Obligation: A Legal-Theoretical Perspective

© Springer International Publishing Switzerland 2015
Michał Araszkiewicz, Paweł Banaś, Tomasz Gizbert-Studnicki and Krzysztof Płeszka (eds.)Problems of Normativity, Rules and Rule-FollowingLaw and Philosophy Library11110.1007/978-3-319-09375-8_11

11. Obligation: A Legal-Theoretical Perspective

Stefano Bertea 

Law School, University of Leicester, Leicester, UK



Stefano Bertea


In this study, I intend to contribute to a better understanding of what kind of thing an obligation is and what its defining features are. Central to the conception I will put forward is the idea of obligation as having two essential aspects: one of these lies in the internal connection of obligation with moral practical reasons and is accordingly rational and moral; the other one instead lies in the conceptual link between obligation and requiredness, or mandatory force. In combination these two aspects, which interlock to form what I would call the duality of obligation, frame obligation as a rational and morally justifiable categorical requirement.


11.1 Introduction

In this contribution I intend to discuss a specific component of rules: the obligatory component incorporated in some rules and rule-like standards. I thus scrutinise the notion of obligation, which I consider a central element to both ruleness and the practice of rule-following. And I will do so from a distinctive perspective, that of a legal theorist.

From the vantage point of legal theory one can appreciate that law, rules, and obligation are intimately connected and ultimately inseparable. This is not to say that any legal system consists either exclusively or primarily of rules or that all legal directives are obligatory. In fact, there is broad recognition in contemporary jurisprudence that law both consists of different kinds of standards—some of which arguably do not have the structure of a rule (think of principles and policies, for instance)—and at least occasionally fails to generate obligations.1 Yet the claim that law, rules, and obligations stand in a close relationship is hardly deniable, this for a number of reasons. First, law is generally understood to be deeply shaped by regulative norms: an important part of the legal domain has to do with statements prescribing courses of conduct and instructing individuals on how they ought to behave. The recognition of the prescriptive structure of law provides strong support for the thesis that key legal statuses can be expressed only through the use of such notions as those of obligation and duty, along with their correlate, the notion of a right2. Secondly, paradigmatic legal materials—such as statutes, judicial decisions, and legal commentaries—make reference to obligations either directly, by specifying what one is obligated to do, or indirectly, by attributing rights, powers, and privileges to some of us, which positions are intrinsically connected to the obligations of other individuals. Likewise, practitioners in legal proceedings (judges, prosecutors, lawyers, and juries) as well as citizens in their ordinary lives, frequently make claims about which obligations arising out of law certain individuals have in specific circumstances. This means that the deontic language, including the language that explicitly refers to obligation, is pervasive in discourse within and about law. This widespread attitude is deeply rooted in our practices and experience. For, on the one hand, phrases such “being under an obligation” and “being required” are typically used in connection with law and legal requirements; on the other hand, the vocabulary associated with obligation has entered the philosophical debate with the “law conception” of ethics, which over the centuries has progressively replaced virtue ethics as the dominant ethical approach in the Western tradition.3 Finally, law, rules, and obligation are regarded as going hand in hand, because a legal system is commonly understood to be an authoritative institution. Now, an essential component of what is ordinarily meant by having or claiming authority in practical matters consists in having or claiming the legitimate power to influence or even control the normative standings of others. And one of the paradigmatic ways (though certainly not the only way) in which the normative standings of others can be affected consists in creating rule-based obligations binding on them.

This extensive use of rule- and obligation-related notions and language contributes to entrenching the widespread belief that legal systems use their rules (and other prescriptive standards) in an effort to impose obligations, and that they actually succeed (at least sometimes) in determining the duties of those subject to the same systems. This being the case, law, rules, and obligation are regarded as conceptually connected even by those legal theorists who, quite understandably, object to reducing law to a merely obligation-imposing system of rules, and who instead opt for a conception under which the normative dimension of law encompasses more than just rules and obligations. These theorists accordingly conceptualise a legal system as an order framed by different kinds of normative standards, and as having the capacity not simply to bring obligations into being but also to confer powers, grant permissions, and attribute immunities, just to name a few of the normative statuses that can be kept distinct from obligation. On these grounds, a significant number of legal theorists, especially within mainstream jurisprudence, agree that an account of the obligatory dimension of legal rules must be central to the philosophical study of the concept of law and other fundamental legal concepts. Related, they recognise that the distinctive way in which law governs human conduct can hardly be made intelligible without bringing in the idea of obligation.

In consideration of the fact that obligation is regarded as a notion that figures centrally in the experience and practice of law, I will focus here on the idea of obligation to determine what kind of thing an obligation is and what its defining features are. In pursuing this aim I will work toward a theoretical account of obligation by reflecting on the fundamental characteristics of obligation understood as a concept with its own distinctive defining features.

