Legal positivism lacks a comprehensive theory of legal obligation. Hart's account of legal obligation, if successful, would explain only how the rule of recognition obligates officials. There is nothing in Hart's account of social obligation and social norms that would explain how the legal norms that govern citizen behavior give rise to legal obligations. However, we cannot give a theoretical explanation of the concept of legal obligation without a theoretical explanation of the concept of obligation. If legal, social and moral (...) obligations are three instances of the kind defined by “obligation,” then we cannot successfully explicate the nature of legal, social or moral obligations without a successful general conceptual theory of obligation. In what follows, I attempt to develop what I take to be the central elements of the general concept of obligation. I argue that obligations are (1) associated with mandatory prescriptions; (2) reasons for action; (3) exclusionary in the sense that certain reasons are excluded as an excuse of justification for non-performance; and (4) “binding” in the sense that they have a special normative force. At the end of the paper, I briefly argue that our shared concept of obligation is indeterminate with respect to one theoretically important case, the issue of whether the rules of a crime gang that includes some sort of rule-defining procedures for making rules governing members obligate gang members if accepted as legitimate by the members. (shrink)

A spectre is haunting legal positivists – and perhaps jurisprudes more generally – the spectre of the normativity of law. Whatever else law is, it is sometimes said, it is normative, and so whatever else a philosophical account of law accounts for, it should account for the normativity of law[1]. But law is at least partially a social matter, its content at least partially determined by social practices. And how can something social and descriptive in this down-to-earth kind of way (...) be normative?[2] This is presumably a problem for any theory of law, but it is especially acute for legal positivism, according to which (roughly speaking) all there is to facts about legality are such descriptive social facts. If this is so, the thought goes, the task of accommodating the law’s normativity immediately becomes both more daunting, and more urgent[3]. Unfortunately, though, it is entirely unclear what the problem of the normativity of law is supposed to be. Indeed, I suspect that there is no one problem here, as different people seem to have in mind different problems when they use this unhelpful phrase[4]. At least one family of issues people seem to have in mind when they talk about the normativity of law is a host of issues pertaining to the reason-giving force of the law. The law, it is sometimes said, gives reasons for action, and a theory of law should accommodate this obvious fact. But even when we focus just on questions regarding the reason-giving force of the law (and from now on I will restrict myself to just those, leaving other things people may have in mind when they talk about the normativity of law for another occasion), it is still not clear what the problem is. Indeed, my main purpose in this paper is to make some progress in understanding the relevant question here. And my conclusion is going to be somewhat skeptical: Once we are clear on what reason-giving in general consists in, and on what reason-giving powers the law actually has, there is not much by way of a problem here that needs to be solved, not a deep and interesting phenomenon here that theories of law need to accommodate, and that therefore places adequacy constraints on plausible theories of the nature of law.. (shrink)

John Searle began to discuss his recently published book `The Construction of Social Reality' with Anthony Freeman, and they ended up talking about God. The book itself and part of their conversation are introduced and briefly reflected upon by Anthony Freeman. Many familiar social facts -- like money and marriage and monarchy -- are only facts by human agreement. They exist only because we believe them to exist. That is the thesis, at once startling yet obvious, that philosopher John Searle (...) explores in The Construction of Social Reality. (shrink)