On Law's Claim to Authority

Oxford Journal of Legal Studies, 2011

The idea that law claims authority (LCA) has recently been forcefully criticized by a number of authors. These authors present a new and intriguing objection, arguing that law cannot be said to claim authority if such a claim is not justified. That is, these authors argue that the view that law does not have authority viciously conflicts with the view that law claims authority. I will call this the normative critique of LCA. In this article, I assess the normative critique of LCA, focusing predominantly on the arguments presented by its most incisive proponent Philip Soper. I defend a twofold conclusion. First, LCA, understood roughly along the lines put forward by Joseph Raz, is part of the most attractive analysis of law. Second, proponents of the normative critique, and in particular Soper, are committed to accepting LCA.

Revista da Faculdade de Direito da UFMG, 2017

This essay investigates the role of the argument from authority in Law. It begins with the way (both formal and informal) Logic approaches it, trying to identify its "correct use", as well as its legitimacy in everyday and scientific discourses, by separating logical questions from material questions. Then it investigates the use of the argument from authority in Law, distinguishing its two different forms: arguments based on authoritative material (statutes and precedents) as arguments from authority (authoritative or normative arguments) and arguments from authority provided by legal scholars (scientific or intellectual legal arguments from authority). As a conclusion, the essay provides an identification of the core element of both kinds of arguments from authority in Law, which is the figure of the presumption.

SSRN Electronic Journal, 2016

A law prohibiting a particular behavior does not directly change the payoff to an individual should he engage in the prohibited behavior. Rather, any change in the individual's payoff, should he engage in the prohibited behavior, is a consequence of changes in other peoples' behavior. If laws do not directly change payoffs, they are "cheap talk," and can only affect behavior because people have coordinated beliefs about the effects of the law. Beginning from this point of view, we provide definitions of authority in a variety of problems, and investigate how and when individuals can have, gain, and lose authority.

University of Toronto Law Journal

Can people be autonomous, if they are subject to authority? In particular, can they be autonomous if they are subject to the authority of law? I discuss the work of Joseph Raz on these questions, and argue that it offers a sound reconciliation of authority and autonomy, in which autonomous judgment is needed to determine the jurisdiction of an authority, and to determine the exclusionary scope of its directives. As for the particular question of the authority of law, Raz has said that law claims unlimited authority. I argue that although law may not acknowledge limits to its authority, it need not claim unlimited authority either. It claims an unspecified jurisdiction, and its directives may have unspecified exclusionary scope. People can be autonomous if they are subject to the authority of law: laws often violate autonomy, but there is nothing in the nature of law that violates autonomy. But its artificial, systematic nature creates a standing risk that the law of a particular system will do so.

2018

Philosophical Foundations of the Nature of Law, 2013