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Chapter 11: The Moral Authority of Law

Question A: What is meant by “authority”?

1. In general, an authority is a source whose judgments and/or choices provide a reason for thinking and/or acting otherwise than one would if left to judge and/or choose for oneself.1 Beyond this very general core of meaning, the word “authority” is used in two quite different ways.

2. Authority in one sense is competence to make judgments which reasonable persons of lesser competence will accept as certainly or probably true. One speaks of the authority of experts, of scholars in their fields, and also of the teaching authority of the Church—each in its own domain and according to its own competence. Authority in another sense is a social capacity to give directions which generate a nonabsolute moral duty to obey. This is the authority of law.2 (The distinction between the Church’s teaching authority and law-giving authority will be clarified in question F.)

Authority in the second sense includes the capacity to make choices on behalf of a group. In a famous definition, St. Thomas says that law is a “certain ordinance of reason, directed to the common good, promulgated by one who has the care of the community” (S.t., 1–2, q. 90, a. 4, c.). This ordinance of reason is a directive for activity, a command, which itself presupposes an act of will, namely, a choice (S.t., 1–2, q. 17, a. 1 and a. 3, ad 1). This choice itself must be in accord with moral principles if the directive is to be a genuine law with moral force (S.t., 1–2, q. 96, a. 4).

The choices of the authority specify what those directed by the law ought to choose to do as cooperative members of the group. But the will of an authority making choices is not the source of law’s moral force. Rather, members of groups ought to obey the laws which are specified by the choices of authorities because such obedience is necessary for just cooperation toward the common good.

St. Thomas’ definition of law can be applied only by extension to the set of moral principles called “natural law.” As was explained (7‑A), these principles are directions for action. They are given human persons as truths about how to live good lives so that they can cooperate intelligently in God’s plan for the fulfillment of his whole creative undertaking. In this case, the specifying choice of the divine authority is to create intelligent beings such as human persons. Human persons being what they are, the principles of morality could not be other than they are.

3. In a loose sense, all who are able to exact conformity to their wills are called “authorities,” even when their power lacks a moral basis, provided there is some appearance of lawful authority. Thus, the Nazis were “in authority” in Germany until the end of World War II, although their directives as such ceased to have moral force some time before then. Although the behavior of those in control in such situations may generate obligations—for example, the obligation to cooperate with them up to a point in order to avoid evils which they will otherwise perpetrate—their directives, having no moral basis, do not of themselves generate any duty to obey. In a strict sense, those in control in such situations have no authority, and their directives are not laws. Rather, they resemble the orders of outlaws, which are backed only by threats.

4. There are other cases besides obeying authorities where one should act on another’s decision. In exchanging marriage vows, for instance, each party undertakes, within limits, to engage in marital relations at the other’s request. But a request for what has been promised is not lawmaking, and granting such a request is not obeying authority.

5. Still, in some lasting relationships, something analogous to law and authority does arise from promises. Employees who contract with their employers are, for example, bound within certain limits to carry out the orders of superiors. The latter have the capacity in such cases to give directions which ought to be followed. Yet this power, “managerial authority,” is not that of law. One is subject to managerial direction only by one’s morally free promise in accepting a position. By contrast, the authority of law has, as we shall see further below, a moral basis independent of any commitment which those subject to it are morally free to omit.3

1. On the general notion of authority, see John Finnis, Natural Law and Natural Rights (Oxford: Clarendon Press, 1980), 231–37.

2. On authority, see Yves Simon’s work, for instance, Philosophy of Democratic Government (Chicago: University of Chicago Press, 1951), 144–94.

3. Lon L. Fuller, The Morality of Law, rev. ed. (New Haven: Yale University Press, 1969), reaches a concept of law (145–51) including its distinction from managerial direction (207–13) remarkably similar to the basically Thomistic theory stated here, although Fuller begins his study from the phenomena of contemporary Anglo-American legality, rather than from the different data and metaphysical-theological framework of Thomas.