Legal Obligation & Its Limits
Judges decide cases by appeal to rules of general application they deem to be law. If a candidate rule resolves the case and is, ex ante and independently of the judge’s judgment, the law, then the judge has a legal obligation to declare it as such and follow it. That, at any rate, is conventional wisdom. Yet the principle is false – a rule’s being law or the judge’s believing it to be law is neither necessary nor even sufficient for a judge being legally obliged to follow it. The principle’s falsity is especially apparent in so-called hard cases, where the line between legal and non-legal rules is obscure. Moreover, judges have authority to disregard law in hard cases not because moral (or non-legal) obligations trump legal obligations. Rather, the law itself circumscribes its own authority. The implications for legal philosophy are significant; for one, a theory of juridical norms can be developed independently of the precise boundaries of legality.
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Many thanks to Gideon Rosen, Philip Pettit, Sarah McGrath, Joseph Raz, and Nat Tabris for their comments on the paper. Thanks also to Erin Miller, Scott Altman, Sam Preston, Alisabeth Ayars, H. Scott Hestevold, Michael Smith, Ahson Azmat, Kevin Clermont, two anonymous referees for Law & Philosophy, and the philosophy department at the University of Alabama, where I presented an earlier version of the paper.