Cambridge Legal Theory Discussion Group: 'Because "they said so"? Deliberation, justification, and the concept(s) of authority'

Speaker: Julieta A. Rábanos

Abstract

The concept of authority has been treated and discussed, in the last decades, almost exclusively as a reason-based concept within a wider framework that considers jurisprudence only through the lens of practical reasoning. The aim of this paper is to analyse the adequacy of reason-based concepts of authority, using Raz’s and Finnis’ proposals as representative cases. It will be argued that, on the one hand, they cannot be taken as saying something about the context of deliberation because they are based on a non-completely adequate, hyperrationalist model of human action and decision. On the other hand, if they can only say something about the context of justification, then they don’t allow to truly differentiate between conforming and compliance, an alleged key distinction for the concept of authority. It would then follow that there is no additional benefit in using a reason-based concept than a non-reason-based one. Finally, even if these problems could be overruled, some consequences of using reason-based concepts of authority are unfortunate: they overlook some treats of law as a social practice, and they transform the central case of “authority” as either the case of a minority or the case of fiction.

Sessions are pre-read and the paper is available on Dropbox.