Law and Philosophy

 Springer Science+Business Media Dordrecht 2014

DOI 10.1007/s10982-014-9221-x

ANTHONY R. REEVES

PRACTICAL REASON AND LEGALITY: INSTRUMENTAL

POLITICAL AUTHORITY WITHOUT EXCLUSION

(Accepted 21 October 2014)

ABSTRACT. In a morally non-ideal legal system, how can law bind its subjects?
How can the fact of a norms legality make it the case that practical reason is (in
fact) bound by that norm? Moreover, in such circumstances, what is the extent and
character of laws bindingness? I defend here an answer to these questions. I
present a non-ideal theory of legalitys ability to produce binding reasons for
action. It is not a descriptive account of law and its claims, it is a normative theory
of legal reasoning for particular (though oftoccurring) social circumstances. The
approach is, somewhat like Razs influential account, instrumental in character.
Yet, it denies that the morally binding legal norms are, in whole or part, exclusionary reasons for the responsible subject. Laws instrumentality must be given an
alternative characterization.

In a morally non-ideal legal system, how can law bind its subjects?
How can the fact of a norms legality make it the case that practical
reason is (in fact) bound by that norm? Moreover, in such circumstances, what is the extent and character of laws binding-ness? Here,
I defend an answer to these questions. I present a non-ideal theory of
legalitys ability to produce binding reasons for action. It is not a
descriptive account of law and its claims, it is a normative theory of
legal reasoning for particular (though oft-occurring) social circumstances.
The questions of political authority and obligation have received
enormous philosophical attention both historically and recently, and
it would be surprising if a wholly innovative and plausible account
were to emerge. Perhaps someone will surprise, but my aims are
more modest. I seek to deploy some of the best resources of
the tradition to account for legalitys normativity in typical human

ANTHONY R. REEVES

circumstances that improves upon, and avoids important shortcomings of, existing approaches. I will briefly preface points to be
developed. Like Razs influential account,1 my approach is instrumental, in that practical reasons allegiance to law is based in the
assistance it provides the agent in doing what she ought, where the
reasons of her duty exist independent of the law. I will also assume
that we have natural political duties. However, I reject Razs characterization of laws instrumentality, especially one of the theorys
defining features: the exclusionary reason. Whatever their claims,
morally authoritative legal directives are not normally, in whole or
part, exclusionary reasons. Not only is such a characterization theoretically inaccurate, but it distorts the moral position of legal subjects in a way that potentially inhibits reasoning with legal norms
responsibly. We should characterize legalitys service to responsible
practical reason differently.
In contrast to many prominent accounts of political obligation,
my account does not aim to ground general, generic, or special obligations to obey the law.2 Rather, it seeks to display conditions under
which the legality of a norm is sufficient to render the norm binding
for practical reason. These conditions may obtain only occasionally
for legal subjects, appeal to multiple and heterogeneous political
duties, and fail to generate special obligations to a particular political
community. Yet, where the conditions obtain, legal institutions
have the moral power to change ones moral obligations.3 Although
I believe this reflects much existing usage, for the purposes of this
paper I stipulate that law has political authority when it possesses the
moral power to modify its subjects obligations. I use political
obligation theory to refer to theories that seek to account for this

1
See, for instance, Joseph Raz, The Morality of Freedom (Oxford: Oxford University Press, 1986),
23105.
2
I discuss this type of approach below, but some representative examples (though each emphasizing
different elements) include: John Rawls, A Theory of Justice, Revised ed. (Cambridge, MA: Harvard
University Press, 1999), 293343; Ronald Dworkin, Laws Empire (Cambridge, MA: Harvard University
Press, 1986), 176224; George Klosko, The Principle of Fairness and Political Obligation, New ed. (Lanham,
MD: Rowman & Littlefield, 2004); Christopher Heath Wellman, Toward a Liberal Theory of Political
Obligation, Ethics 111, no. 4 (2001); Thomas Christiano, The Constitution of Equality: Democratic Authority
and Its Limits (New York: Oxford University Press, 2008), 231259.
3
For a discussion of the importance of establishing the moral power to impose obligations in the
course of substantiating political authority, see Stephen R. Perry, Political Authority and Political
Obligation, Oxford Studies in Philosophy of Law 2 (2013). However, for reasons to be explained, I reject
Perrys inclusion of intention as an element of political authority.

PRACTICAL REASON AND LEGALITY

power in terms of general and special obligations to legal institutions.4 Political obligation refers to these purported obligations.
Political obligation is unnecessary for political authority.
One concern about political obligation theory is that it tends to
leave uncertain the practical relevance of the proffered obligations,
particularly for substantially non-ideal political circumstances. How
demanding are political obligations compared to other moral demands? Moreover, take a legal system whose law (1) is frequently
morally suboptimal such that it does not realize the relevant political
virtues (e.g., justice, equal respect, fairness) as well as it should, and
(2) sometimes demands the impermissible exercise of power (i.e., it
occasionally demands the violation of moral rights). What do our
political obligations here require?5 Given the way political obligation
theorists standardly limit the scope of their theories (e.g., to minimally just and democratic states where competitions between demands of political right for the subject are occasional), they offer
uncertain guidance for responsible decision under law in large arenas
of human politics.
I adopt the following method. I consider the authority of law in
non-ideal legal systems. Non-ideal refers to two properties of a legal
order. First, the legal order does not fully meet the moral standards
appropriate for its assessment. It is, for instance, partly unjust. Second, the legal order is not of such a character that political obligations are operative. Subjects do not have general and special
obligations to obey the law, perhaps because of some defect of the
legal system. These two properties are potentially independent,
depending on the correct account of the relationship between the
political virtues and political obligation, but for my purposes it is
useful to treat them together under the single heading, non-ideal,

4
That this is a central concern of political obligation theory is evident in the writing of both
philosophical anarchists and defenders of political obligation. Consider Marmors passing comments in
an encyclopedia article: Whether judges, or anybody else, should or should not respect the rules of
recognition of a legal system, is ultimately a moral issue, that can only be resolved by moral arguments
(concerning the age old issue of political obligation) Unlike chess or soccer, however, the law may
well be a kind of game that people have an obligation to play, as it were. But if there is such an
obligation, it must emerge from external, moral, considerations, that is, from a general moral obligation
to obey the law. Andrei Marmor, The Nature of Law, in Edward N. Zalta (ed.), The Stanford
Encyclopedia of Philosophy (Winter 2011 Edition).
5
Some work is now being done on this question, with surprising conclusions. See Candice Delmas,
Political Resistance: A Matter of Fairness, Law and Philosophy 33, no. 4 (2014).

ANTHONY R. REEVES

for two reasons. First, it eliminates two responses to the issue of how
one can be duty-bound to comply with the law: the law is right about
what is morally best, and one is obligated to the law. Non-ideal
thereby summarizes the theoretical orientation of the question: can
law have non-general authority that is not predicated on its provision
of the correct answer to a political question? Further, if we can
answer yes by describing the conditions under which legality of a
norm in a non-ideal system renders that norm binding, then the
result suggests that the traditional question of political obligation is
less important (theoretically) than is frequently assumed. Insofar as
political obligation theory is driven by the perceived need to explain
our sense that legality can imply mandatory compliance, and that
legal institutions at least sometimes have the moral power to require
action, then offering an explanation without the use of general,
special obligations to the law should reduce our interest in political
obligation. Second, non-ideal plausibly summarizes two features of
many existing legal systems especially important for their subjects.
Though I do not want to overstate the point, an adequate non-ideal
account would partially illuminate the responsibilities of agents who
are effectively subject to legal systems that are valuable in various
respects, but in significant and systemic ways, morally defective. It
would clarify one aspect of the difficult moral situation of such
persons: how, in general, do I respond to the norms of the effective
system of law?
In Part One, I provide some definitions and theoretical context,
and offer a summary of the view I defend in the rest of the paper. In
Part Two, I consider some moral goods we typically want from the
rule of law. In Part Three, I argue that, by serving goods of this kind,
the property of legality can render norms binding. The analysis situates the view among prominent contemporary competitors and
argues for its superiority in handling a straightforward case of
practical authority. This should motivate us to reconceive of the
service political authority is properly in the business of providing. In
Part Four, I consider my approach in terms of various success conditions for a theory of authority offered in recent philosophical literature. It is successful on various criteria, but I also argue that these
adequacy conditions are counterproductively stringent when the

PRACTICAL REASON AND LEGALITY

question is one of political authority, and that my approach succeeds

in the domain of the political.
I should say a word on my organization. Exhibiting and refining
the success conditions might seem more naturally preliminary than
an appendix to an argument that a certain kind of account could
succeed. Frequently so, but here the account serves as part of the
assessment of proposed success conditions. Displaying a central
normative capacity of law (i.e., one way it does bind) can articulate a
critical standpoint from which to consider adequacy conditions for a
theory of authority even if the account, as offering the rudiments
of a theory of authority, is properly assessed in terms of those
conditions. This should not seem paradoxical from the standpoint of
reflective equilibrium. If an approach can be shown to be otherwise
attractive, we can ask why we should want more? What would we
gain theoretically (or practically)? The aims of the paper are twofold,
then. First, to defend a view of the moral authority of law that is
practically informative in non-ideal circumstances. Second, to advance our capacity to assess theorizing about political authority.
I. DEFINITIONS AND BACKGROUND

Authority is the moral power to require action, i.e., the power to

modify moral obligations. Many have suggested it is much besides,
but for now I simply speak of the power to create moral obligations
(as opposed, e.g., to prudential reasons). Legitimacy concerns the use
of force, power, and coercion. When the use of force (or its threatened use) is morally permissible, it is legitimate.6 Many writers use
legitimate authority to refer to a claimant of authority that actually
has authority, but I will refer to such a claimant as an authority. The
right to rule, though occasionally used interchangeably with one or
both of the above, will be understood to refer to a justified claim
right to sovereignty a moral right to be sovereign. The people of a
despotic state may have a right to rule, but without official organs
and institutions for expressing their will, and without de facto

6
This is in the spirit of Wellmans distinction between legitimacy and political obligation in
Christopher Heath Wellman, Liberalism, Samaritanism, and Political Legitimacy, Philosophy and Public
Affairs 25, no. 3 (1996).

