. . . is one of the best papers on this topic I have read in several years. The paper is highly recommended, forthcoming in the vol. 2 of the Oxford Studies in Philosophy of Law, and it can be found here. The abstract is:
Legitimate political authority is often said to involve a “right to rule,” which is most plausibly understood as a Hohfeldian moral power on the part of the state to impose obligations on its subjects (or otherwise to change their normative situation). Many writers have taken the state’s moral power (if and when it exists) to be a correlate, in some sense, of an obligation on the part of the state’s subjects to obey its directives. Thus legitimate political authority is said to entail a general obligation to obey the law, and a general obligation to obey the law is said to entail legitimate political authority. With some version of this idea in mind, many writers attempt to establish full (or partial) legitimate political authority by first arguing for the intermediate conclusion that there exists a general (or partial) obligation to obey the law. This article argues that such a strategy is fundamentally mistaken, because while legitimate authority does indeed entail an obligation to obey the law, an obligation to obey the law does not, in and of itself, entail legitimate authority. This can be referred to as “the reverse entailment problem.” To avoid this problem, a theory of political authority must argue directly for the existence of the appropriate kind of moral power on the part of the state. This article argues for the “value-based” conception of a moral power, which states, very roughly, that one person holds a power over another if there is sufficient value in the former possessing the capacity intentionally to impose an obligation on the latter (or otherwise to change her normative situation). This seemingly simple understanding of a moral power gives rise to surprisingly strong adequacy conditions on what can count as an acceptable theory of legitimate political authority, and these conditions decisively rule out most of the standard theories in the literature.