2 Practical Reason and Legality: Instrumental Political Authority Without Exclusion

ANTHONY R. REEVES

PRACTICAL REASON AND LEGALITY: INSTRUMENTALPOLITICAL AUTHORITY WITHOUT EXCLUSION

(Accepted 21 October 2014)

ABSTRACT. In a morally non-ideal legal system, how can law bind its subjects?How can the fact of a norm’s legality make it the case that practical reason is (infact) bound by that norm? Moreover, in such circumstances, what is the extent andcharacter of law’s bindingness? I defend here an answer to these questions. Ipresent a non-ideal theory of legality’s ability to produce binding reasons foraction. It is not a descriptive account of law and its claims, it is a normative theoryof legal reasoning for particular (though oftoccurring) social circumstances. Theapproach is, somewhat like Raz’s influential account, instrumental in character.Yet, it denies that the morally binding legal norms are, in whole or part, exclu-sionary reasons for the responsible subject. Law’s instrumentality must be given analternative characterization.

In a morally non-ideal legal system, how can law bind its subjects?How can the fact of a norm’s legality make it the case that practicalreason is (in fact) bound by that norm? Moreover, in such circum-stances, what is the extent and character of law’s binding-ness? Here,I defend an answer to these questions. I present a non-ideal theory oflegality’s ability to produce binding reasons for action. It is not adescriptive account of law and its claims, it is a normative theory oflegal reasoning for particular (though oft-occurring) social circum-stances.

The questions of political authority and obligation have receivedenormous philosophical attention both historically and recently, andit would be surprising if a wholly innovative and plausible accountwere to emerge. Perhaps someone will surprise, but my aims aremore modest. I seek to deploy some of the best resources ofthe tradition to account for legality’s normativity in typical human

Law and Philosophy � Springer Science+Business Media Dordrecht 2014DOI 10.1007/s10982-014-9221-x

circumstances that improves upon, and avoids important short-comings of, existing approaches. I will briefly preface points to bedeveloped. Like Raz’s influential account,1 my approach is instru-mental, in that practical reason’s allegiance to law is based in theassistance it provides the agent in doing what she ought, where thereasons of her duty exist independent of the law. I will also assumethat we have natural political duties. However, I reject Raz’s char-acterization of law’s instrumentality, especially one of the theory’sdefining features: the exclusionary reason. Whatever their claims,morally authoritative legal directives are not normally, in whole orpart, exclusionary reasons. Not only is such a characterization the-oretically inaccurate, but it distorts the moral position of legal sub-jects in a way that potentially inhibits reasoning with legal normsresponsibly. We should characterize legality’s service to responsiblepractical reason differently.

In contrast to many prominent accounts of political obligation,my account does not aim to ground general, generic, or special obli-gations to obey the law.2 Rather, it seeks to display conditions underwhich the legality of a norm is sufficient to render the norm bindingfor practical reason. These conditions may obtain only occasionallyfor legal subjects, appeal to multiple and heterogeneous politicalduties, and fail to generate special obligations to a particular politicalcommunity. Yet, where the conditions obtain, legal institutionshave the moral power to change one’s moral obligations.3 AlthoughI believe this reflects much existing usage, for the purposes of thispaper I stipulate that law has political authority when it possesses themoral power to modify its subjects’ obligations. I use ‘politicalobligation theory’ to refer to theories that seek to account for this

1 See, for instance, Joseph Raz, The Morality of Freedom (Oxford: Oxford University Press, 1986),23–105.

2 I discuss this type of approach below, but some representative examples (though each emphasizingdifferent elements) include: John Rawls, A Theory of Justice, Revised ed. (Cambridge, MA: HarvardUniversity Press, 1999), 293–343; Ronald Dworkin, Law’s Empire (Cambridge, MA: Harvard UniversityPress, 1986), 176–224; George Klosko, The Principle of Fairness and Political Obligation, New ed. (Lanham,MD: Rowman & Littlefield, 2004); Christopher Heath Wellman, ‘Toward a Liberal Theory of PoliticalObligation’, Ethics 111, no. 4 (2001); Thomas Christiano, The Constitution of Equality: Democratic Authorityand Its Limits (New York: Oxford University Press, 2008), 231–259.

3 For a discussion of the importance of establishing the moral power to impose obligations in thecourse of substantiating political authority, see Stephen R. Perry, ‘Political Authority and PoliticalObligation’, Oxford Studies in Philosophy of Law 2 (2013). However, for reasons to be explained, I rejectPerry’s inclusion of intention as an element of political authority.

ANTHONY R. REEVES

power in terms of general and special obligations to legal institu-tions.4 ‘Political obligation’ refers to these purported obligations.Political obligation is unnecessary for political authority.

One concern about political obligation theory is that it tends toleave uncertain the practical relevance of the proffered obligations,particularly for substantially non-ideal political circumstances. Howdemanding are political obligations compared to other moral de-mands? Moreover, take a legal system whose law (1) is frequentlymorally suboptimal such that it does not realize the relevant politicalvirtues (e.g., justice, equal respect, fairness) as well as it should, and(2) sometimes demands the impermissible exercise of power (i.e., itoccasionally demands the violation of moral rights). What do ourpolitical obligations here require?5 Given the way political obligationtheorists standardly limit the scope of their theories (e.g., to mini-mally just and democratic states where competitions between de-mands of political right for the subject are occasional), they offeruncertain guidance for responsible decision under law in large arenasof human politics.

I adopt the following method. I consider the authority of law innon-ideal legal systems. ‘Non-ideal’ refers to two properties of a legalorder. First, the legal order does not fully meet the moral standardsappropriate for its assessment. It is, for instance, partly unjust. Sec-ond, the legal order is not of such a character that political obliga-tions are operative. Subjects do not have general and specialobligations to obey the law, perhaps because of some defect of thelegal system. These two properties are potentially independent,depending on the correct account of the relationship between thepolitical virtues and political obligation, but for my purposes it isuseful to treat them together under the single heading, ‘non-ideal’,

4 That this is a central concern of political obligation theory is evident in the writing of bothphilosophical anarchists and defenders of political obligation. Consider Marmor’s passing comments inan encyclopedia article: ‘Whether judges, or anybody else, should or should not respect the rules ofrecognition of a legal system, is ultimately a moral issue, that can only be resolved by moral arguments(concerning the age old issue of political obligation)… Unlike chess or soccer, however, the law maywell be a kind of game that people have an obligation to play, as it were. But if there is such anobligation, it must emerge from external, moral, considerations, that is, from a general moral obligationto obey the law’. Andrei Marmor, ‘The Nature of Law’, in Edward N. Zalta (ed.), The StanfordEncyclopedia of Philosophy (Winter 2011 Edition).

5 Some work is now being done on this question, with surprising conclusions. See Candice Delmas,‘Political Resistance: A Matter of Fairness’, Law and Philosophy 33, no. 4 (2014).

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for two reasons. First, it eliminates two responses to the issue of howone can be duty-bound to comply with the law: the law is right aboutwhat is morally best, and one is obligated to the law. ‘Non-ideal’thereby summarizes the theoretical orientation of the question: canlaw have non-general authority that is not predicated on its provisionof the correct answer to a political question? Further, if we cananswer ‘yes’ by describing the conditions under which legality of anorm in a non-ideal system renders that norm binding, then theresult suggests that the traditional question of political obligation isless important (theoretically) than is frequently assumed. Insofar aspolitical obligation theory is driven by the perceived need to explainour sense that legality can imply mandatory compliance, and thatlegal institutions at least sometimes have the moral power to requireaction, then offering an explanation without the use of general,special obligations to the law should reduce our interest in politicalobligation. Second, ‘non-ideal’ plausibly summarizes two features ofmany existing legal systems especially important for their subjects.Though I do not want to overstate the point, an adequate non-idealaccount would partially illuminate the responsibilities of agents whoare effectively subject to legal systems that are valuable in variousrespects, but in significant and systemic ways, morally defective. Itwould clarify one aspect of the difficult moral situation of suchpersons: how, in general, do I respond to the norms of the effectivesystem of law?

In Part One, I provide some definitions and theoretical context,and offer a summary of the view I defend in the rest of the paper. InPart Two, I consider some moral goods we typically want from therule of law. In Part Three, I argue that, by serving goods of this kind,the property of legality can render norms binding. The analysis sit-uates the view among prominent contemporary competitors andargues for its superiority in handling a straightforward case ofpractical authority. This should motivate us to reconceive of theservice political authority is properly in the business of providing. InPart Four, I consider my approach in terms of various success con-ditions for a theory of authority offered in recent philosophical lit-erature. It is successful on various criteria, but I also argue that theseadequacy conditions are counterproductively stringent when the

ANTHONY R. REEVES

question is one of political authority, and that my approach succeedsin the domain of the political.

I should say a word on my organization. Exhibiting and refiningthe success conditions might seem more naturally preliminary thanan appendix to an argument that a certain kind of account couldsucceed. Frequently so, but here the account serves as part of theassessment of proposed success conditions. Displaying a centralnormative capacity of law (i.e., one way it does bind) can articulate acritical standpoint from which to consider adequacy conditions for atheory of authority – even if the account, as offering the rudimentsof a theory of authority, is properly assessed in terms of thoseconditions. This should not seem paradoxical from the standpoint ofreflective equilibrium. If an approach can be shown to be otherwiseattractive, we can ask why we should want more? What would wegain theoretically (or practically)? The aims of the paper are twofold,then. First, to defend a view of the moral authority of law that ispractically informative in non-ideal circumstances. Second, to ad-vance our capacity to assess theorizing about political authority.

