Authority Theory

Source of Validity

Law is also a normative social practice; in addition to morality, religion, and social conventions, it guides human behavior and provides reasons for action. The basis of legal authority lies in the type of validity, that is, the source of the norm enacted by a particular political institution or the norm's content; its justification concerns the moral legitimacy of law, providing the reasons for acknowledging its authority. Two main traditions exist in Western law.

The first, and older, dating back to medieval scholarship, is natural law, which claims that legal validity is derived from moral content rather than social origins. According to this theory, the authority of at least some legal standards necessarily derives, at least in part, from moral standards. Contemporary natural lawyers have suggested a more subtle interpretation of its main tenets-that natural law provides an elucidation of an ideal of law in its fullest or highest sense, concentrating on the ways in which it necessarily promotes the common good as a complement to positivistic law.

The second tradition, legal positivism, originating in the work of Jeremy Bentham, claims that legal validity is determined by social facts involving two claims. First, the social thesis asserts that law is a social phenomenon and that its conditions of legal validity consist of social facts; it is an instrument of political sovereignty or social conventions. Second, the separation thesis maintains that there is a conceptual separation between law and morality, that is, between what the law is and what the law ought to be. Joseph Raz's support for legal positivism rests upon arguing that the law is an authoritative social institution, in other words, a de facto authority not requiring other grounds for its validity.

Two additional perspectives influence legal theory and practice. Legal realism maintains that law should be understood as the actual practice of courts, law offices, and police stations rather than as statutes and treatises. Legal interpretivism claims that the authority and validity of law is not found in data or sets of facts but in the morally informed constructions of legal practice. A strong proponent of this last approach is Ronald Dworkin, who grounded his antipositivist legal theory in the interpretative nature of law, arguing that determining what the law requires in each case involves interpretative reasoning, which involves evaluative considerations resulting in an inseparable admixture of fact and evaluative judgment.

...