THE NATURE OF LAW: CONTEMPORARY PERSPECTIVES, Wilfrid Waluchow, Stefan Sciaraffa, eds., Oxford: Oxford University Press, 2013
28 Pages Posted: 4 Sep 2012
Date Written: September 4, 2012
The concept of legal obligation is utterly central to legal practice. But positivism lacks a comprehensive account of legal obligation, focusing only on the second-order recognition obligations of officials with no account of the first-order legal obligations of citizen. As legal obligations are conceptually related to legally valid norms, this failure calls into question positivism’s theory of legal validity. In this essay, I attempt to remedy this omission. I augment Hart’s theory of second-order official obligation by attempting to ground a theory of first-order obligation of citizens in a modification of what I take to be Hart’s analysis of social obligation. The first-order obligations of citizens are partly constituted by social pressure in the form of the authorization of the state’s coercive machinery for non-compliance.
Keywords: positivism, obligation, social norms, primary norms, social obligation, Hart, legal obligation, coercion, enforcement
Suggested Citation: Suggested Citation
Himma, Kenneth Einar, A Comprehensive Hartian Theory of Legal Obligation: Social Pressure, Coercive Enforcement, and the Legal Obligations of Citizens (September 4, 2012). THE NATURE OF LAW: CONTEMPORARY PERSPECTIVES, Wilfrid Waluchow, Stefan Sciaraffa, eds., Oxford: Oxford University Press, 2013. Available at SSRN: https://ssrn.com/abstract=2141033