Attempts to ground legal obligation
1
with the principle of fairness all face a similar
diculty. e principle of fairness requires that individuals do their fair share in any
cooperative scheme that benets them, and many have tried to show that a system of law is one
such benecial cooperative scheme to which we thereby owe our support.
2
e primary
problem with this approach is that it is unclear whether the principle of fairness (a) only binds
an individual to do their fair share when they have chosen to participate in a cooperative
scheme or (b) can bind an individual regardless of whether they have such a choice. In either
case, the results seem troubling. If the choice to participate is necessary for obligation, then the
principle of fairness cannot explain our obligations to follow law because we have never made a
meaningful choice about whether to participate in a system of law.
3
If the choice to participate
is not necessary for obligation, then the principle has the potential to obligate individuals to
many practices that they ought not be obligated to. It might be to my advantage that the
Mountain Club works to improve the nearby trails that I hike, but I do not seem obligated to
aid them unless I choose to join the Mountain Club. However, if the principle of fairness did
not require choice to create an obligation, then it would require me to help. In this way, the
principle of fairness faces a dilemma, either the choice to participate in a practice is a necessary
e Principle of Fairness, Legal Obligation and the Value of Choice
c. melenovsky (3/2012)
1
I use the term “Legal Obligation” to speak specically of the moral obligation to act in accordance with the law.
In using this term, I mean to dierentiate my focus from that of “political obligation” which might refer to a
broader set of duties than merely obeying the law. Political obligations can we understood as whatever obligations
we have as members of political structure, whereas legal obligation is the specic obligation to act in accordance
with the law. I also use the term to refer to the general obligation to act in accordance with the law, and not to any
particular obligation that we have because it is specied by a law.
2
Examples of this approach are found in H.L.A Hart, “Are ere any Natural Rights” e Philosophical Review Vol.
64, No. 2 (1955); 185; John Rawls, “Legal Obligation and the Duty of Fair Play” Collected Papers, ed. Samuel
Freeman (Cambridge, MA; Harvard University Press, 1999), 117-129; Arneson, Richard, e Principle of Fairness
and Free-Rider Problems” Ethics Vol. 92 No. 4 (1982); 616-633.; George Klosko, e Principle of Fairness and
Political Obligation (Oxford, UK; Rowman and Littleeld, 1992).
3
One might here appeal to a notion of tacit consent, as Locke does, but then they would be saddled with defended
an adequate account of tacit consent.
condition for obligation and the principle cannot explain legal obligation or choice is not a
necessary condition for obligation and the principle leads to unintuitive results.
In this paper, I argue for a revised version of the principle of fairness that grounds legal
obligation but does not lead to the typical unintuitive results. I argue that the choice to
participate in a cooperative scheme is not a necessary condition for being obligated by the
principle of fairness, but the condition that the scheme be sucient just is necessary. To see why
these two conditions might be related, we can make a basic distinction between those schemes
that are “open to choice” and those that are “closed to choice”. A scheme is open to choice when
a person is only bound by the rules of a scheme when they have chosen to participate in tat
scheme. Alternatively, a scheme is closed to choice when a person is bound by the rules of a
scheme regardless of whether they had a choice to participate. I argue that the vast majority of
schemes that are closed to choice will not be suciently just, and so they will not satisfy the
necessary condition for the principle of fairness to apply. us, the rules of cooperative
schemes that are closed to choice will not typically be obligatory by my revised principle of
fairness. For instance, if the rules of the Mountain Club were such that I was bound to help
them regardless of whether I choose to join the club, then the club would be unjust and I would
not be obligated to the scheme. However, there will be some schemes that can be suciently
just without being open to choice. One such example is a system of law, and one essential rule
for any system is law is that citizens act in accordance with the law. us, much of my task will
be to show how it is possible for a system of law to be both closed to choice and suciently just.
If this is possible, then the principle of fairness can obligate us to follow the law regardless of
whether we have chosen to participate in such a system.
My argument proceeds in four parts. In §1, I give some background on recent attempts
to use the principle of fairness to ground legal obligation, which will better situate the dilemma
that this essay seeks to address. In §2, I give my core argument for why some schemes can be
e Principle of Fairness, Legal Obligation and the Value of Choice
- 2 -
just without being open to choice. ere I will follow the work of T.M. Scanlon on the “Value of
Choice,” and argue that the reasons why most schemes ought be open to choice are also
sucient reason for some schemes to be closed to choice. In §3, I lay out a revised version of
the principle of fairness that is suciently general across practices that are and are not open to
choice. Finally, in §4, I apply this revised principle to show how it can ground our obligation to
obey the law. While there will be many nuances to this view that still need to be laid out, the
basic account should be clear by that stage. All in all, I aim to better explain why our obligation
to obey the law is grounded in the (properly conceived of) principle of fairness.
§1. A Brief History of the Principle
While there are surely versions of the principle of fairness that predate 1955, most of the
contemporary literature identies it’s initial formulation in H.L.A. Hart’s article, “Are ere any
Natural Rights?” In articulating the dierent types of rights that people generally make reference
to, Hart emphasizing a “mutuality of restriction” in which people limit their conduct according to
rules on the condition that others do so as well. He writes,
when a number of persons conduct any joint enterprise according to rules and
thus restrict their liberty, those who have submitted to these restrictions have a
right to a similar submission from those who have beneted from their
submission.
4
By this principle, each person who follows the rules of a scheme of cooperation has a right to the
conformity of others who benet from that person’s action . Hart specically uses legal obligation
as an instance of this right and thus recognizes the system of laws as a scheme of cooperation to
which individuals have the right to other’s conformity.
5
While Hart does not there develop a full
e Principle of Fairness, Legal Obligation and the Value of Choice
- 3 -
4
Hart (1955); 185.
5
A view that is thoroughly expanded in Hart’s 1962 work, e Concept of Law, (Oxford, UK; e Clarendon Press).
account of how such schemes create rights and obligations, this is the beginning of the idea that
has been adapted by many.
John Rawls credits Hart for the original formulation of the duty of fairness, but he adapts
and revises the principle over the years in which he uses it. In his article, “Justice as Fairness”
Rawls adds two necessary conditions for anyone to be bound by the principle; that (a) each
person must have willingly accepted the benets of the scheme and (b) the scheme must be
recognized as fair for any individual to be been bound to it.
6
In this way, Rawls explicitly includes
the requirement that there be a voluntary act of “accepting benets” for an individual to be
bound. is general analysis of the principle is used in a self-standing argument for legal
obligation in Rawls’s 1964 article “Legal Obligation and the Duty of Fair Play.” Here, Rawls is
centrally concerned with how the duty of fairness
7
can solve two apparent paradoxes of legal
obligation; rst, that we can be obligated to follow a law that we think to be unjust and, second,
that we can be obligated to take an action even when it produces less good.
8
He addresses these
problems by explaining the way in which the constitution of a society serves as a cooperative
scheme. So long as we recognize the constitution as just and the accept the benets of such a
constitution, we are obligated to follow the laws that emerge from valid constitutional procedures.
Overall, Rawls second use of the principle is the same as in “Justice as Fairness” with the notable
exception that the standard for assessing cooperative schemes is now their “justice” rather than
their “fairness,” a distinction which will be crucially relevant in §3.
