Political legitimacy is a virtue of political institutions and of the decisions—about laws, policies, and candidates for political office—made within them. This entry will survey the main answers that have been given to the following questions. First, how should legitimacy be defined? Is it primarily a descriptive or a normative concept? If legitimacy is understood normatively, what does it entail? Some associate legitimacy with the justification of coercive power and with the creation of political authority. Others associate it with the (...) justification, or at least the sanctioning, of existing political authority. Authority stands for a right to rule—a right to issue commands and, possibly, to enforce these commands using coercive power. An additional question is whether legitimate political authority is understood to entail political obligations or not. Most people probably think it does. But some think that the moral obligation to obey political authority can be separated from an account of legitimate authority, or at least that such obligations arise only if further conditions hold. (shrink)

This chapter discusses two different issues about the relationship between legal positivism and robust normativity (understood as the most authoritative kind of normativity to which we appeal). First, the chapter argues that, in many contexts when discussing “legal positivism” and “legal antipositivism”, the discussion should be shifted from whether legal facts are ultimately partly grounded in moral facts to whether they are ultimately partly grounded in robustly normative facts. Second, the chapter explores an important difference within the kinds of arguments (...) that legal philosophers give for the (purported) truth of legal positivism. The difference concerns whether (purportedly) robustly normative facts are appealed to as premises in those arguments or not. (A closely connected issue is whether (purportedly) normative facts that bear one or more important connections to robustly normative facts are appealed to in premises to those arguments.) The chapter argues that thinking about this dividing line helps people better situate the positivist/antipositivist dispute, better understand the space of views in legal philosophy, better evaluate those views, and avoid having merely verbal disputes. (shrink)

International law’s legitimacy has come under serious attack lately, including, and maybe even more so, in regimes considered democratic. Reading Dworkin’s New Philosophy for International Law in the current context is a timely reminder of the centrality of the political legitimacy of international law. Interestingly, indeed, his account does not succumb to the (however progressive) cosmopolitan ideal of an international political community. Nor is it reducible to a concern for domestic justice in which political legitimacy is only self-regarding. By revisiting (...) seventeenth century international legal theories, Dworkin sends both cosmopolitans and statists back-to-back. He (re-)discovers a third way in which to conceive of statehood today: not on its own, but in a mirror-image fashion and against the background of the international institutional order without which there would be no equal sovereign States, but no individual equality either. Carrying Dworkin’s argument forward, this article identifies and discusses three of its crucial contributions with respect to the objects, subjects and institutions of international legitimacy that deserve further attention. It concludes with different proposals regarding the design and organization of other international institutions than States, both public and private, by reference to their relationship to States (and their people). According to Dworkin, this should enable us to improve not only the legitimacy of the international institutional order as whole, but also the political legitimacy of each State therein since both are mutually related. (shrink)

This chapter considers whether legal requirements can constitute reasons for action independently of the merits of the requirement at hand. While jurisprudential opinion on this question is far from uniform, sceptical views are becoming increasingly dominant. Such views typically contend that, while the law can be indicative of pre-existing reasons, or can trigger pre-existing reasons into operation, it cannot constitute new reasons. This chapter offers support to a somewhat less sceptical position, according to which the fact that a legal requirement (...) has been issued can be a reason for action, yet one that is underpinned by bedrock values which law is apt to serve. Notions discussed here include a value-based conception of reasons as facts ; a distinction between complete and incomplete reasons ; and David Enoch’s idea of triggering reason-giving. Following a discussion of criticism against the view adopted here, the chapter concludes by considering some more ‘robust’ conceptions of law’s reason-giving capacity. (shrink)

Many argue that absolutist moral theories -- those that prohibit particular kinds of actions or trade-offs under all circumstances -- cannot adequately account for the permissibility of risky actions. In this dissertation, I defend various versions of absolutism against this critique, using overlooked resources from formal decision theory. Against the prevailing view, I argue that almost all absolutist moral theories can give systematic and plausible verdicts about what to do in risky cases. In doing so, I show that critics have (...) overlooked: (1) the fact that absolutist theories -- and moral theories, more generally -- underdetermine their formal decision-theoretic representations; (2) that decision theories themselves can be generalised to better accommodate distinctively absolutist commitments. Overall, this dissertation demonstrates that we can navigate a risky world without compromising our moral commitments. (shrink)