I. DEFINITIONS AND BACKGROUND

Authority is the moral power to require action, i.e., the power tomodify moral obligations. Many have suggested it is much besides,but for now I simply speak of the power to create moral obligations(as opposed, e.g., to prudential reasons). Legitimacy concerns the useof force, power, and coercion. When the use of force (or its threa-tened use) is morally permissible, it is legitimate.6 Many writers use‘legitimate authority’ to refer to a claimant of authority that actuallyhas authority, but I will refer to such a claimant as an authority. Theright to rule, though occasionally used interchangeably with one orboth of the above, will be understood to refer to a justified claimright to sovereignty – a moral right to be sovereign. The people of adespotic state may have a right to rule, but without official organsand institutions for expressing their will, and without de facto

6 This is in the spirit of Wellman’s distinction between legitimacy and political obligation inChristopher Heath Wellman, ‘Liberalism, Samaritanism, and Political Legitimacy’, Philosophy and PublicAffairs 25, no. 3 (1996).


authority, they have neither authority nor legitimacy. The despot,though perhaps violating his people’s right to rule (by not, e.g.,facilitating their transition to sovereignty), may have authority andlegitimacy, at least with regards to certain domains (e.g., contractlaw). This is not to suggest that justified sovereignty can have noeffect on the extent of the sovereign’s authority and legitimacy, buthow so is a moral question that will depend upon the substantivetheories of authority and legitimacy.7

To bind, in general, is to make less free in the specific sense ofconstricting the scope of otherwise operative discretion. It is tointroduce a constraint on action reducing discretion. Eliminate theconstraint, and thereby increase the freedom. Norms, commands,directives, and orders are binding when one is less free to actotherwise than the norm (e.g.) directs than one would be absent thenorm. These phenomena can bind in at least two senses. First, theycan bind prudentially, by relating to one’s interests – frequently bybeing conjoined with a threat, such that it is prima facie practicallyunreasonable not to comply. A gunman orders me to hand over themoney, and I am made less free, purely in terms of my own per-ceived interests, by the order. The order renders acting otherwiseimprudent. A tax law directs me to pay a percentage of my income,attaches a penalty to non-compliance, and my freedom is reduced.Legal and political philosophers have had much interest in this kindof binding,8 and legitimately so, but it is not the sense of concernhere. A second way in which these phenomena can bind is by makingit pro tanto irresponsible for me to act otherwise than is directed. Iassume we have natural duties to others, e.g., to keep promises. If Ipromise to babysit for a friend (who is mostly powerless to threatenmy interests), and he directs me to put his daughter to bed at eight,then I am bound by his directive to do so. I have less discretion thanI would absent the directive. Without it, it may not have beenirresponsible to put her to bed at nine. Also, although I may have

7 We need not, as Christiano seems to suggest, link strongly a right to rule (in the sense of a claimright to sovereignty) with a correlative obligation of subjects to obey. A right to be sovereign isunnecessary and insufficient for authority, and it is helpful to keep the matters separate. See Christiano,The Constitution of Equality: Democratic Authority and Its Limits, 240–241.

8 It is the primary sense in which law binds for Austin. See John Austin, The Province of JurisprudenceDetermined (Amherst, NY: Prometheus Books, 2000), 9–33.

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had other reason to put her to bed at eight (perhaps it is an idealbedtime for her), the directive makes it more irresponsible for me toact otherwise. I will refer to this second type of binding as ‘morallybinding’.

How can a positive law be morally binding? It is unlikely to bemerely in virtue of the properties that make law, law, i.e., merely invirtue of its legality. Most legal philosophers agree that legal validitydoes not, by itself, imply a moral reason to obey.9 More plainly, it ispossible to have a law that no one has moral reason to comply with,i.e., a moral reason to act as it demands because it is law.10 We willhave to introduce independent moral considerations to show howand when the fact of legality can make a norm morally binding.

Importantly, however, a legal norm’s mere reproduction of amoral standard whose satisfaction conditions are effable without thelaw’s mediation is insufficient for it to be binding in virtue of itsstatus as law. We are certainly bound to act in accordance with a lawprohibiting murder, but we are so bound absent the law. Moreover,what it would mean to satisfy the moral standard against murderousviolence can be articulated without the assistance of this simple legalprohibition. To show that the fact of the norm’s legality oughtmatter to practical reason, we would have to demonstrate someadditional moral significance that attaches to legality. One method ofdoing so is to posit general political obligations, and another is toindicate some function that legality performs. On the theory Idevelop, legal norms of non-ideal systems that merely state inde-pendently effable satisfaction conditions of moral requirements arenot binding.11 Independent effability obtains when a particular course

9 The point is most at home in legal positivism. See David Lyons, ‘Moral Aspects of Legal Theory’,in Moral Aspects of Legal Theory: Essays on Law, Justice, and Political Responsibility (Cambridge: CambridgeUniversity Press, 1993). However, this is also acknowledged by much natural law jurisprudence. See, forexample, Mark C. Murphy, Natural Law in Jurisprudence and Politics (New York: Cambridge UniversityPress, 2006), 1–60. Ronald Dworkin’s theory of law may be an exception, though this is unclear. SeeDworkin, Law’s Empire, pp. 101–113.

10 As Enoch puts it: ‘I am spending some time on the motivations for the claim that law necessarilygives reasons for actions, because the most striking thing about this thesis, it seems to me, is that it is soclearly false…all that has to be shown to establish the falsehood [of this claim]…is one conceptuallypossible case where the law – any law – requires that you / and yet you do not thereby acquire a reasonto /’. David Enoch, ‘Reason-Giving and the Law’, Oxford Studies in Philosophy of Law 1 (2011): 20.

11 Though, given the right conditions, they can be legitimately enforced.


of action needed to satisfy a moral requirement (by a person therequirement applies to in a particular circumstance) can be articu-lated without the assistance of the semantic content of existing po-sitive norms. Independent effability fails to obtain for a particularsatisfaction condition when that condition cannot be articulatedwithout such assistance. Independent effability, then, is a feature ofthe satisfaction conditions of moral requirements for individuals inparticular circumstances. I offer several examples of moral require-ments that normally have non-independently effable satisfactionconditions below, but one type of such duty is to maintain a safeinteractive environment, e.g., to avoid driving negligently. Once wehave positive norms effectively coordinating careful conduct andregulating the rules of the road, I cannot articulate the content of myduty of care with respect to others (i.e., what it actually requires ofme) without relying on the positive norms operative in my particulardriving environment.12 If there were only one law that merely de-manded ‘act safely’, and no other relevant conventions, then ‘actsafely’ would be independently effable, and the law would not (onmy approach) bind. The satisfaction conditions for my moral duty ofcare could be articulated without the law, and no posited normativedevice would assist with the articulation of those conditions.13

Theories of political obligation standardly attempt to show howindependent moral requirements make the fact of a law an obliga-tion to do what it demands.14 They contend that the moralrequirements of consent, fairness, common association, samaritan-ism, gratitude, or justice (to name several), in decently just polities,imply that one has a defeasible, general, special, and (often) generic

12 For reasons I describe in Part 3, I resist the urge to say that the positive norms here literallydetermine the virtue of careful conduct. Rather, more narrowly, they partly determine what the virtuewill require of particular individuals, on particular occasions – i.e., the satisfaction conditions of due carefor located persons.

13 I’m grateful for an anonymous reviewer’s comments in clarifying this idea.14 One possible exception to this is Gilbert’s approach, which appeals to mere joint commitment,

without the mediation of independent moral requirements, to ground political obligation. See MargaretGilbert, A Theory of Political Obligation: Membership, Commitment, and the Bonds of Society (Oxford:Clarendon Press, 2006). One worry is that Gilbert’s theory cannot help us respond to issues of politicalresponsibility since the practical force of obligations of joint commitment is left unclear. This is not theplace, however, to develop a full critique. Since Gilbert’s approach is anomalous, I will bracket it.

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obligation to obey the law because it is the law.15 It is frequentlythought that the problem of political obligation is equivalent to theproblem of law’s moral authority, such that showing that the law ofa polity is authoritative requires substantiating an applicable theoryof political obligation, and that substantiating such a theory is nor-mally sufficient for showing that law is authoritative.16 One way tothink about such theories is that they attempt to substantiate ageneral moral tie on the part of subjects to the law-making facts (orsome broad subset of them) of their effective legal system. If wesubstantiate that I have a special moral tie to whatever facts rendersome standards legal and others not, then we will have explainedhow the legal system can modify my moral obligations by makingstandards legal – we will have explained its moral power to requireaction. Articulated in terms of one influential strand of legal posi-tivism, a theory of political obligation attempts to substantiate aspecial moral tie to the rule of recognition such that one is bound bythe norms that the rule recognizes as valid.17 One’s obligation toobey a particular law, then, is a feature of this general tie.18

Another approach to explaining how law can bind is to identifyconditions that may obtain only occasionally (even in a basically justlegal system), but make the legality of a norm the source of thenorm’s binding-ness when those conditions are met. Joseph Raz’s

15 For a discussion, see David Lefkowitz, ‘The Duty to Obey the Law’, Philosophy Compass 1, no. 6(2006). By ‘generic’, I mean that the obligation to obey the law is grounded in the same kind of moralconsideration(s) in the various departments of law and across various circumstances. Whether we aretalking of tax law or traffic law, there is a type of obligation that is common to both, and this obligationapplies in all the various circumstances to which the law purports to govern. In recent years, however,some political obligation theorists have moved away from this claim. See, e.g., George Klosko, ‘MultiplePrinciples of Political Obligation’, Political Theory 32, no. 6 (2004). Also, I acknowledge that there is aspectrum of views emphasizing, to greater and lesser degrees, generality. My aim here is to providesome orientation to the differing theoretical aims and methods of existing accounts political authority,and situate my view among those accounts.

16 For instance, Klosko claims that the moral authority of law is ‘coextensive with a prima facieobligation to obey the law’. The Principle of Fairness and Political Obligation, 14. See also, Andrei Marmor,‘An Institutional Conception of Authority’, Philosophy and Public Affairs 39, no. 3 (2011): 260–261. Forrecent doubts that the success of such a project would be sufficient for demonstrating genuineauthority, see Perry, ‘Political Authority and Political Obligation’. I argue that it is unnecessary.

17 As most political obligation theorists assume, we can remain largely agnostic here among theories oflaw. Also, importantly, ‘moral tie’ should not be understood in this context as an explanans for legalphenomena – as in any way indicating an existence condition for a legal system. Whether law requires anoperative commitment on the part of (some) subjects that is understood by them to be a moral one is notan issue I address. I am not trying to explain what makes for law, but what makes for its authority.

18 Irrespective of whether the legal requirement is stating independently effable satisfaction condi-tions of a moral requirement.


theory of practical authority takes this approach.19 On Raz’s view, alegal norm is morally binding when one will better comply withsome set of reasons that apply to oneself by following the norm thanone would by considering those reasons in the set directly.20 Razcontends that this can occur in a number of ways, including when anorm facilitates coordination,21 but it is perhaps clearest in caseswhere the agency issuing the directive is epistemically better situatedto appreciate the relevant reasons. If an expert agency, with the aimof preventing the spread of invasive species, issues a directive thatone clean watercraft in a particular way before launching in certainwaters, and one is not an ecologist, then one is probably bound bythe directive in light of the reasons one has not to contribute toecological degradation. Considering these reasons independently ofthe directive will normally lead one to conform less well to them,and hence the law binds by virtue of its service to the subject inassisting her in doing what she ought. This is so whether the legalsystem as a whole is fair, just, genuinely democratic, consensual, orconstitutive of a morally important association, and it is so whethermany or few other laws of the system are binding. Law binds not byvirtue of a general moral tie to legality, but by its performance of afunction on particular occasions. On Raz’s view, one would have a(first-order) reason to act as the directive requires, and a (second-order) reason to exclude one’s own consideration of the matter fromone’s practical reasoning.

On the account I defend here, law binds occasionally, and it bindsleast where morality is least in need of assistance in providing for aresponsible course of action.22

In contrast to political obligation theory, I do not rely on a general,special commitment to the law-making facts. In contrast to Raz, I donot deploy exclusionary reasons as features of binding legal rules (infact, I will argue against that thought), and I characterize the serviceof legal authority in a markedly different way. Raz’s broad insightthat political authority is best understood as assisting subjects’

19 Consider Raz’s denial of a general obligation in Joseph Raz, The Authority of Law: Essays on Lawand Morality (Oxford: Clarendon Press, 1979), 233–249.

