1973
VOLUME
NUMBER2
52
FRANK F. SKILLERN*
D ISAGREEMENT WITH the goals and purposes of particular laws has been occurring with increasing frequency. An individual's duty to obey law is coming under special scrutiny and often is openly questioned. Objections to laws take various forms: refusals to pay income taxes; sit-ins on bomb test sites; protests against war or other governmental policies; flagrant violations of marijuana, adultery, or homosexual laws; economic boycotts; or outright advocacy of revolution. Frequently these actions reflect the individual's disagreement with the law for moral reasons. More importantly, they may indicate his belief that a particular law is not binding on him. The sophistication of technology and mobility of persons in contemporary society make conventional challenges to laws through legislatures or courts seem inadequate to many disillusioned individuals. Hence, traditional views on the nature of law, its relationship to morality, and an individual's responsibility toward law are re-examined to appraise their current applicability.
These difficult problems for individuals 1 raise equally difficult issues in jurisprudence. The natural law and positivist schools of jurisprudence have sought to explain what law is and how morality and law are related. By defining law and the role of morality in a legal system, the
*
Assistant Professor of Law, Texas Tech University School of Law. B.A.
(1964), Chicago; J.D. (1966), Denver; LL.M. (1969), Michigan.
1
For a recent discussion see Washington Post, Jan. 21, 1973, at Ml, col. 3.
III
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112 OREGON LAW REVIEW [Volume 52,1973] duty of the individual in the system to obey the law becomes apparent.
Then the issue of whether obligation is inherent in law may be addressed. And if law does not give rise to a duty of obedience by the individual, is the individual nonetheless obligated by his relationship to society or by the relationship between moral standards and law?
These issues will be examined in the context of the positivist school of jurisprudence with comparison of it to the natural law school where appropriate for a fuller understanding of the positivist position. The positivist school of jurisprudence consists of four basic approaches:
( 1) the imperative or command theory, (2) the realist school, (3) the system of norms, and (4) the system of rules. Although each approach differs in its definition or analysis of law, each adheres to basic tenets of positivism: 2 the separation of law from morality and the belief that law is fact which can be discovered empirically in the institutions of man.
This adherence is seen more clearly in the definition of law and legal obligation of each.
I
THE PROBLEM
The imperative theory defines law as the command of a sovereign proscribing or requiring certain conduct and the imposition of sanction if the command is disobeyed. John Austin first developed his concept of a legal system based on this definition of law as a command. His system combines the utilitarianism of Bentham with the political theory of Hobbes.
3 Implicit in his system is the separation of the study of law as it is from the study of law as it ought to be. Positive law is made by a sovereign who is the person or group within society which receives
"habitual obedience" from the other members of society.4 Austin's imperative theory established the framework for later positivists: jurisprudence is the study of law as a human institution and is not directly concerned with the ultimate morality or rightness of a given law.
2 The terms "positivism" and "positivists" are used generically in this article to encompass the legal philosophers or writers in jurisprudence who approach law as a human institution which can be determined by empirical evidence.
Ct.
O.
BIRD, THE IDEA OF JUSTICE 43-78 (1967).
3 Austin himself acknowledges their work and distinguishes their work from his. J. AUSTIN, THE PROVINCE OF JURISPRUDENCE DETERMINED (H. Hart ed.
1954).
Especially compare id. Lectures II, III, and IV with J. BENTHAM, THE
PRINCIPLES OF MORALS AND LEGISLATION 1-43 (Hafner Library of Classics ed.
1948) ; and compare J. AUSTIN, supra, Lecture VI with T. HOBBES, LEVIATHAN
(New Am. ed.
1950).
4 J. AUSTIN, supra note 3, at 193-94.
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Law, Obligation, and Morality 113
Austin's theory of positive law has been discredited on several grounds,5 including the restriction it places on the content of positive law. For example, his definition excludes customary and constitu-.
tionallaw from consideration as positive law, because they do not come from a sovereign.
6 Moreover, the requirement that law is a command does not acknowledge that some rules are not commands and are necessary for the creation of rights.
7 Believing Austin's definition did not comport with actual practice, later writers modified it. Professor John
Chipman Gray rejected the idea that law was only legislative enactments
(sovereign commands). He defined law as the rules established by court decisions. Law thus consists of the rights and obligations enforced by society through its judiciary; ultimately being subject to judicial interpretation, statutes are sources of law, but not law itself.s
Justice Oliver Wendell Holmes, like Gray, was a member of the legal realist school. He considered law a prediction of how courts will decide a particular case. The premise of his predictive theory is that a person will obey a given rule, not because a sanction will be imposed for its breach, but because of the potential that a sanction will be applied to his action.
9 Thus rules which may not actually be applied by a court
(as Gray would require) can nonetheless be law if they deter conduct.
Professor Wesley N. Hohfeld's analysis reduced law to its "fundamental concepts."lO He determined that legal relationships can be described by the concepts of right, duty, power, privilege, immunity, noright, liability, and disability. To establish these concepts he relied on the decisions and reasoning of the courts in cases confronting them. By this resort to what the courts do, Hohfeld follows the approach of Gray in determining what law is.
5
Austin's critics have questioned his definition of law as a command.
e.g., W.
BROWN, THE AUSTINIAN THEORY OF LAW 333 et seq.
(1906); H. HART, THE
CONCEPT OF LAW 18-26 (1961) ; his concept of sovereignty.
e.g., Dewey.
Austin's
Theory of Sovereignty, 9 POL. SCI.
Q. 31 (1894); H. HART, supra, at 49-70; H.
MAINE, LECTURES ON THE EARLY HISTORY OF INSTITUTIONS 342-70 (1888) ; and his theory of obedience,
463-502 (1901).
e.g., J. BRYCE, STUDIES IN HISTORY AND JURISPRUDENCE
6 Under Austin's theory. custom becomes positive law only when "transmuted" by a court decision. Otherwise, custom and constitutional law are "positive morality." J. AUSTIN.
supra note 3, at 30 et seq., 259 et seq.
7 l!
See, e.g., J. SALMOND, JURISPRUDENCE 25-35 (12th ed. 1966).
"The Law of the State or of any organized body of men is composed of the rules which the courts, that is, the judicial organs of that body. lay down for the determination of legal rights and duties." J. GRAY, THE NATURE AND SOURCES OF
THE LAW 84 (2d ed. 1963). For a discussion of statutes as sources of the law see id.
at 152-97.
9
Holmes, The Path of the Law, 10 HARV.
L.
REV.
457 (1897), in THE MIND
AND FAITH OF JUSTICE HOLMES 71-89 (M.
Lerner ed. 1943), where Holmes says,
"The prophesies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law."
10
Id.
at 75.
The following discussion is summarized from W.
HOHFELD, FUNDAMENTAL
LEGAL CONCEPTIONS (Cook ed. 1964).
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114 OREGON LAW REVIEW [Volume 52,1973]
Contemporary positivists have broadened the scope of the definition of law even more than the legal realists. Hans Kelsen describes law as a system of norms. A norm is an "ought" to which conduct should conform. A statute, or any rule, creates a norm for conduct but does not command or require such conduct. Conduct is only required if there is a sanction stipulated and it applies to violations of the norm.H Law consists of all the norms created within society. The validity of a norm is determined by a hierarchical arrangement; e.g., the norm created by the Constitution takes precedence over that of a statute in the
United States if the statute is incompatible with the Constitution,12
Kelsen's system presumes a "Basic Norm" which establishes and determines the validity of all other norms of the system.
13
H.L.A. Hart views law as a system of rules governing behavior of man.
14 He creates two classes of rules: primary rules direct behavior and secondary rules implement or supplement primary rules. A legal system is the union of primary rules that create obligations and secondary rules that determine the validity of rules in the system, provide for change in the rules, and provide for means of adjudication of disputes in the system.l
5 This method incorporates the idea of enforcement of rules by penalties for their breach, but expands beyond the limitations of defining law as commands, court decisions, or predictions to encompass all standards established by the system. In particular it includes as law rules that create or perpetuate the legal rules.
