2012 Ragnar Anthony Gambrell

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Moral and Legal Obligation

Law and morality seem closely, if not necessarily, connected in various aspects. The notion of justice, most notably, unites the eld of law and the eld of morality. The legal system re-afrms fundamental moral principles or requirements, for example in fullling demands of justice. We can speak of law, however, as just or unjust. Further, in terms of obligation, duty, and right, law and morality share a certain normative vocabulary; and in both the eld of morality and the eld of law or legality, rules that are binding seem to apply. Moral and legal rules restrict an individual in choice and action and impose obligations in such a way that they appear to bind an individual to act. In following a moral or legal rule of obligation, an agent is bound to act in a certain way, as dictated by the rule. (Hart 1961:7) Given this: What is the connection between law and morality? In what way do moral rules differ from legal rules? The issue at stake, in this context, is obligation, or bindingness of a law or a rule, in the eld of morality as distinguished from the eld of law. Thus further: What is the difference between moral and legal obligation? What is the sense in which moral rules, as distinguised from legal rules, impose obligation? Also: Do human laws and the accepted morality of human society sufce in giving rise to obligation? What is at stake here is natural or eternal law: whether a higher law, above and beyond changeable human law, custom, and tradition, is necessary in giving rise to obligation, or, in other words, in order to bind an agent to act.

I. The Character of Legal Rules

When placed under law, or legal rules, human conduct is no longer optional, but obligatory, or so conceived. (Hart 1961:6, 80) Yet imposing obligation or

restriction on individual liberty is not particular to the character of legal rules. Moral rules also impose obligation and demand sacrice of self-interest. However, legal rules, in contradistinction to moral or non-legal rules, may be said to involve coercion or sanction in such a way that if the rule is breached, the predictability of punishment is denite. In the case of legal rules, sanction has been pre-determined by ofcial authority; and though non-legal sanction may also be predictable or probable, it is not predictable or probable with the same degree of certainty or precision as given by virtue of legality. On the account here given, legal rules may be dened as coercive orders the sanction of which may be denitively predicted by virtue of legality, in case the rule is breached. As Austin (1995) says: A law is a command which obliges a person or persons. (Austin 1995:29) Further: The evil which will probably be incurred in case a command be disobeyed or [...] in case a duty be broken, is frequently called a sanction, or an enforcement of obedience. Or [...] the command or the duty is said to be sanctioned or enforced by the chance of incurring the evil. (Austin 1995:22) Faced with the chance of incurring the evil, an agent is obligated to obey a law, which may thus rightly be dened as a binding rule, as it involves sanction and imposes duty. This denition applies most relevantly to legal rules; for they carry legal sanctions established by political superiors, or the sovereign. The chance of incurring evil, or a risk of punishment, is, let us grant, denite in the case of legal rules above moral or non-legal rules. However, as Hart (1961) reveals, a statement of being obligated and a prediction of being punished or sanctioned may diverge. Although obliged to do something, an agent is not thereby obligated to do the selfsame thing. (Hart 1961: 6, 80) Consider the gunman situation: A orders B to hand over his money; or else B will be shot. Surely, B is obliged to hand over his money; otherwise A will inict injury upon B, if not kill B. However, B doubtfully has an obligation or a duty to hand over his money; although he is likely to be injured or killed by disobeying and thus obliged to hand it over, he is not obligated so to do. (Hart 1961: 6, 80-83) Yet on

the account of legal rules as coercive orders, the gunman situation should rightly describe the meaning of legal obligation. If legal rules are reduced to coercive orders, or orders backed by threats, understood as imposing obligation by reason of coercion, i.e. unwanted or unpleasant consequences, the difference between being obliged and being obligated is, seemingly, not explained. Prediction of punishment, in case a coercive order is disobeyed, does not invariably sufce in giving an account of legal obligation. Legal obligation is, in other words, not sufciently explained in terms of coercive orders or orders backed by threats, viz. by a prediction of incurring evil from disobedience in the case of such an order. (Hart 1961:80-84)

