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Describing authority

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Describing authority

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Content DESCRIBING AUTHORITY by Joshua D. Crabill A Dissertation Presented to the FACULTY OF THE USC GRADUATE SCHOOL UNIVERSITY OF SOUTHERN CALIFORNIA in Partial Fulfillment of the Requirements for the Degree DOCTOR OF PHILOSOPHY (PHILOSOPHY) May 2016 TABLE OF CONTENTS Acknowledgements i Introduction – A Brief History of Practical Authority 1 § 1. Practical Authority 1 § 2. Wolff and Raz 3 § 3. Key Objections to Raz’s View in the Literature 5 3.1: The Proceduralist Objection 6 3.2: The Insufficiency Objection 8 § 4. Darwall’s View of Practical Authority 17 § 5. The Boundaries of Legitimacy and a Promising Alternative 19 § 6. Non-Normative-First Views of Practical Authority 27 6.1: Commitment 1: The Priority of the Non-Normative 27 6.2: Commitment 2: The Institutionality of Authority 29 6.3: Commitment 3: The Justification of Authority Involves Reasons to Participate 31 § 7. Parting Ways 33 § 8. The Case for a New Argument 35 § 9. Taking Stock 39 § 10. The Plan 41 Chapter One – The Case for Institutional Authority 44 § 1. Overview of the Argument 44 § 2. Cashing Out the Distinctiveness of Authoritative Reason-Giving 46 2.1: Candidate Feature 1: Say-So 47 2.2: Candidate Feature 2: Sanctions 49 2.3: Candidate Feature 3: Identity 51 2.4: Candidate Feature 4: Obligation 52 § 3. Identity-Related Reasons 54 § 4. Defining Terms in Premise (3) 56 § 5. Why Institutional Roles Matter 62 § 6. How Institutional Authority Works 69 § 7. The Limits of Institutional Examples 73 § 8. Conclusion 74 Chapter Two – Justifying Institutional Obligations 76 § 1. Justifying Institutional Obligations 77 § 2. External Justification of Authority 83 2.1: Marmor on the External Justification of Institutional Obligations 83 2.2: The Coverage Problem for Reasons to Participate 88 2.3: The Wrong Kind of Reason Problem for Reasons to Participate 90 2.4: Conclusions 95 § 3. Normative Consent and Role Identification 96 3.1: Consent Revisited 96 3.2: Identity as a Source of Reasons 97 3.3: Reasons to Identify with a Role 101 Chapter Three – Raz, Authority, and Priority 105 § 1. The Priority of Institutional Authority: Two Arguments 105 § 2. Relativized Authority and Practical Import 106 § 3. Relativized Authority and Presupposition 109 § 4. A Worry About the Ontic Dependence Claim 112 Chapter Four – Species of Authority 117 § 1. The Minimalist Conception of Authority 118 § 2. Why Authority Is Not Minimalist 121 § 3. Zagzebski and Preemptive Reasons 129 § 4. Conclusion 138 Chapter Five – Darwall’s View of Practical Authority 140 § 1. The Irreducibility of Second-Personal Reasons 141 § 2. Is Darwall Using a Different Concept of Authority? 143 § 3. Why Darwall Is Committed to Rejecting the Necessity of Institutions 149 § 4. The Possibility of Answering the Anarchist Challenge 152 § 5. Saving the Second-Personal Phenomena 155 Chapter Six – Authority, Institutions, and Obligations: Answering Objections 162 § 1. Putative Cases of Non-Institutional Legitimate Authority: Two Cases 163 1.1: Directions in an Emergency 163 2.2: Alarm Clocks Revisited 168 § 2. Darwall’s Gouty Toe: The Hard Case 170 § 3. Authority and Obligations 177 3.1: The Case for a Unified Phenomenon of Identity-related Reason-Giving 178 3.2: Are There Identity-Related Reasons that Are Not Institutional? 181 3.3: Identity-Related Robust Reason-Giving and ‘Legitimate Authority’ 184 § 4. Conclusion 189 Bibliography………………………………………………………………………………… 192 i ACKNOWLEDGMENTS There are many people at many institutions, not all of whom I can name here, who have provided me with professional, philosophical, administrative, financial, and other support at every stage of my academic career, and without whom I could not have written this dissertation. The following people I would like to thank in particular. Thanks to the former Philosophy Department administrative assistants Tomiko Higuchi, Valerie Hunt, and Corey Resnick, and to the current administrative assistants Cynthia Lugo, Barrington Smith-Seetachit, and Natalie Schaad, for help with innumerable tasks both large and small, all of them essential, over the years. Thanks to the College and the Department for their generous financial support in the form of fellowships, assistantships, and other support over the years. Thanks also to Ralph and Francine Flewelling for their summer financial support of philosophy students, including myself. Thanks to Garry Tutorow, for imparting his love of both deep reading and scholarly writing. Thanks to the faculty of the Philosophy Department at Asbury University, and especially to Mike Peterson for his encouragement to work toward big fat hairy goals. Thanks to the faculty of the Philosophy Department at Virginia Tech, and especially to my advisor during my time there, Bill FitzPatrick, for his insight, patience, empathy, generosity, and counsel, and for showing me that there is a difference between wisdom and cleverness. Thanks to all the members of the USC faculty, both past and present, especially those with whom I have taken classes, who have given me feedback on my work, who have commented on my presentations, who have taken the time to meet with me or talk with me, who have led or participated in the dissertation seminar for graduate students, or who have otherwise made USC the best place in the world to do philosophy. Thanks in particular to Scott Soames for his leadership as Chair during my time at USC, where many great minds have been brought on board in recent years, and for his example as a writer and his high standards as a teacher, especially in Philosophy 500, getting me off on the right foot. Thanks to my fellow graduate students, both past and present, with whom I have shared countless conversations both casual and serious, especially those who have participated in the dissertation seminar, who have read drafts, who have given me written or oral feedback on my work, who have attended presentations and asked questions. Thanks also to those colleagues who also became friends, with whom I’ve played poker and sung karaoke, who have always been ready to try out an idea on the board in the grad lounge, and who have never given off even a hint of competiveness, but always encouragement and aid, even on the job market. Thanks to all the audiences at the various conferences at which I’ve presented whose questions and criticisms have made me a better philosopher and underscored for me the importance of being able to explain ideas to someone who doesn’t work on the same topic. ii Thanks to the members of my dissertation committee. Thanks to Scott Altman, my outside member, for taking the time to participate in this process. Thanks to Andrei Marmor, whose Law and Philosophy Workshop Seminar introduced me to Joseph Raz’s view of authority during my first semester at USC. Thanks to Andrei for his patience, over many years and many drafts. Without the inspiration of his own work on practical authority, and without his invaluable insights, suggestions, and critiques, I could not have written this dissertation. Thanks to Gary Watson for his considered and deliberate feedback, his clever counterexamples, his warm and welcoming manner, his invitations to continue our conversation, and his encouragement both as a teacher and a committee member. Thanks to Steve Finlay for the many roles he has played, as mentor, professor, placement director, and committee member. Steve has stuck with me through changes of direction and helped me find my way more than once. His rigor and attention to detail have made my work immeasurably better. And thanks to my advisor, Mark Schroeder, for believing in me, for seeing the big picture, for innumerable suggestions, for his flexibility in this process, and for holding me to a regular schedule and rigorous standards. Mark’s own work ethic has been a constant inspiration, and his bottomless generosity with his time and attention toward students at every stage of the program has extended to me more than I can ever repay. Thanks to my family, especially my parents, who have always encouraged me in the pursuit of my next degree in philosophy, and whose home has always been for me a place of joy and refreshment. Thanks above all to my brilliant and beautiful wife, Alida, who has listened to more of my ideas than anyone should have to, and who has given me more love than anyone deserves. 1 INTRODUCTION A Brief History of Practical Authority One of the central aims of this dissertation will be to elaborate and defend an account of practical authority in terms of the roles that people play in social practices, and my main argument for this view will be laid out in Chapter 1. But before I can do that, it will be necessary to get clear on what practical authority is and the state of current debate on the topic. Thus, the aim of this chapter is to set out several key concepts that will be important in what follows, as well as to provide a survey of contemporary views about the nature of practical authority and where on the conceptual map my view is located. 1. Practical Authority First, it is important to get an independent grip on the sort of phenomenon we are talking about when we set out to discuss practical authority. Consider the way in which people frequently claim to have the authority to tell us what to do. The police officer in the patrol car behind me directs me through his loudspeaker to pull over. The chair of the philosophy department assigns you to teach a certain class in the fall. The United States government mandates that all residents must purchase health insurance. A parent instructs her child to pick up his toys. And so on. These are all paradigmatic examples of persons or officials purporting to exercise practical authority: they are trying to get us to do something, and in particular to get us to see ourselves as having a reason to do as they say, because they said so. And sometimes such orders and demands succeed in giving the person at whom they are directed a reason, or even an obligation, to do as ordered. That is, sometimes those who claim to have the authority to give us a reason to do as they say really do have that power: they have what we can call legitimate authority. 1 Contrast these examples with that of a robber, who approaches a bank teller and demands that she fill a bag with cash or else he will shoot her. By threatening her life, the robber gives the teller a prudential reason for action. If the robber were to threaten the life of someone else instead, he might give the teller an altruistic reason for action. Either way, it 1 It is not essential that the reader take all of the above examples to be instances of legitimate authority; rather, these are only supposed to give one an idea of the flavor of the concept under discussion, in order to contrast it with other ways of purporting to give (and perhaps succeeding in giving) someone a reason for action. 2 is unlikely that the teller in this case will hand over the money because she believes that the robber has the authority to tell her what to do. He isn’t claiming that the money belongs to him, or that he has the right to tell her what to do in virtue of his and her respective roles as employees at the bank; he is simply threatening the teller with violence unless she gives him the money. 2 For further contrast, consider an example of someone who offers you advice. If you ask a friend how to get to Oakland from San Francisco by train, she may tell you, “Take the Yellow Line.” In directing this imperative to you, your friend isn’t demanding that you take the Yellow Line. She isn’t invoking her position as your friend in order to get you to take the Yellow Line to Oakland, or claiming to have a right to tell you what train to take, or threatening you or anyone else with harm if you fail to do so. Rather, she’s appealing to your own ends, and the imperative is thus implicitly conditional: you have the goal of getting to Oakland by train, and she is merely informing you that in order to do so you have to take the Yellow Line. 3 With these contrast cases in mind, we can begin to notice the way in which the earlier demands seem to be different. The first examples involved purporting to give someone an obligation by making a demand or issuing an order. But the demands in such examples typically don’t appeal to a threat or an offer the way the gunman’s demand does (or at least not exclusively to such reasons). Neither do they typically appeal to the addressee’s own aims or goals, in the way that hypothetical imperatives do. So what, if anything, do the demands that those who claim to have authority essentially appeal to? One answer comes from H. L. A. Hart, who contrasts fear of a gunman’s threats with what he calls “respect for authority.” He is right to draw our attention to this contrast, since the latter seems to be a genuinely distinct way of giving others reasons for action. 4 But Hart leaves the 2 H. L. A. Hart is typically credited with using this sort of example to argue against John Austin’s “command” theory of law, according to which the willingness to use sanctions to enforce compliance with one’s commands, and a habitual obedience to those commands by the populace, is sufficient for legal authority (The Concept of Law, (Oxford: Clarendon Press, 1961), 19-20). It is widely held in the literature that Hart by far got the better of this debate with Austin, and I will assume that this is the case in what follows; I say more about this in Chapter 1, where I argue against the idea that the reason-giving distinctive of practical authority can be analyzed (even in part) in terms of in the power to apply sanctions. This is not to say, however, that legitimate authority does entail the permissibility of imposing sanctions for non-compliance, a point on which I wish to remain neutral. 3 Hypothetical imperatives needn’t be explicitly relativized, nor do they have to be relative merely to prudential ends. For an exceptional recent treatment of the idea of offering an instrumental analysis of normative statements, see Finlay’s Confusion of Tongues: A Theory of Normative Language (New York: Oxford University Press, 2014), as well as his earlier “Oughts and Ends” (Philosophical Studies 143(3), (2009): 315-340). 4 Hart, The Concept of Law, 20. 3 latter notion largely unexplicated—what is it to have respect for authority? He tells us what kind of reason it is not, but he doesn’t say precisely, in other terms, what “respect for authority” consists in. His phrasing seems to suggest some kind of relationship between addresser and addressee that is supposed to be the ground of the demand—but what exactly is the relationship that Hart is appealing to? Thus, we are left with the following question: In claiming to give someone else an obligation that isn’t based on a threat and seems to be distinct from other familiar types of reason-giving, to what is one appealing? In other words, what are people who claim to have legitimate authority claiming to have, and what could potentially ground such a claim? In the following sections, we will examine several answers to this question that have been proposed by various authors. We will also see the problems with these proposals, and I will outline a promising way forward that I will defend in the chapters to follow. 2. Wolff and Raz Some authors have claimed that is impossible to justify the special sort of claim to give another person an obligation that we identified in the previous section. In fact, contemporary philosophical discussions of practical authority typically trace back to the anarchist challenge posed by R. P. Wolff, with the publication of his In Defense of Anarchism in 1970. 5 In that book, Wolff poses a fundamental challenge that any justification of practical authority must answer: how is it possible to have legitimate authority, if submitting to authority entails acting against what one takes oneself to have most reason to do? Wolff starts from the premise that we have an overriding moral obligation to deliberate and act autonomously. From this, he argues to the conclusion no one can have the right to be obeyed, since that would imply that a person could be obligated to surrender her rational autonomy, which Wolff claims we have an obligation never to do. Thus, for moral reasons, Wolff concludes that there are no instances of legitimate authority. This isn’t to say that Wolff’s particular argument, with its sweeping conclusion that we can never be obligated to act on someone else’s assessment of the practical reasons we have, because we are always obligated to act on our own assessment of our reasons, stands up to scrutiny. Wolff’s argument attracted a fair amount of attention, and the definitive 5 Wolff, In Defense of Anarchism (New York: Harper & Row, 1970). 4 response to it came in the form of Joseph Raz’s The Morality of Freedom in 1986. 6 In that book, Raz argues that, instead of imposing obligations in a way that necessarily conflicts with our rational autonomy, authority has the function of helping us to be more rational than we otherwise would be. In fact, Wolff’s prescribed form of rational autonomy seems massively inefficient, if not downright debilitating, in terms of practical deliberation. No one is in a position to be fully aware of all the practical reasons she has all of the time; to the contrary, others are frequently in a position to know better than we do what it is most practically rational for us to do in a given situation. Thus it would be foolish, if not immoral, for us not to comply with others’ directives when doing so will help put us better in touch with the practical reasons we already have. This insight opens the door for a possible reply to Wolff’s challenge. 7 Ideally, according to Raz, an authority’s directives will be based entirely on the practical reasons that apply to the subject of a directive (or, as we might say, that the subject has, in the objective sense of having a reason 8 ), independently of the directive’s being issued. Raz calls this claim the dependence thesis. 9 When an authority’s directives are so based, such that following those directives would lead the addressee to better comply with the reasons she already has than acting on her own assessment of her reasons would, then, according to Raz the authority in question is justified or legitimate. Raz calls this claim the normal justification thesis. 10 Finally, Raz argues, when both the dependence and the normal justification theses are satisfied, a person who is subject to authority gains new reasons to follow an authority’s directives, such that an authoritative directive is meant to exclude consideration by the subject of some of her other reasons in practical deliberation. Raz calls this the pre-emption thesis. 11 Thus authority, on Raz’s 6 Raz, The Morality of Freedom (Oxford: Clarendon Press, 1986). Raz develops some of the ideas that received their canonical expression in The Morality of Freedom in prior works, including his collection of essays The Authority of Law (Oxford: Clarendon Press, 1979), as well as “Authority, Law, and Morality” (The Monist 68(3), (1985): 295-324), and “Authority and Justification” (Philosophy & Public Affairs 14(1), (1985): 3-29). 7 This is, of course, not the only possible way to reply to Wolff’s challenge. Another possible response is to point out that, by asserting a moral obligation always to act on one’s own assessment of one’s reasons, Wolff appears simply to beg the question against any potential justification of legitimate authority. There is some truth to this criticism of Wolff’s argument, but Raz’s approach of responding to the anarchist challenge in terms of its own purported goal of upholding the practical rationality of the individual is both charitable and preservative of the insight that Wolff’s otherwise question-begging argument contains. 8 For a discussion of the different senses in which someone might be said to “have” a reason, cf. Mark Schroeder, “Having Reasons,” Philosophical Studies 139, (2008): 57-71. 9 Raz, The Morality of Freedom, 47. 10 Raz, The Morality of Freedom, 53. 11 Raz, The Morality of Freedom, 46. Raz also refers to pre-emption in terms of the replacement of some reasons by others in practical deliberation: “The fact that an authority requires performance of an action is a reason for its 5 view, has to perform a type of service for those subject to it in order to be justified, and consequently Raz’s view is known as the service conception of authority. It involves replacing consideration of some of our reasons with a reason to follow an authority’s directives, but, Raz argues, instead of undermining our rationality, obeying an authority actually, on the whole, serves to enhance it: “It allows our rational capacity to achieve its purpose more successfully.” 12 And this constitutes Raz’s answer to Wolff’s challenge: the possibility of the justification of deferring to authority lies in the power of authorities to help subjects to bridge the gap between themselves and the practical reasons they have, where such a gap might exist. According to Raz, the service conception allows us to “see authority for what it is, not a denial of people’s capacity for rational action, but simply one device, one method, through the use of which people can achieve the goal (telos) of their capacity for rational action, albeit not through its direct use.” 13 In short, respect for the aim of practical rationality can require us to comply with another person’s directives, if following that person’s directives would lead us to better comply with our reasons than we would on our own. Thus, even though Raz rejects Wolff’s claim that we have an obligation always to act on our own assessment of our reasons, Raz does accept a principle that privileges our rationality, namely, that complying with the practical reasons we have, whether we are aware of them or not, is so important that it can justify obeying the directives of another person. In answer to Wolff’s challenge, then, Raz has provided a plausible story about how it seems possible in principle, at least in some cases, to justify or explain why someone really does have legitimate authority, that is, why we are obligated to do as another person says instead of deliberating for ourselves—and that in itself is a significant conclusion, even if it means (as Raz himself thinks) that people have legitimate authority far less often than they claim. 3. Key Objections to Raz’s View in the Literature In the decades following the publication of The Morality of Freedom, Raz’s view rose to prominence as the dominant philosophical explanation of how to justify practical authority, performance which is not to be added to all other relevant reasons when assessing what to do, but should replace some of them” (Raz, Ethics in the Public Domain, (Oxford: Clarendon Press, 1994), 198). 12 Raz, “The Problem of Authority: Revisiting the Service Conception,” Minnesota Law Review 90, (2006): 1003- 1044. Reprinted in Between Authority and Interpretation, (New York: Oxford University Press, 2009): 126-165, 139. 13 Raz, “The Problem of Authority,” 140. 6 with much of the literature on authority being confined to challenging or refining particular aspects of the service conception. Over time, however, other authors have raised some fundamental objections to Raz’s view, to the effect that the service conception does not constitute a wholly adequate general approach to justifying practical authority. Here I will discuss two of the most prominent objections to Raz’s view of legitimate authority. 3.1: The Proceduralist Objection First, there is a group of authors who have raised a type of objection that we can call the proceduralist objection. 14 This objection denies that performing the sort of service Raz has sketched of putting others better in touch with their reasons is a necessary condition on having legitimate authority. The basic idea is that the obligation to comply with the directives that authorities issue in many cases is due, rather, to the fact that those directives are the result of a certain type of decision procedure, the typical candidate for which is some form of democratic government with a reasonable, free and fair procedure for arriving at binding decisions, such as by passing laws that are the result of the votes of a democratically elected and proportionally representative parliament (to give only one possible example). The details of such a proposal clearly depend on a substantive claim about what type (or types) of decision procedure would guarantee the authoritative nature of decisions arrived at by such a procedure, and in virtue of which characteristics those decisions are binding. But the upshot of such a proposal, if true, would be that it is not the fact that complying with Parliament’s laws, say, helps people to comply better with the reasons they already have that makes it obligatory for residents of the UK to abide by the decisions of Parliament; rather, it is the procedure by which those decisions are arrived at which makes it obligatory for residents to abide by those decisions. Whereas Raz proposes a test for legitimacy that depends on the content of the directives issued by an authority and the fact that those directives perform a certain service for those subject to the authority, proponents of the proceduralist view typically claim that even if the decisions arrived at by a fair procedure fail to perform such a service or are inferior to some other decision procedure, it is still possible for a government using such a procedure to have legitimate authority. 15 14 This is the term Scott Hershovitz uses for this type of objection to Raz’s normal justification thesis in “The Role of Authority,” Philosopher's Imprint 11(7), (2011): 1-19, 3. 15 Examples of this basic form of objection include Samantha Besson, “Democracy, Law and Authority,” Journal of Moral Philosophy 2, (2005): 89-99; Thomas Christiano, “The Authority of Democracy,” Journal of Political 7 When faced with this type of objection, Raz can say at least two things in response. First, Raz can deny the force of the sorts of cases that typically motivate the proceduralist objection to begin with. In order to see how, it is important to point out the holistic nature of Raz’s “normal justification thesis”: on Raz’s view, as long as the overall result of complying with a given authority’s directives leads to complying better with the reasons a subject has, and it isn’t obvious to the subject that the authority’s directives would not help her to do so, a subject is obligated to obey all of the authority’s directives. Thus, for Raz, it is not necessary that every directive an authority issues must help a subject better to comply with her reasons; this need only be true on the whole for his thesis to be satisfied and for the authority to perform the overall service in virtue of which obedience to it as a whole is justified. Thus, Raz can claim that his view is more supple than some of its critics give him credit for. Second, given this more flexible understanding of his view, Raz can claim that any proposed alternative to the service conception is plausible only insofar as it fulfills his own normal justification thesis, and implausible insofar it fails to do so. In other words, in response to the proceduralist objection, Raz can claim that the constraints built into any plausible candidate procedure are precisely what guarantee, whether directly or indirectly, that following the outcomes of that procedure will perform the sort of service of putting others in touch with their reasons that satisfies his general thesis about when authority is legitimate. In this vein, Raz has argued that if in fact a certain form of democratically elected government has legitimate authority, then that “simply shows that the conditions of the service conception are met regarding anyone who is so elected.” 16 Thus, Raz’s considered response to the proceduralist objection seems to be that any putative alterative to the service conception must derive legitimacy from implicitly conforming to the service conception. But the problem with these replies on Raz’s part is that they only work as an answer to the proceduralist objection if the value of a given decision-making procedure is understood in purely instrumental terms. In other words, Raz is relying on a principle according to which the only possible justification of practical authority is in terms of helping Philosophy 12, (2004): 266-290; Scott Hershovitz, “Legitimacy, Democracy, and Razian Authority,” Legal Theory 9, (2003): 201-220, esp. 216-219; Scott Shapiro, “Authority,” in The Oxford Handbook of Jurisprudence and Philosophy of Law, eds. Jules Coleman and Scott Shapiro (Oxford: Oxford University Press, 2002), 382-439, esp. 431-439; and Jeremy Waldron, “Authority for Officials,” in Rights, Culture, and the Law: Themes From the Legal and Political Philosophy of Joseph Raz, eds. Lukas H. Meyer, et al. (Oxford: Oxford University Press, 2003), 45-70, 63- 66. For a related argument, see Andrei Marmor, “Authority, Equality, and Democracy,” Ratio Juris 18, (2005): 315-345, esp. 317-18, 342-44. 16 Raz, “The Problem of Authority: Revisiting the Service Conception,” 153. 8 subjects to comply with the reasons they already have. It is possible, however, to understand the proceduralist objection as essentially about the non-instrumental value of certain procedures (e.g., democratic voting). And it is not obviously implausible that some decision- making procedures might be valuable in this way. Unfortunately, it is not clear that a view according to which legitimate authority might derive either in part or in whole from the non- instrumental value of a decision procedure can be accommodated within a Razian framework. Ultimately, then, the persuasiveness of Raz’s replies here depends on whether having legitimate authority is a matter of instrumental reasons, non-instrumental reasons, or both. Raz clearly seems to think that only the former sort of reason is relevant. On the one hand, it is plausible that any decision procedure that never performed the type of service that Raz describes in the normal justification thesis would fail to guarantee legitimate authority. On the other hand, it is also true that if a sufficient justification of authority entirely in terms of the non-instrumental value of a decision procedure is possible, then satisfying Raz’s normal justification thesis would not be a necessary condition on having legitimate authority, or would be only in a trivial sense. Thus, while Raz may have a prima facie case that the service conception is at least a necessary condition on legitimate authority, it isn’t clear whether Raz’s service conception should be viewed as the sole or even the primary source of the justification of legitimate authorities. To resolve this issue, however, would take us somewhat far afield. At the very least, the proceduralist objection illustrates an important lesson about arguing against Raz. To prove that Raz is mistaken on his own terms, it isn’t enough to simply point out that a certain procedure is sufficient to guarantee legitimate authority and that the results of following that procedure sometimes yield decisions that that do not lead subjects to better comply with the reasons they already have. Rather, what one needs to refute Raz’s view are cases where Raz’s view predicts that, on the whole, there should be legitimate authority, but that we have independent reason to think that there is not. And, as the next objection argues, it is possible to construct precisely that sort of example. 3.2: The Insufficiency Objection A second type of serious objection to Raz’s view has been raised by Stephen Darwall and, under a certain construal, by Donald Regan. The essential thrust of this objection is that it is 9 insufficient for guaranteeing A’s obligation to obey B’s directives that B’s directives help A better to comply with the reasons that apply to her. The problem with Raz’s view, according to this worry, is that insight into the reasons another person has is simply not enough, by itself, to give someone an obligation to do as one says. Regan and Darwall each have their own particular ideas about what exactly is required in order for such an obligation to be present, but we can call the general form of this worry the insufficiency objection. In short, this objection claims that satisfying Raz’s normal justification thesis is insufficient to guarantee the existence of legitimate authority, since Raz’s view predicts that an obligation to obey authority is present in many cases where in fact no such obligation is present. 17 Regan puts his objection to Raz’s view of authority in terms of what he calls an “indicator-rule,” which he defines as “a guide-to-action which one adopts to deal with cases where one has incomplete information, or to conserve resources spent on decisionmaking, or to counteract one's tendencies to partiality, or the like.” 18 According to Regan, in practical deliberation it often makes sense to adopt an indicator-rule that consists in following another person’s directives: if someone knows more than I do about a certain domain, then I have reason to do as she says. But it doesn’t follow that, in adopting such a rule, I am obeying her, or that her knowledge grounds either a right on her part to be obeyed or an obligation on my part to obey her. As Regan puts it: “We may follow an indicator-rule or not; indeed, we may be morally required to follow it, or not to; but even when we follow it, we do not obey it.” 19 This leads Regan to conclude that, when it comes to authoritative directives, we should “dispense with the language of ‘obedience’ and ‘obligation’.” 20 Now, it is important to point out here that Regan doesn’t think that Raz’s normal justification thesis fails to tell us when someone has practical authority; rather, Regan simply thinks that authority should not be understood in terms of directed obligations of obedience, 17 Donald H. Regan develops a version of this objection in “Authority and Value: Reflections on Raz’s Morality of Freedom,” Southern California Law Review 62 (1989): 995–1096. Darwall has developed at least two different versions of this objection. First, he has argued Raz’s normal justification thesis doesn’t establish accountability: since, on Darwall’s view, legitimate authority entails accountability for compliance to the person who issues an authoritative directive, and Raz’s view doesn’t establish accountability, then even if the normal justification thesis is satisfied it is insufficient to establish legitimate authority (Darwall, “Authority and Second-Personal Reasons for Acting,” in Morality, Authority, & Law: Essays in Second-Personal Ethics I, (Oxford: Oxford University Press, 2013): 135-150). Second, Darwall has argued that Raz’s account fails by its own lights to guarantee the creation of obligations (understood as exclusionary reasons) even where the normal justification thesis is satisfied (Darwall, “Authority and Reasons: Exclusionary and Second-Personal,” Ethics 120(2): 257-278). 18 Regan, “Authority and Value,” 1004. 19 Ibid., 1020. 20 Ibid. 10 as Raz does. Thus, Regan’s view is strikingly deflationary about the concept of practical authority. Adopting his revisionary view, however, would be to radically change the subject that Wolff, Raz, and others who have written about practical authority take themselves to be discussing. 21 For this reason, I won’t be considering Regan’s own positive view further. However, if we assume the truth of the conceptual claim that legitimate authority, where it exists, involves an obligation of obedience on the part of those subject to it, there is still a part of Regan’s objection that we can fruitfully press against Raz. If Regan is right that the fact that someone’s directives satisfying the normal justification thesis does not guarantee an obligation of obedience on the part of those subject to the directives, then, holding fixed the standard conception of legitimate authority, we can conclude that Raz’s normal justification thesis is insufficient to guarantee legitimate authority. Notice how the modified version of Regan’s objection is different from the proceduralist objection in precisely the way it needs to be to avoid Raz’s reply to the latter discussed above. Whereas Raz was able to explain away examples of procedures that seemed to guarantee legitimacy by claiming that the plausibility of any procedure’s guaranteeing legitimacy depends on its overall satisfaction of the normal justification thesis, even though some results of the procedure might not perform this function, here there is no such escape. Rather, Regan begins by assuming that the normal justification thesis is satisfied with respect to following a given person’s directives: that is, doing so would lead us to comply better with the reasons we already have. But Regan denies that we can ever have an obligation to someone else to do as they say in virtue of their directives satisfying the normal justification thesis. Our reasons for following someone else’s directives can never rise to the level of an obligation that we owe to that person, according to Regan. An exceptionless claim of this sort is, however, hard to defend and, for the purpose of refuting the normal justification thesis, may be more than we need. After all, only a single counterexample, in which Raz’s thesis is satisfied but the person whose directives satisfy it lacks legitimate authority, is required to show that Raz’s thesis is insufficient. And Darwall 21 Cf. Raz, “The Problem of Authority: Revisiting the Service Conception,” 134n13, where Raz claims of authorities that “whatever they do…they do by imposing duties,” and thus Raz chooses, “as writers on authority generally do, to discuss the problem of authority in relation to its right to impose duties.” I take Raz’s claim about writers on authority to be true with respect to the views of all of the other authors expect Regan that I discuss in this chapter, in particular Andrei Marmor, who claims that the obligation-imposing power of practical authorities is an essential characteristic that is “widely recognized in the literature,” and he explicitly notes his agreement with Raz on this point (Marmor, “The Dilemma of Authority,” Jurisprudence 2(1), (2011): 121-141, 132n19). 11 proposes to use one of Raz’s own putative examples of practical authority to show just that. In The Morality of Freedom, Raz asks us to imagine that “John is an expert on Chinese cooking” and that if “I want nothing but to prepare the best Chinese meal I can manage then I should just follow John’s instructions.” 22 Because following John’s directives would lead one to better comply with the reasons one already has—in this case, to prepare the meal in a way that conforms to the standards of Chinese cooking—Raz claims that John has practical authority 23 , and that his directives about how to prepare the meal give one an obligation to do as he says. Darwall, however, points out that although John is able to give one reasons to comply with his instructions about how to cook the meal, this in no way seems to entail that John has practical authority over us. To the extent that it is natural to describe John as “an authority” on Chinese cooking, it is merely in an epistemic sense, in virtue of his expertise 24 ; legitimate practical authority, however, according to Darwall necessarily involves a right on the part of the person with authority to obedience on the part of the subject, and an obligation on the part of the subject to comply with the authority’s directives, neither of which seems to be present in the Chinese cooking case: “Of course, one would be foolish not to follow [John’s] instructions… But it is hard to see how that gives John any right to our compliance with his directives or us any obligation to comply with them.” 25 Darwall even reminds us that Raz endorses the very criteria for legitimate authority that this example seems to lack: “[R]ecall Raz’s remark that, unlike merely justified coercion, genuine practical authority involves ‘an appeal for compliance’ and ‘an invocation of the duty to obey.’” 26 The point of this example is that, although someone’s knowledge of the reasons I have might be sufficient to give me a decisive reason, even a preemptive reason, to comply with that person’s directives, my reason to do so would be grounded merely in the fact that 22 Raz, The Morality of Freedom, 64. 23 More precisely, Raz claims that John has both practical authority as established by the normal justification thesis, as well as epistemic authority, that is, expertise, in virtue of his knowledge of Chinese cooking. 24 I say more about the distinction between practical authority and so-called “epistemic authority” in Chapter 4, where I argue that these phenomena are not species of the same genus. 25 Darwall, “Authority and Second-Personal Reasons for Acting,” 147. Interestingly, Jules Coleman and Brian Leiter claim that there is a correlative problem with Raz’s view, which they bring up in the context of the law’s authority, namely, that if someone is an expert about her own reasons, then an authority’s directives would not help her to better comply with the reasons she has, and thus the law’s authority would be “incomplete at best” and not extend to citizens who have this sort of expertise (Coleman and Leiter, “Legal Positivism,” in A Companion to the Philosophy of Law and Legal Theory, D. Patterson, (ed.), (Oxford: Blackwell, 1996): 241-260, 255). 26 Darwall, “Authority and Second-Personal Reasons for Acting,” 147. 12 someone has knowledge about the practical reasons that I have (and perhaps, in addition, in the fact that I have at least some reason to think that the person is knowledgeable in this way). The problem is that there seems to be nothing on Raz’s account to distinguish, for instance, an unaffiliated financial expert from the CFO when it comes to their ability to give reasons to the managers of a company with respect to how they should invest their assets (assuming that both are equally well situated with respect to the facts and that the managers know this). This isn’t to say that satisfying Raz’s thesis might not be at least a necessary condition for legitimate authority; rather, the point of the insufficiency objection is that Raz’s thesis as it stands doesn’t seem to be a sufficient condition. In responding to this sort of objection, Raz’s approach has simply been to concede the force of such counterexamples against the explanation of his view that he initially offered, while arguing that the normal justification thesis, properly understood, still gives the correct account of when authority is justified. Raz claims that the problem in the sort of case Darwall focuses on is the way in which “that this or that is the better thing to do is independent of instructing people to do this or that.” 27 In other words, once someone who has superior knowledge (like John with respect to Chinese cooking) has imparted his knowledge to someone else, the latter person would no longer do better by following the former’s directives than by deciding on her own. 28 Thus, Raz claims that his own view actually predicts that the sort of examples Darwall offers should not be taken to constitute cases of legitimate authority, and that such cases do not constitute counterexamples to the normal justification thesis. Raz thus recognizes that “no legitimate authority can be based on superior knowledge alone,” and he admits that he has “written some mistaken and misleading things” which might be misinterpreted as endorsing a stronger view than he actually holds. 29 27 Raz, “The Possibility of Partiality” (manuscript), 20, as cited with permission by Hershovitz in “The Role of Authority,” 7. 28 It might seem possible to construe Darwall’s counterexample as a case in which what John does is not to impart knowledge, but merely to issue instructions without explaining their rationale. If so, then Raz’s reply wouldn’t get around the force of the example. However, if John’s tutee has a sufficiently good memory, it seems fair to say she would know what one needs to do in order to prepare the sort of meal she desires, and that she didn’t know this prior to John’s instructing her what to do. So I don’t think this sort of worry is one that Raz needs to be concerned with. It does, however, highlight the fact that on Raz’s initial presentation of his view many putative cases of initially justified authority would seem put their subjects in a position to dispense with the need to follow that authority after the fact. But Raz’s reply shows that he isn’t interested in justifying authority that could be so easily dispensed with. 29 Raz, “The Possibility of Partiality,” 21. 13 Ultimately, Raz’s considered view seems to be that we should expect to find authority only where the fact of an authoritative directive’s being issued is an essential part of what gives others a reason to follow that directive, such that “what makes the action best is its role in a co-ordination scheme, and the co-ordination scheme is the one to follow because it is the one the authority instructed people to follow.” 30 Examples in which one’s reasons to follow a directive depend essentially on the directive’s having been issued, on Raz’s view, include cases in which an authority designates one course of action as the solution to a co- ordination problem—such as which side of the road to drive on. So perhaps authoritative directives have a special role to play in such cases that leads to an obligation to obey them, albeit only in cases where one’s reasons to follow the authority’s directives are not independent of the authority’s having issued them. Regan, however, presciently anticipates this sort of interpretation of Raz’s view, and argues that even if a given directive causes some particular action to become salient, in terms of being highlighted as the solution to a co-ordination problem by someone in a position to co-ordinate the behavior of a group, the directive itself does not constitute the fact that it is such a solution. To see the point of this distinction, consider, for example, a law requiring everyone to drive on the right side of the road. I have independent prudential reason to co- ordinate my behavior with others in certain situations, and in particular I have reason to drive on the same side of the road as everyone else so as to avoid accidents. But the effect of a governmental directive to drive on the right is to give me reason to believe that everyone else (or at least most people, who I have reason to believe are also aware of the directive) will be driving on the right. And this, in combination with my reason to co-ordinate my behavior with that of others, gives me reason to drive on the right—and, by the same token, gives everyone else a similar reason to drive on the right. But even though an authoritative directive causes driving on the right to become salient as the prudentially best solution to this particular co-ordination problem, its status as a solution to this problem does not give rise to or constitute an obligation to the traffic authorities to obey their directives. The result, according to Regan, is that the concepts of obligation and obedience are just as out of place with respect to salience and coordination problems as they are in the case of following an indicator-rule. In fact, in this light, the case is similar to the one Darwall criticizes. Just as John’s directives show me which actions to 30 Ibid, 20. 14 take in order to prepare the Chinese meal I desire, and thereafter become unnecessary, so too do directives that solve co-ordination problems become unnecessary once the (or at least a) solution to the problem has been pointed out to everyone. The upshot of this discussion is that that the solution of co-ordination problems by issuing directives doesn’t by itself seem sufficient to ground an obligation to obey an authoritative directive, even where the authoritative directive plays a causal role in highlighting a solution to such a problem. Even though we have reason to follow directives that solve co-ordination problems, once the directive has been issued our reason to act in a certain way doesn’t depend in an essential way on the fact of a directive’s having been issued. And we can see that this is the case, Regan thinks, because the same solution to a given coordination problem could have become salient in some other way. As Regan puts it: “The governmental directive [e.g., to drive on the right side of the road] need not have, or be thought to have, any more intrinsic normative significance than the information booths in railroad stations or in large department stores (plausible solutions to other, everyday, coordination problems).” 31 Since we wouldn’t take the information booth to have legitimate authority, Regan argues, we shouldn’t take a person whose directives merely solve a co- ordination problem to have authority either. So Raz’s more narrow set of co-ordination problem-solving directives doesn’t seem to be the right place to look for a sufficient condition for legitimate authority either. But Regan’s point about co-ordination problems does not show that there can never be an obligation to obey an authoritative directive either. After all, there may be some other restricted set of cases involving some essential role for authoritative directives to play where such an obligation exists. In fact, Darwall’s proposal is that we will find such an obligation where we find accountability to the authority for compliance. Darwall is explicit that in arguing against Raz he has “deliberately constructed examples where the reasons in play concern nothing we are normally answerable for doing, for example, complying with prudential reasons.” 32 Thus, while Darwall thinks that where accountability is present there 31 Regan, “Authority and Value,” 1028. Andrei Marmor makes a very similar argument against David Estlund’s claim that the directives of a flight attendant in an emergency constitute legitimate authority, despite our having an obligation to follow the directives, since the same coordinative function might just as easily have been performed by a flashing exit sign (cf. Marmor, “An Institutional Conception of Authority,” Philosophy and Public Affairs 39(3), (2011): 238-261, 245-246, citing Estlund, Democratic Authority: A Philosophical Framework, (Princeton, NJ: Princeton University Press, 2008), 124). For further discussion of this example, see Chapter 6. 32 Darwall, “Authority and Reasons: Exclusionary and Second-Personal,” 265. 15 will also be legitimate authority, 33 his Chinese cooking example illustrates the failure of the normal justification thesis to guarantee accountability, and thus its failure to constitute a sufficient condition for legitimate authority. In his response to Darwall, Raz clarifies that he means to exclude the possibility that obligation-imposing authoritative directives can be based exclusively on prudential reasons: “[O]nly categorical reasons, that is, ones whose application is not conditional on the agent’s inclinations or preferences, and so on, can give rise to duties.” 34 In other words, someone can only have legitimate authority and impose obligations when her directives perform the relevant type of service, i.e., helping others to comply with the reasons they have independently where those reasons are categorical reasons. 35 Those who provide such a service with respect to other types of reasons, e.g., prudential reasons, don’t count as imposing obligations on Raz’s view—and thus Raz simply grants the force of Darwall’s objection involving the Chinese cooking case and thereby restricts the scope of the normal justification thesis to avoid cases of merely prudential reasons. But Darwall does not stop there. Rather, he claims that even if we construct a hypothetical version of Raz’s normal justification thesis that is restricted to reasons that already entail accountability in some form, satisfying that narrower version of the thesis still wouldn’t necessarily be sufficient to ground legitimate authority. 36 For instance, Darwall asks 33 “Now, as I have said, I believe that authority is conceptually tied to accountability. In my view, indeed, the capacity to create preemptive reasons is itself inextricably bound up with accountability. Once an authority sets a speed limit, it is no longer within my discretion to decide for myself whether considerations that would otherwise speak in favor of driving faster are good enough reasons for me to do so, overriding whatever reasons the law might create. I may no longer legitimately take these into account. It seems to me, however, that the reason I may not is because obeying legitimate authority is something I am answerable for doing. In this matter, I no longer simply answer to myself” (Darwall, “Authority and Reasons: Exclusionary and Second-Personal,” 275, emphasis mine). See Chapter 5 for further discussion of this conceptual commitment on Darwall’s part. 34 Raz, “On Respect, Authority, and Neutrality: A Response,” Ethics 120(2): 279-301, 291. 35 Of course, it is essential to the plausibility of Raz’s reply here that we have some way of understanding ‘categorical reasons’ that is not simply defined in terms of those reasons that, when following someone else’s directives would help one to comply with them, yield legitimate authority. Whether we have such an independent grip or some other motivation for picking out this particular class of reasons, Raz does not specifically say. He does, however, appear to tie this class of reasons to obligations more broadly, of which the obligation to obey authority is but a single instance, and that sort of move may be the best way for a defender of a Razian picture to justify this distinction. 36 Darwall proposes this hypothetical restriction of the normal justification thesis (or NJT) in “Authority, Accountability, and Preemption”: “Of course, Raz might for his purposes restrict the NJT to cases where the relevant reasons already entail some kind of answerability” (Jurisprudence 2(1), (2011): 103-120, 105). But, as I make clear in my discussion of Darwall’s view in Chapter 5, Raz does not accept any essential connection between authority and accountability. Thus, it isn’t obvious that Darwall’s demand for such a connection is a fair one, or at least not one that Raz recognizes as a challenge he has to meet. In fact, this is the basis of Raz’s claim, also discussed in Chapter 5, that Darwall is not using the same concept of authority that Raz himself is. 16 us to imagine a case where B, in order to comply with a promise he has made to C, must get out of bed by 7 A.M., and that “the only way B can reliably get out of bed at 7 a.m. is to treat A as a legitimate authority.” 37 According to Darwall, the fact that treating someone as having authority would help us to better comply with the reasons we have does not show that that person actually has such authority to create exclusionary reasons for us or that we have an obligation to that person to do as she says. In the case just described, B’s obligation is to keep his promise to C, and B is accountable to C for doing so; but this is not an obligation that B is accountable to A for complying with, and so, according to Darwall, A does not have legitimate authority over B. Raz’s reply to this further objection is brief and not fully spelled out. Raz simply insists on the presence of the reasons Darwall denies: “They are there by reasoning analogous (some would say identical) to that which establishes the existence of instrumental reasons: you have reason to do A, doing B…will facilitate doing A, therefore you have reason to do B.” 38 Yet this reply seems to miss the point; in Darwall’s example, B has reason to treat A as having legitimate authority, since doing so will facilitate keeping his promise to C. But, Darwall can reply, that is all that instrumental reasoning establishes. Raz acknowledges the limits of this analogy, admitting that “It is more complicated to establish that the authoritative reasons are preemptive,” 39 but he does not say more. Given the unsatisfying nature of Raz’s reply to Darwall, it is fair to conclude at this point that Darwall’s version of the insufficiency objection gives us good reason to think that, as it stands, Raz’s account can’t be the whole story about what grounds legitimate authority. At the very least, Darwall has shown that merely satisfying the normal justification thesis isn’t necessarily sufficient by itself to ground legitimate authority. As Hershovitz puts it: “In the best case scenario, Raz’s answer to Darwall is incomplete.” 40 We need an explanation of what distinguishes cases of merely having reason to comply with someone’s directives from cases in which the person issuing directives actually has legitimate authority, and Raz doesn’t seem to offer a story that can bridge that gap. So there seems to be a crucial piece of the legitimacy puzzle still missing. There are at least two prominent types of alternative on the table for what that 37 Darwall, “Authority and Reasons: Exclusionary and Second-Personal,” 265. 38 Raz, “On Respect, Authority, and Neutrality: A Response,” 299. 39 Ibid. 40 Hershovitz, “The Role of Authority,” 9. 17 missing piece might look like: Darwall’s own “second-personal” view, and what I call “non- normative-first” views of practical authority. In the following section, I will briefly discuss Darwall’s view, as well as sketch my reasons (which I defend at length in Chapter 5) for thinking that Darwall’s view of practical authority is not the best approach. Then, in section 5, I will set up an additional problem for Raz’s view that non-normative-first views are in a good position to solve, and I will discuss such views in more detail in section 6. 4. Darwall’s View of Practical Authority The first place to look for an alternative to Raz’s view of practical authority is Darwall’s own positive view. After all, it is only natural that, in criticizing Raz, Darwall has an alternative view of authority in mind. In The Second-Person Standpoint, Darwall is concerned with what he calls the “normative felicity conditions” for practical authority, that is, the normative relations that have to exist between persons in order for someone to be able to make a demand that gives someone else an obligation to comply with that demand, such that the latter is accountable to the former for doing so. 41 Briefly, Darwall thinks that legitimate authority can be explained in terms of an ability to give others what he calls “second- personal reasons.” This in particular is what Darwall takes to be missing from Raz’s account and what Raz’s normal justification thesis fails to guarantee. But ‘second-personal reason’ is a technical term for Darwall that carries with it important presuppositions, and unpacking this notion will thus require separate treatment in Chapter 5. By way of preview, however, I wish to highlight three main reasons for thinking that Darwall’s account of practical authority will not ultimately be adequate, each of which I will later defend at length in Chapter 5. The essential worry tying these concerns together is that it is not possible to get an independent grip on what Darwall means by his use of the term ‘second-personal reasons’ and, consequently, ‘practical authority’. This is because Darwall explicitly claims that practical authority and second-personal reasons are concepts that are interdefined with other concepts, such as accountability, that Darwall claims are essentially normative, and irreducibly, “second-personal.” But I will argue that we in fact need a different approach to practical authority, one that allows us to get an independent grasp on the concept practical authority and to capture aspects of the concept in a way that is simply 41 Darwall, The Second-Person Standpoint: Morality, Respect, and Accountability (Cambridge, MA: Harvard University Press), 4. I will refer to this book as SPS hereafter. 18 not possibly on Darwall’s view. Of course, Darwall could argue that we do not need (and indeed cannot have) such an independent grip on the concept of authority. But, as I will argue, we have several good reasons to want an independent understanding of practical authority in terms of other concepts, in particular non-normative and non-second-personal concepts. First, we have good reason to want an independent account of practical authority in non-normative terms, which Darwall’s account explicitly cannot supply. This is because, as we will see in the next section, it is only possible to explain certain features of practical authority, such as its scope and domain, in terms of the social facts that determine those features. More generally, I will argue against Darwall in Chapter 5 that the structure of practical authority is a function of the non-normative features of certain types of social practices and institutions. We may or may not have normative reasons to particulate in such practices, but either way it is a mistake to claim that the structure of authority can be entirely explained in terms of essentially normative concepts. Indeed, this is a central claim of the non-normative-first views of practical authority (which I discuss below in section 6). Second, we also need an independent grasp on practical authority in terms that are not “irreducibly second-personal” in order to be able to answer Wolff’s challenge. Darwall’s objection to Raz has shown that the normal justification thesis can’t be the whole story, but Darwall’s own view comes at the cost of sacrificing the feature of Raz’s view that made it so attractive for so long, namely, that it offered the possibility of a justification of legitimate authority in terms of reasons that subjects already have. The insight of Raz’s view is that one route to answering Wolff’s challenge is in terms of appealing to the reasons subjects have prior to and independent of any demand being made on them or any authoritative directive being issued. Yet second-personal reasons for Darwall only exist in virtue of such demands being made. Thus, to justify authority in terms of reasons that are “irreducibly second-personal” rules out, ex ante, the possibility of a justification of legitimate authority that can be explained in terms an individual’s prior, non-second-personal reasons. Finally, as I will argue in Chapter 5, we have reason to think that an independent understanding of the structure of practical authority in terms of social facts will allow us to avoid some of the more implausible implications of Darwall’s view, in particular the claim that all moral obligations are the result of an authoritative demand, even where such a demand could not have been made by any actual person. It is this claim that commits 19 Darwall to denying the central thesis of Chapter 1 that a necessary condition for legitimate authority is having authority in an institutional sense, which I elaborate in Chapter 1. For all of these reasons, then, which I will defend more at length in Chapter 5, we have reason to look instead for another way of fleshing out what is missing from Raz’s picture that does not tie us to an essentially normative and irreducibly second-personal view of practical authority. 5. The Boundaries of Legitimacy and a Promising Alternative In this section, I will raise an additional problem for Raz’s view of legitimate authority, namely, that the normal justification thesis doesn’t include appropriate restrictions on the boundaries of authority. We can get around this problem, however, by appealing to social roles that have such restrictions already built into them. This suggests an alternative approach to justifying authority, and motivates looking at a family of views other than Darwall’s about the nature of practical authority. In Section 3, we saw how the insufficiency objection shows that Raz’s normal justification thesis fails to guarantee legitimate authority. Of course, this isn’t to rule out Raz’s service conception having any role to play in an account of legitimate authority. For all I’ve said, the normal justification thesis may turn out to be a necessary condition on legitimate authority: perhaps a mother’s or a king’s authority “is legitimate only if [one’s] directives are on the whole wise and morally sound,” as Raz claims in reference to legal authority. 42 But, for our present purposes, it is fair to conclude that, in a wide range of cases, something more than (or, in Darwall’s opinion, something altogether different from) the normal justification thesis is needed to establish legitimate authority. Yet besides the problem that Darwall and Regan have pointed out, I will argue there is an additional way in which satisfying Raz’s normal justification thesis fails to capture a sufficient condition for legitimate authority. This is because legitimate authority, where it exists, seems to involve an ability to create obligations that is not unlimited, but is always restricted in certain ways. These restrictions include which actions someone with legitimate authority can obligate others to perform, which persons someone with legitimate authority can obligate to perform those actions, and the conditions under which those persons can be obligated to perform those actions. Following Mark Schroeder, we can call these features the scope, 42 Raz, “On the Nature of Law,” Archiv für Rechts- und Sozialphilosophie 82, (1996): 1-25. Reprinted in his Between Authority and Interpretation: 91-125, 104. 20 jurisdiction, and discretion of authority, respectively. 43 It is a striking feature of Raz’s service conception that it does not obviously include restrictions of this sort. More precisely, Raz’s view seems to imply that the scope, jurisdiction, and discretion of authority are all a function of satisfying the normal justification thesis. According to Raz, it is possible to show that one person has legitimate authority over another if a subject is, overall, “likely better to comply with reasons which apply to him” by following the authority’s directives rather than by trying to comply with those reasons on his own. 44 And, as we saw above in discussing the proceduralist objection, Raz’s service conception does not require every directive to make a subject more likely to comply with the reasons he has in order for someone to have legitimate authority. Rather, as long as the overall result of complying with a given authority’s directives leads to a net benefit for the subject in terms of complying with the reasons he has, then for Raz the authority’s directives are binding for the subject—whoever issues them, to whomever they are issued, and whatever they direct the subject to do. Yet for these two reasons—that the normal justification thesis depends on better overall compliance with reasons by a subject, and that there are no other restrictions on scope, jurisdiction, or discretion built into the normal justification thesis—it seems possible for legitimate authority on Raz’s view to bleed over, as it were, into other domains and for an authority to issue a wide variety of additional and possibly mistaken directives while still satisfying the normal justification thesis overall. In short, the blanket of legitimacy seems to extend, on Raz’s view, to cover any additional directives that someone who still satisfies the normal justification thesis might issue. 45 As long as an authority’s directives would still lead a subject to better overall compliance with the reasons she has already, the subject is obligated to obey all of an authority’s directives. And this sort of spillover effect seems deeply implausible as an account of when someone has legitimate authority. To see this idea more clearly, imagine an authority A with expertise in domain D, who has issued a body of directives B, which if followed by subject S will help S better to comply with the reasons S already has with respect to D. On Raz’s view, A in this case has legitimate authority over S with respect to D, and S is obligated to comply with A’s directives 43 Schroeder, “Scope for Rational Autonomy,” Philosophical Issues 23, (2013): 297-310, 303-304. 44 Raz, The Morality of Freedom, 53. 45 With, perhaps, the exception that it can’t be obvious to the subject that the authority’s directives do not help her to better comply with the reasons she has overall. 21 about D. Now consider a closely related scenario in which A has issued a slightly expanded body of directives that includes all of the directives in B plus a single trivial directive relating to domain E (such that E is not part of domain D, and S’s reasons relating to D don’t overlap with her reasons relating to E). Call this new, expanded body of directives B*. Raz’s view seems to entail that, as long as S would still do better in terms of her overall compliance with reasons by following A’s directives than by trying to figure out what to do on her own, A has legitimate authority over S with respect to both D and E, and S is obligated to follow all of the directives in B*. And a similar process can be repeated if we keep expanding B* by adding new directives in new domains, up to but not past the point where A’s directives no longer satisfy the normal justification thesis. We can call this process of artificially extending legitimate authority into new domains by issuing new directives the problem of legitimacy creep. On Raz’s view, almost any legitimate authority who has issued a body of directives that satisfies the normal justification thesis would seem to be able to issue a wide variety of additional directives to her subjects, such that those subject to her authority are obligated to obey the additional directives in virtue of the service performed by the original body of directives. The only exception to this problem would seem to be those authorities whose performance of the overall service of aiding subjects’ compliance with reasons is borderline, such that issuing a misguided or unrelated directive might no longer lead their subjects to do better overall in terms of compliance with reasons. Raz is, however, not unaware of this sort of worry. He notes that the normal justification thesis “encounters the objection that the domain [over which someone has authority] can be artificially extended…without any reason to believe that we actually do better in the extensions themselves.” 46 And, at first blush, it might look Raz could simply rely on the dependence thesis, which is part of his service conception of authority, to defuse this worry. Raz’s dependence thesis states that “all authoritative directives should be based on reasons which already independently apply to the subjects of the directives and are relevant to their action in the circumstances covered by the directive.” 47 If we are charitably interpreting the dependence thesis as ruling out authoritative directives that are irrelevant to a subject from falling under the scope of the normal justification thesis, this would prevent 46 Raz, “The Problem of Authority: Revisiting the Service Conception,” 149. 47 Raz, The Morality of Freedom, 47. 22 at least one kind of legitimacy creep: someone with legitimate authority wouldn’t be able to obligate a subject to do something that the subject didn’t already have some reason to do. But even if this limits the worry, the dependence thesis would still not rule out a narrower, but nonetheless problematic version of the same worry: as long as all of an authority’s directives satisfy the dependence thesis, an authority in one domain would seem to have the authority to obligate her subjects in any domain whatsoever in which her directives would help those subjects better to comply with the reasons they already have. Intriguingly, Raz’s own reply is to insist that satisfying the normal justification thesis is sufficient for legitimate authority, but he insists that, of those domains that satisfy the normal justification thesis, its application should be restricted to the largest subdomain where it isn’t known not to apply: “The solution to this conundrum is, I believe, that a person or body has authority regarding any domain if that person or body meets the conditions regarding that domain and there is no proper part of the domain regarding which the person or body can be known to fail the conditions.” 48 Raz’s considered view, then, is that a person has authority over all and only the domains for which the authority’s directives satisfy the normal justification thesis and of which there is no proper subdomain over which her directives are known (by her addressees, presumably) not to satisfy the normal justification thesis. And, at least initially, this restriction seems to make sense, since it solves the problem of a subject’s knowing that an authoritative directive is mistaken: any time that you know better than someone else (and you know that you know better), then that person doesn’t have legitimate authority over you. But this answer is doubly problematic. First, to say that one has legitimate authority in only the subdomains where one isn’t known not to satisfy the normal justification thesis seems ad hoc and precisely tailored to address the problem of legitimacy creep for the service conception of authority. After all, the sort of justification that is given for authority still stands: complying with an authority’s directive even over a domain that includes subdomains where a subject is aware that she knows better than the authority would still help the subject better to comply with her reasons overall. Admittedly, complying with a set of directives that have been restricted in the way Raz proposes would help the subject to do even better in terms of complying with reasons. But, in general, that doesn’t seem like a sufficient justification for attributing or not attributing legitimate authority. For instance, my child 48 Raz, “The Problem of Authority: Revisiting the Service Conception,” 149. 23 might do even better overall by following only my wife’s directives rather than by following both my wife’s and my directives (which, let us stipulate, would still help to the child to do better overall). But it would be bizarre to cite this as a ground for not attributing legitimate parental authority to me. Second, although legitimate authority requires some justification or other, the objects of possible justification seem to be more or less fixed by social facts, and not by facts about an authority’s or a subject’s knowledge. At root, this second type of worry stems from a broader view about how to conceive of practical authority that has recently been developed by Scott Hershovitz and Andrei Marmor. 49 On their respective views, both practical authority and the obligations that authorities impose can be understood in terms of social facts. In particular, they propose that authority and the obligations that authorities impose should be understood in terms of social and institutional practices, which may or may not be justified. When participation in such practices is justified, there is legitimate authority; and when it is not, there is illegitimate authority. 50 But in both cases ‘authority’ is still present on this view. This way of thinking about authority poses a problem for Raz’s view of legitimacy. For on the type of view offered by both Hershovitz and Marmor, authority is always located within a social or institutional practice, and someone’s authority as a whole is either justified or unjustified depending on whether those subject to one’s authority have reason to participate in the relevant practice. If true, this means that Raz’s piecemeal approach to justification, involving the largest domain where an authority isn’t known not to satisfy the normal justification thesis, is simply not how authority is justified. In short, Raz’s view doesn’t take into account either the way in which the boundaries of authority are defined in terms of social facts about institutions or the way in which the obligations that subjects have 49 Cf. Hershovitz, “The Role of Authority,” and Marmor, “The Dilemma of Authority” and “An Institutional Conception of Authority.” 50 Thus, although Hershovitz and Marmor explain authority in terms of social facts, they also seek preserve the normative dimension of authority. In what follows, I will assume that capturing this aspect of the concept of authority is a desideratum of an account of practical authority. This is in contrast a view such as that of Laurence Claus, who seeks to explain away the idea of legitimate authority by arguing that ‘authority’ merely refers to social signaling devices of one sort or another (“The Empty Idea of Authority,” University of Illinois Law Review 5, (2009): 1301-1357). Note that Claus’s view is distinct from that of a philosophical anarchist such as Wolff, who argues that for moral reasons there is, in practice, no legitimate authority, despite its being a coherent idea. Claus thus represents one extreme that tries to reduce authority to social facts by explaining it entirely in terms of empirical prediction, with the other extreme being a view which tries to explain authority it in terms of coercive power, as exemplified by John Austin’s command theory of law, which I discuss further in Chapter 1. 24 are similarly defined in terms of social facts and the roles people occupy, and that directives are normative only if the authority that issued them is justified (i.e., legitimate). But if authority is essentially structured by social facts, the question becomes: What determines the scope of legitimate authority if it isn’t the fact that a body of directives performs an overall service of helping one better to comply with reasons? In his recent essay, “The Role of Authority,” Scott Hershovitz claims this question can be answered by appealing to roles—in particular, roles that people play in social practices and institutions. For instance, the answer to the question of why a teacher has authority over what homework to assign is simply that he is her teacher. More specifically, however, the answer involves the way in which the role of teacher is socially constructed. Building on the work of Michael Hardimon, Hershovitz takes it to be uncontroversial that “Roles have normative attributes— rights, powers, obligations, and so on. Some roles’ normative attributes include the components of authority.” 