3 - The Indefensibility of Practical Authority

Summary

We come now to the third presupposition of the dilemma of legal perspectivalism that I sketched in Chapter 1 – the presupposition that the law lacks the authority to provide citizens with an overriding reason for obedience. If the law qua law provides reasons for unconditional obedience, then, even though it does not perfectly mirror morality, it nevertheless precludes justified disobedience by citizens. We can have no cause for concern over the punishment of disobedient citizens, because the law permits no instances in which a judge might be morally justified in refusing to punish disobedience.

In this chapter, I shall take up the dominant theory of legal authority – the theory of practical authority – which holds that the law indeed trumps morality in instances of conflict. In Chapter 4,1 shall take up the favored alternative to this theory – the theory of influential authority – which denies that law demands blind obedience, but holds that, in most instances, the law provides sufficiently powerful reasons to abide by legal norms that moral conflicts do not arise. As I shall argue, neither of these theories can sustain the claim that the law gives persons reasons to do what morality would otherwise prohibit, and, hence, neither of these theories persuasively precludes the kinds of conflicts between law and morals that fuel the dilemma of legal perspectivalism.

We begin, in this chapter, with the common presumption that the law has the power to command behavior, as opposed to merely advise or request it. Political theorists have dubbed this claim the theory of “practical authority.”