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ANTHONY R. REEVES
In a morally non-ideal legal system, how can law bind its subjects?
How can the fact of a norms legality make it the case that practical
reason is (in fact) bound by that norm? Moreover, in such circumstances, what is the extent and character of laws binding-ness? Here,
I defend an answer to these questions. I present a non-ideal theory of
legalitys ability to produce binding reasons for action. It is not a
descriptive account of law and its claims, it is a normative theory of
legal reasoning for particular (though oft-occurring) social circumstances.
The questions of political authority and obligation have received
enormous philosophical attention both historically and recently, and
it would be surprising if a wholly innovative and plausible account
were to emerge. Perhaps someone will surprise, but my aims are
more modest. I seek to deploy some of the best resources of
the tradition to account for legalitys normativity in typical human
ANTHONY R. REEVES
circumstances that improves upon, and avoids important shortcomings of, existing approaches. I will briefly preface points to be
developed. Like Razs influential account,1 my approach is instrumental, in that practical reasons allegiance to law is based in the
assistance it provides the agent in doing what she ought, where the
reasons of her duty exist independent of the law. I will also assume
that we have natural political duties. However, I reject Razs characterization of laws instrumentality, especially one of the theorys
defining features: the exclusionary reason. Whatever their claims,
morally authoritative legal directives are not normally, in whole or
part, exclusionary reasons. Not only is such a characterization theoretically inaccurate, but it distorts the moral position of legal subjects in a way that potentially inhibits reasoning with legal norms
responsibly. We should characterize legalitys service to responsible
practical reason differently.
In contrast to many prominent accounts of political obligation,
my account does not aim to ground general, generic, or special obligations to obey the law.2 Rather, it seeks to display conditions under
which the legality of a norm is sufficient to render the norm binding
for practical reason. These conditions may obtain only occasionally
for legal subjects, appeal to multiple and heterogeneous political
duties, and fail to generate special obligations to a particular political
community. Yet, where the conditions obtain, legal institutions
have the moral power to change ones moral obligations.3 Although
I believe this reflects much existing usage, for the purposes of this
paper I stipulate that law has political authority when it possesses the
moral power to modify its subjects obligations. I use political
obligation theory to refer to theories that seek to account for this
1
See, for instance, Joseph Raz, The Morality of Freedom (Oxford: Oxford University Press, 1986),
23105.
2
I discuss this type of approach below, but some representative examples (though each emphasizing
different elements) include: John Rawls, A Theory of Justice, Revised ed. (Cambridge, MA: Harvard
University Press, 1999), 293343; Ronald Dworkin, Laws Empire (Cambridge, MA: Harvard University
Press, 1986), 176224; George Klosko, The Principle of Fairness and Political Obligation, New ed. (Lanham,
MD: Rowman & Littlefield, 2004); Christopher Heath Wellman, Toward a Liberal Theory of Political
Obligation, Ethics 111, no. 4 (2001); Thomas Christiano, The Constitution of Equality: Democratic Authority
and Its Limits (New York: Oxford University Press, 2008), 231259.
3
For a discussion of the importance of establishing the moral power to impose obligations in the
course of substantiating political authority, see Stephen R. Perry, Political Authority and Political
Obligation, Oxford Studies in Philosophy of Law 2 (2013). However, for reasons to be explained, I reject
Perrys inclusion of intention as an element of political authority.
power in terms of general and special obligations to legal institutions.4 Political obligation refers to these purported obligations.
Political obligation is unnecessary for political authority.
One concern about political obligation theory is that it tends to
leave uncertain the practical relevance of the proffered obligations,
particularly for substantially non-ideal political circumstances. How
demanding are political obligations compared to other moral demands? Moreover, take a legal system whose law (1) is frequently
morally suboptimal such that it does not realize the relevant political
virtues (e.g., justice, equal respect, fairness) as well as it should, and
(2) sometimes demands the impermissible exercise of power (i.e., it
occasionally demands the violation of moral rights). What do our
political obligations here require?5 Given the way political obligation
theorists standardly limit the scope of their theories (e.g., to minimally just and democratic states where competitions between demands of political right for the subject are occasional), they offer
uncertain guidance for responsible decision under law in large arenas
of human politics.
