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              DO WE HAVE REASONS TO OBEY THE LAW?
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                   Edmund Tweedy Flanigan
                           2020

NOTE:  [This  paper appears  in  the  Journal  of Ethics  &  Social
Philosophy  vol.  XVII,  iss.  2, pp.  159-197.  Please  cite  that
version: http://doi.org/10.26556/jesp.v17i2.742]

ABSTRACT: Instead  of the  question, "Do we  have an  obligation to
obey the  law?," we should  first ask  the easier question,  "Do we
have reasons to  obey the law?" This paper offers  a new account of
the notion  of what Hart  called the content-independence  of legal
reasons in terms of the  normative grounding relation. That account
is then used to mount a defense of the claim that we do indeed have
content-independent, genuinely  normative reasons  to obey  the law
(because it is the law), and that these reasons do sometimes amount
to an obligation to so act.

## Introduction

In  this paper,  I shall  ask whether  we have  content-independent
moral reasons to  obey the law, and I shall  make some claims about
what we mean when we ask  this question. I shall also inquire after
the strength of  such reasons. In other words, I  shall ask whether
we ought morally to do as  the law demands, because the law demands
it.

This  is a  version  of a  very  old  question, but  it  is in  one
important way  different from that question.  Traditionally, we ask
whether subjects are morally obligated to obey the law, or whether,
equivalently, they  have a  moral duty  to do  so.[1] I  believe we
should instead  begin with the  more modest question of  whether we
have  moral reasons  to obey  the  law. This  question retains  the
structure of the  traditional question, but it is at  the same time
simpler and clearer,  and so easier to answer.  Moreover, many take
reasons to contribute to obligations,  so in answering the question
about  reasons, we  may also  make progress  on the  question about
obligation.[2]

The answer to this question I shall defend is Yes: we do very often
have moral reasons to  obey the law, because it is  the law, in the
content-independent  sense. Moreover,  I shall  suggest that  these
reasons very often amount to an obligation to so-act.

This  answer  goes  against  a  strong  current  in  political  and
legal  philosophy  which  has  led many  to  endorse  philosophical
anarchism,[3]  the   family  of  views  often   expressed  by  some
combination of the claims (1-3):

1. Any  reasons we may seem  to have to  do as the law  demands are
really just reasons to do as we ought full stop, independent of the
law, in virtue of our ordinary moral obligations; or

2. Whatever conditions  would obligate us to do as  the law demands
are not met, and maybe could not be met, by the law; or

3. Any such  apparent reasons are merely prudential  reasons to act
so as to avoid being fined or punished by the state.

The law, on any of these views, is not morally significant.[4]

Separately, some have been recently  convinced that there can be no
content-independent reasons  to obey the  law, or at least  that no
successful account  of what  such reasons might  amount to  has yet
been given.[5] This separate conclusion only strengthens the appeal
of  the philosophical  anarchist's claim,  by undermining  the very
possibility of having a reason to  do as the law demands because it
is what the law demands.

I believe we can answer both of these skeptical challenges. Content
independence is  not as  mysterious as  it has  often been  made to
seem. On the view I propose,  when we talk of content independence,
we are  making claims about grounding.  When we claim that  the law
provides content  independent reasons for  its subjects to  PHI, we
are  claiming that  there  is  a distinctive  property  of the  law
which  grounds a  moral  reason to  PHI, which  is  another way  of
claiming simply  that the law's distinctive  properties are morally
significant.

When we  understand content  independence in  this way,  it becomes
easier  to   see  that   the  law   very  plausibly   does  provide
content-independent reasons  to do as  it demands. We can  also see
that  such  reasons may  often  combine,  sometimes with  non-legal
reasons  and sometimes  on their  own, to  amount to  an obligation
to  obey the  law.  While  my remarks  on  this  point must  remain
schematic  --  whether  we  are   in  fact  obligated  by  the  law
depends on  further commitments regarding the  status and normative
force  of  various  candidate  properties  of  the  law,  regarding
the  normative circumstances  of  particular subjects,  as well  as
regarding competing conceptions of the  concept of obligation -- we
can  nevertheless  conclude that,  very  plausibly,  the law  often
succeeds in morally obligating us. The anarchist's position is thus
importantly undermined.

## I. Preliminaries

It  may  help to  begin  by  first  offering some  definitions  and
clarifications,  if  only  because   the  literature  on  political
obligation  has suffered,  in my  view, from  some unclarity  about
reasons. I follow Scanlon[6] and Parfit[7] in using the 'purely' or
'genuinely' normative  concept of  a reason,  according to  which a
reason to PHI may be helpfully redescribed as a fact that counts in
favor of PHI-ing. To have at least one reason to PHI is the same as
having 'some  reason,' or  simply 'reasons' to  PHI, though  we may
have some reason to  PHI even when there is some  other act that we
ought  to do  instead, because  the reasons  favoring that  act are
stronger than  our reasons to  PHI.[8] When the balance  of reasons
counts decisively  in favor of our  PHI-ing, in the sense  that our
reasons to PHI outweigh any competing  reasons not to PHI, or to do
some other act  instead, we can say that we  have 'decisive reason'
to PHI, which is one way of  saying simply that we ought to PHI.[9]
If our  reasons are such  that we may  permissibly PHI but  are not
required to PHI, we say that we have 'sufficient reason' to PHI.

When I speak of  someone's 'having' a reason to PHI,  I do not mean
to imply anything about this person's own awareness of her reasons,
nor about her motivational states.[10] In the way I use the term, a
person's having a reason  to PHI is just the same  as there being a
reason for her to  PHI, which is just the same  as there being some
fact that  counts in favor  of her  PHI-ing. Similarly, when  I say
that some  fact 'gives' or  'provides' us a  reason to PHI,  I mean
only that that fact is a reason for us to PHI, by counting in favor
of our  PHI-ing. By  extension, when  I say that  the law  gives or
provides us  a reason  to PHI, I  mean that the  fact that  the law
demands that we PHI  is a reason for us to PHI,  or counts in favor
of our PHI-ing.[11] In this paper I shall discuss only ideal cases,
so there will be no need  to distinguish between reasons for action
and  the  merely apparent  or  contextually  normative reasons  for
action that we  may be said to  have, or be aware of,  in virtue of
our beliefs about which facts count in favor of which acts. Only in
these non-ideal cases is it useful, I believe, to talk of someone's
'having  a reason'  in this  other  sense, and  similarly, only  in
non-ideal cases is it useful to talk of something 'giving' a reason
to someone in the corresponding sense.

Additionally,  it is  important to  say that  I take  myself to  be
discussing  moral  reasons,  as  distinct  from  merely  prudential
reasons, epistemic reasons, reasons of rationality, and so on. I do
not  take a  view on  the  issue of  what makes  our moral  reasons
distinct from other  kinds of normative reasons; I  claim only that
there is a useful distinction to be drawn.

Another point of unclarity in the literature has been regarding the
nature of  obligation. As  mentioned already, we  are traditionally
confronted with what I shall  call the 'obligation question,' which
asks

 Are subjects obligated to do as  the law demands, in virtue of it
 so-demanding?

However, rather than begin with  the obligation question, I suggest
that we first ask the more modest 'reasons question':

 Do subjects  have reasons to do  as the law demands,  because the
 law demands it?

This  is  for  several  reasons.  First,  because  the  concept  of
obligation, particularly in this  context, is insufficiently clear.
Its various  conceptions are  not normally  well distinguished,[12]
yet  what we  mean  by 'S  is  obligated to  PHI'  of course  bears
importantly  on what  we should  think about  whether subjects  are
obligated  to obey  the law.  Second, the  concept of  a reason  is
simpler, as well  as (arguably) more fundamental,  than the concept
of an obligation. We can thus  more clearly know what we are asking
when we ask  the reasons question, and so we  can more clearly know
whether  we  have  an  answer. Third,  and  relatedly,  because  it
is  widely  thought (and  I  believe)  that reasons  contribute  to
obligations. Precisely how they do so is a matter of debate, though
we need not make any more  specific commitments here than that they
do. If it  is true that reasons contribute to  obligations, then in
answering  the reasons  question, we  have also  (at least  partly)
answered the obligation question.

Because I ultimately wish to discuss philosophical anarchism, whose
standard formulation denies that  subjects are morally obligated to
obey the law,  I'll not be able to  entirely avoid obligation-talk.
For  our purposes,  I shall  use  'normally decisive  reason' as  a
moderately ecumenical  analysis of the concept  of obligation. This
is not  because I  take it  to be a  particularly good  analysis of
what  obligation  is (it  is  not),  but  rather because  it  seems
extensionally  compatible with  many  reasonable  ways of  speaking
about obligation and  duty, such as when Ross  discusses our 'prima
facie duties' to  act in certain ways, and also  with the idea that
obligations are  those acts which  are, in  view of the  balance of
reasons,  morally  required.[13] Still,  my  use  is a  substantive
commitment, and  so alternative conceptions of  obligation may lead
to disagreement with my claims later in the paper about our reasons
to reject  philosophical anarchism.  Since I  know of  no anarchist
position that understands obligation in  a way that is incompatible
with my commitment here, it would  fall to the anarchist to develop
such a position.

Finally, it should be borne in  mind throughout that we must always
be careful  to distinguish  some reason for  action [r][14]  from a
'summary reason'  given by a  set of  reasons for that  action that
includes [r] as one member among  others of the set, lest we double
count the reasons. Thus, to  borrow Parfit's example, the fact that
some medicine  is the cheapest and  most effective may make  it the
best medicine, but  when we talk of the reasons  for some person to
take this medicine,  we would make a mistake if  we claim that this
person has  three reasons to  do so: that  it is the  cheapest, the
most effective, and the best.

## II. Content Independence

We can now consider the idea of the content independence of certain
reasons, including reasons  given by the law. Roughly,  the idea is
that a reason is content independent if, as Hart puts it, it is

 intended to function  as a reason independently of  the nature or
 character of the actions to be done;[15]

or, as Raz puts it, if

 there is no  direct connection between the reason  and the action
 for which it is a reason.[16]

In the case  of content-independent 'legal reasons'  -- the reasons
given by acts  being prohibited, permitted, or required  by the law
-- we say that such reasons are  to do as the law demands, whatever
the law  demands, no  matter the moral,  rational, or  perhaps even
legal merits of  what is demanded.[17] Taken another  way, the idea
of content independence is the thing that we mean by 'because it is
the law' when we discuss the claim that we have reasons to obey the
law because it is the law.

It will help  to begin by discussing a  recent skeptical challenge.
The legal philosopher Paul Markwick has rightly questioned the idea
that all reasons are, as  such, either content dependent or content
independent. Reasons are, I have claimed, facts that count in favor
of actions. On  this understanding, it is mysterious  what it would
mean to  claim that some  reasons bear the fundamental  property of
content dependence  while others  bear the fundamental  property of
content independence. What  is the content of a  reason, other than
the fact that constitutes it, or that fact's propositional content?
How could any reason be independent  of that? And what would we add
to the claim that [r] is a  reason for someone to PHI by making the
further claim that that reason  is dependent upon or independent of
r? It is not clear that such a claim would even make sense.

