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Virginia Law Review. http://www.jstor.org Inventing the Obligation to Obey the Law Author(s):
John Marshall Source: Virginia Law Review, Vol. 67, No. 1, The Symposium in Honor of A. D.
Woozley: Law and Obedience (Feb., 1981), pp. 159-176 Published by: Virginia Law Review
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14:46:43 UTC All use subject to JSTOR Terms and Conditions INVENTING THE
OBLIGATION TO OBEY THE LAW John Marshall* IN Obligations to Obey the Law,' John
Mackie reports that, ac- cording to the dominant conventional morality of our present cording to
the dominant conventional morality of our present society, "[tihere is always a prima facie
obligation to obey the law society, "[tihere is always a prima facie obligation to obey the law as
such."' About this common moral belief, Mackie raises three as such."' About this common moral
belief, Mackie raises three questions. First, he asks whether it is true. Is the conventional moral
agent, even supposing that he lives under a tolerably good and just system of law, correct in his
belief that he does have such an obligation? To this question, he answers "No."4 Second, he inquires whether what the conventional agent believes can be de- rived from some other moral
principle or principles." To this ques- tion, he also answers "No."" Third, he asks whether we
should want people in our present society to have this belief that they reportedly do have. To this
he answers "Yes."" Since, on the face of it, his negative answer to the first question combines
paradoxi- cally with his affirmative answer to the third, I shall discuss these two questions
together. I begin, however, with the second. I. THE DERIVABILITY OF THE OBLIGATION It
is worth asking whether Mackie's report-that the conven- tional moral agent believes that he has
a prima facie obligation to obey any law because it is the law-is accurate. The matter is diffi- cult
to decide, armchair sociology being the uncertain science it is, *Associate Professor of
Philosophy, University of Virginia. Mackie, Obligations to Obey the Law, 67 VA. L. REV. 143
(1981). ' Id. at 143. ' See id. 4 See id. at 143-44. Mackie relies heavily on Raz's negative answer
as authority for his own. See id. at 144-51. See generally J. RAz, THE AUTHORITY OF LAW
245-49 (1979). See Mackie, supra note 1, at 144. See id. at 144-51. 7 See id. at 151. 8 See id. at
151-57. Although Mackie argues that it is socially desirable for the conven- tional agent to
believe that he has an obligaton to obey the law, Mackie also argues that the obligation should
not be absolute. The obligation that he supports "lies between that of a final obligation to obey
the law as it demands to be obeyed and that of a mere prima facie reason to obey: it is the notion
of an obligation which has some power to exclude other considerations, and yet which can itself
be overruled." Id. at 152. 159160 Virginia Law Review [Vol. 67:159 but I suspect that the respect
for law of the citizen of average con- scientiousness is a more complex disposition than is
implied by the principle formulated on his behalf by Mackie.9 A person could have deep moral
respect for law over a broad range of laws while taking himself to have not even a prima facie
obligation to obey some laws, e.g., laws regulating certain forms of sexual conduct some laws,

e.g., laws regulating certain forms of sexual conduct that he thinks are no business of the law to
regulate in the first that he thinks are no business of the law to regulate in the first place. Again,
there may be other laws that he supports, in the place. Again, there may be other laws that he
supports, in the sense that he takes them to be useful, of which the violation would not strike him
as a moral matter at all. Some parking regulations might be examples. In the latter instance, the
specific content of the conscientious citizen's respect for law is difficult to decide for a further
reason: The exact meaning of "prima facie" is obscure. Having expressed these reservations,
however, I shall assume that Mackie's report is acceptably accurate. Of course, we may consider
the derivability of this principle of obligation from some other philosophically plausible moral
princi- ple irrespective of what the conventional moral agent's moral atti- tude toward the law is;
that he is assumed to have a general obliga- tion of obedience, however, makes the question of
derivability particularly interesting. Mackie rejects all the derivations that he examines,10 and,
although I do not propose to defend any of these, I should like to defend the project of
derivability against one sug- gested line of argument. The basic idea is to derive the prima facie
obligation to obey the law from some other principle of obligation that more nearly approximates intrinsic acceptability. For example, consider the prin- ciple that there is a prima facie
obligation to do one's part in a cooperative scheme from which one willingly accepts benefits
that one could readily refuse. Suppose that we could show all acts of disobeying the law to be
acts of refusal to do one's share in such a scheme. It might be thought that with this
demonstration we could derive the prima facie obligation to obey the law as such. But Mackie
implies we could not, for this derived obligation would not be distinct from the duty of fair play;