By 1969, Rawls seems to recognize that the duty of fairness account of legal obligation is
not sucient for legal obligation. In “e Justication for Civil Disobedience” Rawls includes two
e Principle of Fairness, Legal Obligation and the Value of Choice
- 4 -
6
Rawls, John, “Justice as Fairness,” in Collected Papers, ed. Samuel Freeman (Cambridge, MA; Harvard University
Press, 1999), 47-72.
7
At this time, Rawls refers to the principle as the “Duty of Fair Play” rather than the “Duty of Fairness.” He later
adopts the term “Duty of Fairness” without trying to dierentiate the two. Here, I make no dierentiation between
the two ideas either.
8
Rawls, “Legal Obligation and the Duty of Fair Play”.
reasons why we should follow just law. In addition to the duty of fairness, “we have a natural duty
not to oppose the establishment of just and ecient institutions (when they do not exist) and to
uphold and comply with them (when they do exist).”
9
e reason for including this second reason
is because few persons can be said to have accepted the benets of a legal system. Acceptance
requires some meaningful choice, but most citizens are never aorded the opportunity to make
such any such meaningful choice. us, if fair-play was the only reason to obey the law, then most
citizens would not be obligated to the law. By the publication of eory of Justice, Rawls no longer
appeals to the duty of fair play to explain the legal obligation of citizens
10
and instead relies solely
on the natural duty of justice. While he maintains that the duty of duty of fairness is one of the
primary natural duties, it is no longer recognized as the sucient ground of legal obligation.
In 1974, Robert Nozick published Anarchy, State and Utopia, which included a sustained
argument against the principle of fairness. Nozick is centrally concerned with the way in which
the principle can be used to justify forcing others to act. To combat this, Nozick argues that the
principle would have quite unintuitive consequences. He imagines a number of scenarios in
which a cooperative scheme is set up in which you are beneted by--but do not consent to--being
part of a scheme. In his most famous example, he writes,
Suppose some of the people in your neighborhood (there are 364 other adults)
have found a public address system and decide to institute a system of public
entertainments. ey post a list of names, one for each day, yours among them.
On his assigned day (one can easily switch days) a person is to run the public
e Principle of Fairness, Legal Obligation and the Value of Choice
- 5 -
9
Rawls, John, “e Justication for Civil Disobedience” in Collected Papers, ed. Samuel Freeman (Cambridge, MA;
Harvard University Press, 1999), 177.
10
Importantly, Rawls still recognizes that political oce holders and those who are well-placed can still be
obligated by the principle of fairness to certain political obligations because they have been aorded the
opportunity for a meaningful choice (See, Rawls, eory of Justice, 114). anks to Doug Weck on this point.
address system...Aer 138 days on which each person had done his part, you day
arrives. Are you obligated to take your turn?...As it stands, surely not.
11
As Nozick argues, the principle of fairness claims to be able to obligate an individual even when
there is no consent. is seems to be an unappealing consequence and Nozick argues that it
requires we abandon the principle altogether.
John Simmons picks up this thread of the argument in 1979 in Moral Principles and
Political Obligations.
12
On behalf of the principle of fairness, Simmons argues that Nozick does
not properly apply the Rawlsian condition that one must accept the benets of a cooperative
scheme in order to be bound. Rawls is quite explicit in requiring a voluntary act in order for an
individual to be obligated and Nozick ignores that. Simmons focuses more clearly on what this
condition requires and the ways in which the notion of acceptance overcomes a number of
Nozick’s worries. In the end, however, Simmons argues that even such an improved account is not
sucient for explaining legal obligation. Once we require acceptance of benets, we see that most
citizens have never accepted the benets of a legal system in the relevant way. As such, the
principle of fairness is inadequate for explaining legal obligation. As Simmons rightly notices, the
reason why he argues against the principle of fairness seems to be the same as the reason why
Rawls gave up on the explanation.
At this stage of development, the dilemma involved in using the principle of fairness to
ground political obligation is apparent. Using a version of the principle of fairness that requires
voluntary participation in a cooperative scheme seems to require a choice that never
meaningfully occurs for legal obligation. Yet, if voluntary participation is not required for
individuals to be bound to a cooperative scheme, then we run into Nozickian counterexamples.
e Principle of Fairness, Legal Obligation and the Value of Choice
- 6 -
11
Nozick, Robert, Anarchy, State and Utopia (Cambridge, MA: e Belknap Press, 1968), 93.
12
Simmons, John, Moral Principle and Political Obligations (Princeton; NJ; Princeton University Press, 1979).
In order to avoid this dilemma, both Richard Arneson and George Klosko have tried to
articulate a unique a set of circumstances in which the principle of fairness can bind individuals
without voluntary participation but which would not face Nozickean counterexamples. Arneson
argues that there are some public goods that are worth the cost to each recipient and which it
would be impossible to exclude free-riders from receiving through institutional means. In order
to avoid free-rider problems, individuals can be obligated to those schemes of cooperation that
supply these specic types of public goods.
13
Alternatively, Klosko argues the some public goods
are presumptively benecial and individuals can be obligated to those schemes of cooperation that
supply presumptively benecial goods.
14
Both Klosko and Arneson argue that the state provides
the relevant type of good, so individuals can have relevant obligations to the state.
For both Klosko and Arneson, however, the primary problem they have set up for
themselves seems to be more like grounding our obligation to pay taxes rather than our
obligation to follow the law as such. Of course, their perspective seems to be a natural t when the
principle of fairness is seen as the solution to a public goods problem. Aer all, in order to supply
a public good, it is only necessary that the provision of that public good be paid for. If it is
government that supplies the public goods, then all we need to determine is how to pay for
provision of government, and that seems to be taxes. us, Klosko and Arneson’s focus on the
provision of public goods seems to only explain why we have an obligation to pay a fair share of
taxes, and it does not explain our obligation to follow the law as such. ey need to explain not
only why we owe something to the political system, but why we are obligated to follow the law.
Why would obedience to the law be what we owe for receiving primary goods? While either may
have ways of responding to his objection, it is not immediately apparent from their version of the
e Principle of Fairness, Legal Obligation and the Value of Choice
- 7 -
13
Arneson, “e Principle of Fairness and Free-Rider Problems.”
14
Klosko, George, “e Principle of Fairness and Political Obligation” Ethics Vol. 97 No. 2 (1987); 353-362.
“Presumptive Benet, Fairness and Political Obligation” Philosophy and Public Aairs Vol. 16, No. 3 (1987);
241-359. e Principle of Fairness and Political Obligation (Oxford, UK; Rowman and Littleeld, 1992).
principle of fairness. e primary questions of legal obligation are not about paying a fair share,
but how the edicts of law can morally bind our actions. As Rawls asked, how we can be obligated
to follow a law that we think to be unjust? How can we be obligated to take an action even when it
produces less good because it is the law?
In the rest of the paper, I aim to explain specically why we have a duty to follow the law
and why we need not have taken a voluntary act to do so. In this way, I will try to avoid that same
dilemma as Klosko and Arneson, but I will do so in a way that obliges us to obey the law and not
merely to pay an unspecied fair share to the government.
