Legal Obligation and its Limits

44 Pages Posted: 10 Sep 2018 Last revised: 10 Oct 2018

See all articles by Emad H. Atiq

Emad H. Atiq

Cornell University - Law School; Cornell University - Sage School of Philosophy

Date Written: August 25, 2018

Abstract

Judges decide cases by appeal to rules of general application they deem to be law. If a candidate rule resolves the case and is, ex ante and independently of the judge’s judgment, the law, then the judge has a legal obligation to declare it as such and follow it. That, at any rate, is conventional wisdom. Yet the principle is false—a rule’s being law or the judge’s believing it to be law is neither necessary nor even sufficient for a judge being legally obliged to follow it. The principle’s falsity is especially apparent in so-called hard cases, where the line between legal and non-legal rules is obscure. Moreover, judges have authority to disregard law in hard cases not because moral (or non-legal) obligations trump legal obligations. Rather, the law itself circumscribes its own authority. The implications for legal philosophy are significant; for one, a theory of juridical norms can be developed independently of the precise boundaries of legality.

Keywords: Legality, Judicial Norms, Hard Cases, Positivism, Anti-positivism, Epistemic Indeterminacy

Suggested Citation

Atiq, Emad H., Legal Obligation and its Limits (August 25, 2018). Law and Philosophy, Forthcoming; Cornell Legal Studies Research Paper No. 18-44. Available at SSRN: https://ssrn.com/abstract=3238785

Emad H. Atiq (Contact Author)

Cornell University - Law School ( email )

Myron Taylor Hall
Cornell University
Ithaca, NY 14853-4901
United States

Cornell University - Sage School of Philosophy ( email )

218 Goldwin Smith Hall
Ithaca, NY 14853-3201
United States

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