it would not be the obliga- tion to obey the law as such, therefore, but the obligation to obey the
law as the duty of fair play. Of a similar attempted derivation, 9 See note 8 supra. 10 See Mackie,
supra note 1, at 145-49.1981] Inventing the Obligation 161 Mackie writes: "[W]here the
compromise enshrined in the law is a fair one, it is the fact that it is intrinsically fair that
constitutes the obligation to adhere to it, not the fact that it is what the law re- quires."11 If,
however, this response were permitted, then Mackie's original question-can the obligation to
obey the law as such be derived?-would on a priori grounds be settled negatively, and would at
once lose the interest he says it in fact has. The type of derivation envisioned takes the following
form. We begin with some philosophically plausible moral principle accord- begin with some
philosophically plausible moral principle accord- ing to which one always has a prima facie
obligation to perform ing to which one always has a prima facie obligation to perform acts of
kind K. Then we show that all acts of obeying the law are K acts of kind K. Then we show that
all acts of obeying the law are K acts. We conclude that one always has a prima facie obligation
to obey the law. The flaw in the derivations that Mackie either men- tions or discusses12 is that
the second premise, on which the chief interest focuses, is all too easy to refute. If this premise
could be upheld, however, the resultant derivation ought to be regarded as thoroughly successful
and not be taken as simply the obligation to perform K acts. We might wish to call the fact that
an act is of kind K a primary moral reason for action and the fact that it con- forms to law a
secondary moral reason. The latter is in a clear enough sense a distinct reason, although it does
depend on the for- mer. It is, after all, both a part of Mackie's own proposal and, ac- cording to
him, a part of conventional morality that agents see a moral reason for acting in the fact that an
action is required by law.1' If the agents can take this ostensible secondary reason into account in
their practical deliberations as effectively primary, then the secondary reason is distinct enough
to preserve interest in the derivation. Of course, interest in derivation also requires that the
secondary reason be perfectly general, that is, that its being re- quired by law is always a

secondary reason. There can be no seri- ous questioning its sometimes being such a reason, for
example, where some public officials or recently naturalized citizens ex- pressly undertake the
obligation to obey the law. The project of derivation is well motivated, as we can infer from its
history.14 It is also realizable in principle, as I have just argued. Id. at 148. 12 See id. at 145-50.
Is See id. at 143, 151-52. 14 See generally J. MACKIE, HUME'S MORAL THEORY (1980)
[hereinafter cited as HUME S162 Virginia Law Review [Vol. 67:159 Mackie tells us, however,
that it is not realizable in fact.16 The trouble with the argument lies with establishing an
acceptable intermediary premise that all acts of obeying the law are K acts. Mackie considers the
following intermediate premises among others: All cases of disobeying the law set a bad
example;", all such cases harmfully frustrate expectations intentionally induced by the
disobedient;'7 they undermine a good institution;18 and they are unfair.19 The facts are that not
all such acts set a bad example, frustrate expectations, or undermine a good institution. That all
disobedient acts are unfair may be thought not obviously false, but it is far from obviously true.
Other intermediary propositions Mackie mentions seem readily refutable by clear
counterexample. Mackie mentions seem readily refutable by clear counterexample. So the hope
that a general prima facie obligation to obey the law So the hope that a general prima facie
obligation to obey the law as such can be derived from some single, distinct moral principle as
such can be derived from some single, distinct moral principle has little to nourish it. Perhaps
some attention should be given to a possibility Mackie has not mentioned, that this secondary
obliga- tion may be derived from a conjunction of moral principles. There could be a general
secondary reason to obey the law even if there were, for different types of cases, different
primary moral reasons. II. INVENTING OBLIGATIONS A. Respect for Law The case against
the derivability of a general prima facie obliga- tion to obey the law in any actual society is
impressive.0 It is in our society, however, where the system of law is widely regarded as itself
tolerably good and just, that people think they have such an obligation. If their belief cannot be
defended in terms of some more basic normative principle, can it be defended at all? Before
developing his own line of defense, Mackie mentions21 and appears to endorse a curious
argument of Raz's that purports to show that some people in our present society do have a prima
facie obligation MORAL THEORY]; J. RAZ, supra note 4; A. WOOZLEY, LAW AND
OBEDIENCE (1979). "I See Mackie, supra note 1, at 151. '6 Id. at 145. 17 Id. at 146-47. "I Id. at
147. "I Id. at 147-49. 20 See, e.g., J. RAZ, supra note 4, at 233. 21 Mackie, supra note 1, at 15051.1981] Inventing the Obligation 163 to obey the law as such.22 According to the argument,
those who are subject to such an obligation are those who have what Raz calls respect for law.
