Review of Abner S. Greene, Against Obligation: The Multiple Sources of Authority in a Liberal Democracy
posted by Andrew Sutter
Abner S. Greene, Against Obligation: The Multiple Sources of Authority in a Liberal Democracy (Harvard University Press 2012)
Don’t be alarmed by his book’s sweeping title: Abner Greene isn’t suggesting that we chuck Contracts from the law school syllabus. Rather, he has three particular sorts of supposed obligations in his crosshairs: a moral obligation always to obey the law (also known as political obligation), an obligation to defer to “the past” – be it “original meaning” or simply judicial precedent – in constitutional jurisprudence, and an obligation by public officials to be bound by the Supreme Court’s reading of the Constitution. A surprising number of theories propose the existence of such obligations in “content-independent” form – and Greene refutes them methodically, even relentlessly, one after another. One of the achievements of this book is that he manages to sound more reasonable than radical while doing so.
But while the book’s subtitle, “The Multiple Sources of Authority in a Liberal Democracy,” suggests a broader viewpoint, this book is embedded within an entirely American discourse. A reader outside the US, or even one of a comparativist bent within it, might well wonder whether Greene’s arguments are as airtight as they seem, whether they’re as controversial as he may think they are, or even what sort of philosophy this kind of book is really about.
A. Summary of the arguments
In his introduction, Greene lays out a pair of questions that will motivate the two respective halves of the main text. First, the question of political obligation: is there a prima facie moral duty to obey the law simply because it is the law, such that a citizen or other legal subject would have the burden to justify any claim that this duty should be overridden? Second is the question of “interpretive obligation”: is there a prima facie duty to follow higher or prior sources of constitutional meaning, albeit again subject to override?
As the book’s title suggests, Greene argues that neither obligation exists. But since both are prima facie duties that are always subject to override, he admits that some readers might wonder “What’s the fuss?” His response is that the burden matters. If there is a prima facie duty, then the burden is on a person subject to the obligation to justify overriding it. Absent such a duty, the burden is on the state to justify its threat of coercion, or on the interpreter to justify following precedent or the allegedly higher authority.
While these two questions are independent of each other, Greene’s presentation highlights the analogies between them. This analogizing even leads him to complementary conclusions inspired by the late Albert Hirschmann’s 1970 classic Exit, Voice and Loyalty. Although there will be times when we do have a duty to obey the law, and times when government officials should heed judicial precedent or the Supreme Court, these will always be based on the content of the law, precedent or other authority and the facts of a particular situation. In the political case, Greene argues that the state’s sovereignty is therefore “permeable – full of holes.” In recognition of this, the state should provide “representative” forms of exit, such as certain exemptions from enforcing the law, so that citizens may respond to competing sources of authority “that they hold dear.” (Literal exit would mean emigration, which isn’t always feasible.) In the interpretive case, government officials should be entitled to more voice, i.e., more leeway to challenge the Supreme Court’s past and current Constitutional interpretations with the officials’ own. 
The first, and longest, chapter contains the critique of political obligation. Greene’s intricate arguments cut a swath through theories finding political obligation from consent, fair play, political participation, natural duty, associative obligation, and systemic stability (and consequentialist arguments generally). He even distinguishes his own theory from that of Joseph Raz, whom I had previously read as putting a pretty convincing kabosh himself on the idea of political obligation – at least, if you accept, as Greene does, some form of positivism. 
Chapter 2 contains the more constructive part of Greene’s political obligation argument. He argues that the state should “remedy the harm caused by [its] unjustifiable general demand for compliance with the law” by providing “representations of exit” to allow “religious and philosophical and other sources of normative authority to govern the lives of the state’s subjects to the fullest extent compatible with the stable operation of government and the liberty of other persons [@114-115].” The book’s elaboration of this theme, though, focuses solely on the case of religious practices. I had some reservations about this chapter, which I’ll expand on in section B below.
Chapters 3 and 4 turn to interpretive obligation. Chapter 3, “Against Obligation to the Past,” is the broader argument, and applies even to the Supreme Court itself. First, Greene “debunks” theories of deference to precedent based on democratic legitimacy, “diachronic commitmentarianism,” common-ground arguments and anchor theory – a much broader critique than merely rebutting original intent and original meaning theories. While he doesn’t provide an affirmative theory of constitutional interpretation, he does claim that interpretation “necessarily involves constructing rather than reporting the purposes/ends of our constitutional order [@201].” Not that Greene throws out the past entirely: while he rejects giving deference to “diachronic fit points,” he acknowledges that those points may still be relevant. Analogously to political obligation, though, “the burden should be to justify deference to authority, not to justify overcoming it [@206].”