I adopt the following method. I consider the authority of law in
non-ideal legal systems. Non-ideal refers to two properties of a legal
order. First, the legal order does not fully meet the moral standards
appropriate for its assessment. It is, for instance, partly unjust. Second, the legal order is not of such a character that political obligations are operative. Subjects do not have general and special
obligations to obey the law, perhaps because of some defect of the
legal system. These two properties are potentially independent,
depending on the correct account of the relationship between the
political virtues and political obligation, but for my purposes it is
useful to treat them together under the single heading, non-ideal,
4
That this is a central concern of political obligation theory is evident in the writing of both
philosophical anarchists and defenders of political obligation. Consider Marmors passing comments in
an encyclopedia article: Whether judges, or anybody else, should or should not respect the rules of
recognition of a legal system, is ultimately a moral issue, that can only be resolved by moral arguments
(concerning the age old issue of political obligation) Unlike chess or soccer, however, the law may
well be a kind of game that people have an obligation to play, as it were. But if there is such an
obligation, it must emerge from external, moral, considerations, that is, from a general moral obligation
to obey the law. Andrei Marmor, The Nature of Law, in Edward N. Zalta (ed.), The Stanford
Encyclopedia of Philosophy (Winter 2011 Edition).
5
Some work is now being done on this question, with surprising conclusions. See Candice Delmas,
Political Resistance: A Matter of Fairness, Law and Philosophy 33, no. 4 (2014).
ANTHONY R. REEVES
for two reasons. First, it eliminates two responses to the issue of how
one can be duty-bound to comply with the law: the law is right about
what is morally best, and one is obligated to the law. Non-ideal
thereby summarizes the theoretical orientation of the question: can
law have non-general authority that is not predicated on its provision
of the correct answer to a political question? Further, if we can
answer yes by describing the conditions under which legality of a
norm in a non-ideal system renders that norm binding, then the
result suggests that the traditional question of political obligation is
less important (theoretically) than is frequently assumed. Insofar as
political obligation theory is driven by the perceived need to explain
our sense that legality can imply mandatory compliance, and that
legal institutions at least sometimes have the moral power to require
action, then offering an explanation without the use of general,
special obligations to the law should reduce our interest in political
obligation. Second, non-ideal plausibly summarizes two features of
many existing legal systems especially important for their subjects.
Though I do not want to overstate the point, an adequate non-ideal
account would partially illuminate the responsibilities of agents who
are effectively subject to legal systems that are valuable in various
respects, but in significant and systemic ways, morally defective. It
would clarify one aspect of the difficult moral situation of such
persons: how, in general, do I respond to the norms of the effective
system of law?
In Part One, I provide some definitions and theoretical context,
and offer a summary of the view I defend in the rest of the paper. In
Part Two, I consider some moral goods we typically want from the
rule of law. In Part Three, I argue that, by serving goods of this kind,
the property of legality can render norms binding. The analysis situates the view among prominent contemporary competitors and
argues for its superiority in handling a straightforward case of
practical authority. This should motivate us to reconceive of the
service political authority is properly in the business of providing. In
Part Four, I consider my approach in terms of various success conditions for a theory of authority offered in recent philosophical literature. It is successful on various criteria, but I also argue that these
adequacy conditions are counterproductively stringent when the
6
This is in the spirit of Wellmans distinction between legitimacy and political obligation in
Christopher Heath Wellman, Liberalism, Samaritanism, and Political Legitimacy, Philosophy and Public
Affairs 25, no. 3 (1996).
ANTHONY R. REEVES
7
We need not, as Christiano seems to suggest, link strongly a right to rule (in the sense of a claim
right to sovereignty) with a correlative obligation of subjects to obey. A right to be sovereign is
unnecessary and insufficient for authority, and it is helpful to keep the matters separate. See Christiano,
The Constitution of Equality: Democratic Authority and Its Limits, 240241.
8
It is the primary sense in which law binds for Austin. See John Austin, The Province of Jurisprudence
Determined (Amherst, NY: Prometheus Books, 2000), 933.
9
The point is most at home in legal positivism. See David Lyons, Moral Aspects of Legal Theory,
in Moral Aspects of Legal Theory: Essays on Law, Justice, and Political Responsibility (Cambridge: Cambridge
University Press, 1993). However, this is also acknowledged by much natural law jurisprudence. See, for
example, Mark C. Murphy, Natural Law in Jurisprudence and Politics (New York: Cambridge University
Press, 2006), 160. Ronald Dworkins theory of law may be an exception, though this is unclear. See
Dworkin, Laws Empire, pp. 101113.
