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On the Nature of Law: Philosophical Anarchism and Law's Claim to Legitimate Authority

44 Pages Posted: 3 Sep 2011 Last revised: 11 Oct 2011

Kurt Gerry

New York University School of Law

Date Written: October 10, 2011

Abstract

This paper is part of a larger project in which I attempt to elucidate the nature of law by way of philosophical anarchism. The central claim of my approach to general jurisprudence is that approaching the fundamental issues in legal philosophy through the lens of philosophical anarchism (the proper normative response to the question of political obligation) is essential for an adequate understanding of the nature of law. In this paper, I assume that all attempts to ground a general obligation to obey the outcome of the political process fail. Contra Robert Paul Wolff, this is not an a priori claim, but a posteriori, that even if it is possible to have a moral obligation to obey political superiors, almost all people in all states throughout history never had such obligation. With this assumption in hand, I consider one important issue regarding the nature of law: law’s normativity. With a proper understanding of political obligation, the problem of the nature of law takes on a different form, and we can obtain a deeper understanding of law as a social practice in realizing that widely held beliefs regarding law’s normative claims are somewhat mistaken. In this paper, I argue against a popular assertion, set forth by Joseph Raz and endorsed by many legal “positivists,” that law necessarily claims legitimate authority.

As a result of my approach to legal philosophy, the implicit premises, assumptions, and structure of my argument can be broken down as follows: (1) it is a commonplace that law is a social phenomenon, that is, its existence is, in some sense, always a matter of social facts; (2) it is a commonplace that law is in some sense a product of the political; (3) in order to understand how law relates to the political and is (at least partly) determined by social facts, we must understand the political relationship; (4) in order to understand the political relationship, we must understand the nature of political obligation; (5) in order to fully understand political obligation, we must engage in normative argument regarding the existence of political obligation; (6) there is no political obligation; (7) this conclusion helps us understand the nature of law; in particular, (i) we must abandon a strong guidance-based conception of law, (ii) we must reconsider our ideas regarding “law’s normative claims,” and (iii) coercive superiority is an essential concept for understanding the nature of law as a social practice. In this paper, I focus on (ii) and argue that the proper understanding of political obligation affects our approach to the jurisprudential debate regarding “law’s normativity.” First, our understanding has implications relating to the Razian theory of law and authority. Specifically, I argue that Raz fails to establish his claim that official statements of legal obligation necessarily imply an assertion (whether genuine or insincere) of moral obligation. I also argue that Raz fails to establish that “law” necessarily claims legitimate authority. If we are committed to the idea that law makes certain claims, a more plausible view is that law claims to occupy a position of coercive superiority, that is, law claims the ability and willingness to enforce its norms. Alternatively, even if law necessarily claims legitimate authority (which it does not), I argue that Raz fails in his assertion that law, as a result of this claim, must be the sort of thing capable of legitimate authority.

Keywords: Legal Philosophy, Legal Positivism, Jurisprudence

Suggested Citation

Gerry, Kurt, On the Nature of Law: Philosophical Anarchism and Law's Claim to Legitimate Authority (October 10, 2011). Available at SSRN: https://ssrn.com/abstract=1921420 or http://dx.doi.org/10.2139/ssrn.1921420

Kurt Gerry (Contact Author)

New York University School of Law ( email )

40 Washington Square South
New York, NY 10012-1099
United States

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