II. Obligation and Social Pressure

Predictability of punishment, in the case of legal rules above moral or non-legal rules, does not allow us to fully differentiate between moral and legal obligation, although it is, at least in most cases, informative in this regard. To give an exhaustive account of obligation, some extra element (Hart 1961:11) is needed beyond mere predictability of punishment, given a coercive rule. Notably, rules do not function merely as indicators that a violation of them will be met with violence or unpleasant consequences, in accordance with sanction involved. Violation of a rule is not only a basis for a prediction that hostile reaction will follow, but a reason or justication for that hostile reaction. (Hart 1961:88) Rules are, in this sense, [...] guides to the conduct of social life as the basis for claims, demands, admissions, criticism, or punishment [...]. (Hart 1961:88) The predictive account of legal rules fails to consider that violations or deviations from legal rules are not merely grounds for a prediction of hostile reaction or sanction, but also reason and justication for such reaction, viz. applying sanction in the rst place. (Hart 1961:82) Obligation denotes an existence of a rule; yet rules do not invariably require a standard of behavior conceived in terms of obligation, or normative vocabulary

in the context of which obligation is presumed. Rules of etiquette and grammar, for example, do not impose duties in such a way that one is rightly said to be obligated to follow the rule in question. Normative vocabulary seems not to imply obligation in the case of some rules, such as those of etiquette and grammar; yet they are expected to be followed in precise ways. (Hart 1961:83-84) However, as Hart maintains, obligation is imposed by rules in such cases where those rules are supported by a sufcient degree of social pressure.

Rules are conceived and spoken of as imposing obligations when the general demand for conformity is insistent and the social pressure brought to bear upon those who deviate or threaten to deviate is great. (Hart 1961:84)

Rules supported by serious social pressure and a general demand for conformity, most notably those that forbid killing and forbid or restrict violence and destruction of property, are considered essential for an enduring society, or livingtogether in proximity. Also, sacrice or renunciation of self-interest is required by these rules essential for the maintenance of social life (Hart 1961:85); and thus conict persists between obligation established by these rules and individual interest or desire. (Hart 1961:85, 165, 167) Notably though, although rules imposing obligation are supported by great social pressure and insistent demand for conformity, obligation does not necessarily entail feelings of compulsion on the part of the agent. Obligation is established by rules supported by a high degree of social pressure and insistent demand for conformity; yet the agent obligated may not feel compelled or obliged to act in accordance with the rule in question, especially if he believes that he may avoid sanction in case he disobeys. (Hart 1961:85-86) According to the foregoing, a rule is conceived as binding, i.e. imposing obligation, primarily by reason of the level or seriousness of social pressure that lies behind the rule in question. Now, although in case of violation it most likely

will lead to hostile reaction, a rule supported by serious social pressure and an insistent demand for conformity, thus imposing obligation, does not necessarily involve physical sanction. In fact, sanction involved in such a rule may have no basis in a system of punishment; it may, rather, merely have a reference to custom, tradition, moral values, or religious conviction. Thus, instead of sanction by

physical means, a violation of a rule conceived as binding or obligatory may lead to denunciation or disapproval and inistence upon respect for the rule violated. (Hart 1961:84) Physical sanction may indeed strengthen the bindingness of a rule already enforced by sanction of immaterial means, and vice versa. If violated, a rule may inict sanctions both by material and immaterial means, as is the case of those fundamental rules or laws that forbid killing and forbid or restrict violence and destruction of property, noted prior. In the case of material sanction or threats of physical punishment, following a breach of a rule, the rule in question may be assumed to impose legal obligation as itself a legal rule; and in the case of immaterial sanction, the rule in question may be assumed to impose moral obligation as itself a moral rule. However, although in developed societies or civilized communities physical sanction is generally in the hands of ofcial authority, a material form of punishment is not exclusive to the domain of the ofcial or legal and thus not denitive of legal obligation alone. Further, moral and legal obligation are similar not only in their normative vocabulary, but also in what sense or on what grounds they are conceived as binding or obligatory.

