Legitimate Authority (Part 1)

PART I LAW AND AUTHORITY Legitimate Authority

One. The Paradoxes

There is little surprise that the notion of authority is one of the most controversial concepts found in the armoury of legal and political philosophy. Its central role in any discussion of legitimate forms of social organization and of legitimate forms of political action makes the indefinite continuation of this controversy inevitable. The immediate relevance of the problem of authority to current controversial issues makes a dispassionate study of the subject all the more difficult. But beyond these extrinsic difficulties, the study of the concept of authority has to confront two major problems of intellectual origin: the methodological problem of how to avoid confusing the various quite distinct problems involving the notion of authority and the problem of the paradoxes of authority.

The paradoxes of authority can assume different forms, but all of them concern the alleged incompatibility of authority with reason or autonomy. To be subjected to authority, it is argued, is incompatible with reason, for reason requires that one should always act on the balance of reasons of which one is aware. It is of the nature of authority that it requires submission even when one thinks that what is required is against reason. Therefore, submission to authority is irrational. Similarly the principle of autonomy entails action on one's own judgment on all moral questions. Since authority sometimes requires action against one's own judgment, it requires abandoning one's moral autonomy. Since all practical questions may involve moral considerations, all practical authority denies moral autonomy and is consequently immoral.

Arguments along these lines do not challenge the coherence of the notion of authority nor do they deny that some people are believed to have authority or actually have de facto authority. They challenge the possibility of legitimate, justified, de jure authority. Their paradoxical nature derives not from their denial of legitimate authority but from the fact that the denial is alleged to derive from the very nature of morality or from fundamental principles of rationality. Moreover the arguments challenge the legitimacy not only of political authority but of all authority over rational persons. If the very nature of authority is incompatible with the idea of morality and rationality, then those who believe in legitimate authority are not merely wrong or mistaken in one of their moral beliefs. They are committed to an irrational belief or are guilty of a fundamental misapprehension of the concept of morality or of that of authority. This gives these arguments a much greater force. They are, for example, immune from most sceptical arguments. For even if there is no way of distinguishing between right and wrong substantive moral beliefs, at least we can clarify moral concepts and establish relations of entailment and incompatibility between them. If the very concepts of morality and rationality are incompatible with that of authority, then even the sceptic will be able to know that all authority is immoral and submission to it is irrational.

Paradoxically the very force of these arguments is their weakness. Many who may be willing to accept lesser challenges to legitimate authority will be reluctant to accept this most sweeping challenge. Many who may be ready to accept that many authorities are not legitimate, even that no political authority is ever legitimate, will be deterred by the thought that no authority can ever be legitimate. Many who may be ready to concede that those who believe in the possibility of legitimate authority are wrong will shy away from the thought that they are irrational or have no idea what morality is about.

It is not my aim to examine the ways in which authority can be defended or attacked. But since the arguments on which the paradoxes are based are said to derive all their force from the analysis of the concepts of authority, morality, and rationality, their examination is relevant to any attempt to clarify the notion of authority. I am concerned here with the nature of authority. I shall try to show why the concept of authority gives rise to the apparent paradoxes and why they are merely apparent. I am not the first to try to dissolve the paradoxes, and it is not part of my brief that all previous attempts to do so have failed. I think, however, that the analysis that follows, even if proving a known truth, does so in a novel way, which shows both the temptation and the fallacies of the paradoxes to best advantage.

Two. A Methodological Detour

Some of the classical authors sought to explain the nature of authority by explaining the way in which people come to accept the authority of individuals or groups. Discussions of the concept were mixed with descriptions of the evolution of society, of conquests, or of social contracts. Modern authors have avoided this confusion, but discussion of the subject is still bedevilled with many methodological confusions. I shall describe briefly four of the common types of explanation and try to point to the lessons to be learned from their shortcomings.