16
Each approach to law in the positivist school has certain elements in common with the other approaches. Each seeks law in the institutions created and controlled by man, such as legislative, administrative, or judicial bodies. Each focuses on law as it is rather than on what it ought to be. Moreover, positivism is concerned only secondarily with the morality of the law. Finally, law, or the concept of law, is normative in that it prescribes standards to guide human conduct. In this respect the natural law and positivist schools are in accord by considering law
11 "If the law is conceived as a coercive order r which Kelsen previously had concluded], then a behavior can be looked upon as objectively legally commanded
(and therefore as the content of a legal obligation) only if a legal norm attaches a coercive act as a sanction to the opposite behavior." H.
KELSEN, THE PURE
THEORY OF LAW
12
13
115 (Knight trans!. 1967).
I d.
at 221 et seq.
/d.
at 193 et seq.
14 H. HART, supra note 5.
Hi
"If we stand back and consider the structure which has resulted from the combination of primary rules of obligation with the secondary rules of recognition, change and adjudication, it is plain that we have here not only the heart of a legal system, but a most powerful tool for the analysis of much that has puzzled both the jurist and the political theorist." ld. at 95.
16 I d.
at 97 et seq.
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Law, Obligation, and Morality 115 the expression of an "ought" to which human behavior should conform.
17
The concept of obligation distinguishes different rules in a legal system. Rules govern the play of a game, the management of business, and the conduct of government, to mention but a few. But not all persons in a system are bound by all of its rules; only club members are bound by club rules, and only the players are bound by the rules of a game. The existence of a legal system, however, presupposes that its law is binding on all its members. The nature of legal obligation in the positivist school will be examined to determine its characteristics and how members of a legal system are legally obligated to obey the system's laws.
The reasons for obedience to different rules of society may be identical. The rule of a club or game, of etiquette, or of law may all be obeyed because of fear of social disapproval, the possibility of a sanction being imposed by the group which made the rule, or a habit or custom of following the rule on previous occasions. But obedience alone cannot make law or constitute legal obligation, because then any rule of the system which is adhered to would be law. The diversity of the sources of rules, their subject matter, the persons to whom they are directed, and their nature mitigate against concluding obedience makes law or is legal obligation.
Just as law cannot he determined simply by the fact of obedience to a rule, neither can it be ascertained simply by the nature of the sanction imposed for violation of the rule. A rule is not law because it is enforced by a physical punishment rather than the public condemnation that might underlie a moral rule.
If the force (the sanction) makes a rule law, then a gunman's order demanding money would be law, because his sanction is certainly greater, at least in terms of imminency to the victim, than the usual sanction attached to a rule. However, it is doubtful that anyone would conclude the gunman's command is law. The example illustrates why analysis of rules on the basis of force alone is inadequate to differentiate legal from other rules of a system. Obedience and sanction are but two components of legal obligation, which ultimately determines the legal rules in a system.
C.
Diametrically opposed to positivists concerning the separation of morality and law, the natural law school of jurisprudence believes that
17 For a discussion of the "ought" inherent in law see generally Tollett,
Verbalism, Law, and Reality, 37 U.
DET.
L.]. 226 (1959).
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116 OREGON LAW REVIEW [Volume 52, 1973] positive law must conform to a higher ideal or law 18 to be valid. The ideal is traditionally expressed as justice, dictate of reason, morality, or the law of God. The common element in these formulations of the ideal is its transcendental nature.
19 Natural law theorists emphasize discovering this ideal and only secondarily deal with the nature and content of positive law as it relates to that ideaI.
2
0
Both schools, however, do share the goal of defining law.
21
The relationship between morality and law is the core of the concept of law and the obligation to obey it. On the one hand, the natural law school holds that if a legal rule violates morality, it is not law and no obligation regarding it arises. On the other hand, positivism maintains that regardless of its content, the rule is law if it was adopted according to the established procedure of the legal system, and a concomitant obligation to obey it exists.
Morality also interacts with law in the context of the individual's responsibility to law. Does a moral obligation to obey positive law exist ? Notwithstanding any legal obligation, is an individual under a moral obligation to obey positive law, assuming that the law is valid in the sense of having been properly adopted under the legal system?
II
LEGAL OBLIGATION
As a jurisprudential concept, legal obligation is the duty derived from legal considerations by which the individual is bound to obey the law.
In practice this relationship usually is viewed as the means utilized by a legal system to require obedience to the law.
If a statute is violated and a sanction imposed for its breach, the enforcement of the sanction by police, prosecutorial, and judicial organs of society is the method for obtaining obedience. But legal obligation is more complex than simple application of a rule, sanction, and force. Legal obligation means that the individual is obligated to obey the law for legal rather than moral or social reasons. It also means that certain conduct is no longer optional, but is required of the individual by the legal system. For these reasons it is important to know the source, nature, and scope of legal obligation.
Austin's concept of legal obligation is inherent in his definition of law. Under his imperative theory law consists of three inseparable
'18
O. BIRD, supra note 2, at 118-60. For a general discussion of the natural law school see
19
W.
FRIEDMANN, LEGAL THEORY 17-69 (3d ed. 1953).
E.g., F. OLAFSON, SOCIETY, LAW, AND MORALITY 19 (1961).
20
21
E.g., id.; O. BIRD, supra note 2.
Authorities cited note 20 supra.
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Law, Obligation, and Morality
elements: command, duty, and sanction.
22 A command is a rule or standard issued by one who has the ability to inflict an "evil" or sanction if the rule or standard is not obeyed.
23 The corollary of command is duty or obligation. According to Austin, being subject to the sanction gives rise to the obligation to obey the command.
24 The sanction under his theory is the enforcement of obedience to the command.
25
Basically the imperative theory derives legal obligation from the combination of a command with a sanction. Law is different from social or other commands because of the sanction or force behind it.
26 If a command lacks a sanction, no corresponding duty arises; if a sanction is imposed, the person to whom the command (law) is addressed is under an obligation to obey it. Thus, Austin's concept of obligation, based ultimately on the force behind the commands or law, makes a legal system essentially a coercive one.
Hart strongly criticizes the imperative theory because it fails to distinguish the situation in which a person is obliged to do an act from one in which he is under an obligation to do an act.
27 Hart disagrees with
Austin's view that a person has an obligation if a rule is enforced by a sanction and he fears the sanction, regardless of its severity or of his chances of incurring it if he violates the rule. He points out that Austin himself weakens the significance of the sanction by allowing "the slightest chance of the slightest evil" to create an obligation.
28 Hart maintains that if a person is under an obligation, the person's fear of the sanction or the chances of the sanction being imposed cannot alter the obligation.
22
"It also appears from what has been premised, that command, duty, and sanction are inseparably connected terms: that each embraces the same ideas as the others, though each denotes those ideas in a peculiar order or series." ].
AUSTIN,
23 supra note 3, at 17-18 (italics in original).
I d.
at 24-25.
:14
"Being liable to evil from you if I comply not with a wish you signify, I am bound or obliged by your command, or I lie under a duty to obey it," ld.
at 14
(italics in original). The efficacy of the sanction as the source of legal obligation becomes questionable when Austin states that "the smallest chance of incurring the smallest evil" is sufficient to create a sanction and hence an obligation.
ld.
at 16.
If the sanction is so slight or so unlikely to be imposed that no reasonable man would act according to the rule simply because a sanction was stated, does an obligation in fact exist?
25 ld.
at IS.
Austin does acknowledge, albeit briefly, that fear may be a source of obedience to a command. "In short, I am determined or inclined to comply with the wish of another, by the fear of disadvantage or evi1." ld.
at 17. He also says,
"If, in spite of that evil in prospect, I comply not with the wish which you signify,
I am said to disobey your command, or to violate the duty which it imposes." ld.
at
14 (emphasis added). Then a person has an obligation not only because of the command and sanction, but also because he fears the sanction.
