This is not to say that one obeys only in treating the authority's say-so as an indefeasible reason for action; but one must treat as a binding content-independent reason. The question whether there is an obligation of obedience to law is a matter of whether we should act from the legal point of view and obey the law as it claims to be obeyed Raz , — It is an interesting feature of this account that it supposes that one can tell what the authority requires independent of whether the requirement is justified on its merits. See the entry on legal positivism. If law aims to settle disputes about moral issues, then law must be identifiable without resolving these same disputes.
The law is therefore exhausted by its sources such as legislative enactments, judicial decisions, and customs, together with local conventions of interpretation. This kind of argument has been generalized see Shapiro , but also subjected to criticism. And while law does indeed serve as a scheme for guiding and appraising behaviour, it may also have other functions, such as educating its subjects about right and wrong, and this may be ill-served the attitude that the rules are to be obeyed in part because they are the rules Waluchow The obligation-correlative view of authority is not universally accepted.
Some argue that legal authority involves no claim right, but only a set of liberties: to decide certain questions for a society and to enforce their decisions. Soper , 85 ff; cf. Ladenson ; Greenawalt ; 47—61; and Edmundson , 7— The liberty conception must answer two questions. First, is it not a feature of a right to decide that it requires subjects to refrain from acting on competing decisions? If the law says that abortion is permissible and the Church says that it is not, what does the denial of the Church's right to decide amount to if not that public policy should be structured by the former decision and not the latter, even if the latter is correct?
Second, does the right to enforce include a duty of subjects to pay the penalty when required?
Morality of Abortion Essay
If it does, then this is only a truncated version of the obligation-correlative theory—one that holds that punitive and remedial obligations, but not primary obligations, are binding. If not, it is starkly at variance with the actual views of legal officials, who do not think that subjects are at liberty to evade penalties if they can. This reaches a methodological issue in the philosophy of law. Some consider that the character of law's authority is a matter for descriptive analysis fixed by semantic and logical constraints of official language and traditions of argument.
Others maintain that such analysis is impossible or indeterminate, and that we are therefore driven to normative arguments about what legal authority should be see Soper ; Finnis , 12— Crudely put, they think that we should understand law to claim only the sort of authority it would be justifiable for law to have. Hayek favours the free market, and concludes that the nature of legal authority should be understood analogically. The most radical position of this sort is Ronald Dworkin's. Others have argued that the pre-emptive notion of authority is unsatisfactory because it is too rigid e.
Dworkin's objection runs much deeper. His position is not that law communicates only a weaker form of guidance; it is that law is not to be understood as trying to communicate anything at all. On this view there is no fact of the matter about what law claims that is independent of what each does well to regard it as claiming. What is the relationship between these? A state may have good grounds in some special circumstances for coercing those who have no duty to obey.
The idea is that merely having justice on one's side is an inadequate ground for coercing others; one also needs a special title flowing from the moral status of the law. Others contend that this gets the relationship backwards. First, it is doubtful whether one could have an obligation to obey an illegitimate regime. Simmons , 78— If so, at least some conditions of legitimacy precede an obligation of obedience.
Without being able to solve this assurance problem it would be unjust to impose obligations on them, and unjust to demand their obedience. Underlying this suggestion is that idea that familiar idea that effectiveness is a necessary—but certainly not sufficient—condition for justified authority. See Kelsen , 46—50; cf.
Finnis , It may affirm our confidence in the obligation-correlative view to know that from earliest times philosophical reflection on political authority has focussed on the obligation to obey. The passive obligation of obedience is certainly not all we owe the law Parekh , ; Green , —47 but many have taken it to be law's minimum demand.
Philosophers On the Ethics and Politics of Abortion - Daily Nous
This gives rise to a puzzle. Wolff resolves the dilemma in favour of autonomy, and on that basis defends anarchism. Others flow from the fact that it is a surrender to the law. On the first point, it is relevant to notice that promises and contracts also involve surrender of judgement and a kind of deference to others see Soper , —39 , yet a rational anarchist needs such voluntary commitments to substitute for authoritative ordering.
A principled objection to every surrender of judgment is thus self-defeating. Moreover, there seem to be cases in which by surrendering judgement on some matters one can secure more time and resources for reflection and decision on things that are more important, or with respect to which one has greater capacity for self-direction. A partial surrender of judgment may therefore enhance the agent's autonomy overall.
