Joshua Keton

DISSERTATION

Language, Legitimacy, and Law: The Social Roots of Political Obligation

The value of the rule of law plays a central role in discussions of justice, political legitimacy and democracy. An intuitive position has it that government by law is best accomplished by written laws, publicly promulgated, adjudicated by an independent court system with no direct stake in political power.  Implicit in this understanding is the notion that the content of a system of law is determinate enough that it can be interpreted and applied to specific cases by impartial officials. Simultaneously, modern legal systems are replete with deep and sometimes irreconcilable differences in interpretation of the law.  How do we reconcile this intuitive understanding of the nature of law with this commonplace feature of legal systems? I argue that we need to radically rethink our best theories of jurisprudence in light of our best theories of language.  Moreover, I think that once we have a clear understanding of the way that linguistic and social considerations structure the constitution of the law, we must radically rethink the relation of the rule of law to other political values—especially its relation to democratic theory and political legitimacy. I demonstrate this need by showing that once the limitations of law’s determinacy are fully understood it becomes clear that institutions of judicial supremacy suffer significant democratic deficits that cannot be made good by the traditional arguments about the judiciary’s role as a protector of minority rights or vanguard of political morality.

Committee: Carol Gould (advisor), Virginia Held, and Stephen Neale

Expected Defense Date: March 2019