One of the central debates in legal philosophy is the debate over legal positivism. Roughly, positivists say that law is ultimately grounded in social facts alone, whereas antipositivists say it is ultimately grounded in both social facts and moral facts. In this paper, I argue that philosophers involved in the dispute over legal positivism sometimes employ distinct concepts when they use the term “law” and pick out different things in the world using these concepts. Because of this, what positivists say (...) might well then be true of one thing (e.g., law1) but false of another (e.g., law2). Accepting this thesis does not mean that the philosophers engaged in this dispute are “talking past each other” or engaged in a “merely verbal dispute” that lacks substance. I argue that participants in this dispute are sometimes arguing about what they should mean by the word “law” in the context at hand. This involves putting forward competing proposals about which concept the word “law” should be used to express. This is an issue in what I call “conceptual ethics.” This argument in conceptual ethics can be well worth having, given the connotations that the term “law” plays in many contexts, ranging from legal argument to political philosophy to social-scientific inquiry. Sometimes, I claim, philosophers (and ordinary speakers) engage in such argument tacitly by competing “metalinguistic” usages of the term “law”—usages of the term that express a view (in this case, a normative view) about the meaning of the word itself. In such cases, speakers on different sides of the positivism debate might in fact both speak truly, in terms of the literal (semantic) content of what they both say. Nonetheless, they may disagree in virtue of views in conceptual ethics about “law” that they express through the nonliteral content of what they say. These views in conceptual ethics often reflect further disagreements about issues that are not ultimately about words or concepts. These include foundational ones in ethics and politics about how we should live and what kind of institutions should govern our lives. My metalinguistic account of the dispute over legal positivism better equips us to identify what such issues are and to engage them more fruitfully. (shrink)

Speech and thought about what the law is commonly function in practical ways, to guide or assess behavior. These functions have often been seen as problematic for legal positivism in the tradition of H.L.A. Hart. One recent response is to advance an expressivist analysis of legal statements (Toh), which faces its own, familiar problems. This paper advances a rival, positivist-friendly account of legal statements which we call “quasi-expressivist”, explicitly modeled after Finlay’s metaethical theory of moral statements. This consists in a (...) descriptivist, “rule-relational” semantics combined with a pragmatic account of the expressive and practical functions of legal discourse. We argue that this approach is at least as well-equipped as expressivism to explain the motivational and prescriptive features of “internal” legal statements, as well as a fundamental kind of legal disagreement, while being better positioned to account for various “external” uses of the same language. We develop this theory in a Hartian framework, and in the final part of the paper argue (particularly against Toh’s expressivist interpretation) that Hart’s own views in The Concept of Law are best reconstructed along such quasi-expressivist lines. (shrink)

I argue for a new conception of practical authority based on an analysis of the relationship between authority and subject. Commands entail a demand for practical deference, which establishes a relationship of hierarchy and vulnerability that involves a variety of signals and commitments. In order for these signals and commitments to be justified, the subject must be under a preexisting duty, the authority’s commands must take precedence over the subject’s judgment regarding fulfillment of that duty, the authority must accept the (...) position and responsibilities of command, and the authority must be sufficiently trustworthy relative to how vulnerable the subject makes herself by deferring. This results in an instrumentalist conception of practical authority that can be favorably compared to Joseph Raz’s famous service conception. The relational conception’s main advantage is that it focuses on the authority as much as the subject, requiring that the authority accept responsibility for the relationship and be sufficiently trustworthy. (shrink)

Authority consists in having standing to make a claim on another person’s actions. Authority comes in degrees: persons have the authority to make moral demands on each other, but if they participate in close relationships, such as friendships or love relationships, their authority over each other is greater, compared to the authority of strangers to make demands, as participants in personal relationships can demand more from each other than can strangers. This paper discusses the phenomenon of a relationship-dependent greater authority (...) on a conceptual level. It thereby fills a gap in the literature on the proper theory of authority : while being a common part of our moral practice, relationship-dependent authority has mostly been neglected in this context. It is even doubtful whether the most influential contemporary accounts of authority can accommodate it. As will be argued, neither Joseph Raz’s service conception nor Stephen Darwall’s second - personal conception of authority are able to. The trig. (shrink)

A key focus in many debates surrounding the harm in hate speech centres on the subordinating impact hate speech has on its victims. Under such a view, and provided there exists a requisite level of speaker authority a particular speech situation, hate speech can be conceived as something which directly impact’s the victim’s status, and can be contrasted to the view that such speech merely expresses hateful ideas. Missing from these conceptions, however, are the ways in which intersubjective, recognition-sensitive relations (...) influence the kind of harm likely to result from such an act. Understanding the central role of first-person experience is crucial, as, while a victim may have little influence in how their social status is impacted by such an act, the possibility for ‘speaking back’ requires that individuals are equipped with the conditions necessary to reject the authority claims of the speaker. On such a view, this paper aims to use this feature of intersubjectivity to explore the potential ways in which an act of hate speech can be ‘robbed’ of some of its harm by having its authority claims rejected by the victim. Utilizing this enhanced understanding, I reflect upon one particular real-world example of hate speech, in which the target rejects the status-undermining claims made upon her. In the last section, I propose a general institutional outlook aimed towards aiding would-be victims of hate speech to respond to such attempts at normative authority exertion. (shrink)

