Legal Authority

Legal Authority and Obligation

This covers the following:

• Legal Authority
• Political Obligation
• Obligations in the Law
• Normativity of Law

Political Obligation

See more about political obligation here.

Obligations in the Law

Books and Papers about this subject:

• Lena Halldenius (2011). Kant on Freedom and Obligation Under Law. Constellations 18 (2):170-189.
• Matthew Lister (2012). Review of Sovereignty’s Promise: The State as Fiduciary by Evan Fox-Decent. [REVIEW] Ethics 123 (1):150-4. In Sovereignty’s Promise: The State as Fiduciary, Evan Fox-Decent uses the idea of fiduciary relationships to explain the legitimate exercise of governmental authority. He makes use of the idea of the state as a fiduciary for the people to ground an account of the duty to obey the law, to explain the proper relationships between colonial (or “settler” ) societies and aboriginal populations, the role of agency discretion and judicial review in the administrative state, the rule of law, the relationship between (…)
• Matthew Lister (2012). The Use and Abuse of Presumptions: Some Comments on Dempsey on Finnis. Villanova Law Review 57:485. This paper is a short commentary on Michelle Dempsey’s contribution to a symposium on the work of John Finnis which took place at Villanova Law School in the fall of 2011. It focuses on Finnis’s claim that there is a presumptive obligation to obey the law and some worries that Dempsey raises against this claim. It is forthcoming, along with several other papers from the symposium, in the Villanova Law Review.
• Dorota Mokrosinska (2012). Rethinking Political Obligation: Moral Principles, Communal Ties, Citizenship. Palgrave Macmillan. Why obey the state? Dorota Mokrosi?ska presents a fresh analysis of the most influential theories of political obligation and develops a novel approach to this foundational problem of political philosophy, an intriguing combination of the elements of natural duty and associative theories. The theory of political obligation developed in the book extends the scope of the contemporary debate on political obligation by arguing that political obligation can be binding even under the jurisdiction of unjust states. The arguments pursued in the (…)
• Marek Piechowiak (2016). Thomas Aquinas – Human Dignity and Conscience as a Basis for Restricting Legal Obligations. Diametros 47:64-83. In contemporary positive law there are legal institutions, such as conscientious objection in the context of military service or “conscience clauses” in medical law, which for the sake of respect for judgments of conscience aim at restricting legal obligations. Such restrictions are postulated to protect human freedom in general. On the basis of Thomas Aquinas’ philosophy, it shall be argued that human dignity, understood as the existential perfection of a human being based on special unity, provides a foundation for imposing (…)
• Anthony R. Reeves. Reasons of Law: Dworkin on the Legal Decision. Jurisprudence:1-21.
  Ronald Dworkin once identified the basic question of jurisprudence as: ‘What, in general, is a good reason for a decision by a court of law?’ I argue that, over the course of his career, Dworkin gave an essentially sound answer to this question. In fact, he gave a correct answer to a broader question: ‘What is a good reason for a legal decision, generally?’ For judges, officials of executive and administrative agencies, lawyers, non-governmental organizations, and ordinary subjects acting in the (…)
• Lawrence B. Solum (2007). Natural Justice : An Aretaic Account of the Virtue of Lawfulness. In Colin Patrick Farrelly & Lawrence Solum (eds.), Virtue Jurisprudence. Palgrave Macmillan
• Neal A. Tognazzini (2007). The Hybrid Nature of Promissory Obligation. Philosophy and Public Affairs 35 (3):203-232. How do promissory obligations get created? Some have thought that the answer to this question must make reference to our social practice of promising. Recently, however, T.M. Scanlon has argued (in his book What We Owe to Each Other) for a pure ‘expectation view’ of promising, according to which promissory obligations arise as a result of our producing certain expectations in others. He formulates a principle of fidelity (Principle F) that tells us when one has gained an obligation due to (…)
• Bas van der Vossen (2011). Assessing Law’s Claim to Authority. Oxford Journal of Legal Studies 31 (3):481-501. 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 (…)
• Burleigh T. Wilkins (1994). The Moral Prima Facie Obligation to Obey the Law. Journal of Social Philosophy 25 (2):92-96.

Normativity of Law

See more about normativity in law here.