ANTHONY R. REEVES

authority, they have neither authority nor legitimacy. The despot,

though perhaps violating his peoples right to rule (by not, e.g.,
facilitating their transition to sovereignty), may have authority and
legitimacy, at least with regards to certain domains (e.g., contract
law). This is not to suggest that justified sovereignty can have no
effect on the extent of the sovereigns authority and legitimacy, but
how so is a moral question that will depend upon the substantive
theories of authority and legitimacy.7
To bind, in general, is to make less free in the specific sense of
constricting the scope of otherwise operative discretion. It is to
introduce a constraint on action reducing discretion. Eliminate the
constraint, and thereby increase the freedom. Norms, commands,
directives, and orders are binding when one is less free to act
otherwise than the norm (e.g.) directs than one would be absent the
norm. These phenomena can bind in at least two senses. First, they
can bind prudentially, by relating to ones interests frequently by
being conjoined with a threat, such that it is prima facie practically
unreasonable not to comply. A gunman orders me to hand over the
money, and I am made less free, purely in terms of my own perceived interests, by the order. The order renders acting otherwise
imprudent. A tax law directs me to pay a percentage of my income,
attaches a penalty to non-compliance, and my freedom is reduced.
Legal and political philosophers have had much interest in this kind
of binding,8 and legitimately so, but it is not the sense of concern
here. A second way in which these phenomena can bind is by making
it pro tanto irresponsible for me to act otherwise than is directed. I
assume we have natural duties to others, e.g., to keep promises. If I
promise to babysit for a friend (who is mostly powerless to threaten
my interests), and he directs me to put his daughter to bed at eight,
then I am bound by his directive to do so. I have less discretion than
I would absent the directive. Without it, it may not have been
irresponsible to put her to bed at nine. Also, although I may have

7
We need not, as Christiano seems to suggest, link strongly a right to rule (in the sense of a claim
right to sovereignty) with a correlative obligation of subjects to obey. A right to be sovereign is
unnecessary and insufficient for authority, and it is helpful to keep the matters separate. See Christiano,
The Constitution of Equality: Democratic Authority and Its Limits, 240241.
8
It is the primary sense in which law binds for Austin. See John Austin, The Province of Jurisprudence
Determined (Amherst, NY: Prometheus Books, 2000), 933.

PRACTICAL REASON AND LEGALITY

had other reason to put her to bed at eight (perhaps it is an ideal

bedtime for her), the directive makes it more irresponsible for me to
act otherwise. I will refer to this second type of binding as morally
binding.
How can a positive law be morally binding? It is unlikely to be
merely in virtue of the properties that make law, law, i.e., merely in
virtue of its legality. Most legal philosophers agree that legal validity
does not, by itself, imply a moral reason to obey.9 More plainly, it is
possible to have a law that no one has moral reason to comply with,
i.e., a moral reason to act as it demands because it is law.10 We will
have to introduce independent moral considerations to show how
and when the fact of legality can make a norm morally binding.
Importantly, however, a legal norms mere reproduction of a
moral standard whose satisfaction conditions are effable without the
laws mediation is insufficient for it to be binding in virtue of its
status as law. We are certainly bound to act in accordance with a law
prohibiting murder, but we are so bound absent the law. Moreover,
what it would mean to satisfy the moral standard against murderous
violence can be articulated without the assistance of this simple legal
prohibition. To show that the fact of the norms legality ought
matter to practical reason, we would have to demonstrate some
additional moral significance that attaches to legality. One method of
doing so is to posit general political obligations, and another is to
indicate some function that legality performs. On the theory I
develop, legal norms of non-ideal systems that merely state independently effable satisfaction conditions of moral requirements are
not binding.11 Independent effability obtains when a particular course

9
The point is most at home in legal positivism. See David Lyons, Moral Aspects of Legal Theory,
in Moral Aspects of Legal Theory: Essays on Law, Justice, and Political Responsibility (Cambridge: Cambridge
University Press, 1993). However, this is also acknowledged by much natural law jurisprudence. See, for
example, Mark C. Murphy, Natural Law in Jurisprudence and Politics (New York: Cambridge University
Press, 2006), 160. Ronald Dworkins theory of law may be an exception, though this is unclear. See
Dworkin, Laws Empire, pp. 101113.
10
As Enoch puts it: I am spending some time on the motivations for the claim that law necessarily
gives reasons for actions, because the most striking thing about this thesis, it seems to me, is that it is so
clearly falseall that has to be shown to establish the falsehood [of this claim]is one conceptually
possible case where the law any law requires that you / and yet you do not thereby acquire a reason
to /. David Enoch, Reason-Giving and the Law, Oxford Studies in Philosophy of Law 1 (2011): 20.
11
Though, given the right conditions, they can be legitimately enforced.

ANTHONY R. REEVES

of action needed to satisfy a moral requirement (by a person the

requirement applies to in a particular circumstance) can be articulated without the assistance of the semantic content of existing positive norms. Independent effability fails to obtain for a particular
satisfaction condition when that condition cannot be articulated
without such assistance. Independent effability, then, is a feature of
the satisfaction conditions of moral requirements for individuals in
particular circumstances. I offer several examples of moral requirements that normally have non-independently effable satisfaction
conditions below, but one type of such duty is to maintain a safe
interactive environment, e.g., to avoid driving negligently. Once we
have positive norms effectively coordinating careful conduct and
regulating the rules of the road, I cannot articulate the content of my
duty of care with respect to others (i.e., what it actually requires of
me) without relying on the positive norms operative in my particular
driving environment.12 If there were only one law that merely demanded act safely, and no other relevant conventions, then act
safely would be independently effable, and the law would not (on
my approach) bind. The satisfaction conditions for my moral duty of
care could be articulated without the law, and no posited normative
device would assist with the articulation of those conditions.13
Theories of political obligation standardly attempt to show how
independent moral requirements make the fact of a law an obligation to do what it demands.14 They contend that the moral
requirements of consent, fairness, common association, samaritanism, gratitude, or justice (to name several), in decently just polities,
imply that one has a defeasible, general, special, and (often) generic

12
For reasons I describe in Part 3, I resist the urge to say that the positive norms here literally
determine the virtue of careful conduct. Rather, more narrowly, they partly determine what the virtue
will require of particular individuals, on particular occasions i.e., the satisfaction conditions of due care
for located persons.
13
Im grateful for an anonymous reviewers comments in clarifying this idea.
14
One possible exception to this is Gilberts approach, which appeals to mere joint commitment,
without the mediation of independent moral requirements, to ground political obligation. See Margaret
Gilbert, A Theory of Political Obligation: Membership, Commitment, and the Bonds of Society (Oxford:
Clarendon Press, 2006). One worry is that Gilberts theory cannot help us respond to issues of political
responsibility since the practical force of obligations of joint commitment is left unclear. This is not the
place, however, to develop a full critique. Since Gilberts approach is anomalous, I will bracket it.

PRACTICAL REASON AND LEGALITY

obligation to obey the law because it is the law.15 It is frequently

thought that the problem of political obligation is equivalent to the
problem of laws moral authority, such that showing that the law of
a polity is authoritative requires substantiating an applicable theory
of political obligation, and that substantiating such a theory is normally sufficient for showing that law is authoritative.16 One way to
think about such theories is that they attempt to substantiate a
general moral tie on the part of subjects to the law-making facts (or
some broad subset of them) of their effective legal system. If we
substantiate that I have a special moral tie to whatever facts render
some standards legal and others not, then we will have explained
how the legal system can modify my moral obligations by making
standards legal we will have explained its moral power to require
action. Articulated in terms of one influential strand of legal positivism, a theory of political obligation attempts to substantiate a
special moral tie to the rule of recognition such that one is bound by
the norms that the rule recognizes as valid.17 Ones obligation to
obey a particular law, then, is a feature of this general tie.18
Another approach to explaining how law can bind is to identify
conditions that may obtain only occasionally (even in a basically just
legal system), but make the legality of a norm the source of the
norms binding-ness when those conditions are met. Joseph Razs

15
For a discussion, see David Lefkowitz, The Duty to Obey the Law, Philosophy Compass 1, no. 6
(2006). By generic, I mean that the obligation to obey the law is grounded in the same kind of moral
consideration(s) in the various departments of law and across various circumstances. Whether we are
talking of tax law or traffic law, there is a type of obligation that is common to both, and this obligation
applies in all the various circumstances to which the law purports to govern. In recent years, however,
some political obligation theorists have moved away from this claim. See, e.g., George Klosko, Multiple
Principles of Political Obligation, Political Theory 32, no. 6 (2004). Also, I acknowledge that there is a
spectrum of views emphasizing, to greater and lesser degrees, generality. My aim here is to provide
some orientation to the differing theoretical aims and methods of existing accounts political authority,
and situate my view among those accounts.
16
For instance, Klosko claims that the moral authority of law is coextensive with a prima facie
obligation to obey the law. The Principle of Fairness and Political Obligation, 14. See also, Andrei Marmor,
An Institutional Conception of Authority, Philosophy and Public Affairs 39, no. 3 (2011): 260261. For
recent doubts that the success of such a project would be sufficient for demonstrating genuine
authority, see Perry, Political Authority and Political Obligation. I argue that it is unnecessary.
17
As most political obligation theorists assume, we can remain largely agnostic here among theories of
law. Also, importantly, moral tie should not be understood in this context as an explanans for legal
phenomena as in any way indicating an existence condition for a legal system. Whether law requires an
operative commitment on the part of (some) subjects that is understood by them to be a moral one is not
an issue I address. I am not trying to explain what makes for law, but what makes for its authority.
18
Irrespective of whether the legal requirement is stating independently effable satisfaction conditions of a moral requirement.

ANTHONY R. REEVES

theory of practical authority takes this approach.19 On Razs view, a

legal norm is morally binding when one will better comply with
some set of reasons that apply to oneself by following the norm than
one would by considering those reasons in the set directly.20 Raz
contends that this can occur in a number of ways, including when a
norm facilitates coordination,21 but it is perhaps clearest in cases
where the agency issuing the directive is epistemically better situated
to appreciate the relevant reasons. If an expert agency, with the aim
of preventing the spread of invasive species, issues a directive that
one clean watercraft in a particular way before launching in certain
waters, and one is not an ecologist, then one is probably bound by
the directive in light of the reasons one has not to contribute to
ecological degradation. Considering these reasons independently of
the directive will normally lead one to conform less well to them,
and hence the law binds by virtue of its service to the subject in
assisting her in doing what she ought. This is so whether the legal
system as a whole is fair, just, genuinely democratic, consensual, or
constitutive of a morally important association, and it is so whether
many or few other laws of the system are binding. Law binds not by
virtue of a general moral tie to legality, but by its performance of a
function on particular occasions. On Razs view, one would have a
(first-order) reason to act as the directive requires, and a (secondorder) reason to exclude ones own consideration of the matter from
ones practical reasoning.
On the account I defend here, law binds occasionally, and it binds
least where morality is least in need of assistance in providing for a
responsible course of action.22
In contrast to political obligation theory, I do not rely on a general,
special commitment to the law-making facts. In contrast to Raz, I do
not deploy exclusionary reasons as features of binding legal rules (in
fact, I will argue against that thought), and I characterize the service
of legal authority in a markedly different way. Razs broad insight
that political authority is best understood as assisting subjects

19
Consider Razs denial of a general obligation in Joseph Raz, The Authority of Law: Essays on Law
and Morality (Oxford: Clarendon Press, 1979), 233249.
20
The Morality of Freedom, 3869.
21
See ibid., 7080.
22
And where it demands what is contrary to duty.

