Kenneth Einar Himma, The Nature of Authority
Kenneth Einar Himma, The Nature of Authority (Cambridge University Press, 2024)
It has been a philosophical commonplace for centuries that might does not make right. Even – or perhaps especially – in our contemporary world of rule by cruel, vainglorious grifters, who would suggest otherwise? But is it possible that right (at least in the sense of legitimate authority) always at least involves might, that there can be no authoritative commands by sovereigns or their designees without the power to force compliance? That has long been one of the central tenets of Kenneth Einar Himma’s philosophy of law, and the densely-packed little book under review is one more important contribution to that impressive body of work.
Bertrand Russell said somewhere that "The point of philosophy is to start with something so simple as not to seem worth stating and to end with something so paradoxical that no one will believe it." That is surely what the greatest works of mathematics and philosophy have accomplished. Just consider Euclid's Elements or Spinoza’s Ethics. It is also the method utilized by Himma in this book. He opens it by affirming such near-platitudes as Authoritative tellings tell subjects what to do. But by the time he has finished (and it is a diminutive monograph of fewer than 80 pages!), we will find that he has compellingly demonstrated – or so it seems to me – that such “tellings” involve reasons to comply that necessarily imply threats of detriment to those who fail to obey. We will also have learned that it is through the possibility of coercive sanctions that authority implies plausible claims of right and in that way creates obligations that are more than mere desires to comply. It’s an exhilarating journey.
A satisfying explanation of legal authority has been elusive since a certain family of questions first occurred to scholars. We understand that there are moral oughts – actions we must take to do what's right – and that there are also prudential oughts that involve what will make things best for our lives. It's also clear that there are legal oughts: what we have to do in order to be safe from governmental sanctions. But is there another type as well that applies only when a putative edict of law is legitimate? If so, it might be that there are some perfectly legal commands that we shouldn't obey because they fail that additional test. And if that is the case, we will naturally wonder whether these oughts constitute a brand new type of obligation, or are rather a function of some, but possibly not all, governmental edicts passing or failing the morality or prudence tests with which we were already familiar. The path to a satisfying, comprehensive theory of any such “legitimacy oughts” has proved quite thorny, but it is one that seems worth traversing, if only because it affects the attitudes we have – or should have – toward civil disobedience by those living in oppressive regimes.
In philosophy (as in classic children's books) when we are faced with difficult questions, sometimes the key is to look at things another way. To give an example, whether or not anybody agrees with anything Alvin Plantinga has written about the nature of knowledge, for many in the field, it was a paradigm-shifting move of his to step away from the aforementioned Russell and his Gettier-weary followers by departing from ancient, often tiresome debates about evidence and justification – at least for a moment – and focusing instead on the concept of warrant. I won’t try to explain what this meant for many in that field except to say that it was a game changer. Whether or not one agrees with a single one of Plantinga's epistemological claims, it is hard to deny their importance, and Himma’s attempt to explicate legitimacy by starting with a laser focus on authority seems to me to provide the same sort of thorough board-clearing.
How is it possible for the book under review here to have reached its sometimes startling conclusions about law? According to Himma, the key is its utilization of what, following Frank Jackson, he calls “modest conceptual analysis.” Himma contrasts this method, which involves attempts to explicate kinds of things in our world “as they are wholly determined by what we do with language” with “immodest analysis,” which instead attempts to explicate the nature kinds as determined independently of what we do with language.” This distinction reminds me a bit of Peter Strawson’s mid-20th Century choice of descriptive over revisionary metaphysics, but Himma may be more modest even than Strawson, since the latter’s conception was intended to “lay bare the unchangeable, universal concepts that form our conceptual framework,” while Himma makes no claim that the concepts he isolates are unchangeable or universal. He is generally content, in fact, to rely on the likely evolving definitions he finds in popular dictionaries. Those, of course, are based on empirical investigations and the expertise of lexicographers, compilers who have training in social sciences. So, in spite of the a priori nature of conceptual analysis it can’t be denied that there is an empirical, sociological basis to methods relying on published lexicons.
