Introduction
You will recall from your study of Hart that one of the ways in which the law is not simply the ‘gunman’ situation writ large is that the law is regarded as having authority over its subjects, while the gunman has no authority over his victims. Joseph Raz is probably Hart’s most important intellectual heir, and much of his work has been on the nature of authority and the authoritative character of law. This work has been revolutionary in political and moral philosophy as well as in the law, but in the law its particular importance owes to the fact that, according to Raz, once the authoritative nature of the law is appreciated, then the connections between morality and law can be drawn more clearly, and this serves to vindicate many positivist theses about the law, in particular Hart’s claim that judges exercise discretion in hard cases.
Learning outcomes
By the end of this chapter and the relevant readings you should be able to:
u explain the paradox of authority and why Raz’s service conception of authority seems to point the way to a solution of the paradox
u explain Raz’s ‘normal justification thesis’ of authority, and say how authorities may be justified in issuing directives to their subjects, and how they may fail to justify authority over them
u say what an ‘exclusionary’ reason is, and explain how it works as a device of practical reasoning
u using examples, explain how one can draw a distinction between the
deliberative and executive phases of practical reason, and explain the force and scope of exclusionary reasons
u describe in step-by-step fashion how applying Raz’s theory of authority to the law results in the claim that the law cannot depend on moral truths, and that typical legal systems empower judges to exercise a discretion to make new law when the law makes reference to moral standards
u explain how, if Raz’s theory of the authority of the law is correct, soft positivism and Dworkin’s theory of law are undermined, and explain what possible responses soft positivists and Dworkin might make.
Essential reading
¢ Penner et al., Chapter 10: ‘The current debate’ pp. 427–72, or Freeman et al., Chapter 6: ‘Modern trends in analytical and normative jurisprudence’.
Jurisprudence and legal theory 8 Raz on practical reason and the authority of law page 101
8.1 The paradox of authority and Raz’s ‘service’ conception of authority
8.1.1 The paradox of authority
Authorities claim the right to tell us what to do or believe. A practical authority, like the law, tells us what to do, e.g. stop at red lights. A theoretical authority, like a physicist, tells us what to believe, e.g. that the universe is expanding. Often authorities have a mixed role of telling us both what to believe and what to do, because, for obvious reasons, how we act will often turn on what we believe. Thus a medical doctor is both a theoretical and practical authority, in that if you are unwell he will tell you both what is wrong with you (what to believe) and what drugs to take (what to do). Religious authorities are also typically mixed authorities, telling you what to believe about your God and what he (or she) wants, and therefore guiding your action. The paradox of authority claims that following an authority is irrational, and goes like this: if the authority tells you the right thing to do/believe, then you should do/believe that anyway for the reasons which make it the right thing to do/believe. So the authority’s saying it is the right thing makes no difference. And if the authority tells you to do/believe something wrong, then you shouldn’t follow the authority for that would lead you astray. The result is that authority seems to make no difference in any case: if the authority tells you the right thing, it is redundant, for what is right is right independently of anything the authority says, and if the authority tells you the wrong thing, then you should not listen to it. If this is right, then there is never a justification for following an authority. (People who accept this argument are called ‘philosophical anarchists’.)
8.1.2 The service conception of authority
The traditional solution to the paradox of political authority resorts to an idea about the legitimacy of power, but this solution is not very satisfactory in overcoming the paradox. The justification for political authority is thought to arise because, it is supposed (political anarchists would disagree with this), that things would be just much, much worse if there were no political authority at all. The most famous of these defences of political authority is that of Hobbes, who founded the legitimacy of the state on the supposed social contract by which men could escape the state of nature, the ‘war of all against all’. But even the legitimacy of democratic states, on this view, does not derive from the idea that the directives of democratic states are any less redundant when they tell us the right thing to do, and any less irrational to follow when they tell us the wrong thing to do. Although we may believe that democratic states are likely to get it right more often than autocratic states, the foundation of their legitimacy as authorities again turns on the idea that they are the least bad way of keeping social order, and perhaps of enhancing people’s life prospects. This is why these sorts of solutions are unsatisfactory;
none touches the basic issue, which is the rationality of following authorities.
Now, as an attentive reader, you might point out that the same sort of problem does not seem to attend the case of theoretical authorities. The reason you listen to a doctor is that he or she knows medicine and you don’t. Thus the doctor has an understanding of the facts about your condition that you don’t, and so it would seem perfectly rational for you to believe what he or she says about your condition. Indeed, it would be irrational of you to ignore the doctor’s advice, because you are serving your interests by learning what is wrong with you and how to deal with it. To ignore the doctor would be equivalent to ignoring what a medical textbook, which summarises centuries of laborious investigations by many people, says. Thus, if you are to act rationally in the case of your illness, you will have to rely on knowledge and understanding which you cannot acquire all by yourself. In this way, listening to the authority serves your interests in the only way your interests can be served, and to take advantage of the authority in this way is perfectly rational. This is the service conception of authority which Raz capitalises on to explain the rationality of following practical authorities like the law. For if the authority serves you by solving a problem that you are not able or likely to solve yourself then it is obviously not irrational to follow that authority, and this is so even if the authority sometimes gets it wrong, so long as it is likely to get it right more often than you are
yourself.
