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The existence of law can give us reasons to act in particular ways. Most obviously, the fact that we are required to drive on the left in the UK gives each of us a reason to drive on the left: driving on the right becomes extremely dangerous if everyone else is driving on the left. The assurance the law gives us that it will give us a remedy if someone breaches a contract with us, can give us reasons to trust someone to perform a contract that would not be present in the absence of that assurance. The prospect that we might be held liable if someone is injured on a school trip that we are supervising may give us reason to scrap the idea of taking 30 schoolchildren camping. Some of these effects are intended; some not. This chapter is about situations where the law intends to supply us with a reason to act in a particular way by requiring us to act in that way.
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Austin, Lectures on Jurisprudence, Volume I, 3rd edn (John Murray, 1869), 90–91.
Holmes, ‘The path of the law’ (1896–97) 10 Harvard Law Review 457, 459, 461.
CL, 88 (see list of abbreviations, p. xv).
CL, 218. See also CL, 198.
See Hart, Essays on Bentham (Oxford University Press, 1982), 253–55 for the clearest statement to this effect.
See Endicott, ‘The subsidiarity of law and the obligation to obey’ (2005) 50 American Journal of Jurisprudence 233, at 235: ‘the existence of an attitude to an obligation does not explain the nature of the obligation … ’. Also Endicott, ‘Law and language’ in Zalta (ed.), Stanford Encyclopedia of Philosophy (at http://plato.stanford.edu/entries/law-language/), §3.2: ‘Hart had nothing to say about the meaning of normative expressions such as “ought” and “must” or “obligation” or “right” … He only pointed out that people display an attitude when they use it.’
Hart, Essays on Bentham (above, n. 11), 160.
Self-confessed: see Lacey, A Life of HLA Hart: The Nightmare and the Noble Dream (Oxford University Press, 2004), 335–37.
Atiyah, Essays on Contract (Oxford University Press, 1987), 62–63 (questioning whether a contract to buy a second hand car can be said to give rise to a legal duty to buy the car when breach of that contract only results in an award of nominal damages (assuming the second hand car dealer can find another buyer for the car at the same or a better price)); Nolan, ‘Deconstructing the duty of care’ (2013) 129 Law Quarterly Review 559, 561 (dismissing the suggestion that there can be a duty of care not to expose people to a foreseeable risk of harm on the ground that exposing people to such a risk will not incur any liability to pay damages to the person endangered).
Dworkin, Justice for Hedgehogs (Harvard University Press, 2011), 406.
Schauer, ‘Was Austin right after all? On the role of sanctions in a theory of law’ (2010) 23 Ratio Juris 1; Schauer, The Force of Law (Harvard University Press, 2015). See also Morrison, ‘Law is the command of the sovereign: HLA Hart reconsidered’ (2016) 29 Ratio Juris 364. Schauer’s views are very well discussed from a Hartian perspective by Green, ‘The forces of law: duty, coercion, and power’ (2016) 29 Ratio Juris 164.
Raz, The Authority of Law, 2nd edn (Oxford University Press, 2009), 158 (a statement endorsed by Raz at 159).
Raz, Practical Reason and Norms (Princeton University Press, 1990), 29–33.
Cf. Kramer, ‘Requirements, reasons, and Raz’ (1999) 109 Ethics 375, at 379: ‘morality and prudence exhaust the realm of reasons.’
Raz, The Authority of Law (above, n. 22), 29–33; Raz, ‘Authority, law, and morality’ in his Ethics in the Public Domain (Oxford University Press, 1994).
Raz, The Morality of Freedom (Oxford University Press, 1986), 53.
Such an argument has been made recently by Greenberg, ‘The moral impact theory of law’ (2014) 123 Yale Law Journal 1228 and Hershowitz, ‘The end of jurisprudence’ (2015) 124 Yale Law Journal 1160. Both of these writers take the view that our legal obligations are the moral obligations that we have by virtue of the history of the political institutions under which we live. Such a position may also have been adopted at the end of his life by Ronald Dworkin, in Chapter 19 of his Justice for Hedgehogs (n. 20), where he denied that ‘law and morality … compose separate systems of norms’ (402) and argued that law is ‘part of political morality’ (405). For such a reading of Dworkin, see Waldron, ‘Jurisprudence for hedgehogs’ (2013) (available on SSRN at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2290309). However, even these theories do not provide us with what we are looking for in this debate – which is an account of what a provision such as s. 1(1) of the PHA is telling us. We may have a moral obligation not to harass by people by virtue of s. 1(1) of the PHA, but that does not help us to understand what it is that s. 1(1) of the PHA is actually saying.