Many of us believe that we can and do have individual obligations to refrain from contributing to massive collective harms – say, from producing luxury greenhouse gas (GHG) emissions; however, our individual actions are so small as to be practically meaningless. Can we then, justify the intuition that we ought to refrain? In this paper, we argue that this debate may have been mis-framed. Rather than investigating whether or not we have obligations to refrain from contributing to collective action, perhaps (...) we should ask whether we have reason to do so. However, this framing brings challenges of its own, and so we close by asking what problems are generated if we focus on these questions of ‘contributory ethics’. (shrink)

Normative literature on the Catalan crisis is largely occupied with the conflict’s central legalistic problem: can political units like Catalonia be allowed to split off from Spain unilaterally? This article reframes the issue and asks why secessionist Catalans should ever abide by Spanish legal constraints, given that Spanish law is precisely the institution they are politically trying to get rid of. It focuses on the anti-secessionist role played by the Spanish Constitutional Court between 2010 and 2017 and studies three arguments (...) why Catalans supposedly have to accept the Court’s authority. The article contends that two arguments—the “mutual benefit argument” and the “law and democracy” argument—will not be independently persuasive to Catalan secessionists. Instead, the Constitutional Court’s authority must ultimately be grounded in a different type of argument: the “law and order argument.” Secessionist Catalans’ supposed duty to obey the orders of the Constitutional Court is ultimately not rooted in a positive service provided by the Court, but in the disruptive effects of disobeying. That exposes an explanatory defect in Joseph Raz’s influential theory of authority, which seeks to ground authority exercises in a concept in prior reason or their capacity to make our life better. That conceptualization misses the key decisionistic element to political authority: its capacity to constitute our reasons, that is, to define the terms that give meaning to our evaluations. (shrink)

Authority is a normative power to create duties in others. The most plausible accounts of this general power relate it to existing reasons the subjects of authority have with which authoritative directives can help them comply. Such accounts lead some theorists to ascribe a morally ambitious function to political institutions. This article argues against such theories. It defends political authority as a modest normative power, constrained by the type of reasons with which it can help its subjects comply. This modest (...) account differs from other liberal views in the limits it imposes on the exercise of political authority. It casts doubt on familiar limits that protect an individual private sphere. Instead, it imposes a condition of moderation. It suggests that legitimate exercises of political authority should leave space for individuals to be motivated by reasons that political institutions do not and should not mediate for them. (shrink)

How could one person justifiably create reasons for another? This article reissues this familiar ‘standing’ objection to authority, to demonstrate the structural contribution of recognition to both the idea of authority and its justification. Drawing upon theories of recognition of reasons and persons, it argues that authority must be robustly recognised, not merely identified, by both its subjects and its claimants. Such recognition operates in either roles or relations of authority to make a subject’s relevant reasons for action an authority’s (...) business. By transmitting reasons between persons on both sides of roles or relations, recognition does the connective work that is necessary to distinguish the idea of authority from other concepts of control, while structuring its justification to require both standing between persons and standards in accordance with reasons. Without the connection between persons and transmission of reasons that comes through robust recognition, one’s power over another is both claimed and received not as authority, but as coercion or persuasion; the claim itself entails meddling with (rather than serving) subjects. (shrink)

Joseph Raz’s theory of authority has become influential among moral, political, and legal philosophers. This article will provide an overview and accessible explanation of the theory, guiding those coming to it for the first time as to its theoretical ambitions within the wider issues of authority, and through its intricacies. I first situate the theory among philosophical examinations of authority, and then explain the theory itself in detail.