Legal Authority Books and Papers

• Jonny Anomaly & Geoffrey Brennan (2014). Social Norms, The Invisible Hand, and the Law. University of Queensland Law Journal 33 (2).
• M. Baurmann (2000). Legal Authority as a Social Fact. Law and Philosophy 19 (2):247-262. From a sociological point of view, the conceptual and logical relations between the norms of legal order represent empirical and causal relations between social actors. The claim that legal authority is based on the validity of empowering norms means, sociologically, that the capability to enact and enforce legal norms is based on an empirical transfer of power from one social actor to another. With this process, sociology has to explain how a proclamation of legal rights by the creation of empowering (…)
• Thom Brooks (2004). The Right to Trial by Jury. Journal of Applied Philosophy 21 (2):197-212. This article offers a justification for the continued use of jury trials. I shall critically examine the ability of juries to render just verdicts, judicial impartiality, and judicial transparency. My contention is that the judicial system that best satisfies these values is most preferable. Of course, these three values are not the only factors relevant for consideration. Empirical evidence demonstrates that juries foster both democratic participation and public legitimation of legal decisions regarding the most serious cases. Nevertheless, juries are costly (…)
• Philip Cook (2009). Fairness Consensus and the Justification of the Ideal Liberal Constitution. Canadian Journal of Law and Jurisprudence 22 (1):165-186. In “Constitutional Goods” Alan Brudner presents novel conception of justice that will inform the content of the ideal liberal constitution. The content of this novel conception of justice is constituted by what Brudner describes as an inclusive conception of liberalism, and its justification is grounded on an account of public reason that is presented in opposition to that of John Rawls. I argue that we should reject both the content and justification of Brudner’s conception ofjustice. Brudner is unable to construct (…)
• Paul Stephen Dempsey & Michael C. Mineiro, Icao’s Legal Authority to Regulate Aerospace Vehicles. Space tourism is but the threshold step in the commercial development of privately financed and built space transportation systems. Once the technology has proven safe for the occasional wealthy tourist eager to float weightlessly and gaze down upon mother Earth, it is likely that entrepreneurs will take the next logical step and employ aerospace vehicles as suborbital transportation vehicles, sharply reducing transit times between the world’s major cities. As there was once a high-end business and luxury market for the supersonic (…)
• Kenneth M. Ehrenberg (2013). Law’s Authority is Not a Claim to Preemption. In Wilfrid J. Waluchow & Stefan Sciaraffa (eds.), Philosophical Foundations of the Nature of Law. Oxford University Press 51. Joseph Raz argues that legal authority includes a claim by the law to replace subjects’ contrary reasons. I reply that this cannot be squared with the existence of choice-of-evils defenses to criminal prosecutions, nor with the view that the law has gaps (which Raz shares). If the function of authority is to get individuals to comply better with reason than they would do if left to their own devices, it would not make sense for law to claim both to pre-empt (…)
• Pavlos Eleftheriadis. Citizenship and Obligation. In Julie Dickson & Pavlos Eleftheriadis (eds.), Philosophical Foundations of European Union Law. Oxford University Press. Many political philosophers believe that we owe moral obligations to our political communities simply because we are asked. We are, for example to pay taxes, or serve in the army whenever we are demanded to do so by the competent authorities or agencies. Can such moral obligations be created by European Union institutions? This essay discusses the natural duty of justice to support just or nearly just political institutions as defended by John Rawls and Jeremy Waldron. It suggests that European (…)
• Evan Fox-Decent, Fashioning Legal Authority From Power: The Crown-Native Fiduciary Relationship. The prevailing view in Canada of the Crown-Native fiduciary relationship is that it arose as a consequence of the Crown taking on the role of intermediary between First Nations and British settlers eager to acquire Aboriginal lands. First Nations are sometimes deemed to have surrendered their sovereignty in exchange for Crown protection. The author suggests that the sovereignty-for-protection argument does not supply a compelling account of how Aboriginal peoples lost their sovereignty to the Crown. Furthermore, Aboriginal treaties compel the courts (…)
