Mindel Scott

Consequences of Violation of Legal Obligation in Jurisprudence

What is legal authority and how is it related to obligations? It is a kind of practical authority, that is, authority over action. According to an influential view: “To claim authority is to claim the right to be obeyed” (Wolff 1970, 5). There are, of course, authorities who do not make such a claim. The theoretical authorities, that is, the experts, are not characterized by claims of obedience – they do not even need to claim a right to be believed. And there are weaker forms of practical authority. Giving someone the power to use your car is simply allowing them. But political authority, whose legal authority is a species, is generally considered a right to govern, with a corresponding duty to obey. In this context, the law claims the right to obedience wherever it establishes obligations. And to obey does not only mean to obey the law; he should be guided by her.

Max Weber says that it is “as if the rulers had made the content of the order the maxim of their behavior for themselves” (Weber 1963, 946). Or, as Robert Paul Wolff rightly puts it, “Obedience is not about doing what someone tells you. It`s about doing what he tells you because he tells you to do it” (Wolff 1970, 9). This does not mean that one obeys only if one considers the right of authority to have a say as an inevitable reason to act; but you should treat it as a binding reason independent of the content. The question of whether there is an obligation to obey the law is a question of whether we must act from a legal point of view and obey the law as it purports to be followed (Raz 1979, 233-49). This can confirm our confidence in the correlative view of the obligation to know that philosophical reflection on political authority has focused from the earliest times on the commitment to obedience. Passive commitment to obedience is certainly not all we owe to the law (Parekh 1993, 243; Green 2003, 543-47), but many saw it as the minimum requirement of the law. This leads to a mystery. Wolff puts it this way: “If the individual retains his autonomy by reserving the final decision on cooperation, he thus denies the authority of the state; On the other hand, he submits to the state and accepts his claim to authority, then. it loses its autonomy” (Wolff 1970, p. 9).

Wolff solves the dilemma in favor of autonomy and defends anarchism on this basis. For most people, breaking the law is a risky endeavor most of the time. If individuals break the law, they risk jail time, fines, injunctions, damages, and a number of other unpleasant consequences. But while violations of the law usually carry risks, it is not clear that this generalization applies to public servants. Laws that restrict public servants are often not supported by the tangible sanctions of the legal system. Constitutional limitations on permissible legislation are an excellent example, as there are no formal legal sanctions2 that threaten the legislature (Spallone v. United States, 493 U.S. 279 (1990)) that votes for an unconstitutional law, or the governor (or president) who signs one (Smiley v. Holm, 285 U.S. 355 (1932)). Similarly, there are few formal legal sanctions against an executive officer of a state who violates the Constitution behind the shield of immunity qualified as a civil rights trial (Wilson v. Layne, 526 U.S.

603 (1999), a judge who makes a decision unconstitutional or otherwise substantially illegal (Pierson v. Ray, 386 U.S. 547 (1967)), a prosecutor who acts unconstitutionally in prosecuting a case (Imbler v. Pachtman, 424 U.S. 409 (1976)), or a federal public servant who is outside the scope of a so-called Bivens action for immunity (Hunter v. Bryant, 502 U.S. 224 (1991)) or otherwise3 (Bivens v. Six Unknown Named Agents of the Federal Narcotics, 403 U.S.

388 (1971)). Whatever else they do, all jurisdictions recognize, create, vary and enforce obligations. This is no coincidence: obligations are at the heart of the social role of law, and their explanation is necessary to understand the authority of law and therefore its essence. There are not only obligations in the law, there are also obligations in the law. Historically, most philosophers have agreed that these include a moral obligation of obedience, or what is generally referred to as a “political obligation.” Volunteers said this required something like voluntary submission to the rule of law, for example by consent. Non-voluntarists have denied this, insisting that the value of a fair and effective legal system is itself sufficient to confirm the law`s claims. Both arguments have recently come under scrutiny, and some philosophers now deny that the law is entitled to all the authority it claims for itself, even if the legal system is legitimate and reasonably just.