Dale Smith (University of Melbourne – Law School) has posted Unstated Legal Obligations (in Stefano Bertea (ed), Contemporary Perspectives on Legal Obligation (Routledge, 2021)) on SSRN. Here is the abstract:
In this chapter, I argue that, at least on occasion, legal obligations are unstated – that is, the content of the obligation generated by an act of deliberate law-making may not be stated (expressly or implicitly) by the law-maker. I then go on to (i) propose an account—the maximising approach—explaining how the content of the unstated legal obligation is generated and (ii) generalise my argument by flagging the possibility that the content of every legal obligation generated by an act of deliberate law-making is fixed in accordance to the mechanism described by the maximising approach. In this way, I offer the preliminaries of a unified theory of legal obligation that does not require us to distinguish between two types of legal obligation generated by acts of deliberate law-making: obligations whose content is constituted by what the law-maker stated and obligations whose content is unstated (and is instead constituted in the way described by the maximising approach).
Highly recommended.