Complex Democracy and the Obligation to Obey the Law
What is the theoretical basis of a law's legitimacy, and to what extent are we obliged towards obeying it? This paper addresses classical legal-philosophical questions from a deliberative perspective.
ARENA Working Paper 25/2000 (html)
Agustín José Menéndez
This paper aims at building the foundations of a deliberative or discursive theory of the obligation to obey the law. On the basis a critical approach to the most frequent arguments on the matter, namely philosophical anarchism and communitarian or associative theories of political obligation, an attempt is made to reconstruct the critical points of reference for determining whether we have an obligation to obey the law. It is argued that we must distinguish the general question from the practical one of deciding in concrete cases whether to abide by the law. This stresses the role of the obligation as an auxiliary of practical reason. It is further claimed that we need to distinguish between the legally imposed constrains derived from the social functions attached to law and the positive requirements for legitimacy of legal norms. The resulting theory of law's legitimacy is said to be complex because it relies on three complementary sources: participation, substantive correctness and guaranteed implementation.