On Political Obligation and the Nature of Law

89 Pages Posted: 8 Dec 2011

See all articles by Kurt Gerry

Kurt Gerry

New York University School of Law

Date Written: September 2, 2011

Abstract

In this paper, I attempt to elucidate the nature of law by way of philosophical anarchism. As a result, the implicit premises, assumptions, and structure of my argument can be broken down as follows: (1) it is a commonplace that law is a social phenomenon, that is, its existence is, in some sense, always a matter of social facts; (2) it is a commonplace that law is in some sense a product of the political; (3) in order to understand how law relates to the political and is (at least partly) determined by social facts, we must understand the political relationship; (4) in order to understand the political relationship, we must understand the nature of political obligation; (5) in order to fully understand political obligation, we must engage in normative argument regarding the existence of political obligation; (6) there is no political obligation; (7) this conclusion helps us understand the nature of law; in particular, (i) we must abandon a strong guidance-based conception of law, (ii) we must reconsider our ideas regarding “law’s normative claims,” and (iii) coercive superiority is an essential concept for understanding the nature of law as a social practice.

Before moving forward, I must note what this argument is not. It is not a logical deductive argument. Rather, I am making a claim about the nature of a social practice. My claim is that we can have a better understanding of this social practice once we recognize that there is no political obligation. As such, I do not claim that certain conclusions necessarily follow as a matter of definition and logic. I thus claim that the nature of law as a social practice is made clear by recognizing that the assertions of certain theorists regarding an obligation to obey the law are all false.

Keywords: Legal Philosophy, Legal Positivism, Jurisprudence, Political Obligation, Philosophical Anarchism

Suggested Citation

Gerry, Kurt, On Political Obligation and the Nature of Law (September 2, 2011). Available at SSRN: https://ssrn.com/abstract=1969980 or http://dx.doi.org/10.2139/ssrn.1969980

Kurt Gerry (Contact Author)

New York University School of Law ( email )

40 Washington Square South
New York, NY 10012-1099
United States

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