§2. Why Some Cooperative Schemes Ought be Closed to Choice
In order to understand why the same principle of fairness can oblige us to both cooperative
schemes that are open and closed to choice, it is rst important to understand why some
cooperative schemes ought be open to choice and others ought to be closed. e relevant
dierence is most apparent when we compare a relatively mundane scheme to one that is much
more fundamental for society. As an example of mundane cooperative scheme, we can start
with Nozick’s example of the a neighborhood public address system. Suppose that you would
benet from such an system, but you would not voluntarily participate in it. We can even
suppose that this is not because you would lose more than gain, but either because you don’t
think that such a scheme would be proper or you simply do not want to be committed. Nozick
argues that if the principle of fairness was not conditional upon voluntary participation, then it
would obligate you to contribute to the system. Yet, this seems deeply problematic. How can
one be so obligated to such a scheme without a relevant choice to become a participant?
e Principle of Fairness, Legal Obligation and the Value of Choice
- 8 -
Compare this example to a society that has a particular system of property rights.
15
is
too is a cooperative scheme whereby members of society abide by the same rules for
recognizing and transferring property and each is also expected to abide by these rules.
Suppose that you benet from such a system, but you would not voluntarily participate in it.
We can even suppose that this is not because you lose more than gain in such a system, but
merely because you don’t think such a system of property to be proper or do not want to be
committed. Most seem to think you are obligated by the rules of most systems of property
regardless of any voluntary participation. Yet, this does not seem to be problematic. How can
one be obligated without a relevant choice to become a participant?
Now, I do not doubt the force of Nozick’s example. I fully agree with him that it would
be wrong to be obligated to the rules of the PA system without one’s choice. Yet, I also agree
that it would not necessarily be wrong to be obligated to the rules of a property system.
16
On
what grounds can I object to one cooperative system, but not the other? In this section, I oer
an answer. I will not rely on any account of the natural duties or a notion of presumptively
benecial goods, but instead show the way in which those cooperative schemes that make social
cooperation possible ought not be open to choice. A system of property is one such scheme, and so
is a legal system.
2.1 e Value of Having a Choice
A cooperative scheme is a system of rules that individuals coordinate their actions in
accordance with. When individuals generally act in accordance with these rules, they achieve
some benet from their cooperation. Now, in evaluating these cooperative schemes, we can
e Principle of Fairness, Legal Obligation and the Value of Choice
- 9 -
15
Arneson makes a similar comparison in his article. Even those who think that property rights are natural rather
than articial, it will still be necessary that a cooperative scheme specify the details of these rights and arbitrate
disputes.
16
ought it would be wrong to be obligated to a system of property that was unjust.
evaluate particular features of the system of rules. We can ask whether the scheme would work
better if we changed any of the rules or replaced the scheme with a new one all together. One
feature of such rules will be whether they leave options up to participants choices or not. As
such, we can sometimes argue that the rules of a practice ought to give participants a choice
over some options or they ought not give participants such a choice. When ought the rules of a
scheme give individuals choice, and when ought they not do so? In speaking here about the
value of choice, I mean to focus only on this narrow question. Why should the rules of scheme
leave options open to participants choices?
Since a cooperative scheme is a system of rules, there is an helpful analogy to be drawn
between evaluating the rules of a scheme and evaluating the rules of a game. Imagine that you
are trying to invent a new game to play with friends. In constructing this game, you would take
up the perspective of thinking about what happens when everyone follows the rules. For this
reason, you do not suppose that all options should be open to choice. Aer all, it is only
because there are some mandatory rules that the game has enough structure to be played at all.
In selecting which options are open to choice and which are mandatory, you would do so for
reasons. Would giving players any specic choice allow for strategy or would it be chaotic?
Here we are not thinking from the perspective of an individual playing the game, but from a
more external perspective of evaluating the game as it is to be played. When we evaluate the
rules of cooperative schemes, we take this same external perspective. As such, we do not think
of whether having a choice would be valuable from the perspective of individual playing the
game (it almost always would) but whether players generally having such a choice would be
valuable for the purposes of the game.
Now, obviously games and cooperative schemes are quite dierent. In the rst case, we
usually think that individuals only play games when they choose to do so, but there are
cooperative schemes for which an individual does not have a choice about whether to
e Principle of Fairness, Legal Obligation and the Value of Choice
- 10 -
participate at all.
17
Yet, in the case of a cooperative schemes, whether participation is open to
choice can be treated as a rule of that scheme. us, in the same way that we can ask whether
participants ought to have a choice in other aspects of scheme or game, we can ask whether
participants ought to have a choice about whether to participate. I aim to show that there are
some cooperative schemes for which participants ought not have this choice about whether to
participate. In order to see why, we need to better understand what the value of having choice
is.
Oentimes, the value of having choice is taken for granted. A typical example would be
those who hold--what I will call--the “Autonomy-Baseline view.” is view presupposes that
having choices is valuable, so participation in all practices ought to be open to choice unless
there is some powerful justication for it being closed.
18
Yet, if we are to explain why
participation in some schemes ought not be open to choice, it is rst important to understand
why choice is valuable. is requires that we move beyond the Autonomy-Baseline view since it
merely presupposes the value of having a choice.
In his Tanner Lectures on “e Signicance of Choice,”
19
T.M. Scanlon argues for one
possible alternative to the Autonomy-Baseline view that he refers to as the “Value of Choice”
view. As part of this view, Scanlon introduces three dierent ways in which choice might be
valuable; choices may have “instrumental value,” “demonstrative value” or “symbolic value.”
Choice is valuable in the rst, instrumental, sense when it increases the likelihood of bringing
about something else that is valuable. Scanlon uses the example of being able to choose from a
menu at a restaurant because one is more likely to enjoy his meal if he is able to choose it from
e Principle of Fairness, Legal Obligation and the Value of Choice
- 11 -
17
In §4, I argue that a system of law is one such scheme.
18
For this reason, the view is oentimes associated with liberalism. However, it is not necessary to justify
liberalism and I believe that the autonomy-baseline view is the wrong view for liberals to have because it fetishes
having choice above the important things that choice is for.
19
“e Signicance of Choice,” e Tanner Lectures on Human Values, Volume VIII. Ed. S. McMurrin. (Salt Lake
City: University of Utah Press, 1988).
a variety of options. In this case, having a menu is instrumentally valuable in bringing about
enjoyment of dinner. Choice is valuable in the second, demonstrative, sense when it allows for
individuals to express themselves. Two examples of this value are when the choice of a gi
expresses one’s feelings for the recipient or when the choice of apartment decorations reects
one’s sense of style.
20
e nal, symbolic, value of choice is the judgment that is expressed in
giving someone a choice and thus expressing respect for their standing (or their competence)
to choose. Here, we might imagine that a teenager is suddenly given the choice of which classes
to take when her parents have usually made such decisions for her. e event would have
symbolic value in expressing condence in the teenager’s decision-making abilities or status as
an adult.
While these three values might not be mutually exhaustive of the value of choice, they
do show the range of reasons why options ought be open to choice. Instead of merely
supposing that having a choice is valuable, we now have a better perspective from which to
judge why having a choice is valuable. ere is a reason for the rules of a scheme of cooperation
to leave options open to choice when one of these three values would be satised by doing so.
