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Functional and Existential Authorities

Published online by Cambridge University Press:  01 July 2015

Hugo Cyr
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Abstract

This article explores how political authority is conceived and how we attempt to make sense of its legitimacy in a world that we imagine made of relatively equal and autonomous individuals who are members of multiple collective agencies. One such way is the Razian “Service Conception” of authority. This conception suffers from a variety of internal weaknesses and shortcomings. More importantly, while the Service Conception may be promoted as a normatively appealing theory of authority, it does not appear to fit the description of the central case of practical authority or, at least, it does not exhaust the list of central cases. Indeed, political authorities are often justified by self-assertive reasons that bind the subject to the authority claimant. Such cases are what we call “existential authorities”, as opposed to "functional authorities" associated with the Service Conception. The interplay between those types of authorities and their respective background assumptions forces us to take seriously the perceptions that subjects have of the nature of authority claimants as such perceptions will determine the attitudes of the subjects towards the directives issued by the authority claimants. We must therefore be able to distinguish between institutions meant to embody collective identities – “existential communities” – from institutions perceived as mere “functional regimes”. Indeed, the nature of the standards used to evaluate the actions and powers of each will differ accordingly.

Keywords

Razservice conceptionexistential communitiesfunctional authorityauthority
Type
Research Article
Information
Canadian Journal of Law & Jurisprudence , Volume 28 , Issue 2 , July 2015 , pp. 265 - 288
Copyright
Copyright © Canadian Journal of Law and Jurisprudence 2015 

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References

1. Weber, Max, Economy and Society, vol. 2, ed by Roth, G & Wittich, C, (Berkeley: University of California Press, 1978) at 53.Google Scholar

2. Ibid at 946.

3. Ibid at 31.

4. Ibid at 954.

5. Ibid at 215-17.

6. Kronman, Anthony, Max Weber (Stanford: Stanford University Press, 1983) at 55.Google Scholar

7. Weber, supra note 1 at 217-18 [emphasis added].

8. Ibid at 24-25. Weber gives the following examples (p. 25) of pure value-rational orientation:

… the actions of persons who, regardless of possible cost to themselves, act to put into practice their convictions of what seems to them to be required by duty, honor, the pursuit of beauty, a religious call, personal loyalty, or the importance of some ‘cause’ no matter in what it consists …. [V]alue-rational action always involves ‘commands’ or ‘demands’ which, in the actor’s opinion, are binding on him.

9. Ibid at 26.

10. Weber, supra note 1 at 26.

11. Raz, Joseph, The Authority of Law: Essays on Law and Morality (Oxford: Clarendon Press, 1979) at 3–27CrossRefGoogle Scholar; Raz, Joseph, The Morality of Freedom (Oxford: Clarendon Press, 1986), 23–109Google Scholar[Raz, Morality of Freedom]; Raz, Joseph“Authority and Justification”Raz, Joseph, Authority (New York: New York University Press, 1990) 115Google Scholar[Raz, “Justification”]; Joseph Raz, “The Problem of Authority: Revisiting the Service Conception” (2006) 90 Minn L Rev 1003.

12. Raz, “Justification”, ibid at 137-38.

13. Raz, “Justification”, supra note 11 at 119-20.

14. Ibid at 120.

15. Ibid at 129 [italicized in the original].

16. Raz, “Justification”, supra note 11 at 125: “All authoritative directives should be based, in the main, on reasons which already independently apply to the subjects of the directives and are relevant to their action in the circumstances covered by the directive.” [Italicized in the original].

17. Ibid at 124: “The fact that an authority requires performance of an action is a reason for its performance which is not added to all other relevant reasons when assessing what to do, but should replace some of them.” [Italicized in the original].

18. See, for example, Roncarelli v Duplessis, [1959] SCR 121.

19. Raz, “Justification”, supra note 11 at 126.

20. Ibid at 128.

21. Aristotle makes a similar distinction between directives that are justified by content-dependent reasons (“natural”) and those that are content-independent reasons (“conventional”):

Political Justice is of two kinds, one natural, the other conventional. A rule of justice is natural that has the same validity everywhere, and does not depend on our accepting it or not. A rule is conventional that in the first instance may be settled in one way or the other indifferently, though having once been settled it is not indifferent: for example, that the ransom for a prisoner shall be a mina, that a sacrifice shall consist of a goat and not of two sheep; and any regulations enacted for particular cases, for instance the sacrifice in honor of Brasidas, and ordinances in the nature of special decrees. Some people think that all rules of justice are merely conventional, because whereas a law of nature is immutable and has the same validity everywhere, as fire burns both here and in Persia, rules of justice are seen to vary. That rules of justice vary is not absolutely true, but only with qualifications. Among the gods indeed it is perhaps not true at all; but in our world although there is such a thing as Natural Justice, all rules of justice are variable. But nevertheless there is such a thing as Natural Justice as well as justice not ordained by nature; and it is easy to see which rules of justice, though not absolute, are natural, and which are not natural but legal and conventional, both sorts alike being variable. The same distinction will hold good in all other matters; for instance, the right hand is naturally stronger than the left, yet it is possible for any man to make himself ambidextrous.