Respect for law is a morally permissible, but not morally obligatory, complex attitude that has
both a cognitive and a practical component; the former is a belief, such as that the law is morally
good, while the latter is a disposition to do what the law requires as a moral and not merely as a
prudential matter.28 The basic moral principle involved here is one of conditional ob- ligation:24
if I sincerely believe that I have a prima facie obligation to obey the law, then I really do have
this very obligation. The condition is not idle. If I did not have this sincere belief, then it having
been shown that I could not have the obligation to obey for any other reason, I would not have
the obligation at all.26 Any plausibility that this seemingly implausible principle has is not to be
derived from a distinction between objective and sub- not to be derived from a distinction
between objective and sub- jective duty. The principle is not that if I believe it is my duty in
jective duty. The principle is not that if I believe it is my duty in the objective sense to obey the
law, then it is my duty in the sub- the objective sense to obey the law, then it is my duty in the
sub- jective sense; rather, the principle is that if I believe it is my duty in the objective sense, then

it really is my duty in the objective sense: my thinking makes it 80.20 Raz admits that the
principle seems paradoxical, and he adds that it "is in fact paradoxical given some of the
common assumptions of current analytical moral phi- " See J. RAZ, supra note 4, at 250. 23 See
id. at 250-51. Raz defines the cognitive component as consisting of "the appropri- ate cognitions
concerning the moral value of the law." Id. at 251. He argues that, in the primarily cognitive
attitude of respect, the cognitive component is primary and any practical dispositions that the,
attitude might include are secondary. Conversely, he argues that in the primarily practical attitude
of respect, the practical component is primary and any addi- tional cognitive attitudes it may
include are secondary. See id. at 251-52. 24 See id. at 258. 2I See id. at 260. '2 To avoid the
impression that the above version of the principle is not faithful to it, I here provide the original:
The fact that this respect [for law] has no ordinary external foundation is acknowl- edged by the
submission that there is no obligation to respect the law even of a good legal system. Respecting
the law in such societies is merely permissible. Yet those who respect the law have a reason to
obey, indeed are under an obligation to obey. Their attitude of respect is their reason-the source
of their obligation. The claim is not merely that they recognize such an obligation, not merely
that they think that they are bound by an obligation. It is that they really are under an obligation;
they are really bound to obey. Id. at 253.164 Virginia Law Review [Vol. 67:159 losophy."27
After examining Raz's explication and defense of the principle, I still find it paradoxical and
unacceptable. According to Raz's analysis, what specifically creates the obliga- tion is the
practical component of respect, which consists primarily of the disposition to obey the law
because it is the law.28 This prac- tical component, however, cannot be separated from an
apropriate cognitive attitude, one that is not itself, however, part of the primarily cognitive
attitude of respect. This inseparable cognitive element might naturally be expressed as the belief
that one has an obligation to obey the law.2' This belief is entirely derived from -or perhaps an
epiphenomenon of-the motivational and affec- tive disposition; the belief, therefore, does not
receive any con- clusive support from any other belief. From the viewpoint of the conventional
moral agent who has respect for law, the practically rooted principle is, indeed, underived.30 In
particular, at least from the agent's perspective, the principle of obedience is not derived from the
principle of conditional obligation that, according to the argument, justifies it. The principle of
conditional obligation is at argument, justifies it. The principle of conditional obligation is at best
limited to employment by a philosophical critic who seeks to best limited to employment by a
philosophical critic who seeks to justify someone else's practically rooted cognitive attitude;
what is justify someone else's practically rooted cognitive attitude; what is to issue from the
principle of conditional obligation is the truth of the claim that this other person has an obligation
to obey the law. Only a fairly crude theory of the meaning of ethical terms-one that would hold
that "I have an obligation to obey the law" means the same as "I have a practical attitude of
respect toward the law"-would allow the agent to justify his own cognitive attitude in the way the
critic does. Raz is not, however, advocating this kind of theory. His principle of conditional
obligation is intended to be normative; it is, therefore, necessarily only a critic's justifica- tory
principle, not an agent's. Is the principle of conditional obligation sound as a critic's prin- ciple?
A normative principle that an agent could not take to heart 27 Id. at 251. 28 Raz puts it this way:
"[Flor the person who respects the law there is an obligation to obey. His respect is the source of
this obligation." Id. at 260. -9 See id. at 251-52. 30 See id. The agent described here is one who
has a primarily practical respect for the law. Any cognitive attitudes arising from that respect are
merely secondary and are derived from the primarily practical disposition to obey the law. The
reverse would be true for the agent who had a primarily cognitive respect for the law. See note

23 supra.1981] Inventing the Obligation 165 without corrupting or making incoherent the very
practical think- ing it is designed to regulate or to justify should be regarded with deep suspicion,
plausible as it may otherwise appear. The princi- ple, moreover, is on its face implausible. Raz
has argued strongly for it, but unless there is even more to it than I have seen, the case is not
good enough. Raz's defense rests on two claims, namely, that friendship creates obligations31
and that identification with one's society, of which the practical attitude of respect is a common
component, is analogous to friendship.32 Raz says that respect for law cannot oc- cur without a
strong sense of community loyalty or identification on the part of those who live under the legal
system that claims jurisdiction over their conduct.33 While this notion of identification seems
vague, like Mackie, I do not see why one cannot have re- spect for the law without identifying
with one's community in any definite way. It is essential to Raz's argument that respect for law be
a part of this larger, complex disposition of loyalty; his argu- ment fails because the analogy to
friendship fails. Even if the analogy succeeds, it is still questionable whether friendship creates
obligation in the specific manner required. What is needed is a clear example of how a practical
attitude gives rise to is needed is a clear example of how a practical attitude gives rise to an
obligation. Are there some practical attitudes uncontroversially an obligation. Are there some
practical attitudes uncontroversially constitutive of friendship that provide such an example? If
there constitutive of friendship that provide such an example? If there are, Raz does not even try
to identify them. His explanation of how friendship creates obligations takes a different route.
