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5 Jurisprudence 1 (2014)

handle is hein.journals/jisprud5 and id is 1 raw text is: DOI: http://dx.doi.org/10.5235/20403313.5.1.1 The Jurisprudence Annual Lecture 2014 Law and the Normativity of Obligation Thomas Pink* 1. THE PROBLEM OF OBLIGATION In Appendix IV to An Enquiry Concerning the Pinciples of Morals, 'Of some verbal disputes', David Hume criticised what he took to be a serious distortion in moral theory: Philosophers, or rather divines under that disguise, treating all morals as on a like foot- ing with civil laws, guarded by sanctions of reward and punishment, were necessarily led to render this circumstance, of voluntary or involuntary, the foundation of their whole theory ... but this, in mean time, must be allowed, that sentiments are every day experienced of blame and praise, which have objects beyond the dominion of the will or choice, and of which it behoves us, if not as moralists, as speculative philosophers at least, to give some satisfactory theory and explication.1 Hume claimed to be uncovering an unwarranted intrusion into moral theory of notions from positive law. The possibility for such distortion is provided by the notion of obligation or duty, and by related notions of responsibility and blame, which, on the surface at least, very much seem to be shared between morality and positive law. 'You have an obligation to pay the money' could be said by a moralist asserting a moral obligation-or by ajudge or state official asserting a legal obliga- tion, that is an obligation under some system of positive law. Andjust as one can be under obligations that are legal as well as moral, so one can be held legally as well as morally responsible, and legally as well as morally to blame. In Hume's view, philosophical accounts of moral obligation, responsibility and blame were being distorted through the remodelling of these notions as involving a moral form of positive law, and so a moral version of a legal obligation or duty. The people doing the remodelling were theologians pretending to be philosophers, and importing into moral theory a moral version of the coercive authority involved Professor of Philosophy, King's College London, UK. 1 David Hume, An Enquiry Concerning the Principles of Morals, PH Nidditch (ed) (Clarendon Press, 1975) Appendix iv, 'Of some verbal disputes', p 322. (2014) 5 (1) jurisprudence 1-28

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