Michelle Madden Dempsey (Villanova University School of Law) has published "Authority, Obedience, and Justification" on SSRN. Here is the abstract:
We have a duty to think for ourselves. The law claims authority over us. We have a duty, at least sometimes, to obey the law. Alone, each of these premises is fairly uncontroversial. Combined, they create some intriguing puzzles. Can law’s claim of authority be justified? If so, does justified legal authority entail an obligation to obey the law? If not, are we nonetheless justified, and perhaps even obligated, to act as if such an obligation exists? While this essay is hardly the first to address these questions, it is the first to do so by combining elements of Joseph Raz’s prominent “service conception of authority,” along with John Gardner’s influential account of justification, to defend a modest version of philosophical anarchism. These philosophical resources illuminate new explanations regarding the justification of law’s claims to authority and our obedience to those claims.This Article is an exercise in analytic legal philosophy. It clarifies the nature of authority, obedience, and justification to provide a framework for understanding when claims of authority and obedience to such claims are justified. This framework has at least three important implications for the practical attitude we should adopt toward the law in our current political climate. First, we should resist currently fashionable arguments grounded in the condemnation of “lawlessness.” Second, we should acknowledge the potential value of the law, and its claim to authority, when it comes to (re)establishing the trust required to maintain our political community. Third, we should recognize obligations to the law that extend beyond any supposed obligation to obey, including obligations both to know and improve the law. Applying the framework set out in this Article allows us to maintain a healthy skepticism toward law’s claim of authority over us, recognize the value of justified obedience to law’s authority, and identify the circumstances under which we may be obligated to obey law’s claim of authority over us.
Comments