The duty to govern

Legal Theory

Volumn 13, Issue 3-4, 2008, Pages 165-185

  Green, Leslie ^a  

^a UNIVERSITY OF OXFORD   (United Kingdom)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 84989781713     PISSN: 13523252     EISSN: 14698048     Source Type: Journal    
DOI: 10.1017/S1352325208070079     Document Type: Article

References (40)

1. John Finnis, Revolutions and Continuity of Law, in Oxford Essays in Jurisprudence 76 (2nd ser., A.W.B. Simpson ed., 1973).
2. John Finnis, Natural Law and Natural Rights (1980), at 246.
3. John Finnis, Aquinas: Moral, Political, and Legal Theory (1998), at 283.
4. I am as guilty as anyone else. I failed to recognize governance as a separate problem in Leslie Green, The Authority of the State (1990); and also in Green, Law and Obligations, in The Oxford Handbook of Jurisprudence and the Philosophy of Law 514-547 J. Coleman and S. Shapiro eds., 2002).
5. On the jurisprudential significance of metaphor, see H.L.A. Hart, The Concept of Law (2nd ed., J. Raz & P.A. Bulloch eds., 1994), at 117.
6. See Paul Verkuil, Outsourcing Sovereignty: Why Privatization of Government Functions Threatens Democracy and What We Can Do about It (2007).
7. At any rate, citizenship in a democracy; see Politics, BK. 3, 1274b33-1275a34.
8. Finnis, At any rate, citizenship in a democracy; note 2, at 246.
9. See, e.g., Joseph Raz, The Morality of Freedom (1986), at 56; Green, Authority, At any rate, citizenship in a democracy; note 2 note 4, at 73-75.
10. Finnis, The Morality of Freedom note 2, at 247, emphasis mine. And cf. 246.
11. Joseph Raz, Practical Reason and Norms (1990), at 159-160.
12. Hans Kelsen, Pure Theory of Law (M. Knight trans., 1967), at 230-231. I have slightly amended the translation.
13. Hart, Pure Theory of Law note 5, at 84-85. On the difference between Kelsen and Hart's views of normativity, see Joseph Raz, The Authority of Law (1979), at 134-143.
14. This formulation is too simple but adequate for present purposes. For some complications see Joseph Raz, The Concept of a Legal System (2nd ed., 1980), at 202-205.
15. Finnis, This formulation is too simple but adequate for present purposes note 2, at 155, 255.
16. Compare his discussion of Aquinas's list of defeating conditions: Finnis, This formulation is too simple but adequate for present purposes note 2 note 3, at 272-274.
17. Finnis, Compare his discussion of Aquinas's list of defeating conditions: Finnis note 2, at 232.
18. Leslie Green, Law, Co-ordination, and the Common Good, 3 Oxford J. Legal Stud. 299-234 (1983).
19. Finnis, Law note 2, at 234.
20. For some amendments or perhaps clarifications, see John Finnis, Law as Co-ordination, 2 Ratio Juris 97-104 (1989).
21. For an adumbration of that view, see Robert Ladenson, In Defense of a Hobbesian Conception of Law, 9 Phil. & Pub. Aff. 134 (1980); and William A. Edmundson, Three Anarchical Fallacies: An Essay on Political Authority (1998), at 7-70.
22. Finnis, For an adumbration of that view note 3, at 269.
23. I discuss some other variants in Green, Law, For an adumbration of that view note 3 note 4, at535-539.
24. Elizabeth Anscombe, On the Source of the Authority of the State, 20 Ratio 17 (1978).
25. See Eyal Benvenisti, The International Law of Occupation (1993).
26. Anscombe, The International Law of Occupation note 24, at 172.
27. George Klosko, The Principle of Fairness and Political Obligation (1992).
28. Raz, The Principle of Fairness and Political Obligation note 13, at 9 (emphasis added).
29. Jeremy Waldron, Authority for Officials, in Rights, Culture, and the Law: Themes from the Philosophy of Joseph Raz (L. Meyer, S. Paulson & T. Pogge eds., 2003), at 50. For further discussion of Waldron's view, see Leslie Green, Three Themes from Raz, 25 Oxford J. Legal Stud. 509-513 (2005).
30. Finnis, Authority for Officials note 2, at 232.
31. Locke thought this was true of parental authority, see below. The nineteenth-century Presbyterian theologian C.G. Finney thought it held more generally: The mere fact, that one being is dependent on another, does not confer on one the right to govern, and impose upon the other obligation to obey, unless the dependent one needs to be governed, and consequently, that the one upon whom the other is dependent, cannot fulfil to him the duties of benevolence, without governing or controlling him. The right to govern implies the duty to govern. Obligation, and consequently, the right to govern, implies that government is a condition of fulfilling to the dependent party the duties of benevolence.
32. Finnis, Locke thought this was true of parental authority note 3, at 283 (emphasis added).
33. For a helpful account, see K. Haakonsen, Natural Law and Moral Philosophy: From Grotius to the Scottish Enlightenment (1996).
34. Finnis, For a helpful account note 2, at 230.
35. James VI of Scotland, The True Law of Free Monarchies (1598). I have modernized the spelling.
36. Locke, Second Treatise (1690) sec. 67.
37. A.V. Dicey, The Law of the Constitution (1959) (10th ed.,), at 68 n.
38. Locke, The Law of the Constitution note 38, sec. 69.
39. For an argument that some duties of parenthood, including the duty to discipline children, cannot be delegated without fundamentally distorting the nature of parenthood, see Alon Harel, Why Only the State May Inflict Criminal Sanctions: The Vices of Privately-Inflicted Criminal Sanctions, (2007) (unpublished manuscript, on file with the author).
40. Locke, For an argument that some duties of parenthood, including the duty to discipline children, cannot be delegated without fundamentally distorting the nature of parenthood note 38, sec. 141 at 363.