1. Political obligation

2019 ◽  
pp. 6-24
Author(s):  
Keith Hyams
Keyword(s):  
Contract Theory ◽  
Political Community ◽  
Political Obligation ◽  
The Law ◽  
Philosophical Anarchism ◽  
Consent Theory ◽  
Do So

This chapter discusses the justifications for political obligation. The most important historical justification for political obligation is what is often called consent theory or contract theory. Consent theorists claim that we should obey the law because we have consented to do so. Meanwhile, the theorist H. L. A. Hart argues that if we accept a benefit, then it is only fair that we should reciprocate and give something back; if we enjoy the protection of police and armies, if we use roads, hospitals, schools, and other government-run services, then we should reciprocate by obeying the law. Other theorists argue that political obligation is something that we are bound by simply for being a member of a political community. If we cannot justify an obligation to obey the law, then we may have to adopt some form of philosophical anarchism — the view that we have no obligation to obey the law.

1. Political authority and obligation

2014 ◽  
Author(s):  
Keith Hyams
Keyword(s):  
Political Authority ◽  
The State ◽  
Political Obligation ◽  
Robert Nozick ◽  
Military Conscription ◽  
The Law ◽  
Philosophical Anarchism

This chapter examines the various approaches that political theorists have used to answer questions surrounding political authority and obligation. It considers arguments in favour of political authority and obligation as well as anarchist positions, which claim that we are not obliged to obey the law. To illustrate these themes, the chapter presents a case study that explores military conscription as a problem of political obligation. The concepts of consent, fairness, community, morality, and philosophical anarchism are also discussed. The chapter includes Key Thinkers boxes that feature Plato and Robert Nozick. Based on the arguments that have been put forward, it seems clear that the state is justified at least in so far as it seeks to enforce morality.

AUTHORITY, LEGITIMACY, AND THE OBLIGATION TO OBEY THE LAW

Legal Theory ◽  
2018 ◽  
Vol 24 (2) ◽  
pp. 77-102
Author(s):  
Richard Dagger
Keyword(s):  
Political Authority ◽  
Political Obligation ◽  
Fair Play ◽  
Standard Account ◽  
Traditional Account ◽  
The Law ◽  
Philosophical Anarchism

ABSTRACTAccording to the standard or traditional account, those who hold political authority legitimately have a right to rule that entails an obligation of obedience on the part of those who are subject to their authority. In recent decades, however, and in part in response to philosophical anarchism, a number of philosophers have challenged the standard account by reconceiving authority in ways that break or weaken the connection between political authority and obligation. This paper argues against these revisionist accounts in two ways: first, by pointing to defects in their conceptions of authority; and second, by sketching a fair-play approach to authority and political obligation that vindicates the standard account.

Political Obligation

2018 ◽  
Author(s):  
Richard Dagger
Keyword(s):  
A Priori ◽  
Political Obligation ◽  
Political Obligations ◽  
Philosophical Anarchism

Although it is an ancient and much-discussed problem, political obligation continues to pose challenges to political and legal philosophers. Some of these challenges are conceptual, for they require explanations of what a political obligation is and how it differs from other obligations, duties, or responsibilities. Other challenges concern the practical matters of whether and to what extent political obligations are truly binding on us. In this respect, the foremost challenge is that of anarchism, including the “philosophical anarchism” that has become increasingly influential in recent decades. This chapter aims to meet these challenges by setting out a coherent account of political obligation and providing reason to believe that neither political nor philosophical anarchists have made a satisfactory a priori case against the possibility of a compelling theory of political obligation.

