Authority and Convention

All moder states claim authority over their citizens, and that is one thing which distinguishes them from bands of robbers. The most important locus of authority in the state is law, for it claims to bind many persons, to regulate their most vital interests, and to do so with supremacy over all other mechanisms of social control. Sometimes these grandiose claims are hollow. In a society in upheaval they cannot be made effective and quickly become legal fictions. Even when they are effective they may be unjustified, for legitimacy is not among the existence conditions for a state. However and here is the real importance of Weber's celebrated argument a belief in its legitimacy tends to increase its stability and effectiveness. It is therefore a crucial question in what circumstances, if any, such beliefs are justified. In the liberal-democratic tradition, consent has provided the most popular justification for authority, yet its weaknesses are notorious. Hardly anyone does consent to the state's authority, and in any case the theory is incomplete without an independent account of the limits of valid consent. (According to Locke, for example, no one can consent to be killed, and thus not to tyranny, and thus no tyrant has legitimate authority, consent or no.) The runner-up is probably contractarianism. Where that involves an actual social contract, it is simply a version of consent theory, with the requirement of unanimity added. In its hypothetical form, political authority is something that rational people would agree to. But this only shows that there is a reason to do what law requires, not that law itself provides the reason. Dissatisfaction with such arguments has led many where it led Hume: to ground authority in social convention. Furthermore, because such conventions are susceptible to a value-neutral definition, this offers a theory which consorts nicely with the view that law is a matter of social fact. My aim in this paper is to show that, in spite of these several attractions, conventionalism cannot justify the authority which law claims.