26 ld.
27
Hart, Legal and Moral Obligation, in ESSAYS
IN
MORAL PHILOSOPHY 82,
95-98 (A.
Melden ed. 1958).
28 ld.
at 97-98. See note 24 supra.
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118 OREGON LAW REVIEW [Volume 52,1973]
According to Hart, the reason Austin's analysis falls short as an examination of obligation is Austin's incomplete treatment of rules in a legal system. In Hart's words, "Without the notion of a system of rules resting on that complex social practice, the difference between 'obliging' and 'imposing or creating an obligation' cannot be made clear."29
By conceiving law as a system of rules, Hart attempts to de-emphasize the coercion in obligation. He believes that rules may obligate officials, for example, without imposing sanctions30 and that not every rule in a legal system must, or does, have a sanction attached.31 Law is not a command, but a system of rules which creates obligations between parties.32
Legal obligation arises from a rule "when the general demand for conformity [to the rule] is insistent and the social pressure brought to bear upon those who deviate is great."33 Moreover, the rule must concern matters vital to the preservation of the society and may require the individual to act contrary to his wishes.34 A person is under an obligation, not because of the force of a sanction, but because of the existence of the rule. The nature of the rule (whether it is moral, social, or legal) depends upon the nature of the sanction; e.g., if the sanction is physical punishment by the system, it is a legal rule.3
:>
A rule is obligatory because its existence is acknowledged by members of society who not only generally act or justify their actions on the basis of the rule, but also demand and expect others to do likewise; moreover, they use violation of the rule as justification for punishing the offender.36 Hart
29 Hart, supra note 27, at 98.
30 "Though perhaps no logical vice or infinite regress would attach to a selfreferring rule that all officials should exact sanctions for all offenses including the breach of this rule itself, it is quite common for legal rules to require officials to do certain things and for the system to provide no sanction in case of their breach. This is for example true with the obligation imposed by the United
States Constitution on the President to take care for the due execution of the laws.
Yet we do not hesitate to refer to such cases as cases of official duty or obligation."
ld. at 99.
31 "It is surely not arguable (without some desperate extension of the word
'sanction' or artificial narrowing of the word 'law') that every law in a municipal legal system must have a sanction, yet it is at least plausible to argue that a legal system must, to be a legal system, provide sanctions for certain of its rules." Hart,
Positivism and the Separation of Law alld Morals, 71 HARV.
L.
REV.
593, 621
(1958).
32 I d. passim.
33 H. HART, supra note 5, at 84.
34 ld. at 85.
35
"[W]hen physical sanctions are prominent or usual among the forms of pressure, even though these are neither closely defined nor administered by officials but are left to the community at large, we shall be inclined to classify the rules as a primitive or rudimentary form of law." ld. at 84.
36 Hart's requirements for a legal obligation to X as sovereign are: "The minimum required in addition to general obedience, if we are to speak of the group's recognizing or having a legal obligation to do something specified by X, is (1)
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Law, ObligatiOIl, and Morality 119 thus conceives legal obligation as inhering in the existence of the legal system.
Kelsen adheres to Austin's conception of legal obligation arising from the sanction. He readily admits that his normative system of law is a coercive order3 7 and that law exists only when a sanction is attached to the norm.
3S Legal obligation is the duty to refrain from conduct contrary to the norm.
39 A person is obligated to act according to the ought (norm) when a sanction is imposed for performing conduct contrary to the norm. Under his theory legal obligation and legal norm are identica1.
4o
And, as with Austin, the sanction is a necessary element of the legal obligation.
41
Positivism as typified by Austin, Hart, and Kelsen suggests a common conclusion concerning the nature of legal obligation. Notwithstanding the efforts of Hart to depart from Austin's coercive definition, legal obligation remains founded on coercion. Hart's example of officials under a legal obligation to act even though no sanction is imposed for not acting is not a conclusive response to the problem of whether coercion is a prerequisite to obligation.
If a rule requires particular action by an official, he is subject to proceedings such as mandamus to compel performance of the action.
If he fails to perform properly his official function, impeachment proceedings may lead to his removal from office.
42 The importance of the existence of such proceedings is not that they are sanctions for violating the rule, but that they illustrate the source of legal obligation even of a rule not imposing a sanction. That source is the legal system itself. The basis of the legal system is the that X's words should generally be accepted as constituting a standard of behavior so that deviations from it (unlike the mere failure to follow a mere habit current in the society, such as that of drinking tea or coffee) are treated as occasions for criticism of various sorts; (2) that references to X's words are generally made as reasons for doing or having done what X says. as supporting
demallds that others should do what he says, and as rendering at least permissible the application of coercive repressive measures to persons who deviate from the
27, at 90 (italics in original).
standard constituted by X's words." Hart, supra note
See also H. HART. supra note 5, at 163-76.
37
H. KELSEN, supra note 11, at 33.
S81d.
at 115.
S9 ld.
at 117-19.
40
"To be true, legal norm and legal obligation are usually differentiated. and it is said that a legal norm stipulates a legal obligation. But the legal obligation to behave in a certain way and the legal norm that prescribes this behavior are not two different facts; the legal obligation is this legal norm." ld. at 115 (italics in original) .
41
See text accompanying note 22 supra. Kelsen summarizes the correlation:
"[T]he sanction is the coercive act that constitutes the legal obligation." H.
KELSEN, supra note 11. at
42
123.
See, e.g., U.S. CONST. art II, &4: "The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors."
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120 OREGON LAW REVIEW [Volume52,1973J union of primary rules creating obligations with secondary rules governing the organization and validity of the rules in the system.43
Because legal obligation according to Hart requires, as a minimum, obedience to, acceptance of, and governance of one's conduct by the rules of the system, the legal system determines the existence and scope of the member's legal obligation.
44 By requiring obedience, acceptance, and conformity to its rules as prerequisites to membership, the system can apply any of its rules to assure these undertakings, even though a particular rule does not stipulate a sanction. The legal obligation under a system of rules is based on the coercion inherent in the legal system.
In this manner Hart, Austin, and Kelsen rely on coercion in some form to create legal obligation. By determining that conduct is basically ordered either by a command or a norm, Austin and Kelsen acknowledge that the coercion necessary to obligate an individual is the sanction applied if the command or norm is not obeyed. Under his system of rules
Hart derives legal obligation from the coercion inherent in the legal system; although the individual is not necessarily obligated by a sanction to obey a law or rule, he is obligated by the nature of the legal system. Thus, the imperative, normative, and rules systems reach the same result: coercion is a necessary element in legal obligation.
Karl Olivecrona, in attempting to derive "law as fact," has stated that the "binding force" of the law is an illusion without factual foundation.45 He reasons that the positivists who base law on implication must have a rule or norm as the antecedent of a sanction or consequence.
Legal obligation arises from the unity of the rule and sanction; standing alone, the rule prohibiting murder is not obligatory.46 But because the rule and the sanction are logically distinct concepts, they are never united and therefore cannot create an obligation. Olivecrona states that this analysis of law lacks a factual foundation for obligation and in effect relies chiefly on psychological elements such as fear of the sanction as the cause of obedience.47 Not only does he disagree that fear of
43 H. HART, supra note 5, at 77-96.
44 See note 36 supra. Under the system of rules the person who recognizes the validity of the rules and thus considers that he is required by the rule to act in a particular way is in essence setting a standard for governing how he ought to act.
In this manner the conduct is obligatory not only because prescribed by a rule, but also because it is accompanied by a feeling on the part of the individual that he should so act.
45 In his words, "The obvious conclusion should be that the binding force exists in imagination only." K.
OLIVECRONA, LAW AS FACT 15 (1939). Although Olivecrona uses the term "binding force of the law" rather than "legal obligation," his discussion focuses on what makes a person obey the law and he critiques other writers on the basis of what positivism usually considers as legal obligation. In this respect he uses the expressions synonymously.
