Abstract
Authority is defined by the capacity to provide new reasons that apply to its subjects. There are two types of authority that differ from each other with respect to the kind of reasons their directives or opinions create. Epistemic authority is distinguished from practical authority in that the former is the source of reasons to believe and the latter is the source of reasons for action. Both kinds of authority are of considerable philosophical importance. This entry, however, is concerned with the notion of practical authority and will focus on certain conceptual and normative issues arising in connection with such authority. In particular, this entry will be concerned with (1) identifying the properties that constitute something as a practical authority and hence distinguish authorities from non-authorities; (2) explicating the kind of reasons that bind subjects of a practical authority and give rise to a justified expectation, on the part of the authority, of subject compliance; and (3) examining what standards a practical authority must satisfy to be morally legitimate. The reason for the emphasis is the central importance of practical authority in law. Law characteristically regulates subject behavior by issuing legal norms thought to be authoritative in the sense that they create new reasons for compliance that bind the subject. While the notion of epistemic authority figures into many issues arising in connection with law, this entry is intended to clarify the notion of practical authority that is thought to ground the binding quality of legal directives. Although there will be some discussion of epistemic authority and its relation to practical authority , the relevant form of authority for our purposes is practical authority—again, as this is central to understanding the mechanisms by which law regulates subject behavior.
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Notes
- 1.
- 2.
The notion of a content-independent reason will be explained in more detail below at pp. 9–10.
- 3.
Although epistemologists have sometimes talked of the existence of epistemic obligations, it is not clear, given the seemingly involuntary character of belief formation, how a person could be bound to accept an epistemic authority’s opinion on a matter within the authority’s expertise; after all, we do not seem to choose what to believe. Further, while it is true that my consulting a physician, for example, acknowledges the physician’s superior expertise on the matter, it is hard to see how that acknowledgment alone could bind me to accept her opinions—although her greater expertise surely gives me a reason to believe something.
- 4.
So much so that one might reasonably question whether the concept of “authority” applies in the epistemic context—if, as seems reasonable to think, the concept applies only to matters over which the subject of authority has direct volitional control. Of course, we are reason-responsive when it comes to belief, but that response is not determined by a free choice; that response is determined by a committed trust to the person’s epistemic authority and is sometimes conditioned by our own sense of what is intuitively plausible, which is also not a matter of direct free choice.
- 5.
For an extremely helpful discussion of the points sketched in this paragraph, see Christiano (2013).
- 6.
One interesting issue here concerns to whom the obligation to obey is owed. One could argue that the obligation is owed to the authority, which might facilitate justifying a coercive authority’s use of enforcement mechanisms. Alternatively, one could argue that the obligation is owed to other subjects of the authority, as in, say, a fair-play argument that grounds an obligation to obey in one subject in the benefits that she receives from the compliance of others. But if Raz is correct in thinking that legitimate authority confers a moral right to rule on the part of the authority, then the corresponding moral obligations to obey are owed by subjects to the authority. Of course, this is compatible with the authority’s generating obligations to obey that are owed to other subjects. Indeed, it seems quite plausible to think that subjects of morally legitimate authority have a moral obligation to obey that is owed to both subjects and the authority.
- 7.
These three conceptions of legitimacy do not necessarily coincide. As we will see, the differences between justifying coercive authority and justifying non-coercive authority are salient in giving adequate justifications for each. See Sect. 7, below.
- 8.
As Raz puts the point, “what cannot communicate with people cannot have authority over them” (Raz 1994, 217).
- 9.
It is not clear whether Raz would characterize the norms of morality in such a case as “authoritative.” One might deny, I suppose, that such norms are authoritative because they are not directives of an authority. I do not find that position plausible, but I cannot address the issue of whether there can be impersonal sources of authority—such as would be the case if moral norms are objective without having a personal being as author—in detail here. All I can do is raise the relevant concerns.
- 10.
As we have seen, a legal system might be believed to be authoritative, or claim authority, without actually being legitimate. It is not exactly clear whether, as a conceptual matter, the laws of an illegitimate legal system provide any kind of reason to act that is not connected with a prudential desire to avoid coercive enforcement mechanisms. One possible view is that such law merely “purports” to provide certain kinds of reason (usually thought to exclude the reasons provided by the authorization of coercive enforcement mechanisms), although what this would involve is somewhat unclear.
- 11.
As Gideon Rosen puts the point: “Concrete objects, whether mental or physical, have causal powers; numbers and functions and the rest make nothing happen. There is no such thing as causal commerce with the game of chess itself (as distinct from its concrete instances). And even if impure sets do in some sense exist in space, it is easy enough to believe that they make no distinctive causal contribution to what transpires. Peter and Paul may have effects individually. They may even have effects together that neither has on his own. But these joint effects are naturally construed as effects of two concrete objects acting jointly, or perhaps as effects of their mereological aggregate (itself a paradigm concretum), rather than as effects of some set-theoretic construction. Suppose Peter and Paul together tip a balance. If we entertain the possibility that this event is caused by a set, we shall have to ask which set caused it: the set containing just Peter and Paul? Some more elaborate construction based on them? Or is it perhaps the set containing the molecules that compose Peter and Paul? This proliferation of possible answers suggests that it was a mistake to credit sets with causal powers in the first place” (Rosen 2014).
