Freedom, Benefit and Understanding: Reflections on Laurence Claus's Critique of Authority
San Diego Law Review 52 (2014) 893-920
29 Pages Posted: 19 Nov 2014
Date Written: November 17, 2014
Written for a symposium in the University of San Diego Law School in September 2013 on Laurence Claus, Law’s Evolution and Human Understanding (New York: Oxford University Press, 2012), this article appears in the final issue of volume 52 of the San Diego Law Review. With new illustrations and considerations suggested by the book, the article argues for a number of theses: “Because I/we say so” is never a reasonable ground or formulation of authoritative acts such as enactments or parental or other orders. The moral authority of rule makers is never peremptory in a binary (all or nothing) as distinct from presumptive and defeasible sense. Deliberation towards the exercise or acceptance of authority is never primarily a matter of prediction or predictability of action, and is always a matter, rather, of purpose, and of creation by intelligent design than of non-purposive evolution. Those who exercise authority have no right to be obeyed, and the persons with the right correlative to a duty of compliance are those for whose benefit the rule or order was made and/or those who comply with it. The authority to make rules is a responsibility to serve the true interests of a community to which those subject to the rule belong.
Keywords: Authority, Responsibility, Obligation, Raz, Hart, Realism
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