Leslie Green

The question 'Why should I obey the law?' introduces a contemporary puzzle that is as old as philosophy itself. The puzzle is especially troublesome if we think of cases in which breaking the law is not otherwise wrongful, and in which the chances of getting caught are negligible. Philosophers from Socrates to H.L.A. Hart have struggled to give reasoned support to the idea that we do have a general moral duty to obey the law but, more recently, the greater number of learned voices has expressed doubt that there is any such duty, at least as traditionally conceived

Social groups claim authority to impose restrictions on their members that the state cannot. Churches, ethnic groups, minority nations, universities, social clubs, and families all regulate belief and behavior in ways that would be obviously unjust in the context of a state and its citizens. All religions impose doctrinal requirements; many also enforce sexist practices and customs. Some universities impose stringent speech and conduct codes on their students and faculty. Parochial schools discriminate in their hiring practices. Those who complain about such internal restrictions on the liberties of members might well be told to “love it or leave it.”

The modern state claims supreme authority over the lives of all its citizens. Drawing together political philosophy, jurisprudence, and public choice theory, this book forces the reader to reconsider some basic assumptions about the authority of the state. Various popular and influential theories - conventionalism, contractarianism, and communitarianism - are assessed by the author and found to fail. Leslie Green argues that only the consent of the governed can justify the state's claims to authority. While he denies that there is a general obligation to obey the law, he nonetheless rejects philosophical anarchism and defends civility - the willingness to tolerate some imperfection in institutions - as a political virtue.

In his thoughtful paper, “The Liberal Tradition, Kant, and the Pox”, Rolf George joins the venerable argument about whether Kant should be accounted friend or foe of liberals. But this is not just a rehearsal of the debate over the compatibility of the Old Jacobin's defense of civil liberties and government by consent with his notoriously unpleasant doctrines of the absolute duty to obey the law or his ruthlessly retributive view of punishment. George advances the debate by suggesting that elements of Kant's moral theory are deeply incompatible with liberalism. And this is particularly striking when liberals like John Rawls, Ronald Dworkin and Robert Nozick are quick to invoke Kant's name in defense of their own views. The attraction of Kant for these modern liberals is clear, for they hold individualistic moral theories and they reject utilitarianism. But, if George is right, there are aspects of Kant's thought which make him an unsuitable mascot.

This article defends legal instrumentalism, i.e. the thesis that law is distinguished among social institutions more by the means by which it serves its ends, than by the ends it serves. In Kelsen's terms, '[L]aw is a means, a specific social means, not an end.' The defence is indirect. First, it is argued that the instrumentalist thesis is an interpretation of a broader view about law that is common ground among theorists as different as Aquinas and Bentham. Second, the following familiar fallacies that seem to stand in the way of accepting the thesis are refuted: (1) If law is an instrument, then law can have no non-instrumental value. (2) If law is an instrument, then law always has instrumental value. (3) For law to be an instrument, there must be generic end that law serves. (4) If law is an instrument, law must be a neutral instrument. These claims are all wrong. In passing, the instrumentalist thesis is distinguished from other, unrelated, views sometimes associated with instrumentalism, including Brian Tamanaha's diagnosis of the vices of American law, and the views of those who think that jurisprudence is an instrument in the service of social ends.

This is the penultimate draft of a paper originally presented at the Hart-Fuller at 50 conference, held at the NYU Law School in February 2008. A revised version will appear in the NYU Law Review. The paper seeks to clarify and assess HLA Hart's famous claim that legal positivism somehow involves a 'separation of law and morals.' The paper contends that Hart's 'separability thesis should not be confused with the 'social thesis,' with the 'sources thesis,' or with a methodological thesis about jurisprudence. Hart's thesis denies the existence of necessary (conceptual) connections between law and morality. But that thesis is false: there are many necessary connections between law and morality, some of them conceptually significant. Among these is an important negative connection: law is of its nature morally fallible and morally risky. Lon Fuller emphasised the 'internal morality of law,' the 'morality that makes law possible'. Hart stressed that there is also an immorality that law makes possible. Law's nature is seen not only in its internal virtues, in legality, but also in its internal vices, in legalism.

Why is it that toleration can be uncomfortable for the tolerated? And how should tolerators respond to that discomfort? This paper argues that properly directed toleration can be deficient in its scope, grounds or spirit. That explains some of the discomfort in being tolerated. Beyond this, the occasions for toleration - the existence of a power to prevent and of an adverse judgment - can also make toleration sting. The paper then explores and rejects two familiar suggestions about how one should respond to this discomfort: with acceptance or recognition of the tolerated. It is proposed instead that toleration should be supplemented by understanding. The nature and importance of this attitude are assessed.