46 Id. at 13.
47Id. at 14.
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La~v, Obligation, and Morality 121 a sanction is effective as a deterrent,48 but also he believes that the motives for an individual's obedience cannot be the basis of obligation in fact. 49 Personal attitudes cannot be equated with the binding force of law because legal obligation is then subjective. But legal obligation is not subjective. The law binds a person even if he can violate it without getting caught or if he does not consider himself bound by it.
50 Olivecrona concludes that the factual basis of legal obligation is the organized force of society.
Without doubt social life must be based on law. But not on law in the metaphysical sense-the imaginary law that stands above the facts with its "binding force." No, our social life is based on the actual law, on law as fact, the term taken in its widest sense embracing the organized force which is used according to the rules called law in a restricted sense.
51
In Olivecrona's opinion law is obeyed because of the realization that the state can and in fact will impose the sanction if the law is violated.
The harshness of his view that force creates obligation is ameliorated by other pertinent observations. He acknowledges that a primary reason for obedience to law is that law frequently coincides with moral principles. In the view of the members of society, this close nexus between morality and law, especially in the evolution of the law, de-emphasizes the actual source of legal obligation in society. The members of society generally rationalize their obedience on grounds that law is moral; i.e., it reflects a moral command which is valid because of human, not transcendental, standards.
52 Another factor is that the organized force of society is used to achieve benefits for the society and its members. These goals are attained by the laws the society passes.
53
The views of Austin, Hart, Kelsen, and Olivecrona point up the difficulty of defining legal obligation.
If legal obligation is the relationship which compels an individual to obey the law, it entails a binding element in the rule or law. The obligation must arise from legal, not moral or social factors, and must bind persons to obey the law. Thus, regardless of an individual's beliefs (e.g., that all laws or official rules should be obeyed, that the law coincides with a moral standard, or that a person fears the sanction imposed for doing the proscribed conduct), he is legally bound to obey the law. Theoretically, then, obligation binds the professional criminal as well as the unintentional offender in the same manner and even if neither knows the precise proscription of the law. In short, all members of a legal system are legally obligated to obey the law regardless of their motives, intents, or attitudes.
48 I d.
at 143 et seq.
49 [d.
at 11-14.
50Id.
Mid.
at 136.
52
Id.
at 161-71.
f>3Id.
at 171-80.
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122 OREGON LAW REVIEW [Volume 52,1973]
In this perspective legal obligation is essentially a nonvoluntary undertaking by the individual. However, the legal obligation is not necessarily imposed on the individual when the requirements of a law coincide with the individual's conduct; i.e., the law requires the same conduct which the individual would do with or without the law (probably the common situation). But, for the individual who prefers to disobey the law for whatever reasons, or the social revolutionary who denies any obligation, legal or moral, to obey the law, legal obligation is a nonvoluntary relationship forcibly imposed by the system. These examples perhaps best illustrate the necessary coercion underlying legal obligation. The members of the system would be quick to assert that all of them, including the revolutionary, are legally obligated to obey the law. But the obligation cannot rest upon the law or its sanction, for it is the validity of these very concepts which is being challenged. Nor can the system assert that the obligation arises from consent since this too is being denied. Ultimately the system can only base a legal obligation to obey its laws upon its own preservation and perpetuation of order. The revolutionary is bound by the laws (and they will be enforced against him) by the coercion of the system whether it be called the sanction of a law or norm, the existence of a legal system, or the organized force of society.
Olivecrona was no more successful than other positivists in empirically establishing legal obligation as a concept of jurisprudence. His identification of legal obligation with organized force is analogous to the coercion of the sanction under the imperative and normative theories or the existence of the legal system under the rules approach. Organized force is the element in the legal system which enforces the sanction if law is breached. Just as Olivecrona objected that there was no logical unity between the rule and the sanction, there is no logical unity between organized force and the sanction of the particular rule it is applying.
Before organized force is used, a rule which has a sanction attached must be violated. Hence the unity necessary for obligation to inhere in law cannot occur and the "binding force of the law" (or legal obligation) still remains intangible.
Viewed by the individual in the legal system, legal obligation is a fiction. Some persons will obey law for moral reasons or from habit, indifference, or fear. But from the viewpoint of the individual who says he is not obligated by the laws of the system, legal obligation is defined and imposed by the system itself.
It is not an objective, cognizable principle which will account logically for why he is obligated to obey laws he rejects. Legal obligation is a device created by a legal system to impose an obligation to obey its laws on its members where the obligation in fact may be lacking. The obligation does not exist if its consti-
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Law, Obligation, alld Morality 123 tutive elements, such as consent, mutuality, or agreement between the individual and society, are not present. Where they are not present
(e.g., the revolutionary who denies laws apply to him), then the only tangible basis of the legal obligation is his connection with the legal system-his physical presence in it. That is, the necessary consent, ac-' ceptance, or agreement may be implied from his decision to stay in the legal system.
The fictitious nature of legal obligation, however, is not overcome by arguing that the individual impliedly consents to or acknowledges the obligation by remaining in the legal system or by obeying some, but not all, laws.
54 His express rejection of the obligation would refute any such implication. But the revolutionary might also argue that his presence and obedience merely reflect his preference for the society as the one he believes he can change; it does not evidence his agreement with that society or its legal system as it is. Thus, the legal obligation will arise because the legal system, either through its monopolization of force or its definition of law, says all persons in it are obligated by its law; legal obligation is the creation of the legal system.
The positivists' justification for requiring obedience to positive law is to create a fictional relationship of legal obligation. The essence of the obligation is the force and coercion of the legal system. The same result occurs under the natural law view of legal obligation despite the differences in approaches. The classic natural law position that positive law must conform to a higher law to be valid changes the sanction or force behind the command from a temporal one to whatever one ultimately underlies the higher law.
If legal obligation is derived from the positive law, then the natural lawyers must assert arguments identical to those relied on by the positivists to justify it.
If, however, the legal obligation is derived from morality or a higher law, then the basis of the obligation is a sanction such as public condemnation or self-guilt.
The difference between this approach and that of the imperative theory combining a rule and sanction is the nature of the sanction; in both cases the obligation rests on coercion or force.
Professor Lon Fuller has modified the classic natural law approach by identifying legal obligation with the morality of the law. Law is obeyed because it creates and preserves ideals recognized as goals by the society. This moral fiber in law, not force, is the factor which causes or creates legal obligation.
55 Although this view modifies the traditional
54
It is doubtful that even the anarchist or social revolutionary flagrantly breaks every law. Rather, to remain in the society and continue his work, it seems more likely that he obeys laws necessary for him to be free (i.e., out of jail), at least during the planning stages of his activities.
55
Fuller, American Legal Philosophy at Mid-Century, 6 ].
LEGAL ED.
457
(1954).
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124 OREGON LAW REVIEW [Volwne 52,1973] theory by substituting moral principles or goals of a society for the higher law criteria, it does not alter the coercion inherent in legal obligation. The effect of this modification is to equate legal with moral obligation, and then sanctions, or coercion, change to correspond to the new obligation. In this manner under positivism or natural law theory, legal obligation is founded ultimately on force and is, therefore, a fictional relationship between the individual and the legal system.
III
MORALITY AND LAW
Problems concerning the relationship between morality and law usually arise in two contexts. First, in defining and determining law, are the legal and moral issues separate and distinct? Positivism traditionally answers that question affirmatively. Natural lawyers argue that law and morals are so interrelated that there is a necessary implication of morality in legal order. Second, does the individual have a moral obligation to obey the law? What effect does the evil or immorality of a law have on the obligation? What is the scope of the obligation?
