Marmor on the Duty to Obey the Law

April 16, 2013 § Leave a comment

According to Andrei Marmor, the fact that law is binding can be explained by the fact that it is a social convention. We all have a property-like right to alter our normative situation vis-à-vis others. We can also transfer this right to others, giving them authority to alter our normative situation on our behalf. We also all participate in a social convention called law. Social conventions have rules, which are binding on their participants. The conventional rules of law are not the first-order substantive legal rules. They are rather a set of second-order, or meta rules, that determine the sources of law. They determine the sources of law by transferring the authority right to public officials who are then authorized to alter the normative situations of citizens with regard to each other. This explains the duty to obey the law. In short, the conventional meta rules that are binding on all of us grant authority to certain public officials to make substantive laws for us.

There are two problems with this argument.

First, it begs the question. Marmor is supposed to explain how it is that people must obey a set of rules that they have not consented to. He explains this by using another set of rules that people have a duty to obey. He hasn’t answered the question. We still don’t know why people ever have an obligation to obey a set of rules they haven’t consented to.

Second, his theory is not positivist. Let’s assume that the meta rules really are binding. If this is the case, I cannot see any reason why there couldn’t also be binding conventional substantive legal rules. This would be a kind of old fashioned common law. Substantive normative rules that just sort of crop up as a social phenomenon without any intentional creation by a public official. (This is how people used to think of the law. Midieval times, Roman law, see Hayek). But if this is the case,  then there are laws that do not emanate from a legal source, which contradicts a central doctrine of legal positivism. Contrary to what he thinks, his theory is not a positivist theory of law.


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