|Joseph Raz -- definitely one of the coolest looking philosophers out there.|
Joseph Raz is one the more estimable modern moral, political and legal philosophers. His work covers a range of topics, from the relationship between law and morality, to conceptions of authority, to theories of practical reason and morality. I must confess, I find a lot of his work dull in the extreme, but it’s certainly well-regarded and people have been telling me to read more Raz for ages.
So I finally did, starting with one of his more famous articles, “Authority, Law, and Morality”. In this article, he presents his famous argument for legal-political positivism. The argument is based on a particular conception of authority, and a particular view about the relationship between legal directives and that kind of authority. It is one of the most widely-discussed and important arguments in political and legal philosophy. In this post, and the next, I want to briefly exposit and comment on it. I haven't seen this done well anywhere else on the web so it might prove useful to somebody other than myself.
The argument defends what Raz calls the “Sources Thesis”. This is one of three competing theses about the relationship between law and morality that Raz mentions three at the outset of his article:
Sources Thesis: All law is source-based, i.e. its existence and content can be determined by reference to social facts alone.
Incorporation Thesis: All law is either source-based or entailed by source-based law (e.g. if the law says “There shall be no unfair discrimination” then the content of that prescription can be determined solely by reference to social facts or whatever is entailed by those social facts).
Coherence Thesis: The law consists of source-based law together with the morally soundest justification of source-based law (Ronald Dworkin’s view of law).
These descriptions might look a little odd to those who are not familiar with contemporary views in jurisprudence (and, indeed, they may look a little odd to those who are familiar with such views since Raz’s labels are somewhat idiosyncratic). Their significance for the law/morality debate is as follows: if the Sources Thesis is true, then law is a matter of non-moral social fact; if the Incorporation Thesis is true, then law might be a matter of social fact but might also include some moral facts (if they are entailed by the source-based law); and if the Coherence Thesis is true, then morality plays a very significant role in determining the content of the law.
Raz argues that if law claims authority, then the Sources Thesis must be true. He develops this argument in three distinct phases. First, by sketching a general conception of authority. Second, by outlining a way of arguing for the Sources Thesis based on this conception. And third, by defending the key premises of that argument. I’ll to follow these three phases in my discussion below, though I’ll break the discussion down into more parts. In this post, I’ll sketch Raz’s account of authority and the basic structure of his argument. In the next post, I look at how Raz defends the key premises of his argument.
A caveat at the outset: Raz’s article is long, complex and not always perspicuously expressed. I pass over much of the complexity and detail in these two blog posts and try to isolate the core argument. This means I ignore certain discussions that might be of interest to the reader. Obviously, you should never just assume that my presentation of the argument covers all the important bits. I try, but I am both fallible and lazy, so bear that in mind.
With those confidence-inspiring words out of the way, let’s get started.
1. Raz on Authority
My neighbour, Paul, and I are having a dispute. I think he plays music too loud in the evenings, and he thinks I should “mellow out”. I want him to stop; he does not wish to stop. We both have reasons for our views. I need peace and quiet in the evenings so that I can concentrate on my work (which I often do late at night); Paul says he needs to listen to music so he can unwind after a long hard day at work.
Our dispute escalates and things start to get unpleasant. Acknowledging a need to do something to resolve the situation, we voluntarily agree to submit the dispute to a third party (an arbitrator) for resolution. The arbitrator will weigh and assess our reasons, and reach a conclusion about what should be done. We will follow her decision, since we voluntarily agreed to be bound by it. In this example, the arbitrator acts as a legitimate authority, and by paying close attention to exactly what the arbitrator does, we can learn something important about the nature of authority.
So what does the arbitrator do here? Roughly, the arbitrator takes a set of reasons for doing or forbearing from some action (in this case playing loud music in the evening). These reasons are already “live” for the two people submitting themselves for arbitration (myself and Paul). The arbitrator then assesses those reasons (and possibly some others we may not have thought of) and issues an authoritative directive. This authoritative directive then replaces the reasons myself and Paul previously had. In other words, it becomes a new preemptive reason for us to act upon.
This description forms the basis of what Raz calls the “Service Conception” of authority. According to this conception, the key role of an authority is to mediate between actors and the reasons those actors have for doing or forbearing from some activity. In other words, instead of us doing all the weighing and deliberating of reasons, the authority does the hard work for us. We just have to do as they say.
The Service Conception of authority is made up of two core theses:
Dependence Thesis: The directives issued by the authority should be based (at least in part) on reasons which apply to the subjects of those directives in the circumstances covered by the directive (Raz calls these reasons “dependent reasons”, hence the name of the thesis).
Preemption Thesis: The directive issued by the authority is a reason for doing or forbearing from some relevant act which replaces some of the preexisting reasons for actions (this might also be called the replacement thesis).
Raz is clear that by themselves these two theses do not imply that authorities supply us with decisive reasons for action. Indeed, it is central to his whole argument that authorities do not necessarily issue directives which their subjects are bound (morally speaking) to follow. For that, additional conditions must be met. In the example given, the fact that we voluntarily submitted ourselves for arbitration would supply the missing ingredients. But when voluntary submission to an authority is absent, Raz suggests that the “Normal Justification” Thesis applies. Unfortunately, his specification of this thesis in the article is an absolute trainwreck; a real paean to confusing sentence structure. My best attempt to ungarble it is as follows:
Normal Justification Thesis: The normal way to establish that a person or institution should be acknowledged to have authority over another person (the “subject”) is to show that the subject is likely to be better off (morally speaking) by following the authority’s directives than by weighing, assessing and deciding upon the available set of reasons themselves.
This is an interesting claim, and one could have many long and fruitful discussions about whether it successfully justifies authorities. But such discussions would be a distraction here. I included the thesis merely for the sake of completeness. Raz’s account of authority is highly influential and worth knowing, but to understand his argument about the nature of law, only the first two theses are needed. Bear them in mind as we proceed.
2. The Structure of the Argument from Authority
Raz’s defence of the Sources Thesis can be boiled down to this: The law claims authority. In order to intelligibly claim authority, the law must have certain properties that are typical of authorities. Those features are only compatible with the Sources Thesis. Therefore, the Sources Thesis must be true. To express that in standard form:
- (1) If law is to claim authority, then it must have certain properties P1…Pn.
- (2) Law claims authority. (3) Therefore, law has properties P1…Pn.
- (4) The Sources Thesis is compatible with law having properties P1…Pn; the Incorporation Thesis and the Coherence Thesis are not.
- (5) Therefore, the Sources Thesis is (probably) the correct account of the nature of law.
Obviously, the key to this argument lies in the specification of the properties in premise (1). This is because, in addition to determining the plausibility of premise (1), those properties determine the plausibility of premise (4), and premise (4) is where the major claims about the nature of law are defended.
Still, before we spell out those properties, a word or two must be said about premise (2). Is it really true that law claims authority? Raz argues about this at length, suggesting that it is an essential property of law to claim authority. He also talks about what it means to say that law claims authority. He notes that one could say that anything claims authority if one wished, but that would be silly in many instances. The key thing about law is that, because it issues action-guiding directives, it makes sense to say that it claims authority. Things would be different if law were to consist entirely of propositions about volcanoes (Raz’s example), but it doesn’t. It consists of action-guiding directives. That’s not to say that the law never fails to successfully or legitimately claim authority — that’s a different claim — but it is to say that law can be intelligibly characterised as claiming authority.
I don’t really have problem with any of that. I’m perfectly happy to accept that law claims authority, provided we don’t assume that it is morally successful in claiming authority. Since Raz grants that exception, I’m willing to move on to the more important parts of the argument. This is something I take up in part two.