On Monday, 15 June, 12:30-2:30pm UK time (in the Law Library, and online on Teams by clicking here, Barbara Levenbook (NC State) – will give an SCLP seminar titled “Rethinking Legal Authority”. You can find the paper clicking here (pre-reading strongly recommended. The abstract is in below.

Abstract

“Rethinking Legal Authority”

In this paper, I am going to focus on what legal authority is not and what the challenge to justifying legal authority is not. No philosophical discussion of legal authority can advance without considering how to understand authority. My contention in the first part of this paper is that the mainstream conception of authority is incorrect. I am not the first person to make this assertion. Some of the recent criticism has focused on international authority, non-governmental actors, and non-natural actors such as AI. In this paper, I will stick fairly closely to the classic subject: the authority of governmental actors (composed of or staffed by natural persons) in national jurisdictions. (I will, however, deviate from the classic discussion in turning to legal products alleged to be authoritative.)

The mainstream conception of authority has focused on only one aspect of legal authority: the issuing of mandatory dictates. When we look at other aspects, familiar claims about authority – about, in particular, necessary conditions of it — prove to be largely dubious. It follows that one of the traditionally alleged sources of the difficulty of justifying legal authority – the (almost always partial) analysis of authority –is wrongly conceived.

The second part of this paper is devoted to defending the view that the other traditionally alleged source of the difficulty – autonomy – is also wrongly conceived. That thesis is also hardly new; but I hope to provide some fresh reasons (or, more accurately, to remind us of familiar reasons) to support it.