51 In short, on Hershovitz’s view, it is simply an attribute of the role of a teacher that one has the power to assign homework, and an attribute of the role of a student that one has an obligation to do the homework that one’s teacher assigns. Thus, although Hershovitz does not specifically point out the problem of legitimacy creep for Raz, his view clearly implies that the structure of justification of legitimate authority that Raz proposes is mistaken. And Hershovitz’s approach of placing roles at the center of our conception of practical authority gives us the basic outline of an explanation as to why authority, where it is in fact justified, has the boundaries that it does—namely, that those restrictions are baked in, as it were, from the beginning. In other words, the scope, jurisdiction, and discretion of authority are already features that are built into various social roles. Of course, the fact that someone occupies a role—e.g., that of a teacher—to which the “components” or “attributes” of authority attach in no way implies that that person has legitimate authority. In order to show that someone has legitimate authority, we would in addition have to show that someone has sufficient reason to occupy a role to which the attributes of authority attach, and that the practice in which the role features is itself justified: “To justify authority, we need to justify the practices in which the roles of authority are embedded.” 52 The idea is thus that the justification has to be understood in terms of social and institutional roles, and is not piecemeal in the way that Raz’s view suggests. 51 Hershovitz, “The Role of Authority,” 12. 52 Hershovitz, “The Role of Authority,” 11. 25 Of course, a role-based justification of authority might still be consistent with a broadly Razian test of legitimacy. For instance, it might still be the case that my child’s elementary school teacher has legitimate authority to give his students an obligation to complete their homework, because my child’s participation in the institution of the school is justified and the teacher’s homework assignments do a better job overall of helping my child to comply with the reasons she has. But if the teacher has such authority, it would have to be, on Hershovitz’s view, because it is within the institutionally determined domain of the teacher’s authority to create such assignments. Moreover, this would be a far cry from Raz’s own view on which the teacher would have authority to assign homework only on the proper part of those domains where his directives would help my child better to comply with the reasons she already has—and this is so regardless of the fact that, according to the rules of the institution, the role of student includes the obligation to complete any homework the teacher assigns, and the fact that my child has decisive reason to occupy the role of student in his class. A different but related suggestion for how to understand practical authority, which also provides a promising route to solve the problem of legitimacy creep, comes from Andrei Marmor, who suggests that the scope of practical authority is defined by institutional rules and norms. On Marmor’s view, practical authority is a power that is granted by institutional norms, “defining who gets to have the power, the content, and scope of the power, the ways in which it can be exercised, and other auxiliary matters.” 53 Marmor’s approach has strong similarities to that of Hershovitz, in that it claims that the scope, domain, and jurisdiction of authority are defined by social facts—which, for Marmor, take the form of institutional rules and norms—and that legitimate authority exists where we have reasons to comply with the institutional norms that define the boundaries of someone’s authority. As an illustration of the sort of view that Marmor defends, consider the following example. If it is already established that, from the point of view of the Army, a certain officer has authority over the soldiers in her platoon, and you have reason to participate in the Army and occupy the role of solider, then you have an obligation to do as your commanding officer says. Realizing that you know better than she does how to do a certain type of insignificant task does not, on this view, exempt you from your obligation as a solider to 53 Marmor, “An Institutional Conception of Authority,” 242-243. 26 follow her orders with respect to that task (or, for that matter, any other role-related task, given your institutional relationship). The attractiveness of an institutional view of authority makes it worth looking at more closely, and I will say more below about what makes Marmor’s approach attractive in particular. Suffice it for now, however, to observe that Hershovitz’s and Marmor’s essential contribution here is their core proposal (albeit with different emphases) that we can understand practical authority as a matter of social facts, and in particular that the scope, domain, and discretion of authority are a feature of roles or institutional rules that are defined by social practice. Our participation in those roles or compliance with those rules may be justified or not. But the boundaries of authority are settled, on their views, by the facts about either the attributes of a role or institutional rules and norms, and not by satisfying the normal justification thesis. Instead, on Hershovitz’s and Marmor’s views, legitimate authority involves at least the following two elements: (i) a relationship between persons in which the scope, jurisdiction, and discretion of an authority’s power to impose obligations is clearly defined and which can be understood in terms of non-normative social facts; and (ii) a justification for taking the directives of someone in a socially defined position of authority as normative for those subject to those directives. In this sense, then, Hershovitz’s and Marmor’s views accommodate the Razian insight that, in order to answer Wolff’s challenge, a justification of legitimate authority has to be given in terms of reasons that subjects already have. Moreover, these approaches to justifying authority, on which the boundaries of authority are defined in terms of the attributes of a social role or institutional norms, has the additional benefit of being able to avoid the sort of legitimacy creep to which Raz’s service conception seems to be subject. In conclusion, the basic objection here to Raz’s narrower interpretation of the normal justification thesis is that it overlooks the essentially institutional structure of authority relationships, and that it treats the justification of authority as piecemeal and contingent on whether the subject of an authoritative directive knows as much or more than a putative authority on a given matter. On the picture suggested by Hershovitz and Marmor, however, the relationships of authority and subject are institutionally defined. In addition, whether or not one has legitimate authority depends on whether those subject to one’s authority in an institutional sense have reason to occupy a certain institutional role. 27 Sometimes we will have such reasons, but the institutional obligations that attach to a given role are a function of social facts, and not necessarily subject to fluctuation due to changes in a subject’s (or an authority’s) knowledge. 6. Non-Normative-First Views of Practical Authority The views I have just outlined that Hershovitz and Marmor have recently defended, each in his own way, both constitute a version of what we can call a non-normative-first view of practical authority. In this section, I will articulate more precisely what I take the core commitments of a non-normative-first approach to authority to be. Then, in section 7, I will say how the argument I will offer in Chapter 1 differs from such an approach. 6.1: Commitment 1: The Priority of the Non-Normative Although they frame their projects in different ways, with Hershovitz emphasizing social roles and Marmor emphasizing institutional norms, both authors share the assumption that it is possible to talk about practical authority that is not legitimate, as well as practical authority that is legitimate. Moreover, both assume that there is a non-normative sense of ‘practical authority’ that is common to both of these uses. Thus, Hershovitz and Marmor posit an underlying non-normative phenomenon, which they take to be the same in the case of both illegitimate and legitimate authority, and they propose to give an account of the structure of that phenomenon, which they take to be practical authority in a non-normative sense. For anyone familiar with legal positivism, this inversion—putting the non-normative first in order to understand a social phenomenon that purports to have an impact on the normative landscape—should make sense. Legal positivism begins with the intuitive thought that not all law gives us a genuine obligation to follow it; we need only think of the immoral laws of various despotic regimes to see why this idea is extremely appealing. It is a small step from this idea to the conclusion that, whatever the nature of law is, we have to able to explain how it is that there can be bad or immoral law that doesn’t give us an obligation to follow it but that nonetheless counts as law. The result is an account of the nature of the law (the details of which take various forms) that is grounded primarily in non-normative social facts about, for instance, who occupies various official roles, and what those officials say and do that makes it the case that a certain text, for instance, becomes the law. 28 Thus, in a pair of recent papers, Marmor claims that practical authority is best understood in a legitimacy-neutral sense. 54 In fact, he begins “An Institutional Conception of Authority” in precisely this vein: “Instead of beginning with the normative question of legitimacy, I will begin with the question of what it takes to have practical authority, whether legitimate or not….” 55 While Marmor doesn’t explicitly draw a comparison between his view of authority and legal positivism (the latter of which he also defends elsewhere), the analogy is evident: because there can be illegitimate authorities, then whatever the nature of practical authority is, we should be able to explain how it is that there can be illegitimate authorities who nonetheless count as having practical authority. And Marmor is explicit about this idea: “[W]e can separate the question of what it takes to have practical authority from the question of an authority’s legitimacy.” 56 On both Hershovitz’s and Marmor’s views, then, the concept of legitimate authority is downstream from authority in a more basic, non-normative sense. The fundamental contribution of their approach is thus to introduce to the debate the idea that there is a distinction between legitimate authority and illegitimate authority, such that both involve practical authority in a distinct, legitimacy-neutral sense that is also primary. And this claim about the priority of authority in a non-normative sense has implications for how we have to understand the structure of legitimate authority. In particular, the non-normative-first approach shared by Hershovitz and Marmor entails that whatever account one wants to give of legitimacy has to be in terms of a justification of authority in its primary, non-normative sense. Legitimate authority thus involves an external normative element that is added to authority in the non-normative sense. We saw a glimpse of this in the previous section, and I will say more about the structure of this sort of justification in discussing the third commitment of non-normative-first approaches below. Putting the idea of external justification together with the commitment to the priority of authority in a non-normative sense, we get the following claim: 54 Marmor, “The Dilemma of Authority” and “An Institutional Conception of Authority.” 55 Marmor, “An Institutional Conception of Authority,” 238. 56 Ibid. 29 1. Legitimate authority is composed of (i) authority in a non-normative sense (which is common to both legitimate and illegitimate authority) for which there is (ii) an external justification. 6.2: Commitment 2: The Institutionality of Authority In addition to their core commitment to an external justification of authority in a non- normative sense, Hershovitz and Marmor share a commitment to cashing out authority in the non-normative sense in terms of social and institutional practices. Of course, as we have seen, Hershovitz’s and Marmor’s approaches have different emphases. Hershovitz’s view of practical authority suggests that authority is already built into roles in social and institutional practices, whereas Marmor, for his part, argues that practical authority should be understood in terms of power-conferring norms, and that the systemic complexity of such norms requires an institutional background. Thus, despite the different nuances of their respective views, Hershovitz and Marmor share a commitment to the following claim: 2. Authority in a non-normative sense is essentially institutional in nature. Unfortunately, Hershovitz’s role-based view of authority is ultimately more of a programmatic suggestion for further inquiry than a full-fledged view of what that authority consists in and the conditions under which it might be legitimate. Marmor, however, offers a clear argument in support of his conclusion that practical authority requires institutions, which I will briefly summarize. Marmor’s first claim is that practical authority is a normative power. According to Marmor, a normative power is “the ability to introduce a change in the normative relations (viz, rights, obligations, etc) that obtain between those who are subject to the power under the relevant circumstances.” 57 In particular, to have practical authority, for Marmor, is to have the normative power to impose obligations. 58 Moreover, normative powers, according 57 Marmor, “Dilemma,” 129. Marmor is explicitly borrowing his use of the term ‘power’ from W. N. Hohfeld, who uses the term to describe a type of relationship that can exist between parties in the law (W. N. Hohfeld, Fundamental Legal Conceptions, ed. W. W. Cook (New Haven, Conn.: Yale University Press, 1919)). Specifically, for Hohfeld, ‘power’ in the context of the law refers to the ability to unilaterally alter another party’s legal obligations. 58 See Marmor, “Institutional Conception,” 240n2, as well as “Dilemma,” 132n19 where Marmor cites Raz as noting that the reducibility of the power of authorities to obligation-imposing is “widely recognized in the 30 to Marmor, require an normative background: “[I]t makes no sense to speak of power without some normative background already in place…that the power-holder is in a position to change.” 59 But the type of background presupposed by a normative power depends on whether the power in question is ad hoc, as in the case of consent or imposing a one-off obligation by accepting a promise, or systemic. According to Marmor, practical authority is the latter: “[T]o be a practical authority is to have the power to choose from a range of options whether, and how, to introduce changes in the normative landscape that prevails in the area of one’s authority.” 60 Consequently, for Marmor, the normative background presupposed by practical authority “is inevitably complex, constituted by a set of interlocking norms, defining who gets to have the power, the content, and scope of the power, the ways in which it can be exercised, and other auxiliary matters.” 61 Finally, Marmor claims that the complexity of the normative background presupposed by practical authority requires positing correspondingly complex norms governing the systemic power in question. But that in turn requires the existence of institutional practices, since only institutions have sufficiently complex norms. As Marmor puts it: “Only rules or conventions of an institution, or a well structured social practice, can confer [systemic] power.” 62 Thus, Marmor concludes that practical authority—understood in a legitimacy-neutral sense—is essentially institutional in nature. 6.3: Commitment 3: The Justification of Authority Involves Reasons to Participate For Marmor, practical authority is the normative power to impose obligations, as we have literature.” But even on a normative power view, it might be more accurate to characterize practical authority as the power to alter obligations, since authorities plausibly have the power not only to impose, but also to revoke or change obligations, including those obligations which they have imposed. 59 Marmor, “Institutional Conception,” 241. He makes this same point in almost exactly the same words in “The Dilemma of Authority,” 130. 60 Marmor, “An Institutional Conception of Authority,” 242-243. 61 Ibid., 243. The idea that authority is grounded in social norms that “authorize” individuals to determine others’ obligations is also found in other authors. For example, Kelsen argues that a command can be binding only if the individual commanding is “authorized,” and one can be “authorized” “only if a normative order, which is presupposed to be binding, confers on him this capacity” (Kelsen, General Theory of Law and State, (Piscataway, NJ: Transaction Publishers, 2006), 31). In a similar way, Michael Baurmann notes how, in sociological terms, “certain positions of power and the distribution of power can only be explained by the validity of empowering norms” (“Legal Authority as a Social Fact,” Law and Philosophy 19, (2000): 247-262, 251). And in his book Legality (Cambridge, MA: Harvard University Press, 2011), Scott Shapiro argues that legitimate authority requires both authorization as well the ability to secure behavioral compliance with one’s directives, the latter of which we can call, following Raz, “effective” authority. 62 Marmor, “The Dilemma of Authority, 129-130. 31 seen. But two qualifications are necessary here. First, on Marmor’s view, having “normative power” is a feature that is shared by both legitimate and illegitimate authorities. This is similar to the way in which Hershovitz claims that the “normative attributes” of authority attach to roles in social practices, even though in order for authority to count as legitimate some further justification is required. Marmor also claims that normative powers presuppose normative backgrounds, and that they involve the ability to alter that normative background. In the case of practical authority, what is presupposed is a background of institutional rules. Thus, for Marmor, the normative power of authority and the normative background it presupposes are “normative” in what we can call (following Derek Parfit) the rule-involving sense of normativity. 63 And while institutional rules purport to be reason-giving for members of the institution, those rules may or may not be normative in the reason-involving sense. 64 Second, because the background presupposed by the normative power of practical authority is essentially institutional in nature, the “obligations” imposed by someone with authority are institutional obligations, which Marmor interprets as conditional obligations. In particular, institutional obligations are conditional, for Marmor, on the existence of a justification of a subject’s participation in an institution: “[Institutional] obligations are always conditional: They presuppose that there are valid reasons to participate in the relevant institutional practice and comply with its rules. The institutional obligation to comply with an authority’s directives is always conditioned by reasons to participate (cooperatively, that is) in the practice that confers the relevant power on the authority.” 65 As we have seen, Marmor and Hershovitz are committed to cashing out legitimate authority in terms of two components, namely, (i) authority in a non-normative sense, and (ii) an external justification of authority. We are now in a position to see the general shape 63 Parfit contrasts the rule-involving sense of normativity with a reason-involving sense (see following note), as well as several other senses that needn’t concern us here, including a motivational sense, an attitudinal sense, and an imperatival sense (Parfit, On What Matters (Oxford: Oxford University Press, 2011), 144-148, 267-269). Philippa Foot’s discussion of the normativity of etiquette (as well as that of morality, although later recanted) can also be seen as an articulation of the rule-involving conception of normativity, which for Foot involves what one should or ought to do from the point of view of a set of norms or rules (Foot, “Morality as a System of Hypothetical Imperatives,” Philosophical Review 81(3), (1972): 305-316, esp. 309). 64 According to Parfit, in this sense of ‘normativity’, “What is normative are certain truths about what we have reasons to want, or will, or do” (On What Matters, 424-425). A conception of normativity that involves an essential connection between normativity and reasons is widely espoused by many philosophers, including Jonathan Dancy (Ethics Without Principles, (Oxford: Oxford University Press, 2004)), Joseph Raz (“Explaining Normativity: On Rationality and the Justification of Reason,” Ratio 12(4), (1999): 354-379), T. M. Scanlon (What We Owe to Each Other, (Cambridge, MA: Harvard University Press, 1999), and Mark Schroeder (Slaves of the Passions, (Oxford: Oxford University Press, 2007)). 65 Marmor, “The Dilemma of Authority,” 133. 32 that this second component takes. Hershovitz says little about what a justification of authority has to look like, but Marmor at least appears to be committed to the following claim: 3. The external justification of the institutional obligations imposed by someone with authority takes the form of reasons to participate in and to comply with the rules of the institution. Of course, there may be more that is required as well. Both Marmor and Hershovitz seem to use ‘legitimacy’ as a term that can apply both to particular authorities as well as to institutions as a whole. For instance, Marmor claims that “the legitimacy of authorities is bound to depend on the legitimacy of the practice or institution in which they operate, each authority’s specific functions in it, and, importantly, the general terms of participation in the practice or institution.” 66 Likewise, as we have seen, Hershovitz makes a similar statement about two types of justification that one might give: “To justify authority, we need to justify the practices in which the roles of authority are embedded.” 67 And, as Marmor points out, the justification of institutions is a fraught issue: “The legitimacy of social practices and institutions is a complex matter, depending on questions of social utility, fairness, justice, and the like. Nothing that I suggest here purports to address these complex issues.” 68 Likewise, I will not be addressing this broader issue in the following. 69 Rather, I am interested in a more particular question, akin to that which Raz addressed, namely: what reasons are required in order for a subject to have (in a reason- 66 Marmor, “The Institutional Conception of Authority,” 248. 67 Hershovitz, “The Role of Authority,” 11. 68 Marmor, “The Institutional Conception of Authority,” 252. For a suggestion of what such legitimacy conditions in general might look like, Kate Manne defends a view on which “social practices are valid [i.e., legitimate] insofar as they are conducive to human flourishing at large,” where this is understood in “broadly consequentialist” terms (Manne, “On Being Social in Metaethics,” in Oxford Studies in Metaethics, Vol. 8, ed. R. Shafer-Landau, (Oxford: Oxford University Press, 2013): 50-73, 69.) 69 John Simmons has argued for a distinction between the notions of ‘justification’ and ‘legitimacy’, such that on his view justification involves showing that some realizable type of institution is on balance morally permissible, whereas legitimacy involves showing that the actual history of a particular institution’s relationship to its individual subjects is morally acceptable (Simmons, “Justification and Legitimacy,” Ethics 109(4), (1999): 739- 771). I agree that these are different projects, although I am not convinced that the difference isn’t simply one involving the level of generality and the actual existence of an institution. Moreover, I don’t agree that this distinction is tracked in any important sense by standard uses of the two terms Simmons selects, and in what follows (except where noted) I will use both terms interchangeably to mean simply having a justification in normative terms of one’s authoritatively imposed institutional obligations. 33 involving sense) the obligations that authorities purport to impose on them? To be fair, Marmor declines to offer a substantive theory of what gives us such obligations: “Our reasons to cooperate with social practices and institutions of various kinds are too varied and context-sensitive to allow for a general formula that can apply to all cases.” 70 This way of putting it, however, shows that Marmor does have a view about what type of reasons are required for subjects to have authoritatively imposed obligations. As we have seen, Marmor claims that the obligations authorities impose are institutional in nature, and that they are conditional on one’s having “reasons to participate in the relevant institutional practice and comply with its rules.” 71 Yet it is fair to ask whether this is the type of reason in virtue of which persons subject to authority count as having genuine obligations, which I address in Chapter 2. In the next section, I will discuss in detail where I agree and disagree with this as well as Hershovitz’s and Marmor’s other commitments. 7. Parting Ways Although I am sympathetic to some of Hershovitz’s and Marmor’s claims, there is more that needs to be said in defense of an institutional approach to authority. Having laid out in the previous section the essential points of agreement between Hershovitz’s and Marmor’s views, I will now point out the main ways in which the view I present in Chapter 1 agrees with and differs from theirs. In particular, my view is distinct in terms of how I propose to argue for the institutional nature of practical authority, and in terms of the account I give of the type of reasons that are required for a justification of practical authority. To recap, the following three claims constitute the core of the institutional approach that is shared by Hershovitz and Marmor: 1. Legitimate authority is composed of (i) authority in a non-normative sense (which is common to both legitimate and illegitimate authority) for which there is (ii) an external justification. 2. Authority in a non-normative sense is essentially institutional in nature. 70 Marmor, “The Institutional Conception of Authority,” 255. 71 Marmor, “The Dilemma of Authority,” 133. 34 3. The external justification of the institutional obligations imposed by someone with authority takes the form of reasons to participate in and to comply with the rules of the institution. (1) is what makes Hershovitz’s and Marmor’s views count as non-normative-first approaches to authority. (2) is what makes their views count as institutional. And (3) is a view about the structure of what constitutes legitimacy—that is, when someone with institutional authority succeeds in imposing obligations that are normative in a reason-involving sense. Significantly, (1) and (2) together entail the following claim: 4. Legitimate authority is essentially institutional in nature. For my part, I agree with (1), but I don’t start by assuming that it is true. There are at least two reasons for not doing so. One reason is simply that, if (1) is true, it is worth having an argument for it. Thus in the follow section I will give an argument for why (1) is a claim that is in need of defense and should not simply be taken for granted. As a result, in Chapter 1 I will argue directly for (4), and also argue that the best explanation of the truth of (4) is the truth of (1) and (2). The second reason not to take (1) for granted is that legitimate authority appears to be conceptually prior to the idea of authority in a non-normative sense. I will address this idea further in Chapter 3, where I concede the conceptual point while defending the ontic priority of institutional authority. Either way, the upshot is that, despite its intuitive appeal, a non-normative-first approach to practical authority stands in need of defense. Finally, I disagree with (3). I argue in Chapter 1 that the obligations imposed by legitimate authority are distinct insofar as they are grounded in one’s identity, which I cash out in terms of institutional roles. In Chapter 2, however, I argue that it is simply not the case that instrumental reasons to participate in an institution and to comply with its rules yield obligations of this sort, and that in general a means-end transmission principle yields reasons of the wrong sort to ground identity-based obligations. Rather, I argue that a different type of reason is needed, which can be expressed in the following claim: 5. The external justification of the institutional obligations imposed by someone with authority takes the form of reasons to identify with an institutional role. 35 To get my defense of these claims underway, in the next section I will motivate the following chapters by an analogy to the philosophy of perception the upshot of which is that we shouldn’t simply start by assuming the truth of (1). 8. The Case for a New Argument In this section, I will lay out the case for why we need a new, broader argument for an institutional conception of practical authority that does not appeal to Marmor’s and Hershovitz’s shared assumption that legitimate and illegitimate authority have a common non-normative factor. Although I agree with Hershovitz’s and Marmor’s basic conclusion— that practical authority presupposes the existence of rule-governed social institutions—I will argue in this section that we need a different argument in favor of this conclusion. And in Chapter 1, I will offer such an argument. For now, I will seek to explain why we have reason to step back and justify premise (1) above, namely, the priority of practical authority in the non-normative sense. As we have seen, Marmor and Hershovitz both start by assuming the truth of (1). Especially from a positivist perspective, the truth of (1) may seem obvious. Consequently, any resistance to the idea that there is a non-normative core to the notion of practical authority that is shared by both legitimate and illegitimate authority may appear unmotivated. In fact, it might seem as though no serious party to contemporary discussions of practical authority would deny (1). But even if this turns out to be true, and even though I myself ultimately agree with (1), I submit that it is still theoretically worthwhile to offer a defense of this seemingly intuitive claim, starting from premises acceptable to someone who is initially skeptical of whether legitimate and illegitimate authority have a common core. To explain why this is the case, an analogy may be helpful. In the philosophy of perception, there are so-called causal theories of perception according to which both veridical perceptions and hallucinatory experiences can, in principle, involve the same sort of psychological experience, even if the latter sort of case involves that experience being produced by a deviant or nonstandard causal chain. 72 Likewise, as we have seen, the non- 72 Versions of the causal theory of perception have been developed by Howard Robinson in Perception (London: Routledge, 1994), and by A. D. Smith in The Problem of Perception (Cambridge, MA: Harvard University Press, 2002), among others. 36 normative-first view of practical authority—inspired by legal positivism—claims that legitimate and illegitimate authority both involve having practical authority in a legitimacy- neutral sense, even if the latter case involves imposing institutional obligations that are not normative in a reason-involving sense. And both the causal theorist about perception and the non-normative-first theorist about authority have the following in common with the legal positivist: all of them assume that the best theory of the phenomena should be shaped by the worst case. The legal positivist is convinced that bad and immoral law is still law in a sense defined by social facts; the non-normative-first theorist is sure that illegitimate authority is still authority in a legitimacy-neutral sense; and the causal theorist believes that hallucinatory experiences are still perceptions in a sense defined by psychology. By contrast, there is also a type of theory of perceptual experience known as disjunctivism. 73 According to disjunctivists, veridical perceptions and hallucinations differ in kind, and not merely in whether they connect a subject to the world in the right way. Thus, on this view, there is no common factor shared by the good (veridical) case and the bad (hallucinatory) case, and disjunctivists reject the assumption that there is. There are various arguments that have been offered in support of disjunctivism, which need not concern us at present. 74 Rather, I introduce the view here to make the following points. First, just as perceptual theorists agree that veridical perceptions and hallucinations can both be referred to as types of perceptual experience, without presupposing that there is a common factor present in virtue of which they share this name, it is possible to agree that it makes sense to speak of both legitimate authority and illegitimate authority without presupposing that there is a common factor that they share. Thus, by insisting that (1) requires argument, I don’t want to be misunderstood as claiming either that it doesn’t make sense to talk of illegitimate authority at all, or that it doesn’t make sense to talk about legitimate and illegitimate authority together as types of authority. Second, even if one does not agree with disjunctivism about perceptual experience, 73 This idea was first proposed by J. M. Hinton, who interprets the sentence ‘I seem to see a flash of light’ as “a more compact way of saying” the following disjunctive sentence: ‘Either I see a flash of light, or I have an illusion of a flash of light’ (“Visual Experiences,” Mind 76, (1967): 217-227, 217). The crucial idea is that if the disjuncts of this latter statement have disjunctive truthmakers, then there is not a common experience that would render both disjuncts true. 74 Besides Hinton, the disjunctive approach to perceptual experience has been developed by Paul Snowdon (“Perception, Vision, and Causation,” Proceedings of the Aristotelian Society 81, (1980): 175-192) and John McDowell (“Criteria, Defeasibility and Knowledge,” Proceedings of the British Academy 68, (1982): 455–479), among others. 37 arguments for and against it can serve as a useful tool for pointing out assumptions, such as the “common kind” assumption that the causal theorist relies on, and for motivating the theoretical defense of those assumptions. At the very least, the disjunctivist challenges a common-kind theorist to identify the elements that are common to both good and bad cases of perceptual experience and to argue for them, without assuming that a common factor must be present. Likewise, it may seem to be obvious that there is a common factor linking legitimate and illegitimate authority. Indeed, this point seems to be so intuitive that Marmor begins his argument for the institutional conception of authority by assuming its truth. But if (1) is true, it is worth having an argument explaining why it is true. And, at least with respect to an institutional conception of authority, this is an argument that has not yet been made. Denying this idea may be unintuitive, but to claim that this denial is a conceptual mistake or to assume the presence of a common element would be to beg the question in favor of a non-normative-first approach. Finally, it is important to note that one cannot assume the truth of a principle of the following form: if y is entailed by (but not identical to) x, then y must be composed of x and z. For instance, one cannot simply assume in epistemology that knowledge is made up of true belief plus some sort of justification. And this is true even if knowledge entails belief. Given Timothy Williamson’s arguments that knowledge is prime, there is a dialectical motivation for avoiding begging the question in favor of a composite view of knowledge. 75 And in perception, it is a coherent view that, even if hallucination and veridical perception both involve the same type of psychological experience, we can’t therefore assume that there is some further element that can be added to a hallucinatory experience in order to constitute veridical perception. Similarly, with respect to practical authority, it is plausible that Darwall holds a view on which legitimate authority is “prime” in this sense (or, as he puts, “irreducibly second-personal”). But even if Darwall didn’t hold such a view, the point of the analogy is that it is not necessary that any serious parties to a debate hold a view of this sort in order for us to have sufficient theoretical motivation to avoid begging the question against such a view. Thus, even if there is a common factor that is shared by legitimate and illegitimate authority, this does not entail that legitimate authority is composed of authority in the non-normative sense plus a normative element, as (1) claims. I submit that the analogy above and the considerations just advanced constitute a 75 Cf. Williamson, Knowledge and its Limits (Oxford: Oxford University Press, 2000), esp. Ch. 3. 38 strong case that it is possible to hold a view that is both intelligible and interesting that rejects (1). For these reasons, then, we seem to have a sufficient motivation in favor of an ecumenical and methodologically broader approach to analyzing practical authority that does not start by assuming (1), as Hershovitz and Marmor do. Authors who start by assuming a non-normative-first approach are, of course, free to claim that there is an interesting, legitimacy-neutral notion they wish to capture by their stipulative use of the term ‘practical authority’. Moreover, as an analysis of the institutional concept of practical authority, Marmor’s analysis in particular is deeply illuminating. But because he is offering a non- normative-first approach to authority, it is not quite correct for Marmor to claim that none of what he says about practical authority as a normative power is “particularly controversial.” 76 Thus, in order to advance the debate in such a way that ensures that all parties are on board, both those who accept and those who reject the priority of a non-normative sense of authority, I will begin by discussing only legitimate authority. The first step is to offer an independent characterization of the genuine reason-giving involved in legitimate authority. In section 1 of this chapter, I began this project by distinguishing legitimate authority from superficially similar ways in which someone might give others reasons by way of threats or advice. And in the first part of Chapter 1 I will offer a more detailed characterization of the distinctiveness of the reasons that legitimate authorities give us. I will then proceed to argue for (4), the claim that legitimate authority is essentially institutional. It is essential to argue for this conclusion, however, without assuming that is it possible to have authority in a non-normative sense that can be either legitimate or illegitimate. Only once we have an argument in hand, the conclusion of which is that making sense of legitimate authority requires appealing to authority in a non-normative sense, will we be in a position to justifiably claim that (1) is true. Thus, although I agree with claim (1) above, I will not take it for granted in what follows. Rather, I will offer a more ecumenical argument for (4), the claim that legitimate authority is essentially institutional in nature, which, if true, will also entail the truth of (1) and (2). And in Chapter 1 I lay out an argument of precisely this sort. Moreover, to avoid even the possibility of building (1) into the premises of a deductive argument, I will argue abductively that the best explanation of the reason-giving involved in legitimate authority involves commitments that imply that practical 76 Marmor, “An Institutional Conception of Authority,” 241. 39 authority is essentially institutional in nature. The result is that having authority in a non- normative, institutional sense is a necessary condition for having legitimate authority. To the reader who finds (1) obvious, this may seem like a great deal of work for what amounts to small progress in the defense of (1). In particular, if the reader already accepts claim (1), she may question whether the lengths I go to in arguing for (1) are worthwhile, or whether the argument holds much excitement for someone who is already sympathetic to (1) and (2). If nothing else, however, my argument at least has the virtue of requiring fewer commitments and presupposing less than an approach that begins by assuming the truth of (1). My approach also makes sense because, as I will argue in Chapter 3, legitimate authority is conceptually prior to authority in a non-normative sense. 9. Taking Stock This is a good point at which to take stock of the state of the debate over the nature and justification of practical authority. We began by noticing the way in which some people claim to be able to give others a reason for action that is distinct or special in some way. In the next chapter, I will offer my own account of what the distinctness of the type of reason- giving involved in legitimate authority consists in. But others, too, have offered accounts of what makes the reasons that authorities give us special. For instance, in response to Wolff’s anarchist challenge, Raz argued that authority could be justified if it performs a particular kind of service for those subject to it, and that meeting this criterion is sufficient to give others an obligation to obey one’s directives. But later objections to Raz’s view cast doubt on the sufficiency of this feature for having legitimate authority. The upshot of these objections was to show that something is missing if we try to explain what gives some people the power to impose obligations on others simply in terms of helping them to comply with reasons. The most promising alternative for how to solve the insufficiency objection and the problem of legitimacy creep that plague Raz’s view is to posit an additional non-normative element, such as a social role or institutional norms, which will clearly distinguish cases of authority from other types of reason-giving (such as threats, advice, and requests), and which can also provide clear limits to the scope, jurisdiction, and discretion of an authority. But, as we have seen, the details of an institutional account of authority need to be able to capture the support of those who might reject the assumption that the non-normative sense of 40 practical authority has explanatory priority, and I have just sketched the main reason I take Hershovitz’s and Marmor’s non-normative-first accounts not to be able to meet this desideratum. Thus, in Chapter 1, I will offer a new and more ecumenical argument for the institutional nature of practical authority that takes into account all of main lessons that have already been discussed in this Introduction. First, I will aim to avoid the shortcomings of Raz’s view that Darwall has pointed out, while still taking seriously Raz’s idea of an external justification as an important constraint on a plausible justification of legitimate authority. Second, I will incorporate the insights of Hershovitz and Marmor, in particular the idea that practical authority is institutional in nature, thereby avoiding the problem of legitimacy creep. However, I will offer and defend a new account of practical authority that avoids assuming that a non-normative-first or “common core” approach to practical authority, but nonetheless concludes that legitimate authority is essentially institutional. An alternative to the institutional approach is Darwall’s view, on which practical authority is an essentially normative and “irreducibly second-personal” concept. I will return to this view in Chapter 5, where I will explain and argue against this conception of practical authority, since it comes with significant theoretical costs. But an initial reason to be pessimistic about Darwall’s view is that it can’t capture the basic insight that Raz, Hershovitz, and Marmor all recognize, namely, the appeal of an independent justification of legitimate authority in terms of reasons that the subject already has. And while non- normative-first views offer a justification of institutional obligations in terms of the reasons that subjects have to participate in certain practices or institutions, I argue in Chapter 2 that this may not be the right sort of reason to explain the obligations legitimate authorities impose. Still, if a plausible case for external justifications of authority can be made, it will preserve the spirit of Raz’s reply to Wolff and constitute a distinct advantage over Darwall’s view. Thus, I offer a new view of what an external justification of authority has to look like. In particular, I claim that it requires both occupying an institutional role, and having sufficient independent reason to identify with that role. Ultimately, I take my contribution to the contemporary debate about authority, and to institutional views of practical authority in particular, to be twofold. First, I offer a new argument for the institutional nature of practical authority that does not depend on assuming that there is a non-normative sense of authority shared by both legitimate and illegitimate 41 authority. And second, I offer a new view of what a justification of legitimate authority has to look like within the context of an institutional view of authority. Developing these two ideas will be the tasks of Chapters 1 and 2. I then proceed in later chapters to defend this account against several significant objections. In the final section of this chapter, I outline the structure of the following chapters in more detail. 10. The Plan In Chapter 1, I lay out my main argument for the link between legitimate authority and institutional authority. Starting from the premise that legitimate authorities give us a distinct type of reason for action, I argue that the best way to understand the distinctiveness of those reasons is as grounded in the identity of the person giving the reason. Moreover, I claim that the best explanation of the way in which the reasons legitimate authorities give us are tied to identity is in terms of roles that people occupy in social and institutional practices. In short, legitimate authority is structured by and exists within the context of institutions. Ultimately, having authority in an institutional sense turns out to be a necessary condition for having legitimate authority. This conclusion provides a basis for the claim that authority in both the normative and the non-normative senses does have a common core after all: namely, institutional authority. It also helps to motivate the idea that it is the addition of some sort of external justification to authority in a non-normative sense that makes authority legitimate. Chapter 2 offers an extended discussion of what the structure of an external justification of practical authority would have to look like, given the institutional nature of practical authority as such. I survey several types of justification of institutional obligations offered in the literature, and I highlight the problems with each approach. I further distinguish between two interpretations of institutional obligations, either as real but conditional obligations or as non-normative facts about what obligations one has from the perspective of an institution. I argue that, on the second approach, the justification of authority in terms of reasons to participate in an institution seems to be on the wrong track and, in particular, is subject to counterexamples. But the counterexamples I offer are instructive: in particular, they show us that an instrumental justification of authority in terms of a means-end transmission principle will not serve as a general justification of the sort of identity-related obligations characteristic of legitimate authority. Rather, having authoritative obligations depends on one’s actually occupying the relevant role and, crucially, having 42 sufficient reason to identify with that role. In Chapter 3, I defend my account against a potential objection according to which an account of legitimate authority is necessarily prior to an account of authority in a descriptive, institutional sense. Raz explicitly rejects the idea that the concept of legitimate authority can be understood compositionally as authority, in some descriptive sense, plus legitimacy. However, I argue that this is exactly how we should understand legitimate authority, in accordance with the view outlined in Chapters 1 and 2. Although the concept of legitimate authority is prior to that of institutional authority, in that institutional authority involves claiming to have (and thus presupposes a basic understanding of) legitimacy, we should reject the ontic priority of legitimacy when it comes to the necessary conditions for legitimate authority. Rather, it is both possible and necessary to have institutional authority prior to having legitimate authority. In Chapter 4, I address a pair of objections to the institutional view of practical authority that I argue for in Chapter 1. I look at two versions of an argument for the conclusion that there is a common core to the notion of authority that is shared by both practical and epistemic authority. The upshot of either argument would be that authority is broader than the practical domain and, in particular, that non-institutional authority is common in the epistemic domain. The first version, articulated by Daniel Star and Candace Delmas, argues for a minimalist view of authority, but I argue that their view has deeply implausible results. The second argument, espoused by Linda Zagzebski, argues for a more robust epistemic analogue of authority along the lines of Raz’s account of legitimate practical authority. I argue that her extension of the notions of authoritative directives and obligations to the epistemic domain is implausible. Thus, the case for both a weak and a strong common core to the notion of ‘authority’ fails. In Chapter 5, I turn to Stephen Darwall’s view of practical authority. I argue that Darwall’s commitment to understanding practical authority in terms of an interdefined circle of essentially normative and “irreducibly second-personal” concepts comes with significant costs. First, it rules out the possibility of understanding authority in terms of non-normative concepts, including the idea discussed above that restrictions on the scope of authority stem from institutional roles that are defined by social practice. Second, Darwall rules out an external justification of legitimate authority in terms of non-second-personal reasons, thereby blocking the possibility of an answer to Wolff’s challenge in terms of the reasons a 43 subject already has, which is a virtue of both Raz’s account and institutional accounts. Finally, I argue that it isn’t necessary to accept these costs, since it is possible to capture Darwall’s core notion of second-personal normativity by combining the non-normative but nevertheless second-personal structure of institutional authority with external normative reasons to identify with institutional roles. For these reasons, I conclude that an institutional view of practical authority is preferable to Darwall’s view. Finally, in Chapter 6, I address one of the most serious challenges to the distinctly institutional view of practical authority I have defended. Chapter 1 presented an argument that concludes that the reasons given by legitimate authority are best explained in terms of the institutional background that they presuppose. But the abductive nature of this argument requires that I address the possibility of someone exercising legitimate authority outside of an institutional framework. In response, some of putative counterexamples I address require alternate explanations of the phenomena, and other cases lend themselves to an institutional interpretation. Finally, I address the issue of whether legitimate authority is simply one form of a broader type of practical reason-giving. I argue against several bad reasons to distinguish legitimate authority from other types of robust, identity-related reason-giving, and conclude that there does not seem to be an essential feature, apart from the stringency of the reason involved, that merits reserving the term ‘legitimate authority’ for this distinctive type of reason-giving. I conclude by suggesting that different uses of the term ‘authority’ may make sense, as long as we are clear about what concepts our terms refer to. Thus, in the following chapters, I will elaborate and defend a new argument for the claim that legitimate authority presupposes institutional authority. This will include an account of what institutional authority is, how it is structured, and the implications that this has, as well as how the view I develop relates to other views about the nature and justification of practical authority. Ultimately, by building on the insights of others, I will elaborate a more ecumenically appealing account of practical authority and defend it against various objections. 44 CHAPTER ONE The Case for Institutional Authority In this chapter, I will seek to advance contemporary discussions of practical authority by presenting an argument for the claim that legitimate authority requires an institutional background, and in particular that having legitimate authority requires occupying a certain type of institutional role. Thus I will be arguing that a necessary condition on having legitimate authority is having what I call institutional authority, which I define in terms of social facts. In addition to explaining the distinct type of reason that legitimate authorities can give us, adding this necessary condition will solve the problem of counterexamples that Raz’s normal justification thesis faces, and, unlike Darwall’s view, it has the additional virtue of explaining legitimate authority (at least in part) in terms of concepts that are neither essentially normative nor essentially second-personal. Finally, since my argument is abductive, it has the additional virtue not having to assume from the outset that it is possible to talk about authority in a legitimacy-neutral sense. Rather, I argue that authority in an institutional sense plays an essential part in the best explanation of the necessary conditions for having legitimate authority. 1. Overview of the Argument In this section I will lay out the structure of my argument that legitimate authority requires an institutional background. Then in later sections I will explain and defend each of these premises. My main argument is as follows: 1. Legitimate authorities (where they exist) give us a distinct type of reason for action. 2. The distinct type of reasons legitimate authorities give is “identity-related”: such reasons depend essentially on (i) the identity of the reason-giver, (ii) the identity of the person to whom she is giving the reason, and (iii) the relationship between (i) and (ii). 3. Specifically, the best way of understanding the nature of the identities that are appealed to and presupposed by authoritative reason-giving and the relationship between those identities is in terms of institutional roles and an institutional authority relationship, respectively. 45 4. Therefore, legitimate practical authority requires an institutional background. We can begin by noting that, although the first premise stands by itself, the second premise is not entirely distinct from the first premise. Rather, the first premise is a claim the truth of which is presupposed by the second premise. I have separated these claims in order to head off objections to the idea that the reasons given by legitimate authorities are distinctive of authority, and to focus discussion of Premise (2) on the positive story I offer about what that distinctiveness consists in. In defense of Premise (1), in case it is not already accepted, I refer the reader to section 1 of the Introduction, where I presented cases of threatening and advice as examples of reason-giving that were meant to be illustrative of the way in which authoritative reason-giving is distinct from other types of reason-giving. In light of such cases, it is plausible that legitimate authorities give us a type of reason that is different from those involved in other types of reason-giving. If one finds the general considerations advanced in the Introduction in favor of Premise (1) unconvincing, then one will of course have to decide the merits of both Premise (2) as well as Premise (1), which is entailed by Premise (2), together. Premise (2) is a claim about what the distinctiveness of the reasons referred to in the first premise consists in. I remarked in the Introduction that H. L. A. Hart tells us that acting for the reason that a gunman threatened you is distinct from what he calls acting out of “respect for authority,” but that Hart leaves the latter notion unexplicated. Premise (2) offers an outline of how to fill this gap. Premise (2) also shows how we can fill another gap in the account of legitimate authority, namely, that left by the counterexamples to Raz’s normal justification thesis that were discussed in the Introduction. Whereas Raz’s thesis about when legitimate authority is present does not appeal to any criteria related to an authority’s identity or to any relationship between authority and subject other than the former’s knowledge of the latter’s practical reasons, Premise (2) asserts that there is a more robust connection that is required for legitimate authority. This premise is supported by examples (to be discussed below) where the presence or absence of such a relationship seems to explain when and why someone has legitimate authority. Finally, Premise (3) and its subsequent defense constitutes my central contribution to the debate on practical authority, as outlined in the Introduction. I offer a unique gloss on what the identity-related relationship referred to in Premise (2) has to look like in order for 46 someone to have legitimate authority. In particular, I claim that both authority and subject have to occupy a certain type of role in a social or institutional practice. In particular, they have to occupy roles that are related in terms of what I call an institutional authority relationship, which, as I will explain in detail, is characterized by the ability of one member of an institution to alter another member’s institutional obligations. This premise is supported by examples in which occupying a certain institutional role is clearly presupposed by claims to have legitimate authority, and in which it is the power to alter others’ institutional obligations that is taken to be what grounds the genuine role-based obligations of those subject to legitimate authority. The main work of defending this premise, however, comes in showing that an institutional authority relationship is in fact a necessary condition for having and exercising legitimate authority. In particular, putative examples of non- institutional legitimate authority pose a challenge that must be answered. Together, these premises constitute my case that legitimate authority requires an institutional background. The case is meant to be cumulative: one can accept Premise (1) without accepting the elaboration of it in the form of Premises (2) and (3), and one can accept Premise (2) without the accepting the details of Premise (3). I will argue, however, that there is pressure to view the way I propose of filling out the details of the reason-giving involved in legitimate authority as the best explanation of when and why someone can have legitimate practical authority. This argument has the virtue of preserving the possibility of an external justification of authority, and thus an answer to the anarchist challenge, as well as integrating positivist-inspired insights about the institutional structure of authority without having to assume that it is possible to talk about authority in a legitimacy-neutral sense. 2. Cashing Out the Distinctiveness of Authoritative Reason-Giving I will assume in what follows that that Premise (1) has already been granted. In discussing Austin and Hart below, we will see why there is decisive reason to accept Premise (1), but for now it makes most sense to assume that authoritative reason-giving is distinct in some way. If so, we are confronted with the question of what the best way is of cashing out the distinctiveness of the reasons that legitimate authorities give us. Premise (2) is a story about how to do just that. We have already seen in the Introduction several examples of reason- giving, including threats and offers as well as advice, meant to give us an indirect understanding of authoritative reason-giving by showing us what it is not. But this strategy of 47 narrowing down the subject apophatically can only take us so far. Thus, it will be helpful to consider the following candidates—which are not mutually exclusive—for what a positive story about the distinctiveness of authoritative reason-giving might consist in. 2.1: Candidate Feature 1: Say-So It is clear that say-so in the form of speech acts matters for authority. In short, it seems to be an essential aspect of how authoritative reason-giving works that someone tells someone else to do something. As a plausible account of how say-so matters for authoritative reason- giving, we can look to the account David Enoch gives of what he calls robust reason-giving. According to Enoch, “robust” reason-giving is characterized by “the intention to give a reason merely by the very forming of the intention to give a reason.” 77 More precisely, it is the formation, communication, and recognition of an intention to give a reason that characterizes this form of reason-giving on his view. 78 The crucial point, however, is that it is the presence of this intentional element that Enoch thinks is essential to giving a genuinely new reason, in contrast to cases of both giving epistemic reasons (i.e., reasons to believe that one has certain practical reasons), such as expert financial advice, as well as merely triggering practical reasons, such as when a storeowner lowers the price of paper towels, thereby triggering the standing reason you already had to stock up and buy more paper towels if the price drops. In his article “Authority and Reason-Giving,” Enoch offers the following three conditions on robust reason-giving: (i) A intends to give B a reason to φ, and communicates this intention to B; (ii) A intends B to recognize this intention; (iii) A intends B’s given reason to φ to depend in an appropriate way on B’s recognition of A’s communicated intention to give B a reason to φ. 79 77 Enoch, “Authority and Reason-Giving,” Philosophy and Phenomenological Research 89(2), (2014): 296-332, 302, emphasis in original. 78 In this respect, Enoch’s view of robust reason-giving very much resembles David Owens’s view of “normative powers,” which according to Owens involve the power to “change what someone is obliged to do by intentionally communicating the intention of hereby so doing” (Owens, Shaping the Normative Landscape, (Oxford: Oxford University Press, 2012), 4). It is noteworthy that, as we saw in the Introduction, Marmor uses the language of normative powers, borrowed from Hohfeld, to characterize his view of practical authority. It is important to point out, however, that Enoch takes robust reason-giving to be broader than the imposition of obligations, a topic which I will address briefly in section 2.4 of this chapter, and at greater length in Chapter 6. 79 Enoch, “Authority and Reason-Giving,” 302-303. 48 The central point for our purposes is Enoch’s claim that practical authority involves robust reason-giving in the sense just outlined. On this view, what happens when a mother commands her son to pick up his toys is that she forms an intention to give him a reason to do so, and her command expresses this very intention. Moreover, it is essential to her giving him this reason that the boy recognize that this is what his mother is doing (and not, for instance, merely threatening to punish him if he fails to comply). This essential recognition of the intention to give a reason is what distinguishes “robust” reason-giving for Enoch from what he calls mere reason-triggering, such as when I step out into the street in front of your car and thereby give you a reason to stop. In the latter sort of case, I give you a reason simply in virtue of creating a certain set of circumstances (e.g., stepping into the street), and whether I did so intentionally is irrelevant to whether I succeed in giving you a reason to stop. We can contrast this case with, say, hailing a cab from the side of the road by waving my hand, where the intention to give you reason to stop, and the communication of this intention by a conventional gesture, is essential to my giving you this reason. In particular, the essentially communicative aspect of robust reason-giving is what makes an authority’s say-so a candidate for a distinctive aspect of authoritative reason-giving. Enoch’s account of robust reason-giving is strikingly similar in this respect to the view of reason-giving involved in what Bach and Harnish call directives, which they define as a type of speech act that “express[es] the speaker's attitude toward some prospective action by the hearer and his intention that his utterance, or the attitude it expresses, be taken as a reason for the hearer's action.” 80 The basic idea is that one expresses, by way of a communicative act, such as a command or request, the intention that another person do something because that speaker performed that speech act. 81 Even more than Enoch’s view, Bach and Harnish 80 Kent Bach and Robert M. Harnish, Linguistic Communication and Speech Acts, (Cambridge, Mass.: Harvard University Press), 41. Note that the speaker needn’t actually have this intention, since the expression of intentions (like the expression of other mental states) can be insincere. Bach and Harnish’s account of directives here is similar to that John Searle gives, on which the “illocutionary point” of orders and requests “consists in the fact that they are attempts…by the speaker to get the hearer to do something” (Searle, “The Classification of Illocutionary Acts,” Language in Society 5, (1976): 1-24, 13). 81 It is extremely plausible that there also has to be an “internal relation” between a directive and the reason given by the directive, such that a directive addressed to S, instructing her to φ, can only create a reason for S to φ; it can’t create a reason for R to φ, or for S to ψ, unless either of these would somehow be a means to or constitutive of S’s φ-ing. For a view of practical authority that includes this type of requirement, and the only such example I am familiar with in the literature, see Mark C. Murphy, “Divine Authority and Divine Perfection,” International Journal for Philosophy of Religion 49, (2001): 155-177. 49 emphasize the essential role that a speech act plays in this type of reason-giving, in particular the way in which the fact that the speaker performed the speech act can itself be taken, and intended to be taken, as a reason for action. This seems like an apt way to capture what is meant by the mother’s saying that the son must obey her “because I said so.” Before moving on, it is worth noting that, just as with Bach and Harnish’s view, Enoch’s account of “robust” reason-giving is meant to cover not only commands, but also other types of speech acts, such as requests and invitations, that putatively give their addressee a reason for action. Both views isolate the same phenomenon of communicating an intention to give a reason, and both take the type of reason-giving involved to be present in both commands (which are more typically associated with authority, and the imposition of an obligation to do as commanded) as well as other types of putatively reason-giving speech acts, such as requests and invitations (which typically don’t seem to impose an obligation to do as requested or invited). This leaves the question of what, if anything, distinguishes the reason-giving involved in practical authority from robust reason-giving in general. It is widely assumed in the literature that practical authority involves the power to impose obligations. Nevertheless, it is hard to deny the unity of the phenomenon that both Enoch, on the one hand, and Bach and Harnish, on the other, have identified. Thus, any justification for restricting the phenomenon of authoritative reason-giving to imposing obligations requires further elaboration. I discuss this issue briefly below, but it is in Chapter 6 that I will discuss the possibility of a principled restriction of the concept of practical authority to obligation-giving, as opposed to a broader notion of reason-giving. 2.2: Candidate Feature 2: Sanctions An additional candidate for what is distinctive of authoritative reason-giving is that it involves sanctions for non-compliance. This is an idea common to both John Austin and John Stuart Mill. Both elaborate the connection between authority and sanctions as part of an account of legal authority and the nature of law, but the idea is plausibly attributed to them generally. According to Austin’s so-called “command theory of law” a command involves the expression of a wish for something to be done—more or less along the lines of the first feature just sketched—combined with the power and willingness to impose sanctions, or as he puts it “an evil,” if that wish is not complied with. If someone’s commands are habitually obeyed by a population, Austin calls that person a “sovereign,” and 50 the commands of the sovereign result in obligations. In other words, the person (or group of persons) who is the sovereign has legitimate authority to impose obligations on Austin’s view. 82 For his part, Mill seems to think something similar, positing a conceptual connection between non-compliance with obligation and liability to sanction, not only with respect to legal obligations but for obligations in general, including moral obligations: “For the truth is, that the idea of penal sanction, which is the essence of law, enters not only into the conception of injustice, but into that of any kind of wrong.” 83 Mill, however, may have in mind something akin to accountability as a correlate of obligation and authority, a claim that Darwall also defends. 84 I will discuss this idea in Chapter 5, but for now I will set it aside and focus on Austin’s view, which clearly ties the authority to impose obligations to the power and willingness to impose sanctions. The connection between authority and sanction, however, has been widely discredited. H. L. A. Hart famously uses the example of a gunman robbing a clerk to distinguish imperatives that appeal primarily to fear (i.e., threats 85 ) from ones that appeal to respect for authority. 86 He uses this contrast to argue against Austin’s view of authoritative obligations deriving from sanction-backed commands, characterizing Austin’s view of the sovereign as a “gunman writ large.” It is little remarked, however, that Hans Kelsen made a similar criticism of Austin’s theory more than a decade before Hart in his 1949 book General Theory of Law: “[N]ot every command issued by somebody superior in power is of a binding nature. The command of a bandit to deliver my cash is not binding, even if the bandit actually is able to enforce his will.” 87 At any rate, legal theorists and writers on practical authority generally grant that Hart’s criticism on this point is decisive. In addition to creating various technical problems, Austin’s view has the counterintuitive implication that, in a 82 John Austin, The Province of Jurisprudence Determined, ed. W. Rumble, (Cambridge: Cambridge University Press, 1995), Lecture I. Originally published 1832. 83 Mill, Utilitarianism, (1863), Chapter 5. 84 Certain of Mill’s remarks, such as the following, encourage this sort of reading, and suggest that ‘sanction’ on his view may or may not be externally imposed and is conceptually tied, it appears, to both blame and guilt, as least with respect to moral obligation: “We do not call anything wrong, unless we mean to imply that a person ought to be punished in some way or other for doing it; if not by law, by the opinion of his fellow-creatures; if not by opinion, by the reproaches of his own conscience. This seems the real turning point of the distinction between morality and simple expediency” (Mill, Utilitarianism, Chapter 5). 85 Similar considerations apply mutatis mutandis to offers, that is, proposed benefits, which resemble threats insofar as they do not appeal to respect for authority, but which are distinct from threats, which involve proposed harms. 86 Hart, The Concept of Law, 19-20. 87 Kelsen, General Theory of Law and State, 31. 51 slogan, might makes right, since it implies that having the power to impose sanctions and having people in a habit of obeying one’s commands is sufficient for legitimate authority. The result is that the backing of sanction does not seem to be a plausible feature of what is distinct about authoritative reason-giving. Austin’s theory seems to entail that legitimate authority collapses into the power to threaten effectively on a large scale. This isn’t to say that the power to enforce compliance or threaten sanctions for non-compliance can’t be justified; in fact, for all I’ve said here, such a power might be a corollary of or necessary condition on legitimate authority, especially where the law is concerned (since many people take enforcing the law to be justified, although perhaps only by certain methods or where the government itself already possesses legitimate authority). At the very least, the failure of Austin’s view puts us in a position to appreciate why there is decisive reason to accept Premise (1), as I mentioned above. To sum up so far, it is plausible that expressing the desire or intention that another person do as one says is an integral part of exercising legitimate authority, but the mere expression of that intention does not by itself seem to constitute a sufficient reason to do as someone says. And the fact that someone has the ability and inclination to punish you if you don’t comply with her wishes seems not to be the sort of ground for the type of reason that legitimate authorities give us. This leads us to look elsewhere for such a ground, and to the third candidate for what is distinctive about authoritative reason-giving. 2.3: Candidate Feature 3: Identity I submit that the distinctness of authoritative reason-giving is found not only in the first feature, involving an authoritative directive that expresses an intention to give someone a reason, but in the ground of the reason: namely, the identity of the person who issues the directive. More specifically, authoritative reasons always appear to be grounded in some relationship or other that the person issuing the directive has to the addressee. Consider again the mother who, when asked by her son why he must obey her command, instinctively replies, “Because I’m your mother and I said so.” While her reply here is glib, there is a crucial insight to be gleaned from this sort of response into an essential aspect of authoritative reason-giving. Even if obeying his mother’s command is in the child’s best interest, the child’s obligation to obey is one that is grounded first and foremost in the fact that it is his mother who has made a demand. It is because the woman is the boy’s mother, 52 and because the boy has the relationship to her of being her son, that it makes sense to say that she has the power to impose an obligation on the boy to do as she says. There may be various other conditions and limits on the mother’s authority—for instance, we might think that the mother can’t, qua legitimate authority, command her son to do anything immoral or excessively burdensome—but the ground of her authority clearly seems to be her relationship to the boy and her identity as his mother. Moreover, this seems to be a ubiquitous feature of authoritative demands, commands, and so forth. Of course, this feature may be implicit in many cases; it would sound odd for the captain of a ship to tell the first mate, “Set course for that island, and do so because I’m the captain and I told you to.” But however pragmatically obvious (and therefore odd) such a demand might sound, it would make explicit the basis of the demand that is already understood in normal circumstances. Indeed, this appeal to the identity of the speaker and the fact that she has made a demand might be explicit without oddity in formal cases, as in a royal decree that requires subjects to bow down quite literally in the name of the queen. In short, authority requires standing. Regardless of explicitness, however, I submit that we can recognize cases of practical authority as being distinguished—at least in part—by the fact that, in each case, insofar as the speaker in question is seeking obedience out of “respect for authority” and not, say, out of fear, the appeal depends essentially on presupposing that the identity of the person giving the command is sufficient to ground an obligation for the addressee to do as commanded. In short, demands that purport to give someone an obligation that appeals to “respect for authority”—which as a group we can call authoritative directives—involve an essential appeal to the speaker’s identity vis-à-vis that of the addressee. I will say more in section 3 about the standing to give reasons and different ways of cashing out the concept of ‘identity’, and why it makes most sense to think of the identities and relationships that ground practical authority in terms of social practices and institutional roles. But identity in the sense just sketched clearly seems to be a crucial aspect of many, if not all, paradigmatic cases of legitimate authority. 