A Pragmatic Reconstruction of Law's Claim to Authority

28 Pages Posted: 25 Feb 2019

See all articles by Horacio Spector

Horacio Spector

University of San Diego School of Law; Universidad Torcuato Di Tella

Multiple version iconThere are 2 versions of this paper

Date Written: March 2019

Abstract

Raz holds that necessarily all legal authorities, even de facto authorities, make a claim to legitimate authority. He does not say that legitimacy is a necessary property of law. This view, which I call the claim view, constitutes my focal point in this paper. Many commentators have criticized this view. I discuss and dismiss three critiques of the claim view: the verification critique (the claim view is not empirically confirmed), the legalistic critique (law claims legal authority, not moral authority), and the semantic critique (legal obligations are semantically distinct from moral obligations). I submit that Raz equates the meaning of legal duties with that of moral duties and yet denies that legal statements entail moral propositions. In other words, I distinguish the semantic identity thesis from the semantic entailment thesis. Instead of a semantic interpretation of the claim view, I defend a presuppositional ascription of a general claim to moral authority to authoritative duty‐imposing and normatively committed uses of legal language by official spokesmen. I show that law’s claim to authority does not prove the truth of the sources thesis, because conceptual confusion or insincerity can affect the epistemic reliability of the propositions embodied in the claim, and because blatant immorality can altogether cancel law’s pragmatically presupposed claim to moral authority. I also argue that the claim view can only warrant two qualified versions of exclusive legal positivism, one of which is almost tautological, the other self‐contradictory. Finally, I suggest that exclusive legal positivism cannot be defended on conceptual grounds.

Suggested Citation

Spector, Horacio, A Pragmatic Reconstruction of Law's Claim to Authority (March 2019). Ratio Juris, Vol. 32, Issue 1, pp. 21-48, 2019. Available at SSRN: https://ssrn.com/abstract=3340119 or http://dx.doi.org/10.1111/raju.12232

Horacio Spector (Contact Author)

University of San Diego School of Law ( email )

5998 Alcala Park
San Diego, CA 92110-2492
United States

Universidad Torcuato Di Tella ( email )

Buenos Aires
Argentina

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