Complex Democracy and the Obligation to
Obey the Law
Agust�n Jos� Men�ndez
ARENA
Abstract
This paper aims at building the foundations of a
deliberative or discursive theory of the obligation to
obey the law. On the basis a critical approach to the
most frequent arguments on the matter, namely
philosophical anarchism and communitarian or associative
theories of political obligation, an attempt is made to
reconstruct the critical points of reference for
determining whether we have an obligation to obey the
law. It is argued that we must distinguish the general
question from the practical one of deciding in concrete
cases whether to abide by the law. This stresses the role
of the obligation as an auxiliary of practical reason. It
is further claimed that we need to distinguish between
the legally imposed constrains derived from the social
functions attached to law and the positive requirements
for legitimacy of legal norms. The resulting theory of
law's legitimacy is said to be complex because it relies
on three complementary sources: participation,
substantive correctness and guaranteed implementation.
Introduction
This paper can be seen as preliminary work towards a
deliberative conception of political obligation. The
basic methodological assumption is that legal and
political theory cannot avoid setting as the first issue
in the agenda the legitimacy of political
institutions. The main institutional assumption is that
any relevant theory must be able to cope with the
emergence of supranational legal systems. Sovereignty is
no longer (was it ever?) a black box in which we can drop
all theoretical and normative problems. In this sense,
this paper might fit into a more general theory of the
European Constitution. The underlying insight is that we
can need to take on board the functional needs that the
legal system as such is supposed to perform, while given
good reasons for it to perform them. It is only from such
standpoint that we can start building a positive argument
for the general obligation to obey the law.
I. The general obligation to obey the law
This section poses in a more precise and explicit way
the question whether there is an obligation to obey the
law. We need to reflect on this because a positive or a
negative answer is obviously conditioned by what is
implicit in it, or what is the same, by how we
characterise the obligation [1].
I make four basic claims. First, that the obligation
to obey the law is a moral a question which should be
posed as a general practical question and not as a
narrowly legal one. Second, the answer to it should be
seen as a basic auxiliary tool to our daily exercise of
practical reason. Third, that the obligation is to be
characterised as general, but marginally defeasible.
Fourth, that the problem is roughly the same as that of
the authority of law or the legal system.
As we will see in section II of this chapter, the
present analysis allows us to focus exclusively on
relevant issues and dissolves many of the apparently very
strong disagreements, that are to a large extent due to
the fact that authors are dealing with very different
questions
1. A Moral, not a Legal Obligation
�1 The question whether there is an obligation to
obey the law must be seen as a moral one, posed within
general practical discourse [2].
A corollary of this claim is that we are not interested
in considering the question as a legal one [3]. This is so mainly
for two reasons.
First, the law cannot provide ultimate or categorical
reasons for action. We just need to consider the
individual who challenges her legal obligations and asks
for a justification of them. When she faces a concrete
norm, she asks why she should comply with it. The legal
system can provide intermediate reasons up to a point,
that correspond to the constitutional norm on which the
validity of the whole system rests. But there is no
reason why the individual should be satisfied at that
point. When she asks why she should comply with the
Constitution, no reference to the legal system can
constitute a relevant argument. Kelsen's reference to the
necessary endorsement of the
hypothetical grundnorm or Hart's appeal to the
sociological fact of endorsement of the primary norm of
recognition by judges are simply not enough. Only moral
reasons can provide ultimate reasons for action [4]. This implies that
only by reference to moral reasons we can redeem in full
the claim to legitimacy of law [5]
(though we will see that the evaluation is a complex one
that should take into account the peculiar tasks assigned
to the legal system) [6].
Second, the existence of a legal obligation to obey
the law is at the very least implicit in all legal
systems. If a system does not claim that its addressees
should comply with it, then it should not be considered
as a legal one [7].
2. A Basic Assistant to Practical Reason
�2 The general obligation to obey the law is to be
understood as a basic tool of our practical reason, as a
valuable assistant to our moral powers.
The combination of limited moral powers and the
unstoppable need for complex decisions which are morally
relevant implies that our capacity to engage in practical
reasoning is limited. Just think about the following
facts, familiar to all human beings.
First, we are active beings. Most of the time, we
engage into courses of action without much further ado.
Even when we stop to evaluate the options open to us in
normative and prudential terms, we do so quickly. Only in
exceptional cases we stop to reflect at length. This
implies that we exercise our moral powers in a selective
way. Imagine if that was not the case. Just consider that
we had to consider the merits of each single action, a
bit like in the artificial reconstruction of
utilitarianism as act-utilitarianism. The outcome will be
that we will not be able to manage reality. We will end
up paralysed. This just indicates that the sheer
feasibility of practical reasoning requires that we are
selective in its exercise. To do so, we need to map the
sphere of action with the help of reflection on standard
cases. This explains the differentiation of different
layers of reasons for action, something further
complicated by the needs of conflict-solving and
coordination with others. At any rate, these different
layers include reasons of different types, of variant
strength and resistentace to be overriden by later
reflection.
Second, we need law, at least to the
extent that we interact with others [8].
However, we have also seen that law is authoritative and
partially heteronomous. This implies an ambivalence. On
the one hand, we observe that the functional tasks that
law performs as a complement of morality require its
autonomy vis a vis morality and general practical
reasoning [9]. On
the other hand, this implies a potential divergence
between law and morality. Sometimes this might be
justified by reference to the constrains which law
imposes on general practical discourse. But other times
this might be due to the fact that law is
instrumentalised by interests which cannot be justified.
Laws can be unjust. That is the basic insight of the
moralistic or normative case for positivism. Such
argument goes that we should stricly differentiate law as
it is and law as it should be; if we do not do so, we run
the risk of lacking a vantage point from which to
criticise positive law. We could rehearse the arguments
in order to qualify such conclusion, but for our present
purposes, the gist of the claim is correct. Because it is
precisely the realisation of the potential unjust
character of law that makes it so important to exercise
practical reason when we come across legal norms. And as
we have just mentioned in the previous paragraph, we will
be overloaded if we proceeded to pass judgment in a case
by case basis. For such reason, our assesment of legal
norms must be based on a default or general position, to
be qualified or reviewed in concrete circumstance. This
is rendered clear by the key pragmatic
question which the general obligation to obey the law is
expected to answer: whether we should comply with an
unjust norm belonging to a system which is considered, as
a whole, to be just [10].
This explains why we need to
structure the exercise of our practical reason in several
layers. This corresponds to Rawls' insight that we need
to distinguish justifying a practice from justifying a
particular action falling under it [11],
Raz's claim that we need to differentiate first and
second order reasons [12]
or Hare's plea for “some, simple, general and more
or less unbreakable principles (...) to keep us from
special pleadings and other errors when in situations of
ignorance or stress” [13].
It also makes clear that the question whether there is an
obligation to obey the law must be seen as a clearly
practical, and even pragmatic, one.
3. A general but defeasible obligation.
A) The general character of the obligation to obey
the law
�3. When we act, we come across concrete legal norms
and generally with no “obligation to obey the
law” as here defined (that is, as a practical, not
legal question). For example, imagine that a bunch of
friends decides to open a bookshop, and to do so under
the specific regime of a co-operative. Not knowing how to
make heads or tails of legal arguments, they decided to
ask to a legal attorney how to proceed. The latter will
probably refer to a set of legal norms which they have to
observe, from city council regulations concerning health
and security to national labour laws on co-operatives.
But it will be rather strange that he will say that
“you have to obey the law” in general terms,
and even less in moral ones (unless this is a patronising
sort of attorney or the place where the book shop is open
is a quite peculiar one). But now imagine that the
friends want to open the book shop in a country where
importation of books is burdened with a 100% customs
duty. When told about this norm by the attorney, friends
could doubt whether the norm is just or unjust. Even if
they might end up complying with the law, they might
question it. The attorney will be of no help. The measure
might be reasonable (for example, it might be designed to
protect the emerging publishing industry of the country
from dumping from other states) or it might be not (it
could be due to a willingness to enrich one of the
ministers, who happens to be in the publishing industry).
At any rate, the friends will face the practical question
whether to comply or not with the law (they could travel
abroad and sneak books in, and later on sell them
“under the counter”). What is clear is that
this question requires a larger framework, which is
characteristic of the general obligation to obey the law.
But how large should it be? Should they balance the
unfairness of the concrete norm with the fairness of the
customs duties code? or with the rough fairness of civil
laws? or penal laws? or the constitution?
Notwithstanding the relevance of
intermediate layers (as the general obligation to pay
taxes itself), the general obligation to obey the law
must be related to the legal system as a whole. This is
so because law makes sense as a system and not as an
heterogeneous congeries of norms [14].
Only as a system it discharges certain tasks and
furthers certain values. The systemic character of law
allow us to realise that the general obligation to obey
the law is one of the basic secondary reasons which
assist our practical reason. Complying with a legal norm
is not an isolated affair, but one which has an impact on
the viability of law as a social practice. Let us see
this in more detail.
What we value most is not this or that norm, but law
as a social order, or what amounts to the same, its
capacity to discharge the basic functions of
conflict-solving and social co-ordination. This does not
require us adopting the extreme view of law as a seamless
web (which tips the balance towards an unconditional
acceptance of law's legitimacy) but to take into account
the systemic dimensions of the problem, and to frame each
specific question within the general obligation to obey
the law. If the concrete legal system is worthy of our
appreciation, we should take into account the fact that
its capacity to discharge such functions is endangered
beyond a certain threshold of disobedience.
�4. If the conditions for affirming
the existence of a general obligation to obey the law are
met, we can say that all legal subjects have an
obligation to obey the law in all instances to which the
law is applied. However, this does not necessarily imply
that such obligation must be exception-less. That is so
if only because the tasks assigned to law are not
impossible to fulfil even if some people do not abide by
the law. Moreover, weakening the force of the general
obligation to obey the law is the only way to reconcile
law as an authoritative order with individual moral
autonomy (which is the reason to consider the general
obligation to obey the law, to start with [15]). These two
considerations move us to consider the general obligation
to obey the law as marginally defeasible.
B) The Defeasible Character of the Obligation
a) Characterising the General Obligation as
Defeasible
�5. The most controversial step in the
characterisation of the general obligation to obey the
law is the determination of what kind of reason the
obligation is. To put it in different terms, the main
source of disagreement concerns the way in which its
relationship with other obligations is described. Let us
consider once again the central case in which the general
obligation to obey the law becomes relevant, namely when
we consider that the legal system as a whole is fairly
reasonable (and thus that there is a general obligation
to obey the law), but we face a concrete case in which
the applicable norm is unjust. What role does the
general obligation to obey the law play in such cases?
Does it give rise to an obligation to obey the law even
in such cases?
To exhaust the different ways of considering the same
idea, the question in technical terms is what kind
obligation the general obligation to obey the law is. Is
it to be characterised as a prima facie one? (a
sort of rule of thumb that compiles and balances all
relevant reasons in abstract terms, but which needs to be
balanced against concrete reasons that might be relevant
in the context of application). Or as an absolute
obligation (that requires us to exclude any reason that
might be seen as relevant in the context of application)?
Or as something in between, like Raz's exclusionary
reason? (which implies that the obligation is seen as
a secondary reason which excludes the possibility that
its addressees can offer most reasons in contrast to it)?
Some remaining arguments can exceptionally be invoked
against the general obligation to obey, in which case we
can balance them against it and eventually not obey the
law.
�6. We have good reasons to disregard the
characterisation of the general obligation to obey the
law as a prima facie or as an absolute reason to
obey the law.
On the one hand, if the obligation to
obey the law was seen just as a prima facie one,
it would not provide us with anything other than a sort
of point of departure in our analysis of whether we
should obey or not the law. The law must be something
more than just a gatekeeper of the moral agenda if we
want it to perform the roles of conflict-solving and
social co-ordination successfully. This is something (but
not everything) that is implied in Raz's argument that
legal norms are reasons for acting, and not merely
statements to the effect that there are reasons for
acting [16].
But if we consider it as providing an absolute reason,
then we cannot any longer see it as part and parcel of
the exercise of our practical reason, but as an
alternative to it. We will see that it is precisely
because philosophical anarchists characterise the
obligation in these terms that they come to the
conclusion that it is impossible to reconcile the two.
�7. We could turn to an alternative
characterisation of the obligation as an exclusionary
reason, on the basis of the definition of the latter
provided by Raz [17].
Let us consider what Raz understands by it.
First, he distinguishes
between first- and second-order reasons. The latter are
defined as reasons to act or refrain from acting for a
reason [18].
Second, second-order reasons and first-order reasons do
not intermingle in our exercise of practical reason. This
implies that when they enter into conflict, secondary
reasons simply prevail [19].
This means that the relationship between second- and
first-order reasons is not a matter of weight, but of
simple priority. Third, that does not mean that the
dimension of weight is unknown to second-order reasons.
However, weighing and balancing can only take place among
second-order reasons themselves [20].
Fourth, second-order reasons might be cancelled by
“cancelling reasons”, and its scope (or
jurisdiction, to say it in more legalistic terms) might
be affected by what Raz names as “scope-affecting
reasons” [21].
Fifth, exclusionary reasons are a special type of
secondary reasons. They are reasons for not acting for a
reason [22]. They
can be represented as a sort of brackets that exclude
consideration of first order reasons altogether.
This characterisation is fruitful when applied to the
general obligation to obey the law. First, it brackets
most reasons falling outside the legal domain that are
contrary to what is prescribed by the law itself. If we
state that somebody is under an obligation to abide by
the law, we stress the fact that she should no longer
weight and balance all relevant reasons. This insight is
clearly connected with the value we ascribe to law as a
complement of morality. Second, the idea of an
exclusionary reason fits better than that of an absolute
reason in the pragmatic conception of the obligation to
obey the law. It precludes direct weighting and
balancing, but it does not rule out a margin of exercise
of practical reason. This is enough to render compatible
the obligation with individual autonomy.
The application of the concept of exclusionary reason
to the general obligation to obey the law puts us on the
right track. This could be rendered even more adequate if
we take on board some of the criticisms addressed by
Cha�m Gans to Raz.
The core of Gans' criticism is
oriented to the complete isolation of second- and
first-order reasons, which prevents weighing and
balancing across classes. In the case that some reasons
not excluded by the general obligation to obey the law
are relevant in the concrete context of application, he
argues that we have no other choice but to balance them
against the reasons to abide by the law [23]. This is so
because we cannot have a list of reasons which may be
violated or which may not be violated by it in advance.
It is not even likely that we can foresee all reasons of
this sort in advance [24].
On this basis, it seems that the general obligation to
obey the law does not exclude weighing and balancing, but
it is a reason that refers to the value of having rules
independently from the content of such norms [25].
�8. If that is so, the general obligation to obey the
law is to be characterised as a general but defeasible
one. This is the main idea behind the way in which
authors such as Nino structure the way in which we put
the question whether we should obey the law or not. This
implies that we should distinguish at the very least two
different steps in the judgment whether there is or there
is not an obligation to obey the law. Or what is the
same, when we face a concrete or specific legal norm, we
should not decide the question whether we are under an
obligation to obey the law in a direct way, or by means
of a direct moral assessment of the norm in question.
First, we should consider whether there is a general
obligation to obey the law, or what amounts to the same,
we should take into account the functions performed by
the legal system and the values furthered by it. Only
then should we go back to the question whether there is
an obligation to obey the specific legal norm relevant in
an specific context. The answer will be framed by the
existence (or non-existence) of the general obligation.
