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Law and Authority

Published online by Cambridge University Press:  09 June 2015

Roger A. Shiner
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The nature of authority has been much debated in legal and political philosophy, and the terminology is not stable. I shall begin by stipulating how I understand some of the key terms used in this paper1. I consider authority here as a property of laws and of legal systems. Authority must be distinguished primarily from power, efficacy, and validity. Authority is not the same as power. A person or institution may have the power to affect the way that people behave, but lack authority because he, she, or it is purely coercive. Authority is not the same thing as efficacy; efficacy simply means that there is conformity to the rules of the system, whether willing conformity or not. But it is possible for there to be conformity to the laws of a successful repressive system, and such a system would not have authority. Authority is not the same as validity. To be valid is to be pedigreed by the rule of recognition of the legal system. A legal rule may have that property, and yet lack authority because it is not a rule which there is any obligation to obey. If the law has authority, then the demands that the law makes of us are such that we ought to conform to them. Theorists sometimes distinguish between “legitimate authority” and “de facto authority”. It follows from the above that in my terminology “authority” means legitimate authority as that term has been typically understood, as authority which issues directives we have an obligation to obey. “Legitimate authority” is pleonastic.

Type
Research Article
Information
Canadian Journal of Law & Jurisprudence , Volume 2 , Issue 1 , January 1989 , pp. 3 - 18
Copyright
Copyright © Canadian Journal of Law and Jurisprudence 1989

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References

1. I have profited most from reading Richard Flatham, The Practice of Political Authority (Chicago: University of Chicago Press, 1980);.Google Scholar Raz, Joseph The Authority of Law (Oxford: Clarendon Press, 1979).Google Scholar(henceforth AL); Raz, Joseph The Morality of Freedom (Oxford: Clarendon Press, 1986) (henceforth MF).Google Scholar (henceforth AL); Raz’ account in the latter draws on three earlier papers, and reference will occasionally be made to these - “Authority and Consent” (1981), 67 Va. L. Rev. 103; “Authority, Law and Morality” (1985), 68 The Monist 295; “Authority and Justification” (1985-86), 14 Philosophy and Public Affairs 3.

2. The unsubtle account may also be thought unsatisfactorily as an account of many other aspects of law; I express no opinion on that here.

3. Cf. hereHart, H.L.A. The Concept of Law (Oxford: Clarendon Press, 1961) (henceforth CL), chap. 4.Google Scholar

4. This is a primary thrust of Raz’ writings about authority - see AL chapters 1-2, MF chapters 2-3. The notion of “exclusionary reason” is first introduced in Raz’ Practical Reason and Norms (London: Hutchinson, 1975), chapter 1.Google Scholar

5. Criticism much along these lines is urged by Michael, Payne “Hart’s Concept of a Legal System” (1976), 18 Wm. & Mary L. Rev 297; andGoogle Scholar Hodson, John “Hart on the Internal Aspect of Rules” (1976), Archiv filr Rechts-und Sozialphilosophie 381; andGoogle Scholar

6. Cf.MF 41-2, 56-9.

7. Isaiah, Berlin Four Essays on Liberty (Oxford: Oxford University Press, 1969) 145Google Scholar–54, not to mention Mozart.

8. Cf.MF chapters 11-15.

9. This formulation is taken from “Authority, Law ....”, 296; see also AL. 47 et seq.

10. “Authority, Law … ”, 310. I am not either asserting or denying that this is a valid criticism of Dworkin; I am merely quoting the criticism in order to clarify Raz’ view.

11. x201C;The normal way to establish that a person has authority over another person involves showing that the alleged subject is likely better to comply with reasons that apply to him (other than their alleged authoritative directives) if he accepts the directives of the alleged authority as authoritatively binding and tries to follow them, rather than by trying to follow the reasons which apply to him directly” (Raz, MF 53).

12. I have argued at greater length for the conception of the internal point of view deployed here in “Hermeneutics and the Internal Point of View to Law,” Faralli, Carla Pattaro, Enrico eds., Reason in Law Vol. II (Milano: A Giuffre, 1988) 211Google Scholar–23

13. Wittgenstein, L. Philosophical Investigation (Oxford: Basil Blackwell, 1953) Google Scholar Il.iv. Peter Winch (“Eine Einstellung zur Seele” (1980-81), 81 Proceedings of the Aristotelian Society 1) I take to have established that the usual translation of “Einstellung” as “attitude” has all the wrong philosophical connotations. “Basic stance” is my own translation.

14. “By design” here does not refer to a causal and contingent relationship between a person and an artefact. A broad background of human intentionality is presupposed, in that we know the normal case to be that artefacts have the properties they have because of such causal relationships. But to speak of the design of an artefact is to speak of a structural property of it which it has intrinsically, and which we perceive it to have because of our knowledge of instrumentality. The design is internally related to the function the artefact performs. I take myself here to be using the notion of “design” in Sparshott’, Francis The Theory of the Arts (Princeton, NJ: Princeton University Press, 1982) 154–6, though I do not know whether he would approve of its application here.Google Scholar

15. See, for example, AL 169-76, and also AL 47-52, which discusses the functions of authorities, and MF 58-9 on the function of authoritative rules.

16. Cf. Taking Rights Seriously, 2nd edn. (Cambridge, MA: Harvard University Press, 1978) 103Google Scholar–30.

17. Cf. Aristotle De Anima412M0-25; Aristotle’s examples are axes and eyes, rather than electric toasters.

18. Ross, W.D. The Right and the Good (Oxford: Clarendon Press, 1930) 20.Google Scholar

19. I assume it to be obvious that the Normal Justification thesis may be as cheerfully embraced by Natural Law Theory as by sophisticated positivism; the thesis seems sheer common-sense, and to be neutral as between the parties to the current debate.

20. The image is borrowed fromKovesi, Julius see his Moral Notions (London: Routledge and Kegan Paul, 1967), 25.Google ScholarIn general, Kovesi’s meta-ethical machinery of formal elements, material elements and “recognition” would readily drive the analysis of the concept of law sketched here. The roots of both theories are Aristotelian.

21. Earlier versions of this paper have been read to the Canadian Philosophical Association, the American Philosophical Association – Pacific Division, McMaster University, and the Universities of Gdansk, Glasgow, and Waterloo. I am grateful for discussion and criticism to Nathan Brett, Richard Bronaugh, Richard Flathman, Leslie Green, Michael McDonald, Joseph Raj and Wil Waluchow. Much of the early research on the paper was supported by the Social Sciences and Humanities Research Council of Canada, and I am grateful to them too.