Practical Reason and Legality

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Practical Reason and Legality: Instrumental Political Authority without Exclusion* Law and Philosophy, Volume 34, Issue 3, 257-298 Available at Springer Online: http://link.springer.com/article/10.1007/s10982-014-9221-x Anthony R. Reeves Binghamton University (SUNY) Department of Philosophy PO Box 6000 Binghamton, NY 13902-6000 [email protected] 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 (in fact) bound by that norm?

Moreover, in such circumstances, what is the extent and character of law’s binding-ness?

Here, I defend 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 (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 legality’s normativity in typical human circumstances that improves upon,

and avoids important shortcomings of, existing approaches. I will briefly preface points

* I am grateful to Daniel Koltonski, Candice Delmas, David Lyons, Jamie Kelly, Uwe Steinhoff, Jiafeng Zhu, Marcus Arvan, Robert Jubb, and two anonymous reviewers for this journal for comments on earlier drafts of this paper.

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to be developed. Like Raz’s influential account,1 my approach is instrumental, in that

practical reason’s 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 Raz’s

characterization of law’s instrumentality, especially one of the theory’s 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

legality’s 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 one’s moral obligations.3 Although I

1 See, for instance, Joseph Raz, The Morality of Freedom (Oxford: Oxford University Press, 1986), 23-‐105. 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), 293-‐343; Ronald Dworkin, Law's Empire (Cambridge, MA: Harvard University Press, 1986), 176-‐224; 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), 231-‐59. 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 Perry’s inclusion of intention as an element of political authority.

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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 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.

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 Marmor’s 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).


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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,” 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

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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 question is one of political authority, and that my approach succeeds

in the domain of the political.

I should say a word on my organization. Exhibiting and refining the success

conditions might seem more naturally preliminary than an appendix to an argument that a

certain kind of account could succeed. Frequently so, but here the account serves as part

of the assessment of proposed success conditions. Displaying a central normative

capacity of law (i.e., one way it does bind) can articulate a critical standpoint from which

to consider adequacy conditions for a theory of authority – even if the account, as

offering the rudiments of a theory of authority, is properly assessed in terms of those


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conditions. This should not seem paradoxical from the standpoint of reflective

equilibrium. If an approach can be shown to be otherwise attractive, we can ask why we

should want more? What would we gain theoretically (or practically)? The aims of the

paper are twofold, then. First, to defend a view of the moral authority of law that is

practically informative in non-ideal circumstances. Second, to advance our capacity to

assess theorizing about political authority.

I. Definitions and Background

Authority is the moral power to require action, i.e., the power to modify moral

obligations. Many have suggested it is much besides, but for now I simply speak of the

power to create moral obligations (as opposed, e.g., to prudential reasons). Legitimacy

concerns the use of force, power, and coercion. When the use of force (or its threatened

use) is morally permissible, it is legitimate.6 Many writers use “legitimate authority” to

refer to a claimant of authority that actually has authority, but I will refer to such a

claimant as an authority. The right to rule, though occasionally used interchangeably

with one or both of the above, will be understood to refer to a justified claim right to

sovereignty – a moral right to be sovereign. The people of a despotic state may have a

right to rule, but without official organs and institutions for expressing their will, and

without de facto authority, they have neither authority nor legitimacy. The despot,

though perhaps violating his people’s right to rule (by not, e.g., facilitating their transition

to sovereignty), may have authority and legitimacy, at least with regards to certain

domains (e.g., contract law). This is not to suggest that justified sovereignty can have no 6 This is in the spirit of Wellman’s distinction between legitimacy and political obligation in Christopher Heath Wellman, "Liberalism, Samaritanism, and Political Legitimacy," Philosophy and Public Affairs 25, no. 3 (1996).

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effect on the extent of the sovereign’s authority and legitimacy, but how so is a moral

question that will depend upon the substantive theories of authority and legitimacy.7

To bind, in general, is to make less free in the specific sense of constricting the

scope of otherwise operative discretion. It is to introduce a constraint on action reducing

discretion. Eliminate the constraint, and thereby increase the freedom. Norms,

commands, directives, and orders are binding when one is less free to act otherwise than

the norm (e.g.) directs than one would be absent the norm. These phenomena can bind in

at least two senses. First, they can bind prudentially, by relating to one’s interests –

frequently by being conjoined with a threat, such that it is prima facie practically

unreasonable not to comply. A gunman orders me to hand over the money, and I am

made less free, purely in terms of my own perceived interests, by the order. The order

renders acting otherwise imprudent. A tax law directs me to pay a percentage of my

income, attaches a penalty to non-compliance, and my freedom is reduced. Legal and

political philosophers have had much interest in this kind of binding,8 and legitimately so,

but it is not the sense of concern here. A second way in which these phenomena can bind

is by making it pro tanto irresponsible for me to act otherwise than is directed. I assume

we have natural duties to others, e.g., to keep promises. If I promise to babysit for a

friend (who is mostly powerless to threaten my interests), and he directs me to put his

daughter to bed at eight, then I am bound by his directive to do so. I have less discretion

than I would absent the directive. Without it, it may not have been irresponsible to put

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, 240-‐41. 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), 9-‐33.


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her to bed at nine. Also, although I may have had other reason to put her to bed at eight

(perhaps it is an ideal bedtime for her), the directive makes it more irresponsible for me

to act otherwise. I will refer to this second type of binding as “morally binding.”

How can a positive law be morally binding? It is unlikely to be merely in virtue

of the properties that make law, law, i.e., merely in virtue of its legality. Most legal

philosophers agree that legal validity does not, by itself, imply a moral reason to obey.9

More plainly, it is possible to have a law that no one has moral reason to comply with,

i.e., a moral reason to act as it demands because it is law.10 We will have to introduce

independent moral considerations to show how and when the fact of legality can make a

norm morally binding.

Importantly, however, a legal norm’s mere reproduction of a moral standard

whose satisfaction conditions are effable without the law’s mediation is insufficient for it

to be binding in virtue of its status as law. We are certainly bound to act in accordance

with a law prohibiting murder, but we are so bound absent the law. Moreover, what it

would mean to satisfy the moral standard against murderous violence can be articulated

without the assistance of this simple legal prohibition. To show that the fact of the

norm’s legality ought matter to practical reason, we would have to demonstrate some

additional moral significance that attaches to legality. One method of doing so is to posit

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), 1-‐60. Ronald Dworkin’s theory of law may be an exception, though this is unclear. See Dworkin, Law's Empire, 101-‐13. 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 false…all 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 ϕ and yet you do not thereby acquire a reason to ϕ.” David Enoch, "Reason-‐Giving and the Law," Oxford Studies in Philosophy of Law 1 (2011): 20.

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general political obligations, and another is to indicate some function that legality

performs. On the theory I develop, legal norms of non-ideal systems that merely state

independently effable satisfaction conditions of moral requirements are not binding.11

Independent effability obtains when a particular course of action needed to satisfy a moral

requirement (by a person the requirement applies to in a particular circumstance) can be

articulated without the assistance of the semantic content of existing positive norms.

Independent effability fails to obtain for a particular satisfaction condition when that

condition cannot be articulated without such assistance. Independent effability, then, is a

feature of the satisfaction conditions of moral requirements for individuals in particular

circumstances. I offer several examples of moral requirements that normally have non-

independently effable satisfaction conditions below, but one type of such duty is to

maintain a safe interactive environment, e.g., to avoid driving negligently. Once we have

positive norms effectively coordinating careful conduct and regulating the rules of the

road, I cannot articulate the content of my duty of care with respect to others (i.e., what it

actually requires of me) without relying on the positive norms operative in my particular

driving environment.12 If there were only one law that merely demanded “act safely,”

and no other relevant conventions, then “act safely” would be independently effable, and

the law would not (on my approach) bind. The satisfaction conditions for my moral duty

of care could be articulated without the law, and no posited normative device would

assist with the articulation of those conditions.13

11 Though, given the right conditions, they can be legitimately enforced. 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 I’m grateful for an anonymous reviewer’s comments in clarifying this idea.

