Pre-emptive reasons, dispositions, and the authority of law

Abstract

The paper critically considers Noam Gur’s rejection of the pre-emption thesis with regard to law. In doing so, the paper distinguishes between two objections towards an analysis of law’s claim to authority on the basis of pre-emptive reasons: the objection that the pre-emption thesis fails to account for some cases of justified disobedience and the objection that the pre-emption thesis fails to account for law’s bearing on practical reasons, more broadly. The paper explains why the first objection is a serious challenge to the pre-emption thesis but argues that the second objection appears not to be devastating for the pre-emption thesis particularly if we take into account the significance of customary rules for the authority claimed by the officials of a legal system. The paper also defends the plausibility of a non-content-based assessment of the authoritativeness of some legal directives in court and a determination of their scope of exclusion through judicial interpretation. The paper concludes with remarks on the originality of Gur’s dispositional model —an account of the normative force of legal directives that calls attention to law’s bearing not only on reasons but also on its subjects’ disposition towards it— and stresses the incompatibility of the dispositional model with the pre-emption thesis.

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ORCID for Haris Psarras: orcid.org/0000-0003-2473-4335

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