[Moral and legal rules of obligation] are alike in that they are conceived as binding independently of the consent of the individual bound and are supported by serious social pressure for conformity; compliance with both legal and moral obligations is regarded not as a matter for praise but as a minimum contribution to social life to be taken as a matter of course. (Hart 1961:168)

Legal rules of obligation may enforce physical punishment, if breached, rather than moral rules of obligation; yet a serious social pressure for conformity and a general demand in that regard supports both moral and legal rules in terms of their (conceived) bindingness. In terms of bindingness or obligation, enforcement of material sanction seems not to sufce in distinguishing between moral and legal rules. Threats of physical sanction may sufce in determining an agent's being obliged to comply to a rule, but the agent is not thereby obligated to follow the rule in question. When an agent is said to be obliged to obey a rule, psychological factors or subjective facts, i.e. beliefs and motives, are generally assumed as premises for obedience. Thus, in the gunman situation, the victim hands over the money because he believes otherwise harm will, or is likely to, befall him. To avoid the physical sanction involved in the order of the gunman, the victim complies with the order. Obligation obtains, however, irrespective of psychological or subjective factors, or beliefs and motives. In such a case where he actually has an obligation to obey a rule or law, an agent is so obligated although he believes he may avoid what the rule or law dictates and its sanction therewith; and although he believes he is obliged to obey the rule or law, he is, again, not thereby obligated. (Hart 1961:81) The account of moral and legal obligation, given above, in terms of serious social pressure for conformity may be thought to discount a denition of law, or legal rules of obligation, in discussing simply the moral aspect of obligation. Consider Austin's distinction of positive law and positive morality, or positive legal rules and positive moral rules. Now, a law proper, or a legal rule, is, as stated prior, a command set by a political superior or a sovereign, e.g. the parliament, thus carrying legal sanctions. However, positive morality, or positive moral rules, may include either laws proper or laws improper. Positive moral rules as laws proper are imperative laws; for they may be dened as commands; yet they are not commands given by ofcial authority, or, in Austinian terms, a sovereign in the character of a political superior. Since they are not commands given by a political superior, though they are armed with certain sanctions and may thus

impose duties, positive moral rules of this kind lack legal sanction; and therefore they are not positive law. (Austin 1995:119) Positive moral rules of the second kind are laws by analogy or resemblance to laws proper, thus laws improper, established by general opinion of a class or a society of persons, e.g. the law of honour. (Austin 1995:123) A class or a society of persons that may set law of this kind cannot command a given conduct; for this class or society of persons is an indeterminate body, and as such this body cannot intimate a wish that a given conduct shall be pursued or forborne. The law set by an indeterminate body is merely an opinion or sentiment of this particular body. (Austin 1995:124) By virtue of this distinction of positive law and positive morality, Hart's account of moral and legal obligation seemingly incorporates legal rules within the category of positive morality of the second kind, namely laws as general opinion or, put otherwise, supported by serious social pressure. If so, and if justied, moral and legal obligation have striking similarities (Hart 1961:168) and may not be sharply distinguished by reference to legal sanction of ofcial authority, or physical coercion; for as stated, such coercion does not sufce in giving rise to obligation. Given their similarities in terms of social pressure for conformity, most particularly in the case of rules or laws most essential for society to endure as such, moral and legal rules of obligation may, however, be distinguished in various other ways than by reference to coercive orders. Notably though, as Hart grants, legal pressure may typically obtain in the form of physical punishment or unpleasant consequences; and moral pressure may typically consist in appeals to respect for the rule as such, or as important in itself, viz. the moral worth of action. (Hart 1961:175) Moral and legal rules of obligation may, thus, be distinguished to a certain extent, though not exhaustively, yet generally, by virtue of divergence in a form of pressure. On Hart's account, legal rules of obligation are, therefore, not wholly within the category of positive morality, in the Austinian sense, although moral and legal obligation certainly overlap to a large extent. Now, to further distinguish moral rules from legal rules of obligation, moral rules

