The Empty Idea of Authority
University of San Diego School of Law
October 7, 2009
University of Illinois Law Review, Vol. 2009, No. 5, 2009
The idea of authority is a fabrication. Claims of moral right to be obeyed owe their historic salience to the self-interest of claimants. When Enlightenment scholars demolished the divine right of kings, they should have disabused us of the right, not just of the notions that it came from the divine and belonged to kings. Their effort to salvage the idea of right to rule and to press it into serving as support for their favored governments was understandable but unjustified.
Claims of moral right to be obeyed have their origins in creationist accounts of law and government. This article presents an evolutionary account of law and government. The law of a human community is a self-generating, self-recognizing system of human communications that signals likely action within that community. Law is a signaling system that uniquely serves and symbiotically defines a human community. Autopoiesis, not authority, is the phenomenon that authentically animates law and government.
No theory of moral right to be obeyed illuminates the nature of law. The most prominent contemporary thesis, Joseph Raz's normal justification of authority, does not identify a right that can honestly be claimed by lawgivers or that ever really belongs to them.
Conventionalist analyses of H.L.A. Hart's rule of recognition implicitly acknowledge that a rule's effectiveness may derive exclusively from success in signaling likely human action. This article argues that the character and effectiveness of all law derives exclusively from participating in a self-recognizing system that successfully signals likely human action.
Understanding law as an autopoietic signaling system frees us to discard the idea of authority. This article articulates a vision of law-as-signaling-system and surveys some of that vision's implications for contemporary preoccupations of legal theory. An elaborated account of the vision of law presented here will appear in a monograph tentatively titled The Evolutionary Concept of Law (Oxford University Press, forthcoming).
Number of Pages in PDF File: 58
Keywords: authority, evolution, social contract, rule of recognition, Hart, Raz, systems theory, concept of law, government, legitimacy, sovereignty, custom, self reference, moral duty, anarchism, interpretation, intention, positivism, divine right, realism, Locke, Darwin, Treatises of Government, consent
JEL Classification: K00
Date posted: October 8, 2009