There are, he says, three ways in which friendship can be the source of reasons for action. First,
friends have good will toward each other. Such specifically focused and heightened altruism and
its corresponding altruistic reasons for acting are constitutive of friendship.34 Sec- ond,
"friendships create patterns of interaction and thus they gen- erate expectations."35 Friends have
moral reasons not to frustrate 31 See J. RAZ, supra note 4, at 253-58. 32 See id. at 259-60. 33
Raz argues more specifically that practical respect [for the law] is not an independent attitude. It
is but one aspect of a complex attitude and style of life, relating not only to the law but to the
community whose law it is. Respect for the law is an aspect of identification with society. . . . A
person identifying himself with his society . . . is loyal to his society. Id. at 259. 31 See id. at 254.
36 Id.166 Virginia Law Review [Vol. 67:159 such expectations. Third, and especially important
for the argu- ment, there are what Raz calls "expressive reasons [for actions]."36 One's culture
defines the forms that friendship may take, he ex- plains, designating "certain patterns of
behaviour as fitting and others as unfitting between friends."37 It is part of the concept of
friendship that "the fitting action is required of a friend regardless of whether or not he desires to
perform it"38 and that "the fitting action is sometimes required regardless of whether or not the
friend will learn of it or be affected by it."-" To do what is required by the cultural norm of
friendship is to express that friendship. The obligation to perform actions expressive of
friendship is the obligation said to be created by the friendship. Similarly, to re- turn briefly to
the analogy, obeying the law from respect for law is a manner of acting by the culturally defined
pattern of loyalty to one's community and thus expresses this loyalty.41 Although Raz does not
say so expressly, it may be that what is supposed to create these obligations is the practical
attitude of re- spect for culturally defined norms. If so, then this case would come within the
scope of the above principle of conditional obligation. In fact, however, it is not the practical
attitude of respect that creates the obligation. Rather, in these obligations of friendship, there is a
kind of institutional obligation. Given that cultural patterns deter- mine the duties of friendship,
two people who become friends give each other to understand that they assume these obligations
in ac- each other to understand that they assume these obligations in ac- cordance with the

conventions of friendship. In short, the obliga- cordance with the conventions of friendship. In
short, the obliga- tions are undertaken in a manner analogous to promising. This tions are
undertaken in a manner analogous to promising. This analysis, which needs more explication and
defense, is borne out by the case of marriage. Marriage is a form of friendship; the cul- tural
norms are rather more determinate than for other friend- ships, and, in particular, the
conventional procedure for undertak- ing the broad range of marital obligations is the marriage
vow. 36 Id. at 255. 37 Id. 3S Id. 39 Id. 40 See id. at 257. 41 See id. at 259. Raz points out,
however, that one may express his loyalty to the commu- nity in ways other than through respect
for its laws. While one may express loyalty for one's community without respecting its laws, Raz
argues that one cannot respect the law without a loyalty to or identification with one's
community. See id. at 259-60.1981] Inventing the Obligation 167 Raz would, of course, reject
this alternative account of the obli- gations of friendship. He gives two reasons why "the
obligations of friends differ from promises and other voluntary obligations.4 The first reason is
that the obligations of friends form a constitutive part of a relationship affecting, in characteristic
cases, a whole dimension of one's life. Furthermore, the relation- ship has a cognitive and
emotional aspect. Since the obligations are part and parcel of the relationship they cannot be
assumed or re- nounced by one act .... The obligations derive from the friend- ship, not from an
act of commitment.43 One sympathetic with the proposal that the obligations of friend- ship are
undertaken in a manner analogous to promising could ad- mit almost all of what Raz claims. In
one sense, the obligations derive from the friendship, for the culturally defined norm determines their content. In another sense, however, the obligations de- rive from a person's
undertaking to be a friend. Such an undertak- ing typically is not completed in a single act or by
a single performative utterance;44 it may be a highly complex and gradual process. As for the
emotional aspect, there is, first, the love or spe- cial good will that motivates the friendship and,
a fortiori, the undertakings and consequent obligations that the cultural pattern of the institution
requires. Second, there is whatever sense of obli- gation is naturally attached to what one
commits oneself morally to do. Of course, the commitment is to perform certain acts as a friend.
