AUTHORITY+AND+CONSENT

Authority and Consent Author(s): Joseph Raz Source: Virginia Law Review, Vol. 67, No. 1, The Symposium in Honor of A. D. Woozley: Law and Obedience (Feb., 1981), pp. 103-131 Published by: Virginia Law Review Stable URL: http://www.jstor.org/stable/1072835 Accessed: 23/03/2009 04:40 Your use of the JSTOR archive indicates your acceptance of JSTOR's Terms and Conditions of Use, available at http://www.jstor.org/page/info/about/policies/terms.jsp. JSTOR's Terms and Conditions of Use provides, in part, that unless you have obtained prior permission, you may not download an entire issue of a journal or multiple copies of articles, and you may use content in the JSTOR archive only for your personal, non-commercial use. Please contact the publisher regarding any further use of this work. Publisher contact information may be obtained at http://www.jstor.org/action/showPublisher?publisherCode=vlr. Each copy of any part of a JSTOR transmission must contain the same copyright notice that appears on the screen or printed page of such transmission. JSTOR is a not-for-profit organization founded in 1995 to build trusted digital archives for scholarship. We work with the scholarly community to preserve their work and the materials they rely upon, and to build a common research platform that promotes the discovery and use of these resources. For more information about JSTOR, please contact support@jstor.org. Virginia Law Review is collaborating with JSTOR to digitize, preserve and extend access to Virginia Law Review. http://www.jstor.org AUTHORITY AND CONSENT* Joseph Raz** M1 1Y starting point is the assumption that there is no general obligation to obey the law, not even a prima facie obligation and not even in a just society. This assumption is perhaps becom- ing more popular. In recent years it has been defended by several writers.1 There is more that needs to be said in its support, but I will not attempt to do so here. Instead, I will reflect on a problem posed by accepting it, a problem concerning the relations between an individual citizen and the state. It is common to think that the state has authority over its citizens and that they owe it allegiance. If there is no general obligation to obey the law, does it not follow that the state has no authority over its citizens and that they do not owe it allegiance?2 After first explaining briefly the assumption and the problem it creates, I shall consider different attempts at solving it which try to show that recognition of an authority does not entail belief in an obligation to obey that authority. These attempts at solving the problem fail. I shall then turn to one traditional argument concern- ing the foundations of the state's authority: the argument that political authority rests on consent. I. THE PROBLEM We are concerned with the proper attitude of a conscientious person toward a reasonably just state of which he is a citizen. No assumption is made that it is a perfectly just state. It is probably * Copyright ? 1981 by Joseph Raz. ** Fellow and Tutor in Jurisprudence, Balliol College, Oxford. See J. RAZ, The Obligation to Obey the Law, in THE AUTHORITY OF LAW 233 (1979); A. SIMMONS, MORAL PRINCIPLES AND POLITICAL OBLIGATION (1979); A. WOOZLEY, LAW AND OBE- DIENCE (1979); Smith, Is There a Prima Facie Obligation to Obey the Law?, 82 YALE L.J. 950 (1973). From a different point of view, R.P. Wolff reaches similar conclusions. See R. WOLFF, IN DEFENSE OF ANARCHISM (1970). 2 I will not be concerned with the relations between noncitizens and the state. "Citizen" in this essay is not meant as a legal category but as a moral and political one to which the law should conform. I will refer to the authority of the state, of the government, and of society interchangeably, for the considerations discussed in this article do not require distin- guishing among them. 103 Virginia Law Review not humanly possible to maintain perfect institutions. On the other hand, the problems of one's attitude to a fundamentally iniq- uitous state are not of present concern. To deny that there is an obligation to obey the law is not, of course, to claim that one should disobey the law, nor even that it does not matter whether one obeys or disobeys. It is to deny that there is a sound general argument establishing as its conclusion that, if the law of a reason- ably just state requires a citizen of that state to behave in a certain way, then he has an obligation so to behave. What is denied is that the fact that something is a law creates such an obligation. There- fore, the denial of an obligation to obey is compatible with the view that in most cases, or even in all of them, one is obligated to conform to the law provided that the source of the obligation is not always that the action is required by law. Furthermore, while not all citizens are bound to obey, it is possible that some are subject to such an obligation by virtue of, e.g., a promise they made always to obey the law. There is considerable practical importance to the assumption that there is no general obligation to obey the law. People in- formed by it are likely to find numerous occasions on which it will make a difference to their practical reasoning, leading them not only to revise their appreciation of the right reasons for complying with the law but, on occasion, to the view that the reasons for com- pliance, which might have been adequate had there been an obliga- tion to obey, are inadequate in its absence. It is intriguing to inves- tigate in detail the types of occasions on which our assumption is likely to lead to different valid conclusions as to what is best to do. But this, too, is a task not to be undertaken here beyond comment- ing briefly on one aspect of the question that is relevant to my main topic. One category of acts of disobedience, the status of which is unaf- fected by the assumption, is the class of politically motivated acts of disobedience. There is a general and valid reason to refrain from political disobedience be it civil or revolutionary. One ought to support just institutions, and in a just state one ought to support the state. It does not follow, however, that one ought to obey the law of a just state, for many acts of obedience do not at all support the existence or the justice of the state and its organs, and many acts of disobedience do nothing to undermine them. Politically mo- tivated disobedience, on the other hand, tends to undermine politi- 104 [Vol. 67:103 Authority and Consent cal