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, it is a (...) normative theory of legal reasoning for particular social circumstances. The approach is, somewhat like Raz’s influential account, instrumental in character. Yet, it denies that the morally binding legal norms are, in whole or part, exclusionary reasons for the responsible subject. Law’s instrumentality must be given an alternative characterization. (shrink)

Authority figures permeate our daily lives, particularly, our political lives. What makes authority legitimate? The current debates about the legitimacy of authority are characterised by two opposing strategies. The first establish the legitimacy of authority on the basis of the content of the authority’s command. That is, if the content of the commands meet some independent normative standard then they are legitimate. However, there have been many recent criticisms of this strategy which focus on a particular shortcoming – namely, its (...) seeming inability to account for who can legitimately command whom. This is the basis of the second strategy, which attempts to characterize the normative relationship that underlies and makes possible authoritative commands. The central point of Part I is that these two strategies are, in fact, not opposed and both raise questions which a theory of legitimacy must answer. If this is the case, then we need to ask: how ought we to determine the legitimacy both of the content of commands as well as who can command whom? Part II will answer this question. Starting with the question of standing, I argue that we ought not to look for normative principles outside of the institutions in which authority is embedded. Rather, one ought to start by elaborating the ontology of institutions in which a sui generis form of normativity arises. A joint commitment account of social ontology provides the tools necessary to see how the direction obligations emerge concurrently with the formation of institutions. Similarly, the question of content can be answered by paying close attention to the social ontology of institutions. We need not look beyond the internal constitutive standards of the institution itself. The constitutive standards provide an internal criterion by which the legitimacy of commands can be established. (shrink)

Journal of Political Philosophy, EarlyView.

Imagine a citizen (call her Ellen) engages in conduct the state says is a crime, for example, money laundering. Imagine too that the state of which Ellen is a citizen has decided to make money laundering a crime. Does the state wrong Ellen when it punishes her for money laundering? It depends on what you think about the authority of the criminal law. Most criminal law scholars would probably say that the criminal law as such has no authority. Whatever authority (...) is has depends on how well it adheres to the demands of morality inasmuch as morality is the only authority we have. Thus if morality says that money laundering should not be a crime then the state wrongs Ellen when it punishes her. But if the criminal law as such does have authority, and if in the exercise of its authority the state has decided to make money laundering a crime, then the state does Ellen no wrong when it punishes her. (shrink)

Prominent normative theories for accommodating minority national groups appeal to the value of national cultures and/or the psychology of group recognition. This article aims to show that an argument from political authority provides a better justification. Building on Joseph Raz's theory of authority, the article argues that members of minority national groups are disadvantaged in relation to their majority counterparts under standard democratic institutions; such institutions do not provide minority national groups with comparable access to the conditions for legitimate political (...) authority. Constitutional arrangements for accommodating minority national groups—such as territorial self-government or power-sharing—are justified insofar as they might offset this disadvantage. (shrink)

International and domestic law offer a study in contrasts: States' legal obligations often depend on their consent to specific international legal norms, whereas domestic law applies to individuals with or without their consent; enforcement in international law is weak and, for many international treaties, non‐existent, whereas states spend considerable resources to create centralized coercive enforcement mechanisms; and international law is characterized by much less institutional differentiation and specialization of functions than domestic legal systems are. These differences have invited a number (...) of skeptical challenges to international law, 3 of which we explore in this essay. The first points to 1 or more of the deviations of international law's institutional structure from that of a modern state's legal system as a basis for denying that international law is really “law.” Central to the debates over international law's status as law are concerns about whether and why the concepts of law inherited from domestic legal systems should serve as the blueprint for theorizing law in general and international law in particular. The second skeptical challenge targets international law's legitimacy. It claims that we lack reasons to treat international legal norms or the exercise of political power by international institutions, as anything other than an attempt by states to advance their national interests. If this challenge succeeds, states and other subjects of international law have merely prudential reasons to comply with it rather than a moral duty to obey it. Following a brief description of recent debates over how we ought to understand the concept of legitimacy when used to assess international political practices or global governance, we survey several possible bases for a moral duty to obey or respect international law. These include state consent, instrumental accounts of legitimate authority, and global democracy. The third set of challenges focuses on the relationship between state sovereignty and international law. International rules and institutions often make demands for reform affecting the domestic law of a state in order to elicit compliance with international law. Skeptics argue that the rule of international law is incompatible with states' political self‐determination. Regardless of whether their defense of this claim ultimately succeeds, thoughtful engagement with it may well require us to rethink some of the fundamental concepts and normative ideals in political philosophy, including state sovereignty, democracy, individual rights, political authority, and political obligation. (shrink)

Joseph Raz famously argues that given that the law necessarily claims authority and given the account of authority he provides, exclusive legal positivism is the only tenable theory of law. In this article, I contend that even if one accepts that the law necessarily claims authority and that Raz's account of authority is correct, it does not follow that exclusive legal positivism is the only tenable theory of law. This is because even if the law necessarily claims authority, it need (...) not be capable of satisfying the requirements for possessing authority laid down by the correct account of authority. Thus, even if exclusive legal positivism is the only theory of law according to which the law can satisfy those requirements, this does not show that exclusive legal positivism is correct. (shrink)