A friendship can be terminated in conventionally recog- nized ways without moral fault,
although some abrupt unilateral ruptures might be morally blameworthy. Because this is so, the
ob- ruptures might be morally blameworthy. Because this is so, the ob- ligations are conditional,
as I shall explain below. ligations are conditional, as I shall explain below. The second reason
that Raz gives to show that the obligations of The second reason that Raz gives to show that the
obligations of friends are different from promises is that "while promises and other voluntary
obligations are undertaken by acts performed in order to undertake an obligation, friendships are
not. Their practi- cal consequences, the obligations they give rise to, are by-products 42 Id. at
257. 43 Id. 44 A performative utterance "indicates that the issuing of an utterance is the
performing of an action-it is not normally thought of as just saying something." J. AUSTIN, How
To Do THINGS WITH WORDS 6-7 (2d ed. 1975).168 Virginia Law Review [Vol. 67:159 of the
relationship rather than its point and purpose."46 Again, nothing here is inconsistent with the
position that the obligations of friendship are undertaken in a manner analogous to promising.
Friendships are not undertaken merely for the sake of undertaking an obligation; likewise,
promises are not typically made to under- take obligations, but for some further reason. Why
people make promises and thereby undertake obligations is one thing; that in performing certain
actions or range of actions they thereby under- take obligations is another. Because certain
obligations are consti- tutive of friendship, people become friends when they undertake these
obligations. There is, however, an important difference be- tween promises and other voluntary

obligations in general, and the specific obligations of friendship: the latter presuppose a practical
attitude distinctive of friendship-an individually focused and heightened sense of altruism-as
their reason. The obligations con- stitutive of friendship are therefore conditional. They might be
formalized in the following way: "Through these actions I hereby promise to do whatever befits
our friendship, so long as I desire to remain your friend and you mine." This desire to remain
friends, however, does not itself create the obligation, nor does the practi- cal attitude whose
cognitive counterpart is the thought that one ought to do what befits one's friendship. According
to no plausible normative principle, therefore, does a person's actually having an obligation to
obey the law follow sim- ply from his sincerely believing that he has such an obligation. B. An
Underived Obligation Let us now examine Mackie's specific proposal. It is that we should find
as a desirable state of affairs "that people should take there to be a moral obligation to obey the
law as such, without mediation and without inference from any supposedly more fundamediation and without inference from any supposedly more funda- mental moral principles."46
mental moral principles."46 Before exploring the details of this proposal, one reason for reBefore exploring the details of this proposal, one reason for re- sisting it can be given
immediately. It is undesirable that conscien- tious citizens think of their moral obligation to obey
the law, which they accept, as entirely underivable from other moral principles. " J. RAZ, supra
note 4, at 257-58. " Mackie, supra note 1, at 151.1981] Inventing the Obligation 169 As I
mentioned earlier,47 that there is an abiding interest in deriv- ing the moral principle of legal
obedience suggests that this obliga- tion is not fundamental in the conventional agent's view,
although he may not-indeed, probably does not-know exactly how the derivation should proceed.
He may only sense in some vague way that by receiving the many benefits of citizenship, by
voting, and by other participatory conduct, he has undertaken an obligation to obey the law; or he
may think that it would be unfair, as well as imprudent, to violate the law. He may be happy
enough to leave it to the moral philosopher to make explicit what is only implicit in this scarcely
articulated moral attitude. He will be alarmed, how- ever, if the philosopher returns from his
investigations reporting that beyond the principle of obedience there is nothing in the way of a
more basic moral principle. The conventional agent might be satisfied, as in any case he should
be, with a fairly complex norma- tive account that showed that in the vast majority of cases, and
showed conspicuously in central cases in which prudential reasons are weakest, that there is
some more fundamental principle or set of principles from which the secondary reason to obey
can be de- rived. Given this demonstration, he might also accept that a prac- tical attitude of
respect for law as such is normatively justified even if there are what would necessarily be a few
cases in which his normative principle of obedience is not supported by some more basic moral
principle. These observations are not offered as mere speculations concern- ing the plain man's
moral thinking. Serious moral commitment, at the level of common moral thinking, has a
decidedly cognitive di- mension. At that level, however, the obligation to obey the law lacks to a
considerable degree the intrinsic reasonableness pos- sessed by, for example, the obligation not
to treat others unfairly. Mackie's proposal would require that the agent view both these
obligations as cognitively on a par. That is, both obligations would be treated as nonderivable
obligations despite the fact that both be treated as nonderivable obligations despite the fact that
both would retain their respective degrees of cognitive appeal. To sus- would retain their
respective degrees of cognitive appeal. To sus- tain the perceived obligation to obey the law,
