It may seem like an irrelevant debate from a practical point of view. Most people don`t kill others because it`s immoral, not because it`s illegal, or because they don`t want to go to jail. Or we trust the government to make the right decision. So maybe it doesn`t seem to matter if we have a general obligation to obey the law, since most people obey most of the law. In any case, a general obligation would always leave you the opportunity to justify certain violations of the law, such as exceeding the speed limit to take a sick friend to the hospital. On another level, whether there is a moral obligation to obey the law or not, we are always subject to the law. As Austin wrote, “Well, to say that human laws that conflict with divine law are not binding, that is, they are not laws, is complete nonsense. The most harmful laws, and therefore the most contrary to God`s will, have been and are constantly enforced as laws of the courts. Let us suppose that a harmless or positively beneficial act is forbidden by the sovereign on pain of death; if I commit this act, I will be tried and condemned, and if I protest against the verdict that it violates the law of God, which has commanded that human legislators do not forbid acts that have no harmful consequences, the Tribunal will demonstrate the indecisiveness of my reasoning by hanging me, in accordance with the law, the validity of which I have disputed. (1) The basis of Rawls` theory of necessity becomes evident when we examine what it might mean for a just institution to “apply to us.” A.J. Simmons argues persuasively that an Institute for the Advancement of Philosophers cannot benefit us, no matter how righteous, and then demands that we pay its dues (Simmons 1979, 148). He therefore suggests that a normatively relevant sense of application requires accepting benefits – but that means transforming a natural mandatory account into a weakly voluntarist account like equity. (See below, § 5.3.) Jeremy Waldron diagnoses the power of such counter-examples as a consequence of the fact that the Institute, although functioning, is not something whose activities are required by the judiciary: they are optional, not necessary (Waldron 1993).

This seems to be true; But if we then limit the realm of authority to necessity, we will again leave many legal obligations behind. Many of the activities of a legitimate government are voluntary. It must protect us from the state of nature, but the ambitions of the law are more ambitious than that. It also does things that are permitted but not necessary: it decrees residential zones, declares official languages, establishes national holidays, supports education and the arts, and creates honours. And in the service of what is prescribed out of necessity, the law draws lines and sets standards that are themselves only permissible – an age of consent, an acceptable degree of imposition of risk, formalities for wills and marriages, etc. – what Thomas Aquinas called “determinations” of just requirements. The content of all this valuable and permissible state action is underdetermined by the theory of legitimacy and rests on considerations other than necessity. The necessary arguments therefore leave some – perhaps a lot – of valuable government action unsupported. Moreover, it is not clear what is necessary for the law to fulfil its socially necessary functions.

Anscombe refers to the right to have what is needed for the role, but what is it? Hume considered it obvious that political society could not exist without “the precise obedience of the magistrate,” but it was certainly empiricism without facts. Everyone knows that a legal system can and does tolerate a certain degree of harmless disobedience and that this does not affect its functioning. Sensitivity to these issues led Hart to defend a rules-based theory. He says that while sanctions may mark circumstances in which people are obliged to comply, they have an obligation only if they are subject to a practiced social rule that requires an act or omission. The fact that subjects generally use it marks it as normative. Three other characteristics characterize mandatory provisions: they must be reinforced by serious or persistent pressure to comply with them; They must be considered important for social life or for a valuable aspect of it; and their requirements may conflict with the interests and objectives of the subject (Hart 1994, 85-88). This presentation of the nature of the obligations is not a representation of their validity. Hart does not say that a legal obligation is binding if there is a willingness to exert serious pressure to support them, etc.

He believes that an obligation is legally valid if it is part of the legal system (i.e. if it is certified as such by the legal criteria of that system) and that a legal obligation is morally valid only if there are reasonable moral reasons for complying with it. But at least in his early work, he proposes the theory of practice as an explanation of duties in general – legal duties are the creatures of legal rules, moral duties of moral rules, and so on. (Hart later modified this view, see 1982, 255-68; and 1994, 256.) It was the federal RFRA, not the exercise clause, that granted employers the right to deny contraception insurance to their workers in Burwell v. Hobby Lobby. Although contraceptive use is a constitutional right, and although the government has attempted to adopt universal health care coverage in the Affordable Care Act, meaning health care that would cover everyone, the religious exemption of the RFRA has given many employers the right to flout the Health Care Act and set their own standard for non-contraception. President Donald Trump extended the exemption to allow even more employers to deny insurance coverage to their employees. Employers are no longer required to report their rejections to the government or insurance company. Trump also threatened to shut down all state health assistance for California because there is a law that requires insurance companies to cover constitutionally protected abortions.