Abstract:
Some political action is legally relevant: it has an impact on the law, defined as the change in legal rights and obligations (powers, privileges, immunities or liabilities) that obtains, without further political action, as a result of some such action. Consider some standard examples – enacting statutes, adopting regulations, deciding cases. What precise aspect of this kind of action is legally relevant? Why so – what gives a given aspect of institutional action legal relevance?
On the orthodox view, institutions shape the law by communication. The fact that a certain statute was enacted and what its text means together explain the impact of its enactment on the law. On some competing views, institutional communication is only part of the explanation. The law further includes standards that justify institutionally produced norms, or excludes institutionally produced norms that fall below some threshold of decency. On such views, it is not true that history and language alone explain the legal impact of institutional action. Substantive normative considerations, plausibly narrowly moral ones, are part of the explanation.
Confining our attention to the way in which these two kinds of view differ, however, is misleading. On some other views, morality does not directly determine legal impact. It explains why the other, nonnormative aspects of political action have legal relevance. The more fundamental controversy brings into play the often overlooked second question singled out above, of what gives legal relevance to certain aspects of the practice.
The fundamental controversy also arises in connection with the explanation of some other phenomena, including making a promise, decision or request – actions or attitudes which are generally understood to result in some distinctive obligations or to have some other distinctive normative significance or impact, or at least to be capable of so doing. The relevant theoretical choices are posed particularly clearly in these domains, so I will explore them in some detail in relation to promising.
Stavropoulos, Nicos, Obligations and the Legal Point of View (November 8, 2011).
First posted 2011-11-09 07:47:04
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