For what it’s worth, I think the defense Himma makes for his method here and elsewhereξ may actually sell his findings a bit short. We can look at his work as a matter of securing valid derivations from various axioms that, of course, include terms whose definitions determine the meanings of the conclusions rendered in his conclusions. And as differing definitions of the terms in his premises can be found by reliance on different starting points, he can be expected to (and perhaps should) begin with those that are most widespread, for such popularity is clearly beneficial to achieving broad mutual understanding. But it is also important to choose definitions, i.e., concepts, that are particularly fecund for one’s philosophical purposes, and I believe Himma does just that. Good choices of starting points allow the formulation and manipulation of axioms to produce philosophical systems that need not fall into desuetude every time linguistic usages change with time.*
As Himma has himself stressed in a number of writings, grasping a concept requires only that one have an understanding of its core content. Even if the definition settled on is the most popular one, disagreements with others are always likely to continue to arise on penumbral issues. And since philosophically interesting concepts, like those of law, legitimacy, authority, person, objectivity, time, etc. are those that tend to generate the most fundamental differences (and, not coincidentally, often tend to be those with the mos↟t widely varying definitions in popular glossaries), relying on dictionaries may do little more than make useful jumping-off points.↟ I will note that one important concept that he uses and discusses a bit, but for which he supplies no specific dictionary definition in this book, that of objectivity, likely benefits from that omission.𝝅 Indeed, I believe that Himma’s work is valuable partly because it relies as much or more on deep and defensible intuitions as it does on picking the most popular dictionary citations. That’s why I take his defense of his use of lexicographical texts not to give him quite the credit that I think his analytical method and results actually deserve. 🗡
I am concerned that I have buried the main thread of this review under a mountain of digressions; so let me now exhume it by asking how this little book manages to fly from a few obvious propositions, like the near-tautology that authoritative commands tell people what to do, to manifestly critical tenets of legal theory like “Nothing in our conceptual practices entails that only morally justified tellings count as legally authoritative”? In a word, it results from the fact that Himma has noticed that what is mostly needed for the creation of a system of laws are items that have been provided by the natural human predilection for peaceful coexistence with others – and an equally natural dislike of pain and other forms of unpleasantness.
But if it’s the case that few additional premises need be added to the two above-mentioned facts of human nature, neither of that pair may be omitted. For like the early legal positivist John Austin, Himma recognizes the absolute indispensability of coercive sanctions in any scheme that can be justly designated a system of laws.Ψ And those premises tell us why this is so.
Himma also demonstrates that, to be authoritative, authoritative tellings must be made by and to persons with sufficient levels of intellectual competence.⤧ (I was sorry there was no discussion of A.I. here, since we may all be taking orders from either a “Hal” or a “Forbin Project” computer before very long, but that would surely have introduced a mountain of complicated issues.)
Following H.L.A. Hart, Himma is careful to note that the power of obligations to bind us “cannot be explained just in terms of the subject’s feeling unfree to do what she would otherwise feel free to do.” In other words, there is something crucial that distinguishes a judicial edict from a gunman’s threat. As Hart put it, “We must not [think of] obligation as essentially consisting in some feeling of pressure or compulsion experienced by those who have obligations. The fact that rules of obligation are generally supported by serious social pressure does not entail that to have an obligation under the rules is to experience feelings of compulsion or pressure.” Well, what more is needed?
Himma explains that there must also be a system of norms (like morality or law) that is operative. They are essentially involved in the following manner: A person P can have an obligation to perform an action S only if there is a normative system N that contains a mandatory norm governing P’s behavior which requires that P do S. Modest conceptual analysis then shows that the only normative systems that can count as laws are those that issue commands that are backed by detriment reasonably contrived to deter enough noncompliance to enable the authority to minimally achieve a particular goal: empowering those covered by such norms to live together comparatively peaceably.
Unlike Hobbes and other contractarians, Himma leaves aside issues involving the historical or hypothetical nature of any supposed compacts. This is appropriate because his analysis shows that what is essential here is the current existence of authority and the normative system it always requires. How and when any particular array of norms came into being may be of great historical interest, but it doesn’t affect the nature of the beast.
