Law claims supremacy in determining behavior; officials act as if law subjects have moral obligations to do what the law requires them to do. However, it has proven notoriously difficult to defend the idea that there is a general moral duty to obey the law, even in a democracy. Traditional arguments in political philosophy using general considerations have run into a number of difficulties. Recently, hope of bypassing those difficulties has come from what Dindjer calls the “one-system view” of law presented by a new school of anti-positivism. As Dindjer interprets this view, it holds that legal norms and moral norms belong to the same normative system.1 It follows that a legal obligation just is a kind of moral obligation; and so, there is always a moral duty to obey the law. (The one-system view applies to other legal incidents as well, such as legal powers and legal privileges.)
Dindjer sets out to show that the one-system view of law so understood is untenable by finding counterexamples in familiar legal content or, in some cases, possible legal content. Unlike traditional critics of anti-positivism, Dindjer does not simply trot out legal requirements that are egregiously evil and laws that are outrageously unjust; in fact, he rarely mentions them. Many of his exemplar laws are morally flawed, but in subtle and familiar ways. Sometimes they are flawed only at the periphery because of over-inclusiveness.
The obvious objection to Dindjer’s procedure is to claim that he is begging the question against the one-system view in his identification of actual and possible legal content. He works hard to reply to this charge. My take on this is that Dindjer’s counterexamples of legal content are often so familiar to law students, scholars, and practitioners that it is fair to say that anyone claiming that they are not part of the law of familiar legal systems is employing revisionist conceptions of legal incidents and law. To accept these conceptions requires a compelling argument; and, to my knowledge, one has not yet been supplied.
Moreover, Dindjer does a good job of defending an independent reason for rejecting the one-system view: it has no tenable way of distinguishing legal norms from moral norms that are not part of law. His principal targets here are proposals by Mark Greenberg and the Ronald Dworkin of Justice for Hedgehogs.
In short, Dindjer does a convincing job of showing that the one-system view of law, at least as he presents it, is not a viable way of establishing a moral duty to obey the law, because it is not a viable way of establishing that political obligation is entailed by the nature of law. It is not a viable way of establishing that political obligation is entailed by the nature of law because it is not a viable account of the nature of law. It is this last point that Dindjer is particularly interested in making.
- Dworkin is named as one of this school. For a different take on Dworkin’s version of the one-system view, see Hillary Nye, The One-System View and Dworkin’s Anti- Anti-Archimedean Eliminativism, 40 L. and Phil. 247 (2021) available at Springer.