however, it is prefer- tain the perceived obligation to obey the law, however, it is prefer- able to
keep alive the plain man's cognitive hope to discover the source of the obligation that he does not
find intrinsically reason- able, lest this obligation begin to appear arbitrary and, therefore, 47 See

text accompanying notes 9-10 supra.170 Virginia Law Review [Vol. 67:159 no genuine
obligation at all. It is difficult, however, to understand explicitly what Mackie is proposing
without considering more of his general moral theory than is presented in Obligations to Obey
the Law. The first aspect of Mackie's general moral theory that must be examined is his conception of taking oneself to have a moral obligation. In the works to which Mackie refers in the
opening paragraph of Obligations to Obey the Law,48 we find the following account. One's
having a moral belief has both a cognitive and a motivational/emotional component. The
cognitive component has a general and a specific aspect; the former involves having a belief in
the ordinary sense in which one has a nonmoral belief,49 and the latter involves thinking of the
actions and characters that are the subject matter of that belief as having distinct moral features
that are both objective and intrinsic. This account holds true for the conventional moral agent. In
matters of moral belief, the conventional agent is implicitly both a cognitivist and a realist. If he
believes, for example, that he has a prima facie obligation to obey the law, then he understands
the proposition that gives the content of his belief-"One has a prima facie obligation to obey the
law as such"-to be true, i.e., to correspond to an objectively prescriptive fact of the matter. Further, he understands this correspondence to hold independently of his having the belief that he
has and independently of his having whatever attendant or associated conative and emotional
propensi- ties. The motivational/emotional component of his belief involves an intrinsic desire to
obey a law because it is a law, a disposition to disapprove violations by others and to resent such
violations in certain cases, and a tendency to feel guilt or remorse for his own unjustified
transgressions.50 On Mackie's view, however, the ordinary person's implicit ethi- cal theory is
itself mistaken, because it incorporates claims that are not philosophically acceptable. "There are
no objective values," Mackie writes at the very beginning of his Ethics."' The true the- ory
according to Mackie is what he calls the objectification theory, 48 See Mackie, supra note 1, at
143 & n.l. The works are: J. MACKIE, ETHICS (1977) [here- inafter cited as ETHICS], and
HUME'S MORAL THEORY, supra note 14. inafter cited as ETHICS], and HUME'S MORAL
THEORY, supra note 14. 49 See ETHICS, supra note 48, at 30-49. 49 See ETHICS, supra note
48, at 30-49. 60 See id. at 15-49. 60 See id. at 15-49. "1 Id. at 15.1981] Inventing the Obligation
171 as explained in his recent book on Hume's ethics: Although the only hard fact of the matter
is that the speaker and others have or would have certain sentiments, that there is an interpersonal system of sentiments with regard to actions, characters, and so on, we tend to project
these sentiments onto the actions or characters that arouse them, or read some sort of image of
these sentiments into them, so that we think of those actions and charac-ters as possessing,
objectively and intrinsically, certain distinctively moral features; but these features are
fictitious. . . . This projec-tion or objectification is not just a trick of individual psychol-ogy. . ..
[Tjhere is a system in which the sentiments of each per-son both modify and reinforce those of
others; the supposedly objective moral features both aid and reflect this communication of
sentiments, and the whole system of thought of which the objectifi-cation, the false belief in the
fictitious features, is a contributing part, flourishes partly because . . . it serves a social
function.52 Mackie asks us to suppose that we are literally inventing right and wrong. The
problematic situation that challenges our creative powers is the human predicament. Certain very
general and persis-tent features broadly determine the context in which human be-ings must
work out their lives. Natural resources, information, in-telligence, and rationality are in short
supply. These scarcities, together with man's limited generosity, contribute to a condition that is,
in G. J. Warnock's phrase, "inherently such that things are liable to go badly."53 As both
inventors and members of society, we should be well motivated to improve our own prospects.

First, we invent some rules that, if all men followed them, would create peace, security, and
stability of possessions, and thus would en-hance immeasurably each person's prospects. It is one
thing, how-ever, to invent such rules and another to obtain compliance. We invent a sovereign
with absolute powers of enforcement, and we rely entirely on individual selfishness to motivate
compliance. This invention, however, is crude, inefficient, and inherently liable to project us
back into our original predicament; it also fails to make use of all the raw material of individual
psychology- particularly the susceptibility to illusion. A better invention is less sovereign 62
HUME'S MORAL THEORY, supra note 14, at 71-72. 13 G. WARNOCK, THE OBJECT OF
MORALITY 17 (1971), quoted in ETHICS, supra note 48, at 107. 107.
JSTOR Terms and Conditions 172 Virginia Law Review [Vol. 67:159 power combined with an
entirely different motivational de-vice-moral belief. We invent a motive distinct from and
capable of overriding self-interest, and this we attach to the rules. The at-tachment itself has fair
prospects for permanence, because its ef-fect will be to serve everyone's needs and interests.