are invariably conceived as highly important for, or essential to, the fabric of society, but importance in this sense is not essential to legal rules; and in fact, the latter may even be considered unimportant for, if not corrosive to, the fabric of society. (Hart 1961:170-171) Moral rules, considered important in themselves, cannot, as may however legal rules, be introduced or repealed by deliberate enactment, or human intervention, at a certain point in time. Surely, when laws are enacted or repealed, this enactment or repeal may cause changes in morals, tradition, or culture, but the latter may not in themselves be enacted or repealed, viz. in such a way that change takes place immediately, as however in the case of laws or legal rules. (Hart 1961:171-173) Lastly, if he did not intend to act against moral rules or could not help, with regard to certain circumstances, in causing some harm or damage, an agent may be excused from moral responsibility or excluded from moral blame; and nonetheless blaming the agent, whose action was unintentional or involuntary, would itself be considered morally reprehensible. Moral obligation or responsibility is judged or evaluated by virtue of an agent's intention and capability, with regard to circumstance. An agent is expected to do what he should as far as he he is able, with good intention if or as far as he may inuence a situation, but he is not judged or blamed by what he could not help or avoid, although, notably, exclusion from blame does not amount to justication of an act or a refrainment from acting. By contrast, within the context of legal obligation or responsibility, such weight is not assuredly given to an agent's intentions or capabilities, or lack thereof; and thus an agent is not necessarily, or even likely to be, excluded from legal punishment though he did not intend or could not avoid to act contrary to the law. (Hart 1961:173-175) Granted, a legal system may include the requirement of mens rea, whereby offenders are excused from criminal liability, or criminal liability is reduced, if they happened to be in some way, physically or mentally, unable to act in accordance with the law, or if they acted unintentionally or unknowingly, i.e. without malice or carelessness. However, legal obligation or responsibility may, in a legal system, at least in certain cases of crime or offence, not be considered with the caveat of mens rea.

The legal system may impose strict liability in which case the offender is not excused, by reference to mens rea, in the light of his mental condition or capacity. (Hart 1961:168-169, 173-175) On Hart's account, a rule is binding, or so conceived, in the sense of imposing obligation, on grounds of a serious social pressure within the context of which obtains an insistent demand to conform to the rule. However, an agent does not thereby feel obliged, pressured, or obligated to obey the rule in question, though he may certainly be expected to sense an obligation, given the demand for conformity, to act in accordance with it. Now, a serious social pressure involves material or immaterial sanction, in case the rule, established by insistent demand for conformity, is breached; yet the rule is not binding by virtue of mere sanction. An agent has an obligation to obey a rule, supported by serious social pressure, although he may not feel or be obliged to do what he in fact has an obligation to do, as dictated by the rule in question. Moral and legal rules of obligation are similar or alike in the sense that they are conceived as binding or obligationimposing by virtue of serious social pressure for conformity. On this view, a connection between law and morality may be discerned; yet no necessary connection.

III. Obligation and Natural Law

Obligation, in Hart's view, is rooted in social life or social reality. Social pressure, or a demand for conformity, lies behind moral and legal obligation; and in this regard, similarities between moral and legal rules of obligation may be determined. Moral and legal obligation thus relate to fundamental principles or basic values of society, considered necessary for society to endure as such. To the extent that a connection obtains between the moral and the legal sphere on grounds of the social order, Hart's view may be said to be that or similar to that of Thomas. For Thomas (1995) says: The end of law is the common good; and law is thus ordained or ordered to the common good. (Thomas 1920; q. 96, a. 1, a. 3)

Further, the last end of human life is bliss or happiness; and the law regards the order of the common good in consideration of universal happiness. (Thomas 1920; q. 90, a. 2, a. 3) However, bindingness, for Thomas, is not essentially explained by reference to societal ends, as manifested in the form of norms, habit, custom, or tradition. True, every law, as a rule and measure of human acts, induces man to act in accordance with societal ends and restrains man from acting in opposition to those ends, in directing human acts to the common good, i.e. universal happiness. (Thomas 1920; q. 90, a. 1) Still, the common good is not essentially what makes law binding; or law does not, in other words, impose obligation or duty by reference to the common good, in terms of human society, although the custom, as a manifestation of the common good, reinforces the binding power of the law. What makes human law binding, for Thomas, is its derivation by a rational necessity from a higher law, namely the natural or the eternal law. Thus, not only may a connection be discerned between law and morality but a necessary connection. Law is, as Thomas stresses, something pertaining to reason, and the rst rule of reason is the law of nature. Thus, in so far as it is derived from the natural law, human law may rightly be called law. If it is not derived and deects from the natural law, human law is not rightly called a law but a corruption or a perversion of law. (Thomas 1920; q. 95, a. 2) Now, to derive human law from natural law, two modes of derivation are applied: a primary derivation, as a conclusion from general principles or basic premises of the natural law; and a secondary derivation by way of determination, whereby details of a certain case are specied, e.g. a form of punishment given punishment as such by derivation from general principles. (Thomas 1920; q. 95, a. 2) Human law, on this account, may be just or unjust law, as derived from natural law and thus ordained to the common good or deected therefrom, respectively. If it diverts from natural law, human law, no longer law properly speaking, is not ordered to the common good but the particular ruler or government in question. (Thomas 1920; q. 92, a.1; q. 96, a. 4) Such law may in fact count as acts of violence rather than laws. (Thomas 1920;

