My starting point is the assumption that there is no general obligation to obey the law, not even a prima facie obligation and not even in a just society. This assumption is perhaps becoming more popular. In recent years it has been defended by several writers. There is more that needs to be said in its support, but I will not attempt to do so here. Instead, I will reflect on a problem posed by accepting it, a problem concerning the relations between an individual citizen and the state. It is common to think that the state has authority over its citizens and that they owe it allegiance. If there is no general obligation to obey the law, does it not follow that the state has no authority over its citizens and that they do not owe it allegiance?
After first explaining briefly the assumption and the problem it creates, I shall consider different attempts at solving it which try to show that recognition of an authority does not entail belief in an obligation to obey that authority. These attempts at solving the problem fail. I shall then turn to one traditional argument concerning the foundations of the state's authority: the argument that political authority rests on consent.
Criminal Law | Law | Law and Philosophy
Authority and Consent,
Va. L. Rev.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/760
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