PRACTICAL REASON AND LEGALITY

compliance with right reason is genuine.23 Roughly, I maintain that

legalitys claim on practical reason resides in its service to what we
naturally owe each other. However, laws service is to render
available the objects of ones duties by articulating a route for
practical reason that, given the circumstances, morality itself could
not provide.24 Law is a reason for its demands when it is good-making,
when it makes available a good by articulating a course of action that
becomes, because of its legality, the route to the good. Law is binding,
i.e., it limits responsible freedom, when pursuit of that end is a duty
for the subject.
This approach, I contend in the next two sections, has the virtue
of connecting the value of rule by law, in particular circumstances,
with the proper character of legal reasoning. We do not need an
intermediate moral story (based in the terrain of political obligation)
to demonstrate why law ought frequently shape the will into a form
consistent with laws demands. Moreover, the approach will vividly
display the limits of a non-ideal legal systems practical significance,
both in terms of its scope (i.e., the circumstances where it generates
obligations for its subjects) and its force (i.e., how well its obligations
compete with other moral demands). Theories of political obligation
tend to set the conditions of their success quite high, such that many

23
Razs theory of authority has been the most influential such theory in legal philosophy. Its most
recent comprehensive presentation is in Joseph Raz, The Problem of Authority: Revisiting the Service
Conception, Minnesota Law Review 90 (2006). This approach has received support, in part or whole,
from a variety of theorists, including Leslie Green, The Authority of the State, Paperback ed. (New York:
Oxford University Press, 1988), 2162; Larry Alexander, All or Nothing at All?: The Intentions of
Authorities and the Authority of Intentions, in Law and Interpretation: Essays in Legal Philosophy, ed.
Andrei Marmor (New York: Oxford University Press, 1995); Andrei Marmor, Interpretation and Legal
Theory, 2nd ed. (Portland: Hart Publishing, 2005); James Sherman, Unresolved Problems in the Service
Conception of Authority, Oxford Journal of Legal Studies 30, no. 3 (2010); Daniel Viehoff, Debate:
Procedure and Outcome in the Justification of Authority, Journal of Political Philosophy 19, no. 2 (2011).
Despite its wide influence, it has recently received a great deal of critical scrutiny. See, for example,
William A. Edmundson, Three Anarchical Fallacies: An Essay on Political Authority (Cambridge: Cambridge
University Press, 1998); Heidi M. Hurd, Moral Combat (New York: Cambridge University Press, 1999);
Jeremy Waldron, Law and Disagreement (Oxford: Oxford University Press, 1999), 95118; Scott J.
Shapiro, Authority, in The Oxford Handbook of Jurisprudence and Philosophy of Law, ed. Jules L. Coleman
and Scott J. Shapiro (New York: Oxford University Press, 2002); Thomas Christiano, The Authority of
Democracy, The Journal of Political Philosophy 12, no. 3 (2004); Stephen Darwall, Authority and Reasons:
Exclusionary and Second-Personal, Ethics 120, no. 2 (2010); Scott Hershovitz, The Role of Authority,
Philosophers Imprint 11, no. 7 (2011); Christopher Essert, A Dilemma for Protected Reasons, Law and
Philosophy 31, no. 1 (2012).
24
This is not to say, I argue below, that the relevant moral virtues are somehow indeterminate.

ANTHONY R. REEVES

existing municipal legal systems do not meet those conditions.25

Moreover, international law is unlikely to meet the conditions of
political obligation.26 How should the subject of law, in such circumstances, regard legal norms? When should the responsible subject view his discretion as constrained to accord with what a law
requires by the fact of its legality?
II. RULE OF LAW GOODS

Why do we care about law as a form of governance? Addressing this

question will give us a grip on laws capacity to bind practical reason.
Our moral concern governance by law be realized is at least largely
related to its ability to provide important goods in the circumstances
of modern human social life. How far a legal directive binds, I
contend, is tightly tied both to its provision of these goods via the
public semantic content of its directives in the circumstances of
decision, and a subjects moral relationship to these goods.
What goods is law specially implicated in? As Hart recognized, in
a social setting marked by divergence of belief, moral sentiment,
judgment, and interest, we need some basis for settling which rules
count concerning communal matters. Matters as diverse as the
boundaries of personal property, to the precise definition of a crime,
must be settled by some widely-shared understanding to be effective.
A society governed merely by unofficial customary rules requiring or
forbidding conduct would face numerous problems given social
diversity, including: (1) uncertainty about which rules are to actually
regulate social affairs, (2) an inability to modify rules to reflect
changing circumstances or concerns, and (3) inefficiency in the
application and enforcement of customary rules in particular circumstances. Law responds to these issues by providing a common
basis for saying which rules count, how to go about changing the
25
Theories of political obligation are frequently thought to apply to existing liberal democracies.
This is not always evident, though. Taking Kloskos much discussed account, he urges that there must
be a fair distribution of benefits and burdens for general political obligations grounded in fairness to
obtain. It is far from clear, based on his discussion, when this condition is met. See, Klosko, The Principle
of Fairness and Political Obligation, 6375. Of course, as philosophical anarchists argue, political obligations may not obtain for the vast majority of earthlings. See generally, A. John Simmons, Justification
and Legitimacy: Essays on Rights and Obligations (Cambridge: Cambridge University Press, 2001). Even if
anarchists are correct about political obligations, we still need a theory of the character of responsible
legal reasoning.
26
Anthony R. Reeves, The Moral Authority of International Law, The APA Newsletter on Philosophy
and Law 10, no. 1 (2010).

PRACTICAL REASON AND LEGALITY

official rules, and how and who is to adjudicate the application of the
rules in the circumstances.27
Addressing these matters preempts conflict and facilitates collective action. The realization of other social goods, goods that require
organized communal efforts, would be impossible without law or
some other social normative innovation that settled the basic standards governing the social world. When a good depends, in the
social circumstances, for its existence on law, I will call it a rule of
law good. In saying that these goods have a special relationship to
the rule of law, I do not mean to suggest that they could only be had
under law.28 I claim, first, that under current social conditions, they
are unlikely to be achieved otherwise than through legal institutions
(given the actual diversity and size of societies). Second, I notice that
they are currently achieved through law, and thus the question for a
legal subject is not, normally, whether to pursue these goods
through law versus some other social technique, but whether to
pursue them legally or not at all.
Many of the rule of law goods I have in mind will be familiar to
legal theorists, goods such as coordination, stability, protection of
expectations, resolution of moral disagreement for practical purposes, avoidance of juridical anarchy,29 among others. These are
often valuable in themselves. For example, the ability to form reliable expectations about the behavior of others may be its own good:
Political liberty in a citizen is that tranquility of spirit which comes
from the opinion each one has of his security.30 Democratic governance, some think, is also intrinsically valuable. Rule of law goods
are also often valuable instrumentally, e.g., rules of property, traffic,
and land use all facilitate commerce and safe conduct, and stable
public rules permit people to develop effective life plans.
To make the discussion somewhat more concrete, I will describe
some goods that appear to have a special relationship to law. The list
is not meant to be exhaustive, but to illustrate the idea of a rule of
27

H. L. A. Hart, The Concept of Law, 2nd ed. (Oxford: Oxford University Press, 1994) 9199.
See Leslie Green, Law, Co-Ordination and the Common Good, Oxford Journal of Legal Studies 3,
no. 3 (1983): 312315.
29
Estlunds term, referring to the absence of a common system of criminal law. David Estlund,
Democratic Authority: A Philosophical Framework (Princeton: Princeton University Press, 2008), 146.
30
Montesquieu, The Spirit of the Laws, trans. Anne M. Cohler, Basia Carolyn Miller, and Harold
Samuel Stone (Cambridge: Cambridge University Press, 1989), 157.
28

ANTHONY R. REEVES

law good and to identify some characteristics such goods normally

possess.
A. Coordinating Conventions
We frequently require some widely shared convention for coordinating our behavior. If law is commonly recognized as the appropriate basis for settling such matters, it can create or support such a
convention by identifying one option, amongst several that are
possible, as salient.31 Such is the case with traffic rules, that facilitate
safe highway travel, but also with zoning and government services
such as trash removal and environmental conservation. It is almost
always the case that some or one scheme of coordination is better
than others.32 Nonetheless, the goods of coordination can be obtained well enough on a variety schemes so that law can supply the
relevant good by selecting one amongst these.
B. Disagreement Resolution in the Circumstances of Politics
Often, we are not indifferent to which rules will organize social life,
and we disagree about which ought to prevail. Our disagreement
may reflect conflicting moral views, different understandings about
what is prudent, competing interests, or any of the factors that may
burden judgment. Nonetheless, it is better that we come to a
common solution, for practical purposes, than none at all (at least,
within a range, some solutions may be worse than none at all).
Jeremy Waldron captures this well in his discussion of the circumstances of politics, which is the felt need among the members of a
certain group for a common framework or decision or course of
action on some matter, even in the face of disagreement about what
the framework, decision or action should be.33 We disagree, but it is
better, and sometimes morally mandatory, to have some way forward than none at all. Law can help address the circumstances of
31
Frequently noticed in legal theory, but for an extensive discussion, see Gerald Postema, Coordination and Convention at the Foundations of Law, Journal of Legal Studies 11, no. 1 (1982).
32
Better here references all the relevant values, both the value of successful coordination and other
values that are implicated in the coordination scheme, e.g., safety and efficiency. Even in selecting a side
of the road, an issue very close to a pure coordination problem, one may be (e.g., because of widespread
right-handedness) better than the other.
33
Waldron, Law and Disagreement, 102.

PRACTICAL REASON AND LEGALITY

politics by selecting one acceptable set of rules at the expense of

others. Law facilitates the valuable of disagreement resolution when
it helps provide an acceptable, common course of action.34 Having
an acceptable settled solution in the presence of this disagreement is
of significant value.35
C. Governance by Desirable Procedures
Governance by procedure of the right kind is frequently important.
Food safety ought to be regulated by some impartial and expert
process, and democracy seems appropriate for addressing many
political matters.36 In order to have governance by desirable procedures, there must be some means by which the procedure can
effectively, and with limited ambiguity, convey its decisions. To
address any matter of any complexity, a legislature (e.g.) must provide a definitive indication of its determination that can be used by
officials and subjects to guide their behavior. Statutory law is such a
medium. Law facilitates, then, governance through desirable procedures regardless of whether this governance is intrinsically or
instrumentally valuable. It facilitates this valuable, moreover, to
some extent independent of what the procedure decides.
D. Entitlements, Personal Autonomy, and Legitimate Expectations
We need a basis for settling entitlements, such that people can form
stable expectations with regards to them. Concerning physical
property, for example, we need to indicate what belongs to whom,
under what conditions, and how it can be transferred. This raises
difficult and contentious issues of distributive justice and the moral
34
The solution that law provides must be acceptable in the sense that the solution it helps provide is
morally acceptable. If law is effectively coordinating an evil, then the coordination is not valuable. More
needs to be said here, since part of what is valuable about law is its ability to resolve moral disagreement (and we will disagree about what counts as an evil). One thing to say is that having a
common solution can rightly be regarded by someone as of great value, even if they think that the
solution is morally suboptimal or somewhat wrongful.
35
Waldron articulates the point in terms of partial-conflict coordination problems. Each prefers
either of the coordinative outcomes to non-coordination; but they differ in the particular coordinative
outcome they prefer. For Waldron, democratic legal authority will not simply be grounded in an
acceptable solution to disagreement, but also in having been produced by a procedure that respects
individual subjects equally. See Waldron, Law and Disagreement, pp. 103118. See also, William S.
Boardman, Coordination and the Moral Obligation to Obey the Law, Ethics 97 (1987): 549553.
36
I do not endorse a particular theory of democratic authority. I will assume, though, that it is
possible that democratic governance is intrinsically valuable.

