Book Notes
![handle is hein.journals/hlr98 and id is 1364 raw text is: BOOK NOTES
A THEORY OF LAW. By Philip Soper.' Cambridge, Massachusetts:
Harvard University Press. 1984. Pp. ix, 19o. $16.50.
The central question of legal theory is what is law? According
to Philip Soper, the debate about this question is largely meaningless
(p. vii) and will remain so unless it includes the central question of
political theory, why should I obey the state? (pp. 7-13). Thus, A
Theory of Law, despite its title, presents two theories, one political
and one legal. Soper's political theory identifies those directives of the
state that citizens have a prima facie obligation to obey;2 his legal
theory restricts the definition of law'3 to only those state directives
that citizens are obligated to obey.
Because much of Soper's legal theory is derived from his political
theory, this essay focuses exclusively on the strengths and weaknesses
of his political theory. It argues that the political theory is flawed in
two ways. First, although Soper recognizes that any political system
worthy of prima facie obligation must protect individual autonomy to
a substantial degree, his own political theory does not adequately
protect individual autonomy. Second, Soper never clearly identifies
the source of political obligation that underlies his theory.
I.
What must be true about the simple directives of an organized
society, Soper asks, if they are to yield obligations? (p. 13). The
question is familiar, but Soper's solution is fresh.
After briefly discussing and criticizing standard answers to the
question - answers based on promise, estoppel, and unjust enrich-
ment (pp. 65-74) - Soper proposes the following answer:
[The] features [that should be sufficient to establish political obli-
gation] are (i) the fact that the enterprise of law in general - including
the particular system, defective though it may be, that confronts an
individual - is better than no law at all; and (2) a good faith effort
by those in charge to govern in the interests of the entire community,
including the dissenting individual. (P. 8o).
I Professor of Law, University of Michigan.
2 Soper discusses only prima facie obligations, not absolute ones (p. 577 n.x).
3 Soper uses the word law in two ways. In presenting his political theory, he uses law
to refer to all orders issued by the state. This pre-analytic sense of law is the relevant sense
of the word in the question is there an obligation to obey the law? The second sense, the
post-analytic, refers only to those orders of the state that citizens are morally obligated to obey,
as distinct from those orders to which no obligation attaches. The merit of the second sense is
the subject of Soper's legal theory. Because this essay is concerned primarily with Soper's
political theory, law will be used in the broader, pre-analytic sense.
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Book Notes
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