Frederick Schauer (University of Virginia School of Law) has posted When and How (If at All) Does Law Constrain Official Action? (The Sibley Lecture) (Georgia Law Review, Vol. 45, No. 1, 2010) on SSRN. Here is the abstract:
-
Debates about the obligation to obey the law have been around for literally thousands of years, but the empirical side has received much less attention. Moreover, most of the existing empirical work has focused on citizens and not officials, and consequently we know little about the extent to which law qua law motivates official action. This paper, presented as the John A. Sibley Lecture at the University of Georgia School of Law, draws on the jurisprudential and philosophical literature to frame the question of obedience to law, and then seeks to encourage empirical inquiry into the particular question of whether officials obey the law as law, independent of the content of the law and independent of the possibility of sanctions for non-compliance. It offers the hypothesis that although there is much talk about official obligation to the law, in fact officials rarely obey the law just because it is the law, and are rarely politically punished for engaging in sanction-free illegal actions when their constituents approve their first-order substantive decisions. For official behavior, therefore, there may be considerably less internalization of law than is commonly supposed. And if this hypothesis turns out to be true, the implications for public law may be considerable. Moreover, if sanction-free internalization of law is less common than many commentators believe, it would be appropriate to give renewed attention to the role of sanctions and coercion not only in securing compliance with law, but also in understanding the nature of law itself.
And from the paper:
-
There is a . . . tradition [that] denies that there is an obligation, even prima facie, to obey the law. Numerous scholars, including Heidi Hurd,42 M.B.E. Smith,43 Robert Paul Wolff,44 John Simmons,45 Joseph Raz,46 Leslie Green,47 and Matthew Kramer,48 have argued that the fact of a norm or a directive being a legal one (or the fact of an alleged duty being a political one) provides no reason at all, not even prima facie, for following it. If the content of the norm justifies compliance, they maintain, then compliance is morally dictated, but the compliance is dictated by the moral content of what the norm demands. But when the content of the norm does not provide any reason for obeying it, then, so the argument goes, it is simply irrational law worship, authority worship, or rule worship to take the norm’s legal status as supplying a reason for compliance not provided by the content of the norm itself.49 And that is why many of the arguments in the philosophical literature feature examples in which the content of the norm, whether generally or as applied on a particular occasion, does not itself, the law aside, provide any reason for compliance. Were we to encounter a “Stop” sign in the middle of the desert, such that we could see clearly that no other vehicle was approaching (and could see equally clearly that there was no possibility of apprehension),50 there would be no reason to stop just because the sign said so. Examples like these, it is argued, isolate the question of obedience to a legal norm solely because of the norm’s attribute of being a legal norm. And for the theorists just named, such examples illustrate that following the law for no other reason than that it is the law appears to be quite irrational.
Highly recommended. Download it while its hot!