About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline

LOG IN
LOG IN


81 Geo. L.J. 95 (1992-1993)
The Questions of Authority

handle is hein.journals/glj81 and id is 125 raw text is: LECTURE The Questions of Authority FREDERICK SCHAUER* It is no surprise that the issue of authority is so central to thinking about law and legal institutions. Whether it be in the context of the authority of a judge, or the authority of a case or statute, or the importance of providing authorities in briefs and law review articles, a central feature of law is the frequency with which the fact that someone or some institu- tion has said something, rather than what they have said, makes a difference. Sometimes, for instance, the Supreme Court says things that are silly, and sometimes my friends say things that are sound, but much of how law operates centers around the fact that even the silly things the Supreme Court says count for more than the sound things my friends say. Although numerous avenues of jurisprudential inquiry are suggested by the role of authority in the operation of law, one avenue has dominated all others. Since the Crito,1 commentators on legal and political authority have been preoccupied with one question-should those to whom alleg- edly authoritative directives are addressed take those directives as reasons for action when the content of those directives differs from the addressees' all-things-considered judgment about what to do?2 In other words, if * Frank Stanton Professor of the First Amendment and Professorial Fellow of the Joan Shorenstein Center on the Press, Politics and Public Policy, John F. Kennedy School of Government, Harvard University. This is the written version of the twelfth annual Philip Hart Memorial Lecture, delivered at the Georgetown University Law Center on March 25, 1992. Earlier versions were presented at the Public Values Workshop of the John F. Kennedy School of Government, at the Northwestern University School of Law, at the Sapentia Series of the Dartmouth College Department of Philosophy, and at the American Philosophical Association (Central Division). I am grateful to audiences at all of the above, and to David Gilboa and Walter Sinnott-Armstrong for their detailed comments. 1. Plato, Crito, in THE DIALOGUES OF PLATO 33 (Benjamin Jowett trans. & William Chase Greene ed., 1927). 2. For a sample of the enormous modern literature directed to this question see generally AUTHORITY (Joseph Raz ed., 1990); JOHN FINNIS, NATURAL LAW AND NATURAL RIGHTS 233-368 (1980); RICHARD E. FLATHMAN, POLITICAL OBLIGATION (1972); LESLIE GREEN, THE AUTHORITY OF THE STATE (1988); KENT R. GREENAWALT, CONFLICTS OF LAW AND MORAL- ITY (1987); JOSEPH RAz, THE AUTHORITY OF LAW: ESSAYS ON LAW AND MORALITY (1979); JOSEPH RAZ, THE MORALITY OF FREEDOM (1986); ALAN JOHN SIMMONS, MORAL PRINCIPLES AND POLITICAL OBLIGATIONS (1979); PHILIP E. SOPER, A THEORY OF LAW (1984); ROBERT PAUL WOLFF, IN DEFENSE OF ANARCHISM (1970); Heidi M. Hurd, Challenging Authority, 100 YALE L.J. 1611 (1991); M.B.E. Smith, Is There a Prima Facie Obligation to Obey the Law?, 82 YALE L.J. 950 (1973); Symposium, The Works of Joseph Raz, 62 S. CAL. L. REV. 731 (1989). 95