Relative Authority – A Step towards Pluralist Jurisprudence

The law is supposed to tell people what to do.

The traditional model of legal authority is that of one institution having authority over a discrete set of subjects with regard to a specific jurisdiction. But this is not a very accurate picture of the real world. People are subject to overlapping authorities in various ways at the municipal, national, transnational and international levels. A good example is the 2005 US Supreme Court decision Roper vs. Simmons on the capital punishment of juveniles: this case negotiates the overlapping authorities of state, federal and international laws.

If the traditional model is insufficient, how should we understand cases where more than one legal institution has authority over the same people with regard to the same situation?

That is the question Dr Nicole Roughan asked in her paper ‘Relative Authority’ given to an audience of the Society for Legal and Social Philosophy on Thursday 28 February 2013. She argued that the key to understanding these cases is not, as the lawyer will inevitably be tempted to hope, that in the end one authority obtains supremacy. Instead we should understand these as cases of ‘shared authority’.

Dr Roughan gave the example of parents. In a two-parent household, both share authority over the children. Parents often disagree over how to exercise this authority. But we do not expect them to resolve their conflicts by reference to a more supreme authority whose jurisdiction encompasses their conflict – at least, not normally. Rather, the parents work out their authority relationship by reflecting upon the reasons that apply to it. These reasons might include grounds immediately relevant to a particular decision as well as considerations as to who should have what say. Dr. Roughan argued that questions of shared legal authority should be similarly analysed. We should refer to the procedural and substantive questions (input and output), questions of legitimacy in order to understand how relations of shared authority can be negotiated. Authorities have a history and they exist to serve certain values. Those histories and purposes can provide a reasoned basis for constructing shared relationships of authority.

The question period following Dr. Roughan’s paper raised a series of interesting points. Professor Bruce Harris captured the primary thrust of discussion by pointing out a practical problem that Dr Roughan’s account raises: authorities do not just conflict over ‘who should say what to do’; they conflict over the weight and relevance of the very reasons that Roughan argues should settle their dispute. For example, consider a disagreement between international and domestic law – on the one hand, democratic values stand behind Parliament’s authority. On the other, the larger experience of international law and its higher degree of impartiality may tell in its favour. We can reasonably dispute how much weight to give each set of legitimating values.

In response, Dr Roughan argued that a descriptive theory of legal authority as a concept need not provide decisive practical guidance. However, accurate understanding of how authorities interact will not only improve our knowledge of the law, it will in many (but not all) cases help us decide what to do.

Dr. Roughan is currently a Visiting Academic at the University of Auckland Law Faculty. She holds JSD and LLM degrees from Yale Law School. Her presentation was based on the forthcoming book Relative Authority, to be published by Oxford University Press.

The New Zealand Society for Legal and Social Philosophy hosts regular meetings in both Auckland and Wellington. For details of their activities, please visit the website at: http://nzlsp.wordpress.com/

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