ABSTRACT
In this chapter we turn to the question of the nature of legal obligation. This is an important question for the theorist of punishment, although one little concentrated on by most writers on the subject. The importance of the question flows from the fact that any purported justifying argument for punishment presupposes, or proceeds from, a view about the nature of law in general, and of criminal law in particular. Within all legal theories, in turn, whether descriptive or prescriptive, there is implicit or explicit a particular view of the nature of legal obligation. And in some very influential legal theories, these views have been concerned with the place of sanctions in motivating obedience, and their analytic or contingent connection with the existence of legal obligation. Thus an understanding of the nature of legal obligation is clearly of importance to the task of producing justifying arguments for punishment, in the sense that it is necessary to the identification of just what it is which we are attempting to justify. For if, as is inevitably the case, the justifying arguments for punishment are bound up with justifying arguments for the existence of the law itself, the view that punitive sanctions are a conceptually necessary or morally desirable feature of the criminal law entails that any justification for the law itself must include a justification of punishment. My aim, then, is to draw some conclusions from the debate about the nature of legal obligation in terms of its implications for the justification of the imposition of punishment by legal authorities.
