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Social Meaning, Compliance Conditions, and Law’s Claim to Authority

Published online by Cambridge University Press:  09 June 2015

William A. Edmundson
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Political authorities claim to be able to impose moral duties on citizens by the mere expedient of legislating. This claim is problematic -- in fact, among theorists, it is widely denied that political authorities have such powers. I argue that the legitimacy of political authority is not contingent upon the truth of its claim to be able to impose moral duties by mere legislation. Such claims are better seen as exercises of semiotic techniques to alter social meanings. These alterations serve to facilitate desirable social change that may not have been antecedently obligatory because of the nonfulfillment of a compliance condition, which normally attaches to any "fair-play" duty. Where political authority uses the semiotic technique of announcing a legal -- and by implication moral -- duty, thereby altering social meaning as a means of bringing about the satisfaction of a compliance condition, it makes a claim whose literal falsehood (if false it be) does not derogate from the authority’s legitimacy.

Type
Research Article
Information
Canadian Journal of Law & Jurisprudence , Volume 15 , Issue 1 , January 2002 , pp. 51 - 67
Copyright
Copyright © Cambridge University Press 2002

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References

1. See Lawrence Lessig, “The Regulation of Social Meaning” (1995) 62 U. Chicago L. Rev. 943.

2. I defend this account of authority in Three Anarchical Fallacies: An Essay on Political Authority (Cambridge: Cambridge University Press, 1998).

3. For a fuller description of these distinctions, see ibid, at 36-44.

4. Joseph Raz, “Authority and Justification” (1985) 14 Phil. & Publ. Affairs 3 at 6. For a contrasting view of the claims of legal authority, see Kramer, Matthew H., In Defense of Legal Positivism (Oxford: Oxford University Press, 1999)Google Scholar.

5. See Leslie Green, “Who Believes in Political Obligation?” in John T. Sanders & Jan Narveson, eds., For and Against the State I (Lanham, MD: Rowman & Littlefield, 1996) and Philip Soper, “Legal Theory and the Claim of Authority” (1989) 18 Phil. & Publ. Affairs 209; both are reprinted in Edmundson, William A., ed., The Duty to Obey the Law: Selected Philosophical Readings (Lanham, MD: Rowman & Littlefield, 1999)Google Scholar.

6. H.L.A. Hart, “Are There Any Natural Rights?” (1955) 64 Phil. Rev. 175; see George Klosko, The Principle of Fairness and Political Obligation (Lanham, MD: Rowman & Littlefield, 1992). As noted infra note 39, there is dispute about the proper formulation of the duty of fair play. I finesse this dispute here, but I rely on the assumption that an acceptable formulation is within reach, which will nonetheless extend to a nontrivial and in fact quite wide range of conduct.

7. Compare Rawls, John, A Theory of Justice at 333-37 (Cambridge, MA: Harvard University Press, 1971)Google Scholar. To address what he terms the “assurance problem,” Rawls attempts to derive a natural duty of justice from the original position.

8. See Wolff, Robert Paul, In Defense of Anarchism, reissue ed. (Berkeley: University of California Press, 1998)Google Scholar; see Rieman, Jeffrey, In Defense of Political Philosophy (New York: Harper & Row, 1972)Google Scholar.

9. See Simmons, A. John, Moral Principles and Political Obligations (Princeton, NJ: Princeton University Press, 1979)Google Scholar.

10. I assume that instances of the form “It herewith becomes …” are classifiable as a “constative” performatives, that is, as expressions that both do something (or misfire in the attempt) and state (perhaps falsely) that it is done. Compare the remarks on “I promise” in Searle, John R., Speech Acts (Cambridge: Cambridge University Press, 1969)CrossRefGoogle Scholar at 57f.

11. Compare Larry Alexander, “The Gap” (1991) 14 Harv. J. of L. & Publ. Pol. 695 and Larry Alexander & Emily Sherwin, “The Deceptive Nature of Rules” (1994) 142 U. Pa. L. Rev. 1191 at 1194. Alexander and Sherwin argue that useful rules are inescapably overbroad, and that there is therefore an ineliminable gap between the reasons justifying legal rules and reasons that bear upon actors when acting. Consequently, “either deception or delusion is an inevitable feature of successful rules.” Larry Alexander & Emily Sherwin, “The Problem of Rules” (1999) [unpublished] (at 51-59 in paper presented at Legal Analytical Philosophy Conference, Philadelphia, Pa., April 9, 1999). The gap I am concerned with here does not stem from the necessary overbreadth of useable rules, and so is additional to their gap; what I offer here may or may not palliate their objections to a strategy of deception to maintain a system of (inescapably overbroad) public rules. Cf. Larry Alexander, “Pursuing the Good—Indirectly” (1985) 95 Ethics 315 at 325-29.

