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Dissenting Authority
Binder, Guyora
Binder, Guyora
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Abstract
This essay explicates J.B. White’s rhetorical conception of authority as a
potentially collaborative achievement and contrasts it with the conception
of authority as surrender of judgment prevailing in legal philosophy. On
White’s view, authority is not an instrument held and deployed, but is
conferred, like respect.
This conception of authority illuminates three puzzles concerning the
relationship between dissent and legal authority. First, Legal Positivism’s
purportedly descriptive account of law insists it must claim an authority to
govern independent of justice and assent. Yet law’s language is replete with
justice-based appeals for popular assent. White’s reading of the practice of
legal authority better explains this evidence. Second, liberal moral
philosophers often take value dissensus as evidence that legal authority is
necessarily illegitimate. Yet the language of radical dissenters often makes
an appeal for legal authority rather than anarchy. White’s conception of
legal authority as a practice of public reason better accounts for radical
aspirations to claim authority. Third, a conventional account of precedent
implies dissents are pointless, because they can have no legal authority. Yet
White’s conception of authority as collaborative engagement explains how
dissenting voices contribute authority to law. Law earns our allegiance by
remaining open to contestation, and by inviting rather than repressing our
critical judgment.