institutions whether it is intended to do so or not. To be suc- cessful, politically motivated disobedience must normally have publicly known consequences, and this normally ensures that, if successful, the fact that breach of law with political consequences occurred will be a matter of public knowledge; such knowledge tends to undermine the political institutions involved. Hence, one has reason not to engage in political disobedience in a just society. Much recent discussion of the obligation to obey the law was stim- ulated by reflection on the conditions under which civil disobedi- ence is justified. Such discussion was often meant to establish that those proposing civil disobedience must have a strong case to jus- tify such action, strong enough to override a prima facie reason not to engage in such action. I wholeheartedly agree with this view. Unfortunately, many writers have overstated their case by claiming to have established a general obligation to obey the law. The assumption that WA: A citizen has no general obligation to obey the law even in a just state raises a question concerning the proper attitude of a person to his state. The question can be brought into sharper focus by articulat- ing another assumption that underlies much of what has already been said: RSA: Just states are humanly possible. Just states, it will be recalled, are not perfectly just ones. They are merely reasonably just, or just on the whole. Such states are not merely logically possible. They are also humanly possible. There is nothing in hluman nature or in the human condition, in nature or history, to make their realization an impossibility. RSA is a rejection of strong anarchism. It is an admission that the state and the law can fulfill an important and valuable func- tion. They do so primarily when, through the machinery of legal remedies and sanctions, they make more people behave as they should and when they initiate and maintain beneficial schemes of social cooperation that would otherwise fail because of prisoners' dilemma factors or other reasons. At the same time, WA is a weakly anarchic assumption, for it amounts to a rejection of the general authority of the state. To have authority, it has often been said, is to have a right to command, a right to which corresponds an obligation to obey incumbent on those who are rightly subject to that authority. WA denies the state, even the just state, author- 1981] 105 Virginia Law Review ity; RSA justifies, under certain conditions, the existence of the state. But is not a just state without legitimate authority a contra- diction? Some aspects of this apparent paradox are the subject of this essay. II. AUTHORITY AND JUSTIFIED POWER One important attempt to dissolve the paradox is to reinterpret the notion of authority so as to make it consistent with WA. That is, legitimate authority should be understood in a way that entitles one to say that a just political power has authority even though its subjects have no obligation to obey it. In discussing three such in- terpretations, I will, though intending to return to the problems of political authority, extend the discussion to considerations affect- ing authority in general. Political authority shares with other kinds of authority its character as an authority. A discussion of the con- cept of authority cannot be confined to one type of the genus. One interpretation of authority that, if successful, achieves the desired result makes legitimate authority dependent on de facto authority and defines legitimate authority as justified (in some sense) de facto authority. De facto authority is then defined as (a form of) power over people. Here the paradox is avoided, since one can admit that it is justified that a person has certain power with- out conceding an obligation to obey him. This analysis fails because the notion of de facto authority itself cannot be understood except by reference to that of legitimate au- thority. De facto authority is not just an ability to affect people's actions and beliefs. Such power to influence, though possessed by people who have de facto authority, is not confined to them. Prop- aganda and advertising influence people, but those who use them do not necessarily have authority. Much power is exercised by changing the situation facing people. A strike by the workers or a lockout by their employer may affect people's actions and beliefs in the intended way, yet the exercise of such power has nothing to do with the possession of authority, de facto or otherwise. The influence an authority has is more conscious or (at least po- tentially) rational. It is not exercised through manipulating people. It works through their reasoning about what to do or to believe. This condition may exclude certain forms of suggestive advertising and rousing propaganda; it will not exclude other forms of those activities that affect people by propagating information and views, [Vol. 67:103 106 Authority and Consent nor will it exclude activities that influence people by changing their circumstances. The power of authority is more direct. It is exercised simply by the authority expressing its wish that some- thing is to be done or believed. But on reflection, this is much too wide a category. Parents are as much in the habit of acceding to their children's wishes as children are inclined to obey their par- ents, yet only the parents have authority. Children obey (at least sometimes) because they accept the authority of their parents. Usurpers differ from highwaymen in claiming that they are enti- tled to command, and that is why their success establishes that they have de facto authority. In other words, to have de facto au- thority it is not enough to have power to influence people. It is also necessary that such power is either coupled with a claim to author- ity or is efficacious at least partly through people's belief that the person or body who wields the power has authority to do so. III. THE RECOGNITIONAL CONCEPTION To perceive clearly our notion of authority, it helps to concen- trate on the attitude of people who recognize its legitimacy. One can then most clearly discern what authority is by seeing what one acknowledges when acknowledging that a person has legitimate au- thority. The first point to emerge from the discussion so far is that the influence of authority is not manipulative but direct and nor- mative. Characteristically, it affects people's practical reasoning by means of authoritative utterances. It is a necessary