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Legal positivism, inclusive versus exclusive

DOI
10.4324/9780415249126-T064-1
Published
2001
DOI: 10.4324/9780415249126-T064-1
Version: v1,  Published online: 2001
Retrieved April 21, 2021, from https://www.rep.routledge.com/articles/thematic/legal-positivism-inclusive-versus-exclusive/v-1

4. Raz’s authority argument

According to Raz, it is in the very nature of a legal system that it claims justified practical authority over a population. If this claim is to be intelligible, a legal system must be the kind of thing that is capable of exercising authority. But what is it to have authority? In answer, Raz develops the ‘service conception of authority’ (Raz 1985a, 1985b). Consider the following. Each of us is constantly faced with the question: What should I do? In answering this question, we often appeal to reasons for doing one thing rather than another. Typically, these reasons are either prudential or moral. Let us call these ‘first-order reasons’. In many situations, we weigh the applicable first-order reasons against each other and decide on the basis of the balance of reasons. In so deciding we view ourselves as acting in accordance with ‘right reason’. Sometimes, however, reason suggests that we should not ourselves attempt to act directly on the balance of first-order reasons. This is where authority comes in. Sometimes right reason dictates that we act in accordance with a second-order reason which reflects someone else’s judgement about the relevant first-order reasons. Often the relevant second-order reason will be a directive issued by an authority, say a financial counsellor if we are making investment decisions, or a priest if we are attempting to answer a difficult moral question. On Raz’s account, Y is justified (normally) in accepting X’s directives as authoritative when Y is more likely to act in accordance with right reason by following them than by attempting to act directly on the balance of first-order reasons. Authority provides a kind of second-order ‘exclusionary reason’ – a reason which excludes, and replaces, the relevant first-order reasons. In Raz’s view, it is the normal role of an authority to provide this ‘service’ – to issue such second-order reasons reflecting the proper balance of first-order reasons.

It follows from Raz’s account of authority that, if the law is to be capable of having the authority it necessarily claims, its directives must be second-order reasons intended to replace the first-order reasons which apply to its citizens. But why would one want a legal system whose directives replace first-order reasons? There are two principal reasons. First, sometimes we all have first-order reasons to contribute to the realization of certain public goods – e.g., education, health care and security. Were each of us to act independently in pursuit of such goods, the likely result would be total failure. Their realization requires a kind of co-ordinated, collective action that is almost impossible to achieve in the absence of public institutions created and governed by law. Thus we are often better able to achieve our collective goals if we act on the basis of second-order reasons established by publicly accessible and enforceable legal directives. When these directives are well designed and administered, we are far more likely to achieve what right reason demands of us – the provision of decent levels of education, health and security – if we follow the law’s directives instead of trying to act individually on first-order reasons without the law’s coordinating framework. In such circumstances we are justified in submitting to the authority of law. A second reason for wanting a system of legal directives is that the law sometimes does know best, or at the very least has the time, energy and resources to determine what is best. Just as I might be justified in acting on the advice of my financial advisor instead of attempting myself to divine the mysteries of the market, I might be justified in being guided by the law’s attempt, on our behalf, to discern the relevant requirements of right reason.

Now comes a crucial step in Raz’s authority argument. If authoritative legal directives are to serve their role in guiding us on the path to right reason, the identification and interpretation of them cannot depend upon our considering the first-order reasons they are meant to replace. But this is precisely what happens, raz thinks, if we accept inclusive legal positivism. A statute, as a second-order, authoritative directive is meant to replace whatever reasons of prudence and morality apply to us in the situations over which the statute governs. But if its identity as a valid legal directive depends on its conformity with a moral principle like fairness – a moral reason – then its identity as an authoritative directive will depend on the very reasons it was meant to exclude and replace. We will have to deliberate on at least some of those first-order reasons to determine whether the statute is valid and therefore authoritative. But if so, then we might just as well have dispensed with the statute altogether and instead acted directly on the relevant first-order reasons, including fairness. Hence, Raz concludes, inclusive legal positivism is incompatible with the authority of law. Inclusive positivists have mounted vigorous and multi-faceted replies to Raz’s authority argument. Coleman and Waluchow point out, for example, that the moral reasons replaced by a legal directive need not be identical with the moral factors invoked to challenge its validity (Coleman 1998; Waluchow 1994, 2000). In its landmark abortion case (R. v. Morgentaler [1985] Supreme Court Reports 30), the Canadian Supreme Court declared Canadian Criminal Code rules governing abortions unconstitutional because they violated the moral rights to procedural fairness guaranteed by the Charter. But whatever the first-order moral reasons underlying those abortion rules might have been (e.g., a right to life versus rights to bodily integrity and autonomy), they were not reasons of procedural fairness. Coleman further attempts to meet Raz’s challenge by distinguishing between two functions of a rule of recognition: an identification function and a validation function, suggesting that Raz’s authority argument requires only that the rules for identifying valid law employed by ‘ordinary folk’ make no reference to excluded moral reasons (Coleman 1996, 2001). Since a rule of recognition is seldom used by any ordinary person to identify valid laws, the fact that it might require appeal to excluded first-order reasons poses no threat to the law’s authority. Waluchow, for his part, takes direct aim at Raz’s conception of authority, arguing that there is nothing in the nature of an authoritative directive which precludes us from ever consulting any of the relevant first-order reasons. It is possible that at least some of the relevant first-order reasons might in various ways figure in attempts to determine the identity and content of a directive which remains authoritative nevertheless (Waluchow 1994, 2000). Authoritative guidance can be partial guidance.

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Citing this article:
Waluchow, Wilfrid. Raz’s authority argument. Legal positivism, inclusive versus exclusive, 2001, doi:10.4324/9780415249126-T064-1. Routledge Encyclopedia of Philosophy, Taylor and Francis, https://www.rep.routledge.com/articles/thematic/legal-positivism-inclusive-versus-exclusive/v-1/sections/razs-authority-argument.
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