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Theories of political obligation standardly attempt to show how independent

moral requirements make the fact of a law an obligation to do what it demands.14 They

contend that the moral requirements of consent, fairness, common association,

samaritanism, gratitude, or justice (to name several), in decently just polities, imply that

one has a defeasible, general, special, and (often) generic obligation to obey the law

because it is the law.15 It is frequently thought that the problem of political obligation is

equivalent to the problem of law’s moral authority, such that showing that the law of a

polity is authoritative requires substantiating an applicable theory of political obligation,

and that substantiating such a theory is normally sufficient for showing that law is

authoritative.16 One way to think about such theories is that they attempt to substantiate a

general moral tie on the part of subjects to the law-making facts (or some broad subset of

them) of their effective legal system. If we substantiate that I have a special moral tie to

whatever facts render some standards legal and others not, then we will have explained

14 One possible exception to this is Gilbert’s 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 Gilbert’s 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 Gilbert’s 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): 260-‐61. 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.

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how the legal system can modify my moral obligations by making standards legal – we

will have explained its moral power to require action. Articulated in terms of one

influential strand of legal positivism, a theory of political obligation attempts to

substantiate a special moral tie to the rule of recognition such that one is bound by the

norms that the rule recognizes as valid.17 One’s obligation to obey a particular law, then,

is a feature of this general tie.18

Another approach to explaining how law can bind is to identify conditions that

may obtain only occasionally (even in a basically just legal system), but make the legality

of a norm the source of the norm’s binding-ness when those conditions are met. Joseph

Raz’s theory of practical authority takes this approach.19 On Raz’s view, a legal norm is

morally binding when one will better comply with some set of reasons that apply to

oneself by following the norm than one would by considering those reasons in the set

directly.20 Raz contends that this can occur in a number of ways, including when a norm

facilitates coordination,21 but it is perhaps clearest in cases where the agency issuing the

directive is epistemically better situated to appreciate the relevant reasons. If an expert

agency, with the aim of preventing the spread of invasive species, issues a directive that

one clean watercraft in a particular way before launching in certain waters, and one is not

an ecologist, then one is probably bound by the directive in light of the reasons one has

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. 19 Consider Raz’s denial of a general obligation in Joseph Raz, The Authority of Law: Essays on Law and Morality (Oxford: Clarendon Press, 1979), 233-‐49. 20 The Morality of Freedom, 38-‐69. 21 See ibid., 70-‐80.

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not to contribute to ecological degradation. Considering these reasons independently of

the directive will normally lead one to conform less well to them, and hence the law

binds by virtue of its service to the subject in assisting her in doing what she ought. This

is so whether the legal system as a whole is fair, just, genuinely democratic, consensual,

or constitutive of a morally important association, and it is so whether many or few other

laws of the system are binding. Law binds not by virtue of a general moral tie to legality,

but by its performance of a function on particular occasions. On Raz’s view, one would

have a (first-order) reason to act as the directive requires, and a (second-order) reason to

exclude one’s own consideration of the matter from one’s practical reasoning.

On the account I defend here, law binds occasionally, and it binds least where

morality is least in need of assistance in providing for a responsible course of action.22

In contrast to political obligation theory, I do not rely on a general, special commitment

to the law-making facts. In contrast to Raz, I do not deploy exclusionary reasons as

features of binding legal rules (in fact, I will argue against that thought), and I

characterize the service of legal authority in a markedly different way. Raz’s broad

insight that political authority is best understood as assisting subjects’ compliance with

right reason is genuine.23 Roughly, I maintain that legality’s claim on practical reason

22 And where it demands what is contrary to duty. 23 Raz’s 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), 21-‐62; 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

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resides in its service to what we naturally owe each other. However, law’s service is to

render available the objects of one’s duties by articulating a route for practical reason

that, given the circumstances, morality itself could not provide.24 Law is a reason for its

demands when it is good-making, when it makes available a good by articulating a course

of action that becomes, because of its legality, the route to the good. Law is binding, i.e.,

it limits responsible freedom, when pursuit of that end is a duty for the subject.

This approach, I contend in the next two sections, has the virtue of connecting the

value of rule by law, in particular circumstances, with the proper character of legal

reasoning. We do not need an intermediate moral story (based in the terrain of political

obligation) to demonstrate why law ought frequently shape the will into a form consistent

with law’s demands. Moreover, the approach will vividly display the limits of a non-

ideal legal system’s practical significance, both in terms of its scope (i.e., the

circumstances where it generates obligations for its subjects) and its force (i.e., how well

its obligations compete with other moral demands). Theories of political obligation tend

to set the conditions of their success quite high, such that many existing municipal legal

systems do not meet those conditions.25 Moreover, international law is unlikely to meet

(New York: Cambridge University Press, 1999); Jeremy Waldron, Law and Disagreement (Oxford: Oxford University Press, 1999), 95-‐118; 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. 25 Theories of political obligation are frequently thought to apply to existing liberal democracies. This is not always evident, though. Taking Klosko’s much discussed account, he urges that there must be a fair distribution of benefits and burdens for general political obligations grounded in fairness to obtain. It is far from clear, based on his discussion, when this condition is met. See, Klosko, The Principle of Fairness and Political Obligation, 63-‐75. Of course, as philosophical anarchists argue, political obligations may not obtain for the vast majority of earthlings. See generally, A. John Simmons, Justification and Legitimacy: Essays on Rights and Obligations

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the conditions of political obligation.26 How should the subject of law, in such

circumstances, regard legal norms? When should the responsible subject view his

discretion as constrained to accord with what a law requires by the fact of its legality?

II. Rule of Law Goods

Why do we care about law as a form of governance? Addressing this question will give

us a grip on law’s capacity to bind practical reason. Our moral concern governance by

law be realized is at least largely related to its ability to provide important goods in the

circumstances of modern human social life. How far a legal directive binds, I contend, is

tightly tied both to its provision of these goods via the public semantic content of its

directives in the circumstances of decision, and a subject’s moral relationship to these

goods.

What goods is law specially implicated in? As Hart recognized, in a social setting

marked by divergence of belief, moral sentiment, judgment, and interest, we need some

basis for settling which rules count concerning communal matters. Matters as diverse as

the boundaries of personal property, to the precise definition of a crime, must be settled

by some widely-shared understanding to be effective. A society governed merely by

unofficial customary rules requiring or forbidding conduct would face numerous

problems given social diversity, including: (1) uncertainty about which rules are to

actually regulate social affairs, (2) an inability to modify rules to reflect changing

circumstances or concerns, and (3) inefficiency in the application and enforcement of

(Cambridge: Cambridge University Press, 2001). Even if anarchists are correct about political obligations, we still need a theory of the character of responsible legal reasoning. 26 Anthony R. Reeves, "The Moral Authority of International Law," The APA Newsletter on Philosophy and Law 10, no. 1 (2010).

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customary rules in particular circumstances. Law responds to these issues by providing a

common basis for saying which rules count, how to go about changing the 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 27 H. L. A. Hart, The Concept of Law, 2nd ed. (Oxford: Oxford University Press, 1994), 91-‐99. 28 See Leslie Green, "Law, Co-‐Ordination and the Common Good," Oxford Journal of Legal Studies 3, no. 3 (1983): 312-‐15. 29 Estlund’s 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.

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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 law good and to identify some characteristics such goods

normally possess.

(1) Coordinating Conventions

We frequently require some widely shared convention for coordinating our behavior. If

law is commonly recognized as the appropriate basis for settling such matters, it can

create or support such a convention by identifying one option, amongst several that are

possible, as salient.31 Such is the case with traffic rules, that facilitate safe highway

travel, but also with zoning and government services such as trash removal and

environmental conservation. It is almost always the case that some or one scheme of

coordination is better than others.32 Nonetheless, the goods of coordination can be

obtained well enough on a variety schemes so that law can supply the relevant good by

selecting one amongst these.

30 Montesquieu, The Spirit of the Laws, trans. Anne M. Cohler, Basia Carolyn Miller, and Harold Samuel Stone (Cambridge: Cambridge University Press, 1989), 157. 31 Frequently noticed in legal theory, but for an extensive discussion, see Gerald Postema, "Coordination and Convention at the Foundations of Law," Journal of Legal Studies 11, no. 1 (1982). 32 “Better” here references all the relevant values, both the value of successful coordination and other values that are implicated in the coordination scheme, e.g., safety and efficiency. Even in selecting a side of the road, an issue very close to a pure coordination problem, one may be (e.g., because of widespread right-‐handedness) better than the other.

