Democracy and the Rule of Law

By José María Maravall; Adam Przeworski | Go to book overview

Chapter Three
Obedience and Obligation
in the Rechtsstaat

The problem of obedience may look strange to a legal scholar. Lawyers deal not with obedience but with obligation. The question they ask is not, What behavior does effectively take place? but What behavior ought to take place? According to leading theories, actual behavior has no effect on the validity of a rule. In other words, a rule is binding or not binding independently of the fact that it is being obeyed (or disobeyed). This is just another way of expressing the difference between is and ought and the law deals only with what ought to be, not with what actually is or will be. Moreover, it is generally agreed that there can be no causal relation between what is and what will be. The fact that something ought to happen does not cause it to happen and the fact that something actually happens has no influence on its being mandatory or forbidden. In other words, the validity of a rule does not depend on its efficacy. Indeed it can be said that the specificity of a rule, as distinguished from a law of nature, lies in its capacity to be violated.

Lawyers and legal scholars therefore leave to sociologists and psychologists the question why men obey the law. True, those who make the rules must have some idea of what makes men obey. If they make and publish those rules, they must assume that knowing the existence of a rule will have some sort of psychological effect on actual behavior and they draft them according to the behavior they expect. Most lawmakers mainly rely on sanctions, in the general sense of both punishment and reward. Yet, whether this is the real reason that explains obedience is something that lawyers cannot tell. They can tell if, according to the law, this or that behavior ought to take place and what, still according to the law, ought to happen if the prescribed behavior does not actually take place, but he is not concerned by the psychological question why it does or does not take place. Furthermore, for lawyers the question is absolutely irrelevant. If I obey the order from a state official to

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