Against Obligation: The Multiple Sources of Authority in a Liberal Democracy

A. Greene, AGAINST OBLIGATION: THE MULTIPLE SOURCES OF AUTHORITY IN A LIBERAL DEMOCRACY, Harvard University Press, 2012

Fordham Law Legal Studies Research Paper No. 2016256

Posted: 7 Mar 2012

See all articles by Abner S. Greene

Abner S. Greene

Fordham University School of Law

Date Written: March 5, 2012

Abstract

In this book, I tackle the related issues of political and interpretive obligation. In Chapter I, I argue that citizens do not have even a prima facie moral duty to obey the law just because it’s the law, even in a liberal democracy. I cover arguments for political obligation that one might call agent-centered (consent, duty of fair play, and political participation), status-based (natural duty, associative obligation), and state-centered (consequentialist arguments from systemic stability). None of these theories, either separately or mixed, can support political obligation as a general matter. But my argument is not only against political obligation; it is also, as Chapter II develops, for “permeable sovereignty,” i.e., the idea that all of our sources of value, and of duty, should be considered presumptively on par with each other, including value and duty based in the law. From the challenge to political obligation and the case for permeable sovereignty, I elaborate the claim that the state should accommodate our religious and other norms whenever possible.

The second half of the book argues that interpreters of the U.S. Constitution do not have an obligation to follow either prior or higher sources of constitutional meaning. Thus, Chapter III argues that interpreters have no duty to follow either original meaning or precedent (and I canvass some other theories about obligation to the past as well). Chapter IV enters the “popular constitutionalism” debate on the side of a fairly capacious decentered understanding of the Supreme Court’s role in constitutional interpretation. Throughout these two chapters, I reject claims for a general, prima facie duty to follow prior or higher sources of constitutional meaning that stem from similar groundings to arguments for political obligation; the rejections are often parallel to ones I offer in the first half of the book. In particular, I consider in detail and turn aside claims based in the systemic virtues of settlement.

In the end, I suggest that the state’s authority might have to come from yielding the more commonplace understanding of content-independence, deferring to citizens and interpreters in many instances, making the case for obedience, of either the political or interpretive kind, on the merits (or content) of each law or case or constitutional understanding.

Suggested Citation

Greene, Abner S., Against Obligation: The Multiple Sources of Authority in a Liberal Democracy (March 5, 2012). A. Greene, AGAINST OBLIGATION: THE MULTIPLE SOURCES OF AUTHORITY IN A LIBERAL DEMOCRACY, Harvard University Press, 2012; Fordham Law Legal Studies Research Paper No. 2016256. Available at SSRN: https://ssrn.com/abstract=2016256

Abner S. Greene (Contact Author)

Fordham University School of Law ( email )

140 West 62nd Street
New York, NY 10023
United States

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