REVIEWS
| Published date | 01 July 1977 |
| Date | 01 July 1977 |
| DOI | http://doi.org/10.1111/j.1468-2230.1977.tb02438.x |
REVIEWS
LEGAL
OBLIGATIONS.
By
J.
C.
SMITH.
[London:
The
Athlone
Press.
1976.
vii
and
256
pp.
f8.1
MOST
theories of law proposed by English-speaking philosophers
of
the
analytical tradition have tended to be utilitarian and positivist in spirit, even
though in recent years the positivism has become more flexible and the
utilitarianism less explicit. Such theories have been analytical rather than
teleological, have denied any necessary connection between law and morality
and have professed political neutrality. The opposite point
of
view, which is
inevitably less coherent, sees law
as
part of a much larger moral, social and
political process. Such theories tend to minimise the usefulness of analysis and
deny that legal theories can be morally or politically neutral. In this interest-
ing new book Professor
J.
C. Smith of British Columbia offers a new theory
of legal obligation that is to provide the foundation for a theory of law that
will combine the merits of these two divergent approaches. AS well as possess-
ing the virtues of current positivist theories, this new theory will “relate the
legal system to teleological considerations
”
and
“
carry implications for poli-
tical theory which should favour a free and democratic political system
”
The means Professor Smith uses to develop his theory
of
obligations are
“
the philosophical techniques and assumptions of ordinary language analysis
”
(p.
21)
which have
“
revolutionised philiosophy in the English-speaking world
”
(p.
22).
It is because these techniques have not yet been used to produce an
adequate theory of legal obligation that the dilemmas of legal theory (which
are admirably described in the first chapter) are still with
us.
Previous theories
of obligation are rejected because they are derived from philosphical theories
which contain assumptions that are
“
considered by the modern philosopher
to be false or wrong”
(p.
17).
Throughout this book it is assumed that the
modern philosopher
is
an ordinary language philosopher. Since their theories
are based on erroneous philosophy, Kelsen, Austin, Bentham, the natural
lawyers and the American and Scandinavian realists are all disposed of in only
two
pages (pp.
17-19).
Hart’s theory (which gets a far more extended treat-
ment in Chap. 11) also fails, in this case, because of its positivism. Although
his theory is described as the most accurate yet it is still fundamentally a
coercive theory: “Hart has replaced Austin’s command with a rule accepted
as a standard of behaviour, and the sanction by serious social pressure. We
are still left, however, with what is basically a coercive model of an obliga-
tion situation
”
(p.
32).
Professor Smith’s own theory is based
on
two fundamental principles: “The
first is that people consider a valid enactment or judicial decision to be law
irrespective of its content” and “The second is that there is a necessary
relationship between the concept of
‘
legal obligation
’
and
‘
ought
’
in as much
as that which we have obligation to do we ought to do” (pp.
20-21).
The
difficulties that arise from accepting both of these principles may be illustrated
by considering the unjust laws of a tyranny. It is readily admitted that not
all legal systems give rise to obligations. On p.
72
nine conditions are given
which must be satisfied by a system of rules that contains obligations. These
conditions are not ideals or aspirations, they are
‘‘
dictated by the very nature
of obligation” and are “part of the logic
of
the concept.” A system which
fails to comply will “probably not be viewed by those subject to them as
giving rise to legal obligations in an evaluative sense
”
(p.
76).
Although
“
legal
obligations in an evaluative sense
”
are mentioned in several places (pp. 59,
75, 76, 77, 78, 81, 141, 146)
their nature is never explained. This
is
not sur-
prising since their existence is denied on p.
49:
“The distinction between
evaluative and non-evaluative must be made in regard to statements about
obligations rathcr than applied to
‘
obligations
’
themselves.” To return to the
495
(p.
21).
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