The rules of justice based on convention and expediency are like standard measures. Corn and wine measures are not equal in all places, but are larger in wholesale and smaller in retail markets. Similarly the rules of justice ordained not by nature but by man are not the same in all places, since forms of government are not the same, though in all places there is only one form of government that is natural, namely, the best form.

Aristotle, Nicomachean Ethics, translated by H Rackham (London: W Heinemann, 1934) at 1134b8-1135a6.

For a similar and more developed reading of Aristotle on this point, see Bernard Yack, “Natural Right and Aristotle’s Understanding of Justice” (1990) 18 Political Theory 216 at 219-20.

22. There might not be sufficient reasons to accept one authority claimant rather than another. In that case, the decision would ultimately transcend reason and may not be said to violate exclusionary rules since no reason would be invoked to justify the ultimate choice.

23. To the extent that the service which a practical authority claims to be offering is simply a change in the circumstances of deliberation and action through the issuance of content-independent directives, the subject will not have to deliberate on the content of those directives. However, the subject will have to deliberate on the need to modify the circumstances of deliberation and action. Such a need will have to be justified according to dependent reasons. Also, the subject who will want to verify whether or not such an authority is legitimate will have to determine if, in fact, the directives in questions are truly content-independent and if the modification to the circumstances of action and deliberation do in fact increase one’s chances of acting properly.

24. Raz, “Justification”, supra note 11 at 133.

25. This resembles the facts in Kawakita v United States, 343 US 717 (1952).

26. Emran Mian, “The Curious Case of Exclusionary Reasons” (2002) 15 CJLJ 99 at 114 discusses the more limited problem of knowledge imbalance between the subject and the authority claimant that makes it impossible for the subject to know whether the normal justification condition is met.

27. The author would like to thank the anonymous reviewer for suggesting this formulation.

28. Raz, “Justification”, supra note 11 at 127 [emphasis added].

29. Thomas Aquinas, Summa Theologica, II-II, Qu 64, Art7.

30. Raz, “Justification”, supra note 11 at 130.

31. Raz recognizes that consent may be given “in many contexts” non-instrumental validation through the idea that “[w]e are all to a considerable degree the authors of our moral world” (Raz, Morality of Freedom, supra note 11 at 86). The “value of some human relationships” and the “value of forming and pursuing projects that give shape and content to one’s life” are taken by Raz as “generally valid considerations [that] justify the specific ways through which people can impose moral demands upon themselves” (ibid at 87). Thus Raz writes that

[t]here are various attitudes toward society that consent to the authority of its laws can express. They can all be regarded as so many variations on a basic attitude of identification with the society, an attitude of belonging and of sharing in its collective life. Ibid at 91.

But while recognizing this, Raz ascribes a somewhat instrumental role to those so-called “non-instrumental” moral considerations that may validate consent. Indeed, once again, for Raz, relationships and personal projects may not be considered in themselves as being valuable. Because Raz is committed to a normative project rather than simply a descriptive one, he needs to distinguish between relationships and personal projects that are valuable from those that aren’t. He draws his distinction on the basis of the value of what such relationships and personal projects realize, achieve or pursue (ibid at 90-91). In other words, relationships and personal projects are presented by Raz as valuable only if they are means to achieve something of value. This is then reflected in the conditions he sets for consent and identification with one’s society to be justified:

Hence, to the extent that consent is justified non-instrumentally as a constitutive element in a relationship between a citizen and his society, it is valid only if it exists between a citizen and a reasonably just society. Ibid at 90-91.

After reviewing a series of considerations related to the role of consent in the justification of authority, Raz argues that:

[Authority] is binding only if the conditions of the normal justification thesis are substantially met independently of consent. But the non-instrumental argument shows that consent does extend the bounds of authority beyond what can be established without it. It is worth pointing out that it does so in accordance to with the normal justification thesis. Where identification is a morally valuable attitude which can be expressed by binding oneself to the authority, one has a reason to do so which is served by consent to authority. The whole point of the consent would be violated if, having given it, one proceeded to deny the binding force of the authority’s directives. Therefore, it is necessary, once the consent has been given, to accord the authority’s directives pre-emptive force in order to be able to express one’s identification with one’s society by consenting to the authority of its law. Ibid at 93 [emphasis added].

So authorities remain justified, for Raz, only to the extent that they are instruments that enhance one’s abilities to act for the right reasons that exist independently from the existence of the authority itself.