10
As Enoch puts it: I am spending some time on the motivations for the claim that law necessarily
gives reasons for actions, because the most striking thing about this thesis, it seems to me, is that it is so
clearly falseall that has to be shown to establish the falsehood [of this claim]is one conceptually
possible case where the law any law requires that you / and yet you do not thereby acquire a reason
to /. David Enoch, Reason-Giving and the Law, Oxford Studies in Philosophy of Law 1 (2011): 20.
11
Though, given the right conditions, they can be legitimately enforced.
ANTHONY R. REEVES
12
For reasons I describe in Part 3, I resist the urge to say that the positive norms here literally
determine the virtue of careful conduct. Rather, more narrowly, they partly determine what the virtue
will require of particular individuals, on particular occasions i.e., the satisfaction conditions of due care
for located persons.
13
Im grateful for an anonymous reviewers comments in clarifying this idea.
14
One possible exception to this is Gilberts approach, which appeals to mere joint commitment,
without the mediation of independent moral requirements, to ground political obligation. See Margaret
Gilbert, A Theory of Political Obligation: Membership, Commitment, and the Bonds of Society (Oxford:
Clarendon Press, 2006). One worry is that Gilberts theory cannot help us respond to issues of political
responsibility since the practical force of obligations of joint commitment is left unclear. This is not the
place, however, to develop a full critique. Since Gilberts approach is anomalous, I will bracket it.
15
For a discussion, see David Lefkowitz, The Duty to Obey the Law, Philosophy Compass 1, no. 6
(2006). By generic, I mean that the obligation to obey the law is grounded in the same kind of moral
consideration(s) in the various departments of law and across various circumstances. Whether we are
talking of tax law or traffic law, there is a type of obligation that is common to both, and this obligation
applies in all the various circumstances to which the law purports to govern. In recent years, however,
some political obligation theorists have moved away from this claim. See, e.g., George Klosko, Multiple
Principles of Political Obligation, Political Theory 32, no. 6 (2004). Also, I acknowledge that there is a
spectrum of views emphasizing, to greater and lesser degrees, generality. My aim here is to provide
some orientation to the differing theoretical aims and methods of existing accounts political authority,
and situate my view among those accounts.
16
For instance, Klosko claims that the moral authority of law is coextensive with a prima facie
obligation to obey the law. The Principle of Fairness and Political Obligation, 14. See also, Andrei Marmor,
An Institutional Conception of Authority, Philosophy and Public Affairs 39, no. 3 (2011): 260261. For
recent doubts that the success of such a project would be sufficient for demonstrating genuine
authority, see Perry, Political Authority and Political Obligation. I argue that it is unnecessary.
17
As most political obligation theorists assume, we can remain largely agnostic here among theories of
law. Also, importantly, moral tie should not be understood in this context as an explanans for legal
phenomena as in any way indicating an existence condition for a legal system. Whether law requires an
operative commitment on the part of (some) subjects that is understood by them to be a moral one is not
an issue I address. I am not trying to explain what makes for law, but what makes for its authority.
18
Irrespective of whether the legal requirement is stating independently effable satisfaction conditions of a moral requirement.
ANTHONY R. REEVES
19
Consider Razs denial of a general obligation in Joseph Raz, The Authority of Law: Essays on Law
and Morality (Oxford: Clarendon Press, 1979), 233249.
20
The Morality of Freedom, 3869.
21
See ibid., 7080.
22
And where it demands what is contrary to duty.
23
Razs theory of authority has been the most influential such theory in legal philosophy. Its most
recent comprehensive presentation is in Joseph Raz, The Problem of Authority: Revisiting the Service
Conception, Minnesota Law Review 90 (2006). This approach has received support, in part or whole,
from a variety of theorists, including Leslie Green, The Authority of the State, Paperback ed. (New York:
Oxford University Press, 1988), 2162; Larry Alexander, All or Nothing at All?: The Intentions of
Authorities and the Authority of Intentions, in Law and Interpretation: Essays in Legal Philosophy, ed.
Andrei Marmor (New York: Oxford University Press, 1995); Andrei Marmor, Interpretation and Legal
Theory, 2nd ed. (Portland: Hart Publishing, 2005); James Sherman, Unresolved Problems in the Service
Conception of Authority, Oxford Journal of Legal Studies 30, no. 3 (2010); Daniel Viehoff, Debate:
Procedure and Outcome in the Justification of Authority, Journal of Political Philosophy 19, no. 2 (2011).
