Law’s spacio-temporal aspect
In one conspicuous sense, however, the law is very much unlike fiction and most other expressive artifacts: it is authoritative. And it is authority' backed by force, closely tied to actual political sovereignty'. It is precisely because the law is authoritative that the legal prefix is jurisdictional. Practical authorities, in general - whether backed by force or not - are authorities only relative to their jurisdiction. Jurisdiction is something that defines the scope of an authority’s normative powers, answering the question of what are the issues on which an authority' gets to decide and with respect to whom (and both are relative to a time frame, of course). There is no practical authority' without some jurisdictional boundaries. Now, this is not the place to develop a theory' of practical authority' to substantiate these claims, I have done that elsewhere.30 But I need to recap some of the main points I made in developing an institutional conception of authority' to help us see the relevant connections here. The main argument is that the answer to the question of what it is to have a practical authority is a three-stage affair. To have practical authority' is to have normative power in some systematic sense; power, in this systemic sense, must be granted or constituted by norms - that is, some rules or conventions; and such power-conferring norms are essentially institutional - that is, they' form part of some institution or social practice. Notice that these three conditions only' pertain to what it is to have authority. They do not bear directly on any question of moral legitimacy or moral reasons to comply' with any putative authority’s directives.
Normative power is not necessarily' systematic in the sense in which authorities have power. Practical authorities, however, have much more complex normative powers. To be a practical authority is to have powers to choose from a range of options whether and how to introduce changes in the normative landscape that prevails in the area of one’s authority', and this kind of power is complex: it typically includes choices about how to introduce a change, who is subject to it, how to monitor non-compliance and how to respond to it, how to modify' the directives if need arises, etc., etc. In other words, authoritative powers are inevitably complex, constituted by a set of interlocking norms, defining who gets to have the power, the content and scope of the power, ways in which it can be exercised, ways in which it can be enforced, and other auxiliary matters. And these kinds of things can only be constituted by rules or conventions.
In previous work I argued that the only kind of rules or norms that can confer these kinds of powers on authorities are social or institutional rules. Practical authorities must operate within some social practice or an institution that grants them the kind of normative powers they have.31 However, even if you doubt that this is necessarily the case, I hope you would see it as unproblematic to concede that the de facto authority of law is entirely practicedependent, at least in this limited sense. Namely, in the sense that there is no legal authority without it forming part of a complex social practice in which it operates and which grants it the normative powers that it has. And I hope we can also see that it is precisely this practice dependence of authorities that grounds the idea of jurisdiction. Authorities can only obligate those who belong to the practice or institution that grants them the powers they have. Practical authorities’ normative powers are always limited to the particular jurisdiction in which they have those powers.
Necessarily one can only have jurisdiction at any given time relative to some population. Authoritative powers are always relative to those who are subject to the normative powers in question, which is to say, confined to the people who participate, voluntarily or not, in the social practice that grants the authority the powers it has.32 But in the legal case, normative powers meet brute power; legal authority is the kind of authority that is backed by force - brute force, I mean -and that tends to make legal authority territorial. The exercise of brute power over people, especially on a larger scale and over some extended period of time, tends to be very closely associated with control over territory. Which is to say that legal jurisdiction is, practically speaking, almost invariably territorial.
I don’t think that I made any philosophical news here. Nor would it be surprising to hear that none of this territorial stuff applies to other expressive artifacts, like fiction. Fiction has nothing to do with practical authority, and it certainly has nothing to do with brute force. Fiction has no jurisdictional aspects. But other intangible artifacts do have some jurisdictional elements. Structured competitive games tend to have clearly demarcated jurisdictions; they have boundaries. The boundaries typically demarcate terms of participation; they draw the line between participants and observers, and things like that. And then, of course, many religions have jurisdictional elements, partly because they purport to be authoritative, and partly due to legalistic or quasi-legalistic aspects of the religion. In short, I don’t think that the jurisdictional aspect of law is all that unique to it; other expressive artifacts may exhibit similar aspects. What is unique to law, however, as an expressive artifact that purports to exercise practical authority over people, is its close connection to, or even dependence on, brute force. Law is the kind of expressive artifact, maybe the only kind, that is forced on us by brute power.
Law and political sovereignty are difficult to separate. And this makes the law not just authoritative fiction; it makes it fiction backed by force. A strange thing this is, but the law is a strange kind of artifact and, in some respects, rather unique.
