A Pragmatic Reconstruction of Law’s Claim to Authority

• Date: 01 March 2019
• Published date: 01 March 2019
• Author: Horacio Spector
• DOI: http://doi.org/10.1111/raju.12232

© 2019 The Author. Ratio Juris © 2019 John Wi ley & Sons Ltd.

Ratio Juris. Vol. 32 No. 1 Mar ch 2019 (21–48)

A Pragmatic Reconstruction

of Law’s Claim to Authority

HORACIO SPECTOR*

Abstract. Raz holds t hat necessarily all legal authorities, even de facto authorities,

make a claim to legiti mate authority. He does not say that legitimacy is a neces-

sary property of law. This view, which I call the claim view, constitutes my focal

point in this paper. Many commentators have criticiz ed this view. I discuss a nd

dismiss th ree critiques of the claim view: the verification critique (the clai m view is

not empirically confir med), the legalistic critique (law claims legal authority, not

moral authority), and the semantic critique (lega l obligations are sema ntically dis-

tinct from moral obligations). I submit that Raz e quates the meani ng of legal du-

ties with that of moral duties and yet denies t hat legal statements entail moral

propositions. In other words, I disting uish the semantic identity thesis from the se-

mantic entailment thesis. Instead of a semantic inter pretation of the claim v iew, I

defend a presuppositional ascription of a general c laim to moral authority to au-

thoritative duty-imposing and normatively committed us es of legal language by

official spokesmen. I show that law’s claim to authority does not prove the truth

of the sources thesis, because conc eptual confusion or i nsincerity ca n affect the

epistemic reliability of t he propositions embodied i n the claim, and because bla-

tant immorality ca n altogether cancel law’s pragmatically presupposed clai m to

moral authority. I also argue that the claim v iew can only warrant t wo 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 ground s.

1. Introduction

In times of constit utional crisis, when the source of u ltimate authority is contest-

able, one of the contending authorities of a de facto government may stake an ex plicit

claim to authority in order to reaf firm its sovereign supremacy. I offer two examples,

one contemporary, the other medieval, to illustrate this poi nt. In 2016 two British

authorities, the Government and Parliament, claimed authority to trigger Ar ticle 50

of the Treaty on European Union. The High Court of Justice rea ffirmed parliamen-

tary sovereignty in t hese terms:

* Prior versions of this e ssay were submitted at law and philo sophy seminars at the Univers ities

of Buenos Aires, Pompeu Fabra, and Torcuato Di Tella. I am very grateful for h elpful com-

ments made by participants i n those meetings.

Horacio Spector22

Ratio Juris, Vol. 32, No. 1© 2019 The Author. Ratio Juris © 2019 John Wi ley & Sons Ltd

It is common ground th at the most fundament al rule of UK const itutional law is that t he

Crown in Parliament is s overeig n and that legislat ion enacted by the Crown with the consent

of both Houses of Parliament i s supreme (we will use the famil iar shorthand and refer simply

to Pa rliam ent).1

I take my medieval example from the Western Sch ism, which lasted from 1378 to

1417. The reader may be aware that apostolic succession is fixed in Matthew 16:18,

which says: “I also say to you that you are Peter, and upon this rock I will bu ild My

church […].” On the papalist interpretation the Pope commands plenitudo potestatis,

that is, the highest authority in t he Church. But the fact that thr ee popes, Gregory

XII at Rome, Benedict XIII at Avignon, and John XXIII in Florence, claimed title to

the Papacy left no room for an uncontestable papal claim. Eventually, the Council of

Constance put an end to the cri sis by invoking the conciliarist interpretation, accord-

ing to which the Ecumen ical Council possesses supreme authority in t he Church. In

effect, in its fift h session, held on April 6, 1415, the Council approved the Haec sancta

synodus decree that sought to resolve the constitution al crisis by claiming supreme

conciliar author ity.2 In this decree the Council clai med that it was the synod, and not

the Pope, that had the highest legitimate authority.3 In the crit ical passage, the holy

synod of Constance said:

First it declares that, legitimately assembled in the Holy Spirit, constit uting a general council and

expression of the mi litant Catholic Church, it has power immedi ately from Christ and that every -

one of whatever status and dignit y, even if a papal one existe d, is obliged to obey it in those matters

regarding the fa ith, the elimination of the sa id schism, and the general reform of t he Church

of God in its head and member s. (Gieseler 1858, 229; italics added)4

These two examples illust rate the diversity of meani ngs of claim. The “claim” made

by the High Court of Justice is an ar ticulation of the rule of re cognition in the UK.

It is a recognitional or const itutional clai m in that it refers to the const itutional au-

thority of Parliament. The Court does not cl aim that there is a mo ral obligat ion to

follow the directives of Parliament or the norm s of British law. It merely settles the

legal validity criteria of potent ially conflict ing decisions made by Parliament and

the Government (e.g., the decision to withdraw from the European Union). In con-

trast, the declaration made by the Council of Con stance can be interpreted as a moral

claim stating th at the supreme authority of the Council is morally just ified (on the

basis of the Christ ian moral outlook endorsed in Medieval Europe). Like any other

moral claim, a moral claim pronou nced by a political authority entails a nd seman-

tically presupposes moral propositions. For example, the decla ration of the Council

entailed that the contendi ng Popes were morally obliged to obey its decisions.

1 R (Miller) v Secretary of State for Exiting the European Union [2016] EWHC 2768 Admin; [20];

italics added.

2 My account of the Haec sancta synodus decree is based on Joh n C. L. Gieseler 1858, Brian

Tierney 1955; and Sebastián Provv idente 2012, 2013a, 2013b.

3 In the exercise of t hat claimed authorit y the Council depos ed the antipopes Be nedict and

John, condemned John Wyclif fe and Jan Hus for heresy, and elected Marti n V as the new Pope.

However, the decree today is considered inval id by the Roman Catholic Church.

4 Gieseler (1858) reproduces the text in Latin; t he translation into English i s mine.