20 The Morality of Freedom, 38–69.21 See ibid., 70–80.22 And where it demands what is contrary to duty.

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compliance with right reason is genuine.23 Roughly, I maintain thatlegality’s claim on practical reason resides in its service to what wenaturally owe each other. However, law’s service is to renderavailable the objects of one’s duties by articulating a route forpractical reason that, given the circumstances, morality itself couldnot provide.24 Law is a reason for its demands when it is good-making,when it makes available a good by articulating a course of action thatbecomes, because of its legality, the route to the good. Law is binding,i.e., it limits responsible freedom, when pursuit of that end is a dutyfor the subject.

This approach, I contend in the next two sections, has the virtueof connecting the value of rule by law, in particular circumstances,with the proper character of legal reasoning. We do not need anintermediate moral story (based in the terrain of political obligation)to demonstrate why law ought frequently shape the will into a formconsistent with law’s demands. Moreover, the approach will vividlydisplay the limits of a non-ideal legal system’s practical significance,both in terms of its scope (i.e., the circumstances where it generatesobligations for its subjects) and its force (i.e., how well its obligationscompete with other moral demands). Theories of political obligationtend to set the conditions of their success quite high, such that many

23 Raz’s theory of authority has been the most influential such theory in legal philosophy. Its mostrecent comprehensive presentation is in Joseph Raz, ‘The Problem of Authority: Revisiting the ServiceConception’, Minnesota Law Review 90 (2006). This approach has received support, in part or whole,from a variety of theorists, including Leslie Green, The Authority of the State, Paperback ed. (New York:Oxford University Press, 1988), 21–62; Larry Alexander, ‘All or Nothing at All?: The Intentions ofAuthorities and the Authority of Intentions’, in Law and Interpretation: Essays in Legal Philosophy, ed.Andrei Marmor (New York: Oxford University Press, 1995); Andrei Marmor, Interpretation and LegalTheory, 2nd ed. (Portland: Hart Publishing, 2005); James Sherman, ‘Unresolved Problems in the ServiceConception of Authority’, Oxford Journal of Legal Studies 30, no. 3 (2010); Daniel Viehoff, ‘Debate:Procedure and Outcome in the Justification of Authority’, Journal of Political Philosophy 19, no. 2 (2011).Despite its wide influence, it has recently received a great deal of critical scrutiny. See, for example,William A. Edmundson, Three Anarchical Fallacies: An Essay on Political Authority (Cambridge: CambridgeUniversity Press, 1998); Heidi M. Hurd, Moral Combat (New York: Cambridge University Press, 1999);Jeremy Waldron, Law and Disagreement (Oxford: Oxford University Press, 1999), 95–118; Scott J.Shapiro, ‘Authority’, in The Oxford Handbook of Jurisprudence and Philosophy of Law, ed. Jules L. Colemanand Scott J. Shapiro (New York: Oxford University Press, 2002); Thomas Christiano, ‘The Authority ofDemocracy’, The Journal of Political Philosophy 12, no. 3 (2004); Stephen Darwall, ‘Authority and Reasons:Exclusionary and Second-Personal’, Ethics 120, no. 2 (2010); Scott Hershovitz, ‘The Role of Authority’,Philosophers’ Imprint 11, no. 7 (2011); Christopher Essert, ‘A Dilemma for Protected Reasons’, Law andPhilosophy 31, no. 1 (2012).

24 This is not to say, I argue below, that the relevant moral virtues are somehow indeterminate.


existing municipal legal systems do not meet those conditions.25

Moreover, international law is unlikely to meet the conditions ofpolitical obligation.26 How should the subject of law, in such cir-cumstances, regard legal norms? When should the responsible sub-ject view his discretion as constrained to accord with what a lawrequires by the fact of its legality?

II. RULE OF LAW GOODS

Why do we care about law as a form of governance? Addressing thisquestion will give us a grip on law’s capacity to bind practical reason.Our moral concern governance by law be realized is at least largelyrelated to its ability to provide important goods in the circumstancesof modern human social life. How far a legal directive binds, Icontend, is tightly tied both to its provision of these goods via thepublic semantic content of its directives in the circumstances ofdecision, and a subject’s moral relationship to these goods.

What goods is law specially implicated in? As Hart recognized, ina social setting marked by divergence of belief, moral sentiment,judgment, and interest, we need some basis for settling which rulescount concerning communal matters. Matters as diverse as theboundaries of personal property, to the precise definition of a crime,must be settled by some widely-shared understanding to be effective.A society governed merely by unofficial customary rules requiring orforbidding conduct would face numerous problems given socialdiversity, including: (1) uncertainty about which rules are to actuallyregulate social affairs, (2) an inability to modify rules to reflectchanging circumstances or concerns, and (3) inefficiency in theapplication and enforcement of customary rules in particular cir-cumstances. Law responds to these issues by providing a commonbasis for saying which rules count, how to go about changing the

25 Theories of political obligation are frequently thought to apply to existing liberal democracies.This is not always evident, though. Taking Klosko’s much discussed account, he urges that there mustbe a fair distribution of benefits and burdens for general political obligations grounded in fairness toobtain. It is far from clear, based on his discussion, when this condition is met. See, Klosko, The Principleof Fairness and Political Obligation, 63–75. Of course, as philosophical anarchists argue, political obliga-tions may not obtain for the vast majority of earthlings. See generally, A. John Simmons, Justificationand Legitimacy: Essays on Rights and Obligations (Cambridge: Cambridge University Press, 2001). Even ifanarchists are correct about political obligations, we still need a theory of the character of responsiblelegal reasoning.

26 Anthony R. Reeves, ‘The Moral Authority of International Law’, The APA Newsletter on Philosophyand Law 10, no. 1 (2010).

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official rules, and how and who is to adjudicate the application of therules in the circumstances.27

Addressing these matters preempts conflict and facilitates collec-tive action. The realization of other social goods, goods that requireorganized communal efforts, would be impossible without law orsome other social normative innovation that settled the basic stan-dards governing the social world. When a good depends, in thesocial circumstances, for its existence on law, I will call it a ‘rule oflaw good’. In saying that these goods have a special relationship tothe rule of law, I do not mean to suggest that they could only be hadunder law.28 I claim, first, that under current social conditions, theyare unlikely to be achieved otherwise than through legal institutions(given the actual diversity and size of societies). Second, I notice thatthey are currently achieved through law, and thus the question for alegal subject is not, normally, whether to pursue these goodsthrough law versus some other social technique, but whether topursue them legally or not at all.

Many of the rule of law goods I have in mind will be familiar tolegal theorists, goods such as coordination, stability, protection ofexpectations, resolution of moral disagreement for practical pur-poses, avoidance of juridical anarchy,29 among others. These areoften valuable in themselves. For example, the ability to form reli-able expectations about the behavior of others may be its own good:‘Political liberty in a citizen is that tranquility of spirit which comesfrom the opinion each one has of his security’.30 Democratic gov-ernance, some think, is also intrinsically valuable. Rule of law goodsare also often valuable instrumentally, e.g., rules of property, traffic,and land use all facilitate commerce and safe conduct, and stablepublic rules permit people to develop effective life plans.

To make the discussion somewhat more concrete, I will describesome goods that appear to have a special relationship to law. The listis not meant to be exhaustive, but to illustrate the idea of a rule of

27 H. L. A. Hart, The Concept of Law, 2nd ed. (Oxford: Oxford University Press, 1994) 91–99.28 See Leslie Green, ‘Law, Co-Ordination and the Common Good’, Oxford Journal of Legal Studies 3,

no. 3 (1983): 312–315.29 Estlund’s term, referring to the absence of a common system of criminal law. David Estlund,

Democratic Authority: A Philosophical Framework (Princeton: Princeton University Press, 2008), 146.30 Montesquieu, The Spirit of the Laws, trans. Anne M. Cohler, Basia Carolyn Miller, and Harold

Samuel Stone (Cambridge: Cambridge University Press, 1989), 157.


law good and to identify some characteristics such goods normallypossess.

A. Coordinating Conventions

We frequently require some widely shared convention for coordi-nating our behavior. If law is commonly recognized as the appro-priate basis for settling such matters, it can create or support such aconvention by identifying one option, amongst several that arepossible, as salient.31 Such is the case with traffic rules, that facilitatesafe highway travel, but also with zoning and government servicessuch as trash removal and environmental conservation. It is almostalways the case that some or one scheme of coordination is betterthan others.32 Nonetheless, the goods of coordination can be ob-tained well enough on a variety schemes so that law can supply therelevant good by selecting one amongst these.

B. Disagreement Resolution in the Circumstances of Politics

Often, we are not indifferent to which rules will organize social life,and we disagree about which ought to prevail. Our disagreementmay reflect conflicting moral views, different understandings aboutwhat is prudent, competing interests, or any of the factors that mayburden judgment. Nonetheless, it is better that we come to acommon solution, for practical purposes, than none at all (at least,within a range, some solutions may be worse than none at all).Jeremy Waldron captures this well in his discussion of the ‘circum-stances of politics’, which is the ‘felt need among the members of acertain group for a common framework or decision or course ofaction on some matter, even in the face of disagreement about whatthe framework, decision or action should be’.33 We disagree, but it isbetter, and sometimes morally mandatory, to have some way for-ward than none at all. Law can help address the circumstances of

31 Frequently noticed in legal theory, but for an extensive discussion, see Gerald Postema, ‘Coor-dination and Convention at the Foundations of Law’, Journal of Legal Studies 11, no. 1 (1982).

32 ‘Better’ here references all the relevant values, both the value of successful coordination and othervalues that are implicated in the coordination scheme, e.g., safety and efficiency. Even in selecting a sideof the road, an issue very close to a pure coordination problem, one may be (e.g., because of widespreadright-handedness) better than the other.

33 Waldron, Law and Disagreement, 102.

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politics by selecting one acceptable set of rules at the expense ofothers. Law facilitates the valuable of disagreement resolution whenit helps provide an acceptable, common course of action.34 Havingan acceptable settled solution in the presence of this disagreement isof significant value.35

C. Governance by Desirable Procedures

Governance by procedure of the right kind is frequently important.Food safety ought to be regulated by some impartial and expertprocess, and democracy seems appropriate for addressing manypolitical matters.36 In order to have governance by desirable proce-dures, there must be some means by which the procedure caneffectively, and with limited ambiguity, convey its decisions. Toaddress any matter of any complexity, a legislature (e.g.) must pro-vide a definitive indication of its determination that can be used byofficials and subjects to guide their behavior. Statutory law is such amedium. Law facilitates, then, governance through desirable pro-cedures regardless of whether this governance is intrinsically orinstrumentally valuable. It facilitates this valuable, moreover, tosome extent independent of what the procedure decides.

