When and How (If at All) Does Law Constrain Official Action? (The Sibley Lecture)
University of Virginia School of Law
October 26, 2009
Georgia Law Review, Vol. 45, No. 1, 2010
Virginia Public Law and Legal Theory Research Paper No. 2010-02
Debates about the obligation to obey the law have been around for literally thousands of years, but the empirical side has received much less attention. Moreover, most of the existing empirical work has focused on citizens and not officials, and consequently we know little about the extent to which law qua law motivates official action. This paper, presented as the John A. Sibley Lecture at the University of Georgia School of Law, draws on the jurisprudential and philosophical literature to frame the question of obedience to law, and then seeks to encourage empirical inquiry into the particular question of whether officials obey the law as law, independent of the content of the law and independent of the possibility of sanctions for non-compliance. It offers the hypothesis that although there is much talk about official obligation to the law, in fact officials rarely obey the law just because it is the law, and are rarely politically punished for engaging in sanction-free illegal actions when their constituents approve their first-order substantive decisions. For official behavior, therefore, there may be considerably less internalization of law than is commonly supposed. And if this hypothesis turns out to be true, the implications for public law may be considerable. Moreover, if sanction-free internalization of law is less common than many commentators believe, it would be appropriate to give renewed attention to the role of sanctions and coercion not only in securing compliance with law, but also in understanding the nature of law itself.
Number of Pages in PDF File: 42
Date posted: October 27, 2009 ; Last revised: January 20, 2010