One. The first standard explanation consists in specifying the conditions that are in fact either necessary or sufficient for holding effective de facto authority. But such explanations fail to elucidate the nature of authority in any way at all. To be sure, it is an important part of social theory to explain under what conditions people can obtain or hold authority, under what circumstances a community is likely to accept the authority of some persons. But they fail altogether to explain what these conditions are for, what it is to have authority or to be in authority.

Two. The second type of explanation attempts to elucidate the nature of authority by describing the necessary or sufficient conditions for the holding of legitimate de jure authority.

This second pattern of explanation seems more promising. According to it the concept of authority is to be explained by explaining how claims to authority can be justified. The force of such explanations is clear. They do not presuppose that claims to authority can in fact ever be justified, but merely point out how they are to be justified. On the reasonable assumption that claims to authority are a way of justifying action, it seems almost inevitable that they differ from other justifications of action by the type of justificative arguments involved. In fact this conclusion is far from inevitable. Justifying claims may differ not only in the nature of the justifying argument invoked but also in the nature of the act justified.

There is a considerable plausibility in the idea that authority is to be explained by reference to the kind of act, for example a claiming, which it justifies. We certainly need authority to perform some actions but not others, and it appears, at least prima facie, that to say that one has a certain authority is to indicate that one could be either justified or capable of doing certain actions, without committing oneself in any way as to the nature of that justification.

Here lies the major problem of justificative analyses of authority. None has so far succeeded in delineating the type of argument invocation of which is tantamount to a claim of authority. The fact that there are many different types of authority concerned with virtually every sphere of human activity makes one inclined to give up hope that such a delineation is possible. We can exemplify this difficulty by considering an interesting attempt made recently to provide a justificative analysis of authority. Richard Tuck has suggested that citations of political authority are statements designed to kill criticism of a political action but are not authentic justifications. They are based on the claim that one the action proposed or performed is right if somebody performs it; two it is neither right nor wrong that the person for whom authority is claimed should be that somebody; three that person in fact performed the action or proposes to do so.

Many will share Tuck's belief that nobody has a right to a position of political authority and that the only way to justify political authority is by the use of arguments of the type he outlines. But we all know that various writers have thought that some people are by nature slaves and that those who are by nature free have authority over them. Others have believed in the Divine Right of kings, and there are and were other theories asserting that some people have a right and a duty by nature or by reason to rule. Such people, let us assume, are wrong. But are they also guilty of misusing language, as Tuck's approach suggests? Is the mistake one of moral and political theory, or is it also a mistake about the meaning of words, about the concept of authority?

All other justificative explanations have to overcome the same difficulty. It is not enough to establish that only arguments of a certain type can justify authority. One has to show that claiming authority on any other grounds is a misuse of language.

The criticism of the first two patterns of explanation points to a clear lesson: the analysis of authority cannot consist exclusively of an elucidation of the conditions under which one has either legitimate or effective authority. It must explain what one has when one has authority. This strongly suggests that authority is an ability to perform certain kinds of action. The analysis I have proposed here is meant to vindicate this suggestion.

Three. One popular theory that regards authority as ability to perform certain kinds of action identifies effective (de facto) authority with power over people. I shall suggest later that to have authority over people is to have normative power. But it is a different notion of power that is involved here. According to it to have power is to have influence, to be able to influence people's actions and their fortunes. A person has effective authority if he is powerful, if he can influence people's fate and their choices or options. Legitimate authority can then be defined as justified effective authority. It is effective authority that should be preserved or obeyed (subject to various conditions and qualifications).

For several reasons, however, it seems that such theories put the cart before the horse. The notion of legitimate authority is in fact the primary one. For one thing not all legitimate authority is effective. Besides, the notion of effective authority cannot be explained except by reference to legitimate authority. Several considerations should be borne in mind.

Though our concern is with practical rather than theoretical authority, an analysis maximizing the similarities between authority for action and authority for belief is, other things being equal, preferable. It seems clear that scientific genius can go unrecognized and that a man who is in fact the greatest authority in a certain field may have very little influence over people's research or their beliefs on issues within his competence.