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(2) Disagreement Resolution in the Circumstances of Politics

Often, we are not indifferent to which rules will organize social life, and we disagree

about which ought to prevail. Our disagreement may reflect conflicting moral views,

different understandings about what is prudent, competing interests, or any of the factors

that may burden judgment. Nonetheless, it is better that we come to a common solution,

for practical purposes, than none at all (at least, within a range, some solutions may be

worse than none at all). Jeremy Waldron captures this well in his discussion of the

“circumstances of politics,” which is the “felt need among the members of a certain

group for a common framework or decision or course of action on some matter, even in

the face of disagreement about what the framework, decision or action should be.”33 We

disagree, but it is better, and sometimes morally mandatory, to have some way forward

than none at all. Law can help address the circumstances of politics by selecting one

acceptable set of rules at the expense of others. Law facilitates the valuable of

disagreement resolution when it helps provide an acceptable, common course of action.34

Having an acceptable settled solution in the presence of this disagreement is of

significant value.35

33 Waldron, Law and Disagreement, 102. 34 The solution that law provides must be acceptable in the sense that the solution it helps provide is morally acceptable. If law is effectively coordinating an evil, then the coordination is not valuable. More needs to be said here, since part of what is valuable about law is its ability to resolve moral disagreement (and we will disagree about what counts as an evil). One thing to say is that having a common solution can rightly be regarded by someone as of great value, even if they think that the solution is morally suboptimal or somewhat wrongful. 35 Waldron articulates the point in terms of partial-‐conflict coordination problems. “Each prefers either of the coordinative outcomes to non-‐coordination; but they differ in the particular coordinative outcome they prefer.” For Waldron, democratic legal authority will not simply be grounded in an acceptable solution to disagreement, but also in having been produced by a procedure that respects individual subjects equally. See Waldron, Law and Disagreement, 103-‐18. See also, William S. Boardman, "Coordination and the Moral Obligation to Obey the Law," Ethics 97 (1987): 549-‐53.

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(3) Governance by Desirable Procedures

Governance by procedure of the right kind is frequently important. Food safety ought to

be regulated by some impartial and expert process, and democracy seems appropriate for

addressing many political matters.36 In order to have governance by desirable

procedures, there must be some means by which the procedure can effectively, and with

limited ambiguity, convey its decisions. To address any matter of any complexity, a

legislature (e.g.) must provide a definitive indication of its determination that can be used

by officials and subjects to guide their behavior. Statutory law is such a medium. Law

facilitates, then, governance through desirable procedures regardless of whether this

governance is intrinsically or instrumentally valuable. It facilitates this valuable,

moreover, to some extent independent of what the procedure decides.

(4) Entitlements, Personal Autonomy, and Legitimate Expectations

We need a basis for settling entitlements, such that people can form stable expectations

with regards to them. Concerning physical property, for example, we need to indicate

what belongs to whom, under what conditions, and how it can be transferred. This raises

difficult and contentious issues of distributive justice and the moral grounds of property.

Nonetheless, it is important to have stable rules to facilitate autonomous choice,

commerce, etc. Also, as people rely on these legal rules, it will be of value to protect

their expectations – it is likely that they will come to morally deserve, to some extent,

what the rules indicate as theirs under the conditions it also indicates. Not all

expectations, even if induced, deserve protection (e.g., property rights over persons), but

36 I do not endorse a particular theory of democratic authority. I will assume, though, that it is possible that democratic governance is intrinsically valuable.

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many do even if the rules of property could have been different, and even if the current

rules are morally suboptimal by standards of distributive justice.

Again, the list is not exhaustive. It is worth emphasizing, though, some common

features of these goods. First, it is difficult to imagine that they could be achieved, or

achieved as reliably or well, in current social circumstances without law. The above

goods require some settled means for identifying, legislating, and adjudicating common

rules, and law appears to be precisely the tool up for the task – and, anyhow, it is

currently the relevant tool. Second, each is achievable by a range of substantive

regulation. Even if there is one morally optimal scheme concerning some matter, there

are many incompatible suboptimal schemes that would achieve the good to some extent.

In this sense, these are variable policy tolerant goods (hereafter, “VPT goods”). Third,

these goods are morally important, and sometimes crucial, to a decent social life. It is not

implausible to suggest that they deserve a place in our practical reasoning in light of their

importance.37 In other words, they rightfully demand our attention in decision-making

because of their moral character, at least insofar as our actions affect their realization. In

this sense, these are VPT moral goods. Fourth, individual, non-official (though, official

also) action can affect how well or whether these goods are realized. My actions can

upset legitimate expectations, disrupt democratic governance (if democratic governance

is intrinsically valuable, non-compliance sometimes just is to prevent the realization of a

good on a particular occasion), interfere with a reasonable solution to moral

disagreement, or threaten someone’s safety by disregarding a coordination solution.

Fifth, except for rare cases of pure coordination, there is likely to be significant

37 A point illuminated by Wellman’s work on samaritan duties and political obligation, though also recognized elsewhere. See Wellman, "Toward a Liberal Theory of Political Obligation."

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disagreement about how, institutionally, these goods ought to be pursued – we are likely

to disagree about what the law should be. The above should serve as an explication of

the idea of a rule of law good. Now we can consider how such goods render legal norms

binding.

III. How to Bind Agents with Words

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 ϕ when: (1) it directs

addressees to ϕ, (2) ϕ–ing is the course of action required to secure a good, and (3) ϕ–

ing is the route to a good because those addressed were directed to ϕ 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). 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 reviewer’s comments on these points.

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(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. A’s 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 A’s

directive to go to P is a reason to go to P.

(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. C’s directive is not a

reason for you to pick up B’s books. Although doing what C demands will

accomplish some good, C’s directive does not contribute any additional reasons.

The act of helping B is not made worthwhile (in any sense) by C’s directive. C’s

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, C’s 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.

In scenario (1), the directive cannot be construed as advice, as attempting to identify the

reasons for the course of action that exist independent of the directive. (Again, subtract

the directive from the scenario, and eliminate the soccer-reasons to go to P.) The

directive to go to P must be construed as a reason for the action of going to P, not

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primarily as a reason for belief in the independent goodness of going to P.39 The crucial

difference between the directives in (1) and (2) is that the directive in (1) is good-making.

The directive makes the course of action directed worthwhile by making it the route to

the good. That soccer playing is valuable to the group is true with or without the

directive. However, in the circumstances without the directive, complete knowledge of

the value of soccer playing would not (by itself) give us a course of action that would get

us that good. The good requires the assistance of a normative device to simultaneously

indicate a course of action, and make that course of action fruitful. The directive in (1)

literally renders the good accessible by changing the character of the social world.

It is worth dwelling, for a moment, on the essential means for this kind of route

creation. What appears necessary is, first, that the directive have common, public

semantic content. More plainly, that there is a common understanding about the meaning

of the directive, and there is shared knowledge of this common understanding. Without

this, the directive, however well intentioned, would be powerless to settle a common

policy that is good-making.

Second, the directive must be largely regarded as agenda setting, and widely

understood as so regarded (or as having a decent likelihood of being so regarded), though

not necessarily by every member of the group. The explanation for this regard can be

quite variable. In (1), it may be simply tradition or habit that picks A out as the salient

coordinator. However, it could have rested on a view of A’s judgment, his intimidation

39 It might be a reason for such belief also, e.g., if we rightly trust A’s judgment about good places to play soccer. Nonetheless, A’s directive is a reason for compliance on its own (i.e., independent of these preexisting reasons). Consider if we are wrong about A’s judgment: we accept his directives because we believe (falsely) that he can discern well the field conditions that make for good soccer playing. He standardly picks the least desirable of the minimally acceptable fields. A’s directive would still be a reason to go to P.

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of members of the group, a desire to please A, the fact that A was the first to speak up, or

some combination of these among different members of the group. From the standpoint

of your achievement of the good, it matters little which of these explains the fact that A’s

directive will effectively adjust expectations. You may want to flout tradition, have

justifiably low regard for A’s judgment, be indifferent to his view of you, dislike him, or

rightly think that someone else (or some other procedure) ought to do the coordinating.