Most of those  who claim content independence for  legal reasons do
not take  the content in question  to be the content  of the reason
per se  but rather  the thing that  the reason is  a reason  to do.
Thus, for some reason to PHI, the content of that reason is PHI, or
PHI-ing.[18] It  is this that Markwick  has in mind when  he argues
that legal reasons are not  distinctively content independent. As I
shall now argue, I think Markwick  is correct in this view but also
partly misled by his argument, so that he rejects the notion of the
content independence of legal  reasons altogether, as uninteresting
or uninformative.  I do think  legal reasons are  not distinctively
content independent,  but I  do not think  the notion  is therefore
uninteresting  or uninformative.  Rather,  I think  that by  better
understanding the sense in which legal reasons are often claimed to
be content independent,  and by seeing how such reasons  are not so
unlike other kinds  of normative reasons, we can better  see how we
might have reasons to obey the law because it is the law.

In one paper, Markwick  considers the following candidate condition
for content independence of reasons:

 If PHI-ing's  F-ness is a reason  to PHI, this reason  is content
 independent if and only if for  any other act-type u, there would
 be a reason to u if F were a property of u-ing.[19]

We can restate this condition briefly as the claim that a reason to
act is content independent just in case the reason is given by some
property of the act such that, if another act had that property, it
would also provide a reason to so-act.

This  seems,  at first  glance,  like  a  good account  of  content
independence. If some act has the property of being required by the
law, for instance, and if having this property provides a reason to
so-act, then there will  be a like reason to do  any other act that
also has  the property  of being  required by  the law.  The reason
given by the fact  that an act is required by  the law, then, would
appear to be a content independent reason.

Markwick points out, however, that  this condition seems to capture
too many reason types. Many acts are morally required, for example,
and  thus share  the property  of being  required by  morality. The
reasons  given by  the fact  that these  acts are  morally required
thereby meet the condition above  for content independence. And yet
moral reasons  are not typically  taken to be  content independent.
They are,  rather, commonly taken  to be content dependent.  We can
also  ask, if  moral reasons  are content  independent, then  which
reasons are content  dependent? The same point could  be made about
several other  properties typically  not thought to  confer content
independence  upon the  reasons  they provide.  Markwick gives  two
examples:  the property  of causing  unnecessary suffering  and the
property  of  maximizing  utility.  Take the  property  of  causing
unnecessary suffering. That an act  bears this property is a reason
not to do it and would be a  reason not to do any other act bearing
this property.  Such a reason  would thus meet the  condition above
for content independence. Yet such  a reason, as Markwick notes, is
commonly taken to be a clear example of a content-dependent reason.
Or  take  the property  of  maximizing  utility. According  to  act
utilitarianism,  an act  is required  if and  only if  it maximizes
utility, no matter  any other features of the act  (e.g. that doing
it would break  some promise, violate some  people's rights, etc.).
In other words, we might  say, all and only utility-maximizing acts
are  required, regardless  of their  content. Yet  surely, Markwick
claims,  no act  utilitarian would  claim  that all  such acts  are
required by  content-independent reasons.  For again,  the question
could  be asked,  if these  reasons are  content independent,  then
which  reasons  are content  dependent?  The  objection, in  brief,
is  that  the fact  that  it  is  unclear  which reasons  might  be
content dependent casts doubt upon  the viability and usefulness of
the distinction  between content  dependence and  independence, and
further that it is "unclear  how content independence is a property
which  distinguishes legal  reasons in  particular from  reasons in
general."[20] If no reasons, or few reasons, are content dependent,
or if we cannot use the  property to distinguish legal reasons from
reasons in general, we might urge  along with Markwick that we give
up on talk of content independence as an important feature of legal
reasons altogether, as uninteresting or uninformative.

Part  of the  answer to  Markwick's  challenge is  to concede  that
content independence is not a distinctive property of legal reasons
but  to maintain  that, when  we claim  of some  reasons, including
legal reasons, that  they are content independent, we  are making a
claim that  is nevertheless both interesting  and informative. This
is because to claim that

 some property  of an act  gives us a reason  to do that  act, and
 gives this reason the property of being content independent

is, in my view, to claim nothing more than that

 this property of the act is normative, in the sense that an act's
 having it  gives us  a reason  to do that  act regardless  of any
 other facts about the act.

It is  interesting and  informative to claim  of some  reasons that
they are content  independent simply because it  is interesting and
informative  to claim  of some  properties  of acts  that they  are
normative, in the sense that they give us reasons to do those acts.
It is both interesting, and would be highly informative if true, to
claim that an act's maximizing utility gives us a reason to do that
act, as the act utilitarian's main thesis claims. If we could truly
make a  similar claim of many  other properties, this too  would be
highly  informative and  interesting. Such  properties include  the
property of being loved by the gods, the property of being required
by the  king, the  property of  being an  act whose  maxim everyone
could  will to  be  a universal  law of  nature,  and many  others,
including the  property of being demanded  by the law. It  would be
informative and  interesting if the  property of being  demanded by
the law  were normative,  in the  sense that  an act's  having this
property provided a reason to do that act whatever this act may be.
This  is why,  even conceding  that content  independence is  not a
distinctive  feature of  legal reasons,  we may  nevertheless claim
that it would be interesting  and informative if some legal reasons
bore that property.[21]

It may seem, I should acknowledge now, that I have already conceded
too much. If content independence  is not a distinctive property of
legal reasons, or  if it is just another way  of making the obvious
claim that some reasons are  given by normative properties of acts,
then it may be hard to believe that I am indeed making a claim that
is interesting or  informative. But an important part  of my thesis
is that legal reasons are not  as unlike other normative reasons as
is commonly believed, and that when we claim that legal reasons are
content independent, we are (at least) tacitly committing ourselves
to this conclusion. Furthermore,  I believe that understanding this
can help to make sense of the ways  in which the law may in fact be
a source  of genuinely normative  reasons for action, such  that we
may truly claim that we have reasons  to obey the law because it is
the law.

To see how  this is so, it  will help now to more  fully explain my
view  of content  independence. On  my view,  we should  understand
claims  of content  independence as  grounding claims.[22]  When we
claim  that  some  fact  [p]  grounds  another  fact  [q],  we  can
equivalently claim that:

 [p] makes [q] true, or makes it the case that q;

 [q] is true, or holds, in virtue of [p];

 [q] depends on [p];

 [q] holds because of [p].

The grounding  relation is not,  it is worth emphasizing,  a causal
relation, nor  the supervenience  relation, nor is  it the  same as
specifying  the  necessary conditions  for  some  fact to  hold  --
though instances  of these  other relations may  sometimes coincide
with  instances  of the  grounding  relation.  It is,  rather,  the
relation of  one fact's  making the case  another fact  and thereby
non-causally  explaining that  fact.  It is,  appropriately to  the
current discussion, a dependency relation.

The  relation, though  difficult  to define,  is  very familiar  in
normative theorizing, as when, for example,

1.  Locke writes  that  "...this  original Law  of  Nature for  the
beginning  of Property,  in  what was  before  common, still  takes
place; and  by vertue  thereof, what  Fish any  one catches  in the
Ocean, that great  and still remaining Common of Mankind  ... is by
the Labour that removes it out  of that common state Nature left it
in, made his Property who takes that pains about it";[23] or when

2. Ross asks "What makes acts  right?" and answers that "the ground
of the actual  rightness of [an] act is that,  of all acts possible
for the  agent in the circumstances,  it is that whose  prima facie
rightness in  the respects in  which it  is prima facie  right most
outweighs its prima facie wrongness in  any respects in which it is
prima facie wrong";[24] or when

3.  Rawls writes  that  the principles  generated  in the  original
position "must  hold for  everyone in virtue  of their  being moral
persons,"[25] or when he writes that  the basis of equality lies in
"the features  of human beings  in virtue of  which they are  to be
treated in accordance with the principles of justice";[26] or when

4. Cohen  discusses the 'Pareto  claim' that "inequality  is indeed
just when  and because  it has the  particular consequence  that it
causes everyone to be better off";[27] or when

5. Some people claim that  a person deserves some treatment because
of this person's prior acts or bad character.

The grounding relation is normatively indispensable; there are very
many other such examples all around us.[28]

The claim  that legal  reasons are content  independent is  a claim
about which features of  the law can make it the  case that we have
reasons to  do as it  demands. When we  consider the claim  that we
ought to obey the law because it is the law, the 'because' there is
the because of grounding. When we  consider the claim that it is in
virtue of being against the law that some act is wrong, rather than
due to the 'merits of the act itself,' we are considering the claim
that some feature of the law that  is not also a feature of the act
demanded by the law is what makes the act wrongful, or what grounds
its wrongness.

Put most simply, the claim is that:

 [The law demands that S PHI] grounds [S has a reason to PHI].

However, to claim just that [The law demands that S PHI] grounds [S
has  a reason  to PHI]  may be  misleading, for  demands do  not by
themselves  ground  reasons  for  action. Rather,  it  is  only  in
combination with the facts that  legitimate those demands that they
may do  this. If the law's  demands can ground reasons  for action,
there  must be  some  further feature  of the  law  that gives  its
demands this force.

In many cases, it is worth  noting, a legitimate demand may play no
part at all  in grounding a reason for action.  This may be easiest
to see  by considering a  basic case  of promising. Suppose  I have
made  you a  promise that  I will  PHI, and  that you  subsequently
demand that I fulfill my promise. We could not then claim that

 [You demand that  I fulfill my promise to PHI]  grounds [I have a
 reason to PHI]

because it  is not  your demand  but my  promise which  grounds the
obligation: I would have a  reason to fulfill my promise regardless
of whether you demanded  that I do so or not. More  fully, it is in
virtue of my having made a promise  to you both that you may make a
genuinely normative demand of me that I fulfill my promise and that
I have a reason to do so.

By contrast, some demands may  seem to by themselves ground reasons
for action.  Certain demands by those  we love, for example,  or to
whom we  otherwise have special  obligations, may seem to  be clear
cases of this  kind. If your child demands love  and attention, for
instance, it may seem that

 [Your  child demands  love  and attention]  grounds  [You have  a
 reason to give your child love and attention].

But  even in  this case,  it  would be  better to  claim that  your
child's demand together with your special obligations to your child
ground  your reason  for action.  To claim  only that  your child's
demand grounds your  reason for action would be  misleading, and to
claim that  your child's demand  by itself grounds your  reason for
action would be false.

Similar remarks apply to the law's  demands on us. In order to make
plausible  the claim  that  the law's  demands  ground reasons  for
action, we need to identify some  property or properties of the law
in virtue  of which its  demands are genuinely normative.  In other
words,  it  is  only  in  virtue  of  some  normative  property  or
properties of  the law together  with the  fact that the  law makes
specific demands of us that we may come to have reasons to do as it
demands. We should therefore consider the revised claim that:

 [The law  has some properties  {P}] and  [The law demands  that S
 PHI] together ground [S has a reason to PHI].