32. While the Prime Minister, in parliamentary systems, tends to have the last word on any decision taken by the Cabinet, in practice, he or she usually tries to get a consensus, or at least an important majority, when taking major decisions.

33. See, among others, List, Christian & Pettit, Philip, Group Agency: The Possibility, Design, and Status of Corporate Agents (Oxford: Oxford University Press, 2011).CrossRefGoogle Scholar

34. Raz recognizes that it may be possible that an authority could be legitimate only to the extent that its directives are not clearly wrong. He distinguishes between a “great mistake”, which would not affect the legitimacy of an authority and a “clear” one. The difference would not lie in the importance of the mistake but on the ease of detecting it. See Raz, “Justification”, supra note 11 at 136.

35. The recognition of such a tension lies behind the classic conundrum facing a Catholic who happens to be the judge in a case where the law requires that a death sentence be imposed on a convicted individual. While the public may question the commitment of officials to their legal duty on the basis that they may be placed in a situation where they may face conflicting duties, there are no prima facie reasons why one should presume that such conflict would necessarily be settled in favour of the officials’ religious commitments. This is why, for example, the Americans ended up electing John F. Kennedy, a Catholic, as their President; taking an oath to upheld the Constitution of the United States of America was considered a signal that the norms contained in the latter would prevail over the dicta of the Pope in guiding the President’s actions.

36. It is to be noted that the use of the expression “We” here may suggest self-identification as a member of the relevant group. However, self-identification may not be necessary for membership. A group (or even outsiders) may consider an individual to be a member of that group even if he or she refuses to be thus qualified. This obviously raises issues about the legitimacy of imposed identities and about the possibilities of exit.

37. See Hart, HLA, “Are There Any Natural Rights?” (1955) 64 Philosophical Review 175 at 185–91Google Scholar; Rawls, J, A Theory of Justice (Cambridge: Harvard University Press, 1971) at111–14Google Scholar; and Shapiro, Scott J, “Authority” in Jules Coleman & Scott Shapiro, eds, The Oxford Handbook of Jurisprudence & Philosophy of Law (Oxford: Oxford University Press, 2002) 382Google Scholar[Shapiro, “Authority”].

38. Shapiro, supra note 57 at 437.

39. Shapiro acknowledges as much:

I am not arguing that citizens in a democratic republic, even under conditions of meaningful freedom, ought to defer to the will of the majority in every instance. Indeed, the fact that autonomy and fairness play such significant roles in grounding the obligation to obey democratic procedures suggests that the scope of the obligation is itself limited by those very concerns. Whenever democracies insert themselves too deeply into our personal affairs, disenfranchise segments of the citizenry, or discriminate against the politically powerless, the obligation the offending rules ends. Ibid at 438.

40. Nozick, Robert, Anarchy, State, and Utopia (New York: Basic Books, 1974) at 94–95.Google Scholar

41. Kahn, Paul Willustrates this type of experience when he writes in Political Theology (New York: Columbia University Press, 2012) at 142Google Scholar:

To see through the constitution to the popular sovereign whose act it records is what makes it literally our constitution, despite the fact that we, as finite individuals, neither wrote it nor approved it. This is not a matter of “implicit consent” but of a social imaginary that grounds faith. The constitution claims us not because it is just—although we want it to be just—but because it is a remnant of a politics of authenticity that we still imagine as our own.

42. On those notions and their application in the concrete analysis of a particular Federation, see Cyr, Hugo, Canadian Federalism and Treaty Powers: Organic Constitutionalism at Work (Brussels: Peter Lang PIE, 2009)Google Scholarand Cyr, H, “Quelques opportunités et défis conceptuels, fonctionnels et politiques du fédéralisme” (2012) 21 Forum constitutionnel 7.Google Scholar

43. I do not intend to refer here to romantic love but rather something more transcending than philia but not necessarily universal as agape.

44. See Kantorowicz, Ernst, The King’s Two Bodies: A Study in Mediaeval Political Theology (Princeton: Princeton University Press, 1957).Google Scholar

45. Tönnies, Ferdinand, Community and Society, translated by Charles Loomis (Mineola: Dover Publications, 2002).Google Scholar

46. For a very instructive exploration of the logic of love, as opposed to that of legality, see Kahn, PW, Law and Love: The Trials of King Lear (New Haven: Yale University Press, 2000).Google Scholar

47. There is a large literature that we will not review here on the tensions between the democratic demands that governmental institutions reflect accurately the demos while, at the same time, recognizing the crucial importance of expertise. Requesting that all parts of the government ought to be evaluated according the democratic principle may amount to committing the fallacy of composition. The problem is for us to distinguish between governmental institutions and functions that we should evaluate using our democratic ideals as our standard, as opposed to those that we should judge using a yardstick consonant with instrumental rationality.