See Hart, Essays on Bentham (above, n. 11), 159.
 1 WLR 1999.
Raz, ‘The problem about the nature of law’ in his Ethics in the Public Domain (above, n. 25), 202. See also Gardner, ‘What law claims, how law claims’ in his Law as a Leap of Faith (Oxford University Press, 2012).
It might be worth a footnote to point out how unsatisfactory arguments that someone is necessarily saying or claiming something are: they are a way of winning an argument without making one. See, for example, the funny story told by Derek Parfit in the Preface to his On What Matters: Volume One (Oxford University Press, 2011) about asking a Kantian philosopher about Kant’s Categorical Imperative: ‘I asked a Kantian, “ … if I don’t give myself Kant’s Imperative as a law, I am not subject to it?” “No,” I was told, “you have to give yourself a law, and there’s only one law.” This reply was maddening, like the propaganda of the so-called “People’s Democracies” of the Soviet bloc, in which voting was compulsory and there was only one candidate. And when I said, “But I haven’t given myself Kant’s Imperative as a law”, I was told “Yes you have.” This reply was even worse.’ (xlii–xliii).
See Kramer, ‘Requirements, reasons, and Raz’ (above, n. 24).
Ibid, 383, quoting MacCormick, ‘Legal obligation and the imperative fallacy’ in Simpson (ed.), Oxford Essays in Jurisprudence, 2nd series (Oxford University Press, 1973), 106–07.
Kramer, ‘Requirements, reasons, and Raz’ (above, n. 24), 390–95.
John Finnis takes the same position, arguing that ‘It seems entirely possible for a regime to proclaim: “Our law, which satisfies all the (say) Hartian criteria … imposes legal duties and confers legal rights that have nothing to do with moral rights. Our law imposes legal obligations that are not moral obligations, and has nothing to do with justice in the moral sense etc. but is instead a structure of ordered power designed to pursue our sectional purposes. We as a regime will mercilessly enforce this law.” I see no compelling reason why this “would not be a legal order” (still less why it is conceptually impossible). It is simply very deviant … ’: Finnis, ‘Reflections and responses’ in Keown and George (eds), Reason, Morality and Law (Oxford University Press, 2013), 538. See also Finnis, ‘Introduction’ in Finnis, Philosophy of Law: Collected Essays of John Finnis Volume IV (Oxford University Press, 2011), 8, fn. 18.
Such a position would also be compatible with the coercion-centric accounts of the law offered by theorists such as Schauer and Morrison (above, n. 21).
Kramer, ‘Requirements, reasons, and Raz’ (above, n. 24), 396.
Cf. Schauer, The Force of Law (above, n. 21), at 128: ‘That coercion is a pervasive characteristic of legal systems, and that it is an important if not logically essential component of law as we know it … does not entail the conclusion that a threat of coercion is an essential component of every individual prescription that we should designate as law or recognize as a component of a legal system.’
go back to reference Hart, CL, chs 2, 3.1, 5.1, 5.2. Hart, CL, chs 2, 3.1, 5.1, 5.2.
go back to reference Raz, The Authority of Law, 2nd edn (Oxford University Press, 2009), chs 1 and 2. Raz, The Authority of Law, 2nd edn (Oxford University Press, 2009), chs 1 and 2.
go back to reference Hart, Essays on Bentham (Oxford University Press, 1982), chs VI and X. Hart, Essays on Bentham (Oxford University Press, 1982), chs VI and X.
go back to reference Gardner, ‘What law claims, how law claims’ in Gardner, Law as a Leap of Faith (Oxford University Press, 2012). Gardner, ‘What law claims, how law claims’ in Gardner, Law as a Leap of Faith (Oxford University Press, 2012).
go back to reference Kramer, In Defense of Legal Positivism (Oxford University Press, 1999), ch. 4. Kramer, In Defense of Legal Positivism (Oxford University Press, 1999), ch. 4.
- The Normativity of Law
Nicholas J McBride
Dr. Sandy Steel
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