Note that  we are now  discussing the possibility of  several facts
together grounding a  single fact. To understand this,  it may help
to make  explicit my  assumption that  not all  grounding relations
between one fact and another  are relations of full grounding; many
are relations of partial grounding.  One fact [p] partially grounds
another [q] when [p] helps make [q] true, or helps make it the case
that [q], or when [q] holds  partly in virtue of, or partly because
of, [p]. The  fact that S has  a reason to PHI,  for example, would
partially ground the  fact that S ought to PHI,  by contributing to
the set of reasons for S to PHI. The set of reasons such that S has
more reason to PHI than to  do any alternative act fully ground the
fact that S has decisive reason to PHI, by fully making it the case
that S  ought to PHI.[29]  The claim I wish  to make may  indeed be
more fully stated as the claim that:

 Each of the facts [The law  has some properties {P}] and [The law
 demands that S PHI] partially  ground, and together fully ground,
 [S has a reason to PHI].[30]

This claim about  the content independence of legal  reasons can be
made in other, equivalent ways.  The grounding claim made by claims
of content independence of the law  is also a claim about what does
not fully  ground a person's reason  for action. Namely, it  is the
claim that the fact  that a law demands that S  PHI, and indeed all
facts about  PHI-ing, do not fully  ground the reason given  by the
law for S to PHI. Or in other  words, the legal reason for S to PHI
is independent of facts about PHI-ing, where 'independent' is to be
understood as  a negative  grounding claim. The  positive grounding
claim is that  when S has a content independent  reason to obey the
law's demand that S PHI, this reason is at least partially grounded
by some fact or  facts about the law that are  not also facts about
PHI-ing. These facts are about  the normative properties of the law
in general, as distinct from any particular action the law requires
or forbids.

Understanding  the   claim  that  legal  reasons   provide  content
independent reasons  for action  as a  claim about  grounding helps
make sense  of a number of  cases in which, intuitively,  it may be
unclear  whether the  law provides  a genuinely  normative, content
independent  moral  reason  to  do  as  it  demands.  Imagine,  for
instance, a  society in which the  law is merely a  codification of
morality, such as that of  the Israelite tribe under Moses: Moses's
tablets, we can  imagine, were a codification  of the independently
normative moral truths  given the Israelites by God.  We might then
imagine  one  Israelite  appealing  to  another,  more  murderously
inclined Israelite  that the  tablets forbid killing.  'You mustn't
kill, because it's against the law,' the one might say. What should
we make of the first Israelite's appeal to the second?

Let's grant that  the second Israelite in fact has  a reason not to
kill. If  the first  Israelite's appeal  is meant  to make  a claim
about what grounds  the second Israelite's reason,  then that claim
is false, since  the fact that 'THOU SHALT NOT  KILL' is written on
Moses's tablets  certainly does  not ground the  second Israelite's
reason  not to  kill  --  it is  rather  the  moral prohibition  on
killing, given  to the Israelites by  God and recorded by  Moses on
the tablets, that does this. Just  as the wind's happening to spell
out 'THOU SHALT NOT KILL' in the  sand would not itself be a reason
not  to kill,  etchings  of  God's moral  law  in  stone would  not
themselves provide reasons for action. Only speaking loosely may we
claim that an act's being prohibited by Moses's tablets is a reason
for the Israelites not to do it,  and when we make such a claim, it
must be either  false or else, more charitably, be  a shorthand way
of making  the more accurate  claim that  the act is  prohibited by
God.  This  is  because,  in  the  case  we  are  imagining,  God's
prohibition  is  genuinely  normative, whereas  being  codified  on
Moses's tablets, or being written by the wind in the sand, is not.

More generally, when demanding that  for each morally required act,
S do that act, we would make a mistake by claiming that

 [The  law codifies  morality] and  [The law  demands that  S PHI]
 together ground [S has a reason to PHI].

For  it would  be in  virtue of  PHI-ing's being  morally required,
rather than  in virtue of the  law's demanding or codifying  that S
PHI, that S has a reason to  PHI. These further facts about the law
would add nothing  to the normative grounds for  S's PHI-ing, which
is to say would not help to make it the case that S has a reason to
PHI. In the same way, if I told you truly that you ought morally to
do some act, and even if I always told you truly what the thing was
you ought to do, it would be  in virtue of this act's being a moral
requirement, rather than  in virtue of my telling you  so, that you
ought to  do it.  In this way,  the law cannot  be said  to provide
content-independent  reasons for  action in  cases in  which it  is
merely a codification of more fundamental normative facts.

Similarly, we can, by understanding content independence as an idea
about  normative grounding,  better understand  the sense  in which
Markwick rightly  claims that  legal reasons are  not distinctively
content  independent.  The claim  that  legal  reasons are  content
independent is no  more than the claim that some  legal property of
these reasons,  such as (say)  that it  was passed by  a democratic
assembly, or  that it  solves some  coordination problem  -- rather
than something about what it is  these legal reasons are reasons to
do -- is  what makes it the case that  they are genuinely normative
for those to whom they apply; just as, according to one widely held
view, moral reasons are made genuinely normative not by facts about
what they  are reasons to do  but by facts about  morality, such as
that the  act for which the  reason counts in favor  would maximize
utility, or is an act that no one could reasonably reject, or is an
act that is in conformity with a maxim that could be willed to be a
universal law,  and so on. But  we can also in  this way understand
why  the further  worry that,  by  failing to  be distinctive,  the
content  independence  of legal  reasons  may  be uninformative  or
uninteresting, is misplaced.  For the claim that  legal reasons are
content independent is the important and substantive claim that the
law, like  morality, can be  a source of genuinely  normative moral
reasons for action,  rather than merely a way  of calling attention
to reasons whose real normative force lies elsewhere.

## III. Objections

It is  worth pausing  now to consider  some objections  against the
view I have proposed. First,  I'll consider several versions of the
objection that  the view fails  on its  own terms, since  all moral
reasons are ultimately grounded in facts about morality rather than
the law.  By explaining how  this objection fails,  the distinctive
character of the grounding view of content independence will become
clearer.  Second,  I'll address  the  objection  that by  analyzing
content independence in terms of the grounds of reasons to obey the
law, I have lost (or worse, am unable to accommodate) a distinctive
and important feature  of our reasons to obey the  law, namely, the
opacity of  such reasons to  those subject to them.  In considering
these  objections,  I'll  compare  my view  with  well-known  views
represented by Hart, Raz, and Rawls.

### (a) Internal Objections

To begin, it may be objected that  any moral force the law has must
be had  in virtue of  some prior moral facts,  and that in  view of
this, no obligation to do as the law demands may be said to hold in
virtue of facts  about the law. This objection may  take two forms.
On  the first,  the  complaint is  that the  law  is, like  Moses's
tablets, a  mere codification  of some  other normative  facts, and
that  thus we  may not  properly  claim that  it is  the law  which
grounds our reasons to do as it demands.

To answer this  first version of the objection, it  is important to
understand the sense in which one fact's grounding another provides
a non-causal explanation for the second fact. [The apple is golden]
and [The  apple is delicious]  together ground and  thereby explain
[The apple  is golden and  delicious]. Similarly, according  to act
utilitarians,  the  claim that  [The  act  would maximize  utility]
grounds and thereby explains [The act is required]. By contrast, if
we imagine some  person who always speaks truly,  [This person says
that the apple is golden and delicious] would not ground [The apple
is golden and delicious], because this person's claim, though true,
would not explain [This apple  is golden and delicious]. Nor would,
for  the  act  utilitarian,  [This  person says  that  the  act  is
required] ground  or explain [The  act is required]. To  explain in
this non-causal way seems to be part of what it is to ground.

Now  compare two  similar cases.  In the  first, suppose  that some
king's  dictates  are  independently  normatively  binding  on  his
subjects, and suppose further that  those dictates are published in
a book of codes. In one  sense, we could plausibly claim that [This
act is  prohibited by  the codebook] grounds  [This act  mustn't be
done], but only insofar as [This act is prohibited by the codebook]
refers not to  the physical book but to the  abstract collection of
dictates recorded  there, so  that [This act  is prohibited  by the
codebook] is a shorthand for [This  act is prohibited by the king's
dictates]. This  is like the way  in which we can  only truly claim
that  an act's  being  prohibited by  Moses's  tablets grounds  our
reasons not to do  this act if we more fully mean  that it is God's
prohibition, which the tablets record,  that grounds our reason not
to do this act.  In this way, there is an  important sense in which
we may properly say that an  act's being prohibited by the codebook
non-causally explains the fact that we mustn't do this act.

In the second case, suppose that some unofficial observer privately
records the  king's dictates  in a notebook.  In contrast  with the
first case,  we could not  then plausibly  claim that [This  act is
prohibited by  the notebook]  grounds [This  act mustn't  be done],
because  the  notebook is  a  mere  private  record of  the  king's
dictates, and  [This act is  prohibited by the notebook]  could not
plausibly be a  shorthand for the claim that the  act is prohibited
by the king. It is more like the wind writing 'THOU SHALT NOT KILL'
in the sand, or  like, when I truly tell you that  you ought not to
do some  act, it is  not my telling you  so that explains  the fact
that you  ought not  to do  it. There  is no  sense in  which being
prohibited by the notebook non-causally explains the fact that some
act mustn't be done.

When we claim that

 [The law has some properties  {P}] and [The law demands that PHI]
 S together ground [S has a reason to PHI]

we  are, as  in the  first  case, making  a non-causal  explanatory
claim. There will  be further facts which ground the  fact that the
law  has such  properties, as  well as,  more pertinently,  further
facts  about what  makes those  properties give  the law  normative
force.  If there  are such  properties of  the law,  however, which
together with its demands ground reasons  for us to obey it, we may
properly say that those facts ground reasons for action, and we may
properly refer to  such reasons as reasons to obey  the law because
it is the law.

A second version of this objection  argues that, when we claim that
some properties of the law help ground  a reason for us to do as it
demands, we ought instead to claim  that it is those properties, or
whatever grounds  them, that ground  our reasons  to do as  the law
demands,  rather than  the  law  itself. If  some  facts about  the
democratic origins  of a law,  for instance,  are what make  it the
case that we have a reason to  do as it demands, then, according to
this objection, we should say that it is those origins, rather than
the law  itself, which give  us such a  reason. We should,  on this
objection, follow the  normative grounding 'all the  way back,' and
then  make  any grounding  claims  in  terms of  those  fundamental
normative grounds.

One answer to this objection is to  agree that we may often be able
to  make  grounding claims  in  terms  of other,  more  fundamental
grounds by  following the  chain of grounding  'back,' but  to deny
that such a move is always better. Indeed, it may on many occasions
be worse to do this. When claiming that

 [The  apple is  golden]  and [The  apple  is delicious]  together
 ground [The apple is golden and delicious]

it may not help, or it may be unnecessary, to reformulate the claim
in terms of the very many  further facts which ground [The apple is
golden] and  [The apple is  delicious] separately. The same  may be
said of the facts that ground our reasons to obey the law.