8.2 The ‘normal justification thesis’
8.2.1 The balance of reasons
Normally, when we reason about what to do (reason practically), we look at all the reasons to act one way rather than another, and decide on the ‘balance of reasons’. I may be hungry, and there’s a restaurant on the corner, which together indicate that I should get something to eat there, but on the other hand, the restaurant is expensive and I am skint† this week, and furthermore I am trying to eat healthily, and the restaurant only serves various combinations of grease, starch, and ground meat. I weigh up these opposing reasons, and decide what to do. Of course this is a simplified example, but the model of practical reason seems impeccable. The essence of Raz’s theory of authority is that an authority serves you by helpfully mediating between you and the balance of reasons that apply to your situation.
8.2.2 The normal justification thesis
A doctor mediates between you and the facts which medical science has revealed and which indicate how to handle your illness – the doctor doesn’t give you a short lesson in medicine, revealing all those facts to you (though a good doctor tells you what is wrong with you and gives you some idea of the nature of your condition); rather, he or she gives you a prescription. Similarly, a legislature considers all the reasons that apply in deciding, say, whether or not wills should be formalised by being written, signed and attested by two witnesses, and then passes a law one way or another, which everyone must now follow. An authority is legitimate when it actually serves you by mediating between you and the reasons that apply to you in this helpful way, and this is the normal justification thesis: an authority is justifiably an authority for you when you are more likely to act correctly on the balance of reasons that apply to you if you follow the directives of the authority than if you were to act on your own assessment of the balance of reasons.
Activity 8.1
It is clear how a theoretical authority like a doctor meets the normal justification thesis, for the doctor’s authority lies in his or her expertise. But the application of the thesis is not so straightforward in the case of the authority of the law. On what basis might the law be justifiably an authority over you? On the basis of expertise?
On some other basis? One of the things the law is said by many theorists to do is to solve ‘coordination problems’ by creating ‘conventions’, i.e. to lay down a common rule where no one particular rule is required but a common rule is, such as the rules requiring one to drive on the left side of the road in some countries, but on the right in others. What might give the law authority to criminalise rape and theft? To punish crimes like rape and theft? To make traffic regulations? To impose taxes? To require the wearing of safety belts?
Make notes on these questions.
Feedback: see end of guide.
Summary
The ‘paradox of authority’ states that it is irrational for anyone to follow an authority, because what is right to do or believe is never determined by what an authority says.
Raz’s ‘normal justification’ thesis purports to dissolve the paradox, by pointing out that it is rational to follow an authority if the authority is in a better position than you to understand the reasons that apply to you, an obvious example being the case of a doctor and patient.
† Skint: slang word meaning
‘having no money’; there are numerous slang synonyms for this.
Jurisprudence and legal theory 8 Raz on practical reason and the authority of law page 103
8.2.3 The scope of authority
It is one of the features of Raz’s account of legitimate authority that the law does not have equally justified authority over all of its subjects in all areas of law. It would, for example, have no justified authority over a road safety expert regarding the wearing of safety belts. And it may have very little authority over any of us when it purports to lay down laws concerning sexual morality. Some view this as a defect of Raz’s account, for the law appears to claim equal authority over all in all areas that it regulates, and this would suggest that the legitimacy of an authority is an all-or-nothing proposition.
But others find this aspect a virtue of Raz’s account. The law, by its nature, claims authority in all it does, but it is also generally believed that the law does not have equal authority in all the areas it chooses to regulate. For example, many people do not think the state has any authority to deny people pleasures that cause no harm to others, such as gambling, using prostitutes, or taking drugs, while perfectly accepting the law’s authority to punish crime and regulate traffic.
Reminder of learning outcomes
By this stage you should be able to:
u explain the paradox of authority and why Raz’s service conception of authority seems to point the way to a solution of the paradox
u explain Raz’s ‘normal justification thesis’ of authority, and say how authorities may be justified in issuing directives to their subjects, and how they may fail to justify authority over them.
8.3 Exclusionary reasons: the deliberative and executive phases of practical reason
The notion of authority fits into a broader, more general picture of practical reasoning which Raz constructs. The core element of that picture is the ‘exclusionary’ reason. Recall that normally, when reasoning what to do, we act rationally if we decide on the balance of reasons. We have seen, however, that sometimes we should follow the directive of an authority rather than decide on the balance of reasons ourselves. When we do this, we take the authority’s directive as an ‘exclusionary reason’. By that, we mean that we follow the directive, not the balance of reasons as we have assessed it – the authoritative directive is a reason for acting which excludes our acting on the balance of reasons directly.
