The Ethics of Deference Part 4 potx

46 part i: law’s morals

authority, when it is legitimate, must be absolute, that is, must preempt entirely

the subject’s own views of correct action.

There is a second difference between the expansive and restrictive accounts

of authority that can best be seen by considering a normative claim about how

authority works. The restrictive account, in addition to suggesting that authority

preempts individual calculation, also entails what Raz calls the “dependence

thesis” – the thesis that authority, in order to be legitimate, must base its decisions

on the same reasons that would apply independently to the subjects of the

directives.22 At first glance, this seems like a fairly strong constraint. It seems to

ensure that, while subjects may be preempted from doing their own calculations,

at least they will not be subjected to directives designed to advance interests

completely foreign to their own.

The appearance of constraint, however, is problematic for two reasons. First,

the dependence thesis does not require that authorities act in the “interests”

of their subjects, but only that they act “for reasons which apply also to the

subjects.”23 Thus a military commander complies with the thesis when he orders

a soldier, in the interest of national defense, to take action that is inconsistent

with the soldier’s interest in personal safety. That is because soldiers ought to put

their country above their own interests, whether they do in fact or not. Second,

the dependence thesis ignores the problem of disagreement about what reasons

are applicable to subjects. The typical posture of the law when it enforces its

norms is that the question of which reasons apply to a subject is itself a question

that the legal authority has the right to decide. Under the expansive account of

authority, the dependence thesis would thus require only that an authority act on

reasons that the authority believes its subjects ought to acknowledge, whether

or not they in fact do so. Under this interpretation, the modest constraint of a

jurisdictional limit on the types of reasons that may be considered disappears

given the ability of the authority to decide for itself whether it has exceeded the

limit.

The dependence thesis provides a constraint on legitimate authority only if

it is interpreted to require that the reasons on which the authority relies apply to

the subject in fact, that is, as a matter of an objectively correct normative view

about what reasons individuals ought to consider or what areas of individual

life authorities can properly control. Thus, in the case of the soldier, the military

command would be consistent with the dependence thesis under a restrictive

view only if the commander (and his superiors in turn) were objectively correct

in their conclusion that citizens ought to participate in a particular war. But if

this is what is intended by the dependence thesis, it underscores the difference

between the “service” and “leader” conceptions of authority. Under the leader

conception, a legitimate authority is entitled to deference regardless of whether

22 Raz, The Morality of Freedom, 42. 23 Id., 15.

Understanding Authority 47

it is correct in its evaluation of the pros and cons of particular action; that being

the case, it also seems to follow that deference is due to the determinations of

such authorities about what reasons ought to apply to and be considered by its

subjects. It would be odd, for example, to suggest that the government’s author￾ity survives mistakes in its calculation about, for example, the legitimacy of a

war but does not survive mistakes in its decision about what reasons individuals

ought to consider in deciding whether to fight.

In short, under the leader conception, the likely response of the state to the

suggestion that its authority is limited by the dependence thesis is, at best, to

agree, but to insist that it has the same right to be wrong in deciding what reasons

citizens ought to consider as it does in deciding the content of the law. The gov￾ernment no doubt will claim that its laws are based on reasons that apply to its

subjects, but it will insist that its authority is not conditional on having correctly

determined what those reasons are or how they apply to particular cases. Thus

the dependence thesis, under the expansive account of authority, must be refor￾mulated to reflect more accurately the extent to which it serves as a normative

constraint on the exercise of authority. All that is required under this account is

that the authority act in good faith in the interests of the general welfare or of

justice as it sees it, defending that general pursuit of the public welfare as based

on reasons that all individuals should take into account. This formulation is, no

doubt, sufficiently general to include almost any set of reasons, some of which

include the interests of particular individuals and some of which do not. It is

also broad enough to include the range of contested positions within political

theory about the proper range of interests that governments may appeal to in

justifying constraints imposed on individuals. In fact, all that seems to be ruled

out by this reformulation are cases of purely self-interested tyrants who rule

solely in their own interest, with no belief that their self-interest coincides with

broader goals of justice or the public good with which individuals too should

be concerned.24

substance. What then is the justification of authority under the expanded

conception? What reasons could one have for deferring to the law’s judgment

about the merits of action, regardless of any likelihood that following the judg￾ment would more likely accord with correct action than following one’s own

lights? That question will be examined throughout this study, but two initial

24 I do not meant to suggest that this constraint, which requires authorities to issue directives

thought to be in the public interest or in the service of a general theory of justice, is no constraint

at all. To the contrary, the requirement of sincerity and the need to justify, even if by reference

to a theory of justice that is in fact erroneous but is believed to be correct, will provide some

limits on what may be proffered as the grounds for an authoritative decision, if only because of

the constraint of consistency. It should, however, be recognized that the constraint is consistent

with almost any form of government from the divine rule of kings to the democratic rule of a

small city-state. I discuss the potential constraints of this requirement at greater length in Philip

Soper, A Theory of Law, (Cambridge, Mass.; Harvard Univ. Press, 1984), 119–22, 133–43.