The Fallibility Argument

This argument raises the following question in the hope that the answer to it is equally applicable to indeterminate judicial decisions and directives: why are mistaken directives authoritative? We have already noted that modified conventionalism makes conceptual room for mistaken but supposedly authoritative directives. We need to examine how this is possible. If it is possible, and if the same reasons that make mistaken directives authoritative can also serve to make indeterminate judicial decisions and the directives that flow from them authoritative, then strong value pluralism and the legitimacy condition can both be affirmed without difficulty.

The first task is to get clear about the ways in which supposedly authoritative directives can be mistaken. From Raz's discussion it seems that there are three ways. One such mistake ensures that the directive can have no authority at all: ‘[m]istakes which … [authorities] make about factors which determine the limits of their jurisdiction render their directives void. They are not binding as authoritative directives …’ (MF, 62). Such mistakes can henceforth be ignored. The other two kinds of mistake are not explicitly distinguished and labelled by Raz but his remarks are such as to show that he does implicitly draw a distinction and that he is (although he may not

recognize it) committed to treating the two types of mistake in very different ways. An objection (p. 262) to Raz's account of authority holds that a directive based upon a mistake about the reasons justifying the directive is robbed of its authority.

Raz responds thus: ‘[r]easons which authoritative directives should, but fail to, reflect are none the less among the reasons which justify holding the directive binding’ (MF, 61). The type of mistake Raz has in mind here is what can be called an Ealing mistake: there is a good directive, in the sense that there are good reasons for it, based upon a mistaken assessment of its justifying reasons. That is, the authority issues a directive in the belief that it is justified by reasons Q when in fact only reasons U can justify the directive. Since, let us suppose, reasons U obtain, we are faced with a situation that can crudely be described as one in which we have the right directive justified by the wrong reasons, there being good reasons available. Raz thinks that in this situation the directive can be authoritative and, if it is, it must satisfy the normal justification thesis. The second kind of mistake we can call a Wednesbury mistake. Here an authority issues a directive that is mistaken in the sense that there are no good reasons for it at all: this situation can be characterized, albeit crudely, as consisting of the wrong directive and the wrong reasons. Raz seems to have such a scenario in mind when he imagines a ‘legitimate authority … [being]

limited by the condition that its directives are not binding if clearly wrong’ (MF, 62; emphasis added). Somewhat strangely, Raz completes this remark with the caveat that ‘I wish to express no opinion on whether it is so limited’

(ibid.). He does not consider whether or not such directives could satisfy the normal justification thesis.

What reasons does Raz have to support the claim that Ealing directives satisfy the normal justification thesis?

There are two, his argument beginning with a statement of the thesis and ending with a warning about losing its advantages:

An authority is justified … if it is more likely than its subjects to act correctly for the right reasons. That is how the subjects' reasons figure in the justification, both when they are correctly reflected in a particular directive and when they are not. If every time a directive is mistaken, i.e. every time it fails to reflect reason correctly, it were open to challenge as mistaken, the advantage gained by accepting the authority

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as a more reliable and successful guide to right reason would disappear. (MF, 61)

Now this restatement of the normal justification thesis seems intended to illustrate the point that an authority need not always be a better assessor of the right reasons applicable to agents than agents themselves are. Hence, in a number of cases the authority will be wrong. How does this establish that wrong directives are authoritative? The argument shows merely that, if we are satisfied that an authority tracks right reason in the majority of cases, then we ought to accept its authority in the majority (p. 263) of cases. The most it could establish beyond this is a fairly weak presumption in favour of all the authority's directives. The argument would take the following form: since in the majority of cases the authority tracks right reason and the majority of its directives are therefore authoritative, all its directives should be presumed to be authoritative. The reason why this can only be a weak presumption in favour of the authority is obvious—the fact that the authority has tracked right reason in a majority of cases in the past cannot guarantee that it will continue to do so either in the present or the future. So some Ealing directives might be taken to be authoritative on the basis of this presumption, but only some and, one must assume, only for a limited time. If the authority is continuously mistaken its directives surely cannot satisfy the normal justification thesis. The fact that this argument falls far short of establishing that all Ealing directives are authoritative should not surprise us. For this kind of limited claim fits snugly with Raz's view that there is no general obligation to obey the law. Rather, the existence of any obligation depends, inter alia, on the circumstances of both subject and authority (see MF, 70 and 74).

