The Ethics of Deference: Learning from Law's Morals

Abstract:     
The turn to normative models of law in recent years has led to a fashionable, but curious, view about the nature of law. This
view maintains that legal systems are essentially characterized
by claims of authority that cannot be supported by political
theory. The oddity of this position, ascribing to law a
normative posture inconsistent with political theory, provides
the motivation for, and the connection between, the two parts of this book. Part One focuses on the normative claims that are
essential to law. Part Two explores whether law, whatever its
normative claims, has authority. The currently popular view that law claims authority but does not have it, is here reversed on both counts: law does not claim authority, but has it. The first thesis, that law does not claim authority, is a thesis within legal theory, defended here through a combination of descriptive, conceptual, and coherence arguments about the
nature of law. This part concludes with a defense of a
classical version of natural law as the only plausible conceptual basis for distinguishing legal from coercive systems. The second thesis, that law has authority, is a claim of political or moral theory. Though the book's focus in this part is on political obligation, that issue is approached indirectly by first developing a more general account of when deference is due to the views of others. The book argues that two standard moral practices that political theorists often consider in exploring the question of political obligation - the practices of fair play and of promise-keeping - can themselves be seen as examples of a duty of deference. In this respect, the book describes and defends a more general moral theory whose scope extends beyond the particular question of political obligation. In particular, the book focuses on four persistent areas of human interaction that have long served as central cases for inquiries into moral obligation - four situations in which persons often disagree about what to do and why. The aim of the study is to show that these four cases (cases raising questions of duty in the case of law, of promises, of fair play, and of friendship) share common features that are best illuminated by the concept of deference.

Accepted Paper Series