D. Entitlements, Personal Autonomy, and Legitimate Expectations

We need a basis for settling entitlements, such that people can formstable expectations with regards to them. Concerning physicalproperty, for example, we need to indicate what belongs to whom,under what conditions, and how it can be transferred. This raisesdifficult and contentious issues of distributive justice and the moral

34 The solution that law provides must be acceptable in the sense that the solution it helps provide ismorally acceptable. If law is effectively coordinating an evil, then the coordination is not valuable. Moreneeds to be said here, since part of what is valuable about law is its ability to resolve moral dis-agreement (and we will disagree about what counts as an evil). One thing to say is that having acommon solution can rightly be regarded by someone as of great value, even if they think that thesolution is morally suboptimal or somewhat wrongful.

35 Waldron articulates the point in terms of partial-conflict coordination problems. ‘Each preferseither of the coordinative outcomes to non-coordination; but they differ in the particular coordinativeoutcome they prefer’. For Waldron, democratic legal authority will not simply be grounded in anacceptable solution to disagreement, but also in having been produced by a procedure that respectsindividual subjects equally. See Waldron, Law and Disagreement, pp. 103–118. See also, William S.Boardman, ‘Coordination and the Moral Obligation to Obey the Law’, Ethics 97 (1987): 549–553.

36 I do not endorse a particular theory of democratic authority. I will assume, though, that it ispossible that democratic governance is intrinsically valuable.


grounds of property. Nonetheless, it is important to have stable rulesto facilitate autonomous choice, commerce, etc. Also, as people relyon these legal rules, it will be of value to protect their expectations –it is likely that they will come to morally deserve, to some extent,what the rules indicate as theirs under the conditions it also indicates.Not all expectations, even if induced, deserve protection (e.g.,property rights over persons), but many do even if the rules ofproperty could have been different, and even if the current rules aremorally suboptimal by standards of distributive justice.

Again, the list is not exhaustive. It is worth emphasizing, though,some common features of these goods. First, it is difficult to imaginethat they could be achieved, or achieved as reliably or well, in cur-rent social circumstances without law. The above goods requiresome settled means for identifying, legislating, and adjudicatingcommon rules, and law appears to be precisely the tool up for thetask – and, anyhow, it is currently the relevant tool. Second, each isachievable by a range of substantive regulation. Even if there is onemorally optimal scheme concerning some matter, there are manyincompatible suboptimal schemes that would achieve the good tosome extent. In this sense, these are variable policy tolerant goods(hereafter, ‘VPT goods’). Third, these goods are morally important,and sometimes crucial, to a decent social life. It is not implausible tosuggest that they deserve a place in our practical reasoning in light oftheir importance.37 In other words, they rightfully demand ourattention in decision-making because of their moral character, atleast insofar as our actions affect their realization. In this sense, theseare VPT moral goods. Fourth, individual, non-official (though, officialalso) action can affect how well or whether these goods are realized.My actions can upset legitimate expectations, disrupt democraticgovernance (if democratic governance is intrinsically valuable, non-compliance sometimes just is to prevent the realization of a good ona particular occasion), interfere with a reasonable solution to moraldisagreement, or threaten someone’s safety by disregarding a coor-dination solution. Fifth, except for rare cases of pure coordination,there is likely to be significant disagreement about how, institu-tionally, these goods ought to be pursued – we are likely to disagreeabout what the law should be. The above should serve as an

37 A point illuminated by Wellman’s work on samaritan duties and political obligation, though alsorecognized elsewhere. See Wellman, ‘Toward a Liberal Theory of Political Obligation’.

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explication of the idea of a rule of law good. Now we can considerhow such goods render legal norms binding.

III. HOW TO BIND AGENTS WITH WORDS

A. Directives as Reasons

Consider first a way that directives can be reasons for what is di-rected outside the context of law. By ‘directive’, I mean an expres-sion that would normally be understood, given existing linguisticconventions and the context in which it is delivered, to be indicatingthat a course of action ought to be pursued, at least partly for thereason of the expression.38 A directive is actually a compliance rea-son to / when: (1) it directs addressees to /, (2) /–ing is the courseof action required to secure a good, and (3) /–ing is the route to agood because those addressed were directed to / by the directive. Adirective can become a reason to comply by creating a route be-tween a good and an agent that is the carrying out of the directive.Such route creation will normally involve shaping the social worldvia the public semantic content of the directive. Compare two casesof directives. In the first, the directive is a reason for compliance(though it is not binding). In the second, the directive is not a reasonfor compliance (though one should do as told).

(1) We want to play soccer, but the group needs a common meeting pointsince there are several serviceable fields. A, who commonly (as amatter of social fact) settles such matters, sends a message directing usto meet at a certain park, P. You and the other members of the groupnow correctly expect the group to play at P. A’s directive is a reason forthose wishing to play soccer to go to that park. Complying with it willaccomplish the VPT good of, in this case, soccer playing. Going to P isnow good, with respect to playing soccer, because of the directive.Minus the directive, going to P is not a good in that sense. The fact ofA’s directive to go to P is a reason to go to P.

38 Often directives are understood as speech acts intended to impose an obligation. I deliberatelyavoid relying on intention for, as I argue later, it is an error to treat intention as an important feature ofpolitical authority, either in its exercise or its content (i.e., as settling, in part, the content of theobligations imposed by the authority). The alternative definition offered here characterizes directivespurely in terms of their public meaning. A directive is such in virtue of its being understood to be sayingthat the course of action it describes ought be pursued for the reason of its indication of the course ofaction. I am grateful for an anonymous reviewer’s comments on these points.


(2) You and one other person, B, are walking down the sidewalk. B dropshis books. Another person, C, yells at you to help B pick up his books.C’s directive is not a reason for you to pick up B’s books. Althoughdoing what C demands will accomplish some good, C’s directive doesnot contribute any additional reasons. The act of helping B is not madeworthwhile (in any sense) by C’s directive. C’s directive can be con-strued, at most (from the standpoint of reason-giving), as advice – asilluminating the course of action you already had reason to perform.Slightly differently, C’s directive can, perhaps, be seen as a reason tobelieve that one already had reason to help pick up the books, but it isnot a reason to help pick up the books.

In scenario (1), the directive cannot be construed as advice, asattempting to identify the reasons for the course of action that existindependent of the directive. (Again, subtract the directive from thescenario, and eliminate the soccer-reasons to go to P.) The directiveto go to P must be construed as a reason for the action of going to P,not primarily as a reason for belief in the independent goodness ofgoing to P.39 The crucial difference between the directives in (1) and(2) is that the directive in (1) is good-making. The directive makesthe course of action directed worthwhile by making it the route tothe good. That soccer playing is valuable to the group is true with orwithout the directive. However, in the circumstances without thedirective, complete knowledge of the value of soccer playing wouldnot (by itself) give us a course of action that would get us that good.The good requires the assistance of a normative device tosimultaneously indicate a course of action, and make that courseof action fruitful. The directive in (1) literally renders the goodaccessible by changing the character of the social world.

It is worth dwelling, for a moment, on the essential means for thiskind of route creation. What appears necessary is, first, that thedirective have common, public semantic content. More plainly, thatthere is a common understanding about the meaning of the direc-tive, and there is shared knowledge of this common understanding.

39 It might be a reason for such belief also, e.g., if we rightly trust A’s judgment about good places toplay soccer. Nonetheless, A’s directive is a reason for compliance on its own (i.e., independent of thesepreexisting reasons). Consider if we are wrong about A’s judgment: we accept his directives because webelieve (falsely) that he can discern well the field conditions that make for good soccer playing. Hestandardly picks the least desirable of the minimally acceptable fields. A’s directive would still be areason to go to P.

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Without this, the directive, however well intentioned, would bepowerless to settle a common policy that is good-making.

Second, the directive must be largely regarded as agenda setting,and widely understood as so regarded (or as having a decent likeli-hood of being so regarded), though not necessarily by every memberof the group. The explanation for this regard can be quite variable. In(1), it may be simply tradition or habit that picks A out as the salientcoordinator. However, it could have rested on a view of A’s judg-ment, his intimidation of members of the group, a desire to please A,the fact that A was the first to speak up, or some combination ofthese among different members of the group. From the standpoint ofyour achievement of the good, it matters little which of theseexplains the fact that A’s directive will effectively adjust expectations.You may want to flout tradition, have justifiably low regard for A’sjudgment, be indifferent to his view of you, dislike him, or rightlythink that someone else (or some other procedure) ought to do thecoordinating. Nonetheless, A’s directive is a reason for you to do asdirected. What is necessary is that A’s directive be widely recognizedas agenda setting, not that any particular explanation for this rec-ognition obtain.

Third, the course of action directed must be acceptable, i.e., notmorally wrongful, in order for the directive to be treated as a reasonfor action. If A directs us to play on someone’s private property, orto break the legs of those currently using P and then use P, thedirective may still be capable (depending on how deferent the groupis to A) of coordinating behavior. Yet, the coordination is not a good(in which case the directive is not a reason), or the good is vastlyoutweighed by the wrong (in which case the directive is a reason,but practically insignificant). Whether we accept the former or lattercharacterization is unimportant for present purposes, for in eithercase the purported good the directive seeks to provide ought to bedisregarded by practical reason.

Fourth, the substance of the policy directed must be minimallycapable, if acted upon, of realizing a VPT good requiring a commonpolicy. If A directs us to play on a steep mountainside, A has notrendered the value of soccer playing available. There are variousother policies, however, that are capable of realizing the good to aminimum degree.


We can now state the necessary and sufficient conditions for adirective to be good-making. The directive must have publicsemantic content, be regarded as agenda setting, be acceptable, andstate a minimally successful policy for a VPT good. These conditionsare severally necessary and jointly sufficient for a directive to begood-making. A directive’s possession of this property is sufficient forit to be a reason for an agent to act as it directs. When the semanticcontent of a directive transforms the social world to render availablea good realizable through the course of action directed, the directiveis a reason to comply. It is not, however, binding or obligatory. A’sdirective assists those interested in realizing the value of playingsoccer, but it is only a reason insofar as one is interested. Perhaps oneis needed to realize the good, e.g., in order to have enough players.Even this, absent some prior commitment, would provide at most aminimal moral reason – it would be merely supererogatory.

B. Morally Binding Directives

A morally binding directive would not simply be a reason for what isdirected, it would render that course of action mandatory, leavingpractical reason with less in the way of responsible freedom. Moredirectly, a binding directive would create an obligation to act asdirected. A moral obligation is a moral reason to perform an actionthat ought to be action guiding unless overridden by some othermoral reason. Normally, for example, it cannot be defeated by mereinclination. A directive can become binding in the mode described inthe previous section, i.e., by being good-making. The difference isthat the good in question is of mandatory concern to the agent, suchthat (when it is available) she has a duty to realize it.

Another non-political example will help transition us to bindinglaw. Your plane crashes into the ocean and you are among the luckysurvivors.40 Your situation is secure. Along with some others (theSafes), you manage to find refuge on a floating segment of aircraft.However, it is clear that others are in dire need of assistance (theImperiled). Moreover, it is also clear that rescuing more than a fewwould require the cooperative efforts of those who have foundsafety. The situation is initially chaotic, with no one clearly in charge.

40 A more elaborate version of Estlund’s example. For his presentation of the example and dis-cussion of ‘normative consent’, see Estlund, Democratic Authority: A Philosophical Framework, 117–135.