Raz's second reason to show that Ealing directives are authoritative is also a little shaky. It consists of the truism that when directives are mistaken we will lose the advantage of acting in accordance with an authority. But it is equally true that once an authority issues directives that are ultra vires, the advantage of authority is lost. What this amounts to is that when authorities act contrary to the normal justification thesis, their directives lack authority.

In that case we will indeed lose the benefits of authority, but avoiding that loss surely cannot justify, under the normal justification thesis, unconditional compliance with mistaken or ultra vires directives. So, the most Raz establishes is that some Ealing directives might be authoritative because covered by the weak presumption. That is not a secure basis for the claim that all such directives are authoritative.

Were we to consider what a particular Ealing directive that fell within the weak presumption must look like in order to convincingly satisfy the normal justification thesis, we would have to return to the two alternative conditions that indeterminate judicial decisions must satisfy. Since these are conditions that any directive must satisfy, one or other of them needs be satisfied by Ealing directives. The conditions are: either (i) the directive must function so as to allow agents subject to them to comply with the reasons they have for acting more effectively than they would were they to try to determine those reasons for themselves; or (ii) the directive must show that agents were in the grip of a coordination problem they were unaware of, and that they had reasons to co-operate of which they were either unaware or incapable of realizing. Now, in so far as Ealing directives are based upon a mistaken account of the (p. 264) reasons justifying directives, they cannot completely satisfy the first condition. How can a directive that rests upon such a mistake allow the agents subject to it to comply with the reasons that apply to them more effectively than if they attempted to determine those reasons for themselves? It could do so only in this situation: by invoking reasons not truly applicable to agents, the directive somehow hinted at, or pointed agents in the direction of, reasons truly applicable to them. This is much more likely in the case of Ealing as opposed to Wednesbury directives because the former direct agents to act in accord with right reason(s), even though the directives are based upon a misunderstanding of that or those reason(s). Ealing directives could partially satisfy the second condition in that, though mistaken as to why co-ordination was worthwhile, they could nevertheless solve the coordination problem. (If the directive solved the problem and did so because it was based upon an accurate account of the reasons why co-ordination was worthwhile, it would not, ex hypothesi, be mistaken.) Hence, even when they fall within the weak presumption Ealing directives can only partially satisfy the normal justification thesis.

By contrast, it is unlikely that Wednesbury directives could satisfy the normal justification thesis at all. While there are some good reasons available to justify Ealing directives, no such reasons support Wednesbury directives. So as to be sure that the latter type of mistaken directive does not satisfy the normal justification thesis, consider again the two alternative conditions any directive must satisfy in order to be legitimate. The first condition need not delay us long. Since Ealing directives are unlikely to, or will only partially, satisfy it, then there is no hope that Wednesbury directives will. If there are no good reasons for the directive, how can it help agents track right reason better than they otherwise would? And, whereas Ealing directives can partially satisfy the second condition—they

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solve the coordination problem and ensure co-operation even though they are based upon a misunderstanding of the reasons for co-operation—Wednesbury directives cannot. These directives, remember, are wrong, both about the reasons for co-operation and the nature of the directive required to bring about co-operation. The seemingly insurmountable difficulties that ensnare any attempt to show that Wednesbury directives satisfy the normal justification thesis make Raz's caveat about ‘clearly wrong’ directives extremely puzzling. For, it seems that if they are clearly wrong in the Wednesbury sense, then they just cannot be legitimate, unless covered by the weak presumption. And the life of the weak presumption will, of course, be much shorter with regard to Wednesbury than to Ealing directives.

