The Nature of Governmental Authority

N. Ir. Legal Q., 2004

University of Toronto Law Journal

2007

While the nature of legal systems is a perpetually contested question, it is fairly uncontroversial that each must contain certain essential characteristics. First, each must suppose some picture of the appropriate way for human beings subject to it to live together in society. Second, to secure that proper arrangement, each must employ, to a greater or lesser degree, the device of general rules of conduct. Finally, in all but the simplest systems, the effectiveness of those rules must be guaranteed by some process of adjudication. The relationships among these three factors - social values, legal rules and judging - comprise much of our study of jurisprudence. In this essay, I want to reprise that theme, paying particular attention to the mutual tensions these elements create in the practical operation of a legal system. I want, that is, to review the difficulties inherent in the use of abstract rules to vindicate social policies in concrete cases.

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.

Ronald Dworkin argues that the content of the law is limited to the set of judicially enforceable rights. For him, legality, the value that law distinctively serves when it goes well, is primarily a virtue of judicial decision-making. The purpose of this article is to criticize Dworkin’s court-centrism on the ground that it delivers an impoverished conception of legality. Legality has a systemic as well as an adjudicative dimension. In its systemic dimension it requires that government as a whole is structured in a way that guarantees the proper exercise of public power. Accordingly, for a legal system to exhibit the value of legality, it is not sufficient that its judges direct the use of state coercion under certain conditions. Additionally the exercise of public power must accord with a scheme of separation of powers that is geared towards justice. Not all the requirements of legality thus understood are judicially enforceable. This expansive conception of legality is underpinned by a theory of political legitimacy that differs from Dworkin’s. Legitimacy is not merely a retail thing. A political community is also legitimate when it has standing guarantees for the proper exercise of power. Separation of powers is crucial among them. http://biblio.juridicas.unam.mx/Revista/FilosofiaDerecho/

SSRN Electronic Journal, 2013

Authority is not of one kind, and authoritative directives may have different effects on the practical reasoning of their addressees. In this regard, we can distinguish between two types of authority-epistemic and decisionist. Although both are used to influence people's actions, they diverge in the way in which they are respected and treated by those who follow them. This plurality of forms of authority is closely related to some of the questions that have been bothering legal philosophers for centuries, and particularly to questions concerning the relation between reason and fiat in law. Based on the distinction between epistemic and decisionist modes of reasoning with authoritative directives, we can distinguish two discrete logics governing the dynamics of positive law: an epistemic logic which makes law aspire to correctness and reasonableness, and a decisionist logic which leads to the identification of law with its positive particularity. In the final part of this article, I consider the practical and conceptual implications of this duality.

This is an extended review (ca. 4,500 words) of Joseph Raz's "Between Authority and Interpretation." Joseph Raz’s new book, Between Authority and Interpretation, collects his most important papers in the philosophy of law and the theory of practical rationality from the mid-1990s to the mid-2000s. In these papers, Raz not only advances earlier theses but also breaks new ground in a number of areas. I focus on three of Raz’s topics here: theories of law, separability and necessity, and the normativity of law. While I am generally sympathetic to Raz’s thinking on these topics, I raise some room for doubt – especially with regard to his pessimism about fijinding a uniquely best theory of law and the relationship between law and morality.

In contemporary legislation theory, legislation is approached from roughly two different models: law as symbol vs. law as instrument. Each model offers its own specific perspective from which in concrete cases legislation can be described and evaluated. In the Law As Symbol (LAS) model legislation is seen as an ongoing communicative and interactive process in which various actors in society – the legislator, officials and citizens – work together on an equal level to create and implement legislation. In the law As Instrument (LAI) model legislation is conceived, on the other hand, as a command that is issued by the legislature, from a position above or outside society, in order to achieve a specific policy goal. In this chapter I explore, building on these two models, how we can account for the bindingness of law. How to explain or justify the general expectation that legal norms are, or have to be, respected? As I argue, these models are not mutually exclusive but are co-dependent on each other. For law to function as a command (according to the LAI model), the legislature has to succeed in communicating its message to society. Conversely, to become a convincing symbol (within the LAS model), the law cannot remain a matter of discussion forever; the process of communication and interaction has to stop at some point and the law has to be applied unilaterally and enforced in case of non-compliance. Moreover, I intend to demonstrate that both models have difficulties in explaining law's authority. How can a command or communication in itself generate legal duties? What is missing in both models, in my view, is a reflexion on the role ideology plays within the law. Before one can give commands to citizens (in the LAI model) or enter into meaningful conversations with them (in the LAS model), the existing order has to be accepted as a legitimate legal order. In other words, law has to presuppose its own authority but cannot produce it – only ideology can.

Conceptions and Misconceptions of Legislation, 2019

In contemporary legislation theory, legislation is approached from roughly two different models: law as symbol vs. law as instrument. Each model offers its own specific perspective from which in concrete cases legislation can be described and evaluated. In the Law As Symbol (LAS) model legislation is seen as an ongoing communicative and interactive process in which various actors in society-the legislator, officials and citizens-work together on an equal level to create and implement legislation. In the law As Instrument (LAI) model legislation is conceived, on the other hand, as a command that is issued by the legislature, from a position above or outside society, in order to achieve a specific policy goal. In this chapter I explore, building on these two models, how we can account for the bindingness of law. How to explain or justify the general expectation that legal norms are, or have to be, respected? As I argue, these models are not mutually exclusive but are co-dependent on each other. For law to function as a command (according to the LAI model), the legislature has to succeed in communicating its message to society. Conversely, to become a convincing symbol (within the LAS model), the law cannot remain a matter of discussion forever; the process of communication and interaction has to stop at some point and the law has to be applied unilaterally and enforced in case of non-compliance. Moreover, I intend to demonstrate that both models have difficulties in explaining law's authority. How can a command or communication in itself generate legal duties? What is missing in both models, in my view, is a reflexion on the role ideology plays within the law. Before one can give commands to citizens (in the LAI model) or enter into meaningful conversations with them (in the LAS model), the existing order has to be accepted as a legitimate legal order. In other words, law has to presuppose its own authority but cannot produce it-only ideology can.