By Ori J. Herstein
A classic question in the philosophy of law arose last week in the Supreme Court during Monday's oral argument on the challenges to the Affordable Care Act (ACA). The exchange was between Chief Justice Roberts and Plaintiffs’ counsel Gregory Katsas. And the question was whether legal obligations are necessarily – by their nature as legal – backed up by sanction.
The focus of the day’s arguments was on whether the Anti-Injunction Act (AIA) precludes the Court from ruling on the case. The Plaintiffs are challenging the ACA’s “individual mandate,” which directs people to purchase healthcare converge and imposes a penalty on some of those who fail to comply. The (AIA) is a “pay first, litigate later” statute, precluding courts from imposing ex-ante injunctions on taxation. Considering that under the ACA the payments from those who fail to comply with the individual mandate will not be collected before 2015, it is possible that the court is precluded from ruling on the constitutionality of the Act before that date. In contrast, the Plaintiffs argued that at most the AIA bars challenging the sanctioning/taxing clauses of the Affordable Healthcare Act. According to the Plaintiffs, the AIA does not bar the Court from ruling on the individual mandate clauses, which is the Plaintiffs’ primary target. (The government agrees with the Plaintiffs that the case can be adjudicated now, so the Court appointed an amicus to argue the contrary position.)
Chief Justice Roberts questioned whether – at least for purposes of the AIA – the individual mandate could be treated separately from the penalty that the ACA imposes on those who fail to comply with the mandate. According to the Chief Justice it is not clear whether one could challenge the mandate without also ipso facto challenging the penalty that goes along with it. As he put it, “the idea that the mandate is something separate from, whether you want to call it a penalty or tax, just doesn't seem to make much sense.” Responding, Mr. Katsas insisted that the mandate and the sanction are “entirely separate” and that “there is a difference between what the law requires and what enforcement consequences happen to you.”
It seems that according to the Chief Justice, mandatory legal norms and the penalizing mechanisms that accompany such norms are in some sense inseparable, so that an obligation without its sanction is in fact not an (legal) obligation at all. Obligations without sanctions obviously exist. For example, morality may impose obligations even though there are no such things as moral sanctions (morality may justify a social or legal sanction, but morality itself does not sanction). But what about legal obligations? Can a non-coercive obligation be a legal obligation?
Among legal philosophers the main figures that in broad terms agree with the Chief Justice are 18th - 19th century philosophers John Austin and Jeremy Bentham, as well as 20th century philosopher Hans Kelsen. As Bentham wrote, without the threat of sanction, “legal obligation is a cobweb” and “legal duty a feather.” Mr. Katsas has the support of an equally impressive philosophical lineup, namely of 20th century philosopher H.L.A. Hart and of coNtemporary philosopher Joseph Raz.
The issue of the relation between legal obligations and enforcement is sometimes posed as a matter of explaining what is often referred to as the “normativity of law.” We tend to think that the law gives people reason to comply with its obligations. That is, the mere fact that an obligation is a legal obligation is, in and of itself, reason to comply. In this respect, law is essentially normative. But assuming that the law – as law – indeed tells us what we must do, the question is what is the nature of this mysterious “must”? How is law – as law – normative?
Austin’s famous “command theory of law” postulates that all laws – and certainly all mandatory legal norms – are commands, i.e., orders backed by threat. A legal obligation is always, therefore, constituted by both an operative component (what one “must” or “must not” do) and a corresponding sanction. Last week Chief Justice Roberts was practically channeling Austin’s spirit when he talked about the individual mandate, saying that “it's a command. A mandate is a command. Now, if there is nothing behind the command, it's sort of, well, what happens if you don't follow the mandate? And the answer is nothing. It seems very artificial to separate the punishment from the crime.”
Under this approach, the normativity of law is found in legal enforceability, which is not an implausible explanation. After all, people often follow the law’s directives for prudential reasons, namely for the fear of sanction. Assuming that law is normative, and accepting that the normativity of law is found in legal enforcement, it seems to follow that all legal mandates are enforceable. Considering that the individual mandate is obviously a legal mandate, Chief Justice Robert is possibly correct in arguing that one cannot challenge the individual mandate without also ipso facto challenging the sanction that inherently goes along with it.
The competing view to Austin’s is that the normAtivity of law – as law – does not arise from the fact that the law gives valid reasons for action (be they prudential or, as some natural law theorists argue, moral) but from the fact that people believe in the normativity of a legal system. As Hart points out, people’s compliance with law is frequently not a function of the threat of legal sanction but rather of the fact that people often accept the law’s authority. According to Hart people often view the law not from the point of view of Justice Holmes’ infamous “bad man” – who is only concerned with the law’s coercive aspects – but rather from an “internal point of view,” accepting the law as normative by following the law simply because it is the law. Raz makes a similar argument, viewing the normativity of law as a function of people approaching the law from what Raz calls the “legal point of view.” This theory of the normativity of law is clearly reflected in Mr. Katsas’ response to Chief Justice Roberts. The Chief Justice’s claim was that a mandatory norm is inextricably tied to its enforceability mechanism; because without its corresponding sanction a legal obligation is artificial and normatively vacuous, that is, not a full-fledged legal directive. But according to Mr. Katsas, “some people will follow the law precisely because it is the law,” thereby demonstrating that the individual mandate is normative (and therefore a full-fledged legal directive) even when separated from the mechanism of its enforcement.
So who is right? I tend to endorse Mr. Katsas. Chief Justice Roberts is correct that without the penalty the individual mandate would be “toothless,” which would probably impair the effectiveness of the entire statute. Yet, a legal mandate divorced from sanction is still a legal mandate, even if an ineffective one.