Lawyers lean heavily on the connected concepts of legal right and legal obligation. We say that someone has a legal right or duty, and we take that statement as a sound basis for making claims and demands, and for criticizing the acts of public officials. But our understanding of these concepts is remarkably fragile, and we fall into trouble when we try to say what legal rights and obligations are.

These eruptions signal a chronic disease. Day in and day out we send people to jail, or take money away from them, or make them do things they do not want to do, under coercion of force, and we justify all of this by speaking of such persons as having broken the law or having failed to meet their legal obligations, or having interfered with other people's legal rights. Even in clear cases (a bank robber or a willful breach of contract), when we are confident that someone had a legal obligation and broke it, we are not able to give a satisfactory account of what that means, or why that entitles the state to punish or coerce him. We may feel confident that what we are doing is proper, but until we can identify the principles we are following we cannot be sure that they are sufficient, or whether we are applying them consistently.

QUESTION: What principles could justify state coercion if none are currently identifiable? Worth pursuing what the author proposes as an answer.

Certain lawyers (we may call them "nominalists") urge that we solve these problems by ignoring them. In their view the concepts of "legal obligation" and "the law" are myths, invented and sustained by lawyers for a dismal mix of conscious and subconscious motives. The puzzles we find in these concepts are merely symptoms that they are myths. They are unsolvable because unreal, and our concern with them is just one feature of our enslavement.

DEFINE: Introduces the nominalist school of legal philosophy, which treats legal concepts as constructed myths rather than real entities.

Before we can decide that our concepts of law and of legal obligation are myths, we must decide what they are. We must be able to state, at least roughly, what it is we all believe that is wrong. But the nerve of our problem is that we have great difficulty in doing just that. Indeed, when we ask what law is and what legal obligations are, we are asking for a theory of how we use those concepts and of the conceptual commitments our use entails. We cannot conclude, before we have such a general theory, that our practices are stupid or superstitious.

Nevertheless, we do use the concepts of law and legal obligation, and we do suppose that society's warrant to punish and coerce is written in that currency. It may be that when the details of this practice are laid bare, the concepts we do use will be shown to be as silly and as thick with illusion as those the nominalists invented. If so, then we shall have to find other ways to describe what we do, and either provide other justifications or change our practices. But until we have discovered this and made these adjustments, we cannot accept the nominalists' premature invitation to turn our backs on the problems our present concepts provide.

If we boil away the bluff, the nominalist attack reduces to an attack on mechanical jurisprudence. Through the lines of the attack, and in spite of the heroic calls for the death of law, the nominalists themselves have offered an analysis of how the terms "law" and "legal obligation" should be used which is not very different from that of more classical philosophers.

DEFINE: Distinguishes nominalist legal critique from broader 'death of law' rhetoric, clarifying that the real target is mechanical jurisprudence.

In each political community, he thought, one will find a sovereign-a person or a determinate group whom the rest obey habitually, but who is not in the habit of obeying anyone else. The legal rules of a community are the general commands its sovereign has deployed. Austin's definition of legal obligation followed from this definition of law. One has a legal obligation, he thought, if one is among the addressees of some general order of the sovereign, and is in danger of suffering a sanction unless he obeys that order.

DEFINE: Explains Austin's command theory of law: law defined as sovereign commands with sanctions, and obligation as the threat of punishment. XREF: Connects to Hart's critique of Austin's command model in The Concept of Law, which points out that not all law takes the form of sovereign commands. Builds on: "The coercion powering law lacks a satisfactory justificatory account"

Austin's model is quite beautiful in its simplicity. It asserts the first tenet of positivism, that the law is a set of rules specially selected to govern public order, and offers a simple factual test-what has the sovereign commanded?-as the sole criterion for identifying those special rules. In time, however, those who studied and tried to apply Austin's model found it too simple.

XREF: This connects to legal positivism debates and the Hart-Fuller dispute over law's moral dimension. Builds on: "Legal obligation arises from sovereign commands backed by sanctions"

Political control in a modem nation is pluralistic and shifting, a matter of more or less, of compromise and cooperation and alliance, so that it is often impossible to say that any person or group has that dramatic control necessary to qualify as an Austinian sovereign. One wants to say, in the United States for example, that the "people" are sovereign. But this means almost nothing, and in itself provides no test for determining what the "people" have commanded, or distinguishing their legal from their social or moral commands.

DEFINE: Establishes how Austinian sovereignty fails to describe modern pluralistic political control, contrasting with the idealized 'the people are sovereign' formulation. QUESTION: If no single sovereign exists, what does this imply for how we attribute legal commands or popular will in democratic systems? Builds on: "Austin's simple sovereign-command test proved too crude for legal practice"

We make an important distinction between law and even the general orders of a gangster. We feel that the law's strictures-and its sanctions-are different in that they are obligatory in a way that the outlaw's commands are not. Austin's analysis has no place for any such distinction, because it defines an obligation as subjection to the threat of force, and so founds the authority of law entirely on the sovereign's ability and will to harm those who disobey. Perhaps the distinction we make is illusory-perhaps our feelings of some special authority attaching to the law is based on religious hangover or another sort of mass self-deception. But Austin does not demonstrate this, and we are entitled to insist that an analysis of our concept of law either acknowledge and explain our attitudes, or show why they are mistaken.

XREF: Connects to Hart's critique of Austin's command theory and the internal aspect of rules, a central debate in legal positivism. QUESTION: What explains the felt authority of law if not coercion — shared norms, conventions, or something deeper? Builds on: "The coercion powering law lacks a satisfactory justificatory account"

Austin had said that every rule is a general command, and that a person is obligated under a rule if he is liable to be hurt should he disobey it. Hart points out that this obliterates the distinction between being obliged to do something and being obligated to do it. If one is bound by a rule he is obligated, not merely obliged, to do what it provides, and therefore being bound by a rule must be different from being subject to an injury if one disobeys an order. A rule differs from an order, among other ways, by being normative, by setting a standard of behavior that has a call on its subject beyond the threat that may enforce it.

DEFINE: Clarifies Hart's distinction between being obliged (external threat) and being obligated (normative binding), a key terminological distinction in legal philosophy. XREF: Connects to Austin's command theory of law and Hart's critique in 'The Concept of Law' — distinguishes internal acceptance of rules from external sanctions. Builds on: "Legal obligation involves felt authority beyond mere coercive threat."

A rule can never be binding just because some person with physical power wants it to be so. He must have authority to issue the rule or it is no rule, and such authority can only come from another rule which is already binding on those to whom he speaks. That is the difference between a valid law and the orders of a gunman.

Builds on: "Obligation under rules differs from mere coerced obedience to orders."

Hart's concept of law is a construction of these various distinctions. Primitive communities have only primary rules, and these are binding entirely because of practices of acceptance. Such communities cannot be said to have "law," because there is no way to distinguish a set of legal rules from amongst other social rules, as the first tenet of positivism requires. But when a particular community has developed a fundamental secondary rule that stipulates how legal rules are to be identified, the idea of a distinct set of legal rules, and thus of law, is born.

XREF: Connects to legal positivism, the separation between law and other social norms, and Hart's rule of recognition — likely relates to the reader's existing knowledge of jurisprudence or H.L.A. Hart's The Concept of Law. Builds on: "Lawful authority derives from prior rules, not raw power."