The basic assumption underlying the discussion is that obligation singles out a general idea used in different realms and is accordingly given different meanings in different contexts. This differentiation is attested, for instance, by the fact that we ordinarily speak not only of obligation, period—obligation simpliciter—but also of moral obligations, social obligations, legal obligations, associative obligations, positional obligation, and natural obligations, just to name a few. Despite this range, obligations of different varieties are regarded not as referring to altogether disparate notions but as pointing to the existence of a general overarching idea—obligation simpliciter—to which specific kinds of obligation can be traced and from which they derive. For this reason in this contribution I will argue for an account of obligation in general, addressing such questions as What is an obligation? and How can obligation be distinctively characterised? The account of obligation so provided can then be used as the fundamental benchmark against which to critically assess the models of legal obligation currently defended, and as the essential tool making it possible to move beyond the current debate in legal theory, putting forward an account of legal obligation irreducible to the ones presently discussed and superior to them, or so I think.

11.2 The Essential Traits of Obligation

The chief aim of this section is to single out the general traits, or set of properties, which in the existing literature are commonly associated with the notion of obligation. This should give us a general meaning of what an obligation is, that is, a concept of obligation as distinct from a conception, or theoretical account, of obligation. A concept of obligation is meant to mark the boundaries within which a theoretical debate on obligation is to take place: it thus identifies the ground common to otherwise conflicting, or at least alternative, theoretical views. By contrast, a conception of obligation will identify a far more controversial view of obligation, a view closely aligned with the specific philosophical preferences underlying one’s approach to obligation as well as with the specific contents, criteria, and conditions of existence that different theorists associate with obligation.4 The perspective I will take in this section will thus be theoretically lightweight: rather than embarking on a potentially controversial and partisan analysis of obligation, I will extract from the literature the current views of what an obligation is so as to reduce them to a common core encapsulating a broad understanding of obligation, or a general framework within which to think about obligation.

Since in this section I will be discussing the traits that define obligation as a (distinctive) concept, the resulting characterisation—to be interpreted as providing us with a general meaning of obligation—should be expected to be “thin” and tolerant. In this sense, the concept should be able to accommodate a vast range of specific accounts, or conceptions, of obligation reflecting the distinct philosophical perspectives endorsed by those who have defended those accounts. At the same time, this general meaning of obligation is neither pointless nor irrelevant. While it does not give a comprehensive answer to the basic questions about obligation, as these questions are debated among those who study obligation, it at least makes sense of them. Accordingly, the general meaning of obligation that will be introduced in this section will be framed in terms sufficiently clear and precise to render intelligible such questions as What is the nature of obligation? How are obligation and “ought” related? What is the distinctive force of an obligation? Is the existence of an obligation independent of the specific perspective, goals, interests, and desires of those who are subject to that obligation, or is it rather ultimately tied to those persons’ attitudes? How is obligation related to other paradigmatic normative notions like justification, reasons, responsibility, and wrongness? What is the kind of justification, if any, that should be associated with the existence of obligation? Is obligation essentially tied with sanction and coercion, or at least with the possibility of sanctioning and coercing deviant conduct? and What kinds of entities—persons, institutions, states of affairs—can have or lack the property of obligating?

11.2.1 Obligation as a Normative and Practical Notion

Among the traits most commonly associated with obligation are practicality and normativity.5 Obligation is a concept at once practical and normative, since it can be so described: (a) on the practical side, it serves as a means by which to guide our conduct (and so is action-related) and (b) on the normative side, it does so by providing a basis for judging conduct as good or bad, or right or wrong, worthwhile or worthless, and the like. Obligation thus sets itself up as a practical ought:6 it indicates that which an agent ought to do, and can accordingly be broken down analytically into an “ought” component (the normative part) and a “do” component (the practical part).

This breakdown helps us to distinguish obligation, on the one hand, from that which is practical but descriptive (indicating not what agents ought to do but what they in fact do or can be expected to do) and, on the other hand, from that which is normative but theoretical, by virtue of its depicting an account of the world as it ought to be (not necessarily implying any agency or action on our part but mere contemplation), in turn distinguished from the world such as it is, which places us in a sphere conceptually separable from that of obligation, a sphere at once theoretical and descriptive, that of the “is”.7

11.2.2 Obligation as a Non-trivial Requirement

An obligation is widely understood as a requirement. Our having an obligation means that we are bound, or required, to act in accordance with what the obligation prescribes. Thus, there is in obligation the idea of a binding ought, or requiredness: an obligation does not make something desirable and good; it makes conduct exactable and compulsory.8 More to the point, an obligation encapsulates a demand that, if recognised as valid, has the quality of a pronouncement urging one to engage in some course of conduct. This means that obligation is conceptually connected to an imperative, making any alternative course of conduct normatively ineligible and unviable: when an obligation exists, there is just one course of action that, normatively speaking, is available to the agent. Obligation, in sum, is a kind of necessitation issuing from a binding directive whose nature is imperative.

