Legal obligations and punishment Lecture Notes PDF

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LECTURE 1: The Obligation to Obey?IS THERE AN OBLIGATION TO OBEY THE LAW· Getting clear on what exactly is the question here. · Do we obey the law? Why do we obey the law if and when we do? o This is purely an empirical matter o A question for social science and (social) psychology · Whether there i...

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Semester 1

Legal Obligation & Punishment

Lecture Notes

LECTURE 1: The Obligation to Obey ?IS THERE AN OBLIGATION TO OBEY THE LAW Getting clear on what exactly is the question here. Do we obey the law? Why do we obey the law if and when we do? o This is purely an empirical matter o A question for social science and (social) psychology · Whether there is a legal obligation to obey the law o Whether the law takes itself to impose on us an obligation to obey when it tells us to do (or not do) X. ▪ Whether the law claims to impose obligations on us · This is merely an empirical or at most a conceptual matter · ·

Getting clear on the question Empirical : Whether UK law claims to impose obligations on its subjects. o The language used in statutes, the pronouncements made by judges and other legal officials, the way they behave etc... o Does the language in the statutes support this? · Conceptual : Whether law, in virtue of being law, necessarily claims to impose obligations on its subjects o One of the main questions tackled in Jurisprudence I o Hart: this is what distinguishes law from a gunmen scenario writ large o Raz: The argument for exclusive/hard legal positivism and against inclusive/soft legal positivism o Matthew Kramer, “Legal and Moral Obligations” in The Blackwell Guide to the Philosophy of Law and Legal Theory (2006) 181-186 ·

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We are NOT concerned with either the empirical or the conceptual questions o We are NOT concerned about whether there is simply a legal obligation to obey the law, or whether we obey the law or why we do it when we do so. Whether there is indeed an obligation to obey the law when it tells us to do (or not do) X o Whether law’s claim to impose obligations is indeed a true claim. o Whether it is right to obey the law when we do (or wrong when we don’t) o This is a normative question o It is about what we indeed ought to do and not what we think (or what the law claims that) we ought to do o A ‘moral’ as opposed to a ‘legal’ obligation ▪ https://www3.nd.edu/~jspeaks/courses/2017-18/10100/lectures/18morality/assets/player/Keynote DHTMLPlayer.html#0 o ‘Political obligation’ is also used to refer to this particular (moral) obligation ▪ But it arguably encompasses more than just the obligation to obey the law.

Getting clear on this alleged ‘obligation to obey the law’ · What is an ‘obligation to obey the law’? What does it mean to have such an obligation? · An obligation to do (or not do) what the law tells you to do (or not do) because the law says so. a) An obligation to do what the law tells you to do for the reason that the law tells you to do so b) There is an obligation to do what the law tells you to do because the law says so · A content-independent reason for action o A reason (obligation) to do something that does not depend on the nature of the thing you need to do An obligation to do (or not do) X because the law says so? · Other kinds of content-independent reasons for action o Commands, requests, promises... · What if the law commands me to do something I morally ought not to do? o #1: It is only a prima facie/pro tanto obligation anyway...

Susaan Thapa

Semester 1

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Legal Obligation & Punishment

Lecture Notes

#2: There is simply no obligation to obey the law here ▪ Adams NP, ‘In Defense of Content-Independence’ (2017) 23 Legal Theory 143- 167, 150-154. ▪ It affects the law’s ability to successfully impose obligations on us ▪ How is the obligation to obey still content-independent if that is the case?