• Evan Fox-Decent, The Fiduciary Nature of State Legal Authority. The fundamental interaction that triggers a fiduciary obligation is the exercise by one party of discretionary power of an administrative nature over another party’s interests, where the latter party is unable, as a matter of fact or law, to exercise the fiduciary’s power. The goal of this paper is to demonstrate that there is something “deeply fiduciary” about the interaction between a state and its subjects.
• Leslie Green (1990). The Authority of the State. Clarendon Press. The modern state claims supreme authority over the lives of all its citizens. Drawing together political philosophy, jurisprudence, and public choice theory, this book forces the reader to reconsider some basic assumptions about the authority of the state. -/- Various popular and influential theories – conventionalism, contractarianism, and communitarianism – are assessed by the author and found to fail. Leslie Green argues that only the consent of the governed can justify the state’s claims to authority.
• Alexander A. Guerrero (2012). Lawyers, Context, and Legitimacy: A New Theory of Legal Ethics. Georgetown Journal of Legal Ethics 25 (1):107-164. Even good lawyers get a bad rap. One explanation for this is that the professional rules governing lawyers permit and even require behavior that strikes many as immoral. The standard accounts of legal ethics that seek to defend these professional rules do little to dispel this air of immorality. The revisionary accounts of legal ethics that criticize the professional rules inject a hearty dose of morality, but at the cost of leaving lawyers unrecognizable as lawyers.
• Susan Haack (2009). Irreconcilable Differences? The Troubled Marriage of Science and Law. Law and Contemporary Problems 72 (1). Because its business is to resolve disputed issues, the law very often calls on those fields of science where the pressure of commercial interests is most severe. Because the legal system aspires to handle disputes promptly, the scientific questions to which it seeks answers will often be those for which all the evidence is not yet in. Because of its case-specificity, the legal system often demands answers of a kind science is not well-equipped to supply; and, for related reasons, constitutes (…)
• Marcin Matczak, Three Types of Intention in Lawmaking. The nature of legislative intent remains a subject of vigourous debate in legal theory. A conspicuous feature of the debate is that its participants perceive the intent in many different ways. Some see it as an intention concerning the meaning of the words used in legal text, others as a will to enact the law, others still as a set of expectations regarding the law’s impact on reality. In this paper I identify the reason for such diverse perceptions: namely, that (…)
• Cindy Phillips. The Presumption of Liberty and Coerciveness of Law. Jurisprudence. A dominant belief in political philosophy is that states must be entitled to authorize the use of coercion in order to justifiably coerce its subjects (Lamond 2001, Ripstein 2004). Call this view the entitlement view. On this view, for a state to justifiably coerce its subjects, a necessary condition is that it is entitled (or has a right) to authorize the use of coercion. Skeptics hold the entitlement view (Simmons 1979, Wolff 1970). However, they deny that states are entitled to (…)
• Jennifer W. Primmer (2014). Beyond the Law-State: The Adequacy of Raz’s Account of Legal Systems in Explaining Intra-State and Supra-State Legality. Ratio Juris 28 (1):149-158. I argue that there are two conceptions of ‘comprehensiveness’: 1) Raz’s strong conception whereby comprehensiveness entails supremacy, and 2) a weak conception whereby comprehensiveness does not entail supremacy. The latter is sufficient to distinguish legal and non-legal authorities, and unlike Raz’s notion of comprehensiveness, allows one to account for both intra-state forms of legality (e.g., the federal-provincial relation in Canada) and supra-state forms of legality (e.g., the European Union). Moreover, although it is ideal for legal systems to claim supremacy.
• Anthony Reeves (2014). The Binding Force of Nascent Norms of International Law. Canadian Journal of Law and Jurisprudence 28 (1):145-166. Demonstrating that a developing norm is not yet well established in international law is frequently thought to show that states are not bound by the norm as law. More precisely, showing that a purported international legal norm has only limited support from well-established international legal sources is normally seen as sufficient to rebut an obligation on the part of subjects to comply with the norm in virtue of its legal status. I contend that this view is mistaken.
• Anthony Reeves (2011). Judicial Practical Reason: Judges in Morally Imperfect Legal Orders. Law and Philosophy 30 (3):319-352. I here address the question of how judges should decide questions before a court in morally imperfect legal systems. I characterize how moral considerations ought inform judicial reasoning given that the law may demand what it has no right to. Much of the large body of work on legal interpretation, with its focus on legal semantics and epistemology, does not adequately countenance the limited legitimacy of actual legal institutions to serve as a foundation for an ethics of adjudication.
