The Pure Types of Legitimate Authority

I think she was confused about the formal nature of authority in the Republic in which she lives rather than about the nature of legal-rational authority. After all, authority in the UK is classified as legal-rational, but they swear an oath of allegiance to the head of state:

“I…..swear by Almighty God that I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth, her heirs and successors, according to law. So help me God.”

Yes, but the Queen cannot personally order her Government to do anything at all. So although the oath of loyalty is to her personally, she cannot call on those who take it to carry out her personal desires. In her role as Queen she is not an individual with personal desires and intentions. She is effectively a personification of the unwritten Constitution.

Wait — I’m going through all this work of getting a PhD, and even if I end up getting a job at the other end, I’m not going to have free car-washing service? What the hell has happened to academia?!

My undergraduates get introduced to this issue via the question, “Why can I require that you write a term paper but not require that you wash my car?”

And for those who can’t answer the question the next assignment is presumably “Wash my car!”

Even “personal” isn’t quite right – observe “to Her Majesty Queen Elizabeth, her heirs and successors”. So it’s to ‘The Crown’ as a continuing symbol, rather than merely to the present monarch.

“Yes, but the Queen cannot personally order her Government to do anything at all.”

I thought the point was that formally, in fact, she can; it’s just that conventionally, she doesn’t. Convention is a source of law, and it constrains her, but it’s defined by practice, so it’s status would presumably become a little unclear if she were to breach it… at least until the government told her to sod off.

Of course, I could be completely wrong. This stuff always confused me.

Conchis, you are pretty much correct there. As for if she ever tried to seriously breach the current constitutional settlement, well, there is some history there. Kings/monarchs who really really take the piss have been known to get into hot water. The English Civil War springs to mind, and that was far from the first time that an English king has been pressured if he tries to get above his, erm, station.

Maybe you can’t get your undergraduates to wash your car, but what about your grad students? My brother certainly did plenty of unpaid childcare for his advisor’s kids when he was doing his PhD at Columbia.

(Of course this isn’t really a counterexample, since no one would call grad school a bastion of legal-rational authority…)

13: “The most interesting thing about King Charles the First is that he was five foot six inches tall at the start of his reign, but only four foot eight inches tall at the end of it”

Not to lecture you British citizens on English history, but the key is not the English Civil war, but 1688, with Parliament changing monarchs by statute rather than by decaptitation. Hence:

I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth, her heirs and successors, according to law.

Bush might have one, but Cheney has at least two.

I’m obviously not going to ask Ms. Taylor for a review article of The Morality of Freedom or anything, but it’s really not hard to give her position a philosophically respectable formulation. She believes the constitution to lay down authoritative directives. But sometimes these directives are unclear. So she also believes federal courts have either legal authority to command obedience to directives even if contrary to her understanding of the constitutional norms [within limits, no doubt] or epistemic authority over the proper articulation of those norms [again within limits], or some combination of both. But, crucially, she does not believe this of the Senate. Or, if she does, she believes it to be trumped by the authority of the president. Now, it would be hard to sustain a claim of presidential legal authority to go against clear constitutional directives, even in a limited sense, as one might allow to courts, but it’s not hard at all to imagine accepting Presidential epistemic authority in interpreting ambiguous norms, especially over certain ‘political question’ areas.

So, Taylor-prime says “my oath is to the constitution, but that constitution might confer an executive privilege that nullifies your legal right to my testimony in these matters. It’s plausible enough that I feel I must defer to the president’s epistemic/interpretive authority about his constitutional powers, until this matter comes before a federal court, whose judgment I will then accept without question.”

I think even Taylor-prime would be wrong, but she would hardly be guilty of straightforwardly misunderstanding legal authority.

Ms. Taylor just remembered what that other guy said:

Well, when the President does it, that means that it is not illegal.

Or to put it in a slightly more formal way:

ii. The President of the United States is hereafter and should by all subjects be held and revered as the pre-eminent and highest head here on earth above all human laws and as one that no other head or judge feel above in either spiritual or temporal matters except God.

iii. Thus the President alone should have the highest power to decide acts and regulations after his own good will and pleasure, to declare, change, expand, reduce or even annul previous acts given by him or his ancestors, with the exception of this Constitution which as the true foundation of this Commonwealth shall stay unchanged.

iv. The President alone shall have the highest power and authority to appoint and dismiss all civil servants, no matter their position, name or title, after his own will and pleasure, so that all offices, whatever their authority, derive from the sovereign power of the President.

Okay – that was actually my (amended as necessary) translation of sections ii-iv of the Danish Royal Act which regulated the power of the Danish King between 1665 and 1848. The point is that legally legitimacy could go together with the claim of absolute power.

(And yes: To me Bush43 and Cheney appear very pre-1789.)

The Royal Act (in outdated Danish)

X trapnel – the privilege is the executive’s, and it is for the executive to protect. If the president has failed to seek a judicial order barring enforcement of the subpoena, then Taylor has a legal duty to testify. She has no right to refuse to testify based solely on a lawyer’s letter.

Well, that ‘according to law’ bit may be what MPs and other government officials have to say, but your Tommie owes his allegiance to Her Majesty, viz:

I swear by Almighty God that I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth II, her heirs and successors and that I will as in duty bound honestly and faithfully defend Her Majesty, her heirs and successors in person, crown and dignity against all enemies and will observe and obey all orders of Her Majesty, her heirs and successors and of the generals and officers set over me.

The Royal Navy, having been created by royal perogative, is assumed to be loyal to the monarch, and its members don’t have to swear this oath.

Howsabout we just rent “Johnny English” and let John Malkovich explain to us just what the Queen can and cannot do?

Howsabout we just rent “Johnny English” and let John Malkovich explain to us just what the Queen can and cannot do?

I don’t remember that bit, but To Play the King provides a good object lesson.