In addition, the kind of requirement associated with the existence of an obligation is widely understood to be more than just trivial. Obligation is associated with a stringent compelling force.9 To further elaborate on this point, the form of demandingness accompanying an obligation is peculiar in a twofold sense. On the one hand, we cannot be said to have an obligation if we can easily dispose of it or effortlessly free ourselves of it. An obligation is a serious constraint. As such it is non-optional: it puts genuine pressure on us by significantly limiting our practical freedom. In that sense, obligation comes with a built-in resistance, since it is stringency that distinguishes obligation from other forms of ought. This also means that those under an obligation are not in the position to legitimately remove that obligation or distance themselves from it. In the words of David Owens (2008, p. 404), an obligation is

something that takes the matter out of your hands: it is no longer up to you to judge whether doing the required thing would be best, all things considered.10

On the other hand, the pressure you have when you are under an obligation is not inexorable. The necessity of obligation (its demanding that you do something) is normative, not metaphysical or logical: it is not a conceptual kind of necessity. Precisely for this reason obligations can as a matter of practical possibility be ignored and violated. Likewise, we can even act against the requirements set by the obligations we have. In so doing, we challenge, and so disobey, a real constraint imposed on us: a decision to so act will not come without consequences, to be sure; but the act is neither naturalistically nor metaphysically impossible.

11.2.3 Obligation and Responsibility

Finally, obligation is widely thought to be inextricably connected to responsibility: if we are under an obligation, we are responsible for complying with the corresponding requirement. In this context, responsibility means both “answerability to others” and “liability for one’s own failure.” For, on the one hand, those subject to obligations are regarded as responsible in the sense that they can be called to account for their action and can be made to respond to charges (let us call this “responsibility as answerability”). If we are under an obligation, then, we are accountable or can be held accountable for our conduct. On the other hand, if we fail to honour an obligation, we will be responsible in the specific sense of being liable to some negative reaction from others (call this “responsibility as liability”). This additional sense of responsibility stems from the fact that (a) violating an obligation is prima facie an act of wrongdoing, and (b) we are presumptively entitled to regard those acting in breach of their obligations as wrongdoers, that is, as persons who in some way can justifiably be rebuked. Obligation, accountability, and liability should thus be treated as interdefinable notions.

11.3 A Theoretical Account of Obligation

Thus far I have argued for a view of obligation as a practically normative requirement that makes a nontrivial claim on us, who in turn are both bound to comply with it and responsible for our compliance or disobedience. I take this to be the general meaning, or concept, of obligation, a meaning that any competent user of the term “obligation” would acknowledge as the core idea of obligation.

In this section I will be building on this general concept to develop a conception of obligation. To this end, I start out from the body of material about obligation that I have just introduced and then I critically synthesise this material so as to make the idea of obligation fully intelligible. This will give us a theoretical account of obligation, namely, a framework in which the general traits widely associated with the existence of obligation find meaning by virtue of the broader and more comprehensive picture they are part of. This means that we will be leaving the relatively uncontroversial territory of the ordinary understanding of obligation and moving into a partly uncharted territory where theoretical considerations informed by potentially controversial assumptions and presuppositions need to be introduced and defended.

11.3.1 Obligation, Justifications, and Reasons

In the reconstruction offered in Sect. 11.2, it was claimed that obligation is widely regarded as a practical and normative notion. Describing obligation as a normative notion, thus locating it within that broader domain, implies that it will not suffice to frame obligation as something that guides conduct; by contrast, it has to do so in a certain way, by providing reasons for us to so behave.

This intuitive idea can be worked into a more specific thesis, which I will be calling the “reasons thesis”11. The reason thesis states that reasons are essential to normativity in a constitutive sense, in that they define what it means for something to be normative. Accordingly, normative discourse essentially consists in reasons offered in support of this or that course of conduct. This is to say that the reasons thesis posits reasons as the fundamental normative concept, the concept to which any other notion inhering in the normative dimension of human experience must be traced, and in terms of which any other normative notion can ultimately be captured.

The statement of the reason thesis carries direct implications for the study of obligation. If we accept that obligation is a practical normative concept and that, as such, it belongs in the realm of practical normativity—a realm where nothing becomes normative except through the use of practical reasons (this is the reasons thesis, or rather, its practical instantiation)—then we should be able to conclude that obligation itself is essentially defined by the use of practical reasons. A conceptually necessary link, therefore, obtains between obligation and practical reasons, to the effect that something can be regarded as obligatory only by virtue of its being supported by reasons for action. In turn, obligation rests in an essential way on the use of reasons. That is, obligation cannot be fully understood unless its indispensable and essential reliance on practical reasons is made apparent.12 Hence the central position a discussion of the meaning of a practical reason occupies within a theory of obligation shaped by the reasons thesis.

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