Notwithstanding the extent to which the affirmation of
the latter tips the question in a favourable direction,
the final answer remains open. It is a matter to be
decided by the individual with the help of her practical
reason.
b) Objections
�9. We now turn to its basic practical relevance. As
it has already been said, the general obligation makes a
real difference in those cases in which we face an unjust
law which belongs to a system that can be said to be just
in general or rough terms. In brief, it saves us from the
need to go through the same steps of reasoning each and
every time that we come across what looks to us to be an
unjust norm belonging to a constitutional framework
judged to be just as a whole; that is, one within which
it is possible to solve conflicts and co-ordinate action
in a roughly fair way.
�10. Moreover, there is no incompatibility between
the adequate discharge of the basic roles assigned to the
legal system and the characterisation of the general
obligation to obey the law as defeasible.
Conflict-solving and social co-ordination do not need to
be matched by an exception-less obligation to obey the
law, but only by a massive compliance with the law. This
means that marginal non-compliance with the law does not
pose a threat to the legal system (even if those who
infringe the norms can get away with it). Some extremely
prudent legal theorists notwithstanding, we can doubt
that the fact that some car drivers cross against a red
light poses a serious threat of anarchy on the road, or
that the fact that some people devote their lives to
burglary places pensioners under the risk of a sudden
lack of respect for their private property. It is only
when lots of people cross against red lights or crime
rates are rampant that the collapse of the legal system
becomes a real possibility. Of course there is a
threshold at which non-compliance undermines individual
motivation to comply and we risk a systemic breakdown. Bu
that is not to be blamed on the characterisation of the
obligation to obey the law as a defeasible one.
�11. A familiar argument is that law
makes a claim to supremacy in the form of the claim to
correctness. For that reason, we have to characterise the
general obligation to obey the law accordingly [26].
Before tackling this objection, let me specify how the
claim to correctness tends to be interpreted. It is said
to include three basic small or sub-claims to normativeness,
to reasonableness and to peremptoriness.
First, the law claims that it should be taken as a system
for the guiding of action and not only as a system of
knowledge (normativeness). Second, it pretends to
take into account all relevant reasons applicable to the
each case and, after balancing them properly, to
prescribe the correct course of action. This amounts to
asserting that a moral judgment which reproduced the
content of the law would be a correct one (reasonableness).
Thirdly and finally, it requires addressees of the law to
take into account only what is prescribed as a reason for
action (peremptoriness). We will have a chance to
see in a moment that this has been expressed through the
idea that law requires compliance because it says so.
Assuming for the sake of the argument that this
correctly summarises law's claim to supremacy, it is far
from clear why we should characterise the general
obligation to obey the law by reference to what the legal
system itself claims it to be. Not only has it already
been remarked that the question makes sense only from a
moral and not from a legal point of view, but the
question whether there is a moral obligation to obey the
law in the terms established by the legal system itself
has little to do with the practical concern that moves us
to formulate the question to start with.
The apparent assertion of individual autonomy by means
of denying the existence of a general obligation to obey
the law comes at the price of leaving us ill-equipped to
deal with the related question of whether to comply with
a norm, thus risking the overload of practical reason.
4. Is there really a difference between the question
of the obligation to obey the law and the issue of
legitimate authority?
�12. We could opt for a different approach to the
question of legitimacy of the legal system. Instead of
focusing our attention on the question whether there is a
general obligation to obey the law from the perspective
of the legal subject, we could wonder whether the claim
to authority on the part of the legal system is
legitimate.
The two questions are not exactly the same. We might
find instances in which those in charge of public offices
could legitimately request compliance with a general
rule, while its addressees (or at least some) would be
equally justified in not complying with it. If the two
questions admit different answers in some instances, we
cannot have better proof that they cannot be exactly the
same question.
However, in general and substantive
terms, they can be regarded as different perspectives
from which to tackle the same substantive problem [27]. Normative
preference shall be given to the justification of norms
to each and every individual requested to comply with
them; hence, legitimate authority should be mainly
defined by reference to the individual obligation to obey
the law (and not the reverse). The marginal cases in
which the two questions may receive a different answer
would be those in which we are concerned with the moral
questions faced by those individuals invested with
legitimate authority.
�13. It is quite likely that special reasons
to obey the law are applicable to public officials. Their
position (which has normally been voluntarily undertaken)
implies an explicit endorsement of the legal system.
Moreover, they are normally in change, in some way or
another, of monitoring individual compliance with the
legal system, and, finally, their non-compliance would
undermine severely individual motivation to comply. This
is specially true with regard to obligations related to
co-ordination functions. When individuals see public
officials acting in violation of the law, their sense of
hopelessness and their distrust in the ability of law to
discharge such tasks effectively increases considerably.
However, I will not consider in detail the special
reasons which might justify the obligation to obey the
law of the individuals invested with legitimate
authority.
II. For and against the general obligation to obey the
law
In this section, I will review two of the main lines
of reasoning concerning the general obligation to obey
the law, namely philosophical anarchism and the
conceptualisation of political obligations as
associative.
Before dealing in detail with each of them, the reader
should notice that both theories deny that the question
whether there is an obligation to obey the law is a
really substantive one. Both of them claim that there is
no meat in this theoretical pie (and who cares about a
meat pie that is meat-less?). Philosophical anarchism
considers that the question has always had a negative
answer, because it is simply impossible to reconcile
individual autonomy (implicit by the phrasing of the
question with the help of concepts like
“obligation”) and compliance with the law.
Hence, the question is a oxymoron or impossibility, of
the kind of boiling ice-cream or Aztec equestrian arts.
Those who conceptualise the obligation as associative are
of the contrary opinion. The question must be answered in
the positive. Their line of reasoning tries to show that
a positive answer is already implicit in either our
political vocabulary (e.g. not acknowledging that a
citizen has an obligation to obey the law implies not
fully understanding what being a citizen means) or in our
constitution as moral beings. Hence, the question is
redundant or superfluous, of the like of whether trees
are wooden or books have pages.
The general framework outlined in the previous section
allows for austerity in the development of arguments, to
focus our attention on the weak and strong points of each
argument.
1. Philosophical Anarchism: Morality and the Subject
A) The tension between autonomy and law
�14. Any critical morality worth its
name assumes a strong conception of individual autonomy,
and defines it in some way or another as a capacity to
give oneself rules in practical matters (that is, in
those cases in which she has to decide what to do, how to
behave, etc....) [28].
Whether this process takes place in a monological or
dialogical form (a main difference between the Rawlsian
and the Habermasian models, that make reference to the
concepts of public reason and of communicative reason)
does not alter the necessary reference to a strong
conception of individual autonomy at the core of it.
�15. The dilemma raised by the philosophical
anarchist is this: Once we take individual autonomy
seriously, an individual's capacity for discriminating
right from wrong in practical matters, law as a social
order is under suspicion, because it seems to rule out
individual autonomy. If law is to perform its task as a
functional complement of morality, if it is to do its
work at conflict-solving and social co-ordination, it
should not only provide us with rules of action, but it
should prevent individuals acting on the basis of reasons
or norms outside its domain. To put this in different and
more sophisticated terms, law must pre-empt action based
on general practical reasons, the reasons that might
derive from the monological or dialogical exercise of
autonomy by legal subjects. If that is so, what is left
of our individual autonomy?
The philosophical anarchist, with an
“I-told-you-so” written between the lines, will
just reply “None!”, and claim that (a) there is
no way of solving the dilemma; (b) therefore, we cannot
ground a general obligation to obey the law.
�16. Just consider one of the
most famous formulations [29]
of the claim, the one made by Robert P. Wolff in his In
defence of Anarchism:
“there can be no resolution of the conflict
between autonomy of the individual and the putative
authority of the state. Insofar as a man fulfils his
obligation to make himself the author of his decisions,
he will resist the state's claims to have authority over
him. That is to say, he will deny that he has a duty to
obey the laws of the state simply because they
are the laws” [30].
Wolff considers that we are faced
with a tragic choice. Either we are autonomous or we obey
the law. It is not possible to reconcile the two.
Accepting the general obligation to obey the law is
tantamount to throwing away our moral powers. Once we are
prevented from criticising a norm without changing its
status by such operation, we renounce our autonomy. From
that he smoothly comes to the conclusion that
“anarchism is the only political doctrine consistent
with the virtue of autonomy” [31].
There are other versions of the argument which can be
said to be less ambitious. John A. Simmons, in his Moral
Principles and Political Obligations, denies the
existence of an obligation to obey the law on the basis
of the rejection of all main positive grounds on which
such obligation has been said to be founded (such as
consent, tacit consent, acts implying consent,
communal obligations, the natural duty of justice and so
on). Although his argument does not rule out the
possibility of finding an alternative foundation, Simmons
says that those arguments are not capable of founding the
obligation while at the same time preserving the autonomy
of the individual. Moreover, his denial is in part due to
the emphasis he puts on the obligation to obey the law as
a political obligation, as part of the requirements
“to support and comply with the political
institutions of one's country of residence” [32]. In fact, he is
interested in the special bond which connects the
individual and the political community (or communities)
of which she is a permanent member, in some way or
another (either citizenship or permanent residence).
In other instances, philosophical
anarchism is associated with the Marxist claim that law
is just an instrument of class oppression, that is, it
merely reflects the bargaining power of those who have an
influence in its design. “The law cannot offer an
ethical justification of its demands neither on the basis
of its formal structure nor on the basis of its
substantive content (...) the law is a coercive order of
a historical nature, which reflects the conflict between
concrete interests and the dominance of some over
others(...) it is an instrument for the domination of one
class and its interests over other classes and their
interests” [33].
B) Some counter-arguments to philosophical anarchism
�17. Philosophical anarchism poses a major challenge
to any attempt to found a general obligation to obey the
law. It constitutes itself as a champion of the
fundamental value of individual autonomy, and it
denounces the fact that law forces us to surrender the
exercise of our practical reason, that it attempts to
provide us with categorical reasons and that if nothing
works, it will be ready to coerce us to comply without
further ado. However, this is an overrated argument. It
seems to me that philosophical anarchism relies on an
unconvincing conception of autonomy when applied to
political matters, that it exaggerates what the law
expects from us, that it provides an inadequate
description of the general obligation to obey the law
and, finally, that it models the relationship between law
and coercion in a plainly wrong way.
�18. Firstly, it can be argued that
philosophical anarchists assume a flawed concept of autonomy
[34]. They seem
to argue that autonomy means the same in all contexts. It
does not matter whether we are dealing with the
conception of our good life or trying to find reasonable
norms to deal with basic social conflicts and co-ordinate
action within society. In the next section, it is argued
that the nature of political issues renders this unified
conception of autonomy implausible. This is so because
the standard of political legitimacy requires the respect
for the autonomy of all affected by the political
decision, and this is incompatible with understanding
law-making as a matter of unrestrained self-legislation.
On this basis, it will be argued that public autonomy
must be interpreted as sharing the authorship of such
rules, and this means participation in terms of equality
and symmetry in the process of deliberation and
decision-making that lead to the enactment of the rules,
and furthermore, that these procedures take seriously the
character of the issues at stake (which is turned into a
preference for procedures with an epistemic privilege, or
in other words, which have a propensity to select the
right solution). If we understand public autonomy in this
way, a further obstacle to reconciling the general
obligation to obey the law and individual autonomy
disappears.
That there is something inadequate in
the way in which philosophical anarchists conceptualise
individual autonomy can be illustrated by showing that if
we take their arguments seriously, we should not only
condemn law as unavoidably heteronomous, but also other
alternative forms of determining common action norms,
such as the social practice of contracting. The argument
is specially relevant given the fact that we could think
about such practices as an alternative to law. Leslie
Green [35] has
stated quite persuasively that this avenue is closed to
philosophical anarchists. On the one hand, any social
practice needs to be constituted and defined by certain
norms. Saying that they have been decided by a previous
contract has the air of a paradox. Given that law is
excluded, then what? On the other hand, and more to the
point, contracts are binding agreements on how to conduct
our affairs in the future. But binding my future autonomy
on the basis of an exercise of my own autonomy seems also
to be against a strong conception of autonomy defended by
the philosophical anarchist. The underlying problem seems
to be once again the conception of autonomy.
�19. Secondly, we could say that
philosophical anarchists formulate the requirements of
the obligation to obey the law too extremely. This allows
them to gain some dramatic momentum, but it does not
contribute much to their case in substantive terms. They
do not distinguish properly between the requirement to
relinquish our moral judgment to the law (which is what
they say the obligation entails) and the weaker claim to
adapt our external behaviour to the action-rules
established by the law (which is what it really is
about). But why should the law ask us more than to act
according to it? [36]
By recognising this, we start to undermine the case for a
too rigorous understanding of the obligation.
�20. Thirdly, philosophical anarchism makes a further
and fatal mistake. Philosophical anarchists characterise
the general obligation as exception-less. They consider
that we are engaged in determining whether we have to
obey the law understood as a source of categorical
reasons for action. We have already argued that this
constitutes a poor understanding of the obligation. If we
construct it in such way, it is clear that there could be
no general obligation to obey the law. What is not so
clear is why we should conceptualise it in such way. It
has been argued that this is not required by the
functions performed by law, or by the practical role that
the obligation plays in our practical reason, or for this
purpose by a correct understanding of law's claim to
correctness. On the contrary, understanding it as a
defeasible obligation has the advantage that renders it potentially
compatible with individual autonomy. We have also
indicated why the availability of a general obligation to
obey the law plays an important r�le in the structuring
of our practical reason.
�21. Finally, it can be argued that
a further mistake is associated with the way in which the
role of coercion is depicted. Law tends to be mainly
associated with the gruesome role of coercing individuals
into compliance. For this reason, coercion is reputed to
be at the core of law. However, this claim can be
challenged with a different conceptualisation of the
relation between law and coercion. Though it might be too
cumbersome to spell out the argument in full detail, at
least two remarks must be made. One is that (at the very
least) some of the functions played by law would be
necessary even in a brave new world in which people will
find motivation to comply with any legal rule in the
absence of sanctions for recalcitrant subjects. These
functions are mainly associated with its role in
co-ordinating action in order to achieve complex social
goals [37], but a
similar argument could be made concerning its role in
conflict-solving. The other is that we could (and should)
consider sanctions and punishments as mainly addressed
not to the bad man but to the co-operative citizen,
ensuring her that her readiness to comply with the law
will meet with similar compliance by most citizens. In
this view, the main problem tackled by coercion is not
that of free-riding, but that of hopelessness. This allows us to realise that coercion
does not only pose threats to autonomy, but at the same
time can play an essential role in ensuring the
conditions for its exercise, stabilising the expectations
about the behaviour of other individuals with which we
interact some way or another. This shows that we need law
in order to constitute our autonomy, even if it coerces
us, and even if we have to fight this same coercion which
helps us to constitute our autonomy [38].
C) Points to be retained from philosophical anarchism
�22. These are arguments enough as to leave aside the
claims made by philosophical anarchists � la Wolff. The
previous argument shows that the question whether there
is an obligation to obey the law is a valid one. Even if
this is what we should come to think at the end of the
day, it is important to take stock of some basic insights
provided by philosophical anarchism. All these insights
are associated with the strong conception of autonomy
asserted by philosophical anarchism. However, these
insights may stand even if this conception of autonomy
falls. Let me say some words about three of them. First,
their argument stresses the irreducibly individual
character of morality. Even if the conception of autonomy
is inadequate, philosophical anarchists are right to
claim that at the end of the day, when all is said and
done, moral judgment is an individual affair. Not only
must the individual take full responsibility for her
acts, but any claim to legitimacy on the part of a social
institution must be redeemed for each and every
individual. Second, this argument might derive wrong
consequences from an essentially correct claim. This is
that law and morality cannot be reduced to each other.