8.3.1 Separating the deliberative and executive phases of practical reason
What exclusionary reasons† do is provide a means to allocate the deliberative and executive phases of practical reason to different occasions or different people or both.
The ‘deliberative’ phase of practical reason is the consideration and weighing up of the reasons that bear on the issue, and coming to a decision about what to do. The
‘executive’ phase is acting on the basis of that decision. Consider the procedures of a body like a student law society, deciding how much to subsidise tickets to its summer ball. Various factors are considered, such as how much money the society has, what other projects the money could be spent on, how many extra students a subsidised ticket price will attract, and so on, and decides on a subsidy, perhaps by majority vote.
This decision ends the deliberative phase of the practical reasoning process.
Now we pass to the executive phase: the various officers of the society organising the ball must now treat the issue of the subsidy as decided, and implement the society’s decision. They must treat the society’s decision as an exclusionary reason governing their behaviour; they must not re-consider all the factors that went into the decision and then act on what they themselves would decide. If they did that, the society’s decision would have been pointless, for it would not, practically speaking, have decided anything. Exclusionary reasons work in the same way in respect of judicial decisions.
Lawyers for the parties are entitled to make representations to the judge, but once the judge decides, the deliberative phase is over, and the parties must then act on what the judge orders, taking his decision as an exclusionary reason. If the parties were free to
†Think of exclusionary
act on what they thought was the right result in law, it would defeat the whole purpose of bringing the dispute to court. Similarly, when Parliament passes a law following debate, the law must henceforward be taken as an exclusionary reason for action by the subjects of the law. In this way, the separation of the deliberative and executive phases of practical reason and the issuing of exclusionary reasons provides for the coordination of behaviour by different people who share general goals and values but where it is unlikely that this coordination can be achieved by people acting on their own assessment of all the relevant facts.
Activity 8.2
How does the notion of an exclusionary reason explain the binding force of promises?
Feedback: see end of guide.
8.3.2 The force and scope of exclusionary reasons
Authorities have the right to issue authoritative directives based upon their deliberation on the relevant facts. They are justified in doing so (often they are not – not all de facto authorities are justified, or de jure, authorities) when their directives are more likely to reflect the balance of reasons than are their subjects deliberating on their own. But it is important to notice the nature of exclusionary reasons in order to understand their force and scope.
In the first place, exclusionary reasons replace all the reasons that would otherwise be balanced in coming to a decision, because the exclusionary reason represents those reasons as the conclusion of a deliberation which took those reasons into account. Thus it is wrong to think that an authority’s directive is just another reason for a subject of the authority to add to the balance of reasons as he or she considers. That would be to double-count reasons – the authoritative directive has already taken all the reasons into account, and so can’t be added to them in any rational fashion by a further balancing exercise. This explains the ‘peremptory’ force of exclusionary reasons – they are meant alone to determine what is to be done.
But exclusionary reasons concern action, not thinking. Nothing in the exclusionary reason stops a subject from considering the balance of reasons, or speaking about them, so long as the subject accepts that he or she is not entitled to act on those deliberations.
This is clear in the way that politicians accept the authority of the law. Opposition parties often continue to criticise a law long after it has got onto the statute book, but they do not, typically, counsel the subjects of the law to break the law because they believe it is wrong. And when, rarely, they do so, it is regarded as defying the authority of the law, and this is taken extremely seriously.
Finally, exclusionary reasons have scope. They only cover those reasons which were considered in the deliberative process. This is why the discovery of significant new evidence is grounds for upsetting a trial decision, though obviously it is no easy matter to decide what counts as significant. No trial could be determinative if its decision could be upset by pointing out insignificant or minor facts which were not brought to the court’s attention. Similarly, exclusionary reasons are not exclusionary to the extent that the process of deliberation was somehow faulty, if, for example, the judge was drunk, or a clear error of reason is evident. (A clear error is not the same thing as a great error – a clear error is one in which it is obvious that something has gone wrong, as, for example, if
Finally, exclusionary reasons have scope. They only cover those reasons which were considered in the deliberative process. This is why the discovery of significant new evidence is grounds for upsetting a trial decision, though obviously it is no easy matter to decide what counts as significant. No trial could be determinative if its decision could be upset by pointing out insignificant or minor facts which were not brought to the court’s attention. Similarly, exclusionary reasons are not exclusionary to the extent that the process of deliberation was somehow faulty, if, for example, the judge was drunk, or a clear error of reason is evident. (A clear error is not the same thing as a great error – a clear error is one in which it is obvious that something has gone wrong, as, for example, if