Getting clear on the obligation part · It is simply a reason for action that has a certain weight o Weighty enough to outweigh any reasons based on your contrary inclinations and desires o Not weighty enough to outweigh any (content-dependent) moral obligations that you have against obeying the law · Raz: It is a pre-emptive reason for action o The 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 (“Authority and Justification” (1985) 14 Philosophy and Public Affairs, p. 13 ) · E.g. Pay your taxes! o It gives you a reason to pay your taxes o It also excludes you from acting on certain reasons that you might have which count against you paying your taxes. o Cf. exclude you from deliberating about these reasons (see Raz 1986, p. 39; 2006, p. 1022) · Raz thinks pre-emption is a feature of obligation more generally o Will say more about this when we talk about Raz’s Service Conception of Authority Other features of the obligation to obey · It is particular in a certain way o We normally only have an obligation to obey the laws of our own states and not of others’, unless we visit or live in those other states. · Is this obligation a general one or only a piecemeal one? o Comprehensive: the obligation to obey attaches to all the duty-imposing legal norms ▪ As long as they are not unjust – not ask you to do what you morally ought not to do o Universal: the obligation to obey applies to everyone who falls under the jurisdiction of the law’s in question o Piecemeal: It depends on one’s circumstances and differs from one person to the next. · Hard to establish an obligation to obey that is both general and content- independent · Also hard to establish an obligation to obey that is both general and particular in the above ways What exactly is this alleged ‘obligation to obey the law’? · Having a content-independent reason to do (or not do) what the law says because the law says so · This content-independent reason can either be: o A reason that has a certain weight (not too much, but not too little as well) o A reason that pre-empts the other reasons that you already have for or against doing what the law tells you to do · This reason to obey is also particular in a certain way o it is only an obligation to obey the laws of ones’ own state, unless one is visiting or living in another one. · A general obligation to obey or simply a piecemeal one? o An obligation to obey all duty-imposing laws (as long as they are not unjust) and applies to all within the jurisdiction in question o An obligation that depends on one’s circumstances and differs from one person to the next

My question to you and your guided learning activity for this week... · Do you think there is an obligation to obey the law? o If you think there is, why do you think so? What are your reasons for it?

Susaan Thapa

Semester 1

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Legal Obligation & Punishment

Lecture Notes

o If you think there is not, what are your reasons against there being so? Some thoughts to help you get started… o NOT whether we do obey the law or not o Whether we ought to do what the law tells us to do (or not do) because the law says so o A lot depends on what the law asks us to do (or not do) o A tendency to focus on • a) Laws that tells us to do what we are morally required to not do • b) Laws that tells us to do precisely what we are morally required to do But neither of these are particularly helpful… o No obligation to obey in (a); and even if there is, it is defeated by our more stringent moral obligation to do the contrary. o An obligation to obey in (b) seems superfluous.

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Focus on laws that are not contrary to moral requirements but also are not asking you to do (or not do) what you already have a moral obligation to do (or not do): o Do you think you ought to stop at the red light when you can see very clearly that no one is crossing the road? o Do you think it is wrong for you to drive your car without MOT even if you know your car is safe because you service it regularly? o Should one refrain from having sexual intercourse with someone below the age of 16 even when one knows that s/he is mature enough to consent and has indeed given consent? o Do you think you ought to pay the taxes that the law requires you to pay?

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If you think you have an obligation to obey those laws, why do you think so? What are your reasons for it? If you don’t think you have an obligation to obey any of those laws, why do you think so and what are your reasons for it? Post your answers on Padlet o Keep them short, succinct and up-to-the-point o Preferably in point-form rather than in paragraphs o Be prepared to explain and elaborate on them during the online seminar Additional questions to think and discuss – how far do your reasons generalise? o How far do your reasons for the obligation extend beyond the 4 examples? Do they show that there is a general obligation to obey the law? o Are your reasons against the obligation only limited to those 4 examples? Do you think there are other laws that you have an obligation to obey because the law says so? Or do your reasons show there can never be such obligations to obey?

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Susaan Thapa

Semester 1

Legal Obligation & Punishment

Lecture Notes

LECTURE 2: Consent Theories A ROADMAP FOR THE COMING LECTURES ?Is there an obligation to obey the law, and if so, to what extent · Some of the major theories that have been offered to answer this normative question · Consent theories o Fair-play theories o Natural Duty theories o Raz’s Service Conception o Associative theories o To what extent any of these theories can offer a good argument for there being an obligation to obey the law

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CONSENT THEORIES · We have an obligation to the obey the law because we have consented to it · ‘Consent’ is a bit of a misnomer, ‘promise’ is more accurate o Promissory theories, voluntary theories · They have a long history and were advanced by some of our most prominent political philosophers and theorists o Plato’s Socrates – Crito (~360 BC) o Thomas Hobbes – Leviathan (1651) o John Locke – Two Treatises of Government (1698) o Jean-Jacques Rousseau – The Social Contract (1762) A STRATEGY COMMONLY USED BY CONSENT THEORIES State of Nature’ arguments ‘ · A (hypothetical) scenario where there is no law and therefore no obligation to o obey the law ?What would life be like in such a state of nature o The answer to that question will show why we would agree to having a legal system and obeying its laws