Another answer  to this objection is  to remark that, even  if some
property of the law, such as  its democratic origins, is what helps
make it the  case that we have  a reason to do as  the law demands,
the fact that the law has such  a property could not on its own, or
fully, ground such a reason. In other words, although we might make
the specific claim that

 [The law's  origins are  democratic] partially  grounds [S  has a
 reason to PHI],

it would be misleading to claim  simply that [The law's origins are
democratic] grounds [S has a reason  to PHI] because it is not only
the fact that the law has this property, but also the fact that the
law demands that S PHI -- that  is, S as a specific subject and PHI
as a  specific act -- which  together fully ground the  fact that S
has a reason to PHI. Alternatively, though we might, in the case we
are imagining, truly claim that

 [The law's origins are democratic] fully grounds [Subjects of the
 law have a reason to obey the law],

we would, in order to make  a specific claim about what grounds S's
reason to PHI, need to claim that

 [The law's  origins are democratic]  and [The law demands  that S
 PHI] together ground [S has a reason to PHI].

We could not then, as this version of the objection urges, make the
grounding claim  only in terms of  some fact or set  of facts about
the law's  properties. And we should  therefore not say that  it is
the law's  origins, rather  than the  law itself,  which give  us a
reason to do as it demands.

It should  be said too  that when considering which  properties {P}
may help ground our reasons to do  as the law demands, not just any
properties will  do. For, as I  have argued, the property  that the
law codifies morality could not  partly ground a reason for action.
The properties in question  must be, rather, distinctive properties
of the law in order to be able  to help ground a reason to obey the
law,  in the  way  that,  for example,  we  might  call some  law's
democratic  origin,  or  its  being  part  of  a  certain  kind  of
fair  system  of social  cooperation,  or  its  being issued  by  a
law-giving body whose authority  was consented to, such distinctive
properties.[31] While  we could  make the  grounding claim  only in
these terms, we could also  usefully summarize this grounding claim
as a claim about why we have  reasons to obey the law because it is
the law. In other words, we  may call the reasons grounded in these
ways legal  reasons, and we  may claim  that learning we  have such
reasons tells us  something important about the  normativity of the
law rather than merely about other familiar sources of normativity.
If  we learn  that democratic  lawmaking,  or legal  fair play,  or
consent to the law can help ground such reasons, we learn something
not only about the normativity  of democracy, fairness, or consent,
but about the moral force of the law itself.

### (b) External Objections

We can  turn next  to a  different kind  of objection,  which takes
issue not with what is entailed  by the view proposed here but with
what  it may  seem to  lack. In  classic discussions  of the  idea,
content independence is  typically mentioned in the  same breath as
another  property, which  Hart  calls  'peremptoriness,' Raz  calls
'preemptiveness,' and  which Rawls,  though he does  not give  it a
name, seems to have had in  mind in discussing what he calls 'rules
of practice.'[32] The thought uniting these discussions (which I'll
consider  in  more  detail  shortly) is  that  content  independent
reasons to obey  the law often render  certain other considerations
opaque  to  those  subject  to them  --  normally,  the  underlying
considerations that justify  such reasons, or other  reasons for or
against the  thing the  reason is  a reason to  do --  by excluding
those considerations  from a  subject's practical  deliberation. By
contrast,  I have  suggested that  we may  understand the  question
about the law's force simply  in terms of its distinctive normative
properties, and that  we may answer that question, or  begin to, by
thinking  about  the reasons  grounded  by  those properties.  This
suggests a picture of the relationship between subjects and the law
that is transparent with respect to the grounds and strength of the
law's  normative force.  It  may  thus be  objected  that the  view
proposed here is incompatible with the law's opacity.[33]

As  before,  we  can  helpfully distinguish  several  more  precise
versions of this objection. The first takes as its inspiration Hart
and Raz's  famous discussions of authoritative  reasons, which they
argue are both content independent and opaque.

Hart writes (endorsing a view he attributes to Hobbes) that

 [a] commander  characteristically intends his hearer  to take the
 commander's will instead  of his own as a guide  to action and so
 to take it in place of  any deliberation or reasoning of his own:
 the  expression of  a commander's  will that  an act  be done  is
 intended to preclude  or cut off any  independent deliberation by
 the hearer of the merits pro and con of doing the act.[34]

He  calls  authoritative  reasons   that  succeed  in  cutting  off
deliberation in this way 'peremptory.'

Raz, discussing the same topic, writes:

 One thesis I am arguing for claims that authoritative reasons are
 pre-emptive: the  fact that an authority  requires performance of
 an action  is a  reason for  its performance which  is not  to be
 added to  all other relevant  reasons when assessing what  to do,
 but should exclude and take the place of some of them.[35]

Following these  thoughts, it  might be  objected that  opacity and
content independence  are analytically  tied, and  that the  view I
have proposed  in this  paper cannot accommodate  this. For  I have
suggested that, in asking whether we  have reasons to obey the law,
we should look  to the various distinctive  normative properties of
the  law as  grounds  of  such reasons,  whereas  opacity seems  to
require that we  -- in our role  as subjects of the  law -- refrain
from precisely this kind of inquiry.

There  are several  answers  to  Hart and  Raz's  challenge. It  is
important to note, first, that content independence and opacity are
not analytically  tied tout court, in  the sense that neither  is a
property of or entails the other, nor are they necessarily mutually
co-extensive.[36] That  this is so is  clear enough as a  matter of
reflection, I think, but can also easily be seen by considering the
case of  threats. Threats  are archetypally content  independent --
one's reason to do as a  threatener demands arises in virtue of the
threat rather than in virtue of what  it is demanded that one do --
yet they  are not also  opaque. One thought, already  mentioned, is
that  the grounds  of opaque  reasons are  not transparent  (or not
meant  to be  transparent)  to those  to whom  they  apply. But  of
course,  the transparency  of  the facts  which  ground a  threat's
normative  force  -- the  badness  of  the threatened  consequences
together with the  conditional assurance that they  will be brought
about -- are crucial to  the threat's functioning. Another thought,
following Hart and  Raz, is that opaque reasons  replace or exclude
from consideration  other reasons bearing  on the act  in question.
Yet threats do no such thing.  Indeed, to weigh the reason given by
the threat together with all of one's other reasons for and against
doing the thing demanded seems precisely what is called for in such
cases. Threats, then, are not  plausibly sources of opaque reasons,
though they are  clearly content independent. So it  cannot be that
the two properties do not come apart.

It  may  be, however,  that  in  the  domain of  interest,  content
independence  and  opacity  always  come together.  This  leads  to
a  second  point.  For  both  Hart and  Raz,  opacity  and  content
independence   are  discussed   as  part   of  their   analyses  of
authoritative  reasons.  Moreover,  while content  independence  is
acknowledged to be a property  of many reason types, the possession
of  the  further  property  of  opacity  is  what  is  said  to  be
a  distinctive characteristic  of  authoritative  reasons. I  shall
consider in a  moment whether anything I have  said is incompatible
with this conception of authoritative  reasons. But before that, it
is worth noting  that I have not endeavored in  this paper to offer
an  account  of the  authority  of  law,  only  to ask  whether  it
provides  content-independent moral  reasons to  do as  it demands.
Whether opacity  is a  feature of  what it  is for  a reason  to be
authoritative, as Hart  and Raz suggest, is not a  matter we should
expect our more modest question to pertain to.

This narrow point  conceals a broader one. If the  arguments in the
remainder of this paper are correct,  then we may conclude that the
law  often  provides content-independent  moral  reasons  to do  as
it  demands,  and  moreover  that these  reasons  often  amount  to
obligations. This  conclusion alone undermines a  central strand of
philosophical anarchism. The fact that we may reach this conclusion
without  asking  the  further  question  of  whether  the  law,  in
providing these reasons, does so authoritatively -- as well as what
this  means, and  what it  adds --  is of  theoretical interest  in
itself.  We should  take  care to  distinguish,  in thinking  about
the  normativity  of  the  law,  the question  of  whether  it  has
reason-giving  moral  force from  the  question  of whether  it  is
authoritative. It  is a virtue of  the approach taken here  that it
allows us to see the space between these two questions.[37]

The challenge that remains is that  the view proposed in this paper
is incompatible with  the opacity of authoritative  reasons to obey
the  law. If  Hart or  Raz is  correct about  the character  of the
authority  of the  law,  and  if we  do  indeed have  authoritative
reasons to obey the law, then this incompatibility would count as a
strike against this  paper's main claims. I  believe, however, that
the view of  content independence proposed here  is compatible with
Hart and  Raz's notions of  opacity. To see  this, it will  help to
describe more precisely their views.

For  Raz,  an  authoritative  reason   is  really  two  reasons:  a
'first-order'  reason  for  action  as  well  as  an  'exclusionary
reason,' which is a species of 'second-order reason':

 A second  order reason is  any reason to act  for a reason  or to
 refrain from  acting for  a reason. An  exclusionary reason  is a
 second order reason to refrain from acting for some reason.[38]

An  authoritative reason  to  PHI is  thus, on  this  view, both  a
first-order  reason to  PHI as  well  as a  second-order reason  to
refrain  from  acting for  other  reasons  favoring or  disfavoring
PHI-ing.  This structure  is familiar,  Raz claims,  from promises,
which also  generate exclusionary  reasons. By way  of illustration
(to borrow one of Raz's examples),  if one has promised to consider
only  one's  child's  interests  in  decisions  about  the  child's
schooling, then  one has  an exclusionary reason  not to  make such
decisions for (among other things) self-interested reasons, such as
that it  would require  a career  sacrifice, mean  fewer vacations,
require substantial time driving to and from the campus, and so on.
These reasons are not to be considered in deliberation about how to
best educate the child.

Though he does not say so in  exactly these terms, what Hart has in
mind is something similar. Here he is again:

 [T]he expression  of a commander's  will that  an act be  done is
 intended to preclude  or cut off any  independent deliberation by
 the hearer of the merits pro and con of doing the act.[39]

Insofar  as  Hart  is  making   a  claim  about  the  character  of
authoritative  reasons  (rather than  the  mental  states of  those
issuing commands), we should read  him as claiming that in addition
to  being  a  reason  to  PHI, an  authoritative  reason  also  has
the  effect of  prohibiting further  deliberation about  whether to
PHI.  A  strong reading  of  this  prohibition would  preclude  any
contemplation of  the merits of  PHI-ing;[40] a weak  reading would
only  preclude such  considerations from  figuring in  deliberation
about whether to  PHI. On either reading, Hart  is suggesting, like
Raz, that  authoritative reasons  also regulate a  subject's proper
consideration  of  the various  other  reasons  that may  favor  or
disfavor PHI-ing, and so we may treat both as holding the view that
authoritative reasons entail exclusionary reasons.