Nonetheless, A’s directive is a reason for you to do as directed. What is necessary is that

A’s directive be widely recognized as agenda setting, not that any particular explanation

for this recognition obtain.

Third, the course of action directed must be acceptable, i.e., not morally

wrongful, in order for the directive to be treated as a reason for action. If A directs us to

play on someone’s private property, or to break the legs of those currently using P and

then use P, the directive may still be capable (depending on how deferent the group is to

A) of coordinating behavior. Yet, the coordination is not a good (in which case the

directive is not a reason), or the good is vastly outweighed by the wrong (in which case

the directive is a reason, but practically insignificant). Whether we accept the former or

latter characterization is unimportant for present purposes, for in either case the purported

good the directive seeks to provide ought to be disregarded by practical reason.

Fourth, the substance of the policy directed must be minimally capable, if acted

upon, of realizing a VPT good requiring a common policy. If A directs us to play on a

steep mountainside, A has not rendered the value of soccer playing available. There are

various other policies, however, that are capable of realizing the good to a minimum

degree.

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We can now state the necessary and sufficient conditions for a directive to be

good-making. The directive must have public semantic content, be regarded as agenda

setting, be acceptable, and state a minimally successful policy for a VPT good. These

conditions are severally necessary and jointly sufficient for a directive to be good-

making. A directive’s possession of this property is sufficient for it to be a reason for an

agent to act as it directs. When the semantic content of a directive transforms the social

world to render available a good realizable through the course of action directed, the

directive is a reason to comply. It is not, however, binding or obligatory. A’s directive

assists those interested in realizing the value of playing soccer, but it is only a reason

insofar as one is interested. Perhaps one is needed to realize the good, e.g., in order to

have enough players. Even this, absent some prior commitment, would provide at most a

minimal moral reason – it would be merely supererogatory.

B. Morally Binding Directives

A morally binding directive would not simply be a reason for what is directed, it would

render that course of action mandatory, leaving practical reason with less in the way of

responsible freedom. More directly, a binding directive would create an obligation to act

as directed. A moral obligation is a moral reason to perform an action that ought to be

action guiding unless overridden by some other moral reason. Normally, for example, it

cannot be defeated by mere inclination. A directive can become binding in the mode

described in the previous section, i.e., by being good-making. The difference is that the

good in question is of mandatory concern to the agent, such that (when it is available) she

has a duty to realize it.

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Another non-political example will help transition us to binding law. Your plane

crashes into the ocean and you are among the lucky survivors. 40 Your situation is secure.

Along with some others (the Safes), you manage to find refuge on a floating segment of

aircraft. However, it is clear that others are in dire need of assistance (the Imperiled).

Moreover, it is also clear that rescuing more than a few would require the cooperative

efforts of those who have found safety. The situation is initially chaotic, with no one

clearly in charge. D, a person of greater charisma and social presence than yourself,

begins issuing orders to the Safes with the aim of saving the Imperiled, and they seem to

be complying. Now we have collective effort Q. D orders you to do X, which is one of a

range of orders that would have made you an effective contributor to Q, but other Safes

will now depend on your doing specifically X. Also, there is a range of cooperation

schemes (some better than others) that would have done much to save the Imperiled. In

fact, you think cooperative scheme R would be better, it would save more lives perhaps,

and you even think (given Q) it would have been better to order Y. Assume that you are

correct. This matters little at the moment, however, unless you have a real chance of

instantiating a better, alternative social order that would save the Imperiled. Now, it is

the performance of X that will best enable you to carry out your natural duty to assist the

Imperiled (assume X does not put you in serious danger). D’s directive to do X has

rendered X obligatory. You are bound by the directive – you do not have the otherwise

operative moral discretion to act otherwise.

Consider the following in light of the example. First, D’s directive is binding in

virtue of being good-making. The directive has public semantic content, is widely 40 A more elaborate version of Estlund’s example. For his presentation of the example and discussion of “normative consent,” see Estlund, Democratic Authority: A Philosophical Framework, 117-‐35.

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recognized as agenda setting, requires what is morally permissible, and states a minimally

successful policy that achieves a VPT good unavailable without a policy. Given the

character of the situation, these appear severally necessary and jointly sufficient for D’s

directive to bind. Appeal to “normative consent” is wholly unnecessary.41 D’s directive

is a binding reason to act as directed in virtue of the fact that it has shaped the social

world to make the action directed the route to a mandatory good by articulating that

requirement.42

Second, this last way of putting things should help us notice that D’s directive is

not obligatory merely as a side effect or merely as a function of triggering preexisting

reasons. Some theorists urge that we should distinguish between the moral power to

create duties from the power each of us has to do things that result in the imposition of

duties as a side-effect of our action. Both change the moral position of others, but the

former is a genuine moral power since its exercise results in self-standing moral duties.

If I step in front of a car, I successfully make the driver duty-bound to stop, presumably

because of a natural duty. The driver’s duty to stop is a mere side effect of my action – I

have merely triggered the driver’s reason to stop in such circumstances.43 In contrast, if I

consent to be governed, the governor’s commands are then reasons, on their own, for

41 I will not offer a full consideration of Estlund’s 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 directive’s binding force, it may be illegitimate for D to coercively enforce it. 43 As Enoch puts it, one merely manipulates the non-‐normative circumstances to trigger a reason to stop the car to avoid hitting a pedestrian. He also gives the example of a grocer raising the price of milk. The grocer’s action triggers a reason to buy less milk, but that is not an exercise of a moral power. See, Enoch, "Reason-‐Giving and the Law," 4-‐5. For Enoch, authoritative directives are distinctive in their reason-‐triggering in that they involve a complex intention to impose a duty that is successful, in part, because of the complex intention. For a full discussion, see "Authority and Reason-‐Giving," Philosophy and Phenomenlogical Research 89, no. 2 (2014).

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obeying. As Estlund summarizes, “A moral power to require action, then, is the power of

one’s commands to count as moral reasons for action on their own.”44

My analysis of binding directives certainly concludes that they get their ultimate

moral force from independent moral duties,45 but they are more distinctive. Binding

directives articulate the course of action that counts, because of the articulation, as the

fulfillment of the salient obligation. In the pedestrian case, the pedestrian is not capable

of determining the course of action that counts as the fulfillment of the driver’s

obligation. The fact of the pedestrian in the roadway is a reason for the driver to stop.

The content of the obligation is not, in any interesting way, articulated by the fact. In the

case of the directive, on the other hand, the content of the obligation is specified by the

semantic content of the directive. In other words, a binding directive successfully

articulates the satisfaction conditions of the relevant moral requirements, and it is a

reason for that action because it articulated that type of action. Relatedly, the good of

mandatory moral concern to the driver (i.e., the non-violation of the pedestrian’s bodily

integrity) does not require the assistance of any norm or direction aside from moral

norms. Her route to the good is effable without any intermediary normative devices. The

crash case is different. Your saving N number of lives (N being your marginal

contribution in the collective rescue) requires the direction of the 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

44 Estlund, Democratic Authority: A Philosophical Framework, 119. It is out of a concern of this kind, I take it, that Estlund is motivated to invoke normative consent. 45 As would any plausible account. Even if I freely consent to be governed, the governor’s order only binds me by triggering an independent duty to abide by the terms of my consent.

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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 people’s

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 (D’s 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

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). Garthoff’s discussion, though illuminating in other ways, provides no argument for this controversial claim. Also, as Andrés 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. Andrés Molina Ochoa, "On How Law Determines Morality" (Dissertation, Binghamton University, 2012). Molina develops a view in several other ways in line with Garthoff’s position, but with an emphasis on how law gives content to moral demands by solving coordination problems, specifically. Although I cannot wholly embrace Molina’s position, the point regarding the moral value of coordination is important (and should, I think, incline us toward the kind of theory defended here).

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so may political virtues, like justice, in ranking political orders. D’s suboptimal

directives bind by creating a route to a good (i.e., the saving of lives) that grounds the

virtue of rescue, not by giving content to the ideal of rescue. Slightly differently, D’s

directive specifies what the ideal of rescue requires of you, not what it requires of D.

