in the direction of arguing that political obligation is somehow inevitable or necessary. The final theory overtly embraces this idea. In Hume, but also at points in Hobbes or Kant, we find the view that law isa necessary institution without which the mos prized things oflife would just be impossible, and that an obligation of obedience i @ necessary condition for the existence oflaw. That thought pulls us avay not only from every form of volun tarism, but from contingency itself. The fundamental argument isstated by Elizabeth Anscombe: ‘Tf somethingi necessary, ifitis, for example, a necessary task in human life, then a right arises in those whose task iti, to have what belongs to the perfor- ‘mance of the task’? ‘There is a forensic problem of identifying the necessary institutions. Hobbes and his successors propose a rationalistic method an institution is necessary if suitably motivated and situated people would agree to adopt it. If sound, such an argument identifies what we have reason to believe, want, or do; it does not of course show that ‘we actually believe, want, or have done it. In contrast to an actual contract theory which i a species of consent, hypothetical contractarianism lies wholly inthe realm Se aot. ly ta Thy ay statins536__LAW AND OBLIGATIONS of the rational (though, in its most influential versions,a thin and even foolish view of rationality) 7! Others follow Hume's empiricism: ‘A small degre ofexpetience and observation suffices to teach us that society cannot possi f ich s that society cannot possibly bbemaintained without the authority of magistrates, and that hisauthority mustsoon fallinto contempt, where exact obedience isnot pad tit The observation ofthese general and abvi- ous interests is the source of al allegiance, and of that moral obligation, which we attribute toi ‘And here we may also include the speculative teleologies of Aristotelian theories according to which political activity is necessary to the full development of human nature, ‘Though there are therefore different ways of identifying the necessary institutions, ‘with somewhat different results, most accounts share certain features. One well- developed representative is due to George Klosko.” Although he wants to ground obligation in reciprocity, he rejects as too stringent the idea that the benefits of law -mustbe accepted, or even flow from some scheme of co-operation, His idea is rather that there are certain ‘presumptively beneficial public goods, goods that anyone would want and which require social co-operation to produce. Now Klosko appears to treat this in a Hobbesian or Humean way, as defined by reference to the wants of ‘the subjects; ut a generalization of his approach could adopt an objective theory of benefit, grounded in reasons that apply o everyone rather than reasons of which they are aware, And thus not only self-interest or personal needs, but also security for the interests of thers or the pblicmay beamong the presumptively beneficial elects of ‘There is no doubt that some of what law does is in this way essential—above all it ‘saves us from the parlous circumstances ofa state of natare. But law's ambitions ate ‘more expansive than that. It also does things that are permissible but not necessary: it prohibits cruel treatment of animals, enacts residential zoning, declares official languages, establishes national holidays, supports education and the arts, creates, honours, and promotes exploration of the heavens. And in the service of what is ‘mandated by necessity, law draws lines and distinctions that are themselves merely Permissible—it defines an age of consent, an acceptable evel of risk imposition, for- ‘malities for wills and marriages, and so on. Itis importaat to notice that neither the vast range of permissible state activity, nor the permissible determinations, to use Aquinas's term, of necessary activities are fixed by the recuirements of legitimacy. ‘What then is the connection between the necessary and the permissible? Klosko's view is that the state must provide the necessary goods, and ifit does that, it may also provide discretionary ones provided that it does so fairly. But that is not exactly the ~ Semen Finis Cie Win on rane 2 in Ona Cont 2 Gage, Te Mio ue nd oti aha, Ms Ro Littlefield, 1992). fer anton Mas * LESLIBGREEN 557 issue: the question is not whether itis legitimate to provide optional goods, but ‘whether there is the same obligation of reciprocity to contribute to their provision as there is to the necessary ones. One cannot argue that the optional goods areall essen tial for the necessary onest it is hard to see how space exploration is necessary to air line safety. But there is a more fundamental objection here. Even where there are instrumental relationships between the two kinds, they do not transmit obligations from ends to means. IfA has an obligation to @ and x-ing is a necessary, or even highly desirable means to ¢-ing, it does not follow that A has an obligation to x. If have an obligation to pay you five dollars tomorrow, and the only way I could pay is to give you the five silver dollars my mother gave me as a present, it does not follow ‘that I have any obligation to pay you in silver. Obligation imposing reasons are not transitive across ideal, or even necessary, means to their fulfilment, ‘What's more, itis unclear what is necessary for law to fulfil its socially necessary functions. It is sometimes alleged that law needs exactly what it demands. As Creon puts i in Antigone" Whoever is chosen to govern should be obeyed | must be obeyed, in all things, great and small | just and unjust; failing which there is only anarchy: “This is why cities tumble and the great houses rain down | this is what scatters armies.” Hume similarly holds that the authority of the magistrate cannot survive without ‘exact obedience’ But all such claims founder on the fact that what is actual :must be possible. Law does not in fact enjoy exact obedience, and disobedience in certain small or unjust things does not bring cities to ruin, Its obviously possible for legal systems to withstand certain kinds and quantities of disobedience, and when ‘that brings more good than harm there can be no objection on grounds of necessity. ‘This is wholly consistent with the thought that legitimate government isa neces- sary and beneficial institution. The only issue is whether a policy of general obedi- enceisa necessary policy In many areas oflife we need an efficacious common policy, and no such settlement can survive if everyone should pick and choose when to com- ply. All ofthat is true. But an argument that some policy isneeded is notan argument in favour of a particular policy. And the policy that we are considering here, that of taking all ofthe law’s requirements as binding, is but one of the options. There is no reason to think that in all legitimate states, at all times, and forall people itis always the optimal one, The tates own view is something like actual-rufe utilitarianism: the thesis that obeying the actually existing set of legal obligations is always best. Where law is both institutionalized and morally fallible, this is the least plausible form of ‘consequentialism going. | mentioned above that although Klosko sees his doctrine of presumptive public goods asan elaboration of fairness, its logic actually pulls away from that theory. Let lus pursue this idea further, Iflaw’s benefits really are soimportantthen we should not remain indifferent to their provision. If there are things that everyone desperately 1 Sophocles, Antigo, trans, Dudley Fitts and Robert Btzgerald (New York Harcourt, Brace and 01940) 46