- 12.
This raises an interesting issue with respect to Razian positivism. Raz takes the position that it is a conceptual truth that law “claims” legitimate authority. On this view, while law’s claim to legitimate authority can be, and often is, false, it is a conceptually necessary condition for a something to count as a legal system that it makes such a claim. If law is an abstract object of some kind, then it is conceptually impossible for law to make claims. See Himma (2001) and, for a very similar subsequent argument, Dworkin (2002).
- 13.
As Scott Hershovitz convincingly explains: “When one makes a request, one gives the addressee a reason for action that she did not have before … Countervailing reasons may outweigh the [reason provided by the] request. If I request that you help me carry my groceries, I expect you will consider my request along with all the other reasons you have for action. I expect you to act upon my request only if it tips the balance of reason in favor of doing so” (Hershovitz 2003, 204). Although he is expressly concerned with requests in this passage, the same considerations, as Hershovitz observes, apply to authoritative directives.
- 14.
Of course, subjects might have a moral reason to do what a de facto authority commands if the command reflects the requirements of morality, but that reason would not be a new reason that is explained by the authorities issuing the relevant directive. See, below, at p. 10.
- 15.
As a merely prudential reason, this is a reason that can be outweighed by moral reasons.
- 16.
To say that a person is “subject” to coercive enforcement mechanisms is not to make any claim about the probability of incurring liability under such mechanisms. It is rather to say that the mere authorization of coercive enforcement mechanisms backing the directive gives a person some content-independent reason (though possibly quite weak) to comply with the directive.
- 17.
- 18.
In the case of parenting, these coercive consequences are not properly characterized as being “punishment” in any sense that includes a retributivist notion that the relevant unpleasant consequences are, as a moral matter, deserved. Parental discipline of young children can be characterized as “punishment” in a less robust sense that does not involve moral connotations of the disciplinary actions being deserved by the child. Parental discipline might, of course, be morally warranted by the parent’s moral duties to rear a child to have certain character traits and behave in certain ways. But “punishment,” in the robust sense of the word, connotes that the unpleasant consequences are morally deserved by the non-complying behavior of the subjects. As can be seen, the issues that arise with respect to authority and coercive enforcement mechanisms are quite complex—and, for that reason, cannot be addressed in more detail here.
- 19.
See the discussion on parental authority and the moral incapacities of young children, above, at p. 11.
- 20.
According to William Frankena, morality is “supremely authoritative”; on this plausible view, moral obligations claim supremacy over all other obligations—including legal: When moral obligations come into conflict with other obligations and practical considerations, the moral obligations win; the only thing that can defeat a moral obligation is another more important moral obligation (Frankena 1966, 688–696). Similarly, Bernard Gert describes this feature of morality as follows: “Among those who use ‘morality’ normatively, all hold that ‘morality’ refers to a code of conduct that applies to all who can understand it and can govern their behavior by it. In the normative sense, morality should never be overridden, that is, no one should ever violate a moral prohibition or requirement for nonmoral considerations” (Gert 2012).
- 21.
There is an ambiguity in Raz’s formulation of the two kinds of reason. While the first clause uses the modality “cannot,” the second employs only a variation of a universal quantifier (“never”), suggesting that there is, in fact, no overriding q. To avoid replicating the notion of a conclusive reason, the notion of absolute reason should be construed as intending the modal clause. Otherwise, there is little difference between the two concepts.
- 22.
For example, on an objectivist view, it cannot be morally permissible to torture infants for fun.
- 23.
One can, of course, disagree that moral objectivism implies that moral judgments are necessarily true, if true at all. If so, then Raz’s notion of a conclusive reason would apply to an objective morality.
- 24.
Hershovitz does a characteristically elegant job of explaining the notion of a second-order reason: “What does it mean to have a second-order reason, a reason to act for or not act for another reason? An illustration will help. Suppose Aaron’s grandmother is in the hospital and that this provides Aaron reason to visit her. Suppose further that Aaron goes to the hospital and visits his grandmother, but only because he was hoping to run into Michelle, whom he has a crush on. In this case, Aaron conforms to his reason to go to the hospital to visit his grandmother but he does not comply with it. Does Aaron have reason to comply with his reason to visit his grandmother rather than just conform with it? Raz suggests he does, and I agree. Because Aaron went to the hospital to see Michelle and not his grandmother, his actions do not embody appropriate respect for his grandmother. Aaron had a reason to comply with his reason to visit his grandmother, that is, he had a second-order reason to act for a reason: Only through visiting his grandmother for the sake of visiting her could he show her proper respect” (Hershovitz 2003, 202).
- 25.