Moreover, D’s 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

D’s 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 D’s directive is not excluding (non-existent) 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

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, 111-‐15.

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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 there are no such reasons, it still

excludes reasons of preference and enjoyment. I may prefer to do Y, or prefer doing

something else entirely, even after the directive, so the directive must exclude these

reasons. This is mistaken. In the Lone Safe case, I may have similar preferences, but

they are excluded (or otherwise defeated) in precisely the same way, and without a

directive. My reasons of preference are defeated by the good of rescue. Those reasons

should not matter, or should be seen as overridden, in any case where rescue is salient –

and thus, it is the rescuing as a feature of the situation that is exclusionary (if there are

any such reasons), not any directive. Of course, in the collective rescue case, it is the

directive that renders rescue salient, and the fact of the directive is consequently a reason

to do X. Moreover, it is binding (in that it would be irresponsible to act otherwise) in

virtue of the mandatory end it facilitates. Yet, the directive does not assist practical

reason here by the exclusion of reasons – you in no sense needed the directive to know

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.

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that you ought to be rescuing, even if you would prefer to do otherwise.50 The plane

crashes, people are drowning: hopefully you are possessed of human decency and have

bracketed your relatively trivial preferences even before a solution has presented itself. 51

These last points might seem pedantic, but the argument above (if it is right)

seriously compromises an influential picture of the role of political authority: that

political authority’s service to its subjects is to provide relief services to their practical

reason. I have not argued against the notion of exclusionary reasons, per se, but rather

against their existence as elements of morally authoritative directives.52 My

argumentative strategy has been to take a straightforward case of practical authority, a

case we intuitively identify as involving authoritative directives, and to consider how best

to understand it in terms of the reasons in play. Once we notice that reasons to act on

other enterprises are not excluded, and consider the case in conjunction with the Lone

Safe case, it is very difficult to see exclusionary reasons as attaching to directives. It

distorts the moral position of the subject to suggest that they do, and such

mischaracterization can be important. Consider that treating authoritative directives as

50 Put slightly differently, imagine that you can save N lives by either doing X or some other action entirely independent of the enterprise. I think Raz would admit that the directive, in this case, is not authoritative. Yet, despite the absence of authority, your reasons of preference are defeated. You have reason to do X, and reason to do the alternative, but you must choose one or the other in virtue of your preferences’ defeat – a defeat accomplished either by exclusion or other means, but in any case, without assistance to practical reason by a normative device. 51 It might be further objected: the case is one of emergency where attempting to contemplate all applicable first-‐order reasons will lead one to underperform with regards to those reasons since (e.g.) the rescue is time-‐sensitive. The directive must exclude reasons for you to comply with them. This response is also mistaken. Forgive the science fiction, but imagine the collective rescue case, except that you have the power to stop time. You cannot manipulate the physical world while time is stopped, but you can think for as long as you like. You may well arrive at the conclusion that, given D’s suboptimal directive, X is what you should do. Emergency may exclude reasons, with or without directives. Consider introducing emergency into the lone-‐rescuer case. When emergency so excludes, we should not treat the exclusion as a feature of a directive. 52 Clearly this argument does not address all the roles Raz gives to exclusionary reasons in his comprehensive theory of practical reason. Those would require separate discussion. My point here narrowly concerns authoritative directives.

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exclusionary will incline an agent to discount reasons for which she is responsible.

Assume, for the moment, that there are exclusionary reasons. If an agent has already

countenanced the exclusionary reasons supplied by the ends at stake, and by other

features of her circumstance, and then treats the directive as supplying additional

exclusion, she will then tend to eliminate first-order reasons from her practical

deliberation that are her practical reason’s business. Since some of these reasons will,

from time to time, be moral reasons, treating directives as imposers of exclusionary

reasons will incline her towards irresponsible conduct. This last point is not an additional

argument against authority as exclusion, it indicates an important corollary of the above

arguments.

On my view, authoritative directives are instrumental, and their binding force

should be understood in terms of service to right reason. However, its service is not one

of insulating reason from reasons. D’s directive is simply a reason to do X that is binding

in light of the end it uniquely facilitates (its binding-ness is something to be assessed in

contemplation of the end). Its proper significance in your deliberations is determined by

the character of your duties to assist those imperiled and how well the directive provides

a route to doing your duty. If your duties were better served by other means, the directive

is no longer binding. Also, other moral reasons can compete, and sometimes win against,

a binding directive. Binding directives do not serve our practical reason by excluding

reasons from its purview, but by delivering a course of action to contemplate that is now

(because of the directive) part of what duty requires. Moral authority serves our natural

duty, by articulating a world more amenable to agents pursuing their rightful ends.

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A final note before moving on. I keep the rescue example relatively simple to

highlight several points, but (time and social order permitting) D’s 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. D’s 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 agenda-setting 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 subject’s

behavior often factually affects the extent of their realization. A non-ideal system’s law

will frequently bind in virtue of its public semantic content, legal recognition, moral

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.

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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 to the value of a

good compared to other competing reasons.54 The scope of binding law will be

determined by the circumstances when compliance is related to the realization of

mandatory good(s). The weight, compared to other moral matters at stake, of binding law

in practical reason when it regulates within its scope will be determined by the moral

significance of the good(s) the legal authority is instrumental, via compliance, in

securing. Law will normally bind differentially across a legal system. I mean this in two

senses. First, the type of VPT goods at stake will vary from department to department.

Second, some departments will simply be more productive of genuine valuables than

others, and some domains may be unjust or oppressive in ways that undermine their

ability to bind. The traffic law of apartheid-era South Africa was binding for its subjects,

but much of the racist policy of the regime was not (though, reasons of prudence may

54 One might object that this involves an extremely demanding calculation on the part of the subject, and that it is implausible to expect such calculation. One must go through the reasoning indicated in the preceding paragraph, and weigh various political goods against one another, on particular occasions. In response, moral reasoning can generally be quite complex, and we legitimately use various heuristics to do right in particular circumstances (e.g., we consider the relative weight of morally important values when we have time to reflect so that we can rely on a heuristic weighting in times where a quick decision is required). All heuristics available to proper moral reasoning are available to and legitimately employed by those reasoning under law when they are considering relative weights of goods, the value of compliance in certain types of circumstances, etc. It is incorrect to infer from this, though, that law gives rise to pro tanto or prima facie obligations wherever it has factual social regard. It may not be pro tanto obligatory because it may not serve any morally mandatory end, and thus give rise to no obligatory reason. It may not be prima facie obligatory, because should such a circumstance in fact obtain, it may be immediately evident.

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counsel compliance). If something prompts moral worry about what some domain of law

is up to, nothing about law’s ability to bind in other domains of the legal system excuses

a subject from assessing the value of compliance to the suspect domain. Also, on point,

some legal prohibitions will simply reproduce the satisfaction conditions of moral

demands effable without a non-moral normative device, and these laws will not be

binding.55 Law is not route-making here, it simply correctly identifies what you should

do, and the fact of legality need not figure into practical reason (except, maybe, indirectly

as a reason for belief).

More needs to be said about why (exactly) and which rule of law valuables are of

mandatory concern. In Part Two, I attempted to describe some rule of law goods in a

light that would show them to be very plausibly sources of natural duties. Demonstrating

as much would involve addressing substantive matters of political philosophy, and that

cannot be done adequately here.56 Aside from what I say there and here, I will simply

assume we have significant, non-transactional 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

55 Though, again, they may be legitimate. 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); 212-‐54.

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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 drive safely. The safety of others, secured through coordinated traffic,

is a mandatory rule of law valuable.

Legal philosophy is tired of traffic convention examples, so take another that

more aptly can be described as involving partial conflict. Law facilitates personal

autonomy by settling rules for property. My ability to give direction to my daily life and

make longer-term plans depends on my ability to develop stable expectations about how 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.