Hart and Raz's claims are thus about the scope of reasons for which
it is appropriate for subjects  to PHI when the law authoritatively
demands that they PHI, as a matter of practical deliberation. It is
not  about  the considerations  that  in  fact  count in  favor  of
PHI-ing, nor  is it about the  further facts that ground  the law's
authority in  that case. It might  therefore be the case  both that
(as I have claimed)

1. [The  law has some properties  {P}] and [The law  demands that S
PHI] together ground [S has a reason to PHI]

and that (as Hart and Raz claim)

2. The reason  for which S should  PHI is [The law  demands that S]
PHI together with [The law is authoritative]

There  is no  incompatibility here.  (1)  is about  the grounds  of
subjects' reasons to obey the law, and (2) is about the reasons for
which subjects should  act when they consider whether to  do as the
law  demands. If  it is  also true  (though it  might not  be) that
the  properties  of  the  law  {P} are  those  that  make  the  law
authoritative, then (1) will help  explain (2). (Subjects must also
deliberate regarding whether a reason is authoritative, in order to
know whether (2) applies to them; (1) may in that case help them to
do so.) If not, then the  reasons grounded by those properties will
be  superfluous to  a  subject's deliberation  whether  to PHI.  In
either case, if  these theories about authority  are correct, there
is  a deliberative  opacity between  (1) and  (2) but  no conflict.
Again, it is a virtue of the  approach taken here that it allows us
to clearly see this relationship.

As  I  said, there  is  another  version  of this  objection.  This
objection is deeper, because  according to it, content independence
and opacity emerge as structural or logical consequences of the law
as a  rule-governed practice, such  that moral reasons to  obey the
law because  it is the  law must be  opaque.[41] A version  of this
objection  is suggested  by Rawls,  who argues  that "the  rules of
practices are logically prior to particular cases," which is to say
that

 given  any rule  which specifies  a form  of action  (a move),  a
 particular action which would be taken as falling under this rule
 given that there  is the practice would not be  described as that
 sort  of  action unless  there  was  the  practice. In  the  case
 of  actions specified  by  practices it  is logically  impossible
 to  perform  them outside  the  stage-setting  provided by  those
 practices,  for unless  there  is the  practice,  and unless  the
 requisite proprieties are fulfilled,  whatever one does, whatever
 movements one makes, will fail to count as a form of action which
 the practice specifies.  What one does will be  described in some
 other way.[42]

As an example, Rawls offers the  rules of baseball. In baseball, to
record three strikes at  bat just is to strike out,  and the act of
'recording a  strike,' as  well as  the states  of being  'at bat,'
'out,' and  so on are defined  by the rules of  baseball. Thus, the
question

 Shall I stay at bat after my third strike?

can  only be  answered, and  an answer  can only  be justified,  by
reference to the  rules of baseball. After a third  strike, one has
struck out; and once one has struck  out, one is no longer to be at
bat. This  is true even though  in another frame of  mind, we might
wonder whether the rules of baseball  are the best rules, should be
amended, and so on. As  a player, Rawls argues, such considerations
simply  do not  bear on  the question  of what  to do,  and so  are
excluded from a player's deliberation about how to act.

Since this question is about one of the many rules of baseball, the
same might be thought true of the general question

 Shall I obey the rules of baseball?

Likewise, the answer to this question  might be thought to be given
only by  the fact  of whether  one is playing  baseball or  not. If
one  is  playing,  the  rules  simply apply  to  one,  and  further
considerations are  excluded. So while  one might ask in  the first
instance whether to  play baseball or not, once one  has decided to
play, there is no further question  of whether to play as the rules
demand.  To play  just  is to  have the  rules  apply. The  general
question is thus necessarily answered in the affirmative.

This way of conceiving rules  of practice renders the reasons given
by them content independent. An individual player is to take as her
reason for (say) returning to the  dugout the fact that she is out,
which is made  true by the three  strikes she has had  at bat. Both
are made  true by the rules  of baseball, which might  have defined
being 'out' differently or which might have required something else
of a player who strikes out. Her  reason to return to the dugout is
thus grounded by the fact that the rules apply to her together with
the fact of what the rules  require, rather than by the independent
merits  of returning  to the  dugout or  not. It  is, in  this way,
content independent.

Importantly, this form of content  independence is also opaque with
respect  to the  underlying  justification of  the  rules. This  is
because the normative properties of the rules which justify them --
e.g. that  they are most  conducive to fun,  competition, fairness,
and so on -- do not also ground  the fact that the player is out or
the fact that  the rules apply to her.[43] Those  properties do not
therefore ground the player's reason to return to the dugout. Since
the normative  properties of the  rules do not ground  the player's
reason to obey them, the reason is therefore opaque with respect to
those properties, and they are  excluded as reasons bearing on what
she is to do.

It is easy to  see, by analogy, how the same  might be thought true
of the law  and our reasons to  do as it demands. For  just as some
acts and states are defined by  the practice of baseball, so too we
might think that  some acts and states are defined  by the law.[44]
Thus, perhaps the question

 Shall I pay x dollars to the tax collector?

can only be answered by reference to the law of the land, since the
tax regime,  the office of the  tax collector, and even  the dollar
and the very notion of tax are  defined by the law. Again, it might
be thought that the tax law  simply applies to one, such that there
is no intelligible  question of whether to obey. (Or  at least that
this is  true insofar  as the  tax law applies  to one.)  And while
there may be good reasons to adopt  this tax code or that one, such
questions apply at the level  of legislation and regulation, not to
an  individual subject  wondering whether  to write  a check  for x
dollars to the revenue service.

Again, likewise, it might be thought that this question about taxes
is just one instance of the more general question

 Shall I obey the law?

and that the interrogative form  of this general question disguises
the important truth that the law simply applies to those subject to
it. We are all playing, and the rules apply to us all.

If this were  true, then content independence would  similarly be a
structural  property of  the way  the  law creates  demands on  its
subjects,  and the  reasons for  those  subjects to  obey would  be
opaque  with respect  to the  considerations that  justify the  law
itself.

However, whatever conclusions we should draw from Rawls's argument,
it should be  clear that they cannot be these.  We can intelligibly
ask whether or not  to obey the law, or this law  or that law, even
when the acts  we are considering whether or not  to do are defined
by the law; and the mere fact of the law's application to us cannot
settle  that  question.  Indeed,  we can  see  on  reflection  that
precisely the  same is true of  a player wondering whether  to obey
the rules of a game.

This is, first, because on Rawls's analysis, a question of the form

 Shall I stay at bat after my third strike?

and in the relevantly similar sense, so too the question

 Shall I pay x dollars to the tax collector?

is a question not about what to do but rather a question about what
the  rules are.  They are  thus  not particular  instances of  more
general questions about whether to obey the rules. To the contrary,
that  general  question can  still  be  asked, in  both  cases.[45]
Perhaps the player has reasons to break the rules by staying at bat
after a third strike -- reasons  from within the game, such as that
it would beneficially delay the  game;[46] or reasons from without,
such as that  doing so would serve as some  political protest. Then
the player may sensibly ask whether or  not to obey that rule, as a
way of  asking whether to  continue within the  practice. Likewise,
those subject to the  law may sensibly ask whether or  not to do as
it demands. We can ask this  question from within the practice, and
considerations from  both within  and outside  of the  practice can
bear on the  answer. Since we are concerned here  with the question
of  whether to  obey the  law,  not the  question of  what the  law
demands  when it  apply  to us,  it is  important  that the  former
question is seen not to be  opaque with regard to reasons that come
from outside the practice. It  is, rather, transparent in precisely
the way I have been suggesting so far.

Second, Rawls himself  suggests that questions about  acts that are
practice-defined may be re-described in other, non-practice-defined
terms,   or  may   inevitably   entail  giving   answers  to   such
questions.[47] Thus to answer the question

 Shall I stay at bat after my third strike?

might also be described as, or entail an answer to, the question

 Shall I continue standing here, on this spot, now?

The   latter    question   makes   no   necessary    reference   to
practice-defined  states  or  acts,  and  so  may  be  answered  by
reference to all of the reasons for and against continuing to stand
in that  spot. (Perhaps  you promised you'd  do so;  perhaps you're
being threatened not to move; etc.) Importantly, the answer to this
wider  question may  supersede the  answer to  the first,  since it
includes in  it the value of  abiding by the rules  of the practice
versus the disvalue of breaking them.

The point  is easier to see  when we consider certain  questions of
law. For Justice Lemuel Shaw, to answer the question

 Shall I order Thomas Sims  returned to slavery in accordance with
 the Fugitive Slave Act?

was also to answer the question

 Shall I bring it about that Thomas Sims is re-enslaved?

The first question might have  been decidable only by the standards
of the  law, but to  answer that question was  at the same  time to
answer  the second  question,  which clearly  involves wider  moral
considerations,  including those  concerning the  value of  the law
itself. (This is true, I think, even if the state of enslavement is
taken to  be defined  by a  legal practice.)  To argue  that Shaw's
question  was fully  settled by  the law,  or that  the law  simply
applied to  Shaw's judicial  act, is to  ignore the  clear conflict
between  the  demands  of  the  statute  and  the  requirements  of
morality.[48]

We  can put  the point  generally. Systems  of rules  generate, for
those subject to them, content  independent reasons: insofar as one
is aiming to  act within a practice, one's reason  to PHI arises in
virtue of the rules of the practice, rather than in virtue of facts
about PHI-ing  as such. From  within the practice, one's  reason to
PHI may be opaque. But one can also ask whether the act required by
the  practice can  be redescribed  in  other terms,  or whether  to
decide to  do that act  is also to decide  to do some  further act.
Wider considerations  may bear  on this  further question,  and the
answer to  it may impinge the  answer to the first.  The opacity of
rule-given reasons, then, may in this way be made transparent.

If  I  am right  about  these  ways  to answer  Rawls's  challenge,
then  this  version  of  the  objection fails  as  well.  Even  for
practice-defined acts  demanded by the  law, we can ask  whether we
ought to do them.  This question is not opaque: it  calls for us to
think about the various normative  properties of the law that might
give us reason  to obey or disobey.  It also, in the  manner I have
been describing, remains content independent:  if we have reason to
obey, it will  be in virtue of those distinctive  properties of the
law,  rather than  in virtue  of properties  of the  thing the  law
demands we do.

## IV. Anarchism

Even if it may be claimed, as  I've argued it may, that there could
be  genuinely  normative,  content-independent  moral  reasons  for
action given by  the law, it remains to be  shown that such reasons
do in fact  exist (or, as I  shall more modestly claim,  that it is
plausible that such  reasons exist). We can turn  finally, then, to
the question  of whether, and in  what sense, we might  truly claim
about the law that it provides such reasons.

Let us begin with the easier issue  of in what sense we might truly
make such claims. As I noted at  the beginning of this essay, it is
telling  that the  'traditional  question' in  the  study of  legal
obligation, and indeed  the name of the field  itself, concerns not
reasons to obey the law but our  obligation to do as it demands. We
may restate this  traditional question of whether  we are obligated
to  obey  the law,  because  it  is  the  law, as  the  'obligation
question':

 Does  the law  provide genuinely  normative, content-independent,
 and normally decisive moral reason to do as it demands?[49]

In order to answer Yes to  this question, we would need to identify
some property  or properties  of the law  which, together  with the
law's  demanding that  we  act, fully  ground  our having  normally
decisive moral reason to so-act.