Although they are related in different ways, they are two
different social orders. Third, claims made by these
insights can be reinterpreted as a refutation of a
general obligation to obey the law if understood as
without exception. In this sense, it constitutes a sort
of appendix to any attempt to found a general obligation
to obey the law.
D) Joseph Raz's paradigm of
legitimate authority and his denial of the existence of a
general obligation to obey the law
�23. The work of Joseph Raz is a standard reference
in the literature on the authority of law and the
obligation to obey the law. In several of his books, he
offers a thorough descriptive and normative conception of
authority and also puts forward a model of what
constitutes a legitimate authority. With regard to the
general obligation to obey the law, Raz argues against
its existence in general terms, although he proposes an
alternative foundation to it, related to a certain
understanding of membership of a certain political
community and to the ways in which we can show gratitude
to it [39].
There is something puzzling about
the whole construction. The Oxonian professor proceeds to
characterise the obligation to obey the law as a general
and indefeasible one. This implies that it pre-empts that
we act in ways contrary to what is prescribed by law on
the basis of reasons lying outside the legal domain. That
this is the right way of understanding the obligation he
justifies by reference to a descriptive statement,
namely, by describing what the claim to correctness made
by the law itself entails [40].
Then he argues that there cannot be a general obligation
to obey the law because the authority which law claims
does not fit into the model of legitimate authority. The
latter is associated with the understanding of authority
as service. This implies that authority is limited in
scope and subsidiary to the capacity of the individual
for correct moral judgment. This is made explicit in the
basic rule Raz argues for in this issue, the so-called normal
justification thesis [41].
All this boils down to a sort of authority fragmented not
only in objective terms(or what amounts to the same, the
claim that authority regards some matters but not others)
but also in subjective terms (if an individual is likely
to be competent on a matter and get at right solutions,
then we cannot justify any authority upon him on the
matter). The authority that law claims is not a
fragmentary but an absolute one. For this reason, we
could never find a justification for the obligation to
obey the law.
The move seems to be based on some
normative reasons. We have already considered the
positivist argument that the strict separation between
law and morality is necessary for the sake of critical
morality itself. As indicated earlier and now repeated,
Raz is one of its main advocates. Moreover, he argues
that the general obligation to obey the law gives rise to
the danger of an uncritical assumption of authority. Not
only does Raz invoke the potential perverse consequences
of acknowledging a general and unconditional obligation
to obey the law [42],
but he insists that the idea that consent is adequate to
bind ourselves to obey the law might mislead people into
obeying the law when the right moral attitude would be to
disobey it. The idea is that people might exaggerate the
value of their own consent if that serves their interests
[43].
However, Raz's argument does not
rule out the possibility of justifying or arguing for the
general obligation to obey the law, but only for this
obligation understood in these terms [44]. It just denies
that it is possible to found an obligation which rules
out exceptions, that is, an obligation to which we could
not find exceptions in particular cases. Most of the
time, Raz's strategy is limited to showing that an
exception-less obligation cannot be justified. We can
then understand his claim that “To show that there
is no general obligation to obey the law, we need only
show that there are some central cases in which there is
no such obligation” [45].
And his fears regarding the weakening of critical
attitudes towards the law do not apply to a defeasible
characterisation of the obligation, that entails a call
to individuals to check whether law redeems its claim to
legitimacy in particular instances.
In this sense, we can see that it is possible to
reason with Raz against Raz, in the sense that we could
use his arguments and contribution in order to defend the
existence of a general obligation to obey the law
understood in different terms.
2. Avoiding the problem: Communitarian theories of
the Obligation to obey the law.
A) Identity, Gratitude and the Obligation to Obey the
Law
�24. The second means of avoiding the question
whether there is an obligation to obey the law consists
in arguing that the very conceptions and phenomena of
politics, political community, and membership of the
latter necessarily imply a general obligation to obey the
law. The whole issue that underpins the argument of
philosophical anarchists (the tension between autonomy
and the obligation to obey the law) is seen as out of
place. Those who put the problem in such terms simply do
not understand what being a citizen entails.
�25. Leaving aside some analytical theories (which
claim that the linguistic usage points to the existence
of political obligations, but provide no further
justification why this must imply that government has
authority or that we are to subject to it), the argument
constitutes an application of the communitarian
understanding of public reason to the problem at stake.
Communitarian critics of liberalism hold that our
identity as moral beings is constituted by our membership
of a given political community. In other words, it is a
matter of assuming a ready-made role or set of roles
within the community. This is coupled to the further
claim that what shapes and constitutes me is not only the
web of social relationships in which I am engaged, but
also the duties that define my role. Both membership and
role-taking are not voluntary. Communitarian theories of
political obligation stress that in this respect,
political membership and role-playing are more akin to
intimate forms of relationship, like family or other
sorts of kinship relationships. They further argue that
each role has its point and purpose, defined by local
practice and consequently independent of our will. The
point is that because membership and role-taking are
essential in the definition of our identity, the
obligations deriving from them should also be seen as
configuring or partially determining who we are. For this
reason, reconciling the obligation to obey the law and
autonomy is, as it was advanced, a non-issue for the
communitarian. We can criticise the definition of the
role, but only immanently, or what amounts to the same,
on the basis of the same culture that defines it.
Each social role has its point and
purpose [46]. Being
a citizen entails showing gratitude to our community,
something that requires our obedience to its laws. Not
accepting this is to reject our identity, and whoever
does so is at a loss.
B) Counter-arguments
�26. It seems to me that the basic counter-argument
consists in the denial of the communitarian conception of
public reason endorsed by these authors. But there are
some other questions or arguments specific to their
argument for the obligation to obey the law that can be
subject to critical review.
�27. I will refer to two of these more concrete
criticisms. First, it is not clear why communitarians
conceptualise the obligation to obey the law and other
political obligations according to the model of kinship
relationships. The argument seems to be based on the
unavoidable character of politics, but it can be
sustained only if we argue that social relationships are
either fully voluntary or involuntary. This is not
correct. While we cannot decide whether or not we are
going to deal politically with a certain issue (this is
something which is based on whether certain actions
affect others than the actor herself), we are free to
decide the way in which we are going to deal with the
issue. We cannot get rid of the form of law, but we are
free to determine its contents. For this reason, we can
subject to critical review the legitimacy of the contents
of political obligation. Second, it is far from clear why
the definition of political interaction on the basis of
role-taking (which is quite plausible as an isolated
thesis) must necessarily correspond to the definition of
content of such roles by local practice. Even if we
accept that membership of a political community is
related to what we could call the role of citizen, we
could wonder why we should accept the definition of
citizenship provided by local practice and why we cannot
enter into critical discourses about the proper rights
and duties of citizens. For example, to the communitarian
argument that being a good citizen necessarily entails
obeying the law, one could counter-argue on the basis of
Raz's argument that there are other plausible ways of
showing a commitment towards our political community.
�28. But the case for a communitarian understanding
of the general obligation to obey the law rests on its
companion conception of public reason. The reader may
allow me to refer to the main content of the critique.
First, a critical understanding of practical reasoning
can be perfectly sensitive to the fundamental role played
by education at large in forging our critical abilities
in moral terms and also in the acquisition of basic moral
contents. Second, acknowledging the role played by
socialisation and education does not imply that we cannot
use moral judgment in a constructive way in order to
revise the moral content that we have acquired. This
capacity is tested by the assimilation of moral contents
proceeding from different cultural traditions, with
different conceptions of the good, to interact on the
basis of an appeal to moral conceptions.
III. A Positive argument
In the previous section, we have made some arguments
that seem enough to disqualify the two main
“strategies of avoidance” of the question
whether there is a general obligation to obey the law.
Philosophical anarchism can only deny that there could
be a positive answer to the question by conceptualising
the authority of law in an extreme way, not sufficiently
attentive to the practical functions envisaged for the
obligation itself. However, it was also argued that we
would do better to take on board its main message: the
irreducible individual character of morality. This must
not be interpreted as denying the need of a communicative
reinterpretation of practical reason, and more
specifically with regard to political issues. However,
the fact that we must differentiate two paradigms of
autonomy (private and public one) does not mean that
individual judgment, and individual judgment alone, is
what matters when testing the legitimacy of any scheme.
Associative political obligation theories are too
ready to give an unconditionally positive answer to the
problem. On the basis of a dubious genealogy of practical
reason, they end up always justifying the obligation to
obey the law in all instances. This does not take
on board the tension experienced by addressees of law
themselves, not only with respect to thoroughly wicked
legal systems, but also in respect of fair ones, when a
given legal norm is perceived as unjust. Some insights,
as is the case with philosophical anarchism, are
precious. These theories insist on the non-voluntary
component of the obligation, and the need to take it into
account in any solution to the problem of the obligation
to obey the law.
In the coming paragraphs, I consider the conditions
under which it is possible to argue that we have a
general obligation to obey the law. The structure of the
section reflects the concern not to blur the differences
between a number of problems related to the obligation.
It seems to me that this requires distinguishing clearly
between the general problem of justification (or better,
explanation) of politics and the form of law and what can
be seen as the argument proper for the conditions
under which there is an obligation to obey the law.
Thus, in the first sub-section, reference is made to
the question whether and when we have an obligation to
deal with issues politically and not on the basis
of individual judgment. This problem is associated with
the delimitation of the spheres of private and public
autonomy. In addition, it is considered whether we should
make use of the linguistic and practical code of law in
such interaction. Both questions reflect the insights
provided by non-consent theories of political obligation,
and especially those coming from the Hobbesian argument
(which stresses law's contribution to the stabilisation
of behavioural expectations). However, they are not
considered as providing a full justification of the
obligation to obey the law.
In the second sub-section, a three-fold argument is
made concerning the characterisation of legitimate law.
First, and at the core of the model, we have the idea
that actual participation in the practice of
deliberative democracy contributes most to legitimacy.
Secondly, reference is made to fairness, or substantive
rightness, based both on the thin conception of the good
that underlies deliberative democracy (explaining why we
prefer it to other constitutional alternatives) and on
the effective distribution of burdens and profits among
the members of the political community. Thirdly and
finally, a replay of the previous two arguments is
necessary at the level of implementation of norms, once
we realise the unavoidable interpretative or
argumentative character of the application of law.
1. Two Preliminary Questions
In this section, I shall deal with two questions which
are considered as preliminary to the normative
justification of the obligation to obey the law. Both of
them complete the functionalist exploration of the
emergence of political issues and the choice of the form
of law as a medium to deal with them. In terms of our
previous discussion, it is necessary to say that these
two elements account for the non-voluntary component in
the answer to the question whether there is an obligation
to obey the law. We are involved in political relations
and communities without our consent, and we enter into
patterns of legal regulation of these issues not out of
our voluntary option for such a form, but because only
law is an adequate candidate to operate as a functional
complement of morality under modern conditions. It is
necessary to stress that the present arguments do not
legitimise law by themselves, because it is not the form
of law but the bond with legitimately enacted power that
legitimises governmental power.
A) Politics as non-voluntary and the
concept of political autonomy
�29. We are not free to decide whether we do or do
not want to have action rules in common with others. Once
we share a web of common interests with others, we cannot
retreat from politics. The choice, which is the same as
the classic one between the state of nature and the civil
state, would only make sense if we could retreat to our
own Walden and leave others unaffected (at least, in a
relevant way) by our actions [47].
Political bonds are related to the fact that human action
tends to have consequences affecting individuals (even if
without intention) other than the actor. From the
functional point of view, mention should be made of the
argument that repeated interaction leads to the insight
that this is a potentially conflictive situation unless
we adopt common action norms. From a normative point of
view, what matters is that the adoption of such norms is
done in ways that respect the individual autonomy of all
those affected.
�30. But what is the autonomy that must be respected?
The fact that the decision to deal with certain matters
in a political way and that the set of matters
which should be dealt in this way are not open to our
choice implies that it would be self-contradictory
to conceptualise autonomy as a matter of unrestrained
self-legislation. If we accept as the standard of
legitimacy the respect of individual autonomy, we are
required to acknowledge others' right to orient their
behaviour only according to principles they judge to be
correct after sufficient deliberation. Not to recognise
this, and to insist on a conceptualisation of autonomy as
unlimited self-legislation, would lead to the
infringement of the autonomy of some individuals or to
tip the balance in favour of things as they are (if we
pretend to reconcile the autonomy of all individuals
through unanimous decision-making). This
requires us to distinguish between public and private
autonomy, and to conceptualise the former as
participation in the collective processes of deliberation
and decision-making. Moreover, this points in the
direction of democracy, but it is in need of some further
refinement, given the vagueness of the concept [48]. This is what
will be done in the following paragraphs.
�31. This argument
corresponds quite directly to Habermas' reference to the
necessarily split character of autonomy, or what amounts
to the same, to his distinction between public and
private autonomy [49].
It corresponds to some of the intuitions underlying
Rawls' natural duty of justice. The idea that we cannot
withdraw from politics is expressed by Rawls when he
relates the duty to “how we become bound to one
another” and to the ensuing requirements
“associated to our institutional ties” [50]. It is because we
are under a duty to deal politically with certain issues
that it makes sense to claim that “we are to assist
in the establishment of just arrangements when they do
not exist, at least when this can be done with little
cost to ourselves” [51]
[52]. It also
corresponds to the basic insights that underlie Honor�'s
case for the obligation to obey the law (the idea that
membership of political communities is not always a
matter of choice, and that this is no obstacle to affirm
that rights and duties derive from the web of interaction
with other members) [53].
Although it does not go as far as to consider that it is
possible to base a full obligation to obey the law only
upon it.
�32. Some further remarks are to the point concerning
the implications of this argument. It is necessary to
make it clear that this does not mean either that we are
under a duty to engage actively in political affairs or
that we must understand political choice as a matter of
high virtue. First, the non-voluntary character of
politics does not constitute a plea for the virtuous
citizen, but just a justification for the inclusion of
certain issues and matters on the agenda of politics,
something that implies withdrawing them from the sphere
of individual autonomous judgment. This is fully
compatible with the individual decision not to
participate in the actual processes of deliberation and
decision-making. Second, the functional overtones of the
argument do not imply that politics is just a matter of
applying means to ends. Of course, politics can be seen
as a tool for solving conflicts of interests and
establishing patterns of social co-ordination in order to
achieve complex forms of social action. However, it can
also be seen as the activity in which, paraphrasing
Arendt, we transcend necessity and engage in action. In
the latter conceptualisation, politics is not
instrumental, but reflects the capacity to act in concert
with others, on the basis of an agreement free of
coercion, by means of free linguistic exchange. It is important to realise that these are two
sides of the same coin. A purely action-based conception
of politics sterilises power. Without the realisation
that politics constitutes a way of achieving certain
purposes in a legitimate way, we might not realise what
we want power for [54].
We do not want to rule out the emergence of strategic
action in the public sphere, because this might end up
leading to behaviour that is exclusively self-interested [55]. Similarly, a
purely interests-based politics runs the risk of
privatising politics and making it equally sterile.
�33. As already argued, the non-voluntary character
of politics is not a sufficient ground on which to rest
the case for a general obligation to obey the law. That
we have to deal with matters of common interest through a
political procedure does not mean that we are forced to
accept any common action norm. As we will see, their
legitimacy depends on the procedural and substantive
characteristics of the norms themselves. The fact that we
are not free to enter into political relationships and
that our membership of a given political community
(or a plurality of them) is usually not a matter of
choice constitutes no obstacle to the derivation of
burdens and profits from such social relationships. But
by means of a direct reference to the procedural and
substantive characteristics of the common action-norms,
there is no guarantee that the legal system will
distribute rights and duties in a legitimate way.