Line Drawing in the Dark

2021 ◽  
Vol 22 (1) ◽  
pp. 111-136
Author(s):  
Adam J. Kolber
Keyword(s):  
Line Drawing ◽  
The Law ◽  
Do So

Abstract The law inevitably draws lines. These lines distinguish, for example, whether certain conduct reflects ordinary recklessness constituting manslaughter or more extreme recklessness constituting murder. There is no way to meaningfully draw such lines, however, absent shared ways of representing amounts of recklessness or at least knowledge of the consequences of drawing lines in particular places. Yet legal actors frequently draw lines in the dark, establishing cutoffs along a spectrum with little or none of the information required to do so in a way that suits the law’s goals. For example, jurors must decide whether some conduct constitutes extreme recklessness without knowing prior precedent nor the sentencing consequences of drawing cutoffs in particular places. Judges and lawyers cite line drawing precedents from other jurisdictions without considering whether the lines drawn in prior cases had the same consequences as those in the case at bar. And scholars argue about how to classify conduct without making clear what consequences they believe ought to attach once the classification is made, leaving it hard to tell when scholars have substantive or simply superficial disagreements. In this Article, I discuss some line drawing problems and briefly suggest ways we can add meaning to cutoffs. More generally, I argue, we can “smooth” certain features of the law to both reduce our vulnerability to line drawing in the dark and improve the fit between the law and what our best theories of law recommend. Even when we cannot easily smooth the law, thinking about the law in a smoother fashion can help reduce the jurisprudential pathologies I describe.

Guarding the Public Interest: England's Coroners and Organ Transplants, 1960–1975

2015 ◽  
Vol 54 (4) ◽  
pp. 926-946 ◽  
Author(s):  
Helen MacDonald
Keyword(s):  
Twentieth Century ◽  
Public Interest ◽  
Spare Part ◽  
Organ Transplants ◽  
Legal Requirement ◽  
The Public ◽  
The Law ◽  
Do So

AbstractFrom the mid-twentieth century, England's coroners were crucial to the supply of organs to transplant, as much of this material was gleaned from the bodies of people who had been involved in accidents. In such situations the law required that a coroner's consent first be obtained lest removing the organs destroy evidence about the cause of the person's death. Surgeons challenged the legal requirement that they seek consent before taking organs, arguing that doing so hampered their quick access to bodies. Some coroners willingly cooperated with surgeons while others refused to do so, coming into conflict with particular transplanters whom they considered untrustworthy. This article examines how the phenomenon of “spare part” surgery challenged long-held conceptions of the coroner's role.

scholarly journals Culpability, Kingston and the Law Commission

2010 ◽  
Vol 74 (5) ◽  
pp. 434-471 ◽  
Author(s):  
Cath Crosby
Keyword(s):  
Justice System ◽  
Criminal Liability ◽  
Character Theory ◽  
Criminal Offence ◽  
Pragmatic Approach ◽  
House Of Lords ◽  
The Law ◽  
Court Of Appeal ◽  
Law Commission ◽  
Do So

This article considers the basis upon which a person should be held to be criminally liable, and to do so, it is necessary to examine the leading theories of character and choice that underpin the State holding a person to be culpable of a criminal offence, i.e. the link between culpability and fault. The case of R v Kingston1 is used to examine the application of these leading theories and it is observed that choice theorists would not excuse such a defendant from criminal liability even though his capacity to make a choice to refrain from law breaking was made extremely difficult by external factors beyond his control. Only character theory could possibly offer exculpation in such circumstances on the basis that the defendant acted ‘out of character’ and his deed did not deserve the full censure and punishment of the criminal law. The Court of Appeal in R v Kingston would have been prepared to excuse, but the House of Lords, and most recently the Law Commission have adopted a pragmatic approach to the involuntarily intoxicated offender. This case serves as a reminder that while justice is the aim of the criminal justice system, it is not an absolute standard.

The Law of International Criminal Procedure and Domestic War Crimes Trials

2006 ◽  
Vol 6 (4) ◽  
pp. 605-635 ◽  
Author(s):  
Göran Sluiter
Keyword(s):  
International Law ◽  
International Criminal ◽  
Criminal Procedure ◽  
War Crimes ◽  
Specific Context ◽  
National Courts ◽  
International Criminal Tribunals ◽  
War Crimes Trials ◽  
The Law ◽  
Do So