I do not doubt that historically, some have thought it plausible to
provide an  affirmative answer  to the  obligation question  and to
identify such  properties. We might,  for instance, agree  with the
First Vatican Council that

 (A)  the  Pope  is  the  earthly representative  of  God  and  is
 preserved from the possibility of error,

 (B) The  law as  handed down  by the Pope  (the 'Pope's  law') is
 normatively  binding, in  the sense  that we  each have  decisive
 reason to do as it demands,

and that therefore

 (C) the Pope's law provides  each of us with genuinely normative,
 content-independent,  and  decisive  moral  reason to  do  as  it
 demands.[50]

Alternatively, as  in an earlier  example, we might hold  a similar
view about the obligation of subjects  to obey the laws handed down
to them  by monarchs,  in view  of the natural  right of  kings and
queens. Such  a right  might, like  the Pope's,  or as  on Filmer's
view, be grounded in divine right or revelation, or else, as on the
common reading of Hobbes, be  grounded in the necessary covenant of
each to every other in order to gain protection from the war of all
against all.

Such defenses of the affirmative  answer to the obligation question
do not,  however, strike  me as  plausible, nor  do I  suppose they
strike  many as  plausible today.  And yet,  despite this,  writers
persist in treating the obligation question as the one that demands
an  answer.[51] This  insistence, unsurprisingly,  has led  many to
answer No,  and instead  to endorse  some version  of philosophical
anarchism. For  if we  must endorse  either the  view that  the law
always  gives  us  genuinely  normative,  content-independent,  and
normally decisive  moral reason to  do as  it demands, or  the view
that  it gives  us no  reasons at  all, the  anarchist's choice  is
clearly  the best  one.  Faced with  such a  dilemma,  it would  be
difficult to adopt any other position.

But this dilemma,  I think it is  clear, is a false  one. We should
not normally expect the law to in all cases give us decisive reason
to do as it demands.[52] Rather, I believe we should expect the law
in many cases to add to the balance of reasons in favor of doing as
it demands,  by providing some  reason for action. The  strength of
the  reasons so-provided  by the  law may  vary according  to which
property or  properties give  it normative  force, but  the reasons
should be  perceptible nonetheless  when we  look for  them. Often,
such reasons will do the more important job not merely of providing
some reason to act but of contributing, alongside other reasons, to
making it the case  that we ought to do as the  law demands, in the
decisive reason-implying sense -- and thus  in part, we can add, to
contributing to  making it the case  that we ought to  do the thing
the law demands because the law demands it. And occasionally, or so
I shall  argue, legal reasons may  ground our obligations to  do as
the law  demands not merely  in part but  rather fully make  it the
case  that  we  ought to  do  as  the  law  demands. In  this  way,
then,  we  can  see  the  law as  giving  us  genuinely  normative,
content-independent moral  reasons to  do as it  demands, in  a way
that  does not  amount  or  tend to  any  version of  philosophical
anarchism.

We can now turn to the more difficult question,

 Which  property  or properties  of  the  law, together  with  its
 demanding that we act, may plausibly give us a reason to so-act?

It is worth  emphasizing again that I shall pursue  only the modest
goal of attempting  to show that certain properties of  the law may
plausibly help  give us  genuinely normative,  content- independent
moral  reasons  for  action,  rather than  attempting  to  mount  a
conclusive or even very strong argument that they do so. I shall do
this by briefly  sketching the ways in which  theories of political
and legal obligation may be easily and plausibly recast as theories
of political  and legal  reasons. And  although this  weakens these
theories, it  also makes  them more  plausibly true;  and moreover,
when viewed in this way, I think  we may more clearly see how these
theories  may  together  give  us something  resembling  a  blanket
obligation to obey the law.[53]

I should first  point out that many of  the leading non-voluntarist
theories of  political and legal  obligation may be recast  as more
modest theories  of sources  of political  and legal  reasons. Fair
play theories  provide a  clear example.  When Nozick  objects, for
instance, that we cannot come  under an obligation to others simply
because they have conferred some benefit upon us,[54] we may answer
that  the conferral  of certain  benefits may  nonetheless generate
some reason  for us to  participate appropriately in the  system of
benefits. Such  an answer  is plausible even  in his  famous public
address system case:  when it is your turn, you  are, let us agree,
not  obligated to  perform, in  the sense  that you  do not  have a
decisive reason to do so, but if you have enjoyed the fruits of the
cooperative enterprise, then you may  plausibly have some reason of
fairness to do your  part in the future. In the  analog case of the
state, this may  result in reasons of fairness to  obey the law. (I
do  not argue  that this  is  clearly true,  only that  it is  very
plausibly true  -- and much  more plausibly true than  its original
obligatory counterpart.)

Or, to take a similar example, when Klosko claims that:

 (A) if some state is a cooperative enterprise, and

 (B) if this  state, through its laws, provides  its citizens with
 presumptively beneficial, fairly distributed goods

He might conclude either that

 (C) the state's  citizens have an obligation of  fairness to obey
 its laws

or instead, more modestly that

 (D) the  state's citizens have reasons  of fairness to do  as its
 laws demand.

Klosko's conclusion  is in  fact (C)  but it needn't  be. (D)  is a
weaker conclusion and is thus easier to establish and open to fewer
objections. It  is also, I  think, much more  immediately plausibly
true.  The  reasons given  by  (D)  may or  may  not  amount to  an
obligation to  do as the law  demands, but would rather  provide us
with some reason, by counting in favor of our doing so.

Note here one important fact, which  is that for theories like this
to  successfully give  us  genuinely normative  content-independent
legal (and moral)  reasons for action, it must be  some part of the
law  that provides  us with  the  goods whose  receipt grounds  our
reasons  to obey  the law's  demands. That  is to  say, if  we have
reasons in virtue  of some principle of fairness to  do our part in
some collective enterprise, those reasons are only legal reasons of
the  kind we  have  been  here discussing  if  the  product of  the
collective enterprise is in some way secured by the law. Otherwise,
our reasons to do our part  will be just that, and any specifically
legal demand that we do so will merely restate those reasons rather
than giving us new, additional ones.

Other non-voluntarist  theories of  political and  legal obligation
may  be similarly  recast  in this  way,  including theories  built
around  principles of  gratitude, samaritanism,  and natural  duty.
That is  because all  such theories  identify some  moral principle
that, they argue,  is operative in virtue of the  existence or some
other feature of the  law. Any such theory, as in  the case of fair
play theories, may more easily  establish that the moral principles
they identify  provide some reason to  obey the law than  that they
provide normally decisive reasons to do so.

Recasting these  theories in  this way  has benefits  beyond making
their conclusions  easier to  establish. Understood  as independent
sources of  reasons to  obey the  law, these  theories may  be very
naturally combined  to generate  stronger reasons  to obey  the law
than any one of  them provides on its own. It may  also be the case
that some principles  provide reasons to obey the law  in only some
rather than  all domains, or  reasons whose strength  varies across
different domains of  the law. Combining such  principles may allow
us to  claim that  there are  widespread reasons  to obey  the law,
because it is the law, in  ways that would be impossible drawing on
any one principle alone.  Acknowledging this possibility, moreover,
may help  our theories better  match our sense  that it is  in some
cases much more important to obey  the law than in other cases. The
question facing these recast theories is thus not 'Is the principle
relied  upon by  this  theory sufficient  to generate  wide-ranging
obligations to  do as  the law demands?'  but, much  more modestly,
'Does the principle relied upon  by this theory generate reasons to
do as the law demands?'

A similar point may be made  about theories attempting to ground an
obligation to  obey the law  in the  fact of some  laws' democratic
provenance. Such theories claim that

 [L was generated  by a democratic process] and [L  demands that S
 PHI] together ground [S has an obligation to PHI]

Naturally, however,  we might  instead make  the more  modest claim
that

 [L was generated  by a democratic process] and [L  demands that S
 PHI] together ground [S has a reason to PHI]

In  these claims,  of  course,  [L was  generated  by a  democratic
process] stands in  for a more complex statement of  the feature or
features had by democratic laws in virtue of which those subject to
them may  be obligated or  have reason to  do as they  demand. When
Christiano  argues,  for  instance, that  (roughly)  democratically
created laws  treat each  citizen equally  with respect  to certain
questions about what we together  should do, regarding which no one
has greater claim or standing to give an answer than any other,[55]
or when Kolodny writes that  "[t]he concern for democracy is rooted
in a  concern not to have  anyone else above--or, for  that matter,
below--one,"[56]  each is  arguing that  it is  this more  specific
feature of  democratically created laws  which in part  grounds our
obligation to obey those laws.

This  is  not,  I should  say  again,  the  place  to engage  in  a
discussion of whether Christiano's or Kolodny's claims, or those of
other democratic  theorists, about democratic  political obligation
succeed,  nor do  I here  mean to  endorse either's  claim to  that
effect  or my  suggested weaker  version of  those claims.  Rather,
I  mean  only  to  claim that  these  arguments  provide  plausible
accounts of one source  of genuinely normative, content-independent
moral  reasons to  do as  the law  demands; and  that, as  with the
non-voluntarist accounts  I made similar claims  regarding earlier,
such accounts of  the source of legal reasons may  be combined with
others,  and may  vary in  presence and  strength across  different
domains of the law.

Some consent theories may also be  recast in this way. According to
consent theories,  S is obligated to  obey L just when  and because
some combination of (1-4) holds:

--- ---------------- ----------------------------------------------
1.  ordinary consent S has consented to do as L demands; or

2.  tacit consent    S has tacitly consented to do as L demands; or

3.  hypothetical     S would so-consent if S knew all the facts,
   consent          deliberated rationally, and so on; or

4.  normative        S should so-consent.[57]
   consent
--- ---------------- ----------------------------------------------

Of course,  if S  has consented to  obey the law,  it may  often be
accurate to claim that S is  obligated to do as it demands, because
S's consent grounds a normally decisive  reason to do so. But it is
worth emphasizing with respect to conditional and normative consent
theories that these theories may be much more plausible as theories
of the sources of reasons to so  as the law demands rather than the
sources of  obligations to do  so. It  is much more  plausible, for
example, to argue that [S would consent  to obey the law] gives S a
reason to obey the  law than that it gives her  an obligation to do
so.[58] (Of course, such a reason  may alongside others amount to a
decisive reason. In this way, conditional or normative consent to a
law may partially ground an obligation to obey it.)

There  is  one  other  plausible  source  of  genuinely  normative,
content-independent moral  reasons to obey  the law that I  wish to
take a  bit more  time over here,  because I believe  it may  be of
particular  importance.  This  source  is the  law's  often  unique
ability to solve coordination problems.