Traditionally positivism has approached jurisprudence as being the science of law as it is, rather than as it ought to be. Austin perhaps most cogently stated the division:
The existence of law is one thing; its merit or demerit is another. . .•
[\V]hether it be or be not conformable to an assumed standard, is a different enquiry. A law, which actually exists, is a law, though we happen to dislike it, or though it vary from the text, by which we regulate our approbation and disapprobation. This truth, when formally announced as an abstract proposition, is so simple and glaring that it seems idle to insist upon it.
fiG
Austin's insistence upon the separation of morality and law is intimately tied to his view of law as a command. Law as a command of a human sovereign could not be subject to uncertain metaphysical criteria to ascertain its validity.fi7 Moreover, morality as expressed by God's law is sometimes uncertain or unrevealed and hence may be subjective.fis
If positive law is to be judged by moral principles, under the imperative theory, the possibility of anarchy is very real.
fi6].
AUSTIN, supra note 3, at 184.
fi7 Hart, supra note 31.
fi8].
AUSTIN, supra note 3, at 186: "But the laws of God are not always certain.
All divines, at least all reasonable divines, admit that no scheme of duties perfectly complete and unambiguous was ever imparted to us by revelation. As an index to the Divine will, utility is obviously insufficient. What appears pernicious to one person may appear beneficial to another."
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Law, Obligation, and Morality 125
To incite the public to resistance by determinate views of utility may be useful, for resistance, grounded on clear and definite prospects of good, is sometimes beneficial. But to proclaim generally that all laws which are pernicious or contrary to the will of God are void and not to be tolerated, is to preach anarchy, hostile and perilous as much to wise and benign rule as to stupid and galling tyranny.59
Hart perceives additional ways in which morality might be injected into law.60 One method is to attack the command theory as being inadequate to create rights or powers. A command is either obeyed or not; it does not create rig-hts.61 Rules must be used to confer rights. For this reason, it is argued, any system which confers rights must base the rules creating the rights on natural justice or moral principles.62 Hart dismisses this argument since there is no logical reason why rules must be based on morality simply because they are rules rather than commands.
The attack points up a defect in the imperative theory but does not refute or have a direct bearing on the separation of law and morality.63
It is an attempt to disprove all elements of the theory by establishing a defect in one. The concept of law as a command, its analytical study, and the separation of law and morality are three distinct components of the imperative theory.
Morality can also be resorted to for resolving problems arising in the penumbra of a rule, the area not covered by the core or standard instance of the rule.64 Thus, if a situation is not directly covered by a rule and the rule must be interpreted to decide the situation, then the interpretation should be made on the basis of moral principles and considerations. The proponents of this argument believe positivism by its mechanical use of logical deduction inadequately resolves penumbral questions. Hart's response to this position is that introducing moral principles into the problem does not assure its resolution will comport with morality.
If an observer notes that a decision "is as it ought to be," his comment may reflect that the decision
IS morally correct or that it
,vas decided as the observer believed it should have been decided. In
Hart's words, "The point here is that intelligent decisions which we oppose to mechanical or formal decisions are not necessarily identical with decisions defensible on moral grounds."65
Hart concludes that penumbral questions can be decided rationally in light of social aims66 and that the separation of law and morality is a valuable analytical tool insofar as it establishes the line between the core
59 [d.
60 Hart, supra note 3l.
61
62
63
[d. at 605-06. See also ].
SALMOND, supra note 7.
Hart, supra note 31, at 605-06.
[d.
at 606.
64
[d.
at 606-15.
65 [d.
at 613.
66 [d.
at 614.
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126 OREGON LAW REVIEW [Volume 52,1973) and the penumbra of a rule in the first instance.
G7 Thus, the injection of moral principles does not necessarily mean that penumbral questions would be decided differently from the positivists' results, but it could obscure the line between standard instances of a rule and penumbral cases requiring interpretation.
The positivist's view is that legal concepts are studied more accurately and objectively if moral issues are considered separately. This separation of law and morality enables the issues relating to each to be delineated clearly.
It is possible to study law as law. Once the content of the law is realized, its morality can be determined.
If it is immoral or does not reflect the goals of society, it can be changed. Positivism does not reject morality in law. It not only recognizes that moral principles overlap with legal rules, but also that moral obligations may prevail over legal ones. For example, if a law is immoral, the individual may be morally obligated to disobey it.
68 The separation of law and morality, however, enables the individual to understand clearly the moral issue and condemnation of the law by juxtaposing the moral principle and the positive law.
69
Kelsen sustains the separation of law and morality on the basis that, although both disciplines deal with social order, law is a coercive system and morality is not.
70 Moreover, he rejects the idea that the two orders must necessarily be connected because of the relativistic nature of Inorality. He states that because no absolute moral order exists, the evaluation of a legal system is not dependent upon the moral order, and no legal system or law can be adjudged invalid because it is "immoraI."71
The thesis that law is moral by nature-in the sense that only a moral social order is law-is rejected by the Pure Theory of Law not only because this thesis presupposes an absolute moral order, but also because in its actual application by the science of law prevailing in a certain legal community, this thesis amounts to an uncritical justification of the national coercive order that constitutes this
COI11munity.7
2
Kelsen in developing his "pure theory of law" apart from morality
67Id.
68 Cf. id.
at 620, where Hart states, "If with the Utilitarians we speak plainly, we say that laws may be law but too evil to be obeyed." See also ]. AUSTIN, supra note 3, at 277, where he points out one error in Hobbes' treatise is that "[hIe makes not the requisite allowance for the anomalous and expected cases wherein disobedience is counsel!ed by the very principle of utility which indicates the duty of submission."
69
Hart, supra note 31. This point is also made regarding contemporary civil disobedience. The justification for disobeying a law and going to jail for such action is to pinpoint the moral issues (i.e., the immorality of the law) for public scrutiny. King, Letter from Birmingham City Jail, in CIVIL DISOBEDIENCE:
THEORY AND PRACTICE 72 (H. Bedau ed. 1969).
70
71
72
H. KELSEN, supra note 11, at 62.
Id.
at 66-67.
Id. at 68-69.
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Law, Obligation, and Morality 127 eliminates from the description of law that which is not strictly law.
His theory aims "to free the science of law from [its] alien elements."73
The task of the pure theory is to define and describe law rather than to justify it on either absolute or relative moral grounds.74
Thus positivism has argued that law must be separate from morality.
Although conceding that law overlaps with morality and that morality plays a role in the development of law, the separation is required primarily for an accurate analysis of law and legal concepts. The essence of the doctrine can be stated briefly: because a rule is moral provides no basis to conclude it is law, and conversely, because a law is immoral provides no basis to conclude it is not law.75 Such conclusions confuse the moral and legal issues, and hence the study of the elements of a legal system is more difficult.
The approach of the traditional natural law school is that law necessarily must be moral.
If positive law is immoral, it is not law. The standard for determining the validity of law is its agreement with the criterion of a higher law such as divine law.
If positive law violates this higher law, then it is not law.76 No obligation arises from such a law.
Locke introduced a variation on this theory, postulating "inalienable rights" as criteria for determining the validity of positive law.H
If positive law violates those rights, it apparently is still law, but the individual has no obligation to obey it. His duty is to rebel and resist the law.78
Fuller in The Morality of Law has recently modified the traditional theory. In essence his approach is a purposive analysis of law and a legal system. The morality and hence the ultimate validity of positive law depends upon whether the law fulfills the purposes of social order.79
In his book he first discusses the "internal morality" of law. This morality deals with the procedural aspects of a law such as its adoption, application, and promulgation. Not only must the law be publicized and understandable to those it affects, but also it must be applied prospec-
73 ld. at 1.
74 "From the point of view of a science of law it [justification by appeal to morality] must be rejected, because it is not the task of this science to justify the law by absolute or relative morals; but to know and to describe it." ld. at 69.
75 Hart, supra note 31, at 599.
76 See, e.g., F. OLAFSON, supra note 19, at 42-75, for excerpts from the writings of St. Thomas Aquinas; J. AUSTIN, supra note 3, at 184, citing Blackstone as an example of this view: "Sir 'William Blackstone, for example, says in his 'Commentaries,' that the laws of God are superior in obligation to all other laws; that no human laws should be suffered to contradict them; that human laws are of no validity if contrary to them; and that all valid laws derive their force from the
Divine origina1."
