Locating Authority in Law, and Avoiding the Authoritarianism of TextualismNotre Dame Law Review (2008)
AbstractMuch modern jurisprudence attempts to move the locus of authority away from people with authority in order to locate it instead, for example, in rules or texts. This article argues that authority, wherever it exists, is a quality of the actions of persons. The article mounts this argument by showing how Justice Scalia’s textualism is the legal analogue of a largely discredited form of “Christian positivism,” one that leads to a form of authoritarianism. The article goes on to argue that authorianism can be avoided only by individuals’ and their communities’ becoming authoritative, including in the making and enforcement of law. Relying on a fairly thick normative anthropology to identify what is authoritative, this article mounts a non-liberal critique of the conservative jurisprudential doctrine that lies at the core of the American cult of the Supreme Court.
Publication DateJanuary, 2008
Citation InformationPatrick McKinley Brennan, Locating Authority in Law, and Avoiding the Authoritarianism of Textualism, 83 Notre Dame L. Rev. 761 (2007).
Available at: http://www.heinonline.org/HOL/Page?handle=hein.journals/tndl83&id=771&collection=journals&index=