Authority and Methodology: Can Theories “Come out Negative”?

This article considers which methodological factors might be relevant in developing and defending accounts of law’s authority. It examines whether it should “count against” theories of authority that they “come out negative” in various senses —for example, that they contend that law has little, or none, of the authority that it claims to have. In its opening sections, the article considers whether there is an uphill explanatory task for theories which reach conclusions about the character and extensiveness of law’s authority that are significantly at odds with beliefs held about law’s authority by those living under and subject to law. As the discussion proceeds, it then explores whether theories of law’s authority that hold that there are gaps between: (1) the authority law claims, and the legitimate authority that it actually possesses, and (2) law’s ideals, and its ability successfully to live up to those ideals, are problematic, and whether such accounts should consider ways in which the apparent gap(s) can be closed. The discussion concludes that while it should not, as a general methodological precept, count against theories of law’s authority that they reach negative conclusions in certain respects, that nonetheless such conclusions have relevance for evaluating the success of such theories, and may impose on them explanatory burdens of a certain kind.