77 See excerpts from the writings of John Locke in F. OLAFSON, supra note
19, at 118-48.
78 ld. at 146.
'79 L.
FULLER, THE MORALITY OF LAW (1964); Fuller, supra note 55.
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128 OREGON LAW REVIEW [Volume 52, 1973] tively and nondiscriminatorily as promulgated. This is the morality, in
Fuller's words, "that makes law possible."80 It is the set of basic principles or precepts which must underlie the existence of a legal system.
Fuller does not accept the traditional "higher" or "transcendental" law criteria as the basis of legality,81 but does believe that minimum criteria must be met for a legal system to exist.82 Recognition of these minimum fundamental principles is the "moral power" which causes individuals to obey the law.83
Likewise Fuller believes the external morality of law must also advance these principles or purposes of a society. Thus he does not rely on an absolute higher law to judge positive law, but rather determines whether the substantive content is consistent with the basic doctrines adhered to by the society.84 Only when law or a legal system strives for consistency with these doctrines is the law moral and obligatory.
Fuller has been critical of positivism in general, and Hart in particular, for separating law from morality because of a fear of anarchy s5 or a breakdown of social order.86 Hart was convinced, on the one hand, that the anarchist would reason that the law is as it ought to be, but if not, then it need not be obeyed; on the other hand, the reactionary would reason that because a rule is law, it is as it ought to be and hence would unquestioningly assume it is good.87 He also feared that joining the studies of law and morality would result in obliterating the distinction between the penumbra and the standard instance of the rule. This in tum would lead to preoccupation with the penumbra and confusion over the meaning of the rule itself. Because it would destroy the authority of rules, such a threat to the integrity of rules is a challenge to the existence of the legal system.88 According to Fuller the objective of the law-making process "should be to discern those minimum principles that must be accepted in order to make law possible and then to protect the integrity of those principles and to promote a general understanding of them."89 As long as that objective is being fulfilled, he believes the dilemma positivists fear will not arise. On the other hand, he believes the
80 L.
FULLER, supra note 79, at 33-94.
81 Cf. Fuller, supra note 55, at 467 et seq. See also Fuller, Positivism and Fidel- ity to Law-A Reply to Professor Hart, 71 HARv.
L.
REV.
630, 656 (1958).
82 See authorities cited notes 79-81 supra.
83 Cf, Fuller, supra note 55, at 462, where he criticizes positivists because
"[t]hey resist strongly any suggestion that the power on which the law must rest is essentially a moral power, reflecting the persuasive force of accepted rules."
841d. See also
85
L.
FULLER, supra note
See text accompanying notes 59-62
79, at supra.
4, 152-86.
86 Fuller, supra note 81, at 669-72.
87 Hart, supra note 31, at 598.
88 E.g., id. at 614-15.
89 Fuller, supra note 55, at 463.
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Law, Obligation, and Morality 129 positivists' philosophy can and, in Nazi Germany, did lead to the result they feared. 90
There is no easy answer to the question whether law and morality should be separate studies. There is no doubt that morality and law interact and may coincide at different points and in various ways.91 But jurisprudentially the separation of the studies may be better. Such a position perpetuates the analytical contribution of positivism to jurisprudence, to study law and a legal system for its constitutive elements.
Once the legal concepts and doctrines composing the system are ascertained and defined, the morality or goals which the system seeks to achieve may be sought within that framework. But the line between what the law or the legal system is and what it ought to be will not be clouded by problems extraneous to the determination of that line.
A weakness in the natural law approach of Fuller is the uncertainty of the goals he desires to preserve by law.
It is clear that he has standards in mind as aims of the law which include the internal morality of law or good order.92 But his concept of internal morality and good order is, in effect, substitution of different standards for the "higher law" of the traditional natural lawyers which he rejects. Although his reason for rejecting the higher law standard is unclear, it may be the absoluteness93 and lack of definition of the standard.
94 But the problems of vagueness and uncertainty of transcendental law are not resolved by the standard of good order, which may vary and be as vague as the higher law or general principles of society such as peace or justice. For example, Fuller clearly would deny that Nazi Germany met his standard of good order as opposed to what he considers positivism's goal of
"order,"95 although arguably that government, or a totalitarian state, could achieve good order.
Fuller's criteria are uncertain for additional reasons. Not only are there different concepts of good order as there are of higher law, but also Fuller's definition is inherently ambiguous. He defines good order as "law that corresponds to the demands of justice, or morality, or men's notions of what ought to be."96 That definition merely reverts back to the definitional problems of the traditional natural law school.
90 I d.
at 465 et seq., where Fuller also strongly takes issue with the analytical value of the positivists' separation of legal from moral issues because it enables grave injustices to be performed in the name of law.
91 See, e.g.,].
AUSTIN, supra note 3; Hart, supra note 31; L.
FULLER, supra note
79; Fuller, supra note 55; Fuller, supra note 81.
92 L.
FULLER, supra note 79; Fuller, supra note 55.
93 C/.
Fuller, supra note 55, at 467-68.
94
Commenting on the defects in literature on morality and the law, Fuller states, "The first of these relates to a failure to clarify the meaning of morality itself." L.
FULLER, supra note 79, at 3.
95 Fuller, supra note 81.
96Id.
at 644.
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130 OREGON LAW REVIEW [Volume 52,1973]
The positivist's separation of law and morality should be maintained because of its analytical value. One example of this doctrine providing a more accurate analysis of a legal system from a jurisprudential viewpoint is the Nuremberg trials held after World 'vVar 11.
97 Nuremberg provides an illustration of how morality can cause legal issues and problems to be obscured and suppressed by moral considerations. The moral gravity of Nazi atrocities during World 'vVar II overshadowed a close analysis of the international legal system. The positivists' doctrine of separation could have enabled examination and solution of the legal issues as such.
The suggestion is not that examination of legal issues as legal issues would have led necessarily to a different conclusion, for certainly regarding the judgments at Nuremberg this is unlikely. But it is suggested that different legal means might have been employed and questions concerning the legal status of Nuremberg in international law today might have been avoided.
98
Addressing strictly legal problems, the first issue is whether the acts committed by the defendants were crimes.
If so, under what law, international or domestic, could they be tried and for what crimes? Next, the question of which state had jurisdiction to try the defendants must be posed.
If the crimes were deemed international, what system or state should have tried the defendants? Analysis of international law could provide answers to some of these questions. At the very least, internationallaw in 1946 would have permitted the defendants to be tried for murder under the domestic law of the state where the acts were committed, or the Allies could have tried the defendants in Germany under the law of the occupation forces under the unconditional surrender. In addition, international law would have acknowledged jurisdiction for war crime trials in any nation having custody of the defendant under the "universality" principle.
99 Moreover, the analysis could have shown the war crimes were international crimes, but that no international machinery existed for their prosecution and trial. The dubious nature
'97
The discussion of Nuremberg is not intended to be an evaluation or determination of the validity of its principles in international law. It is discussed only as an example of why the positivists' doctrine of the separation of law and morality is valuable as a jurisprudential concept.
98 For a discussion of the controversy see, e.g., S.
GLUECK, \VAR CRIMINALS:
THEIR PROSECUTION AND PUNISHMENT
TRIALS IN INTERNATIONAL LAW
(1944) ; R.
\VOETZEL, THE NUREMBERG
(1960) ; Finch, The Nuremberg Trial and International Law, 41 AM. ]. INT'L L.
20 (1947) ; Garcia-1Iora, Crimes Against Peace in International Law: From Nuremberg to the Present, 53 Ky.
L.].
35 (1964);
Glueck,
Wright,
99
The Nuremberg Trial alld Aggressive War, 59 HARV.
L.
REV.
396 (1945) ;
The Law of the Nuremberg Trial, 41 AM.]. INT'L L.
38 (1947).
For a discussion of cases in which states exercise universal jurisdiction over war criminals see W. BISHOP, INTERNATIONAL LAW: CASES AND MATERIALS
(3d ed.