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D, a person of greater charisma and social presence than yourself,begins issuing orders to the Safes with the aim of saving theImperiled, and they seem to be complying. Now we have collectiveeffort Q. D orders you to do X, which is one of a range of orders thatwould have made you an effective contributor to Q, but other Safeswill now depend on your doing specifically X. Also, there is a rangeof cooperation schemes (some better than others) that would havedone much to save the Imperiled. In fact, you think cooperativescheme R would be better, it would save more lives perhaps, andyou even think (given Q) that it would have been better to orderY. Assume that you are correct. This matters little at the moment,however, unless you have a real chance of instantiating a better,alternative social order that would save the Imperiled. Now, it is theperformance of X that will best enable you to carry out your naturalduty to assist the Imperiled (assume X does not put you in seriousdanger). D’s directive to do X has rendered X obligatory. You arebound by the directive – you do not have the otherwise operativemoral discretion to act otherwise.

Consider the following in light of the example. First, D’s directiveis binding in virtue of being good-making. The directive has publicsemantic content, is widely recognized as agenda setting, requireswhat is morally permissible, and states a minimally successful policythat achieves a VPT good unavailable without a policy. Given thecharacter of the situation, these appear severally necessary andjointly sufficient for D’s directive to bind. Appeal to ‘normativeconsent’ is wholly unnecessary.41 D’s directive is a binding reason toact as directed in virtue of the fact that it has shaped the social worldto make the action directed the route to a mandatory good byarticulating that requirement.42

Second, this last way of putting things should help us notice thatD’s directive is not obligatory merely as a side effect or merely as afunction of triggering preexisting reasons. Some theorists urge thatwe should distinguish between the moral power to create duties fromthe power each of us has to do things that result in the imposition of

41 I will not offer a full consideration of Estlund’s theory of authority (I focus on its explanatoryunhelpfulness), but for a powerful general critique, see Daniel Koltonski, ‘Normative Consent andAuthority’, Journal of Moral Philosophy 10, no. 3 (2013).

42 It is also worth noting that, despite the directive’s binding force, it may be illegitimate for D tocoercively enforce it.


duties as a side-effect of our action. Both change the moral positionof others, but the former is a genuine moral power since its exerciseresults in self-standing moral duties. If I step in front of a car, Isuccessfully make the driver duty-bound to stop, presumably be-cause of a natural duty. The driver’s duty to stop is a mere side effectof my action – I have merely triggered the driver’s reason to stop insuch circumstances.43 In contrast, if I consent to be governed, thegovernor’s commands are then reasons, on their own, for obeying.As Estlund summarizes, ‘A moral power to require action, then, isthe power of one’s commands to count as moral reasons for actionon their own’.44

My analysis of binding directives certainly concludes that they gettheir ultimate moral force from independent moral duties,45 but theyare more distinctive. Binding directives articulate the course of ac-tion that counts, because of the articulation, as the fulfillment of thesalient obligation. In the pedestrian case, the pedestrian is notcapable of determining the course of action that counts as the ful-fillment of the driver’s obligation. The fact of the pedestrian in theroadway is a reason for the driver to stop. The content of the obli-gation is not, in any interesting way, articulated by the fact. In thecase of the directive, on the other hand, the content of the obligationis specified by the semantic content of the directive. In other words,a binding directive successfully articulates the satisfaction conditionsof the relevant moral requirements, and it is a reason for that actionbecause it articulated that type of action. Relatedly, the good ofmandatory moral concern to the driver (i.e., the non-violation of thepedestrian’s bodily integrity) does not require the assistance of anynorm or direction aside from moral norms. Her route to the good iseffable without any intermediary normative devices. The crash caseis different. Your saving N number of lives (N being your marginalcontribution in the collective rescue) requires the direction of the

43 As Enoch puts it, one merely manipulates the non-normative circumstances to trigger a reason tostop the car to avoid hitting a pedestrian. He also gives the example of a grocer raising the price of milk.The grocer’s action triggers a reason to buy less milk, but that is not an exercise of a moral power. See,Enoch, ‘Reason-Giving and the Law’, 4–5. For Enoch, authoritative directives are distinctive in theirreason-triggering in that they involve a complex intention to impose a duty that is successful, in part,because of the complex intention. For a full discussion, see ‘Authority and Reason-Giving’, Philosophyand Phenomenlogical Research 89, no. 2 (2014).

44 Estlund, Democratic Authority: A Philosophical Framework, p. 119. It is out of a concern of this kind, Itake it, that Estlund is motivated to invoke normative consent.

45 As would any plausible account. Even if I freely consent to be governed, the governor’s orderonly binds me by triggering an independent duty to abide by the terms of my consent.

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directive, and thus the course of action that achieves that moral goodis not effable without the semantic content of the directive. Theupshot here is that a directive is a non-moral fact that comes innormative garb, and a binding directive comes in normative garband, in virtue of that garb, is successful at making the mandatedcourse of action normative for practical reason. Posited normativityachieves genuine normativity. We can understand the moral power, asa property of a norm-giver, as the factual capacity to improve peo-ple’s relationship to ends of mandatory concern to them by positinga norm that then describes the route to the ends. Subjects, as bearersof natural duties, are liable to have their moral position so altered. Tosummarize, a binding directive is a self-standing reason for what itdirects, and it differs from side effect impositions of duties in that itspecifies the action it is a reason for and its normative claim is acrucial element of its actual normativity.

Third, that D should be ordering otherwise (D’s orders aremorally suboptimal) does not render his directive non-binding. Ide-ally, perhaps, you would have the de facto recognition to be givingeffective orders, but that is irrelevant for your practical reason. Theroute to carrying out your duty has been determined by D, and thisrests neither on the indeterminacy of the moral virtue, nor theimposition (by the directive) of exclusionary reasons. Taking inde-terminacy first,46 we need not assume that the moral virtue of rescuedoes not pick out ideal rescue schemes in the circumstances, or isincapable of ranking various schemes. It may be perfectly determi-nate, in this sense, and so may political virtues, like justice, inranking political orders. D’s suboptimal directives bind by creating aroute to a good (i.e., the saving of lives) that grounds the virtue of

46 Jon Garthoff, in his theory of authority, relies heavily on the thesis that justice is indeterminate. Ashe puts it, ‘A variety of systems of taxation and transfer would accomplish [the aims of justice] in a waythat is adequately fair; the extra-legal content of morality, I assume, fails to pick out a unique system asfair’. Jon Garthoff, ‘Legitimacy Is Not Authority’, Law and Philosophy 29, no. 6 (2010): 679. Law, on hisview, becomes authoritative by picking out one of those schemes, and justice becomes literally identicalto what the law demands. On my view, there is no need to assume such indeterminacy (and I aminclined to reject it). Garthoff’s discussion, though illuminating in other ways, provides no argument forthis controversial claim. Also, as Andrés Molina Ochoa notes, it is unclear that Garthoff can sustain hisdistinction between moral and instrumental coordination problems. His primary example of the latter istraffic conventions, but as Molina points out, these are crucially involved in our duties of safe conduct.Andrés Molina Ochoa, ‘On How Law Determines Morality’ (Dissertation, Binghamton University,2012). Molina develops a view in several other ways in line with Garthoff’s position, but with anemphasis on how law gives content to moral demands by solving coordination problems, specifically.Although I cannot wholly embrace Molina’s position, the point regarding the moral value of coordi-nation is important (and should, I think, incline us toward the kind of theory defended here).


rescue, not by giving content to the ideal of rescue. Slightly differ-ently, D’s directive specifies what the ideal of rescue requires of you,not what it requires of D.

Moreover, D’s binding directives do not involve the imposition ofexclusionary reasons, and it distorts the moral situation of subjects todescribe the binding character of directives in those terms. Anexclusionary reason is a reason not to act for some other reason(s).47

Nothing is excluded from your practical deliberations about how toact by D’s orders.48 You ought not do Y, or Z, or what you would bedoing under R, because they are not routes to a good. At the point ofcompliance, you do not have reasons to do Y or Z. The reasons forordering Y, Z, and R are not excluded, they are simply irrelevant toyou in the circumstances. If D’s directive is not excluding (non-existent) reasons to act on the basis of other collective enterprises,what reasons does it exclude? It is hard to discern any.

Suppose that if you do otherwise than X, the rescue effort willsave N fewer lives. Compare this to a situation where doing anaction qualitatively identical to X would, because of some strangecircumstance, permit you to save an equivalent number of lives, butwithout the aid of a directive. You are told by D to stabilize a pieceof aircraft with your person, and this will permit a more efficientrescue of the Imperiled. In another scenario, you are the Lone Safe,but stabilizing the piece of aircraft will permit some to climb tosafety. Your moral situation looks the same in both cases.49 You havethe same reasons, exclusionary and first-order, to do X in both cir-cumstances, so the directive simply cannot be introducing additionalexclusionary reasons. If any reasons are excluded, it is the characterof the good at stake or some other aspect of the situation that isdoing the work excluding, not the directive. Coordination, evenpartial-conflict coordination, does not involve exclusionary reasons.

It might be objected: although the order cannot be construed asexcluding reasons to act on alternative collective enterprises, because

47 See, generally, Joseph Raz, Practical Reason and Norms, Second ed. (Oxford: Oxford UniversityPress, 1999).

48 Leslie Green has also recognized that solutions to coordination problems are not, normally,sources of exclusionary reasons. See Green, The Authority of the State, 111–115.

49 I will not consider whether duties or mandatory norms generally need involve exclusionaryreasons (e.g., whether the duty to rescue, in the first place, is a duty because it excludes some reasons,like the reason to take a nap). The point concerns the directive itself, and the sense in which it is areason, since we are interested in the character of its authority.

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there are no such reasons, it still excludes reasons of preference andenjoyment. I may prefer to do Y, or prefer doing something elseentirely, even after the directive, so the directive must exclude thesereasons. This is mistaken. In the Lone Safe case, I may have similarpreferences, but they are excluded (or otherwise defeated) in pre-cisely the same way, and without a directive. My reasons of pref-erence are defeated by the good of rescue. Those reasons should notmatter, or should be seen as overridden, in any case where rescue issalient – and thus, it is the rescuing as a feature of the situation that isexclusionary (if there are any such reasons), not any directive. Ofcourse, in the collective rescue case, it is the directive that rendersrescue salient, and the fact of the directive is consequently a reasonto do X. Moreover, it is binding (in that it would be irresponsible toact otherwise) in virtue of the mandatory end it facilitates. Yet, thedirective does not assist practical reason here by the exclusion ofreasons – you in no sense needed the directive to know that youought to be rescuing, even if you would prefer to do otherwise.50

The plane crashes, people are drowning: hopefully you are possessedof human decency and have bracketed your relatively trivial pref-erences even before a solution has presented itself.51

These last points might seem pedantic, but the argument above (ifit is right) seriously compromises an influential picture of the role ofpolitical authority: that political authority’s service to its subjects isto provide relief services to their practical reason. I have not arguedagainst the notion of exclusionary reasons, per se, but rather againsttheir existence as elements of morally authoritative directives.52 My

50 Put slightly differently, imagine that you can save N lives by either doing X or some other actionentirely independent of the enterprise. I think Raz would admit that the directive, in this case, is notauthoritative. Yet, despite the absence of authority, your reasons of preference are defeated. You havereason to do X, and reason to do the alternative, but you must choose one or the other in virtue of yourpreferences’ defeat – a defeat accomplished either by exclusion or other means, but in any case, withoutassistance to practical reason by a normative device.