Chapter 4 is perhaps the most “applied” chapter of the book, arguing against the interpretive authority of the Supreme Court. After a by-now familiar session of theory demolition, Greene provides a list of guidelines for public officials in deciding whether to follow the Court. Among these are the need for coordination or stability, the size of the majority joining a Court opinion, the persuasiveness of the Justices’ reasoning, the distinguishability of the opinion from the case at hand, and what Greene calls “generational participation.” This is the notion that the closer in time the opinion is to the present, the more deserving it is of obedience, because in principle the officials have had an opportunity to influence the debate around the relevant cases. Greene acknowledges that this is a sort of “virtual” and possibly counterfactual participation, but since it relates to public officials rather than to subjects of the law, “we can accept [its] imperfect legitimacy [@226].” An analysis of how the President, Congress, lower federal judges and even state and local officials do or might mount “interpretive challenges” follows, along with some discussion of the Court’s response to them, which isn’t necessarily as negative as you might expect. For me, at least, this chapter contained some of the most novel and stimulating material in the book, though the “virtual representation” aspects of generational participation were perhaps more wobbly than the rest.
Greene writes in a clear, sober style, though at times he gets so busy juggling names of philosophical doctrines that the tone becomes a little abstract. The reader may wish for some striking illustrative examples to lighten his or her load, especially in the relatively theoretical Chapter 1; the best we do is to get these second- or third-hand, such as Greene’s discussion of Frederick Schauer’s analysis of Raz’s example about a woman who adopts a rule to always take French vacations. Fortunately, the later chapters discuss some Supreme Court cases, which makes the discussion more concrete. The author and the press are to be commended for providing both endnotes and a bibliography, a combination rarer these days than bipartisan cooperation in Congress.
Scholars interested in US Constitutional doctrine and theory would do well to contend with this book. I’m not sure it makes as much of a contribution when it comes to the theory of liberal democracies generally. I explain my doubts in sections C and D below. But first I’d like to talk through some of my difficulties with the notion of “permeable sovereignty,” and with some of its consequences.
B. Permeable sovereignty
Permeable sovereignty is a form of political pluralism. As Greene notes, this isn’t an original idea with him; he cites Harold Laski (1919) and William Connolly (2005), among others (@21).  Here is the gist of it, by Greene’s lights:
[W]e should view all sources of normative authority — religious, philosophical, cultural, family-based, etc. — as on a par with the state’s laws. Sovereignty, viewed in this way is not plenary in the state, but rather is permeable through to the plurality of sources of value, of norms, of obligation. The state can loosen its sovereign demands and accommodate those other sources of normative authority that many citizens hold dear. [@117; emphasis added]
He cautions that it’s not reasonable to limit this accommodation to making it easy to emigrate. Even aside from the difficulties of immigrating to somewhere else,
the costs of emigrating are enormous. There are financial costs of relocating and finding new employment. There are emotional costs of leaving one’s friends and family. There are cultural costs of leaving a milieu of language, art, entertainment, society, etc., that one understands for a setting with which one is unfamiliar. Given these concerns, I concluded in Chapter 1 that it’s unreasonable to deem the failure to emigrate as tantamount to consent to domestic laws. [Id.]
So what’s needed is an opportunity for conscientious objection, which Greene calls a “represented” form of exit. What he has in mind is a prima facie right to “judicial exemption” from certain of the state’s laws, subject to override by a compelling state interest. For example, in Board of Education of Kiryas Joel Village School District v. Grumet (1994), the Supreme Court shouldn’t have invalidated the separate school district New York State created for the Satmar Hasidic community of Kiryas Joel:
We should see Kiryas Joel as about a group that wants to live by itself and operate private institutions and to exercise appropriate public power. So long as the Satmars are willing to abide by constitutional rules when exercising such power, there should be no constitutional barrier to the state’s ceding them the public as well as private aspects of sovereignty.
At this point a logical problem might suggest itself: why does the buck stop there? If we’re going to say that a religious community has sovereignty over its residents, shouldn’t we inquire about the nature of obligations to the sovereign? Don’t the same arguments against political obligation apply here too? And just as the state must justify its authority in the absence of political obligation, shouldn’t we require that a religious community justify each exercise of authority over its members? Is the religious community obligated to provide “represented exit” for its members? And should the state inquire whether the group does or not, before authorizing an exemption? After all, let’s recall what inspired the state legislature to create a school district for Kiryas Joel: it was traumatic for Satmar children with special needs to go outside their community to programs at ordinary public schools. This illustrates how the costs of “emigrating” from the religious community can be high – just like the ones Greene described for emigrating from a country. 