1971).
557
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Lml', Obligation, and Morality 131 of crimes against humanity as international crimes would also have been revealed.
10o
The significance of this cursory review is not to say the Allies were right or wrong in their actions.
It is to point out that from a jurisprudential standpoint such analysis would have revealed valuable insight into international criminal law. By emphasizing the lack of machinery to try criminals and the lack of precise proscription of certain acts
genocide) as crimes against humanity, the system could undertake reforms. The crimes could be punished under domestic la\v of the nations concerned and the reforms occur in the context of the international legal system, thus maintaining the integrity of that system both in its application and modification.
This analysis and solution were not adopted in 1946 probably because of the shock over the Nazi actions. The horribleness of the acts combined with the \Vorld War I precedent of not punishing war criminals
101 obscured the legal questions. Moral considerations and world opinion demanded that the defendants be punished; the ad hoc tribunal at
Nuremberg comprised of Allied judges was the most expeditious way to achieve that result.
The judgment of the International Military Tribunal provides illustrations of how moral principles clouded some of the legal issues. On behalf of the defendants,
It was submitted that ex post facto punishment is abhorrent to the law of all civilized nations, that no sovereign power had made aggressive war a crime at the time the alleged criminal acts were committed, that no statute had defined aggressive war, that no penalty had been fixed for its commission, and no court had been created to try and punish offenders.102
The response of the Tribunal was:
In the first place, it is to be observed that the maxim nullum crimen sine lege is not a limitation of sovereignty, but is in general a principle of justice. To assert that it is unjust to punish those who in defiance of treaties and assurances have attacked neighboring states without warning is obviously untrue, for in such circumstances the attacker must know that he is doing wrong, and so far from it being unjust to punish him, it would be unjust if his wrong were allowed
to go unpunished . . . . On this view of the case alone, it would appear that the maxim has no application to the present facts,l03
By resorting to the moral principle of justice the Tribunal passed over
100 This fact was acknowledged by the International Military Tribunal. See text accompanying note 104 infra.
101 Only six of about nine hundred war criminals on a list prepared by the
AlIies in World \Var I were ever convicted, and they received light sentences.
Only twelve were tried. S.
GLUECK,
supra note 98, at 27-34.
102
Judgment of the International Military TribultOl Against Major Nazi War
Criminals and Criminal Organizations, 20
TEMP.
103Id. (emphasis added).
L.Q.
168, 211 (1946).
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132 OREGON LAW REVIEW [Volume 52, 1973]
(and never answered) the significant legal question of whether these defendants in fact would have gone unpunished if the Tribunal had not assumed jurisdiction.
The other instance in which the Tribunal avoided confronting a legal issue was determining whether crimes against humanity charged in the indictment were international crimes. This issue was circumvented by expressly relating the crimes against humanity to the war crimes or aggressive war which were established international crimes.104
105
Morality interacts with law in answering the question whether a person has a moral duty to obey positive law. The answer to this question has appeared so obvious to some writers that the duty is presumed without mentioning the problem.
106 The natural law school has less difficulty with the question since impliedly the obligation exists as long as the law is moral, either by conforming to a higher law or by fulfilling the fundamental purposes of society.107 In essence the legal standards are the moral standards and hence the respective obligations are identical. But positivism is confronted with more difficult issues. It admits that positive law may be immoral and yet would impose a legal obligation to obey it. In such a case is the individual morally obligated to obey the law?
The question of the individual's moral obligation toward positive law may be approached from two positions: (1) does the obligation arise from the societal relationship and (2) can the obligation arise from the individual's standard of morality. In either case the duty entails obligatoriness (certain conduct is required) and must arise from moral, rather than legal, values.
The sources of the moral obligation under the social arrangement are typically an implied (or express) agreement among the members of society, utilitarianism (i.e., obedience is necessary to preserve society), or the coincidence of positive law with a higher law. The social contract theory has had to be modified since it has been exhaustively refuted by
Austin qua contract on grounds such as the lack of parties, consideration, and mutuality.lOs Modified by restitution principles, the theory
104
[d.
at 241-42.
105 The terms "moral obligation," "duty," "obligation," and "moral duty" used in this section refer only to an obligation to obey positive law. The terms are used interchangeably. In discussing moral obligation it is presumed that the positive law is valid according to the procedure of the legal system.
106
E.g., L.
FULLER, supra note 79.
107 Fuller has even imputed to Hart acceptance without qualification of a moral duty to obey the law. Fuller, supra note 81, at 656.
lOS J.
AUSTIN, supra note 3, at 306-49.
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Law, Obligation, and Morality 133 is that the individual is unjustly enriched by receiving benefits such as education, security, and safety from society without compensation.
109
He is thus morally obligated to pay by complete obedience to the law.
The utilitarian theory is basically that the members of society have tacitly agreed that the preservation of society is the highest good and can best be achieved by obeying law. Since each member should govern his conduct to achieve the greatest good for the greatest number, everyone must obey the laws. Without such obedience the fear is that social order will collapse. To the extent that positivism fears anarchy and seeks social order as the highest good, utilitarianism is the probable source of a moral obligation to obey the law under the positivists' theories.
110
The final source of moral obligation created by social arrangement is the transcendental law theory.
It is the essence of the natural law school's derivation of a moral obligation. Because positive law must conform to some higher law to be valid, nonobedience to it would be a breach of the higher law or morality. Contrariwise, if the moral standard is breached by the positive law, there is a moral duty not to obey it since the moral value should be the preferred one under the individual's standards.
111
The moral principles underlying the contract or utilitarian theory are less obvious than in the transcendental.
If the individual consents, agrees, or promises either tacitly, impliedly, or expressly, then he is morally obligated by the principle that one should keep his promises.l
12
Thus the moral obligation arises from the promise made with other members of society.u
3
The idea that the arrangement between an individual and other members of society imposes on him a moral obligation to obey the law is open to question. The social contract qua contract is unrealistic and untenable today.u
4 Updating by restitution principles does not preserve it. Before unjust enrichment is applicable, the individual must have
109
Ct. Wechsler, Toward Neutral Principles of Constitutional Law, 73 HARv.
L.
RE\·.
1 (1959).
110
111
See text accompanying note 85 supra. Cf. section I supra.
This idea is a primary basis for assessing individual responsibility for acts of Nazi Germany on the defendants at Nuremberg.
Judgment, supra note 102.
Rejecting the defense of "superior orders," the Tribunal said: "The true test, which is found in varying degrees in the criminal law of most nations, is not the existence of the order, but whether moral choice was in fact possible." ld. at 215.
See generally Fuller, supra note 81.
112 E.g., Hobbes lists as his third law of nature, "that men perform their cove-
nants made." Excerpts from the writings of Thomas Hobbes in F.
OLAFSON,
supra note 19, at 88 (italics in original).
113 The assumption is, of course, that "a person should obey promises" is a standard of the individual's moral code.
114 See note 108 supra and accompanying text.
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134 OREGON LAW REVIEW [Volume 52,1973] received benefits by which he has been unjustly enriched. In contemporary society the benefits mayor may not be wanted and may be of dubious value to the individual in our society who considers himself confronted with its hypocrisy, its training him for admission into the establishment, and its policies in which he has no say. To that individual the society teaches equality, individualism, and peace while practicing inequality, striving for conformity, and conducting war. In such a case society does not confer benefits on the individual neutrally but has propagandized him for admission into its structure. Obviously, if the social structure is unfair, static, and repressive of the individual and requires him to accept it by imposing a legal obligation to obey its laws, a conclusion that unjust enrichment has occurred is inaccurate. These disadvantages the individual must endure offset any benefits he receives from society. Since the individual in this situation has not received benefits, the doctrine of unjust enrichment does not apply.
