Must the Law Be Capable of Possessing Authority?

Legal Theory, Vol. 18, No. 1 (2012)

56 Pages Posted: 27 Apr 2016

See all articles by Dale Smith

Dale Smith

University of Melbourne - Law School

Date Written: April 25, 2016

Abstract

Joseph Raz has famously argued that, given that the law necessarily claims authority and given the account of authority he provides, exclusive legal positivism is the only tenable theory of law. In this article, I contend that – even if one accepts that the law necessarily claims authority and that Raz's account of authority is correct – it does not follow that exclusive legal positivism is the only tenable theory of law. This is because, even if the law necessarily claims authority, it need not be capable of satisfying the requirements for possessing authority laid down by the correct account of authority. Thus, even if exclusive legal positivism is the only theory of law according to which the law can satisfy those requirements, this does not show that exclusive legal positivism is correct.

Keywords: Law’s claim to authority; exclusive legal positivism; Joseph Raz; criterial explanations of concepts; multiple concepts of authority; confusion about concepts

JEL Classification: K00, K39

Suggested Citation

Smith, Dale, Must the Law Be Capable of Possessing Authority? (April 25, 2016). Legal Theory, Vol. 18, No. 1 (2012). Available at SSRN: https://ssrn.com/abstract=2770160

Dale Smith (Contact Author)

University of Melbourne - Law School ( email )

University Square
185 Pelham Street, Carlton
Victoria, Victoria 3010
Australia

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