Authority

This week, we’re looking at the ways in which legal reasoning connects with logical and critical thinking. In this clip, we’re going to talk about the role of authority in legal reasoning. Remember the appeal to authority from the list of common fallacies we gave you in the first week? The basic idea was that it’s often illegitimate to simply appeal to an authority to seal an argument. It leads us to accept claims in the absence of adequate evidence. And it seems to be at odds with the core idea that the good logical and critical thinker always considers the reasons for his or her beliefs, always takes responsibility for evaluating the grounds for those beliefs.

But appeals to authority are central to legal reasoning. And those legal systems that have preserved the British notion of parliamentary sovereignty– courts are more or less bound by the authority of the legislature. Courts have discretion, of course, but essentially legislatures or parliaments make law, and the courts interpret and apply it. And the doctrine of precedent means that judges of lower courts everywhere are bound by the authority of decisions of higher courts. That sometimes appears to conflict directly with our concerns about appeals to authority. Consider this wonderfully honest remark by Lord Justice Buckley.

What should we make of Lord Justice Buckley’s remark? Was he a good logical and critical thinker? And what of the law’s regard for authority more generally? Well, let’s go back to our discussion of the argument from authority again. We said there that some appeals to authority were legitimate. We suggested there were four conditions which had to be met for an appeal to authority to be legitimate. The authority had to have sufficient expertise. They had to be acting within their area of expertise. Their claims had to be consistent with a reasonable consensus in the area. And they had to be acting sincerely and free of bias.

And we suggested that it would only be OK to resort to an authority if the reasoner themselves lacked expertise. Now, those conditions don’t seem to help Lord Justice Buckley much. The authorities he felt obliged to follow were judges in higher courts, and so they probably were experts, probably free of bias. There does seem to be a consensus, in the higher court at least. And of course, Lord Justice Buckley was no legal slouch. He was a Lord Justice, after all.

But we suggested that an important function of those four conditions was that they required us to bring our logical and critical thinking skills to bear not directly on the issue at hand, but instead on the question, should I adopt the belief that this person is an appropriate authority in these circumstances. The conditions, that is, shift the focus of our logical and critical thinking skills, while preventing us from turning them off. And now we could make a similar move when considering the role of authority in the law.

Bringing our logical and critical thinking skills to bear, in this case, not– or not only– on the standing of legal authorities– though judges will do that, too– but upon the broader question of the justification for law’s high regard for authority. And back to Lord Justice Buckley, there appear to be strong and cogent non-deductive arguments in favour of that regard. One of law’s most important roles is to provide certainty. When I make a will, I want to know what the law will make of it when I’m not around to look after my own interests. When I invest money in a company or buy an expensive product, I want to know what rights I have and how secure they are.

In short, if I know in advance what legal protection or intervention to expect, then I can plan and adjust my activities around those expectations. Legal certainty, as one writer puts it, removes the inhibiting affect on action that occurs when one’s gains are subject to sporadic legal catastrophe. Now, this is not a course in the philosophy of law, so we won’t examine these arguments any further here. Note, though, that they are contested. Don’t treat me as an authority with respect to what you should believe about the authority of law. It will do to offer them as a plausible account of law’s high regard for authority– and an account which certainly deserves our attention as good, logical, and critical thinkers.