This suggests that Wolff's concern is better understood as scepticism about whether it is justifiable to surrender one's judgment wholesale to the law. Some philosophers have queried the intelligibility of this doubt; they say that it is of the nature of law that there is an obligation to obey it, at least in its central case Fuller , ; Finnis , 14— Some go so far as to conclude that it is therefore absurd to ask for any ground of the duty to obey the law: law is that which is to be obeyed McPherson , We need a way into this circle, and the best entrance is in specifying the nature of law in a way compatible with various theories of its nature.
Three features are especially important drawing on Hart , —; Raz , —54; and Lyons , 66— First, law is institutionalized : nothing is law that is not connected with the activities of institutions such as legislatures, courts, administrators, police, etc. Second, legal systems have a wide scope. Law not limited to the affairs of small face-to-face groups such as families or clans, nor does it only attend to a restricted domain of life such as baseball. Law governs open-ended domains of large, loosely structured groups of strangers and it regulates their most urgent interests: life, liberty, property, kinship, etc.
But although law necessarily deals with moral matters, it does not necessarily do so well, and this is its third central feature: law is morally fallible. The question of political obligation, then, turns on whether there is are moral reasons to obey the mandatory requirements of a wide-ranging, morally fallible, institutionalized authority. This obligation purports to be comprehensive in that it covers all legal obligations and everyone whose compliance the law requires. It is not assumed to bind come what may, though it is to be one genuine obligation among others.
Some philosophers also consider that it should bind people particularly to their own states, i. Finally, it is common ground the obligation exists only when a threshold condition of justice is met.
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A theory of political obligation is non-voluntarist if its principles justifying legal authority do not invoke the choice or will of the subjects among its reasons for thinking they are bound to obey. Three such arguments have some currency. It is hard to find philosophers who still think that normative questions can be resolved by linguistic considerations, but there are, surprisingly, some who do think that this argument strategy is essentially correct.
His obstetrical theory is parthenogenetic: politics is a form of association that in itself bears obligations. Having a virgin birth, obligation has no father among familiar moral principles such as consent, utility, fairness, and so on. People in organic associations do often feel obligations to other members, but we normally seek an independent ground to justify them see Simmons ; Wellman One version focuses on the value of obligations attached to social roles. It is important to see that there is not one problem here, but two. There is a matter of content : what does the political role actually require?
And there is the matter of validity : what makes these requirements binding on its occupants? See Hardimon But these are intimately linked: one cannot solve the second independently of the first. There is no general answer to the question why role duties bind—it depends on the roles and the duties.
Even so, why do they ground a duty of obedience as opposed to a duty of respectful attention, or a duty to apologize for cases of non-compliance? Indeed, the classical associative model for political authority was not fraternity, but paternity , against which Locke argued so decisively. This is not to deny that we owe something to those decent associations of which we find ourselves non-voluntary members—but we do need some further argument to determine exactly what this amounts to.
A more typical non-voluntarist theory says authority may be instrumentally justified as a way to help its subjects do what they ought. Three points need emphasis. First, a normal justification is not a unique justification, but one typical to a variety of practical and theoretical authorities. At its core idea is that justified authorities help their subjects do what they already have good reason to do; it does not apply when it is more important for the subjects to decide for themselves than to decide correctly.
Second, although NJT has similarities to rule-utilitarianism, it is not a utilitarian theory: that requires further commitments about what sort of reasons are relevant and how about indirect policies may be pursued. Third, NJT does not require valid authority to promote the subject's self-interest.
For example, if there are investments it is immoral to make e. NJT is governed by whatever reasons correctly apply to the case, not reasons of which the agent is aware, or which serve his self-interest narrowly understood. Something like this does capture the way we justify deferring to expert opinions of scientists or to the advice of doctors who know better than we do. Were we to try to second-guess them we could not profit from their expertise. To accept them as authoritative therefore requires deferring to their judgement, and allowing that to displace our own assessment of what is to be done.
This is not blind deference: the subject remains attentive to higher-order considerations that determine whether the authority is trustworthy, acting in good faith, and so on. And the deference may be limited in scope and subject to checks of its effectiveness over time. How far do such considerations apply to political authority?
They do to some extent.
A legislator or administrator may know better than most what is to be done to preserve the salmon fisheries or to slow global warming. But some scientists may know as well, or better, and in some areas there are be no criteria of relevant expertise at all. The only prospect of broadening NJT's reach therefore rests on its application to integrate the activity of many people who must cooperate but who disagree on these matters and more.
If authority is able to create or support valuable schemes of social cooperation, subjects may be justified in obeying even though that is not the scheme they would themselves have chosen. It is uncertain how far deference to authority is really needed here. The extent to which people need authoritative guidance to secure cooperation varies with context.