51 It might be further objected: the case is one of emergency where attempting to contemplate allapplicable first-order reasons will lead one to underperform with regards to those reasons since (e.g.)the rescue is time-sensitive. The directive must exclude reasons for you to comply with them. Thisresponse is also mistaken. Forgive the science fiction, but imagine the collective rescue case, except thatyou have the power to stop time. You cannot manipulate the physical world while time is stopped, butyou can think for as long as you like. You may well arrive at the conclusion that, given D’s suboptimaldirective, X is what you should do. Emergency may exclude reasons, with or without directives. Considerintroducing emergency into the lone-rescuer case. When emergency so excludes, we should not treatthe exclusion as a feature of a directive.

52 Clearly this argument does not address all the roles Raz gives to exclusionary reasons in hiscomprehensive theory of practical reason. Those would require separate discussion. My point herenarrowly concerns authoritative directives.


argumentative strategy has been to take a straightforward case ofpractical authority, a case we intuitively identify as involvingauthoritative directives, and to consider how best to understand it interms of the reasons in play. Once we notice that reasons to act onother enterprises are not excluded, and consider the case in con-junction with the Lone Safe case, it is very difficult to see exclu-sionary reasons as attaching to directives. It distorts the moralposition of the subject to suggest that they do, and such mischar-acterization can be important. Consider that treating authoritativedirectives as exclusionary will incline an agent to discount reasonsfor which she is responsible. Assume, for the moment, that there areexclusionary reasons. If an agent has already countenanced theexclusionary reasons supplied by the ends at stake, and by otherfeatures of her circumstance, and then treats the directive as sup-plying additional exclusion, she will then tend to eliminate first-orderreasons from her practical deliberation that are her practical reason’sbusiness. Since some of these reasons will, from time to time, bemoral reasons, treating directives as imposers of exclusionary reasonswill incline her towards irresponsible conduct. This last point is notan additional argument against authority as exclusion, it indicates animportant corollary of the above arguments.

On my view, authoritative directives are instrumental, and theirbinding force should be understood in terms of service to rightreason. However, its service is not one of insulating reason fromreasons. D’s directive is simply a reason to do X that is binding inlight of the end it uniquely facilitates (its binding-ness is something tobe assessed in contemplation of the end). Its proper significance inyour deliberations is determined by the character of your duties toassist those imperiled and how well the directive provides a route todoing your duty. If your duties were better served by other means,the directive is no longer binding. Also, other moral reasons cancompete, and sometimes win against, a binding directive. Bindingdirectives do not serve our practical reason by excluding reasonsfrom its purview, but by delivering a course of action to contemplatethat is now (because of the directive) part of what duty requires.Moral authority serves our natural duty, by articulating a worldmore amenable to agents pursuing their rightful ends.

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A final note before moving on. I keep the rescue example rela-tively simple to highlight several points, but (time and social orderpermitting) D’s directive does not preclude you from trying topersuade D otherwise or of trying to convince others of a differentcourse of action. However, you may not have time or sufficientpersuasive force. D’s directive then binds you. Without it, you werefree to act otherwise, and perhaps you could responsibly do nothing(imagine if there were no safe rescue available without collectiveeffort, and no effort is forthcoming). With it, you are bound to doyour duty to your fellow humans by complying.

C. Binding Law

Perhaps it is now clear how, in my view, non-ideal law binds. Po-sitive law constrains responsible freedom to its terms by creating aroute, that is compliance with the law, between an agent and an endof mandatory concern to the agent unavailable without a directive.Law will frequently, though hardly always, satisfy the conditions tobe good-making. Almost all theories of positive law require thatactual recognition figure, in some crucial way, to legality, such thatlegality also explains the ability of legal institutions to issue agenda-setting directives.53 Moreover, the rule of law goods described in parttwo are VPT goods, and are plausibly duty-implying goods. Thesegoods are, for a legal subject, normally not pursuable by othermeans, and a subject’s behavior often factually affects the extent oftheir realization. A non-ideal system’s law will frequently bind invirtue of its public semantic content, legal recognition, moralacceptability, and its statement of a minimally successful policy for amandatory VPT good that is then achieved, by the subject, by actingpursuant to the law.

Practical reasoning under non-ideal law, then, requires cogni-zance of the way in which the rule of law is valuable, and how thatvalue depends on compliance in particular circumstances. Moreover,given that law (even when binding) will not normally produceexclusionary reasons, the responsible agent will have to be sensitive

53 In fact, I cannot think of one that does not. This does not, of course, imply that recognition needattach to legal norms one by one, only that recognition is partly constitutive of legality somewherealong the line (e.g., at the level of official practice, and/or at the level of widespread acceptance ofofficial practice), and this explains factual recognition of some norms.


to the value of a good compared to other competing reasons.54 Thescope of binding law will be determined by the circumstances whencompliance is related to the realization of mandatory good(s). Theweight, compared to other moral matters at stake, of binding law inpractical reason when it regulates within its scope will be determinedby the moral significance of the good(s) the legal authority isinstrumental, via compliance, in securing. Law will normally binddifferentially across a legal system. I mean this in two senses. First,the type of VPT goods at stake will vary from department todepartment. Second, some departments will simply be more pro-ductive of genuine valuables than others, and some domains may beunjust or oppressive in ways that undermine their ability to bind.The traffic law of apartheid-era South Africa was binding for itssubjects, but much of the racist policy of the regime was not(though, reasons of prudence may counsel compliance). If somethingprompts moral worry about what some domain of law is up to,nothing about law’s ability to bind in other domains of the legalsystem excuses a subject from assessing the value of compliance tothe suspect domain. Also, on point, some legal prohibitions willsimply reproduce the satisfaction conditions of moral demandseffable without a non-moral normative device, and these laws willnot be binding.55 Law is not route-making here, it simply correctlyidentifies what you should do, and the fact of legality need not figureinto practical reason (except, maybe, indirectly as a reason for belief).

More needs to be said about why (exactly) and which rule of lawvaluables are of mandatory concern. In Part Two, I attempted todescribe some rule of law goods in a light that would show them tobe very plausibly sources of natural duties. Demonstrating as muchwould involve addressing substantive matters of political philosophy,

54 One might object that this involves an extremely demanding calculation on the part of thesubject, and that it is implausible to expect such calculation. One must go through the reasoningindicated in the preceding paragraph, and weigh various political goods against one another, onparticular occasions. In response, moral reasoning can generally be quite complex, and we legitimatelyuse various heuristics to do right in particular circumstances (e.g., we consider the relative weight ofmorally important values when we have time to reflect so that we can rely on a heuristic weighting intimes where a quick decision is required). All heuristics available to proper moral reasoning are availableto and legitimately employed by those reasoning under law when they are considering relative weightsof goods, the value of compliance in certain types of circumstances, etc. It is incorrect to infer from this,though, that law gives rise to pro tanto or prima facie obligations wherever it has factual social regard. Itmay not be pro tanto obligatory because it may not serve any morally mandatory end, and thus give riseto no obligatory reason. It may not be prima facie obligatory, because should such a circumstance in factobtain, it may be immediately evident.

55 Though, again, they may be legitimate.

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and that cannot be done adequately here.56 Aside from what I saythere and here, I will simply assume we have significant, non-transactional natural duties. Nonetheless, what I hope to haveaccomplished is an analysis of how positive norms can bind thatexplains how legal normativity accomplishes genuine normativity forpractical reason. I have attempted to do this without describingnorms in terms of (distortive, in my view) exclusionary reasons,positing indeterminacy, or employing difficult to substantiate generalmoral commitments to legality. Of course, on this account, legalsubjects bound by law are not relieved of the responsibility to discerntheir duties to others – the binding force of law can only be ascer-tained through judgments of political morality. Again, law binds notby providing relief services to practical reason, but by articulating acourse of action for its consideration (in light of the total circum-stances) that then constitutes the success conditions for performingat least one of its duties.57

Part Two also indicated several types of instances where we canexpect law to be route-making in the sense relevant for establishingauthority as described here. Yet, to aid intuition, consider twoconcretized (if mundane) examples. We exercise power when actingin the social world. While driving, I have the power to make thingsgo badly for others. Others have a moral right that I care for theirsafety when driving down the road. I do not have the means fordoing this without settled conventions regarding speed, direction,passing, etc. – my practical reason has no course of action to considerthat would achieve safe travel. Traffic law, by the factual socialregard for its semantic content that accompanies its legality, makes itthe case that I can carry out my duty by stipulating an acceptablecourse of action that, by the act carrying it out, is doing my duty.There are at least two duties here. One is that I not undermineserviceable conventions that achieve minimally safe highway travelwithout acting towards an alternative (sometimes this sort of effectwill be negligible or non-existent, it depends). The other is that I

56 We might, e.g., conceive of these valuables in terms of public reason and the liberal principle oflegitimacy. See, John Rawls, Political Liberalism, Paperback ed. (New York: Columbia University Press,1996), 212–254.

57 Of course, being provided the means for dutiful action can be unhappy for an agent – one mightprefer the freedom of not having the means. Being morally bound is not meant to be pleasant, it isabout according oneself responsibly towards others’ rights.


drive safely. The safety of others, secured through coordinatedtraffic, is a mandatory rule of law valuable.

Legal philosophy is tired of traffic convention examples, so takeanother that more aptly can be described as involving partial conflict.Law facilitates personal autonomy by settling rules for property. Myability to give direction to my daily life and make longer-term plansdepends on my ability to develop stable expectations about howothers will regard the material world (including what they will re-gard as mine and how, precisely, they will regard that as significant).Autonomy presupposes some social order, and property law pro-vides that order for the material world. Moreover, when I expectthat others will so constrain their behavior, I will position myself invarious ways (by saving, purchasing, investing, etc.) such that I amvulnerable when people start regarding the material world differ-ently. The idea that I have a right that others not undermine theconditions for an autonomous, decent life, and that people do not,without special justification, frustrate my legitimate expectations isnot terribly controversial. Property law is binding insofar as it pro-vides a route to this VPT good that is compliance with its terms,even if the rules are suboptimal with regards to distributive justice.This should not be taken as an especially conservative conclusion, ascompeting moral considerations are not excluded, and the substan-tive injustice of property rules will diminish their moral force since(if the order really is unjust) people’s rights are being violated.

