The Download of the Week is Is the Concept of Obligation Moralized? by Kenneth Einar Himma. Here is the abstract:
Conceptual jurisprudence is concerned to explicate the concept of law and other concepts central to core legal practices, as we understand them. The centrality of obligation-talk to legal practice is obvious, as the very point of litigation is to resolve disputes regarding the obligations of the various parties. As H.L.A. Hart puts it, “where there is law, there human conduct is made in some sense non-optional or obligatory.” Accordingly, no conceptual theory of law can be wholly successful without an adequate account of the nature of legal obligation that also explains whether and how law creates legal obligation.
Neither Hart nor Austin has a successful account of legal obligation. Hart rejects John Austin’s command theory of obligation on the ground that coercive commands can oblige, but never obligate, compliance; a sovereign threat of a sanction is as purely coercive as a gunman’s orders. But Hart's view is vulnerable to the same problem: a conceptually possible system in which citizens do not accept law or view law as providing any reasons for action seems as coercive with respect to citizens as a gunman’s orders are with respect to victims.
In this essay, I argue that the problems afflicting Hart’s theory of obligation gesture in the direction of thinking that the general concept of obligation – of which social, legal, and moral obligation are subtypes – includes a conceptual moral constraint. Just as only a very good person can count as a “saint,” only a system of norms that satisfies certain moral norms can count as giving rise to “obligations.” Accordingly, I argue, as a conceptual matter, that only those institutional systems of social norms that satisfy some threshold level of moral respectability have the capacity to create obligations.
Highly recommended!