No doubt some readers will want to propose that what makes a command an issuance of a legal system is just a matter of prior causal history. They may suggest that some non-fiction story of the past, involving, perhaps, whether the enactment of some ostensible law took place according to particular processes and the issuer of the command received the appropriate credentials in the appropriate way will settle any disputes over authentic lawfulness. But an effective reply to a proposal of that sort can be made by pressing the point that such a suggestion can only shift the objects of the inquiries and leave their nature where it was. That is, there will remain the need for determinations regarding the imprimaturs of the particular historical events or processes being claimed to be the significant ones. One will now have to answer these questions: “What makes the events you are claiming to be dispositive the right – and therefore the legality-originating – ones? What prior processes made them so potent?” Clearly, there must be an end to any legality-giving chain of that sort. But there is no obvious “first flint” that can be plausibly appealed to.
What I believe we can learn from musing on this matter in the company of Himma's text is that having a monopoly on coercive sanctions is more important than many scholars have realized. As Himma demonstrates, current acquiescence to claims of right as well as the necessary plausibility of any such claims have more significance than has commonly been granted, making the features involving ostensible historical propriety fade in comparison to current physical and psychological characteristics. This fundamental transfer of dominance from what was to what is seems to me to be one key to grasping the importance of Himma’s contributions – especially for those who operated under preconceptions similar to my own.
There is limited space in a Cambridge Elements of Law publication, and the fact that Himma felt that he might have needed to provide more on the issue of distinguishing authoritative legal claims from commands of a gunman – even at such times as this criminal is carefully following his gangster codebook – is suggested by his quite recent issuance of a paper that devotes substantial attention to that issue. Himma's daring section on whether the authority of Satan, a being of maximal wickedness and power, should be called legitimate where he reigns, will likely keep the fundamental debate going. Is the acquiescence of Satan’s subjects plausible, simply because of the evil master’s undoubted power to impose detriment? No doubt legal as well as Biblical scholars will differ on this matter, though, of course, that is partly because agreement in both fields has always been extremely rare. But I, for one, find myself increasingly comfortable with the idea that legal oughts can be thoroughly unpacked by an analysis of authority, and that, consequently, legal normativity should be construed as a subset of the prudential variety. In other words, when I reach hell, I am prepared to call Satan a law-giver.
That said, I don't want to insist that Himma must agree with my disposition to push his analysis of de facto authority into the realm of the normative. He has been careful, after all, to restrict his framework to existence conditions for authority, remaining more agnostic with respect to its justification. Perhaps—like inclusive and exclusive positivists, or left- and right-populists—there will eventually be two schools of Himma followers: those who join me in taking his account of de facto authority as the complete story, with legitimacy dissolving into a combination of types of obligations with which we are already familiar; and those who insist the further question of justified authority remains open and requires a different kind of answer. For my own part, I find the Hobbesian story Himma tells—grounding authority in our natural predilection for peaceful coexistence and equally natural aversion to pain and detriment—compellingly sufficient to sustain that further normative work as well. The Satan passage in his recent paper may well serve as the key battleground if two such schools should eventually emerge.
It may not be necessary at this point, but I will nevertheless conclude by saying that The Nature of Authority is an important and enlightening (if sometimes quite difficult)⤋ work that should be read with care by those with a sincere interest in what is required for an ostensible government edict to exemplify legitimacy.
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ξ See, in particular, his “Reconsidering a Dogma: Conceptual Analysis, the Naturalistic Turn, and Legal Philosophy” (2007).
*As a former graduate student of Roderick Chisholm (familiarly known at the time as “Rod the God,” or “the master ‘chisholmer,’) I had it drummed into me at an early age that definitions were made to be altered whenever plausible counterexamples reared their heads. Of course, if terms stray so far from ordinary language that nobody who is not present in the classroom at the time can know what they mean (say, for a person to be or not be a body), conceptual analysis will be no more than the creation and manipulation of useless puzzles. It follows that to be philosophically interesting to more than a handful of trapped individuals, all the key terms must at least roughly correspond with ordinary language usage. But nobody should be thought to be required to find something in a widely-read dictionary that exactly expresses some concept one wants to explicate. H.L.A. Hart gave his reasons in the opening pages of Concept of Law for claiming that philosophers should be wary of relying too heavily on dictionary definitions, but there should be little doubt that his own copy of the OED was dog-eared.