Law binds regularly, but non-generally in light of our naturalduties, on this view. However, I do not see the overriding impor-tance of satisfying the ‘particularity requirement’,58 as some naturalduty theorists have.59 Perhaps our obligations to our compatriots canbe shown to have special significance, but it is hardly damaging to atheory of legal normativity if they cannot. If a domain of law permitsme to see to impartially important moral goods with respect to mycompatriots, but those goods are of less significance than competingmoral goods I can effectively render to non-compatriots, then maybe

58 See A. John Simmons, Moral Principles and Political Obligations (Princeton, N.J.: Princeton Uni-versity Press, 1979).

59 See Pauline Kleingeld, ‘Kantian Patriotism’, Philosophy and Public Affairs 29, no. 4 (2000); Chris-topher Heath Wellman, ‘Political Obligation and the Particularity Requirement’, Legal Theory 10, no. 2(2004); Jeremy Waldron, ‘Special Ties and Natural Duties’, Philosophy and Public Affairs 22 (1993). I donot deny that this has traditionally been regarded as a lacuna for theories of political obligation. A failureto demonstrate special moral ties between a person and their political community, however, does notspell the end of binding law.

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so much the worse for the law’s normativity in the circumstances. Ifa ship sinks next to the plane crash, and I can save more lives bysupporting the cooperative rescue efforts involved in saving theshipwrecked, then so much the worse for D’s ability to bind me.60 Ofcourse, sometimes the temptation to disobey has more to do withour inclination than a cosmopolitan assessment of our moral duties.Also, mere proximity to others will, day to day, make domestic lawbinding, since it is my compatriots’ interests that I will normallydirectly impact in my daily decision-making.61

D. Intentions and Political Authority

The above considerations permit the articulation of a general argu-ment against theories of political authority that make authorialintentions the locus of authority. Such views are in many waysintuitive, and they have received extensive elaboration, especially inthe literature on legal interpretation.62 Also, recent work onauthority in particular has emphasized the importance of intentionsfor the exercise of authority, and the content of the obligations itgenerates.63 I cannot offer a full assessment of such views here, but Ican articulate a simple and direct argument, that applies fairly gen-erally, against such views.

To say that authorial intentions are the locus of authority is to saythat they are the site of the moral power to require action – where it isthat the power to impose obligations is exercised. Less mystically, ifsomeone is an authority, then they can effectively change someone’smoral situation by intending to and communicating an intention to doso. Although communication is important, it is not fundamental (on

60 Naturally, defenders of particularized political authority take it that political obligations aredefeasible. My only point here is that we need not assume particularity to account for law’s ability tobind in very many circumstances. The account stands somewhat independent of this well-developeddiscussion. If special obligations can be shown, they can be integrated into this account. Also, relatedly,it may be wondered how (if the particularity requirement is not met) my own state’s tax law, forinstance, can bind me. This raises interesting issues, but I do think this approach has an attractive way ofdealing with them. However, that requires independent discussion. If the fundamentals look promising,then serious consideration can be given to the details.

61 This is not tantamount to endorsing particularity (or the particularity requirement as a successcondition of a theory of authority) as there is no asserted moral presumption in favor of my compa-triots.

62 Alexander, ‘All or Nothing at All?: The Intentions of Authorities and the Authority of Intentions’.63 Though Enoch does not generalize to political authority, see Enoch, ‘Authority and Reason-

Giving’. See also, Perry, ‘Political Authority and Political Obligation’.


such views). If there are ambiguities, for example, in the publicexpression, the natural way to resolve them is by asking the authoritywhat she intended. This is because the crucial fact that changes themoral position of the subject is the intention of the authority to changethe subject’s moral position in such-and-such a way. It is the shape ofthe intention that determines, ultimately, the content of the subject’sobligation. The moral power to require action is exercised, funda-mentally, by an authority’s intention to do so.

Again, I restrict the argument here to political authorities:

1. Political authority is justified, at least in part, by the authority’s abilityto realize the central moral goods of the rule of law. Depending on thetheory of political authority, there may be other elements that figureinto the justification of authority as well. Nonetheless, part of showingthat an authority is justified is showing that it can reliably produce ruleof law goods. It is implausible that a political agency could have themoral power to require action when it cannot reliably secure these.

2. Intentions can remain private, and intention communication can fail.The most relevant ways this can happen is that (1) someone can intend toconvey something, but the public meaning of her expression mismatchesher intention, and (2) someone unintentionally conveys something.

3. Rule of law goods are secured via the public semantic content ofdirectives (as, I hope, is clear from what I have said in earlier sections).

4. When there is a mismatch between intention and the public meaningof the expression, the rule of law goods will prefer the public meaningover the private. From the standpoint of rule of law goods, it is thepublic meaning that is important.

5. Without some powerful countervailing rationale internal to the justi-fication of authority, then, authority reasons will be tied to publicmeaning. (The rationale would have to be especially strong, sinceauthority’s justification is inextricably tied to its ability to secure goodsthat operate via public semantic content).64

64 The only candidate rationale that comes to mind is that the authority’s moral power is (also)justified in terms of its expertise. This seems to be part of what Alexander has in mind, see Alexander,‘All or Nothing at All?: The Intentions of Authorities and the Authority of Intentions’. However, thecases where political authority rests on expertise, as many have noted, are few and far between. Also,even if we conceive of democratic legislatures as producing results that are, in a sense, expert, this doesnot clearly imply that we ought be in search of anyone’s intention. See, Waldron, Law and Disagreement,119–146. Despite his intentionalist leanings, I take this point to be largely consistent with Marmor’sdiscussion of legislative intent and authority. See Marmor, Interpretation and Legal Theory, pp. 119–140.The point here, though, is more general, the premises are somewhat different, and they warrant(I think) a stronger conclusion.

ANTHONY R. REEVES

6. If authority-reasons are tied essentially to public meaning, this must bethe locus of authority, i.e., the site at which the power to imposeobligations is exercised. Authority-reasons will only contingently takethe shape of the intention (if there is any) behind a directive. Slightlydifferently, authority-reasons will only contingently require what theauthority intended to require. What an authoritative directive willrequire will depend on the public meaning of the directive. The powerto require action is exercised here.

7. Conclusion: The locus of political authority is not authorial intentions.Intention-based accounts of political authority are false.

IV. AUTHORITY AND BINDING LAW

In an article, one can explicate the central elements of an approach,argue that it is comparatively meritorious, address some worries, andoffer an indication of its promise in light of plausible diseredata. Iperform the last task here, though I also intend to put pressure onsome of the success conditions for a theory of political authorityoffered in recent work. Authority involves at least the ability toimpose obligations. Some other elements thought to be involved are:

1. Residence in an agent65: Authority is frequently thought to be a powerpossessed by a person or some other agent (e.g., a democratic legis-lature). The approach here does not emphasize this element – bindingnorms are such in virtue of being good-making. Their ability to bindfundamentally relates to the norm’s capacity, not (essentially) by beingissued by any particular person. However, frequently a positive norm’scapacity will depend upon its issuance from a particular agency. Thefactual recognition of D is what permits his directives to be good-making, and such is likely the case for many political institutions. Hehas the capacity to require action insofar as his directives have theability to create routes to mandatory ends. Why should we want, whenthe question is one of political authority, the power to bind to extendbeyond that? I suggest we should conceive of political authority as the

65 See, for example, Robert Paul Wolff, In Defense of Anarchism (New York: Harper & Row, 1970), 6.In distinguishing authority from persuasive argument, Wolff says, ‘authority resides in persons; theypossess it – if indeed they do at all – by virtue of who they are and not by virtue of what theycommand’.


ability to make non-moral normative devices serve rights.66 One isappropriately called a practical authority when one is factually inpossession of that capability for some range of circumstances. Also, ifdemocratic institutions, e.g., are capable of producing intrinsicallyvaluable directives, then the approach here is fully consistent withdesignating those institutions as authorities. Their proper exercise ofnorm-creating procedures will make the resultant norm authoritative.

2. Content-independence67: Intuitively, the idea is that one can have a rea-son to perform some action that, in some sense, does not depend onthe character of the action. If I promise to do X, then I have a reason todo X (whatever X happens to be, within limits), and if I promise to doY, instead of X, then I have a similar reason to do Y, even if Y is of avery different character than X. Despite casual use of the term in legalphilosophy, and the widespread assumption that it is central toauthority, I am not sure that there is a common understanding of whatit, precisely, involves.68 On some understandings of content-indepen-dence, my account does not have it since the content of the directivemust state a policy that is then the route to a good, and the force of thedirective depends on its success in achieving the relevant good.However, no plausible theory of authority grants a power to requireaction that is wholly independent of the character of the action.69 If anotherwise justified authority orders you to violate someone’s basichuman rights, its attempt to exercise a moral power has failed. Myaccount does offer an explanation for how the content of the directivecan be of some indifference. It shows how many different directives,with variable incompatible content, are all candidates for bindingsubjects (even if suboptimal) if given by an agent with the power tomake them good-making. In fact, on my view, this is precisely where

66 Perhaps unlike standard theories of political obligation, approaching the issue in this wayimmunizes it from Perry’s ‘reverse entailment problem’. See Perry, ‘Political Authority and PoliticalObligation’.

67 Widespread, but one example is Green, The Authority of the State.68 This is made clear, I think, by Sciaraffa in his illuminating discussion. See Stefan Sciaraffa, ‘On

Content-Independent Reasons: It’s Not in the Name’, Law and Philosophy 28, no. 3 (2009). It is atechnical term introduced by Hart. For his definition, see H. L. A. Hart, Essays on Bentham (Oxford:Oxford University Press, 1982); 254. See also, P. Marwick, ‘Law and Content-Independent Reasons’,Oxford Journal of Legal Studies 20, no. 4 (2000).

69 Even in the core case of content-independence, the promise, the force of the promise (in my view)for the promisor varies somewhat with the value of carrying out the conduct promised. Clearly, thisrequires argument and its own discussion, which cannot be provided here. For some initial consider-ations, see Anthony R. Reeves, ‘Do Judges Have an Obligation to Enforce the Law?: Moral Respon-sibility and Judicial Reasoning’, Law and Philosophy 29, no. 2 (2010): 168–172.

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directives bind (in light of VPT goods). Moreover, it shows how thedirective is a reason for action for what it directs. If this is what we wantfrom content-independence, then this approach has it. If we wantsomething else, then we need to say what it is and why.

3. Not merely side-effect imposition of duty70: See Part III, Section B fordiscussion of this requirement. The binding directives of my accountare not merely side-effect impositions of duties.

4. Purposive, Not Inadvertent71: The exercise of a moral power must, it isthought, have the creation of moral obligation as its aim. As I justargued, the content of the moral obligations generated by politicalauthorities does not depend on the intentions of those authorities, butrather on the public meaning of their directives. But, perhaps, politicalauthorities must have had an intention, of some sort, to create anobligation. A legislature may, though no one having read the entiretyof a bill, intend to create an obligation to abide by the bill’s terms. Itcan be a successful authority by at least having this minimal intention.The worry about this requirement, from the standpoint of politicalauthority, is that evidence for the existence of this intention will consistsolely in the publicly ascertainable facts regarding the satisfaction of theprocedural requirements for passing a bill. In fact, the actual intentionsof legislators to exercise a moral power is wholly irrelevant. If everylegislator says, if asked, that s/he did not intend to exercise a moralpower, but just stumbled in drunkenly and yelled, at the time ofvoting, ‘approve!’ while thinking of her/his favorite philosophicaldoctrine, then the agency will have successfully (other conditions met)exercised its moral power despite no one having an intention to do so.If we identify ‘intentional exercise of power’ with the publicly ascertainablesatisfaction of recognized procedural requirements, then my account ishighly amenable to this requirement. If we mean something like a sub-jective intention to exercise power on the part of a person, we ought toabandon the requirement as a desideratum for political authority.