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HOBBES’ STATE OF NATURE ( Nature hath made men so equal, in the faculties of the body, and mind;” (13.1 “ · the weakest has strength enough to kill the strongest, either by secret machination, or by confederacy ...“ o (with others, that are in the same danger with himself” (13.1 For prudence, is but experience; which equal time, equally bestows on all men, in those things they “ o ( equally apply themselves unto.” (13.2 From this equality of ability, ariseth equality of hope in attaining our ends. And therefore if any two men desire “ the same things, which nevertheless they cannot both enjoy, they become enemies; and in the way to their end,... ( endeavour to destroy, or subdue one another” (13.3 during the time men live without a common power to keep them all in awe, they are in that condition which is ...“ (called war;” (13.8 consisteth not in actual fighting; but the known disposition thereto, during all the time there is no ...“ o ( assurance to the contrary” (13.8 In such a condition, there is no place for industry; because the fruit thereof is uncertain; and “ o consequently no culture of the earth; no navigation, nor use of the commodities that may be imported by sea; no commodious building; no instruments of moving, and removing such things as require much force; no knowledge of the face of the earth; no account of time; no arts; no letters; no society; and which is worst of all, continual fear, and danger of violent death; and the life of man, solitary, poor, nasty, (brutish , and short” (13.9 ?It is pretty bleak... Do you agree with it ?Why is it so bleak for Hobbes ·

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Susaan Thapa

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Semester 1

Legal Obligation & Punishment

Lecture Notes

? Is it because there is simply no right and wrong in the SoN · To this war of every man against every man, this also is consequent; that nothing can be unjust. The “ o ( notions of right and wrong, justice and injustice have there no place” (13.13 There is nothing he can make use of, that may not help unto him, in preserving his life against his ...“ o enemies; it followeth, that in such a condition, every man has a right to every thing; even to one another’s (body.” (14.4 ... I think there might be a deeper explanation here · HOBBES’ LAW OF NATURE Even in the SoN, we are subject to the rules of reason · by which a man is forbidden to do, that, which is destructive of his life, or taketh away the means of “ o ( preserving the same; and to omit, that, by which he thinketh it may be best preserved” (14.3 There are 19 laws of nature · that every man, ought to endeavour peace, as far as he has hope of obtaining it; and when he cannot ...“ .1 (obtain it, that he may seek, and use, all helps, and advantages of war” (14.4 that a man be willing, when others are so too, as far-forth, as for peace, and defence of himself he ...“ .2 shall think it necessary, to lay down this right to all things; and be contented with so much liberty ( against other men, as he would allow other men against himself” (14.5 ? Why people shouldn’t simply agree with each other not to attack each other in the SoN · THE PROBLEM WITH THE STATE OF NATURE For the laws of nature... of themselves, without the terror of some power, to cause them to be observed, are “ · contrary to our natural passions, that carry us to partiality, pride, revenge, and the like. And convenants, without ( the sword, are but words, and of no strength to secure a men at all.” (17.1 Hence the readiness to war... and the bleakness of the SoN o A matter of assurance rather than there simply being no right and wrong · Even if people agree not to attack each other in the SoN, they cannot rely on it because they don’t have o . the power to ensure compliance HOBBES’ SOLUTION FOR THE STATE OF NATURE We should instead submit ourselves to a sovereign, grant it both absolute power and authority so that it can . protect us all from each other The only way to erect such a common power, as may be able to defend them from the invasion of “ o foreigners, and the injuries of one another, and thereby secure them in such sort, as that by their own industry, and by the fruits of the earth, they may nourish themselves and live contentedly; is, to confer all their power and strength upon one man, or upon one assembly of men, that may reduce all their wills, by (plurality of voices, unto one will...” (17.13 This is more than consent, or concord; it is real unity of them all, in one and the same person, made by “ o covenant of every man with every man, in such manner, as if every man should say to every man, I authorize and give up my right to governing myself, to this man, or to this assembly of men, on this ( condition, that thou give up thy right to him, and authorize all his actions in like manner” (Ibid For by this authority, given him by every particular men in the commonwealth, he hath the use of so “ o much power and strength conferred on him, that by terror thereof, he is enabled to conform the wills of (them all, to peace at home, and mutual aid against their enemies abroad” (Ibid