B) The Need for Law and the
imperatives of constrained decision-making
�34. Political interaction exclusively based on the
practice of “those who talk to one another in order
to act in a political autonomous manner” poses
several problems [56].
First, rights and duties are exclusively based on their
mutual recognition by the members of the political
community. This makes it difficult to determine the
concrete consequences they have in a specific case, and
also leads to a certain instability. Second, there are
difficulties related to the organisation of public
deliberation and decision-making, some of them related to
cognitive problems (mere spontaneous interaction relies
on personal memory in the absence of institutional
mechanisms for keeping record of past deliberations and
decisions). Third, it implies a degree of commitment to
public matters that is difficult to reconcile with
individual autonomy as a whole (which must include the
possibility of not participating actively in them) [57]. These problems
are solved by means of structuring political interaction
with the help of political institutions, creating stable
frameworks for deliberation and decision-making [58].
�35. Law is a basic institution in such an endeavour.
We cannot expect morality or general practical discourse
to perform on its own the vital functions of
conflict-solving and social co-ordination [59]. Not only might
it be the case that moral argumentation cannot
discriminate right from wrong when confronted with
concrete and specific cases, but it is also the case that
sometimes morality presupposes the existence of positive
systems of common-rule action (that is, instances in
which those systems break ground for morality and in
which moral judgment is at the very least conditioned by
the solution provided by such systems), but also that it
cannot on its own avoid conflicts and co-ordinate action
within society because of the cognitive, motivational and
organisational demands it makes.
�36. The unavoidable character of the form of law
implies that the question of whether there is an
obligation to obey the law must be attentive to the
conditions limiting general practical reasoning that law
imposes in order to fulfil the basic tasks assigned to it
and to the way in which the legal system evolves.
First, the need to complement
morality with law, as repeated several times, is based on
the need to reduce the cognitive, organisational and
motivational demands made by morality upon individuals.
The resort to law implies delimiting a special domain
within general practical reason in which several limiting
conditions are applied to it [60].
This is done in order to render certain the norms
belonging to such domain, and in this way, apt for
discharging the basic roles of conflict-solving and
social co-ordination. In this way, law can be seen as a
special case of general practical reasoning in which
decisions are reached with a limited investment of
resources in terms of time and effort. If this is
something characteristic of law as a social order, the
case for the general obligation to obey the law must be
sensitive to the fact that law raises a claim to
correctness that takes into account these limiting
conditions.
Second, law is a complex social
order whose norms have been enacted and refined through
discourses of application by many different authors and
at very different moments in time. To Dworkin's
conceptualisation of judicial reasoning as a sort of
chain novel [61],
we can add Nino's image of law-making as the building of
a cathedral [62].
In both cases, the intuition is the same. The ways in
which the legal system evolves are partially constrained
by the historical constitution, or the legal
system as it stands at a certain moment in time. The
legitimacy of the present legal system must consider to
what extent it has provided a means for increasing the
normative legitimacy of pre-existing legal systems and
continues to be a vehicle for the improvement of itself.
�37. However, and as it was the case
with the unavoidable character of politics, the fact that
we have no other option but to use the grammar of law in
our political interaction is not enough to claim that
there is an obligation to obey the law. This is so
because the form of law can be instrumentalised in such a
way as to render it illegitimate [63].
That is, no intrinsic legitimacy is associated with the
form of law. The legal system can be clearly unfair and
even wicked, and in such circumstances we have no
obligation to obey its norms. In such a context, the
second element of the Rawls' natural duty of justice
(namely the duty to help establish fair schemes of social
co-operation where they do not exist) requires something
very different from mere passive obedience. We cannot
pretend either to answer the question on the basis of the
formal properties of law as a social order, or to deny
from the very beginning the possibility of making a case
for it.
2. The positive grounds
Common action norms written in the legal code can be
presumed to be heteronomous. That is so because law
itself might be perceived as an authoritative,
institutional and coercive social order. That is, the
characteristics of the legal code lead to a potential
legitimacy deficit of its norms. This can only be
redressed if the addressees of law are offered reasons
that allow them to see themselves as not only as subjects
but also as authors of the law. The appropriation
of the norms, the transformation of their heteronomous
status into an autonomous one can only take place through
the medium of reasons acceptable to the individual
herself.
This we must do taking into account the two sides of
autonomy. On the one hand, it is necessary that autonomy
is based on the idea of giving a fair chance to
individuals to present their own arguments and account of
their interests to others within the process of common
will-formation, and to have a chance to influence (even
if marginally) the process itself. This idea is
associated with deliberative or discursive democracy,
that is, with a form of democracy which is divided into
deliberation and decision-making arranged according to
the principles of equality and symmetry. Only a
procedural theory of legitimacy can satisfy the
importance of active autonomy, which in its political
form must be translated into a fair chance to intervene
within deliberation and to affect the outcome at the
stage of decision-making. On the other hand, autonomy
needs to be supported by arguments that prove that this
form of will-formation has some propensity to achieve
correct outcomes, according to procedure-independent
standards. Legitimacy can only be related to
will-formation structures that have some epistemic value,
because lots of the questions that we want to solve
through the form of law are ones which are not
substantively irrelevant (in the same sense as the rules
of the road are). Even if people disagree about what is
the right solution, they agree that there must be a right
solution, so that even if they opt for a procedural form
of common will-formation, they could only be satisfied if
there is some argument that proves that it tends to
produce correct results in such respect. This implies
that we have to opt for the democratic arrangement that
is best in epistemic terms, at least to take seriously
the kind of private convictions of individuals on a good
deal of matters concerning common will-formation.
A) Participation in Discursive or Deliberative
Democracy
�38. Any conception of political autonomy must have
the active exercise of our practical reason at its core.
This is a basic insight of liberal theories of
legitimacy, all of which revolve around the idea of consent
as the embodiment of reason in political matters.
This is so because consent provides a bridge between the
heteronomy of externally-generated norms and the
principle of autonomy as a regulative ideal. It is the
means through which we internalise norms and make them
our own.
Consent is usually taken to imply that the fact that
an individual participates (or at least has the chance to
do so) constitutes an argument to claim that she is
obliged to comply with the norms adopted through such
participation, and in general, with the whole legal
system. This idea is reworked in at least three different
ways. First, consent is cashed into participation in both
deliberative and decision-making procedures. Second, it
is claimed that the case for participation as a basis for
legitimacy rests on three notions. Firstly, the
individual is given an equal right to participate in
deliberation and decision-making. Secondly, there is an
in-built tendency for the procedure to select the right
solution (this is known as the epistemic privilege of
democracy). Thirdly, there is no claim to exclusiveness.
The case for a general obligation to obey the law put
forward here is associated with a complex, not with a
simple conception of legitimacy.
The idea in a nutshell is the following. Active
participation in a deliberative democratic procedure of
law-making binds us to act according to the normative
outcomes of such a procedure to the extent that it
ensures us an equal right to participate in deliberation
and decision-making, and that the procedure is structured
in such a way as to have an epistemic privilege,
or what amounts to the same, to have a propensity to
select the right norms. The argument is procedural to the
extent that what triggers the obligation is only our
participation in the procedure, but it is also
substantive in the limited sense that it refers to
average correctness as a supplementary reason to act
according to its outcomes (but this is done without any
direct reference to procedure-independent standards of
correctness).
�39. We have to keep in mind that the main addressees
of the argument are those who participate in the
procedures of deliberation and decision-making but end up
on the losing side. That some individuals will be in such
a position is unavoidable once we realise that democratic
deliberation has no in-built tendency towards unanimity.
Even if we were to enjoy the best possible political
conditions, it seems we could not avoid disagreement.
Democratic deliberation filters out the most outrageous
mistakes, but it also tends to increase (and not to
reduce) the alternatives at stake, if only because
participants increase their knowledge. Just think about
what to say to a citizen on the losing side. Let us call
her Loser. Before voting, she thought that a given option
was the right one, and voted for it. We know by now that
to say that she has an obligation to obey the new rule
does not require Loser to review her judgment and
convince herself that she was wrong and the majority was
right. From the point of view of the law, it does not
matter what she thinks if she acts according
to the rule supported by the majority. But she will not
be happy even with that limited claim. If she is said to
be under an obligation to obey the law, and the law is
determined by majority-voting, she will have to comply
with what she thought was at least not fully right, and
maybe wrong. Because even if she does not have to change
her mind, Loser cannot forget that what was previously an
alternative and is now the majority-supported and
institutionally-adopted option was not fully right or
even wrong according to her view. So we are requesting
Loser to comply with a norm for reasons that she found
not very convincing before voting. So how can she see
herself as an author of the law, and not only as an
addressee that complies for mere prudential reasons? To
explain this is the main purpose of the following
paragraphs.
a) The structure of opinion- and
will- formation
�40. Deliberative democracy structures opinion- and
will- formation in three different steps. First, it is
necessary to revise and transform individual preferences
with the help of a process of public deliberation. If we
want to take seriously our autonomy and that of the other
participants in the procedure of will-formation we cannot
simply rely on our raw preferences [64].
Political issues are sufficiently complex as to make it
difficult for us to know enough in advance and moreover,
for us to be sure about what we know. We need to confront
the interests of others, to cross-examine the reasons
that support our claims, to confront those that underlie
alternative arguments. This allows us to detect factual
and logical errors, to look for points of agreement, and
with some luck, to forge a basic empathy derived from the
engagement in the common enterprise of deliberation.
Second, all this can not guarantee that unanimous
agreement will exist at the end of the day, especially if
we have limited resources to invest in deliberation, and
we have to meet a deadline for adopting a common action
norm. This is the same as saying that sadly enough, we
have no other option other than to decide heads or tails
or something in between. We cannot avoid deciding. The
same reasons on which the case for political
decision-making rests require that we adopt some form of
majoritarian decision-making. There is not much of an
alternative. We have seen why political decision-making
cannot be based on unanimity. This would lead to a
deadlock that privileges the status quo (in case we opt
for unanimous decision-making). Third,
the fact that both deliberation and decision-making take
place under non-ideal conditions, and that we opt for
majority voting, makes it implausible that the outcomes
are always correct. For these reasons, it is necessary to
keep the process open to reforms, to a new examination of
the question that could lead to reflexive self-amendment [65].
b) Equal concern requires equal participation in
deliberation and decision-making
�41. A second basic requirement for the legitimacy of
any procedure of common-will formation is that
participants treat each other with equal concern. Because
we agree that the procedure has two dimensions,
deliberation and decision-making, this entails the
application of such principle in both the deliberative
and the adversarial dimensions of democracy.
Why equality? The argument is this.
The respect for the public autonomy of all individuals
must be seen as a matter of distribution of a scarce
good. This is so because the chances of understanding,
elaborating and pursuing our interests in respect of
common action-norms, or what amounts to the same, the
collective properties of our societies are mutually
limited [66]. If we
design deliberation and decision-making in ways that give
more chances to a given individual, this necessarily
results in reducing the chances of others. The only fair
solution is to give all equal chances.
That we need to consciously design
deliberation in order to achieve such equality is an
insight that is shared by several authors dealing with
different related issues. Owen Fiss has explored the
question from the slightly different perspective of the
relationship between freedom of speech and state
regulation. He argues that the freedom can only be
attained if speech is regulated in order to treat all
equally, and this implies silencing some in order to
allow others to speak [67].
The same kind of concern, specifically applied to the
political process, underlies the argument for setting
ceilings for expenditure on political campaigns,
eloquently tackled by Dworkin, Ackerman and the same Fiss
[68].
That equal concern implies giving all individuals an
equal influence on the decision-making process is an old
insight of liberal theory, reflected in the motto of one
man, one vote (which has fortunately being modified
to read one adult citizen, one vote).
c) Deliberation and the epistemic privilege
�42. But if we accept that aggregating preferences is
not enough, and any legitimate process of will-formation
requires previous deliberation, this implies that by
deliberation we are trying to achieve something, to get
at a certain result beyond mere transformation of
preferences into a common metric and their aggregation.
�43. The claim to legitimacy of a legal norm would
not be redeemed by mere reference to the equal right to
participate in deliberation and decision-making
processes. This becomes even clearer once we argue that
deliberation should be taken seriously. Remember we found
it reasonable to reject the claim that the adoption of
common action norms is a simple affair of aggregating
private preferences, if only because taking seriously our
autonomy and that of others requires checking our
preferences in the deliberative process.
But if at the end of the deliberative process Loser is
even more confident that her option was right and the
majoritarian wrong, to justify the obligation to obey to
her seems a harder task. Quite paradoxically, the answer
is implicit in the reference to deliberation and the
transformation of preferences. It implies an interest
beyond the mere reduction of all preferences to a common
metric and their ulterior aggregation. In brief, it
betrays an interest in correctness. Answering to Loser
requires showing her that the procedure has an in-built
tendency to produce correct results, that takes seriously
what motivates individuals to deliberate. From this, it
is possible to derive an argument that the individual has
a reason to act accordingly to the common action norm and
not to her judgment.
Deliberative democracy takes seriously the fact that
legal discourses of justification concern not only
questions of bargaining on individual interests, but a
lot of questions on which what is relevant is to get the
correct solution in a political sense. It is common that
most people will disagree on what is the right outcome
(in terms of what the balance of relevant public reasons
requires the outcome to be), but they will assume that
there must be a right solution to the question. This
makes it clear why taking public autonomy seriously
requires something more than giving each citizen an equal
right to participation. It requires that the procedures
of deliberation and decision-making are
designed in such a way that they can satisfy an
individual's interest in the correctness of the solution,
and produce an outcome that tends to be correct, and she
has reasons to act upon even if the solution is different
from hers [69].
Why does deliberative democracy
tend to produce correct results?
�44. The epistemic privilege of
deliberative democracy is based in its tendency to pick
out correct norms. The outcomes of deliberation and
decision-making in a deliberative democracy are closer to
correctness than those of random decision or those of any
other political procedure [70].
It has been argued that the privilege
can be justified by reference to the arguments laid out
in Condorcet's theorem of majoritarian decision-making.
It says that the chances that a decision taken by
majority rule is correct increase with the size of the
constituency if we assume that each individual has a
tendency to adopt the right solution (this means that she
can spot the right solution more frequently if she
resorts to her judgment than to sheer chance). Carlos
Santiago Nino has argued on such basis, adding that
deliberation based on an equal right of participation of
individuals ensures a tendency to be right among those
who participate in it [71].
It has been counter-argued that we cannot be so sure
about the actual competence of voters, that we do not
know what are the consequences of mutual influence (think
about those cases in which those with a tendency to get
outcomes wrong lower than random play a leadership role
within the group) and that the theorem assumes a binary
structure of choices (though most political decisions are
finally voted in such a format that they presuppose a
process of selection that might have selected two wrong
alternatives).
All that notwithstanding, we do not
need to have resort to a strict version of Condorcet's
argument. A somewhat watered-down version might do the
trick [72]. Nino's
argument on the tendency of deliberation to increase
individual competence is essential. The basic intuition
is that the case for deliberative democracy can be based
on the capacity of such institutional arrangement to
collect decentralised information and to incorporate it
to the decision-making process. The case for deliberative
democracy is, after all, epistemic. One could say that
this watered down version of Condorcet resembles Hayek's
argument for the epistemological superiority of market
over planned economies, only that in this case it is
applied to political arrangements.
