A Theory of Legal Obligation
Practical Philosophy
Final Report Abstract
This DFG-sponsored research has contributed to enhance our understanding of the kind of obligation specifically engendered by law. It has accordingly been concerned with an issue that is central to both legal theory and practice. For, within the legal community at large, law and obligation are widely believed to be intimately connected and ultimately inseparable for a number of reasons. To begin with, paradigmatic legal materials, such as statutes, judicial decisions, and doctrinal commentaries, make reference to obligation either directly, by specifying what one is obligated to do, or indirectly, by attributing rights, powers, and privileges—which positions are intrinsically related to the duties of other individuals. Similarly, in legal proceedings practitioners— judges, prosecutors, lawyers, juries—frequently make claims about which obligations under the law certain parties have in specific circumstances. And so do lay people in their ordinary lives. This means that the deontic language is pervasive in discourses within and about law. Furthermore, law is deeply shaped by regulative standards, since an important part of the legal domain has to do with norms prescribing courses of conduct and instructing individuals as to how they ought to behave. The very recognition of the prescriptive structure of law provides support to the thesis that key legal statuses can only be expressed through the use of the notion of obligation along with its opposite number, the notion of a right. This extensive use of obligation-related constructs and terminologies supports the widespread conviction that law purportedly seeks to impose obligations, and on occasion it does in fact affect the duties of those subject to it. This being the case, law and obligation are regarded as conceptually connected by a remarkable number of legal theorists, who maintain that an account of obligation constitutes a central element of the philosophical study of the concept of law and other fundamental legal concepts. This is not to suggest that the relation between law and obligation is regarded by every jurisprudent as a necessary connection or is interpreted in the same way by different legal philosophers. Even the minimalist claim that the law seeks to create, enforce, modify, and extinguish obligations has proved to be controversial among legal theorists, who have put forward different accounts of the obligations associated with the existence of a legal system: some regard those obligations as purely and distinctively legal in a merely formal sense; others qualify the obligations engendered by the law as social duties; another group instead takes those obligations to be moral. This suggests that the necessary link obtaining between law and obligation is at once both a broadly accepted tenet, when framed as a general statement about the law, and a deeply controversial thesis, when its nature is analysed in greater detail. Hence the need for the comprehensive study of the kind of obligation specifically arising out of legal practices that was undertaken in this research project, whose main objective consisted in arriving at a sound systematic explanation of legal obligation capable of both elucidating what enables the law to hold us bound to do anything and why legal requirements should be taken to be binding.
Publications
- “Critical Remarks on Andrei Marmor’s Theory of Legal Obligation”, Australian Journal of Legal Philosophy, 42, 2017, 26-46
Stefano Bertea
- “Why Practical Reasons are not just One’s Own Private Affair”, Philosophical Inquiry, 41, 2017, 63-85
Stefano Bertea
- A Theory of Legal Obligation, Cambridge, Cambridge University Press, 2019 (pp. 368; ISBN: 9781108475105)
Bertea, Stefano
(See online at https://doi.org/10.1017/9781108566216) - “A Problem for the Unambitious View of Legal Normativity”, Revus, 37, 2019, 7-13
Bertea, Stefano
(See online at https://doi.org/10.4000/revus.4542) - Contemporary Perspectives on Legal Obligation, Oxford, Routledge
Bertea, Stefano (Hrsg.)
(See online at https://doi.org/10.4324/9780429293412)
