What Legal Theories Shape Obligation In Contemporary Jurisprudence? Unravelling The Influence Of Moral, Social, Political, Historical, And Other Contexts
Vidhi Santosh Rane, O.P. Jindal Global Law School (Sonipat)
Introduction
All legal systems, in one form or another, recognize, create, vary, and enforce obligations. A layman understands "obligation" to be synonymous with "commitment." However, the realm of obligation under jurisprudence is far wider than that. To have an obligation is to have a reason or a legal, moral, social, or political duty to act or refrain from acting in a particular manner; a moral requirement that one imposes on himself1. Obligations are crucial to the law's social function and knowing them is essential to comprehending the law's authority and, hence, its character. It is a moral requirement that we impose on ourselves. As human beings, we are born with a sense of obligation. It may require us to fight wars, pay taxes, abide by traffic rules, etc. Further, legal obligations are followed due to a threat of sanction or certain social obligations to fit into a society. We also seem to have an implied obligation to one another. While it would be wrong to suggest that the law can be reduced to obligations, it is none the less true that it could aid in understanding with reference to them.2 Nonetheless, despite the fact that obligations are an essential component of the law, there might be a conflict when different forms of obligations are involved.
HLA Hart's soft positivism, in my opinion, does the best job of comprehending law via obligations. Soft positivism considers two fundamental ways in which a law might exist. The first is through the practise thesis, which holds that law can exist in society as a matter of practise and observance even if it is not officially recognised to be law. Second, it acknowledges that the legal system may allow a court to use a moral criterion in deciding a case. The key to understanding Hart's positivism is to appreciate the nature of obligation3. Hart contended that viewing law as a sovereign command backed by a threat ignores the element of obligation that constitutes law. He further argues against the command theory by using the example of a robber threatening to shoot if one does not obey his orders. Applying the command theory, the robber's command can be seen as a guarantee because one can see the act of handing over the money as a threat of sanction. But, in this situation, the robber's command is not seen as obligatory. This proves that the obligatory nature of certain obligations changes depending on the circumstance and the authority figure that gives that command. On the other hand, there are certain obligations that are observed by a "normal" society not because they fear retribution but because they are thought to be the right thing to do. This can again be understood as the ruLes that we are all obliged to follow because it is the moral thing to do, or even aid, to criticise the actions of others. Here is where the idea of an internal aspect of a legal rule comes into play. Hart argued that the sense of obligation allows us to focus on the internal aspect apart from the external manifestation. It makes a distinction in law between a fact and an obligation. This distinction can be understood with an example: It is a law in Karnataka that anyone under the age of eighteen must not consume alcohol. This is just an external manifestation of the rule, a fact. But, if we consider the following: the following of traffic signals, most people feel obliged to follow them, even when no fear of sanction is involved. This is the internal aspect of the law, which has an innate obligatory nature. To quote another example here, the recent spread of the COVID-19 virus resulted in the imposition of travel laws in each state, preventing several religious festivals from being observed. People, on the other hand, respected the law and could not claim that they did so out of fear of retribution. Thus, it is right to say that, in order to fully understand a law, it is of utmost importance that one focus on the internal aspect of the law, which can be understood only through an understanding of obligations. Hence, a theory that associates law solely with sovereign commands is flawed from the outset.
Kommentarer