Despite its wide influence, it has recently received a great deal of critical scrutiny. See, for example,
William A. Edmundson, Three Anarchical Fallacies: An Essay on Political Authority (Cambridge: Cambridge
University Press, 1998); Heidi M. Hurd, Moral Combat (New York: Cambridge University Press, 1999);
Jeremy Waldron, Law and Disagreement (Oxford: Oxford University Press, 1999), 95118; Scott J.
Shapiro, Authority, in The Oxford Handbook of Jurisprudence and Philosophy of Law, ed. Jules L. Coleman
and Scott J. Shapiro (New York: Oxford University Press, 2002); Thomas Christiano, The Authority of
Democracy, The Journal of Political Philosophy 12, no. 3 (2004); Stephen Darwall, Authority and Reasons:
Exclusionary and Second-Personal, Ethics 120, no. 2 (2010); Scott Hershovitz, The Role of Authority,
Philosophers Imprint 11, no. 7 (2011); Christopher Essert, A Dilemma for Protected Reasons, Law and
Philosophy 31, no. 1 (2012).
24
This is not to say, I argue below, that the relevant moral virtues are somehow indeterminate.
ANTHONY R. REEVES
official rules, and how and who is to adjudicate the application of the
rules in the circumstances.27
Addressing these matters preempts conflict and facilitates collective action. The realization of other social goods, goods that require
organized communal efforts, would be impossible without law or
some other social normative innovation that settled the basic standards governing the social world. When a good depends, in the
social circumstances, for its existence on law, I will call it a rule of
law good. In saying that these goods have a special relationship to
the rule of law, I do not mean to suggest that they could only be had
under law.28 I claim, first, that under current social conditions, they
are unlikely to be achieved otherwise than through legal institutions
(given the actual diversity and size of societies). Second, I notice that
they are currently achieved through law, and thus the question for a
legal subject is not, normally, whether to pursue these goods
through law versus some other social technique, but whether to
pursue them legally or not at all.
Many of the rule of law goods I have in mind will be familiar to
legal theorists, goods such as coordination, stability, protection of
expectations, resolution of moral disagreement for practical purposes, avoidance of juridical anarchy,29 among others. These are
often valuable in themselves. For example, the ability to form reliable expectations about the behavior of others may be its own good:
Political liberty in a citizen is that tranquility of spirit which comes
from the opinion each one has of his security.30 Democratic governance, some think, is also intrinsically valuable. Rule of law goods
are also often valuable instrumentally, e.g., rules of property, traffic,
and land use all facilitate commerce and safe conduct, and stable
public rules permit people to develop effective life plans.
To make the discussion somewhat more concrete, I will describe
some goods that appear to have a special relationship to law. The list
is not meant to be exhaustive, but to illustrate the idea of a rule of
27
H. L. A. Hart, The Concept of Law, 2nd ed. (Oxford: Oxford University Press, 1994) 9199.
See Leslie Green, Law, Co-Ordination and the Common Good, Oxford Journal of Legal Studies 3,
no. 3 (1983): 312315.
29
Estlunds term, referring to the absence of a common system of criminal law. David Estlund,
Democratic Authority: A Philosophical Framework (Princeton: Princeton University Press, 2008), 146.
30
Montesquieu, The Spirit of the Laws, trans. Anne M. Cohler, Basia Carolyn Miller, and Harold
Samuel Stone (Cambridge: Cambridge University Press, 1989), 157.
28
ANTHONY R. REEVES
ANTHONY R. REEVES
A. Directives as Reasons
Consider first a way that directives can be reasons for what is directed outside the context of law. By directive, I mean an expression that would normally be understood, given existing linguistic
conventions and the context in which it is delivered, to be indicating
that a course of action ought to be pursued, at least partly for the
reason of the expression.38 A directive is actually a compliance reason to / when: (1) it directs addressees to /, (2) /ing is the course
of action required to secure a good, and (3) /ing is the route to a
good because those addressed were directed to / by the directive. A
directive can become a reason to comply by creating a route between a good and an agent that is the carrying out of the directive.
Such route creation will normally involve shaping the social world
via the public semantic content of the directive. Compare two cases
of directives. In the first, the directive is a reason for compliance
(though it is not binding). In the second, the directive is not a reason
for compliance (though one should do as told).