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others will regard the material world (including what they will regard as mine and how,

precisely, they will regard that as significant). Autonomy presupposes some social order,

and property law provides that order for the material world. Moreover, when I expect

that others will so constrain their behavior, I will position myself in various ways (by

saving, purchasing, investing, etc.) such that I am vulnerable when people start regarding

the material world differently. The idea that I have a right that others not undermine the

conditions for an autonomous, decent life, and that people do not, without special

justification, frustrate my legitimate expectations is not terribly controversial. Property

law is binding insofar as it provides a route to this VPT good that is compliance with its

terms, even if the rules are suboptimal with regards to distributive justice. This should

not be taken as an especially conservative conclusion, as competing moral considerations

are not excluded, and the substantive injustice of property rules will diminish their moral

force since (if the order really is unjust) people’s rights are being violated.

Law binds regularly, but non-generally in light of our natural duties, on this view.

However, I do not see the overriding importance of satisfying the “particularity

requirement,”58 as some natural duty theorists have.59 Perhaps our obligations to our

compatriots can be shown to have special significance, but it is hardly damaging to a

theory of legal normativity if they cannot. If a domain of law permits me to see to

impartially important moral goods with respect to my compatriots, but those goods are of

less significance than competing moral goods I can effectively render to non-compatriots, 58 See A. John Simmons, Moral Principles and Political Obligations (Princeton, N.J.: Princeton University Press, 1979). 59 See Pauline Kleingeld, "Kantian Patriotism," Philosophy and Public Affairs 29, no. 4 (2000); Christopher Heath Wellman, "Political Obligation and the Particularity Requirement," Legal Theory 10, no. 2 (2004); Jeremy Waldron, "Special Ties and Natural Duties," Philosophy and Public Affairs 22 (1993). I do not deny that this has traditionally been regarded as a lacuna for theories of political obligation. A failure to demonstrate special moral ties between a person and their political community, however, does not spell the end of binding law.

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then maybe so much the worse for the law’s normativity in the circumstances. If a ship

sinks next to the plane crash, and I can save more lives by supporting the cooperative

rescue efforts involved in saving the shipwrecked, then so much the worse for D’s ability

to bind me.60 Of course, sometimes the temptation to disobey has more to do with our

inclination than a cosmopolitan assessment of our moral duties. Also, mere proximity to

others will, day to day, make domestic law binding, since it is my compatriots’ interests

that I will normally directly impact in my daily decision-making.61

D. Intentions and Political Authority

The above considerations permit the articulation of a general argument against theories of

political authority that make authorial intentions the locus of authority. Such views are in

many ways intuitive, and they have received extensive elaboration, especially in the

literature on legal interpretation.62 Also, recent work on authority in particular has

emphasized the importance of intentions for the exercise of authority, and the content of

the obligations it generates.63 I cannot offer a full assessment of such views here, but I

can articulate a simple and direct argument, that applies fairly generally, against such

views.

60 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 law’s 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 state’s 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 Reason-‐Giving." See also, Perry, "Political Authority and Political Obligation."

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To say that authorial intentions are the locus of authority is to say that they are the

site of the moral power to require action – where it is that the power to impose

obligations is exercised. Less mystically, if someone is an authority, then they can

effectively change someone’s moral situation by intending to and communicating an

intention to do so. Although communication is important, it is not fundamental (on such

views). If there are ambiguities, for example, in the public expression, the natural way to

resolve them is by asking the authority what she intended. This is because the crucial

fact that changes the moral position of the subject is the intention of the authority to

change the subject’s moral position in such-and-such a way. It is the shape of the

intention that determines, ultimately, the content of the subject’s obligation. The moral

power to require action is exercised, fundamentally, by an authority’s intention to do so.

Again, I restrict the argument here to political authorities:

1. Political authority is justified, at least in part, by the authority’s ability to realize the central moral goods of the rule of law. Depending on the theory of political authority, there may be other elements that figure into the justification of authority as well. Nonetheless, part of showing that an authority is justified is showing that it can reliably produce rule of law goods. It is implausible that a political agency could have the moral power to require action when it cannot reliably secure these.

2. Intentions can remain private, and intention communication can fail.

The most relevant ways this can happen is that (1) someone can intend to convey something, but the public meaning of her expression mismatches her intention, and (2) someone unintentionally conveys something.

3. Rule of law goods are secured via the public semantic content of

directives (as, I hope, is clear from what I have said in earlier sections).

4. When there is a mismatch between intention and the public meaning of the expression, the rule of law goods will prefer the public meaning over the private. From the standpoint of rule of law goods, it is the public meaning that is important.

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5. Without some powerful countervailing rationale internal to the justification of authority, then, authority reasons will be tied to public meaning. (The rationale would have to be especially strong, since authority’s justification is inextricably tied to its ability to secure goods that operate via public semantic content).64

6. If authority-reasons are tied essentially to public meaning, this must be

the locus of authority, i.e., the site at which the power to impose obligations is exercised. Authority-reasons will only contingently take the shape of the intention (if there is any) behind a directive. Slightly differently, authority-reasons will only contingently require what the authority intended to require. What an authoritative directive will require will depend on the public meaning of the directive. The power to require action is exercised here.

7. Conclusion: The locus of political authority is not authorial intentions.

Intention-based accounts of political authority are false.

IV. Authority and Binding Law

In an article, one can explicate the central elements of an approach, argue that it is

comparatively meritorious, address some worries, and offer an indication of its promise

in light of plausible diseredata. I perform the last task here, though I also intend to put

pressure on some of the success conditions for a theory of political authority offered in

recent work. Authority involves at least the ability to impose obligations. Some other

elements thought to be involved are:

64 The only candidate rationale that comes to mind is that the authority’s moral power is (also) justified in terms of its expertise. This seems to be part of what Alexander has in mind, see Alexander, "All or Nothing at All?: The Intentions of Authorities and the Authority of Intentions." However, the cases where political authority rests on expertise, as many have noted, are few and far between. Also, even if we conceive of democratic legislatures as producing results that are, in a sense, expert, this does not clearly imply that we ought be in search of anyone’s intention. See, Waldron, Law and Disagreement, 119-‐46. Despite his intentionalist leanings, I take this point to be largely consistent with Marmor’s discussion of legislative intent and authority. See Marmor, Interpretation and Legal Theory, 119-‐40. The point here, though, is more general, the premises are somewhat different, and they warrant (I think) a stronger conclusion.

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1. Residence in an agent: 65 Authority is frequently thought to be a power possessed by

a person or some other agent (e.g., a democratic legislature). The approach here

does not emphasize this element – binding norms are such in virtue of being good-

making. Their ability to bind fundamentally relates to the norm’s capacity, not

(essentially) by being issued by any particular person. However, frequently a

positive norm’s capacity will depend upon its issuance from a particular agency.

The factual recognition of D is what permits his directives to be good-making, and

such is likely the case for many political institutions. He has the capacity to require

action insofar as his directives have the ability to create routes to mandatory ends.

Why should we want, when the question is one of political authority, the power to

bind to extend beyond that? I suggest we should conceive of political authority as

the ability to make non-moral normative devices serve rights.66 One is

appropriately called a practical authority when one is factually in possession of that

capability for some range of circumstances. Also, if democratic institutions, e.g.,

are capable of producing intrinsically valuable directives, then the approach here is

fully consistent with designating those institutions as authorities. Their proper

exercise of norm-creating procedures will make the resultant norm authoritative.

2. Content-independence:67 Intuitively, the idea is that one can have a reason to

perform some action that, in some sense, does not depend on the character of the

action. If I promise to do X, then I have a reason to do X (whatever X happens to 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.” 66 Perhaps unlike standard theories of political obligation, approaching the issue in this way immunizes it from Perry’s “reverse entailment problem.” See Perry, "Political Authority and Political Obligation." 67 Widespread, but one example is Green, The Authority of the State.

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be, within limits), and if I promise to do Y, instead of X, then I have a similar

reason to do Y, even if Y is of a very different character than X. Despite casual use

of the term in legal philosophy, and the widespread assumption that it is central to

authority, I am not sure that there is a common understanding of what it, precisely,

involves.68 On some understandings of content-independence, my account does not

have it since the content of the directive must state a policy that is then the route to

a good, and the force of the directive depends on its success in achieving the

relevant good. However, no plausible theory of authority grants a power to require

action that is wholly independent of the character of the action.69 If an otherwise

justified authority orders you to violate someone’s basic human rights, its attempt to

exercise a moral power has failed. My account does offer an explanation for how

the content of the directive can be of some indifference. It shows how many

different directives, with variable incompatible content, are all candidates for

binding subjects (even if suboptimal) if given by an agent with the power to make

them good-making. In fact, on my view, this is precisely where 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.

