Office-holding and officiality

Abstract

Abstract:Much of positivist jurisprudence and public law theory celebrates an idea of the ‘legal official’ as one appointed and identified by law to claim and wield law’s powers over subjects. That idea treats the official as the holder of an office constituted by law and so relies heavily upon law’s fabricated normativity and its insulation from social and moral normativity. This article challenges that view by drawing a distinction between ‘law’s offices’ and ‘officials of the law.’ More precisely, it distinguishes the status of office-holding under the law from the moral standing of ‘officiality’ carried by officials of the law and transmitted through practices of recognition of the role of official. The article challenges positivist orthodoxy to account for the moral standing that recognition carries into the role of official, alongside the institutional rules of office. In a response to John Gardner’s work on ‘officials of the law,’ which insists upon the morally laden role of official but avoids an over-moralized account of law’s normativity, I argue that recognition generates and carries moral normativity within and between the roles of official and subject in a way that inserts such recognition, and the role of official, into the story of law’s normativity.