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THE DUTY TO GOVERN

Published online by Cambridge University Press:  01 December 2007

Leslie Green
Leslie Green*
Affiliation:
University of Oxford
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Abstract

Contemporary legal philosophers have focussed their attention on two aspects of the general theory of authority: the issue of legitimacy (or the right to govern) and the issue of obligation (or the duty to obey). In John Finnis's work we have a powerful statement of the importance of a third issue: the problem of governance (or the duty to govern). This paper explores the nature of this duty, its foundations, and its relation to the other aspects of a theory of authority.

Type
Research Article
Information
Legal Theory , Volume 13 , Issue 3-4 , December 2007 , pp. 165 - 185
Copyright
Copyright © Cambridge University Press 2008

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References

1. John Finnis, Revolutions and Continuity of Law, in Oxford Essays in Jurisprudence 76 (2nd ser., A.W.B. Simpson ed., 1973).

2. John Finnis, Natural Law and Natural Rights (1980), at 246.

3. John Finnis, Aquinas: Moral, Political, and Legal Theory (1998), at 283.

4. I am as guilty as anyone else. I failed to recognize governance as a separate problem in Leslie Green, The Authority of the State (1990); and also in Green, Law and Obligations, in The Oxford Handbook of Jurisprudence and the Philosophy of Law 514–547 J. Coleman and S. Shapiro eds., 2002).

5. On the jurisprudential significance of metaphor, see H.L.A. Hart, The Concept of Law (2nd ed., J. Raz & P.A. Bulloch eds., 1994), at 117.

6. See Paul Verkuil, Outsourcing Sovereignty: Why Privatization of Government Functions Threatens Democracy and What We Can Do about It (2007).

7. At any rate, citizenship in a democracy; see Politics, BK. 3, 1274b33–1275a34.

8. Finnis, supra note 2, at 246.

9. See, e.g., Joseph Raz, The Morality of Freedom (1986), at 56; Green, Authority, supra note 4, at 73–75.

10. Finnis, supra note 2, at 247, emphasis mine. And cf. 246.

11. Joseph Raz, Practical Reason and Norms (1990), at 159–160.

12. Hans Kelsen, Pure Theory of Law (M. Knight trans., 1967), at 230–231. I have slightly amended the translation.

13. Hart, supra note 5, at 84–85. On the difference between Kelsen and Hart's views of normativity, see Joseph Raz, The Authority of Law (1979), at 134–143.

14. This formulation is too simple but adequate for present purposes. For some complications see Joseph Raz, The Concept of a Legal System (2nd ed., 1980), at 202–205.

15. Finnis, supra note 2, at 155, 255.

16. Compare his discussion of Aquinas's list of defeating conditions: Finnis, supra note 3, at 272–274.

17. Finnis, supra note 2, at 232.

18. Leslie Green, Law, Co-ordination, and the Common Good, 3 Oxford J. Legal Stud. 299–234 (1983).

19. Finnis, supra note 2, at 234.

20. For some amendments or perhaps clarifications, see John Finnis, Law as Co-ordination, 2 Ratio Juris 97–104 (1989).

21. For an adumbration of that view, see Robert Ladenson, In Defense of a Hobbesian Conception of Law, 9 Phil. & Pub. Aff. 134 (1980); and William A. Edmundson, Three Anarchical Fallacies: An Essay on Political Authority (1998), at 7–70.

22. Finnis, supra note 3, at 269.

23. I discuss some other variants in Green, Law, supra note 4, at535–539.

24. Elizabeth Anscombe, On the Source of the Authority of the State, 20 Ratio 17 (1978).

25. I bypass the questions of whether this reasons amounts to a duty and whether she would have any enforcement rights (probably not).

26. See Eyal Benvenisti, The International Law of Occupation (1993).

27. Anscombe, supra note 24, at 172.

28. George Klosko, The Principle of Fairness and Political Obligation (1992).

29. Raz, supra note 13, at 9 (emphasis added).

30. Jeremy Waldron, Authority for Officials, in Rights, Culture, and the Law: Themes from the Philosophy of Joseph Raz (L. Meyer, S. Paulson & T. Pogge eds., 2003), at 50. For further discussion of Waldron's view, see Leslie Green, Three Themes from Raz, 25 Oxford J. Legal Stud. 509–513 (2005).

31. Finnis, supra note 2, at 232.

32. Locke thought this was true of parental authority, see below. The nineteenth-century Presbyterian theologian C.G. Finney thought it held more generally:

The mere fact, that one being is dependent on another, does not confer on one the right to govern, and impose upon the other obligation to obey, unless the dependent one needs to be governed, and consequently, that the one upon whom the other is dependent, cannot fulfil to him the duties of benevolence, without governing or controlling him. The right to govern implies the duty to govern. Obligation, and consequently, the right to govern, implies that government is a condition of fulfilling to the dependent party the duties of benevolence.

C.G. Finney, Lectures On Systematic Theology, Embracing Lectures On Moral Government Etc. (1846), Lecture 2 (emphasis added).

33. Finnis, supra note 3, at 283 (emphasis added).

34. For a helpful account, see K. Haakonsen, Natural Law and Moral Philosophy: From Grotius to the Scottish Enlightenment (1996).

35. Id. at 236.

36. Finnis, supra note 2, at 230.

37. James VI of Scotland, The True Law of Free Monarchies (1598). I have modernized the spelling.

38. Locke, Second Treatise (1690) sec. 67.

39. A.V. Dicey, The Law of the Constitution (1959) (10th ed.,), at 68 n.

40. Locke, supra note 38, sec. 69.

41. For an argument that some duties of parenthood, including the duty to discipline children, cannot be delegated without fundamentally distorting the nature of parenthood, see Alon Harel, Why Only the State May Inflict Criminal Sanctions: The Vices of Privately-Inflicted Criminal Sanctions, (2007) (unpublished manuscript, on file with the author).

42. Locke, supra note 38, sec. 141 at 363.