And law can solve some problems of cooperation simply providing information or by restructuring incentives see Green , 89— That suggests that NJT covers only a narrow range of legitimate state activity. But in another way it seems too broad. We do not think that political authority should be acknowledged whenever the rulers can better ensure conformity to right reason. There are matters that are too trivial or otherwise inappropriate for political regulation. Perhaps some sort of threshold condition must first be met, and NJT should be confined to issues of general social importance.
Arguments based on necessity may be motivated by just that worry. On this account, it is not enough that someone be able to help others track right reason, he must be able to do so within a certain domain. Some contemporary writers take a related view. Elizabeth Anscombe argues that the domain of authority is the domain of necessary social functions. There are, then, two questions: What tasks are necessary? What rights are needed to perform them?
Answers to the first question range widely. Others are more extravagant. Finnis thinks law must provide a comprehensive framework for realizing a list of supposedly self-evident values including life, knowledge, play and religion Finnis , 81—97, — It also constrains us to further just arrangements not yet established, at least when this can be done without too much cost to ourselves. Simmons persuasively argues that an Institute for the Advancement of Philosophers cannot benefit us, however justly, and then demand that we pay its dues Simmons , He proposes therefore that a normatively relevant sense of application requires that one accept the benefits—but that is to transform a natural duty account into a weakly voluntarist one like fairness.
Jeremy Waldron diagnoses the force of such counterexamples as deriving from the fact that, although operating justly , the Institute is not something whose activities are required by justice : they are optional, not necessary Waldron This seems correct; but if we then restrict the domain of authority to necessity we will again leave many legal obligations behind. Many of the activities of a legitimate government are optional. It must save us from the state of nature, but law's ambitions are more expansive than that.
Abortion, The, And Abortion Essay
It also does things that are permissible but not necessary: enacts residential zoning, declares official languages, establishes national holidays, supports education and the arts, and creates honors. The content of all this valuable and permissible state action is underdetermined by the theory of legitimacy and is grounded in considerations other than necessity. So necessitarian arguments leave unsupported some—possibly a lot—of valuable state action.
Moreover, it is unclear what is necessary for law to fulfil its socially necessary functions. Anscombe refers to the right to have what is necessary for the role, but what is that? Everyone knows that a legal system can, and does, tolerate a certain amount of harmless disobedience and that this in no way hampers its capacity to function. But whose consent, and to what? A voluntarist theory requires the actual consent of each subject. But this cannot mean consent to every law or application thereof. Consent is more commonly proposed as a part of the constitution rule that sets up the political community in the first place.
For consent theorists, an A-B interaction does not become a candidate for authoritative regulation until A and B agree to unite under one jurisdiction.
The Definition of Morality
We cannot ask which or what sort of authority is justified over both the Kurds and the Shiites in Iraq until we answer why there should be one at all. Beyond this foundational role, however, consent theorists take different views of whether it has any further significance in policy. Locke thinks it is then displaced by majority rule by delegates as the natural procedure for most decisions; for Rousseau, this is but another form of slavery.
Even in its confined role, however, consent has attracted powerful criticism. For a good survey see Simmons , 57—; for a qualified defence see Beran These focus on the questions of whether it is in fact given and, if given, whether it would bind. Consent is not mere consensus or approval; it is a performative commitment that undertakes an obligation through the very act of consenting. Kamm begins by examining the Supreme Court's Roe v.
Wade decision, and considers whether the potential to become a person should protect the fetus from abortion. After presenting the case for killing persons in non-abortion contexts, she goes on to apply this argument to the case of abortion, and offers a detailed consideration of the differences between the two cases, focusing in particular on the significance of pregnancy as a natural phenomenon that occurs to only one of the two sexes.
Kamm develops here own argument defending the morality of abortion, which emerges as part of a broader theory of creating new people responsibly. Alexander A. Guerrero - - Philosophical Studies 1 Matthew Liao - - Philosophy Compass 3 5 Giubilini - - Journal of Medicine and Philosophy 37 1 Abortion: From Ethics to Politics. Christian Munthe - manuscript. Abortion, Sin, and the State in Thailand. Andrea Whittaker - - Routledgecurzon.
Abortion, Killing, and Maternal Moral Authority. Soran Reader - - Hypatia 23 1 The Complex Problem of Abortion. Peter Millican - unknown. Robert M. Rosenbaum eds. Abortion, Society, and the Law.