Challenging the prevailing understanding of the authority of law, Daniel Mark offers a theory of moral obligation that is rooted both in command and in the law’s orientation to the common good.
When and why do we have an obligation to obey the law? Prevailing theories in the philosophy of law, starting with the work of H. L. A. Hart and Joseph Raz, fail to provide definitive answers regarding the nature of legal obligation. In this highly original and effective new work, Daniel Mark argues that there is a prima facie moral obligation to obey the law simply because it is the law. In Mark’s view, the best concept of law—one that allows for the possibility of justified authority and obligation—defines law as a set of commands oriented to the common good. Legal obligation, he proposes, shares defining features with moral obligation and with religious obligation while aligning wholly with neither.
This philosophically coherent view of legal obligation offers a viable framework for analyzing important and seemingly paradoxical puzzles about the law, such as why civil disobedience is punished as lawbreaking or why war-crimes trials for legal but immoral acts present a moral quandary.
By reconciling the concept of law as command with the role of law in promoting the common good, The Nature of Law provides an original and important scholarly contribution to the fields of legal philosophy and political thought.
2. Commands versus Rules – and Nazis
4. Authority and the Good
5. We the Sovereign
Daniel Mark is Assistant Professor of Political Science at Villanova University. Mark has published numerous journal articles and book chapters in the fields of political science and political theology.
“Daniel Mark makes a timely intervention into a perennial debate about when and why do we have an obligation to obey the law. Taking us beyond the terms of debate as they had been set in the twentieth century, Mark offers a theory of moral obligation that is rooted both in command and in the law’s orientation to the common good.” —Justin Buckley Dyer, co-author of The Classical and Christian Origins of American Politics
“In our age of extreme political polarization, when fanaticism and self-righteousness lead many to think that they are justified in breaking the law to make a political point, scholars, leaders, and ordinary citizens need to be reminded of the philosophical and moral basis of our obligation to obey the law—even when we happen to disagree with it, and even when we may have a legitimate grievance. Readers will find no more sober, profound, and thorough account of this important issue than Daniel Mark’s The Nature of Law.” —Carson Holloway, co-editor of The Political Writings of Alexander Hamilton
As I tell my students, one of the central questions in political philosophy is whether politics is ultimately about justice or power. This debate is one way to describe the arc of the field from its earliest core texts to some of its most prominent postmodern figures. “What is justice?” is the animating question for Socrates’s discussions in Plato’s Republic, and the quest to define justice is at the heart of understanding politics. About two and a half millennia later, riffing on Carl von Clausewitz, Michel Foucault observed that, while “It may be that war as strategy is a continuation of politics,” “it must not be forgotten that ‘politics’ has been conceived as a continuation, if not exactly and directly of war, at least of the military model as a fundamental means of preventing civil disorder.” Foucault’s position is that all laws (and not just laws) are a form of subjugation of one group by another.
But we do not need to reach across the ages to find this dichotomy. On the contrary, Socrates’s most adamant foil in the Republic is Thrasymachus, who contends that justice “is nothing other than the advantage of the stronger.” Thrasymachus serves as Socrates’s most significant opponent precisely because he represents a polar-opposite approach to justice, essentially reducing “justice” to power, much like Thucydides has the Athenians do in the Melian Dialogue with their “might makes right” stance.
This division between competing interpretations of politics is absolutely critical because it determines whether political competition is about advancing different visions of the common good or merely about seeking to dominate the rest, whether through strength of numbers in a democracy or otherwise. If politics is about justice, then even when we disagree–even when we disagree passionately and even when we disagree all the way down—we believe we are working for the good of all, however imperfectly. Ideally, this also tames politics if all sides are and see each other as enacting some vision of the common good. Moreover, law’s connection to the common good serves as a check on those advancing an agenda in good faith because it demands an account of how that agenda contemplates the good of all. For this reason, grasping the connection to the common good teaches us that we owe each other reasons—reasons rooted in a final appeal to justice—for the restrictions we impose upon each other through the law. If politics is about power, then it just comes down to defeating or being defeated. Reasons are nice, but they are not an essential ingredient in deciding who rules or what the rules are.