2.4: Candidate Feature 4: Obligation So, are the features of being an identity-related reason, and being given by means of the expression of an intention to give such a reason, sufficient to pick out what is distinctive 53 about the reasons that someone with legitimate authority gives us? As I mentioned above, it is common in the literature on practical authority to restrict the concept of legitimate authority to the ability to impose obligations, as opposed to other sorts of practical reason- giving (e.g., that involved in requests, which typically do not impose obligations to do as requested). For instance, Marmor claims that what makes authoritative reason-giving “unique” is “the fact that those reasons are of an obligatory nature.” 88 This sort of claim is widely accepted in the literature. But as intuitive as this claim may be, it is possible to challenge this view. This is so in particular because, as we will see in the next section, it seems possible to give identity-related reasons that do not constitute obligations, for instance by making requests, invitations, and so forth. So there is at least a prima facie worry that the sort of phenomenon I am identifying here as distinctive of authoritative reason-giving involves a class of reason-giving that is broader than merely the imposition of obligations. Thus, although many authors such as Raz and Marmor simply take this to be a conceptual truth about practical authority, in Chapter 6 I will offer an argument for why, if identity-related obligation-giving is in all other ways analogous to other forms of identity-related reason-giving, it may not make sense to restrict our conception of authoritative reasons in this way. For the sake of simplicity, however, I will restrict discussion of legitimate authority to the power to impose obligations and I will proceed in the following as if this is a defining feature of the reasons given by legitimate authorities. To sum up this section, we have identified at least the following plausible candidates for positive features that make authoritative reason-giving distinct: robust reason-giving, where the reason-giving depends essentially on the formation and communication of an intention to give a reason; the identity of the person giving the reason vis-à-vis the identity of the person to whom she is giving the reason; and the imposition of an obligation. As I mentioned earlier, these are not necessarily rival or mutually exclusive features of authoritative reason-giving. Rather, these features seem to constitute an illuminating gloss on the essential aspects of the reason-giving involved in legitimate authority. Putting these features together, we can summarize this discussion as follows: legitimate authorities have the power to impose identity-related obligations by expressing an intention to do so. 88 Marmor, Philosophy of Law, (Princeton, NJ: Princeton University Press, 2011), 63. 54 3. Identity-Related Reasons As it is phrased, Premise (2) does not include any mention of institutional facts, institutional roles, or institutional obligations. This is not an oversight or because I take the institutional aspects of authoritative reason-giving to be inessential. Rather, the aim of my argument in this particular chapter is to lay the foundation of a case for the institutional nature of legitimate authority, by arguing that the independently characterized aspects of authoritative reason-giving just discussed are best explained in terms of institutions, institutional roles, and so on. I will say more about institutions and roles in the next section, but for now I want to explain what I mean when I say in Premise (2) that a reason is “identity-related.” The term ‘identity-related reason’ is one that comes from Marmor, who uses it in passing as a way of referring to what is sometimes called a “content-independent” reason for action. 89 In “An Institutional Conception of Authority,” Marmor explains content- independence in terms more or less identical to the first candidate feature described in the previous section, involving the recognition of the utterance of a directive as itself a reason for action. In other words, the fact that an authority issued a directive “is taken to form at least part of the reason for the subject to do as directed,” regardless of the content of the directive. 90 This description in terms of the way in which a directive (or, for Enoch, the expression of an intention 91 ) is a way of giving a reason seems to be an apt way of capturing content-independence, but it is not what I intend by the use of the term ‘identity-related’. That is because it would be a mistake to equate content-independent reasons and identity-related reasons, and so we have to be careful with the terminology here. Crucially, there seem to be other ways of giving content-independent reasons that don’t have to do with grounding a reason in one’s identity or any sort of authoritative relationship or standing. For instance, Raz claims that threats of harm and offers of benefit are both ways of giving content-independent reasons. 92 If someone tells me, “I will kill you unless you do x,” that is a reason for me to do x, regardless of what x is (for at least a wide range of ways of 89 Marmor, Philosophy of Law, 62. 90 Marmor, “An Institutional Conception of Authority,” 240. 91 Stefan Sciaraffa also argues for a view on which an agent has a content-independent reason just in case someone’s intention that she φ is a reason for her to φ, as well as providing a helpful overview of various views of the nature of content-independent reasons, in his “On Content-Independent Reasons: It’s Not in the Name” (Law and Philosophy 28, (2009): 233-260). 92 Raz, The Morality of Freedom, 36. Raz also mentions requests as a content-independent form of reason-giving. We might plausibly include other types of speech act here as well, such as invitations, petitions, and so forth. The way in which the reason for action is content-independent in the case of requests or invitations, however, is plausibly identity-related: I have reason to go to the party because my friend asked me to. 55 filling in x). But, as we have seen, both threats and offers are decidedly poor candidates for what is involved in authoritative reason-giving. In particular, the reasons given in these ways do not depend on the identity of the person making the threat or offer, but on the probable consequences for non-compliance. Thus, although it does make sense to categorize identity- related reasons as a type of content-independent reason, the two concepts should not be identified. 93 So what is an identity-related reason? I will be using the term identity-related reason to refer to any reason that is grounded in some way in the identity of the person giving the reason. For instance, it made sense in the earlier example for the mother to justify obedience to her son by citing the reason, “Because I am your mother.” An additional example from Marmor is that of a friend asking you to help him move, which you have reason to do only because it is your friend who asked. Or consider the well-known example used by Bernard Williams, in which the reason a man has to save his drowning wife instead of a similarly imperiled stranger is simply that, “She is my wife.” 94 Moreover, it is possible to construe identity-related obligations of this sort as stemming from the norms of the practices in which we participate. For example, Kate Manne suggests that we can understand Williams’s case in terms of the constitutive norms of the practice of marriage: “In particular, it is partly constitutive of a marriage (in the sense of an intimate partnership, rather than a merely legal union) that one does not let one’s wife drown over a ‘competing’ drowning stranger.” 95 Explaining the man’s reason to rescue his drowning spouse this way also has an additional benefit. As Manne notes, a view that grounds reasons in social practices “has the advantage of allowing agents’ practice-based motivating reasons to 93 Nothing essential hinges on whether the distinction I have made between content-independence and identity-related reasons here holds up. For instance, one might reject the idea that threats and offers constitute ways of giving content-independent reasons, and Raz himself acknowledges that the reasons in question bottom out in the objective probability of something good or bad happening to me conditional on my performing (or refraining from) some action. While it is true that neither the identity of the person threatening me nor the fact that I was threatened is itself part of my reason for action, content-independence can be helpfully thought of in terms of whether the very same consideration (whether it is the identity of someone in an authority relationship over me, or the likelihood of harm coming to me) would have been a reason to do X or Y or Z, even though in this particular case I have been ordered to do X. Looked at in this light, the conditional occurrence of the outcome communicated by threats and offers seem to have content-independence for a range of possible actions I could have been ordered to do: the likelihood of harm coming to me would have been just as much a reason to do Y if that’s what the person threatening me had ordered me to do. 94 In fact, although Williams is typically credited with this example, he explicitly attributes it to Charles Fried (cf. Fried, An Anatomy of Values, (Cambridge, Mass.: Harvard University Press, 1970), 227, cited by Williams in “Persons, Character, and Morality,” in Moral Luck (Cambridge: Cambridge University Press, 1981): 1-19, 18). 95 Kate Manne, “On Being Social in Metaethics,” 61, emphasis in original. 56 count as normative reasons proper.” 96 Thus, in explaining a parent’s reason for taking care of her child, “we will say that one’s real reason is simply that this is what parents are required to do.” 97 In particular, if this is correct, it would allow us to avoid attributing widespread ignorance of the normative reasons that in fact justify agents’ behavior, and to also avoid having to say that agents frequently act from reasons that do not justify their behavior. Thus, while it is typically helpful to place the emphasis on the identity of the person giving the reason, it may be more precise to say that an identity-related reason is grounded in the identity that the person giving the reason has vis-à-vis the person to whom the reason is given, and moreover in the fact that these identities are roles that a part of a shared social or institutional practice in which both parties are participants. Notice that each of the above reasons involves an identity that a person has only in relation to one or more other persons: a mother is someone’s mother, and they are both members of a given family; a wife is someone’s wife, and both are participants in the social practice of marriage; and a friend is someone’s friend, where both are participating in the practice of friendship. Making this nuanced relationship explicit is not always essential in explaining someone’s role-based obligations, but the fact that the identities relevant to authority are typically understood as relationships to other people within a social or institutional practice will be important later as a piece of evidence in support of the claim that authority is essentially structured by social practices and institutions, joint participation or membership in which explains the basis of the authority relationship. 4. Defining Terms in Premise (3) In this section, I will lay out the concepts that are necessary for cashing out the identity- related reasons involved in authoritative reason-giving in terms of institutional roles. Having these concepts in place will put us in a better position to appreciate, over the course of this dissertation, why an institutional gloss on the giving of identity-related obligations makes more sense than any alternative conception. It will be assumed that Premise (2) is true, and authoritative reasons are thus already granted to be identity-related reasons. Before launching into a defense of Premise (3), it is important to define several terms. Following Marmor, I take a social or institutional practice to be any norm- or rule- 96 Ibid., 64. 97 Ibid., 64. 57 governed activity involving multiple participants. I will use the terms ‘social practice’ and ‘institutional practice’ interchangeably, and I will refer to both as ‘institutions’. 98 Kate Manne helpfully suggests that we understand social practices as involving “multiple agents, who coordinate their actions with respect to one another, and who interact in the process, rather than merely doing things in tandem.” 99 Thus, a baseball game is distinct from a group of people who all happen to be playing online solitaire on the same website at the same time without interacting. In claiming that social practices are “rule-governed,” I understand the participants in a ruled-governed activity recognize that the rules of the activity purport to give the participants reasons (and thus to be normative for them) in virtue of their participation in the activity. Chess, for instance, is a rule-governed activity, and participants in the game of chess take the rules of chess to be normative and to give them certain reasons, e.g., to try to checkmate the opponent’s king, and certain obligations, e.g., not to castle if one has already moved one’s king, in virtue of their participation in the game. Moreover, rules of this sort at least partly, if not entirely, constitute the practice. Thus, the practice of chess is individuated from other games by the sorts of rules just mentioned. Beyond this minimal definition, however, I do not wish restrict the notion of an institution unnecessarily. It will be an important question later whether this notion is broad enough to accommodate all putative cases of legitimate authority, and I argue in Chapter 6 that it is, but for now it makes sense to begin with as inclusive a notion as possible. Next, it is essential to say what an institutional role consists in, and how institutional roles relate to the identities that are the ground of the identity-related reasons discussed in Premise (2). Since I am explicitly not presupposing that legitimate authority necessarily involves institutional roles, it is fair that my definition of ‘institutional roles’ can be stipulative (as indeed can the notion of ‘institution’ just introduced). Thus, I will offer the following definition: institutional roles (or, more broadly, roles in social and institutional practices) are ways of participating in social practices such that the participant is subject to particular rules. This a very broad characterization, but social practices and institutions are varied enough 98 Cf. Marmor, “An Institutional Conception of Authority,” 248. Marmor takes an “institutional practice” to be distinguished from a “social practice” by the presence of the following two features: first, an established formal mechanism for changing the rules of the practice; and, second, established mechanisms for monitoring compliance with rules and reacting to non-compliance. I don’t take either of these features to be relevant to whether it is possible to have practical authority within a given practice, or to whether it makes sense to understand legitimate authority in terms of either social or institutional practices, and thus this distinction will not be of concern in what follows. 99 Kate Manne, “On Being Social in Metaethics,” 53. 58 that a broad definition of this sort is necessary to capture the phenomenon I am interested in. For instance, the social practice of tennis can have various roles: a player is subject to certain rules, such as not striking the net during play, whereas an umpire is subject to different rules, such as making a determination to the best of her ability whether a ball landed outside of the lines and announcing it to the players. The notion of an institutional role—such as that of a judge, a parent, a teacher, a legislator, and so forth—should be intuitively familiar, but it is nonetheless helpful to be explicit about the way in which being subject to a certain set of rules in a given institution structures and defines what a role consists in. Hershovitz claims that “Roles have normative attributes – rights, powers, obligations, and so on.” 100 This formulation, however, is less perspicuous than putting the point in terms of being subject to certain institutional rules which other participants may or may not be subject to. Hershovitz’s formulation of this point also risks confusion between two senses in which rights, obligations, and the like might be normative. The first sense is that in which we talk of the normativity of reasons, which Parfit has called the “reason- involving” sense of normativity. This is the sense, presumably, in which Hershovitz asks whether certain roles have what he calls “genuine normative bite.” 101 His asking this question, however, reveals that the “rights”, “obligations,” and so forth that he refers to as attributes of roles are not normative in this sense. Rather, they are normative merely in the sense that a rule—the sort of rule we find in social and institutional practices—is normative. The rules of a game, for instance, are normative only insofar as one has reason to play, or is committed to playing, or is already participating in the game to some extent. Again, following Parfit, we can call this the “rule-involving” sense of normativity. With this distinction on the table, it seems clear that the “normative attributes” of roles that Hershovitz is referring to are only normative in the latter, rule-involving sense, and my definition of institutional roles helps to highlight this feature while avoiding ambiguity. It will, however, be helpful to be able to speak of obligations that attach to roles, and this is one place where Hershovitz’s terminology, closely tracking that of Michael Hardimon, is helpful. 102 For my purposes, a role obligation simply consists in the fact that a participant in a 100 Hershovitz, “The Role of Authority,” 12. 101 Hershovitz, “The Role of Authority,” 13. 102 Hardimon defines a “role obligation” as “a moral requirement, which attaches to an institutional role, whose content is fixed by the function of the role, and whose normative force flows from the role” (“Role Obligations,” The Journal of Philosophy 91(7), (1994): 333-363, 334). I discuss Hardimon’s view in Chapter 2. 59 social practice is subject to an institutional rule that requires her, as a certain type of participant in the social or institutional practice (that is, in virtue of occupying a certain role in the practice), to perform a certain action. We can also call these institutional obligations, in order to make it clear that they are obligations are that normative in the rule-involving sense, but not necessarily normative in the reason-involving sense. The idea of role obligations should be intuitive. In Ethics and the Limits of Philosophy, Bernard Williams notes the way in which “duties have characteristically been connected with a role, position, or relationship…. [I]t has been in every society a recognizable ethical thought, and remains so in ours, that one can be under a requirement of this kind simply because of who one is and of one’s social situation.” 103 Accordingly, the role obligations we have are typically understood in terms of our social identities and the communities or social groups to which we belong. In Law’s Empire, Ronald Dworkin observes, “The history of social practice defines the communal groups to which we belong and the obligations that attach to these. It defines what a family or a neighborhood or a professional colleague is, and what one member of these groups or holder of these titles owes to another.” 104 Thus, according to Dworkin, not only the content of our role obligations but also the boundaries of both certain institutions and the criteria of institutional membership have their basis in social practice. But, again, it is important to maintain a clear idea of what we are talking about when we speak of institutional obligations in the rule-involving sense, so as to avoid presuming that role obligations are normative in the reason-involving sense. This distinction should not, however, be a wholly unfamiliar thought. For instance, in the example of challenging someone to a duel, Darwall calls the obligation created by the challenger a “de facto” obligation (one which is grounded in the fact of the convention that partly constitutes the practice of dueling), “so the thought is not…that any genuine obligation followed from the existence of the challenge.” 105 Thus, from the “perspective” of the social practice of dueling, the nobleman has an obligation to take up the challenge. But it doesn’t follow that he has a moral obligation to so; in fact, he might have a moral obligation to his wife and children to live in social disgrace and avoid risking death. Either way, we can describe the obligation he has as a member of a certain social class or as a participant in a 103 Williams, Ethics and the Limits of Philosophy, (Cambridge, Mass.: Harvard University Press, 1985), 7. 104 Dworkin, Law’s Empire, (Cambridge, Mass.: Harvard University Press, 1986), 196. 105 Darwall, SPS, 54. 60 certain institution in terms of social facts. Thus what Darwall calls a “de facto” obligation here I propose we call an institutional role obligation (or institutional obligation for short). Moreover, it makes sense in a case like that of having an obligation to duel to refer to the “perspective” or “point of view” of an institution in order to refer to the social facts that constitute or determine an institution’s rules, the obligations that participants in an institution have in virtue of those rules, and so on. This perspective needn’t be identical with that of any of the participants in the institution, and we shouldn’t expect the role obligations one has from the perspective of an institution necessarily to line up with one’s genuine moral, rational, or other obligations. Rather, the essential idea in speaking of an institutional perspective is that it is possible to describe the role obligations that a person has from either an “internal” point of view, to borrow the language of H. L. A. Hart, from which institutional role obligations are normative for the person occupying the role, or from what we might call a “social-factual” point of view, from which we don’t take a practical stand on the normativity of someone’s institutional obligations. To adopt the former perspective is to adopt the normative perspective of an institution and to take the requirements of a person’s role in the institution as genuine reasons or obligations. The latter perspective, however, allows us as neutral observers to specify an institutional role’s requirements in descriptive terms without taking a stand on their normativity. Thus, it is in general possible to interpret the role obligations that a person has “perspectivally,” in the same way that Scott Shapiro claims we can do with legal obligations: “[T]o say that one is legally obligated to perform some action need not commit the asserter to affirming that one is really obligated to perform that action… The statement may be understood to mean only that from the legal point of view one is (morally) obligated to perform that action.” 106 This is similar to the way in which Hans Kelsen claims that the “legal point of view” is a perspective that can be described by “legal science,” such that “even an anarchist, if he were a professor of law, could describe positive law as a system of valid norms, without having to approve of this law.” 107 Applying this idea to role obligations 106 Shapiro, Legality, 185. In the discussion of the rule-involving sense of normativity in Introduction, I also cited Philippa Foot, who introduces a similar idea of what one should or ought to do from the point of view of a set of norms or rules (Foot, “Morality as a System of Hypothetical Imperatives,” 309). For an updated discussion of this idea and a cogent defense of an end-relative theory of the meaning of ‘ought’ statements, see Finlay’s Confusion of Tongues, esp. Ch. 3. 107 Kelsen, Pure Theory of Law, (Berkeley, CA: University of California Press, 1967), 218n, as cited in Joseph Raz, The Authority of Law, 2 nd ed. (New York: Oxford University Press, 2009), 140. 61 in general, the idea is that we don’t have to determine whether or not a person’s role obligations are normative in the reason-involving sense in order to say what they are, since it is possible to describe the role obligations a person has independently of their normativity. To head off a certain sort of worry, it should be noted that the existence of role obligations in a descriptive sense that aren’t necessarily normative in the reason-involving sense doesn’t seem to be especially controversial from a generally positivist perspective. It is one of the great virtues of the positivist tradition in legal philosophy, for instance, that we can distinguish between the legal obligations a person had, say, in Stalin’s Russia, which we can describe in terms of social facts, and the moral obligations that that same person had, and that we can at least in some cases plausibly show that these two types of obligations come apart, even if the law doesn’t recognize this distinction. This is a deeply appealing and intuitive thought, and has been defended at length by many positivist legal philosophers, including H. L. A. Hart, Joseph Raz, Andrei Marmor, Scott Shapiro, and many others. Moreover, it is plausibly a distinction we can draw with regard to institutional obligations of any sort, in the way Darwall does with respect to dueling. Thus, unless one thinks that it is impossible to have institutional obligations without also having corresponding normative obligations, or that institutional obligations are simply a species of normative obligation 108 , we shouldn’t take the existence of institutional obligations in the rule-involving sense necessarily to have normative implications in the reason-involving sense. But for the reader who is unsympathetic to the positivist project, I want to be clear that the point of drawing this distinction is merely to highlight for contrast the descriptive nature of the social facts that determine one’s institutional role obligations, and that nothing essential depends as far as my thesis is concerned on proving that we can have non- normative institutional obligations or that there are examples of illegitimate institutional authority. My claim here is simply that institutional obligations are conceptually distinct from normative obligations. While I think that it is quite clearly possible to have institutional obligations without corresponding normative obligations (and that the same is true about 108 Some philosophers have defended a view of this sort with respect to particular domains. Natural law theorists, for instance, might think that a putative legal obligation, if it is immoral, ipso facto is not in fact a genuine legal obligation. Mark Greenberg also defends a view, which he calls the Moral Impact Theory, according to which legal obligations simply are a certain subset of our moral obligations, namely, those moral obligations that are the result of the operation of legal practices and institutions in certain ways (Greenberg, “The Moral Impact Theory of Law,” Yale Law Journal 123(5), (2014): 1288-1342). Also, in Chapter 2, I discuss a view on which institutional obligations can be interpreted as real but conditional obligations. 62 describing institutional authority without presupposing legitimacy), I am only insisting here on the possibility of describing all of our role obligations in terms of social facts in a way that does not essentially depend upon presupposing the normativity of those obligations; but this conceptual separability does not for my purposes require their separability in fact. In other words, even if it turns out that we only have institutional obligations that are in fact normative for us in the reason-involving sense, this would not be a problem for my view. Either way, I submit that it makes sense to describe the obligations one has from the point of view of an institution entirely in terms of social facts. If so, this strongly suggests that the social facts that constitute or determine that one has an institutional obligation, say, to accept a challenge to duel are, by their very nature, independent of whether there is any justification for taking as normative the obligations that attach to one’s institutional role. 5. Why Institutional Roles Matter Before attempting to cash out the concepts of identity and identity-related obligations involved in legitimate authority in terms of the concepts of institutional roles and role obligations just introduced—which is the essence of Premise (3)—it is worth pointing out the way in which my defense of Premise (3) seeks to fill a crucial gap in the current literature, in particular with regard to a role-based account of practical authority. Certain key insights, in some sense, are already on the table, but have been presented as an obviously true picture of how authority works without being adequately argued for. For instance, Hershovitz simply asserts that the way to understand authority is in terms of social practices: “Authority is a feature of roles embedded in practices.” 109 Yet he has not provided any general argument for why we should think that authority is necessarily a feature of roles. Hershovitz has a section of his paper “The Role of Authority” entitled “Why Roles?” (pp. 16ff.), and there he lists what amount to three putative benefits of his view. Downstream upshots, if explanatory fruitful enough, might constitute a sort of argument for a view, but in this case they do not substantially bolster Hershovitz’s central claim. Hershovitz’s three reasons for viewing authority in terms of roles are the following. First, he claims, justifying authority in terms of roles “encourages us to see the whole field,” by which he means that roles have other attributes than merely the attributes of authority. 110 This may 109 Hershovitz, “The Role of Authority,” 11. 110 Hershovitz, “The Role of Authority,” 16. 63 well be true, and it would follow from an argument for authority as essentially situated within social and institutional practices, but the mere assertion of this claim is a not an argument for why we ought to think of authority in terms of roles. Second, Hershovitz claims, seeing authority in terms of roles “underscores that authority is not a feature of the world apart from our practices.” 111 He thinks this marks a difference between theoretical and practical authority, the former of which Hershovitz thinks attaches to personal characteristics (such as knowledge) whereas the latter attaches to roles. The difference between these two phenomena is indeed a topic worth consideration, and I attempt to characterize this difference at length in Chapter 4. Unfortunately, however, the mere assertion of a difference here does not constitute an argument for Hershovitz’s central thesis. Finally, Hershovitz thinks “it is worth emphasizing that authority is a feature of roles because people can come to identify with them.” 112 This point is rather opaque, but Hershovitz seems to be claiming that identification with a role can itself constitute a reason for complying with the norms of a role in addition to any other reasons one might have for participating in the practice or occupying that role. For instance, someone might take herself to have a reason to obey the sergeant’s order not only because she has signed a contract with the Army, but also because she conceives of herself as a soldier and that is what a soldier does. The support for this claim, however, seems simply to be a citation of Hardimon asserting more or less the same point. 113 This is a topic worth exploring, and in Chapter 2, I argue that reasons to identify with a role are an essential element in the normative justification of the institutional obligations that authorities impose. But, once again, simply asserting this does not constitute an argument for Hershovitz’s claim that authority is a feature of roles. Thus, while these three “reasons” are interesting observations to make about the relationship between roles and authority that Hershovitz posits, and each of them touches on a feature of a role-based view of authority that is worth discussing, we are left without an argument for why we should adopt that picture in the first place, even if we think that Hershovitz’s picture is ultimately the right one to have. So if we want to convince someone 111 Ibid., 17. 112 Ibid. 113 Cf. Michael Hardimon, “Role Obligations,” 360. I argue in Chapter 2 that Hardimon’s particular account of the phenomenon of “role identification” is not plausible as a source of genuine authoritative obligations, although the account I defend involves the closely related idea of reasons to identify with a role. 64 who does not already share a role- or institution-based approach to authority, we will have to do better in terms of offering reasons for thinking that adopting such a perspective is the right way to think about practical authority, and about legitimate authority in particular. In section 2 above, I offered a sketch of what I take to be distinctive about the reasons legitimate authorities give us that was, as far as possible, uncontroversial and did not build in any assumptions that relied on features of institutions or institutional roles. What that accomplished was to bring to the fore the way in which authoritative reason-giving depends essentially on the identity of the reason-giver. The crucial question in this section is now whether it makes sense to understand identity-related reasons in terms of institutional roles, that is, roles embedded in and structured by social practices. We can begin by recalling that authoritative reasons in the examples cited above depended on roles that were defined in terms of their relationship to another person: the identity of a mother as such only makes sense vis-à-vis the identity of a child, and thus the power to give identity-related reasons qua mother only makes sense in the context of a relationship structured in terms of the social practice of the family. And similar considerations apply for the other examples of being a wife and giving reasons to one’s spouse, or being a friend giving reasons to one’s friends. Thus, the fact that legitimate authority involves the giving of identity-related reasons makes salient both the identity of the person giving the reason as well as the person to whom it is given. But even if it is plausible that an identity such as being someone’s parent is an essential part of what in fact grounds (and is conceptually presupposed by authoritative directives to ground) legitimate authority, why does my particular gloss on this idea in terms of institutional roles make sense? Isn’t parenthood, for instance, a biological notion? To begin to see why institutionally constructed roles make the most sense as the ground of legitimate authority, even in the case of parenthood, consider the following example. Imagine a society in which children are raised communally. To simplify life for everyone, children are raised in small groups and the several biological parents of the children take turns coordinating activities for their local group, with a different parent being in charge of the children every day. Parent M is in charge every Monday, parent T is in charge every Tuesday, parent W is in charge every Wednesday, and so forth. Next, imagine that it is Monday, and parent W, who is the biological parent of child C, tells her biological child to do something. Within the context of this social practice, the child would be perfectly 65 within her rights to refuse to do so, saying to her biological parent, “No, it’s not Wednesday! You can’t tell me what to do! It’s Monday. It’s M’s day to be in charge!” This seems to be a clear example of how legitimate authority tracks (or at least hypothetically might track) socially and institutionally constructed identities and roles—in this case, the role of communal-parent-in-charge—which are not necessarily tied to biological roles. And this example is especially helpful because the practice is question is unfamiliar and we are unlikely already to have settled intuitions about it. Moreover, it does not seem difficult to elicit similar intuitions about how legitimate authority tracks the institutional role of legal guardianship instead of a biological parenthood, in cases where biological parents are abusive or have abandoned their biological children. It seems intuitive that a father who abuses his biological children does not have legitimate authority over them; and, in similar way, it does not seem problematic to attribute legitimate authority to a loving adoptive parent. Thus, to the extent that it makes sense to say that parents have legitimate authority over their children, the concept of ‘parent’ we are using does not seem to track biological parenthood; rather, the concept that does track the rights and duties we associate with being a parent (including having the authority to tell children what to do) seems to be a socially constructed role that is essentially grounded in the social practice of the family (which is, admittedly, nebulous and may vary with time and place). But in addition to its being independently plausible that we need to appeal to institutions to explain ordinary cases of legitimate authority, it is also my claim that an answer to Darwall’s insufficiency objection to Raz can be found, for a wide variety of cases, by appealing to institutional roles. In order to see how an account of legitimate authority that appeals to institutional roles is well positioned to deal with cases that Raz’s view cannot, allow me to walk through an example in which the best explanation of when and why someone has legitimate authority appeals essentially to institutional roles and the institutional relationship between those roles. Consider again the example of parental authority, which has already been discussed briefly. Whether we have in mind a more familiar one- or two- parent family arrangement, or the sort of communal arrangement just mentioned involving parental authority that rotates based on the day of the week, it is not hard to imagine cases where the only relevant difference between two adults who are equally situated in terms of their ability to give a child directives such that the child would better comply with the reasons she has (whether 66 instrumental, categorical, directive-dependent, or otherwise) is that one of the adults occupies the role of parent in a family, understood here descriptively as a social practice and not necessarily biologically, in which the child also occupies a role. In such cases, despite being equally well situated, it seems clear that, if either adult has legitimate authority over the child, our intuitions tell in favor of the adult who occupies the role in the same family (that is, the same social practice) as the child. Moreover, this seems to be the case even when there may be another adult who is not part of the same institution who knows even better than the person who occupies the role of an authority within the social practice of the family. For example, your neighbor can’t tell your daughter when to go to bed or what to eat for lunch (in the sense of being able to give her an obligation by her say-so in virtue of intending to do so), even if your neighbor is a pediatrician who knows more than you do about the needs of children with respect to sleep and diet. This isn’t to say that the pediatrician’s directives can’t give your child reasons: if the child asks why she should do what the neighbor says, there might be an explanation available is in terms of her own ends: it will keep her safe or healthy or so forth. But there is not an explanation available for why your child should follow the neighbor’s directives that appeals to authority, that is, to identity-related reasons in the way that the explanation because I am your parent can. (For the purpose of this example, we can set aside cases of communal parenting or cases in which you’ve directed your child, as her parent, to do as the neighbor says.) And the presence of such an explanation in terms of identity-related reasons for why the child should do as she is told in the case of the parent but not that of the neighbor is the essential point of the example. It’s not the case that both you and your neighbor have some claim to have authority over your child, and that your occupying the role of parent gives you an extra advantage that weighs in your favor when we’re trying to figure out who the child has most reason to obey. Rather, it’s that only the directives of the person who occupies the institutional role of a parent have this feature. Of course, there may be necessary conditions on having legitimate authority in addition to occupying a role within the same social practice or institution as the person over whom you have legitimate authority. For instance, it is a plausible constraint on legitimate authority that one cannot by one’s say-so obligate others to do things that are obviously immoral, irrational, or self-destructive, to name a few candidates. And even if the rules of an 67 institution permit immoral authoritative directives, it is not obvious that they can create genuine obligations. If you were to direct your child to light a cat on fire, for instance, the immorality of the directive might undermine what would otherwise be legitimate parental authority. So it might be controversial what the minimal standard is for legitimate parental authority. Perhaps the directives of the person occupying the role of parent have to be, as Raz puts it, “on the whole wise and morally sound.” But this last point is a minor one. The crucial point that the example of the parent and the neighbor is meant to illustrate is that having legitimate authority doesn’t make sense outside the context of an institution. Another way to see why institutional roles are necessary for explaining legitimate authority is the following. Without assuming the truth of Hershovitz’s picture, we can fruitfully think through the implications of identity-related reasons having the structure that they do. In particular, we can ask whether it is possible to imagine identity-related reason- giving apart from thinking of it as presupposing roles that people occupy in social practices. And, for paradigmatic instances of identity-related reason-giving, the answer seems to be that we cannot: the reasons legitimate authorities give us seem to be fundamentally grounded in identities that are essentially mediated by and structured in terms of particular social practices and institutions. This is most obvious in paradigmatic cases where talk of authority is least controversially at home, such as in the military and the law, which also happen to be highly complex social institutions with clearly defined role structures. Crucially, in such paradigmatic and obviously institutional cases, someone who claims to have authority is claiming to be able to give others a distinctive identity-related type of reason, one which presents the speaker’s institutional role as itself a reason (if not the reason) that the addressee has to do as the speaker says. In other words, what is distinctive about authoritative directives in such cases is that they necessarily presuppose that the speaker occupies an institutional role such that, given the addressee’s institutional role vis-à-vis that of the speaker, the speaker is in a position to give the addressee identity-related reasons by her say-so in virtue of intending to do so. Moreover, it is a distinctive feature of these paradigmatic institutional cases that the speaker presupposes the ability to give the addressee identity-related reasons by means of altering the institutional obligations that the addressee has. In fact, it would be absurd if authoritative directives in institutional contexts did not involve a presupposition of precisely this sort. To see why, consider a lawmaker who thought that signing a bill gave the public an identity-related reason to buy health insurance 68 that they didn’t have before, but that his doing so did not in fact alter the laws on the books; or consider a slightly different case in which he thought that the act of signing a bill did not express the presupposition that he had the ability to alter institutional facts about the law, and hence to alter residents’ legal obligations, precisely in virtue of the institutional role he occupied. Clearly, we would consider the lawmaker to be conceptually confused about what he was doing if he did not take his institutional role as legislator to be the basis of the reasons he gives the public; and he would be equally confused if he did not recognize that it is in virtue of his ability to alter the institutional facts about residents’ legal obligations that he is able to give them identity-related reasons for action. The absurdity of denying the sorts of presuppositions, which I claim are present in authoritative directives and are most obvious in highly structured institutional contexts, is suggestive. It is especially suggestive with respect to the perspective that someone who claims to have legitimate authority must adopt toward what he is doing—not necessarily what he must believe about himself (since it seems possible to purport to have legitimate authority in bad faith), but with respect to how he is necessarily presenting himself, as well as how someone who accepts his claim of legitimate authority must view him—namely, as having both the power to give institutional obligations as well as having the power thereby to give genuine obligations. More precisely, it suggests the following picture: that those who issue authoritative directives necessarily present themselves as occupying a certain institutional role (e.g., a legislator) in virtue of which they have the ability to alter others’ institutional obligations (e.g., legal obligations); that in doing so they present themselves as having the ability to alter others’ normative obligations (in the reason-involving sense); and, finally, that they present themselves as having the latter ability in virtue of having the former ability. If this is right, then to claim to have legitimate authority is to claim that one has the power to give obligations in the reason-involving sense by means of giving obligations in the rule-involving sense, and that the latter ability depends on occupying a particular institutional role. In issuing authoritative directives, then, one not only acts “under the guise of legitimacy,” as Raz puts it 114 , but under the guise of institutional authority as well. 114 Raz, “The Problem of Authority: Revisiting the Service Conception,” 128. 69 6. How Institutional Authority Works As we have just seen, legitimate authority in the context of institutions such as the law or the military clearly presupposes that one has what we can call institutional authority, that is, the ability, in virtue of the role one occupies in an institution, to intentionally change the role obligations others have from the perspective of that institution. The definitions introduced above give us the resources we need to understand what institutional authority consists in, and in this section I will sketch a more detailed picture of what institutional authority looks like. Subsequent chapters will be spent defending this picture, and the explanation of legitimate authority in terms of institutional authority that I posit, against various objections. Of course, not just any way of changing others’ institutional obligations will count as institutional authority. In particular, as we saw in section 2 above, legitimate authority—and thus the creation or alteration of role obligations in the form of institutional authority—must be both identity-related and intentional. In the rest of this section, I will outline the sort of communicative act that meets these criteria, and thus offers a picture of how legitimate authority is exercised within an institutional context. The primary way that a person’s institutional role obligations can be altered by someone else is by means of an effective. According to Bach and Harnish, effectives are “utterances that, when issued by the right person under the right circumstances, make it the case that such and such,” where this is due to the existence of a rule or convention specifying the relevant factors and their effects. 115 Thus defined, effectives are obviously a very broad category, and may overlap to some degree with the category of speech acts sometimes called performatives. 116 Among the things that effectives do, I take it, is to determine what we can call in general institutional facts, that is, what is the case from the point of view of an institution. For instance, 115 Bach and Harnish, Linguistic Communication and Speech Acts, 113. This is similar to J. L. Austin’s account of how, in order to perform certain acts with words (which he calls “illocutionary” acts), “There must exist an accepted conventional procedure having a certain conventional effect, the procedure to include the uttering of certain words by certain persons in certain circumstances” (Austin, How to Do Things with Words, (Cambridge, MA: Harvard University Press, 1975), 26). 116 There is some debate over whether performatives should be defined, for instance as Bach and Harnish suggest (“How Performatives Really Work,” Linguistics and Philosophy 15, (1992): 93-110), as statements that are rendered true in virtue of their utterance, or as a broader class that includes nearly anything that one might do or “perform” with or as the result of a speech act, and there is also some controversy over the degree to which performatives depend on the existence of some rule or convention for their realization. For our purposes, however, neither of these controversies affects the discussion of effectives as I am using the term here. For a helpful summary of these debates, as well as a discussion of the role of convention in performatives, see Andrei Marmor, Social Conventions, (Princeton, NJ: Princeton University Press, 2009), esp. 118-130. 70 when a priest or rabbi pronounces two people as married, she is bringing a legal fact into effect, as well as (frequently) a religious fact, to the effect that from the point of view of the respective institutions the two individuals are now married. Crucially for my purposes, both of these are examples of social facts, and, in particular, institutional facts: both from the point of view of the law, as well as the point of view of the particular religion, it is now a fact that the two people are married. Other examples of effectives determining what is the case from the point of view of an institution, and thus bringing a new social fact into existence, include a judge in a criminal court pronouncing a defendant ‘not guilty’, a coach in the NFL calling a timeout by making a T-sign with his hands, a dungeon master in Dungeons & Dragons pronouncing that a spell has no effect, and so on. All of these are cases of performing an effective that creates an institutional fact. Crucially, it seems clear that the ability to alter institutional facts by means of effectives depends on the institutional role occupied by the person who is attempting to do so. Notice that in each of the previous examples of an effective that creates or determines an institutional fact, whether it is a legal fact, a game-fact, or whatever it might be, the person who does so is only able to perform the effective in question in virtue of the particular role each occupies within the institution. A defendant cannot determine the legal fact of his being not guilty simply by pleading not guilty 117 , a football fan who runs on to the field cannot call a time out by making a T-sign with his hands, and a player in Dungeons & Dragons cannot make her spell have an effect by simply pronouncing that it does. We saw above that role obligations can be described in normatively neutral (i.e., rule- involving) terms as institutional obligations, that is, as obligations that a person has from the point of view of an institution. All we need to add to this is to point out that institutional obligations are plausibly a type of institutional fact—namely, the facts about what role obligations members of the institution have from the point of view of the institution—and we get the result that others can change our role obligations by altering institutional facts, and that they can do so by performing effectives. In fact, it seems quite common for others to change our institutional obligations in precisely this way. 118 117 He may able to bring into effect the legal fact of his guilt by pleading guilty; but even this determination of an institutional fact is typically the role of a judge. 118 It might be possible to effectively change the rules of an social or institutional practice in causally deviant ways, such as surgically implanting devices in the brains of all the members of an institution P which can be manipulated to have them all believe that the rules of P are such-and-such (and they go on to act on the basis 71 Of course, for a person to alter institutional obligations by means of effectives requires the existence of some further institutional rules or conventions that specify in what ways participants’ role obligations can be altered, by whom, and under what conditions. 119 It also requires that the person doing the altering be in a position to exploit such rules or conventions. So we are very close to seeing how institutional authority works if we focus on those effectives that both (i) determine others’ institutional obligations and (ii) depend on the speaker’s occupying a certain institutional role in order to bring the relevant sort of institutional fact into effect. In addition, it is a plausible requirement that institutional authority has to involve performing effectives intentionally. If so, some effectives that alter others’ institutional obligations will be more relevant for our purposes than others. For all that’s been said so far, someone might be able to alter others’ institutional role obligations accidentally, depending on the rules and conventions of an institution. For instance, imagine a kingdom in which the apparent “orders” the king gives while talking in his sleep count as law, since they are the words of the king, and that is the criterion for creating law in that particular kingdom. It seems entirely possible than an institution could have a bizarre institutional rule of this sort, such that someone could create role obligations for other members of the institution unknowingly or unintentionally. But I doubt we would say that this counts as a case of practical authority. After all, this procedure doesn’t seem any different in principle from an institutional rule according to which, whenever a random letter generator spits out a string of characters in the form of an imperative sentence, the members of the institution are obligated to comply with it. This is a conceivable rule, but we would not attribute authority to the machine. Instead, I propose that in order to count as an exercise of practical authority, an effective that creates an institutional role obligation must also express the intention to do so. In other words, it must be not only an effective, but also a directive: an utterance by means of which the speaker expresses the intention that her communicative act itself be taken by the of that belief). While this would arguably change the social facts, it would not constitute an exercise of legitimate authority, an essential part of which, I argue, involves altering institutional obligations by means of intentional communicative acts, as I go on to describe. 119 It may be the case that institutional obligations change gradually over time, as a result of changes in the ways institutional rules are understood and applied. For instance, the rules of etiquette and the obligations they impose can change over time without the work of institutional authority necessarily factoring into the story. (Thanks to Andrei Marmor for pointing this out.) 72 addressee as altering the addressee’s institutional obligations. As we saw earlier, according to Bach and Harnish’s taxonomy of speech acts, directives are speech acts that “express the speaker’s attitude toward some prospective action by the hearer and his intention that his utterance, or the attitude it expresses, be taken as a reason for the hearer’s action.” 120 For example, when a judge instructs the bailiff to take a witness into custody, she issues a directive—by which she expresses the intention that the bailiff take her utterance as an obligation to do what she says, given her identity as a judge. And the very act of her issuing this directive is what brings into existence an institutional fact to the effect that the bailiff now has an institutional role obligation, qua bailiff, to do as the judge directed. Thus the judge’s issuing the directive under the appropriate circumstances (as specified by the rules and conventions of the relevant institution) also constitutes an effective, since it makes it the case that, from the perspective of the relevant institution, the bailiff has an obligation to take the witness into custody. 121 In other words, institutional authority involves effectives that are also directives: it involves performing communicative acts that alter others’ institutional role obligations by altering institutional facts in virtue of expressing the intention to do so. One might object that laws can be passed into effect accidentally or unintentionally: a legislator might believe he is signing a letter to his mother when in fact he is signing a legislative bill, but that this would not make his signature any less valid (nor the change to the institutional rules thereby effected any less real). The way to respond to this objection is to point out that while the act of signing the document was in fact unintentional, the legislator nonetheless expressed an intention (albeit accidentally) to make the contents of the document he signed law. Thus, we can call any directive that purports to be an effective that alters others’ institutional role obligations an authoritative directive, thereby precisifying our notion of what counts as an authoritative directive and the conditions under which legitimate authority can be exercised in institutional contexts. 122 120 Bach and Harnish, Linguistic Communication and Speech Acts, 41. 121 This may be either a new obligation that the judge creates for the bailiff, or simply a particular completion of an open-ended general obligation the bailiff already has to comply with certain kinds of directives from the judge. Whether someone’s effectives involve creating new institutional obligations and others involve simply determining the facts about a previously indeterminate institutional obligation someone has may. For more on this point, see Chapter 6. 122 Nicholas Allott and Benjamin Shaer have argued that laws and legal notices in general have the illocutionary force of effectives that alter institutional facts, but that they lack the behavior-guiding illocutionary force of directives (“Some Linguistic Properties of Legal Notices,” Canadian Journal of Linguistics 58(1), (2013): 43-62). This seems highly unlikely as a description of the law; as I’ve just pointed out, it isn’t necessary for lawmakers to intend a law to have the force of a directive in order for it to have that force. But if a particular action were 73 7. The Limits of Institutional Examples Even if one is sympathetic to the argument presented at the beginning of this chapter, one may still have doubts. In particular, one might worry about how much we can infer from the examples of legitimate authority that I have relied on thus far, examples in which someone’s having legitimate authority depends essentially and uncontroversially on the elements of the institutional contexts in which legitimate authority is paradigmatically found. For even if there are cases of legitimate authority that clearly lend themselves to an essentially institutional interpretation that depends on appealing to roles that are structured by social and institutional practices, one might worry that there could be non-institutional cases of legitimate authority that do not display this type of dependence on institutional roles. I grant that nothing I have said so far rules this out as a conceptual possibility. But I take this to be a feature of my view, and not a bug. In order to avoid begging the question by building in institutional features from the start, I have chosen to avoid a straightforwardly deductive argument for the institutional nature of legitimate authority in favor of an inference to the best explanation. While this limits my argument in certain ways, it also gives it a theoretically broader appeal than it could otherwise have. As I noted in the Introduction, I am interested in giving an argument for an institutional view of authority that appeals to the necessary conditions for explaining legitimate authority, and not one that begins assuming that we can talk about authority in a legitimacy-neutral way. While I agree with the claim that there are features shared by cases of both legitimate and illegitimate authority, this is a claim that should be argued for and not simply taken for granted. And thus I have offered an argument in this chapter for the claim that legitimate authority has an essentially institutional structure. Taken together with the fact that illegitimate authority, if it exists in a positivist sense, plausible has an institutional structure of the sort I have just described, we have an argument for the claim that practical authority in a legitimacy-neutral sense is essentially institutional. The question, however, remains whether there is in fact always some social practice or institution in the background whenever there is legitimate authority and that serves as the ground of identity-related reasons of the sort I have argued are distinctive of legitimate to change a legal norm in a way that was not an instance of a directive (as Bach and Harnish understand the term), it would also for that reason not be a plausible instance of exercising institutional authority on my view. 74 authority. This is the one of the most difficult questions for my view of practical authority. The hardest examples will be simple, isolated, two-party interactions that seem to involve the exercise of legitimate authority but don’t obviously involve highly structured institutional roles. In fact, the apparent possibility of non-institutional authority is significant enough that I will spend much of Chapter 6 addressing different forms of this particular worry. By answering such objections, I will continue to marshal evidence in support of an institutional view of practical authority without presupposing that it is true. Thus, my task in the rest of this dissertation will be to argue, against various objections, that the best explanation of when someone has legitimate authority makes essential reference to the fact that someone who occupies a certain role in an institution creates an institutional obligation for someone else who also occupies a certain role in the same institution. 8. Conclusion It is widely held that legitimate authority, where it exists, involves the power to impose obligations on others, and that the reasons legitimate authorities give us are somehow different, particularly in the basis for those reasons if not also the kind. But it is not always clear what the uniqueness of authoritatively given reasons consists in. In this chapter, I began by offering an answer to this question, and I sketched a picture of what the distinct type of reasons that legitimate authorities give us are like. I argued that it makes sense to understand the reason-giving involved in legitimate authority in terms of the formation and expression of an intention to give someone else a reason, where the ground of this reason is the identity of the person giving the reason vis-à-vis the identity of the person to whom it is being given. I then claimed that in paradigmatic cases of legitimate authority, the identities and relationships that are the basis of the reasons given are essentially institutional in nature, and I proceeded to give an extended account of what identity-related reason-giving looks like in the context of institutions. In particular, I claimed that what is distinctive about authoritative reason-giving is that it essentially presupposes institutional roles and relationships as the basis on which one person can impose an obligation on another person. Ultimately, it is a consequence of my account of what is distinctive about the reasons given by legitimate authority that legitimate authority is essentially institutional in nature. If true, this claim has several additional consequences. First, it constitutes a clear 75 explanation of the uniqueness of authoritative reasons—namely, that they are grounded in and presuppose institutional roles and practices. Second, this conclusion gives us a basis for arguing that there is a common core to the notion of authority that is shared by both legitimate and illegitimate authority—namely, its essentially institutional structure. Finally, the institutional nature of legitimate authority entails the following necessary condition on having legitimate authority: namely, having institutional authority, which involves having the ability to alter other’s institutional obligations by performing an effective in virtue of occupying the relevant sort of institutional role. But several important tasks remain in order to complete the argument I have begun here. First, I will fill out the picture of legitimate authority sketched here, in a way that is distinct from other institutional accounts of authority. Thus in the next chapter I will argue that being subject to legitimate authority—i.e., having genuine identity-related obligations that stem from an institutional role—depends on one’s actually occupying the relevant sort of role and on one’s having independent reason to identify with that role. Then, in chapter 3, I address a potential objection according to which giving an account of legitimate authority is necessarily prior to any descriptive account of practical authority we might give. In reply, I grant the conceptual priority of legitimacy, while still arguing for the ontic priority of institutional authority, thus defending the claim that institutional authority is a necessary condition for legitimate authority. And in Chapter 4, I will argue against two conceptions of ‘authority’ that try to extend the concept over the both practical and the epistemic domains. Later, in Chapter 5, I argue against Darwall’s claim that practical authority must be understood in terms of an “irreducibly second-personal” circle of concepts. I argue that that the non-normative but second-personal structure of institutions, combined with the sort of external justification discussed in Chapter 2, can explain second-personal normativity. Finally, in Chapter 6, I argue against several of the most prominent examples of putatively non-institutional exercises of practical authority. It is true that we cannot simply infer the institutional nature of all legitimate authority from a few examples of institution-dependent legitimate authorities. But I have not claimed otherwise; I have only claimed that, in light of the evidence I have offered and will continue to offer throughout this dissertation, the best explanation of the reasons legitimate authorities give requires appealing to institutional roles. 76 CHAPTER TWO Justifying Institutional Obligations On the view I outlined in Chapter 1, a person can have institutional obligations simply in virtue of occupying a certain role within an institution. But not every institutional obligation is plausibly one that we have reason to comply with. For instance, I might have reason to join a certain political party if I live in a country where my career and my family’s well-being depend on my doing so. But it doesn’t obviously follow that I therefore have reason to comply with all of the institutional obligations of a party member. Moreover, there are different types of reasons we might have to comply with an institutional obligation, and not all of these reasons to occupy an institutional role will give us genuine, authoritative obligations, that is, obligations which are both normative in the reason-involving sense and identity-related in the sense of stemming from one’s institutional role. So what explains which institutional obligations that one has count as genuine authoritative obligations? In this chapter, I will offer an answer to this question in broad outline. In section 1, I begin by examining the main types of justification of institutional obligations that have been offered in the literature on political obligation. I look at the problems with each type of view, and I highlight John Simmons’s idea that institutional obligations must be justified in terms of reasons that are external to an institution. Next, in sections and 2 and 3, I turn to consider candidates for what such an external justification of the obligations imposed by authorities might look like. I begin by looking at Marmor’s view of the justification of authority. Marmor rejects a general approach to justifying authority in favor of understanding institutional obligations as real but conditional obligations, such that different obligations may have different conditions. I suggest instead that we have reason to construe institutional obligations as non-normative facts: they are “as-if” obligations that require adding reasons in order to have normative force. I then turn to explore the prospects for Marmor’s idea of reasons to participate in an institution as a justification of institutional obligations understood as non-normative facts. I suggest that, if we were to go that route, the most plausible way to understand reasons to participate would be in terms of a means-end transmission principle. Unfortunately, such a principle would be subject to counterexamples and, in general, seems like the wrong type of justification to explain why someone has identity-related obligations. Consequently, in section 3, I offer an alternative model of the 77 external justification of institutional obligations. I argue that, in order for institutional obligations to count as genuine identity-related obligations, one must both (i) actually occupy an institutional role that is part of an institutional authority relationship, and (ii) have sufficient reason not merely to occupy but to identify with that institutional role. 1. Justifying Institutional Obligations Recall from the Introduction that non-normative-first views are committed to the following: 1. Legitimate authority is composed of (i) authority in a non-normative sense (which is common to both legitimate and illegitimate authority) for which there is (ii) an external justification. Also in the Introduction, I argued that instead of begging the question in favor of a common factor that legitimate and illegitimate authority have in common, we have reason to want an independent argument for this conclusion. And Chapter 1 I presented just such an argument, the conclusion of which is that having legitimate authority requires having institutional authority. A central upshot of that argument, if successful, is that legitimate authority should be understood in largely the way that Hershovitz and Marmor claim, namely, as essentially institutional and having an external justification in virtue of which it counts as legitimate. This chapter, in turn, will seek to explore the form that such an external justification has to take if the result is to be genuine identity-related obligations imposed by someone with institutional authority. For perspective, if we are looking for a story about how to explain the obligations that persons who are subject to another’s authority have, it makes sense to begin by looking at the already extant (and extensive) literature on grounding political obligations, that is, obligations to obey the laws of one’s polity or state. The reason that this is a good place to look is that political obligations are typically understood as institutional obligations. If, as I argue in Chapter 1, the obligations that authorities impose should be understood as institutional obligations, then they would seem to require the same sort of justification in general as political obligations do. Thus, to the extent that authors writing about political obligation are concerned with justifying institutional obligations, it will be helpful to consider what has already been said on the topic. 78 But even if there is some overlap in this regard, the project of justifying political obligations and the project of justifying authoritatively imposed institutional obligations are not identical. Rather, the question of how to justify political obligations is both more general and more specific than the question I am interested in. First, it is more general: not all political obligations are authoritatively imposed institutional obligations. Some may be, including paradigmatic examples such as the President’s issuing an executive order or a legislature’s passing a law. But the range of political obligations is typically thought to be much broader than those imposed by authorities, and to include obligations stemming from institutional rules or conventions that are not necessarily directly imposed by the government or governmental officials, as can be seen for instance in the common law tradition. And this is true of institutional obligations in general, that not all such obligations are authoritatively imposed. So, to the extent that we are interested in justifying institutional obligations that are imposed by authorities, our question is narrower than that of political obligation in general. Second, the question of how to justify political obligations is also more specific than the question I am interested in. It is plausible that all political obligations are institutional obligations, but not all institutional obligations are political obligations. It is clear that members of universities, sports leagues, clubs, the military, and other organizations have institutional obligations that are not plausibly categorized as political in nature. Thus, there are a wide variety of non-political and non-legal social and institutional practices that feature both institutional authority and institutional obligations imposed by those with authority. So to the extent that we are interested in the normativity of the institutional obligations imposed by authorities, the scope of our inquiry will broader than that of justifying political obligation. Nevertheless, there are at least three types of well worked-out theory of how to justify institutional obligations in the political domain that it will be useful to have on the table, although there are problems with each. First, there are transactional theories (also called “voluntarist” theories), according to which some kind of transaction, frequently conceived of in terms of a contract between state and citizen, explains the ground of a person’s political obligations. 123 The moral or normative basis of the obligation in this case is, to use a familiar 123 Many classical and early modern justifications of political obligation exemplify either an explicit or implicit transactional structure, from Plato’s Crito (which might also be seen as advocating an associative model of 79 phrase, the consent of the governed. The main problem with this approach, however, is its apparent non-universality: very few citizens have performed (or even have the opportunity to perform) the relevant sort of transaction, whether this is construed as an act of consent, acceptance of benefits, or in some other way. 124 Yet universality (or near universality) is arguably a desideratum of a theory of political obligation. Thus, although the normativity of some political obligations may be explicable in terms of transactions or acts of consent, it is highly implausible that all such obligations can be, and so if political obligations in general are to be justified we will need to look elsewhere. Second, there are natural duty theories, according to which political obligations are grounded in moral obligations that everyone has, thereby getting around the problem of non-universality that transactional theories are vulnerable to. For instance, John Rawls suggests that we have a natural duty that “requires us to support and comply with just institutions that exist and apply to us. It also constrains us to further just arrangements not yet established, at least when this can be done without too much cost to ourselves.” 125 But if transactional theories have a problem with universality, the problem with natural duty theories, broadly conceived, is that of particularity: if more than one possible arrangement or institution is (or would be) equally well positioned to promote humanitarian goods such as the alleviation of poverty, there does not seem to be a particular obligation owed to our obligation, which I discuss below), to social contract theory as defended Thomas Hobbes who argues that there can be “no Obligation on any man, which ariseth not from some Act of his own” (Leviathan, rev. ed., R. Tuck, (ed.), (Cambridge: Cambridge University Press, 1996), II.21/150), as well as John Locke in The Second Treatise of Civil Government (1690), and Jean-Jacques Rousseau in Du contrat social (1762). 124 This general criticism of transactional theories is expressed by A. John Simmons in Moral Principles and Political Obligation (Princeton, NJ: Princeton University Press, 1979), 35. Interestingly, the upshot of non- universality of the relevant sort of transaction for Simmons is a broadly anarchist conclusion: since it is only by personally consenting to be bound by authority that one can incur genuine authoritative obligations, the result is that most purported authorities are illegitimate. Leslie Green also argues for a similar conclusion in The Authority of the State (Oxford: Clarendon Press, 1989). 