(1) We want to play soccer, but the group needs a common meeting point
since there are several serviceable fields. A, who commonly (as a
matter of social fact) settles such matters, sends a message directing us
to meet at a certain park, P. You and the other members of the group
now correctly expect the group to play at P. As directive is a reason for
those wishing to play soccer to go to that park. Complying with it will
accomplish the VPT good of, in this case, soccer playing. Going to P is
now good, with respect to playing soccer, because of the directive.
Minus the directive, going to P is not a good in that sense. The fact of
As directive to go to P is a reason to go to P.
38
Often directives are understood as speech acts intended to impose an obligation. I deliberately
avoid relying on intention for, as I argue later, it is an error to treat intention as an important feature of
political authority, either in its exercise or its content (i.e., as settling, in part, the content of the
obligations imposed by the authority). The alternative definition offered here characterizes directives
purely in terms of their public meaning. A directive is such in virtue of its being understood to be saying
that the course of action it describes ought be pursued for the reason of its indication of the course of
action. I am grateful for an anonymous reviewers comments on these points.
ANTHONY R. REEVES
(2) You and one other person, B, are walking down the sidewalk. B drops
his books. Another person, C, yells at you to help B pick up his books.
Cs directive is not a reason for you to pick up Bs books. Although
doing what C demands will accomplish some good, Cs directive does
not contribute any additional reasons. The act of helping B is not made
worthwhile (in any sense) by Cs directive. Cs directive can be construed, at most (from the standpoint of reason-giving), as advice as
illuminating the course of action you already had reason to perform.
Slightly differently, Cs directive can, perhaps, be seen as a reason to
believe that one already had reason to help pick up the books, but it is
not a reason to help pick up the books.
ANTHONY R. REEVES
I will not offer a full consideration of Estlunds theory of authority (I focus on its explanatory
unhelpfulness), but for a powerful general critique, see Daniel Koltonski, Normative Consent and
Authority, Journal of Moral Philosophy 10, no. 3 (2013).
42
It is also worth noting that, despite the directives binding force, it may be illegitimate for D to
coercively enforce it.
ANTHONY R. REEVES
directive, and thus the course of action that achieves that moral good
is not effable without the semantic content of the directive. The
upshot here is that a directive is a non-moral fact that comes in
normative garb, and a binding directive comes in normative garb
and, in virtue of that garb, is successful at making the mandated
course of action normative for practical reason. Posited normativity
achieves genuine normativity. We can understand the moral power, as
a property of a norm-giver, as the factual capacity to improve peoples relationship to ends of mandatory concern to them by positing
a norm that then describes the route to the ends. Subjects, as bearers
of natural duties, are liable to have their moral position so altered. To
summarize, a binding directive is a self-standing reason for what it
directs, and it differs from side effect impositions of duties in that it
specifies the action it is a reason for and its normative claim is a
crucial element of its actual normativity.
Third, that D should be ordering otherwise (Ds orders are
morally suboptimal) does not render his directive non-binding. Ideally, perhaps, you would have the de facto recognition to be giving
effective orders, but that is irrelevant for your practical reason. The
route to carrying out your duty has been determined by D, and this
rests neither on the indeterminacy of the moral virtue, nor the
imposition (by the directive) of exclusionary reasons. Taking indeterminacy first,46 we need not assume that the moral virtue of rescue
does not pick out ideal rescue schemes in the circumstances, or is
incapable of ranking various schemes. It may be perfectly determinate, in this sense, and so may political virtues, like justice, in
ranking political orders. Ds suboptimal directives bind by creating a
route to a good (i.e., the saving of lives) that grounds the virtue of
46
Jon Garthoff, in his theory of authority, relies heavily on the thesis that justice is indeterminate. As
he puts it, A variety of systems of taxation and transfer would accomplish [the aims of justice] in a way
that is adequately fair; the extra-legal content of morality, I assume, fails to pick out a unique system as
fair. Jon Garthoff, Legitimacy Is Not Authority, Law and Philosophy 29, no. 6 (2010): 679. Law, on his
view, becomes authoritative by picking out one of those schemes, and justice becomes literally identical
to what the law demands. On my view, there is no need to assume such indeterminacy (and I am
inclined to reject it). Garthoffs discussion, though illuminating in other ways, provides no argument for
this controversial claim. Also, as Andrs Molina Ochoa notes, it is unclear that Garthoff can sustain his
distinction between moral and instrumental coordination problems. His primary example of the latter is
traffic conventions, but as Molina points out, these are crucially involved in our duties of safe conduct.