Now, the Value of Choice view explains why participation in most cooperative schemes
ought be open to choice, but it does not take an absolutist view toward the importance of
having this choice. Participation in most cooperative schemes ought be open to choice because
having such a choice would generally be instrumentally, demonstratively and symbolically
useful. For Nozick’s PA system example, it would partly be wrong for the individual to be
obligated to the scheme without consenting because having the choice over whether to
participate is more likely to allow him to be involved in the things that he will enjoy, to express
his views about such noisy activity and to respect his status as decision-maker. In this way, the
Value of Choice view can explain why we would typically act as if the Autonomy-Baseline view
e Principle of Fairness, Legal Obligation and the Value of Choice
- 12 -
20
Such an issue seems to play out in arguments about whether children should be required to wear uniforms in
school. One perspective is that a student ought have the ability to express themselves through choice of clothes.
was true; in most cases the two will treat practices similarly. For the vast majority of practice,
both views will assume that participation in practices should be open to choice. For the
autonomy-baseline view, this assumption is presupposed. For my own view, the assumption is
justied by the value of choice. Where the two views dier will be how they can justify
practices that are not open to choice. e Value of Choice view allows us to better explain why
there will be circumstances in which a participation in a scheme ought not be open to choice.
2.2 Closed to Choice
ere are some cooperative schemes which it does not make sense to leave participation open
to choice. For instance, those who drive are obligated to abide by a number of conventions;
drive on the right, let the rst person who arrived at a stop sign go rst, etc. While most of
these conventions are backed by law and a licensing system, we can imagine a situation in
which they are not. In this case, we would not want to say that a driver is obligated to follow
these conventions only if he chooses to participate in the driving conventions.
21
It is assumed by
all drivers that all other drivers will be obligated to conventional driving rules regardless of their
choices. Moreover, it is a good thing that all drivers are so obligated regardless of their choices.
It is necessary for safe driving that each driver is justied in assuming that all drivers are
obligated to the rules of the driving conventions. Likewise, I will argue that it is necessary for
social cooperation that every individual is justied in assuming that all strangers in a society
are obligated to the rules of those practices that make social cooperation possible amongst
strangers. As such, there are two questions that arise. First, what practices are those that make
social cooperation possible amongst strangers? Second, why ought persons not have the choice
to participate in those practices? I will now answer these questions in turn.
e Principle of Fairness, Legal Obligation and the Value of Choice
- 13 -
21
A common response to this might be that he does choose to abide by the conventions by choosing to drive. Yet,
this can hardly be sucient because then he would be bound to the rule that “choosing to drive binds you to these
conventions of driving” without choosing to be so bound.
Social cooperation can be dened as (a) coordination between individuals in which (b)
each shows proper regard to the interests of the other.
22
An analysis of both of these conditions
will show why some practices will be necessary for social cooperation to be possible. First, what
makes coordination possible is that there are mutually recognized rules that appropriately
structure each agent’s expectations. It is because persons have a basis for forming expectations
of others that make it possible for each to rely on the behavior of others for their plans and thus
coordinate with them.
23
e rules of social practices are the basis of these appropriate
expectations. As such, social practices make social cooperation possible by forming the basis
for the expectations necessary in order to coordinate actions with one another. Second, what
makes proper regard for each other’s interest possible is the mutual trust that social practices
are mutually advantageous. It must be the case that by coordinating my actions in accordance
with appropriate institutions, we are both better o than if I did not do so. If we had a strict
conict of interests, there could be no possible social cooperation.
24
As such, what makes social
cooperation possible is that there exist mutually recognized systems of rules that each cooperator
trusts to advance their own interests.
Now, in society there is not merely social cooperation, but social cooperation amongst
strangers.
25
is presents an additional problem because persons must trust that cooperation
e Principle of Fairness, Legal Obligation and the Value of Choice
- 14 -
22
Rawls articulates social cooperation as involving three features (a) coordination guided by publicly recognized
rules that are seen by those who follow them as properly regulating their action, (b) the rules are reasonably
acceptable to the cooperators and (c) reference to a conception of each participant’s good (“Justice as Fairness:
Political not Metaphysical” p. 396-97). In my denition above, I aim to respect these three conditions without
presupposing that the proper consideration to others interests involves mutually acceptable rules based on a
shared conception of a individual’s good. I ultimately agree with Rawls but such a claim is unnecessarily
contentious for present purposes. Also, what “proper” regard consists in will surely be open to interpretation
according to dierent ethical theories as I cannot here defend a substantive view on the issue here.
23
Here I mean to draw on a long tradition of literature that extends from David Lewis (Convention: A Philosophical
Study, Oxford, UK; Blackwell, 2002) through to Cristina Bicchieri (e Grammar of Society, Cambridge, UK;
Cambridge University Press, 2006) and on. e debt to Hume is not lost on these theorists.
24
For more on this point, see Rawls, eory of Justice, §22
25
For more on this idea, see Paul Seabright’s book In the Company of Strangers; A Natural History of Economic Life
(Princeton, NJ; Princeton University Press, 2010).
will advance their interests even without knowing anything about the other cooperators. For
this reason, it will be necessary that two conditions hold. First, individuals must trust that the
rules that cooperators follow will advance their interests. Second, individuals must trust that
strangers will follow those rules. It is the rst condition that explains why there is a certain set
of practices that are necessary for cooperation and the second condition that explains why
participation in those practices ought be closed to choice. Now, to treat these two issues in turn.
First, in order for individuals to know that that the practices will advance their interests,
there must be a core set of practices that (when generally followed) will advance the interests of
all. ese practices will necessarily set up a stable system whereby persons can pursue their life-
plans and goals. Now, it would be ideal if I could supply a list of exactly what these core social
practices are, but doing so is not a clear-cut enterprise. It would likely require a conception of
human nature and extensive social theory. For this reason, the list of core social institutions
necessary to advance the interest of all is open to some interpretation. Yet, there are a number
of practices that seem to be prima facie necessary. First and foremost is some system of
property that secures the use of external objects with a stable and reliable system. Second, there
must be some rules of exchange between persons that structure the economy. ird, there must
be some well-understood family structure that settles expectations for raising children. Finally,
there must be some sort of political structure by which the rules of institutions can be changed
and new rules become publicly recognized.
26
To look ahead to §4, it is this last type of practice
that I take a system of law to be. I will later argue that it because this type of practice is
necessary for social cooperation that we can be obligated to generally obey the law without ever
choosing to be a member of legal society.
e Principle of Fairness, Legal Obligation and the Value of Choice
- 15 -
26
ese basic institutions are what led Rawls to write, “by major institutions, I understand the political
constitution and the principle economic and social arrangements. us the legal protection of freedom of thought
and the liberty of conscience, competitive markets, private property in the means of production, and the
monogamous family are examples of major social institutions” eory of Justice, 7.
Now that we have some better sense of which practices are necessary for social
cooperation, it remains to be seen why participation in these practices ought not to be open to
choice. In accordance with the second condition for social cooperation, it is necessary that
persons be able to trust that strangers will abide by the social practices that persons trust to
advance their interests. For this reason, participation in these social practices ought not be
open to choice. Strictly by being members of society, individuals are obligated to follow the
rules of those practices that are necessary for social cooperation. For instance, one can only feel
stable in the use of property when one takes all other members of society to be obligated by the
rules of property. If abiding by the rules of property were open to individual choice, no person
could trust a stranger without knowing whether they had chosen to abide by the rules of
property or not. Since some property system is necessary for social cooperation, social
cooperation would then be impossible if participation in the practice of property was open to
choice.