ANTHONY R. REEVES

grounds of property. Nonetheless, it is important to have stable rules

to facilitate autonomous choice, commerce, etc. Also, as people rely
on these legal rules, it will be of value to protect their expectations
it is likely that they will come to morally deserve, to some extent,
what the rules indicate as theirs under the conditions it also indicates.
Not all expectations, even if induced, deserve protection (e.g.,
property rights over persons), but many do even if the rules of
property could have been different, and even if the current rules are
morally suboptimal by standards of distributive justice.
Again, the list is not exhaustive. It is worth emphasizing, though,
some common features of these goods. First, it is difficult to imagine
that they could be achieved, or achieved as reliably or well, in current social circumstances without law. The above goods require
some settled means for identifying, legislating, and adjudicating
common rules, and law appears to be precisely the tool up for the
task and, anyhow, it is currently the relevant tool. Second, each is
achievable by a range of substantive regulation. Even if there is one
morally optimal scheme concerning some matter, there are many
incompatible suboptimal schemes that would achieve the good to
some extent. In this sense, these are variable policy tolerant goods
(hereafter, VPT goods). Third, these goods are morally important,
and sometimes crucial, to a decent social life. It is not implausible to
suggest that they deserve a place in our practical reasoning in light of
their importance.37 In other words, they rightfully demand our
attention in decision-making because of their moral character, at
least insofar as our actions affect their realization. In this sense, these
are VPT moral goods. Fourth, individual, non-official (though, official
also) action can affect how well or whether these goods are realized.
My actions can upset legitimate expectations, disrupt democratic
governance (if democratic governance is intrinsically valuable, noncompliance sometimes just is to prevent the realization of a good on
a particular occasion), interfere with a reasonable solution to moral
disagreement, or threaten someones safety by disregarding a coordination solution. Fifth, except for rare cases of pure coordination,
there is likely to be significant disagreement about how, institutionally, these goods ought to be pursued we are likely to disagree
about what the law should be. The above should serve as an
37
A point illuminated by Wellmans work on samaritan duties and political obligation, though also
recognized elsewhere. See Wellman, Toward a Liberal Theory of Political Obligation.

PRACTICAL REASON AND LEGALITY

explication of the idea of a rule of law good. Now we can consider

how such goods render legal norms binding.
III. HOW TO BIND AGENTS WITH WORDS

A. Directives as Reasons
Consider first a way that directives can be reasons for what is directed outside the context of law. By directive, I mean an expression that would normally be understood, given existing linguistic
conventions and the context in which it is delivered, to be indicating
that a course of action ought to be pursued, at least partly for the
reason of the expression.38 A directive is actually a compliance reason to / when: (1) it directs addressees to /, (2) /ing is the course
of action required to secure a good, and (3) /ing is the route to a
good because those addressed were directed to / by the directive. A
directive can become a reason to comply by creating a route between a good and an agent that is the carrying out of the directive.
Such route creation will normally involve shaping the social world
via the public semantic content of the directive. Compare two cases
of directives. In the first, the directive is a reason for compliance
(though it is not binding). In the second, the directive is not a reason
for compliance (though one should do as told).
(1) We want to play soccer, but the group needs a common meeting point
since there are several serviceable fields. A, who commonly (as a
matter of social fact) settles such matters, sends a message directing us
to meet at a certain park, P. You and the other members of the group
now correctly expect the group to play at P. As directive is a reason for
those wishing to play soccer to go to that park. Complying with it will
accomplish the VPT good of, in this case, soccer playing. Going to P is
now good, with respect to playing soccer, because of the directive.
Minus the directive, going to P is not a good in that sense. The fact of
As directive to go to P is a reason to go to P.
38

Often directives are understood as speech acts intended to impose an obligation. I deliberately
avoid relying on intention for, as I argue later, it is an error to treat intention as an important feature of
political authority, either in its exercise or its content (i.e., as settling, in part, the content of the
obligations imposed by the authority). The alternative definition offered here characterizes directives
purely in terms of their public meaning. A directive is such in virtue of its being understood to be saying
that the course of action it describes ought be pursued for the reason of its indication of the course of
action. I am grateful for an anonymous reviewers comments on these points.

ANTHONY R. REEVES

(2) You and one other person, B, are walking down the sidewalk. B drops
his books. Another person, C, yells at you to help B pick up his books.
Cs directive is not a reason for you to pick up Bs books. Although
doing what C demands will accomplish some good, Cs directive does
not contribute any additional reasons. The act of helping B is not made
worthwhile (in any sense) by Cs directive. Cs directive can be construed, at most (from the standpoint of reason-giving), as advice as
illuminating the course of action you already had reason to perform.
Slightly differently, Cs directive can, perhaps, be seen as a reason to
believe that one already had reason to help pick up the books, but it is
not a reason to help pick up the books.

In scenario (1), the directive cannot be construed as advice, as

attempting to identify the reasons for the course of action that exist
independent of the directive. (Again, subtract the directive from the
scenario, and eliminate the soccer-reasons to go to P.) The directive
to go to P must be construed as a reason for the action of going to P,
not primarily as a reason for belief in the independent goodness of
going to P.39 The crucial difference between the directives in (1) and
(2) is that the directive in (1) is good-making. The directive makes
the course of action directed worthwhile by making it the route to
the good. That soccer playing is valuable to the group is true with or
without the directive. However, in the circumstances without the
directive, complete knowledge of the value of soccer playing would
not (by itself) give us a course of action that would get us that good.
The good requires the assistance of a normative device to
simultaneously indicate a course of action, and make that course
of action fruitful. The directive in (1) literally renders the good
accessible by changing the character of the social world.
It is worth dwelling, for a moment, on the essential means for this
kind of route creation. What appears necessary is, first, that the
directive have common, public semantic content. More plainly, that
there is a common understanding about the meaning of the directive, and there is shared knowledge of this common understanding.
39
It might be a reason for such belief also, e.g., if we rightly trust As judgment about good places to
play soccer. Nonetheless, As directive is a reason for compliance on its own (i.e., independent of these
preexisting reasons). Consider if we are wrong about As judgment: we accept his directives because we
believe (falsely) that he can discern well the field conditions that make for good soccer playing. He
standardly picks the least desirable of the minimally acceptable fields. As directive would still be a
reason to go to P.

PRACTICAL REASON AND LEGALITY

Without this, the directive, however well intentioned, would be

powerless to settle a common policy that is good-making.
Second, the directive must be largely regarded as agenda setting,
and widely understood as so regarded (or as having a decent likelihood of being so regarded), though not necessarily by every member
of the group. The explanation for this regard can be quite variable. In
(1), it may be simply tradition or habit that picks A out as the salient
coordinator. However, it could have rested on a view of As judgment, his intimidation of members of the group, a desire to please A,
the fact that A was the first to speak up, or some combination of
these among different members of the group. From the standpoint of
your achievement of the good, it matters little which of these
explains the fact that As directive will effectively adjust expectations.
You may want to flout tradition, have justifiably low regard for As
judgment, be indifferent to his view of you, dislike him, or rightly
think that someone else (or some other procedure) ought to do the
coordinating. Nonetheless, As directive is a reason for you to do as
directed. What is necessary is that As directive be widely recognized
as agenda setting, not that any particular explanation for this recognition obtain.
Third, the course of action directed must be acceptable, i.e., not
morally wrongful, in order for the directive to be treated as a reason
for action. If A directs us to play on someones private property, or
to break the legs of those currently using P and then use P, the
directive may still be capable (depending on how deferent the group
is to A) of coordinating behavior. Yet, the coordination is not a good
(in which case the directive is not a reason), or the good is vastly
outweighed by the wrong (in which case the directive is a reason,
but practically insignificant). Whether we accept the former or latter
characterization is unimportant for present purposes, for in either
case the purported good the directive seeks to provide ought to be
disregarded by practical reason.
Fourth, the substance of the policy directed must be minimally
capable, if acted upon, of realizing a VPT good requiring a common
policy. If A directs us to play on a steep mountainside, A has not
rendered the value of soccer playing available. There are various
other policies, however, that are capable of realizing the good to a
minimum degree.

ANTHONY R. REEVES

We can now state the necessary and sufficient conditions for a

directive to be good-making. The directive must have public
semantic content, be regarded as agenda setting, be acceptable, and
state a minimally successful policy for a VPT good. These conditions
are severally necessary and jointly sufficient for a directive to be
good-making. A directives possession of this property is sufficient for
it to be a reason for an agent to act as it directs. When the semantic
content of a directive transforms the social world to render available
a good realizable through the course of action directed, the directive
is a reason to comply. It is not, however, binding or obligatory. As
directive assists those interested in realizing the value of playing
soccer, but it is only a reason insofar as one is interested. Perhaps one
is needed to realize the good, e.g., in order to have enough players.
Even this, absent some prior commitment, would provide at most a
minimal moral reason it would be merely supererogatory.
B. Morally Binding Directives
A morally binding directive would not simply be a reason for what is
directed, it would render that course of action mandatory, leaving
practical reason with less in the way of responsible freedom. More
directly, a binding directive would create an obligation to act as
directed. A moral obligation is a moral reason to perform an action
that ought to be action guiding unless overridden by some other
moral reason. Normally, for example, it cannot be defeated by mere
inclination. A directive can become binding in the mode described in
the previous section, i.e., by being good-making. The difference is
that the good in question is of mandatory concern to the agent, such
that (when it is available) she has a duty to realize it.
Another non-political example will help transition us to binding
law. Your plane crashes into the ocean and you are among the lucky
survivors.40 Your situation is secure. Along with some others (the
Safes), you manage to find refuge on a floating segment of aircraft.
However, it is clear that others are in dire need of assistance (the
Imperiled). Moreover, it is also clear that rescuing more than a few
would require the cooperative efforts of those who have found
safety. The situation is initially chaotic, with no one clearly in charge.
40
A more elaborate version of Estlunds example. For his presentation of the example and discussion of normative consent, see Estlund, Democratic Authority: A Philosophical Framework, 117135.