Andrs Molina Ochoa, On How Law Determines Morality (Dissertation, Binghamton University,
2012). Molina develops a view in several other ways in line with Garthoffs position, but with an
emphasis on how law gives content to moral demands by solving coordination problems, specifically.
Although I cannot wholly embrace Molinas position, the point regarding the moral value of coordination is important (and should, I think, incline us toward the kind of theory defended here).
ANTHONY R. REEVES
rescue, not by giving content to the ideal of rescue. Slightly differently, Ds directive specifies what the ideal of rescue requires of you,
not what it requires of D.
Moreover, Ds binding directives do not involve the imposition of
exclusionary reasons, and it distorts the moral situation of subjects to
describe the binding character of directives in those terms. An
exclusionary reason is a reason not to act for some other reason(s).47
Nothing is excluded from your practical deliberations about how to
act by Ds orders.48 You ought not do Y, or Z, or what you would be
doing under R, because they are not routes to a good. At the point of
compliance, you do not have reasons to do Y or Z. The reasons for
ordering Y, Z, and R are not excluded, they are simply irrelevant to
you in the circumstances. If Ds directive is not excluding (nonexistent) reasons to act on the basis of other collective enterprises,
what reasons does it exclude? It is hard to discern any.
Suppose that if you do otherwise than X, the rescue effort will
save N fewer lives. Compare this to a situation where doing an
action qualitatively identical to X would, because of some strange
circumstance, permit you to save an equivalent number of lives, but
without the aid of a directive. You are told by D to stabilize a piece
of aircraft with your person, and this will permit a more efficient
rescue of the Imperiled. In another scenario, you are the Lone Safe,
but stabilizing the piece of aircraft will permit some to climb to
safety. Your moral situation looks the same in both cases.49 You have
the same reasons, exclusionary and first-order, to do X in both circumstances, so the directive simply cannot be introducing additional
exclusionary reasons. If any reasons are excluded, it is the character
of the good at stake or some other aspect of the situation that is
doing the work excluding, not the directive. Coordination, even
partial-conflict coordination, does not involve exclusionary reasons.
It might be objected: although the order cannot be construed as
excluding reasons to act on alternative collective enterprises, because
47
See, generally, Joseph Raz, Practical Reason and Norms, Second ed. (Oxford: Oxford University
Press, 1999).
48
Leslie Green has also recognized that solutions to coordination problems are not, normally,
sources of exclusionary reasons. See Green, The Authority of the State, 111115.
49
I will not consider whether duties or mandatory norms generally need involve exclusionary
reasons (e.g., whether the duty to rescue, in the first place, is a duty because it excludes some reasons,
like the reason to take a nap). The point concerns the directive itself, and the sense in which it is a
reason, since we are interested in the character of its authority.
ANTHONY R. REEVES
A final note before moving on. I keep the rescue example relatively simple to highlight several points, but (time and social order
permitting) Ds directive does not preclude you from trying to
persuade D otherwise or of trying to convince others of a different
course of action. However, you may not have time or sufficient
persuasive force. Ds directive then binds you. Without it, you were
free to act otherwise, and perhaps you could responsibly do nothing
(imagine if there were no safe rescue available without collective
effort, and no effort is forthcoming). With it, you are bound to do
your duty to your fellow humans by complying.
C. Binding Law
Perhaps it is now clear how, in my view, non-ideal law binds. Positive law constrains responsible freedom to its terms by creating a
route, that is compliance with the law, between an agent and an end
of mandatory concern to the agent unavailable without a directive.
Law will frequently, though hardly always, satisfy the conditions to
be good-making. Almost all theories of positive law require that
actual recognition figure, in some crucial way, to legality, such that
legality also explains the ability of legal institutions to issue agendasetting directives.53 Moreover, the rule of law goods described in part
two are VPT goods, and are plausibly duty-implying goods. These
goods are, for a legal subject, normally not pursuable by other
means, and a subjects behavior often factually affects the extent of
their realization. A non-ideal systems law will frequently bind in
virtue of its public semantic content, legal recognition, moral
acceptability, and its statement of a minimally successful policy for a
mandatory VPT good that is then achieved, by the subject, by acting
pursuant to the law.
