Reviews
| Date | 01 March 1999 |
| Published date | 01 March 1999 |
| DOI | http://doi.org/10.1111/1468-2230.t01-1-00209 |
REVIEWS
Hilaire McCoubrey,The Obligation to Obey in Legal Theory, Aldershot:
Dartmouth, 1997, viii + 228 pp, hb £39.50.
This is an extremely frustrating book to read. The concluding paragraph provides a
loose ‘description of broad categories of elements associated with the phenomenon
of ‘‘law’’’; an observation that questions of obligation feature significantly within
this loose description; and, in the final sentence of the book, the oddly tentative
remark that ‘the understanding of the association of obligation(s) with law is a core
element of jurisprudential study and, thus, a case may be made out that the
development of a modern theory of legal obligation may also be the key to a
modern treatment of general legal theory’ (p 218). This much could have been
gleaned from an intelligent reading of the title accompanied by a fleeting
acquaintance with the phenomenon of law.
It is true that, in the Foreword, the author reduces our expectations as to what the
title may convey for this book. We are explicitly told not to anticipate ‘some new
substantive theory of ‘‘obligation’’’; but the promise is nevertheless held out of a
‘contextual analysis of the obligation(s) to obey’, which will demonstrate the
misconceptions underlying existing controversies, and deliver ‘a means whereby a
more fruitful analysis of a complex central legal phenomenon may be advanced’ (p
vii). This promise is repeatedly echoed in the comments found towards the end of
each of chapters 1–7 (at pp 12f, 46, 86, 123, 157, 180, 199) which indicate the need
to recognise the different categories, or concepts, or species, or forms of the
obligation to obey law within a theoretical framework in which they can be related
but also kept distinct.
These seven chapters commence with a briefer introductory chapter where the
main credit for noting the central obligatory characteristic of law is given to H.L.A.
Hart and the three categories of legal obligation are unwrapped – the coercive, the
formal or intra-systemic, and the moral. There then follow four chapters surveying
general theories of law in which the theorists’ attitudes to legal obligation are
sketched. This part of the book reads much like a jurisprudence textbook but the
author’s aim is to reveal the need to distinguish the different categories of
obligation in order to obtain a clearer grasp of the more general jurisprudential
differences exhibited. Next comes a case study of the obligation to comply with
superior orders, which again stresses the importance of distinguishing different
forms of obligation and recognising the possibility of conflict between them. The
last of these seven chapters tackles the relationship between validity and obligation
with particular reference to Nazi German law. Although the different forms of
obligation have the potential to complicate the relationship between obligation and
validity, McCoubrey settles on a concept of validity which is linked solely to the
formal category of obligation and, as such, operates merely as ‘a ‘‘bracketing’’
concept which identifies the cumulative effect of the application of formal criteria
of identification’ (p 199).
It is impossible to provide a fair assessment of these seven chapters without
reading on to the final chapter, which is where we are presented with McCoubrey’s
‘Theory of Legal Obligation’; for it is in the promised exposition of the complex
ßThe Modern Law Review Limited 1999 (MLR 62:2, March). Published by Blackwell Publishers,
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relationships between the different forms of obligation (eg, pp 12, 46, 180) that the
full impact of these earlier studies can be appreciated. However, it should be said
immediately that the first seven chapters of the book are unconvincing. The general
jurisprudential material is eclectic, selected at times in a stimulating manner, but
contains passages it would be disturbing to discover in a jurisprudence textbook –
notably, the passing suggestion that Kelsen found ‘little or no role’ for obligation
(p 5). Moreover, in its treatment of the jurisprudential material the book is
inadequate. The debate between natural law and positivism is covered in complete
disregard of the contributions made by Joseph Raz in The Authority of Law in 1979
and by John Finnis in Natural Law and Natural Rights in 1980, and in subsequent
writings by these and other authors. The studies of superior orders and the
relationship between validity and obligation are premised upon the particular
approach to obligation(s) that the author takes without that approach being fully
expounded. One must question the prudence of writing seven chapters of an eight
chapter book which substantially depend upon a theoretical underpinning that is
withheld until the final chapter. Keeping the reader in the dark until the last chapter
may have worked for Agatha Christie, but it is less gripping in a work of legal
theory.
The final chapter is a tremendous disappointment. The central analytical device
employed by McCoubrey is a Venn diagram composed of three intersecting circles
representing the three categories of obligation – coercive, formal and moral (p
211). This is accompanied by less than three pages of surrounding text which
comment on the significance of the various sectors of the diagram, and little less
than a page which seeks to illustrate how the insights conveyed by this analysis can
be addressed to the different jurisprudential theories considered earlier in the book.
The preceding and following parts of this chapter consist of highlighting points
already covered in the previous chapters so as to reiterate the importance of
establishing a theoretical framework in which the relationships between the three
forms of obligation can be worked out, and the suggestion that a theory of legal
obligation relates to the central issues of general jurisprudence. The actual
exposition of the theoretical framework is accordingly limited to McCoubrey’s
Venn diagram and four pages of text.
The central sector of the diagram – where coercive, formal and moral overlap –
is taken by McCoubrey to represent a Thomist conception of a complete or ‘ideal’
law, which ‘satisfying formal criteria of identification is purposively appropriate
and backed by the potential for coercive enforcement’ (p 211). But McCoubrey
does not in fact use the term law to signify the phenomenon captured in this sector
of ‘maximum interaction’, preferring to call it a norm. This point of terminology
raises a fundamental query concerning McCoubrey’s diagram. It is without title –
the three circles being independently termed ‘moral obligation’, ‘coercive force’,
and ‘formal obligation’ – but he introduces it as depicting ‘the three forms of
obligation associated with law’ (p 210). The inference from the introductory
paragraph (and from the rest of the book up to this point) is that what we find
within the various sectors are obligations relating to laws of various hues – in some
way or another paler as we move out of the central sector which relates to the
Thomist complete law. But the diagram itself has no label to signify this, and the
commentary thereafter moves first from laws to norms, and then, in further sectors,
on to the ‘ ‘‘naked’’ phenomena’ of moral obligation and coercive force which
‘relate to a much wider field of action than that of positive law’ (p 212). In other
words, the diagram as a whole does not merely represent obligations associated
with law.
March 1999] Reviews
ßThe Modern Law Review Limited 1999 311
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