Greene hints that this isn’t a logical problem at all – it’s simply none of our business, even if the group is “illiberal”:
[M]y position is deferential to (even illiberal) persons/groups desiring to depart from law and live by their own lights. I work from the following baselines …: knowing and voluntary choices (by adults) to adhere to various sources of normative authority (or perhaps to do so from felt obligation); doubt whether we (even comprehensive liberals) have reached the truest or best answers regarding the true or the good; the failure of the general case for political obligation (and correlated political legitimacy). We must balance harm caused by practices to which we might defer against the harm to the (usually) minority person/group if an exemption is denied.[@157-158]
The word “harm” appears twice in that last sentence. I’m not entirely certain what harm is meant by the first occurrence, but my best guess is that it’s to the state or the society at large. How about harm to the minorities within the minorities? Let’s take the school district example: Suppose you’re a young woman in a religious community that doesn’t permit women to get a university education without a male relative’s consent. You’ve reached the age of majority, you want to go to university, but you can’t get any male relative to sign off on your doing so. You send out applications anyway, but the school district refuses to forward your transcript or other records.
Sorry – Greene seems to say that leaving the group might be your only option. Unlike the case of emigrating from a state, the high costs of exit from a group may “undercut the case for an obligation to obey the norms of that setting, but may be insufficient to render involuntary a decision to stay put.” (@159.) The key difference for Greene between such a case and true emigration is that the state claims a legitimate monopoly on the use of force, unlike the groups within the state who are seeking judicial exemptions (@id.).
I think several problems pop up here. First, I’m troubled by this substantive result, which seems unjust. I’m especially troubled by it because the result would have been avoidable if the state hadn’t granted the exemption. And it’s not too difficult to imagine cases worse than this one: E.g., suppose the village has a denominationally-run clinic, which is the only medical care available for miles around, and which gets a judicial exemption to be run on religious principles. Suppose that a member of the community has a medical condition that significantly impairs quality of life, though isn’t life-threatening. Because of some infraction or minor act of rebelliousness, he or she is denied access to a ritual bath, and then is denied care at the clinic on grounds of being ritually unclean. And so on. Regardless of whether Greene’s logic works or not, I’m not sure courts should take affirmative steps to enable these outcomes.
Second, I’m not convinced that Greene’s distinction – the state’s claimed monopoly of force – is dispositive. Some religious groups claim a monopoly for the salvation of your eternal soul, your share in the “world to come” , etc. If you’re faced with excommunication, being prevented from receiving a sacrament or entering a shul or mikveh, and/or perhaps denial of access to other community services, to say nothing of being condemned to eternal torment, are you really not being threatened with an exercise of force?
Finally, I think there might be a bigger logical problem bubbling beneath the whole “permeable sovereignty” idea. As the philosophers Roberto Casati and Achille Varzi put it, “holes are parasitic on their hosts” – all holes are holes in something.  That suggests there is something “solid” about the state, which serves as the matrix for other types of sovereignty that occupy the holes. Or at least, the state fills in the areas where the holes aren’t. I had a few questions on this score:
(1) A fundamental question is why is there anything solid at all to perforate? What gives rise to a moral obligation to the state at all? I’m not sure that Greene ever states an affirmative reason for this. Rather, he occasionally argues that even if, say associative obligations might arise between citizens, or consequentialist arguments might create some moral duty to obey a particular law, such events aren’t enough to generate political obligation in the content-free sense. Greene does declare that such (content-dependent) obligations exist (@19-20), and obviously his perforation metaphor assumes they do. But that seems to be as far as he goes.
(2) If, as Greene posits, all sources of sovereignty are on equal par, what gives the state this privileged role? Why is it not more like, say, one tile in a mosaic of many? The state’s claim of monopoly on the use of force (even if we ignore for the moment that it’s merely a claim) can’t be the critical factor here – otherwise, other groups wouldn’t be “on a par” with the state. As Mariano Croce has suggested, this issue of privilege is a persistent problem with pluralist theories. .
(3) Holes and mosaic tiles occupy their regions exclusively, but why should this always be the case with sovereignty? Why can’t sovereignties overlap? Especially between, say, state and religion, state and family, religion and family, etc.?