The argument to show that mistaken directives are legitimate is, then, rather limited. Using this argument to show that indeterminate directives are also legitimate is not therefore a promising strategy. Particular mistaken (Ealing) directives can only partially satisfy the normal justification thesis and then only if they either fall within the realm of the weak presumption or unintentionally point agents to the reasons applicable to them. So far, it might seem that although weak as a means of establishing the legitimacy of indeterminate judicial decisions and directives, this argument is (p. 265) no weaker than the direct argument. Therefore, it might be thought that the fallibility

argument shows that indeterminate judicial decisions and directives are legitimate. This would be a mistake, for the following reason. It consists of highlighting the way in which Ealing directives can partially satisfy the normal justification thesis. They do so by solving a coordination dispute albeit on the basis of a mistaken account of the reasons why the dispute should be solved (we are faced, remember, with the right directive but the wrong reasons). The crucial point here is that there are, even though the authority has got them wrong, good reasons to solve the dispute one way or another. And, as we have noted in our discussion of the indirect argument, if there are good reasons to solve a dispute supposedly based upon incommensurability one way rather than another, that must call into question the fact that we are indeed dealing with a conflict between incommensurables. The difficulty that scuppers the indirect argument arises here also and disables the fallibility argument.

The yield from the direct, indirect, and fallibility arguments is not great. The direct argument can only show that indeterminate judicial decisions and their directives are legitimate when the parties in dispute are misguided about either the existence or nature of the reasons and values applicable to them. It is thus a very limited success, the authority of decisions and directives completely dependent, as is the normal justification thesis in general, upon the knowledge, abilities, and context of the parties to whom they are applicable. By contrast, the indirect and fallibility arguments are not ultimately even partially successful: neither can show that indeterminate judicial decisions are legitimate without denying that those decisions are indeterminate.

The obvious question that now arises is this: why worry about this meagre yield? The content of the answer is different but the overall refrain familiar: part of the sceptical challenge cannot be met or, more accurately, can be met but only in a very limited way. The relevant part of the sceptical challenge is, of course, that which questions the legitimacy of law and adjudication. For sceptics, judicial decisions lack real legitimacy although mechanisms beyond and within the law serve to generate an appearance of legitimacy. In this vein David Kairys observes that ‘[t]he judge makes a choice, and legal reasoning provides a stylised rationalisation that legitimates that choice within the legal and social order’; adjudication is one of the ‘many areas of our lives … [in which]

essentially social and political judgements gain legitimacy from notions of expertise and analysis that falsely purport to be objective, neutral, and quasi-scientific’. Similarly, Unger holds that deceit is necessary if judicial decisions are to be regarded as authoritative: ‘[t]he concealment of … assumptions is vital to the persuasive authority of the dominant legal ideas; seemingly uncontroversial technical conceptions commonly depend upon highly controversial, nontechnical (p. 266) premises’. The legitimacy of these assumptions cannot stand the light of day: they are ‘made controversial if not implausible in the very process of being exposed’.

As we have seen, non-sceptics can show that the legitimacy condition is satisfied only in very limited

circumstances. This, of course, is an answer to the sceptics but it is not as powerful as could be hoped. It could be maintained that this is not really a cause for worry, since legal systems in which indeterminate judicial decisions exist may well satisfy the normal justification thesis even though those particular decisions do not. This strategy insists, as Raz himself sometimes does, that it is not individual directives which should be tested for legitimacy but the overall legal system of which they are part. And, it might be said, the system as a whole better enables citizens to track the requirement of right reason(s) than they would if operating under their own lights. This could well be true, but it seems neutral between two possibilities. One has already been mentioned—if a legal system as a whole is legitimate, why worry about those particular instances where it is not? Another is more likely to occupy sceptics:

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those instances in which a system lacks legitimacy are especially worrying.

5 Conclusion

The arguments herein are easily summarized. Sections 1 and 2 served to introduce the rationality and legitimacy conditions and situate them within contemporary sceptical and non-sceptical accounts of adjudication. The remaining two sections were on the whole concerned with non-sceptical accounts of adjudication only. Section 3 argued that non-sceptics who claim incommensurability plays a role in adjudication cannot also claim that

