Stefano Bertea (University of Leicester – School of Law) has posted Law, Shared Activities, and Obligation (Canadian Journal of Law and Jurisprudence, Vol. 27, 357-381) ON SSRN. Here is the abstract:
In this paper, I first introduce the conception of law as a shared activity and reconstruct it as a general account of the law and its normativity. Then I will turn specifically to the conception’s account of legal obligation, which is rendered by giving it two fundamental senses: a full-blooded sense and a perspectival one. In this context, I will be arguing that the account of legal obligation in a full-blooded sense offered by the champions of the conception of law as shared activity is at once too limiting and partial. For, on the one hand, it can only explain legal obligation in relation to those who are already committed to the legal enterprise—so, we are left to wonder why everyone else should also have an obligation to comply with the law. On the other hand we are not presented with a compelling case for the argument that the obligations the law is recognized to give rise to are non-moral obligations grounded in social facts (or that they are distinctively legal obligations), even though it is precisely this sort of argument that legal positivism needs to make. Finally, I turn to the perspectival sense of legal obligation, arguing that this rendering of obligation overlooks the practical import the legal enterprise is widely acknowledged to have, thus failing to explain the ability of legal institutions to play their typical guidance function through the obligations they set forth.