As hinted to at the beginning, this argument is similar to an argument for why the
driving conventions are obligatory for all drivers. In order for driving to be successful, drivers
must be able to trust that all others drivers will follow the conventions of driving, even when
they do not know anything about the other drivers. Likewise, in order for social cooperation to
be successful, members of society must be able to trust that all other members will follow the
practices that are necessary for social cooperation, even when they do not know anything about
the other members of society. As such, the fundamental reason why participation in core social
practices is not open to choice is because having them be closed to choice is a necessary
condition on social cooperation with strangers in the rst place. We can only cooperate with
strangers if we know that they will follow the rules of our basic social practices, and we will
only know that they will if we assume that all persons must.
e Principle of Fairness, Legal Obligation and the Value of Choice
- 16 -
2.3 e Value of Choice Objection
Now, this argument might not seem sucient because it does not address the Value of Choice
view. If participation in our schemes of cooperation generally ought to be open to choice
because of the value of choice, then ought not participation in those social practices necessary
for social cooperation also be open to choice? How can the fact that obligatory participation is
necessary for social cooperation override the value of choice?
e response to this objection is that the same values that are protected by leaving
cooperative schemes open to choice are protected by leaving the social practices necessary for
cooperation closed to choice. is is because the claim that any cooperative scheme ought be
open to choice is a claim against other members of society. Specically, it is claim that they
ought not hold a person to be obligated to a practice unless that person voluntarily participates.
at participation in a scheme is open to choice is merely a fact of how other people act toward
those who have not chosen to be involved in that scheme. So, in saying that participation in a
scheme ought to be open to choice, one says that persons ought to respect the choices of
individuals to be involved or not involved in that scheme. Yet, in so coordinating our actions
around rules about how choices aect how we can treat others, we are engaged in social
cooperation. As such, in order for practices to be open to choice, there must be social
cooperation, and therefore those practices that make social cooperation possible must exist.
us, by obligating individuals to the practices that make social cooperation possible, we are
making it possible for practices to be open to choice. As such, the fact that the most basic social
practices are closed to choice actually respects the Value of Choice by making it possible for
persons to cooperate around rules that respect choice.
is can all be recognized in the case of neighborhood PA system for which
participation is open to choice. Say one individual, named Rob, chooses to not participate with
the PA system, his choice has not only possible metaphysical import but social import. Since he
e Principle of Fairness, Legal Obligation and the Value of Choice
- 17 -
chooses not to participate, it would be wrong of others to hold Rob to the obligations and
expectations that they would hold those who choose to participate. Imagine that Jane, who did
choose to participate with the PA system, approaches Rob and blames him for not taking his
turn in the PA system; Jane gives Rob disparaging looks and resents his lack of responsibility. In
this picture, Jane acts wrongly. She fails to recognize the importance of Rob’s choice not to be
involved. Insofar as the PA system is open to choice, Jane ought to respect Rob’s choice. If Jane
was not obligated to respect Rob’s choice, then Rob wouldn’t really have the type of choice that
the Value of Choice view aims to protect. Moreover, since it is necessary for social cooperation
amongst strangers that some practices not be open to choice, then some practices ought not be
open to choice in order for practices to be open to choice.
In advocating that some social practices ought not be open to choice, my position may
seem quite radical. What disrespect for individual autonomy I seem to have! e advocate for
the autonomy-baseline view would surely reject this order of argument. Yet, it deserves to be
pointed out that my position is not that dierent from those philosophers who are the most
celebrated defenders of autonomy. For instance, Kant argues that it is requirement of reason
that persons leave the state of nature and enter a rightful condition that species property
relations.
27
Likewise, Rawls argues that the contractors in the original position agree to which
natural duties will oblige persons regardless of their choice.
28
ese gures recognize that their
concern for autonomy requires that not all options ought be open to choice. While the
Autonomy-Baseline view takes any limitation of choice to be a prima facie wrong, the Value of
Choice view allows us to better explain why some practices ought not to be open to choice. I
e Principle of Fairness, Legal Obligation and the Value of Choice
- 18 -
27
Kant, Immanuel, e Metaphysics of Morals, trans. Mary Gregor, (Cambridge, UK; Cambridge University Press,
1996). 6:312. “Hence each may impel the other the other by force to leave this state [of nature] and enter into a
rightful condition.”
28
In grounding the natural duty of justice (which bind regardless of choice), Rawls ascribes the following
perspectives to contractors in the original position, “there is every reason for the parties to secure the stability of
just institutions, and the easiest and most direct way to do this is to accept the requirement to support and comply
with them irrespective of one’s voluntary acts,” eory of Justice, 336 (my emphasis).
here only argue that for the sake of what having choices gets us, we ought not be free to choose
to be involved in the basic social practices.
As shown in this argument, there is a fundamental dierence in how we ought to treat
the most basic social practices that are necessary for social cooperation and the more mundane
cooperative schemes. e vast majority of practices ought to be open to choice because doing
so will generally promote instrumental, demonstrative and symbolic value. Yet, it is only
possible for practices to be open to choice (and thus promote these values) within a system of
social cooperation. Since social cooperation is both a condition for the social importance of
choice and for securing a range of values, closed practices are justied when they are necessary
for social cooperation. is dierence in how we ought to treat the two cases will be crucial in
understanding the asymmetry in application of the principle of fairness that has been the
primary impetus to its acceptance. To see how this dierence in cases related to the principle, I
turn now to arguing for a revised version of the principle of fairness.
§3. e Revised Principle of Fairness
At this stage, we have the ideas in place to introduce the revised version of the principle of
fairness that grounds legal obligation. I want to introduce that principle, but I will pair it will a
liberal condition on what cooperative schemes are just. I put these two together because I think
the condition explains why the principle is able to correspond with our considered convictions
in ways that the principle alone cannot.
e Principle of Fairness (= PF):
e Principle of Fairness, Legal Obligation and the Value of Choice
- 19 -
Any individual is obligated to follow the rules of a cooperative scheme whenever the
well-functioning of that scheme is in the individual’s interest and the scheme is
suciently just.
29
e Liberal Condition on Justice (= LC):
No cooperative scheme is just if it does not properly respect the value of choice.
Written in this way, PF only applies to those practices that are both “subjectively valuable” and
“objectively justied”. A practice is subjectively valuable when the well-functioning of that
scheme is in interest of the person who is obligated. A practice is objectively justied when the
practice is suciently just.
30
LC is not itself a part of the principle of fairness, but it places a
restriction on which practices will be objectively justied. For this reason, no individual will be
obligated to the rules of a practice that does not meet LC.
In this section, I want to defend PF and LC, and in the next section I will use the
principle to ground our legal obligations. First, let me say a few words on the liberal condition,
then I will highlight the primary advantages of this version of principle of fairness.
