I often joke that legal philosophers concern themselves primarily with two kinds of law: traffic laws . . . and Nazi law. (This juxtaposition is not based on anyone’s feelings at having received a parking ticket.) Let me introduce the two kinds in turn, beginning with traffic laws and what I like to call the case of the mythical traffic light. Imagine you are driving in the middle of the night, in the middle of nowhere (so to speak) and you come to a traffic light. The light is red. There is a clear, well-lit, unobstructed view in every direction, and there are no vehicles or pedestrians—or really anything moving—for as far as the eye can see. There are also no police officers around. Do you have an obligation to stop at that light? Note well that I am not asking whether you would stop at the light. Nor am I asking whether most people would stop at the light. This is neither a psychological not a sociological question. It is philosophical question of whether one should stop in the sense of having a moral obligation to stop. The reason for this contrived (yet fun!) example is that it allows us to isolate the question of what to do in cases when the reasons behind the law do not apply. Normally, there are at least two major reasons for traffic lights: to promote safety and to promote the efficient flow of traffic at intersections. In the case of the mythical traffic light, neither of these reasons is present. Therefore, if there is an obligation to stop at the red light in this case, then it is because the law says so and not because the reasons behind the law (such as the moral obligation not to hit anyone with one’s car) happen to apply. Because there is no one and nothing else around, there is no reason to stop other than the law’s say-so, if even that.
A related feature of traffic laws, as a category, is that they are entirely conventional, which makes the specific obligation at hand completely contingent on the positive law. Here is what I mean. When deciding to manage the flow of vehicles and pedestrians at an intersection, officials can choose any one of a number of devices: a traffic light, stop signs, a traffic circle (roundabout), or even just signs reading “proceed with caution.” And so on. For whatever reason—whether after careful study or just by default—they choose a traffic light, and it is this choice and only this choice that generates the obligation to exercise caution in the specific manner of stopping at the intersection when the light is red. I take it as uncontroversial that there is an obligation to stop at the light when there are cars or pedestrians around, even if one judges there to be enough time to get through the intersection without causing an accident. Again, in the absence of a traffic light or any other traffic regulations, there is still a moral obligation to proceed through the intersection with due regard for the well-being of everyone else around. But, in the absence of official guidance about how, specifically, to proceed with due regard for others, such as a traffic light, there is no obligation to exercise caution in that particular way (i.e., to stop at the intersection for a fixed amount of time awaiting the illumination of an otherwise arbitrary signal). This perspective helps us see the usefulness of traffic laws in philosophy law: they provide a neat set of everyday, commonplace cases where the specific behavior required by the law (stopping at the red light) is required only because the law says so and not because there is any underlying obligation to do so even in the absence of the law requiring it. (There are other examples, to be sure, but everyone can relate to traffic laws. And everyone has an opinion!)
A universe away, mentally and morally, Nazi law serves as a convenient and useful point of reference because of the way in which the descriptor “Nazi” is appropriately synonymous with “unquestionably, uncontroversially evil.” In the philosophical study of law, Nazi law stands as a ready example of that which seems to be both undeniably law and undeniably evil. For this reason, the presumed existence of a thing properly called Nazi law stands as the obvious counterpoint to the ancient maxim “an unjust law is no law.”1 And so Nazi law presents legal philosophy with one of its central debates: What is the relationship between law and justice? Do we deny that the Nazis have “law,” or do we define law without respect to questions of morality? This, perhaps surprisingly, brings us right back to the matter of traffic laws because, if law can be defined without respect to questions of justice, then in what sense can we speak of the authority of law and the obligation to obey? Traffic laws are instructive because they capture scenarios where there is an obligation, if any, only because the law says so and not because of any underlying inherent obligation to stop at a red light as long as one is generally cautious and fair. This is unlike the way there is, by contrast, an obligation not to murder or assault, which the law forbids on top of the moral prohibition not to do the same. But if law is law regardless of whether it is just—that is, if Nazi law is law even though it is unjust—then in what sense can we speak of law imposing an obligation? Either we have to say that even unjust law is obligatory—thereby repudiating the simplest sense in which an unjust law can be said to be “no law,” namely that an unjust law is not obligatory—or we must say that law in general is not necessarily obligatory. At first glance, neither option looks appealing.
Another issue that arises out of a consideration of the sense(s) in which Nazi law is law is the conceptually narrower yet still colossally consequential question of the war tribunals held for Nazi war criminals (and similar wrongdoers). In one telling, at least, these cases are vexed because people are being tried for acts that were legal at the time they were committed. (Let us assume, though it need not be true in every instance, the acts in question were not just permitted under the law but required—“just following orders.”) Can people justly be punished for what they do under cover of law? My purpose, strictly speaking, is not to answer that question but, instead, to understand the question—that is, to clarify why it is such a difficult question and to show why others who have taken it up correctly identify the issue as a problem but fail to appreciate its full weight. As it turns out, we cannot do so without a proper understanding of the authority of law and the obligation to obey.
The nature of legal obligation as strictly sociological or also normative is extremely consequential in real life because the difference between having justified authority and not having justified authority is the difference between justice and raw coercive power. H. L. A. Hart steps into the debate to rebut the conception of law as “orders backed by threats” and to recognize that people do not relate to the law first and foremost as an instance of coercive force. In this way, a more specialized argument within analytic jurisprudence finds its roots in perennial questions of massive significance. The law-as-command theorists whom Hart takes up have an ancestor in Hobbes and his idea of a sovereign with powers of biblical proportions and before that in the partisans of the divine right of kings and the voluntarist turn after Aquinas. This long lineage traces back still further, as one strand with the long classical conversation about Hammurabi’s Code, Creon’s edicts in Sophocles’s Antigone, and Hebrew and Christian notions of divine law. So, in addressing the concept of law, we are not only touching upon the most pressing matters today with respect to the legitimacy of government power under law but also engaging with a deep and wide tradition of thought about one of our most enduring human questions.
Excerpted with permission from The Nature of Law: Authority, Obligation, and the Common Good by Daniel Mark (©2024 University of Notre Dame Press).