I might have overlooked the appropriate passages, but I couldn’t find where Greene disposes of these issues. It was also striking that Chapter 2 leaves non-religious grounds for permeability as mere theoretical possibilities. Overall the chapter felt less like philosophy than advocacy, a sort of theoretical backstory for a future amicus brief on behalf of a religious group. Or maybe the exclusive focus on religion was justified by religion’s distinctive place within the Constitution and American society. Which leads to my next topic:
C. Would a comparative view have changed the arguments?
Many liberal democracies have some protections for religious expression. Lots also have constitutional courts (in the sense of a “constitutional supreme tribunal,” even if it’s also an ordinary court, as in the US and Japan ), some degree of respect for judicial precedent, and public officials who must worry about what courts and their countries’ constitutions say. Yet this book’s examples are drawn exclusively from American situations. Even Great Britain is beyond the pale: “We have no king, no ministry of culture dictating proper English, no prime minister acting in Parliament, no centrally organized church, no power in the courts to block the publication of scandalous newspapers. We have, instead, an irreducible Constitution,” Greene boasts during his critique of political obligation (@103).
This restrictive view undercuts the legitimacy of this book’s subtitle, of some of its rhetoric, and possibly even some of its substantive argument, as I’ll discuss in part D below. But it also represents a missed opportunity. To illustrate:
Let’s start with religion. Germany’s Grundgesetz (Basic Law) of 1946 guarantees religious freedom, and prohibits the establishment of a state church.  German judges and constitutional scholars frequently refer to the constitutional principle of “separation of church and state” (Trennung von Kirche und Staat).  But the results of applying this principle are often the opposite of what we would expect in the US. Exemptions, judicial and otherwise, are frequent. For example, in 1980 the Federal Constitutional Court relied on this principle to hold that a state statute regulating certain minimum qualifications of hospital personnel did not apply to denominational hospitals. The court’s understanding of the “separation” principle and the result actually support Greene’s view in at least a philosophical sense. And maybe someday in a legal sense if, heeding Greene’s arguments against interpretive obligation, US judges and Justices will consult foreign judicial opinions for fresh ideas.
How about Greene’s arguments “against obligation to the past”? Obviously this proposition would be much less controversial in a liberal democracy that follows the civil law tradition, as in most Western European countries. Of course, it would be wrong to say that precedent gets ignored in such jurisdictions, but Greene himself agrees that “diachronic fit points” should remain relevant. Again, this tends to support his arguments in a philosophical sense – a pity, then that the book ignores this very basic point.
Other foreign examples might provide stimulating test cases or opportunities to extend Greene’s arguments. Unlike the US Constitution, Japan’s constitution explicitly charges the Japan Supreme Court with exercising strong judicial review . Aside from being extraordinarily reluctant to find statutes unconstitutional, that body has repeatedly exercised weak judicial review when it comes to Japan’s Public Offices Election Law (POEL). The court has found that election after election has been conducted based on an apportionment of voters under the POEL that has violated the constitutional principle of “one person, one vote,” yet it has refused to set any of the defective elections aside. In each case, the court simply asked the (unconstitutionally-elected) Diet to amend the POEL so that the apportionment will be constitutional. But even though the POEL had not been amended after the 2009 election to remedy its unconstitutional condition, the Supreme Court also refused to halt the December 2012 Diet election prospectively, on the grounds that nothing in the law allows a suit for such a remedy. All elections in Japan are governed by the POEL, so all incumbent elected officials benefit from this Catch-22. It might be fruitful – even urgent – to consider how Greene’s arguments against interpretive obligation might be adapted to benefit Japanese citizens directly.
One last example: In 1968, a new paragraph (4) was added to Article 20 of Germany’s Basic Law, providing “All Germans shall have the right to resist any person seeking to abolish this constitutional order, if no other remedy is available.” Might this suggest that German ideas about political obligation differ from American ones?