The restitution theory must also fail because a substantial segment of our society is undereducated, underfed, and underemployed and does not receive security from society. In short, these individuals do not receive even minimum benefits from society. Even if the theory were to apply to the remainder of the society, the theory cannot account for why this segment is morally obligated to obey the law. In fact it would seem that since they do not receive the benefits which society owes them under the theory, they would be morally justified, if not obligated, not to obey the laws.
115
Another weakness in the restitution theory is that the payment it exacts is too high. The theory of restitution is that the payment should be proportionate and in kind or of a nature closely related to the benefit.
Complete obedience to all law is obviously too great a payment and too remote from the nature of the benefits received to be justified (unless the benefit is the social arrangement itself).
If the theory is to apply to the social arrangement, the repayment should be in a tangible form more closely related to the benefits received. Specific payment by work for society such as military, governmental, or public service for a definite period would seem more fair under the theory. Once made, however, this type payment could leave the individual free to disobey selectively other laws unrelated to his payment or benefits from society because he has paid his debt to society.
The utilitarian and trancendental theories have a common defect, the uncertainty of the criteria which determine the obligation. The utilitarian must attempt to define the highest good to determine what the
115
Cj.
Hart, supra note 31, at 624, where he states: "Of course no one denied those benefits [minimum requirements for social order] would have any reason to obey except fear and would have every moral reason to revolt."
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Law, Obligation, and Morality 135 subject
law) of the obligation is. Likewise, the transendental theorist must define morality to ascertain what law must be obeyed. The lack of consensus on either the highest good or morality
116 makes these criteria unable to create an obligation.
When definitions of the standards to judge positive law are uncertain, the society cannot state the nature and content of the obligation. Since the concepts are relative, the only recourse for the individual is to choose his own standards to determine the highest good or morality. In this manner he also determines what laws will be valid and therefore the object of the obligation. The result is that the standards for determining morality or the highest good are uncertain, and the society does not agree on what criteria shall determine the positive law to be obeyed. Hence, under the utilitarian and transcendental theories no universal moral obligation is possible because its subject matter, positive law, is undetermined except according to the individual's selection of standards to judge the validity of positive law. The theories thus give rise, not to an obligation based on the social arrangement (as they were intended), but to one based on the individual's morality.
Another reason exists, separate from defects inherent in social contract theories, why a social arrangement may not create a moral obligation to obey positive law. The reason is the relative nature of morality and moral principlesY7 Under this view, primarily expounded by
Kelsen, any moral obligation the individual believes he has toward society is illusory. Moral obligation based on the social arrangement is premised on the individual's moral code reflecting a principle such as that one should carry out his promises or that one should pay for benefits he receives.
If the individual promises with other members of society to obey its laws and his code contains the principle that one should obey his promises, then he is morally obligated to obey the law.
In this manner the individual's code of morality is inherent in the obligation arising under the social arrangement theories, which is the very reason why the obligation is illusory. The individual may at will change his moral code to one which does not require the principle necessary for the obligation; e.g., by adopting a code not requiring a person to perform his promises. He thus has the power to terminate the obligation. Objectively from the society's viewpoint and subjectively from the individual's viewpoint, the obligation is illusory: the individual may appear under an obligation but in fact he is obligated only if he wants to be. Because the individual's moral code is necessary for a moral
116
117
See, e.g.,
H. HART, supra note 5, at 151-207; W.
FRIEDMANN, supra note
18, at 211-25, 450-63; H.
KELSEN, supra note 11, at 59-69; F.
OLAFSON, supra note 19, at 299 et seq.
Authorities cited note 116 supra.
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136 OREGON LAW REVIEW [Volume 52, 1973J obligation based on the social contract, transcendental, or utilitarian theories, the relative nature of morality prevents these theories from creating a moral obligation to obey positive law.
Although a moral obligation arising from the social arrangement is an illusion, a moral obligation to obey the law can exist nonetheless. us
The individual's code of morality may require him to obey all positive laws or all that are moral. By adhering to his code, the individual creates a moral obligation to obey the law. The sanction for breach of this obligation would be self-guilt, public condemnation, or transcendental punishment.
u9 Even if the person violates a law and thus his duty, it does not mean that the obligation does not exist. Just as a person may violate legal standards, he may violate moral ones. So long as he realizes that his act did violate his moral code and hence that he did not act as he "ought" to, the moral obligation continues.
120
The moral sanctions are great enough to give rise to an individual's moral obligation to obey all or some positive law. Certainly an individual could adopt as his moral principle an obligation to obey all positive law.
An absolute moral obligation to obey all positive law, however, would only be practical if the individual's code required that positive law conform to a higher law. Otherwise, because of the diversity and complexity of positive law, the moral duty would be unreasonable by demanding obedience which might violate other moral principles.
121 The usual qualification to the obligation is that the obedience applies to laws which are moral. The justification for such a qualification to the obligation is that the individual's morality must be his highest goal; if it conflicts with legal standards, he should abide by his morality.
Thus the individual's moral obligation to obey the law ultimately rests on his concept of morality. The obligation does not arise from nor is it imposed by the society. For this reason it cannot be implied from his presence in the society. Since the moral obligation necessarily is created by the individual's application of a moral code, its scope is limited by that code.
If positive law were to violate the individual's code, he would have no moral duty to obey it.
Ull
See example discussed in text accompanying note 116 supra. Cf.
H.
KELSEN, supra note 11, at 67: "A relativistic theory of value is often misunderstood to mean that there are no values and, particularly, that there is no justice. It means rather that values are relative, not absolute, that justice is relative not absolute; that the values as established by our norm-creating acts cannot claim to exclude the possibility of opposite values."
119 For a discussion of the nature of sanctions for morality see, supra note 3, at 180 et seq. ; H. HART, supra note 5, at 151 et seq.
120 H. HART, supra note 5, at 163 et seq.
L.
e.g., ].
AUSTIN,
1:!1
See generally Wasserstrom, The Obligation to Obey the Law, 10 V.c.L.A.
REV.
780 (1963).
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Law, Obligation, and Morality 137
CONCLUSION
The positivist approach to legal obligation provides no clear answer to the question of what the binding nature of law is. The obligation is not inherent in the definition of law, in part because many laws do not require individual action or do not impose sanctions for their violation.
Contemporary examples include the Gulf of Tonkin Resolution or the complex and complicated federal or state appropriations bills authorizing expenditures or actions with which the individual may disagree.
Modern positivists try to encompass these examples, as well as more traditional rules prohibiting conduct and imposing a penalty, by defining law as a system of rules or norms. In doing so they have moved from an emphasis on the command and sanction of a rule, and the consensual social relationship, to an analysis of the legal system giving rise to the obligation. But if the sanction and the individual's agreement or promise to obey are removed as sources of the obligation, it appears that the individual must follow rules because of the force of society behind them.
N or is the obligation easier to ascertain from the relationship of morality and the law. Although most laws probably reflect moral values of the community, an iniquitous or immoral law may be enacted.
If that happens, the obligation may depend on uncertain moral criteria by which to evaluate the law's validity and hence its binding nature, or else, if the obligation is not based on objective criteria, it may be purely subjective, based on the individual's values concerning the validity of the law. In either case it is difficult to state with certainty what the obligation is that makes individuals uniformly bound to obey the law.
In last analysis legal obligation may inhere in the nature of a legal system and the authority and potential of the system to enforce its laws.
If so, the individual may not have the option of selective disobedience, but may have to rely on the system to reflect his personal, as well as objective or commonly held values such as fairness and justice.
If the obligation is based on the system and the system fails to reflect these values, two conclusions are possible. First, the system may have lost the characteristics of a legal system; hence, its laws need not be obeyed.
Or the members of the system, collectively or individually, may not be obligated to obey its laws, and, in fact, they may be morally obligated to disobey them. Unfortunately, this analysis leaves unresolved the dilemma of the individual who does not challenge the system as a whole, but questions the binding nature of particular laws.
It may be that no legal system can recognize a claim of selective disobedience by individuals and ultimately must assert its force to require obedience to preserve its integrity as a system.
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