Authority (Key Concepts in Political Theory)

by Fabian Wendt

Authorities provide reasons for belief and action because they have a certain superior standing.

In the case of practical authorities, the superior standing is constituted not by special knowledge, but by having certain rights.

Like police officers, parents have authority because they have certain rights over a certain class of subjects, namely their children.

In fact, the authority of the state and the authority of parents have sometimes been thought to be similar or even identical.

In the present context, the important point simply is that both the authority of the state and the authority of parents are constituted by a special set of rights. This set of rights marks their superior position, not some superior knowledge.

De facto authorities are treated as authorities; people believe that they have a superior standing. Legitimate authorities, on the other hand, really have that superior standing.

Authorities that are only de facto authorities are problematic because people take them to provide reasons for action or belief that they are not in a position to provide. Mere legitimate authorities are unfortunate because they provide reasons for action or belief, but people fail to appreciate it.

The distinction between de facto and legitimate authorities applies not only to theoretical authorities, but also to practical authorities. Here we might not speak of “charlatans,” but still there could be persons who are treated as practical authorities without actually having the rights that are needed to really have that practical authority.

A government in exile no longer has de facto authority, but could still be considered to have legitimate authority.

The rest of the book will mainly be devoted to the authority of the state, although I will talk about other types of authority as well. The state’s authority can also be called political authority.

On a more abstract level, states claim to have the right to make laws, first of all.

What is important to bear in mind, though, is that states claim to have authority over all citizens and over all people in their territory.

A state that merely has the right to enact laws with regard to some citizens, but not with regard to others, or with regard to some people in its territory, but not with regard to others, would not have political authority as we conceive it.

Second, states claim to have the right to coercively enforce these laws.

Third, states not only enact and coercively enforce laws, they also claim that no other institution may enact and enforce laws in the state’s territory without the state’s permission. States, in other words, claim a monopoly on the use of force.

To summarize, then, states claim and uphold the exclusive and holistic right to enact and enforce laws for their territory and their citizens. This complex right can be called the right to rule.

There are claim-rights, liberty-rights, powers, and immunities.

Claim-rights correlate with duties. When a person has a claim-right to something, then others have a duty to respect it.

Liberty-rights – Hohfeld calls them “privileges” – are very different from claim-rights. When I have a liberty-right to do something, then this means that I do not have duties that would stand in the way of doing it.

Powers are second-order rights. They mean the ability to alter one’s own or other people’s rights and duties.

Immunities protect one’s rights from being altered by someone else.

So what kind of right is the state’s right to rule? It is a bundle of rights. Some ingredients of the bundle are rather uncontroversial, others are more controversial.

Yet what cannot be left out – and arguably forms the core of the right to rule – is the state’s power to impose duties on citizens and on people in its territory

This power seems essential to what states do: Enacting laws simply means putting citizens under a duty to respect these laws.

One may wonder whether it is conceivable that a state has the power to impose duties, but not a claim-right to be obeyed. It is: When a state imposes duties on citizens, these duties need not be owed to the state. They can be owed to other citizens.

Only proper powers create “content-independent” reasons for action. The mere fact that I promised something gives a reason for action (namely to do the thing that is to be done if I am to keep the promise), no matter what the content of the promise was.

The state’s power to impose duties is a proper power in that it is supposed to create content-independent reasons for action, just like promising. Enacting laws means imposing legal duties and thereby creating reasons for action independently of the law’s content.

The power to impose duties is a power to create content-independent reasons for action within the range of morally permissible legislation.

The second clarificatory note is that the state’s right to rule is a moral right. Trivially, states have the legal rights to do all the things they do.

The interesting question is whether states also have the moral right to do the things they do. If they do, then they have legitimate authority.

Third, a few words on the relation between political authority and what is often called “political obligation.” Just as political authority is a moral notion, political obligation also is a moral notion.

Political obligations include the duty to obey the law, to pay taxes, to serve in the military, etc. Usually, political authority and political obligations have been regarded as very closely related, as two sides of the same coin.

Nevertheless, it is important to see that not all political obligations need to be connected to political authority. Maybe some political obligations are simply owed to other citizens independently of whether the state has any moral powers to impose duties

What looks problematic about political authority is that the state’s superior standing is marked by a specific set of rights that normal people lack.

The task of a theory of political authority is to explain how and why states (and the particular persons who fill certain roles within the state) could have political authority.

Consent theory takes states to have political authority if and only if they have the consent of the governed.

Since explaining political authority means explaining how and why the state could have the right to rule, consent certainly is a highly promising candidate for explaining political authority.

If political authority is grounded in consent, then the inequality that comes with political authority no longer looks problematic.

It is one thing to claim that states need the consent of the governed in order to have authority; it is quite another to show that any states actually received that consent.

States are usually imposed on at least some non-consenting adults. Even the United States of America of course were not founded on actual consent.

Of course the Declaration of Independence was signed by delegates of all colonies who claimed to represent their citizens. But not everyone consented to let the delegates speak for him or her. Moreover, slaves and Native Americans were not represented at all.

Consent theory might be the correct theory of political authority: It might specify the correct necessary and sufficient conditions for state authority (namely: everyone’s consent is required). But if this is correct, we have to conclude that all actual states and very probably all future states lack political authority.

When giving tacit consent, one gives consent without performing an action whose only standard public purpose is to give consent.

But tacit consent is trickier, of course, because it seems unclear both under what conditions tacit consent is given and what exactly one consents to when tacit consent is given. Conventions are crucial here.

there certainly is such a thing as tacit consent, and tacit consent indeed has the power to give rise to new rights (the explanation condition is met). But there are no social conventions that would allow people to give the state its right to rule via tacit consent. (Also, there should not be such conventions.)

Maybe there is yet another way to ground political authority on consent. Maybe it is sufficient if there is a hypothetical storyline in which everyone gives consent

Now at first sight, the proposal to rely on hypothetical consent may seem absurd. Hypothetical consent is obviously very different from real consent, just like hypothetical food is very different from real food.

And yet hypothetical consent matters. It matters because it shows that people would have excellent reasons to give consent – even if, as a matter of fact, they do not give consent.

So in fact hypothetical consent is not about consent at all. It shows that people would have good reason to give consent to X and that therefore X is acceptable to them.

First of all, it is doubtful that any states enjoy the hypothetical consent of everyone