6 - A Defense of Theoretical Authority

Summary

The preceding chapters revealed a set of errors that, if made, defeat either the conceptual integrity or normative defensibility of a theory of legal authority. The challenge, then, is to advance a theory of the law's authority that is modest enough to claim only epistemic force and bold enough to depart from the standard conviction that, whatever the nature of legal authority, it fundamentally resides in lawmakers rather than law.

In this chapter, I shall defend a view that locates the authority of law in legal texts, not legal authors, and that conceives of that authority as purely theoretical. Such a theory must answer to two masters. First, it must demonstrate that it indeed escapes the problems that motivate its defense. That is, it must avoid the difficulties that plagued theories of practical and influential authority by explaining the bindingness of law without invoking claims about the ability of law to generate unique obligations through new or exclusionary reasons for action. And it must surmount the obstacles that confronted the theory of advisory authority by eschewing attributions of moral expertise to lawmakers and by manifesting independence from any commitment to intentionalist interpretation. Second, such a theory will have to account for the ability of law to perform essential legal functions, such as solving coordination problems, defusing prisoner's dilemmas, administering sanctions, and so forth, when many of these functions initially appear possible only if the law possesses something more than epistemic authority.

THE NATURE OF THEORETICAL AUTHORITY

Like advisory authority, theoretical authority is a breed of epistemic authority.