Non-Peremptory Obligations

Another way of thinking about the category of non-peremptory yet non-optional moral obligations is to understand them in relation to a classic debate in political philosophy about the nature of the law. The positivism legal scholar John Austin proposed that we can understand "law" as the command of a sovereign backed by the credible threat of sanctions for noncompliance ("A Positivist Conception of Law" from The Province of Jurisprudence Determined, 1832). This sanction theory of the law defines "obligations" as commands of a ruler which are enforced by threats of punishment.

But the great legal theorist, H.L.A. Hart argued that sanction theories of law confuse being "obliged" by means of a threatened sanction to do something, and being morally "obligated" to do it. Obligations have no necessary connection to sanctions or to commands for that matter. In his The Concept of Law (1961) Hart argued that Austin's definition amounts to saying that the law is the same as the demand of a gunman to hand over one's wallet. Being under threat of sanction provides a motivation to do what is demanded, but not a justification for doing it.

In order to understand the nature of obligation and hence that of law one needs instead to invoke the concept of following a social rule. But there can be rules that do not create obligations, or only weak ones, as the rules of etiquette for instance. For Hart, rules are conceived as imposing an obligation when, "the general demand for conformity is insistent and the social pressure brought to bear upon those who deviate or threaten to deviate is great" (Feinberg and Coleman, Philosophy of Law, p. 72). However, the social pressure to conform need not take the form of sanctions or threats of punishment, but instead "may take only the form of a general diffused hostile or critical reaction which may stop short of physical sanctions. It may be limited to verbal manifestations of disapproval or of appeals to the individuals' respect for the rule violated; it may depend heavily on the operation of feelings of shame, remorse and guilt." What makes rule-following an obligation, according to Hart, is the "seriousness of the social pressure behind the rules."

We have several grades of seriousness of social pressure. The most serious and strictest forms of social pressure are associated with peremptory legal norms compliance with which are demanded by society and disobedience punished by coercively imposed sanctions, e.g., laws against murder, rape, theft, fraud and so forth. Lesser crimes are sanctioned by fines and other kinds of administrative penalties. Various other kinds of harms are dealt with by means of torts law, rather than criminal law, for instance, failures to adequately discharge duties of care to prevent and avoid harm to others.

For other important moral obligations, however, we rely on other forms of social pressure to promote conformity with social rules which stop short of imposing sanctions. For instance, lying is generally frowned upon but is not illegal unless done under oath or when it constitutes fraud. While it may be wrong to lie to your mother about what you did last weekend, it is not a crime.

Finally, some moral rules, those normally associated with supererogations and suberogations, the rules are really framed as recommendations rather than as requirements. We are advised that it would be rather praiseworthy to so something, say volunteer for community service, or somewhat blameworthy to do something else, say, gamble with the rent money, but moral agents are given the option of noncompliance without threat of social sanction or censure. This last class are the weak obligations that I called non-peremptory and optional.

But they should not be confused with the middle class of obligations, those which are non-peremptory but non-optional, that characterize social responsibilities. These are real obligations, usually moral, but also sometime legal, but are not backed by formal sanctions for noncompliance. Failure to discharge such obligation may, nevertheless, lay the agent open to moral blame and criticism and other forms of non-coercive social pressure. There are in fact many common kinds of moral obligations which fall into this category for which noncompliance does not carry any realistic likelihood of threat of harm, but which are nonetheless, real obligations.

Moral and legal norms belong within the general category of what Jacques Ellul has called human tech­niques. Human tech­niques are for Ellul those in which “man himself becomes the object of the tech­nique” (The Technological Society. New York: Alfred A. Knopf, 1964 p. 22), that is, in which technique is applied to alter or control human conduct. Moral and legal norms are human techniques in precisely this sense; they are ensembles of techniques by which we attempt to bring about desirable patterns in human social behavior. In general, moral and legal norms are designed to promote social cooperation and to moderate conflict by regulating competition within certain limits. Morality and law structure “arenas of competition” in which permissible agent interactions are limited; for example, most kinds of voluntary trade of goods and services are allowed, while coerced or involuntary exchanges, such as theft, are disallowed. Action-guiding norms are human techniques that define the organizational forms of social interaction.

Morality and law, however, do differ: an analogy might be useful here. On older TV sets there used to be two tuning devices: a channel selector that one used to select the frequency range of the broadcast, and a fine tuning dial that one used to select the precise frequency that would deliver the clearest picture and sharpest sound. This is similar to the functional relationship between law and morality: the law sets minimum requirements for socially permissible behavior, that is, it selects the general range of behaviors that society is willing to tolerate. Behaviors that fall outside that acceptable range are subject to various kinds of punishments and sanctions designed to enforce general compliance with these norms. Morality supplies the fine-tuning. Within these ranges of legally permissible behaviors there are forms of conduct that while legal, are deemed more or less morally praiseworthy or blameworthy. The more informal dictates of morality and ethics appeal to the individual’s conscience and direct him or her towards selecting those forms of conduct that are more conducive to virtue and human happiness, and away from those forms of conduct that are vicious and harmful, although legal.

The two normative spheres do overlap particularly with respect to forms of conduct that are regarded as strongly impermissible; things that are strongly morally impermissible are often made legally impermissible as well precisely because noncompliance so strongly offends the moral sense. But on the other end of the spectrum, the law rarely enforces virtue, and many believe it should not attempt to do so. Under the modern liberal conception of the state, the sovereign should be neutral as regards the best way to live. Individuals are at liberty to choose their own conceptions of their good and to orient their lives towards the pursuit of happiness as they conceive it, so long, of course, as they do so within the limits of what the law allows. So, under this arrangement, society, by means of the institutions of the law, sets the outer limits on what is socially acceptable behavior, the basic channels, while individuals guided by their own morality and their own consciences, perform the “fine-tuning” needed in order to select what is, for them, the best way to live.