5. Mandatory, Non-Advisory: Authoritative reasons are not advice, they areindependent mandates to do what is directed. There are two separateideas here. One is that the directive is not a reason for belief, but isitself a reason for action. The second is that the reason entails a moral

70 Edmundson also insists on this, though in terms of directness and indirectness. See, William A.Edmundson, ‘Political Authority, Moral Powers, and the Intrinsic Value of Obedience’, Oxford Journal ofLegal Studies 30, no. 1 (2010): 183.

71 Again, widespread, but see, e.g., ibid., p. 181.


obligation. These are central elements of binding directives on myapproach.

6. Requires Submission: Authority involves one agent submitting, even in thepresence of contrary judgment as to the wisdom of the directive, to thedirective. The will of one becomes the will of another. The approach heredescribes conditions in which this is meaningfully the case and appro-priate. When the conditions for a binding directive are met, it rendersyour view about what ought to be directed inoperative, and someoneelse’s view (mistaken or not) about what ought to be done, mandatory.

7. Preemptive: As discussed earlier, the idea that authority excludes reasonsfrom practical reason has been widely-held since at least Raz’s intro-duction of the term ‘exclusionary reason’, and probably longer.However, as I have argued, the kind of coordination (pure andotherwise) that is the mainstay of binding law does not involve pre-emption. Perhaps cases of expertise, as in the example of the envi-ronmental agency given earlier, create a small sphere for exclusionaryreasons for political authority. It would be small, though, and it is notevident that exclusionary reasons are operative even in these types ofcases. Why not think of the agency as simply giving a reason for abelief relevant to existing reasons for action? I have reasons to preventenvironmental degradation, but I know less well than the agency abouthow to prevent it. The agency gives me a reason for believing thatwashing my boat will prevent degradation. I ought to believe that boatwashing is preventative because experts told me so, and this is relevantto my reason to act to prevent degradation. No reason for action isexcluded by the ordinance.

8. Small-error tolerant, not intolerant72: If the commander is an authority,then the duty to obey does not automatically run out when thecommander errs with regards to her aims. Large errors, that deeplyfrustrate the aim, may undermine authority. There are two separatetypes of cases, though Edmundson and Estlund treat them together. Inone, the commander gives an order that is suboptimal compared tosome other order. D orders you to do X, though it would have beenbetter to order Y, but you are bound to do X.73 My account easily

72 Ibid., 182–183; Estlund, Democratic Authority: A Philosophical Framework, 125.73 See Part Two, Section B. In the case of D, small errors will frequently be tolerated because others’

expectations about your behavior will be settled by D’s directives, your most effective contribution tothe collective effort will be determined by D’s directive (even if you could have made more by another),and because it may be independently important to avoid upsetting the operative recognition of D as theagenda setter. Better a mediocre rescue than none.

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handles this kind of small-error with normative economy. Anotherkind of case is where compliance fails altogether to contribute directlyto the aim. Here we again have two kinds. In the first, obedience doescontribute to the realization/maintenance of a valuable normativeorder – by doing X (which is otherwise pointless, and perhaps some-what counterproductive), I marginally increase overall confidence in Das the salient coordinator. My account also handles these cases well – Dhas made X good by directing me to do it, since it is now the means forrealizing a mandatory good: a collective normative order thataccomplishes a duty-implying end. In the second, the effects on thenormative order are non-existent. In these cases (my account has it)orders do not bind. This is not obviously bad news, however, since weare now in the realm of stoplights on deserted roads, legally prohibitedprivate acts with no untoward consequences to others, etc. –requirements that even many political obligation theorists attempt tomarginalize from the sphere of political authority.74 Demanding that atheory of political authority cover these cases is, at least, controversial.

9. Intrinsic Value Producing: Edmundson contends that the moral power tocommand essentially involves intrinsic reasons for obedience. Hedescribes the idea as follows:

An intrinsic reason for action is one that reflects the action’s inherent value,or the value of a whole of which the action is an essential component. Anintrinsic reason for action is to be contrasted with a merely instrumentalreason for action, where the action has no value in itself but would lead to orpromote something else that is valuable in itself, if perhaps only by a chain offurther events and actions.75

As Edmundson notes, only consent seems capable of giving thewill of another the intrinsic moral power to require action. Othermoral approaches to political obligation grounded in, e.g.,fairness or natural duties would be incapable of substantiatinggenuine authority.76 Given the rarity of circumstances in which

74 See, e.g., George Klosko, ‘The Moral Force of Political Obligations’, The American Political ScienceReview 84, no. 4 (1990).

75 Edmundson, ‘Political Authority, Moral Powers, and the Intrinsic Value of Obedience’, 184.Estlund seems to endorse this requirement also. See Estlund, Democratic Authority: A PhilosophicalFramework, 145.

76 Edmundson, ‘Political Authority, Moral Powers, and the Intrinsic Value of Obedience’, 185–191.Green seems to agree. See, Green, The Authority of the State, 158–187, 220–247. Depending on howfurther analysis of what it is for reason to be intrinsic, for Edmundson, I am not even certain thatconsent based obligations qualify. Those reasons are parasitic, presumably, on natural duties to abide bythe terms of one’s consent.


the governed have consented, making the ability to produceintrinsic reasons a necessary condition of authority renders theconcept relatively unimportant for understanding our responsi-bilities in political life. Insofar as we want the concept of politicalauthority to help us identify distinctive kinds of moral demandsthat we actually encounter, we should be wary of requiring atheory to demonstrate intrinsic value production.

We can frame the theoretical issue as a dilemma. The morerobust the success conditions we insist upon for theories of politicalauthority, the less we will be able to fruitfully theorize about nor-mative political matters in terms of the concept. It will be incapableof illuminating our political relationships and responsibilities. On theother hand, the less robust the conditions, the less theorizing mayaccord with some of our pre-theoretical intuitions regardingauthority (or, perhaps, with our analyses of the type of authority lawclaims). The account here, then, may be thought of as moderatelydeflationary, preferring the first horn of the dilemma. It is not evi-dent that robust authority is an important concept for illuminatingpolitical relations, including our relationship to political institutions.When Enoch (e.g.) begins his theory with the example of a parent/child relationship as the archetype of authority, we have alreadybegun on the wrong path.77 The alternative advanced here contendsthat we should consider how law binds in virtue of its ability toaddress the kinds of problems it is meant (so to speak) to solve. Ihave argued that this delivers much of what we intuitively andnormatively want from a theory of political authority (i.e., the abilityof suboptimal law to morally bind practical reason in the circum-stances where it is important to have a posited normative device),and without excess that may intuitively attach to our pre-theoreticalnotion of authority (perhaps appropriately in other domains, butwhich is wholly inappropriate for political authority).

A complete theory of political authority would need to say morethan I have here, especially about which moral ends law properlyserves – it would have to address substantive matters of politicalmorality. For now, one additional remark on this approach’spromise. The following example has troubled recent authority the-orizing:

77 Enoch, ‘Authority and Reason-Giving’.

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If a petulant child of a brutal dictator whimsically tells the minister to leave thepalace, and the dictator will unleash brutality on the masses out of anger if theminister disobeys, then the child’s command has created a moral requirement toobey. The child has the moral power to require action, but it sounds wrong to saythat she has authority. One way of capturing this is to point out that in this case,when the minister considers what to do, the fact that the child commanded him toleave has no weight of its own. The danger of the dictator’s brutality is triggeredby the command, but the command itself drops out of the set of reasons for action.In cases of authority the fact that it was commanded is itself a moral reason foraction, a reason that requires action unless it is canceled or outweighed.78

The challenge is to avoid having the result that the child’s order isauthoritative, and explain the sense in which the command ‘dropsout’. A theory of authority developed along the above lines can saythe following. Political authority properly attaches to directives thatare good-making. Although there is a sense in which the child hasmade the act of leaving the palace good, since the minister has a dutyto protect and leaving the palace is now the means for doing so, thechild’s directive does not make available that good. The people’ssecurity was made realizable, insofar as it is realized, by the schemeof law in place prior to the child’s order. The child’s order does notrender accessible a VPT good (and systemic stability is not assistedby having the order in place for compliance). The child’s order isundoubtedly a reason for the minister, but it drops out from thestandpoint of political authority in the sense of not being the kind ofreason appropriate to the relevant normative order. It is an abuse ofauthority. The kinds of reasons appropriate to a normative order arethose that are reasons because they are implicated in the productionof goods that the normative order is rightly concerned withproducing. The child’s demand merely threatens those goods. It isnot, itself, an instrument to the availability of those goods.

V. CONCLUSION

On Edmundson’s statement, ‘Political authority consists in the state’s(purported) moral power to place us under obligations to obey itscommands, particularly its laws’.79 Normally, the state will onlypossess such a power insofar as it is positioned to carry out its dutyto provide a determinate course of action for the rightful aims of its

78 Estlund, Democratic Authority: A Philosophical Framework, 118.79 Edmundson, ‘Political Authority, Moral Powers, and the Intrinsic Value of Obedience’, 180 .


subjects. Under morally imperfect, non-ideal law, practical reason’sproper concern with legality is strongly tied to law’s success inrendering available goods that are of mandatory concern to thesubject. Positive law’s moral normativity, its ability to be a bindingreason for action, normally resides in its creation of a route to whatwe owe each other on an occasion of decision. Human law doesprovide a service, but it is not one of insulating reason from reasons.It is one of providing a determinate course of action that morality, inthe circumstances of human social life, is ill-quipped to unilaterallydeliver. Typically, morality will be ill-equipped insofar as it requiresthe realization of a VPT good in an interactive environment. Con-ceiving of law’s capacity to bind in this way does not prove that atheory of political obligation cannot be substantiated for somepolitical contexts. It does show, however, that law can bind inconscience without general and special political obligations, and thusour search for a theory (if we continue) should be animated by someother concern(s). More generally, this conception raises questionsabout some approaches to theorizing about political authority. Oursense of when a theory of political authority succeeds should beguided by a view of what we are trying to understand. I haveemphasized the standpoint of the subject of law trying to actresponsibly, and such emphasis may obfuscate something thatproperly puzzles us about political authority. But if so, we need tosay what it is. At the very least, some of the adequacy conditionsextant in the literature are currently under-motivated for the realmof the political.

ACKNOWLEDGMENTS

I am grateful to Daniel Koltonski, Candice Delmas, David Lyons, JamieKelly, Uwe Steinhoff, Jiafeng Zhu, Marcus Arvan, Robert Jubb, and twoanonymous reviewers for this journal for comments on earlier drafts of thispaper.

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2 Practical Reason and Legality: Instrumental Political Authority Without Exclusion