AbstractThis article deals with the question of possible effect of the law of international criminal procedure for domestic war crimes trials. With the increasing number of national prosecutions for war crimes this question will gain in relevance.The article starts with an exploration of the origin and development of the law of international criminal procedure, to reach the conclusion that because of the lack of a strong foundation it is difficult to discern firmly established rules in this field. Next, two areas are examined where the law of international criminal procedure is capable of producing effect for national trials: human rights and rules that have developed in the specific context of war crimes prosecutions.Whether rules of international criminal procedure are formally effective in the domestic legal order remains to be seen. There is no clear obligation under international law to do so. Furthermore, the law of international criminal procedure may be difficult to harmonise with domestic inquisitorial systems.In spite of these difficulties, the article concludes that national courts will increasingly face similar procedural problems in complex war crimes trials as international criminal tribunals and will be happy to learn from their experiences.

scholarly journals Civil Disobedience in Times of Pandemic: Clarifying Rights and Duties

2021 ◽  
Author(s):  
Yoann Della Croce ◽  
Ophelia Nicole-Berva
Keyword(s):  
Working Conditions ◽  
Healthcare Professionals ◽  
Medical Profession ◽  
Civil Disobedience ◽  
Duty Of Care ◽  
Normative Evaluation ◽  
The Law ◽  
Descriptive Sense ◽  
Public Demonstration ◽  
Do So

AbstractThis paper seeks to investigate and assess a particular form of relationship between the State and its citizens in the context of the COVID-19 pandemic, namely that of obedience to the law and its related right of protest through civil disobedience. We do so by conducting an analysis and normative evaluation of two cases of disobedience to the law: (1) healthcare professionals refusing to attend work as a protest against unsafe working conditions, and (2) citizens who use public demonstration and deliberately ignore measures of social distancing as a way of protesting against lockdown. While different in many aspects, both are substantially similar with respect to one element: their respective protesters both rely on unlawful actions in order to bring change to a policy they consider unjust. We question the extent to which healthcare professionals may participate in civil disobedience with respect to the duty of care intrinsic to the medical profession, and the extent to which opponents of lockdown and confinement measures may reasonably engage in protests without endangering the lives and basic rights of non-dissenting citizens. Drawing on a contractualist normative framework, our analysis leads us to conclude that while both cases qualify as civil disobedience in the descriptive sense, only the case of healthcare professionals qualifies as morally justified civil disobedience.

Constitutional Rights and Social Welfare: Exploring Claims-Making Practices in Post-Apartheid South Africa

2020 ◽  
Vol 53 (1) ◽  
pp. 25-48
Author(s):  
Whitney K. Taylor
Keyword(s):  
South Africa ◽  
Social Welfare ◽  
Neighborhood Context ◽  
The State ◽  
Constitutional Rights ◽  
The Law ◽  
Material Conditions ◽  
Do So ◽  
The Way

When do individuals choose to advance legal claims to social welfare goods? To explore this question, I turn to the case of South Africa, where, despite the adoption of a "transformative" constitution in 1996, access to social welfare goods remains sorely lacking. Drawing on an original 551-person survey, I examine patterns of legal claims-making, focusing on beliefs individuals hold about the law, rights, and the state, and how those beliefs relate to decisions about whether and how to make claims. I find striking differences between the factors that influence when people say they should file a legal claim and when they actually do so. The way that individuals interpret their own material conditions and neighborhood context are important, yet under-acknowledged, factors for explaining claims-making.

Reformist Consent and Political Obligation

1991 ◽  
Vol 39 (4) ◽  
pp. 676-690 ◽  
Author(s):  
George Klosko
Keyword(s):  
Political Institutions ◽  
Political Obligation ◽  
Political Obligations ◽  
Plausible Model ◽  
Voluntary Character ◽  
Voluntary Choice ◽  
Consent Theory

It is commonly held that theories of political obligation based on consent, whether express or tacit, cannot account for most people's obligations; that political obligations generally stem from being born into specific societies rather than from voluntary choice. In recent years, consent theorists have turned to ‘reformist’ consent, arguing that consent theory could be rescued if political institutions were reformed to allow the possibility of widespread consent. Various possible reforms are examined and shown to be inadequate. The most obvious mechanism, ‘consent-or-leave’, is disqualified because it is coercive. Other mechanisms would be unable to induce widespread consent while preserving consent's essential voluntary character. I refer to the most plausible model as ‘Hobbes's choice’, though because it must unacceptably limit non-consentors' ability to defend themselves, it too is unsatisfactory.

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