Moreover, the case is conditional
upon institutional arrangements complying with the basic
requirements for qualifying them as a deliberative
democracy. The basic rights and institutional
conditions implicit in the definition of deliberative
democracy should be respected [73].
If that was not enough, the epistemic privilege can only
be granted to those institutional arrangements which have
a capacity for systemic self-improvement. There must be
evidence that they are able of reflexively amend
themselves towards their normative ideal [74].
Correctness as Public Correctness
�45. A second question concerning the epistemological
privilege of deliberative democracy relates to the
question of what is meant by a tendency to correctness,
and more specifically, by correctness.
It cannot mean moral correctness at large. We assume
that reasonable individuals might disagree on moral
matters, and we rely on a brief explanation of such
disagreement by reference to the many burdens involved in
moral judgment. Moreover, moral disagreement renders
moral norms uncertain, and that this is the main obstacle
to its satisfactory discharge of the tasks of
conflict-solving and social co-ordination; it explains
why morality needs to be complemented by law. If all that
is so, when citizens deliberate about what laws to adopt
they cannot be seen as engaged in an unconstrained moral
debate. They are not discussing moral truth in a direct
way, but they are considering what would be reasonable
norms to deal with basic social
conflicts and to co-ordinate action within society. That
is, they are concerned with the basic problems of living
together, and they accept that they have to provide
reasons that can be accepted by all participants in the
will-formation process [75].
At the same time, correctness cannot mean just
aggregation of preferences. Citizens have good reasons
for setting aside deep moral convictions for which they
cannot find arguments that could be recognised as public
reasons. But that does not mean that they have to
renounce any currency of correctness. After all, their
deliberation is supported and framed by public reasons on
the basis of which it is possible to opt for certain
common rules and to oppose the adoption of others. The
dialogue is not only about the implications of public
reasons, but of course about which reasons are in fact
public. The concrete instances to be dealt with might
lead to some individuals trying to convince all others
that their arguments are to be considered as providing
public reasons, and others might reject or endorse such a
claim. The dialogue might change our views on whether
certain arguments are or are not constitutive of public
reasons.
On this basis, we can conclude that correctness is to
be understood in a political sense, by reference to
public reasons. Citizens agree that there must be a right
solution to the question on the basis of such reasons,
but disagree as to which is the right solution, either
because they disagree on which are public reasons or
because they derive different consequences from them.
Correctness as mediated correctness
�46. As already argued, the claim
to correctness is not to be taken as a direct claim to
correctness, but it is to be judged in indirect terms,
taking into account the split character of practical
reasoning on the question whether there is an obligation
to obey the law, which reflects the value of having a
tool for co-ordinating action like modern law [76]. The claim is not
to be understood as based on the primary correctness of
each norm, but as a claim as to the limited soundness of
each norm within the framework and taking into account
the value to be derived from the legal system to which
the norm belongs as a system of conflict-solving and
social co-ordination [77].
Why the epistemic element does not
render democracy superfluous (why active individual
participation matters)
�47. If law not only borrows its
legitimacy from morality, but also the question of
whether we should obey the law is in itself dependent on
the tendency of the law-making procedure towards
substantive correctness, then we might come to think that
we should opt for the law-making procedure that has a
higher propensity to get the correct result, even if it
does not include participation of legal subjects. To put
it bluntly, if substantive correctness is important, why
not recruit some expert Solon and forget about democracy?
Note that the suspicion that a theory of political
legitimacy trusts too much to substantive correctness
triggers severe criticisms even between liberal theorists
themselves [78].
�48. Such an argument fails to take into account two
factors. First, that the dimension of correctness based
exclusively on a direct appeal to correctness does not
respect an active conception of individual autonomy. It
is true that the theory of legitimacy here advocated is a
complex one, and that such complexity derives from the
fact that it relies on substantive correctness. But
within it, participation is not only the other main
source of legitimacy, but it is given preference on two
grounds. The first is that the ultimate individual
character of moral action. The second, that even
substantive standards are determined by reference to the
procedure itself. Deliberative democracy allows us to
combine a full respect for this active element of
autonomy with an in-built tendency to select correct
norms. This is so because the tendency is not based on
the fact that the outcomes of the procedure are corrected
by reference to any substantive standard of correctness,
but on the in-built properties of the procedures. This
allows deliberative democracy to avoid any direct
constraining of the value of individual autonomy. The
obligation to obey is triggered by the mere fact of
having the right to participate in the procedure of
law-making once it fits into the model of deliberative
democracy. In this way, we avoid any need to make a
direct reference to standards of correctness, thus
avoiding invidious comparisons. This is
something that has been stressed by authors such as
Habermas, who locates sovereignty not in individuals but
in the procedure of deliberation or discourse itself [79]. Second, the
nature of political issues themselves renders it highly
improbable that our Solon deciding solo can get results
right. This is not only because we could doubt that his
motivation will be impartial, but also due to the
colossal task it would be to collect all information and
process it. This allows us to find a further and more
relevant use for the well-known Hayekian argument against
any attempt to impinge upon the self-regulation of the
market. We could use it against any temptation to opt for
some form or another of epistocracy.
Taking Stock: Who has an obligation to obey on the
basis of participation
�49. Why should Loser acknowledge an obligation to
obey the law, and why she should consider that this
extends to those cases in which she ends up in the losing
side?
First, we have explained to her why she should decide
not on a case-by-case basis, but why she should consider
first whether she has a general obligation to obey the
law, and only in some cases test if the breadth of such
obligation covered specific instances of her duty.
Second, we have argued that respecting her public
autonomy cannot imply giving her the right to consider on
her own behalf what is the right solution to the case,
but must consist in giving her a right to participate in
the process of political deliberation and
decision-making. This is so because the involuntary
character of politics makes it an enterprise in
reconciling the autonomy of all participants, and that
can be done only in this way. We have further said that
common action norms must be written with the help of the
grammar of law, because there is no feasible alternative
to it. This brings into the picture the basic limiting
conditions to general practical reasoning characteristic
of the legal form (the imperative of reaching a solution
within a limited time horizon, the very limited resources
we have at our disposal, the fact that the form of law is
characterised by progressive cumulative reforms and not
by overall change). It also implies that the answer to
the question whether there is a general obligation to
obey the law must depend on the substantive values
embedded in the norms and not on a generic reference to
the form of law.
The next step of the argument consists in defining
this general reference to a right to participation as a
right to participate in deliberation and decision-making
on equal terms. First, we have to show Loser that she
cannot ask for more. The right to participate in the
political procedure is a scarce good. Only a mutual
recognition of the same right to all allows to treat them
with equal respect, or in other words, to take seriously
their individual autonomy. Second, the structure of the
process of deliberation and decision-making ensures that
deliberative democracy has an in-built tendency to select
the correct result. Though she has all the reasons to
maintain her opinion on the matter, Loser also has good
reasons to act according to what the law prescribes (at
least to adopt it as a general standard for the
orientation of her conduct) because it is more likely to
be right than herself, especially if we take into account
the nature of the questions at stake. It is important to
notice that this argument does not interfere at all with
the autonomy of the individual, to the extent that no
direct reference is made to substantive or
procedure-independent standards of correctness is made,
but to in-built tendencies of
deliberative democracy. Third, the argument is
complemented by a reference to the open-ended character
of the process. Democratic law-making allows the periodic
reconsideration of the question and to the eventual
passing of a new judgment upon it [80].
It strengthens the argument for complying with present
positive law on the basis that it has a potential to be
reformed, something absent in other social orders, and
for such reason the practice of law can be the carrier of
the correct result [81].
B) Fairness and the Obligation to obey
�50. The right to equal participation in the
processes of deliberation and decision-making constitutes
the core of the case of the legitimacy of law here
advocated. The argument goes that a) it constitutes the
most adequate way of showing equal respect for the public
autonomy of each individual in way compatible with the
equal respect for all others; b) it is the procedure that
shows a higher tendency to provide a correct (in
political terms) answer to the question at stake.
However, it might not purchase sufficient legitimacy for
the legal system. Consider the following instances.
First, the right to participate might be distributed
far from equally or the conditions for asserting the
epistemic privilege of democracy might not be fully met.
We stressed in the previous section that the degree of
legitimacy contributed by the right to participate in a
deliberative democracy depends on the extent to which the
right of participation is equally assigned to all members
and on the measure to which the conditions on
which the epistemic privilege of such political procedure
are met. Really existing democracies tend not to fully
comply such requirements.
Second, some individuals might be prevented from
participating in the political process even if they are
willing to do so. Four examples should suffice. Firstly,
some human beings simply do not have the capacity to
participate meaningfully in the political process. While
this condition is in most cases temporary (minors), there
are some instances in which this incapacity is permanent
(e.g. mentally handicapped people or others suffering
severe mental illness). Secondly, not all citizens have
access to sufficient material resources as to be able to
make a meaningful contribution to the political process,
and although there is a good case for socially ensuring
this through redistribution, institutional structures are
not always responsive to such need.
Thirdly, certain minorities might be socially
discriminated against, rendering their access to the
political process problematic [82].
Fourthly, and by way of conclusion, even in the most
liberal states the acquisition of political rights
through naturalisation takes place only after the
completion of a certain number of years of residence [83]. In the meantime,
permanent residents cannot participate in the
deliberative and decision-making processes.
Third, there may be cases in which the resort to
participation might be not possible for good reasons (the
central case is constituted by authoritative legal
adjudication, as we will see in the next section).
�51. All these instances point to the need to
complete the legitimacy purchased through participation
by reference to some other source. This necessarily
implies making an appeal to substantive correctness [84].
In a nutshell, the idea is that a legal system can be
seen as legitimate and requiring our obedience where its
norms comply with standards of substantive correctness.
The main issue is to determine on which basis it is
possible to assert such standards. The argument that is
made in the following paragraphs claims that they must be
seen as deriving from the same thin substantive
conception that justifies the role of participation in
the legitimation of the obligation, as we have described
it. This approach is fully compatible with the
constructivist approach to ethics, and avoids the
confrontation between procedural and substantive
strategies for legitimacy. Instead of seeing them as two
fully different theories of legitimacy, they are depicted
as different ways of elaborating the same values.
I distinguish two different types of standards of
correctness. First, I deal with the ways in which we can
make a bridge between the rules of discourse and basic
rights. This leads to the formulation of some standards
of correctness that are applicable with independence of
the concrete contents of the legal system. This allows us
to see such standards as alternatives to legitimacy
through participation when this avenue is closed. Second,
I consider the principle of fair play, which is based on
the concrete pattern of distribution of burdens and
profits within the legal system. This argument must be
interpreted as a complement to legitimacy through
participation when its case is not fully argued for (for
example, when not all conditions for establishing the
epistemological privilege of democracy are met).
a) Basic Rights as a Standard of Legitimacy
�52. Deliberative democracy has been said to
constitute an approximate institutionalisation of
discourse rules. This is an essential part of the
argument that leads to the argument that we are under an
obligation to obey the laws enacted through such
procedure. But why should we opt for discourse rules, and
for the conception of public autonomy and of politics as
rational conflict-solving and co-operation? This is a
question that we have face when arguing against the
claims of the communitarian conception of public reason.
Against it, it can be said that the option for
deliberative democracy is based on a thin substantive
theory, whose peculiarity and universal validity allow us
to characterise it not just as one among others
conceptions of the good, but properly as a conception of
the right. There are good reasons for defending such a
conception without considering it on a par with
traditional or utilitarian conceptions of public reason.
So far, so good. How can this be of any avail to us in
spelling out substantive criteria that could sustain a
claim to legitimacy on the part of the legal system? Keep
in mind that the thin character of the conception of the
right precludes us deriving from it bold substantive
principles. The answer is that though direct derivation
is out of the question, it might be possible to find
arguments bridging the gap between discourse rules and
the affirmation of such principles, in the form of
certain basic rights. If that is possible, we would be
able to add to the legitimacy derived from participation
that anchored in the substantive correctness of norms.
And that only by means of elaborating the same values
that move us to endorse participation to start with.
If this is so, then the claim to the legitimacy of a
certain legal system can be based on the argument that it
roughly complies with such standards. It constitutes an
independent justification for those for whom there is no
possibility of making reference to the procedural
argument (like minors, retarded people or those who only
occasional fall within the circle of addressees of the
law, like tourists) or in those instances in which such
an avenue is not available (we will see that the appeal
to correctness plays an essential role within the
procedure of application of the law).
�53. This bridge has been projected
by several authors within the paradigm of constructive
ethics. In the proceeding paragraphs I follow the
argument made by Robert Alexy [85],
on the basis of his own previous work and also of that of
J�rgen Habermas and Carlos Santiago Nino.
Alexy grounds his choice for practical reason on a
transcendental argument combined with a prudential
argument (acting as a sort of closing proviso). The
former explores the implications of making an assertion
within a discourse and allows the author to complete a
chain of reasons with the conclusion that it implies, as
far as the discourse is concerned, a claim to equality,
freedom from force and universality. The latter ensures
that such conclusion is valid, because it is applicable
not only to those who participate in discourses motivated
by an interest in correctness, but also to all others,
who have at least a prudential interest in maximising
their utility, something that makes it necessary to
pretend to have an interest in correction. Even if
considered as a domination technology, discourse is
superior to naked force. The latter is simply too
expensive given the high number of people who are
interested in correctness. However, discourse rules in
themselves do not provide any substantive standards of
correctness for legal norms. This is because the fact of
entering into a discourse implies that we make some
pragmatic assumptions from which we can derive some
discourse rules. But without further arguments, it is not
necessarily the case that such rules should also be
binding upon us when we act and not just deliberate We
need further a link in the chain of reasoning.
There are two main arguments to ground such a link.
Firstly, we can try to establish a bridge between
discourse rules and the recognition and endorsement of
the value of individual autonomy in full, that is in
relation to not only the context of discourse, but also
that of action. From this we can obtain a basic catalogue
of rights. The argument goes that anyone who seriously
participates in discourse is not only interested in
grasping correctness for the sake of it, but she does so
in order to solve social conflicts and structure
co-ordination on the basis of the norms that are agreed
upon in such discourse. (Remember that if the participant
is not really interested in correctness, the closing
proviso based on the prudential argument of maximisation
of utility applies). This implies that we assume not only
an interest in the autonomy of other participants
as participants, but also in a full sense, as individuals
who act in the world. This endorsement of autonomy
entails the recognition of a general right to freedom as
a basic legal norm. On this basis, we can elaborate a
catalogue of basic public, private and social rights [86]. Secondly, we
could argue that law-making in a deliberative democracy
necessarily leads to the recognition of a certain set of
rights. This is the track on which Habermas' train of
reasoning moves. The idea is that the liberal principle
of legitimacy (what he labels as the discourse
principle), when tailored to the kind of needs tackled by
law as a social order, gives rise not only to
deliberative democracy, but also to a system of rights,
including private, public and social rights [87].
All these arguments detail the ways in which we can
move from the endorsement of discourse rules to the
affirmation of substantive principles, articulated into
basic rights.
�54. But if that is so, then consent must be shaped
and defined by the moral value of autonomy, and the
actual value of giving consent might be constrained by
reference to the value it furthers. Lawyers are familiar
with this move, as private law deals with the value of
consent associated with private autonomy, and grounds
validity to it within certain limits, beyond which it is
considered invalid. The same kind of move can be traced
back in some rules of electoral law, this time associated
with public autonomy.