It will help to consider the case  of traffic laws. Those of us who
drive  each have  some reasons  not given  by the  law to  drive in
certain ways:  these can be helpfully  summed up by saying  that we
have all  the summary reason  to drive  safely. One of  the reasons
summarized by this reason is the reason we all have to drive on one
side of the  road; another is to  drive at a safe  speed. But these
reasons are  in an important  sense incomplete. If we  are driving,
say, on  many highways  in the  United States,  we have  reasons to
drive on the right side of the road and to drive in the vicinity of
55  MPH. When  we are  in other  places and  on other  roads, these
reasons change. But wherever we  are, these reasons are grounded by
facts about the law.

This last claim might be doubted. The speed at which we have reason
to drive  on some road, for  instance, is determined partly  by the
road itself, by  the capabilities of our cars, and  by how fast and
how many  others are traveling.  It may  seem that the  legal speed
limit  is superfluous,  or that  it merely  formalizes these  other
reasons. But this argument neglects  the further reason we all have
to drive  in the vicinity  of some single, particular  speed. Which
speed this is may be limited by the road, our cars, and how many of
us  there are,  but this  speed is  not fully  determined by  these
facts. The law accomplishes this latter task.

Similarly, it  may be  rightly pointed  out that the  law is  not a
necessary ground  of our reasons to  drive on this or  that side of
the road.  If there were no  law concerning which side  of the road
to  drive  on, people  might  just  work  out for  themselves  some
convention. If they did, these people  would have a reason to drive
on whichever side of the road that convention dictated.

Equally, if the law in some place demanded that we all drive on the
left, whereas in fact everyone  followed the practice of driving on
the right, each driver would have most reason to drive on the right
-- and  it is  plausible to  think that each  driver would  have no
reason to drive on the left.

But this is not  an objection to the view I am  defending. I do not
claim that the  law is a necessary ground for  our reasons to drive
on  one side  or another,  or to  drive at  a certain  speed; I  am
claiming only that it  is in fact the ground of  many of our actual
such reasons. It is not enough to say that we each have a reason to
drive on the side of the road on which most other drivers drive. We
together must  at some point  take some actions or  decisions which
determine the particular side that is.  This could take the form of
legislation,  or  it  could  be established  through  more  complex
patterns of convention. In the actual  case of the United States, I
submit that it is the law  that secures the relevant convention; it
is the fact that  the law demands that we drive  on the right which
partially grounds our reason to drive on the right. In other words,
we cannot state the facts which ground

 [we each have  reason to drive on  the right side of  the road in
 the United States]

or

 [we each have reason to drive  near 55 MPH on certain highways in
 the United States]

without making reference  to the fact that the law  demands that we
do so. We may thus, as I  argued earlier, call our reasons to drive
in these ways content-independent legal reasons.[59]

Reasons given  by coordination problems  solved by the law  such as
these may be, I believe, quite  weighty reasons. Very seldom will I
have sufficient reason to drive on  the side of the road other than
the side demanded by  the law. I think it is  therefore fair to say
that we are obligated to drive on  the side of the road demanded by
the  law, and  we  are  so-obligated because  it  is  what the  law
demands.

We can next  observe that traffic laws are not  a special case, but
rather one  of very  many sets  of laws whose  purpose is  to solve
coordination  problems. I  shall not  defend this  claim at  length
here,  except  to  mention  that  many of  the  core  functions  of
political organization are to help  us live our lives together, and
include the  establishment of  property regimes,  monetary systems,
rules  of exchange,  and  indeed  traffic laws,  all  of which  are
at  least partly  conventional;  and  so the  reasons  we may  have
with  respect to  these  domains of  law will  be  at least  partly
grounded  in the  fact  of the  law's demands.[60]  If  I am  right
that conventionally-determined  reasons of this kind  are genuinely
normative, content-independent  moral reasons  for action,  then it
seems that they  are quite widespread and quite  forceful. On their
own they  might license my  claim that  we do plausibly  often have
genuinely normative, content-independent moral  reasons to obey the
law; and combined with the  other plausible sources of such reasons
I have already mentioned, we may well be obligated to obey the law,
because it is the law, much more often than we might otherwise have
thought.

## Conclusion

It may  now help to sum  up some of  my main claims. I  have argued
that when we consider the question,

 Do we have reasons  to do as the law demands,  because it is what
 the law demands?

we should understand  the 'because' in the question  as the because
of grounding. On the view I have defended, if we have such reasons,
it  is because  there is  some  fact about  the law  that at  least
partially grounds the fact that we  have such a reason. This, on my
view, is what  we should mean when  we claim that the law  may be a
source of content-independent reasons to do as it demands.

I argued  next that, once we  see that this is  what it is to  be a
content-independent reason to obey the law, we can see that we very
plausibly  have many  such reasons.  This  is because  many of  the
leading theories of political and legal obligation may be recast as
theories  about  content-independent  reasons  to  do  as  the  law
demands. When recast  in this way, these theories'  main claims are
easier  to establish;  and although  they are  thereby individually
weaker, they  may gain the  advantage of  being true, and  they may
also  be  combined with  each  other  to provide  stronger  summary
reasons to obey the law. Understanding  our reasons to obey the law
in this  way, I claimed, may  also help explain our  intuition that
such reasons may vary in  strength across various circumstances and
the various domains of the law. If these theories may be recast and
combined in this way, I also argued,  and if the law is a source of
content-independent reasons for  action in the many  cases in which
it helps solve  coordination problems, then such  legal reasons may
very often be sufficiently strong to make it the case that we ought
to obey the  law. In other words,  we may very often  not only have
genuinely normative, content-independent moral  reasons to obey the
law but obligations to do so.

I have  also argued  that we need  not be  philosophical anarchists
just because we  believe that no one theory of  political and legal
obligation  has successfully  established  such  an obligation.  We
should, I  suggested, be engaged  in the more modest  enterprise of
looking for reasons  to obey the law, and  then investigating their
strength and  the domains  over which  they range.  In this  way, I
believe, we are likely to find a picture of our reasons for obeying
the law  that more accurately  reflects our considered  views, and,
importantly, a picture that does not tend toward anarchism.

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## Notes

[1]  Following  common  practice   in  this  literature,  I'll  not
distinguish  between  obligation and  duty.  My  discussion of  the
former  should be  read  as applying  as well  to  the latter.  The
best-known  view  that  does  distinguish these  concepts  in  this
context  is  Rawls's.  For  him,  obligations  are  interpersonally
incurred  (like  promises,  for  example), whereas  duties  may  be
'natural.' (See Rawls, A Theory of Justice, 98-101, S19)

[2] I  substantiate this  point in slightly  greater detail  in the
next  section.  Beyond this,  the  benefit  of asking  the  reasons
question  before the  obligation  question will  also  (I hope)  be
demonstrated by the fruit of what follows, taken as a whole.

[3] Matthew Noah Smith goes so far as to write that "there may be a
consensus amongst  moral and  political philosophers that  there is
not  today  any  existing  obligation to  obey  the  law."  (Smith,
"Political  Obligation  and  the  Self")  (Similar  claims  may  be
found  in Edmundson,  "State of  the  Art"; Gur,  "Are Legal  Rules
Content-Independent Reasons?";  Klosko, "Are  Political Obligations
Content Independent?")

[4]  I do  not here  address  Wolff's early  anarchist view,  which
focuses  on   the  agential  costs  to   following  an  authority's
directive, nor Smith's recent defense of a related view. To address
these  views, distinctive  as they  are, would  require a  separate
paper.  As Smith  notes, moreover,  that view  "has never  had much
traction"  in the  literature (though  his paper  is an  attempt to
revive it). (See Wolff, In  Defense of Anarchism; Smith, "Political
Obligation and the Self").

[5] See (Markwick, "Law and Content-Independent Reasons"; Markwick,
"Independent  of  Content")   (Sciaraffa,  "On  Content-Independent
Reasons" argues for a similar conclusion).

[6] (Scanlon, Being Realistic about Reasons, 1-15).

[7] (Parfit, On What Matters, 31-37).

[8]  Some refer  to  these as  'pro  tanto' reasons,  as  a way  of
indicating that these reasons can  weigh together, outweigh, and be
outweighed by other  reasons. For my purposes,  writing 'pro tanto'
in front of 'reason' does not add anything, as all of the reasons I
discuss  can weigh  together, outweigh,  and can  be outweighed  by
other reasons.

[9] There  are other senses  of 'ought,' but  I shall stick  to the
decisive reason-implying sense here.

[10] The exception to this is when I consider the view, defended by
Hart and Raz, that our reasons to  obey the law require that we act
for certain reasons and not others. See Section III(b).

[11] It  may be natural  to talk of some  people, or even  the law,
'giving reasons' to others, but  such talk is often misleading, and
I shall avoid it. Facts supply  reasons, and the only helpful sense
in which people may give reasons to others is by helping create (as
by  promising or  commanding) or  by  calling attention  to (as  by
pointing out) such facts. (On this point, see Enoch, "Reason-Giving
and the Law")

[12] For  instance, a common  thought is that for  S to be  under a
moral obligation  to PHI is for  it to be  wrong for S not  to PHI.
While this may  be an attractive understanding  of moral obligation
in general, it is less clearly  helpful in the context at hand, not
least  because it  is unclear  who or  what would  be wronged  by a
failure to obey the law. By contrast, Green analyzes obligations in
this  context as  requirements with  which subjects  are "bound  to
conform," where  the notion  of being bound  is explained  as being
"non-optional"  or compulsory.  (See Green,  "Legal Obligation  and
Authority", italics  in the original.)  He is here  following Hart,
who makes similar remarks in ("Legal and Moral Obligation") This is
intuitively  closer  to  what  I believe  most  theorists  in  this
literature have in  mind, although it is clearly  stronger than the
previous  conception. Moreover,  these  further  notions (of  being
'bound,' 'non-optionality,' and so  on) are hardly more perspicuous
than the original.

[13] Edmundson makes a similar claim, writing that the duty to obey
the law  is regarded 'as  one that is ordinarily  decisive' despite
being 'subject  to being  defeated or outweighed  by countervailing
moral considerations.' (See "State of the Art," 215-16)

[14] Throughout  the paper,  I'll use  brackets to  indicate facts:
'[r]' means 'the fact that r.'

[15] Essays on Bentham, 254. It  has often been remarked that, pace
Hart, intention seems largely beside the point.

[16] Raz, The Morality of Freedom, 35-37.

[17] The  notion is typically  understood to allow  limiting cases,
such  as when  the law's  demands are  grossly immoral,  unjust, or
perhaps when  the law's demands  are too demanding. I  shall ignore
such limiting cases -- while acknowledging their deep importance in
other contexts -- for the purposes of this discussion.

[18]  Strictly  speaking, it  thus  seems  both more  accurate  and
clearer to refer to  PHI as the object of S's  reason to PHI rather
than  its content,  but it  is probably  too late  to correct  that
particular error.

[19]  (Markwick, "Law  and Content-Independent  Reasons," 582).  In
this paper  and in ("Independent  of Content," Markwick  often uses
the phrase 'a reason' to PHI  to mean sufficient or decisive reason
to PHI) As I shall argue, however,  it is much easier to argue that
the  law does  not in  all cases  provide, on  its own,  sufficient
reason to do as it demands, than  to argue that it does not provide
a reason, or any reasons, to  so-act. We should consider the latter
claim about reasons first, and only then move on to stronger claims
about sufficient and decisive reasons.