125 Rawls, A Theory of Justice, (Cambridge, MA: Harvard University Press, 1971), 115). David Estlund offers a more recent version of this type of argument in his Democratic Authority, 144-151. Estlund claims that we have a “humanitarian duty” to contribute to the remediation of humanitarian problems such as poverty. His proposal is that political anarchy, in particular judicial anarchy (understood as the absence of a public system of judgment and enforcement), is just such a humanitarian problem and that there is a universal obligation to contribute to its remediation. For instance, we have a duty to participate in and abide by the outcomes of a jury trial system, even if we believe that not all of its verdicts are or could possibly be correct all of the time. According to Estlund, “The result is authority” (146). Others have also offered arguments that try to justify a general moral obligation to obey the law; see, for instance, John Finnis, Natural Law and Natural Rights (Oxford: Oxford University Press, 1980); and S. Aiyar has argued that Raz is committed to something like Finnis’s view in terms of a generic, prima facie obligation to obey the law (“The Problem of Law’s Authority: John Finnis and Joseph Raz on Legal Obligation,” Law and Philosophy 19, (2000): 465-489). 80 specific arrangement as opposed to another. 126 As a result of the problems these first two types of theory face, a third main strand of justification of political obligations has been developed, commonly referred to as associative theories. The core of this view is to tie political obligations to membership in political communities or states. Typically, the argument is by analogy from obligations that we have in virtue of other roles we occupy, such as familial obligations, which it is claimed do not require a voluntary transaction in order to be subject to them, but which one has simply in virtue of membership in the relevant community, thereby solving the problem of universality. In addition, the fact that only members of the relevant political community are taken to have associative obligations of this sort is supposed to solve the problem of particularity as well. By attaching political obligations to roles we occupy in a social group or institution, associative views thus purport to navigate between the Scylla and Charybdis of transactional and natural duty theories. 127 This is not to imply that there are no critics of associative theories. Objections include denying that we have associative obligations, claiming that associative obligations can be reduced to transactional obligations, and denying that the associative model can ground political obligations. 128 However, the associative model does offer a promising approach to the question we started with, for at least two reasons. First, associative views typically have normative implications beyond the political domain. As I mentioned, a standard way of justifying political obligations on associative views is by appealing to other domains, such as familial obligations, which also seem to be grounded in membership in a social group or institution. Since authority is plausibly a broader phenomenon than the political domain, as I noted above, and associative theories purport to have noticed a broad type of justification of institutional obligations, they are worth considering. Second, associative views in general ground the normativity of one’s obligations in a social role that one occupies—an insight 126 Cf. Simmons, Moral Principles and Political Obligation, 31-35. 127 This sort of “identity constituting” (also known as “communitarian”) view of political obligation has been discussed by Simmons in Justification and Legitimacy (Cambridge: Cambridge University Press, 2001), as well as Leslie Green in The Authority of the State (Oxford: Clarendon Press, 1988), esp. 188-219. John Horton defends a version of this view in Political Obligation, (Atlantic Highlands, NJ: Humanities Press, 1992). Versions of the associative view have also been proposed by Ronald Dworkin in Law’s Empire and Margaret Gilbert in A Theory of Political Obligation (Oxford: Oxford University Press, 2006). 128 Cf. C. H. Wellman, “Associative Allegiances and Political Obligations,” Social Theory and Practice 23 (1997): 181-204; Leslie Green, “Associative Obligations and the State,” in Dworkin and His Critics, ed. J. Burley (Oxford: Blackwell Publishing, 2004): 267-84; and Stephen R. Perry, “Associative Obligations and the Obligation to Obey the Law,” in Exploring Law’s Empire, ed. S. Hershovitz (Oxford: Oxford University Press, 2006): 183-206. 81 that Hershovitz has applied to the concept of practical authority and which I have taken on board in the way I outlined in Chapter 1. Thus, to the extent that it makes sense to conceive of the obligations imposed by authorities as institutional role obligations, associative theories may offer a way to explain the normativity of such obligations. Now, some have claimed that, by grounding obligations in membership in a social group or institution, associative theories have obviated the need for an external justification of those obligations. John Horton, for instance, adopts precisely this view in defending an associative theory of political obligation. 129 His idea is that if, upon reflection we find our membership in a particular political community is (at least partially) constitutive of how we conceive of our own identity, then this is all the justification that political obligations require. But this seems altogether too quick. One acute problem facing a view on which our self-conception of our identities is purportedly sufficient to justify associative obligations is that of moral repugnancy. As Massimo Renzo points out, “We normally think that membership in a morally repugnant group, such as racist communities or the mafia, cannot ground genuine moral obligations; particularly obligations to commit immoral acts.” 130 To remedy this problem, Horton has proposed that associative obligations must have a minimal threshold of value. 131 A general principle of this sort is supposed to explain why the Mafioso cannot have a morally binding associative obligation to assassinate an innocent person. 132 But this means that, in general, merely pointing out the fact of one’s membership in an institution and its reflective acceptability does not solve the problem of justifying one’s institutional obligations. To put this point more generally, institutional obligations require external justification, which John Simmons explains in the following way: We are morally obligated to perform our institutionally assigned “obligations” only when this is required by a moral rule (or principle) that is not itself a rule of the institution in question. Institutions, in short, are not normatively independent, and 129 John Horton, Political Obligation. Cf. in particular his discussion of external justifications of institutional obligations, pp. 155-158. 130 Massimo Renzo, “Associative Responsibilities and Political Obligation,” Philosophical Quarterly 62, (2012): 106-127, 112. 131 Horton, Political Obligation, 176-179. 132 G. A. Cohen uses the example of the committed Mafioso in criticizing Korsgaard’s claim that the source of obligations always involves a threat of loss of identity (Cohen, “Reason, Humanity, and the Moral Law,” in The Sources of Normativity, ed. O. O’Neill, (Cambridge: Cambridge University Press, 1996): 167-188, esp. 183-184). 82 the existence of an institutional “obligation” is, considered by itself, a morally neutral fact. Institutional obligations acquire moral force only by being required by external moral rules. (“External Justifications and Institutional Roles,” 30) 133 Granted, appealing to membership in a social group or institution does solve the problems of universality and particularity: associative views have a ready explanation of why every member has the institutional obligations they do, and not any others. But this by itself does not show anything about whether those institutional obligations are normative (in the reason-involving sense) for the members of that institution. Thus, even associative theories cannot entirely avoid the need for an external justification of institutional obligations. So where does this discussion leave us? First, we have seen what sorts of justification won’t work as a general explanation of why authoritative obligations are normative. The same defects that plague transactional and natural duty theories would seem to apply to any proposed general justification of the obligations imposed by someone with practical authority: either approach to justifying authority in general would encounter a parallel problem of universality or particularity, respectively. Second, by the same token, the virtues of associative theories of obligation make them worth considering when it comes to justifying authority. In particular, participation in an institution seems like a plausible solution to the particularity problem. This strongly suggests that an institutional view is the most promising approach when it comes to justifying authority. But, as we have seen, even 133 In the article cited here, “External Justifications and Institutional Roles” (The Journal of Philosophy 93(1), (1996): 28-36), Simmons is responding to Hardimon’s “Role Obligations,” which I cited in Chapter 1 as a locus classicus of philosophical discussion of institutional obligations. Simmons’s argument is basically that Hardimon’s critique of what Hardimon in that article calls the “standard view” of role obligations is actually a view that no one holds. Rather, Simmons argues that the view he describes in the quote above, which hinges on the idea of external justification, should actually be considered the standard view of institutional obligations, and that Hardimon’s argument by and large does not conflict with this interpretation of the standard view. Of course, the extent to which the nature and content of institutional rules and norms, as well as what I have called institutional obligations, are determined (or at least determinable) by non-normative social facts is a matter of some dispute. Consequently it is important to point out that not everyone would agree with my claim in Chapter 1 (or Simmons’s claim here) that institutional obligations are a purely descriptive matter. The normative neutrality of institutional obligations can be seen as an extension of a central tenet of so-called “exclusive” legal positivism of the sort adopted by Joseph Raz, Scott Shapiro, and others that the source of the law is an entirely descriptive matter. However, Ronald Dworkin (esp. in Law’s Empire and Taking Rights Seriously (Cambridge, MA: Harvard University Press, 1977)) and other authors, including “inclusive” legal positivists such as Wil Waluchow (Inclusive Legal Positivism (Oxford: Clarendon Press, 1994)), as well as natural law theorists such as Robert George (In Defense of Natural Law (New York: Clarendon Press, 1999)), deny this idea, at least in terms of the potential for normative considerations to bear on the question of what institutional obligations (in particular legal obligations) a person has. It is beyond the scope of this dissertation, however, to resolve this issue. 83 associative views cannot avoid the need for an external justification. Thus, even though we now have a better idea of what we need, we are left to continue searching for what an external justification of authoritatively imposed institutional obligations might look like. 2. External Justification of Authority In the Introduction, we saw how Raz responded to Wolff’s anarchist challenge by giving a justification of legitimate authority in terms of reasons that an individual has prior to and independent of any directive that a person claiming to have practical authority might issue. And among the reasons we might be attracted to such a view is that it claims to offer a clear external justification of the obligations imposed by authorities. We saw, however, that Raz’s view is subject to counterexamples and, in particular, to the problem of legitimacy creep, to which an institutional role-based view of the scope, jurisdiction, and discretion of authority offers a solution. But an institutional view of authority still requires justification of the institutional obligations authorities impose. Currently, the most prominent institutional view of authority is that of Marmor. Thus, in this section, I will begin by reviewing Marmor’s account of the justification of institutional obligations. Marmor claims that institutional obligations are conditional obligations, and that the justification of authority can be understood in terms of a subject’s reasons to participate in a social or institutional practice. I suggest, however, that a different interpretation of institutional obligations as “as-if” obligations, that is, as non-normative facts that require the addition of reasons in order to have normative force, may be worth exploring. I then proceed to examine whether Marmor’s idea of reasons to participate in an institution would still constitute an external justification of institutional obligations on this latter interpretation of institutional obligations, and I argue that it would not, since such a view would be subject to counterexamples. 2.1: Marmor on the External Justification of Institutional Obligations It will be helpful to review Marmor’s view briefly. For Marmor, practical authority is the normative power to impose institutional obligations. In fact, practical authority is a normative power that both legitimate and illegitimate authorities possess on Marmor’s view, since even illegitimate authorities have the power to impose institutional obligations. Notably, the obligations imposed by authorities are real obligations on Marmor’s view; they 84 are, however, conditional obligations. In particular, the normative force of the institutional obligations imposed by authorities is explicitly conditional for Marmor on the justification of one’s participation in an institution: “[S]uch obligations are always conditional: They presuppose that there are valid reasons to participate in the relevant institutional practice and comply with its rules. The institutional obligation to comply with an authority’s directives is always conditioned by reasons to participate (cooperatively, that is) in the practice that confers the relevant power on the authority.” 134 Thus, as we saw in the Introduction, conditional obligations are “normative” for Marmor in what Parfit calls the rule-involving sense of normativity. And they are normative in this sense regardless of whether their respective conditions are met. But conditional obligations are still conditional: we may still require reasons to follow the rules of an institution. So what can give us such reasons? Marmor does not believe that there is a “single general principle that determines the condition of the legitimacy of authorities.” 135 Rather, he thinks that there is an important distinction to be drawn between voluntary and involuntary institutions, that is, between social and institutional practices that we opt in to, such as playing a game or attending a university, and those that we simply find ourselves participating in, such as law or etiquette. The distinction between these, Marmor notes, is not hard and fast, but is “more of a continuum.” 136 Still, Marmor thinks, “we can make a generalization: the more participation in a given practice is voluntary…the more it is the case that justifying one’s subjection to the rules or conventions of the practice is based on consent.” 137 Of course, even in voluntary institutions, consent or commitment by itself is not necessarily sufficient for having normative role obligations. As Marmor recognizes, there may be other constraints: “Consent morally justifies a commitment only under certain conditions.” 138 Among these conditions, Marmor lists factors that deal with what we might call the responsibility-making features of the individual: she must be sufficiently well informed and mentally competent. Marmor also suggests that consent must be proportional in some sense between expected burdens and benefits. And there may be other qualifications 134 Marmor, “The Dilemma of Authority,” 133. 135 Marmor, “An Institutional Concept of Authority,” 239. 136 Ibid., 249. 137 Ibid., 250. 138 Ibid., 250. 85 of when and for what consent is valid that Marmor does not explicitly mention. As we saw above with the objection to Horton’s version of the associative view, there may be moral constraints on what one can permissibly consent to. Even fully informed, mentally competent and proportional consent doesn’t obligate the Mafioso to act on the immoral orders of his Mafia bosses, or even make it permissible for him to do so. Finally, there may also be moral restrictions on when otherwise competent and informed consent with a permissible object is binding, such as its not being coerced. But what about those institutions, such as the law, where we already find ourselves to be involuntary participants? According to Marmor, there may still be good reasons to participate in the institution. Given the varied nature of institutions, Marmor does not go into detail about what such reasons might be, though he mentions considerations of “social utility, fairness, justice, and the like” as all bearing on one’s reasons for participation. 139 He concludes that a general principle of the following sort holds with respect to justifying authority: “[T]he considerations that bear on the legitimacy of authorities are very closely tied to, and crucially depend on, the reasons for participation in the practice or institution in which the authority operates.” 140 Thus, in order to solve the problem of universality, Marmor proposes to fill the justificatory gap with respect to institutional obligations imposed by legitimate authorities by appealing to reasons to participate in an institution. So what are to make of this account? In order to answer this question, it will be necessary first to decide how we should understand institutional obligations. There are at least two importantly different interpretations of the nature of institutional obligations that one might adopt. First, one might adopt Marmor’s account on which institutional obligations are “always conditional” 141 : they are in fact real obligations, created by someone with the normative power to do so, but they are conditional. As such, they require that the relevant condition be met in order for the person who occupies a given institutional role to have that obligation full stop. Second, one might adopt Simmons’s view, namely, that “the existence of an institutional ‘obligation’ is, considered by itself, a morally neutral fact.” 142 On this interpretation, institutional obligations are simply “as-if” obligations: they are facts about the 139 Ibid., 252. 140 Ibid. 141 Marmor, “Dilemma,” 133. 142 Simmons, “External Justifications and Institutional Roles,” 30. 86 obligations that someone who occupies a given institutional role would have, if that role were normative for that person, but they do not constitute conditional obligations. Rather, they are non-normative facts that describe or represent the obligations that someone has from the perspective of a given institution. As such, institutional obligations are not real obligations, but facts about institutions that require the addition of normative reasons in order to constitute genuine obligations for those who occupy the relevant institutional roles. Thus, for instance, as I quoted Kelsen in Chapter 1, the “legal point of view” is a perspective that can be described by “legal science,” such that “even an anarchist, if he were a professor of law, could describe positive law as a system” of institutional obligations. 143 On this sort of view, “legal norms in themselves…do not necessarily serve…as reasons for compliance on the part of their addressees.” 144 Rather, the power to impose institutional obligations (e.g., legal obligations) is simply to have the power to change the circumstances of a person who occupies an institutional role. Accordingly, imposing an institutional obligation does not necessarily alter a person’s normative situation, which rather depends on the further fact of whether there are in addition normative reasons to take the fact of one’s having an institutional obligation as giving one a genuine, identity-related obligation. Depending on which view of institutional obligations we adopt, our view of what is required to normatively justify institutional obligations will vary accordingly. If it turns out that all institutional obligations are simply conditional obligations, then there is no reason to expect a general justification to exist that would cover all cases of legitimate authority. Thus it might make sense for different institutional obligations to have different conditions, depending for instance on whether the institution in question is voluntary or not, as Marmor claims. If so, it makes sense that, on the one hand, Marmor’s view contains a voluntarist element—i.e., he claims that a consent-based transaction is typically required to justify participation in a voluntary institution—but, on the other hand, in light of the problem of universality, Marmor offers an additional explanation to justify participation in non- voluntary institutions. In short, if institutional obligations are conditional obligations, then we have no obvious reason to doubt a bifurcated account of this sort. 143 Kelsen, Pure Theory of Law, 218n, as cited in Raz, The Authority of Law, 140. 144 Matthew Kramer, “Requirements, Reasons, and Raz: Legal Positivism and Duties,” Ethics 109(2), (1999): 375-407, 377). For a painstakingly thorough exploration of all of conceptually possible ways that the law may or may not give us reasons, see David Enoch’s “Reason-Giving and the Law,” in Oxford Studies in Philosophy of Law, Vol 1., L. Green and B. Leiter, (eds.), (New York: Oxford University Press, 2011): 1-38, 14f. 87 But one might worry that interpreting institutional obligations as real but conditional obligations does not present an accurate picture of institutional obligations. One such cause for worry is that it would give an inaccurate picture of who has the power to impose obligations on us. Recall that it is a core claim of the non-normative-first view that both legitimate and illegitimate authorities have the normative power to impose institutional obligations. But if institutional obligations are real but conditional obligations, then there is no difference between legitimate and illegitimate authorities in terms of their having the power to impose conditional obligations on those subject to their authority. Yet this seems to be a stronger claim than even a non-normative-first theorist needs. Claiming that illegitimate authorities have the power to impose real but conditional obligations seems counterintuitive in a way that claiming, for instance, that illegitimate legal authorities have the power to make real law does not. In fact, one might think, the plausibility of the claim that illegitimate authorities can make real law depends on interpreting the legal obligations imposed by an illegitimate authority not as conditional obligations, but as non-normative facts that merely represent what obligations someone has from a legal point of view. While I don’t take this sort of consideration to be decisive, it does suggest that the interpretation of institutional obligations as non-normative facts seems to be worth taking seriously. Thus, in the rest of the chapter, I will explore the possibility that institutional obligations are indeed non-normative facts, as Simmons claims. In particular, I wish to explore the prospects for a justification of institutional obligations on this interpretation. One such candidate is suggested by Marmor’s account of justifying authority in non- voluntary institutions: namely, a justification in terms of reasons to participate in an institution. Now, as I have said, I don’t take Marmor to espouse the interpretation of institutional obligations as non-normative facts. Moreover, since Marmor offers an account in terms of both consent and reasons to participate, I don’t take him to be committed to a general justification of institutional obligations. As Marmor himself points out, a justification in terms of consent cannot cover non-voluntary institutions. But if institutional obligations are simply non-normative facts of the sort I have described, then it would be preferable, ceteris paribus, to have a general justification of legitimate authority. Thus, in the following, I will be asking whether reasons to participate can provide a justification of institutional obligations, where the latter are understood as non-normative facts, and not as conditional obligations. I will argue that they cannot, but that an explanation in terms of reasons to 88 identify with a role may be able to supply a general explanation that involves the same sort of reasons involved in consent-based justifications in the case of voluntary institutions. Crucially, my claim that reasons to participate cannot play this role will depend on interpreting reasons to participate in terms of a means-end reasons transmission principle. On this interpretation, the normative force of reasons to participate in an institution transmits to reasons to comply with one’s institutional obligations, on the assumption that complying with one’s institutional obligations is a necessary means of participating cooperatively in an institutional practice. Now, to be clear, I don’t take Marmor to endorse this interpretation of reasons to participate in terms of a means-end transmission principle, and I am not arguing that he is committed to such an interpretation. But if we think that institutional obligations are not conditional obligations, but rather non-normative facts along the lines of Simmons’s view, then we would need some sort of principle to explain the way in which reasons to participate are supposed to justify institutional obligations. Thus at the very least I wish to explore whether a plausible justification of institutional obligations can be given in terms of reasons to participate. As I have indicated, I will argue that it cannot. One can have sufficient reason to participate in an institution, and in fact fully participate in it, without thereby having distinctively identity-based obligations stemming from one’s participation in that institution. In particular, there are at least two reasons to think that an external justification in terms of reasons to participate will be subject to counterexamples and therefore won’t yield the sort of distinctively identity-related obligations of the sort I described in Chapter 1 as characteristic of legitimate authority. These include a coverage problem and a wrong kind of reason problem. 2.2: The Coverage Problem for Reasons to Participate First, in general, it does not seem to be the case that reasons to participate in an institution would necessarily transmit to all of the institutional obligations someone has. We can call this the coverage problem. What I mean is this: in order to participate in an institution, we plausibly have to do so by occupying some role or other within the institution, and various institutional obligations may attach to that role. But the fact that we have reason to participate in practice P by occupying role R doesn’t necessarily give us reason to comply with every institutional obligation that attaches to R. This is because, for many institutional 89 roles, it simply is not the case that occupying that role requires compliance with every institutional obligation that attaches to it. Thus, a means-end transmission principle would not obviously be able to justify every institutional obligation that attaches to a role as normative, even if one has decisive reason to participate in that institution. To see this more clearly, consider the following example. Imagine that Anne has a reason to participate in a social practice, say, that of a philosophy reading group. Imagine further that the obligations that attach to the role of a reading group member including reading all of the assigned material every week and coming prepared each week with questions to discuss. But even if every member of the group has the obligations just specified, participation (even cooperative participation) in the group only seems to require fulfilling most of the institutional obligations of a reading group member, most of the time. For instance, it seems that Anne can fail to comply with at least some institutional obligations that she has, some of the time, say, by failing to finish reading the last of several chapters for the week, or not asking any questions another week, yet still count not only as a participant in the reading group but as a constructive and helpful participant. If so, then it is not the case that participation in the reading group entails fulfilling all of the institutional obligations that attach to the role of being a reading group member. One may worry, however, that this example ignores the possibility that reasons transmit even to sufficient means. Along these lines, Raz defends what he calls the facilitative principle: “When we have an undefeated reason to take an action, we have reason to perform any one (but only one) of the possible (for us) alternative plans that facilitate its performance.” 145 If this principle were correct, then even if participation in the reading group only requires (let us say) reading one of the three chapters assigned every week, it may be the case that our reason to participate transmits to a reason to read each chapter, since reading each chapter is a sufficient means of participating. 146 In reply, we can offer the following considerations that tell against cashing out the normativity of institutional obligations in terms of a sufficient means transmission principle. According to Raz’s facilitative principle, if I have reason to see a movie, and both movies A and B are worth seeing, then “I have reason both to buy a ticket for A, and to buy a ticket 145 Raz, “The Myth of Instrumental Rationality,” Journal of Ethics and Social Philosophy 1(1), (2005): 1-28, 5-6. 146 Of course, once we have read one chapter, we would no longer have an institutional obligation to read the others, since the “source reason” would be defeated (cf. Raz, “The Myth of Instrumental Rationality,” 7). But prior to this, the reason to participate would still transmit to each sufficient means of participating. 90 for B.” 147 It is arguable, however, that my reason to buy a ticket for A is not as strong as my reason to see a movie. This is because my reason to see A is plausibly of equal weight as my reason to see B. Yet if I decide not to see A, I have still the option to see movie B. This point can be seen even more clearly if we imagine that there are 10 movies playing, each equally worth seeing, and I decide not to see one of them. If so, I act against my reason to see A, yet I still have equally weighty reasons to see each of the nine other movies. If so, this means that my reason to see A is plausibly only one-tenth the weight of my “source reason” to see a movie. 148 In other words, my source reason to see a movie does not transmit full strength each of the sufficient means of seeing a movie. Applying this to institutional obligations, this example casts doubt on the idea that reasons to participate in an institution transmit full strength to each of the sufficient means of participating. In particular, this implies that for any particular institutional obligation, it is not in general true that one has a full-strength obligation (in the normative sense) to comply with that particular institutional obligation simply in virtue of having reasons to participate in that institution. So we have reason to doubt that this is the right way to explain the normativity of institutional obligations. Now, it might be said in response, perhaps these examples simply show that the correct way to construe the institutional obligations that attach to the role of reading group participant are to perform some or most of a particular group of tasks, but not all of them. Thus, rather than showing that reasons to participate in an institution don’t transmit to all institutional obligations, or don’t transmit with full strength to all such obligations, they merely show that certain institutional obligations are not as strict or as weighty as they might first appear. Since it would be less than ideal for this point to rest on stipulating that a certain set of obligations attaches to an institutional role while insisting that participating in the institution does not entail fulfilling all of those obligations, I will offer an additional argument for why reasons to participate are not, in principle, the right sort of reason to yield genuine identity-related obligations of the sort characteristic of legitimate authority. 2.3: The Wrong Kind of Reason Problem for Reasons to Participate Thus, in addition to a coverage problem, reasons to participate in a practice seem like the 147 Raz, “The Myth of Instrumental Rationality,” 7. 148 Thanks to Mark Schroeder for this point. 91 wrong kind of reason to yield genuine authoritative obligations. Reasons to participate in an institution might give you reason to occupy a certain role and to comply with institutional rules (within the coverage limitations already specified), but they can’t yield the distinct type of reasons I described in Chapter 1. This is because, as I am understanding them, reasons to participate are fundamentally instrumental reasons, and instrumental reasons in general aren’t the right kind of reasons to yield genuinely new, identity-related obligations. To illustrate this point, consider the case of a double-agent. 149 Brad is a loyal KGB operative who has managed to gain American citizenship and a job working as an agent for the CIA. It seems accurate to describe this case as one in which Brad is actually a CIA agent; he is occupying the role of an agent within the institution of the CIA, and he is not merely pretending to be an agent, in the way that a film actor might. Moreover, as a consequence of Brad’s being a CIA agent, it seems accurate to say that Brad has all of the institutional obligations that attach to the role of an agent. Moreover, the problem is not the way in which we describe the content of the institutional obligations: for instance, it does not help if we say that what Brad lacks is reason to be a good CIA agent, since Brad can have reasons to be a good or effective agent—in fact, it might be instrumentally necessary for his getting the right security clearance that he do his job as an agent extremely well. Finally, and most importantly for our purposes, let us assume that Brad’s situation is one in which he has decisive reasons—qua KGB operative—to participate in the institution of the CIA and to comply with its rules, since doing so (we can stipulate) is essential to gaining the security clearance that will be required for accomplishing Brad’s ultimate mission—say, the assassination of a high-ranking Syrian official. The crucial point of this example is that, despite having reasons to participate in an institution and to comply with its rules, the double-agent does not have authoritative, i.e., identity-related, reasons stemming from his role as a CIA agent to comply with his institutional role obligations as a CIA agent (even if, let us assume, he has such reasons stemming from his role as a KGB agent). The double-agent is a thus a counterexample to a view according to which the obligations that persons who are subject to legitimate authority have are cashed out in terms of reasons to participate in an institution and to comply with its rules. As I have set up this case, the institutions in which Brad participates (i.e., the CIA and KGB) are plausibly voluntary institutions. Thus, presumably, Brad consents to 149 Thanks to Gary Watson for this counterexample. 92 participate in both institutions, including the CIA. One might then wonder whether consent can do the justificatory work it was initially thought to, but this may simply be a distracting feature, since one could question whether Brad’s consent in this case would pass the test of moral permissibility, for instance. But ultimately this point does not matter for our purposes, since we can construct a parallel case that is similar in all essential respects involving reasons to participate in a non-voluntary institution. For instance, assume that Ivan is drafted into the Soviet army, and assigned as a guard at a labor camp. In this case, Ivan may have decisive reasons to participate in the institution of both the army and the labor camp. His reasons to do so might include the fact that both his personal safety and that of his family depends on his complying with his institutional obligations. Moreover, he may have humanitarian reasons to participate in the camp and to occupy the role of a guard therein, in an effort either to ameliorate conditions for the prisoners when he has an opportunity or to be in a position to undermine the camp from within. But it is implausible to say that Ivan has genuine, identity-based obligations stemming from his role as a guard. In particular, he might lack obligations to comply with the orders of the commandant in charge of the camp. However we specify the example, though, the point remains that even decisive reasons to participate seem like the wrong sort of reason to justify authoritative obligations, since any justificatory principle in terms of reasons to participate will be subject to counterexamples. Moreover, the two counterexamples of the double-agent and the conscripted guard allow us to diagnose the problem with the proposed account, namely, that reasons to participate in an institution cannot bridge the gap between merely having some reason or other to comply with an institutional obligation, on the one hand, and having the sort of genuine identity-related obligation that I claimed in Chapter is distinctive of legitimate authority. Fundamentally, the problem is that reasons to participate are not necessarily identity-related. And while some reasons to participate might be identity-related, it would be ad hoc to restrict our account of the class of reasons to participate that can successfully justify identity-related obligations to those that are already identity-related. More importantly, restricting the reasons that justify identity-related obligations to pre-existing identity-related reasons wouldn’t solve the problem, since it would only channel the force of prior identity-related reasons or obligations. But it is typically taken to be a conceptual truth that legitimate authority, if it exists, involves the power to create new obligations. Thus, if a proposed justification of institutional obligations is supposed to be 93 exclusively in terms of reasons that already exist, even identity-related reasons, we should not expect new identity-related obligations to result. For example, even if Brad had identity- related obligations stemming from his role as a KGB agent, and these transmitted to reasons to comply with his institutional obligations as a CIA agent, the institutional role in which the latter reasons would be grounded would be that of KGB agent, and not CIA agent, and thus no genuinely new CIA agent-related reasons would be created. David Enoch puts the worry this way: “If it takes a duty to generate a duty, then authorities merely, as it were, channel the force of pre-existing duties to specific directives.” 150 Thus, we have good reason to think that, in general, a justification in terms of prior identity-related reasons or obligations would fail to result in new identity-related obligations. Moreover, the truth of an “identity-related reasons out, identity-related reasons in” 151 principle would significantly reduce the theoretical interest of practical authority as a concept worth investigating: “[I]f the only way to satisfy the normative success condition for authority is for there to pre-exist a duty to obey then the theory of authority does relatively little explanatory and justificatory work.” 152 In particular, it would imply that much if not all legitimate authority was merely apparent: there would be no creation of genuinely new identity-related obligations to be found. Of course, if such a principle were true, one might consider revisionism about the concept of practical authority. After all, an instrumental obligation to comply with an institutional obligation is no less a genuine obligation for being the result, say, of a broader or pre-existing moral obligation. But this does not address the fundamental point at the heart of Enoch’s worry, namely, that “authority” the normativity of 150 Enoch, “Authority and Reason-Giving,” 315. Interestingly, Marmor has suggested that it may be necessary to revise Raz’s service conception of authority along the lines of an “obligation out, obligation in” principle, such that the way to justify practical authority is in terms of whether someone’s directives help subjects better comply with the obligations the subjects have by treating the directives as obligations rather than by trying to comply with those obligations on their own; Marmor, however, does not think that this necessarily solves the problem Raz has of failing to give an account of legitimate authority that does not depend purely on epistemic requirements (Marmor, “The Dilemma of Authority,” 126). A similar point about this strategy for modifying Raz’s view is made by Hershovitz in “The Role of Authority,” 9-10. 151 Simmons seems to endorse a version of an “obligation out, obligation in” principle in the passage quoted earlier: “We are morally obligated to perform our institutionally assigned ‘obligations’ only when this is required by a moral rule (or principle) that is not itself a rule of the institution in question (Simmons, “External Justifications and Institutional Roles,” 30). Bernard Williams is among the first to articulate such a principle (cf. Williams, Ethics and the Limits of Philosophy, 181). As we will see in Chapter 5, Darwall endorses a principle of this sort which I argue has implausible consequences. By way of preview, he assumes that authority and accountability are mutually entailing, and thus that our accountability for moral obligations requires positing a “moral community” who has made demands that correspond to our moral obligations. Darwall at one point expresses this idea in terms of an “authority out, authority in” principle, and cites Williams’s idea favorably (Darwall, SPS, 59). 152 Enoch, “Authority and Reason-Giving,” 315. 94 which consists in merely triggering prior obligations is not explanatorily interesting. We can conclude that, insofar as we are interested in legitimate authority as involving the creation of new identity-related obligations, a means-end transmission principle cannot be the central justification of those obligations. Of course, there may still be cases of genuine identity-related obligations that transmit instrumentally. In such cases, however, no new identity-related obligations are created, unless authority is delegated. Thus there are at least two types of “triggering” cases in which one can have a genuine, authoritative obligation. First, consider a case of “mere” triggering. To illustrate this, suppose that Queen Elizabeth, who is at war, orders one of her spies to infiltrate the enemy queen’s palace under the guise of servants. As the legitimate ruler of her spies, she commands them to do everything the enemy queen tells them to do. Elizabeth’s commands thus give the spies genuine identity-related obligations to do as the enemy queen says. But it is crucial to the example that Elizabeth’s commands give the spies merely instrumental reasons to comply with the enemy queen’s orders. Thus, although the spies have an identity-related obligation to do as the enemy queen says, it is not the case that the enemy queen has legitimate authority over the spies. Rather, the obligation in question is still owed to Queen Elizabeth, and is grounded in the relationship between her and the spies. Next, consider a different kingdom, where the queen, going off to war, formally appoints a regent to rule in her stead during her absence. The one case in which the apparent “triggering” of a prior obligation in fact creates new obligations involves the delegation of authority, or what we can call authorization. By authorizing someone to rule, that is, by delegating or conferring on someone else her own institutional authority, either in part or in whole, the queen can give the regent the authority to create new, identity-related obligations within the institution of the kingdom. In this case, the queen is not (or at least not merely) setting up the regent to trigger or channel prior obligations to the queen; rather, the queen has performed an effective establishing an institutional rule that gives the regent the power to create new institutional obligations for others in virtue of occupying the role of regent. 2.4: Conclusions We began this section by looking at Marmor’s idea that the justification of authority can be understood in voluntary institutions in terms of consent, and in non-voluntary institutions in terms of reasons to participate in an institution. I pointed out, however, that there are two 95 ways to interpret institutional obligations: whereas the first interpretation takes them to be real but conditional obligations, the second interpretation takes them to be non-normative facts, to the effect that one has an obligation from the point of view of an institution. While on the first view different obligations might have different conditions, I offered a reason to think that the second view was worth exploring. I then proceed to ask whether reasons to participate in an institution would plausibly justify institutional obligations understood in the latter way. In answering this question, I suggested that the most plausible way of understanding this latter idea was in terms of a means-end transmission principle. However, I offered two worries about such a view. First, although one may have a variety of reasons to participate in an institution and to comply with institutional obligations, it is not obvious that those reasons necessarily transmit to all institutional obligations, or at least don’t transmit to all institutional obligations with the same strength. Second, even if this first worry can be set aside, there is more significant worry, namely, that we can construct counterexamples in which decisive reasons to participate are present, yet in which identity-related obligations of the sort that are distinctive of legitimate authority are lacking. Thus, in conclusion, if we are interpreting institutional obligations as non-normative facts, we will need a different sort of principle to justify the distinctive sort of identity-related obligations that legitimate authorities impose. But recall that, in addition to reasons to participate, Marmor also suggests that it is possible to justify institutional obligations in terms of consent, at least with respect to voluntary institutions. So even if this justification isn’t available for non-voluntary institutions, it may still the case that it is able to do the relevant justificatory work in voluntary cases. Moreover, while reasons to participate are most plausibly understood in terms of a means-end transmission principle, there is no reason to think that consent justifies institutional obligations in terms of such a principle. Thus, if we are still attracted to an interpretation of institutional obligations as non-normative facts, consent is a highly promising option to explore. In the next section, I will argue that consent, broadly construed, may be the right place to look not only for a justification of obligations in voluntary institutional contexts, but also with respect to non-voluntary institutions where a justification in terms of actual consent is not available. If so, it could give us a fully general justification of the distinctively identity-related obligations imposed by authorities. 96 3. Normative Consent and Role Identification In this section, I will argue that consent, properly specified, can give one reason to identify with an institutional role, and that it is this sort of reason that grounds distinctively identity- related obligations. But, I will argue, this sort of justification is not restricted to cases of actual consent. In addition, reasons to identify with an institutional role can make consent normative in non-voluntary cases, and thereby perform the same justificatory role that actual consent does in voluntary cases. Thus, I will argue that if one wants to interpret institutional obligations as non-normative facts, rather than justifying authority in terms of reasons to participate, we should seek to justify authority in general in terms of consent, both actual and normative. 3.1: Consent Revisited According to Marmor, legitimate authority in voluntary institutions is typically grounded in consent. 153 One might wonder, however, whether consenting or promising to obey is an instance of acquiring an obligation of the sort that would be merely triggered by later commands, in such a way that those commands would not constitute instances of robust reason-giving. 154 But this doesn’t seem to be the right way to think about consent. Rather, the power to take on new obligations (or, perhaps more accurately, to give others the power to impose them on one) is plausibly a normative power that most individuals have. 155 Thus, there seem to be cases of consenting to obey that we undertake, not because we have an obligation to do so, but because we merely have some reason or other to do so. And if there are cases of consent that don’t depend on mere triggering of prior obligations in order to justify identity-related obligations, then it seems accurate to claim that the presence of consent is a hallmark of legitimate authority in many cases. But what sort of reasons does consent yield that would explain the link between consent and the justification of authoritative obligations? Can the same sort of reasons that allow consent to factor into a justification of authority be present in non-voluntary cases as well? Other things being equal, it would be preferable to have a general justification of 153 Marmor, “An Institutional Conception of Authority,” 251. 154 Cf. Enoch, “Authority and Reason-Giving,” 329. 155 Cf. David Owens, Shaping the Moral Landscape, Chapter 7, 165f. 97 legitimate authority that was not bifurcated in its explanatory scope between voluntary and non-voluntary institutions. But what might such reasons look like? In particular, if reasons to participate aren’t the right kind of reasons to yield genuine authoritative obligations, then what kind of reasons do we need? As we have seen, there are all sorts of reasons that we might have to participate in an institution and to comply with institutional obligations. Not all of those reasons take our occupying that institutional role to be the ground of our obligation, however. What is missing in the case of mere triggering or in the case of the double-agent discussed above is a reason to take one’s institutional role itself as constituting a source of obligation. Recall that in Chapter 1, I claimed that the distinctiveness of the obligations imposed by legitimate authorities is that they are identity-related, and that the best explanation of this distinctiveness involved cashing out the relevant sort of identity in terms of institutional roles and relationships. It follows that any justification of the institutional obligations imposed by someone with institutional authority will have to show us why a role that we occupy is a source of genuine, identity-related reasons for us. In other words, in order to show that an institutional role is normative for us, we need to show that we have sufficient reason to identify with that role. And this, I submit, is precisely the sort of reason that competent, informed, non-coerced, morally permissible consent gives us. But actual consent is not the only source of such reasons. This is the central idea that I will seek to develop in the rest of this chapter. 3.2: Identity as a Source of Reasons Before laying out my own proposal, it will be helpful look at the way in which the idea of one’s role as itself a source of reasons and obligations has already been discussed in the literature. Christine Korsgaard famously argues that one’s identity or self-conception is a source of reasons: You are a human being, a woman or a man, an adherent of a certain religion, a member of an ethnic group, a member of a certain profession, someone’s lover or friend, and so on. And all of these identities give rise to reasons and obligations. Your reasons express your identity, your nature; your obligations spring from what that identity forbids. (Korsgaard, The Sources of Normativity, §3.1.1, 101) 98 While Korsgaard controversially argues elsewhere that some identities (and thus some reasons and obligations) are inescapable, her general point here comes close to the associative theories of obligation discussed above. In particular, she is saying something about identity as a source of obligations in the normative sense, and not merely as a source of institutional obligations. Moreover, Korsgaard claims that our identities themselves can give us reasons that are distinct from other kinds of reasons we have. To illustrate this distinction, she gives the example of a student who decides to take a calculus class, and contrasts doing so for the reason that the math involved is an elegant and beautiful model for knowledge, as compared with taking the class because it is a required course in the department in which one is a student. Only the latter constitutes acting from an identity-related obligation. As Korsgaard points out, “it is an essential part of the idea of being a student that you place the right to make some of the decisions about what you will study in the hands of your teachers.” 156 In this case, it is the young man’s identity as a student that is the source of the obligation to take calculus. As Hershovitz might say, the normative attributes of being subject to authority attach to the role of being a student. And other examples are not hard to find: “For exactly similar reasons, a good citizen cannot pay her taxes because she thinks the government needs the money.” 157 Rather, she must pay her taxes because her identity as a citizen requires her to do so. This is precisely the sort of reason that is distinctive of legitimate authority, and also the sort of reason that was missing in the double-agent case above. In a similar way, in his essay “Role Obligations,” Michael Hardimon discusses the phenomenon of what he calls “role identification” and the way in which, according to him, the act of identifying with a role can give one a unique sort of reason to carry out the duties of that role: “When people identify with their roles they acquire reasons for carrying out the duties [of that role] distinct from those [reasons] deriving from the fact that they have signed on for them. One such reason is that they occupy these roles.” 158 Thus, Hardimon takes role identification to be a source of reasons distinct from a transactional obligation of the sort discussed above. But Hardimon’s language here makes it sounds as though role identification necessary involves a psychological state or action that is a precondition either 156 Christine M. Korsgaard, The Sources of Normativity, §3.3.4, 106. 157 Korsgaard, ibid. 158 Hardimon, “Role Obligations,” 361. 99 for having a reason or recognizing a reason (or both), where the reason in question actually comes from the fact that one occupies a certain role: “If, for example, I identify with the role of a teacher, the fact that I am a teacher gives me reason for grading a set of papers when I am tired and it is late at night.” 159 But if that is Hardimon’s view, it seems to be mistaken. We saw earlier how, according to Simmons, the fact that you occupy a role doesn’t, by itself, tell you anything about whether that the institutional obligations that attach to that role are normative for you: “the existence of an institutional ‘obligation’ is, considered by itself, a morally neutral fact.” 160 If that is correct, then adding psychological identification with a role to the fact that one occupies it doesn’t necessary tell us whether that role is normative for one either. As we saw in discussing Horton’s view of associative obligations above, there is still (among other things) the problem of moral repugnancy: the Mafioso’s identification with his role does not necessarily entail that that role is for him a source of normative reasons or obligations. 161 So Hardimon’s view can’t be correct as stated. 162 His view, however, does point out an essential precondition for having identity- related obligations: namely, occupying the role that is supposed to be the source of those obligations. If one does not in fact occupy the relevant role, then one cannot have the obligations that attach to that role. In short, having reasons to identify with an institutional role, that is, having reason to take the role itself as a source of obligations for one, presupposes that one actually occupies the role in question. This mirrors the way in which, as I argued in Chapter 1, occupying the relevant sort of institutional role is a necessary condition on having legitimate authority. So here, too, it turns out that occupying the right sort of 159 Ibid. 160 Simmons, “External Justifications and Institutional Roles,” 30. 161 And for a similar reason, it isn’t quite correct for Korsgaard to claim that the self is “a legislator whose authority is beyond question and does not need to be established” (The Sources of Normativity, §3.3.3, 104). 162 For similar reasons, Korsgaard’s view seems vulnerable to the objection that what you have reason to do depends on who you actually are, and not merely “who you think you are” (The Sources of Normativity, §3.3.4, 107). Hardimon, however, may be able to get around the moral repugnancy worry in virtue of other aspects of his view, namely, what he calls the principle of reflective acceptability, according to which “noncontractual role obligations are not morally binding unless the roles to which they attach are reflectively acceptable” (Hardimon, “Role Obligations,” 150). Along with Hardimon’s requirement that the reflection in question be “reasonable,” this seems to be a positive principle that gets around the problem of moral repugnancy. Simmons, in critiquing Hardimon, thinks that this amounts to “a kind of weak, hypothetical contractualist standard for the bindingness of noncontractual role obligations,” such that Hardimon “might fairly be read as asserting a general (external) moral duty to perform reflectively acceptable institutional ‘obligations’” (Simmons, “External Justifications and Institutional Roles”). For an excellent discussion of both Hardimon’s and Simmons’s views, see Stefan Sciaraffa’s “Identification, Meaning, and the Normativity of Social Roles” (European Journal of Philosophy 19(1): 107-128). 100 institutional role is a necessary condition on being subject to legitimate authority. This point also explains at least one way in which actual consent is a necessary condition for the justification of institutional obligations in the case of voluntary institutions. In short, one cannot have institutional obligations, justified or otherwise, without first being a participant in the relevant institution. And in order to become a participant in a voluntary social or institutional practice, one must sign up, commit, or otherwise consent to participate. Thus, the essential role of consent in such cases is not merely to justify institutional obligations, but also to render one subject to those institutional obligations in the first place. But the question remains whether actual consent or psychological identification of some sort with a role is necessary for having genuine identity-related obligations. And as Kate Manne points out, it doesn’t seem necessary to identify with a role in order for that role to be reason-giving. 163 Legitimate parental authority, for instance, does not plausibly depend on children’s identification with their roles as family members. Rather, parents’ directives plausibly give their children genuine identity-related obligations regardless of whether the children recognize the parents’ authority or identify with their roles in the family. As Raz claims, “Parents have authority [in the normative sense] over their children regardless of whether their children actually acknowledge their authority.” 164 Rather, what the children in this case have is reason to identify with their familial roles and to recognize those roles as constituting a source of obligations. And their having those obligations does not depend on their recognition of anyone’s legitimacy or psychological identification with those roles. But lest we think that parental authority is a special case, due to biological relations or psychological maturity, say, similar examples can plausibly be found in other domains, such as the political domain discussed earlier. There, too, psychological identification with one’s role as a citizen, say, does not seem to be necessary for being subject to legitimate political authority. Thus, the fact that two consenting adults don’t recognize the legitimacy of laws forbidding potentially lethal pistol duels to defend insults to their honor does not exempt those persons from being subject to the relevant laws. So neither competent and informed consent nor “role identification” in Hardimon’s sense seems to be necessary for having genuine authoritative obligations. But something closely related may be. 163 Manne, “On Being Social in Metaethics,” 68n47. 164 Raz, The Authority of Law, 8. 101 3.3: Reasons to Identify with a Role As a first pass at what might justify authority, at least in the case of non-voluntary institutions, consider David Estlund’s notion of normative consent. Estlund’s idea is that it is possible for one to have sufficient reason or even an obligation to allow another person to treat one in a certain way, even if in fact one refuses to allow such treatment. 165 In Chapter 6, I will argue against Estlund’s main example in support of this view, since it suggests that it is possible to have legitimate authority outside of institutional contexts. Nevertheless, I will argue that Estlund’s core suggestion is amenable to an institutional interpretation. In particular, it seems possible to have reason to consent to obey a particular authority, in a way that is distinct from simply having reasons to occupy a particular institutional role, or to participate in a practice, or to comply with institutional obligations (since, as we have seen, justifications in terms of such reasons do not necessarily lead to identity-related obligations of the sort characteristic of legitimate authority and are subject to counterexamples). Along these lines, I propose that at least the following two conditions must be met in order for someone to be subject to genuine authoritative obligations: first, one must actually occupy an institutional role, such that one is subject to certain institutional obligations as a result of being the subject of an institutional authority relationship; and, second, one must have sufficient reason to identify with that institutional role, where such reasons are understood as distinct from other types of reasons to occupy that role, or to participate in the institution, or to comply with the institution’s rules. On this view, what explains (at the most general level) why the children in the previous example are subject to the familial obligations that their parents, as legitimate authorities, impose on them, is that the children have decisive reason to identify with the roles that they occupy within the family, roles which—as a matter of social facts about the (admittedly nebulous) social practice of the family—involve the normative attributes of being subject to the authority of the persons who occupy the roles of parents within that family. And, I submit, a similar explanation exists for other instances of someone’s having the distinct, identity-related type of obligations that are characteristic of legitimate authority. With these considerations in mind, we can thus propose the following general principle of what makes an institutional role normative: if you both occupy a role in a social 165 Estlund, Democratic Authority, Chapter 7, 117ff. 102 or institutional practice, and you have sufficient reason to identify with a role that you occupy, then that role for you constitutes a source of identity-related reasons and obligations. Call this the normative identification principle. One way to acquire reasons to identify with a role, I submit, is through consent that is sufficiently competent, informed, uncoerced, and so on. But, as Estlund suggests, one might have such reasons anyway, regardless of consent. Thus, on my view, actual acts of consent or commitment are not required in order for role obligations to be normative. All that is necessary is that the subject actually occupies an institutional role and has sufficient reason to identify with that role. If these conditions are met, I submit, then the subject has the sorts of obligations that would normally result from actual consent in the case of a voluntary institution, and, moreover, the sorts of identity-related obligations that are distinctive of legitimate authority. We might wonder what sorts of reasons we have to identify with our roles. Echoing Marmor’s view of reasons to participate, we might say that our reasons to identify with our roles in social and institutional practices “are too varied and context-sensitive to allow for a general formula that can apply to all cases.” 166 Thus, just as Estlund in defending normative consent declines to “specify which precise features of the case have ensured that it would be wrong not to consent,” 167 I decline to offer here a substantive account of what sorts of considerations can give us reasons to identify with a role, since explaining every institutional obligation that turns out to be normative is beyond the scope of this dissertation. What we can say about such reasons, however, is this. First, this is plausibly the type of reason that actual consent (that is suitably competent, uncoerced, and so forth) gives us, and it is in virtue of having sufficient reasons of this sort that a role we occupy is normative for us. Second, the way in which reasons to identify transmit their normative force is not instrumentally, in terms of a means-end transmission principle. Although one may have instrumental reasons to identify with a role, what having such reasons gives one are essentially non-instrumental, identity-related reasons to comply with the institutional obligations that attach to a role. In other words, having reason to identify with a role gives one reasons to comply with institutional obligations that are not the result of a means-end transmission principle. As a result, having sufficient reason to identify with a role that one occupies is, on my view, the normative ground of identity-related reasons and obligations, 166 Marmor, “The Institutional Conception of Authority,” 255. 167 Estlund, Democratic Authority, 133. 103 regardless of whether one recognizes those reasons. Together, these constitute the crucial differences between my proposal and the view I examined in the previous section. Admittedly, as I just mentioned, some of reasons we have to identify with a role may be instrumental reasons. Indeed, we can have a wide variety of reasons to identify with roles, some of which are instrumental in nature, and some of which are not. For instance, it is instrumentally good for various reasons, such as health and welfare, for children to identify with their roles within a family. 168 By contrast, it may be non-instrumentally good for someone to identify with his role as a father because it gives his life meaning. In many cases, we will likely have both instrumental and non-instrumental reasons to identify with the same role. For instance, I may have reason to identify with my role as an employee of a certain institution both for the reason that it is highly remunerative and for the reason that the work is intrinsically satisfying. Ultimately, what is important not to miss is that the structure of a justification of institutional obligations that is grounded in reasons to identify with a role is essentially different from one that is grounded in various other types of reasons. Thus, it is worth recalling that, as we saw in the case of Anne, reasons to participate in an institution don’t necessarily make it the case that one’s institutional obligations are normative (in the reason- involving sense). Likewise, as we saw in the case of Brad, reasons to be a good or effective agent don’t translate into reasons to identify with the role of an agent. Finally, as we saw in case of Ivan, reasons to occupy a certain role don’t entail that one has genuine, identity- related obligations stemming from that role. Together, we can summarize these points in the following conclusion: the essential difference between my proposal and sort of reasons that we examined in the previous section is that the latter involve the instrumental transmission of reasons, whereas my proposal does not. 169 Rather, reasons to identify with a role constitute a distinct type of reason that, together with the fact that one actually occupies an institutional role, is the most plausible normative basis for genuine role obligations—which is the form of obligation that institutional authorities purport to create and which legitimate authorities in fact create. 168 Thanks to Andrei Marmor for pointing this out to me. 169 We might also wonder about the relationship between these two kinds of reasons, in particular whether reasons to identify with a role entail reasons to participate in an institution. The short answer is yes: if one both occupies a role, and identifying with that role is justified by the normative identification principle above, then one has reason to participate in the relevant institution and to comply with the institutional obligations that attach to the role in question. But there is no such entailment in the opposite direction. 104 A final worry concerns whether it is possible to bring the reasons that actual consent gives us under the umbrella of the normative identification principle. Marmor, for instance, seems opposed in principle to justifying institutional obligations in terms of normative consent, and he explicitly rules out this sort of interpretation of reasons to participate in an institution: “I do not believe that it is helpful to think about such reasons in quasi- consensual terms—such as the wrongness of withholding consent or some conception of hypothetical consent.” 170 Unfortunately, Marmor doesn’t say why he rejects this sort of view, only that it “is not a position that [he] can undertake to defend here.” 171 Let me suggest, however, that we have reason to be cautiously optimistic that normative consent can play the role I have spelled out for it here in terms of reasons to identify with a role. It would be preferable, ceteris paribus, to have a general justification of legitimate authority that was not bifurcated in its explanatory scope between voluntary and non-voluntary institutions. And I have claimed that it is plausible that both actual consent (appropriately restricted) and normative consent can give us the same sort of reason, namely, reasons to identify with a role, and that it is this sort of reason that grounds the identity- related obligations that are characteristic of legitimate authority. It may be that actual consent is necessary in voluntary cases not only for justificatory reasons, but also for the purely non- justificatory reason that it is required in order to explain why one has the institutional obligations in the first place that are object of justification in a voluntary context. Otherwise, it seems that actual consent plays the very same justificatory role in voluntary institutions that normative consent plays in non-voluntary institutions. This suggests that it might be possible to merge these accounts under the umbrella of reasons to identify with a role. If so, then we would have a fully general explanation available in terms of reasons to identify with a role that would be present in any justification of legitimate authority, regardless of whether it involves a voluntary or non-voluntary institution. Moreover, this view of what an external justification of the institutional obligations imposed by legitimate authorities look likes is intended as a friendly suggestion for any institutional view of authority that interprets institutional obligations as non- normative facts, and thus seeks an external justification of the distinctive identity-related reasons imposed by legitimate authority. 170 Marmor, “An Institutional Conception of Authority,” 251. 171 Ibid. 105 CHAPTER THREE Raz, Authority, and Priority In this chapter, I will address a pair of challenges for accounts such as my own that try to explain legitimate authority in terms of an ontically prior descriptive notion of practical authority, a role that my account claims institutional authority plays. First, I will address Raz’s claim that a system-relative notion of authority cannot have practical import, and thus cannot explain the normative concept of practical authority (i.e., legitimate authority). In response, I will argue that it is perfectly coherent to have a concept of practical authority that is necessarily relativized to a system of rules, and that reasons to identify with a role in such a system can supply the practical import Raz claims is necessarily missing. Second, I address Raz’s claim that an account of legitimate authority that offers a descriptive notion of authority plus some sort of justification necessarily puts the explanatory cart before the horse, since legitimate authority is the conceptually prior notion. I will argue that although there is some truth to Raz’s claim, in particular when it comes to conceptual priority, this does not rule out an explanation of the necessary conditions for legitimate authority according to which legitimate authority depends on having institutional authority, and in which institutional authority is thus ontically prior to legitimate authority. Finally, I address the objection that if legitimate authority doesn’t depend on recognition by those subject to it, then it isn’t clear why legitimacy should depend on having institutional authority. I argue that lacking institutional authority entails that one does not have legitimate authority, and thus to the extent that institutional authority depends on recognition, lack of recognition can undermine legitimacy. But this relationship in turn depends on the nature of the institution in question, and thus legitimate authority doesn’t necessarily depend on recognition of one’s legitimacy. 1. The Priority of Institutional Authority: Two Arguments In the Introduction, I explained how non-normative-first theories, such as those espoused by both Hershovitz and Marmor, start by assuming that it is possible to talk about practical authority in a legitimacy-neutral sense that is prior to and shared by both legitimate and illegitimate authorities. Although I am sympathetic to this idea, I argued in the Introduction there is good reason to want a more ecumenical argument for the priority of institutional 106 authority, such that, rather than taking it as our starting point, it should be a conclusion that is the result of examining what the necessary conditions are for having legitimate authority. Thus I offered an argument in Chapter 1 that the best explanation of the reason-giving that is distinctive of legitimate authority involves appealing to institutions and institutional roles. In this chapter, I will address two possible objections to this idea. In particular, Raz has argued against an approach that would seek to explain legitimate authority in terms of what he calls a system-relative conception of authority, of which institutional authority as I have defined it in Chapter 1 is clearly an instance. So, if I am to defend an institution-relative view of practical authority, it will be necessary to address Raz’s arguments against the explanatory priority of a relativized notion of authority. Raz’s first argument against the sort of explanatory structure I have proposed is based on the idea that relativized authority lacks practical import. Against this claim, I will argue that reasons to identify with institutional roles, as outlined in Chapter 2, supply the practical import that Raz claims is missing. Second, Raz claims that non-relativized authority is presupposed by, but not does presuppose, relativized authority. Although Raz is right to insist on the conceptual priority of legitimate authority, I argue that actually having legitimate authority nevertheless requires having institutional authority. Thus, even legitimate authority turns outs out to be essentially relative to an institution. If so, there is no such thing as non- relativized authority that might be a prior object of investigation. 