Our present task is to show that the validity of
consent, the pre-conditions within which it must be given
full force because it will protect this kind of value,
are those of deliberative democracy. At the same time, it
must be argued that deliberative democracy is appropriate
to discharge the task of enacting sound legal norms,
because its own structure is designed in such a way as to
increase the chances of getting the right answer. This
epistemic value is the one that answers the challenge
posed by the irrelevance of democratically enacted legal
norms. The best functional complement of morality is a
deliberately and epistemological privileged legal system.
�55. In practical terms, a positive answer to the
question whether there is a general obligation to obey
the law is something that depends on whether it complies
with minimal substantive requirements. Additionally, it
is necessary that there are conditions for systemic
self-improvement within the system, in order to move it
towards the normative regulative ideal.
b) Fairness as a standard of legitimacy
�56. The requirement to comply with the obligation to
obey the law can be based not only on the compliance of
the legal system with abstract standards of substantive
correctness, but also on the concrete way in which the
benefits and burdens derived from its existence are
distributed among legal subjects.
This foundation corresponds to the argument of fair
play or fairness. Its most well-know formulations have
been made by Hart and Rawls.
The former argued that:
“when a number of persons conduct any joint
enterprise according to rules that restrict their
liberty, those who have submitted to those restrictions
when required have a right to a similar submission from
those who have benefited by their submission” [88].
The latter wrote in the Theory of Justice that:
“The main idea is that when a
number of persons engage in a mutually advantageous
co-operative venture according to rules, and thus
restrict their liberty in ways necessary to yield
advantages for all, those who have submitted to these
restrictions have a right to a similar acquiescence on
the part of those who have benefited from their
submission. We are not to gain from the co-operative
labours of others without doing our fair share. The two
principles of justice define what is a fair share in the
case of institutions belonging to the basic structure. So
if these arrangements are just, each person receives a
fair share when all (himself included) do their part
(...) It is important, however, to notice that the
principle of fairness has two parts, the first which
states that the institutions or practices in question
must be just, the second which characterises the
requisite voluntary acts” [89].
�57. This standard argument of liberal theories of
the obligation to obey the law is here reworked and
adapted to the role of complementing the legitimacy
provided by participation in the political process,
especially on those cases in which the conditions to
acknowledge an epistemological privilege to democratic
deliberation are not met.
�58. The standard argument of fair
play departs from the necessary character of political
relationships and from the unavoidable resort to law in
order to deal with conflict-solving and co-ordination of
action oriented to the achievement of complex social
goals [90]. It
stresses that these operations in themselves imply the
allocation of burdens and benefits derived from the
subjection of action to common norms.
The argument of fair play says that
the obligation to obey the law can be founded on the
duties derived from the reception of the benefits ensuing
from the existence of legal norms if three basic
conditions are met. First, that the legal system allows
for a minimal degree of participation. This precludes
that us having an obligation to obey the law on the basis
of fair play in the context of authoritarian legal
systems [91].
However, it does not constitute a replay of the case for
legitimacy through participation. It just points to the
complementary character of the argument. Second, that the
individual has received a roughly fair share of the
benefits derived from enacting common action-norms in the
form of law. The assessment of such benefits proceeds
according to principles of distributive justice. Third,
that the individual has somehow accepted such benefits.
Notice that the expression of the individual will is not
addressed to the characteristics of the scheme for the
distribution of burdens and profits themselves.
Furthermore, and because the role of consent is not
associated here with the appropriation or internalisation
of norms, but to tracing some relevant act of acceptance
of the benefits, it is enough that the individual acts in
a way that can be objectively said to imply [92] an acceptance of
the benefits [93].
�59. The argument of fair play is especially relevant
when we deal with the justification for the obligations
associated with norms that organise the co-ordination of
the action necessary for the achievement of complex
social goals, such as the obligation to pay taxes.
However, the fact that the general principles of tax law
have been mainly developed through judicial reasoning,
and that it is very difficult to operationalise the
argument into directly applicable legal standards means
that the general principles of tax law invoked before
courts tend to be associated with abstract standards of
correctness specified with reference to the peculiar
tasks discharged by the obligation to pay taxes.
C) Guaranteed Implementation
The two previous sections constitute a case for the
general obligation to obey the law. This is justified by
a complex theory of legitimacy, which combines procedural
and substantive arguments. On this basis, legal subjects
are provided with sufficient reasons to see the outcomes
of deliberative law-making as their law. However, the
circle is not yet completed, because law is not only
made, but also applied. This leads to further questions
that have to be tackled by a complex theory of
legitimacy. The argument runs as follows. We have seen
that law is a much needed complement of morality. The
latter demands too much from individuals in cognitive,
organisational and motivational aspects. Moreover, there
are certain issues on which what is morally correct
depends on what emerges de facto as the socially
preferred choice. This is a kind of situation
characteristic of scenarios of co-ordination of action
through law. However, general norms cannot fully spell
out the requested pattern of conduct in all instances of
application of the norm. This is so for at least two
reasons. First, because legal norms are conveyed in
general terms, and pretend to be applicable in a
potentially unlimited number of cases. This is something
that requires intentionally drafting them without any
desire to exhaust the circumstances that might be
relevant in the concrete context of application. This
means that the actual implementation of the norm might
require paying attention to such circumstances and
determining how we should construct the norm in such
case. Second, the law is conveyed in a human language and
produced by humans. As such it can be prey to the
shortcomings of language and to the errors and mistakes
proper of fallible beings. When the time comes to derive
concrete consequences from the norm in question, it is
clear that the legal operator cannot
avoid solving such questions in one way or another. These
two phenomena point to the same conclusion: We cannot
avoid interpretation, and interpretation implies a
creative jump that necessarily reopens the
legitimacy question [94].
This is even clearer once one realises that the
paradigmatic discourse of application to which the last
legal word is assigned is that of judicial reasoning,
characterised by its authoritative and, consequently,
heteronomous character. But it also extends to the cases
in which laws are applied by administrative bodies,
something which is extremely frequent in tax matters.
�60. The complex theory of democracy
acknowledges the existence of such gap and the need for
specific arguments addressed to fill it or at the very
least to reduce its width. However, one should start by
referring the exact dimensions of the legitimacy gap. It
is strongly constrained by the fitness dimension of legal
adjudication, or what is the same, the requirement that
they fit it into the legal system as a whole, and by the
binding character of precedents, that is, of previous
similar decisions. To the extent that we can make a case
for the legitimacy of all legal system as such, the
legitimacy gap related to legal adjudication is much
narrower, because it is clearly constrained by the former
[95].
This is illustrated by
accounts of judicial reasoning like the one provided by
Ronald Dworkin. Leaving aside his basic methodological
assumptions, he presents the judge as trying to produce
the best possible account of the law [96]. In doing this,
the judge is severely constrained by different
paradigmatic norms. The impact which the judge can make
while interpreting the law is severely constrained [97]. This might not
be sufficient to accept his one- right-answer thesis, but
it constitutes a good argument against the idea that
judges' discretion is complete in hard cases. The same
point is stressed by the institutional theory of law [98], and lies behind
the development of theories of legal argumentation [99].
If that is so, we have good reasons to add a third
pillar to our theory of complex legitimacy, namely, that
of guaranteed implementation.
Which are the relevant standards of guaranteed
implementation? For sure, we can say that they constitute
a replay of substantive and procedural arguments taking
into account the specific characteristics of the context
of the application of law. However, we must distinguish
the problem of the legitimacy of judicial adjudication and
administrative decision-making.
�61. On what regards judicial adjudication, two
remarks should be made. First, the main source of
legitimacy of the judicial decision flows from the
reference to substantive standards of correctness on the
side of judges. This claim is of course a limited one,
that takes into account the different limits to general
practical reasoning operative in the legal domain and
also the positive content of legal norms as they stood at
the time of the decision. The judge needs to provide
public reasons to the parties to the case and to all
those whom the norm might affect. To the extent that the
case might be seen as a precedent for any other judicial
decision, the audience extends to all legal subjects.
Arguments that the content of the law is this or that are
insufficient, because they do not settle what the norm
means in the concrete case. The only way to complete them
is by reference to substantive reasons obtained by
reference to general practical reasoning (replayed within
the framework provided by the legal system). This implies
that law cannot be seen as a complete
or closed system of reasons. It also implies that in
order to supplement it, it is not necessary to make a
direct appeal to general practical reasoning, but it is
possible to have resort to it taking into account the
highly institutionalised character of law [100].
Second, the burden of justification placed on an
appeal to correctness can only be partially lightened by
a resort to participation as a source of legitimacy. No
matter how many schemes we conceive in order to increase
the number of interests and arguments to which judges are
exposed, the fact that it is they and not the parties who
have the last word precludes any direct reference to
participation as a source of legitimacy. However, three
remarks are to the point. Firstly, the structure of
judicial procedures forces parties to them to argue by
reference to legal norms and occasionally to incorporate
considerations concerning the consequences of the
decision for the general interest. This counterbalances
the tendency of the parties to see the procedure as a
matter of strategic action (it is clear that they aim at
getting a favourable decision from the judge). Secondly,
the fact that the court hears arguments from the two
parties ensures her exposure to a certain set of the
relevant arguments in the case at hand. This might not be
sufficient to ensure that the judge will tend to produce
a correct solution, but at least increases such chances.
Thirdly, the range of arguments available to the judge
can be increased by means of institutionalising
procedures to allow a minimal degree of representation of
the interests of third parties. This is
something already foreseen in some judicial procedures.
It is not infrequent to find figures like that of the amicus
curiae, a third party (generally, a lawyer) who does
not represent a party in a case, but who is called to
address the court to help clarify a difficult legal point
or to explain something which is in the public interest.
This kind of role can be further developed by reference
to secondary associations, and thus increasing the
breadth of those interests represented [101].
�62. Moving to administrative implementation of laws.
The activity of administrative bodies tends to escape the
attention of legal theories. It tends to be assumed that
all norms give rise to legal relationships which fit
either the so-called civil (horizontal) or penal
(vertical) paradigms of legal relationships. At any rate,
conflicts concerning the concrete way in which norms
should be implemented are deemed to be solved either
contractually or by resort to judicial adjudication. The
reality of the implementation of and even adjudication
upon legal norms conducted by the administration is
simply bracketed. At most, it is accommodated by
allocating to the Administration the role of a private
agent (as it was the case in the paradigmatic English
solution) or of a quasi-judicial body (as it was the case
with the peculiar conceptualisation of the principle of
separation of powers within the Continental
interpretation of the formal paradigm of law). A
democratic theory of tax law needs to offer a different
characterisation of the r�le played by administrative
bodies, one which takes seriously their activity and the
risks that they pose to democracy and individual rights.
We must consequently come to grips with the legitimacy
problems of the administrative implementation of law.
This is a task that should be especially dear to a
democratic theory of public law, to the extent that the
latter is a field in which the prominence of
administrative authorities is more salient and evident to
citizens.
First, administrative bodies should
act according to the program laid down for them in
legitimate law (democratically enacted statutes) and
their action should be subject to review by legitimate
judicial authorities. This principle simply summarises
the standard democratic principles of legality and
judicial review. However, a democratic theory of tax law
should stress that the principle of legality should not
be interpreted as a mere formal constraint upon the
action of the administration, but as an enabling
condition. The key idea is that democratic law programs
the activity of the administration [102]. Moreover, the
principle of legality implies that administrative law is
not only a source of duties, but also a source of rights
of individuals against the administration.
Second, the emergence of
administrative bodies must be explained by reference to
the principle of division of labour and the need to avoid
the overload of participatory institutions. If a
democratic theory of law does not want to rely on an
appeal to thick political virtues, if it does not want to
make democracy depend on the permanent political
mobilisation of the citizenry, it needs to recognise that
democracy itself requires the emergence of a set of
administrative bodies with the specific mission of taking
care that legal programs are implemented [103]. Of course, we
have just seen that this is no excuse for leaving
discretion to tax institutions. Tax law provides a very
good example. A democratic theory of tax law denies that
taxes are just a matter of coercion. However, it must
also acknowledge that tax norms are not self-policing
ones. The tax administration is needed in order to
monitor compliance with tax norms. The functioning of the
tax system is trusted to a certain extent to the activity
of taxpayers themselves. However, the administration
needs to play a basic surveillance role in order to
ensure abiding taxpayers that they will not be abused by
free riders. In addition to that, the tax administration
has access to basic economic information, and elaborates
them not only in order to monitor tax compliance, but
also in order to facilitate the data with which to
conduct macroeconomic policy
Third, and quite related to what has just been said,
the democratic theory of law must be critical with the
traditional privileges granted to the administration. In
most cases they were based on its characterisation as a
quasi-judicial authority, which was consequently independent
from the authority of the legislative. To do so, it must
reconceptualise the administration as an agent or proxy
of citizens. Its justification must be grounded on the
need of giving an institutional format to the diffuse
active positions which derive from horizontal obligations
among the members of a political community. Tax law is
once again a good example. The obligation to pay taxes
was said to be grounded on the duty to share the burdens
derived from the existence of the political community,
and in more general terms, it was regarded as based on
the duty of solidarity. The active positions of citizens
vis a vis other citizens are quite diffuse and imprecise
if we only consider the horizontal dimension of this
relationship. It is by means of institutionalising them
with the help of the obligation to pay taxes that they
acquire concrete shape. But in doing so, we concentrate
such active positions in the hands of the tax
administration, relieving individuals from the burden of
policing compliance with the obligation to pay taxes.
Moving back to the idea of the administration as a proxy
of citizens, this constitutes a basic normative
standpoint from which to consider critically the
traditional privileges granted to the administration and
to proceed to their filtering.
Conclusion: A Complex theory of the legitimacy
of law as the basis of the obligation to obey the law
By now, the circle is closed. We can restructure the
previous arguments into a complex theory of the
legitimacy of law, and relate it to a complex
understanding of democracy.
First, the theory is complex because there are two
main, differing sources of legitimacy: participation and
substantive correctness. To this we have to add a third, guaranteed
implementation that derives from the replay of the
previous two in a concrete and constrained way within
discourses of application of law.
Second, participation contributes to legitimacy in a
double sense. On the one hand, individuals are granted an
equal right to participate in the process of deliberation
and decision-making that leads to the enactment of legal
norms. This implies treating them with equal concern and
distributing such rights in the only possible way that is
equally respectful of the autonomy of all. The right to
participate in political terms is a scarce good whose
allocation must be mutually limited by reference to the
entitlement of others. On the other hand, participation
takes seriously the way in which individuals perceive the
questions subject to legal regulation, and the interest
in correctness relating some of them. This is so because
deliberative democracy has an in-built tendency to select
correct normative solutions, a tendency which is not
based on any direct appeal to procedure-independent
standards of correctness, but on the positive influence
deliberation has on the individual ability to select
right choices, increased by the collective tendency
incorporated into the legal system.
This argument justifies the claim to obedience by
those who are given a right to participate in equal terms
in both deliberation and decision-making procedures (Its
main addressees are those that end up on the losing side
after voting). However, its strength is based on an
effective granting of the right and on the concurrence of
the necessary conditions for affirming democracy's
epistemological privilege. If the individual has no
access to such right (think about minors, retarded people
or permanent residents who have not been granted
political rights) or if the case for the epistemological
privilege is not sufficiently strong (imagine that the
way in which public deliberation is structured makes it
difficult to affirm that it increases the tendency of the
procedure to select correct results) then we need to look
for an alternative or supplementary source of legitimacy.
