The Pure Types of Legitimate Authority

by Kieran Healy on July 12, 2007

Sara Taylor is confused about the nature of legal-rational authority. Via “Matt.”:

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?” It’s not hard. The problem, as Chick Perrow remarks somewhere, is that even in well-run bureaucracies there’s always a tendency for the person or people at the top to act as though they own — and sometimes really believe they own — the whole organization, even though this shouldn’t happen.



Mike Otsuka 07.12.07 at 1:49 pm

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.”


Kieran Healy 07.12.07 at 1:56 pm

Fair enough, though that “according to law” is not there by accident.


JR 07.12.07 at 2:08 pm

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.


engels 07.12.07 at 2:21 pm

I think JR is right. Swearing a personal oath of allegiance to the Queen (symbolic head of state) is a very different thing from swearing a personal oath of allegiance to the President (effective head of state), isn’t it? Or perhaps I’m missing the point.


Adam Kotsko 07.12.07 at 2:35 pm

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?!


dsquared 07.12.07 at 2:35 pm

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?”

hmmm, who negotiated your contract?


engels 07.12.07 at 2:42 pm

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!”


John Emerson 07.12.07 at 2:42 pm

I know of a JC teacher who gave a student special-project credit for laying linoleum in the teacher’s kitchen.


dearieme 07.12.07 at 2:44 pm

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.


abb1 07.12.07 at 2:58 pm

I hear they serve to pleasure the president. Or something.


conchis 07.12.07 at 3:13 pm

“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.


Anderson 07.12.07 at 3:31 pm

4: Bush is head of state (like the Queen) and head of government (like Gordon Brown).

The comparison that struck Godwin-averse me, of course, was to this.

“I swear: I will be faithful and obedient to Adolf Hitler, Führer of the German Reich and people, to observe the law, and to conscientiously fulfil my official duties, so help me God.”

That seems to be the kind of oath that Ms. Taylor mentally swore to.

(What “God” meant in that sentence is a bit of a mystery to me.)


Katherine 07.12.07 at 4:14 pm

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.


Mike 07.12.07 at 4:16 pm

The Queen is also commander-in-chief of Britain’s armed forces, all of whose members swear allegiance to her.

It would be fun to see what would happen if she decided to order them all out of Iraq and back to the UK — oh, and to pick up Tony and drop him off at the Hague while they’re at it.

Would Parliament really do anything with virtually the entire country cheering her on?


lemuel pitkin 07.12.07 at 4:16 pm

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…)


Kieran Healy 07.12.07 at 4:31 pm

Grad students are of course subject to feudal rather than modern conceptions of authority.


Doug 07.12.07 at 5:00 pm

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”


c.l. ball 07.12.07 at 5:40 pm

Sadly, there is a high dose of quasi-charismatic notions of authority in US politics. There’s a good dissertation to be written — if it already has, I don’t know about it — on the concept of ‘loyalty’ in US politics, especially to presidents. Talk of loyalty is disturbingly frequent in both parties.
My guess is that it develops in campaigns when candidates’ charisma rather than their policy positions seem to drive support for them.


rea 07.12.07 at 5:42 pm

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.


~~~~ 07.12.07 at 6:06 pm

Isn’t the difference that Elizabeth has two bodies and George W. Bush only one?


Adam Kotsko 07.12.07 at 6:31 pm

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


dearieme 07.12.07 at 7:04 pm

rea, yes, most of us know that our monarch is not appointed by Divine Right, but by an algorithm defined by an Act of Parliament. Though, come to think of it, the youngsters may need instruction on this since they went to school after The Progressives buggered the schools up.


X. Trapnel 07.12.07 at 7:22 pm

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.


abb1 07.12.07 at 7:39 pm

The logic behind this thing is simple: president has the power to
1. declare anyone ‘illegal combatant’ and jail him/her indefinitely and
2. pardon anyone convicted of any crime (contempt of congress, for example).

Stick with the president (or, as they say, ‘never go against the family’), it’s a no-brainer.


Jacob Christensen 07.12.07 at 7:57 pm

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)


engels 07.12.07 at 7:59 pm

Anderson – Fair enough, I shouldn’t have expressed it like that. But the point is just that while Bush possesses effective power the Queen only possesses theoretical power, so swearing an oath to Bush, while formally the same as swearing an oath to the Queen, seems likely to have a different meaning.


JR 07.12.07 at 8:01 pm

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.


X. Trapnel 07.12.07 at 8:10 pm

Jr: from Taylor-prime’s perspective, executive privilege could well exist even if the executive is unwilling, for whatever reasons, to demand court enforcement, just as a contract could be legally binding even if I announce that I’m not going to take you to court over it because I don’t want the publicity or something. From this perspective, Bush is being doubly-awful: telling Taylor that the matter is privileged, so that congress’ questioning is unlawful, and hence she has a constitutional responsibility to stay silent, BUT that the administration is unwilling to interpose itself between her and Congress in any helpful way.

Again, I think she would be wrong to attribute such interpretive authority to the president, it’s at least plausible. Her theory of authority is the *least* of her mistakes in philosophical judgment at this point in her career.


Mike 07.12.07 at 8:12 pm

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.


X. Trapnel 07.12.07 at 8:14 pm

Actually, forget it, I’m not even going to try to defend a hypothetical Razian Taylor at this point, not when the real Taylor pretty clearly has no commitment to constitutionalism. My apologies, folks.


fardels bear 07.12.07 at 9:09 pm

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


Dan Kervick 07.13.07 at 12:59 am

The thrust of most of the comments I’ve read on this issue is that, as a fanatical Bush loyalist, Ms. Taylor is just intellectually or emotionally confused on some level about the content of her oath of office.

Nobody seems to be considering the possibility that, in addition to her oath of office, Ms. Taylor might actually have required to sign a loyalty oath of some kind. I seem to recall some controversy in Bush’s first term about Janet Rehnquist attempting to force HHS staffers to sign a loyalty oath.


Mike 07.13.07 at 5:56 am

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.


jay bee 07.13.07 at 7:56 am

This started as an interesting strand but British constitutional law is such an incoherent mess that its no place to begin a discussion – was it Churchill that said there was nothing to stop Parliament passing a law that every first born male child be put to death? That’s the “according to law” bit.

19: If Parliament had lost the Civil War there would have been no statutes in 1688. Just as no state may secede from the Union not because of anything in the US Constitution or any decision of its Supreme Court but because of the decision in the great case of Grant (& others) -v- Lee (& others).

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