Authority Theory - Education Law
Authority is a ubiquitous term, used commonly to refer to those who can command obedience and have decision-making power, either as individuals or as officials acting on behalf of agencies. In the West, the sources of law and authority of the state originate in the growth of parliament through statutory law and judicial shaping of common law, in the form of cases, statutes, regulations, or decisions of administrative bodies. Regulations, in the form of rules or orders issued by an agency of government, have the force of law and are authorized by statute. Mandatory authority is binding: It must be followed. Persuasive authority may be used to convince a court to apply the law in a particular direction; for example, decisions of higher courts are more persuasive than those of lower courts. In the administrative realm, persuasive authority is used to convince those higher in the hierarchy, for example, at the executive level, to interpret and apply policy in a particular manner. These instruments or sources of authority serve as the legal basis of social institutions, provide the basis of their legal power, define their mandates and obligations, define limits to their authority, and define limits to the authority of those who are delegated to act on their behalf.
Source of Validity
Law is also a normative social practice; in addition to morality, religion, and social conventions, it guides human behavior and provides reasons for action. The basis of legal authority lies in the type of validity, that is, the source of the norm enacted by a particular political institution or the norm’s content; its justification concerns the moral legitimacy of law, providing the reasons for acknowledging its authority. Two main traditions exist in Western law.
The first, and older, dating back to medieval scholarship, is natural law, which claims that legal validity is derived from moral content rather than social origins. According to this theory, the authority of at least some legal standards necessarily derives, at least in part, from moral standards. Contemporary natural lawyers have suggested a more subtle interpretation of its main tenets—that natural law provides an elucidation of an ideal of law in its fullest or highest sense, concentrating on the ways in which it necessarily promotes the common good as a complement to positivistic law.
The second tradition, legal positivism, originating in the work of Jeremy Bentham, claims that legal validity is determined by social facts involving two claims. First, the social thesis asserts that law is a social phenomenon and that its conditions of legal validity consist of social facts; it is an instrument of political sovereignty or social conventions. Second, the separation thesis maintains that there is a conceptual separation between law and morality, that is, between what the law is and what the law ought to be. Joseph Raz’s support for legal positivism rests upon arguing that the law is an authoritative social institution, in other words, a de facto authority not requiring other grounds for its validity.
Two additional perspectives influence legal theory and practice. Legal realism maintains that law should be understood as the actual practice of courts, law offices, and police stations rather than as statutes and treatises. Legal interpretivism claims that the authority and validity of law is not found in data or sets of facts but in the morally informed constructions of legal practice. A strong proponent of this last approach is Ronald Dworkin, who grounded his antipositivist legal theory in the interpretative nature of law, arguing that determining what the law requires in each case involves interpretative reasoning, which involves evaluative considerations resulting in an inseparable admixture of fact and evaluative judgment.
Application to Education
These various traditions have significant, although possibly subtle, effects on authority in education and the nature of arguments made for authority claims. Depending on the source for legal auhority—whether it is higher order moral or educational values grounded in sociopolitical values, the judicial system, the collective institutional actors with statutory powers, or actual administrative practice with delegated powers—differing groups of actors will be accorded legitimacy in policy formulation and its implementation. This affects the autonomy and authoritative powers of state agencies—such as departments or ministries, regional bodies such as school boards, or governing bodies at the local or school level—and the degree of collaboration required in determinations.
Challenges have recently emerged to these traditions. One challenge in particular, feminist jurisprudence, critiques the assumption of male authority in creating the language, logic, and structure of the law. It aims to erase gender-based distinctions in the law on issues regarding competition in the marketplace, labor relations, and violence against women through redressing inequalities, and for some, emphasizing the importance of relationships, context, and reconciliation over abstract principles of rights and logic. This critique can be extended to cover multicultural and other equity groups. A broader international critique, explored, for example, by Jennifer Beard and Sundhya Pahuja, questions the traditional moral and rights basis of international law, which it sees as rooted in colonialism and imperialism as sources of authority.
The implications for educational law are that both the participants and the values informing legal process change, in many cases devolving authority down from the state to community groups. This entails a more complex authority landscape uneasily shared by the state, equity groups, ethnic or cultural groups, and other forms of societal authority or interest groups, including religious organizations. For many jurisdictions this has meant a shift from a more authoritarian practice dominated by the state toward a pluralistic civil society model.
Weber and Bureaucracy
The most important and comprehensive theory of authority is that of Max Weber (1864–1920) who proposed a theory of legitimate authority or domination (Herrschaft) that reflects all possible grounds upon which authority can be justified by the values that individuals hold. This produced a schema of three ideal or analytic, not empirical, types: traditional authority, derived from habitual social institution practices; legal-rational authority, grounded in formal logical principles; and the charismatic, arising from the extraordinary characteristics of an individual. Actual empirical reality is composed of varying admixtures of these pure analytic types, although one may be dominant for a period of time.
Most important for modern societies is the legalrational, as Weber viewed it having permeated social institutions to the degree that other sources of value are excluded, producing the “iron cage” of bureaucratization. This is accompanied by a condition of “disenchantment,” or a hollowing out of values other than calculable efficiency and effectiveness, resulting also in a spirit of managerialism replacing value-laden professionalism. The final consequence for authority is a less deferential attitude toward policy expertise and a more slavish adherence to the new fashion of “entrepreneurial leadership,” directed in valuation terms toward cost-benefit analysis as a higher-order value.
In most societies, educational institutions, even at the university level, have become heavily bureaucratized, exacerbated by economic rationalism through the corporatization and commercialization of education. Traditionally, public education was dominated by state bureaucracy, with all the attendant bureau-pathologies that entails, producing a top-down obedience to state and state-delegated authority, in other words, bureaucratic officials. More recently, since the advent of the New Public Management vision in the early 1980s, economic values, accompanied by their respective accountability and information systems, serve as a primary source of authority, elevating the marketplace to an authoritative position in policy and decision making. This is reflected and enforced in changing legislation and policy as well as in staff appointment qualifications to accommodate this transformation.
The consequence for education is a culture in which traditional values of knowledge and the public good—including such principles as academic freedom, guided authority, and its practice—has been replaced by a managerialism grounded in economic competition and the authority of the marketplace.
Eugenie Angele Samier
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