Hart's Onion: The Peeling Away of Legal Authority

67 Pages Posted: 8 Oct 2006

Abstract

Hannah Arendt declared that authority has vanished from the modern world. Practically as well as theoretically, we are no longer in a position to know what authority really is. It is a provocative and paradoxical claim. If authority has vanished and we no longer understand what it even is, then how could Arendt be in a position to know that this is so? And how could the rest of us even make sense of what she is asserting, much less make up our minds about whether her assertion is true?

This article approaches these questions by reflecting on an argument that H. L. A. Hart famously made against the jurisprudence of John Austin. Austin had explained law in terms of commands backed by sanctions. Though Hart criticized Austin's account on various grounds, his most decisive objection considered the case of a gunman who demands money from a victim; Hart suggested that even if the subjects of orders backed by sanctions have good reason to comply with those orders, the command-sanction scenario still does not present us with obligation - or with authority.

This article argues that Hart was right, and that his argument applies to much more than command-sanction accounts of authority. Part I suggests that Hart was making what can be viewed as a conceptual or ontological objection that is importantly different from more familiar factual or theoretical objections to accounts of authority. Part II argues that this same kind of conceptual or ontological objection can be made against other familiar accounts of authority as well. Part III proposes that the intellectual framework in which they operate virtually compels modern theorists, even as they attempt to explain authority, to instead explain authority away. The Conclusion asks whether there is anything in this loss of authority that we need to lament.

Keywords: authority, obligation, jurisprudence, legal theory, divine

JEL Classification: K1, K10

Suggested Citation

Smith, Steven Douglas, Hart's Onion: The Peeling Away of Legal Authority. Southern California Interdisciplinary Law Journal, Forthcoming; San Diego Legal Studies Paper No. 07-68. Available at SSRN: https://ssrn.com/abstract=935340

Steven Douglas Smith (Contact Author)

University of San Diego School of Law ( email )

5998 Alcala Park
San Diego, CA 92110-2492
United States
619-260-7969 (Phone)
619-260-2492 (Fax)

Here is the Coronavirus
related research on SSRN

Paper statistics

Downloads
261
Abstract Views
1,092
rank
121,623
PlumX Metrics