Abstract
This paper offers a critical assessment of the way the influential “conception of law as a shared activity” explains the normative component of law in general and legal obligation in particular. I argue that the conception provides a bipartite account of legal obligation: we have full-blooded legal obligation, carrying genuine practical force, and legal obligation in a perspectival sense, the purpose of which is not to engage with us in practical reasoning, but simply to state what we ought to do if we should take the perspective of individuals subject to the jurisdiction of the legal system. This structural feature makes the whole account disjointed, giving it a lack of unity from which stem what I take to be its three main problems, namely, its limited scope, its failure to recognize the moral features of obligation when made to arise out of law as a shared activity, and its failure to illustrate the sense in which law is widely recognized to be a practical institution.
Highlights
The contemporary debate in analytical legal philosophy is shaped by two truisms about law which jurisprudents have not yet managed to coherently work into a comprehensive theoretical framework
A legal obligation in this perspectival sense–the sense arising from the standpoint of one embedded in the context of the legal system and who takes the distinctive perspective of the master plan forming the foundation of law–is not an obligation in a genuine sense, because it stands only so long as we wall off any considerations not specific to the shared practice or master plan itself.[26]
My main concern in this article has been to point out some significant shortcomings of the account of legal obligation offered by the conception of law as a shared activity
Summary
The contemporary debate in analytical legal philosophy is shaped by two truisms about law which jurisprudents have not yet managed to coherently work into a comprehensive theoretical framework. Contemporary legal philosophers find themselves stuck in what appears to be a dilemma with no obvious way out: insofar as they organise their accounts of law around law’s social dimension, their legal theories run the risk of paying insufficient attention to the normativity of law, turning out an inaccurate explanation of such normativity; insofar as they instead put front and centre the law’s capacity to generate reasons, rights, and obligations (at least presumptive ones), the sociality of law will tend to be neglected, and with it the significance of law’s factual component This Janus-faced feature of law–its being at one and the same time a social practice and a normative institution–means that anyone seeking to put forward a comprehensive theory of law will have to reconcile two dimensions that seem to pull in opposite directions and yet are both recognised as fundamental and indispensable. (in Section 5) I turn to the perspectival sense of legal obligation, arguing that this rendering of obligation overlooks the practical import the legal enterprise is widely acknowledged to have, failing to explain the ability of legal institutions to play their typical guidance function through the obligations they set forth
Sign-in/Register to view highlights & summary Talk to us
Join us for a 30 min session where you can share your feedback and ask us any queries you have
Schedule a callDisclaimer: All third-party content on this website/platform is and will remain the property of their respective owners and is provided on "as is" basis without any warranties, express or implied. Use of third-party content does not indicate any affiliation, sponsorship with or endorsement by them. Any references to third-party content is to identify the corresponding services and shall be considered fair use under The CopyrightLaw.
