Precedents all the way down: halakha as a common law system (part 2)
2. Formal and informal authority
In practice, if not in theory, all political systems involve both formal and informal authority. Formal authority is the authority of position or office - legitimate power someone (or a body) holds by virtue of occupying an official position or office in an organisation. Formal authority tends to be relatively clear cut - either the position has a power or it does not. A given decision is either binding or it is not, and this depends on who issued it. The status of a given rule as positive law comes from the formal authority to make laws; the status of a ruling as binding precedent for other courts comes from a court’s formal position in the court hierarchy.
Informal authority means power and influence (of individuals, bodies, or rules) legitimated by the norms, sentiments, and values of the organisation, society, or community. Informal authority is generally more indeterminate and subjective than formal power. The deciding criteria for possession of informal authority vary from case to case, and are often a matter of some debate (though they can become more definite through repetition and acceptance). However, lack of formality does not mean a rule is not binding or ineffective; for example, in a number of parliamentary democracies, the rule requiring the cabinet to resign if it loses the confidence of parliament is universally recognised as binding even though it is not written into law and was never legislated as such. As in that case, where a consensus emerges around a rule, it may be said to constitute a convention, and I term the informal authority of positions or rules which are widely accepted as conventional authority.1
The distinction between formal and informal authority is related to Dworkin’s rules vs. principles. A rule is an all-or-nothing proposition; if it is valid, it is binding. Rules, then, are always issued and validated through formal authority. Principles, by contrast, bear on a decision with a ‘variable weight or importance’ and may not be decisive. They are issued (or emerge) through informal authority. Where such a principle is backed up by a broad consensus, it has conventional authority. It is possible for an equilibrium to emerge where such conventional principles are applied very consistently indeed, even to such a degree that, in practice, they may seem to operate in a manner indistinguishable from a formal rule.
Authority can either be formal or informal, and its jurisdiction can be national or local. The formality of a decision is relative to which jurisdiction level of the system we’re talking about (here, I’m talking specifically about a judicial system). Formal rulings made at the national level (such as those made by the highest court) are almost always binding for lower courts, including local courts. National rulings therefore have ‘formal’ authority at the local level. On the other hand, decisions by a local court, though they have the formal authority of that court, they do not have formal authority or binding force over higher courts. For national-level judicial decision-making, or for local courts in other jurisdictions, such rulings have an informal kind of authority. Similarly, in judicial systems such as common law, where precedents matter, past decisions of a given court hold informal authority with regard to current decision-making of the same court, binding new jurisprudence (stare decisis), but ultimately not in a truly deterministic way. Finally, there are various sources with purely informal authority, including custom, social norms, legal opinions issued by prominent jurists, and works of legal scholarship. As we will see, most sources of law in halakha are either local (and therefore of informal authority outside the original jurisdiction where they were issued), or of the purely informal variety.
To be clear: conventional authority is a subset of informal authority.