Academic

Hershovitz on Law & Authority

By Lawrence Solum

Scott Hershovitz (University of Michigan Law School) has posted The Authority of Law (ROUTLEDGE COMPANION TO PHILOSOPHY OF LAW, Andrei Marmor, ed., 2011) on SSRN. Here is the abstract:

This essay considers what we can learn about law from the fact that legal officials commonly claim authority. The first section addresses the paradox of the just law, which aims to establish that there is no general obligation to obey the law even in a reasonably just state on the ground that a just law could not have a claim on our obedience. I argue that the paradox rests on the widely shared but mistaken view that one only obeys an authority if one does as it requires for the reason that it was required. I suggest instead that an authority?s claim on obedience is limited to a claim to have its subjects do as directed.

The second section considers the nature of an authority?s right to rule. I reject the commonly held view that authority consists in a normative power to obligate subjects because one can have such a power without having a claim on obedience. I argue that the result of an exercise of authority is an obligation owed to the authority, which confers on the authority the standing to hold the subject accountable if the obligation is not discharged. This raises the possibility that authority can be justified on the ground that is valuable for one person to be able to create a relationship of accountability with another by issuing an order. Indeed, I suggest that the core of the criminal law reflects a legitimate exercise of authority because it is valuable for the state to be able to create relationships of accountability with respect to serious moral transgressions, such as murder.

The final section of the paper explores Joseph Raz?s argument for exclusive legal positivism. Raz argues that it must be possible to identify the existence and content of the law without recourse to the moral considerations it is meant to settle. Otherwise, he says, the law could not help subjects conform to reason, which is the role an authority is supposed to play. I argue that Raz?s argument fails because he has overlooked the possibility that the point of authority may be to create relationships of accountability rather than help subjects conform to reason.

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Full post as published by Legal Theory Blog on March 09, 2011 (boomark / email).