Presupposing Legal Authority

Forthcoming, Oxford Journal of Legal Studies

39 Pages Posted: 24 Sep 2021 Last revised: 27 Sep 2021

See all articles by Rob Mullins

Rob Mullins

The University of Queensland - T.C. Beirne School of Law

Date Written: September 12, 2021

Abstract

The thesis that law necessarily claims authority is popular amongst legal philosophers. Some distinguished legal philosophers, including the late John Gardner, Joseph Raz and Scott Shapiro, have suggested that support for this thesis is found in legal officials’ use of deontic language. This article begins by considering the merits of this suggestion. I discuss two unpromising arguments for the claim thesis based on the use of deontic language in law. I then suggest that a more plausible basis for the claim thesis lies in the felicity conditions of the speech acts that legal officials perform. In the absence of an explicit claim to authority, legal officials make a presupposition to authority over their subjects. The presupposition arises from interaction between the felicity conditions of legal speech acts and basic norms of cooperative communication. I consider some implications of this conclusion for our understanding of legal authority.

Keywords: authority, pragmatic presupposition, deontic language, law's claims

Suggested Citation

Mullins, Rob, Presupposing Legal Authority (September 12, 2021). Forthcoming, Oxford Journal of Legal Studies , Available at SSRN: https://ssrn.com/abstract=3922365

Rob Mullins (Contact Author)

The University of Queensland - T.C. Beirne School of Law ( email )

The University of Queensland
St Lucia
4072 Brisbane, Queensland 4072
Australia

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