COERCIVE ENFORCEMENT AND A POSITIVIST THEORY OF LEGAL OBLIGATION Cover Image

COERCIVE ENFORCEMENT AND A POSITIVIST THEORY OF LEGAL OBLIGATION
COERCIVE ENFORCEMENT AND A POSITIVIST THEORY OF LEGAL OBLIGATION

Author(s): Kenneth Einar Himma
Subject(s): Philosophy of Law
Published by: Правни факултет Универзитета у Београду
Keywords: Legal obligation; Coercion; Enforcement; Legal positivism;

Summary/Abstract: The concept of legal obligation is utterly central to legal practice. But positivism lacks a comprehensive account of legal obligation, focusing only on the second order recognition obligations of officials with no account of the first-order legal obligations of citizen. As legal obligations are conceptually related to legally valid norms, this failure calls into question positivism’s theory of legal validity. In this essay, I develop Hart’s account of social obligation and supplement his account of the second-order legal obligations of official qua official with an account of the firstorder obligations of citizens. The latter is constituted, I argue, by social pressure in the form of the authorization of the state’s coercive machinery for non-compliance.

  • Issue Year: 60/2012
  • Issue No: 3
  • Page Range: 216-242
  • Page Count: 27
  • Language: English
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