D. What sort of philosophy is this, actually?
Although some recent Continental writers on political obligation draw heavily on 20th Century American and English sources, they also tend to proceed quite differently from Greene. Whereas authors such as the German scholar Stephan Meyer and the Italian scholar Aldo Schiavello begin from the analyzing the relationship between law and morality , Greene simply assumes these issues away:
If law were necessarily coextensive with morality, we would have no political obligation problem, for one ought to do what one ought to do. This (perhaps too simply stated) strong natural law position is incorrect, however; a legal system may exist without being coextensive with morality. There is a rich and complex literature on this issue. Instead of engaging it, however, I shall assume the truth of a thin and broadly accepted tenet of legal positivism (sometimes called the separability thesis) – morality need not be a condition of morality. [@14]
I’m not suggesting that all authors should emulate Gregory of Tours, who began his history of the Sixth Century Merovingian kings with the creation of the Earth and the Garden of Eden . An author is entitled to get on to the main event. But if this book truly applies to liberal democracies, plural, then arguably Greene skipped a significant part of that event. For example, the separabilty thesis might not be so broadly accepted after all. Gustav Radbruch, a leading 20th Century German legal theorist and an opponent of the Nazi regime, rejected the thesis in his post-war writings, without adopting the strong natural law position.  More recently, Schiavello tells us that his book
will show how law’s autonomy from morality is in appearance only. Moreover, holding this position doesn’t at all imply a rejection of legal positivism. [And] favoring a moral model of legal normativity doesn’t necessarily require adoption of a theory of law based in natural law.
Just to be clear: he’s on Greene’s team. He emphasizes that the purpose of his book is to “refute the justification of political obligation” in legal theory such as H.L.A. Hart’s. 
Of course, it could be that there aren’t any more brilliant arguments against political obligation than Greene’s. And it could be that all defenses of political obligation asserted overseas have already been refuted by Greene’s analysis in this book, too. But I imagine that it would be as tough for him to be certain of either of these outcomes as it is for the typical reader: Greene doesn’t draw on any Continental sources since the 18th Century, nor on any non-US cases at all – not even Canadian ones. The result is that the book’s subtitle, “The Multiple Sources of Authority in a Liberal Democracy,” turns out to be a bit of a bait-and-switch, unless we accept an atypically restrictive reading of the indefinite article. 
I don’t want to be unfair in my criticism on this point. At times in later chapters of this book Greene does make it clear that he’s talking about the US specifically. More important, to the extent he does adopt a confusing or ambiguous geographical stance, he’s in plenty of good company. As William Twining has pointed out, it’s also hard to tell from reading Ronald Dworkin whether his theory talks “about American Federal Law, US law, Anglo-American law, ‘the common law’ generally, or extends to all liberal democracies or even beyond that.” Not just Greene and Dworkin but numerous American legal scholars have fallen prey – or at least, write as if they’ve fallen prey – to the attitude that the American system based on common law with stare decisis and judicial review is the norm of “law” in a larger, more philosophical sense.
Oddly enough, this attitude often coexists with its opposite, that America, and particularly its Constitution, are exceptional. Greene’s scornful catalogue of British institutions illustrates this perfectly. (He might have added Parliamentary supremacy, i.e., the unavailability of judicial review of acts of Parliament, to his list.) His assertion, both in the book and in an earlier article , that “our Constitution should be understood as coextensive with political justice,” (@116), would I think be deemed extraordinary in any other country. In any case, few in other liberal democracies would expect their constitutions to be so perfect or perfectible.
Here in Japan there is a strain of nationalist discourse known as nihonjinron (roughly, “theories about the Japanese”). Works in this genre typically compare Japan to other cultures and reach conclusions based on mystical ideas about ethnic exceptionalism. All too many American books of legal or political philosophy seem to turn this tendency inside out: they dispense with comparison, and talk as if the American style of legalism defines what law is universally. What both countries’ genres have in common is their unwarranted chauvinism.
Like the Hound of the Baskervilles, books in this genre are domestic beasts, made up to look like something else. There’s certainly a legitimate use for a particularized philosophy of American constitutionalism, to which this book is a useful contribution. Would, though, that more of that philosophy’s many practitioners admit to their readers – and to themselves – that this is actually what they’re practicing.
 Greene’s treatment “and rejection” of loyalty, the third part of Hirschmann’s trinity, comes up in connection with his rejection of Ronald Dworkin’s associative obligation as a basis of political obligation (@63-64).
 See especially Chapter 12 in The Authority of Law (2nd ed., Oxford UP 2009)
 An even earlier source is Santi Romano’s L’ordinamento giuridico (1917). See, e.g., Filippo Fontanelli, “Santi Romano and L’ordinamento giuridico: The Relevance of a Forgotten Masterpiece for International, Transnational and Global Legal Relations,” 2 Transnational Legal Theory 67-117 (2011).