PRACTICAL REASON AND LEGALITY

D, a person of greater charisma and social presence than yourself,

begins issuing orders to the Safes with the aim of saving the
Imperiled, and they seem to be complying. Now we have collective
effort Q. D orders you to do X, which is one of a range of orders that
would have made you an effective contributor to Q, but other Safes
will now depend on your doing specifically X. Also, there is a range
of cooperation schemes (some better than others) that would have
done much to save the Imperiled. In fact, you think cooperative
scheme R would be better, it would save more lives perhaps, and
you even think (given Q) that it would have been better to order
Y. Assume that you are correct. This matters little at the moment,
however, unless you have a real chance of instantiating a better,
alternative social order that would save the Imperiled. Now, it is the
performance of X that will best enable you to carry out your natural
duty to assist the Imperiled (assume X does not put you in serious
danger). Ds directive to do X has rendered X obligatory. You are
bound by the directive you do not have the otherwise operative
moral discretion to act otherwise.
Consider the following in light of the example. First, Ds directive
is binding in virtue of being good-making. The directive has public
semantic content, is widely recognized as agenda setting, requires
what is morally permissible, and states a minimally successful policy
that achieves a VPT good unavailable without a policy. Given the
character of the situation, these appear severally necessary and
jointly sufficient for Ds directive to bind. Appeal to normative
consent is wholly unnecessary.41 Ds directive is a binding reason to
act as directed in virtue of the fact that it has shaped the social world
to make the action directed the route to a mandatory good by
articulating that requirement.42
Second, this last way of putting things should help us notice that
Ds directive is not obligatory merely as a side effect or merely as a
function of triggering preexisting reasons. Some theorists urge that
we should distinguish between the moral power to create duties from
the power each of us has to do things that result in the imposition of
41

I will not offer a full consideration of Estlunds theory of authority (I focus on its explanatory
unhelpfulness), but for a powerful general critique, see Daniel Koltonski, Normative Consent and
Authority, Journal of Moral Philosophy 10, no. 3 (2013).
42
It is also worth noting that, despite the directives binding force, it may be illegitimate for D to
coercively enforce it.

ANTHONY R. REEVES

duties as a side-effect of our action. Both change the moral position

of others, but the former is a genuine moral power since its exercise
results in self-standing moral duties. If I step in front of a car, I
successfully make the driver duty-bound to stop, presumably because of a natural duty. The drivers duty to stop is a mere side effect
of my action I have merely triggered the drivers reason to stop in
such circumstances.43 In contrast, if I consent to be governed, the
governors commands are then reasons, on their own, for obeying.
As Estlund summarizes, A moral power to require action, then, is
the power of ones commands to count as moral reasons for action
on their own.44
My analysis of binding directives certainly concludes that they get
their ultimate moral force from independent moral duties,45 but they
are more distinctive. Binding directives articulate the course of action that counts, because of the articulation, as the fulfillment of the
salient obligation. In the pedestrian case, the pedestrian is not
capable of determining the course of action that counts as the fulfillment of the drivers obligation. The fact of the pedestrian in the
roadway is a reason for the driver to stop. The content of the obligation is not, in any interesting way, articulated by the fact. In the
case of the directive, on the other hand, the content of the obligation
is specified by the semantic content of the directive. In other words,
a binding directive successfully articulates the satisfaction conditions
of the relevant moral requirements, and it is a reason for that action
because it articulated that type of action. Relatedly, the good of
mandatory moral concern to the driver (i.e., the non-violation of the
pedestrians bodily integrity) does not require the assistance of any
norm or direction aside from moral norms. Her route to the good is
effable without any intermediary normative devices. The crash case
is different. Your saving N number of lives (N being your marginal
contribution in the collective rescue) requires the direction of the
43
As Enoch puts it, one merely manipulates the non-normative circumstances to trigger a reason to
stop the car to avoid hitting a pedestrian. He also gives the example of a grocer raising the price of milk.
The grocers action triggers a reason to buy less milk, but that is not an exercise of a moral power. See,
Enoch, Reason-Giving and the Law, 45. For Enoch, authoritative directives are distinctive in their
reason-triggering in that they involve a complex intention to impose a duty that is successful, in part,
because of the complex intention. For a full discussion, see Authority and Reason-Giving, Philosophy
and Phenomenlogical Research 89, no. 2 (2014).
44
Estlund, Democratic Authority: A Philosophical Framework, p. 119. It is out of a concern of this kind, I
take it, that Estlund is motivated to invoke normative consent.
45
As would any plausible account. Even if I freely consent to be governed, the governors order
only binds me by triggering an independent duty to abide by the terms of my consent.

PRACTICAL REASON AND LEGALITY

directive, and thus the course of action that achieves that moral good
is not effable without the semantic content of the directive. The
upshot here is that a directive is a non-moral fact that comes in
normative garb, and a binding directive comes in normative garb
and, in virtue of that garb, is successful at making the mandated
course of action normative for practical reason. Posited normativity
achieves genuine normativity. We can understand the moral power, as
a property of a norm-giver, as the factual capacity to improve peoples relationship to ends of mandatory concern to them by positing
a norm that then describes the route to the ends. Subjects, as bearers
of natural duties, are liable to have their moral position so altered. To
summarize, a binding directive is a self-standing reason for what it
directs, and it differs from side effect impositions of duties in that it
specifies the action it is a reason for and its normative claim is a
crucial element of its actual normativity.
Third, that D should be ordering otherwise (Ds orders are
morally suboptimal) does not render his directive non-binding. Ideally, perhaps, you would have the de facto recognition to be giving
effective orders, but that is irrelevant for your practical reason. The
route to carrying out your duty has been determined by D, and this
rests neither on the indeterminacy of the moral virtue, nor the
imposition (by the directive) of exclusionary reasons. Taking indeterminacy first,46 we need not assume that the moral virtue of rescue
does not pick out ideal rescue schemes in the circumstances, or is
incapable of ranking various schemes. It may be perfectly determinate, in this sense, and so may political virtues, like justice, in
ranking political orders. Ds suboptimal directives bind by creating a
route to a good (i.e., the saving of lives) that grounds the virtue of
46

Jon Garthoff, in his theory of authority, relies heavily on the thesis that justice is indeterminate. As
he puts it, A variety of systems of taxation and transfer would accomplish [the aims of justice] in a way
that is adequately fair; the extra-legal content of morality, I assume, fails to pick out a unique system as
fair. Jon Garthoff, Legitimacy Is Not Authority, Law and Philosophy 29, no. 6 (2010): 679. Law, on his
view, becomes authoritative by picking out one of those schemes, and justice becomes literally identical
to what the law demands. On my view, there is no need to assume such indeterminacy (and I am
inclined to reject it). Garthoffs discussion, though illuminating in other ways, provides no argument for
this controversial claim. Also, as Andrs Molina Ochoa notes, it is unclear that Garthoff can sustain his
distinction between moral and instrumental coordination problems. His primary example of the latter is
traffic conventions, but as Molina points out, these are crucially involved in our duties of safe conduct.
Andrs Molina Ochoa, On How Law Determines Morality (Dissertation, Binghamton University,
2012). Molina develops a view in several other ways in line with Garthoffs position, but with an
emphasis on how law gives content to moral demands by solving coordination problems, specifically.
Although I cannot wholly embrace Molinas position, the point regarding the moral value of coordination is important (and should, I think, incline us toward the kind of theory defended here).

ANTHONY R. REEVES

rescue, not by giving content to the ideal of rescue. Slightly differently, Ds directive specifies what the ideal of rescue requires of you,
not what it requires of D.
Moreover, Ds binding directives do not involve the imposition of
exclusionary reasons, and it distorts the moral situation of subjects to
describe the binding character of directives in those terms. An
exclusionary reason is a reason not to act for some other reason(s).47
Nothing is excluded from your practical deliberations about how to
act by Ds orders.48 You ought not do Y, or Z, or what you would be
doing under R, because they are not routes to a good. At the point of
compliance, you do not have reasons to do Y or Z. The reasons for
ordering Y, Z, and R are not excluded, they are simply irrelevant to
you in the circumstances. If Ds directive is not excluding (nonexistent) reasons to act on the basis of other collective enterprises,
what reasons does it exclude? It is hard to discern any.
Suppose that if you do otherwise than X, the rescue effort will
save N fewer lives. Compare this to a situation where doing an
action qualitatively identical to X would, because of some strange
circumstance, permit you to save an equivalent number of lives, but
without the aid of a directive. You are told by D to stabilize a piece
of aircraft with your person, and this will permit a more efficient
rescue of the Imperiled. In another scenario, you are the Lone Safe,
but stabilizing the piece of aircraft will permit some to climb to
safety. Your moral situation looks the same in both cases.49 You have
the same reasons, exclusionary and first-order, to do X in both circumstances, so the directive simply cannot be introducing additional
exclusionary reasons. If any reasons are excluded, it is the character
of the good at stake or some other aspect of the situation that is
doing the work excluding, not the directive. Coordination, even
partial-conflict coordination, does not involve exclusionary reasons.
It might be objected: although the order cannot be construed as
excluding reasons to act on alternative collective enterprises, because
47
See, generally, Joseph Raz, Practical Reason and Norms, Second ed. (Oxford: Oxford University
Press, 1999).
48
Leslie Green has also recognized that solutions to coordination problems are not, normally,
sources of exclusionary reasons. See Green, The Authority of the State, 111115.
49
I will not consider whether duties or mandatory norms generally need involve exclusionary
reasons (e.g., whether the duty to rescue, in the first place, is a duty because it excludes some reasons,
like the reason to take a nap). The point concerns the directive itself, and the sense in which it is a
reason, since we are interested in the character of its authority.

PRACTICAL REASON AND LEGALITY

there are no such reasons, it still excludes reasons of preference and

enjoyment. I may prefer to do Y, or prefer doing something else
entirely, even after the directive, so the directive must exclude these
reasons. This is mistaken. In the Lone Safe case, I may have similar
preferences, but they are excluded (or otherwise defeated) in precisely the same way, and without a directive. My reasons of preference are defeated by the good of rescue. Those reasons should not
matter, or should be seen as overridden, in any case where rescue is
salient and thus, it is the rescuing as a feature of the situation that is
exclusionary (if there are any such reasons), not any directive. Of
course, in the collective rescue case, it is the directive that renders
rescue salient, and the fact of the directive is consequently a reason
to do X. Moreover, it is binding (in that it would be irresponsible to
act otherwise) in virtue of the mandatory end it facilitates. Yet, the
directive does not assist practical reason here by the exclusion of
reasons you in no sense needed the directive to know that you
ought to be rescuing, even if you would prefer to do otherwise.50
The plane crashes, people are drowning: hopefully you are possessed
of human decency and have bracketed your relatively trivial preferences even before a solution has presented itself.51
These last points might seem pedantic, but the argument above (if
it is right) seriously compromises an influential picture of the role of
political authority: that political authoritys service to its subjects is
to provide relief services to their practical reason. I have not argued
against the notion of exclusionary reasons, per se, but rather against
their existence as elements of morally authoritative directives.52 My
50
Put slightly differently, imagine that you can save N lives by either doing X or some other action
entirely independent of the enterprise. I think Raz would admit that the directive, in this case, is not
authoritative. Yet, despite the absence of authority, your reasons of preference are defeated. You have
reason to do X, and reason to do the alternative, but you must choose one or the other in virtue of your
preferences defeat a defeat accomplished either by exclusion or other means, but in any case, without
assistance to practical reason by a normative device.
51
It might be further objected: the case is one of emergency where attempting to contemplate all
applicable first-order reasons will lead one to underperform with regards to those reasons since (e.g.)
the rescue is time-sensitive. The directive must exclude reasons for you to comply with them. This
response is also mistaken. Forgive the science fiction, but imagine the collective rescue case, except that
you have the power to stop time. You cannot manipulate the physical world while time is stopped, but
you can think for as long as you like. You may well arrive at the conclusion that, given Ds suboptimal
directive, X is what you should do. Emergency may exclude reasons, with or without directives. Consider
introducing emergency into the lone-rescuer case. When emergency so excludes, we should not treat
the exclusion as a feature of a directive.
52
Clearly this argument does not address all the roles Raz gives to exclusionary reasons in his
comprehensive theory of practical reason. Those would require separate discussion. My point here
narrowly concerns authoritative directives.

