Coercive enforcement and a positivist theory of legal obligation
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 first-order 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.
Keywords:
legal positivism / legal obligation / enforcement / coercionSource:
Anali Pravnog fakulteta u Beogradu, 2012, 60, 3, 216-242Institution/Community
Pravni fakultet / Faculty of Law University of BelgradeTY - JOUR AU - Himma, Einar Kenneth PY - 2012 UR - https://ralf.ius.bg.ac.rs/handle/123456789/1550 AB - 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 first-order 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. T2 - Anali Pravnog fakulteta u Beogradu T1 - Coercive enforcement and a positivist theory of legal obligation EP - 242 IS - 3 SP - 216 VL - 60 UR - conv_3101 ER -
@article{
author = "Himma, Einar Kenneth",
year = "2012",
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 first-order 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.",
journal = "Anali Pravnog fakulteta u Beogradu",
title = "Coercive enforcement and a positivist theory of legal obligation",
pages = "242-216",
number = "3",
volume = "60",
url = "conv_3101"
}
Himma, E. K.. (2012). Coercive enforcement and a positivist theory of legal obligation. in Anali Pravnog fakulteta u Beogradu, 60(3), 216-242. conv_3101
Himma EK. Coercive enforcement and a positivist theory of legal obligation. in Anali Pravnog fakulteta u Beogradu. 2012;60(3):216-242. conv_3101 .
Himma, Einar Kenneth, "Coercive enforcement and a positivist theory of legal obligation" in Anali Pravnog fakulteta u Beogradu, 60, no. 3 (2012):216-242, conv_3101 .