Fictions, Lies, and the Authority of Law discusses legal, political, and cultural difficulties that arise from the crisis of authority in the modern world.
Is there any connection linking some of the maladies of modern life—“cancel culture,” the climate of mendacity in public and academic life, fierce conflicts over the Constitution, disputes over presidential authority? Fictions, Lies, and the Authority of Law argues that these diverse problems are all a consequence of what Hannah Arendt described as the disappearance of authority in the modern world. In this perceptive study, Steven D. Smith offers a diagnosis explaining how authority today is based in pervasive fictions and how this situation can amount to, as Arendt put it, “the loss of the groundwork of the world.”
Fictions, Lies, and the Authority of Law considers a variety of problems posed by the paradoxical ubiquity and absence of authority in the modern world. Some of these problems are jurisprudential or philosophical in character; others are more practical and lawyerly—problems of presidential powers and statutory and constitutional interpretation; still others might be called existential. Smith’s use of fictions as his purchase for thinking about authority has the potential to bring together the descriptive and the normative and to think about authority as a useful hypothesis that helps us to make sense of the empirical world. This strikingly original book shows that theoretical issues of authority have important practical implications for the kinds of everyday issues confronted by judges, lawyers, and other members of society. The book is aimed at scholars and students of law, political science, and philosophy, but many of the topics it addresses will be of interest to politically engaged citizens.
Prologue: The Puzzling (Alleged) Disappearance of Authority
1. The Fictional Foundations of (Modern) Political Authority
2. Fictional Authority and the Problem of Constitutional Interpretation
3. Our Quasi-Fictional Government
4. From Political Fictions to “Living with Lies”
5. Authority and Faux Authority
6. Is Genuine Authority Possible?
Epilogue: Authority Outside the Cave?
Steven D. Smith, winner of the 2022 Religious Liberty Initiative Scholarship Award, is the Warren Distinguished Professor of Law, co-executive director of the Institute for Law and Religion, and the co-executive director of the Institute for Law and Philosophy at the University of San Diego. He is the author of numerous books including Fictions, Lies, and the Authority of Law (University of Notre Dame Press, 2021).
“It is hard to break new ground in thinking about the nature and practice of authority, but Smith’s book, with its introduction of the idea of a fiction into the existing understanding, does just that. And the book’s careful and creative use of multiple philosophical and social science disciplines is an added and unusual benefit.” —Frederick Schauer, author of The Force of Law
"In this provocative and illuminating work, one of our most insightful legal thinkers explores the nature of real authority. Steven Smith reveals that a loss of authority would be far from liberating. Instead he offers a hopeful account of how genuine authority exists and provides us with a firm place on which to stand." —Richard Garnett, co-editor of First Amendment Stories
"As he has so often in his previous work, Steven Smith leads us to see familiar concepts in a new light and brings to bear a wide range of disciplines to conversations about law and legal theory. In this work, our understanding of authority gets the Smith treatment, and the result is an imaginative and critical contribution to the literature on legal authority." —Michael P. Moreland, director of the Eleanor H. McCullen Center for Law, Religion and Public Policy, Villanova University
"As Smith argues, a good legal fiction must be both plausible and beneficial, else we have little reason to play along with it. But what makes the fiction plausible?" —Public Discourse
"[This book's] intelligence, clarity, and candor make it a ﬁne example of what a work of legal theory ought to be. Although legal authority has been much studied, Smith sheds new light on it." —The Review of Politics