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q. 96, a. 4) Tyrannical law, in particular, is not law properly or absolutely speaking but rather a perversion of law; for it is not an ordinance of reason and aims not at the common good but the good or prot for the ruler or government in question. (Thomas 1920; q. 92, a. 1) If so, laws are not binding in conscience, in for conscientiae. If human law is derived from natural or eternal law, it has the power to bind in conscience, but if human law exhibits a failure of reason in such a way that it is not ordered to the common good, it lacks this power to bind in conscience. An oppressive law, inicting hurt on its subjects, is not exemplary of just power man holds over man by derivation from the natural or eternal law, viz. from the law of the Deity. Man is bound to obey the law when it is rightly called a law, derived from natural law and thus ordained to the common good; otherwise man is not bound by man-made law but only natural or eternal law. (Thomas, q. 96, a. 4) In so far as change is conducive to the common good, law may be changed. Now, when law is changed, custom may be dissolved or abolished; yet custom manifests the common good as perceived and thus strengthens law in its bindingness. Thus, the common good has to be compensated for the dissolution of custom, following change in law. (Thomas 1920; q. 97, a. 2) Change has to be made, in other words, for the benet of the common good or betterment of society, in preservation of general custom over time through natural or eternal law. The binding power of the law (Thomas 1920; q. 97, a. 2) is diminished, in so far as custom is dissolved or abolished as a result of a change in law; and thus, to maintain or reinforce this binding force of the law, law must be changed in favour and for the sake of the common good, for citizens or the people to understand the benet of a change in law, despite the loss of custom. Also, as laws may be changed to inuence or abolish custom, custom can by repetition of action be developed; and custom may, then, accrue force of law to inuence or abolish established law. (Thomas 1920; q. 97, a. 3) As Thomas says: [C]ustom has the force of a law, abolishes law, and is the interpreter of law. (Thomas 1920; q. 97, a. 3) Here again, Thomas' account of obligation, or binding force of the law, in

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relation to custom, or what might be called social pressure or general opinion, seems similar to Hart's account of obligation, in terms of a demand for conformity experienced in social life; and to the extent that custom has a binding inuence or a force of law, these accounts of obligation are indeed similar. However, as Thomas makes plain, custom cannot by any stretch prevail over natural, eternal, or divine law; and thus the latter cannot be changed by human custom. (Thomas 1920; q. 97, a. 3) The natural law is unchangeable in its bindingness while custom reinforces human law as it has been derived from the natural law, thus binding in conscience; yet human law is changeable in its determination from natural law; and custom is changeable by means of the law. Obligation is thus essentially derived from the natural or eternal law, not human law or custom. As human law may be pernicious or unjust, custom may be found evil or immoral. If custom is found evil or immoral, a reason and justication obtain to abolish this custom by human law derived from natural law; as custom, established by repetition of action, may change or abolish the law, if pernicious or unjust. Thus, as human law is not binding in conscience, if pernicious or unjust, custom likewise does not bind in conscience, if found evil or immoral, or so we may conclude. An agent may thus not only feel unbound to obey a law or follow a custom, but he may in actuality not be bound to obey a law or follow a custom, in case this law or custom contradicts the natural law, or general moral principles beyond human morality. On Hart's account, obligation obtains by social pressure and a demand for conformity, in terms of the accepted morality or social life, irrespective of general moral principles on which social criticism is based. On these grounds, an agent might be said to feel not bound or pressured to follow a custom or the accepted morality, although this custom is generally perceived binding or duty-imposing and thus in fact binding or duty-imposing. If an agent is, on Thomas' account, unmoved by his own conscience to follow human law, or custom for that matter, he may be justied in disobeying, and strictly speaking obligated so to do, by reference to general precepts of natural law above and beyond custom or the accepted morality particular to human society.