condition for a person to have authority, to be in authority, or to be an authority that some of his utterances are authoritative. In this essay only the nature of this condition is examined. A person who accepts that A has authority is a person accepting the soundness of arguments of the form: A has authority; A decreed that x is to B (or A has said that p); Therefore, x ought to 0 (or one ought to believe that p). Many conceptions of authority are different interpretations of this inference form. One such conception I shall call the recognitional conception. According to it, one ought to follow an authority be- cause to recognize its authority is to realize that there are indepen- dent reasons to do or to believe as it advises. The recognitional conception regards acknowledging an authority as having confi- dence in its judgment, trusting its opinion. The assumption is that 1981] 107 Virginia Law Review an authoritative utterance informs one of what one has reason to do or believe anyway. To accept an utterance as authoritative is to regard it as a reason to believe that one has reason to do or to believe as told. The recognitional conception aims to avoid our problem in a new way. Authoritative utterances are reasons, but they are reasons for belief, not for action. Therefore, regarding someone as an authority does not entail a belief that one has a reason to obey him, since reasons for obedience are reasons for action. It is best to evaluate separately the success of this conception to account for practical and for theoretical authority. Practical authority is authority affecting what is to be done. Ac- cording to the recognitional conception, the utterances of legiti- mate authority do not affect the balance of reasons. They are not themselves reasons for action, nor do they create any such reasons. They merely provide information about the balance of reasons as they exist separately and independently of such utterances. This is not to make light of the importance of authority as interpreted by this conception. After all, people act not on the reasons there are but on those they believe there are (insofar as they act on reason at all). Therefore, the recognitional conception has an explanation to offer as to how it is that authoritative utterances, though not themselves reasons for action, can affect one's reasoning about practical problems. Yet it is the essence of this view that all au- thority is essentially theoretical, i.e., that it provides one only with reasons for belief, never with reasons for action. The so-called practical authority is reinterpreted as authority concerning belief in deontic propositions. The authoritative utterances of practical authorities are reasons to believe that one ought to do that which the utterance says one should. Such an account of practical authority is fundamentally flawed. It is, for example, unable to account for the role of authority in the solution of coordination problems. Those are problems where the interests of members of the group coincide in that, among a set of options, the members prefer that which will be followed by the bulk of the members of the group above all else. One does not mind whether one drives on the left or the right provided everyone else does the same. There are many such problems of great impor- tance to the orderly conduct of any society. A wise man can tell me which options belong to that set, but he cannot tell me which of 108 [Vol. 67:103 Authority and Consent the set to choose before it is known what others will do. Sometimes that can be known on the basis of existing facts. Many people are likely to believe that many will choose a particular option and therefore they will choose it themselves; hence, one has reason to follow them and choose it as well.3 Sometimes, however, there is no option in the designated set that will be the obvious choice. In such cases, what one needs is something that will make a particular option the one to follow. This is something practical authorities often do (or attempt to do). They designate one of the options as the one to be chosen and, if their action is regarded as a reason to adopt that course of action, then a successful resolution of the problem is found. Since solving coordination problems is one of the important tasks of political and many other practical authorities and as their relative success in it can only be explained by regard- ing authoritative utterances as reasons for action, one must reject the recognitional account of practical authority. This criticism is enough to show that the recognitional view is unacceptable. There is, however, some interest in showing first that the same objection cannot be raised against this conception viewed as an account of theoretical authority and, second, that all the same it cannot explain the nature of such authorities. Nor- mally one's statement that something is the case is at best a para- sitic rather than an original reason for holding that it is indeed the case. That is, normally a statement is a reason for belief in its con- tent only to the extent that it is a reason to believe that the speaker had other grounds for accepting it. He saw it happen, or he had a firsthand account of the event, or he had other inferential grounds for reaching this conclusion. The two main exceptions to I I am grateful to J. L. Mackie for pointing out to me that this can sometimes be based on authoritative advice: Imagine a society into which wheeled vehicles have just been introduced, but where there is as yet no rule of the road. There is a local wise man who is reputed to be able to foretell future events, but no government with local political authority. Observing the chaos on the roads, the wise man announces: "I foresee that from tomorrow morning most people will drive on the left." Since most people either believe that he has the power to foresee the future, or believe that most others believe this, nearly everyone who hears the announcement will, from sheer prudence, start driving on the left himself. The wise man's clairvoyance will thus be confirmed, and he will be in a stronger position to solve whatever the next co-ordination problem may be. Letter from J. L. Mackie to Joseph Raz. Such cases, being based on shared false beliefs, are unlikely to be so common as to explain the function of authority in all coordination situations. 1981] 109 Virginia Law Review this rule are self-verifying utterances such as "I am alive" and avowals, i.e., a person's reports of his own men