Parents have authority over their children regardless of whether their children actually acknowledge their authority. Admittedly parental authority is usually recognized by other adults, but that is the wrong sort of recognition from the point of view of a recognition theory, which holds that it is recognition by the subjects that matters. Parental authority does not depend on recognition.

If theoretical authority does not entail recognition or enforcement, then there must be at least some cases of practical authority that also do not entail recognition or enforcement. There are practical authorities whose authority is based entirely on their being theoretical authorities: an expert doctor is an authority not only on the causes of illness but also on their cures. There are experts on the stock exchange and experts on navigation and many others who are authorities for action in their field even though their authority may be unrecognized and unenforced.

I share the belief that a legitimate political authority is of necessity effective at least to a degree. But this is a result of substantive political principles (e.g. that one of the main justifications for having a political authority is its usefulness in securing social coordination, and that knowledge and expertise do not give one a right to govern and play only a subordinate role in the justification of political authority). It is not entailed by a conceptual analysis of the notion of authority, not even by that of the concept of political authority.

The analysis of legitimate authority is not by itself sufficient to explain our notion of authority. A complete account must include an analysis of effective authority as well. Having argued that the notion of legitimate authority does not presuppose that of effective authority, it may be worth pointing out that the reverse is not true. The notion of legitimate authority is presupposed by that of effective authority. A person needs more than power (as influence) to have de facto authority. He must either claim that he has legitimate authority or be held by others to have legitimate authority. There is an important difference, for example, between the brute use of force to get one's way and the same done with a claim of right. Only the latter can qualify as an effective or de facto authority. But this is a problem that cannot be explored here.

Four. Some people hold that authority must be defined by reference to rules: that a person has authority means that there is a system of rules, which confers authority on him. This mode of explanation is in fact a variant of the first and second patterns of explanation and is open to the same basic objection. It substitutes a claim as to when people have authority for a proper explanation of what it is to have authority. It states that people have authority only when it is conferred on them by some rules. But it does not provide any means of deciding which rules confer authority and which do not. Some rules will, it is true, confer authority quite explicitly. They have authoritative, binding formulations (enacted rules), and their authoritative formulations specify that they confer authority on a certain person. But the proposed definition does nothing to illuminate their meaning and effect.

The claim that all authority is conferred by rules is itself debatable. It is difficult to maintain that when a member of the public assumes authority in an emergency (for example, a fire in a theatre) his authority derives from any rules. It is not, however, my purpose here to discuss the ways authority can be acquired or defended. There are other objections to definitions of this type. Unless properly qualified they entail contradictions. If there are two systems of rules according to one of which a certain person has authority whereas according to the other he does not, then he both has and does not have authority. To avoid such a contradiction the proposed definition must be relativized. It cannot be taken to be a definition of having authority but of the relativized notion of having authority according to s where s is some system of rules. The relativized notion of authority, however, severs the connection between authority and practical reason.

Authority is a practical concept. This means that questions of who has authority over whom are practical questions; they bear on what one ought to do. In other words statements that some persons have authority may serve as premisses in practical inferences. The explanation of authority must explain the practical import of the concept. It must explain how it is capable of figuring in practical inferences.

What one ought to do depends on who has authority in a non-relativized sense. That a person has authority according to some system of rules is, in itself, of no practical relevance. Just as one can draw no conclusions as to what ought to be done from the fact that according to a certain person authority is vested in Parliament, so one cannot draw any such conclusions from the mere fact that according to some rules authority is vested in Parliament. Certain further assumptions may entail that if according to someone Parliament has authority, then Parliament does have authority. Similarly, further assumptions may allow a move from a statement of authority according to some rules to a non-relativized statement of authority. It would be a mistake, however, to build those further conditions into one's definition of 'authority according to some rules' so as to make the move to a non-relativized statement of authority always possible. The whole purpose of talk of relativized authority is to block the possibility of such a move, unless further assumptions are available. We need such a device to be able to talk of the views of other people about authority,