Arguing from Authority

Arguments from authority, it is commonly held, have “a special place in law”. Not only are they seen as omnipresent and ineliminable in legal argumentation, but their presence is also said to reveal deeper features about law and legal authority itself. This chapter examines the form and substance of such arguments: the considerations that appear in them and the link between the premises and the conclusion. To do so, I survey competing models of arguments from authority and discuss their plausibility. I then propose what I hope to be a more accurate picture of arguments from authority, which I call the “deductive model”. The deductive model reveals that successful accounts of arguments from authority are tied up with substantive theses about authority and authoritative statements, and that modelling arguments from authority can hardly be done in an ecumenical, non-committed way. After discussing the model, I explain how it can make sense of the difference between appealing to binding and to persuasive legal authorities, and why and when arguments from authority in law go wrong.