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In case an agent is not, on Hart's account, moved by social pressure to act in accordance with the accepted morality, he is simply unaffected by a demand for conformity with regard to his own activity. Obligation is still found in social life from a general perception of the good for society, i.e. the accepted morality. In this context, Hart discusses, notably, the swindler who does not feel obliged to do what he still has an obligation to do, as seen from the perspective of social life in general. (Hart 1961:85-86) Similar logic may, however, be applied to an agent unmoved by the accepted morality on grounds of moral or religious conviction beyond the accepted morality: Although he is unmoved or unaffected by what he perceives an evil custom, this custom imposes in general an obligation through exertion of serious social pressure. As Hart grants, this account of morality is, to borrow a familiar phrase, beyond good and evil:

We have [...] intentionally taken a broader view of morality, so as to include in it all social rules and standards [...] in the actual practice of a society [...]. Some of these would survive criticism [...] others would not but might be condemned as irrational or unenlightened or even barbarous. (Hart 1961:177)

Moral criticism, based on ideals such as liberty and equality, applies principles beyond the accepted morality of society; and on these grounds social norms and custom may be found too repressive or restrictive, irrational or unenlightened, superstitious or barbarous, and so forth. (Hart 1961:178-179) According to such moral criticism, the accepted morality, on the basis of which social pressure is exerted and obligation imposed, must satisfy (1) a condition of rationality in such a way that social arrangements do not rest on beliefs that are shown to be mistaken and (2) a condition of rationality in such a way that restrictions involved in the accepted morality are such that can be extended to all, at least all those who would or could accept such restrictions. (Hart 1961:178-179) Now, Thomas' account of obligation, in the sense of bindingness in conscience, includes

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principles applied by moral criticism beyond human law or the accepted morality, assuming thus a necessary connection between law and morality. On Hart's account, a connection, or family resemblance, is established between law and morality in terms of the accepted morality of social life, within the context of which social pressure is exterted and obligation imposed, irrespective of principles and ideals that may be applied in moral or social criticism. In terms of moral and legal rules of obligation, Hart's account may satisfactorily explain obligation in so far as it is imposed by society within the context of social norms. As might, however, be maintained in view of Thomas, if human society, culture, or social life is assumed as the source of moral and legal obligation, an individual's reasons or motives for acting in accordance with the law or custom or an individual's reasons or motives for acting in opposition to the law or custom cannot be fully determined. To determine a reason or a motive for a rational being to obey or disobey the law, social pressure and a demand for conformity within the context of the accepted morality of society do not sufce. As Hart notes on his own account, an agent may not feel obliged or compelled to act in terms of accepted norms although serious social pressure is exerted and obligation thus supposedly imposed. The intention here is, indeed, to distinguish between being obligated and being obliged; and although this distinction can be made, it does not thereby explain what gives rise to obligation in the rst place, in terms of reasons and motives. Surely, as might be granted in view of Thomas, social pressure or a demand for conformity, or custom by force of law, inuences an agent to a great deal to act in accordance with the law, or in opposition to the law, for that matter; yet this inuence is reinforcement of what already gives rise to obligation, namely natural law, or conscience through which the law of nature is understood. A rational being understands that a good, namely the common good, is to be realized in following the law or the accepted morality. To give a rational being a reason or a motive to act, the law or the accepted morality has to refer to the common good. Conscience gives a reason or a motive to act; and in order to bind an agent to act, a law or a rule must bind in conscience. A law or a

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rule can only be binding in conscience in terms of general moral principles beyond human law or the accepted morality of human society. On such general principles moral and social criticism is based; for they fulll, as noted prior, conditions of rationality and generality, as opposed to the accepted morality of human society within the context of which social pressure is exerted to inuence agents to act; yet not essentially giving rise to obligation. To give rise to obligation, law and morality must refer to general moral principles by reference to which moral and legal rules are binding in conscience. Otherwise, law and morality are not fully determined in terms of the power of bindingness but merely in terms of human reality or social life in the context of which an individual is not nally bound to act, although he may certainly be inuenced or pressured to act.

Sources

Austin, John. (1995). The Province of Jurisprudence Determined. Cambridge: Cambridge University Press.

Aquinas, St. Thomas. (1920). Summa Theologica, trans. Fathers of the English Dominican Province, 2nd rev. ed. Retrieved from the web site of the Order of Preachers: URL: http://www.op.org/summa/

Hart, H.L.A. (1961). The Concept of Law. Oxford: Clarendon Press.

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