Third, such an alternative or complementary source of
legitimacy is provided by substantive correctness. The
argument runs as follows. The legal system can
legitimately make a claim to obedience to the extent that
its norms comply with standards of substantive
correctness, Those are to be derived from the same thin
substantive conception which upholds that participation
constitutes the main source of legitimacy. There are two
main kinds of criteria of substantive correctness. On the
one hand, those that can be affirmed in abstract terms,
to the extent that they are valid independently of the
concrete contents of the legal system. Such standards
constitute a catalogue of basic rights, obtained with the
help of arguments that bridges the gap between justified
rules of discourse and basic rights. Three of such
arguments are enumerated, following Alexy: the necessary
endorsement of the value of individual autonomy, the
necessary results of deliberation within a democratic
system and the implications of conceptualising democracy
as the institutionalisation of discourse. On the other
hand, there are standards related to the concrete ways in
which legal systems distribute the burdens and profits
resulting from channelling conflict-solving and social
co-ordination through law. This basically corresponds to
the principle of fairness or fair-play.
Fourth, the last element of the theory of complex
legitimacy corresponds to the guarantees provided at the
time of the application of law, and especially when this
is done in an institutional and authoritative way. The
general formulation of legal norms and the indeterminacy
associated with human language imply that there is a new
potential legitimacy deficit in discourses of application
of law. This is especially so once we take into account
that the last legal word is in the hands of judges. The
legitimacy gap is partially filled in if judicial
reasoning is based on an appeal to substantive
correctness. The judge needs to provide public reasons
for her decision, but cannott find enough of them by
referring to reasons which conclude that the content of
the law is this or that. This requires her to spell out
what is the correct legal solution by means of
incorporating general practical arguments within legal
discourse. The resort to participation as a supplementary
source of justification is quite limited, given the
authoritative character of the judicial procedure. But
the burden of the appeal to substantive correctness can
be relieved to the extent that the structuring of the
procedure allows for an exposure of the judge to
different arguments and perceptions of the interests at
stake, something that can be increased with the resort to
figures representing general or public interests within
the procedure.
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Footnotes
[1] Most
negative answers are conditioned by the way in which the
obligation is characterised. If we proceed to
conceptualise obligations as general (in the sense
of applying o all laws on all occasions) and indefeasible
(or what is the same, as excluding action on the basis of
whatever reasons outside the legal domain and contrary to
the legal prescription), we will unavoidably come to the
conclusion that there is no possible foundation for a
general obligation to obey the law. This illustrates
quite clearly how much is at stake in this section.
[2]
Cf. Singer (1974), Gans (1992, 5).
[3]
The argument that there are exemptions from the
obligation as a legal one is based on an incomplete
reconstruction of legal norms. If the rules for the use
of a park says that it is forbidden to walk on the grass,
and another one says that it is allowed to play football
from 12 a.m. to 5 p.m., what at first glance looks as an
external exception turns out to be part of the rule when
we proceed with its systematic formulation.
[4]
Cf. Kant (1996:44): “Everyone must grant that a law,
if it is to hold morally, that is, as a ground of an
obligation, must carry with it absolute necessity; that,
for example, the command `thou shall not lie' does not
hold only for human beings, as if other rational beings
did not have to heed it, and so with all other moral laws
properly so called; that, therefore, the ground of
obligation must here not be sought in the nature of the
human being or in the circumstances of the world in which
he is placed, but a priori simply in concepts of pure
reason; and that any other precept, which is based on
principles of mere experience- even if it is universal in
a certain respect- insofar as it rests in the least part
on empirical grounds, perhaps only in terms of a motive,
can indeed be called a practical rule but never a moral
law”.
[5]
This is formulated by Nino as the “fundamental
theorem of legal theory”. It was already formulated
in Nino (1985, Chapter IX). He put it in the following
way in Nino (1993a, 811): “Legal norms do not by
themselves constitutive reasons for justifying actions
and decisions (like those of judges), unless they are
conceived as deriving from moral judgments; normative
propositions that exhibits the distinctive traits of
autonomy, justificatory finality, universalisability,
generality, supervinience and finality”.
[6]
Cf. ��34-7.
[7]
Alexy (1989); Alexy (1994a, 40): “The relevant
question is that in the praxis of any system of dominion
there is an implicit claim to correctness, which must be
redeemed to anybody. A normative system which does not
raise a claim to correctness explicitly or implicitly is
not a legal system”. Cf. also Habermas (1988, 243):
“Legality can produce legitimacy only to the extent
that the legal order reflexively responds to the need for
justification that originates from the positivisation of
law and responds in such a manner that legal discourses
are institutionalised in ways made pervious to moral
argumentation” and Habermas (1996a, 106): “In
virtue of the legitimacy components of legal validity,
positive law has a reference to morality inscribed within
it”. MacCormick (1992, 112): “Judges, if
anyone, take the law as it claims that it should be
taken. They, more than anyone, acknowledge the law at its
own estimation. To understand legal statements we should
interpret them as meant by those who take them and accept
them at face value, those who acknowledge the law in the
way it claims a right to be acknowledged. The decisive
argument concerning the meaning of statements of legal
duties is that the law claims for itself moral force. No
system is a system of law unless it includes a claim of
legitimacy, of moral authority. That means that it claims
that legal requirements are morally binding, that is that
legal obligations are real (moral) obligations arising
out of the law”. Also Raz (1985, 300-1) who
considers that the claim to correctness might also be an
intrinsic character of law.
[8]
This is further analysed in �39-43.
[9] If
law was not kept somehow separate and distinct from
morality, we will have to face the cognitive,
motivational and organisational problems that require
complementing morality with law, so we will be just
replaying the previous stage of the game.
[10]
Rawls (1964, 7)
[11]
Rawls(1999a, 20ff)
[12]
Raz (1975, 35).
[13]
Hare, 1989, 11.
[14]
Kelsen (1945, 3), Bengoetxea (1994).
[15]
See �2.
[16]
As a side remark, this argument by Raz seems to me
difficult to reconcile with his tendency not to
distinguish too neatly between theoretical and practical
authorities.
[17]
As it is indicated later on, Raz himself does not
characterise the general obligation to obey the law in
such terms. He considers that it must be seen as an
absolute reason, according to the claim to correctness
made by the legal system itself.
[18]
Raz (1975, 39).
[19]
Raz (1975, 40).
[20]
Raz (1975, 44).
[21]
Raz (1975, 44).
[22]
Raz (1975, 183).
[23]
Gans (1986, 385).
[24]
Gans (1986, 385).
[25]
Gans (1986, 391): “The fact that a rule was issued
by an authority for co-ordination is no reason for not
considering, checking and weighting further reasons
liable to be relevant to the situation to which the rule
applies. However, the fact that co-ordination might be
jeopardised if the rule is not obeyed, may be a strong
enough reason not to act on any such further reasons that
are discovered,. These subtleties are buried in Raz's
analysis”.
[26]
Cf. Raz (1979, 234): “The obligation to obey [the
law] (...) is a general obligation applying to all the
law's subjects and to all the laws on all occasions to
which they apply”. In the following page, he insists
that it should not be as a prima facie obligation, but as
a peremptory one”
[27]
Against, cf. Copp (1999, 10ff).
[28]
Of course, the classic formulation is to be found in
Kant. See also Berlin (1969, 131): “I wish my life
and decisions to depend on myself, not on the external
forces of whatever kind. I wish to be the instrument of
my own, not of other men's act of will. I wish to be a
subject, not an object; to be moved by reasons, by
conscious purposes, which are my own, not by causes which
affect me, as it were, from outside (...) I wish, above
all, to be conscious of myself as thinking, willing,
active being, bearing responsibility for my own choices
and able to explain them by reference to my own ideas and
purposes”. Cf. MacCormick (1997, 1057): “The telos
of moral development is the fully responsible moral
agent who takes responsibility for his or her judgments
at all levels, and whose volitional commitment to some
ideal of order is categorical, not conditional. Only a
being that can act in a self-regulating way, judging
between possible courses of action through voluntary
commitment to some rationally willed order, and seeking
to realise the willed order in action, can fully grasp
the concept of `wrong' action, and therefore, the concept
of right-as-not-wrong action. Only such a being can make
full sense of auxiliary verbs such as `ought' or
`should'”. A classic statement in terms of political
anarchism is to be found in Puente (1985): "[W]e do
not mind a restriction if we believe it to be just, and
provided that is left up to us to be the judge of that.
We do reject it, however, with all the force we can
muster, if it something imposed upon us without our
having a say on the matter".
[29]
It seems to me that there is a philosophical thread
moving from liberalism and classical utilitarianism
(Bentham) towards philosophical anarchism. In a way, the
mapping of moral autonomy is related to the act
utilitarian pretence to recalculate, so to say, the
pros and cons of social norms in each specific instance
of their application. Versions of utilitarianism which
come in the rule-utilitarianism format are closer
to the discursive argument.
[30]
Wolff (1976).
[31]
Wolff (1976, 18).
[32]
Simmons (1979, 5).
[33]
Gonz�lez Vicen (1979), Gonz�lez Garc�a (1987).
[34]
Nino (1989a).
[35]
Cf. also Rawls (1971, 347); “The practice of
promising exists for precisely for this purpose; and so
while we normally think of moral requirements as bonds
laid upon us, they are sometimes deliberately
self-imposed for our own advantage
[36]
In his doctoral thesis [A Study in the Grounds of
Ethical Knowledge], quoted by Estlund (1997, 184),
Rawls already argued that: “[H]ow do we know that
the entity in question will always behave in accordance
with what is right [?] This is a question (...) which we
can always ask, and which we always do ask, and it shows
that we do not, in actual practice, hand over the
determination of right and wrong to any other agency
whatsoever”. Cf. also Rawls (1964, 9), Rawls (1971,
357, 360).
[37]
See e.g. Finnis (1980, X.3).
[38]
See Mansbridge (1996).
[39]
Raz (1986, 92): “Undertaking an obligation to obey
the law is an appropriate means of expressing
identification with society, because it is a form of
supporting social institutions, because it conveys a
willingness to share in the common ways established in
that society as expressed by its institutions, and
because it expresses confidence in the reasonableness and
good judgement of the government through one's
willingness to take it on trust, as it were, that the law
is just and that it should be complied with” He
explicitly accepts that this idea is related to an
organic conception of the relationship between the
individual and the political community. The attitude of
trust is not normally formed through deliberate
decisions, but through the normal habit-forming process
of education and habituation. It includes as a
constituent element the obligation to obey the law. Cf.
Raz (1987, 93).
[40]
Raz (1986, 70): “ States claims to have more
authority than the one which could be justified within
the framework of the normal justification thesis”Raz
(1986, 75): “The law is the only human institution
claiming unlimited authority”
Raz (1986, 77): “A qualified endorsement of the
authority of the law falls short of acknowledging the
authority the law claims for itself [i] it only admits a prima
facie obligation to obey the law; [ii] it denies the
right on the side of the law to impose certain
obligations”
Raz (1987, 82): “All governments claim the right
to rule us by the right reason, i.e., to take over from
us the job of deciding what we should do, on certain
matters”
Raz (1985, 300): “It is exemplified in the claim
that even a bad law should be obeyed as long as it is a
law in force, while lawful action is taken to try and
bring about its amendment or repeal”.
[41]
Cf. Raz (1986:53)“The normal way to establish that a
person has authority over another person involves showing
that the alleged subject is likely better to comply with
reasons which apply ton him (other than the alleged
authoritative directives) if he accepts the directives of
the alleged authority as authoritatively binding and
tries to follow them, rather than by trying to follow the
reasons which apply to him directly”
[42]
Raz (1994, 335): “In some areas and regarding some
people, caution requires submission to authority. In
others, it leads to the denial of authority. There are
risks, moral and other, in uncritical acceptance of
authority” (my italics).
[43]
Raz (1986, 89). See also MacCormick (1981, 159),
MacCormick (1982, 108) and Weinberger in MacCormick and
Weinberger (1986, 121). This fear was already quite
paradoxically shared by Godwin (see 1985, 241):
“[T]he greatest mistake that can arise in the
progress of obedience is where it shall lead us, in any
degree, to depart from the independence of our
understanding, departure which general and unlimited
confidence necessarily includes”
[44]
Raz (1986, 100, 101): “The two questions [that of
legitimate political authority and the obligation to obey
the law] are one if we understand the obligation to obey
the law as an obligation to obey the law as it requires
to be obeyed”; which is in contrast to the
understanding of the obligation in contemporary political
philosophy: “[A]n obligation to obey the law as it
is understood in political writings today is a mere prima
facie obligation. Such an obligation, usually thought
of as nothing more than a reason to obey, may be based on
reasons other than the authority of the law”.
[45]
Raz (1994, 327).
[46]
MacIntyre offers us a quite revealing list of them:
“member of a family, citizen, solider, philosopher,
servant of God”.
[47]
Cf. Kant (1996, 455): Public law is a “system of
laws for a people, that is, a multitude of human beings,
(...) which, because they affect each another,
need a rightful condition under a will uniting
them”. See also Habermas (1976, 179): “the
pretence to clear cut politics of the handling of social
affairs, to cleanse social questions, a radically
democratic formation of consensus that puts a stop to
social repression- that is not a conceivable path for any
modern society".
[48]
Dworkin (1987b, 2): “[T]hough it is clear enough how
a democracy differs from these other structures of
government in general, democracy is itself an idea of
great abstraction if not ambiguity. Democracy requires
that officials should be elected by the people rather
than chosen through inheritance or by a small group of
prominent families or electors. But that abstract
statement does not decide: which officials, if any,
should be chosen not by the community as a whole but by
sections or groups within it, how power should be
distributed among officials chose in these different
ways, how far elected officials should be permitted or
required to appoint other officials to exercise some of
their powers, which responsibilities should be held by
elected and which by appointed officials, how long
officials of either sort should serve, whether their
terms of office should be fixed or subject to early
termination by those who elected them, how far elected or
other officials should themselves be free to change the
constitutional arrangements under which officials are
elected, whether a constitution should set limits to the
powers of officials, so that the officials cannot
themselves these limits and so forth. Though we are
all democrats, these are lively questions among us, and
some are matters of heated controversy”
[49]
This idea, clearly implicit in Between Facts and Norms,
has been elaborated with greater precision in some latter
articles. Cf. Habermas (1996a, 121): “The idea of
self-legislation by citizens, then, should not be reduced
to moral self-legislation of individual persons. Autonomy
must be conceived more abstractly, and in a strictly
neutral way” with Habermas (1995, 15): “Moral
self-determination in Kant's sense is a unified concept
insofar as it demands of each person, in propia
personam that she obey just those norms that she
herself posits according to her own impartial judgment,
or according to a judgment reached in common with all
other persons. However, the binding quality of legal
norms does not stem solely from process of opinion- and
will-formation, but arises also from the collectively
binding decisions of authorities who make and apply law.
This circumstance makes it conceptually necessary to
distinguish the role of authors who make (and adjudicate)
law from that of addressees who are subject to
established law. The autonomy that in the moral domain
is all of a piece, so to speak, appears in the legal
domain only in the dual form of private and public
autonomy” (my italics).
[50]
Rawls (1971, 334).
[51]
Rawls (1971, 333).
[52]
There are two distinct versions of Rawls' argument
concerning the existence of an obligation to obey the
law. In the first, he grounds it exclusively on the idea
of fairness (this corresponds to his 1964 article on
civil disobedience). In the second, he adds the argument
from the natural duty of justice. The duty of fairness
has been converted into an additional ground for
individuals that accept specific benefits offered by the
social scheme of co-operation. In the Theory of
Justice, (Rawls 1971, 335-6) he offers a rationale
for the change: “There is still the question whether
the parties in the original position would not do better
if they made the requirement to comply with just
institutions conditional upon certain voluntary acts on
their part, or example, upon their having accepted the
benefits of these arrangements, or upon their having
promised or otherwise undertaken to abide by them.
