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Against Obligation: The Multiple Sources of Authority in a Liberal Democracy
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Review
In Against Obligation, Abner Greene upends conventional wisdom about several fundamental political questions. Why and when must people obey the law? What does religious freedom require in a liberal democratic state? Must judges and citizens respect historical views about constitutional meaning? Smart, ambitious, provocative, and original―this tightly argued and broad-ranging book compels readers to reexamine basic assumptions about political obligation, constitutional democracy, and religious freedom. (Christopher Eisgruber, Princeton University)Against Obligation is one of the finest contributions to constitutional theory in recent years. Abner Greene shows the connections between questions of political and interpretive obligation in this remarkably incisive work. His arguments against the leading justifications of political and interpretive obligation are vigorous and fair. And his arguments for the multiple sources of obligation and interpretive authority in a liberal democracy are creative, normatively attractive, and deeply grounded in a powerful account of our constitutional order. (James E. Fleming, Boston University)
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About the Author
Abner S. Greene is Leonard F. Manning Professor of Law at Fordham University.
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Product details
Hardcover: 352 pages
Publisher: Harvard University Press (April 25, 2012)
Language: English
ISBN-10: 0674064410
ISBN-13: 978-0674064416
Product Dimensions:
6.8 x 1 x 9.5 inches
Shipping Weight: 1.4 pounds (View shipping rates and policies)
Average Customer Review:
4.0 out of 5 stars
1 customer review
Amazon Best Sellers Rank:
#2,053,223 in Books (See Top 100 in Books)
Despite its title, this book isn't some sort of anarchist tract. Abner Greene (AG) is arguing against some very specific obligations, namely (i) an obligation always to obey the law, regardless of its content, (ii) an obligation always to respect the past in the juristic sense, including respecting the "original meaning" of the Constitution and respecting judicial precedent, and (iii) an obligation always to respect the US Supreme Court's interpretations of the Constitution. (Philosophers give the name "political obligation" to obligations like (i), and AG gives the name "interpretive obligation" to (ii) and (iii).) Even if we take these only as prima facie obligations, i.e. being subject to override in particular circumstances, AG argues that they don't exist. I've recently posted a lengthy review of this book on a law blog called Concurring Opinions, so here I'll just mention a few main points.I thought the most successful part of the book was Chapter 4, dealing with (iii). AG lays out the circumstances in which public officials -- including the President, Congress, lower court Federal judges, and even state and local officials -- ought to feel comfortable about acting on their own interpretations of the Constitution, even if the Supreme Court has said that it means something else. Many of its arguments were new to me. Chapter 3, about why even the Supreme Court shouldn't get hung up on originalism or even on following its own precedent (issue (ii)) was also quite good for an American audience, though I don't expect a majority of the Justices will follow AG's advice anytime soon. Note that AG doesn't argue that precedent should always be ignored: rather, he argues that it should be merely one influence among others on a judicial opinion. Similarly, in the context of (iii), the Supreme Court's interpretations might raise good points that public officials should consider; the point is that they don't have a duty always to follow those interpretations just because they emanated from the Court.Political obligation has been controversial for a long time, and while AG isn't the first to deny its existence, his Chapter 1 provides a very densely-argued rebuttal to the best-known theories by British and American writers. This chapter is written at a relatively high level of abstraction, and (along with the Introduction) may be tough going for some readers. Chapter 2 provides a sort of affirmative argument for why the State should recognize that its jurisdiction is "permeable -- full of holes." On this basis, the State should sometimes grant exemptions to, e.g., religious groups so that they can live "by themselves," as long as they "abide by constitutional rules." I thought this chapter was quite problematic, for reasons discussed in depth in the Concurring Opinions review.Just as the title might mislead you about the scope of book's arguments, so might the subtitle: "The Multiple Sources of Authority in a Liberal Democracy". The book's arguments are really focused on the US case only, not on liberal democracies generally, or else will be most persuasive to scholars who share certain American philosophical tastes. For example, the UK is a liberal democracy, but lacks judicial review of Parliamentary legislation, so all or most of Chapter 4 wouldn't apply. France and Germany are liberal democracies, but don't regard judicial precedent as binding in the way we do in the US. A reader familiar with a civil law system like those countries' will wonder what's the big deal about most of Chapter 3. AG's discussion in Chapter 1 assumes away much of the problematic of political obligation by explicitly assuming that law and morality are distinct; some Continental thinkers devote much more analysis to this problem, even if they share AG's skepticism about political obligation. And Chapter 2 is based almost entirely on the religion clauses of the First Amendment -- though ironically, German constitutional jurisprudence sometimes reaches similar results to those urged by AG, and might have made his argument more persuasive. Unfortunately, AG doesn't refer to any Continental sources since the 18th Century, and doesn't refer to any non-US court cases at all. To be fair: AG does at times make it clear that he's speaking only about the US case, especially in later chapters; and as for those portions of his argument where he speaks in a confusingly general or universal tone, he's in plentiful company. Many Anglophone legal philosophers, including Ronald Dworkin, are very unclear about the geographical scope of their comments, which often apply to the US (or at most, common law jurisdictions) alone.AG's style is dense and serious, but free from the critical studies jargon and vagueness currently fashionable in some parts of the legal academy. I was cheered to see that the book has both endnotes and a full bibliography. A book to contend with if you're interested in the philosophy of American constitutionalism, but perhaps less useful if your interests are more in comparative law or politics, or in political or legal philosophy more broadly.
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