The objective of this project is to investigate how authority is claimed, legitimated and contested within international legal argument, whether in scholarship, practice, activism, or within institutions. The concept of ‘authority’ is understood here as the quality of inducing obedience independently from pure recourse to brute power or from being obliged fully to gain the consent of the obligee (Arendt). In this respect, authority is said to have a ‘content-independent authority’, on which the validity of law or of the place of a legal official ‘function […] as a reason independently of the nature or character of the actions to be done’ (Hart). The overall aim of the project is therefore to explore the method, processes, and actors through which international law is constitutive of a system which legitimises certain claims of authority—and allows for their contestation.
This project seeks to explore a number of points. First, is there something particular to the international legal form itself that confines and structures the ability for actors to make claims. Does the legal form oblige actors to use the language of rights, obligations and responsibilities? What are the consequences of being obliged to formulate claims in such language? To which audiences are such claims directed?
Secondly, the project studies the question as to whether the international legal system is a closed system, one where certain officials are entrusted to safeguard its order and coherence above all. The possible 'systemic agents' in question would include: international organisations, who exercise powers and make decisions on the basis of powers delegated by States; international judges, who make decisions and enforce certain categories of rules or norms upon the conferral of such powers on them by States or international organisations; and other international decision-makers who regularly give their opinions on matters falling with their competence. The study seeks to explore both the means through which these varying groups claim authority, so as to discern whether international law has some sort of unified approach to authority, or whether the different methods and strategies used by such actors are indicative of the particular form of international law.
Thirdly, the project considers how other actors, who are not necessarily 'systemic agents' within the system, construct and structure claims within international law, and the extent to which these are confined and limited by the authority wielded by legal officials, or indeed, by the form of international law itself. Such actors include, but are not limited, to individuals, corporations, activists and NGOs pursuing social or political change. This strand explores the extent to which law serves to structure and/or limit their claims, whether such actors have abandoned the use of legal techniques to advance their claims, and what, if any, emancipatory potential there remains in deploying legal arguments.
Authority seems to have to us at least three inter-linked facets, all of which reoccur in our research, and especially in the different chapters within the edited collection. Each chapter examines one of these facets, or otherwise emphasise the differences and/or linkages amongst them.
1. Authority of law: An overarching facet of authority relates to the authority of the legal system itself, vis-à-vis the community that it purports to bind. Questions of ‘legitimate authority of law’ or the relative autonomy of international law—and, relatedly, the authority of rules—in great part falls under this notion.
2. Authority in law: This facet of authority can be understood as the ‘classical’ attribute, embodied in Anglo-Saxon analytical jurisprudence, such as in Raz’s Authority of Law. It is concerned with how authority relates to the distribution of competences to take binding or enforceable decisions within a legal system. These are the more formal aspects which are understood within a legal system: who is empowered to take what decisions, and upon whom are they binding.; in short, it focusses on the authority of institutions, actors and agents. In looking at these structural/institutional theories of authority, it seems to us that it is fruitful to challenge the purported coherence or determinacy claimed by analytical jurisprudence in respect of authority. One point we consider specifically is whether open-endedness and indeterminacy of the law itself open up the potential for institutions and actors to claim authority, in the act of application/enforcement/interpretation. For the type of ‘authority in law’ we speak of is ultimately administered: the system is administered by designated experts who claim for themselves the authority to act.
3. Authority as fact (de facto authority): Here is where the imperfect ‘extra-legal authority’ finds expression: where the social practices of individuals, institutions and other actors becomes germane. For authority here is not used as a strictly legal concept, delineating competences or power between one and the other actor; instead, it is used as a descriptive term, the ability to induce compliance/obedience by one actor over the other. De facto authority tries to encompass the sociological practices which undergird and serve to create the law. In this regard, it is linked to the authority ‘of law’ and authority ‘in law’ in that it describes the social practices and phenomena which undergird these two categories, though the object of study and the analytical tools one might use might be slightly different. One point is that legitimate authority (eg authority of law, but also authority in law if speaking of institutions or actors), is distinct from de facto authority: even if legitimate authority is usually accompanied by de facto authority, the reverse is not always true. As such, there is no ‘necessary’ linkage between de facto authority and questions of legitimacy, and de facto authority—the authority of scholars, of powerful institutions, of influential actors, need not be legitimate.
There is a degree of phenomenology inherent in this manner of understanding authority; and authority ‘as fact’ connotes also the power of authority itself. Authority, in this conception, refers to the sense of inducing compliance or obedience without resort to legitimacy nor to power, but also beyond mere content-dependent persuasion. The politics of expertise, to quote Kennedy, are also very much part of the discussion here. Moreover, the point has been made that Arendt suggests that Plato was not satisfied with coercion v persuasion, and thought that there was another concept 'in a space' between coercion and persuasion: authority thus functioned as a sort of 'placeholder', a sort of description for the space between coercion and persuasion, but with no actual definition attached. Some of the papers in the edited collection take on board that long-standing understanding of authority and accept it as having this empty, ‘placeholder’ quality, and some are challenging it and deviating from it.
It emerged from the collaborative workshop that took place in Durham in April 2017 that foundational and anti-foundational language both have their place in this project, allowing the edited collection as a whole not to stake out a clear normative claim. We set out to justify such a stance, and not cloud it with ambivalence. The shared objective of a book is therefore not a normative approach to authority, to posit one view and justify its relevance, but to excavate the different understandings of the concept of authority clearly. We wish the edited collection to show, taken together, that authority takes on different facets, and that each of these conceptions of authority is related to the others. In this regard, each chapter of the edited collection is a self-standing piece of a wider framework, one which does not try to over-simplify a complex notion, but takes seriously its complexity and tries to provide guidance on how to engage with it.