[20] (Markwick, "Law and Content-Independent Reasons," 592).

[21]  An anonymous  reviewer points  out that  Markwick's challenge
might  be thought  to  be directed  at  a straw  man,  in light  of
Rawls's famous distinction between the justification of a practice,
following the  rule-utilitarian maxim, and the  justification of an
act falling under a  practice, following the act-utilitarian maxim.
(See  -Rawls,  "Two Concepts  of  Rules")  On Rawls's  view,  legal
reasons pertain  principally to the justification  of practices and
should  therefore  be  construed  as  rule-utilitarian  in  nature,
rendering  Markwick's act-utilitarian  examples inapt.  I take  the
point to be friendly: if the  answer to the question (say) 'ought I
to obey my promise  to PHI' should be given in  terms of my reasons
to obey my promises rather than my  reasons to PHI, then there is a
clear element of content independence to those reasons. If my legal
reasons are generally of this nature, then the same will be true of
them. That this  characteristic may be shared by  legal reasons and
other  rule-utilitarian  reasons  --  and especially  if  we  think
the  character  of  morality  in general  is  rule-utilitarian  (or
rule-consequentialist) in  nature --  would not,  on my  view, show
the  property  of  content  independence  to  be  uninteresting  or
uninformative with respect to our reasons to obey the law.

The  same  reviewer  notes  that  on  Rawls's  view,  asking  about
the  justification of  a practice  introduces an  important opacity
regarding the justification of acts falling under that practice, at
least when those acts are  constituted by the practice. The thought
is that (for instance)  if I have promised to PHI,  the fact that I
ought  to obey  my promises  renders inappropriate  further inquiry
regarding the question of whether I ought to PHI. I take the view I
propose to  be compatible with  various thoughts about  'opaque' or
'excluded'  reasons,  a  point  I discuss  extensively  in  Section
III(b).

[22] (See inter alia Berker, "The Unity of Grounding"; Fine, "Guide
to Ground"; Rosen, "Metaphysical Dependence")

[23] (Locke, Two Treatises of Government, ch. 5, S29, my emphasis).

[24] (Ross, The Right and the Good, 46, my emphasis on 'makes').

[25] (Rawls, A Theory of Justice, 114, my emphasis).

[26] (ibid., 441, my emphasis).

[27] (Cohen, Rescuing Justice and Equality, 89, my emphasis).

[28] I have  given only a few  easy examples. A search  of works in
moral and political philosophy for the terms 'in virtue of,' 'makes
it the case that,, and 'when and because' will give a sense of just
how often the  normative grounding relation is appealed  to. Nor is
this a  distinctively contemporary or even  modern phenomenon. When
Plato's Euthyphro asks whether acts are pious because the gods love
them, or loved by  the gods because they are pious,  he is asking a
question about normative grounding. (In -Jay-Z and West, "No Church
in the  Wild." Jay-Z asks  the same question poetically:  'Is Pious
pious 'cause  God loves pious?' He  too is asking a  question about
grounding.)

[29] There are also many  non-normative examples of the distinction
between  full and  partial grounding,  which may  be clearer:  [The
apple is golden  and delicious] is fully grounded by  [The apple is
golden]  and  [The  apple  is delicious]  together,  and  partially
grounded by each of those facts separately.

[30] One of the law's properties  is of course that it demands that
S PHI, and  another is, presumably, that it demands  that a certain
set of people,  including but not solely consisting of  S, PHI. The
first would  merely repeat [The law  demands that S PHI],  since to
make this claim is to make the  claim that the law has the property
of  demanding that  S PHI,  so would  not in  that case  constitute
additional partial  grounding for [S has  a reason to PHI].  As for
the second, to claim that the wider  [The law demands that a set of
people  {S, ...}  PHI]  together with  its  instantiation [The  law
demands that  S PHI] grounds  (if indeed it  does ground) [S  has a
reason to  PHI] is not  importantly different from  simply claiming
that the instantiation alone can do this work.

[31] We can also see in  this way how some putatively or apparently
normative properties of  the law might fail to  be truly normative.
If a  democratic lawmaking process,  and the laws it  produces, are
justified because those laws are  more likely to accurately reflect
underlying moral demands, this may  ground a reason to believe that
we ought to do as the law demands, but it could not itself ground a
further reason to so-act.

[32]  The notions  are  distinct, though  they  are similar  enough
mention as  a group. I'll  discuss some of the  differences between
them below. See Hart, Essays on  Bentham, ch. 10; Raz, The Morality
of Freedom, chs.  2-3; Raz, Practical Reason and  Norms; and Rawls,
"Two Concepts of Rules."

[33] I  thank an anonymous  reviewer for encouraging me  to address
this point, and for suggesting the term 'opacity.'

[34] Hart, Essays on Bentham, 253.

[35] Raz,  The Morality of  Freedom, 47, emphasis removed  from the
original.

[36]   Neither  Hart   nor   Raz  appear   to   take  opacity   and
content  independence  to be  analytically  linked  in this  sense.
Hart  discusses  what  he   calls  the  'peremptory  character'  of
authoritative  reasons  separately   and  before  discussing  their
content independence.  (See Essays  on Bentham, 254)  Raz discusses
content  independence   and  'preemption'  in   different  chapters
entirely  of The  Morality  of  Freedom; and  the  two are  nowhere
discussed together in his major work on exclusionary reasons, -Raz,
Practical Reason and Norms.

[37] The topic of the law's  authority is too large and difficult a
topic to enter  into in this already lengthy discussion.  I take up
the question of the law's authority in further work. See "Authority
as a Power to Demand" in my -Flanigan, "Essays at the Limits of the
Law".

[38]  (Raz,  "Reasons  for  Action,  Decisions  and  Norms,"  487).
The  nature of  second-order  reasons is  a  point of  controversy.
(See  Piller,  "Kinds  of  Practical  Reasons";  Whiting,  "Against
Second-Order Reasons";  and Scanlon, "Reason and  Value") These are
recent discussions, though as Raz  notes in the postscript to -Raz,
Practical Reason and Norms, the history of this debate goes back at
least four decades.

[39] Hart, Essays on Bentham, 253.

[40]  Raz attributes  the strong  reading  to Hart.  (See Raz,  The
Morality of Freedom, 39).

[41] Note that this objection does  not claim opacity is a property
of  content  independence  generally,  just that  it  the  two  are
coextensive in  the domain of  reasons to  obey the law,  and other
structurally similar domains,  in virtue of the  structure of those
domains.

[42] Rawls, "Two Concepts of Rules," 25, emphasis in the original.

[43]  This is  slightly  too quick.  The  same considerations  that
justify the rules  may, depending on our view, also  play some part
in grounding the fact that they  apply to players. Even if they do,
however,  variations  in  those  considerations --  e.g.  just  how
conducive to fun this rule is  -- would affect a player's reason to
obey only if they altered the  fact of whether the rules applied or
not,  which  presumably most  such  considerations  would not.  The
player's reason  to obey the  rule, then, would remain  opaque with
respect to those considerations.

[44] Rawls  makes this point  by offering  the example of  rules of
punishment. I think the example of taxes is an easier one, and so I
shall proceed with it, but nothing is meant to hang on this choice.
(See Rawls, "Two Concepts of Rules," 10-18)

[45]  Rawls recognizes  this point  when  he writes  that if  one's
appeal to the rules is not  accepted, "it's a sign that a different
question  is  being  raised  as  to whether  one  is  justified  in
accepting the practice, or in tolerating it." (See ibid., 27)

[46] Whether strategic rule-breaking is an act within a practice or
an abrogation of  it is a vexed question which  I cannot enter into
here. On  this question  with respect to  Rawls and  baseball, (see
Palmiter, "Cheating, Gamesmanship, and  the Concept of a Practice")
There is also a lively  debate regarding this question with respect
to contracts and  promises. (See e.g. Shiffrin,  "The Divergence of
Contract and Promise")

[47] Rawls again: A practice-dependent  act "would not be described
as that sort of action unless  there was the practice. ... What one
does will  be described in some  other way." (See "Two  Concepts of
Rules," 25, emphasis in the original)

[48] Shaw infamously ordered Sims  returned to slavery. For details
of the case, see Brown, "Thomas Sims's Case After 150 Years."

[49] As explained in Section I, I use 'normally decisive reason' as
a moderately ecumenical analysis of the concept of obligation.

[50] Here, as before, it is helpful if we understand the Pope's law
as something more than a mere codification of God's law.

[51] See inter alia  (Dagger and Lefkowitz, "Political Obligation";
Green, "Legal Obligation and Authority").

[52] I think we should make this  claim even if we believe, as some
do,  that  the  law  claims  for itself  the  authority  to  create
obligations, in the decisive reason-implying sense.

[53] (See  Klosko, "Multiple  Principles of  Political Obligation,"
who explores a version of this view)

[54] (Nozick, Anarchy, State, and Utopia, 90-95).

[55] "The Authority of Democracy."

[56] "Rule Over None II," 287-88.

[57]  The term  'normative consent'  is owed  to Estlund.  (See his
Democratic Authority) Hobbes  may be thought of as  a forerunner of
this view.

[58]  See   Enoch,  "Hypothetical  Consent  and   the  Value(s)  of
Autonomy"; Stark, "Hypothetical Consent and Justification."

[59] It might be further objected  that the law here merely happens
to provide the relevant convention --  that the reasons to drive on
the right side of  the road, or around 55 MPH,  are not grounded by
the law in  virtue of its being  the law, or in other  words by the
law's authority  as such, but  rather by the  law in virtue  of its
establishing the  relevant convention.  But the  fact that  the law
establishes certain conventions may quite plausibly be part of what
grounds its authority in the relevant domains.

[60] David  Lewis mentions this  in (Convention, and there  is also
a  sizeable  jurisprudential  literature  concerning  coordination,
convention, and the law) (See  inter alia Gans, "The Normativity of
Law and  Its Co-Ordinative  Function"; Ullmann-Margalit, "Is  Law a
Co-Ordinative Authority?"; Postema, "Coordination and Convention at
the Foundations of Law"; Green,  "Law, Co-Ordination and the Common
Good";  Green, The  Authority of  the State,  ch. 4;  and Raz,  The
Morality  of  Freedom, 30).  (Marmor,  "The  Dilemma of  Authority"
admits that  coordination problems can ground  obligations but also
claims  that this  cannot  explain  the full  extent  of the  law's
normative  power) Like  Ripstein,  I am  inclined  to disagree.  On
Ripstein's construction of Kant's  political philosophy, nearly all
of our political  duties are 'determined' in this way  by the state
and the  state's laws. For  some considerations along  these lines,
see  Ripstein,  Force  and  Freedom, as  well  as  (Pallikkathayil,
"Deriving  Morality from  Politics"; Julius,  "Independent People";
and Julius, "Public Transit")

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