12. Strictly speaking, a constative performative of the form, “It herewith becomes …,” is either true upon utterance or never is, notwithstanding the possible truth of the later-uttered declarative “It therewith became….” On the logical behavior of performatives, see John R. Searle, supra note 10 at 64-71.

13. The idea that semiotic techniques are in general to be preferred to merely behavioral ones is widespread, and is consistent with (though not demanded by) the view I am advancing. Similarly, one might have independent grounds for preferring certain semiotic techniques over others. Insofar as my discussion focuses on the fulfillment of compliance conditions, it is neutral on these issues. For an argument against the common view that the state’s use of behavioral techniques is prima facie undesirable, see my Three Anarchical Fallacies, supra note 2 at chs. 4-6.

14. 15 U.S.C. §§13-13b, 21a (1980).

15. New York Times (21 Feb. 1999) Sports Section.

16. Enthusiasm for informal norms is evident throughout Ellickson, Robert C., Order without Law: How Neighbors Settle Disputes (Cambridge, MA: Harvard University Press, 1991)Google Scholar.

17. Lessig, supra note 1 at 955.

18. See Grice, Paul, Studies in the Way of Words (Cambridge, MA: Harvard University Press, 1989)Google Scholar.

19. Ibid. at 26.

20. Ibid.

21. See Mackay, Charles, Extraordinary Popular Delusions and the Madness of Crowds (New York: Noonday Press, 1932)CrossRefGoogle Scholar at 619-22.

22. Lessig, supra note 1 at 957-59.

23. Ibid, at 960-61.

24. Ibid, at 962.

25. Ibid, at 966.

26. Ibid, at 967.

27. For a gymnastic effort to support the supremacy of federal legislation under the commerce clause, rather than the more naturally applicable enabling clause of the fourteenth amendment, see Katzenbach v. McClung, 379 U.S. 294(1964).

28. Nozick, Robert, The Nature of Rationality (Princeton, NJ: Princeton University Press, 1993)Google Scholar at 27.

29. Cf. Heidi Hurd, “Sovereignty in Silence” (1990) 99 Yale L. J. 945, and “Challenging Authority” (1991) 100 Yale L.J. 1611.

30. See Liam Murphy, “The Demands of Beneficence” (1993) 22 Phil. & Publ. Affairs 267.

31. See Gerald J. Postema, “Coordination and Convention at the Foundations of Law” (1982) 11 J. Legal Studies 165.

32. Randal C. Picker, “Simple Games in a Complex World: A Generative Approach to the Adoption of Norms” (1997) 64 U. Chicago L. Rev. 1225. My discussion here tracks Picker’s examples. No one with an interest in the possibilities that computers have opened up for scholars should miss the opportunity to work through the results of Picker’s experiments in silico at http://www.law.uchicago.edu/Picker/aworkingpapers/norms.html.

33. The Montana Supreme Court recently struck down that freewheeling state’s “reasonable and proper” alternative to a fixed speed limit as unconstitutionally “void for vagueness.” Stale v. Stanko 292 Mont. 192, 974 P.2d 1132, 1998 MT 321. Mont. (Dec 23, 1998). See New York Times (25 Dec. 1998) at A16.

34. Supra note 28 at 34.

35. George Rainbolt pointed out this difficulty to me.

36. Cass. R. Sunstein, “Social Norms and Social Rules,” (1996) 96 Colum. L. Rev. 903 at 945.

37. Dan M. Kahan, “Social Influence, Social Meaning, and Deterrence” (1997) 83 Virginia L. Rev. 349 at 358.

38. Mark Murphy and George Rainbolt have pressed this point.

39. This is not to say that the duty of fair play suffices as a foundation for a general duty to obey the law. For doubts on this score see Robert Nozick, Anarchy, State, and Utopia at 90-95 (New York: Basic Books, 1974), and A. John Simmons, Justification and Legitimacy: Essays on Rights and Obligations at ch. 2 (Cambridge: Cambridge University Press, 2001). For an explanation of political legitimacy that does not require a general duty to obey the law, see my Three Anarchical Fallacies, supra note 2 at 48-70.