2. Relativized Authority and Practical Import In The Authority of Law, Raz offers the following argument against explaining legitimate authority in terms of a relativized conception of practical authority: Some people hold that authority must be defined by reference to rules: that a person has authority means that there is a system of rules, which confers authority on him. This mode of explanation…substitutes a claim as to when people have authority for a proper explanation of what it is to have authority. … It cannot be taken to be a definition of having authority but of the relativized notion of having authority according to s where s is some set of rules. The relativized notion of authority, however, severs the connection between authority and practical reason. … The explanation of authority must explain the practical import of the concept. … What one ought to do depends on who has authority in a non- relativized sense. (Raz, The Authority of Law, 9-10) 107 Interestingly, Raz argument here seems to anticipate and reject views such as Marmor’s, which involve a system of rules in virtue of which people have the normative power to impose institutional obligations on others. In fact, both my view and Marmor’s fall within the scope of Raz’s argument insofar as they share the view that legitimate authority is essentially institutional in nature. Two points are appropriate here in response to Raz. First, it isn’t clear that Raz’s preferred object of analysis, namely, “authority in a non-relativized sense,” is a coherent notion. My argument in Chapter 1 was intended to show that legitimate authority is an essentially institution-dependent notion. And this argument was intended to appeal only to premises that would be acceptable even to someone who might reject the non-normative- first starting point of Hershovitz and Marmor. But if legitimate authority is essentially institutional, then there is no such thing as authority in a non-relativized sense. There is, to be sure, a distinction on my view between institutional authority and legitimate authority. But, if the argument in Chapter 1 is right, legitimate authority is just institutional authority for which there is a justification in normative terms. In other words, my argument entails that legitimate authority is normative in both the rule-involving and reason-involving senses, but never in merely the reason-involving sense. Thus, it is not obvious that it makes sense to privilege “authority in a non-relativized sense” as an object of analysis. In addition, a relativized notion of authority has numerous explanatory benefits. In particular, it allows us to refer to the perspective of either an institution or an individual, qua institutional participant. And Raz himself acknowledges the usefulness of a relativized notion of authority for this purpose: “We need such a device to be able to talk of the views of other people about authority…. To do this we have in talk of relativized authority a way to refer to what those people or societies accept or propose as legitimate authority without endorsing those views. We simply state what authority is had by whom from a certain point of view.” 172 But what Raz doesn’t seem to recognize is that we need such a device to be able to talk about authority at all, including legitimate authority. Second, and more to the point, the fact that one’s conception of authority is essentially institution-relative does not entail that it lacks practical import. Raz is right to insist that that an institutional conception of authority by itself is incomplete, at least insofar 172 Raz, The Authority of Law, 10-11. 108 as one is interested in justifying legitimate authority. So in order to explain the practical import of an institution-relative notion of authority, which Raz claims is lacking, we have to show that the institutional obligations people have in virtue of the institutional roles they occupy are obligations in the reason-involving sense, and not merely in the rule-involving sense. Thus, in Chapter 2, I examined the sorts of possible justifications of institutional obligations that might be offered, and I proposed that the best candidate for such justifications would be in terms of reasons to identify with an institutional role. We saw that a necessary condition on any justification of any institutional obligations is showing that someone actually occupies the relevant institutional role. One might have doubts about this account, but the important point is that, whatever story we tell about justification, if we can offer an external justification such that someone’s institutional obligations are normative for her, in the sense that they constitute genuine identity-related obligations, that would solve the problem of practical import that Raz claims exists for a relativized notion of authority. Thus, at most Raz can be charitably interpreted as making the following point: the fact that someone has institutional authority doesn’t settle the normative question of whether she has legitimate authority. Likewise, the fact that someone has an institutional obligation in virtue of occupying a certain role doesn’t settle the normative question of whether she has a genuine identity-related obligation as a result. In particular, someone can occupy a role that she does not have reason to identify with (and thus her institutional obligations would not be normative for her in the reason-involving sense). But the fact remains that we have good reason to accept the claim that all legitimate authority must be understood in terms of institutional authority that is justified, and in Chapter 6 I will argue that putative counterexamples to this claim do not stand up to scrutiny. If so, then there is no sense in which non-relativized authority is explanatorily prior to relativized authority. Moreover, it is worth noting that, as far as the relationship between institutional authority and legitimate authority is concerned, there is no room for a Darwall-style insufficiency objection of the sort that we saw in the Introduction that Raz’s account is subject to. This is because, in the first place, the institutional question is settled: because the institutional obligations that attach to a role are fixed by the rules of an institution, it is simply a descriptive fact that the bailiff has an obligation, in the rule-involving sense, to do as the judge instructs him. If, in addition, we know that someone has sufficient reason to identify with that institutional role, then we know enough to say the role obligations he has 109 are normative for him not only in the rule-involving sense as institutional obligations, but also in the reason-involving sense as genuine obligations. And so we have an explanation of how institution-relative authority can have genuine practical import. 3. Relative Authority and Presupposition In addition to claiming that a relativized notion of authority lacks practical import, Raz also argues that “the non-relativized notion [of authority] is the primary one” because, according to Raz, the relativized notion of authority “presupposes the non-relativized notion, which does not presuppose it.” 173 I submit that, if my argument in Chapter 1 is sound, then this claim is only half true. In particular, it is true that the concept of legitimate authority is necessary for understanding what it is to have institutional authority; but it does not follow that it possible to have legitimate authority that does not presuppose relativized authority. Rather, in terms of the necessary conditions for having legitimate authority, it turns out to be the case having legitimate authority does presuppose having institutional authority, and thus legitimate authority is not explanatorily independent of institutional authority in the way that Raz claims. I will now explain Raz’s claim about presupposition and my response to it in more detail. In “The Problem of Authority,” Raz argues that we first need to grasp the normative concept of legitimate authority in order to grasp the descriptive concept of what he calls “de facto” authority. Although de facto authority for Raz typically involves, among other things, effective control over a territory, it is safe to assume that Raz would endorse a similar claim about needing to understand legitimate authority in order to grasp the concept of what I have called institutional authority. And presumably he would endorse such a claim for the sort of reason just cited: namely, that institutional authority presupposes legitimate authority, but not vice versa. And this is precisely what Raz says about de facto authority: “What makes mere de facto authorities different from people or groups who exert naked power (e.g. through terrorizing a population or manipulating it) is that mere de facto authorities claim, and those who have naked power do not, to have a right to rule those subject to their power. They claim legitimacy.” 174 Consequently, he claims, “If that is right, then the concept of 173 Raz, The Authority of Law, 11. 174 Raz, “The Problem of Authority: Revisiting the Service Conception,” 128. 110 legitimate authority has explanatory priority over that of a mere de facto authority.” 175 In response to this, we can concede that Raz seems to be right that explaining practical authority, even in the legitimacy-neutral sense that Hershovitz and Marmor assume exists, necessarily involves having at least a rough idea of what someone who purports to have legitimate authority is purporting to have, and what those who accept someone as having legitimate authority take that person to have. In this sense, then, but in this sense only, the general notion of legitimacy or justification presupposes, and is explanatorily necessary for, understanding and describing practical authority in descriptive terms. Thus it is true, as Raz claims, that “there can be no de facto authority among people who do not have the concept of [legitimate] authority.” 176 And a similar claim applies to institutional authority, the exercise of which I have already argued essentially involves a presupposition of legitimacy, that is, of the ability to give others obligations in the reason-involving sense in virtue of the institutional roles they occupy vis-à-vis one’s own role as an authority. Thus, the first part of Raz’s claim here is true: having and exercising institution-relative authority does presuppose legitimacy (though, of course, this presupposition may or may not be satisfied 177 ). But, if the conclusion of my argument in Chapter 1 is correct—namely, that someone’s having legitimate authority depends essentially on her also having institutional authority—then it is also true that legitimate authority presupposes institutional authority. If legitimate authority is essentially institutional, as I claim, then at the very least we can say legitimate authority presupposes institutional authority in an ontic sense. Moreover, this needn’t be a conceptual presupposition for the ontic priority claim to be true. As I have argued, it is clear that the ontic priority claim about institutional authority is true in a variety of paradigmatic cases of legitimate authority, and it is my claim that the best explanation of the distinctiveness of the obligations imposed by legitimate authority can be cashed out in terms of the essential institution-dependence of legitimate authority. And, in case doubt about this dependence remains, in Chapter 6, I offer further arguments against putative cases of non- 175 Raz, “The Problem of Authority,” 129. 176 Ibid., 133. 177 Although having institutional authority depends on having the concept of legitimate authority—that is, in order to purport to have legitimate authority, both a putative authority and her subjects must have the concept of legitimacy—the existence of institutional authority in no way depends on anyone’s actually having legitimate authority. In short, the existence of institutional authority is in principle fully compatible with the general truth of anarchism about legitimate authority. 111 institutional legitimate authority. Of course, we may still wonder whether legitimate authority also presupposes institutional authority in a conceptual sense. I wish to remain neutral, however, as to whether our ordinary concept of legitimate authority itself is essentially institutional. One reason for this is that which I laid out in the Introduction, where I advocated in favor of an ecumenical argument for the institutional nature of legitimate authority. In particular, it would beg the question in favor of a non-normative-first view to claim that the concept of legitimate authority presupposes the concept of institutional authority, and thus that opponents of that approach are in fact making a conceptual mistake. But if our ordinary conception of legitimate authority is not (or at least not obviously) institutional, we would also have a diagnosis of why it is possible for Raz to make the mistake he does here of thinking that it is possible for there to be “authority in a non-relativized sense” and for him to think that authority in that sense is conceptually independent of authority in a relativized sense and therefore the primary object of analysis in seeking to understand practical authority. 178 We are now in a position to explain where some of Raz’s more striking claims about the direction of explanation when it comes to practical authority go astray. For instance, Raz claims that descriptive accounts of the necessary and sufficient conditions for practical authority “fail to elucidate the nature of authority in any way at all. …[T]hey fail altogether to explain what these conditions are for, what it is to have authority or to be in authority.” 179 In response, we can say the following: Raz is right that a descriptive account by itself is incomplete. Thus it is true that institutional authority does not constitute a sufficient condition for having legitimate authority. But Raz’s claim that a descriptive account does not illuminate the nature of authority at all is false, in particular when it comes to describing the necessary conditions for legitimate authority since, as I argued in Chapter 1, institutional authority is among the necessary conditions for having legitimate authority. Although Raz is right that we ought to begin by analyzing legitimate authority, it would be misleading to give an account of the normative conditions for legitimate practical authority before having in 178 Another possible result is that the concepts of institutional and legitimate authority both presuppose each other. And it is not incoherent to think that these two concepts might be interdefinable in this way. In fact, as we will see in Chapter 5, Darwall is also committed to the interdefinability of several concepts that he calls “second-personal” concepts, one of which is practical authority (in the normative sense). I myself am not committed to this idea for the reasons already given, but I am in principle open to an argument that would have this result. 179 Raz, The Authority of Law, 5. 112 hand a descriptive account of the necessary non-normative conditions for having institutional authority. Rather, when we try to understand the concept of legitimate authority, we have to avoid, as Brian Bix puts it, “equating a concept with the answer to a moral question” 180 —and vice versa. Thus, even though it makes sense to start with legitimate authority, as I did in Chapter 1, we cannot complete our analysis of the necessary conditions for legitimate authority without describing authority in an institution-relative way. In conclusion, even if having institutional authority requires a basic grasp of legitimate authority, understood as the ability to impose identity-related obligations in the reason-involving sense, a substantive account of the conditions under which someone actually has legitimacy requires including having institutional authority among those conditions. In fact, it seems to be a desideratum of a theory of practical authority that it allows us to understand the claims made by those who purport to have legitimate authority (and the attitudes of those who accept and reject such claims) in such a way that those who disagree about the justification of such claims can be understood to have a common subject matter about which they disagree—namely, the legitimacy of institutional authorities 181 — which makes sense if, as I claim, legitimacy is a property that institutional authority either has or lacks. 4. A Worry About the Ontic Dependence Claim Let us now turn to consider a potential worry about the ontic dependence of legitimate authority on institutional authority. This worry is based on the observation that institutional authority and institutional obligations, qua social facts, depend for their existence on at least some members of an institution recognizing their existence: for instance, the existence of law seems to depend on the recognition by legal officials of the legal validity of certain texts. Consequently, we might worry that it isn’t always possible for someone to have either legitimate or even institutional authority without those subject to their authority recognizing it. In this section, I will argue that although some institutions might have a dependence relationship of this sort, it is not essential to institutional or legitimate authority that it depend on recognition in this way. 180 Bix, “Raz, Authority, and Conceptual Analysis,” The American Journal of Jurisprudence 50, (2005): 311-316, 312. 181 For a recent discussion of the contested nature of normative conceptions of the more protean concept of legitimacy with respect to authority, see Arthur Isak Applbaum, “Legitimacy Without the Duty to Obey,” Philosophy & Public Affairs 38 (2010): 215-239. 113 One worry is that the very existence of the rules or conventions that give the general in the army legitimate authority depends on others’ belief in his legitimacy, that is, on the fact that at least some, if not most, members of the army accept that the general’s orders give them genuine obligations. Moreover, one might worry that both the existence of the institutional role obligations that authorities impose as well as the power to impose them seem to rely on the recognition by members of the relevant institution that they occupy certain roles and that they have certain obligations (or the power to impose obligations) in virtue of occupying those roles. So both legitimate and institutional authority, at least in some cases, seem to depend on recognition—of either one’s legitimate authority, or one’s institutional authority, or both. In reply, we can begin by observing that legitimate authority does not appear to depend on such recognition in all cases. For instance, parents’ directives seem to give their children genuine reasons for action regardless of whether their children recognize their authority or treat their directives as reasons. To return to the example from the previous chapter, Raz seems justified in claiming that “Parents have [legitimate] authority over their children regardless of whether their children actually acknowledge their authority.” 182 But if that is the case, then one might question whether legitimate authority depends on institutional authority in the way I have claimed it does. If legitimate authority doesn’t require recognition and institutional authority does, then why should legitimate authority require the existence of an institutional authority? 183 In reply, I grant that it is true that the legitimacy of parental authority does not in general seem to depend on recognition by the children subject to it. But even though legitimacy is not recognized in this case, institutional authority is still present. This is because children’s rejection of their parents’ legitimacy does not entail the collapse of the institution of the family. It does not remove the parents from their familial roles as parents, nor does it alter the familial rules that authorize the parents to impose familial obligations on the children. In short, the children’s failing to treat their familial obligations as reasons doesn’t undermine the parents’ institutional authority. 182 Raz, The Authority of Law, 8. 183 I deal with other putative examples of legitimate authority that do not seem to require an institutional background in Chapter 6, such as David Estlund’s example of a flight attendant giving directions in an emergency (Democratic Authority, 124), and Stephen Darwall’s example of demanding that someone get off one’s foot (SPS, 5). 114 Moreover, our rejection of either our institutional obligations or of someone’s role as an institutional authority does not obviously affect their ability to give us institutional obligations either. 184 Both parents and legal authorities can plausibly give us institutional obligations, despite our failing to recognize them as having institutional authority. For example, my believing that there is no law against drunk driving on the books does not make it so, nor does my denying that the legislature has the power to determine my legal obligations—or, for that matter, whether my legal obligations are normative (in the reason- involving sense). Even if I fail to recognize the legislature’s legitimacy, the legislature’s power to affect both my legal and (if it has legitimate authority) moral obligations remains intact. Perhaps if every official in a legal system were to cease to recognize the legal validity of a certain text, it would make sense to say that it would no longer be law. But in general it isn’t the case that institutional authority depends on the recognition of every person subject to it. Rather, the extent to which institutional authority depends on acceptance of the members of an institution will depend on the institution, and thus the worry we started with is not generally applicable. Thus, although in some cases institutional authority may depend on recognition, and in some cases legitimacy does not depend on recognition, it is not the case that either legitimate or institutional authority in general depends on recognition. In particular, having institutional authority does not seem to depend on accepting that institutional authorities are legitimate. In fact, it seems possible at least in principle that an institution could sustain social rules or conventions with respect to institutional authority and institutional role obligations even though no one ever took their institutional obligations to constitute genuine obligations, even in a weak sense. In other words, in order for to A to have institutional authority over B doesn’t obviously require B or anyone else in the institution to accept that A’s authority is legitimate: the general’s order clearly gives the solider at least an institutional obligation to march into battle, regardless of whether any given solider take takes the general to have given him a genuine obligation with any 184 On this point, it is worth noting that that the recognition of institutional authority with respect to a given domain does not, ipso facto, rationally commit one to believing that that person has legitimate authority with respect to that domain. For instance, imagine a subject, S, who is a philosophical anarchist and so believes that no one has the power to create genuine obligations for him in the way required for legitimate authority. Still, he understands how the institution that employs him works, and he recognizes that his boss, A, has institutional authority over him according to the rules of the institution. Moreover, S routinely does what A tells him to (for the prudential reason, say, that S doesn’t want to get fired). Nonetheless, although A both has and is recognized by S to have institutional authority and efficient authority (i.e., behavioral compliance), S still rejects that A has legitimate authority over S. 115 normative force. Ultimately, whether or not one’s institutional authority depends on recognition of one’s legitimate authority may be specific to the particular rules and conventions of a given institution, as well as whether it is common practice to enact those roles in a way that is, to borrow a term from Dan-Cohen, “detached” or “nondetached.” 185 As he says, “[I]t is not really necessary for anyone at AT&T, including those who see to it that [others] perform [their] tasks, to identify with their roles.” 186 That is, some institutions may be able to function even if everyone does their jobs merely in order to get a paycheck, or only out of fear of being laid off, and not because they take their bosses’ directives to have anything like legitimate practical authority or to give them genuine role-based obligations. Of course, widespread disillusionment and consequent disobedience of authoritative directives that impose institutional obligation might undermine institutional authority in some cases. Referring to the law, Hans Kelsen writes, “A norm is considered to be legally valid on the condition that it belongs to a system of norms, to an order which, on the whole, is efficacious.” 187 A similar principle might be true with respect to someone’s ability to alter legal obligations (or institutional obligations in general). Consider the case of a deposed king. Assume that his throne has been usurped and that no one any longer recognizes him as king. In other words, there is no longer a social institution in existence in which he plays the role of king, and there are no longer social rules or conventions that are widely recognized such that his commands determine the social facts about others’ institutional obligations. It may be the case that the former king ought to be reinstated and his former institutional authority restored. But in order to exercise legitimate authority, the former king would have to invoke an identity he no longer has—namely, occupying the institutional role of king—as it is precisely that institutional role that has been usurped. Now it might be understandable, for instance, for some of the deposed king’s former subjects to say that the person whose throne has been usurped is the “legitimate king”; but it would also be misleading in a crucial way to say this, precisely because the person in question is in fact no longer the king (being which involves occupying an institutional role, which is a matter of institutional facts). Once deposed, there is no sense in which the former king could 185 These are the terms Meir Dan-Cohen uses in “Law, Community, and Communication,” in his Harmful Thoughts: Essays on Law, Self, and Morality, (Princeton, NJ: Princeton University Press, 2002): 13-36. 186 Ibid., 17. 187 Kelsen, General Theory of Law and State, A. Wedberg, trans., (New York: Russell & Russell, 1961), 42. 116 give us identity-related reasons for action qua king, since he no longer occupies the role of king. We might have a moral obligation to restore him to his throne; but we cannot have a duty as the king’s subjects to do so if there is no one who occupies the institutional role of king to give us institutional role obligations. He cannot have legitimate authority, because he does not have institutional authority in the first place that can be either legitimate or illegitimate. Thus, surprisingly, it turns out that removing institutional authority can undermine legitimacy, even though (as we have seen) neither legitimate nor institutional authority necessarily depends on recognition by those subject to it, and the extent to which it does so depend is a function of the structure of particular institutions. Moreover, it may be possible to have and sustain institutional authority without anyone’s accepting that one’s institutional authority is legitimate. In conclusion, then, this chapter has served to clarify the ways in which institutional authority does and does not depend on legitimate authority, as well as the ways in which institutional and legitimate authority do and do not depend on recognition. 117 CHAPTER FOUR Species of Authority In Chapter 1, I offered a view of institutional authority as a distinct social phenomenon that can be elucidated in descriptive terms and that depends essentially on institutional roles. One has institutional authority, I suggested, just in case one occupies an institutional role such that one has the ability to intentionally alter others’ institutional role obligations by one’s say- so in virtue of intending to do so. Moreover, I claimed that having institutional authority is a necessary condition on having legitimate authority—that is, in order to give others genuine, identity-related obligations, it is necessary to have institutional authority. There are several types of worry that we might still have about the account I have given. One type of worry, which I will deal with in Chapter 6, asks whether obligation-giving in the practical domain necessarily depends on having institutional authority. In this chapter, however, I will deal with a different type of worry that starts from the observation that giving others epistemic reasons doesn’t seem to require occupying an institutional role. But, some authors have suggested, giving others epistemic reasons counts as a form of authority in the normative sense. And if so, it means that the institutional view I outlined in Chapter 1 is mistaken with respect to authority in general, which should be understood, these authors argue, to include both epistemic authority and practical authority. Against this worry, I will argue that epistemic reason-giving should not be construed as a form of authority, and thus whether it is institution-dependent is irrelevant. There are two views in particular against which I will seek to defend my view. The first is that of Daniel Star and Candice Delmas, who argue for what they call a “minimalist” conception of authority. 188 They argue that the fundamental hallmark of authority is simply that it involves reasons that originate outside oneself in the sense of being phenomenologically external, and thus both epistemic and practical reason-giving count as forms of authority in this sense. I argue that their proposal has implausible implications and that we should therefore reject it. A second version of this worry comes from Linda Zagzebski, who seeks to develop in the epistemic domain an analogue of Joseph Raz’s view of authority in the practical domain. 189 Zagzebski argues that it makes sense to talk about both having and giving others 188 “Three Conceptions of Practical Authority,” Jurisprudence 2(1), (June 2011): 143-60. 189 Linda Trinkaus Zagzebski, Epistemic Authority: A Theory of Trust, Authority, and Autonomy in Belief (Oxford: 118 epistemic obligations, and that the latter should count as authority for the same reasons that the power to give others practical obligations counts as authority on Raz’s view. I argue that we should reject the idea that we can impose epistemic obligations on others, and thus that we should reject Zagzebski’s argument for an epistemic analogue to practical authority. 1. The Minimalist Conception of Authority In “Three Conceptions of Practical Authority,” Star and Delmas argue that the way to approach the idea of practical authority is by starting with a more general idea: [W]e believe that the best place to begin understanding practical authority is with a pared back conception of it, as simply a species of normative authority more generally, where this species is picked out merely by the fact that the normative authority in question is authority in relation to action, rather than belief. We call this the minimalist conception of practical authority. (Star and Delmas, “Three Conceptions of Practical Authority,” 143) Star and Delmas offer the following as a first pass at the general notion of ‘authority’ that they have in mind: “[T]he problem of authority is the problem of the possible justification of one being subject to directives originating outside oneself.” 190 In order to judge whether we should agree with their claim, it will necessary to unpack what exactly they mean. It is important to know here that Star and Delmas are deliberately modifying a statement Raz makes in an article entitled “The Problem of Authority” in which he says: “The problem I have in mind is the problem of the possible justification of subjecting one’s will to that of another, and of the normative standing of demands to do so.” 191 Raz, of course, is concerned with the conditions for legitimate practical authority, and he thinks his way of setting up the problem rules out epistemic reason-giving as a form of authority. According to Raz, one cannot choose to believe, and so giving others epistemic reasons cannot not intelligibly involve claims on another’s will. Thus, because epistemic reason- giving does not involve demands on another’s will that need to be justified, it does not count as a form of authority. Oxford University Press, 2012). 190 Star and Delmas, “Three Conceptions,” 156, emphasis in original. 191 Raz, “The Problem of Authority: Revisiting the Service Conception,” 126. 119 But rather than accept that this identifies a profound difference between practical and epistemic authority, Star and Delmas think that the involvement of demands on another’s will is a superficial qualification of the general idea that is essential to authority as such. Hence, their modification of Raz’s statement of what the question of legitimate authority involves. But what do they mean by “directives” and what is it for a directive to “originate outside oneself”? First, Star and Delmas offer a very broad conception of what can constitute a directive: “Normative reasons are facts that constitute directives for rational agents.” 192 As an example of this, they say, “The fact of [another’s] pain is (or gives rise to) a directive that I must, if I am reasonable, appropriately respond to.” 193 Although this example involves another person, it illustrates a striking feature of their view, namely, that no communicative act is required for a “directive” to be present. Indeed, they make this feature explicit: “Some such facts [that constitute directives] will be facts about commands issued by entities (eg people or institutions), and in such cases their verbal directives may provide normative reasons of a derivative kind, but we should not begin by restricting the notion of a directive to that of a verbal directive.” 194 They make clear that not only is communication not required, but another person isn’t required at all in order to give an agent directives. As they point out, on their understanding of directives “it becomes less problematic to confer authority on” machines, such as an alarm clock, and other non-personal objects. 195 I will return to this conception of ‘directive’ shortly, but for all intents and purposes Star and Delmas appear to be using the terms ‘directive’ and ‘reason’ interchangeably. Second, not all “directives” are authoritative for Star and Delmas, but only those “originating outside oneself.” Thus ‘authority’ only refers to those directives which have a phenomenologically external quality to them: “[N]ormative reasons, like oughts, have a 192 Star and Delmas, 160. Unsurprisingly, the thesis that reasons constitute authoritative directives is incompatible with Darwall’s second-personal view of authority. On his view, directives are only authoritative when they involve second-personal authority, which in turn is cashed out by Darwall in terms of accountability, such that another person has the standing to address us second-personally and demand (and perhaps also to enforce) compliance on our part with the directive. “There is thus a significant difference between the idea of an authoritative claim or demand, on the one hand, and that of …[a] normative reason, or even of a normative requirement, on the other. There can be requirements on us that no one has any standing to require of us” (Darwall, “Authority and Second-Personal Reasons for Acting,” 138, emphasis in original). 193 Star and Delmas, 159. 194 Ibid., 160. 195 Ibid., 156n46. 120 quality of external authoritativeness about them” and do not seem 196 to “rest on properties internal to the agent” but rather in “external facts having to do with other people being in need, promises being made to others etc.” 197 While Star and Delmas don’t tell us much more about what the externality of the reasons they have in mind consists in, we might charitably interpret their comments here as intended to rule out prudential reasons, for instance, as constituting authoritative directives for an agent. Still, Star and Delmas seem to think that a broad range of normative reasons seem to have a quality of external authoritativeness to them, although they don’t tell us what if anything authoritative reasons consist in besides their phenomenological externality. This brief characterization suggests that, for Star and Delmas, the problem of authority is quite simply the problem of the normativity of reasons—a view of “authority” not unlike that expressed at one point by Jean Hampton (albeit in passing). 198 Consequently, on Star and Delmas’s view, explaining what practical authority is amounts, fundamentally, to explaining what it is for an agent to have normative reasons for action. Notice that the Star-Delmas proposal doesn’t make essential mention of another agent, of a communicative act, of intentions, of identity, of institutions, of role obligations, or of a specific type of reason. Their aim is clearly to offer a deeply pared back account of authority as a normative phenomenon, whether it involves institutional roles or not, whether the reasons in question constitute 196 They remain open, in principle, to Humean explanations of normative reasons grounded in the psychology of an agent of the sort offered, for example, by Mark Schroeder in Slaves of the Passions. See Star and Delmas, 159n49. 197 Star and Delmas, 159. 198 The Star-Delmas view has a strong parallel to Jean Hampton’s view of what it is for a reason to be normative: “[A] necessary condition of something's being a reason [is] its having something I called normativity. But what is this normativity? Intuitively we understand it, and in response to it we say such things as, ‘This is a reason for you, so you ought to do it.’ But what is this ‘ought to’? Providing an answer to this question goes to the heart of a reason’s normativity. Henceforth, I will call the compelling nature of a reason its authority. Understanding the nature of the authority of a reason is answering what I call the authority question” (Hampton, The Authority of Reason, (Cambridge: Cambridge University Press, 1998): 85). This is also similar to how Joel Anderson discusses the “authority” of desires, where for him ‘authority’ refers to a certain kind of “normative grip”: “What needs to be explained is why some desires have authority and how they get that authority. How is it that desires…can get the sort of normative grip on one that constitutes authority, such that not acting on them would constitute a shortcoming, a normative failure?” (Anderson, “Autonomy and the Authority of Personal Commitments: From Internal Coherence to Social Normativity,” Philosophical Explorations 6(2), (2003): 90-108, 91, emphases in original). But whereas I take Hampton (and Star and Delmas) to be concerned with the “authority” of reasons, Robert Audi discusses the authority of reason (understood as a faculty) in a highly idiosyncratic way to refer to the ability to have reasons in a normative sense. According to Audi, “[R]eason has cognitive normative authority provided it enables its possessor…to be justified in believing normative propositions,” and “reason has practical normative authority provided it enables its possessor…to have normative reasons for action” (Audi, “Practical Reason and the Status of Moral Obligation,” Canadian Journal of Philosophy 37, (2007): 197-229, 198, 199). 121 obligations or some other sort of reason, and whether those reasons are epistemic or practical. This is indeed a minimalist conception of authority, but it is also deeply problematic—as we will see. 2. Why Authority Is Not Minimalist In Chapter 1, I argued for institutional roles as an essential presupposition of authoritative directives, which I claimed are a type of intentional speech act that purport to alter another person’s role obligations. I claimed that this presupposition explains the basis of the unique type of reason that authoritative directives purport to give, namely, an identity-based obligation, which distinguishes authority from other types of reason-giving. The strikingly broad characterizations of both directives and authority that Star and Delmas offer might be sufficient to call into question whether they are even talking about the same subject. But they clearly take themselves to be engaging in that project. So without dismissing their view as changing the subject, I will argue that the minimalist proposal of Star and Delmas should be rejected on the grounds that their conception of authority is too broad to capture what is distinctive about external authoritativeness, authoritative directives, and what it is for a directive to constitute a reason. First, it is unclear how we are to make sense of the notion of “external authoritativeness” on Star and Delmas’s view. One approach would be to isolate the ways in which authority seems to involve reasons that “originate outside oneself.” For instance, I pointed out that a gunman who threatens to shoot someone else unless we comply with his demand gives us a reason for action, but that the reason he gives us is coercive rather than authoritative or identity-related (although presumably it is possible to give someone both types of reason simultaneously, as the law plausibly purports to do). If the gunman threatens to shoot me, the prudential reasons he gives me for compliance with his demands may not be reasons that “originate outside myself” in the right way; let us assume, for simplicity, that they are not. But clearly if the gunman threatens someone else if I don’t do as he says, he thereby gives me altruistic reasons that clearly do “originate outside myself” in the sense that Star and Delmas seem have identified. But it is implausible to say that this would be a case of authority. We don’t judge immoral coercion in the form of threats to be merely one type of case in which we apply the concept of authority; rather, Hart’s insight is that these simply are not cases of authority at 122 all, and the gunman is not even purporting to have authority. 199 The reason we have, it can be pointed out, is nonetheless content-independent: our reason to do the action doesn’t depend on the content of what we are ordered to do, but on the probability that that we or someone else will come to harm if we do not comply. Thus, the gunman could order me to do any of a number of actions, some of which might be incompatible with each other, on the basis of his threatening me or someone else, and still give me a reason to do as he says. So one option is for the minimalist to reply that “authoritativeness” in the appropriate sense should simply be identified with what others have called “content-independence.” But this would be a serious cost to the view, since, as I just pointed out, credible threats can give us content-independent reasons (including threats that appeal to prudential reasons), as well as offers, invitations, and requests. Perhaps Star and Delmas are willing to bite the bullet here and say that the gunman’s threat is a case of practical authority in the sense they are interested in. The crucial point is, however, that the minimalist about authority is forced to say that cases of both (i) deliberate obedience in response to a directive for the reason that the addressee takes the speaker to occupy an institutional role such that the speaker’s demands can alter the addressee’s role obligations, and the addressee takes the role obligations altered by the speaker to be normative, as well as cases of (ii) mere conformity to a demand based on coercive threats, are both equally cases of practical authority, since in both cases the agent is responding to a “directive” or reason for action which for her is content- independent and thus “authoritative.” Although the reason in each case would be different, Star and Delmas would still have to say that, as far as the applicability of their concept of authority is concerned, there is no fundamental difference between the two cases. This, I submit, is a serious intuitive cost to taking content-independence as equivalent to “authoritativeness.” Second, on Star and Delmas’s view, institutional roles seem to be irrelevant to having practical authority. Above, in an attempt to charitably interpret the notion of “authoritativeness” on their view, I suggested that perhaps their characterization of it was meant to exclude prudential reasons. But Star and Delmas seem to explicitly include prudential reasons (at least, of other agents) as giving rise to authoritative directives, claiming that “agents in the right kind of epistemic position can possess practical authority in cases 199 Hart, The Concept of Law, 19-20. 123 involving the prudential reasons of other agents.” 200 Thus, although Star and Delmas give examples of the sorts of reasons they mean to rule in as authoritative, it is at least hard to see what sorts of reasons they actually rule out. In fact, they say, if we simply imagine a teacher being in a state of complete knowledge about what is actually best for her adult student, and the adult student being epistemically justified in accepting that the teacher is knowledgeable in this way, then we submit that it would not be counterintuitive to think of her as being a genuine practical authority in relation to the student. (“Three Conceptions of Practical Authority,” 153) Notice that Star and Delmas are not saying that it is the teacher’s giving (or being able to give) the student epistemic reasons that makes the teacher count as an epistemic authority. Rather, it is the teacher’s epistemic access to the practical reasons the student has that makes the teacher a practical authority on their view. Thus, in this example, Star and Delmas appear to endorse a strong version of Raz’s view of legitimate authority, with its attendant problems that we are familiar with from the Introduction. But, as we have seen, more is required for practical authority than knowledge of others’ practical reasons: for instance, knowing what is best for my children does not give you the authority to tell them what to do; rather, as at least a necessary condition, one must occupy the familial role of being a parent in order to have the standing to do so. Perhaps not only parents have access to the reasons that apply to their children, but epistemic expertise by itself is not sufficient for practical authority, as Darwall has illustrated with respect to the Chinese cooking case. And this is not simply a minor point, but an essential insight into the necessary requirements for having practical authority, which I have argued includes occupying a certain institutional role, which is presupposed as the basis for having the ability to alter others’ role obligations. 201 So Star and Delmas endorse an implausible view on which epistemic access to others’ prudential reasons (or other sorts of practical reasons) alone is sufficient to ground a 200 Star and Delmas, 154. 201 Without going on to elaborate the sort of institutional view that I do, Jules Coleman nonetheless also expresses his dissatisfaction with Raz’s account of what it takes to have practical authority for others in terms of one’s knowledge of the reasons that apply to them: “I worry that the service conception does not capture the ordinary notion of authority, which to my mind is a relationship primarily between or among persons (and institutions and persons) and not a relationship between reasons and persons” (Coleman, “Beyond Inclusive Legal Positivism,” Ratio Juris 22(3), (September 2009): 359–94, 372). 124 claim to have practical authority. It might ground a claim to have epistemic authority, and in the next section I will examine a different proposal as to whether we should count epistemic and practical authority as two species of the same genus. But at least with respect to the practical domain, it isn’t clear what if any distinct content “authoritativeness” has on Star and Delmas’s view, and it seems that they endorse an implausible view that attributes practical authority where intuitively an institutional role is also required. Third, Star and Delmas also offer an implausibly broad notion of what a ‘directive’ is. Practical authority necessarily involves directives, a claim with which Star and Delmas would agree. And Star and Delmas are surely right to warn us not to restrict our notion of a directive, say, merely to verbal commands: I can gesture, and thereby direct you to close the window, without ever speaking. But it’s not clear why we should be willing to completely divorce the notion of a directive from the sort of communicative act with which it is typically associated, of the sort Bach and Harnish describe in terms of a speaker expressing the “intention that his utterance…be taken as a reason for the hearer's action.” 202 To think of every reason as in some sense constituting or giving rise to a directive seems to lead to implausible consequences, especially with respect to epistemic reasons. According to Star and Delmas, there can be authoritative directives involving epistemic reasons, as there can be involving practical reasons. Raz, of course, denies this: “[I]t hardly needs saying, theoretical authorities, experts, cannot order us to believe one thing or another, and cannot impose duties to believe—the nature of belief and belief formation excludes such duties.” 203 However, like Star and Delmas, Linda Zagzebski seems to think that authoritative directives to believe may not be as problematic as it might first appear: The problem…is not that one cannot obey on command, but that one cannot obey a command to believe when one has no reason to think that what is commanded is true. … [I]f…the subject recognizes that what the authority tells us is likely to be true, it is no harder to believe on command than to believe ordinary testimony…. (Epistemic Authority, 101-2, emphasis mine) 202 Bach and Harnish, Linguistic Communication and Speech Acts, 41. 203 Raz, “The Problem of Authority,” 156. Raz thus denies, quite plausibly, the sort of doxastic voluntarism defended, for instance, by Carl Ginet (cf. Ginet, “Deciding to Believe,” in Knowledge, Truth, and Duty, ed. M. Steup, (Oxford: Oxford University Press, 2001): 63-76). 125 We can note that Zagzebski’s explanation of why authoritative directives to believe make sense includes a crucial qualification of the idea that we can believe on command, namely, that we can do so only if we also have reason to think that what we are ordered to believe is true. We can understand this requirement in two different ways: either we need independent reason to think that what we are commanded to believe is true, or else the act of commanding, in addition to directing us to believe, can also gives us reason in some cases to think that what we are commanded to believe is true. Either way, though, it seems that some evidence that p has to be among my reasons for believing that p. So, even when there is a command made, and a belief forms as a result, the explanation of the belief’s formation could potentially be cashed out in terms of: (i) believing for the reason that one was commanded to believe that p, (ii) believing for the reason that the command provided evidence that p is true, or (iii) both. It is the first sort of explanation that, following Raz, I take to be implausible in terms of reasons for belief. It is telling that we have difficulty finding natural or, more importantly, plausible examples of being commanded to believe that are also reason-giving in this way. As Anscombe points out, the characteristic way of giving epistemic reasons is making statements, and not by issuing directives. 204 Still, we might imagine a scenario in which a command to believe constitutes good evidence that the person commanding us, who is independently known by us to be an expert on the subject she is commanding us to believe something about, herself believes what she is commanding us to believe. But, as Zagzebski seems to admit, it is only in cases where we have independent evidence that p is true, or where the fact of the command provides evidence that the speaker herself believes that p, that we can have the required sort of evidence necessary to believe that p. Yet in neither case does it make sense to suggest that we are “believing on command.” While it might be rational to believe that p where someone’s command gives us reason to believe that she herself believes that p—on an analogy with testimony, as Zagzebski suggests—this apparent example of “believing on command” is fully compatible with the idea that believing for the reason that one was commanded to is the wrong kind of reason for belief, and would be irrational even if psychologically possible. 204 G. E. M. Anscombe suggests this sort of picture with regard to the teaching of ethics, which she argues takes place, where it does, not by way of instructing others to believe certain propositions (even where these are propositions about practical matters), but rather by simply making statements which others take as evidence of their truth (“Authority in Morals,” in The Collected Philosophical Papers of G. E. M. Anscombe, Volume III: Ethics, Religion and Politics. Minneapolis: University of Minnesota Press: 43-50). 126 If so, then there is no positive reason to think that a command to believe can itself count as a reason for which we believe a proposition in a way that parallels how a command can be the reason for which we perform an action in the practical domain. Moreover, it isn’t obvious that the notion of an “authoritative directive” makes sense in epistemic terms in a way that is at all distinct form the way that testimonial evidence in general can give us reasons to believe, which we would be hard pressed in most cases to construe as involving directives to believe. Consequently, even though it seems we can believe in accordance with a command, it is implausible that we can believe out of respect for or in obedience to a command. 205 Distinguishing these two ways of forming a belief helps us to see why it is at the very least confusing for Star and Delmas to use the language of directives with respect to reasons for belief. Since Star and Delmas take ‘reason’ and ‘directive’ to mean something similar, for them to say that a command to believe that p constitutes or provides a directive would be ambiguous, since it isn’t clear (assuming the agent forms a belief as a result in some sense of the command) whether the agent formed the belief for the reason that she was commanded to, or for the reason that she has independent evidence that p is true (on an analogy to testimony). What makes this ambiguity especially problematic is that believing for the former reason is plausibly never justified and perhaps, as Raz claims, is excluded by the very nature of belief formation. In other words, believing as a result of a directive—where ‘directive’ is understand as a command—is ruled out. Believing on the basis of evidence that p, which happens to be given by the very fact that someone tells you to believe that p, however, seems permissible, but still counts as a ‘directive’ on Star and Delmas’s view. This discussion illustrates the need to be clear about what we mean by ‘directive’. For this reason, if we are to take seriously the minimalist objection at the heart of Star and Delmas’s view, it makes sense to drop their use of the term ‘directive’, which adds very little to their view and has unfortunate and misleading echoes with respect to certain types of speech acts that Star and Delmas explicitly deny are essential to authority. Star and Delmas’s own statement of the problem of authority is the problem of “the possible justification of being subject to directives originating outside of oneself.” Instead, I suggest that we consider their view to be one on which the problem is actually that of “the possible justification being 205 Cf. Immanuel Kant’s distinction in the practical realm between acting in accordance with duty and acting from duty (Kant, The Moral Law: Groundwork of the Metaphysic of Morals, trans. H. J. Paton, (London: Routledge, 1991)). 127 subject to reasons originating outside of oneself.” And when the problem is put this way, it becomes far more plausible to think that there is a distinct notion involving being subject to reasons originating outside oneself which is far more general than the notion of one’s will being subject to another’s demands that Raz articulates. But it is also less obvious what justifies calling this broader notion “authority.” Why should we think, apart from simply “noticing” it 206 , that being subject to reasons originating outside of oneself is what we mean when we talk about authority, whether practical or epistemic? One could of course stipulate that this is a distinct, minimalist sense of ‘authority’ that is not necessarily shared by authors such as Raz and Darwall. But Star and Delmas explicitly take themselves to be discussing the very same concept as these other authors. Star and Delmas are free to stipulate that this is how they will use the term, but their use of it seems to be much closer to that of Hampton, which I gestured at earlier, where she is concerned with explaining not authority as Raz understands it, but normativity. Likewise, Star and Delmas seem to be discussing not the authority of directives, but the normativity of reasons. And insofar as they want to claim that this is a plausible account of the very same notion that authors like Raz are interested in, we should reject their account of authority. Interestingly, Star and Delmas acknowledge that if Raz is right about the incoherence of directives to believe, he would be right to resist our move of viewing practical authority as simply a species of normative authority in general; indeed one might then suspect that statements concerning ‘epistemic authority’ and statements concerning ‘practical authority’ involve the deployment of different concepts of authority altogether. (Star and Delmas, 157) So the question is not whether we can coherently discuss the more general idea of “being subject to reasons outside of oneself,” but whether this is in fact the core notion that Raz, Darwall, and others are referring to when in talking about authoritative directives. And it seems reasonable to think that these notions are not really the same after all. 206 “What about the move from ‘subjecting ... to that of another[’s will]’ to ‘being subject to directives originating outside of oneself’? Again, we take this to be a move that simply hinges on noticing that there is a more general problem in this territory than one that centres on the will of the other” (Star and Delmas, 156; ellipsis and brackets in original). 128 The basic problem with the minimalist proposal is that it risks trivializing the very notion of what it means to have authority. This is most evident perhaps when we turn to examples that don’t involve other persons. Star and Delmas claim that their view makes it “less problematic to confer authority on [an] alarm clock” that plays a voice recording, such as, ‘You must get out of bed now!’. 207 On their view, “Even alarm clocks…might possess [practical] authority, in virtue of them reliably issuing directives that make agents better conform with reasons that already apply to them….” 208 Of course, an alarm clock doesn’t seem to be the sort of thing that can occupy an institutional role, or perform speech acts in an intentional sense, and I say more about the specific problems with this sort of example in Chapter 6 when I discuss other putative examples of non-institutional reason-giving. But it also isn’t clear that there is any directive present in this case, verbal or otherwise, despite the alarm clock making sounds resembling human speech, unless it is the person who is the apparent “addressee” of the directive who is also the person issuing the directive to her later self, since it is she who set the alarm to go off in the first place. Even advance directives and so-called “Ulysses contracts” in medicine, for instance, are typically understood as directives to others about how they should treat you, not directives to oneself, and it’s not clear if a self- regarding directive makes sense, even on Star and Delmas’s view. Ultimately, it is unclear why an alarm clock should count an example of practical authority, and not merely epistemic “authority” (i.e., expertise) about what time it is: the machine’s function is to inform you that the time is, say, 7:00 A.M—if, indeed, it counts as an example of authority at all. In any case, non-personal examples of this sort don’t seem to be plausible candidates for cases of authoritative reason-giving. So it’s not that minimalism about authority can’t explain the sorts of reasons an alarm clock gives or the fact that it gives us reasons; rather, the point is that the sorts of reasons it gives don’t seem to involve authority or authoritative directives. In summary, then, the burden of proof clearly seems to be on the minimalist about authority to explain why, and not merely urge us to “notice” that, the unorthodox cases of minimalist “authority” we’ve looked at are examples of authority in the same sense as Raz, Darwall, and others are talking about. My basic claim in this section has been that not all reasons for action, even those “originating outside oneself,” involve authoritative directives or constitute cases of practical authority. In short, the concept of authority has an intuitive 207 Star and Delmas, 156n46. 208 Ibid, 154. 129 texture that is simply not malleable enough to fit the broad minimalist gloss on it that Star and Delmas give it. 3. Zagzebski and Preemptive Reasons But even if authority involves more than “reasons originating outside oneself,” there is a related worry for my account that is still worth considering: namely, if we set aside the distinction between reasons for action and reasons for belief, is there a type of reason common to both domains such that the ability to give others that type of reason is plausibly what we are referring to when we talk about authority? Another proposal for a common core to the notion of authority comes from Linda Zagzebski, who argues that it is possible to formulate principles describing epistemic authority analogous to those Raz claims are distinctive of practical authority. As Zagzebski says, “The kind of reason authority gives me is what is essential to it.” 209 In particular, it is the idea of obligations (understood, as Raz does, in terms of preemptive reasons) that is central to her project of finding a notion of authority that is common to both the practical and the epistemic domains. 210 In this section, I will argue that Zagzebski fails to make the case for an epistemic analogue to the sort of reasons involved in practical authority. Thus, I conclude, it is not plausible that there is a common notion of authority in both the practical and epistemic domains based on the type of reason-giving that it involves. In Epistemic Authority, Zagzebski argues that there is a form of reason-giving in the epistemic domain that meets all the conditions that Raz lays out for having authority in the practical domain, and thus counts as authority in the same sense that practical authority does. I will focus on the first two Razian theses she discusses, since these have to do with the type of reason that authority gives, whereas the latter two have to do with the substantive conditions for successfully giving that type of reason. The first condition of authority that Zagzebski claims epistemic reason-giving can 209 Zagzebski, Epistemic Authority, 102. 210 I am sympathetic to Zagzebski’s idea that generating preemptive reasons is distinctive about authority, and that if there is to be epistemic authority in the same sense that we have been discussing practical authority, it would be have to be in terms of generating preemptive reasons for belief. However, even if this were possible to demonstrate (and I argue that it is not), this preemptive sort of authority would plausibly diverge from what is typically referred to by the term ‘epistemic authority,’ namely, simply the ability to give others reasons for belief, but not necessarily preemptive reasons. Thus Matthew A. Benton writes in criticism of Zagzebski: “[I]t does not seem essential to your possessing…epistemic authority that, if I believe p on your authority, my doing so replaces my own evidential reasons for p” (Benton, “Believing on Authority,” European Journal for Philosophy of Religion 6(4), (2014): 133-144, 140). 130 meet is content-independence. The idea of a content-independent reason, whether for acting or believing, is one that could have been otherwise depending on what one was told to do or, for Zagzebski, to believe. For instance, if S orders me to do X and thereby gives me a reason to do X, but could have ordered me to do Y and thereby given me a reason to do Y instead, my reason for acting is content-independent in that it does not depend on what I was told to do but on other factors (for instance, that it was S who ordered me to do it, or that S will hurt me if I don’t do it). Raz, however, does not claim that being able to give others content- independent reasons for action is a sufficient condition for practical authority, since both requests and, notably, threats can give us content-independent reasons for action. If we had been asked by a friend to do a different favor, or the gunman had demanded that we stand in a different place, the reasons to perform those actions would be just as content- independent as the identity-dependent reason that an authoritative directive purports to give. Still, Zagzebski claims that we can find cases of content-independent reasons for belief: If the epistemic authority had believed a different proposition, the subject would have had reason to believe the other proposition instead. …I would be justified in the same way if the climate scientist had had a different belief about the emissions. (Epistemic Authority, 107) The basic point here seems right: if an expert on a topic would have told me that p is true instead of q, I would be justified in believing that p, even though if he had told me that q is true, I would have had reason to believe that q. And this can be the case even if p and q are contradictory. Of course, it isn’t clear that my content-independent reason to believe in this case depends, as Zagzebski claims, on what the epistemic authority or expert in fact believes as opposed to what he asserts or otherwise indicates, thereby giving us evidence that he believes it. It is plausible that assertion implicates either a speaker’s belief or a speaker’s knowledge, and it is in virtue of this presupposition that epistemic authorities’ assertions and pronouncements give us reasons for belief. But, at any rate, granting the content- independence of at least some epistemic reasons is not problematic, since it is plausible that we can have such reasons. Moreover, this is not yet to admit that there is epistemic authority 131 in the same sense as practical authority, since by all accounts the content-independence of the reasons one gives others is at most a necessary and not a sufficient condition for having authority. The second epistemic Raz-inspired thesis for which Zagzebski argues, and which she considers the most important, is the Preemption Thesis. As we saw in the Introduction, Raz claims that the fact that someone who has legitimate practical authority directs me to perform an action is itself a reason that replaces, and is not simply added to, some of my other reasons for or against performing that action. Zagzebski’s analogous epistemic principle is the following: The fact that the authority has a belief p is a reason for me to believe p that replaces my other reasons relevant to believing p and is not simply added to them. (Epistemic Authority, 107) Importantly, Raz’s Preemption Thesis is his gloss on the idea that by issuing authoritative directives practical authorities impose obligations on us, which he denies that epistemic authorities can do. An obligation, on the Razian picture, is constituted by a compound or “protected” reason, which is composed of both a first-order reason to φ as well as a second- order “preemptive” or “exclusionary” reason not to act on certain first-order reasons not to φ. 211 This second-order reason is meant to replace some of our first-order reasons in deliberation. Raz’s idea is that those who have authority give us a distinct sort of reason for which there is no clear parallel in the epistemic domain: they give us content-independent reasons that are also preemptive in nature. 212 Before looking at Zagzebski’s argument in favor of this thesis, consider briefly the rationale for thinking that this is not something that could be true of epistemic reasons. Heidi Hurd articulates this rationale in discussing advice given by an epistemic authority 213 : Unlike the commands of a practical authority, advice given by one possessed of theoretical [i.e., epistemic] authority does not appear to deprive one of the freedom 211 Raz, The Authority of Law, 23. 212 I am open to the idea that the obligations imposed by legitimate authorities can be understood in terms of exclusionary reasons, but it isn’t obvious that they have to be. Related to this issue, in Chapter 6, I discuss what if any essential differences exist between legitimate authority and other forms of identity-related reason-giving. 213 Heidi Hurd, “Challenging Authority,” Yale Law Journal 100 (1991): 1611-1677. 132 to consider other reasons for belief. Our normal expectation in giving advice is that those to whom it is given will consider it along with everything else. And our general practice upon the receipt of advice is to take it into consideration—to add it to the balance of factors being weighed. Advice thus does not seem to convey even an apparent exclusionary [i.e., preemptive] reason for belief (as commands seem to convey apparent exclusionary reasons for actions). (Hurd, “Challenging Authority,” 1668-1669) Yet Zagzebski wants to defend a theory on which epistemic authorities can give us exclusionary, or preemptive, reasons for belief—that is, Razian obligations to believe. She admits the initial implausibility of this proposal: “It might appear that [taking someone else’s belief as a preemptive reason for belief] requires doing something psychologically impossible: ignoring our own reasons for and against the belief.” 214 And she acknowledges the sort of worry Hurd describes: Why isn’t it more reasonable to add my other reasons to the balance of reasons, perhaps weighting the authority’s belief more heavily than my other reasons? Isn’t the authority’s belief just one more piece of evidence that I put into the mix of my total evidence? (Zagzebski, 114) Zagzebski’s reply here is two-fold. First, she argues that believing on the basis of preemptive epistemic reasons would lead to better results in terms of believing the truth than trying to believe on the basis of the epistemic reasons we have directly, which can justify treating the beliefs of experts as preemptive reasons. Second, she argues that although “theoretical reasons aggregate with each other,” and do so in the just way that Hurd describes, there is “a different kind of reason…that can be marshaled” to play the role of replacing another kind of reason. 215 I will address these two points in order. First, Zagzebski thinks that one ground we might have for objecting to the epistemic version of the Preemption Thesis is that we might think it is more reasonable to add the reasons epistemic authorities give us to the balance of our reasons, instead of allowing those reasons to be replaced. However, she argues that this 214 Zagzebski, 113. 215 Zagzebski, 114. 133 is not the case, and that doing so would in fact worsen our epistemic track record in terms of believing the truth. Zagzebski borrows the idea of improving one’s track record in terms of conformity with the reasons that one has from the argument Raz’s makes concerning deference to practical authority. Raz’s picture of how practical authority is normally justified involves appealing to the way in which compliance with another’s directives results in a person better conforming with the practical reasons one already has. And Zagzebski thinks that a similar story applies to justifying deference to epistemic authority. It makes sense, she thinks, that believing on the basis of preemptive reasons is justified just in case it results in a better track record overall in terms of conforming to the reasons one has independently. It seems clear that epistemic preemptive reasons, if they existed, would play such a role. If someone knows better than we do what epistemic reasons apply to us, then we would do better in terms of conforming to the reasons we already have by allowing an expert’s beliefs to replace our own reasons for belief. And this seems no less true of reasons to believe than reasons to act. But this argument is largely beside the point when it comes to settling whether in fact the beliefs of experts can even play such a role, psychologically speaking, in our deliberation about what to believe in the first place. In her other argument for epistemic preemptive reasons, Zagzebski seems more attuned to this sort of worry about the very possibility of having epistemic preemptive reasons, and not merely the potential benefits of believing for such reasons if we take their possibility for granted. As she says, “[T]o take someone else’s belief as a preemptive reason to believe the same thing…might appear…psychologically impossible.” 216 This worry is made pressing by the fact that Zagzebski herself grants that theoretical reasons for belief aggregate with one another, and never replace each other. And the fact that an expert believes that p clearly seems to be a theoretical reason to believe that p of the sort that should aggregate with other reasons for belief. Together, these two considerations seem to concede Hurd’s point above. But, interestingly, Zagzebski does not think that the only reasons for belief are theoretical. We have in addition, she claims, deliberative reasons for belief. “Deliberative reasons,” she says, “connect me to the truth of p, whereas theoretical reasons connect facts about the world with the truth of p. … They [deliberative reasons] are not reasons for other 216 Zagzebski, 113. 134 persons at all.” 217 Examples of so-called “deliberative reasons” include experiences, intuitions, and emotions: “In fact, any psychic state in myself is potentially a deliberative epistemic reason for me to believe something, including my own states of believing.” 218 The fact that I had an experience is of course a third-personal theoretical reason: “Anybody can form the belief that you had the experience, thereby accessing that fact,” but the experience itself, Zagzebski claims, is for me and only me a reason that is “irreducibly first-personal.” 219 Crucially, Zagzebski denies that first-person deliberative reasons and third-person theoretical reasons aggregate. And this is the essential fact that explains on Zagzebski’s view how preemptive epistemic reasons are possible: “The fact that it [a first-personal or deliberative reason] is a different kind of reason makes it easier to see how it can replace another kind of reason.” 220 For example, on Zagzebski’s view, if I trust S as an expert who knows more than I do, my trust in S can count for me as a first-personal deliberative reason which acts as a preemptive reason for me to believe that p 221 , in combination with the third- personal fact that S believes that p. The idea is that this deliberative reason can preempt my considering other evidence against believing that p, instead of simply adding the fact that S believes that p to my other reasons for belief and forming a judgment on the basis of all of my theoretical reasons. But it isn’t clear why we should grant this privileged status to experiences, intuitions, and so on. Zagzebski says, “[Y]ou and you alone had the experience. That experiences affects many of your reasoning processes, emotional responses, and the way you come to have or give up certain beliefs directly, and that is rational.” 222 It is true that our experiences influence our deliberation. But apart from gesturing at these effects and their rational permissibility, it isn’t clear why the fact that someone else can’t literally share my experience should entail that my experience counts for me as a reason in a way that it can’t count as a 217 Ibid., 64, emphasis in original. 218 Ibid., 65. 219 Ibid., 64-65, emphasis in original. 220 Ibid., 114. 221 For an alternate account of how trusting someone can function as a preemptive reason in deliberation, see Arnon Keren, “Trust and Belief: A Pre-Emptive Reasons Account,” Synthese 191(12), (2014): 2593-2615. Keren argues that trust, cashed out as a belief that someone is trustworthy, can give us preemptive reasons not to take precautions of certain kinds, e.g., believing that a babysitter is trustworthy can function as a preemptive reason not to have the neighbor check in on her. It isn’t clear to me, however, that the role played by beliefs in someone’s trustworthiness is not that of a practical reason not to take certain actions (since even considering evidence seems to be an action in this sense). If so, then Keren’s account seems unlikely to yield anything like epistemic “authority” in Zagzebski’s sense. 222 Zagzebski, 64. 135 reason for anyone else. Why isn’t knowledge of my experience equally a reason for others, if I share that knowledge with them, in the same way that it is for me? But even if we were to grant that experiences can’t count as reasons for others in the very same way as they do for oneself, it still seems deeply puzzling why intuitions, experiences, and emotions can count as reasons for belief but fail to aggregate at least with one’s own other reasons for belief. The reason for being suspicious of this privileged status is the following: even if it is rational to respond to “deliberative reasons” in terms of how they affect one’s reasoning processes, emotional responses, and so on, either deliberative reasons are reasons for belief or not. If they are not, then they can’t be preemptive reasons for belief, since they aren’t reasons for belief at all. But if they are, the best explanation of this fact would have to appeal to their status as evidence, albeit sometimes indirect, of the truth of various propositions. And if so, then it isn’t at all clear why the fact that someone has an intuition, for instance, should in principle be “epistemically relevant only to the person who has it.” 223 I may in fact be the only person who has some piece of evidence; and it may be difficult or even impossible in some case for me to communicate certain evidence. But even if that rules out certain experiences as counting as evidence for others, it still isn’t clear how I can have reasons, which ex hypothesi are reasons for belief, that can’t at least in principle aggregate with my own other reasons for belief. In fact, it seems to be precisely the fact that my intuitions count as evidence that p that explains, insofar as they count as reasons for me at all, why they count as reasons for belief that p. After all, if they didn’t constitute evidence of this sort, it would be irrational for me to believe that p on the basis of my having them. Moreover, insofar as my intuitions are reliable evidence that p is true, they seem to be potentially relevant to other epistemic agents in precisely the same way, if they could access that evidence. It is simply hard to see how any consideration that is a reason for belief for me could not potentially serve as a reason for belief for another person, at least in principle; and even if it is in fact inaccessible for another person, it should at least aggregate with my own other reasons for belief. In short, it is mysterious how to make sense of a reason for belief that cannot in principle be shared or aggregated with other reasons for belief, either intrapersonally or interpersonally. As Darwall puts it: 223 Zagzebski, 65. 