3.1. e Liberal Condition
e Principle of Fairness, Legal Obligation and the Value of Choice
- 20 -
29
As I’ve argued elsewhere, this form of the principle of fairness stresses the way in which schemes of cooperation
give rise to obligations, but there is a correlate of this principle that stresses the way in which schemes of
cooperation give rise to claim rights. e correlate of the above principle might be summarized as “when any
individual acts in accordance with the rules of a suciently just scheme of cooperation, he has a valid claim
against those others (for whom the scheme of cooperation is in their interest) to likewise follow these rules.”
30
One question that arises in regards to such a principle is how to determine which cooperative schemes we ought
to follow the rules of. is is a well-recognized problem for the literature on the natural duty of justice.
Unsurprisingly, I address these worry by recognizing the way in which such concerns are related to the justice of
scheme. I take it that we are only obligated to those cooperative schemes that are suciently just, and we would
not be obligated to those schemes that claim to obligate unless their claim to obligate us was part of a suciently
just practice. In this way, as a US citizen, I am not obligated to pay taxes to France merely on the basis that they
claim I am. A cooperative scheme that bound me to France’s laws would not be a suciently just scheme because I
would have no basis to be obligated.
On its own, PF does not address which schemes of cooperation are just, it merely obligates
persons to follow the rules of whichever practices are just. As such, many dierent conceptions
of justice are compatible with the principle. LC is one possible condition used to determine
which schemes are just. us, if the liberal condition is a correct condition on a conception of
justice, then persons will not be obligated to follow the rules of those practices that do not
respect the value of choice. It is this condition that explains why persons will not be obligated
to abide by most schemes that they do not voluntary participate in (such as Nozick’s PA
system). For this reason, it is important to now better explain this condition.
First, LC is only a condition on the justice of schemes of cooperation. Whatever else
might judged to be just or unjust (actions, characters, individual laws, etc) need not necessarily
meet this condition. As such, it is only meant to express a condition for assessing certain
practices. e perspective we take in using a conception of justice for this purpose is like the
perspective of the person designing a game and choosing the rules of that game. As we assess
practices in society, we recognize that these practices must respect the value of choice. In this
way, LC has a limited scope.
Second, I do not mean to suppose that LC is the only liberal condition on justice or
somehow the most signicant liberal condition. Instead, I only mean to suppose that this is a
liberal conditional on justice. It is labeled as liberal because liberals typically take the value of
choice to be of foremost importance.
31
Likewise, those who do not have liberal commitments
are less likely to care about the value of choice in their conception of justice and will tend to
stress other values, say religious perfection or equality. Insofar as liberals typically advocate for
liberties, it is no surprise that their conceptions of justice typically respect the value of choice.
e Principle of Fairness, Legal Obligation and the Value of Choice
- 21 -
31
e classical liberals (Smith, Hayek, Ricardo) may stress the instrumental value of choice whereas the high
liberals (Kant, Mill, Rawls) may stress the demonstrative value of choice, but both traditions recognize the liberal
condition on justice. Interestingly, it seems that libertarians (generally) do not make appeal to the value of choice
because they merely hold the autonomy-baseline view as obvious. (For a thorough comparison of High Liberalism
with Classical Liberalism, see Samuel Freeman, “Capitalism in e Classical and High Liberalism Traditions”
Social Philosophy and Policy Vol. 28, No. 2 (2011); 19-55).
ird, it might be thought that the notion of “respect” in LC is too vague and thus
necessarily appeals to intuition for its ecacy. is is surely true, but it is only because dierent
liberal conceptions will have to ll in what it means to respect the value of choice. ere are
dierent ways in which to reconcile the value of choice with other values, and I cannot defend a
particular view here. So, while there is wide latitude of interpretation in what would satisfy the
LC, I see no reason why this would be problematic for present purposes.
e LC is important because it is what allows us to address the Nozick-style
counterexamples to PF. According to the revised principle of fairness, one can be obligated to
both those cooperative scheme for which participation is open to choice and those for which
participation is not open to choice. As such, it might seem like this principle would obligate us
to the rules of many schemes that we would not choose participate in. Now, what addresses this
problem is not changing the principle of fairness (as it usually done) but recognizing that we
are not obligated to the rules of unjust practices.
32
Using Nozick’s example, we are not obligated
to help with the PA system because if such a system were not open to choice it would be an
unjust practice, and we are not obligated to follow the rules of unjust practices. What the LC
does is to set a clear requirement on schemes of cooperation; they must respect the value of
choice. e PA system is unjust because having participation be closed to choice is not just by
the terms of the LC, thus individual have no obligation to the rules of the scheme. In this way, it
is not the principle of fairness on its own that explains why we do not have intuitively
implausible obligations, but a conception of justice.
3.2 e Generality of the Principle
e primary advantage of this version of the principle of fairness is that it is fully general across
all practices, regardless of whether participation in them is open or closed to choice. In this
e Principle of Fairness, Legal Obligation and the Value of Choice
- 22 -
32
Most others who have used the principle of fairness already recognize that fairness or justice is a condition for
us to be obligated, but they have not limited what schemes are just by anything like the LC.
way, the revised PF captures the way in which the principle of fairness was meant to explain
our more basic obligations in accordance with common moral convictions, and it does so while
overcoming the diculty that Rawls and Simmons identify. So long as a practice is subjectively
valuable and objectively justied, persons will be obligated to its rules. Yet, to show that this
principle is truly general, I need to explain how it adequately covers four types of cases. First, I
need to explain why it does not obligate persons to those cooperative schemes for which
participation is closed to choice and which the principle (intuitively) ought not obligate them to.
Second, I need to explain how it can obligate persons to those schemes for which participation
is closed to choice and that the principle ought to obligate them to. ird, I need to explain why
it does not obligate those persons to those schemes for which practice is open to choice and
which it ought not obligate them to. Fourth, I need to explain how it can obligate persons to
those schemes for which participation is open to choice and which it ought obligate them to.
33
As such, I need to make sure the principle can cover each of the cases in the matrix below:
Ought not be Obligatory
Ought be Obligatory
Closed to Choice
1
2
Open to Choice
3
4
(1) e LC explains the rst type of case; we ought not be obligated to those practices
that do not meet the Liberal Condition on justice. If a practice does not respect the value of
choice, then it is not just, and thus its rules are not obligatory. ere will undoubtedly be many
other reasons why a practice might fail to be objectively justied, but the LC articulates one
generally recognizable standard.
e Principle of Fairness, Legal Obligation and the Value of Choice
- 23 -
33
In this cases, the person has freely chosen to participate in cooperative scheme and is then obligated by the rules
of that scheme.
(2) As argued in the previous section, a practice can respect the value of choice and
participation can be closed to choice when that practice is necessary for social cooperation.
34
As argued above, for practices to be open to choice it is necessary that there be a practice of
respecting choice, and social cooperation is necessary for this practice to exist. erefore the
practices that are necessary for social cooperation are necessary in order for practices more
generally to be open to choice. For this reason, if participation in a practice that is necessary for
social cooperation is not open to choice, that practice does not disrespect the value of choice.
