A Theory of Legal Obligation

• Applicant: Stefano Bertea, Ph.D.
• Subject Area: Principles of Law and Jurisprudence ; Practical Philosophy
• Term: from 2016 to 2024
• Project identifier: Deutsche Forschungsgemeinschaft (DFG) - Project number 317277538

The project addresses an important legal issue, that of legal obligation. Law and obligation are widely regarded as closely connected by virtue of the authoritative structure of the law. The law exercises authority, or at least claims it; and an essential component of what is ordinarily meant by exercising or claiming authority lies in the legitimate power to create obligations, thereby modifying the normative standing of those who come under the authority of the law. Once we understand the law as an authoritative institution, thus, we can see that its connection to obligation is inherent and conceptual. Hence the centrality of obligation within the legal sphere and the central place that an account of obligation comes to have in legal studies.Now, any explanation of legal obligation aspiring to some degree of comprehensiveness must explain both the nature of the obligatory force of the law and its foundation. That is, an account of legal obligation has to elucidate both what enables the law to hold us bound to do anything and why legal requirements should be taken to be binding. In working toward an explanation of legal obligation, thus, we must operate on two levels, identifying on the one hand a concept of legal obligation, and on the other the basis of the obligatory force of the law. This two-pronged exploration sets up a number of questions for one to address: in conjunction with the definitional question “What is legal obligation?”—or “What do we mean by obligation and how does it apply to legal contexts?”—we must also ask “Why ought one to do what the law requires?” and “Whence does the obligatory force of legal requirements come?” or, stated otherwise, “What makes the law binding?” These are the questions around which the project is framed: they are tackled by working together into a coherent whole a theoretical investigation and a practical one. Each feeds into the other, since the very concept of legal obligation is clarified by showing how obligation makes its way into the practices out of which law is made, a process through which we can show what the obligation-imposing capacity of the law rests on and where it comes from. In this way we can arrive at a conception of legal obligation—the ultimate aim of this project—that attacks the problem in a systematic fashion.

• DFG Programme: Research Grants