 Moreover, what does “abiding by constitutional rules” mean? Would the Satmars have to permit free exercise of religion by their members, while allowing them to remain in the community? Suppose a man wanted to shave his beard, without leaving the community: would that have to be tolerated? If not, why not? Would the Satmars have had to tolerate it if they had not accepted the devolved (trickled-through) sovereign authority?
 Strictly speaking, the Jewish religion doesn’t claim a monopoly over places in the world to come: gentiles who follow the Noahide commandments may also find a place there. But irreligious Jews and Jews who purport to adopt another religion don’t have this option.
 Roberto Casati and Achille C. Varzi, Holes and Other Superficialities, (MIT Press 1994), 16.
 Mariano Croce, “Is There Any Place for Legal Theory Today?,” in U. de Vries and L. Francot, eds., Law’s Environment: Critical Legal Perspectives, (Eleven International 2011), 19-44. Croce describes this as the “Romano problem” (see note 3 above).
 See Frank I. Michelman, “The interplay of constitutional and ordinary jurisdiction,” in T. Ginsburg and R. Dixon, eds., Comparative Constitutional Law (Edward Elgar 2011), 278-297
 GG 140, incorporating Weimarer Reichsverfassung 136, 137, 138, 139 and 141.
 See, e.g., the commentary edited by Helge Sodan, Grundgesetz (2., wesentlich ūberarbetitete Auflage, C.H. Beck 2011), 753.
 BVerfGE 53, 366.
 Article 81 of Japan’s constitution charges the Supreme Court with judging the constitutionality of laws, orders, regulations and other official acts. Article 98 provides that unconstitutional laws or other government acts have no legal force or validity.
 The principle of equal worth of each vote was first established by the Japan Supreme Court in 1976, and is based on Articles 14, 15 and 44 of the constitution. See Shigenori Matsui, The Constitution of Japan: A Contextual Analysis (Hart 2011), 51. For a general discussion of the election apportionment cases see Carl F. Goodman, The Rule of Law in Japan: A Comparative Analysis (3rd revised ed., Wolters Kluwer 2012), 117-119; Matsui (2011), 50-54.
 See, e.g., Stephan Meyer, Juristische Geltung als Verbindlichkeit (Mohr Siebeck 2011); Aldo Schiavello, Perché obbedire al diritto? La risposta convenzionalista ed i suoi limiti (ETS 2010).
 Gregory of Tours, The History of the Franks (trans. L. Thorpe) (Penguin 1974)
 See Gustav Radbruch, “Gesetzliches Unrecht und übergesetzliches Recht,” Schweizerische Juristen-Zeitung 1946, 105-108, cited in Günter Ellscheid, “Recht und Moral,” in A. Kaufmann et al., eds., Einführung in Rechstphilosophie und Rechtstheorie der Gegenwart (8. Auflage, C.F. Müller 2011), 214-250, 228.
 Schiavello (2010), 16, 17 (emphasis added) (translation by AJS). The original passage: “Il convenzionalismo giuridico, che nasce con la practice theory of norms di Hart, è una versione del modello dell’autonomia. In questo libro viene proposta una ricostruzione critica di questo modello di giustificazione della normatività del diritto e si mostra come l’autonomia del diritto dalla morale non può che essere apparente. Sostenere questa posizione, tuttavia, non implica affatto una abiura del positivismo giuridico. L’opzione favorevole al modello della morale non richiede necessariamente l’adozione di una teoria del diritto di matrice giusnaturalista. … Inoltre, è opportuno ricordare che l’obiettivo [di questo] saggio è quello di confutare la giustificazione dell’obbligo politico in chiave convenzionalista ….”
 As in the parental usage, “Yes, you may have A cookie.” See also the book’s jacket blurb, which opens, “Do citizens of a nations such as the United States have a moral duty to obey the law?” (emphasis added), and the book’s noncommittal opening sentence, “Do you have a moral duty to obey the law?” (@1).
 William Twining, General Jurisprudence (Cambridge U Press 2009), 20 n. 81.
 Abner Greene, “Can We Be Legal Positivists without Being Constitutional Positivists?,” 69 Fordham L. Rev. 2089 (2005).
Andrew J. Sutter is Specially Appointed Professor in the College of Law and Politics, Rikkyo University, Tokyo, Japan, and also practices as a gaikokuhou jimu bengoshi/registered foreign lawyer (California, USA). His most recent book is Keizai seichou shinwa no owari [The End of the Myth of Economic Growth] (Kodansha Gendai Shinsho 2012).