What we in-vent, in short, is the complex psychological disposition analyzed above:54 the plain
man's respect for law, with both its practical dis-position of conformity to law and its cognitive
illusion consisting of a belief that one ought to obey the law. On Mackie's view, the cognitive
illusion is important.-" What we invent is not only a first-order substantive belief that one has a
prima facie obligation to obey the law, but also a realist second-order foundation for this belief,
so that the connection of the moti-vational/affective component to legal obedience does not
appear to the agent to be what it is-a mere invention."6 The ideal moral agent, on Mackie's
account, has a number of first-order moral beliefs. The content of these beliefs may be expressed in the form of moral rules. He believes, for example, that one ought to keep mutually
beneficial agreements with others; that one ought to help those who are helping, have helped, or
will help oneself; that one ought to treat others with honesty; and that one ought to obey the law
as such.57 He does not suppose that these rules are derivable from a single and more general rule
or that there is a definite and rule-determined way to decide cases in which two of these rules
conflict.68 Each rule is taken to express only a prima facie duty.59 Moreover, he takes each of
these rules to which he is committed as expressing an objectively valid prescrip-tion,60 and that
is what makes him a second-order objectivist. For the agent, however, this second-order
objectivism is not psycholog-ically separable from his first-order convictions. The ordinary
moral language in which these rules are naturally expressed has built into it this second-order
objectivist commitment.6" This ex- 64 See notes 48-51 supra and accompanying text. " See
ETHICS, supra note 48, at 105-24. " See id. 67 See Mackie, supra note 1, at 153. 68 See
generally id. at 157-58. 69 See id. at 152-53, 155. eo See ETHICS, supra note 48, at 30-35. *1
See id. at 49.
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subject to JSTOR Terms and Conditions 1981] Inventing the Obligation 173 plains why he
would take a denial that there are objective values as an attempt to undermine morality
altogether. Mackie's primary reason for rejecting ethical objectivism is that the moral beliefs and
attitudes of ordinary people can be explained in a thoroughly naturalistic way that does not
depend on the puta-tive existence and motivational influence of objective values. I am not
persuaded, but I shall not discuss here possible responses to Mackie's refutation of
objectivism.62 Anticipating a natural reaction to his theory, Mackie writes: "Some will think it
not merely false but pernicious; they will see it as a threat to morality and to everything else that
is worthwhile, and they will find the presenting of such a thesis . . . paradoxical or even
outrageous."Os This is a predictable reaction. Mackie's view is paradoxical, for a basic feature of

the theory is that what is im-plicitly affirmed on the one level is explicitly denied on the other.
Why this might make Mackie's proposal concerning respect for law difficult to accept is that we
are invited to be both a critical theo-rist and a moral agent at the same time. Mackie is no doubt
sensi-tive to this problem, but it is nonetheless worth pressing.64 If we Ad For a discussion of
the considerations that favor moral skepticism, see id. at 36-49. ss Id. at 15. e" In a recent article,
Mackie urges a similar point against the indirect utilitarian. See Mackie, Can There Be a RightBased Moral Theory?, 3 MIDWEST STUD. PHIL. 350, 352-55 (1978). The indirect utilitarian
takes aggregate happiness to be the ultimate end of human conduct, but he believes that if each
person aimed directly at this goal, the goal would be missed. It would therefore be better for each
person to guide his actions by other moral precepts-e.g., that one has a prima facie duty to obey
the law-while refusing to let thoughts of the ultimate goal tempt him to stray from the definite
path indicated by the precept, even if this path appears to lead elsewhere. Two levels of thinking
are required: The theoretical, justiflicatory level on which rules, moral attitudes, social practices,
and so on, are assessed from a utilitarian standpoint; and the practical level on which these nonutilitarian rules and attitudes govern practical choices. Mackie puts the argument against indirect
utilitarianism forcefully: The problem is . . . the practical difficulty, for someone who is for part
of the time a critical moral philosopher in his utilitarian style, to keep this from infecting his
everyday moral thought and conduct. It cannot be easy for him to retain practical dispositions of
honesty, justice, and loyalty if in his heart of hearts he feels that these don't really matter, and
sees them merely as devices to compensate for the inability of everyone, himself included, to
calculate reliably and without bias in terms of aggre-gate utility. Id. at 353. If the theoretical and
practical levels can be distinguished but cannot be kept apart psychologically, one of two results
will follow: Either the critical thinkers will become direct utilitarians themselves, while
sponsoring nonutilitarian thinking for others; or they will let their practical morality dominate
and will cease to be utilitarian, and the alleged

All use subject to JSTOR Terms and Conditions 174 Virginia Law Review [Vol. 67:159 take a
detached view of his ideal agent, we may appreciate the motivational and emotional effect of the
agent's second-order ob-jectivist belief on his first-order beliefs while we see this second-order
belief as merely a useful illusion. We may also appreciate the indispensable role that public
moral language has in nourishing this marvelously useful second-order belief. We can readily
under-stand, therefore, that if conventional agents learned that objective values are just a useful
illusion, they would at once become first-order skeptics. The consequence would be a
weakening, if not a rupturing, of the tie between motivation and conventional rules. All of this
becomes clear from our detached perspective-as sec-ond-order skeptics of the Mackian school.