↟ Similar points are made by Paolo Di Lucia i Lorenzo Passerini Glazel in his “The First and the Last Word” (Revus, 2021), a contribution to a symposium on Himma’s Coercion and the Nature of Law.
𝝅As I noted in my review of Matthew Kramer’s book on Hart, small alterations in the connotation of “objective” can have dramatic effects on resulting philosophies, and my own take on the term ended up being fairly complicated. (See especially pp. 39-42.) I believe, though, that Himma’s “core conception” is basically on the money, and that such analysis as is provided of objectivity in The Nature of Authority is entirely sufficient for the work required of it.
🗡Even if Himma’s work can justly be claimed to have taken something from the tradition of Oxford analysis, it is certainly nothing like any of the casuistic writings with titles like “Shoulds, Coulds, Woulds, Shan'ts, Can’ts, Won’ts, and Don’ts” that propagated in certain idyllic gardens in England’s south-central region. Speaking of Quine, Strawson pere, and the good old days, in at least one of his published defenses of modest conceptual analysis, Himma harkens us back to the debate over analyticity that raged between Quine and Strawson/Grice in the late 1950s and early 1960s. I don’t want to risk drowning in those riptides (again) myself, but I will say here that I agree with Himma that Quine (for whom I have great admiration) was not above the occasional inconsistency. Some years ago I wrote a note on the quietly suspicious changes he made to his definition of “ontological commitment” between “On What There Is” (1948) and “Existence and Quantification” (1966), alterations which seemed to me to have resulted from his absorption of published criticisms previously made by William Alston and Everett Hall. But Quine never gave either of those two philosophers any credit. I also think John Searle exposed a crucial mistake regarding “gavagai” in the 1980s that Quine somehow never found time to admit. It should be clear by now that I am quite sympathetic to Himma’s preferred method of philosophizing, as well as to his critiques of so-called “naturalistic” methods–and this in spite of the title of my book on democratic theory. I will admit to having chosen that name (as well as the name of my book on Everett Hall) partly in homage to Quine, but never with the idea either that philosophy is some sort of offshoot of the empirical sciences or that conceptual analysis is impossible, or even inappropriate. I take the “naturalization” of democracy as mostly a matter of taking prudential values (which are, of course, empirical items) to be essentially involved in what is fundamentally “good” about democracy. In fact, I am disdainful of any sort of naturalization of democratic theory that concentrates on empirical outcomes.
Ψ And it wasn’t just Austin. As the precocious Anthony Kronman pointed out when he was still in law school at Yale, “Kelsen defines ‘sanction’ (much as John Austin did) as ‘the forcible infliction of an evil,’ or ‘the forcible deprivation of a value.’ Hart recognizes Kelsen’s similarity to Austin. He fails, however, to see his own similarity to both.” Kronman concluded his article (“Hart, Austin, and the Concept of a Legal System: The Primacy of Sanctions” (1975) by noting that “a particular picture of law, in which physical sanctions are given a preeminent place, continues to exercise over the imagination of even the best legal philosophers.” (It’s an excellent paper, but I must say that I don’t know what the “even” in that last line is intended to convey!)
⤧ In these fraught times for democracy, it might be mentioned that, at least at first glance, the features Himma picks out as comprising the requisite competence seem to line up nicely with the limits of what any polity should be allowed to require of its voters. And this suggests to me that the UK’s regional experiments to lower the minimum voting age in certain elections is a significant step forward.
⤋ One will occasionally have to untangle passages like this: “The idea that mandatory moral prescriptions necessarily give rise to objective exclusionary moral motivating reasons might seem plausible inasmuch as we conceive moral obligations as giving rise to moral motivating reasons that trump prudential motivating reasons. But a second-order exclusionary moral motivating reason is needed to neutralize countervailing first-order prudential motivating reasons only when those first-order reasons to perform some wrongful act objectively outweigh the first-order motivating moral reason to abstain from its performance.” Hardly easy-peasy, but as Spinoza taught, All things excellent are as difficult as they are rare.
About the Author
Walter Horn is a philosopher of politics and epistemology.
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