In fact, it is partly because we respect the value of choice that the practices necessary for social
cooperation ought not be open to choice. In order for us to live in a society in which our
choices are to be generally respected, it is necessary that persons are obligated to those practice
that make a society possibly in which choices are generally respected. In this way, we have
achieved what seems ridiculous on its face; we have shown why respect for the value of choice
can give reason for the basic social practices to be closed to choice. Such practices will both be
closed to choice and obligatory by PF. us, we can explain how the revised principle of
fairness can explain obligation to those practices that are closed to choice while still
maintaining the liberal condition on justice.
(3-4) Now, to show the way in which the principle of fairness can explain when we are
obligated to practices that are open to choice and when we are not, I want to appeal to a
distinction that Rawls made in his early work between the ideal of justice and the ideal of
fairness. In “Justice as Reciprocity” he writes,
“Now, in ordinary speech, the concepts of justice and fairness are distinguished
roughly in this way: Fairness applies to practices where persons are cooperating
with or competing against one another and which allow a choice whether or not to
do so....On the other hand, justice applies to practices in which there is no choice
e Principle of Fairness, Legal Obligation and the Value of Choice
- 24 -
34
While there might be other practices that are also closed to choice and just besides these, I do not need to take a
position on the issue.
whether or not to participate. It applies to those institutions which are either so
pervasive that people nd themselves enmeshing in them and made to conduct
their aairs as they specify, as with systems of property and forms of government;
or to those practice which...nevertheless give no option to those caught in them,
such as slavery or serfdom” (209)
Now, while we might dispute the claim that this is how the terms of “justice” and “fairness” are
used in ordinary speech, there is an important distinction here that I will continue to maintain.
at distinction is that justice is a value that applies to practices that are not open to choice and
fairness applies to practices that are open to choice. Now, I support this distinction and my
recognition of it was a primary impetus to the view espoused here.
While I will follow Rawls in using justice to apply to practices that are closed to choice
and fairness to practices that are open, I will add an additional element that relates this two
ideals. I maintain that any fair scheme is also just so long as participation is open to choice and
the scheme treats non-members appropriately. At this stage, this is merely a conceptual relation
between justice and fairness because I have not argued for either any particular conception of
justice or of fairness. e point in making this stipulation is merely to show the ways in which
those practices that are (a) fair, (b) open to choice and (c) treat non-members appropriately are
just. Due to this relationship between justice and fairness, PF is able to extend to those practices
that are open to choice and dierentiate those that we are obligated to and those that we are
not. Specically, due to this relationship PF obligates persons both to the practices that are just
(box 2) and practices that are fair, open to choice and treat non-members appropriately (box 4).
ose practices that are open to choice but are not either fair or treat non-members appropriate
will not be just. It is for this reason that unfair practices are not obligatory (box 3).
is system suggests the following approach for how to apply the principle of fairness.
For any relevant practice, we rst determine whether that practice is open to choice. If the
practice is not open to choice, the question is whether that practice is just. If the practice is just,
e Principle of Fairness, Legal Obligation and the Value of Choice
- 25 -
then the rules of that practice are obligatory (so long as the practice is subjectively valuable). If
the practice is not just, then the rules are not obligatory. If the practice is open to choice, then
the question is whether the practice is both fair and treats non-members appropriately. If so,
then the rules of that practice are obligatory to those who chose to be involved in the practice.
If not, the the rules are not obligatory. As such, the principle of fairness is fully general across
the cases as follows:
Ought not be Obligated
Ought be Obligated
Closed to Choice
Not obligated when the
practice is unjust (perhaps
due to liberal condition)
Obligated when the
practice is just
Open to Choice
Not obligated when the
practice is either unfair or
does not treat non-
members appropriately
Obligated when the
practice is both fair and
treats non-members
appropriately
With this framework, the revised principle of fairness is able to be fully general across both
practices that are open and closed to choice, and it is able to specify the conditions under
which persons are and are not obligated to the rules of a practice. As such, this framework is
able to maintain the use of the principle of fairness for practices for which participation is open
to choice (as Rawls uses it in eory) and has the possibility to extend to those practice like a
system of law for which participation is not open to choice (as Rawls and Simmons suggest it
could not). In the next section, I will turn directly to the obligation to obey the law to show
how this project might be feasible.
e Principle of Fairness, Legal Obligation and the Value of Choice
- 26 -
§4. Legal Obligation
Now, at this point, I want to explain how PF can be used to ground legal obligation. However, I
cannot, in this paper alone, give a fully sucient account of how the revised principle of
fairness would do so. e topic is itself too complex to treat its nuances with full attention, but I
will give the outlines for how such a full account would proceed. To do so, I argue that
following the law is a rule required by the cooperative scheme of a system of law. us, insofar
as (a) the well-functioning of a system of law is in an individual’s interest and (b) the system is
suciently just, then that individual will be obligated to follow the follow the law.
In order to show this, I will be concerned with arguing for four points. First, that a
system of law can be considered a cooperative scheme. Second, that one of the essential rules of
that scheme is that members of society ought to follow the recognized laws. ird, that the
well-functioning of a system of law is likely to be in each individual’s interests. Fourth, that a
system of law will satisfy the liberal condition of justice despite the fact that participation in a
system of law is not open to choice. I will argue for the rst two points in §4.1, and the last two
points in §4.2.
4.1 A System of Law as a Social Practice
In analyzing a system of law as a cooperative scheme, I follow Hart’s analysis in his famous
work, e Concept of Law.
35
Hart argues that the rules of practices can be of two types. First,
primary rules constitute the various disparate practices of social life. In constituting practices,
these rules give rise to obligations and powers as persons are bound by the rules of the practice.
Yet, by themselves a system of primary rules would uncertain, static and inecient because the
rules would be taken as unspecied and unchangeable. For this reason, societies develop a
e Principle of Fairness, Legal Obligation and the Value of Choice
- 27 -
35
As noted above, Hart himself seems to recognize that legal obligation can be explained as our obligation to a
cooperative scheme since he cites legal obligation as the example of an obligation implied by the principle of
fairness in “Are ere any Natural Rights?”
system of secondary rules that confer the power to change primary rules. For Hart, a legal
system is the union between these primary rules and secondary rules; a dynamic framework
that is able to recognize and revise the various practices that exist in society.
While some argue that Hart’s project is a failure, others argue that it merely needs subtle
renements to successfully explain law as a cooperative scheme. I am rmly in the latter camp.
While I cannot here go into what the fundamental problems for Hart are and how they can be
resolved, I will here assume the possibility of some resolution.
36
I need not be committed to all
of the nuances of Hart’s views, but only the core commitments that a system of law can be
understood as a specic social practice constituted by rules that make it possible to change the
rules of other social practices.
Now the rules that together constitute the legal system are obviously quite complex.
ere will dierent rules that apply to dierent roles in that system; rules for judges as
interpreters, rules for legislators as enactors, rules for executives as enforcers, and even rules for
members of society. My present concern will be specically with these rules for members of
society. Recall that Hart’s analysis of law is as system by which to revise and introduce social
practices in a society. Now, if this is the primary role of a system of law, then for it to be a well-
functioning system of law, it must be able to revise and introduce social practices. To do this, it
must be able to change the patterns of behavior and expectations of members of society. Aer
all, only when individuals change their behavior will the social practices change. As such, a
system of law functions well only when law has the capacity to change individuals’ behavior.
