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On the Nature of Political Obligation*

Published online by Cambridge University Press:  25 February 2009

A. P. D'Entrèves
Affiliation:
University of Turin

Extract

The phrase, ‘political obligation’, is far more popular in English than in other European languages. Whether this may be due to historical circumstances, or to a peculiar bent of the English mind, is a fascinating question; but it is not the one which I propose to discuss here today. I am mentioning it only to explain the choice of my subject, a subject which would probably sound rather uncommon to an Italian audience, but which, I am sure, has a familiar ring to English ears. My subject, I would like to emphasise, is the nature of political obligation; my approach will be analytical rather than historical; and indeed, let me say at once that this lecture is a kind of examen de conscience in which I am myself involved, since I feel personally responsible for having introduced the phrase into my own native language, and for having used it during a life-time as if its meaning were self-evident, without ever raising the questions which I want to raise today.

Type
Articles
Copyright
Copyright © The Royal Institute of Philosophy 1968

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References

1 In fact, one of my first published papers bears the title, Il problema dell'obbligazione politica nel pensiero inglese contemporaneo (‘Rivista Internazionale di Filosofia del Diritto’, VIII, 1, 1928)Google Scholar; and in my first English book, The Medieval Contribution to Political Thought (Oxford, 1939)Google Scholar, I set out from the contention that ‘the history of political theory is… first and foremost the history of the attempts to solve the problem of political obligation’.

2 I am quoting from the English (original) version of ProfHart, H. L. A.'s paper, The Concept of ObligationGoogle Scholar, which provided the basis for discussion in the Colloquium on ‘Obligation’ held at Bellagio, under the auspices of the Rockefeller Foundation, on 12th–19th 09, 1965Google Scholar. The paper was published (in Italian) in the ‘Rivista di Filosofia’, LVII, 2, 1966.Google Scholar

3 The two most notorious examples are that of Austin, John (Lectures on Jurisprudence, London, 1885, Vol. I, lect. i and xxiiGoogle Scholar; The Province of Jurisprudence Determined, London, 1954, lect. i)Google Scholar and that of Holmes, O. W. (The Path of the Law, in The Mind and Faith of Justice Homes, New York, 1943, p. 72)Google Scholar. Albeit in a different context, the notion of sanction plays a capital role also in the ‘Pure Theory of Law’, cp. Kelsen, H., General Theory of Law and State, Cambridge, Mass., 1949Google Scholar: ‘The usual assumption according to which a certain kind of human behaviour entails a legal sanction because it is a delict is not correct. It is a delict because it entails a sanction’ (p. 51). ‘The existence of a legal duty is nothing but the validity of a legal norm which makes a sanction dependent upon the opposite of the behaviour forming the legal duty’ (p. 59).

4 I am thinking here especially of ProfessorHart, 's theory in The Concept of Law (Oxford, 1961)Google Scholar, where Austin's ‘model’ is fully criticised and Kelsen's position practically reversed (‘the violation of a rule is not merely a basis for the prediction that a hostile reaction will follow, but a reason for hostility’, p. 88).

5 Bentham, , A Fragment on Government, etc., Oxford, 1948, p. 107, note.Google Scholar

6 Rousseau, , The Social Contract, transl, by Cole, G. D. H., Everyman's Library, book I, ch. iii.Google Scholar

7 On the notion of legitimacy and its function in political theory I have returned many times in several writings: cp. among others my essay, Legality and Legitimacy, in ‘The Review of Metaphysics’, XVI, 4, 1963Google Scholar. The question is discussed at length in my book, The Notion of the State, Oxford, 1967.Google Scholar

8 Green, T. H., Lectures on the Principles of Political Obligation, London, 1917, pp. 291–31.Google Scholar

9 Kant, , The Metaphysical Elements of Justice, transl, by Ladd, J., Library of Liberal Arts, 1965, pp. 1921, 45.Google Scholar

10 Oakeshott, M., Introduction to Hobbes, Leviathan, Oxford, 1946, p. lixlxi.Google Scholar

11 The distinction is inspired by, though not identical to, the one which A. E. Taylor made in his celebrated essay, The Ethical Doctrine of Hobbes, which can now be read in the volume Hobbes Studies, ed. by Brown, K. C., Oxford, 1965Google Scholar. This volume is an invaluable guide in the heated debate which has recently taken place on Hobbes's theory of obligation.

12 I am referring to the well-known ‘Flag Cases’ (Minersville School District v. Gobitis, 310 U.S. 586 (1940)Google Scholar and W. Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943))Google Scholar, where, in the short span of three years, the Supreme Court of the United States reversed its former decision that refusal to salute the flag be regarded as an act of insubordination. The opinions of the judges, among whom were Justice Frankfurter, Justice Stone and Justice Jackson, amount to one of the most penetrating and significant discussions on ‘political obligation’ which has taken place in our time.

13 Obeying Whom was the subject of the Philip Maurice Deneke Lecture which I gave in Oxford in March, 1964. The lecture was subsequently published in ‘Political Studies’, XIII, 1, 1965Google Scholar, and I refer to it for a further treatment of the question.

14 Hart, , The Concept of Law, pp. 86, 134 and 196.Google Scholar

15 In the lecture, Obeying Whom, just referred to, and in a further article, Intorno all' obbligo politico, in ‘Rivista di Filosofia’, LVII, 2, 1966.Google Scholar

16 Ross, A., On Law and Justice, Berkeley and Los Angeles, 1959, pp. 5355.Google Scholar

17 Hart, , The Concept of Law, p. 198.Google Scholar

18 as suggested in my article, Intorno all' obbligo politico, and in the recent book of Scarpelli, U., Cos'è il positivismo giuridico, Milano, 1966, pp. 132133 and 146.Google Scholar

19 I have dealt at some length with the matter in my book, The Medieval Contribution to Political Thought, pp. 108110 and 124125.Google Scholar

20 Goodhart, A. L., English Law and the Moral Law, London, 1953Google Scholar. The view that the obligatoriness of law is closely connected with morality seems to be deeply ingrained in the English-speaking world. One quotation from a recent writer should suffice to prove the point: ‘It must … be made clear that when I talk about the obligation to obey the law or the possibility of actions which are both illegal and justified, I am concerned solely with moral obligations and morally justified actions … I am not at all concerned with the question of why, in fact, so many people do obey the law’ (Wasserstrom, R. A., The Obligation to Obey the Law, in U.C.L.A. Law Review, X, 4, 1963, p. 785).Google Scholar

21 ProfessorGoodhart, 's letter, dated 14th 11, 1956Google Scholar. The letter refers to the lectures I delivered at Notre Dame Law School in October 1954, subsequently published in ‘Natural Law Forum’, I, i, 1956Google Scholar, with the title, The Case for Natural Law Re-examined.

22 Suarez, F., De Legibus ac Legislatore Deo, book I, ch. xivGoogle Scholar; book V, ch. iv and xiii; cp. also Dictionnaire de Théologie Catholique, art. ‘Loi’.

23 A point which I have tried to stress in my book, Natural Law, London, 1951, ch. v.Google Scholar

24 Hume, , ‘Of the First Principles of Government’, Political Essays, iii.Google Scholar

25 Machiavelli, , Discorsi, I, xxviGoogle Scholar; cp. also book II, Introduction.