The Empty Idea of Authority
Laurence Claus | 2009 U. Ill. L. Rev. 1301
The idea of authority is a fabrication. Claims of moral right to be obeyed owe their historic salience to the self-interest of claimants. When Enlightenment scholars demolished the divine right of kings, they should have disabused us of the right, not just of the notions that it came from the divine and belonged to kings. Their effort to salvage the idea of right to rule and to press it into serving as support for their favored governments was understandable but unjustified.
Contrary to widespread belief, the idea of moral right to be obeyed does not help to explain the nature of law. This Article argues that human communications become law simply by participating in a self-recognizing system that successfully signals what people are likely to do and to expect.
Claims of moral right to be obeyed have their origins in creationist accounts of law and govern-ment. This Article presents an evolutionary account of law and government. The law of a human community is a self-generating, self-recognizing system of human communications that signals likely action within that community. Law is a signaling system that uniquely serves and symbiotically defines a human community.
Understanding law as a self-fulfilling signaling system frees us to discard the idea of authority. This Article articulates a fresh and more accurate conception of law that builds on Oliver Wendell Holmes’s celebrated insights concerning law’s predictive potential. The Article then considers important implications of this new understanding for how we individually make moral choices, for how we read law, and for some of the many other ways that law affects our lives.