EUI - Legitimate authority without a duty to obey: The power-liability approach as a conceptual framework to understand practical authority

The working title of the research project is 'Legitimate authority without a duty to obey: The power-liability approach as a conceptual framework to understand practical authority'. It is primarily a project of a theoretical and conceptual nature, based within the fields of jurisprudence and legal theory/philosophy. The focus of the research is the concept of legitimate state authority, particularly as exercised through the medium of law. The idea of the legitimate state, and the question of what constitutes legitimate state authority, has been of central concern for the field of legal theory for centuries. Legal theorists have traditionally argued that legitimate state authority entails a "right to rule" on part of the state, which in turn corresponds with a general moral duty to obey on part of its subjects (the correlativity principle). However, the question of whether the subjects of a state automatically are under a general duty of obedience is controversial and the majority of scholars now argue that such a duty will rarely, if ever, materialise in contemporary states. For those who agree with the Inseparability Thesis - the assumption that there is a necessary conceptual connection between legitimate state authority and a general, content-independent duty to obey - the following conclusion must follow: if no such duty exists, legitimate state authority itself becomes an impossibility. This leaves us in the position of the philosophical anarchist, rejecting the possibility that any state can ever be legitimate. The thesis examines the conceptual and practical validity of the correlativity principle. Three distinct versions of the principle are identified, making for three separate lines of inquiry. The first interpretation involves the argument that the essence of state authority is the moral right to impose duties and demand obedience; in other words that the right to impose moral duties is what distinguishes legitimate state authority form other actors or entities exercising political power. It is argued that this is not the case and that state authority should not be understood as a claim-right to rule corresponding with a moral duty to obey but rather as a moral power possessed by the state, corresponding to the citizens? liability to having their legal position altered by the state. The second interpretation claims that, if a subject's moral duty to obey the law is established, then the state issuing that law must be legitimate. Focus here has been on examining the claim that the existence of a duty to obey, in and of itself, is sufficient to establish that the state is legitimate. The project rejects this claim, both by showing how various substantive theories of the duty to obey the law does not take into consideration the moral nature of the state itself, but also through showing that the duty to obey can arise even in clearly illegitimate states. The third and final interpretation holds that, if the legitimacy of the state issuing a law is established, it follows that the subject must have a moral duty to obey that law. This can either take the form of a conceptual claim about the nature of legitimacy, or a practical claim about the necessity of state efficiency. The thesis questions this claim by showing how the existence of good moral reasons for the state to enact and enforce law does not necessarily correspond to good moral reasons for individual citizens to obey it. It is argued that an individual's moral obligations must either be inherent or voluntary undertaken, and that a moral duty to obey the law must fall within the latter category. However, even if no such commitment is undertaken by the citizens the state may still be justified in enacting law (for example, in order to ensure important coordination goals) and enforcing law (for example, by making citizens fulfil their inherent and voluntary obligations) The concluding part of the thesis asks whether it is possible to develop a theory of legitimate state authority that is not derived from - and does not rely on - a persuasive theory about the citizens' moral duty to obey the law. Although a complete discussion of this question is outwith the scope of this thesis, a potential framework for state legitimacy is suggested, combining the state's instrumental function with first-order reasons justifying its claims.

Da dette er et doktorgradsprosjekt har det hatt stor betydning for prosjektets deltager, både i form av akademisk kompetansebygging og grunnlag for videre forskning. Gjennom aktiv deltakelse i relevante forskningsmiljøer har prosjektets forskningsresultater blitt sirkulert og utprøvd av forskningens målgruppe og øvrige akademiske sirkler. Prosjektet har som mål å utfordre etablerte sannheter innenfor forskningsfeltene juridisk og politisk filosofi. Teorier knyttet opp mot statens legitimitet, og hvordan denne best kan etablereres i praksis, kan ha betydning både for etablerte, stabile stater, men også for stater som gjennomgår konstitusjonell og/eller regimeendring. Målet er at forskningsresultatene fra prosjektet kan bidra til økt forståelse for hvordan statsmakten kan og bør legitimeres og hvilke utfordringer som knytter seg til statens bruk av makt i moderne samfunn.

The purpose of the proposed research is to explore the Hohfeldian power-liability approach as a conceptual framework from which to understand legitimate political authority. By building on the initial reflections of the limited number of scholars who have addressed this issue, the proposed research aims to establish, not only the conceptual possibility of this account, but an actual conceptual framework from which a better understanding of political authority can be created. The advantaged of the power-liability account can be summarised as follows: it neither reduces political authority to the moral permission to use coercion, nor does it assumes an inherent pro tanto duty to obey. However, this is of little importance unless it can be shown that the power-liability account possesses actual explanatory power. The main task of the proposed research is therefore to address whether this framework in fact is able to account for the role of practical authority as understood today.