When and why do we have an obligation to obey the law? Prevailing theories in the philosophy of law fail to provide definitive answers regarding the nature of legal obligation. In The Nature of Law: Authority, Obligation, and the Common Good, Daniel Mark argues that there is a prima facie moral obligation to obey the law simply because it is the law.
One way to think about the contrast between theories of authority and obligation is to compare the command model, often associated with Bentham and Austin, where authority is located in the power of the commander, with Joseph Raz’s approach, where authority is located in the force of the reasons behind the command. The command model is significant for two reasons. First, opposition to the command model is the starting point for Hart’s theory and frames the development of his own hugely influential concept of law. Second, and relatedly, the overreach in Hart’s critique of the command model provides the basis for my own concept of law and especially the recovery of the command aspect of law. Raz is so important because, like Hart, he looms large over all subsequent analytic jurisprudence, offering his own account of law’s authority, which the command model and other theories fail to justify.
Older versions of the command model in which, for example, the sovereign is he who is habitually obeyed and who habitually obeys no one, are inadequate because they seemingly reduce all measure of political authority to power (and efficacy), thereby overlooking or at least obscuring questions of justification. This reductiveness creates a problem because, on one hand, it must mean either that even the worst dictator is as justified as the most worthy regime (i.e., that power justifies authority), or, on the other hand, it must mean that authoritativeness can exist without justification. Either way, this reduces authoritativeness to the simple fact of having power—of being able to cause others to comply—so there is no real distinction between justified and unjustified authority. This approach is unilluminating and does not provide or point us toward a satisfying normative account of authority because it merely attaches the name “authority” to coercion; it simply describes who wields power. On a more sophisticated level, it is unhelpful because it fails to explain why, short of fear of punishment (or desire for reward), anyone should or would obey authority. In that respect, such a view fails to take into account the fundamental difference between law and coercion, which Hart is at pains to point out in his distinction between being “obligated” to obey the law and being “obliged” to obey an armed robber.
After removing accoutrements of the command model such as sanctions or habits of obedience, which are flaws in the theory but are, it turns out, unnecessary for a correct concept of law, the main problem remains: the command model appears to ground obligation in nothing more than sheer will. In the “pure” version of the command model, the commander’s directives are law because she stands in a relation of superiority to the commanded, as defined by the commander’s ability to impose penalties (or another mark of sovereignty). For some command theorists, all commands are justified simply by virtue of being the will of the commander. Thus, the command model is a theory of authority that offers insufficient justification for authority or no justification at all. A better theory demands an answer as to why the will of the commander binds. By what right does the commander bind the commanded? That is, what is the justification of authority?
At the same time, the leading theories that abandon the command model altogether are also inadequate because they, too, in a very different way, cannot account for or accommodate the normativity of authority. As I argue, for Raz, there can be reasons to comply with a law, but those reasons always fall short of imposing an obligation to do what the law says because the law says it. Relatedly, for Hart, there can be many good reasons for acting as though the law imposes an obligation to follow the law, but, because the law finds its basis in social rules, there is no room for showing how there could be an obligation to do so. On these currently dominant views, there is no model of authority in which the commands of a particular commander are justified as obligating reasons for action, either because no command can be justified or because authority cannot be located in a particular commander.
(excerpted from chapter 3)