adjudication is, in a stringent sense, rational. Section 4 argued that it is difficult to show that rationally indeterminate judicial decisions are legitimate. So what? Failure to show that hard case adjudication is a stringently rational and legitimate process means that a response to the sceptical challenge is hard to come by. This raises a host of questions about the ultimate power and plausibility of that challenge, but we must not overlook the target at which it is aimed. It is the idea that law and adjudication are pre-eminently desirable means of both subjecting human conduct to the governance of rules and of resolving disputes about those rules. The argument here has moved a few steps towards the conclusion that law and adjudication may not be as pre-eminently desirable as often assumed, since they are (p. 267) not obviously more rational nor more legitimate than other non-arbitrary means of organizing our collective life and resolving disputes. To be valid, that conclusion depends upon an analysis of the rationality and legitimacy of these other means of organizing life and resolving disputes. Nothing has been said about such matters here. The conclusion that adjudication is in some respects not obviously better than other means of resolving disputes is, in itself, neither liberating nor disturbing. Whether it is viewed one way or the other depends upon the range of expectations we have of law and adjudication and, equally important, the degree of faith we invest in them.

Notes:

Thanks to Steven Brown and Kenneth Himma for comments and thoughts. A much earlier version benefited from the thoughts of John Gardner and Matthew Kramer. The arguments herein are much extended and revised versions of some that appear in chapter 4 of my Understanding and Explaining Adjudication (Oxford: Clarendon Press, 1999).

(1) Cited in T. R. S. Allan, ‘The Rule of Law as the Rule of Reason: Consent and Constitutionalism’, Law Quarterly Review, 115 (1999), 221–44.

(2) In a recent murder trial in Kentucky jurors had no such reservations: the Guardian, 26 Apr. 2000: 16.

(3) J. Habermas notably runs together the two expectations. He says that ‘the claim to legitimacy [Habermas's equivalent to the legitimacy expectation] requires decisions that are … rationally grounded [his equivalent to the rationality expectation] … so that all participants can accept them as rational decisions’: Between Facts and Norms (Cambridge: Polity Press, 1996), 198. So, too, does K. Kress, who assumes that the indeterminacy of doctrine (which undermines the rationality expectation) entails a lack of legitimacy: ‘Legal Indeterminacy’, California Law Review, 77 (1989), 283–337, at 285–95.

(4) There are, of course, other topics that could be explored if time and space permitted. The three considered in the text have, however, been subject to a great deal of attention and do not seep too far into the territory of other chapters in this volume.

(5) R. Dworkin, Law's Empire (London: Fontana 1986), 266, 353–4, and 449 n. 14. Referred to hereinafter, in both text and notes, as LE.

(6) See N. MacCormick, Legal Reasoning and Legal Theory (Oxford: Clarendon Press, 1978; rev. edn., 1993), chs.

II and III. Hereinafter referred to in both text and notes as LRLT with accompanying page numbers.

(7) J. Raz, The Authority of Law (Oxford: Clarendon Press, 1979), 182; referred to hereinafter, in both text and notes, as AL.

(8) At least one sceptic maintains that all cases are hard: see M. Kelman, A Guide to Critical Legal Studies (Cambridge, Mass.: Harvard University Press, 1987), 4. Compare D. Kennedy, A Critique of Adjudication (Cambridge, Mass.: Harvard University Press, 1997), 60.

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(9) R. Dworkin, Taking Rights Seriously (London: Duckworth, 1978), pp. xiv, 83.

(10) R. Dworkin, Taking Rights Seriously (London: Duckworth, 1978), 31–4, 68–71 and 327–30.

(11) R. Dworkin, Taking Rights Seriously (London: Duckworth, 1978); LRLT, 249.

(12) The task has been started: see K. Hawkins (ed.), The Uses of Discretion (Oxford: Clarendon Press, 1992) and D. Galligan, Discretionary Powers (Oxford: Clarendon Press, 1986).

(13) MacCormick is not entirely comfortable with utilitarianism, of whatever kind, but he nevertheless invokes it:

LRLT, 115–16 and 105 n. 1 (see also p. xv). For excellent introductions to the difficulties utilitarianism (and its close relative, consequentialism) raises see J. J. C. Smart and B. Williams, Utilitarianism: For and Against (Cambridge:

Cambridge University Press, 1973); S. Scheffler (ed.), Consequentialism and its Critics (Oxford: Clarendon Press,

Cambridge University Press, 1973); S. Scheffler (ed.), Consequentialism and its Critics (Oxford: Clarendon Press,