Might, Right, and the Concept of Obligation

Not long ago I wrote a review of Kenneth Himma’s excellent 2024 book on the nature of authority. Since then, Himma has taken a similar (one might call it “muscular”) approach to the concept of obligation. His analysis is intended to cover every sort of obligation: legal, moral, social, etc. My entry today is devoted to a look at Himma’s new paper on this subject.*

Himma’s conclusion is that, just as authority was shown to be largely a matter of power, the “bindingness” of obligations is, in essence, a matter of liabilities to detriment for noncompliance. It is exposure to such things as imprisonment, fines, restitution requirements, or public scorn that, on his view, distinguishes honest-to-goodness obligations from Dear Abby’s advice. In other words, if his book tied the concept of right closely to that of might, this paper takes us one step further toward a traditional marriage between the pair.

As he did in his book, Himma conveniently supplies the entire exoskeleton of his argument in the opening pages of his paper. Its elegant compression may make it look forbidding at first, but a couple of readings dispel that impression:

P has an obligation to do a under N if and only if (1) N is a system of norms; (2) there is a mandatory prescription n in N governing P’s behavior; (3) n requires P do a; (4) N excludes certain considerations as excusing or justifying noncompliance with n; (5) n binds P in virtue of implicating a liability that subjects regard as detriment to be avoided other things being equal because they should regard it as such; (6) n creates an objective reason that justifies P in doing a under N and immunizes P in N against the applicable liability; and (7) n creates an objective reason that is grounded in the undesirability of the liability to which N gives rise that functions to incline or motivate compliance.

 

It's a clever approach, certainly, but I think there is a crucial problem with it. The biconditional has the look of precision: seven conditions, individually necessary and, Himma hopes, jointly sufficient. But the notions on which it quietly relies — “system of norms,” “under,” “acceptance,” “objective,” “freedom” — are all what Hart, borrowing from Waismann, called open-textured. So it's not surprising that obligation itself is squishy too. Hart was explicit about this matter. In a passage Himma himself quotes, Hart concedes that “the line separating rule[s] of obligation from others is at points a vague one.” But Himma proceeds as if his seven conditions could draw it precisely. What follows are some examples of how I think the attempt goes wrong.

What counts as a system of norms? A set of norms — a batch of “musts” — can be many different sorts of things: a legal system, a religion’s moral code, a book about which fork to use with salad or how long one must wait before dispensing with one’s “widow’s weeds.” Himma’s requirements for a system are modest: it need only identify its subjects, state conditions under which noncompliance is excused, and create a liability. Nothing about whether anyone actually accepts or practices it. By that standard, a no-plaid-pants code I write up this afternoon qualifies the moment it authorizes a fine. So, it would seem, does a vow one makes to oneself — to stop texting while driving, say, or to quit gambling or pornography or eating meat. Such a one-person code identifies its subject, may allow excuses, and attaches detriment to violation, from guilt all the way to death. Is the person who breaks such "solemn vows" violating an obligation, or merely failing at a resolution? Or is he, as Hobbes would have it, not really bound at all, since one bound only to himself can release himself whenever he likes? And is a car crash while texting or loss of one's house in a poker game a “liability” within the system, or simply a consequence out in the world? Nothing in the analysis tells us.

The same looseness undermines Himma’s attempt to keep the gunman out. A robber’s threat, he says, “is inaptly described as a liability,” because liabilities are detriments whose imposition is justified within a system. But given how little a system requires, the robber is excluded only because she hasn’t troubled to write rules authorizing her threat. The gang boss has, and Himma is explicit that “even a crime boss’s wickedest directives can create something that counts as an obligation.” Hart objected that Austin made law “the gunman situation writ large.” On Himma’s account, obligation is the gunman situation plus self-authorization.

What is it to be “under” a code? On Himma’s account, a system’s own norms identify who falls under them. But a code can say whatever it likes about its own reach; the question that matters is when someone is genuinely subject to it. That is the old problem of political consent, and it has never been solved. Is one under a code by birth, by residence, by accepting its benefits, by failing to object? Hume’s poor peasant, who supposedly “consents” to his sovereign by not emigrating, is the classic warning against answering too quickly. Hart’s answer, for social rules at least, was acceptance: rules of obligation exist where members take the internal point of view toward them, using them as standards for criticizing deviance, their own included. Himma drops this altogether. Acceptance doesn’t even appear among the candidate properties he considers and rejects. That’s convenient, since acceptance is what would keep my pants code, or a gang’s code, from counting. But it’s also understandable, since acceptance is as squishy as consent. Does one accept a code by conforming, by criticizing those who don’t, by belonging to the group that maintains it, or merely by not complaining? Condition (2), a prescription “governing P’s behavior,” simply assumes all this settled.