Now, a system of law will only this capacity when persons respect it as authoritative. us, for a
e Principle of Fairness, Legal Obligation and the Value of Choice
- 28 -
36
Andrei Marmor’s recent defense Hart’s project articulates the most important aspect. He argues that Hart’s rules
of recognition should not be understood as rules that merely solve coordination problems, but as a set of rules that
together constitute a practice. Without recognizing this aspect of rules of recognition, it is dicult to explain how
legal rules can be normative. However, once we see how they constitute a practice, their normativity it no more
dicult to explain than the rules a chess. Our reasons for following the rules of chess arise because we have reason
engage in the activity of chess, and likewise are reasons for following legal rules arises from our reasons to engage
with the legal system. See Andrei Marmor, Social Conventions: From Language to Law, Princeton, NJ; Princeton
University Press, 2009. Ch. 9; and “How the Law is Like Chess,” Legal eory Vol. 12, No. 4 (2006); 347-371.
system of law to function well, it is necessary that persons respect the law as authoritative. For
this to be the case, persons generally ought to follow the law.
37
As such, in order for a system of
law to function well it is necessary the persons generally follow the law.
38
So, while a system of law will consist of many complex rules for dierent roles, it is
necessary that one such rule be that persons generally obey the law. We typically view
legislators as claiming some legitimate authority to bind persons to actions whenever laws are
legitimately formed and recognized as valid. e present point explains that authority as arising
from the cooperative scheme of a system of law. It is because the rules of that system require
that participants follow an authority-granting rule (and because the rules of that system are
followed) that legislators have such authority. ere is no need for there to be an explicit law
that persons act in accordance with the law because it the rule itself constitutes the authority of
the law. What it is for a system of law to have the requisite authority to change social practice is
that persons treat the law as something which citizens ought generally act in accordance with.
us, it should not be surprising that a system of law includes the rule that “members of society
ought generally follow the law” among its essential elements.
If we now leverage this understanding of law as a cooperative scheme, we can see how
the PF will ground legal obligation. A system of law is a cooperative scheme that consists
partly in the rule that persons ought obey (what is recognized as) the law. e principle of
fairness requires that individual abide by the rules of a cooperative scheme so long as that
practice is (a) in their interest and (b) suciently just. As such, so long as a system of law meets
these two conditions, individuals will be bound by the rules of this practice. Since the scheme
e Principle of Fairness, Legal Obligation and the Value of Choice
- 29 -
37
While my arguments here are too brief, a more complete argument for the conclusions similar to these rst two
points, see Andrei Marmor, “An Institutional Conception of Authority” in Philosophy and Public Aairs Vol. 23,
No. 3 (2001); 238-261.
38
Importantly, it is only necessary that persons generally obey the law because a system of law need change the
behavior of all members of society to change a practice. is will give individuals some latitude in determining
when they ought obey the law, but it does not free anyone from this obligation.
includes the rule that members of society ought obey they law, and these individuals are
members of society, they ought to generally obey the law.
It is important to stress that this explanation is able to address the problem faced by
Klosko and Arneson. eir accounts use the principle of fairness to argue that persons owe a
fair contribution to the government because of the way it supplies individuals with public
goods. While these arguments do well to show that persons have a duty to pay a fair share of
taxes, they do not suciently explain why persons have an obligation to obey the law as it
demands. Arneson and Klosko do not explain how the fact that a law requires an action can
give sucient reason to take that action even when an alternative action would do more good
or one believes the law to be unjust. e argument above is specically meant to address these
cases and explain why we have a legal obligation in particular; we have an obligation to obey the
law rather than merely a debt of fair contribution because the cooperative scheme of a system
of law consists of the essential rules that citizens ought generally obey the law. is explanation
is potentially able to address the two problems that Rawls poses for any account of legal
obligation. First, our moral obligation to obey the law is an obligation to the other members of
society who cooperative in the system of law. us, our obligations to others can potentially
give us moral reason to take an action that we otherwise ought not take. Second, since our legal
obligation arises from following the rules of the legal system as a whole, we might be obligated
to obey particular laws that we believe to be unjust so long as those laws emerge from a legal
system that is suciently just as whole.
4.2 Conditions on Legal Obligation
Above, I argued that the principle of fairness can ground legal obligation so long as (a) the
well-functioning of that system of law is in an individual’s interests and (b) the particular
system of law is suciently just. Now, it might be near impossible to articulate a full set of
e Principle of Fairness, Legal Obligation and the Value of Choice
- 30 -
standards that could determine when these two conditions are met. Instead of doing so, I will
here only explain why a system of law is likely to be in a person’s interest and why a system of
law that is not open to choice does not violate the liberal condition on justice.
What makes this task easier is that the reason why the well-functioning of a system of
law is in a person’s interest is the same reason why the system of law need not be open to choice
to satisfy the liberal condition. is shared reason is that a system of law is necessary for social
cooperation. First, since participating in society is in an individual’s interest, a well-functioning
system of law will be in an individual’s interest. Second, I argued in §2 that those practices that
are necessary for social cooperation need not be open to choice in order to respect the value of
choice. As such, in order to show that a system of law is likely to meet the two conditions of PF,
I only need to show that a system of law is necessary for social cooperation.
While it is surely true that a legal system like those of contemporary states is not
necessary for social cooperation, there needs to be some legal system that can be the
authoritative interpreter and promulgator for the rules of social practices. As argued above,
cooperation can only occur when individuals coordinate their activity in accordance with
shared rules. A system of law is necessary as the legitimate authority that determines these
shared rules, so (some form of) a system of law is necessary for social cooperation. For
instance, a practice of property rights seems to be necessary for social cooperation, but there
must be some legitimate authority that determines and species the details of a system of
property. ere might be loose conventional rules that specify who owes what and the extent of
such ownership, but these loose rules will not be sucient to settle conicts or disputed claims.
For this reason, there needs to be some legitimate arbitrator who promulgates the legitimate
e Principle of Fairness, Legal Obligation and the Value of Choice
- 31 -
rules of property and who can interpret those rules when need be.
39
A system of law fullls this
role for a practice of property as well as for any other social practices that come under similar
conict.
ere are many other reasons besides the Liberal Condition why a system of law might
not be suciently just, so we should not suppose that all (or even most) systems of law would
be suciently just. Likewise, there are many ways in which a system of law might not be in an
individual’s interest even if systems of law are generally in persons interests. As such, there will
be much more to say in order to evaluate whether any particular system of law gives rise to
legal obligation. What is most important for present purposes, however, is that it is possible for
legal obligation to be grounded by the revised principle of fairness. I have shown that a system
of law is likely to be in individuals’ interests and can be suciently just while participation is
not open to choice. us, for any system of law that is suciently just the revised principle of
fairness can ground individuals’ obligation to follow the law.
e Principle of Fairness, Legal Obligation and the Value of Choice
- 32 -
39
Similarly, Samuel Freeman writes, “Some political framework is needed in any (non-primitive) society for
making, revising and applying the social rules that make cooperation possible, and for adjudicating disputes
arising under them. Otherwise, a social group is governed by static customs and in unable to eectively respond to
changing circumstances and necessities.” in “e Basic Structure of Society as First Subject of Justice” in Blackwell
Guide to Rawls [?] (forthcoming).
