Authority and Meaning

This conference contribution celebrates Richard Kay’s contention that a sound theory of legal meaning depends on a sound theory of legal status. Contrary to Kay, I conclude that identifying law’s true source reveals that we should seek law’s meaning not primarily in lawgivers’ intentions, but in public understanding. If the rule of recognition at the core of a legal system emerges through shared expectations, if its essence is social custom, then the whole legal system grows forth from shared expectations, from social custom. Our following particular persons pedigreed by that system as lawgivers, including constitutional lawgivers, is not a departure from custom, but an extension of custom, morally supported by whatever morally supports following custom. Customs of following leaders are custom-based fast tracks to many more customs. Our underlying reason for following law “because it is law” is the thing that makes it law, namely its success at self-fulfillingly expressing what people in our community are likely to do and to expect, including how various among them are likely to respond to how we act. That weighty (though not preemptive) and law-specific reason for following law is not only about eliciting approval and avoiding punishment, but more deeply about our need to have the shared expectations that law alone can provide. Legal systems are multifaceted prediction systems that we have strong moral reason to preserve, because we live inside them. H.L.A. Hart rightly rejected the notion that statements of obligation are just predictions, but a prediction system can produce moral obligation to conform if there is good in having that system. Attempts to salvage an idea of authority as source of law may frame it as a source of merely presumptive, defeasible duties to obey. Such attempts might add value if they could demarcate a zone in which lawgivers and law receivers can both know ex ante that lawgivers will be morally justified in issuing laws and law receivers will be morally required to follow laws. But there is no such zone. Each human action – of lawgiving and of law following – is a separate, individualized moment of all-things-considered moral judgment. From the lawgiver’s perspective, doing particular acts that are likely to succeed in lawgiving may or may not be the right thing to do whether or not the lawgiver came to power in a good way. And for the rest of us, following law on particular occasions may or may not be the right thing to do whether or not the lawgiver was morally justified in doing the acts that made that law and whether or not the lawgiver came to power in a good way. What’s the point of an “authority” that is not coextensive with the claimant’s power, and not clear ex ante about its own extent, and not in itself the answer to when we should follow? The truth to which defeasible duty talk points is simply that when we live inside legal systems, we have a strong moral reason to maintain them, and that reason points us to following our law unless we have stronger moral reasons to do differently. Hart’s contrast between law and the demands of a bank-robbing gunman is sharpened by the ad hoc, arbitrary character of such a gunman’s actions. Law’s distinctive contribution to our lives is to make our relations with one another less ad hoc, more predictable, and so let us live together in large groups. But there is no necessary contrast at all between the morality of individual governing actions and the morality of bank robbing. Often enough, so-called “authoritarian” leaders are gunmen; criminal gangs do run whole nations. Nonetheless, those nations have law; those gangs are government. Our ever present reason to care about law is not that we owe something to lawgivers, but that we need law’s help to live together. We read law not to understand lawgivers. We read law to understand one another, to learn how life is likely to be in our community. And that fact tells us where to look for law’s meaning. The understanding we need when we read law is primarily not what lawgivers intended, but what our community understands its law to be. We do not need our lawgivers even to intend to be lawgivers. What we need is a vehicle for shared understanding across our community and over time about how our life together is going to be. And for that, we need law to have a public meaning.