What sorts of requirements are the ones that count? It may seem that the first three conditions are all we need: a system N, a prescription in it governing P, and a requirement that P do a. Ordinary usage seems to agree. When a debt is so old that the creditor can no longer sue and it has long since dropped off the debtor’s credit report, we generally wouldn’t say that the obligation has vanished; we are more likely to say that the money is still owed, that there remains an obligation to pay it. Himma would likely handle such counterexamples by insisting that without a liability, a requirement “at most, purports to create an obligation.” He might also suggest that if any obligation remains, it can only be a moral one. But the law in most American jurisdictions treats the debt as still legally owed: the time bar is a defense the debtor must raise, and if she doesn’t, a court will enforce the debt. In any case, Himma offers no evidence from usage for the claim that unenforceable requirements merely purport to obligate, which is awkward for an analysis that claims to track our conceptual practices. Meanwhile, attach a penalty to even the silliest rule, my no-plaid-pants code, say, and it passes. The filter thus seems to me to exclude requirements we ordinarily call obligations and to admit any requirement that someone can make you pay for ignoring.

Informal rules pose the opposite problem. Himma quotes Hart’s examples, “You ought to take your hat off” and “It is wrong to say ‘you was,’” as rules that don’t create obligations, and treats them as “permissive.” But they aren’t permissive; they’re mandatory rules backed by criticism, and Hart’s point was that mild social pressure doesn’t make a rule obligatory. Himma brings Hart’s threshold back in when discussing social obligation, counting pressure as a liability when it is “plausibly described as great.” Yet “great” appears nowhere in the seven conditions. So the salad-fork rule, enforced by the disapproval of one’s hostess, either creates an obligation, contrary to the Hart whom Himma quotes approvingly, or requires a further condition that his supposedly complete list doesn’t contain.

What makes bindingness “objective”? Following Hart, Himma holds that obligation doesn’t consist in a “feeling of pressure or compulsion experienced by those who have obligations,” and concludes that the binding mechanism is objective because it is not “even partly constituted by the mental states of any particular subject.” But if no particular subject’s mental states constitute an obligation, those of subjects in general plainly do. Himma's own account requires a liability “that subjects regard as detriment to be avoided,” and prison, fines, and scorn are so regarded because people generally find them aversive. Social “pressure” that produced no aversion in anyone would hardly be pressure at all. Himma’s fallback is that subjects should so regard the liability, according to what he calls “putatively objective norms” of practical reasoning. But those norms are left undefended, and in the legal case they amount to prudence, the very sort of reason the robber gives you. The most that might be achieved here is intersubjectivity, not psychology-free objectivity.

In what sense are we “not free”? Himma endorses Hart’s claim, without qualification, that “obligations bind by restricting the subject’s freedom to do what she wants.” Taken literally, this is false. We violate obligations all the time, and the concept presupposes that we can; otherwise there would be nothing to blame or punish. Read prudentially, as the claim that no sensible person would risk the detriment, it describes not having an obligation but being obliged, which is Hart’s own gunman case. Read normatively, as the claim that we are not “at liberty” to ignore our obligations, it is true but empty: to lack the liberty not to do something just is to be obligated to do it. Tellingly, the only explanation Himma offers is the prudential one: it is “the subject’s interest in avoiding the detriment” that “expresses the sense in which she must or shall, as opposed to just should,” comply. On the one reading that does real work, obligation turns back into compulsion.

These are not gaps that a longer paper could fill. Himma’s method concedes that our semantic conventions are qualified in hard cases by “shared assumptions about the nature of a kind.” For “bachelor,” there are such assumptions, which is why we can decide about the Pope. For “obligation,” the hard cases are exactly where the shared assumptions give out: the gang, the vow, the unenforced rule, the etiquette manual. These aren’t marginal cases; they’re the ones philosophers have argued about since Hobbes. Himma’s own conclusion betrays the strain. It announces that “the nature of obligation is exhausted by” the seven conditions, then allows in the next breath that further properties “can be added to the list,” the argument having succeeded, at least, “in shifting the burden of proof to dissenters.”

To be fair, Himma would deny that any of this makes might morally right. Legal norms, he insists, create legal obligations, not moral ones, and the liability attached to a moral obligation is simply being deserving of blame, which nobody’s power produces. But that means his single mechanism runs on two engines: prudence in the case of law, and the intrinsic value of goodness in the case of morality. Only calling both “detriment” makes them one.

What, then, gives the biconditional its air of rigor? I suspect it is the one item on the list with fairly sharp edges: the liability. Whether someone can fine you, jail you, or throw you out of the restaurant is usually a determinate matter. It’s not surprising that an analysis seeking crisp existence conditions for a vague concept would gravitate toward the crispest thing in the neighborhood: power. In that sense, the marriage of might and right I mentioned at the outset isn’t so much argued for as forced by the method. When everything else is open-textured, might is what’s left.

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* Ambrose Lee’s “The bindingness of obligations,” in the same issue of Revus, is a longer critique of Himma’s paper. I think, though, that it concedes too much: it argues within Himma’s framework, granting that there is a mechanism of bindingness to be found and disputing only what it is.