Dissenting Authority

This essay explicates J.B. White’s rhetorical conception of authority as a potentially collaborative achievement and contrasts it with the conception of authority as surrender of judgment prevailing in legal philosophy. On White’s view, authority is not an instrument held and deployed, but is conferred, like respect. This conception of authority illuminates three puzzles concerning the relationship between dissent and legal authority. First, Legal Positivism’s purportedly descriptive account of law insists it must claim an authority to govern independent of justice and assent. Yet law’s language is replete with justice-based appeals for popular assent. White’s reading of the practice of legal authority better explains this evidence. Second, liberal moral philosophers often take value dissensus as evidence that legal authority is necessarily illegitimate. Yet the language of radical dissenters often makes an appeal for legal authority rather than anarchy. White’s conception of legal authority as a practice of public reason better accounts for radical aspirations to claim authority. Third, a conventional account of precedent implies dissents are pointless, because they can have no legal authority. Yet White’s conception of authority as collaborative engagement explains how dissenting voices contribute authority to law. Law earns our allegiance by remaining open to contestation, and by inviting rather than repressing our critical judgment.