• Anthony Reeves (2010). The Moral Authority of International Law. APA Newsletter on Philosophy and Law 10 (1):13-18. How should international law figure into the practical reasoning of agents who fall under its jurisdiction? How should the existence of an international legal norm regulating some activity affect a subject’s decision-making about that activity? This is a question concerning the general moral authority of international law. It concerns not simply the kind of authority international law claims, but the character of the authority it actually has.
• Anthony R. Reeves. Reasons of Law: Dworkin on the Legal Decision. Jurisprudence:1-21. Ronald Dworkin once identified the basic question of jurisprudence as: ‘What, in general, is a good reason for a decision by a court of law?’ I argue that, over the course of his career, Dworkin gave an essentially sound answer to this question. In fact, he gave a correct answer to a broader question: ‘What is a good reason for a legal decision, generally?’ For judges, officials of executive and administrative agencies, lawyers, non-governmental organizations, and ordinary subjects acting in the (…)
• Anthony R. Reeves (2015). Practical Reason and Legality: Instrumental Political Authority Without Exclusion. Law and Philosophy 34 (3):257-298. In a morally non-ideal legal system, how can law bind its subjects? How can the fact of a norm’s legality make it the case that practical reason is bound by that norm? Moreover, in such circumstances, what is the extent and character of law’s bindingness? I defend here an answer to these questions. I present a non-ideal theory of legality’s ability to produce binding reasons for action. It is not a descriptive account of law and its claims.
• Re’em Segev (2013). The Argument for (Living) Originalism: Comments on Jack Balkin’s Theory of Constitutional Interpretation. Jerusalem Review of Legal Studies. In this comment I consider Jack Balkin’s general argument for his method of constitutional interpretation – the question of why interpret (the United States Constitution) in this way (as presented in his book Living Originalism). I contrast this question with the way in which the conclusion of this argument should be implemented with regard to specific clauses – the question of how to interpret (the United States Constitution). While the former question is concerned with the general form of the argument, (…)
• François Tanguay-Renaud (2012). Individual Emergencies and the Rule of Criminal Law. In François Tanguay-Renaud & James Stribopoulos (eds.), Rethinking Criminal Law Theory: New Canadian Perspectives in the Philosophy of Domestic, Transnational, and International Criminal Law. Hart Publishing
• Piers Norris Turner (2015). Mill and the Liberal Rejection of Legal Moralism. History of Philosophy Quarterly 32 (1):79-99. This article examines John Stuart Mill’s position as the principal historical opponent of legal moralism. I argue that inattention to the particular form of his opposition to legal moralism has muddied the interpretation of his liberty principle. Specifically, Mill does not endorse what I call the illegitimacy thesis, according to which appeals to harmless wrongdoings, whether or not they exist, are illegitimate in the justification of legal interference.
• Bas van der Vossen (2012). The Asymmetry of Legitimacy. Law and Philosophy 31 (5):565-592. State legitimacy is often said to have two aspects: an internal and an external one. Internally, a legitimate state has the right to rule over its subjects. Externally, it has a right that outsiders not interfere with its domestic governance. But what is the relation between these two aspects? In this paper, I defend a conception of legitimacy according to which these two aspects are related in an importantly asymmetrical manner. In particular, a legitimate state’s external right to rule affords (…)
• Bas van der Vossen (2011). Assessing Law’s Claim to Authority. Oxford Journal of Legal Studies 31 (3):481-501. 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 (…)
• Jacob Weinrib (2015). Dimensions of Dignity: The Theory and Practice of Modern Constitutional Law. Cambridge University Press. In an age of constitutional revolutions and reforms, theory and practice are moving in opposite directions. As a matter of constitutional practice, human dignity has emerged in jurisdictions around the world as the organizing idea of a groundbreaking paradigm. By reconfiguring constitutional norms, institutional structures and legal doctrines, this paradigm transforms human dignity from a mere moral claim into a legal norm that persons have standing to vindicate. As a matter of constitutional theory, however, human dignity remains an enigmatic idea. (…)