Offhand, a principle with this kind of condition seems
more in accordance with the contract idea with its
emphasis upon free consent and the protection of liberty.
But, in fact, nothing would be gained by this proviso. In
view of the lexical ordering of the two principles, the
full complement of the equal liberties is already
guaranteed. No further assurance on this score are
necessary. Moreover, there is every reason for the
parties to secure the stability of just institutions, and
the easiest and most direct way to do this is to accept
the requirement to support and to comply with them
irrespective of one's voluntary acts”.
[53]
Honor� (1987, 119): “Individual or social needs
justify the imposition of special duties on people
despite their unwillingness to take on the burdens that
are involved. Membership of the communities to which we
belong is not cost-free”.
[54]
Habermas criticises the fact that Arendt relies on too
facile (and historically distorted) distinction between
politics and economics, which ends up by sterilising
politics. She claimed that institutionalisation of the
public sphere is needed in order to avoid the private
sphere contaminating the public one. Habermas considers
that there are other reasons, like the difficulties
related to communicative action.
[55]
Some authors have argued that one of the factors that
explains the differences between ancient and modern forms
of democracy is the realisation of the importance of
filtering interests through the political process. In
systems in which politics was a matter of action, it was
seen as proper that election took place through ballots.
Only in such a way it was possible to distribute the
chances of getting involved in effective action. But with
the emergence of the idea of legitimate pursuit of
interests in the public sphere, ballots were substituted
by electoral representation of interests. Cf. Manin
(1996)
[56]
Habermas (1996a, 150).
[57]
Ackerman (1991).
[58]
Habermas (1996a, 150) argues that an adequate mapping of
politics must include not only spontaneous or
non-regulated political interaction, but also “the
use of administrative power within the political system,
as well as the competition for access to that
system”.
[59]
Habermas (1996a, 460): "(...) [T]hen one can leave
open the further question of whether there are moral
grounds for entering a legal order in the first place-
the problem that rational natural law posed as the
transition from the state of nature to civil society. The
positive law that we find in modernity as the outcome of
a societal learning process has formal properties that
recommend it as a suitable instrument for stabilising
behavioural expectations; there does not seem to be any
functional equivalent for this in complex societies (...)
The philosopher should be satisfied with the insight that
in complex societies, law is the only medium in which it
is possible reliably to establish morally obligated
relationships of mutual respect even among
strangers"
Rawls (1964, 9): “The acceptance of a
constitutional procedure is, then, a necessary political
device to decide between conflicting legislative
proposals”
[60]
Alexy (1989, 16) refers to the following: “[I]ts
statute-bound character; its necessary regard for
precedents; its involvement with doctrinal studies as
developed through an institutionally organised profession
of academic lawyers, as well as -and this of course is
not true for academic legal discourse- its subjection to
the requirements of procedural ordinances and
regulations”. See also Alexy (1989, 214ff).
[61]
Dworkin (1982) and Dworkin (1986).
[62]
The idea was already summarised by Proudhon in his motto Des
r�formes tout jours, de utopies jamais.
[63]
Cf. Habermas (1996a, 145): “In this situation
[Europe of the XVIIth and XVIIIth century], the idea of
government by law had the critical sense of uncovering
the contradiction built into the established legal orders
of the time: a normatively unjustified privileging of the
most powerful interests certainly can be concealed
in forms of legal authority”.
[64]
On the transformative character of preferences, see
Sunstein (1991), Gerstenberg (1998). Christiano (1996,
48) applies this argument to the conception of democracy
“Democratic decision-making is not merely a matter
of each person voting his or her preference. Individual
citizens' preferences are formed in society as a result
of social interaction they have with others and the
institutions that structure social interaction. It is
important for them to reflect critically on them and
improve their preferences so as to have a sophisticated
appreciation of their interests and ideals. A democratic
theory ought to have something to say about what
constitutes a reasonable and just context for the
formation of these preferences”.
[65]
Habermas (1996a, 179); “Majority rule retains an
internal relation to the search for truth inasmuch as the
decision reached by the majority only represents a
caesura in an ongoing discussion; the decision records,
so to speak, the interim result of a discursive
opinion-forming process (...) Doubts about the legitimacy
of majority decisions on matters with irreversible
consequences are revealing in this regard. Such doubts
are based on the view that the outnumbered minority give
their consent to the empowerment of the majority only
with the proviso that they themselves retain in the
opportunity in the future of winning over the majority
with better arguments and thus of revisiting the previous
decision”. Cf. also Alexy (1992, 237ff), Alexy
(1996, 224) and Nino (1996a, 37).
[66]
Christiano (1996, 69).
[67]
Fiss (1996) argues that equality is distributional. Free
speech is not only a matter of expressing our interests,
but it is a something connected to the essential
pre-conditions for collective self-governance. In this
sense, public institutions should be worried about
avoiding unnecessary limits on speech, but they should
also be concerned with ensuring that all sides are
present to the public. This means silencing some to give
voice to others. This explains the title of the book and
the following remark by its end (at p. 83), that we need
to embrace the “ironic truth, that the state can be
a friend and an enemy of speech; that it can do terrible
things to undermine democracy but some wonderful things
to enhance it as well”.
[68]
Dworkin (1996b), Fiss (1997).
[69]
This is a major insight rendered explicit by Estlund
(1997, 195): “I propose, as the counterpart of the
idea of procedural fairness in cases where there is an
independent moral standard for the outcome, the idea of
Epistemic proceduralism: procedural impartiality among
individuals' opinions, but with a tendency to be correct;
the impartial application of intelligence to the
cognitive moral question at hand”.
[70]
Cf. Nino (1996a, 129), Estlund (1997, 196). As it is
argued latter on, this is not so different from Raz's normal
justification thesis.
[71]
Nino (1991b, 46), Nino (1996a, 127).
[72]
Estlund (1997, 188) for a watering down of Condorcet's
theorem.
[73]
See Nino (1996a) and Dworkin (1996a, 24-6).
[74]
Rawls (1964, 15): “[J]ustice of the Constitution is
a judgment influenced by the chances of correcting its
injustices”.
[75]
Ackerman (1989, 8)
[76]
R�denas Calatayud (1996, 73).
[77]
Raz (1984, 131): “Judges, if anyone, take the law as
it claims that it should be taken. They, more than
anyone, acknowledge the law at its own estimation. To
understand legal statements we should interpret them as
meant by those who take them and accept them at face
value, those who acknowledge the law in the way it claims
a right to be acknowledged. The decisive argument
concerning the meaning of statements of legal duties is
that the law claims for itself moral force. No system is
a system of law unless it includes a claim of legitimacy,
of moral authority. That means that it claims that legal
requirements are morally binding, that is that legal
obligations are real (moral) obligations arising out of
the law”
[78]
Habermas (1995, 116) considers that Rawls fills the
design of the original position with a considerable deal
of substantive content because of the way in which it
operationalises the moral point of view (this is related
to the pristine goal of the construction, to solve the
Hobbesian problem) and offers a counter-model in which
“he kept the procedural conception of practical
reason free of substantive connotations by developing it
in a strictly procedural manner”. Habermas (1995,
117): “Rawls imposes a common perspective on the
parties in the original position through informational
constrains and thereby neutralises the multiplicity of
particular interpretative perspectives from the outset.
Discourse ethics, by contrast, views the moral point of
view as embodied in an inter-subjective practice of
argumentation which enjoins those involved to an
idealising enlargement of their interpretative
perspectives” Habermas (1995, 131) compares
discourse ethics with Rawls' theory of justice: “It
can leave more questions open because it entrusts more to
the process of rational opinion and will formation
(...) I propose that philosophy limit itself to the
clarification of the moral point of view and the
procedure of democratic legitimation, to the analysis of
the conditions of rational discourses and negotiations.
In this more modest role, philosophy need not proceed in
a constructive, but in a reconstructive fashion.
It leaves substantial questions that must be answered
here and now to the more or less enlightened engagement
of participants, which does not mean that philosophers
may not also participate in the public debate, though in
the role of intellectuals, not experts”.
[79]
Habermas (1996a, 301): “The self of the
self-organising community disappears in the subjectless
forms of communication that regulate the flow of
discursive opinion- and will- formation, in such a way
that their fallible results enjoy the presumption of
being reasonable”.
[80]
Habermas (1996a, 179): “Majority rule retains an
internal relation to the search for truth inasmuch as the
decision reached by the majority only represents a
caesura in an ongoing discussion; the decision
records, so to speak, the interim result of a discursive
opinion-forming process (...) Hence, the dissenting
opinion attached to the justification of a Supreme Court
ruling, for example, is meant to record arguments that in
a similar case might convince the majority of a future
panel of judges”
[81]
Nino (1996a, 37).
[82]
Ely (1980).
[83]
Rubio Mar�n (1998) and Rubio Mar�n (2000).
[84]
Nino (1991a, 115): “[L]iberal principles of justice
take consent as the primary element for justifying a
distribution of rights and obligations, benefits and
burdens, and only when there is no such consent do they
take into account other factors (...) If that consent is
not present, because of deception, ignorance, or the
mental state of the person in question, the other
criteria of justice come into play, depending on how much
love or fraternity there is among the parties (...) So,
principles of justice are permanently in the background,
not only legitimising the relationships based on consent
but also providing substantive criteria which allow us to
interpret just how friendly, disinterested, and loving
those relationships are”.
[85]
See Alexy (1996).
[86]
See Alexy (1994, pp. 131-57) and Alexy (1996).
[87]
See Habermas (1996a, chapter 3, especially at pp. 122-3).
[88]
Hart (1955, 61).
[89]
Rawls (1971, 112). Previous formulations can be read in
Rawls (1964, 9-10): “If one thinks of the
Constitution as a fundamental part of the scheme of
social co-operation, then one can say that if the
constitution is just and if one has accepted the benefits
of its working and intends to continue on doing so, ad if
the rule enacted is within certain limits, then one has
an obligation based on the principle of fair play, to
obey when it comes one's turn. In accepting the benefits
of a just constitution one becomes bound to it, and in
particular one becomes bound to one of its fundamental
rules: given a majority rule in behalf of a statute, it
is to be enacted and properly implemented (...) The
principle of fair play may be defined as follows. Suppose
there is a mutually beneficial and just scheme of social
co-operation, and that the advantages it yields can only
be obtained if everyone, or nearly everyone, co-operates.
Suppose further that co-operation requires a certain
sacrifice from each person, or at least involves a
certain restriction of his liberty. Suppose finally that
the benefits produced by co-operation are, up to a
certain point, free; that is, the scheme of co-operation
is unstable in the sense that if any one person knows
that all (or nearly all) of the others will continue to
do their part, he will still to be able to share a gain
from the scheme even if he does not do his parts. Under
these conditions a person who has accepted the benefits
of the scheme is bound by a duty of fair play to do his
part and not to take advantage of the free benefit by not
co-operating. The reason one must abstain from this
attempt is that the existence of the benefit is the
result of everyone's effort, and prior to some
understanding as to how it is to be shared at all, it
belongs in fairness to no one” and Rawls (1969,
241): “A person is required to do his part as
defined by the rules of an institution when two
conditions are met: the institution is just (or fair),
that is, it satisfies the two principles of justice; and,
second, one has voluntarily accepted the benefits of the
arrangement, or taken advantage of the opportunities it
offers to further one's interests”.
[90]
This interpretation of the principle of fair play can be
traced back to Honor� (1987, 119ff, especially 122):
“A citizen need not have chosen to become a citizen
nor have made any promise, express or implied, to do so.
Nor need he have voluntarily accepted any benefit from
the state whose laws are in question. The duty applies to
a reluctant and uncooperative as it does to the most
active and prosperous citizen”
[91]
Rawls (1971, 112): “By the principle of fairness it
is not possible to be bound to unjust institutions which
exceed the limits of intolerable injustice (...) In
particular, it is not possible to have an obligation
to autocratic and arbitrary forms of government”. A
similar argumentation in Rawls (1969, 240), where he
argues that the question of the existence of a general
obligation to obey the law based on fairness only makes
sense in “a legally established and democratic
authority”. In Rawls (1964, 5) this is associated
with a legal system based on the rule of law (publicity
of rules, similar treatment of similar cases and so on)
and that is part of constitutional democracy (that
implies equal citizenship, recognition of the freedom of
the person, freedom of thought, liberty of conscience and
political participation in the political process”
[92]
Cf. Rawls (1999a, 60): “The rights and duties so
arising are special rights and duties in that they depend
upon previous actions voluntary undertaken, in this case
on the parties having engaged in a common practice and
knowingly accepted its benefits. It is not, however, an
obligation which presupposes a deliberative performative
act in the sense of a promise or contact or
alike”
[93]
If we assign to fair play a complementary role, the
criticism addressed by Klosko to authors like Rawls and
Simmons is correct. The latter consider that we can also
be obliged on the basis of fairness in case that we fully
consent to the benefits derived from social order. Under
the present understanding of the role played by fair
play, what is more relevant is the magnitude of the
benefits provided. Moreover, this view is no longer open
to the kind of criticisms made by Nozick (though it is
far from clear whether his arguments bite even to Rawls's
understanding of fair play. Having said that, I doubt
whether Klosko sees the role of fair play as I do. If he
does not, then his argument (that is right under the
present understanding of fair play) is not so convincing.
For the sake of thoroughness, the reader should know that
he supports the suppression of a direct reference to
consent within the argument for fair play. However, he
does so by means of limiting the breadth of the general
obligation to obey the law to those legal systems
entrusted with the provision of a very limited number of
public goods (those characteristic of a minimal state a
la Nozick) and conditioning it to the fact that such
goods are worth their cost. Cf. Klosko (1998, 62). He
argues that because the benefits provided by such schemes
are non-excludable, individuals are no longer free to
decide whether or not to receive them. Cf. Klosko (1989,
243). His strategy becomes clearly untenable when he
pretends to extend the reach of the obligation. He argues
that if the provision of very basic public goods is fair,
the legitimacy of the provision of further goods is to be
regarded as legitimate, unless there is proof to the
contrary. This is quite ingenious, but a trifle too
mechanical.
[94]
See, for example, MacCormick (1978, 74):
“Adjudication implies running beyond the specific
and determinate guidance that rules can give). See also
Alexy (1989, 1), and in general, all treatises on legal
argumentation.
[95]
That corresponds to the authoritative dimension of legal
reasoning. Cf. Alexy (1999, 375)
[96]
Cf. Dworkin (1986, 227): “According to law as
integrity, propositions of law are true if they figure on
or follow from the principles of justice, fairness, and
procedural due process that provide the best constructive
interpretation of the community's legal practice”
[97]
See, for example, Dworkin (1986, 72 and 251-2).
[98]
Cf. MacCormick and Weinberger (1986:chapter 1).
[99]
Cf. Alexy (1989, 1).
[100]
Alexy (1999).
[101]
Cohen and Rogers (1995).
[102]
Habermas (1996a, 169, 173, 300). It is worth quoting pp.
173: “The priority of laws legitimated in democratic
procedures has the cognitive meaning that the
administration does not have its won access to the
normative premises underlying its decisions”
[103]
Habermas (1996a, for example 39) takes from Parsons the
idea that administrative bodies constitute a source of
integration in modern societies.
[Date of publication in the ARENA
Working Paper series: 15.10.2000]
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