68 This is made clear, I think, by Sciaraffa in his illuminating discussion. See Stefan Sciaraffa, "On Content-‐Independent Reasons: It's 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): 168-‐72.

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3. Not merely side-effect imposition of duty:70 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 Inadvertent:71 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 bill’s 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

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., 181.

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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 obligation. These are central elements

of binding directives on my approach.

6. Requires Submission: Authority involves one agent submitting, even in the presence

of contrary judgment as to the wisdom of the directive, to the directive. The will of

one becomes the will of another. The approach here describes conditions in which

this is meaningfully the case and appropriate. When the conditions for a binding

directive are met, it renders your view about what ought to be directed inoperative,

and someone else’s view (mistaken or not) about what ought to be done, mandatory.

7. Preemptive: As discussed earlier, the idea that authority excludes reasons from

practical reason has been widely-held since at least Raz’s introduction of the term

“exclusionary reason,” and probably longer. However, as I have argued, the kind of

coordination (pure and otherwise) that is the mainstay of binding law does not

involve preemption. Perhaps cases of expertise, as in the example of the

environmental agency given earlier, create a small sphere for exclusionary reasons

for political authority. It would be small, though, and it is not evident that

exclusionary reasons are operative even in these types of cases. Why not think of

the agency as simply giving a reason for a belief relevant to existing reasons for

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action? I have reasons to prevent environmental degradation, but I know less well

than the agency about how to prevent it. The agency gives me a reason for

believing that washing my boat will prevent degradation. I ought to believe that

boat washing is preventative because experts told me so, and this is relevant to my

reason to act to prevent degradation. No reason for action is excluded by the

ordinance.

8. Small-error tolerant, not intolerant:72 If the commander is an authority, then the

duty to obey does not automatically run out when the commander errs with regards

to her aims. Large errors, that deeply frustrate the aim, may undermine authority.

There are two separate types of cases, though Edmundson and Estlund treat them

together. In one, the commander gives an order that is suboptimal compared to

some other order. D orders you to do X, though it would have been better to order

Y, but you are bound to do X.73 My account easily handles this kind of small-error

with normative economy. Another kind of case is where compliance fails

altogether to contribute directly to the aim. Here we again have two kinds. In the

first, obedience does contribute to the realization/maintenance of a valuable

normative order – by doing X (which is otherwise pointless, and perhaps somewhat

counterproductive), I marginally increase overall confidence in D as the salient

coordinator. My account also handles these cases well – D has made X good by

directing me to do it, since it is now the means for realizing a mandatory good: a

72 Ibid., 182-‐83; Estlund, Democratic Authority: A Philosophical Framework, 125. 73 See Part Two, Section B. In the case of D, small errors will frequently be tolerated because others’ expectations about your behavior will be settled by D’s directives, your most effective contribution to the collective effort will be determined by D’s directive (even if you could have made more by another), and because it may be independently important to avoid upsetting the operative recognition of D as the agenda setter. Better a mediocre rescue than none.

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collective normative order that accomplishes a duty-implying end. In the second,

the effects on the normative order are non-existent. In these cases (my account has

it) orders do not bind. This is not obviously bad news, however, since we are now

in the realm of stoplights on deserted roads, legally prohibited private acts with no

untoward consequences to others, etc. – requirements that even many political

obligation theorists attempt to marginalize from the sphere of political authority.74

Demanding that a theory of political authority cover these cases is, at least,

controversial.

9. Intrinsic Value Producing: Edmundson contends that the moral power to command

essentially involves intrinsic reasons for obedience. He describes the idea as

follows:

An intrinsic reason for action is one that reflects the action’s inherent value, or the value of a whole of which the action is an essential component. An intrinsic reason for action is to be contrasted with a merely instrumental reason for action, where the action has no value in itself but would lead to or promote something else that is valuable in itself, if perhaps only by a chain of further events and actions.75

As Edmundson notes, only consent seems capable of giving the will of another the

intrinsic moral power to require action. Other moral approaches to political

obligation grounded in, e.g., fairness or natural duties would be incapable of

substantiating genuine authority.76 Given the rarity of circumstances in which the

governed have consented, making the ability to produce intrinsic reasons a

74 See, e.g., George Klosko, "The Moral Force of Political Obligations," The American Political Science Review 84, no. 4 (1990). 75 Edmundson, "Political Authority, Moral Powers, and the Intrinsic Value of Obedience," 184. Estlund seems to endorse this requirement also. See Estlund, Democratic Authority: A Philosophical Framework, 145. 76 Edmundson, "Political Authority, Moral Powers, and the Intrinsic Value of Obedience," 185-‐91. Green seems to agree. See, Green, The Authority of the State, 158-‐87, 220-‐47. Depending on how further analysis of what it is for reason to be intrinsic, for Edmundson, I am not even certain that consent based obligations qualify. Those reasons are parasitic, presumably, on natural duties to abide by the terms of one’s consent.

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necessary condition of authority renders the concept relatively unimportant for

understanding our responsibilities in political life. Insofar as we want the concept

of political authority to help us identify distinctive kinds of moral demands that we

actually encounter, we should be wary of requiring a theory to demonstrate intrinsic

value production.

We can frame the theoretical issue as a dilemma. The more robust the success conditions

we insist upon for theories of political authority, the less we will be able to fruitfully

theorize about normative political matters in terms of the concept. It will be incapable of

illuminating our political relationships and responsibilities. On the other hand, the less

robust the conditions, the less theorizing may accord with some of our pre-theoretical

intuitions regarding authority (or, perhaps, with our analyses of the type of authority law

claims). The account here, then, may be thought of as moderately deflationary,

preferring the first horn of the dilemma. It is not evident that robust authority is an

important concept for illuminating political relations, including our relationship to

political institutions. When Enoch (e.g.) begins his theory with the example of a

parent/child relationship as the archetype of authority, we have already begun on the

wrong path.77 The alternative advanced here contends that we should consider how law

binds in virtue of its ability to address the kinds of problems it is meant (so to speak) to

solve. I have argued that this delivers much of what we intuitively and normatively want

from a theory of political authority (i.e., the ability of suboptimal law to morally bind

practical reason in the circumstances where it is important to have a posited normative

device), and without excess that may intuitively attach to our pre-theoretical notion of

77 Enoch, "Authority and Reason-‐Giving."

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authority (perhaps appropriately in other domains, but which is wholly inappropriate for

political authority).

A complete theory of political authority would need to say more than I have here,

especially about which moral ends law properly serves – it would have to address

substantive matters of political morality. For now, one additional remark on this

approach’s promise. The following example has troubled recent authority theorizing:

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 child’s 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 dictator’s 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 child’s 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 child’s directive does not make available that

good. The people’s security was made realizable, insofar as it is realized, by the scheme

of law in place prior to the child’s order. The child’s order does not render accessible a

VPT good (and systemic stability is not assisted by having the order in place for

compliance). The child’s 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 78 Estlund, Democratic Authority: A Philosophical Framework, 118.

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49

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 child’s demand merely threatens those goods. It is not, itself, an

instrument to the availability of those goods.

V. Conclusion

On Edmundson’s statement, “Political authority consists in the state’s (purported) moral

power to place us under obligations to obey its commands, particularly its laws.”79

Normally, the state will only possess such a power insofar as it is positioned to carry out

its duty to provide a determinate course of action for the rightful aims of its subjects.

Under morally imperfect, non-ideal law, practical reason’s proper concern with legality is

strongly tied to law’s success in rendering available goods that are of mandatory concern

to the subject. Positive law’s moral normativity, its ability to be a binding reason for

action, normally resides in its creation of a route to what we owe each other on an

occasion of decision. Human law does provide a service, but it is not one of insulating

reason from reasons. It is one of providing a determinate course of action that morality,

in the circumstances of human social life, is ill -quipped to unilaterally deliver.