…THERE ARE SO MANY QUESTIONS HERE ? Is submitting to a sovereign with absolute authority and power the only way to avoid Hobbes’ state of nature ... The only limit to our obligation to obey is when the sovereign asks us to give up our lives o ... What about conscriptions then? See 21.16 – a bit conflicting o Not everyone agrees with Hobbes’ characterization of the state of nature ·

Susaan Thapa

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Semester 1

Legal Obligation & Punishment

Lecture Notes

(E.g. John Locke’s Second Treatise in his Two Treatises of Government (1698 o Locke’s Laws of Nature: not just self-preservation, but also the preservation of the rest of mankind – “the (Life, the Liberty, Health, Limb or Goods of another” (s. 6 .( every Manhatha Right to punish the Offender ,and be Executioner of the Law of Nature”(s. 8 …“ ▪ Locke’s state of nature: disagreement, adjudication and effective enforcement o An authority that can help to resolve these three ‘inconveniences’ and whose authority is a bit more o ( limited (because of the more expansive Laws of Nature THE BOTTOM-LINE . We have an obligation to obey the law because, for some reason or another, we have agreed to it ? Is this a good answer to the question of whether there is an obligation to obey the law ·

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THE PROBLEM WITH CONSENT THEORY · Consent can create obligations o Qualms over whether one can consent to something as extensive as the duty to ▪ obey the law · Who has ever consented to obeying the law (in the UK)? o Naturalised citizens, visitors (only if they arrived legally) o Nearly everyone who is born into the legal system had never consented to obeying the law, nor given the chance to do so o Fails to show there is a general obligation to obey the law o Worse: fails to show that natural born citizens have an obligation to obey! · Can ‘democracy’ come to the rescue here? · Your guided learning activity for this week o Is ‘democracy’ a good response to the problem with consent theory? TWO FURTHER RESPONSES FOR CONSENT THEORY ...Not just actual consent, but also · hypothetical consent .1 tacit consent .2 The ‘Hypothetical Consent’ response · All that is needed for there being an obligation to obey is simply that people would agree to do it had they ... been given the chance to do so in the right circumstances etc . State of nature arguments show why it is rational to consent and irrational not to o (Explicitly used by John Rawls in his A Theory of Justice (1971 o THE TACIT CONSENT RESPONSE FOR CONSENT THEORY (First suggested by Lock in his Second Treatise (1698 · And to this I say, that every Man, that hath any Possession, or Enjoyment, of any part of the Dominions “ of any Government, doth thereby give his tacit Consent, and it as far forth obliged to Obedience to the Laws of that Government, during such Enjoyment, as any one under it; whether this his Possession be of Land, to him and his Heirs for ever, or a Lodging only for a Week; or whether it be barely travelling freely on the Highway; and in Effect, it reaches as far as the very being of any one within the Territories of that ( Government” (s.119 The Obligation any one is under, by Virtue of such enjoyment, to submit to the Government, begins and “ (ends with the Enjoyment...” (s.121 One has (tacitly) consented to obey by remaining in the country, and therefore enjoying its protection, its ... infrastructures etc THE PROBLEM WITH HYPOTHETICAL CONSENT ” A hypothetical contract is not simply a pale form of an actual contract; it is no contract at all “ · Ronald Dworkin, “The Original Position”, in Reading Rawls (Basil Blackwell, Oxford: 1975), pp. .16-52, 18

Susaan Thapa

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Semester 1

Legal Obligation & Punishment

Lecture Notes

Note that Dworkin was attacking Rawls here and he may have possibly misread Rawls here Rawls and the natural duty of justice o ... But the basic criticism remains a valid one · !Just think about promises o

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THE PROBLEM WITH TACIT CONSENT Just like actual consent, certain conditions need to be satisfied for the (tacit) consent to be a genuine one · People need to know that they are tacitly consenting to something if they act in certain ways .1 . and what exactly they are tacitly consenting to The means for dissenting must be reasonable and should not impose an unreasonable cost on .2 those who would like to dissent Can we seriously say, that a poor peasant or artisan has a free choice to leave his country, when he “ o knows no ...