Legitimate political authority is often said to involve a “right to rule,” which is most plausibly understood as a Hohfeldian moral power on the part of the state to impose obligations on its subjects (or otherwise to change their normative situation). Many writers have taken the state’s moral power (if and when it exists) to be a correlate, in some sense, of an obligation on the part of the state’s subjects to obey its directives. Thus legitimate political authority is said (...) to entail a general obligation to obey the law, and a general obligation to obey the law is said to entail legitimate political authority. With some version of this idea in mind, many writers attempt to establish full (or partial) legitimate political authority by first arguing for the intermediate conclusion that there exists a general (or partial) obligation to obey the law. This article argues that such a strategy is fundamentally mistaken, because while legitimate authority does indeed entail an obligation to obey the law, an obligation to obey the law does not, in and of itself, entail legitimate authority. This can be referred to as “the reverse entailment problem.” To avoid this problem, a theory of political authority must argue directly for the existence of the appropriate kind of moral power on the part of the state. This article argues for the “value-based” conception of a moral power, which states, very roughly, that one person holds a power over another if there is sufficient value in the former possessing the capacity intentionally to impose an obligation on the latter (or otherwise to change her normative situation). This seemingly simple understanding of a moral power gives rise to surprisingly strong adequacy conditions on what can count as an acceptable theory of legitimate political authority, and these conditions decisively rule out most of the standard theories in the literature. (shrink)

To understand H.L.A. Hart's general theory of law, it is helpful to distinguish betweensubstantiveandmethodologicallegal positivism. Substantive legal positivism is the view that there is no necessary connection between morality and the content of law. Methodological legal positivism is the view that legal theory can and should offer a normatively neutral description of a particular social phenomenon, namely law. Methodological positivism holds, we might say, not that there is no necessary connection between morality and law, but rather that there is no (...) connection, necessary or otherwise, between morality and legal theory. The respective claims of substantive and methodological positivism are, at least on the surface, logically independent. Hobbes and Bentham employed normative methodologies to defend versions of substantive positivism, and in modern times Michael Moore has developed what can be regarded as a variant of methodological positivism to defend a theory of natural law. (shrink)

This chapter contains sections titled: Economic Theories: Internalization Economic Theories: Deterrence Economic Theories: Loss Spreading Rights‐Based Theories and Distributive Justice Rights‐Based Theories and Corrective Justice References.