4 - The Failure of Influential Authority

Summary

If the traditional concept of legal authority is indefensible, then we are compelled to conclude that the source of legal obligations must lie elsewhere. Those who have sought to construct an alternative theory of legal obligation that captures commonplace convictions about the binding power of law have turned to what I call the notion of ‘influential authority’ According to a theory of influential authority, the law does not possess the power to compel blind obedience – that is, it does not provide exclusionary reasons for action. But it does provide new (content-independent) reasons for action – reasons that are typically sufficiently weighty to require one to act “as if” the law possessed practical authority.

If, by virtue of possessing influential authority, the law gives persons reasons for obedience in all but the most exceptional circumstances, then the dilemma of legal perspectivalism may rightly fail to inspire serious concern. While citizens in exceptional circumstances may find themselves morally justified in breaking the law, and judges in such cases may find themselves torn between the demands of the correspondence thesis and the systemic values that make sense of their role as judges, one could hardly characterize this as a cause for jurisprudential crisis.

In this chapter, I shall explore the claim that law possesses influential authority of a sort that precludes disobedience in virtually all instances. In Chapters 5 and 6, I shall distinguish two theories that construe the authority of law as epistemic rather than moral.