Authority in law

Authority and Authorities

Virginia Law Review, Forthcoming

FREDERICK SCHAUER, Harvard University – John F. Kennedy School of Government

Although there is a rich jurisprudential literature dealing with the concept of authority in law, the lessons from this jurisprudential tradition have never been connected with the practice by which authorities – cases, statutes, constitutions, regulations, articles, and books, primarily – are a central feature of common law legal argument, legal reasoning, and judicial decision-making. This disconnect between thinking about the nature of authority and reflecting on law’s use of authorities has become even more troublesome of late, because controversies about the citation of foreign law, the increasing use of no-citation and no-precedential-effect rules in federal and state courts, and even such seemingly trivial matters as whether lawyers, judges and legal scholars should cite or rely on Wikipedia all raise central questions about the idea of authority and its special place in legal reasoning. In seeking to close this gap between the jurisprudential lessons and their contemporary application, this Essay casts doubt on the traditional dichotomy between binding and persuasive authority, seeks to understand the distinction among prohibited, permissive, and mandatory legal sources, and attempts to explain the process by which so-called authorities gain (and sometimes lose) their authoritative status.

 

Source:  LSN Jurisprudence & Legal Philosophy APS Vol. 9 No. 29,  08/15/2008

Wikipedian meeting in Egypt

Great, lengthy article in today’s Wall Street Journal about Wikipedians’ largest-ever meeting just held in Alexandria, Egypt, at the Bibliotheca Alexandrina:

Wikipedians Leave Cyberspace, Meet in Egypt

In Alexandria, 650 Devotees Bemoan Vandals, Debate Rules; Deletionists vs. Inclusionists

By James Gleick

“James Gleick is the author, most recently, of ‘Isaac Newton.’ He is working on a history of information.”

From the WSJ article:

. . .

Even without vandals, even without trolls and sock-puppets and other notorious malefactors, anarchy can always break out. Because everyone in the world has the power to edit, Wikipedia has long been plagued by the so-called edit war. This is like a house where the husband wants it warm and the wife wants it cool and they sneak back and forth adjusting the thermostat at cross purposes. One Wikipedian says “potato,” another says “potahto,” and they reverse each other’s edits ad infinitum. There have been edit wars over gods and edit wars over commas. “Betwixt” or “between”? Is the Conch Republic (aka Key West) really a “micronation”? Is it “Daylight Saving Time” or “Daylight Savings Time”? You may know the answer for sure; rest assured, a significant faction of humanity knows you are wrong and can prove it. At the end of 2006, people concerned with the “Cat” article could not agree on whether a human with a cat is its “owner,” “caregiver” or “human companion.” Invective was hurled. Over a three-week period, the argument extended to the length of a small book.

Anyone looking at the ebb and flow of edit wars may wonder how equilibrium can ever be established. Yet invariably factions reach accommodation, and articles tend to be, if not perfectly consistent, amazingly accurate. This, too, is part of the maturing of Wikipedia. All editors are created equal, but they don’t stay equal. There are unmistakable signs of hierarchy (another dirty word). A longtime trusted user can become an “administrator,” with special powers: to protect articles, to delete articles, and, in cases of vandalism or other bad behavior, to block other users. In Alexandria, as newbies mingled with old-timers, complaints were heard: The community has gotten less friendly; its organization is more “top down.” And who administers the administrators? There are “stewards,” “sysops” and “arbitrators.”

“It changes the dynamic, and think I miss the old days,” Kat Walsh, aka Mindspillage, a law student and Wikimedia board member, tells an introspective session called “Welcome to the Wiki-Cabal.” There’s no glory in adminship — “It’s like going around behind people and picking up the trash.” Articles get rated now, too: A “good” article must have met the “good article criteria” and passed through the “good article nomination process,” always subject to “good article reassessment.” Predictably, the emergence of hierarchy has demanded a structure of policy and rules.

. . .