136 By its very nature, belief is responsible to an independent order of fact, which it aims to represent in a believer-neutral way. Belief is regulated by an independent truth. … Of course what reasons people have to believe things about the world depend in many ways on where they stand in relation to it. But ultimately their reasons must be grounded in something that is independent of their stance, namely, what is the case believer-neutrally. [I]t is…the presumed relation to the facts as they are anyway that…earns [someone with epistemic authority] the standing to give reasons to us. (Darwall, The Second-Person Standpoint, 56-57) And this suggests another reason to doubt that epistemic reasons can be preemptive in the way that is relevant for authority is the deliberative difference that it seems possible for practical reasons to make that doesn’t seem to have a parallel in the case of epistemic reasons. Marmor proposes that a crucial difference between practical and epistemic authority lies in the fact that “reasons for action generated by [a practical] authority are not directly and exclusively affected by their objective correctness.” 224 The idea is that that when a person knows that p is false, and thus that there are no third-personal reasons that can justify believing that p is true, this undercuts any potential reasons that that person might otherwise have to believe that p, including that one has been told that p is true by an expert. An epistemic authority’s belief (or assertion that expresses belief) that p ceases to be a reason to believe that p in the sense of being undercut if one knows that what the expert believes (or says) is false. In other words, insofar as a person’s relationship with the independent epistemic reasons that their epistemic authority is supposed to be based on is known by us to be severed, that person can no longer give us reasons for belief. But this is not necessarily the case with practical authority, in which an authority’s say-so can still gives us identity-related reasons for action (and even an obligation) despite one knowing that an action is not the best thing to do in light of the independent practical reasons we would have if we were trying to decide what to do on our own. This is demonstrated by comparing a case in which one knows an epistemic authority is mistaken, as opposed to one in which one knows that following a practical authority’s is not the optimal course of action. According to Marmor, “Once I know that T is false, Jones’s [epistemic] 224 Andrei Marmor, “Authorities and Persons,” Legal Theory 1(3), (1995): 337-359, 349. 137 authority becomes irrelevant. This is not the case with practical authorities.” 225 Instead, Marmor argues, a practical authority’s directive can still make a difference in our deliberation, despite our knowing that what we have been directed to do isn’t optimal. In the practical domain, “it may be practically more important to have an authoritative resolution [about what to do] than having the details of the resolution right.” 226 Likewise, it seems that the role a person occupies can make this sort of practical difference in at least some cases: it may be more important to fulfill one’s role obligations than to do what would one would independently have most practical reason to do if one did not occupy that particular role. But in the case of belief, it is never theoretically more important to have some belief or other that we know to be false than to have a true belief (or to suspend judgment). But it is precisely this of sort of reason to obey an authoritative directive that constitutes the sort of content- independent obligations that are characteristic of practical authority, but are not to be found in the epistemic realm. Moreover, it is possible to have these sorts of content-independent obligations in the case of practical authority because an authority’s institutional role can ground a distinctive type of reason for another person, as I argued in Chapter 1. In the epistemic domain, however, one’s identity never makes that sort of difference. 227 And this is where content- independence, understood as identity-dependence, of certain types of practical reasons explains the ground of reasons Raz thinks are distinct of practical authority, and which, unfortunately for Zagzebski, are not to be found in the case of reasons for belief. As an expert, directives based on your expertise might give me reasons to believe in accordance with your directive, but only if they constitute testimony-like evidence, and not for the reason that you directed me to believe or because it is you who so directed me as opposed to someone else with equal access to the facts. As Hershovitz says, 225 Ibid. 226 Ibid., 351. Marmor also suggests that we can have reasons to obey even mistaken authoritative directives in order to uphold the effectiveness of someone’s authority, for instance where doing so would be of great value (cf. ibid., 350). Such auxiliary justifications for obeying authority, he thinks, also help explain why Raz offers a “normal” justification thesis for authority, as opposed to a claim more universal in scope. 227 Another way to put this is to say that someone’s being an epistemic authority about subject matter S never constitutes what Donald Regan calls an intrinsic, as opposed to a merely indicative, reason for belief. Whereas one’s say-so is itself supposed to make a practical difference in the case of practical authority, an epistemic authority’s say-so can only ever give us reasons by indicating facts about what the epistemic authority believes or what is in fact the case. On a side note, Regan actually thinks that practical authority only ever gives one indicative reasons, but Raz’s arguments to the contrary seem quite convincing. See the discussion of their respective positions in Regan, “Reasons, Authority, and the Meaning of ‘Obey’: Further Thoughts on Raz and Obedience to Law,” Canadian Journal of Law and Jurisprudence 3(1), (1990): 3-28. 138 This marks an important difference between theoretical and practical authority. If you know more than I do, you can give me reasons for belief, whatever our place in the social hierarchy. (Hershovitz, 17) In short, there is no obvious connection to institutions or roles therein when it comes to who can be an epistemic authority for you on a given subject; all that matters is the authority’s access to the facts about the subject matter. Institutional roles are important because they reveal the way in which the reasons that those who have practical authority purport to give us are identity-dependent. And it is these identity-related reasons that constitute a type of reason to obey an authoritative directive for which there is no epistemic parallel. So there doesn’t seem to be the sort of epistemic obligations or preemptive reasons that Zagzebski would needs in order to show that there is a parallel to practical authority in the epistemic domain. Finally, the conceptual difference between practical authority and epistemic authority seems to be reflected in ordinary language, in particular the way in which roles are essential to our talk of practical authority. Typically, as various authors have noted, we refer to a person as being an epistemic authority, whereas we say that someone has practical authority. 228 Similarly, we say that one person is an expert or is knowledgeable, but we say that a person has a certain role or has a position of authority. Granted, this point is merely suggestive, but it suggestive of a conceptual difference captured by common usage, which supports the argument in Chapter 1 that the reasons that legitimate authorities give us are identity-related and presuppose that one occupies an institutional role vis-à-vis someone else in the same institution who is able to alter the institutional obligations of others. 4. Conclusion If the argument of this chapter is right, then we have a plausible answer to the worry raised initially by Star and Delmas, whether there is a common core to the notion of authority having to do with the type of reason given that is shared by both practical and epistemic 228 Cf. Raz in “The Problem of Authority”: “[O]nly regarding practical matters can we say that someone has authority, or lacks it. In theoretical matters, someone either is or is not an authority, but no one has authority” (156). De George similarly notes: “That someone is said to be an authority on a certain topic usually means that he is very knowledgeable about that topic” (Richard T. De George, The Nature and Limits of Authority, (Lawrence, Kansas: University Press of Kansas, 1985), 26). 139 authority. I have argued that there is not. It is simply not plausible that, as Star and Delmas claim, the mere presence of phenomenologically external reasons is sufficient for us to say that authority is present or that such reasons constitute authoritative directives. Rather, legitimate authority seems to involve content-independent, identity-related obligations (which, as I have argued, presuppose occupying an institutional role). And while we seem to have some content-independent reasons for belief, we do not plausibly have either identity-related reasons for belief or reasons for belief that do not aggregate with our other reasons for belief, as Zagzebski claims. Rather, given the nature of belief as responding to an independent factual order, theoretical reasons aggregate, and our reasons for belief are such in virtue of being evidence for us of the truth of a proposition, and not in virtue of an institutional role that we or anyone else occupies. Thus, we should conclude that there are distinct concepts in play when we speak of practical and epistemic authority. 229 Although both terms refer to types of reason-giving, it is simply not plausible that there is a common notion of authority at work in both the practical and the epistemic domains. 229 It should of course be noted here that, even if there is a fundamental conceptual difference between epistemic and practical authority, and expertise about practical reasons isn’t sufficient for practical authority, nonetheless epistemic authority may sometimes explain or help justify, at least in part, why someone has legitimate authority. As I suggested in the Introduction, this may be the best way to construe the central insight of Raz’s normal justification thesis. Defending this idea, however, is beyond the scope of my thesis. 140 CHAPTER FIVE Darwall’s View of Practical Authority In his various remarks on practical authority, Stephen Darwall explicitly takes himself to be elucidating the ordinary concept of practical authority. 230 Specifically, he takes himself to be giving an account of the normative concept of legitimate authority. In the Introduction, I proposed offering an argument for the institutional nature of legitimate authority that did not require assuming that a non-normative-first approach to practical authority is correct. Then, in Chapter 1, I argued that legitimate authority depends on the presence of institutional authority, and I gave a descriptive account of what institutional authority involves. Darwall’s view of legitimate authority, however, conflicts with my view regarding the dependence of legitimate authority on institutional authority. This is because Darwall is offering not only a normative-first account of practical authority, on which legitimate authority is the primary object of analysis, but also a normative-only account, since he claims that legitimate authority can only be understood in terms of an interdefined circle of essentially normative and “irreducibly second-personal” normative concepts. I begin in section 1 by explaining the details of Darwall’s views about second- personal reasons and practical authority. In particular, I lay out Darwall’s circle of second- personal concepts, which includes practical authority, second-personal claims or demands, second-personal reasons, and accountability. In section 2, I consider the worry that, in light of his conceptual commitments, Darwall seems be using a concept of practical authority that is different from the one his interlocutors take themselves to be discussing. I argue against this worry, and thereby clarify Darwall’s admittedly more expansive concept of legitimate authority. In section 3, I show how it is this expanded concept, however, that leads Darwall to deny any essential link between legitimate authority and actual claims or demands. Then, in section 4, I argue that Darwall’s account comes at the cost of ruling out a justification of legitimate authority in terms of non-second-personal reasons, thereby blocking the possibility of an answer to Wolff’s challenge in terms of the independent reasons a subject already has. Finally, in section 5, I diagnose what is appealing about Darwall’s circle of 230 See Star and Delmas, “Three Conception of Practical Authority,” 150-151, esp. 151n31, in which Star and Delmas report that Darwall has confirmed in correspondence that he aims to be giving an account of the ordinary concept of practical authority. 141 concepts, while also showing how we can capture the phenomena Darwall is interested in within an institutional framework but without taking on board all of the commitments that Darwall does. I conclude that an institutional view of legitimate authority is preferable to the account Darwall offers. 1. The Irreducibility of Second-Personal Reasons In this section, I will explain Darwall’s account of second-person reasons, in particular the way in which Darwall claims that the concept of a second-personal reason is part of a circle of interdefined concepts that includes practical authority. For Darwall, it is a distinguishing feature of what he calls second-personal reasons that they are conceptually connected to legitimate authority: “Second-personal reasons are distinguished from reasons of other kinds by their conceptual connection to authority and to authoritative claims and demands….” 231 Thus, whereas I claimed in Chapter 1 that the distinct nature of the reason-giving involved in legitimate authority should be explained in terms of identity-related reasons, which I claimed are best cashed out in terms of institutional roles, Darwall claims that the distinctness of the reasons given by legitimate authority should be understood in terms of the second-personal nature of those reasons. To better understand what Darwall means by the term second-personal reason, we can point out that, on Darwall’s view, second-personal reasons necessarily involve an agent-relative reason for action, they are the result of demands or claims, they presuppose practical authority on the part of the speaker, and they presuppose accountability on the part of the addressee. Putting the first two features together, second-personal reasons involve making demands of others that have, according to Darwall, an “ineliminable pronominal back- reference.” This involves more than the obvious fact that, grammatically, the implied subject of any imperative is ‘you’. Rather, this “pronominal back-reference” can be seen in demands such as ‘Apologize for what you did to me!’ or ‘Pay me what you owe!’ where you are the clear addressee, the demand is particular to you, and compliance with the demand is presumed to be owed to the speaker. Such demands are supposed to give the addressee an essentially agent-relative reason to comply, unlike, say, the agent-neutral reason everyone has to prevent needless suffering because it is impersonally bad. 232 231 Darwall, “Authority and Reasons: Exclusionary and Second-Personal,” Ethics 120(2), (2010): 257-278, 257. 232 Beyond this contrast, however, Darwall does not explain what he takes the agent-relativity of second- 142 The latter two features involve the way in which demands made “from the second- person standpoint,” that is, demands that purport to give second-personal reasons, involve presuppositions about both the speaker and the addressee of those demands. In terms of the speaker, second-personal demands presuppose that one has the authority to make valid demands of others; it also presupposes, according to Darwall, that one’s addresses have the capacity for recognizing the second-personal, agent-relative nature of the demand and also the ability to recognize the demand as “valid” (or, as we might say, legitimate) and as coming from someone who has authority. In particular, a second-personal demand must be recognizable to the addressee as a reason, compliance with which is owed to the speaker, and for which one is accountable to the speaker and can be held responsible. Thus, as Andrea Westlund puts it: “On this view, the normative force of an authoritative directive depends on the addressee’s free and rational acceptance of the reason addressed to her, as well as the relationship in which that reason is grounded.” 233 The foregoing discussion might make it seem as though we can get an independent grip on what a second-personal reason is. But, crucially, ‘second-personal reason’ is a technical term for Darwall that carries with it conceptual connections to other “irreducibly second-personal” concepts. At one point Darwall offers the following definition of a second-personal reason: Second-personal reason: A second-personal reason is one consisting in or deriving from some valid claim or demand of someone having practical authority with respect to the agent and with which the agent is thereby accountable for complying. (Darwall, “Authority and Reasons,” 266) personal reasons to consist in. Unfortunately, agent-relativity is a notoriously fraught term with respect to reasons. The idea of a reason that some persons have but others don’t can be traced to Thomas Nagel, who first used the term “subjective reasons” to refer to this idea in The Possibility of Altruism (Princeton, NJ: Princeton University Press, 1978); later Nagel adopted Derek Parfit’s term “agent-relative reasons” (as used in Parfit’s Reasons and Persons, (Oxford: Oxford University Press, 1984)) to refer to this same idea in The View from Nowhere (Oxford: Oxford University Press, 1986). Darwall’s use of the term here is clearly meant to indicate a similar idea, but it also appears to be something of an idiosyncratic term of art, insofar as he takes second- personal reasons to be distinct from other types of reasons, and not clearly identical with what others (such as Nagel) have meant by the term. For more on the distinction between agent-neutral and agent-relative (also called “agent-centered”) reasons, see David McNaughton and J. Piers Rawling, “Value and Agent-Relative Reasons,” Utilitas 7, (1995): 31-47; and for a view that questions this very distinction, see Christine Korsgaard, “The Reasons We Can Share: An Attack on the Distinction Between Agent-Relative and Agent-Neutral Values,” Social Philosophy and Policy 10, (1993): 24-51. 233 Westlund, “Autonomy, Authority, and Answerability,” Jurisprudence 2(1), (2011): 161-179, 163. 143 If this definition seems rather unenlightening, it is because it features the four second- personal concepts (i.e., second-personal reason, valid claim or demand, practical authority, and accountability) that, for Darwall, “comprise an interdefinable circle; each implies all the rest. Moreover … there is no way to break into this circle from outside it.” 234 An immediate worry is that, a result of his claim that these four concepts constitute an explicitly interdefined circle, it is not possible to get an independent grip on what Darwall means by his use of the term ‘second-personal reason’ and, consequently, ‘practical authority’ after all. And Darwall’s definition of practical authority does not do much to dispel this impression: Practical authority: Someone has practical authority with respect to another if, and only if, the latter has a second-personal reason to comply with the former’s valid claims and demands and is accountable to the former for so doing. (Darwall, “Authority and Reasons,” 266) Crucially, Darwall claims that practical authority is an essentially second-personal concept. According to Darwall, “The concepts of valid claim or demand, second-personal reason, and responsibility (accountability) all share the same irreducible idea of the authority to claim or demand.” 235 Moreover, on Darwall’s view, “there is no way to reduce the distinctive normativity of any one of [these four notions] to norms and values that can be appreciated fully without a second-person standpoint.” 236 Thus, for Darwall, it is only from within the second-personal standpoint that we can understand authoritative claims. In fact, Darwall rejects the very idea that the concept of practical authority can be understood in terms of non-second personal concepts or, indeed, any concepts other than the four just mentioned. Thus, as I argue in section 3, Darwall is committed to denying the institutional nature of legitimate authority. I will argue, however, in sections 4 and 5 that this commitment gets Darwall into trouble, and that we can capture second-personal normativity within an institutional framework. But first, in the next section, I will address the worry, raised by Raz, that Darwall is in fact using a different concept of ‘practical authority’ from our ordinary concept. 234 Darwall, SPS, 12. 235 Darwall, SPS, 283. 236 Ibid., 246. 144 2. Is Darwall Using a Different Concept of Authority? There is a potential problem for Darwall’s view of practical authority in the offing, given the conceptual commitments described in the previous section. The worry is Darwall’s concept of practical authority might turn out not to be the same concept that other authors have in mind when they are discussing legitimate authority. I argue that this is not the case, but that it is true that Darwall is working with a more expansive conception of authority than other authors. Unfortunately, Darwall himself seems to give conflicting indications of how to understand the concept of ‘authority’ on his view. Consider the example that Darwall frequently uses of demanding that someone who is stepping on one’s foot get off of it. Some passages make it appear that Darwall takes this to be a case of genuine second-personal reason-giving, precisely along the lines of how he conceives of paradigmatic cases of someone with practical authority creating new reasons: The sergeant’s order addresses a reason that would not exist but for her authority to address it through her command. Similarly, when you demand that someone move his foot from on top of yours, you presuppose an irreducibly second-personal standing to address this second-personal reason. (Darwall, SPS, 12-13) Here Darwall is clear that the sergeant’s order creates a new reason, and he seems to imply that we should understand the demand to get off one’s foot in the same way. But his language leaves room for interpretation: does the latter demand actually create a new reason, or simply presuppose the existence of such a reason? Darwall also leaves room for doubt as to whether the “authority” to demand compliance involves creating a new reason or simply presupposes a prior reason or requirement to which one can be held accountable. The following passage, for instance, seems to indicate the latter reading: “Dignity is not just a set of requirements with respect to persons; it is also the authority persons have to require compliance with these requirements by holding one another accountable for doing so.” 237 This passage is meant to illustrate how the idea of accountability, that is, the right to demand compliance on the part of others, is 237 Darwall, SPS, 14. 145 built in to the very idea of a moral obligation. But it is an open question whether Darwall accepts an understanding of accountability on which demands for compliance involve the power to give new reasons for action, that is, reasons that are distinct from the original obligation. The result is that we can distinguish the following two concepts, both of which Darwall himself unfortunately seems to refer to as involving or presupposing ‘authority’: (i) the right or power to impose a new obligation (i.e., practical authority); (ii) the right or power to demand performance of (or redress for violating) an already existing obligation (i.e., accountability). Darwall explicitly refers to ‘authority’ as entailing both (i) and (ii); but it is not clear whether Darwall is working with a disjoint concept, or whether his concept includes both of these. There are two related interpretative problems, either of which might be seen as implying a distinct concept of practical authority. First, although it is clear that Darwall thinks that (i) entails (ii), it is less clear whether (ii) always presupposes (i). In other words, it’s not clear if the fact that I can blame you for setting a cat on fire means that you had the obligation not to torture the cat in the first place in virtue of some authoritative demand that I (or someone else) made (or could make) of you. Second, it’s not clear whether Darwall thinks of (ii) as involving the power to impose new reasons. In other words, it’s not clear whether the “authority” to demand compliance with an obligation, such as getting off my foot, involves creating a new reason for that person to get off my foot, or whether I could just be reminding her (and demanding that she comply with) a reason she already has, without creating a new reason. But this interpretative difficulty presents a potential worry, since one might be tempted to think that if Darwall conceives of “authority” in either of these ways, then he is simply talking past those who conceive of authority exclusively in terms of (i). Raz, for instance, appears to think of the difference between his view and Darwall’s in precisely these terms. In fact, Raz strongly doubts whether Darwall is even using the same concept of practical authority: “There is no indication that Darwall thinks that the authority he refers to 146 here is the authority I explain, namely, the authority to impose new duties on another.” 238 Raz seems both to deny that (i) entails (ii), and also to deny that (ii) either presupposes or counts as authority in Raz’s sense. Rather, on Raz’s view, (ii) seems to refer to a kind of “permission” to demand compliance with an already existing obligation, such that the normative force of (ii) is inherited entirely from (i) and does not involve new reason- giving. 239 Star and Delmas see this as a deep disagreement between Raz and Darwall over the extension of the concept of practical authority. 240 Yet, as Star and Delmas also point out, Darwall explicitly takes himself “to be elucidating the ordinary concept of authority, and not some more circumscribed concept.” 241 Of course, the mere fact that Darwall takes himself to be talking about the “ordinary” concept of authority doesn’t mean that he takes himself to talking about the same concept as Raz; after all, Darwall might think that Raz is giving an account of a specialized concept of authority. But this is not the case; in fact, Darwall explicitly takes himself to be talking about the same concept as Raz: “The kind of authority that Raz and I are both concerned with is practical authority, as distinguished from various forms of epistemic authority or expertise, including the kind of authority on practical matters that a trusted advisor might have.” 242 In response to Raz’s suggestion that they are talking past each other, Darwall writes: Raz might also simply reject my conceptual thesis that practical authority entails accountability and argue that the NJT [Raz’s normal justification thesis] applies to a concept of authority that lacks this entailment. I have my doubts that Raz and I really do have different concepts in mind, since he talks also of the authority’s “right” to a subject’s obedience and a subject’s “duty” to obey. But perhaps these notions might also be given readings that do not entail accountability. (Darwall, “Authority, Accountability, and Preemption,” 105) Thus, even though they seem to disagree as to the extension of the concept of ‘authority’, Darwall sees their concepts as overlapping. Darwall does go on consider the possibility that 238 Raz, “On Respect, Authority, and Neutrality: A Response,” 292. 239 Ibid., 293. 240 Star and Delmas, “Three Conceptions of Practical Authority,” 150. 241 Ibid., 150-151. See also ibid., 151n31, in which Star and Delmas report that Darwall has confirmed in correspondence that he aims to be giving an account of the ordinary concept of authority. 242 Darwall, “Authority and Reasons: Exclusionary and Second-Personal,” 258. 147 this overlap might not amount to a concept of authority that entails accountability, but he still takes Raz and himself to be disagreeing about the entailments of the same concept. In the end, perhaps the best evidence that Darwall and Raz are talking about the same concept is the fact that both agree on paradigmatic examples of authority in the sense of (i), such as the example of a sergeant giving orders, even though they disagree on the relationship between (i) and (ii). To clarify this debate, we can summarize Darwall’s thoughts on the relation between (i) and (ii) as follows. First, Darwall clearly takes practical authority to involve (i), as the example of the sergeant giving orders illustrates. Second, he also very clearly thinks that (i) entails (ii). Legitimate authority, for Darwall, just is the power to make demands in virtue of which someone else is accountable to one for complying with them: “If A has the standing to demand certain conduct from B, then B not only thereby has a reason to do what A demands; B also has a responsibility, including to A, such that if B does not freely comply, A may hold B responsible [i.e., accountable] in some way.” 243 Finally, Darwall explicitly claims that (ii) involves a form of “authority”: “[A]ccountability implies the authority to hold accountable, which implies the authority to claim or demand, which is the standing to address second-personal reasons.” 244 So Darwall and Raz do disagree, in particular over whether the concept of authority includes (ii). Two points follow. First, the disagreement between Raz and Darwall does not seem sufficient to show that Darwall is talking about a different concept altogether. Darwall and Raz both clearly count instances of (i) as falling under the concept of practical authority. Their disagreement over whether instances of (ii) do as well makes it clear that they have a disagreement; but their agreement over (i) makes it just as clear that they are arguing about the same concept. Second, it is still unclear how precisely we should understand the “authority to hold accountable” on Darwall’s view. In particular, three questions remain: (1) whether the authority to hold accountable involves the power to give someone a new reason; (2) whether accountability to someone can only come from that person’s having authority 243 Darwall, SPS, 283. Other examples of views on which authority entails accountability, in particular accountability to the person who impose the obligations, include those of Margaret Gilbert (A Theory of Political Obligation: Membership, Commitment, and the Bonds of Society, esp. 245-248) and Scott Hershovitz (“The Authority of Law,” in The Routledge Companion to the Philosophy of Law, ed. A. Marmor: 65-75). Darwall also cites Michael Dummett favorably in this regard (Dummett, “The Source of the Concept of Truth,” in Meaning and Method: Essays in Honour of Hilary Putnam, ed. G. Boolos, (Cambridge: Cambridge University Press, 1990): 1-15, 9; cited in SPS, 12). 244 Darwall, SPS, 12. 148 and having made a valid demand; and (3) whether the presence of accountability to someone entails that that person had (or is presupposed to have had) the authority to impose the obligation for which one is accountable. To fill in this interpretive gap, I propose the following natural interpretation of Darwall’s view of the relationship between (i) and (ii). If we accept a view of legitimate authority on which a valid demand entails accountability—a view that others have accepted—then it is natural to think that the only way for someone to become accountable is in virtue of a valid demand by someone with legitimate authority. In other words, on Darwall’s view (ii) presupposes (i): there is only accountability where it is the result of legitimate authority. This isn’t logically entailed, but it is a theoretically conservative companion proposition. 245 So, if we find accountability implicit in our concept of moral obligation and in the reactive attitudes—as we clearly do—it is only natural to attribute it, as Darwall does, to legitimate authority of some sort. Consequently, when Darwall claims that “accountability implies the authority to hold accountable, which implies the authority to claim or demand,” he is not asserting that an instance of (ii) is in fact an instance of (i) in the sense of involving the power to create new second-personal reasons. 246 Rather, he takes himself to be tracing the conceptual relationships of his circle of concepts, albeit in the opposite direction of how we might explain them: if someone is accountable, it must be as the result of a valid demand, which in turn must be the result of someone’s having legitimate authority to make such demands. It is true that on this interpretation Darwall’s use of ‘authority’ is ambiguous: sometimes he is referring to (i) and sometimes to (ii). Thus Raz may have a valid complaint that this is both unnecessarily confusing and more expansive a term than Raz and others have in mind. Moreover, to the extent that Darwall denies that practical authority involves the power to impose new obligations, we can say that his conception of authority becomes controversial and Raz’s objection has a point. But from Darwall’s point of view, given his assumption that (ii) only exists where it is the result of (i), and that (i) always entails (ii), it 245 Darwall at one point expresses this idea in terms of an “authority out, authority in” principle (Darwall, SPS, 59), modeled on Bernard Williams’s discussion of an “obligation out, obligation in” principle (Williams, Ethics and the Limits of Philosophy, 181). According to Darwall, “You can’t get a second-personal demand out of something that doesn’t already (at least implicitly) involve second-personal authority” (SPS, 59). In other words, because accountability and the reactive attitudes involve either explicit or implicit demands, accountability must be grounded in legitimate authority. 246 Darwall, SPS, 12. 149 makes sense to think of accountability as part of authority in a broader sense, since it is inseparable from it and always owed to the person who has authority in the sense of (i). It would be helpful if this were made explicit, but a closer examination makes this not an unreasonable view given Darwall’s other commitments. As a result, it seems fair to conclude that Darwall is not simply talking past others who take themselves to be discussing practical authority. Thus, in what follows, I will assume that Darwall is using the same concept as Raz and others are, although Darwall’s concept is an expanded version of the concept that many of his interlocutors are using. In particular, Darwall somewhat confusingly refers to accountability as a type of “authority,” since he thinks that authority (in the more standard sense of creating new reasons) entails accountability, and, as a natural extension of that view, that accountability always presupposes authority. In the next section, I will argue that it is this same commitment to accountability’s being the result of authority that leads Darwall to conclusions that commit him to rejecting the idea that institutional authority is necessary for legitimate authority. 3. Why Darwall Is Committed to Rejecting the Necessity of Institutions In this section, I will explain why Darwall thinks that moral obligations necessarily involve legitimate authority and why, as a consequence, Darwall is committed to an account of legitimate authority that does not depend on having or exercising institutional authority. I take it to be a fundamental insight of Darwall’s view that accountability is built into our moral concepts. But he also points out that it is built into our moral attitudes as well, especially those elicited by violations of moral obligations: “Morality involves a distinctive kind of accountability by its very nature. If I fail to act as I am morally required without adequate excuse, then distinctively second-personal responses like blame and guilt are thereby warranted.” 247 In fact, the sort of demand for compliance that is characteristic of accountability is always either explicit or at least implicit in such attitudes. Relying heavily on P. F. Strawson’s discussion of the reactive attitudes in “Freedom and Resentment,” 248 Darwall argues that blame, for instance, is always “second-personal” in the sense that it necessarily involves, at least implicitly, a claim or demand that is “addressed to” another 247 Darwall, SPS, 26-27. 248 Strawson, “Freedom and Resentment,” in Studies in the Philosophy of Thought and Action, ed. P. F. Strawson, (London: Oxford University Press, 1968): 71–96. 150 person. 249 Now, as we saw in the previous section, there is a two-way conceptual relationship for Darwall between practical authority and accountability, such that the presence of one always entails the other. This, in turn, leads Darwall to infer that, since we are as a conceptual matter always accountable for compliance with our moral obligations, all moral obligations must have been imposed as a valid demand by someone with legitimate authority: “[T]o understand moral obligation as related to moral responsibility in the way we normally do, we have to see it as involving demands that are ‘in force’ from the moral point of view.” 250 But this leads immediately to a worry for Darwall’s view. The worry is that, for many moral obligations we take ourselves to have, it simply isn’t plausible that anyone has made demands of us that correspond to those obligations. Moreover, it isn’t plausible that anyone else needs to have ever made an actual demand in order for you to have an obligation, say, not to step on my toe. When pressed on this point, Darwall himself explicitly grants that moral obligations do not require an actual authoritative demand: “[S]omeone who steps on your foot has violated your rights and his moral obligations even before you complain about it.” 251 This is a criticism that been made forcefully by Jay Wallace. 252 In response, Darwall makes a remarkable concession with regard to the “moral community” whose authority he claims is presupposed by the accountability inherent in our moral concepts: [T]he moral community as I understand it is not any actual community composed of actual human beings. …[A]s I am seeing it, it takes neither an explicit actual demand nor a demand that is implicit in actual human beings being prone to make it, either individually or collectively, in order for a claim or demand to be in force. (Darwall, “Reply to Korsgaard, Wallace, and Watson,” 64-65) But if accountability always has to be the result of the exercise of legitimate authority (as Darwall assumes), then Darwall here commits—strikingly—to rejecting the claim that 249 This is, as Darwall notes, an idea that is also shared by Gary Watson and Jay Wallace (Darwall, SPS, 17). 250 Darwall, SPS, 9. 251 Darwall, “Reply to Korsgaard, Wallace, and Watson,” 64. 252 “Surely we want to say that you have an agent-relative reason not to step on someone’s gouty toe that is (to some degree) prior to and independent of any complaint that might be issued after the toe has actually been stepped on” (R. Jay Wallace, “Reasons, Relations, and Commands: Reflections on Darwall,” Ethics 118(1), (2007): 24- 36, 26). 151 legitimate authority requires a basis in actual demands. The alternative would be to deny the essential link he posits between authority and accountability. However, by severing the link between legitimate authority and accountability on the one hand, and actual demands by actual persons on the other hand, Darwall is committed to denying the necessity of having and exercising institutional authority in order to have legitimate authority. To summarize this reasoning briefly, Darwall interprets the accountability latent in the reactive attitudes as always presupposing legitimate practical authority: “[W]e are committed to presupposing some authority to address this demand [i.e., not to step on someone’s foot].” 253 But no actual person or community has made (or, in many cases, could have made) a valid demand of the sort that would seem to be necessary for many of our moral obligations to exist, if they all had to be the result of actual demands. So Darwall is committed to positing or presupposing the existence of legitimate authority and a valid demand behind every moral obligation, while simultaneously being forced to admit the corresponding demands of the “moral community” are not actual demands, but are merely “a regulative ideal that we employ to make sense of our ethical thought and practice.” 254 For this reason, Darwall is committed to rejecting my argument in Chapter 1 that legitimate authority depends on institutional authority, where the latter is understood in terms of social facts. For Darwall, moral obligations are explicitly analyzed as second- personal reasons, and lest we think that Darwall’s claims here about authority and accountability are restricted to his analysis of moral obligation, he reminds us “that nothing I have said about the four interconnected, irreducibly second-personal notions…ties them exclusively to morality. As I analyze them, second-personal reasons are grounded in genuine…authority of any kind.” 255 Thus, this discussion of moral obligation as separate from actual demands is meant to be illustrative of the general relationship between authority and demands that is found in second-personal reasons more generally. And this discussion makes it abundantly clear that Darwall is committed to denying any essential link between second-personal reasons and legitimate authority on the one hand, and social facts, including facts involving institutional roles and a person’s say-so, on the other. This is a crucial point for understanding the relationship between Darwall’s view and 253 Darwall, “Reply to Korsgaard, Wallace, and Watson,” 63. 254 Ibid., 64. 255 Darwall, “Law and the Second-Person Standpoint,” Loyola of Los Angeles Law Review 40: 891-910; reprinted in his Morality, Authority, and Law: Essays in Second-Personal Ethics I: 168-178, 171, my emphasis. 152 my own. By denying the necessity of social facts such as actual demands in order for there to be legitimate authority that results in genuine obligations, Darwall is committed to denying that legitimate authority as such presupposes any background of conventional or institutional authority relations. In particular, he also explicitly denies that our having moral obligations requires an actual demand, or someone’s actual say-so, despite taking it to be a conceptual truth that moral obligations (like all second-personal reasons, on his account) must be the result of a valid demand by someone with legitimate practical authority. Thus, we can see how Darwall’s account parts ways with the view I presented in Chapter 1. Moreover, as I argue in the next section, Darwall’s view of legitimate authority is not a position to answer the anarchist challenge that was discussed in the Introduction. 4. The Possibility of Answering the Anarchist Challenge In this section, I will argue that in order to be able to answer Wolff’s anarchist challenge we need an independent justification of practical authority in terms that are not “irreducibly second-personal.” Unfortunately, Darwall’s view is not positioned to offer such a justification, but an institutional view such as the one I presented in Chapter 1 is. The fundamental insight, I take it, of Raz’s service conception is that it possible to offer subjects a justification of authority in terms of reasons that that they already have. Thus, as we saw in the Introduction, Raz claimed that the anarchist challenge could be answered by appealing to the very basis of the challenge, namely, rational autonomy. Raz’s distinct take on this idea is that, far from necessarily leading us to act in ways that would show disrespect for or conflict with our rational autonomy, following another person’s directives might actually be able to help us to comply with the reasons that we already have better than we could by trying to figure out for ourselves what to do, thereby actually enhancing our rationality. And, Raz claims, when someone’s directives perform that sort of service for us, that person has legitimate authority. But, as we also saw in the Introduction, Darwall’s insufficiency objection shows that Raz’s normal justification thesis by itself can’t be the whole story about the conditions under which someone has legitimate authority. In place of Raz’s story, Darwall thinks that only his circle of interdefined and irreducibly second-personal concepts (which include both authority and accountability) can make sense of legitimate authority. When it comes to justifying legitimate authority, there is thus a significant difference between Darwall’s view 153 and what we can characterize as a broadly Razian strategy for justification. According to Darwall, legitimate authority involves the standing to give others second-personal reasons for action. But “the only way any such second-personal standing can be justified is within the circle of four interrelated ideas of claim, accountability, second-personal reason, and the species of authority [i.e., in contrast to epistemic authority] that is related to these. Ultimately, I claim, it must be justifiable from within a second-person standpoint.” 256 But Darwall’s account does not, and in principle cannot, incorporate a core element of Raz’s proposal for how to meet the anarchist challenge. For Darwall, the justification of legitimate authority is only possible in terms of reasons that are essentially and irreducibly second-personal: these are, by definition, reasons that one does not have prior to or independent of a valid claim or demand being made by someone with the authority to do so. But, as we have seen, it is an essential part of Raz’s service conception that the reasons any justification of authority depends on are reasons subjects have prior to and independent of any demand being made on them or any authoritative directive being issued. Moreover, this broadly Razian strategy for justifying authority is one that is shared not only by Raz, but also by Hershovitz, Marmor, and my own institutional view, as we have seen in both the Introduction and Chapter 2 in particular. Moreover, this basic idea of external justification is one that I took on board in Chapter 2. Yet second-personal reasons for Darwall only exist in virtue of a valid demand being made. In fact, to justify authority in terms of reasons that are “irreducibly second-personal” rules out, ex ante, the possibility of a justification of legitimate authority that can be explained in terms of reasons that an individual has prior to and independent of a valid demand. In other words, Darwall’s view rules out a justification of legitimate authority of the sort that was central to the appeal of Raz’s view: namely, one in terms of the reasons a subject already has. The crucial point for our purposes is that Darwall’s view comes at the cost of sacrificing the possibility of an external justification of authority in terms of non-second-personal reasons, whether this is understood in terms of categorical reasons or reasons to identify with a role or in some other way. Thus, by ruling out an external justification, Darwall seems to be committed to a non-institutional view of practical authority. An institutional, role-based view of practical authority, however, can preserve this attractive feature of Raz’s reply to Wolff. The question, 256 Darwall, SPS, 13. 154 then, is whether the Razian strategy is in fact essential to justifying practical authority. But the answer to this question, I submit, depends in turn on whether authority is essentially institutional in nature—a claim that Darwall, as we have seen, is committed to denying. If authority is essentially institutional, as Marmor claims and as I argued for in Chapter 1 as the best explanation of the distinctness of authoritative reasons, then an external justification of authority seems necessary. If legitimate authority has to be justified in external terms, then Wolff’s challenge has to be taken seriously, and a justification in terms of a subject’s independent reasons is plausibly the best (if not the only) way to reply to the challenge. I conclude that if we have reason to prefer an institutional view of practical authority, then we also need to adopt a generally Razian approach to justifying legitimate authority—regardless of the particular merits of Raz’s own proposal. Darwall, however, has resources for a possible reply to this objection. At first blush, it might seem that by ruling out a justification of authority in terms of a subject’s independent reasons, and replacing it with a justification in terms of second-personal reasons, Darwall is thereby denying the privileged status of rational autonomy that both Wolff and Raz recognize. But Darwall isn’t committed to seeing it thus. Rather, Darwall would likely want to claim that his account of practical authority is fully compatible with rational autonomy. Thus, Darwall could claim, there is no possibility of sacrificing one’s rational autonomy by submitting to a legitimate authority within the second-personal standpoint. In fact, he could claim—in the spirit of Raz’s reply to Wolff—that the real risk to both one’s own rational autonomy would be not to comply with the demands of legitimate authorities, the validity of whose demands can only be recognized from within the second-personal standpoint. The fact that neither a subject nor anyone else can recognize legitimate authority as such from outside the second-person standpoint would be a consequence of this view, but, Darwall could claim, it is what we should expect if authority is an essentially second-personal concept. Thus, Darwall seems to have a reply to this objection—but only if one is already convinced that a justification of authority can only be given “from within a second-person standpoint.” I have argued, however, that we have good reason to think that authority is an essentially institutional concept, and that its normativity can be explained in terms of a subject’s reasons to identify with an institutional role. Moreover, in what follows, I will argue that it is possible to capture the central insights of Darwall’s view of practical authority and 155 its second-personal nature within an institutional framework without taking on board all of the extra commitments that Darwall does, while also avoiding leaving out essential aspects of the concept of practical authority that can only be captured on an institutional view. 5. Saving the Second-Personal Phenomena In developing his view of practical authority, Darwall draws our attention to features of authority that might not be as visible otherwise. In doing so, he advances our understanding of the concept of practical authority. But it will be my argument in this section that it is not necessary to take on all of the commitments Darwall does in order to draw out these features of practical authority. In particular, I will argue that we can capture the central insights Darwall offers about the interrelated nature of the concepts involved in and related to practical authority, without having to follow Darwall in claiming that those concepts are all essentially normative and irreducibly second-personal. First, both Darwall and I agree that there is a distinctive type of reason-giving involved in legitimate authority. For his part, Darwall argues that the special type of reason given by practical authority is what he calls second-personal reasons, as I described above. Darwall explicitly contrasts giving someone a second-personal reason with giving someone a reason that is a “state-of-the-world-regarding and agent-neutral reason.” 257 Examples of the latter include bringing someone to see the agent-neutral badness of pain, and to see its relief as “a better way for the world to be, as a possible outcome or state that, as Moore put it, ‘ought to exist for its own sake.’” 258 In giving someone the latter sort of reason, The reason would not be essentially for him as the agent causing another person pain. It would exist, most fundamentally, for anyone who is in a position to effect your relief and therefore for him, since he is well placed to do so. Finally, in ‘giving’ him the reason this way, you wouldn’t be so much addressing it to him as getting him to see that it is there anyway, independently of your getting him to see it or even of your ability to do so. (Darwall, The Second-Person Standpoint, 6) Second-personal reason-giving, by contrast, involves purporting to stand in a normative relationship to someone, such one is able to give other reasons by making valid demands on 257 Darwall, SPS, 6. 258 Darwall, SPS, 5. 156 them which they are accountable for compliance with. To better distinguish these types of reason-giving for Darwall, we can use the terminology of second-personal and third-personal reasons, respectively. In fact, it is not unreasonable to see Darwall’s description of “giving” someone an agent-neutral reason, and his attendant use of scare-quotes, as an example of what Enoch calls mere triggering, as opposed to robust reason-giving, as discussed in Chapter 1. We can also speak of normativity, in the reason-involving sense, as either second-personal or third-personal depending on the type of reason (or reasons) involved. The essential point to take away from this is that Darwall thinks that second-personal normativity is wholly distinct from third- personal normativity. Now I agree with Darwall that second-personal normativity and third-personal normativity are distinct. I also agree with Darwall that you can’t get normativity out of non- normativity. Together, these claims help us to see why a closed circle of second-personal normative concepts would be such an attractive position for Darwall to adopt. But I have argued that a non-normative and essentially institutional element is necessary in order to understand (and indeed to give) the special type of reason that is distinctive of legitimate authority. I cashed out this distinctness in terms of identity-related reasons, and I argued that the best way of explaining such reasons requires appealing to institutional roles. Thus I disagree with Darwall that it is impossible to explain second-personal normativity in terms of third-personal normative reasons taken together with non-normative institutional concepts. In fact, my argument in Chapter 1 that legitimate authority is essentially institutional can be seen as an argument for the claim that an essential component of second-personal normativity is in fact a second-personal non-normative concept (i.e., institutional authority). And if we add normative reasons to identify with an institutional role, we have a recipe for a second-personal normativity. On my view, then, second-personal normative concepts are not irreducible, but are composed of two essential components: second-personal non-normative concepts—in particular institutional authority, but also involving concepts such as authoritative directives and institutional obligations—and normative reasons. Taken together, institutional authority and reasons to identity with an institutional role can explain legitimate practical authority. Moreover, these components can come apart and can be understood separately, and analyzing these component parts was the task of Chapters 1 and 2, respectively. 157 Ultimately, Darwall is right to insist that second-personal normativity is distinctive and unique—and I agree that the reason-giving characteristic of legitimate authority is distinctive. In fact, it would be altogether reasonable to identify legitimate authority and the identity-related obligations that flow from it as belonging to a special class of normative- concepts. If we wish, we can call these second-personal reasons. But the essential insight that Darwall misses is that the distinctiveness of this type of reason-giving does not entail that practical authority must be understood only in terms of concepts that are both “irreducibly second-personal” and essentially normative. Another point that Darwall and I agree on is that that legitimate authority involves a special type of demand. Darwall, unfortunately, doesn’t tell us much about what makes a claim or demand valid apart from being issued by someone with practical authority. At the beginning of The Second-Person Standpoint, Darwall briefly mentions J. L. Austin’s discussion of felicity conditions for certain speech acts, but quickly sets it aside, since, as Darwall puts it, “Austin was not concerned with ethics. Our questions, however, are normative. … What makes a reason second-personal is that it is grounded in (de jure 259 ) authority relations that an addresser takes to hold between him and his addressee.” 260 However, in setting aside the idea of non-normative felicity conditions for authoritative directives, and screening them off from his project of investigating “normative felicity conditions,” as he calls them, Darwall fails to recognize and explore the way in which legitimate authority depends on non- normative aspects of institutional authority, in particular on an authority’s say-so and the expression of an intention to obligate, as well as the presuppositions contained therein. Thus I have argued that “valid” demands depend on actual demands made by actual agents. If so, then we have to understand what an actual authoritative directive consists in at the institutional level in order to understand what a justified or “valid” claim or demand 259 Darwall, like Raz, uses ‘de jure’ with reference to authority to mean legitimate authority. See, for instance, Joseph Raz, The Authority of Law, 5, where he refers to “legitimate, justified, de jure authority”; and Darwall, SPS, 3-4, where he describes having de jure authority as being able to give others second-personal normative reasons. Scott Hershovitz makes the same equation in “The Role of Authority,” 12, as does Stanley Bates in “Authority and Autonomy,” The Journal of Philosophy 69(7), (1972): 175-179, 175). For a rare example of an author who discusses de jure authority in a way that does not use the term as a synonym for legitimacy, but in something akin to the way lawyers use it, meaning valid according to some set of rules, see Richard T. De George, The Nature and Limits of Authority, 19. Along the same lines, note a similar contrast between the way that Darwall refers to the demands of a legitimate authority as ‘valid’, and the way that Kelsen, for instance, argues that a law can be described as system of ‘valid’ norms, even from a normatively neutral point of view (Pure Theory of Law, 218n). 260 Darwall, SPS, 3-4, emphases in original. 158 would look like in Darwall’s terms. Moreover, issuing authoritative directives on my view requires occupying an institutional role such that one is in a position to alter others’ institutional obligations. This is, of course, not to rule out the importance of the normative side of things in explaining legitimate authority: as I have argued, in order to be able to give others genuine obligations by altering their institutional obligations, it must also be the case that those whose institutional obligations one alters have sufficient reason to identify with their institutional roles. But in addition to normative reasons, it seems clear that institutional and non-normative elements are ineliminable parts of the story of what goes into having legitimate authority and making “valid” demands. In fact, we can see this same pattern—a mistaken identification of a second-personal but essentially non-normative aspect of institutional authority as interdefinable with other essentially normative concepts—repeated with respect to individual aspects of legitimate authority. It’s understandable why Darwall might think that the concepts involved in authority constitute an interdefined circle. Authority involves a complex set of concepts that fit together in a certain way, and it requires a systematically organized set of background conditions. Emphasizing this is one of the clearest virtues of Marmor’s account: “Practical authorities…typically have power in the systemic sense.” 261 But even if the interrelated nature of various elements of practical authority is important to emphasize, it does not entail that the concepts involved in practical authority must be interdefined in a way that allows of no independent definition of any of those concepts. Rather, many of the essential concepts involved in understanding practical authority are institutional and non-normative in nature. And in the end, it isn’t at all clear how Darwall could accommodate these institutional and non-normative aspects of practical authority, given his conceptual commitments. Still, there is much to be learned from Darwall’s view. In section 1, we saw how Darwall introduces the essential insight that it is impossible to understand legitimate authority independently of a family of interrelated concepts. Darwall frames this relationship in terms of an interdefinable circle of concepts, which includes for him ‘valid claim or demand’, ‘second-personal reason’, and ‘accountability’. For Darwall, it is this family of concepts that is the key to understanding practical authority. But even if we reject Darwall’s claim that these are all essentially normative and “irreducibly second-personal” concepts, we can preserve the essential conceptual links between practical authority, demands, and 261 Marmor, “An Institutional Conception of Authority,” 242, emphasis in original. 159 obligations that he recognizes. Thus, in Chapter 1, I introduced a family of concepts related to institutional authority, including that of institutional role, authoritative directive, and institutional obligation. I then argued that these concepts are essential to understanding the structure of legitimate authority, since legitimate authority requires the presence of institutional authority. Moreover, the structure of legitimate authority that Darwall observes is best explained as deriving from this family of concepts at the institutional level. And, crucially, we can have an independent, non-normative grasp on many of these notions in terms of social facts. And the significance of this is that it gives us a diagnosis of why it is that Darwall thinks we need a special circle of interdefined concepts to explain second-personal normativity: namely, because he thinks that there is no way to understand second-personal normative concepts in terms of third-personal normative concepts (or, for that matter, non- normative concepts). Thus, where Darwall wants to see these conceptual relationships as both second-personal and normative, I have argued that we can understand them in terms of social facts about institutions. This means that the conceptual relationships in question are, in the case of institutional authority, normative only in the rule-involving sense, insofar as they involve institutional rules and institutional obligations, but not necessarily in the reason- involving sense. More importantly, however, we can still say that these conceptual relationships are second-personal. But we can say this only if we are willing to recognize that second-personality is not essentially normative (in the reason-involving sense). If legitimate authority is essentially structured by institutional authority relationships, and second-personal reason-giving is essentially structured in the same terms, then it seems hard to resist the idea that second-personality is essentially tied to institutional roles and relationships, and not to the fact that those relationships happen to be reason-giving. Rather, second-personal institutional relationships are present in both legitimate and illegitimate authority. In closing, it is worth mentioning that one aspect of Darwall’s view of practical authority that is not explicitly captured within the framework I have offered is the link Darwall posits between authority and accountability. I don’t wish to deny the possibility that part of Darwall’s claim is true—namely, that as a conceptual matter legitimate authority entails accountability. As Darwall notes, a link of this sort has been widely held to exist. 262 262 See Gilbert, Hershovitz, and Dummett, supra note 243. Marmor argues that the notion of directed accountability to the person who issues authoritative directives is problematic in certain cases. For instance, he 160 And an institutional view can accommodate this sort of claim, although, for reasons I elaborate below, it does not seem to be an essential institutional element. But Darwall’s other idea—namely, that accountability conceptually presupposes authority—seems significantly less plausible, as we saw in section 3 with respect to accountability for moral obligations that no one could have demanded of us. Thus I will set aside further consideration of a link between accountability and authority in this direction. And while the straightforward claim that authority entails accountability may well be an essential feature of practical authority, the need for holding individuals accountable (e.g., through sanction, blame, calling to account, demands for reparation, etc.) is plausibly a contingent circumstance, and would depend on the existence of violations of authoritative directives. Thus, if an institution existed in which no valid authoritative demands were ever violated, there would be never be any need to hold anyone accountable. It is for this reason that institutional mechanisms for accountability are an essentially optional structural feature of systems of authority. 263 But, in general, my view both captures and explains all of the central claims, “People do not owe an obligation to obey federal laws to the Congress of the United States. And they do not owe an obligation not to park in no-parking zones to the city council that enacted the ordinance” (Marmor, “An Institutional Conception of Authority,” 256). It is more plausible, he thinks, that such obligations are owed to the members of the institution on behalf of whom the authority operates. And indeed, it seems entirely plausible that we owe it to our fellow citizens, and not our legislators (at least in their official capacity), to obey the law. But even in that case, it seems, it is simply a matter of authority ultimately resting with the citizenry, and accountability is owed to them even when they have delegated their authority to institutional representatives. Thus, these clarifications of directionality do not ultimately undermine the basic idea of directed accountability as a result of legitimate authorities issuing “valid” authoritative directives. 263 Interestingly, on Marmor’s view the difference between a social practice and an institutional practice consists in the latter’s having the following two features: first, an established formal mechanism for changing the rules of the practice; and, second, established mechanisms for monitoring compliance with rules and reacting to non- compliance (Marmor, “An Institutional Conception of Authority, 248). For my part, I don’t take such mechanisms to be an essential feature of institutional practices or institutional authority as such, although I don’t exclude the possibility of institutional authority being tied to mechanisms for holding others accountable. However, I take the non-essentiality of such mechanisms to be illustrated by Scott Shapiro’s example of the legal system on Cooks Island, an imaginary community of persons who always perfectly respond to the demands of those who have legitimate authority, but the legal system of which does not include any mechanisms for holding others accountable: “Some might object and deny that Cooks Island has a genuine legal system because its plans do not impose penalties in cases of disobedience. It seems to be a mistake, however, to consider sanctions to be a necessary feature of law. There is nothing unimaginable about a sanctionless legal system; in fact, we have just imagined one” (Shaprio, Legality, 169). On Cooks Island as we are imagining it, the need for holding anyone accountable would not be present, and thus institutional mechanisms for holding someone accountable might never come to be established, since no one ever does wrong or violates any institutional obligation. So mechanisms for accountability seem to be an optional feature of institutional system of authority. But it doesn’t follow from this that if someone were to break a rule on Cooks Island they could not be accountable (normatively speaking) for doing so. One could argue that, given actual agents, no institution or institutional authority without the power to hold accountable can be effective, and perhaps effective control is a precondition for having legitimate authority—but that issue is orthogonal to the question at hand of whether accountability mechanisms are essential to institutional authority as such. 161 features of practical authority that Darwall takes to be essentially normative in terms of the institutional and non-normative concepts introduced in Chapter 1. In conclusion, on my view, it is perhaps understandable why Darwall might think that authority can’t be grasped except in normative terms. As I have illustrated, for each of the conceptual relationships that Darwall posits with respect to legitimate authority, there is a plausible institutional version of that concept. If we were to start by analyzing only cases of legitimate authority, we might easily come to the conclusion that these essentially non- normative institutional concepts—which non-normative-first theorists rightly claim are common to both legitimate as well as illegitimate authority—are actually essentially normative concepts. In particular, the fact that legitimate authority is conceptually prior to that of institutional authority (as I granted in Chapter 3) might make it hard to see how there could be a plausible reduction in non-normative terms of any of the concepts involved in explaining legitimate authority. But, as I have argued, institutional and non-normative concepts do play essential roles in describing the structure of practical authority. And to the extent that Darwall’s account denies that we cannot grasp these ideas in terms of concepts other than his irreducibly normative circle of concepts, I submit that his view is implausible. 162 CHAPTER SIX Authority, Institutions, and Obligations: Answering Objections In this final chapter, I will be paying off two promissory notes from Chapter 1. These both concern potential worries about the institutional role-based view of practical authority that I am arguing for. The first challenge comes in the form of examples of someone putatively exercising legitimate authority outside of an institutional framework. In Chapter 1, I argued that paradigmatic examples of authority presuppose an institutional framework of the sort I described there. But it is possible to imagine one-off scenarios that result in creating an obligation for someone else, and thus at first blush appear to be an exercise of legitimate authority that does not require occupying an institutional role. The worry about such cases is that my view has overgeneralized about what legitimate authority requires. I will look at three types of putative examples of non-institutional authority, and I will argue that none of them give us reason to doubt the essentially institutional nature of legitimate authority. In section 1, I lay out two rather straightforward versions of this worry. I argue that neither of these putative examples of non-institutional legitimate authority succeeds. In section 2, I turn to a more difficult case that involves an example mentioned briefly in Chapter 5. In both cases, I argue that the examples either fail to count as an exercise of legitimate authority or else fall within an institutional framework and are thus congenial to my view. The second challenge to my view comes from the fact that, like many authors writing about practical authority, I assumed in Chapter 1 that authority involves the ability to impose obligations. In Section 3, I begin by laying out the case for recognizing identity-related reason-giving as a unified phenomenon that involves a broader spectrum of reasons than merely obligations. The worry, then, is even if identity-related obligation giving presupposes an institutional framework, perhaps it is possible to have non-institutional identity-related reason-giving of a weaker sort. I argue, however, that insofar as there is pressure to explain cases involving a weaker form of identity-related reason-giving, those cases are best explained in terms of social and institutional practices. Finally, I examine various grounds that have been offered for reserving the use of the term ‘practical authority’ to refer to imposing obligations and I argue against several of them, concluding that identity-related obligation-giving is part of a broader phenomenon of identity-related reason-giving and that 163 it differs only with respect to the stringency of the reason given. 1. Putative Cases of Non-Institutional Legitimate Authority: Two Cases In this section, I will consider two putative examples of non-institutional authority. These examples are worth noting, since they have already been proposed in the literature as examples of legitimate authority. I will argue that my view is well situated to handle the challenge that these examples present, and each of these two cases will help to highlight certain features of the type of reason-giving I take to be characteristic of legitimate authority. Together these examples put us in a better position to deal with a third putative example of non-institutional legitimate authority in section 2 that is slightly more subtle. 1.1: Directions in an Emergency First, we can consider the example of a person who putatively has and exercises legitimate authority by giving orders to people in an emergency. I will argue that we should not construe this case as an example of legitimate authority, since the most plausible grounds of the obligation to comply with instructions in this case are not distinct from similar coordinative or epistemic functions that might be replicated by a sign or machine, without the intentional imposition of obligations by an agent at all. And insofar as the case relies on an institutional role as the basis of legitimate authority, it is congenial to my view. In Democratic Authority, David Estlund proposes the following case: “Consider a flight attendant who, in an effort to help the injured after a crash, says to Joe, ‘You! I need you to do as I say!’” 264 Estlund claims that the flight attendant has authority in the normative sense over Joe, “owing to her knowledge and situation.” Moreover, Estlund claims that Joe has an obligation to obey the flight attendant’s directives even if some of them are (modestly) mistaken, which he claims is characteristic of authority. Thus, according to Estlund, this is not simply a case of “leadership,” i.e., “merely following the leader when and only when she is leading correctly.” 265 Rather, it is authority. Estlund raises this case in the context of whether one has to consent in order for another person, normatively speaking, to have authority over one. In particular, Estlund rejects the idea that Joe’s refusing to consent to the flight attendant’s authority would, in 264 Estlund, Democratic Authority, 124. 265 Ibid., 125. 164 itself, be sufficient to block her from giving him obligations to so as she says. In general, Estlund is right that consent does not seem necessary for authority, and in Chapter 2 I cited examples of both parental and political authority that illustrate this. Moreover, I agree with Estlund that Joe has an obligation to follow the flight attendant’s instructions. But the question remains why this is the case. As we have seen, merely triggering an obligation does not constitute legitimate authority, whereas the creation of a new obligation would. Thus I wish to consider Joe’s case under the following aspect: namely, whether this case shows that the flight attendant, even if temporarily and on an ad hoc basis, is giving Joe and the other passengers genuine obligations to follow her orders as a direct result of her having and exercising legitimate authority, and not for some other reason that may lead to Joe’s having an obligation to follow her instructions but is not distinctive of legitimate authority. To answer this question, I will be asking which feature or features of the situation make it the case that Joe is obligated to follow the flight attendant’s instructions, and whether those features also entail that she has legitimate authority. Let us consider the most likely candidates. First, we might think that the coordination function the flight attendant performs is what gives Joe an obligation to follow her instructions. And this is precisely what Marmor says about Estlund’s case: any reason or obligation to follow the flight attendant’s instructions is, under the circumstances, due entirely to the coordination function that those instructions serve. 