We can also be grateful indeed that others are so cheerfully and unreflectively cooperative in
their contributions to the relatively smooth functioning of the society in which we are all seeking
to work out our lives and to flourish. There is for such a second-order skeptic, however, the
practical difficulty that he inevitably faces at the level of his own first-order moral attitudes. It is
the practical difficulty of being a second-or-der skeptic without having one's skepticism infect
one's everyday moral thought and conduct. It cannot be easy for the skeptic to retain practical
dispositions of obedience to law if he thinks that his being obligated is an illusion-a mere deviceinvented to avoid the disastrous consequences that would follow if everyone ac-cepted the truth
about objective values.6" The Mackian skeptic's views effectively disable him from becoming
the ideal agent in the society Mackie describes. For what as critical thinker the skeptic takes to be
false, as ideal agent he would have to take to be true. Moreover, if, as appears to be the case, as
critical thinker he must view the belief in obligation and the objectivism that sustains it as
necessarily tied to the motivational and emotional efficacy of the conventional rule, then the
conventional rule could not for him have the same motivational and emotional significance. To
this practical difficulty, Mackie has a reply: "[T]he lack of objective values is not a good reason
for abandoning subjective concern or for ceasing to want anything. But the abandonment of a
belief in objective values can cause, at least temporarily, a decay of derivation of the rules and
attitudes from utility will become mere rationalization. "' See note 64 supra.
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subject to JSTOR Terms and Conditions 1981] Inventing the Obligation 175 subjective concern
and sense of purpose."66 In one sense, of course, Mackie is right. A second-order skeptic's firstorder moral concern must be allowed to be as sincere and as effective as anyone else's. This issue
is not in question. I am simply making the point that if the objectivist metaethic is literally built
into the concept of an ideal agent-the agent we should invent for our society-then the secondorder skeptic meets an insuperable practical difficulty in seeking to become what he would wish
others to become. Here, however, without impugning any theorist's claim to optimal subjec-tive
concern, we may still ask whether subjective concern would remain at its generally high level
throughout society if Mackian skepticism were to become the popular theory.67 In Hume's Moral
Theory, Mackie suggests that the fact that ordinary moral lan-guage is objectivist is considerable
evidence that the objectivism gives the average moral agent important motivational support.68
The question becomes, then, why is it not reasonable to speculate that to propagate the sort of
conceptual reform required to rid ordinary moral thought of its traditional illusion would in fact
tend to undermine moral commitment. This query is simply the reverse side of the question of
why we invented the illusion in the first place. Mackie may not wish, however, to advocate
conceptual reform on the level of popular morality. Even if, in view of the true object of
morality, second-order skepticism should not be made popular, it could be the property of a few

sophisticated theorists without eroding their first-order concern. If Bertrand Russell is representative of this group, however, even this confined notion tends to dis-comfit. Russell thought that
"ethical propositions should be ex-pressed in the optative mood, not in the indicative";"9 but he
admitted: Certainly there seems to be something more. Suppose, for example, that some one
were to advocate the introduction of bull-fighting in 66 ETHICS, supra note 48, at 34. "I This
question has no point for some other philosophers who, guided by their linguistic intuitions,
confidently report that in fact the popular, if implicit, metaethic is noncogni-tivist. Mackie,
though, rejects the standard noncognitivist analysis (correctly, in my view) and must therefore
take account of the question raised. *8 See HUME'S MORAL THEORY, supra note 14, at 70-72.
"9 Russell, Reply to Criticisms, in THE PHILOSOPHY OF BERTRAND RUSSELL 681, 719 (P.
Schlipp ed. 1944), quoted in ETHICS, supra note 48, at 34.
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subject to JSTOR Terms and Conditions 176 Virginia Law Review [Vol. 67:159] this country. In
opposing the proposal, I should feel, not only that I was expressing my desires, but that my
desires in the matter are right, whatever that may mean. As a matter of argument, I can, I think,
show that I am not guilty of any logical inconsistency in holding to the above interpretation of
ethics and at the same time expressing strong ethical preferences. But in feeling I am not
satisfied.70 These are some reasons I find Mackie's proposal resistible. I shall briefly mention
another. Mackie must have a critical and jus-tificatory principle behind his theory, which appears
to be that a moral attitude is correct if, with our own interests alone in view, it would be prudent
to wish for and to promote that attitude in others. Here again, the critical theorist is on a collision
course with nonegoistical moral reasons for acting, which may be thought to be his own.71 From
a recent article in which Mackie defends a right-based normative theory of morality,7" however,
we may infer that what in the end justifies the widespread practical attitude of re-spect for law is
its being indispensable for preserving the funda-mental right of persons "progressively to choose
how they shall live."73 I agree that this is a fundamental right, but I also find it less than credible
that this right of humanity is, in the final analy-sis, no more than a shadow of my own practical
attitude. 70 Id. at 724 (emphasis in original), quoted in ETHICS, supra note 48, at 34. 71 The
philosopher who subscribes to egosim at the level of critical theory faces, in his role as moral
agent, a problem parallel to that described above in connection with utilitari-anism. See note 64
supra. Either the nonegoistic moral reasons dominate and he ceases to be an egoist, or he
sponsors morality for others but not for himself. See also Marshall, The Failure of Contract as
Justification, 3 Soc. THEORY & PRAC. 441, 457-58 (1975). 72 See Mackie, supra note 64. 71
Id. at 355.
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subject to JSTOR Terms and Conditions