Typically, morality will be ill-equipped insofar as it requires the realization of a VPT

good in an interactive environment. Conceiving of law’s capacity to bind in this way

does not prove that a theory of political obligation cannot be substantiated for some

political contexts. It does show, however, that law can bind in conscience without

general and special political obligations, and thus our search for a theory (if we continue)

79 Edmundson, "Political Authority, Moral Powers, and the Intrinsic Value of Obedience," 180.

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should be animated by some other concern(s). More generally, this conception raises

questions about some approaches to theorizing about political authority. Our sense of

when a theory of political authority succeeds should be guided by a view of what we are

trying to understand. I have emphasized the standpoint of the subject of law trying to act

responsibly, and such emphasis may obfuscate something that properly puzzles us about

political authority. But if so, we need to say what it is. At the very least, some of the

adequacy conditions extant in the literature are currently under-motivated for the realm of

the political.

Bibliography

Alexander, Larry. "All or Nothing at All?: The Intentions of Authorities and the Authority of Intentions." In Law and Interpretation: Essays in Legal Philosophy, edited by Andrei Marmor, 357-‐404. New York: Oxford University Press, 1995.

Austin, John. The Province of Jurisprudence Determined. Amherst, NY: Prometheus Books, 2000. J. Murray 1832.

Boardman, William S. "Coordination and the Moral Obligation to Obey the Law." Ethics 97 (April 1987): 546-‐57.

Christiano, Thomas. "The Authority of Democracy." The Journal of Political Philosophy 12, no. 3 (2004): 266-‐90.

———. The Constitution of Equality: Democratic Authority and Its Limits. New York: Oxford University Press, 2008.

Darwall, Stephen. "Authority and Reasons: Exclusionary and Second-‐Personal." Ethics 120, no. 2 (January 2010): 257-‐78.

Delmas, Candice. "Political Resistance: A Matter of Fairness." Law and Philosophy 33, no. 4 (2014): 465-‐88.

Dworkin, Ronald. Law's Empire. Cambridge, MA: Harvard University Press, 1986. Edmundson, William A. "Political Authority, Moral Powers, and the Intrinsic Value of Obedience."

Oxford Journal of Legal Studies 30, no. 1 (2010): 179-‐91. ———. Three Anarchical Fallacies: An Essay on Political Authority. Cambridge: Cambridge University

Press, 1998. Enoch, David. "Authority and Reason-‐Giving." Philosophy and Phenomenlogical Research 89, no. 2

(2014): 296-‐332. ———. "Reason-‐Giving and the Law." Oxford Studies in Philosophy of Law 1 (2011): 1-‐38. Essert, Christopher. "A Dilemma for Protected Reasons." Law and Philosophy 31, no. 1 (2012): 49-‐75. Estlund, David. Democratic Authority: A Philosophical Framework. Princeton: Princeton University

Press, 2008. Garthoff, Jon. "Legitimacy Is Not Authority." Law and Philosophy 29, no. 6 (2010): 669-‐94. Gilbert, Margaret. A Theory of Political Obligation: Membership, Commitment, and the Bonds of Society.

Oxford: Clarendon Press, 2006. Green, Leslie. The Authority of the State. Paperback ed. New York: Oxford University Press, 1988. ———. "Law, Co-‐Ordination and the Common Good." Oxford Journal of Legal Studies 3, no. 3 (1983):

299-‐324.

Reeves

51

Hart, H. L. A. The Concept of Law. 2nd ed. Oxford: Oxford University Press, 1994. ———. Essays on Bentham. Oxford: Oxford University Press, 1982. Hershovitz, Scott. "The Role of Authority." Philosophers' Imprint 11, no. 7 (2011): 1-‐19. Hurd, Heidi M. Moral Combat. New York: Cambridge University Press, 1999. Kleingeld, Pauline. "Kantian Patriotism." Philosophy and Public Affairs 29, no. 4 (2000): 313-‐41. Klosko, George. "The Moral Force of Political Obligations." The American Political Science Review 84,

no. 4 (December 1990): 1235-‐50. ———. "Multiple Principles of Political Obligation." Political Theory 32, no. 6 (December 2004): 801-‐

24. ———. The Principle of Fairness and Political Obligation. New ed. Lanham, MD: Rowman & Littlefield

2004. Koltonski, Daniel. "Normative Consent and Authority." Journal of Moral Philosophy 10, no. 3 (2013):

255-‐75. Lefkowitz, David. "The Duty to Obey the Law." Philosophy Compass 1, no. 6 (2006): 571-‐98. Lyons, David. "Moral Aspects of Legal Theory." In Moral Aspects of Legal Theory: Essays on Law,

Justice, and Political Responsibility, 64-‐101. Cambridge: Cambridge University Press, 1993. Marmor, Andrei. "An Institutional Conception of Authority." Philosophy and Public Affairs 39, no. 3

(2011): 238-‐61. ———. Interpretation and Legal Theory. 2nd ed. Portland: Hart Publishing, 2005. Marwick, P. "Law and Content-‐Independent Reasons." Oxford Journal of Legal Studies 20, no. 4

(2000): 579-‐96. Molina Ochoa, Andrés. "On How Law Determines Morality." Dissertation, Binghamton University,

2012. Montesquieu. The Spirit of the Laws. Translated by Anne M. Cohler, Basia Carolyn Miller and Harold

Samuel Stone. Cambridge: Cambridge University Press, 1989. Murphy, Mark C. Natural Law in Jurisprudence and Politics. New York: Cambridge University Press,

2006. Perry, Stephen R. "Political Authority and Political Obligation." Oxford Studies in Philosophy of Law 2

(2013): 1-‐74. Postema, Gerald. "Coordination and Convention at the Foundations of Law." Journal of Legal Studies

11, no. 1 (1982): 165-‐203. Rawls, John. Political Liberalism. Paperback ed. New York: Columbia University Press, 1996. ———. A Theory of Justice. Revised ed. Cambridge, MA: Harvard University Press, 1999. Raz, Joseph. The Authority of Law: Essays on Law and Morality. Oxford: Clarendon Press, 1979. ———. The Morality of Freedom. Oxford: Oxford University Press, 1986. ———. Practical Reason and Norms. Second ed. Oxford: Oxford University Press, 1999. ———. "The Problem of Authority: Revisiting the Service Conception." Minnesota Law Review 90

(2006): 1003-‐44. Reeves, Anthony R. "Do Judges Have an Obligation to Enforce the Law?: Moral Responsibility and

Judicial Reasoning." Law and Philosophy 29, no. 2 (2010): 159-‐87. ———. "The Moral Authority of International Law." The APA Newsletter on Philosophy and Law 10,

no. 1 (2010): 13-‐18. Sciaraffa, Stefan. "On Content-‐Independent Reasons: It's Not in the Name." Law and Philosophy 28, no.

3 (2009): 233-‐60. Shapiro, Scott J. "Authority." In The Oxford Handbook of Jurisprudence and Philosophy of Law, edited

by Jules L. Coleman and Scott J. Shapiro, 382-‐439. New York: Oxford University Press, 2002. Sherman, James. "Unresolved Problems in the Service Conception of Authority." Oxford Journal of

Legal Studies 30, no. 3 (2010): 419-‐40. Simmons, A. John. Justification and Legitimacy: Essays on Rights and Obligations. Cambridge:

Cambridge University Press, 2001. ———. Moral Principles and Political Obligations. Princeton, N.J.: Princeton University Press, 1979. Viehoff, Daniel. "Debate: Procedure and Outcome in the Justification of Authority." Journal of Political

Philosophy 19, no. 2 (2011): 248-‐59. Waldron, Jeremy. Law and Disagreement. Oxford: Oxford University Press, 1999. ———. "Special Ties and Natural Duties." Philosophy and Public Affairs 22 (1993): 3-‐30.

52


52

Wellman, Christopher Heath. "Liberalism, Samaritanism, and Political Legitimacy." Philosophy and Public Affairs 25, no. 3 (Summer 1996): 211-‐37.

———. "Political Obligation and the Particularity Requirement." Legal Theory 10, no. 2 (June 2004): 97-‐115.

———. "Toward a Liberal Theory of Political Obligation." Ethics 111, no. 4 (July 2001): 735-‐59. Wolff, Robert Paul. In Defense of Anarchism. New York: Harper & Row, 1970.

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