ANTHONY R. REEVES

argumentative strategy has been to take a straightforward case of

practical authority, a case we intuitively identify as involving
authoritative directives, and to consider how best to understand it in
terms of the reasons in play. Once we notice that reasons to act on
other enterprises are not excluded, and consider the case in conjunction with the Lone Safe case, it is very difficult to see exclusionary reasons as attaching to directives. It distorts the moral
position of the subject to suggest that they do, and such mischaracterization can be important. Consider that treating authoritative
directives as exclusionary will incline an agent to discount reasons
for which she is responsible. Assume, for the moment, that there are
exclusionary reasons. If an agent has already countenanced the
exclusionary reasons supplied by the ends at stake, and by other
features of her circumstance, and then treats the directive as supplying additional exclusion, she will then tend to eliminate first-order
reasons from her practical deliberation that are her practical reasons
business. Since some of these reasons will, from time to time, be
moral reasons, treating directives as imposers of exclusionary reasons
will incline her towards irresponsible conduct. This last point is not
an additional argument against authority as exclusion, it indicates an
important corollary of the above arguments.
On my view, authoritative directives are instrumental, and their
binding force should be understood in terms of service to right
reason. However, its service is not one of insulating reason from
reasons. Ds directive is simply a reason to do X that is binding in
light of the end it uniquely facilitates (its binding-ness is something to
be assessed in contemplation of the end). Its proper significance in
your deliberations is determined by the character of your duties to
assist those imperiled and how well the directive provides a route to
doing your duty. If your duties were better served by other means,
the directive is no longer binding. Also, other moral reasons can
compete, and sometimes win against, a binding directive. Binding
directives do not serve our practical reason by excluding reasons
from its purview, but by delivering a course of action to contemplate
that is now (because of the directive) part of what duty requires.
Moral authority serves our natural duty, by articulating a world
more amenable to agents pursuing their rightful ends.

PRACTICAL REASON AND LEGALITY

A final note before moving on. I keep the rescue example relatively simple to highlight several points, but (time and social order
permitting) Ds directive does not preclude you from trying to
persuade D otherwise or of trying to convince others of a different
course of action. However, you may not have time or sufficient
persuasive force. Ds directive then binds you. Without it, you were
free to act otherwise, and perhaps you could responsibly do nothing
(imagine if there were no safe rescue available without collective
effort, and no effort is forthcoming). With it, you are bound to do
your duty to your fellow humans by complying.
C. Binding Law
Perhaps it is now clear how, in my view, non-ideal law binds. Positive law constrains responsible freedom to its terms by creating a
route, that is compliance with the law, between an agent and an end
of mandatory concern to the agent unavailable without a directive.
Law will frequently, though hardly always, satisfy the conditions to
be good-making. Almost all theories of positive law require that
actual recognition figure, in some crucial way, to legality, such that
legality also explains the ability of legal institutions to issue agendasetting directives.53 Moreover, the rule of law goods described in part
two are VPT goods, and are plausibly duty-implying goods. These
goods are, for a legal subject, normally not pursuable by other
means, and a subjects behavior often factually affects the extent of
their realization. A non-ideal systems law will frequently bind in
virtue of its public semantic content, legal recognition, moral
acceptability, and its statement of a minimally successful policy for a
mandatory VPT good that is then achieved, by the subject, by acting
pursuant to the law.
Practical reasoning under non-ideal law, then, requires cognizance of the way in which the rule of law is valuable, and how that
value depends on compliance in particular circumstances. Moreover,
given that law (even when binding) will not normally produce
exclusionary reasons, the responsible agent will have to be sensitive
53
In fact, I cannot think of one that does not. This does not, of course, imply that recognition need
attach to legal norms one by one, only that recognition is partly constitutive of legality somewhere
along the line (e.g., at the level of official practice, and/or at the level of widespread acceptance of
official practice), and this explains factual recognition of some norms.

ANTHONY R. REEVES

to the value of a good compared to other competing reasons.54 The

scope of binding law will be determined by the circumstances when
compliance is related to the realization of mandatory good(s). The
weight, compared to other moral matters at stake, of binding law in
practical reason when it regulates within its scope will be determined
by the moral significance of the good(s) the legal authority is
instrumental, via compliance, in securing. Law will normally bind
differentially across a legal system. I mean this in two senses. First,
the type of VPT goods at stake will vary from department to
department. Second, some departments will simply be more productive of genuine valuables than others, and some domains may be
unjust or oppressive in ways that undermine their ability to bind.
The traffic law of apartheid-era South Africa was binding for its
subjects, but much of the racist policy of the regime was not
(though, reasons of prudence may counsel compliance). If something
prompts moral worry about what some domain of law is up to,
nothing about laws ability to bind in other domains of the legal
system excuses a subject from assessing the value of compliance to
the suspect domain. Also, on point, some legal prohibitions will
simply reproduce the satisfaction conditions of moral demands
effable without a non-moral normative device, and these laws will
not be binding.55 Law is not route-making here, it simply correctly
identifies what you should do, and the fact of legality need not figure
into practical reason (except, maybe, indirectly as a reason for belief).
More needs to be said about why (exactly) and which rule of law
valuables are of mandatory concern. In Part Two, I attempted to
describe some rule of law goods in a light that would show them to
be very plausibly sources of natural duties. Demonstrating as much
would involve addressing substantive matters of political philosophy,
54
One might object that this involves an extremely demanding calculation on the part of the
subject, and that it is implausible to expect such calculation. One must go through the reasoning
indicated in the preceding paragraph, and weigh various political goods against one another, on
particular occasions. In response, moral reasoning can generally be quite complex, and we legitimately
use various heuristics to do right in particular circumstances (e.g., we consider the relative weight of
morally important values when we have time to reflect so that we can rely on a heuristic weighting in
times where a quick decision is required). All heuristics available to proper moral reasoning are available
to and legitimately employed by those reasoning under law when they are considering relative weights
of goods, the value of compliance in certain types of circumstances, etc. It is incorrect to infer from this,
though, that law gives rise to pro tanto or prima facie obligations wherever it has factual social regard. It
may not be pro tanto obligatory because it may not serve any morally mandatory end, and thus give rise
to no obligatory reason. It may not be prima facie obligatory, because should such a circumstance in fact
obtain, it may be immediately evident.
55
Though, again, they may be legitimate.

PRACTICAL REASON AND LEGALITY

and that cannot be done adequately here.56 Aside from what I say
there and here, I will simply assume we have significant, nontransactional natural duties. Nonetheless, what I hope to have
accomplished is an analysis of how positive norms can bind that
explains how legal normativity accomplishes genuine normativity for
practical reason. I have attempted to do this without describing
norms in terms of (distortive, in my view) exclusionary reasons,
positing indeterminacy, or employing difficult to substantiate general
moral commitments to legality. Of course, on this account, legal
subjects bound by law are not relieved of the responsibility to discern
their duties to others the binding force of law can only be ascertained through judgments of political morality. Again, law binds not
by providing relief services to practical reason, but by articulating a
course of action for its consideration (in light of the total circumstances) that then constitutes the success conditions for performing
at least one of its duties.57
Part Two also indicated several types of instances where we can
expect law to be route-making in the sense relevant for establishing
authority as described here. Yet, to aid intuition, consider two
concretized (if mundane) examples. We exercise power when acting
in the social world. While driving, I have the power to make things
go badly for others. Others have a moral right that I care for their
safety when driving down the road. I do not have the means for
doing this without settled conventions regarding speed, direction,
passing, etc. my practical reason has no course of action to consider
that would achieve safe travel. Traffic law, by the factual social
regard for its semantic content that accompanies its legality, makes it
the case that I can carry out my duty by stipulating an acceptable
course of action that, by the act carrying it out, is doing my duty.
There are at least two duties here. One is that I not undermine
serviceable conventions that achieve minimally safe highway travel
without acting towards an alternative (sometimes this sort of effect
will be negligible or non-existent, it depends). The other is that I
56
We might, e.g., conceive of these valuables in terms of public reason and the liberal principle of
legitimacy. See, John Rawls, Political Liberalism, Paperback ed. (New York: Columbia University Press,
1996), 212254.
57
Of course, being provided the means for dutiful action can be unhappy for an agent one might
prefer the freedom of not having the means. Being morally bound is not meant to be pleasant, it is
about according oneself responsibly towards others rights.

ANTHONY R. REEVES

drive safely. The safety of others, secured through coordinated

traffic, is a mandatory rule of law valuable.
Legal philosophy is tired of traffic convention examples, so take
another that more aptly can be described as involving partial conflict.
Law facilitates personal autonomy by settling rules for property. My
ability to give direction to my daily life and make longer-term plans
depends on my ability to develop stable expectations about how
others will regard the material world (including what they will regard as mine and how, precisely, they will regard that as significant).
Autonomy presupposes some social order, and property law provides that order for the material world. Moreover, when I expect
that others will so constrain their behavior, I will position myself in
various ways (by saving, purchasing, investing, etc.) such that I am
vulnerable when people start regarding the material world differently. The idea that I have a right that others not undermine the
conditions for an autonomous, decent life, and that people do not,
without special justification, frustrate my legitimate expectations is
not terribly controversial. Property law is binding insofar as it provides a route to this VPT good that is compliance with its terms,
even if the rules are suboptimal with regards to distributive justice.
This should not be taken as an especially conservative conclusion, as
competing moral considerations are not excluded, and the substantive injustice of property rules will diminish their moral force since
(if the order really is unjust) peoples rights are being violated.
Law binds regularly, but non-generally in light of our natural
duties, on this view. However, I do not see the overriding importance of satisfying the particularity requirement,58 as some natural
duty theorists have.59 Perhaps our obligations to our compatriots can
be shown to have special significance, but it is hardly damaging to a
theory of legal normativity if they cannot. If a domain of law permits
me to see to impartially important moral goods with respect to my
compatriots, but those goods are of less significance than competing
moral goods I can effectively render to non-compatriots, then maybe
58
See A. John Simmons, Moral Principles and Political Obligations (Princeton, N.J.: Princeton University Press, 1979).
59
See Pauline Kleingeld, Kantian Patriotism, Philosophy and Public Affairs 29, no. 4 (2000); Christopher Heath Wellman, Political Obligation and the Particularity Requirement, Legal Theory 10, no. 2
(2004); Jeremy Waldron, Special Ties and Natural Duties, Philosophy and Public Affairs 22 (1993). I do
not deny that this has traditionally been regarded as a lacuna for theories of political obligation. A failure
to demonstrate special moral ties between a person and their political community, however, does not
spell the end of binding law.