Practical reasoning under non-ideal law, then, requires cognizance of the way in which the rule of law is valuable, and how that
value depends on compliance in particular circumstances. Moreover,
given that law (even when binding) will not normally produce
exclusionary reasons, the responsible agent will have to be sensitive
53
In fact, I cannot think of one that does not. This does not, of course, imply that recognition need
attach to legal norms one by one, only that recognition is partly constitutive of legality somewhere
along the line (e.g., at the level of official practice, and/or at the level of widespread acceptance of
official practice), and this explains factual recognition of some norms.
ANTHONY R. REEVES
and that cannot be done adequately here.56 Aside from what I say
there and here, I will simply assume we have significant, nontransactional natural duties. Nonetheless, what I hope to have
accomplished is an analysis of how positive norms can bind that
explains how legal normativity accomplishes genuine normativity for
practical reason. I have attempted to do this without describing
norms in terms of (distortive, in my view) exclusionary reasons,
positing indeterminacy, or employing difficult to substantiate general
moral commitments to legality. Of course, on this account, legal
subjects bound by law are not relieved of the responsibility to discern
their duties to others the binding force of law can only be ascertained through judgments of political morality. Again, law binds not
by providing relief services to practical reason, but by articulating a
course of action for its consideration (in light of the total circumstances) that then constitutes the success conditions for performing
at least one of its duties.57
Part Two also indicated several types of instances where we can
expect law to be route-making in the sense relevant for establishing
authority as described here. Yet, to aid intuition, consider two
concretized (if mundane) examples. We exercise power when acting
in the social world. While driving, I have the power to make things
go badly for others. Others have a moral right that I care for their
safety when driving down the road. I do not have the means for
doing this without settled conventions regarding speed, direction,
passing, etc. my practical reason has no course of action to consider
that would achieve safe travel. Traffic law, by the factual social
regard for its semantic content that accompanies its legality, makes it
the case that I can carry out my duty by stipulating an acceptable
course of action that, by the act carrying it out, is doing my duty.
There are at least two duties here. One is that I not undermine
serviceable conventions that achieve minimally safe highway travel
without acting towards an alternative (sometimes this sort of effect
will be negligible or non-existent, it depends). The other is that I
56
We might, e.g., conceive of these valuables in terms of public reason and the liberal principle of
legitimacy. See, John Rawls, Political Liberalism, Paperback ed. (New York: Columbia University Press,
1996), 212254.
57
Of course, being provided the means for dutiful action can be unhappy for an agent one might
prefer the freedom of not having the means. Being morally bound is not meant to be pleasant, it is
about according oneself responsibly towards others rights.
ANTHONY R. REEVES
Naturally, defenders of particularized political authority take it that political obligations are
defeasible. My only point here is that we need not assume particularity to account for laws ability to
bind in very many circumstances. The account stands somewhat independent of this well-developed
discussion. If special obligations can be shown, they can be integrated into this account. Also, relatedly,
it may be wondered how (if the particularity requirement is not met) my own states tax law, for
instance, can bind me. This raises interesting issues, but I do think this approach has an attractive way of
dealing with them. However, that requires independent discussion. If the fundamentals look promising,
then serious consideration can be given to the details.
61
This is not tantamount to endorsing particularity (or the particularity requirement as a success
condition of a theory of authority) as there is no asserted moral presumption in favor of my compatriots.
62
Alexander, All or Nothing at All?: The Intentions of Authorities and the Authority of Intentions.
63
Though Enoch does not generalize to political authority, see Enoch, Authority and ReasonGiving. See also, Perry, Political Authority and Political Obligation.
ANTHONY R. REEVES
65
See, for example, Robert Paul Wolff, In Defense of Anarchism (New York: Harper & Row, 1970), 6.
In distinguishing authority from persuasive argument, Wolff says, authority resides in persons; they
possess it if indeed they do at all by virtue of who they are and not by virtue of what they
command.
ANTHONY R. REEVES
Perhaps unlike standard theories of political obligation, approaching the issue in this way
immunizes it from Perrys reverse entailment problem. See Perry, Political Authority and Political
Obligation.
67
Widespread, but one example is Green, The Authority of the State.
68
This is made clear, I think, by Sciaraffa in his illuminating discussion. See Stefan Sciaraffa, On
Content-Independent Reasons: Its Not in the Name, Law and Philosophy 28, no. 3 (2009). It is a
technical term introduced by Hart. For his definition, see H. L. A. Hart, Essays on Bentham (Oxford:
Oxford University Press, 1982); 254. See also, P. Marwick, Law and Content-Independent Reasons,
Oxford Journal of Legal Studies 20, no. 4 (2000).