266 But in addition to identifying coordination as the source of the obligation, Marmor gives us good reason to think that coordination is insufficient for having practical authority. And we can see this because we do not attribute practical authority to inanimate objects that perform similar functions: Suppose that there is a fire in a theater and panic all around. An automated system kicks in and a big sign lights up: “Exit on the left!” Presumably, following this instruction is the right thing to do, perhaps even obligatory; it would coordinate an orderly and safe exit. … And the situation would not be different if, instead of the automated signpost, somebody happens to shout the instruction out loud. (Marmor, “An Institutional Conception of Authority,” 246) 266 Marmor, “An Institutional Conception of Authority,” 245. 165 It is worth noting that what is missing in the case of the automated sign is not merely the intention to give a reason, which is characteristic of the “robust” reason-giving that I claimed in Chapter 1 is partially constitutive of the reason-giving that is distinctive of legitimate authority. 267 Rather, the automatic sign example suggests that even if coordination is present and intentional, and even constitutes a deliberate attempt to give others obligations to do as one says, it is not sufficient for practical authority, since the flashing sign would trigger a precisely similar obligation. In fact, this suggests that the airplane case is after all merely a case of leadership, since “a leader is typically one who can deliberately influence others’ conduct without having the requisite authority or regardless of the authority one does have.” 268 So mere coordination, even intentional coordination, cannot ground legitimate authority. Second, we might be tempted to say that the flight attendant gives Joe an obligation to follow her instructions in virtue of her knowledge (say, of the plane or of best practices in an evacuation). This seems to be, at least in part, what Estlund himself relies upon in claiming that the flight attendant has authority over Joe, citing her “knowledge and situation.” 269 And it does seem accurate to cite the flight attendant’s knowledge in explaining why Joe has an obligation to do as she says. Moreover, it is seems fair to say that knowledge, including knowledge of another’s reasons, might be enough to say that someone has “epistemic authority” with respect to another person (in the sense discussed in Chapter 4 270 ). But knowledge does not seem sufficient to ground practical authority either. In fact, we have seen in the Introduction how this point is now a standard objection to Raz’s service conception of legitimate authority, namely, that merely being in an epistemic position such that one’s directives are based on knowledge of others’ practical reasons and help them better to comply with those reasons is insufficient for legitimate authority. And as with Raz’s view, there is no principled way to distinguish which experts count as genuine practical authorities and which are merely epistemic or theoretical authorities without appealing to some further criterion—such as occupying an institutional role. A financial expert, for 267 Enoch, “Authority and Reason-Giving,” 302. More precisely, as I pointed out in Chapter 1, it is the formation, communication, and recognition of an intention to give a reason that I take to be characteristic of robust reason-giving. 268 Marmor, “An Institutional Conception of Authority,” 245. 269 Estlund, Democratic Authority, 125. 270 That is, in the sense of being an expert on or having knowledge of those reasons, but not in Zagzebski’s stronger sense of having the power to give obligations (understood as pre-emptive reasons) for belief. 166 instance, by giving you financial advice merely triggers your preexisting obligation to invest wisely for your children’s future. And, as we saw in Chapter 1, Enoch points out that epistemic reason-giving, when it leads to another person’s having an obligation, is a form of what he calls “mere” triggering of an obligation. In particular, it doesn’t involve “the intention to give a reason merely by the very forming of the intention to give a reason.” 271 Thus, it is hard to see how any view that proposes knowledge as the basis of legitimate authority can avoid the objection that, ultimately, insight into the reasons another person has isn’t enough, by itself, to give someone legitimate authority, even if her directives trigger genuine obligations. In fact, we can make this point about expert knowledge using an example similar to the one Marmor uses to make his point about how performing a coordinative function isn’t sufficient for legitimate authority. For instance, a voice recording that played automatically directing passengers in evacuation procedures, say, would communicate precisely the same epistemic reasons about what the passengers have practical reason to do, thereby triggering exactly the same obligations, despite the machine lacking knowledge or any intention to create obligations or direct anyone’s behavior. Moreover, it does not seem that the machine is simply an intermediary either for someone who has legitimate authority, since it is equally implausible to attribute legitimate authority to the person who created the machine to play the recording at the appropriate time based on her knowledge of the plane (although we might attribute epistemic authority). Thus, while someone’s knowledge of the reasons I have might be sufficient to give me a reason, or even an obligation, to comply with that person’s directives, my reason to do so would be grounded merely in that person’s epistemic relationship to independent facts, and her communicating those reasons would merely trigger an obligation I already had. This isn’t to say that knowledge might not be a precondition for having legitimate authority. 272 The fact remains, however, that even if knowledge may sometimes be necessary for legitimate authority, it clearly isn’t a sufficient condition for legitimate authority. But what of Estlund’s suggestion that it is the flight attendant’s “knowledge and position” that give her authority over Joe and the other passengers? Even if knowledge itself 271 Enoch, “Authority and Reason-Giving,” 302, emphasis in original. 272 Thus in the Introduction I suggested, speculatively, that if anything Raz’s normal justification thesis is mostly plausibly interpreted in light of various criticisms as a necessary but not a sufficient condition on legitimate authority. 167 isn’t sufficient for authority, as we have seen, perhaps having knowledge in combination with being in a position to guide others is. Estlund is most plausibly interpreted here as referring to the flight attendant’s being in a position to coordinate others’ behavior. But we have already seen that neither coordination nor knowledge is sufficient for legitimate authority by itself, and we have no reason to think that their combination would be sufficient either. Still, what if we interpreted ‘position’ here in a broader sense? In particular, we may be tempted to attribute practical authority to the flight attendant in virtue of her role as a flight attendant. After all, the flight attendant occupies an institutional role of precisely the sort that we might think gives her the ability, even under ordinary circumstances, to give passengers role obligations qua passengers. These may be obligations particular to the practice of air travel, or even legal obligations in some cases. For these reasons, we may be inclined to say that the flight attendant has practical authority not merely in virtue of her knowledge of the plane and how to coordinate an evacuation, but in virtue of her institutional role. This would, of course, explain why Joe has an obligation to obey the flight attendant even if her instructions are mistaken. And this may even be a plausible diagnosis of why Estlund is led to attribute authority to the flight attendant in this case. Of course, if this is the appropriate way to understand the case, such that it is both a case of legitimate authority and institutional authority due to the flight attendant occupying an enduring institutional role that happens to coincide with emergency circumstances, it no longer seems to pose a challenge for my view. The upshot of this discussion is that if Estlund’s case is to be a candidate for a counterexample to my view, it will be essential to specify that the person who is giving orders to Joe is a stranger, such as a fellow passenger who has no other salient role that might give us independent reason to attribute practical authority to her. But once we have shown that neither coordination nor expertise is sufficient for practical authority, and that leadership is a plausible interpretation of the case, then without some further reason to attribute legitimate authority to the stranger giving directions in the emergency, this type of example seems to lose its force as a purported case of non-institutional legitimate authority. 273 273 David Enoch’s response to Estlund’s case is to deny that the flight attendant has authority initially, but to point out that if following her orders were to become a practice, she could eventually acquire authority (“Authority and Reason-Giving,” 2012, 35-36). 168 1.2: Alarm Clocks Revisited In Chapter 4, we saw how Star and Delmas offered a minimalist conception of authority according to which even an alarm clock appeared to have authority: [W]e would also suggest that [the reader] consider the possibility that not only agents in the right kind of epistemic position can possess practical authority in cases involving the prudential reasons of other agents, but that even alarm clocks…might possess such authority, in virtue of them reliably issuing directives that make agents better conform with reasons that already apply to them. (Star and Delmas, “Three Conceptions of Practical Authority,” 154) In a similar way, Jeremy Waldron has argued that machines could be reason-giving in such a way that we could attribute practical authority to them. For instance, Waldron gives the example of an automated voice machine that he can call to learn his credit card account balance. According to Waldron, the machine “is authoritative for me,” since “I do better by relying on [the machine] for information…than I would by relying on my own forgetful computations.” 274 I have already discussed Star and Delmas’s view in Chapter 4, and I won’t rehash that debate here. But what could lead someone like Waldron to make such a surprising and seemingly radical claim, namely, that a voice machine could have practical authority? The answer seems to be that he takes himself to be engaging in a dialectic related to Raz’s service conception of authority. As we saw in the Introduction, Raz’s canonical statement of his view, involving the Chinese cooking example (among others), strongly implied that epistemic authority alone is sufficient for practical authority in many cases. If that were Raz’s view, and if in addition one can show that machines and not merely persons can have the right sort of epistemic authority, then this would be sufficient to show that machines and not merely persons could have practical authority as well. And this seems to be Waldron’s aim here. Of course, we are familiar by now with how Darwall and others have argued that it takes more to have legitimate authority than merely having epistemic authority with respect to others’ practical reasons. As I pointed out above, Enoch for instance makes a similar 274 Waldron, “Legislators’ Intentions and Unintentional Legislation,” in Law and Interpretation: Essays in Legal Philosophy, ed. A. Marmor, (Oxford: Oxford University Press, 1995): 329-356, 342. 169 point in terms of how even giving someone epistemic reasons that results in an obligation to do something is a case of merely triggering a prior obligation, as opposed to the “robust” reason-giving involving new obligations that is distinctive of legitimate authority. But it may be said on Waldron’s behalf that he has succeeded in showing that a voice machine of the sort he describes, along with various other possible and actual machines, is properly credited with epistemic authority, insofar as it is also plausible to view it as a source of epistemic reasons for one, in a way that would be analogous to a person whose pronouncements or testimony put us in touch with new evidence in virtue of that person’s access to epistemic facts of various sorts. Thus, while we might take Waldron’s example as a particularly notorious reductio of Raz’s original statement of the service conception, it is possible to see what might have motivated him to offer such an example as a case of legitimate practical authority in the first place. 275 But, of course, a diagnosis of why this example goes wrong, and the surprising truth that motivates it, does not take away from the falseness of Waldron’s or, for that matter, Star and Delmas’s claims when it comes to legitimate authority. In Chapter 4, I argued against Star and Delmas’s minimalist conception of authority on the grounds that it had implausible consequences. But in addition to the arguments already given in Chapter 4 against the minimalist view of authority, we are now in a position to appreciate why, even if we grant that an alarm clock can “issue directives” in a non-objectionably anthropomorphic sense, and may even be accurately described as an epistemic authority, we have reason to deny that an alarm clock can have legitimate practical authority. In particular, we have seen how neither a coordinative role nor an epistemic role in triggering an obligation is sufficient for having legitimate authority. As we saw in the flight attendant case, even if coordination is present and intentional, it is not sufficient for practical authority. In addition, epistemic authority is insufficient for legitimate authority because we have no reason to epistemically rely on either a machine or a person except insofar as they reliably put us in touch with independent facts (including facts about what practical reasons 275 Marmor, in responding to Waldron’s example, diagnoses his mistake as thinking that any text, such as a map (and presumably including spoken words as well), can yield the sorts of content-independent reasons that are distinctive of practical authority. Marmor, however, argues that an authoritative legal text, for example, gives content-independent reasons for action in a way that the epistemic reasons given by a map (or a voice machine) do not. Thus, “Waldron’s conception of authority is, at best, an account of theoretical authorities” (Marmor, “Authorities and Persons,” 347. See pp. 343-349 for the full discussion of Waldron’s view, as well as why a similar claim by Michael Moore involving clouds as a device for self-knowledge cannot constitute authoritative texts; cf. Moore, “Interpreting Interpretation,” in Law and Interpretation: 1-29, 14-15). 170 we have). But in neither of these cases is it clear what role over and above that of expertise the machines in these cases are supposed to be playing in virtue of which it might make sense to attribute legitimate authority to them. Finally, besides the considerations that have already been advanced, there may be additional reasons to doubt these cases can serve as examples of non-institutional legitimate authority. Taking a somewhat different tack, Darwall attempts to discredit the idea of a machine being able to have practical authority by pointing out that even a talking alarm clock would lack the standing to issue valid claims or demands since it lacks the capacity to hold others accountable for complying with those demands. 276 Although I argued in Chapter 5 that Darwall is wrong to claim that accountability presupposes practical authority, I left open the possibility that practical authority nevertheless entails accountability to the authority for compliance, although I argued this was not necessarily an essential part of an institutional account of authority. But if Darwall is right, at least about legitimate authority entailing accountability, this would give us an additional reason to deny that Star and Delmas’s alarm clock and Waldron’s voice machine count as examples of non-institutional legitimate authority. And, if we are so inclined, we can make this point without adopting Darwall’s full second-personal framework. 2. Darwall’s Gouty Toe: The Hard Case In this section, I will argue that the example of demanding that someone get off one’s foot (familiar from the previous chapter on Darwall’s view) is not a plausible one-off example of non-institutional legitimate authority. In addition to the reasons given toward the end of the previous chapter for thinking that an actual demand that creates new reasons has to involve the sort of institutional presuppositions that all authoritative directives do, in this section I offer several alternative explanations of prior obligations that someone could be reiterating, triggering, or informing another person of by making the sort of demand that Darwall mentions. While this might not be able to convince someone who insists that “the authority to hold accountable,” in the form of demands for compliance with prior obligations, is an instance of practical authority, we have no independent reason to accept that Darwall’s foot- stepping case is an instance of non-institutional legitimate authority, understood as the creation of a new obligation, and strong reasons to think that it is not. 276 Darwall, “Authority, Accountability, and Preemption,” 113-116. 171 Borrowing an example originally discussed by David Hume (and referred to later by Thomas Nagel), Darwall frequently references a situation in which one person (to avoid confusion, we can call her Brittany) steps on the foot of another person (call him Charles) who has a gouty toe, thereby causing the latter great pain. 277 Next, we are to imagine that Charles tells Brittany, “Get off my foot!” A first potential explanation of Brittany’s obligation to move her foot is simply that Brittany has a prior, determinate moral obligation that requires her once she has stepped on Charles’s foot—by accident, let us stipulate—to remove her foot from his. For example, Brittany plausibly has a moral obligation not to intentionally or foreseeably cause others unnecessary pain. On this interpretation, we can say that Charles is at most restating or demanding compliance with this previously existing obligation without thereby creating a new obligation for Brittany to do so. As we saw in the previous chapter, the right to demand compliance with an obligation isn’t the same as, nor does it entail, the authority to have imposed that very obligation in the first place. Indeed, Brittany plausibly has such an obligation prior to Charles’s demanding that she comply with it. It might seem to resolve the matter that Darwall himself admits, under pressure from Wallace, that there is a prior obligation present in this case that that has been violated: “[S]omeone who steps on your foot has violated your rights and his moral obligations even before you complain about it.” 278 This case, however, is crucially different from the cases we looked at in the previous section. There we were asking, for instance, whether Joe’s obligation to comply with the flight attendant’s instructions constituted a case of legitimate authority in a non-institutional context. Here, there is clearly at least one obligation present already—Brittany has a duty to get off of Charles’s foot—but the question is not whether Charles exercised legitimate authority to create that obligation, which Darwall admits already exists prior to the demand. Rather the question is whether there is an additional obligation Brittany has that results from Charles’s demand to get off his foot and, if so, whether this additional obligation is the result of non-institutional legitimate authority. 277 Hume uses the case as an example of a situation that would elicit sympathy and a consequent change in behavior in An Enquiry Concerning the Principles of Morals (Enquiries Concerning Human Understanding and Concerning the Principles of Morals, 3 rd ed., ed. L. A. Selby-Bigge, rev. P. H. Nidditch (Oxford: Clarendon Press, 1985), 225; the example is cited by Darwall in SPS, 5n6). Thomas Nagel refers to a similar example in discussing ethical egoism and the standing to complain in The Possibility of Altruism, 84f. Darwall offers his version of this type of case in SPS, 5-8. 278 Darwall, “Reply to Korsgaard, Wallace, and Watson,” 64. 172 To this end, it is worth recalling that this case was already discussed in the previous chapter in the context of whether Darwall has in mind a different concept of practical authority from the one Raz is using. We saw conflicting evidence as to whether Darwall himself takes the foot-stepping example to be a case of creating a new second-personal reason, or whether it simply presupposes the existence of such a reason. I argued, however, that we should understand Darwall as committed to the latter view. If this is right, then we should not understand Charles’s demand as creating a new obligation for Brittany in addition to the one she already has. It would, of course, still be the case for Darwall that he thinks that demanding performance of an already existing obligation constitutes “authority,” since his conception of authority appears to be a disjoint conception involving both the power to impose new obligations and the right or permission to demand compliance with those obligations. Thus, in terms of this second disjunct, there would in fact be for Darwall all sorts of examples of non-institutional “authority,” particularly when it comes to demanding compliance with prior moral obligations, and this is so even if Darwall thinks that such demands do not impose new obligations. But, as I claimed in the previous chapter, to the extent that Darwall denies that legitimate authority involves the power to impose new obligations, we can say that his conception of practical authority is implausible. For the sake of argument, however, let us suppose that I am wrong in reading Darwall this way, and that his conception of demanding compliance involves the power to impose new obligations. On this alternative reading, when Darwall says, “when you demand that someone move his foot from on top of yours, you presuppose an irreducibly second- personal standing to address this second-personal reason,” he in fact takes Charles’s demand to create a new, additional obligation for Brittany. 279 Thus Darwall (or someone sympathetic to the type of worry raised here) is free to add that, in addition to the preexisiting obligation (say, not to cause gratuitous pain) which Charles admittedly did not impose, there is a distinct obligation created by this further demand, which constitutes an exercise of legitimate authority and thus gives Brittany a new obligation to get off Charles’s foot. We can then ask whether it is plausible that this is the case, and if so whether it constitutes an example of non-institutional legitimate authority. And, in order to avoid clouding our intuitions about a possible institutional role in virtue of which one party might have legitimate authority over the other (a potential pitfall of the flight attendant case), we 279 Darwall, SPS, 12-13. 173 can stipulate that Brittany and Charles are strangers. Lastly, for simplicity’s sake, we can refer to any second-personal reasons that Darwall claims Brittany has as obligations. So, if there is a distinct obligation to explain here, in addition to the prior obligation that Darwall grants exists, perhaps it takes the form of an obligation that also exists prior to, but is triggered by, Charles’s new demand. There are at least two plausible candidates for how Charles’s demand could thus merely trigger, in Enoch’s sense, a prior obligation that would yield the result that Brittany has an additional obligation to get off of Charles’s foot, but that it is not the result of legitimate authority. One such candidate is a general, indeterminate obligation to respect the bodily integrity of others. It is plausible that the form compliance with such an obligation takes will depend on, and be determined by, individuals’ expressed preferences about how others treat their body. Thus, Charles’s demand to get off his foot informs Brittany of Charles’s preferences in this regard and renders a previously indeterminate obligation determinate. In other words, Charles’s demand alerts Brittany to the fact that she was doing something that he preferred she not do to his body, namely, stepping on his foot. If so, then Charles’s demand doesn’t create a new obligation at all; rather, it simply triggers the circumstances in which an indeterminate prior obligation applies to Brittany. A second candidate for how it could be that Charles could trigger an additional obligation without imposing a new obligation on Brittany is that his demand merely informs Brittany of an already existing obligation, giving her new epistemic reasons but not new practical reasons. Assume that Brittany is unaware prior to Charles’s demand that she is stepping on Charles’s foot (or of the fact that Charles minds her doing so), and thus the crucial function that Charles’s demand performs to alert Brittany to the fact that she is stepping on his foot (or to the fact that it is causing him pain). Thus, although Brittany has this obligation in an objective sense, such that she would recognize the consideration as a reason for her if she were aware of it, it is still the case that prior to Charles’s demand, she does not have it in a subjective sense of her being aware of it and its playing a role in her deliberation until Charles actually makes his demand. Moreover, we can assume that Brittany, had she been of aware of Charles’s gouty toe and the fact that she was causing him pain, would have taken the initiative to remove her own foot. Instead, as it happens, Charles’s demand gives her epistemic reasons or evidence about the practical reasons that she already has (in an objective sense), by alerting her to the fact she is presently in 174 circumstances in which she has an obligation to perform a certain type of action (namely, to take her foot off of Charles’s). 280 As we saw in Chapter 1, Enoch lists two types of “mere triggering”: merely triggering practical reasons, such as by lowering prices which triggers a preexisting reason to buy something, and giving epistemic reasons, such as informing someone that she has reason to do such and such. As Enoch points out, neither case of mere triggering constitutes an example of legitimate authority, which involves “robust” reason-giving and imposing new obligations. Thus, I submit that any such one-off case of an additional obligation for Brittany to get off of Charles’s foot is plausibly construed as one of the two types of mere triggering just mentioned: either as an indeterminate preexisting obligation that gets triggered by a demand, or as a preexisting obligation that the addressee is unaware of and is informed about by way of the demand—or both. Either way, neither obligation would constitute a case of non- institutional legitimate authority. But there may still be a way for Darwall (or a defender of a similar view) to dig in his heels here and to claim (along the lines sketched in the previous chapter) that holding someone accountable really is an example of practical authority that results in creating a new obligation. However, if the demands involved in accountability are to give new reasons, we cannot presuppose that a demand for compliance (unlike the demand in virtue of which one has the original obligation) is already “in force.” Rather, it must be an actual, new demand made by an actual agent. But insofar as such demands constitute authoritative directives, it is plausible to think that the demand presupposes that the speaker occupies a role in virtue of which he has the ability to alter the addressee’s role obligations. This is in line with a suggestion Scott Hershovitz makes: Darwall says we have the authority to make the demands of daily life—get out of my way, get off my foot—in virtue of our membership in the moral community. … It is not clear to me that “authority” is here used in the same sense we have been using it. Practical authority seems to consist in something more stable than the right to make one-off demands like, “Get of my foot.” But if there is only one sense of 280 Michael Smith and Jada Strabbing express a related worry about whether “a third party who makes ... evidence available thereby make[s] available a second-personal reason to get off your foot that existed all along,” and if so whether it is plausible that a demand to do so creates a reason of the sort Darwall claims it does (“Moral Obligation, Accountability, and Second-Personal Reasons,” Philosophy and Phenomenological Research 81, (2010): 237-245, 239). 175 authority in play, … we might have limited authority over one another merely in virtue of our personhood… (Hershovitz, “The Role of Authority,” 17) Thus, if one wanted to claim that Charles’s demand creates a new obligation after all, there is pressure to explain the authoritative directive that creates this reasons as presupposing Charles’s and Brittany’s common membership in the “moral community” as the basis of the relevant background authority relationship. Moreover, Hershovitz is not the only person to advocate such an idea. In a recent paper, Kate Manne suggests that “practice-based reasons may stand a chance of encompassing that part of morality which T.M. Scanlon helpfully distinguishes as ‘what we owe to each other’.” 281 In fact, with the possible exceptions of explaining our duties to certain animals and the natural environment 282 , Manne argues that it may be possible to capture the normativity of even those “moral reasons that arguably pre-date or float free of human sociality” on a practice-based view of reasons: [T]he possibility of accommodating that portion of the moral domain that concerns human interactions solely via practice-based reasons is interesting and live. For, we might hold that there are very general social practices—perhaps even social norms which apply to human beings as such…. If we do recognize the existence of such an overarching practice of common humanity, then we might hope to defend the radical claim that all of the moral reasons that pertain to our treatment of our fellows are ultimately practice-based. (“On Being Social in Metaethics,” 72-73) While neither Manne nor I have the space to fully defend this radical claim, it shows that insofar as we are inclined to interpret Darwall’s examples of “the authority to hold 281 Kate Manne, “On Being Social in Metaethics,” 53n8. 282 Perhaps unsurprisingly, these are the areas of plausible moral obligations that contractualist views in general struggle most to accommodate. See, for instance, Darwall’s attempt to fit these sorts of obligations into his second-personal framework: “First, although I am bound to insist that moral obligation, like the concept of a right, cannot be understood independently of authoritative demands, the thought that moral obligations can be owed to beings who lack second-personal competence might be able to be elaborated in terms of trustees’ (for example, the moral community’s) authority to demand certain treatment on their behalf (perhaps also to claim certain rights, compensation, and so on, for them). Thus, Dr. Seuss’s character the Lorax (a free and rational being) declares, ‘I speak for the trees.’ Second, to the extent that we find the thought that we owe obligations to nonrational beings a natural thing to think, it seems likely that we also impute to them a proto- or quasi- second-personality, for example, as when we see an animal’s or an infant’s cry as a form of complaint” (Darwall, SPS, 29). 176 accountable” as involving the creation of new reasons, it is at least not implausible to interpret the demands involved as presupposing the humanity of the person making the demand as the ground of the reason given. But if so, this puts pressure on us to interpret Darwall’s idea of the moral community as a social or institutional practice (or at least a quasi- institutional practice), governed by norms and a potential source of identity-related reasons. 283 Broadly speaking, this would be congenial to my view, since any new obligation created in virtue of demands grounded in one’s institutional role as a member of the moral community would vindicate, rather than conflict with, my thesis that institutional authority is presupposed by the exercise of legitimate authority in the form of authoritative directives. This last point has an interesting upshot: if personhood or membership in the moral community can play the theoretical role of an identity or institutional role that grounds authoritative demands, and it is hard to see how we could shrug off or abandon such a role, then there may not be cases in which there is no possible role to appeal to, since one could always be interpreted as appealing to one’s personhood or membership in the moral community in making an authoritative directive. There may, however, be marginal cases in which it is unclear which role one is appealing to in issuing an authoritative directive. But perhaps Hershovitz’s suggestion for interpreting Darwall in terms of an role- based view of authority is wrong, and there are genuinely vague or borderline cases in which it is unclear whether there is an institutional background present to which one could be appealing in order to ground an authoritative directive. In that case, I submit, to the extent that is unclear whether there is an institutional background present that could the ground of legitimate authority, it will also be unclear whether there is legitimate authority. Ultimately, we have good reason to think that legitimate authority is essentially institutional, and no obvious reason to think that it is not. Moreover, we are now in a position to appreciate more fully the conclusion that I first articulated in Chapter 1, namely, that the best explanation of the distinctiveness of the reasons legitimate authorities give us is that legitimate authority is essentially institutional in nature. 283 Interestingly, certain comments that J. L. Mackie makes might also be interpreted as suggesting a view of moral obligation along these lines: “[A]t least our central and basic moral judgements represent social demands… The speaker is expressing demands which he makes as a member of a community, which he has developed in and by participation in a joint way of life...” (Mackie, Ethics: Inventing Right and Wrong, (New York: Penguin Books, 1977), 44). A Darwallian inclined to tell a story of this sort might be able to head off potential worries about moral relativism or demands to do wrong by claiming that the sort of practice-based background suggested here is at most a necessary and not a sufficient condition for the existence of a moral obligation. To explore this idea at length, however, would take us too far afield. 177 3. Authority and Obligations In the previous sections, I defended my view against putative one-off, non-institutional examples of legitimate authority. I concluded that the account of practical authority that best captures our intuitions about these sorts of cases is the view I articulated in Chapter 1, namely, that legitimate authority consists in the power to give others new, identity-related obligations. Of course, in Chapter 1 as well as here in this definition, I have assumed that the power to impose obligations is an essential characteristic of the reason-giving that is distinctive of legitimate authority. This is because, in keeping with the views of Raz, Marmor, and others, I have been assuming that authorities necessarily impose obligations, and not some other sort of reason. But, if anything, this dissertation has attempted to argue for aspects of a conception of practical authority that are generally assumed without being argued for. And the obligation-imposing nature of authority is itself one of those aspects. Moreover, the similarities between the reason-giving involved in institutional or role-based requests, for instance, and authoritative directives are striking, in that both appear to be a form of identity-related reason-giving. Thus, in this section, I will begin by laying out the case in favor of treating identity-related reason-giving as a unified phenomenon, regardless of whether it involves imposing obligations. The unity of this phenomenon, however, leads to the following worry. The considerations offered in the previous section only addressed the possibility of non- institutional identity-related obligation-giving. But if it is possible to have a weaker form of non-institutional identity-related reason-giving, this would cast doubt on the reply I gave in the previous section. In response, I argue that although we have reason to acknowledge the unity of the phenomenon, robust reason-giving in any form is best understood as essentially institutional, that is, as grounded in the roles people occupy in social and institutional practices. Thus, if there is pressure to explain cases of identity-related reason-giving that involve giving new reasons but not imposing obligations, such cases tell in favor of a broader notion of institutional role-based reason-giving, and perhaps even in favor of an expanded concept of practical authority, and not against the essentially institutional view of identity- related obligation-giving defended so far. I conclude, however, by suggesting several reasons why it may still make sense to use the term ‘practical authority’ to refer to a particular sort of 178 reason-giving. 3.1: The Case for a Unified Phenomenon of Identity-related Reason-Giving It is hard to deny that strong similarities exist between the reason-giving that is typically associated with legitimate authority, which is standardly construed as imposing new obligations, and the reason-giving involved in requests, invitations, and so forth, despite the latter seemingly yielding weaker reasons that don’t rise to the level of obligations. First, both involve giving reasons intentionally in the form of what Bach and Harnish call a “directive,” which we saw in Chapter 1 is a type of speech act that “express[es] the speaker's attitude toward some prospective action by the hearer and his intention that his utterance, or the attitude it expresses, be taken as a reason for the hearer’s action.” 284 In a similar way, Enoch’s account of “robust” reason-giving is meant to cover both requests and orders. Enoch claims that it is the intention to give a reason by the very forming (or, more accurately, by the forming, communication, and addressee’s recognition) of the intention to give someone a reason that is characteristic of robust reason-giving. And Darwall claims that in addressing second-personal reasons, either through requests or demands, I presuppose certain rational capacities on your part both to recognize my request or demand as such and to take it as a reason for action: “[Y]ou implicitly endow your addressee with the competence to consider and act on your request or demand.” 285 Second, both types of reason-giving involve giving reasons that are content-independent. Where the reason I give you depends not on what I ask but on the fact that I intend to give you a reason—and, I would add, that I occupy a position such that my (expressed) intention to give you a reason actually does give you a reason—then the reason given is content- independent. Content-independent reason-giving frequently is taken to be distinctive of legitimate authority, and I have claimed that is, at least in part. But, as Raz points out, both requests as well as orders are forms of content-independent reason-giving. 286 Being a friend, for instance, gives one a special status to make certain sorts of demands as well as certain sorts of requests in a such way that the reason given depends not (or not merely) on what 284 Bach and Harnish, Linguistic Communication and Speech Acts, 41. Note that the speaker needn’t actually have this intention, since the expression of intentions (like the expression of other mental states) can be insincere. 285 Darwall, SPS, 58-9. 286 Raz mentions the content-independent feature of requests (as well as several other types of reason-giving) in The Morality of Freedom, 36. 179 one is asked to do, but (at least in part) on the identity of the person asking. Thus, although content-independence is an essential feature of the reasons given by someone with practical authority, it is not sufficient to make those reasons distinctly authoritative. Third, the way in which both the reasons given by requests and the obligations imposed by demands are content-independent is that they are both identity-related. Along these lines, we can extend the analogy between obligation-giving and the reason-giving involved in requests, for instance, by noting that both requests as well as orders seem to presuppose at least some background relationship as the ground of the reason given or some standing to make a demand as the ground of the obligation imposed. Plausibly, not everyone is equally well positioned to give me reasons by making requests of me, in some cases due to the nature of the request (analogous to someone with practical authority trying to impose an obligation in a domain outside the jurisdiction covered by his or her role), and in other cases due to the person who is making the request (analogous to someone who does not have institutional authority who is purporting to alter my role obligations by issuing authoritative directives). Both sorts of case, however, suggest that requests as well as orders are forms of essentially institutional or, more generally, practice-based reason-giving. Furthermore, we could even develop a parallel notion of “legitimacy” with respect to requests that refers to the power to give others identity-related reasons for action by making requests, in virtue of occupying a certain institutional role. Thus, just as Darwall refers to those demands that give second-personal reasons as “valid,” we could speak of a “valid request” that someone might make. 287 Of course, complying with “valid” requests, in at least some cases, seems to be optional or supererogatory in a way that responding to valid demands and orders from someone with legitimate authority is not. 288 In particular, there is no essential link to accountability for failing to do as requested of the sort that Darwall thinks is involved in authority, since, for at least some requests, one cannot be blamed for not doing what was requested. In short, requests do not essentially purport to give obligations, but rather to give the addressee a reason to do what is requested that is merely 287 David Owens, for example, refers to “valid requests” (Shaping the Normative Landscape, 86), and Anthony Laden speaks of “legitimate invitations” (Reasoning: A Social Picture, (Oxford: Oxford University Press, 2015), 59). 288 According to David Owens, “The difference between a request and an order is that you wrong the authority by disobeying a valid order but need not wrong the petitioner by refusing a valid request” (Owens, Shaping the Normative Landscape, 86). 180 to be added to the addressee’s balance of reasons. 289 Thus, while there is good reason to doubt that valid requests and demands always give the same type of reason in terms of strength or stringency, they nevertheless seem to give the same sort of reason in terms of grounding, namely, being identity-related. So the case for unification boils down to this: in short, orders as well as requests, invitations, and the like all involve robust, identity-related reason-giving. And if there is a unified phenomenon at work here, one might worry that there could be non-institutional but nonetheless identity-related reason-giving via requests (as opposed to a demand, say). Indeed, if it is possible to give someone identity-related reasons that are not obligations, and to do so in a way that is analogous to practical authority, it is fair to ask whether there might be non- institutional but nevertheless identity-related reason-giving, which is not “mere triggering” but rather akin to the sort of obligation-giving that I have claimed is distinctive of legitimate authority. Even if one thinks that the gouty toe case does not constitute a plausible case of robust obligation-giving, one might still worry that it might constitute an example of a weaker type of reason-giving, or that a similar case might. If we can find such an example, we would have a clear example of non-institutional robust reason-giving, and even if it didn’t involve obligation-giving, it would nevertheless cast into doubt my earlier claim that putative examples of non-institutional legitimate authority are not plausible, if we understand authority in a broader sense as robust, identity-related reason giving. 290 289 Even though making a request does not necessarily purport to give the addressee an obligation to do as requested, it may nonetheless trigger an obligation (perhaps of etiquette) to respond to the request. As Darwall suggests, “The student at the office door may presume no claim on one’s time beyond that involved in considering her request. But she does presuppose that, as well as whatever else one presupposes when addressing a request or a question (SPS, 42).” And Anthony Simon Laden takes basically the same view about inviting or offering: “Once a legitimate offer has been made, though one may be free to turn it down, one has nevertheless been called on to respond, and, under normal circumstances, one’s failure to respond will now count as a snub or a denial of the invitation’s legitimacy” (Laden, Reasoning: A Social Picture, 59). Finally, along the same lines, consider Korsgaard’s example of calling out someone’s name: “If I call out your name, I make you stop in your tracks. … Oh you can proceed, all right, but not just as you did before. For now if you walk on, you will be ignoring me and slighting me. It will probably be difficult for you, and you will have to muster a certain active resistance, a sense of rebellion. But why should you have to rebel against me? It is because I am a law to you. By calling out your name, I have obligated you. I have given you a reason to stop” (The Sources of Normativity, §4.2.7, 140). While Korsgaard’s language is surely hyperbolic, her example and that of Darwall suggest that certain communicative acts can impose obligations to respond, even where one is not otherwise obligated to do as the addressee wishes. However, as I go to argue, imposing an obligation cannot be the direct intention of a request, and so even where a request might have the effect of creating an obligation (whether institutional or otherwise), requests cannot count as authoritative directives. 290 I return to the issue of whether it is appropriate to conceive of ‘authority’ in broader terms of this sort in section 3.3 below. 181 3.2: Are There Identity-Related Reasons that Are Not Obligations? So imagine that instead of demanding that she get off of his foot, Charles simply asks Brittany to get off of his foot. Is it plausible that in doing so he gives her a non-institutional but nevertheless identity-related reason for action by making a request of this sort? There are at least three forms that such an example could conceivably take, only one of which is worrisome for my view. First, there still may be cases of mere triggering with respect to weaker reasons. For instance, it may be a fact about the social practice of the family that fathers already have an identity-related reason to give some weight to requests that their daughters make prior to those requests being made, such that the making of those requests merely triggers this reason. Likewise, if Hershovitz’s and Manne’s suggestion of a social practice involving our common humanity or the moral community at large is plausible, a similar explanation may be available according to which there is a prior institutional or practice-based reason that is triggered by Charles’s request to Brittany to get off of his foot. Second, it may be possible to explain seemingly weaker identity-related reason-giving in terms of institutional obligations. In particular, it might be the case that some valid demands only succeed in giving identity-related reasons, and not strict obligations. In order to see how this might work, first consider the fact that, at least in some cases, it seems plausible that one can have identity-related reasons that are not strict obligations. A CEO, for instance, plausibly has an institutional reason qua CEO to do a variety of things that promote shareholder value, such as opening a new product line or promoting efficiency in the supply chain, but in many cases it isn’t obvious that the CEO has a strict obligation to promote any particular initiative (assuming they would equally promote shareholder value). Likewise, a professor plausibly has practice-based reasons to engage in activities that contribute to her profession, such as refereeing journal submissions. She also plausibly has identity-related reasons as a teacher to prepare for classes and to spend time developing her pedagogical skills. But it isn’t obvious that she has a strict obligation to do both of these things if she only has time to do one of them in a given semester, say. Of course, both a CEO and a professor plausibly do have at least some strict identity-related obligations as well. For instance, the CEO may be required to attend the annual shareholder meeting, and the professor may be required to serve on a committee if she is instructed to do so by the chair of her department. Nevertheless, it may be possible to explain the former sort of what seemed to be weaker identity-related reasons as an instance 182 of what Kant called imperfect duties. For instance, the CEO doesn’t merely have a reason to promote shareholder value, but in fact has an institutional (as well as legal) obligation to do so. But there may be many ways for the CEO to do so, and thus fulfilling this obligation may not require her to pursue every initiative that might promote shareholder value (in fact, pursuing every initiative might stretch the company’s resources so thin that it hurts shareholder value). And this may be all that is needed to explain what initially appears to be a weaker sort of identity-related reasons. Indeed, if we grant that indeterminate or “imperfect” institutional obligations of this sort exist, and that they explain at least some of what appear to be weaker identity-related reasons, then perhaps other identity-related reasons can be explained in a similar way. For instance, imagine that the shareholders of Widgets Inc. vote in favor of turning Widgets Inc. into a benefit or “B” corporation. By changing the institutional rules, indeed by changing the rules that are constitutive of the corporation itself, the shareholders succeed in altering the institutional obligations of the CEO, who now has an imperfect obligation to promote the interests of other stakeholders, by taking into account the impact of the company’s actions on society and the environment, for instance, as well as the financial interests of the shareholders. This suggests a picture on which all identity-related reasons, that is, both perfect and imperfect institutional obligations, stem from social facts about institutional practices and their rules, as I described in Chapter 1. By thus altering the CEO’s imperfect institutional obligations, the shareholders have altered the CEO’s identity-related reasons. Moreover, they have done so in the very same way that practical authorities alter strict institutional obligations, and thus this example seems to constitute a familiar case of institutional authority, albeit somewhat more broadly understood. Third, one may simply insist that there is a form of identity-related reason-giving that does not bottom out either in imperfect identity-related obligations or in mere triggering of either obligations or reasons. As we saw above, there is a strong case to be made that there is a form of reason-giving that is precisely analogous to the obligation-giving involved in legitimate authority but that results in the giving of weaker reasons. It is plausible, for instance, that your friend can give you an identity-related reason to help him move on Saturday by asking you to do so that does not amount to an identity-related obligation, either perfect or imperfect. Thus, one may worry that insofar as identity-related reason-giving doesn’t require institutions, then we shouldn’t conclude that practical authority requires 183 institutions either. But we have no reason to think that such instances of identity-related reason-giving are non-institutional. This is because the most compelling cases in support of this idea are those that involve relationships that are structured by social and institutional practices, and in particular by roles within those practices, such as friendship and the role of being a friend. And, insofar as we think that Charles’s request to Brittany to get off of his foot gives her a new identity-related reason, it also seems plausible to think that his request presupposes a broad social practice involving our common humanity, and thus that Hershovitz’s and Manne’s suggestion may be on the right track. Thus, for any such example, I submit that the very features that make it plausible as a case of identity-related reason-giving will also presuppose sufficient structure such that everything I have said about the nature of institutional obligations is applicable, mutatis mutandis, in terms of institutional reasons. Thus, if anything, weaker forms of identity-related reason-giving are congenial to being integrated into an institutional view of the sort I already defend. Indeed, it seems all but impossible to find an example of a “bare” request that does not either (i) presuppose an institutional background or social role that grounds the reason, or, barring that, (ii) presupposes a reason or obligation to do as one is asked that the request merely triggers. Some cases will be clear instances of one or the other. Your child’s asking you to drive her to Disneyland gives you a reason because she is your daughter, in a way that a stranger’s request would not, and is a plausible instance of (i), since you and your daughter are both participants in the social practice of the family. And if a stranger asks you to hold her place in line at the post office, this request plausibly triggers an obligation of etiquette to do so, which is an instance of (ii). Or consider a dehydrated stranger that I come across on the hiking trail who asks me for a drink of water, which is also an instance of (ii). In that case, I plausibly already have a reason to help the man prior to his asking. Admittedly, in some cases, the source of the reason may not be as clear: consider a neighbor who asks you to pick up a gallon milk for him the next time you stop at the supermarket. If we think this gives you a reason to do so, it may be because your relationship as neighbors allows you to give each other this type of reason qua neighbor, whereas it might be inappropriate for your boss qua employer to ask you to do so, or for a stranger to ask you to do so, since in both of the latter cases the other person lacks the right kind of institutional relationship to you that would allow them to give you identity-related reasons by making 184 such requests of you. Alternately, the milk example might be similar to that of the post office, where the neighbor is simply triggering a preexisting obligation of etiquette. I submit that any plausible example of reason-giving involving requests is explicable in one of these two ways. Either way, there would be no “bare” reason-giving present. Moreover, we don’t have much reason to be optimistic about constructing a non- institutional parallel to the gouty toe case, since it seems likely that similar considerations to those advanced in the obligation case above would, mutatis mutandis, apply there as well. In the end, we have no more reason to find an analogy to the gouty toe case involving a request to be more plausible than we do with purported examples of non-institutional reason-giving involving demands. Thus, my considered view is that the best explanation of the distinctive character of the reason-giving involved in requests, invitations, and other forms of identity-related reason-giving is that they presuppose institutions and institutional roles—just as I concluded in Chapter 1 about the obligation-giving that is characteristic of legitimate authority. In fact, if my earlier suggestion is correct, and identity-related reason-giving in the case of seemingly weaker reasons turns out simply to be instances of imposing imperfect duties, then I see no reason not to call such reason-giving authority in the fullest sense. In other words, if requests simply give one an obligation to give some weight to what one has been asked to do in virtue of the identity of the person who asked, then there is a strong case to be made for a more expansive notion of practical authority than that which is typically offered in the literature. I don’t wish to insist on this view, however, since there is reason to view identity-related reason-giving as essentially presupposing an institutional framework, even if it does not involve imposing obligations. 3.3: Identity-Related Robust Reason-Giving and ‘Legitimate Authority’ In Chapter 1, I argued for cashing out legitimate authority as robust, identity-related reason- giving. For simplicity’s sake, I also assumed that legitimate authority was properly restricted to imposing identity-related obligations. But, as we have seen, there are strong similarities between imposing identity-related obligations and other types of identity-related reason- giving, such as that involved in requests, invitations, and so forth. So at the very least practical authority (understood as imposing identity-related obligations) is part of a unified phenomenon of giving genuine identity-related reasons by changing the institutional reasons that attach to a role that someone both occupies and has sufficient reason to identify with. 185 But even if these commonalities exist among various types of identity-related reason-giving, one may wonder whether there is something distinct about imposing identity-related obligations that justifies referring to the ability to do so it by a separate name, i.e., ‘legitimate authority’. In this section, I reject several proposals for what such a rationale consists in. I conclude that, although it might be useful to refer to the ability to give identity-related obligations as ‘legitimate authority’, this form of reason-giving is distinguished only by the stringency of the reason given, and is in other respects analogous to weaker forms of identity-related reason-giving. Consequently, different uses of the term ‘authority’ may make sense, as long as we are clear about what concepts our terms refer to. So what, if anything, can distinguish legitimate authority from other forms of robust, identity-related reason-giving? One proposal is that the same “credentials”—or, as I might prefer to put it, the same identity or institutional role—may not be able to ground different types of reason-giving. On this point, Anthony Laden offers the following remarks comparing, for instance, the normative effects of inviting someone to dinner as opposed to passing a law: Even if these and similar cases are similar in these ways, it would be an important mistake to unify them further…. And because these are fundamentally different kinds of normative capacity, we should not be surprised if the credentials they require are also fundamentally different. What this suggests, then, is that there is a family of such activities. It is, I think, a purely terminological matter whether we want to call all members of this family forms of authority and thus broaden our concept of authority, or keep the concept of authority narrow and admit that it has an interesting set of cousins. (Laden, Reasoning: A Social Picture, 59) Somewhat confusingly, Laden claims both that passing a law and inviting someone to dinner are “fundamentally different kinds of normative capacity,” and also that “it is…a purely terminological matter” whether we want to call them both ‘authority’. At root, however, Laden suggests that it is the required “credentials” that make the difference. But we have reason to doubt Laden’s claim that the credentials required for these two kinds of reason-giving are “fundamentally different.” Your boss may not have the credentials to give you an identity-related reason by asking you to pick up milk for him on your way home for work and to drop it off at his house (assuming that doing so is not part 186 of your job, and thus outside the scope of his institutional authority). But your boss does not have the credentials to give you an identity-related obligation by ordering to you buy milk for him either. Thus, although it is true that different credentials may be required different types of identity-related reason-giving, it is equally true that, even restricting our focus to cases of obligation-giving, different credentials may be required for imposing different obligations. On this note, it seems possible for your friend, say, to give you both an obligations by making a certain demand as well as a weaker reason by making a certain request, and to do so in both cases in virtue of the very same “credentials,” i.e., being your friend. Moreover, the way in which the ability to give identity-related reasons depends on one’s institutional role seems precisely analogous among various forms of identity-related reason-giving. So the required “credentials” for different types of identity-related reason-giving are not “fundamentally different,” and this feature can’t distinguish identity-related obligation-giving from other types of identity-related reason-giving any more than it already distinguishes different grounds of identity-related obligation-giving. A second candidate for an essential difference between what is typically referred to as practical authority and other types of identity-related reason-giving is structural. One proposal for what such a structural difference consists is Marmor’s idea that authority relations are necessarily asymmetrical: “If A is an authority vis-à-vis B in matters C, it just cannot be the case that B is also an authority vis-à-vis A in those same matters.” Of course, as Marmor notes, the truth of this claim depends on how we interpret the “same matters.” 291 It doesn’t seem problematic, for instance, for landowner A to have the power to forbid his neighbor B from crossing A’s land, and for B to have a symmetrical power to forbid A from crossing B’s land. It also isn’t obviously structurally problematic for two parties, X and Y, to have authority over the same matters with respect to the same individual Z within the same social or institutional practice. For example, in the same family, both parents can have the authority to tell their child when to go to bed. Admittedly, such an arrangement does allow for the possibility of conflicting directives, but in general there doesn’t seem to be anything conceptually incoherent about a situation of that sort. So, on either of these interpretations of symmetry, it isn’t obvious on what grounds we can claim that symmetrical authority relations are problematic. In fact, it does even not seem to be essential, structurally speaking, for an institution to be structured so as to prevent the creation of conflicting institutional obligations. 291 Marmor, “The Dilemma of Authority,” 135. 187 If so, then one or more of the scope, domain, or jurisdiction of institutional authority could at least in principle overlap in such a way as to allow such conflicts, since there is nothing about the nature of institutions as such that requires eliminating the possibility of institutional obligations coming into conflict. But even if conflicts of institutional authority in principle don’t seem to be ruled out conceptually, legitimate authority does not seem to allow for such conflicts, at least with respect to the same subject, in virtue of occupying the same role, within the same institution. In other words, with respect to a given institution, I submit it isn’t possible for one to have genuine, conflicting identity-related obligations both of which are normative for one in the reason-involving sense and are grounded in the same role. 292 If so, then it would be impossible for either the same person with legitimate authority, or two people with legitimate authority within the same institution, to impose conflicting normative obligations on someone in virtue of that person’s occupying the same institutional role. It is beyond the scope of this dissertation to argue for the impossibility of conflicts of this sort. 293 But if such situations are impossible, then it would also be impossible, normatively speaking, to put someone in such a situation. By contrast, the possibility of having conflicting identity-related reasons stemming from the same role does not seem at all problematic when it comes to weaker forms of reason-giving. Reasons, like desires, can conflict without incoherence. It does not seem incoherent, either institutionally or normatively, for two parties to be able to give me conflicting reasons in virtue of my occupying the very same role. Even if my parents cannot coherently give me conflicting normative obligations related to the same role, they surely can give me conflicting identity-related reasons related to the same role. One could even 292 This claim is distinct from the idea that one cannot have conflicting obligations stemming from two separate identities, such as one’s role as an employee and one’s role as a father, which I am not arguing for. Especially if the obligations imposed are pro tanto obligations, and not all-things-considered obligations, then it may be possible for one to have conflicts of this sort stemming from different institutional roles. But saying this does not commit me either way with respect to the question of whether all-things-considered dilemmas are possible. 293 On this issue I tend to agree with Thomas Hill in the justification for denying the possibility of genuine dilemmas, that is, situations in which one does wrong or is criticizable no matter how one acts: “Now my thought is that the Kantian position on dilemmas respects and highlights this conception of a person in a fitting way insofar as it allows that, no matter how grave their past crimes and moral offenses, a person can choose at any time to be fully conscientious and to do no further wrong. Neither nature, nor other persons, nor one's own past failures, on this view, can rob one of the opportunity, and responsibility, to ‘go and sin [i.e., violate duty] no more’” (Thomas E. Hill, Jr., “Moral Dilemmas, Gaps, and Residues: A Kantian Perspective,” in Moral Dilemmas and Moral Worth, ed. H. E. Mason, (Oxford: Oxford University Press, 1996): 167-199, 178, emphases and brackets in original). To argue for this, however, isn’t possible here. 188 coherently imagine a circular relationship, both institutionally and normatively, in terms of the ability to give identity-related reasons with regard to the same matters, such that A can give reasons to B, who can give reasons to C, who can give reasons to A, without any structural or rational incoherence. With the possible exception of very specific or very clever arrangements, this is not obviously true of obligations imposed by legitimate authority. Two things follow. First, it is reasonable to think that well-designed institutions will typically be structured so as to account for the impossibility of the sorts of normative conflicts with respect to legitimate authority structures just mentioned. By preventing or, at the very least, having mechanisms for the resolution of conflicts of institutional authority, well-designed institutional practices will reflect the fact that genuinely normative, identity- related obligations with respect to the same identity cannot coherently conflict. And this difference seems both to explain and to be reflected in the fact that institutional authority is typically, even if not essentially, structured as a non-circular, one-to-many relationship, and not the other way around. If this is right, it would explain why the status of institutional authority is, typically if not essentially, uniquely structurally situated in precisely this way. Second, this difference, as important as it may seem, essentially depends on the type of reason involved, and the assumption that genuine dilemmas are impossible. So even if this is right, the typically privileged structural situation of institutional authorities is directly and solely a function of the type of reason involved, namely, obligations as opposed to some other type of reason. In short, the impossibility of conflicting legitimate authority with respect to the same person in the same role does not distinguish the type of reason-giving, apart from the issue of whether the reason given is an obligation instead of some other type of reason. And this in turn suggests one last place to look for an essential difference between ‘legitimate authority’ and other types of identity-related reason-giving. Finally, one might simply try to cite the stringency of the reason given itself. Indeed, some authors have taken this to be a (if not the) hallmark of authority. Thus Marmor claims: “What makes authoritative instructions unique is not that they generate identity-related reasons, although they necessarily do that as well, but the fact that those reasons are of an obligatory nature.” 294 In Chapter 1, I listed obligation-giving as a candidate feature for what is distinctive about the reason-giving that is characteristic of legitimate authority. For simplicity’s sake, I have discussed legitimate authority in those terms, as the power to give 294 Marmor, Philosophy of Law, (Princeton, NJ: Princeton University Press, 2011), 63. 189 identity-related obligations. But, as we have seen, apart from the difference in the stringency of the reason involved, identity-related obligation-giving seems precisely analogous to other forms of identity-related reason-giving, in terms of both content-independence and the presuppositions involved. In general, identity-related reason-giving seems to involve the expression of the intention to give a reason, and a presupposition that the speaker occupies a role in a social or institutional practice vis-à-vis the addressee that gives the speaker the ability to do so. In this respect, legitimate authority seems to be of a piece with other types of robust, identity-related reason-giving. Of course, this is not to deny that there is a genuine difference between obligations and other sorts of reasons, and thus a corresponding difference between identity-related obligations and other types of identity-related reasons. In particular, as we saw above, there is a difference between the obligations imposed by authoritative directives and other forms of identity-related reason-giving with respect to the strictness of the reason that one is giving. 295 Requests, for instance, can give their addressees genuinely new identity-related reasons, but insofar as obligations are concerned a request seems at most seems able merely to trigger a pre-existing obligation. 296 And with any form of robust reason-giving, the required intention that must be communicated in order to give a reason will differ based on the type of reason given: for example, robust obligation-giving requires the intention to obligate, whereas requests do not involve purporting or intending to impose obligations. Recall that I began by proposing to investigate legitimate authority, without assuming that there was a non-normative sense of practical authority that was common to both 295 It is possible to say more here about the nature of the obligations authorities impose, which Raz cashes out in terms of the highly controversial notion of “preemptive” or “exclusionary” reasons for action, which are supposed to replace some of a subject’s other reasons in practical deliberation, as spelled out in Raz’s preemption thesis and subsequent discussion (cf. The Morality of Freedom, 57-62). The nature of preemptive reasons, however, needn’t concern us here, since we have more than sufficient grounds to distinguish the obligations authorities impose in terms of their being identity-related. I remain open to the idea that authoritative obligations can also be understood in terms of exclusionary reasons, but it at least isn’t obvious that obligations either in general or in the case of legitimate authority have to be understood this way. 296 Charles Hamblin considers, but ultimately rejects, a view on which, semantically, requests are either conditional obligations (e.g., ‘If you accept this request, then you ought to do such-and-such’) or conditionals under the scope of an obligation operator (‘It ought to be that: if you accept this request, then you do such- and-such”). As Hamblin concludes, neither seems to be a plausible account of how requests work (Hamblin, Imperatives (London: Blackwell, 1987)). Thanks to Matt Babb for this reference. This is not to say that accepting a request does not give us an obligation to fulfill the request, just as making a promise gives us an obligation to keep the promise, although both seem to require some action on the part of the person thereby obligated that puts that person under an obligation. It is also plausible that we can have prior obligations that requests can trigger: these may take the form of an obligation to do whatever someone else requests, or perhaps an obligation not to make a fool of the requestor, as Geoffrey Cupit argues for (Cupit, “How Requests (and Promises) Create Obligations,” The Philosophical Quarterly 44(177), (1994): 439-455). 190 legitimate and illegitimate authority. I then argued the distinctive form of reason-giving characteristic of legitimate authority is best explained in terms of institutional roles and institutional relationships. We can now see the way in which legitimate authority, on this view, is indeed a unique normative status, since people with legitimate authority can make a contribution that no one else can: they have the power to create identity-related obligations, by communicating the intention to do so, in virtue of occupying a particular role in a social or institutional practice vis-à-vis someone else who also occupies a role in that same practice. Consequently, while I have no problem using the term ‘legitimate authority’ to pick out this particular sort of robust, identity-related reason-giving that involves obligations as opposed to other sorts of identity-related reason-giving, if these various types of reason- giving are nevertheless in all other respects analogous, this would not seem to constitute an essential difference of the sort we were looking for. If not, this would potentially license a more permissive use of the term ‘legitimate authority’ to include other types of robust, identity-related reason-giving. In the end, as Laden suggested, whether one wants to count all types of identity-related reason-giving as ‘legitimate authority’ may turn out to be simply a matter of terminological preference. Given the considerations already raised, one could intelligibly use the term ‘legitimate authority’ to refer to either a broader or narrower phenomenon. Indeed, as we have seen, unless we are clear about our terms, the term ‘practical authority’ can be used in different contexts to refer to any of the following: the narrow, traditional definition of imposing of genuine obligations; the imposing of institutional obligations; genuine robust reason-giving, understood broadly as involving both reasons and obligations; or the altering of someone’s institutional reasons, irrespective of the types of reasons or of their normativity. But, as I hope to have demonstrated by now, the dimensions along which our use of the terms ‘practical authority’ and ‘legitimate authority’ might vary proves the need for conceptual clarifications of the sort I have offered in this and the preceding chapters. 4. Conclusion In this chapter, I began by examining some of the most problematic cases of putatively non- institutional exercises of practical authority. These included a flight attendant’s giving directions in an emergency, an alarm clock’s issuing directives, and Darwall’s foot-stepping 191 case. The result was a clearer picture of the various aspects of the sort of reason-giving involved in practical authority. I then turned to look at a second worry, which involved questioning the restriction of the reason-giving distinctive of legitimate authority to obligation-giving. In particular, I looked at whether non-institutional identity-related reason- giving of a weaker sort makes sense. In response I argued that, although there is a broader phenomenon of identity-related reason-giving, insofar as examples of identity-related reason- giving are plausible, they are best understood as essentially institutional. Ultimately, what emerges is a somewhat surprising picture on which the way in which our friends can give us a reason to come to dinner by inviting us has fundamental structural similarities to the way in which our boss can give us an obligation to come to a meeting by ordering us to do so. Depending on one’s terminological preferences, about which it is essential to be clear, legitimate authority might intelligibly and without abuse of language turn out to be the power one has in virtue of occupying an institutional role to create either identity-related reasons in general, or identity-related obligations in particular, for people who occupy certain roles within the same institutions and who have sufficient reason to identify with those roles. 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Abstract (if available)

