Why does law claim authority
In our everyday encounters with the Law, it rarely speaks in tentative terms. Statutes are written in definitive terms. Acts are not stated as you might think about paying taxes or you would reflect upon the proper speed limit – it is you must. This raises a prima facie question: why does law claim authority? Joseph Raz devoted a great deal of his life to this puzzle. In The Authority of Law, and in later writings, he noted that authority is not just about threats or command. It is something the Law claims for itself, and a necessary part of any understanding about how a legal system can work.
The first idea Raz had was that law claims legitimate authority in order to guide people. The idea of claims is crucial, even when claims fail, because without claims about authority the law would lose its defining feature. According to Raz, authority is more than power. A robber with a gun may have power but at least for him, that power does not constitute authority. For Raz, authority is a normative claim. The Law presents itself as entitled to be obeyed, idiosyncratically or simply as one who can use a gun for compliance.
Raz explained the service conception of authority. The role of authority is to help people act on reasons that already exists. What is a reason? People’s reasons include living in safety, coordinating with others, or protecting some common good. The law provides an umbrella to sort through and organize those reasons into a coherent set of action directives. When the law is deservingly successful, it offers a type of service that individuals will typically land upon more easily than if they acted alone. Authority, in this sense, is service. It serves to assist, not invent.
The classic analogy is that of the GPS. A driver has some reasons to make it to a destination already; the GPS does not invent that reason. However, it does reduce the difficulty of acting on that reason or plan by providing reliable directions. Law is not going to give people reasons for safety, order, or fairness, those reasons exist apart from the law. What the law does is translate those reasons into rules. Speed limits, tax codes, and our whole system of contracts are ways the law organizes pre-existing reasons into workable guidance.
This is why law must claim authority. If the law only offered guidance as suggestions, it falls short of a body of guidance that would be necessary of an authority. If its purpose is to guide, it must demand the agency be effective, and therefore the law must state “you must” and not “you may consider.” Without a claim of authority, the law collapses the service function of law. The guidance would be left up to individuals, and people would need to decide individually whether or not to accept that the law's guidance warranted obedience. Law's role as a coordinating enterprise would dissolve.
Raz seemed to impress upon the fact that a claim of authority does not necessarily mean the authority is possessed by law. A law that restricted speech and provided no legitimate justification would claim authority without actually possessing it. The claim of authority is an identity marker of law, however the ability to claim it does require law support and justify successful assistance for individuals acting on their reasons. This is why Raz could reject a general duty to obey the law and yet insist that the law always makes a claim to authority. The claim is an aspect of law, even where the substance does not justify it.
To illustrate, consider as an example a building code that mandates fire escapes in apartment buildings. Tenants and builders already have good reason to care about safety, and the law enacts those reasons into a strong duty with coercive support. The claim is authority matches the justification. Now imagine instead a law that mandates all shop signs be the same color for no reason other than some bureaucratic preference. The law still makes a claim to authority, but it fails to serve the justification. Here, the claim is formal and the justification is weak. Raz's theory helps us to separate the two.
The importance of the claim and the justification of course becomes clearer when we introduce the issue of the stability of legal systems. In general, people treat laws as binding, and certainly not as mere advice. This common understanding is precisely what permits or facilitates coordination on a large scale. For example, when drivers adhere to traffic laws, it is not because each driver weighs each individual law. Rather, since law claims authority in general, we all benefit from the order it provides us. The claim of authority provides us with predictability, event in cases where strict compliance to the actual traffic law would not have made sense or provided actual safety benefit. Without that predictability, the legal system would collapse into free riding, and the legal system loses its effectiveness.
And yet, Raz's account also warns us against equating the claim with success. Law may assert it governs everything it purports to govern, but the essence of that governance is rooted in the notion of service. Thus, there is an entry point for displacement. Citizens might ask themselves if a particular law, in fact, does help them to act on their reasons. If not, they have standing to contest its legitimacy, while credentialing the claim to governance. Raz's theory provides us a rendering of the form of law and of the content of law.
One implication of this conception is a reformulation of the debate about political obligation. Traditional understandings of political obligation often have asked whether citizens owe obedience to the law, as a threshold question. Raz reformulated this question. Since the law lays a claim of authority, the question becomes when the claim of authority is warranted. This authorizes obligations for law-maker's and judges, because they must now construct the rules to facilitate citizen's reasons, and not simply structure them out of a kind of commitment to governance. Authority is a thing constructed through function, and not simply taken for granted in form.
Another implication is in the evaluation of unjust regimes. Even the most coercive of regimes make a claim of authority. A dictator does not say compliance is optional; they say it is required. Raz's regime provides a succinct way to describe here something exists, but something is not justified. It operates authority in form, but does not contain the attributes of authority in substance. Anyone working in critical moral analysis will view motivated difference as important, because engaging with the levels of compliance can be reached without entering into legitimacy.
Critics have raised that the service conception should make authority too contingent on individual judgement. If authority depends only justification provided by reasons people already have, it could feel too flimsy. Sure, if the conditions of common reasons started to breakdown? Raz answered this by saying essentially the law works with general reasons that we inhabit, like safety, coordination, or fairness for transactions. The law does not depend upon ideas of individual judgement that are known not known to others. Therefore, we should assert authority is stable, because the reasons that it claims to serve are, in social life, deep reasons.
For citizens however, the message is clear. Law will always present itself as authority, we see it in the language of rules, regulation, and the decisions of courts, which are stated in definitive terms. But claims are different than reality. To ask the question, "why do claims it has authority," is to understand the difference between an object and an action. The form required the claim, the function requires justifications. Both warrant examination if we are interested in understanding how the law is functioning, and when it should be obeyed.
The question "Why does law claim authority?" receives an unsparing answer from Raz. The law must assert its authority, in order to perform its function. Without the authority claim, the law would cease to operate its coordination role in society. Whether that claim succeeded depends entirely on whether the laws served reasons the citizens agree to have. Authority must, then, be thought of as essential and conditional. It must be complicated as essential. It will not exist without making the claim. It is conditional because the claim does not have significance without the law providing a service. This is modern jurisprudential insight, and thinking about what the powers of the will be centerpiece of our inquiry of law and its limits.