69
Even in the core case of content-independence, the promise, the force of the promise (in my view)
for the promisor varies somewhat with the value of carrying out the conduct promised. Clearly, this
requires argument and its own discussion, which cannot be provided here. For some initial considerations, see Anthony R. Reeves, Do Judges Have an Obligation to Enforce the Law?: Moral Responsibility and Judicial Reasoning, Law and Philosophy 29, no. 2 (2010): 168172.
directives bind (in light of VPT goods). Moreover, it shows how the
directive is a reason for action for what it directs. If this is what we want
from content-independence, then this approach has it. If we want
something else, then we need to say what it is and why.
3. Not merely side-effect imposition of duty70: See Part III, Section B for
discussion of this requirement. The binding directives of my account
are not merely side-effect impositions of duties.
4. Purposive, Not Inadvertent71: The exercise of a moral power must, it is
thought, have the creation of moral obligation as its aim. As I just
argued, the content of the moral obligations generated by political
authorities does not depend on the intentions of those authorities, but
rather on the public meaning of their directives. But, perhaps, political
authorities must have had an intention, of some sort, to create an
obligation. A legislature may, though no one having read the entirety
of a bill, intend to create an obligation to abide by the bills terms. It
can be a successful authority by at least having this minimal intention.
The worry about this requirement, from the standpoint of political
authority, is that evidence for the existence of this intention will consist
solely in the publicly ascertainable facts regarding the satisfaction of the
procedural requirements for passing a bill. In fact, the actual intentions
of legislators to exercise a moral power is wholly irrelevant. If every
legislator says, if asked, that s/he did not intend to exercise a moral
power, but just stumbled in drunkenly and yelled, at the time of
voting, approve! while thinking of her/his favorite philosophical
doctrine, then the agency will have successfully (other conditions met)
exercised its moral power despite no one having an intention to do so.
If we identify intentional exercise of power with the publicly ascertainable
satisfaction of recognized procedural requirements, then my account is
highly amenable to this requirement. If we mean something like a subjective intention to exercise power on the part of a person, we ought to
abandon the requirement as a desideratum for political authority.
5. Mandatory, Non-Advisory: Authoritative reasons are not advice, they are
independent mandates to do what is directed. There are two separate
ideas here. One is that the directive is not a reason for belief, but is
itself a reason for action. The second is that the reason entails a moral
70
Edmundson also insists on this, though in terms of directness and indirectness. See, William A.
Edmundson, Political Authority, Moral Powers, and the Intrinsic Value of Obedience, Oxford Journal of
Legal Studies 30, no. 1 (2010): 183.
71
Again, widespread, but see, e.g., ibid., p. 181.
ANTHONY R. REEVES
ANTHONY R. REEVES
If a petulant child of a brutal dictator whimsically tells the minister to leave the
palace, and the dictator will unleash brutality on the masses out of anger if the
minister disobeys, then the childs command has created a moral requirement to
obey. The child has the moral power to require action, but it sounds wrong to say
that she has authority. One way of capturing this is to point out that in this case,
when the minister considers what to do, the fact that the child commanded him to
leave has no weight of its own. The danger of the dictators brutality is triggered
by the command, but the command itself drops out of the set of reasons for action.
In cases of authority the fact that it was commanded is itself a moral reason for
action, a reason that requires action unless it is canceled or outweighed.78
The challenge is to avoid having the result that the childs order is
authoritative, and explain the sense in which the command drops
out. A theory of authority developed along the above lines can say
the following. Political authority properly attaches to directives that
are good-making. Although there is a sense in which the child has
made the act of leaving the palace good, since the minister has a duty
to protect and leaving the palace is now the means for doing so, the
childs directive does not make available that good. The peoples
security was made realizable, insofar as it is realized, by the scheme
of law in place prior to the childs order. The childs order does not
render accessible a VPT good (and systemic stability is not assisted
by having the order in place for compliance). The childs order is
undoubtedly a reason for the minister, but it drops out from the
standpoint of political authority in the sense of not being the kind of
reason appropriate to the relevant normative order. It is an abuse of
authority. The kinds of reasons appropriate to a normative order are
those that are reasons because they are implicated in the production
of goods that the normative order is rightly concerned with
producing. The childs demand merely threatens those goods. It is
not, itself, an instrument to the availability of those goods.
V. CONCLUSION
ANTHONY R. REEVES
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