Abstract In this dissertation, I offer a new argument for the institutional nature of practical authority that is more dialectically inclusive than other “institutional” views of authority in that it requires fewer assumptions. I begin by isolating the phenomenon of legitimate authority that I want to explain. I argue that part of what is distinctive about legitimate authorities is that they presuppose a certain identity, a certain relationship to us, as the basis of the reasons that they give us. My central claim is that the best explanation of the way in which legitimate authority appeals to identity is that it presupposes a particular sort of institutional relationship between authority and subject. I also propose a different take on what has to be added to institutional authority in order to make it legitimate. I then proceed to defend this account against several significant objections.

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University of Southern California Dissertations and Theses

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Asset Metadata

Creator Crabill, Joshua D. (author)

Core Title Describing authority

School College of Letters, Arts and Sciences

Degree Doctor of Philosophy

Degree Program Philosophy

Publication Date 02/02/2016

Defense Date 12/08/2015

Publisher University of Southern California (original), University of Southern California. Libraries (digital)

Tag institutional authority,legitimate authority,OAI-PMH Harvest,philosophy of law,political philosophy,practical authority

Format application/pdf (imt)

Language English

Contributor Electronically uploaded by the author (provenance)

Advisor Schroeder, Mark A. (committee chair), Finlay, Stephen (committee member), Marmor, Andrei (committee member), Watson, Gary (committee member)

Creator Email crabill@usc.edu,joshua.crabill@gmail.com

Permanent Link (DOI) https://doi.org/10.25549/usctheses-c40-204402

Unique identifier UC11277404

Identifier etd-CrabillJos-4075.pdf (filename),usctheses-c40-204402 (legacy record id)

Legacy Identifier etd-CrabillJos-4075.pdf

Dmrecord 204402

Document Type Dissertation

Format application/pdf (imt)

Rights Crabill, Joshua D.

Type texts

Source University of Southern California (contributing entity), University of Southern California Dissertations and Theses (collection)

Access Conditions The author retains rights to his/her dissertation, thesis or other graduate work according to U.S. copyright law. Electronic access is being provided by the USC Libraries in agreement with the a...

Repository Name University of Southern California Digital Library

Repository Location USC Digital Library, University of Southern California, University Park Campus MC 2810, 3434 South Grand Avenue, 2nd Floor, Los Angeles, California 90089-2810, USA