PRACTICAL REASON AND LEGALITY

so much the worse for the laws normativity in the circumstances. If

a ship sinks next to the plane crash, and I can save more lives by
supporting the cooperative rescue efforts involved in saving the
shipwrecked, then so much the worse for Ds ability to bind me.60 Of
course, sometimes the temptation to disobey has more to do with
our inclination than a cosmopolitan assessment of our moral duties.
Also, mere proximity to others will, day to day, make domestic law
binding, since it is my compatriots interests that I will normally
directly impact in my daily decision-making.61
D. Intentions and Political Authority
The above considerations permit the articulation of a general argument against theories of political authority that make authorial
intentions the locus of authority. Such views are in many ways
intuitive, and they have received extensive elaboration, especially in
the literature on legal interpretation.62 Also, recent work on
authority in particular has emphasized the importance of intentions
for the exercise of authority, and the content of the obligations it
generates.63 I cannot offer a full assessment of such views here, but I
can articulate a simple and direct argument, that applies fairly generally, against such views.
To say that authorial intentions are the locus of authority is to say
that they are the site of the moral power to require action where it is
that the power to impose obligations is exercised. Less mystically, if
someone is an authority, then they can effectively change someones
moral situation by intending to and communicating an intention to do
so. Although communication is important, it is not fundamental (on
60

Naturally, defenders of particularized political authority take it that political obligations are
defeasible. My only point here is that we need not assume particularity to account for laws ability to
bind in very many circumstances. The account stands somewhat independent of this well-developed
discussion. If special obligations can be shown, they can be integrated into this account. Also, relatedly,
it may be wondered how (if the particularity requirement is not met) my own states tax law, for
instance, can bind me. This raises interesting issues, but I do think this approach has an attractive way of
dealing with them. However, that requires independent discussion. If the fundamentals look promising,
then serious consideration can be given to the details.
61
This is not tantamount to endorsing particularity (or the particularity requirement as a success
condition of a theory of authority) as there is no asserted moral presumption in favor of my compatriots.
62
Alexander, All or Nothing at All?: The Intentions of Authorities and the Authority of Intentions.
63
Though Enoch does not generalize to political authority, see Enoch, Authority and ReasonGiving. See also, Perry, Political Authority and Political Obligation.

ANTHONY R. REEVES

such views). If there are ambiguities, for example, in the public

expression, the natural way to resolve them is by asking the authority
what she intended. This is because the crucial fact that changes the
moral position of the subject is the intention of the authority to change
the subjects moral position in such-and-such a way. It is the shape of
the intention that determines, ultimately, the content of the subjects
obligation. The moral power to require action is exercised, fundamentally, by an authoritys intention to do so.
Again, I restrict the argument here to political authorities:
1. Political authority is justified, at least in part, by the authoritys ability
to realize the central moral goods of the rule of law. Depending on the
theory of political authority, there may be other elements that figure
into the justification of authority as well. Nonetheless, part of showing
that an authority is justified is showing that it can reliably produce rule
of law goods. It is implausible that a political agency could have the
moral power to require action when it cannot reliably secure these.
2. Intentions can remain private, and intention communication can fail.
The most relevant ways this can happen is that (1) someone can intend to
convey something, but the public meaning of her expression mismatches
her intention, and (2) someone unintentionally conveys something.
3. Rule of law goods are secured via the public semantic content of
directives (as, I hope, is clear from what I have said in earlier sections).
4. When there is a mismatch between intention and the public meaning
of the expression, the rule of law goods will prefer the public meaning
over the private. From the standpoint of rule of law goods, it is the
public meaning that is important.
5. Without some powerful countervailing rationale internal to the justification of authority, then, authority reasons will be tied to public
meaning. (The rationale would have to be especially strong, since
authoritys justification is inextricably tied to its ability to secure goods
that operate via public semantic content).64
64
The only candidate rationale that comes to mind is that the authoritys moral power is (also)
justified in terms of its expertise. This seems to be part of what Alexander has in mind, see Alexander,
All or Nothing at All?: The Intentions of Authorities and the Authority of Intentions. However, the
cases where political authority rests on expertise, as many have noted, are few and far between. Also,
even if we conceive of democratic legislatures as producing results that are, in a sense, expert, this does
not clearly imply that we ought be in search of anyones intention. See, Waldron, Law and Disagreement,
119146. Despite his intentionalist leanings, I take this point to be largely consistent with Marmors
discussion of legislative intent and authority. See Marmor, Interpretation and Legal Theory, pp. 119140.
The point here, though, is more general, the premises are somewhat different, and they warrant
(I think) a stronger conclusion.

PRACTICAL REASON AND LEGALITY

6. If authority-reasons are tied essentially to public meaning, this must be

the locus of authority, i.e., the site at which the power to impose
obligations is exercised. Authority-reasons will only contingently take
the shape of the intention (if there is any) behind a directive. Slightly
differently, authority-reasons will only contingently require what the
authority intended to require. What an authoritative directive will
require will depend on the public meaning of the directive. The power
to require action is exercised here.
7. Conclusion: The locus of political authority is not authorial intentions.
Intention-based accounts of political authority are false.
IV. AUTHORITY AND BINDING LAW

In an article, one can explicate the central elements of an approach,

argue that it is comparatively meritorious, address some worries, and
offer an indication of its promise in light of plausible diseredata. I
perform the last task here, though I also intend to put pressure on
some of the success conditions for a theory of political authority
offered in recent work. Authority involves at least the ability to
impose obligations. Some other elements thought to be involved are:
1. Residence in an agent65: Authority is frequently thought to be a power
possessed by a person or some other agent (e.g., a democratic legislature). The approach here does not emphasize this element binding
norms are such in virtue of being good-making. Their ability to bind
fundamentally relates to the norms capacity, not (essentially) by being
issued by any particular person. However, frequently a positive norms
capacity will depend upon its issuance from a particular agency. The
factual recognition of D is what permits his directives to be goodmaking, and such is likely the case for many political institutions. He
has the capacity to require action insofar as his directives have the
ability to create routes to mandatory ends. Why should we want, when
the question is one of political authority, the power to bind to extend
beyond that? I suggest we should conceive of political authority as the

65
See, for example, Robert Paul Wolff, In Defense of Anarchism (New York: Harper & Row, 1970), 6.
In distinguishing authority from persuasive argument, Wolff says, authority resides in persons; they
possess it if indeed they do at all by virtue of who they are and not by virtue of what they
command.

ANTHONY R. REEVES

ability to make non-moral normative devices serve rights.66 One is

appropriately called a practical authority when one is factually in
possession of that capability for some range of circumstances. Also, if
democratic institutions, e.g., are capable of producing intrinsically
valuable directives, then the approach here is fully consistent with
designating those institutions as authorities. Their proper exercise of
norm-creating procedures will make the resultant norm authoritative.
2. Content-independence67: Intuitively, the idea is that one can have a reason to perform some action that, in some sense, does not depend on
the character of the action. If I promise to do X, then I have a reason to
do X (whatever X happens to be, within limits), and if I promise to do
Y, instead of X, then I have a similar reason to do Y, even if Y is of a
very different character than X. Despite casual use of the term in legal
philosophy, and the widespread assumption that it is central to
authority, I am not sure that there is a common understanding of what
it, precisely, involves.68 On some understandings of content-independence, my account does not have it since the content of the directive
must state a policy that is then the route to a good, and the force of the
directive depends on its success in achieving the relevant good.
However, no plausible theory of authority grants a power to require
action that is wholly independent of the character of the action.69 If an
otherwise justified authority orders you to violate someones basic
human rights, its attempt to exercise a moral power has failed. My
account does offer an explanation for how the content of the directive
can be of some indifference. It shows how many different directives,
with variable incompatible content, are all candidates for binding
subjects (even if suboptimal) if given by an agent with the power to
make them good-making. In fact, on my view, this is precisely where
66

Perhaps unlike standard theories of political obligation, approaching the issue in this way
immunizes it from Perrys reverse entailment problem. See Perry, Political Authority and Political
Obligation.
67
Widespread, but one example is Green, The Authority of the State.
68
This is made clear, I think, by Sciaraffa in his illuminating discussion. See Stefan Sciaraffa, On
Content-Independent Reasons: Its Not in the Name, Law and Philosophy 28, no. 3 (2009). It is a
technical term introduced by Hart. For his definition, see H. L. A. Hart, Essays on Bentham (Oxford:
Oxford University Press, 1982); 254. See also, P. Marwick, Law and Content-Independent Reasons,
Oxford Journal of Legal Studies 20, no. 4 (2000).
69
Even in the core case of content-independence, the promise, the force of the promise (in my view)
for the promisor varies somewhat with the value of carrying out the conduct promised. Clearly, this
requires argument and its own discussion, which cannot be provided here. For some initial considerations, see Anthony R. Reeves, Do Judges Have an Obligation to Enforce the Law?: Moral Responsibility and Judicial Reasoning, Law and Philosophy 29, no. 2 (2010): 168172.

PRACTICAL REASON AND LEGALITY

directives bind (in light of VPT goods). Moreover, it shows how the
directive is a reason for action for what it directs. If this is what we want
from content-independence, then this approach has it. If we want
something else, then we need to say what it is and why.
3. Not merely side-effect imposition of duty70: See Part III, Section B for
discussion of this requirement. The binding directives of my account
are not merely side-effect impositions of duties.
4. Purposive, Not Inadvertent71: The exercise of a moral power must, it is
thought, have the creation of moral obligation as its aim. As I just
argued, the content of the moral obligations generated by political
authorities does not depend on the intentions of those authorities, but
rather on the public meaning of their directives. But, perhaps, political
authorities must have had an intention, of some sort, to create an
obligation. A legislature may, though no one having read the entirety
of a bill, intend to create an obligation to abide by the bills terms. It
can be a successful authority by at least having this minimal intention.
The worry about this requirement, from the standpoint of political
authority, is that evidence for the existence of this intention will consist
solely in the publicly ascertainable facts regarding the satisfaction of the
procedural requirements for passing a bill. In fact, the actual intentions
of legislators to exercise a moral power is wholly irrelevant. If every
legislator says, if asked, that s/he did not intend to exercise a moral
power, but just stumbled in drunkenly and yelled, at the time of
voting, approve! while thinking of her/his favorite philosophical
doctrine, then the agency will have successfully (other conditions met)
exercised its moral power despite no one having an intention to do so.
If we identify intentional exercise of power with the publicly ascertainable
satisfaction of recognized procedural requirements, then my account is
highly amenable to this requirement. If we mean something like a subjective intention to exercise power on the part of a person, we ought to
abandon the requirement as a desideratum for political authority.
5. Mandatory, Non-Advisory: Authoritative reasons are not advice, they are
independent mandates to do what is directed. There are two separate
ideas here. One is that the directive is not a reason for belief, but is
itself a reason for action. The second is that the reason entails a moral
70
Edmundson also insists on this, though in terms of directness and indirectness. See, William A.
Edmundson, Political Authority, Moral Powers, and the Intrinsic Value of Obedience, Oxford Journal of
Legal Studies 30, no. 1 (2010): 183.
71
Again, widespread, but see, e.g., ibid., p. 181.