Heidi M. Hurd, for example, argues it can never be practically rational to accept exclusionary authority because it violates the principle that an agent should always act on the balance of reasons available to her (Hurd 1991). As Thomas May makes the point: “Acting on what the authority judges ought to be done appears to circumvent one’s own evaluational judgement, and thus autonomy. By circumventing the evaluational judgement of the subject it seems the subject is prevented from acting on her own determination of what ought to be done. The subject seems to be eliminated from the determination of her behavior” (May 1998, 130). It is worth noting that even if it is practically irrational to accept authority in the sense of providing exclusionary reasons, it does not follow that authority is necessarily illegitimate. This could simply be taken to imply that consent would be no part of a successful theory of state legitimacy and that other moral considerations would be sufficient.
- 26.
As Hart puts the point: “[T]he commander characteristically intends his hearer to take the commander’s will instead of his own as a guide to action and so to take it in place of any deliberation or reasoning of his own: the expression of a commander’s will that an act be done is intended to preclude or cut off any independent deliberation by the hearer of the merits pro and con of doing the act…. This, I think, is what is meant by speaking of a command as ‘requiring’ action and calling a command a ‘peremptory’ form of address” (ibid., 253).
- 27.
It is true, of course, that the moral evaluation of a person’s action will also include consideration of her motive for acting. Giving to charity for the reason that it will help the poor, for example, is a morally valid reason to give to charity; doing so to enhance one’s reputation in the community is not. But a person’s motive has to do only with the actual reason on which she acted and not on how she arrived at that reason. There might be instances in which the reasoning comes into play, but this is not how one’s mental states are characteristically evaluated from a moral point of view.
- 28.
This is a view of authoritative reasons that would not run afoul of Hurd’s view that it can never be rational for a person to accept exclusionary authority. Authority, as Perry conceives it, is not exclusionary, as it provides only strongly weighted reasons, rather than exclusionary reasons.
- 29.
Similar claims can be made about crossing against a red light in the middle of the night when no one is on either of the roads intersecting at a crosswalk.
- 30.
See, e.g., Hurd (1991), and note 25.
- 31.
The issue of whether a physician has practical authority is a difficult one, but not much turns on it here if, as many theorists believe, there can be practical authorities that lack the authorization to coercively enforce directives. Joseph Raz, for example, argues that law—and hence legal authority—would be needed to resolve certain disputes in a society of angels who are always conclusively motivated to obey the norms that resolve those disputes (Raz 1975, 159–160; Shapiro 2011, 169–170). For a response to this argument, see Himma (2016).
- 32.
I argue that the authorization of such mechanisms is a conceptually necessary feature of law. See Himma (2017, 593–626).
- 33.
This strikes me as a difficult issue. While a physician is clearly an epistemic authority, it is not clear whether a physician is a practical authority. On the one hand, a physician’s recommendations do not seem to be directives in the relevant sense; on the other, it does not seem to be irrational for a patient to accept a physician as being a practical authority. But deciding this issue is not important here insofar as it is commonly accepted that there can be practical authorities that lack the capacity to coerce compliance or punish disobedience.
- 34.
For a critical discussion of NJT, see Himma (2007).
- 35.
One reason to think that physicians lack practical authority is that it is implausible to think that a physician has a “moral right to rule.” Whether that is true depends, I suppose, on the character of a patient’s acceptance. Nonetheless, it is worth noting that if NJT is construed as a sufficient condition for the justification for accepting someone as a practical authority, it would justify accepting physicians as practical authorities. These conflicting considerations highlight the difficulties concerning the issue whether physicians are practical authorities. See note 33, above.
- 36.
The idea that a patient has a content-independent moral obligation to obey a physician seems highly implausible, which, of course, casts doubt on the idea that physicians are practical authorities. Although I think it useful to assume physicians are practical authorities to save space, nothing turns on this issue—if, as many theorists seem to think, there can be practical authorities that lack coercive authority.
- 37.
Heidi Hurd takes a somewhat different position—although its ancestral lines to Raz are clear; as she puts her position: “law can at best provide us with reliable moral advice, but cannot provide us with any reasons to do what morality otherwise prohibits” (Hurd 1999, xiii). She goes on to claim that law can have a form only of theoretical authority (a species of epistemic authority) and not practical authority. Whereas Raz seems to want to infer justified practical authority from justified epistemic (or theoretical) authority, Hurd argues that the best law can provide is theoretical authority. It cannot have the kind of practical authority that would provide a content-independent exclusionary reason to do something that violates moral requirements.
- 38.
Scott Hershovitz argues that satisfaction of NJT is not a sufficient condition for legitimacy because matters having to do with whether a state employs democratic procedures are also relevant. See Hershovitz (2003), and note 14, above.
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Himma, K.E. (2018). Authority. In: Bongiovanni, G., Postema, G., Rotolo, A., Sartor, G., Valentini, C., Walton, D. (eds) Handbook of Legal Reasoning and Argumentation. Springer, Dordrecht. https://doi.org/10.1007/978-90-481-9452-0_8
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