Authority, Justice, and Public Law: A Unified Theory
(2014) 64:5 University of Toronto Law Journal 703-735
25 Pages Posted: 23 Dec 2015
Date Written: December 22, 2015
In articulating the juridical relationship between the individual and the state, a theory of public law must confront a fundamental problem. The practice of public law involves appeals to ideas of both authority and justice, but these ideas appear to be antagonistic rather than complementary. On the one hand, persons must act in conformity with legal obligations enacted through the contingent exercise of public authority. On the other, persons must act in conformity with timeless ideals of public justice. The theoretical puzzle at the core of public law stems from the incompatibility of these convictions. Because enacted laws are often unjust and just laws are rarely enacted, persons often find themselves simultaneously pulled in one direction by the demands of public authority and pulled in another by the demands of public justice. To escape this tension, the leading theories invariably fragment their subject matter by reducing the whole of public law to one of its aspects, authority in abstraction from justice or justice in abstraction from authority. This essay articulates a unified theory of public law that integrates the distinctive claims of authority and justice into a common framework. My central claim is that once authority and justice are appropriately conceived and justified, they are neither antithetical virtues of opposing theoretical frameworks nor isolated notions. Instead, authority and justice are the mutually implicating principles of a legal system: the right of rulers to exercise public authority is always accompanied by a duty to govern justly; the right of the ruled to just governance presupposes the presence of publicly authoritative institutions. The unified theory of public law thereby articulates a common moral standpoint from which the distinctive claims of authority and justice may each be given their due.
Keywords: Legitimacy and Authority, Natural Law, Justice, Rule of Law, Legal positivism, Public Law, Legal Philosophy, Political Philosophy, Jurisprudence, Liberalism
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