ANTHONY R. REEVES

obligation. These are central elements of binding directives on my

approach.
6. Requires Submission: Authority involves one agent submitting, even in the
presence of contrary judgment as to the wisdom of the directive, to the
directive. The will of one becomes the will of another. The approach here
describes conditions in which this is meaningfully the case and appropriate. When the conditions for a binding directive are met, it renders
your view about what ought to be directed inoperative, and someone
elses view (mistaken or not) about what ought to be done, mandatory.
7. Preemptive: As discussed earlier, the idea that authority excludes reasons
from practical reason has been widely-held since at least Razs introduction of the term exclusionary reason, and probably longer.
However, as I have argued, the kind of coordination (pure and
otherwise) that is the mainstay of binding law does not involve preemption. Perhaps cases of expertise, as in the example of the environmental agency given earlier, create a small sphere for exclusionary
reasons for political authority. It would be small, though, and it is not
evident that exclusionary reasons are operative even in these types of
cases. Why not think of the agency as simply giving a reason for a
belief relevant to existing reasons for action? I have reasons to prevent
environmental degradation, but I know less well than the agency about
how to prevent it. The agency gives me a reason for believing that
washing my boat will prevent degradation. I ought to believe that boat
washing is preventative because experts told me so, and this is relevant
to my reason to act to prevent degradation. No reason for action is
excluded by the ordinance.
8. Small-error tolerant, not intolerant72: If the commander is an authority,
then the duty to obey does not automatically run out when the
commander errs with regards to her aims. Large errors, that deeply
frustrate the aim, may undermine authority. There are two separate
types of cases, though Edmundson and Estlund treat them together. In
one, the commander gives an order that is suboptimal compared to
some other order. D orders you to do X, though it would have been
better to order Y, but you are bound to do X.73 My account easily
72

Ibid., 182183; Estlund, Democratic Authority: A Philosophical Framework, 125.

See Part Two, Section B. In the case of D, small errors will frequently be tolerated because others
expectations about your behavior will be settled by Ds directives, your most effective contribution to
the collective effort will be determined by Ds directive (even if you could have made more by another),
and because it may be independently important to avoid upsetting the operative recognition of D as the
agenda setter. Better a mediocre rescue than none.
73

PRACTICAL REASON AND LEGALITY

handles this kind of small-error with normative economy. Another

kind of case is where compliance fails altogether to contribute directly
to the aim. Here we again have two kinds. In the first, obedience does
contribute to the realization/maintenance of a valuable normative
order by doing X (which is otherwise pointless, and perhaps somewhat counterproductive), I marginally increase overall confidence in D
as the salient coordinator. My account also handles these cases well D
has made X good by directing me to do it, since it is now the means for
realizing a mandatory good: a collective normative order that
accomplishes a duty-implying end. In the second, the effects on the
normative order are non-existent. In these cases (my account has it)
orders do not bind. This is not obviously bad news, however, since we
are now in the realm of stoplights on deserted roads, legally prohibited
private acts with no untoward consequences to others, etc.
requirements that even many political obligation theorists attempt to
marginalize from the sphere of political authority.74 Demanding that a
theory of political authority cover these cases is, at least, controversial.
9. Intrinsic Value Producing: Edmundson contends that the moral power to
command essentially involves intrinsic reasons for obedience. He
describes the idea as follows:
An intrinsic reason for action is one that reflects the actions inherent value,
or the value of a whole of which the action is an essential component. An
intrinsic reason for action is to be contrasted with a merely instrumental
reason for action, where the action has no value in itself but would lead to or
promote something else that is valuable in itself, if perhaps only by a chain of
further events and actions.75

As Edmundson notes, only consent seems capable of giving the

will of another the intrinsic moral power to require action. Other
moral approaches to political obligation grounded in, e.g.,
fairness or natural duties would be incapable of substantiating
genuine authority.76 Given the rarity of circumstances in which
74
See, e.g., George Klosko, The Moral Force of Political Obligations, The American Political Science
Review 84, no. 4 (1990).
75
Edmundson, Political Authority, Moral Powers, and the Intrinsic Value of Obedience, 184.
Estlund seems to endorse this requirement also. See Estlund, Democratic Authority: A Philosophical
Framework, 145.
76
Edmundson, Political Authority, Moral Powers, and the Intrinsic Value of Obedience, 185191.
Green seems to agree. See, Green, The Authority of the State, 158187, 220247. Depending on how
further analysis of what it is for reason to be intrinsic, for Edmundson, I am not even certain that
consent based obligations qualify. Those reasons are parasitic, presumably, on natural duties to abide by
the terms of ones consent.

ANTHONY R. REEVES

the governed have consented, making the ability to produce

intrinsic reasons a necessary condition of authority renders the
concept relatively unimportant for understanding our responsibilities in political life. Insofar as we want the concept of political
authority to help us identify distinctive kinds of moral demands
that we actually encounter, we should be wary of requiring a
theory to demonstrate intrinsic value production.
We can frame the theoretical issue as a dilemma. The more
robust the success conditions we insist upon for theories of political
authority, the less we will be able to fruitfully theorize about normative political matters in terms of the concept. It will be incapable
of illuminating our political relationships and responsibilities. On the
other hand, the less robust the conditions, the less theorizing may
accord with some of our pre-theoretical intuitions regarding
authority (or, perhaps, with our analyses of the type of authority law
claims). The account here, then, may be thought of as moderately
deflationary, preferring the first horn of the dilemma. It is not evident that robust authority is an important concept for illuminating
political relations, including our relationship to political institutions.
When Enoch (e.g.) begins his theory with the example of a parent/
child relationship as the archetype of authority, we have already
begun on the wrong path.77 The alternative advanced here contends
that we should consider how law binds in virtue of its ability to
address the kinds of problems it is meant (so to speak) to solve. I
have argued that this delivers much of what we intuitively and
normatively want from a theory of political authority (i.e., the ability
of suboptimal law to morally bind practical reason in the circumstances where it is important to have a posited normative device),
and without excess that may intuitively attach to our pre-theoretical
notion of authority (perhaps appropriately in other domains, but
which is wholly inappropriate for political authority).
A complete theory of political authority would need to say more
than I have here, especially about which moral ends law properly
serves it would have to address substantive matters of political
morality. For now, one additional remark on this approachs
promise. The following example has troubled recent authority theorizing:
77

Enoch, Authority and Reason-Giving.

PRACTICAL REASON AND LEGALITY

If a petulant child of a brutal dictator whimsically tells the minister to leave the
palace, and the dictator will unleash brutality on the masses out of anger if the
minister disobeys, then the childs command has created a moral requirement to
obey. The child has the moral power to require action, but it sounds wrong to say
that she has authority. One way of capturing this is to point out that in this case,
when the minister considers what to do, the fact that the child commanded him to
leave has no weight of its own. The danger of the dictators brutality is triggered
by the command, but the command itself drops out of the set of reasons for action.
In cases of authority the fact that it was commanded is itself a moral reason for
action, a reason that requires action unless it is canceled or outweighed.78

The challenge is to avoid having the result that the childs order is
authoritative, and explain the sense in which the command drops
out. A theory of authority developed along the above lines can say
the following. Political authority properly attaches to directives that
are good-making. Although there is a sense in which the child has
made the act of leaving the palace good, since the minister has a duty
to protect and leaving the palace is now the means for doing so, the
childs directive does not make available that good. The peoples
security was made realizable, insofar as it is realized, by the scheme
of law in place prior to the childs order. The childs order does not
render accessible a VPT good (and systemic stability is not assisted
by having the order in place for compliance). The childs order is
undoubtedly a reason for the minister, but it drops out from the
standpoint of political authority in the sense of not being the kind of
reason appropriate to the relevant normative order. It is an abuse of
authority. The kinds of reasons appropriate to a normative order are
those that are reasons because they are implicated in the production
of goods that the normative order is rightly concerned with
producing. The childs demand merely threatens those goods. It is
not, itself, an instrument to the availability of those goods.
V. CONCLUSION

On Edmundsons statement, Political authority consists in the states

(purported) moral power to place us under obligations to obey its
commands, particularly its laws.79 Normally, the state will only
possess such a power insofar as it is positioned to carry out its duty
to provide a determinate course of action for the rightful aims of its
78
79

Estlund, Democratic Authority: A Philosophical Framework, 118.

Edmundson, Political Authority, Moral Powers, and the Intrinsic Value of Obedience, 180 .

ANTHONY R. REEVES

subjects. Under morally imperfect, non-ideal law, practical reasons

proper concern with legality is strongly tied to laws success in
rendering available goods that are of mandatory concern to the
subject. Positive laws moral normativity, its ability to be a binding
reason for action, normally resides in its creation of a route to what
we owe each other on an occasion of decision. Human law does
provide a service, but it is not one of insulating reason from reasons.
It is one of providing a determinate course of action that morality, in
the circumstances of human social life, is ill-quipped to unilaterally
deliver. Typically, morality will be ill-equipped insofar as it requires
the realization of a VPT good in an interactive environment. Conceiving of laws capacity to bind in this way does not prove that a
theory of political obligation cannot be substantiated for some
political contexts. It does show, however, that law can bind in
conscience without general and special political obligations, and thus
our search for a theory (if we continue) should be animated by some
other concern(s). More generally, this conception raises questions
about some approaches to theorizing about political authority. Our
sense of when a theory of political authority succeeds should be
guided by a view of what we are trying to understand. I have
emphasized the standpoint of the subject of law trying to act
responsibly, and such emphasis may obfuscate something that
properly puzzles us about political authority. But if so, we need to
say what it is. At the very least, some of the adequacy conditions
extant in the literature are currently under-motivated for the realm
of the political.
ACKNOWLEDGMENTS

I am grateful to Daniel Koltonski, Candice Delmas, David Lyons, Jamie

Kelly, Uwe Steinhoff, Jiafeng Zhu, Marcus Arvan, Robert Jubb, and two
anonymous reviewers for this journal for comments on earlier drafts of this
paper.

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